Sivananthan v Commissioner of Police, NSW Police Service

[2001] NSWADT 44

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION:        Sivananthan -v- Commissioner of Police, New South Wales Police Service [2001]  NSWADT 44

PARTIES:           APPLICANT
Kathiravelu Sivananthan
RESPONDENT
Commissioner of Police. New South Wales Police Service

FILE NUMBERS:             981016

HEARING DATES:          07/02/2000 - 11/02/2000, 14/02/2000 - 18/02/2000, 21/03/2000, 22/03/2000, 15/05/2000, 16/05/2000, 29/05/2000, 30/05/2000, 14/08/2000

SUBMISSIONS CLOSED:             14/08/2000

DECISION DATE:           21/03/2001

BEFORE:            Rees N - Judicial MemberLuger M - MemberMooney L - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Rules (Transitional) Regulation 1998
Anti-Discrimination Act 1977
Racial Discrimination Act 1976 (Cth)

CASES CITED: Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73
Director General of Education v Breen [1982] 2 IR 93
Hill v University of New England (1991) EOC 92-291
Shaikh v Commissioner, NSW Fire Brigade (1996) EOC 92-808
Commissioner of Corrective Services v Aldridge [2000] NSW ADTAP 5
Adams v University of Western Sydney [2001] NSWADT 19
Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 118 ALR 80
IW v City of Perth (1997) 191 CLR 1
Crewdson v President, Anti Discrimination Board of NSW [2000] NSWADT 60

APPLICATION:                Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
Race Discrimination - In work
Victimisation

MATTER FOR DECISION:           Principal matter

APPLICANT REPRESENTATIVE:             APPLICANT
In person

RESPONDENT REPRESENTATIVE:         RESPONDENT
T Anderson, barrister

ORDERS:           1. Complaints of discrimination on the ground of race dismissed
2. Complaints of victimisation dismissed
3. The respondent is granted leave to apply to the Registrar within 28 days to re-list this matter to pursue his application for costs

Reasons for Decision:

A. Introduction

1             In this case the complainant, Mr Kathiravelu Sivananthan, has alleged that his former employer, the Commissioner of Police (the respondent), discriminated against him on the ground of race and subjected him to victimisation because of his race discrimination complaints.

2             The case was heard by the Tribunal in Sydney over 17 sitting days between 7 February and 14 August 2000.  The respondent was represented by Ms Anderson of counsel and the complainant, who is a solicitor, appeared in person.

3 On 11 February 2000 the Tribunal upheld the application by the respondent that all of the complaints of discrimination on the ground of race be dismissed pursuant to section 111 of the Anti-Discrimination Act 1977 (the Act) as they were lacking in substance.  We delayed providing written reasons for that decision, which are contained in this document, until the victimisation complaints were concluded.  After a full hearing of the victimisation complaints the Tribunal has concluded that they too should be dismissed.

4             In the paragraphs which follow we have set out the history of these proceedings, summaries of the evidence presented and the submissions made in relation to the race discrimination and victimisation complaints, as well as the judicial member’s understanding of the applicable law, our findings of fact and the reasoning process which has led us to conclude that all of the complaints should be dismissed.

B. History of the Proceedings

5             The summary which follows is drawn from the report of the President of the Anti-Discrimination Board (the President) which was tendered in evidence and the ‘pleadings’ filed by both parties in compliance with directions made by the Tribunal.

6             On 16 July 1996 the President received the first of what he has characterised as nine separate complaints of discrimination in employment on the ground of race by the complainant against the respondent.  In his initial letter of complaint Mr Sivananthan stated:

I was born in Sri Lanka on 18 August, 1938, I am a Sri Lankan Tamil and I am employed as a Solicitor (Legal Officer Grade IV) by the N.S.W. Police Service.   I joined the N.S.W. Police Service as a Legal Officer Grade IV on 3 January 1989.  Amongst the legal officers employed by the N.S.W. Police Service, I am the legal officer with the longest service.  I state that the N.S.W. Police Service and more particularly Mr Frank Hutchison, the Service Solicitor, who is the head of the Legal Services Section, have treated me less favourably than other legal officers and legal clerks employed by the N.S.W. Police Service who are of a different race.

The N.S.W. Police Service and Mr F. Hutchison, the Service Solicitor, wrongfully and unlawfully discriminated against me over and over again on several occasions on the grounds of my race, ethnicity and non-English speaking background in breach of the equal employment opportunity principles and the provisions of the Anti-Discrimination Act by denying me access to any opportunity for promotion and subjecting me to continuous harassment and humiliating treatment in the day to day activities in carrying out my duties as a legal officer whereas other legal officers and legal clerks of a different race are treated more favourably.

I annexe hereto marked “A”, a statement setting out the incidents of discriminatory and humiliating treatment I have been subjected to by the N.S.W. Police Service and by Mr Frank Hutchison, the Service Solicitor.  Due to the conduct of the N.S.W. Police Service and Mr Frank Hutchison, I have suffered and continued to suffer irreparable, irremediable loss and damage comprising economic loss, severe humiliation, pain of mind, mental distress, stress, anxiety, depression and other related mental trauma.

The attached statement marked “A” shows the obsession and malice with which Mr Hutchison set out to discriminate against me over his period of management from February 1992, with total disregard for equal opportunity principles and the provisions of the Anti-Discrimination Act 1977 (N.S.W.).

I am also enclosing my curriculum vitae, testimonials given to me in Sri Lanka and in Australia, and newspaper articles regarding my legal experience over thirty years.

I am suffering from severe anxiety, mental stress, depression and other related mental trauma for which I am taking medical treatment from a consultant psychiatrist.  The incidents referred to have affected my family life and my wife is taking medication for high blood pressure.  It is in desperation I am making this complaint, and with great respect I request that my complaint be investigated as a matter of urgency.

7             The complainant attached to this letter a document in which he set out the details of what he alleged were 18 separate incidents of race discrimination, as well as numerous newspaper clippings and testimonials concerning his career as a barrister in Sri Lanka and as a solicitor in NSW.

8             On 6 May 1997 the complainant wrote again to the President attaching, amongst other things, a copy of his complaint to the Wood Royal Commission (dated 13 June 1996), a copy of a letter sent to the respondent (dated 12 March 1997) “regarding corruption, mismanagement and discrimination in the Office of the Solicitor, NSW Police Service”, a copy of a document concerning “incidents of mismanagement, corruption, inefficiency, discrimination and harassment in the Office of the Solicitor, NSW Police Service” and details of “further incidents of discrimination and harassment”.  On 26 May 1997 the complainant lodged another complaint with the President concerning “further incidents of corruption, mismanagement, discrimination, victimisation and harassment in the Office of the Solicitor, NSW Police Service”.

9             On 1 July 1997 the President wrote to Assistant Commissioner Christine Nixon of the NSW Police Service.  In this letter he set out the complainant’s allegations and invited a response.  The President, in his report to the Tribunal, summarised Mr Sivananthan’s allegations as follows:

When the Legal Services Department was restructured, some officers were directly appointed to new positions.  He was not.

He has been denied promotions.

He has been denied an equitable share of acting up opportunities and when he has acted up he has not been paid the full allowance.

His arrangements for travel to court appearances are different from other equivalent officers.

His claim for legitimate expenses are subjected to greater scrutiny than other equivalent officers.

He has been required to provide medical certificates for all absences, unlike other officers.

10 On 10 October 1997 the President received a letter from Assistant Commissioner Christine Nixon advising that “[t]he Police Service has employed an external consultant to thoroughly investigate Mr Sivananthan’s complaints under the Public Sector Management Act 1988 ……” In an attached document Assistant Commissioner Nixon provided factual information sought by the President and, in response to every allegation of race discrimination, Ms Nixon stated that “the Police Service has appointed an independent person to carry out an investigation under the Public Sector Management Act into the complaint lodged by Mr Sivananthan”.

11 On 13 February 1998 Assistant Commissioner Nixon again wrote to the President. She referred to her earlier letter and stated that “…. the Police Service has now prepared a response to outstanding issues raised in your letter of 1 July 1997 …. based on the final report of the independent consultant employed by the Police Service to investigate Mr Sivananthan’s complaints under the Public Sector Management Act 1988 …..”. In an attached document additional factual information was provided and each of the complainant’s allegations of race discrimination and victimisation was met with the response that “there is no evidence to support this allegation”.

12          Between 29 September 1997 and 30 July 1998 the complainant lodged seven further complaints of race discrimination and victimisation against the respondent with the President.  These complaints were forwarded to the respondent for comment.  In his report the President described the process which lead to all of the complaints being referred to the Tribunal for an inquiry:

After reviewing the additional information provided by the Board, it was the view of the Police Service that they had already dealt internally with most, if not all, of Mr Siva’s allegations and that he had not been discriminated against, harassed or victimised.

It was the view of both parties that it was unlikely that the complaints could be conciliated and a further conference would not be useful. Accordingly, the complaints are now referred to the Equal Opportunity Division of the Administrative Decisions Tribunal in accordance with section 94(1) of the Anti-Discrimination Act 1977 (NSW).

The complaints appear to fall within sections 7, 8 and 50 of the Anti-Discrimination Act 1977 (NSW).

13          The complaints came before Presidential members of the Tribunal for directions as a result of which the parties filed Points of Claim and Points of Defence.  In his Points of Claim the complainant set out in 53 paragraphs descriptions of the incidents which he alleged constituted discrimination on the ground of race and/or victimisation by the respondent.  We understood the Points of Claim to be a coalescence of his nine separate complaints of race discrimination and victimisation made to the President on various dates between 16 July 1996 and 30 July 1998.  The complainant alleged that he had suffered economic loss amounting to $194,340.  He also claimed $40,000 (the jurisdictional limit) “for each incident of discrimination, victimisation and harassment”.  As, according to our calculations, the Points of Claim refer to 36  incidents of alleged race discrimination and 24 incidents of alleged victimisation (some incidents are alleged to constitute both race discrimination and victimisation) this amounts to a claim of $2,400,000 for general damages.  The respondent denied that he or any of his employees or agents had at any time discriminated against the complainant on the ground of race or victimised him.

