Tarjali-Diab v NSW Department of Commerce (No 2)

[2005] NSWADT 288

CITATION:	Tarjali-Diab v NSW Department of Commerce (No 2) [2005] NSWADT 288 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Samir Tarjali-Diab RESPONDENT NSW Department of Commerce
FILE NUMBER:	041038
HEARING DATES:	11-13/10/2004; 16-17/03/2005
SUBMISSIONS CLOSED:	17/06/2005
DATE OF DECISION:	07/12/2005
BEFORE:	Grotte E - Judicial Member; Gill M - Non Judicial Member; Hayes E - Non Judicial Member
APPLICATION:	Race Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 Public Sector Employment and Management Act 2002 Public Sector Management Act 1988
CASES CITED:	Briginshaw v Bringinshaw (1938) 60 CLR 336 Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 Dee v Commissioner of Police & Anor (2003) NSWADT 217 Fricke v Corbett Research Pty Ltd (2004) NSWADT 128 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 Purvis v NSW (2003) 202 ALR 133 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Sivananthan v Commissioner of Police NSW Police Service [2001] NSWADT 44
REPRESENTATION:	APPLICANT In person RESPONDENT S Benson, barrister
ORDERS:	(i) The Complaints are dismissed; (ii) No Order as to Costs

121 Mr Diab asserted that the work experience agreement should be declared “void” as it could not be considered an industrial agreement and sought to defeat the provisions of the Public Sector Management Act 1988 and its successor the Public Sector Employment and Management Act 2002.

122 Mr Diab asserted that the work experience agreement is itself discriminatory. It is not clear on what basis this has been asserted but presumably it is on the basis that it is for a limited period with no guarantee of permanent employment once it expires whereas the Graduate Program has different terms and conditions.

123 It is the Tribunal’s view that Mr Diab’s assertion is misconceived. The work experience agreement exists pursuant to the MCDP which is akin to a special measure designed to assist a specific target group, being migrants with professional qualifications gained overseas, to gain some work experience in their chosen field. It is not managed by the Respondent but by ODEOPE and it is intended to be a benefit to that specific group. The Respondent’s Graduate Program on the other hand is altogether different and distinct as it is managed by the Respondent and targets a different group. A comparison is not appropriate as the two programs are materially different. The Respondent agreed to participate in the MCDP in good faith and it made available in good faith a position against which a temporary placement could be made.

124 The Tribunal rejects Mr Diab’s submission in this regard and finds that this complaint is not substantiated.

Complaints concerning Gary Thompson

125 Mr Diab asserted that in July 2002 Mr Thompson handed him a print-out of a fax and said to him “Its yours” and when asked by Mr Diab how he knew this, Mr Thompson responded with words to the effect of “Its foreign – I can’t read it”. Mr Diab also asserted on a separate occasion in September 2002 Mr Thompson called him “Problem Sam”.

126 Mr Thompson denied saying the words attributed to him, asserting that he had not seen a print-out of a fax which contained print in a foreign language and he denied that he called Mr Diab “Problem Sam”. He also denied that he considered Mr Diab to be a problem.

127 Brett Griffiths gave evidence to the Tribunal. The Tribunal found Mr Griffiths credible. His desk was close to the printer and his recollection was of only one incident in September 2002. However in oral evidence he agreed there may have been two incidents which he recalled as one. According to Mr Griffiths, Mr Thompson had been waiting near the printer for a document when he said “What’s all this? There is something foreign coming out of the printer is it yours Brett?” Mr Griffiths said that he suggested that it might be Mr Diab’s to which Mr Thompson replied “Ah its yours Sam. You are the problem.”

128 There is a conflict in the evidence. Given Mr Griffiths’ evidence the Tribunal accepts that there was a verbal exchange between Mr Diab and Mr Thompson. Although Mr Diab recollects two incidents. Mr Griffiths only recollects one incident although he conceded there may have been two. Mr Thompson does not recollect any incident.

129 The Tribunal accepts Mr Diab’s assertion that there were two incidents involving Mr Thompson during which was there were verbal exchanges in July 2002 and in September 2002 as it is more probable that he recalls how many exchanges he had with Mr Thompson. In regard to the first incident in July 2002 in which it was alleged that the word “foreign” was used by Mr Thompson, Mr Griffiths recalled the use of the word “foreign” but stated that it was used in the context of something coming out of the printer.

130 The Tribunal has considered all the evidence surrounding the working relationship between Mr Thompson and Mr Diab and the Tribunal is satisfied that they had very little to do with one another other than occasionally meeting at the printer. The Tribunal is satisfied that there was no reason for Mr Thompson to make derogatory remarks to Mr Diab concerning his race. The Tribunal accepts that the word “foreign” was used but the Tribunal prefers the version given by Mr Grifiths and is satisfied that the use of the word “foreign” was not a personal reference to Mr Diab’s race but a reference to something unknown coming out of the printer.

