Xian v RailCorp
[2011] NSWADT 173
•19 July 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Xian v RailCorp [2011] NSWADT 173 Hearing dates: 7 June 2011 Decision date: 19 July 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the Applicant's complaints against the 1 st , 2 nd and 3 rd Respondents under the Anti-Discrimination Act 1977 to proceed.
Catchwords: LEAVE - complaints declined by President of Anti-Discrimination Board as lacking in substance - whether fair and just for complaints to proceed Legislation Cited: Anti-Discrimination Act 1977
Occupational Health and Safety Act 2000
Rail Safety Act 2008Cases Cited: Dutt v Central Coast Area Health Service [2002] NSWADT 133
Jones and Anor v Ekermawi [2009] NSWCA 388
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26Category: Interlocutory applications Parties: Wei Fen Xian (Applicant)
RailCorp (First Respondent)
Vince Lofaro (Second Respondent)
Association of Professional Engineers, Scientists and Managers, Australia (Third Respondent)Representation: Mr Peteris Ginters (1st and 2nd Respondents)
Ms Wei Fen Xian (Applicant - in person)
Mr Jun Lee (3rd Respondent)
File Number(s): 111034
REasons for decision
Introduction
EQUAL OPPORTUNITY DIVISION (N HENNESSY, LCM (DEPUTY PRESIDENT)): The issue in these proceedings is whether the Tribunal should give Ms Xian permission for her complaints of discrimination, harassment and victimisation under the Anti-Discrimination Act 1977 ( AD Act ) to proceed. The complaints, which are against her former employer RailCorp, her former supervisor Mr Lofaro and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) were declined by the President of the Anti-Discrimination Board as lacking in substance.
Ms Xian needs to obtain the Tribunal's permission before any of her complaints can proceed: AD Act , s 96. The Tribunal has a discretion to grant or refuse leave for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint is frivolous, vexatious, misconceived or lacking in substance. In this case I have decided to refuse leave for each of the complaints to proceed.
Complaints to the Anti-Discrimination Board
Ms Xian made eight complaints of discrimination to the Anti-Discrimination Board. The period covered by the complaints is 4 September 2008 to 4 September 2009. The complaints against RailCorp were complaints of:
(1) presumed disability discrimination;
(2) race discrimination;
(3) sex discrimination;
(4) sexual harassment; and
(5) victimisation.
Ms Xian's complaints against her acting supervisor, Mr Lofaro, were complaints of sexual harassment and victimisation.
Ms Xian's complaint against the union, APESMA, was a complaint of victimisation.
Background
In 2004 Ms Xian was employed by RailCorp as a Technical Specialist in the Communications and Control Systems Division. In 2007 and 2008 she complained of three incidents of sex discrimination and sexual harassment. She complained that:
(1) in January 2007 males used the female toilets at her workplace;
(2) in September 2007 she received sexually abusive SMS messages on her work phone;
(3) in May 2008 the conditions of a female toilet led her to suspect that a male had been using the female toilets.
These incidents all occurred more than 12 months before Ms Xian lodged her complaints with the Anti-Discrimination Board: AD Act , s 89B(2)(b). The President of the Board did not accept them but they were said to be the trigger for later acts of victimisation which were alleged to have occurred during the complaint period: AD Act , s 50.
On 2 October 2008 a fellow employee opened a cupboard door in a kitchen area. The door hit Ms Xian on the back of her head (the "safety incident"). She was not seriously injured. Ms Xian was dissatisfied with the way the safety incident was investigated alleging that the facts had been "twisted", the investigation report had been deliberately "hidden" from management and the incident had been "covered up". Ms Xian wrote numerous letters and emails about the safety incident.
About three months later, on 13 January 2009, three managers held a meeting with Ms Xian. They agreed to Ms Xian's request to video tape the meeting. Ms Xian provided the video and a transcript of the meeting to the Anti-Discrimination Board when she complained of discrimination, harassment and victimisation. At the meeting Ms Xian was told that as a result of concerns about the way she had reacted to the safety incident, she was required to attend a health assessment. She refused to attend.
The transcript of the meeting discloses that the participants did not provide Ms Xian with specific details of the behaviour which they said justified referring her for a health assessment. The other participants referred only to "various incidents" saying that Ms Xian was "continuously raising various issues about numerous employees ... in the work place ..." and that they were not obliged to provide Ms Xian with details of those incidents.
On 14 April 2009, another meeting was held at which Ms Xian was advised that a further medical appointment had been arranged for 22 April 2009 and that she was required to attend. Ms Xian did not attend that appointment. During the meeting some details of the behaviour about which RailCorp was concerned were identified including:
(1) asking the NSW Premier to be her support person; and
(2) escalating the safety incident by sending emails to senior managers.
On 29 April 2009, RailCorp wrote to Ms Xian requiring her to attend two medical appointments on 27 May 2009. As a result of her failure to attend those appointments she was sent a second warning letter on 2 June 2009. On 10 June 2009 Ms Xian was sent a letter directing her to attend two further medical assessments on 16 June 2009. She did not attend those appointments. That was the fourth occasion on which she had refused to attend medical appointments arranged by RailCorp.