14          The Tribunal was of the view that it had before it nine separate complaints of discrimination on the ground of race and victimisation made by the complainant against the respondent.  In accordance with the power granted by section 97 of the Act, the Tribunal decided to conduct a single inquiry into the complaints because they arose out of substantially the same circumstances being the employment relationship between the parties.

B. The race discrimination complaints

15          The complainant was the only witness called to give evidence in support of his case.  He tendered a statement, he was granted leave to give additional oral evidence, and he tendered over 100 documents.  In his statement, and in his  additional oral evidence, the complainant elaborated upon the 36 incidents of alleged race discrimination identified in his Points of Claim.

16 At the conclusion of the complainant’s evidence in chief Ms Anderson sought a ruling from the Tribunal concerning whether she would be put to her election if she made an application that the race discrimination complaints be dismissed pursuant to section 111 of the Act. The operation of the election rule, and its rationale, are well explained by G. Roberts, Evidence : Proof and Practice, Sydney : LBC Information Services, 1998 at pages 108-109:

The “rule” is now well established that when a party submits “no case” that party should be “put to its election”.  The election thus referred to is this: if a party intimates that it wishes to make a no case submission the judge will, either immediately on the intimation or after the making of the submission but before ruling on it, inform that party that if it wishes to proceed with the submission, or seek a ruling on it if it has already been made, that party will be debarred from leading evidence in its own case. In other words, that party will have forfeited the right to present its own case.  The choice for the party moving the submission is therefore between pursing the submission  and, in effect, seeking the decision of the court on the evidence already before it, or withdrawing the submission in order that the party may present evidence in its own case.

The justification for putting a submitting party to its election lies in general considerations of what best serves the interest of justice.  A ruling on the sufficiency or adequacy of a party’s case partakes of the nature of the task before the court when it comes to make its final decision.  The presumption is that such a task is best reserved until all the evidence is in ….

It is therefore in the interest of justice, both in the individual case and more generally, to ensure that no case submissions are advisedly and responsibly made.  This is, as a general rule, best achieved by putting the submitting party to its election.  However, although the requirement to elect is referred to as “the general rule” it is in fact a discretionary matter and it has been said that the rule should not be inflexibly applied.

17 Both section 111 of the Act and section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) permit the Tribunal to summarily dismiss complaints “at any stage” of the proceedings if satisfied of one or more matters, including the claims made in this case that the race discrimination complaints are “misconceived” and/or “lacking in substance”. Both provisions are clearly designed to operate together (see section 111(3) of the Act). The Act, the Tribunal Act and the rules made pursuant to the Tribunal Act, the Administrative Decisions Tribunal (Interim) Rules 1998, do not contain any specific provisions dealing with the election rule, such as Part 34 rule 8 of the Supreme Court Rules 1970, which directs that, in the Supreme Court, a party making a no case submission at the conclusion of the opponent’s case must be put to its election.  Thus, in the absence  of any specific provisions, we were free to determine our own procedure (see section 73(1) of the Tribunal Act).

18          We concluded that in this case, bearing in mind the statutory directive to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (see section 73(3) of the Tribunal Act), the interests of justice were best served by permitting the respondent to make this submission without putting Ms Anderson to her election. The allegations made by the complainant against senior employees of the NSW Police Service were grave. The complainant referred to 36 separate incidents of alleged race discrimination extending over a six year period. It could reasonably be anticipated from the witness statements filed with the Tribunal that the allegations would be strongly and exhaustively defended. Consequently, considerable time and expense would be saved if Ms Anderson’s application were successful. We could not identify any unfairness which would flow to the complainant by not applying the election rule. Ms Anderson was permitted to make an application pursuant to section 111 of the Act without being put to her election.

19          Ms Anderson submitted that the Tribunal should find the race discrimination complaints to be “misconceived” and “lacking in substance” because there was no evidence which required an answer from the respondent; there was no direct evidence that race was a factor which influenced any of the respondent’s actions towards the complainant and nor was there any evidence from which the Tribunal could draw the inference that race was a factor in any of those actions.

20          In response, the complainant submitted that the number of incidents about which he had complained led to the conclusion that race must have been a factor which influenced the employees of the respondent to have taken the various actions referred to in his evidence.  He also pointed to two portions of the report referred to in paragraphs 10 and 11 of these reasons, known as the Whitmore Report, which he said supported his case that there was evidence of race discrimination.  In his report Mr Whitmore made some criticisms of the management style of Mr Frank Hutchison, who was at all material times the NSW Police Service Solicitor.  Mr Whitmore also recommended that Mr Hutchison and his office manager, Mr Raymond Parkinson, receive training in “value in cultural diversity”, amongst other things.  Mr Whitmore attached to his report a written record of a conversation which he had had with Mr Neil Ball, a Grade 5 Legal Officer in the NSW Police Service, on 25 July 1997 in which Mr Ball stated that “since about 1993/94 I formed the view that there most probably was a racist element in his [Mr Hutchison’s] abiding dislike for, in particular, Mr Siva”.

21          The Tribunal referred the parties to a recent decision, Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73, in which the course to be followed by the Tribunal when determining a section 111 application was discussed. When considering how to determine whether a complaint is “misconceived” or “lacking in substance” the Tribunal stated in Prakash at paragraphs 35 to 38:

35 In undertaking this examination we believe that the appropriate way forward is to take the Complainant’s evidence at its highest point, or in other words, and for the purposes of this exercise, to accept that everything which the Complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination.  In essence, and in the circumstances of this case, the Tribunal should evaluate the evidence as if a ‘no case’ submission had been made at the conclusion of the Complainant’s evidence.  If, at the end of this exercise, the Tribunal concludes that the Complainant could not succeed it is likely, in the absence of abuse of process, that the complaint has proceeded this far because the Complainant has misunderstood legal principle or has been advancing an untenable proposition of law or fact.

36 In order to determine whether the Complainant could possibly succeed in his complaint of race discrimination it is necessary to turn to the substantive provisions of the Act and to pose, and answer, two questions.  The Act makes it clear that not every act of racial discrimination  is unlawful and that it is only racial discrimination as defined by the Act which is unlawful.  To put the propositions another way, in order to be unlawful an act (or series of acts), which resulted in adverse consequences to the Complainant, must have been performed within an area of activity regulated by the Act, and the act must have been performed ‘on the ground of race”.

37 The areas of activity within which it is unlawful to discriminate on the ground of race are set out in sections 8 to 20 A of the Act. Any discrimination on the ground of race falling outside these areas of activity is not unlawful. Discrimination “on the ground of race” is defined in section 7 of the Act. (We note, of course, that these broad statements are subject to the regulation of activities by other statutes, such as the Racial Discrimination Act 1975 (Commonwealth) and to the ‘extension’ provisions in the NSW Act such as sections 20B to 20D which deal with racial vilifications).

38 Thus the two questions to be posed would appear to be:

1. Is there any evidence to suggest that the Complainant has suffered any of the consequences set out in any of the areas of activity governed by the Act by reason of any action of the Respondent?

2. If ‘yes’ to Question 1, is there any evidence to suggest that the Complainant suffered the consequence, or consequences, by reason of action taken by the Respondent on the ground of the Complainant’s race?

We accept the statements of law in these paragraphs and we believe that the two questions posed in Prakash are the appropriate questions to ask in this case.

22 In this case the answer to the first question is clearly “yes”. Ms Anderson rightly conceded this to be so. The relevant substantive provision (that is, the section of the Act which renders conduct unlawful) in this case is section 8 of the Act which prohibits an employer from doing various things to any of its employees on the ground of race. The complainant’s evidence, taken at its highest point, permits the conclusion that the complainant has suffered the consequences set out in paragraphs (b) and (c) of section 8(2) of the Act as a result of actions taken by the employees and agents of the respondent. We note that for the purposes of the race discrimination complaints, as well as the victimisation complaints, Ms Anderson made the concession that all of the actions taken by the employees of the respondent, about which Mr Sivananthan has complained, were to be considered the actions of the respondent.

23          It is the second question, however, which is the key to Ms Anderson’s application : is there any evidence to suggest that the complainant suffered the consequences (of which he complains) by reason of action taken by the respondent on the ground of the complainant’s race?  In our opinion the answer to this question is “No”.  The complainant has produced no direct evidence of race discrimination and he has not pointed to any circumstantial evidence which could permit us to draw the inference that race had “a causally operative effect” upon the impugned actions of the respondent (see Director General of Education v Breen [1982] 2 IR 93 at 95 per Street CJ).

24          No useful point is served by simply repeating the evidence given by the complainant.  In his written statement, and in his oral evidence, he expanded upon the 36 separate incidents of alleged race discrimination set out in his Points of Claim.  The incidents in question are those referred to in paragraphs 8, 11 – 40, 43 - 45, 49 and 51 of his Points of Claim.  We were left in no doubt that it was the complainant’s strongly held belief that he had been the victim of race discrimination but “the level of his belief went no further than a mere suspicion with any supporting material” (see Hill v University of New England (1991) EOC 92-291 at 77, 949). There was nothing in the complainant’s voluminous evidence which in any way went beyond mere suspicion on his behalf that anyone associated with the respondent had at any time discriminated against him on the ground of race.

25          The criticisms in the Whitmore Report of Mr Hutchison’s management style are not evidence of the fact that there has ever been any discrimination against the complainant on the ground of his race.  Mr Ball’s statement of opinion to Mr Whitmore, referred to in paragraph 20 of these reasons, is not evidence that there was any race discrimination; it is simply the opinion of one co-worker.  It is significant that Mr Ball was not called to give evidence for the complainant. We are surprised that  Mr Ball was not asked by Mr Whitmore to refer to any observations in support of his opinion that there was probably a racist element in Mr Hutchison’s abiding dislike for the complainant.  Mr Whitmore’s recommendation that Mr Hutchison and Mr Parkinson receive training about the value of cultural diversity is simply his opinion about appropriate management training; it is not evidence that the complainant has ever been the victim of race discrimination.