131 In regard to the second incident in September 2002 the Tribunal is satisfied that the word “problem” was used by Mr Thompson. Mr Griffiths however states that having regard to the context in which this word was used, it was not meant in a derogatory or racist manner.

132 As stated above the Tribunal notes that Mr Thompson and Mr Diab did not work together nor did they have much contact with each other, other than, on occasion, using the same printer. The Tribunal accepts that Mr Thompson did not have any influence over Mr Diab’s work placement. There is in the Tribunal’s view no apparent reason for Mr Thompson to consider Mr Diab a “problem” other than for the reason surmised by Mr Griffiths.

133 The Tribunal is satisfied that the comments made by Mr Thompson to Mr Diab were in the context of a large volume of work coming out of a slow printer which was causing delays and frustration. The Tribunal is satisfied that they were not made with regard to Mr Diab’s race. The Tribunal is satisfied that a person who was a non-Arab who was printing material on a slow printer would not have been treated differently.

134 By parity of reasoning, the Tribunal is satisfied that Mr Thompson may have used the words “I scored a goal” but that they were not used with respect to Mr Diab’s employment situation.

135 Accordingly, the Tribunal finds that these complaints concerning Mr Gary Thompson are not substantiated.

Complaint – Mr Diab was told by Robert Siebert that he could not find employment in Australia because of his ethnic background and that Mr Siebert told him to “fuck off” and “piss off”.

136 The evidence shows and the Tribunal accepts that Mr Williamson approached Mr Siebert, his supervisor, both engineers by profession, to assist Mr Diab with a view to enhancing Mr Diab’s skills in preparing job applications. Mr Siebert denied raising the issue of Mr Diab’s ethnicity or saying to Mr Diab that if he did not agree then to “fuck off” and “piss off”. Mr Siebert maintained his denial under cross-examination. Mr Seibert told the Tribunal that he was motivated to help Mr Diab. Mr Diab told the Tribunal that he did not believe that Mr Seibert and Mr Wiliamson were genuine in their offer of assistance. Mr Diab asserted that although he did not complain to the Respondent about the conduct of Mr Seibert, he did email Kathleen Stockbridge from MTC Work Solutions on 7 August 2002 complaining to her about Mr Seibert’s comments and his racist remarks.

137 Alan Crawford gave evidence to the Tribunal questioning the providence of the emails provided by Mr Diab. It was asserted by Mr Crawford that the documents, purporting to be emails from Mr Diab to Ms Stockbridge contained various irregularities such as the last two lines of the email purportedly sent on 7 August 2002 which included the words “fuck off” and “piss off”, appeared partially outside the text border of the Hotmail text box. Mr Crawford was unable to replicate this anomaly. Mr Crawford also cast serious doubt over the date that the purported email was created and saved being October 2004. It was submitted by the Respondent that the purported email to Kathleen Stockbridge dated 7 August 2002 was in whole or in part a subsequently created self-serving document. Mr Diab called Mr Mourad Abu-Sada but his evidence did not, in the Tribunal’s view, assist in explaining the irregularities.

138 Again there is a conflict in the evidence between Mr Seibert and Mr Diab and the Tribunal must decide whom to believe. The Tribunal found Mr Seibert and Mr Williamson to be credible witnesses. The Tribunal is of the view that the making of racist and derogatory and aggressive statements to Mr Diab is inconsistent with Mr Siebert’s motivation and intention to help Mr Diab improve his employability. Mr Seibert did not have to help. He was approached by Mr Williamson who wanted to help Mr Diab. Mr Seibert was not Mr Diab’s supervisor nor did he work with him during Mr Diab’s six month placement. Mr Seibert chose to help him, as one professional to another.

139 Additionally, although the Tribunal is satisfied that Mr Diab sent emails to Kathleen Stockbridge in August and September 2002, the Tribunal is not satisfied as to the asserted content of the email. The Tribunal is fortified in this view by the fact that, although Ms Stockbridge responded to Mr Diab’s two emails after prompting by Mr Diab by email on 20 September 2002, she does not, in that email, refer to the alleged racist remarks. It is not plausible that Mr Stockbridge would have simply ignored Mr Diab’s allegations without referring to them or alluding to them in some way.

140 Additionally, the Tribunal is of the view that the purported emails are unreliable evidence given the significant doubt cast over their providence and therefore gives them little weight.

141 The Tribunal is fortified in its view that Mr Seibert did not make racist remarks to Mr Diab because of the evidence of Mr Knapman. Mr Knapman told the Tribunal that when he went to say goodbye to Mr Diab, Mr Diab complained to him that he had been treated in a discriminatory way. Mr Knapman said that Mr Diab did not complain of any alleged racist remarks by Mr Seibert. The Tribunal accepts the evidence of Mr Knapman because he is a third party who was not involved in the exchanges between Mr Diab and Mr Seibert and he spoke to Mr Diab at a time when Mr Diab’s work experience placement was coming to an end. Mr Knapman recalled that Mr Diab was distraught and angry. The Tribunal found Mr Knapman to be credible.