26          There is no evidence at all in relation to a crucial issue which the complainant must prove.  The complainant’s evidence, taken at its highest point, does not permit the conclusion that in relation to any of the 36 incidents referred to in the Points of Claim the respondent discriminated against the complainant on the ground of race.  Consequently, all of the nine separate complaints of race discrimination must be dismissed as they are lacking in substance.

C. The Victimisation Complaints

27 Mr Sivananthan’s complaints of victimisation, contrary to section 50 of the Act, were heard fully as Ms Anderson’s application for summary dismissal pursuant to section 111 related to the race discrimination complaints only. Seven of Mr Sivananthan’s nine complaints to the President (see paragraphs 12 to 14 of these reasons) contained allegations of victimisation.  There is nothing in the Act, or the case law, which prevents victimisation complaints from proceeding when complaints of unlawful discrimination under the Act have been dismissed. 

28          The Points of Claim contained reference to 24 separate incidents of victimisation. The first incident of victimisation was alleged to have taken place on 21 October 1996 and the last in November 1998. These incidents were referred to in paragraphs 27-31, 34-36, 38, 39-43 and 45-53 of the Point of Claim. As we indicated earlier, when discussing the race discrimination complaints, the complainant was the only witness in support of his case. He also tendered a large number of documents.

29          The incidents in question in the victimisation complaints took place over a two year period in the Office of the Solicitor of the NSW Police Service.  The complainant had commenced work in that office in 1989 as a Legal Officer Grade 4.   When he retired from the NSW Police Service during the course of these proceedings he was still a Grade 4 Legal Officer.   During the period of time under consideration Mr Frank Hutchison was the NSW Police Service Solicitor.   We were told by Ms Anderson on the last day of hearing that Mr Hutchison had died during the course of the proceedings.   Mr Hutchison’s deputy was Mr Vito Tetto, who was a Grade 6 Legal Officer.  There were two team leaders within the office: Mr Peter Fairfield and Mr Howard Bell.   Both Mr Fairfield and Mr Bell were Grade 5 Legal Officers.  Both men headed teams of lawyers who performed a broad range of legal services for the respondent.

30          Ten people were called to give evidence for the respondent. These witnesses were Mr Frank Hutchison, who was Mr Sivananthan’s ultimate supervisor at all material times, four solicitors employed in the Office of the NSW Police Service Solicitor, three members of the Office’s administrative staff, Mr Phillip Bradley, who is the NSW Crime Commissioner and Mr Greg Willis, a barrister, who works on retainer with the NSW Police Service. For the sake of completion we should note that the respondent also filed a written statement from Mr Raymond Parkinson, the office manager with the NSW Police Service Solicitor’s office. This statement was not accepted into evidence. A number of the complainant’s allegations related to Mr Parkinson. It was not in dispute that Mr Parkinson has been on sick leave for a considerable period of time. The Tribunal heard evidence from his psychiatrist, Dr Whetton, which indicated that Mr Parkinson was not in a fit state to give evidence and that his mental condition was unlikely to change in the foreseeable future. Ms Anderson sought an indefinite adjournment of the proceedings in order to permit her to call Mr Parkinson to give evidence at some later date. This application was opposed by the complainant and rejected by the Tribunal. Ms Anderson then sought to tender Mr Parkinson’s statement, even though he was not available for cross-examination. This application was also opposed by the complainant and rejected by the Tribunal.

31          No useful purpose is served by laboriously describing the evidence given by all of the witnesses. As the allegations made by the complainant concerning victimisation were wide ranging – he referred to 24 separate incidents involving a number of people over a two year period – it was necessary for the respondent to present a substantial body of evidence in order to respond to those allegations. Appropriate references will be made to the evidence when we set our findings in relation to the 24 incidents of alleged victimisation. There were, in fact, very few disputes about the external circumstances of all of the incidents in question in this case. The core of the factual dispute between the parties was the reason or reasons why particular employees of the respondent did things which impacted upon the complainant, either directly or indirectly.

32          At the conclusion of the evidence the parties filed written submissions. They were given an opportunity to speak to their own submissions and to respond to the opposing party’s submissions. The complainant’s written submissions extended to 203 pages. Much of the content of these submissions was directed to “background” matters, or to incidents which did not form part of the victimisation complaints. The complainant requested that his claim of victimisation be considered against the following background:

The complainant had completed twenty-seven years in the legal profession in 1992, the latter seven years in Sydney, Australia. His devotion to duty, personal character and professional expertise had been commended by all his referees who were closely associated with him in his career from organisations in New South Wales, including the Police Service.

It is the complainant’s submission that the Tribunal consider his claim of victimisation against the tormented background from 1992 to 1996, during which time he was driven to despair and depression and irreparable and irremediable harm done to his career progress.

This continued with the relentless pursuit of vengeance from the time the complaints were made to the Public Service Association, Anti-Discrimination Board and the Commissioner of Police in 1996.

33          As these paragraphs indicate, the complainant employed forceful language to describe his plight. He used equally forceful language to express his conclusions about the treatment he had received in the office of the NSW Police Service Solicitor and to describe his beliefs about the motives of the people who were the subject of his complaints:

It is submitted that it was entrenched in the minds of Mr F Hutchison, Mr V Tetto and Mr R Parkinson to intimidate, terrorise and undermine the integrity, honesty and professional standing of the Complainant in a despicable manner and treat the Complainant, with utter contempt. In spite of the complaints the management team acted with impunity. The management team made ruthless decisions to victimise and harass the Complainant, their actions were unjust, oppressive, based wholly on improper motives due to the complaints. They were masters at disguising their actions of harassment and victimisation. The management team, in their statements filed  to the Tribunal, tried to defame the Complainant to the extreme, with a view to forcing him to withdraw the complaints.

It was the Complainant’s intention to work for several more years in his chosen profession, which he had mastered with qualifications, training and experience, over several years. He had worked diligently to earn the respect of all his colleagues and seniors. However, after the immoral, unprincipled way he was treated, in violation of all policies and guidelines, for the sake of his sanity and physical wellbeing, and in consultation with his family, he decided to resign. He leaves the Police Service broken hearted after the public humiliation.

For his loyalty and acting at all times in the interests of the Police Service for almost twelve years, he did not deserve to end his career under such excruciating circumstances.

Collusion of management team and others to defame and victimise the Complainant.

The Complainant, in his long years of work (34 years) in the legal profession and in related organisations, has never come across such an irresponsible and unsuitable group of people appointed to such senior and responsible positions, especially when dealing with millions of dollars of public funds.

Personal vendetta seemed to override all other responsibilities with substandard performance by the management team which was criticised by the Police Royal Commission and the Whitmore enquiry.

The focus seemed to be on victimising the Complainant and never on the bigger issues such as appropriate training and implementing well established Public Service rules and guidelines for problem resolution and promotions, towards achieving a better outcome for the Legal Services section.

34 Whilst the complainant, in his written submissions, made express reference to section 50 of the Act and to the case of Shaikh v Commissioner, NSW Fire Brigade (1996) EOC 92-808, in which the former Equal Opportunity Tribunal discussed the four elements of a section 50 complaint, he did not address each element of a victimisation complaint in relation to the 24 separate incidents which he had identified. Instead, the complainant made reference to some of the evidence in relation to each incident and then commented upon the motives of those people involved in the incident without pointing to evidence which would permit the Tribunal to reach the conclusions which he (the complainant) had reached about the motives of the people involved in the incident and without indicating why the Tribunal should find that the incident fell within section 50.

35          An example will illustrate these points. In paragraph 35 of his Points of Claim and paragraph 66 of his statement the complainant referred to an incident which occurred on 30 July 1997 concerning reimbursement to him for a taxi fare which he had paid to travel from his office to the Compensation Court. This incident, which involved a claim for reimbursement for $4.75, was the subject of a considerable amount of evidence from a number of witnesses. The complainant’s allegations were primarily directed to Mr Parkinson who, he alleged, improperly questioned the claim for reimbursement and deliberately delayed payment. In his written submissions the complainant described the incident as one “of great significance’ and he stated that it was “the ultimate incident in respect of harassment and victimisation the complainant was put through by Mr Parkinson”. Despite not challenging the evidence from Dr Whetton about Mr Parkinson’s capacity to give evidence, the complainant, in his written submissions, accused Mr Parkinson of avoiding cross-examination  and he then made the following submission, without pointing to any evidence which would permit the Tribunal to make the finding sought:

It is submitted with respect, that Mr R Parkinson, annoyed with the complaints to the Anti-Discrimination Board, the Commissioner of Police and to Mr P B Whitmore, deliberately wrote the memorandum dated 1.8.97, Exhibit 13, to Mr H Bell to query whether the amount claimed was $4.25 or $4.28. It is submitted that the Tribunal can take judicial notice of the fact that the taxi meters do not read $4.28. This again shows to what extent Mr R Parkinson was determined to harass and victimise the Complainant….

A taxi claim for $4.75, a paltry sum which was a drop in the ocean in a litigation matter involving millions of dollars was being deliberately and maliciously queried to make out that the Complainant was a petty thief.

36 The respondent submitted that there was no evidence to support any of the complainant’s claims of victimisation. Ms Anderson submitted that the complainant appears to have characterised every act done to him by the respondent which he did not like, since he lodged his initial complaint with the President on 16 July 1996, as an act of victimisation. She submitted that the complainant “must establish motive” in the sense that “the Complainant must prove that his colleagues and/or supervisors intentionally subjected him to a detriment for one or more of the reasons (ie. grounds) set out in section 50(1) of the Act”. In view of the fact that section 4A of the Act does not apply to victimisation complaints, but only to unlawful discrimination complaints, it was submitted that it was necessary for the complainant to prove that his complaints of race discrimination were “the substantial and operative factor” for any detriment he suffered at the hands of the respondent, rather than merely “an operative ground” as accepted by the Tribunal in Shaikh. Ms Anderson also submitted that any “detriment” about which the complainant  has complained “must be real not trivial and established objectively not subjectively”.

37          Ms Anderson stated that whilst “the evidence clearly indicates that, for all relevant purposes the Complainant’s colleagues and/or superiors treated him the same way after 16 July 1996 as they had treated him before that date …. two things were done after 16 July 1996 that had not been done before that date”. These were, first, the decision that the complainant could not “act up” as a grade 5 legal officer under the office’s rotational system and, secondly, the decision made by Mr Hutchison in February 1998 to move the complainant from his office on the 13th floor of Police Headquarters to an office on the 12th floor of the same building. Ms Anderson submitted that both of these actions were lawful and reasonable in view of the difficult relationships between various staff members in the Office of the Solicitor for the NSW Police Service.

38 As the NSW Law Reform Commission stated in its recent report about the Act, “the principal concern of s 50(1) is to ensure that persons who believe they have been the subject of discrimination are not deterred from pursing their rights under the ADA for fear of reprisals or further disadvantage” (Review of the Anti-Discrimination Act 1977, Report No 92, NSW Law Reform Commission, Sydney, 1999 at page 554).

39 Section 50 of the Act states:

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c)alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d)otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

40          This section was examined at some length by the former Equal Opportunity Tribunal in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at page 78, 986. The Tribunal stated:

The elements of victimisation can be described as a four-fold requirement. Firstly, the respondent must have caused the complainant to undergo or experience something. Secondly, the complainant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the complainant did one of the things referred to in sub-paragraphs (a) to (d). Under sub-section (2) the respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith. That defence is not relied on in this case. It has been suggested that there is an additional requirement of intention implicit in the word “subject” (see Bhattacharya v Department of Public Works (1984) EOC 92-117; Bogie v The University of Western Sydney (1990) EOC 92-313). However, in the light of later decisions (particularly Australian Iron Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 176 and Waters v Public Transport Corporation(1991) 173 CLR 349, at EOC pp 78,674 and 78,687; CLR pp 359 and 382) in our view this requirement means no more than that the conduct of the respondent was done on one of the grounds referred to and adds nothing of substance to the other stated requirements. The phrase “in any circumstances” which does not appear in Federal legislation in our view emphasises that the word “detriment” is to be given a broad interpretation. As to the meaning of the word “detriment” we do not consider it helpful to refer to the relative concept more applicable to discrimination provisions namely “to suffer a material difference in treatment” but prefer the Macquarie Dictionary meaning of “loss damage or injury” (cf Bodart-Bailey v Australian National University, (1995) EOC 92-744 at p 78,553. The phrase “on the ground” has been considered as discussed earlier in the context of the related discrimination provisions in the Act in terms applicable to the phrase in Section 50 (1). We note that Section 4A does not impact on the victimisation provision, so that the cases dealing with the phrase before this amendment which took effect in 1994 still have relevance to Section 50(1). We adopt the phrase “an operative ground” referred to by Clarke J A in Waterhouse v Bell (1991) EOC 92-376; (1991) 25 NSWLR 99, at EOC p 78.587; NSWLR p 105 as a practical test for the application of this element of the statutory provision. We keep in mind the exhortation of the judge to the Tribunal in that case to focus on the search for “the real ground”, not forgetting the possibility that there may be more than one ground in the sense used in the Section for an action or decision under scrutiny (Waterhouse v Bell, above, at EOC p 78,588; NSWLR p 106). Accordingly, for present purposes victimisation occurs when the respondent causes the complainant to undergo loss damage or injury based on the fact that the complainant has made a complaint or allegation within the meaning of Section 50(1).

41          We have set out Ms Anderson’s challenges to the correctness of these statements in Shaikh at paragraph 35 of these reasons. We accept her suggested elucidation of the second element of a victimisation complaint, the detriment suffered by the complainant. The detriment suffered by the complainant must be real and not trivial. Whether something constitutes a detriment must be determined objectively and not subjectively. In other words, it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment.

42          Ms Anderson’s argument concerning the need for the complainant to prove motive or intention may be dealt with by reference to the Appeal Panel decision in Commissioner of Corrective Services v Aldridge [2000] NSW ADTAP 5, at paragraphs 47 to 53, and to the Tribunal’s decision in Adams v University of Western Sydney [2001] NSWADT 19, at paragraphs 46-55, where many of the relevant higher court authorities are discussed. In order to prove that the complainant was subjected to a detriment on the ground of his complaints of race discrimination “a relationship of cause and effect” (this is the language used by Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 118 ALR 80 at 103) must be established between those complaints of race discrimination and the actions of the respondent which result in a detriment to the complainant. Thus, it is the reasons or grounds for the respondent’s actions, as opposed to his intention or motive, which are crucial. It is axiomatic that we must be satisfied that the respondent, or his employees, knew of the complainant’s complaints of race discrimination if we are to find that the respondent subjected the complainant to any detriment on the ground that he had complained of race discrimination.

43          Whether the complaints of race discrimination were “an operative ground” for the actions which constitute a detriment (as stated by the Tribunal in Shaik), or whether they must be “the substantial and operative factor” (as Ms Anderson contended) is an issue which was identified, without resolution, by the NSW Law Reform Commission in its Review at page 556. Kirby J considered this broad issue of causation in IW v City of Perth (1997) 191 CLR 1 at 62-64 when discussing the terms of the West Australian Equal Opportunity Act 1984. We adopt his language:  it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of race discrimination, “had a real causative effect in the sense that but for its presence the act complained of would not have occurred” (at page 64).

44 Consequently, in the context of this case, the question which the Tribunal must determine in respect of each alleged incident of victimisation is whether the respondent, or his employees or agents, subjected the complainant to any detriment on the ground that the complainant had done any of the things referred to in sub-paragraphs (a), (b), (c) and (d) of section 50(1) of the Act. The fourth element of a section 50 complaint, the fact that the complainant had done one of the things referred to in sub-paragraphs (a), (b), (c) or (d) of sub-section (1), was not in dispute in this case. The complainant chose to run his case on the basis that the relevant action was his initial complaint to the President, which was made on 16 July 1996. The complainant alleged that subsequent to that date there were 24 incidents of victimisation. We propose to consider each incident in turn.

Incident No 1

45          This incident is referred to in paragraph 27 of the Points of Claim and in paragraph 58 of the complainant’s statement. It concerns an allegation that the complainant, as a result of intervention by Mr Parkinson, was  initially refused permission to keep a pool car at home over the weekend of 26 and 27 October 1996. Following discussion with his (the complainant’s) supervisor, Mr Bell, permission was granted. Whether this conduct constituted a detriment is highly questionable. There is, however, no need to determine this issue for there is no evidence that the perpetrator of the alleged victimisation, Mr Parkinson, knew that the complainant had lodged a complaint of race discrimination and, even if Mr Parkinson knew about the complaint, that he acted on this ground. This incident does not amount to victimisation within the meaning of the Act.

Incident No 2

46          This incident is referred to in paragraph 28 of the Points of Claim and in paragraph 59 of the complainant’s statement. It concerns an allegation that Mr Hutchison, Mr Tetto and Mr Parkinson failed to approve the complainant’s recommendation concerning the amount of witness expenses to be paid to retired police inspectors who travelled from Queanbeyan to give evidence in a Compensation Court hearing in Sydney. The evidence reveals that Mr Hutchison, Mr Tetto and Mr Parkinson did not subject the complainant to anything. He suffered no detriment as we have defined that term in paragraph 41. A decision was made by the complainant’s supervisors and Mr Parkinson about the expenditure of public monies. Whether that decision was correct is not a matter for us to determine. There is no evidence that the perpetrators of the alleged victimisation refused to approve the complainant’s recommendation concerning the payment of witness expenses on the ground that he had lodged a complaint of race discrimination. This incident does not constitute victimisation within the meaning of the Act.

Incident No 3

47          This incident is referred to in paragraph 29 of the Points of Claim and in paragraph 60 of the complainant’s statement. The complainant alleges that in late 1996 he was directed by Mr Tetto, at the instigation of Mr Parkinson, to provide a medical certificate on every occasion that he took sick leave.   We accept that this direction was given by Mr Tetto and that it constituted a detriment to the complainant. There is no evidence, however, that Mr Tetto gave this direction to the complainant on the ground that he had lodged a complaint of race discrimination. The direction appears to have been given in accordance with the respondent’s sick leave policy in response to a substantial number of absences on sick leave. This incident was not victimisation within the meaning of the Act.

48          The complainant’s submissions in relation to this incident reveal an unsupportable approach  to issues of causation. The evidence demonstrates that the complainant was clearly unwell at the time Mr Tetto directed him to provide medical certificates.   He was regularly consulting his general practitioner for high blood pressure and his psychiatrist for depression.   It is highly likely, based on the medical evidence before us, that these conditions were related to his concerns about unfair treatment at work. The complainant saw a causal connection, however, between the number of visits which he made to his doctors and the degree of culpability of those people who he saw as his tormentors in the work place. He stated in his written submissions:

The frequency with which the Complainant had seen two Consultant Specialists demonstrates the intensity with which the Complainant was harassed and victimised at the workplace.

We fail to see the connection pressed by the complainant. Any one of a number of factors may have caused him to frequently seek medical assistance at this time.

49          The incident also illustrates the intensity with which the complainant has responded to those people who he sees as his tormentors. In this written submissions in relation to this incident he stated:

Both (sic) Mr F Hutchison, Mr V Tetto and Mr R Parkinson were relentless in their harassment of the Complainant due to the complaints made by him. They disliked the Complainant intensely and had absolutely no interest in the welfare and health of the Complainant. They were only obsessed in making the Complainant a physical and nervous wreck.