142 Additionally Mr Diab did not raise these concerns with Mr Rayward. It is not plausible that Mr Diab would not have raise these concerns with Mr Rayward when he discussed his other concerns with him regarding the conclusion of his work experience placement and his employment.

143 For these reasons the Tribunal is satisfied that the remarks attributed to Mr Seibert by Mr Diab were not made.

144 The Tribunal is satisfied that Mr Seibert did not treat Mr Diab less favourably as it is satisfied that he would have treated a non- Arab in the same way in trying to assist someone with honing job application skills.

145 The Tribunal finds that this complaint is not substantiated.

Complaint – Mr Diab was told that he was not required to attend a meeting with Ballina Shire Council to discuss a project he was working on.

146 Mr Diab asserted that he was not required to attend the meeting with Ballina Shire Council because of his race. He stated that he had the relevant professional qualifications, he was working on the project and accordingly, he was the appropriate person to attend the meeting as the meeting was with engineers and planners to discuss engineering issues relating to the project. Therefore he concluded that the only reason he was excluded was his race.

147 Mr Saul’s evidence is that he had responsibility for the Cabbage Tree Island Project and that he had asked Mr Diab to arrange the meeting. Mr Saul said that he did not consider this to be unusual. His evidence was that the decision that he and Mr Mackney, the project engineer on the project, would attend was made by him on operational and cost grounds. He had responsibility for the project and so it was logical for him to attend and Mr Mackney was the project engineer so it was appropriate for him to attend. This evidence is supported by Mr Keeler.

148 As stated earlier in this decision, it is unusual to find direct evidence of racial discrimination and the outcome of a case may depend on inferences drawn from the evidence. This is not a case, in the Tribunal’s view, in which an inference of race discrimination can be properly drawn. There is no evidence before the Tribunal, nor has Mr Diab asserted, that Mr Saul had acted in a discriminatory manner towards him on any other occasion during the six months Mr Saul was his direct supervisor. There is no reason to infer that Mr Saul was motivated to exclude Mr Diab from this particular meeting for reasons of his race. The Tribunal had an opportunity to observe Mr Saul during the course of his evidence and it formed the view that he was genuinely surprised by Mr Diab’s assertions and it found him to be credible.

149 The Tribunal is satisfied that Mr Saul would have treated a person who was a non-Arab on a six month work experience placement in the same way and that Mr Diab was not treated less favourably than a person who was a non-Arab.

150 Accordingly, the Tribunal finds that this complaint is not substantiated.

Complaint – Decision by the Respondent that Mr Diab was to be supervised by a carpenter. Mr Diab asserted that a non-Arab engineer would not have been placed under the supervision of a “mere building carpenter”.

151 The evidence before the Tribunal is that the main services provided by the Respondent in the North Coast Region were project management services and property valuation services. Mr Rayward told the Tribunal that it was decided that the purpose of Mr Diab’s placement would be best served by placing him under the supervision of an experienced project manager. Mr Saul was selected because he was an experienced senior project manager. Mr Keeler also told the Tribunal that Mr Saul had considerable direct project management experience. Mr Earle told the Tribunal that Mr Saul was a highly regarded project manager.

152 The Tribunal is satisfied that in keeping with the purpose and intent of the MCDP, the Migrant Career Development Program, Mr Diab was placed under the supervision of someone it was believed who could provide some assistance to Mr Diab to obtain some project management skills. There is no reason to justify drawing an inference that the reason Mr Diab was placed under someone who did not have the same qualifications as him was his race. Although Mr Diab was offended by being supervised by a “mere carpenter”, it is evident that the Respondent held Mr Saul in high esteem and did not consider that appointing him as Mr Diab’s supervisor would be perceived as a detriment to Mr Diab or as less favourable treatment.

153 The Tribunal is satisfied that the Respondent would have treated a non-Arab in the same circumstances or in circumstances that were not materially different in the same way. Given the same circumstances, that is, a situation where project management skills were identified as lacking, the Tribunal is satisfied that the Respondent would have placed such a person under the supervision of Mr Saul. The Tribunal is satisfied that the Respondent did not treat Mr Diab less favourably on the ground of his race in this regard.

154 The Tribunal finds that this complaint is not substantiated.

Victimisation

155 Under section 50 of the ADA the Respondent will have victimised the Applicant if it subjected him to a “detriment” because he alleged that the Respondent had contravened the ADA. The relevant parts of section 50 are as follows:

50(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) …

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

…

(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 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.

156 The Tribunal has found that none of the matters complained about have been substantiated and it is not satisfied that any complaint was made to either Kathleen Stockbridge or Rhonda Balzan as alleged by Mr Diab. Accordingly, it is satisfied that there has not been any victimisation of Mr Diab and the provisions of section 50 have not been satisfied.

157 The complaint of victimisation is not substantiated.

Orders

The Complaints are dismissed.

No Order as to Costs.

18/08/2006	-	To correct reference to Applicant - Paragraph(s) 155
25/08/2006	-	To correct reference to Applicant - Paragraph(s) 155