Mr F Hutchison, Mr R Parkinson and Mr V Tetto ethically, morally and professionally not only failed in their duty as managers to give support to the Complainant under the sick leave policy, but went on a campaign to harass and victimise the Complainant who was already seeking medical help from two specialists. Despite all the harassment and victimisation, the Complainant never abused the system by taking workers compensation sick leave which is now being exploited by Mr R Parkinson.

Incident No 4.

50          This incident is referred to in paragraph 30 of the Points of Claim and paragraph 61 of the complainant’s statement. The complainant alleged that in May 1997 when Mr Bell went on leave, Ms Sue Johnson, rather than the complainant, was appointed by Mr Hutchison to “act up” in Mr Bell’s Grade 5 Legal Officer  position.   We accept that this action occurred and that it constituted a detriment to the complainant. In his written submissions the complainant stated that “the appointment of Ms Sue Johnson as the Complainant’s supervisor was an act of oppression carried out in revenge.” There is no evidence, however, that this decision was taken on the ground that the complainant had lodged a complaint of race discrimination.

51          We accept the evidence of Mr Bell, who was the complainant’s team leader from December 1995 until August  1997 and then again from February 1998 until November 1999. Mr Bell gave evidence that the complainant lacked the general technical competence and managerial ability to be a team leader and that he and others had formed this view, and acted upon it, well prior to this event. This incident does not constitute victimisation within the meaning of the Act.

Incident No 5

52          This incident is referred to in paragraph 31 of the Points of Claim and in paragraph 62 of the complainant’s statement. It is related to the previous incident. For a two week period in May 1997 Mr Fairfield, who like Mr Bell was a Legal Officer grade 5, also went on leave. Ms Johnson was appointed to “act up” in Mr Bell’s position (this is Incident No 4). Ms Erin Glover and Ms Angela Friedrich were appointed to “act up” in Mr Fairfield’s position. The complainant has alleged that the failure to permit him to “act up” in Mr Fairfield’s position was an act of victimisation.

53          This action constituted a detriment to the complainant. There is no evidence that this decision was taken on the ground that the complainant had lodged a complaint of race discrimination. We refer to our summary of Mr Bell’s evidence in paragraph 51. This incident does not constitute victimisation within the meaning of the Act.

Incident No 6

54 This incident is referred to in paragraph 34 of the Points of Claim and in paragraph 65 of the complainant’s statement. It concerns an allegation that in October 1996 Mr Parkinson and Mr Paul Shea queried the complainant’s expenses claim for a trip in a NSW Police Service vehicle to a court case in Queanbeyan. This action was not a detriment within the meaning of section 50. Even if it was, there is no evidence that this step was taken on the ground that the complainant had lodged a complaint of race discrimination. This incident does not constitute victimisation within the meaning of the Act.

Incident No 7

55          This incident is referred to in paragraph 35 of the Points of Claim and paragraph 66 of the complainant’s statement. It is the incident which occurred on 30 July 1997 and which is referred to in paragraph 35 of these reasons, concerning reimbursement to the complainant for a taxi fare which he had paid to travel from Police Headquarters to the Compensation Court. The amount claimed was $4.75. It is the complainant’s allegation that he was wrongly questioned about this claim and that, as a consequence, payment to him of the sum in question was delayed.

56 The actions complained of in relation to this incident were not a detriment within the meaning of section 50. The evidence reveals that the complainant was not wrongly questioned; he was asked to clarify the sum which he was claiming when the amount written on the receipt in handwriting was unclear. A number of witnesses stated that it was quite common for the office manager, Mr Parkinson, to closely scrutinise claims for reimbursement of cash. The complainant was paid within days of lodging the claim. Given the circumstances of the claim, the short delay in payment could not be said to constitute material loss, damage or injury to the complainant.

57          The evidence of both Mr Fairfield and Mr Bell, which we accept, indicates that this incident was nothing more than a fairly routine request for additional details in relation to a claim for reimbursement for a minor sum of money. There is no evidence that Mr Parkinson, or any of the other people involved in this incident, took any action on the ground that the complainant had lodged a complaint of race discrimination. This incident does not constitute victimisation within the meaning of the Act.

Incident No 8

58          This incident is referred to in paragraph 36 of the Points of Claim and paragraph 67 of the complainant’s statement. It occurred on Friday 1 August 1997, two days after Incident No 7 concerning reimbursement for the taxi fare. The complainant had been given permission to take a NSW Police Service car home over the weekend in order to attend a court hearing in Parramatta on Monday 4 August 1997. On the afternoon of 1 August 1997 the complainant informed his supervisor, Mr Fairfield, that he was feeling unwell and wished to leave work early. It is not in dispute that before he was permitted to leave work early with the car Mr Hutchison required the complainant to give an undertaking that he would not hold the NSW Police Service liable in the event that he had an accident on the way home. It was this action which the complainant alleged to be victimisation.

59          Mr Fairfield provided a detailed account of this incident. We accept his evidence. It is questionable whether Mr Hutchison’s actions were a detriment to the complainant. There is no need, however, to determine this question for there is no evidence that Mr Hutchison took any action on the ground that the complainant had lodged a complaint of race discrimination. This incident does not constitute victimisation within the meaning of the Act.

Incident No 9

60          This incident is referred to in paragraph 38 of the Points of Claim and paragraph 68A of the complainant’s statement. The key facts were not in dispute. In August 1997 Mr Greg Willis, a barrister on retainer to the NSW Police Service, returned a brief to Mr Fairfield. The brief concerned a workers’ compensation matter in which Ms Barry had originally instructed Mr Willis to appear. Following Ms Barry’s departure from the Officer of the  Solicitor for the NSW Police Service the file was allocated to the complainant. On 12 August 1997 Mr Willis wrote a memorandum to Mr Fairfield in which he stated:

I am aware of Mr Sivananthan’s complaint to the Anti-Discrimination Board and the investigation of that complaint which is currently taking place within your office. Of course, I have no knowledge of the details of the complaint, in particular, whether it directly concerns me. It seems to me to be highly likely that it will result in a hearing before the EOT and I am at least a potential witness.

In the circumstances, I feel that it would not be prudent for me to be instructed by Mr Sivananthan at this time. It would be best if he was able to instruct counsel of his choice, who would be completely removed from the issues.

I therefore return the brief of evidence herewith and apologise for any inconvenience.

61 In his written submission the complainant alleged that Mr Willis returned the brief and made the statements in this memorandum in order “to intimidate, put fear into the Complainant and isolate him”. As we said in paragraph 41 of these reasons, a detriment within the meaning of section 50 is loss, damage or injury suffered by the complainant which is real and not trivial and which a reasonable person would characterise as a detriment. Actions designed to isolate a person within an office, and which do in fact isolate that person, could constitute a detriment for the purposes of a victimisation complaint.

62          In this case there is no evidence that the return of the brief by Mr Willis did in fact isolate the complainant.  The complainant suffered no detriment as a result of Mr Willis’ action in returning the brief. Consequently, it is unnecessary for us to determine whether the respondent could be held liable for any actions performed by Mr Willis. No separate complaint of victimisation against Mr Willis was made to the President of the Board. This incident does not constitute victimisation within the meaning of the Act.

Incident No 10

63          This incident is referred to in paragraph 39 of the Points of Claim and paragraph 69 of the complainant’s statement. It is similar to Incidents 4 and 5 which are discussed in paragraphs 50-53 of these reasons. It was not in dispute that for one week in late September 1997 Mr Fairfield went on leave. Ms Johnson was appointed to “act up” in his grade 5 Legal Officer position. The complainant asserts that he should have been appointed to this temporary position. He has alleged that the failure to appoint him was an act of victimisation.

64          This action constituted a detriment to the complainant. There is no evidence, however, that this action was taken on the ground that the complainant had lodged a complaint of race discrimination. This incident does not constitute victimisation within the meaning of the Act.

Incident No 11

65          This incident is referred to in paragraph 40 of the Points of Claim and in paragraph 70 of the complainant’s statement. It concerns a meeting of Mr Fairfield’s team on 23 October 1997 and an earlier meeting between the complainant and Mr Fairfield on 21 October 1997. It was not in dispute that the complainant did not attend the team meeting because he had a court commitment and that the complainant and Mr Fairfield were the only people present at the meeting on 21 October 1997. The complainant gave the following evidence about these meetings:

On 21 October 1997, Mr P Fairfield met me in my room at 3.15 pm and informed me that he had been informed by Mr F Hutchinson and Mr V Tetto that I would not be allowed to act in higher duty position i.e., Senior Legal Officer Grade V, in future because of my complaints against the management to the Anti-Discrimination Board and the Commissioner of Police…..

At the team meeting held on 23 October, I was advised by those present at the meeting, that Mr P Fairfield informed to all the team members present at the meeting that I would not be allowed to act in future in higher duty positions because of my complaints against the management. I was further informed by team members present at the meeting that Mr Anthony Spajic had expressed surprise at the decision and further informed Mr P Fairfield that the said decision was illegal and unlawful.

66 If this description of events is correct, any decision not to permit the complainant to “act up” because he had lodged complaints with the Anti-Discrimination Board would be a contravention of section 50 of the Act for it would constitute subjecting the complainant to a detriment because he had lodged complaints of race discrimination. We must examine the other evidence before us which dealt with these two meetings. The complainant's evidence concerning the meeting held on 23 October 1997 is hearsay as he was not present at that meeting. In this jurisdiction, however, we are not bound by the rules of evidence (see section 73(2) of the Administrative Decisions Tribunal Act 1997).   Nevertheless we must carefully consider the weight which should be attributed to particular pieces of evidence.  It is significant, in our opinion, that the complainant did not call evidence from anyone who was actually at the meeting on 23 October 1997.

67          Mr Fairfield gave evidence in relation to both meetings. We found him to be a reliable witness who was at great pains to be both fair and accurate in his testimony. He has a propensity to keep file notes and his notes of both meetings, together with his notes of  earlier important meetings with Mr Hutchison and Mr Tetto, were in evidence.

68          Mr Fairfield’s evidence in relation to the meeting with the complainant on 21 October 1997 was as follows:

At 3.00 pm on 21 October 1997 I spoke with Mr Hutchison in respect to this matter. He confirmed that he had conferred with Mr Tiltman as to whether Mr Sivananthan could act in the Grade 5 position and that this was not possible given the management functions of the Grade 5 position and the necessity of liaising with Mr Tetto and himself. As I supervised Mr Sivananthan I believed that he should be informed of this. I therefore obtained permission from Mr Hutchison to tell him.

At 3.10 pm that day I attended Mr Sivananthan’s office and said words to him in or to the following effect:

I am going on leave soon for the birth of my child. When I’m away Team members will act up in my position. As a courtesy I want you to be aware that you are not one of the solicitors in the pool able to act up as those above me have decreed this.

Mr Sivananthan replied in words in or to the following effect:

Thank you. This will strengthen my discrimination claim.

69          Mr Fairfield’s file notes in relation to the meeting with the complainant on 21 October 1997 support his version of the conversation with the complainant. These file notes, together with our assessment of Mr Fairfield’s testimony, referred to in paragraph 66, lead us to prefer Mr Fairfield’s account of his conversation with the complainant on 21 October 1997. It was not in dispute that the complainant was informed during that conversation that he would not be permitted to “act up” during Mr Fairfield’s absence.  We accept that the reason which Mr Fairfield gave the complainant for this decision was that “those above me have decreed this”. This form of words is entirely consistent with Mr Fairfield’s evidence concerning his conversations with both Mr Hutchison and Mr Tetto earlier that day.   It is also a long way removed from the complainant’s version of events referred to in paragraph 64.

70          Mr Fairfield was questioned at considerable length about the reasons given to him by both Mr Hutchison and Mr Tetto for the complainant’s ineligibility to “act up”. His evidence about these discussions is consistent with the evidence of Mr Hutchison and Mr Tetto. Mr Fairfield had meetings with both Mr Hutchison and Mr Tetto on 21 October 1997. His file note of the meeting with Mr Tetto reads:

FH and Tiltman have discussed Siva acting up. FH decided Siva not to act up in management position at all as cannot manage if not talking to VT and FH

In this note “FH” is Mr Hutchison, “Siva” is the complainant, “VT” is Mr Tetto and “Tiltman” is Mr Tiltman, who was the Director, Employee Relations.

71          Mr Fairfield’s file note of his conversation with Mr Hutchison on 21 October 1997 reads:

Spoke to FH 3pm 21/7/97. Confirmed he had conferred with Tiltman. Given management functions of grade 5 and liaison with VT and FH not possible for Siva to act in grade 5.

Said OK to communicate this to Siva.

We accept that these file notes are accurate shorthand records of the conversations which Mr Fairfield had with Mr Tetto and Mr Hutchison on 21 October 1997. Both Mr Tetto and Mr Hutchison independently referred to communication difficulties as the reason why a decision had been reached that the complainant could not “act up” during Mr Fairfield’s absence. This was the reason for the decision which Mr Fairfield was asked to communicate to the complainant.

72          Mr Fairfield also gave evidence about the team meeting held on 23 October 1997. He stated:

I am aware that I called a Team Meeting on 23 October 1997. I am aware that the Complainant and Ms Brennan were unable to attend that meeting. At that meeting, I informed the members of the Team who were present as to who would act in my position during my period of leave. In this regard, I informed them that certain legal officers were not in the pool of officers from whom a selection could be made. Mr Spajic was not eligible as he had just returned from a lengthy secondment to the Royal Commission and a period of leave. Mr Doherty was precluded from acting by reason of his duties in the Legal Library. Ms Brennan was ineligible as she was a Legal Clerk. I also indicated that the Complainant was not in the pool because a decision had been made that Mr Hutchison and Mr Tetto would be unable to effectively communicate with him as a result of the complaints that he had made against them. I recall that Mr Spajic said:

“That decision will only serve Siva’s purpose in furthering a complaint of victimisation.”

I deny that Mr Spajic informed me that the decision was “illegal and unlawful”.[italics added]

73          Mr Fairfield was questioned extensively about the sentence in italics. He stated that the words used were his and not Mr Hutchison’s. They were Mr Fairfield’s “spin” (to use his language) on his conversation with Mr Hutchison concerning the reason why the complainant could not “act up”.  We conclude that Mr Hutchison told Mr Fairfield  that, in view of the communication difficulties which the complainant, Mr Hutchison and Mr Tetto had with each other, it would not be possible for the complainant to “act up” in a management position because he needed to be able to effectively communicate with both Mr Hutchison and Mr Tetto whilst in that position. We accept Mr Hutchison’s evidence that he gave careful thought to this decision and that he consulted with the Director of Employee Relations, Mr Tiltman, before determining that the complainant would not be permitted to act in Mr Fairfield’s position during his absence.

74          The evidence does not satisfy us that the complainant was denied the opportunity to “act up” because he had lodged complaints of race discrimination. This incident does not constitute victimisation within the meaning of the Act.

Incident No 12

75          This incident is referred to in paragraph 41 of the Points of Claim and in paragraph 71 of the complainant’s statement. It concerns an allegation that when the complainant returned to work in late January 1998, after a period of two months leave, all of his files had been removed and re-allocated to other officers. It is questionable whether such conduct could amount to a detriment. As a general rule employers are under no legal duty to provide work for their employees (see B Creighton and A Stewart, Labour Law: an Introduction, (3rd ed.) Federation Press. Sydney 2000 at page 239) but, as we said at paragraph 61 of these reasons, actions designed to isolate a person within an office and which actually do isolate that person, may constitute a detriment for the purposes of a victimisation complaint.

76          In relation to this incident we accept the detailed account given by Mr Fairfield (Annexure E to his statement, Exhibit M), who was the complainant’s supervisor at the time, and who was responsible for the removal of the files. This evidence indicates that the complaints of race discrimination were not a reason why the files were removed from the complainant’s office during his absence on leave and that there was no desire to isolate the complainant. This incident does not constitute victimisation within the meaning of the Act.

Incident No 13

77          This incident is referred to in paragraph 42 of the Points of Claim and paragraph 72 of the complainant’s statement. The external events were not in dispute; on 2 February 1998 the complainant was informed by Mr Hutchison that Mr Parkinson would be returning to work (from sick leave) the following day and that the complainant should not have any direct contact with him. Mr Hutchison confirmed that he gave the complainant this direction but added that “I also advised Mr Parkinson not to have any direct contact with the Complainant”.  He said that “this action was taken on the basis of occupational health and safety considerations…”

78          We accept Mr Hutchison’s evidence in relation to this matter. There was no detriment to the complainant.  We are not satisfied that the direction was given on the ground that the complainant had lodged a complaint of race discrimination. This incident does not constitute victimisation within the meaning of the Act.

Incident No 14

79          This incident is referred to in paragraph 43 of the Points of Claim and in paragraph 73 of the complainant’s statement. It concerns a meeting held on 3 February 1998 and a direction given to the complainant at the meeting by Mr Hutchison that he transfer from Mr Fairfield’s team to Mr Bell’s team. As part of the transfer the complainant was directed to move from his office on the 13th floor to an office on the 12th floor of Police Headquarters. The nature of his work was also changed as part of this transfer; his workers compensation work was reduced and he was given subpeona work. In his written submissions the complainant has alleged:

The decision by Mr F Hutchison to deprive the Complainant of the Workers Compensation work and transferring to level 12, was unreasonable, unjust, offensive based wholly on improper motives to victimise the Complainant because of the complaints to the Anti-Discrimination Board and the Commissioner of Police.

80          In his Points of Claim the complainant complains of both Mr Hutchison’s demeanor at the meeting and the decision which he announced. The complainant, Mr Hutchison, Mr Tetto, Mr Fairfield and Mr Bell were present at the meeting (together with Inspector W J Smith from the Internal Witness Protection Unit who did not give evidence) and gave evidence about it. We have already commented upon our assessment of Mr Fairfield’s evidence (see paragraph 67 of these reasons). We also found Mr Bell to be a reliable witness who sought to be fair and accurate in his testimony. By and large both men appeared to have been at great pains to remain neutral in the difficulties which engulfed the complainant, Mr Hutchison, Mr Parkinson and Mr Tetto for many years.  We believe that we can look to the evidence of Mr Fairfield and Mr Bell about the events of 3 February 1998 with confidence as to its accuracy.

81          Both Mr Bell and Mr Fairfield denied that Mr Hutchison was intimidatory at the meeting. Mr Fairfield had made a file note of the meeting. Mr Bell stated that he formulated the idea that the complainant transfer to his team on the 12th floor of Police Headquarters as, from an occupational health and safety aspect, it was not sensible to have the complainant, Mr Hutchison and Mr Parkinson in close physical proximity to each other. After raising this suggestion with “more senior members of the police service outside of legal services”, he took the idea to Mr Hutchison.  The process  resulted in “a collaborative decision that was made between myself and Mr Hutchison”.  This decision was not taken lightly. We accept that Mr Hutchison conferred with Mr Mooney and Mr Tiltman, the Director of Employee Relations, before acting.

82 In the circumstances we do not believe that either the nature of the meeting held on 3 February 1998, or the decision communicated at it, constituted a detriment within the meaning of section 50. We are not persuaded that Mr Hutchison was intimidatory and nor are we satisfied that the decision to move the complainant to Mr Bell’s team and to an office on the 12th floor was a detriment. We are not satisfied that any steps were taken on the ground that the complainant had lodged complaints of race discrimination. This incident does not constitute victimisation within the meaning of the Act.

83          Part of the cross-examination of Mr Bell, by the complainant, in relation to this incident  illustrates  ‘cultural’ misunderstandings which we believe may have contributed, in part, to the longstanding difficulties between the complainant and some of his colleagues in the Office of the Solicitor of the NSW Police Service. The following exchanges appear in the transcript of 16 May 2000.

SIVANANTHAN: I am putting to you, Mr Bell, that this decision to move me from level 13 to level 12 was an act of victimisation by Mr Hutchison and his management team.

THE WITNESS: I disagree. It was an act that was done for your benefit as much as anybody else’s. You went from a small internal room to a window room with a beautiful harbour view and the pleasure of working beside me.

SIVANANTHAN: How do you know that it was a pleasure for me to work with you? How did you know that?

REES: I think we will take that as a light-hearted comment late in the afternoon, Mr Sivananthan.

84          As the remark from the judicial member of the Tribunal indicates, it was possible, relying upon his demeanor, the inflexion of his voice and the slightly “inappropriate” nature of the response, to take the last part of Mr Bell’s answer to a serious question from the complainant as being a light hearted comment designed to bring about some relief in a tense setting. It is quite understandable that the complainant did not perceive Mr Bell’s response in the same way.   Experience appears to indicate that humour, like so many other forms of communication, is often culturally encoded and isolated.  Whilst nothing turns on these observations, in a legal sense, we have included them in the hope that, in some small way, they may assist the many people involved in this case when they reflect upon the reasons why the daily events in a relatively small legal office became the subject of protracted litigation.

Incidents Nos 15 and 16

85          These incidents are referred to in paragraph 44 and 45 of the Points of Claim and in paragraph 74 and 75 of the complainant’s statement.  For the reasons which follow they are best dealt with together.  The complainant has alleged that in March 1998, when his team leader, Mr Bell, went on leave, the complainant was not appointed by Mr Hutchison to “act up” in his position.   He has also alleged that in March 1998, when Mr Tetto left the Office of the Solicitor of the NSW Police Service, a decision was taken that Mr Bell and Mr Fairfield would fill Mr Tetto’s Grade 6 legal officer position on rotation, but that no one would fill their Grade 5 positions when either one of them was “acting up” in the Grade 6 position. These actions are not disputed; it is the reasons for the decisions which are in dispute.

86          The complainant, in his written submissions, described the decision to have no one “acting up” in the Grade 5 positions “as a deliberate manipulative act by Mr F Hutchison to victimise the complainant”. Mr Hutchison stated that, “since February 1998 it has not been the practice to have Legal Officers act in the position of Senior Legal Officer when the occupants of those positions are absent”. We accept Mr Fairfield’s evidence in relation to this matter. He stated that:

This arrangement was decided upon as a temporary measure at a meeting attended by Mr Hutchison, Mr Tetto, Mr Bell and myself on 18 February 1998. At that meeting it was decided that no one was available at that time to act in the Grade 5 position because they were either not qualified, unavailable due to workload or not willing to do the job.

87          We accept that the documentary evidence demonstrates that on one occasion after 18 February 1998 Ms Johnson was permitted to “act up” as a Grade 5 Legal Officer. We also accept that this appears to have happened inadvertently despite the decision taken on 18 February 1998. In the circumstances it is questionable whether the complainant has sustained a detriment for no-one, other than the one occasion when Ms Johnson acted up, was permitted to act in the position of Grade 5 Legal Officer. There is no evidence, however, to suggest that the decision under examination was taken on the ground that the complainant had lodged complaints of race discrimination. These incidents do not constitute victimisation.

Incident No 17

88          This incident is referred to in paragraph 46 of the Points of Claim and in paragraph 76 of the complainant’s statement. It is the complainant’s allegation that he was victimised by a combination of circumstances involving an advertisement placed on 18 March 1998 to fill the Grade 6 Legal Officer position left vacant by Mr Tetto’s resignation and Mr Fairfield’s advice to the complainant on 21 October 1997 that he would not be permitted to “act up” in a Grade 5 Legal Officer position during Mr Fairfield’s absence. The complainant did not apply for the vacant Grade 6 Legal Officer position.   No appointment was made. In his written submission the complainant states that “the position was not filled to victimise the Complainant.”

89 One of the elements of section 50 is that the respondent “subject” the complainant to something which constitutes a detriment. As the Tribunal observed in Crewdson v President, Anti Discrimination Board of NSW [2000] NSWADT 60, “subject” is relevantly defined in the Macquarie Dictionary to mean “to cause to undergo or experience something”. In the context of section 50 of the Act the word must mean that a person is forced, required or perhaps coerced to experience something which is a detriment (see Crewdson at paragraph 51). The complainant was not subjected to anything when the respondent advertised for a Grade 6 Legal Officer and the complainant chose not to apply. The complainant did not sustain any detriment by not applying for an advertised position. This incident does not amount to victimisation within the meaning of the Act.

Incident No 18

90          This incident is referred to in paragraph 47 of the Points of Claim and in paragraph 77 of the complainant’s statement. The incident concerns an allegation that Mr Hutchison informed Chief Inspector Gordon Lever (who worked in the Office of the Solicitor of the NSW Police Service) that Mr Phillip Bradley (the NSW Crime Commissioner) was planning to make a complaint about unsatisfactory work performance by the complainant to the Minister of Police and to the Commissioner of Police. The complainant  alleges that Mr Hutchison committed an act of victimisation. In his written submissions he stated:

It is submitted, with respect, that this incident caused sleepless nights, nightmares and indescribable pain of mind to the Complainant because of the false allegation of Mr F Hutchison and the fear that he had to face a disciplinary action, possibly dismissal etc… It would be impossible for anybody else to comprehend the anguish and torment the Complainant underwent over several days.

This despicable action by Mr F Hutchison illustrates the extreme hatred he had for the Complainant which even extended to falsely implicating a top professional officer to achieve his end.

He was using means which could be considered dishonourable and vicious to cause as much harm as possible to the Complainant.

91          Presumably, it is the complainant’s contention that the detriment to which he was subjected by this incident was the anguish and distress which resulted from the fear that Mr Bradley would lodge a complaint about his work performance when, in fact,  Mr Bradley had no such intention. This argument is not articulated in any of the complainant’s relevant documents but it seems sensible to proceed on the basis that this is how this particular incident of victimisation is framed.

92          The allegation turns, in large part, on what Mr Hutchison said to Chief Inspector Lever and on what Chief Inspector Lever said to the complainant. Chief Inspector Lever was not called to give evidence by the complainant. The complainant’s evidence concerning the crucial conversation between Chief Inspector Lever and Mr Hutchison is hearsay.  Whilst we are not bound by the rules of evidence, they can assist in determining what weight should be given to particular items of evidence. Both Mr Hutchison and Mr Bradley were called to give evidence for the respondent. In the absence of excessive inconsistency, or other factors which challenge the veracity of their evidence, we should accept their evidence concerning their conversation with each other, and Mr Hutchison’s account of his conversation with Chief Inspector Lever, rather than the complainant’s second hand account of what transpired in these conversations.

93          We find that the following events occurred. On 22 May 1998 Mr Bradley and Mr Hutchison had a telephone conversation in which Mr Bradley expressed his dissatisfaction about the manner in which the complainant had handled a particular file. Mr Hutchison left that conversation with the impression that Mr Bradley intended to lodge a complaint with the Commissioner of Police. Whether Mr Bradley actually said that is not clear, but nor is it particularly  important. It is clear that Mr Bradley was very unhappy about the work of the complainant. Whether Mr Bradley had good cause to reach that conclusion is not relevant. Following this conversation Mr Hutchison informed Chief Inspector Lever about Mr Bradley’s concerns and asked him to convey those concerns to the complainant. Mr Hutchison said that he spoke to Chief Inspector Lever because he was the most senior person present at the time and because Chief Inspector Lever had earlier discussed the matter with Mr Bradley when Mr Hutchison was not available to take his call.

94          We accept that the complainant may have suffered extreme anguish as a result of what Chief Inspector Lever told him. There is no evidence, however, that Mr Hutchison took the action that he did on the ground that the complainant had lodged a complaint of race discrimination. The evidence discloses that it was reasonable for Mr Hutchison to have concluded that Mr Bradley was planning to lodge a complaint about the complainant (regardless of whether Mr Bradley actually used those words) and, in the circumstances which existed on 22 May 1998, it was reasonable for Mr Hutchison to have communicated Mr Bradley’s concerns to Chief Inspector Lever with the request that the complainant be notified. This incident does not constitute victimisation within the meaning of the Act.

Incident No 19

95          This incident is referred to in paragraph 48 of the Points of Claim and in paragraph 78 of the complainant’s statement. The complainant alleged that at some time in mid 1998 Mr Parkinson complained to the NSW Police Service that the complainant had wrongfully sought confidential information about his (Mr Parkinson’s) workers compensation claim from the Government Insurance Office and that the complainant wrongfully released this information to the Workers Compensation Section of the NSW Police Service. As a result of Mr Parkinson’s complaint an investigation was conducted and the complainant was interviewed by Mr Ken Peterson, Assistant Director of the Employee Relations Branch in the NSW Police Service.

96          It was not in dispute that Mr Parkinson lodged a complaint against the complainant and that the complainant was interviewed by Mr Ken Peterson. We accept the complainant’s evidence that he suffered anguish and distress as a result of these occurrences. That may constitute a detriment. There is no evidence, however, that either Mr Parkinson, or the people within the NSW Police Service who responded to his complaint, acted on the ground that the complainant had lodged complaints of racial discrimination. In view of the undisputed evidence that it was the complainant who initiated contact with the Government Insurance Office about Mr Parkinson’s workers compensation claim, it is not surprising that a complaint was lodged by Mr Parkinson. This incident does not constitute victimisation within the meaning of the Act.

Incident No 20

97          This incident is referred to in paragraph 49 of the Points of Claim and in paragraph 79 of the complainant’s statement. It is alleged that in mid 1998 Mr Parkinson encouraged clerical staff not to do work for the complainant and to make false complaints about their interactions with him.   In support of this allegation the complainant gave detailed evidence about a series of events involving a clerical officer, Ms Alicia Idziak, in June 1998. In essence it was alleged that Ms Idziak did not carry out her clerical duties for the complainant as effectively and efficiently as she should have, and that Mr Parkinson encouraged Ms Idziak to make a false complaint about the complainant being rude to her. There was no direct evidence to support the complainant’s allegations; we were asked to rely upon circumstantial evidence.

98          Ms Idziak gave evidence. We concluded that she was a reliable witness who sought to be fair and accurate in her testimony. We accept that Ms Idziak performed her work for the complainant in early June 1998 in a manner which was not in any material way different to the manner in which she performed work for other legal officers and that she complained to Mr Parkinson on her own initiative because she reasonably believed that the complainant had been rude to her. Whether the complainant had in fact been rude to her is not a matter which we need to determine in order to deal with this incident.

99          Given those findings we do not believe that Ms Idziak, either alone or as Mr Parkinson’s agent, subjected the complainant to any detriment in relation to the work she performed for him. The complaint to Mr Parkinson about the complainant’s rudeness may constitute a detriment but there is no evidence to suggest that this action was taken on the ground that the complainant had lodged complaints of racial discrimination. As we stated in the previous paragraph, we are satisfied that Ms Idziak complained because she believed that the complainant had been rude to her. This incident does not constitute victimisation within the meaning of the Act.

Incident No 21

100        This incident is referred to in paragraph 50 of the Points of Claim and paragraph 80 of the complainant’s statement. The complainant has alleged that in late June 1998 when Mr Bell was on leave, Mr Hutchison appointed Acting Inspector Redfern, rather than the complainant, to be the Team Leader. In his written submissions the complainant stated that “this action of Mr F Hutchison and his management team was to humiliate and victimise the Complainant”.

101        We accept the evidence of both Mr Hutchison and Mr Bell that it was Mr Bell who made the decision that Acting Inspector Redfern was to be the team leader during Mr Bell’s evidence. We accept that this appointment did not involve Acting Inspector Redfern “acting up” as a Legal Officer Grade 5; he simply acted as team leader during Mr Bells’ absence. We have previously referred to the decision taken in February 1998 that no-one was to be permitted, in future, to “act up” in Legal Officer Grade 5 positions.  We concluded that this decision was not taken on the ground that the complainant had lodged complaints of race discrimination.

102        Whilst the decision by Mr Bell to appoint Acting Inspector Redfern to the acting position of Team Leader for a two week period in June/July 1998 may have constituted a detriment to the complainant, there is no evidence that the decision was taken on the ground that the complainant had lodged complaints of race discrimination. This incident does not constitute victimisation within the meaning of the Act.

Incident No 22

103        This incident is referred to in paragraph 51 of the Points of Claim and in paragraph 81 of the complainant’s statement. It is not in dispute that in February 1998 when Mr Tetto left the Office of the Solicitor of the NSW Police Service a farewell morning tea was organised. Mr Hutchison’s secretary, Ms Denise Bragg, played a role in organising this event.  She asked staff members to make a financial contribution to a gift for Mr Tetto and she invited people to attend the morning tea held in a conference room on the 12th floor of Police Headquarters. Ms Bragg did not invite the complainant to contribute to the gift or to attend the morning tea.

104        The complainant has alleged that Ms Bragg acted “deliberately, to isolate and victimise the Complainant” and that “the actions of Ms Denise Bragg amount to treating the Complainant as an outcast”. We accept Ms Bragg’s evidence. She stated that she alone made the decision not to ask the complainant to contribute to the gift or to attend the morning tea. Ms Bragg gave reasons for her actions during cross-examination.

APPLICANT: Why did you think that I will [not] like to contribute money for the present to Mr Vito Tetto or I wouldn’t like to attend the tea?

THE WITNESS: Well, I didn’t think you would want to contribute because I had just generally heard that you made complaints about him so I didn’t think that you liked him and I just didn’t want to antagonise the situation. That’s the only reason.

APPLICANT: Just because I made a complaint what made you think I wouldn’t like to attend on the last day he was leaving the office and contribute a small amount for the present?

THE WITNESS: Well, I know I wouldn’t want to go to somebody’s farewell if I had a complaint against them and I was just thinking how I would feel. That’s the reason.

APPLICANT: But did you consider my feelings at the time?

THE WITNESS: I just thought you would feel the same as me.

105        As we said earlier (see paragraph 61 of these reasons), actions designed to isolate a person, and which do in fact isolate that person, may constitute a “detriment” for the purposes of section 50 of the Act. There is no evidence which convinces us that Ms Bragg intended to isolate the complainant. We accept her evidence that the morning tea was arranged hastily and that many people did not attend because they were unavailable. There is no evidence that the complainant was in fact isolated by this incident. As we are not satisfied that the complainant was subjected to a detriment as a result of this incident it does not constitute victimisation within the meaning of the Act. Given this conclusion, it is unnecessary to consider the issue of causation.

106        Whilst nothing turns on this observation, in a legal sense, what the cross-examination reproduced in  paragraph 104  may illustrate is the extent of the ‘cultural’ misunderstanding to which we referred  in paragraphs 83 and 84. Viewed from one perspective Ms Bragg’s actions, and the reasons for her actions, may seem to be prudent and sensible.  Viewed from another perspective, the complainant’s feelings of isolation may seem to be reasonable and understandable.

Incident No 23

107        This incident is referred to in paragraph 52 of the Points of Claim and paragraph 82 of the complainant’s statement. It is alleged that in November 1998, when Mr Bell went on leave, Mr Hutchison appointed Mr Anthony Spajic, rather than the complainant, to “act up” in Mr Bell’s Legal Officer Grade 5 position. In his written submissions the complainant  claimed that this action was taken “to humiliate and victimise the Complainant because of his complaints” and the “the decisions were ruthless and made with venom to hurt the Complainant”.

108        This incident, which occurred in November 1998, took place four months after the complainant’s last complaint of victimisation which was lodged with the President of the Anti-Discrimination Board on 30 July 1998. As this Tribunal’s only relevant grant of jurisdiction in this case is to inquire into the complaints referred to it by the President (see section 96 of the Act), it is difficult to ascertain how we have the jurisdiction to deal with an incident which must fall outside the temporal ambit of the complaints lodged with the President by the complainant and which were referred by the President to the Tribunal. As we heard no argument about this jurisdictional issue, however, we will consider this incident as if it were one into which we could validly inquire.

109        We have already made repeated reference to the decision taken on 18 February 1998 by Mr Hutchison, Mr Tetto, Mr Bell and Mr Fairfield that, henceforth, no one was to be permitted to “act up” in Legal Officer Grade 5 positions.  We have concluded that there is no evidence to suggest that this decision was  taken on the ground that the complainant had lodged complaints of race discrimination. We accept that Mr Spajic may have acted as a team leader in November 1998.  This step was taken without reference to the fact that the complainant had lodged complaints of race discrimination.  This incident does not constitute victimisation within the meaning of the Act.

Incident No 24

110        This incident is referred to in paragraph 53 of the Points of Claim and in paragraph 83 of the complainant’s statement. It concerns the Legal Officer Grade 5 position held by Mr Neil Ball. It was not in dispute that during 1997 Mr Ball was seconded to the Crown Solicitor’s Office and that his position within the Office of the Solicitor, NSW Police Service was neither advertised nor filled. The complainant has alleged that “the reason they did not want to appoint someone in 1997 to act in Mr N Ball’s position was that they did not want to appoint the Complainant to that position”.

111        There is no evidence to support the complainant’s allegation. We accept Mr Hutchison’s evidence that his office continued to pay Mr Ball’s salary, even though he was working at the Crown Solicitor’s Office, and that there were no funds available to fill Mr Ball’s position. In the circumstances we do not see how a failure to fill a position due to lack of funds could amount to subjecting the complainant to a detriment. There is no evidence to suggest that the decision not to fill the position was taken on the ground that the complainant had lodged complaints of race discrimination. This incident does not constitute victimisation within the meaning of the Act.

112 As the Tribunal has determined that all 24 incidents identified by the complainant do not constitute victimisation within the meaning of section 50 of the Act, the Tribunal must dismiss all of the complaints of victimisation.

113        No doubt the events which were the subject of these lengthy proceedings have caused a large number of people to experience a considerable amount of stress. From what we have heard it is difficult to resist Mr Fairfield’s observation that the workplace within which the events took place was “dysfunctional”. It has not been our task, however, to inquire into the management practices employed in the Office of the Solicitor, NSW Police Service, or to determine whether the people who worked in that office were fair and reasonable in their dealings with each other. Those are tasks for others; our function has been to determine whether there was sufficient evidence to support the complainant’s complaints of race discrimination and victimisation. In dismissing all of the complaints of race discrimination and  victimisation we have concluded that that evidence was not presented to the Tribunal.

Costs

114        Ms Anderson made an application for costs.  We heard no argument from her in support of that application and nor was there any response from the complainant to the application. In view of our findings it is appropriate to grant leave to the respondent to pursue the application for costs by applying to the Registrar in writing, within 28 days, for the matter to be re-listed for argument in relation to the costs application. If an application is made to the Registrar by the respondent within 28 days, the Registrar will re-list the matter on a date which is suitable to the parties and to the Tribunal. In the event that no application is made to the Registrar by the respondent within 28 days, the outcome will be that there is no order as to costs.

Orders

115        The orders of the Tribunal are as follows:

1. Complaints of discrimination on the ground of race dismissed.

2. Complaints of victimisation dismissed.

3. The respondent is granted leave to apply to the Registrar within 28 days to re-list this matter to pursue his application for costs.