When RailCorp responded to Ms Xian's complaints to the Anti-Discrimination Board, it provided the following details of the behaviour which was said to justify requiring her to be assessed by a medical practitioner:
(1) being argumentative, aggressive and strident in her dealings with colleagues;
(2) displaying bullying and harassing behaviour towards her colleagues;
(3) alleging that attempts had been made to kidnap her;
(4) continually asserting that RailCorp's investigation of the safety incident on 2 October 2010 had been the subject of fabrications and cover-ups and that RailCorp's managers had 'ganged up' on her;
(5) inappropriately escalating workplace grievances to senior management; and
(6) insisting that she be allowed to videotape and/or sound record workplace meetings.
Ms Xian was suspended (on pay) on 26 June 2009 while a disciplinary investigation was undertaken. Her acting supervisor, Mr Lofaro, escorted her from the premises on that day and sent an email to staff advising them of that decision. The email contained the following words in the subject heading "Ms directed not to attend work". Ms Xian objected to the fact that the subject heading of the email did not contain her name, but merely referred to her as "Ms". Mr Lofaro said that the omission was inadvertent.
On 12 June 2009, two weeks before she was suspended, Ms Xian applied to join APESMA. Their policy is to provide limited assistance to members who join and ask for assistance in relation to a pre-existing issue. Ms Xian was referred to Ms Funnell who obtained relevant documents including the two warning letters that had been sent to her. Ms Funnell recommended that Ms Xian attend the next health assessment that had been arranged. Ms Funnell also spoke to a RailCorp manager. Ms Funnell says that Ms Xian misunderstood the report of her conversation with the RailCorp manager. Ms Funnell denies that she expressed any view in that conversation about the state of Ms Xian's health.
On 25 June 2009, Ms Xian requested that APESMA allocate a union representative other than Ms Funnel to advocate for her. Ms Funnel's supervisor refused that request. Ms Xian decided not to continue her membership of APESMA and accepted APESMA's offer to refund her annual subscription.
RailCorp terminated Ms Xian's employment on 19 November 2009. The reason RailCorp gave for the termination was that Ms Xian had breached RailCorp's Code of Conduct by failing to comply with lawful directions to attend medical appointments.
Ms Xian provided evidence to the Tribunal that her performance at work was satisfactory and that she did not have a psychological health problem. She submitted that RailCorp constructed a "health problem" to cover up their mismanagement of the safety incident. She says that the dismissal was "illegal" because the relevant award does not allow her to be dismissed on the ground of a presumed disability. Furthermore, she asserts that RailCorp provided no evidence that she has a psychological disability.
Presumed disability discrimination
What would need to be proved?
In order to substantiate her complaint of presumed disability discrimination in employment, Ms Xian would have to prove that RailCorp has breached s 49D(2)(b) and/or (c) of the AD Act . Those provisions make discrimination on the ground of disability unlawful in relation to dismissing an employee or subjecting an employee to any other detriment. Discrimination on the ground of disability is defined in s 49B. The first part of the definition refers to 'direct' discrimination. The second part refers to 'indirect' discrimination. My understanding is that Ms Xian is complaining of 'direct' discrimination.
For Ms Xian to prove that she had been 'directly' discriminated against on the ground of presumed disability, she would have to prove that:
(1) RailCorp presumed she had a disability;
(2) RailCorp dismissed her and/or subjected her to a detriment;
(3) that treatment was less favourable than RailCorp treated or would have treated a person who it did not presume had a disability in the same or similar circumstances; ( differential treatment ) and
(4) at least one of the reasons for that treatment was the presumption that Ms Xian had a disability ( causation ).
If Ms Xian were able to prove discrimination, RailCorp could rely on any relevant defences available under the AD Act including:
(1) that it was necessary for RailCorp to act in the way that it did in order to comply with a requirement of another Act or regulation: AD Act s 54:
(2) in relation to the decision to dismiss Ms Xian, that because of a disability she would be unable to carry out the inherent requirements of the particular employment, or would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer: s 49D(4).
Presumed disability
The definition of disability in the AD Act includes a disability that a person is thought to have, whether or not the person in fact has the disability: AD Act , s 49A(b). According to Ms Xian, RailCorp presumed that she had a psychological disability. Ms Xian provided a report from a general practitioner who expressed the opinion that Ms Xian does not have a psychiatric or mental health problem. RailCorp says that it did not know whether or not Ms Xian had a psychological disability which was affecting her work and that was one of the reasons she had been referred for a health assessment. While the issue is not free from doubt, it is possible that, if this matter went to hearing, Ms Xian would be able to prove that RailCorp thought she had a psychological disability.
Conduct
RailCorp's conduct, which Ms Xian says constitutes presumed disability discrimination, was:
(1) requiring her to attend health assessments; and
(2) suspending her and then dismissing her for failing to attend those assessments.
It is likely, if this matter went to hearing, that the Tribunal would be satisfied that the alleged conduct constitutes dismissing Ms Xian and/or subjecting her to "any other detriment": s 49D(2)(b) and/or (c).
Differential treatment and causation
For RailCorp's conduct to be unlawful it must come within the definition of discrimination in s 49B. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Ms Xian must be compared with the treatment that would have been afforded to a person who RailCorp did not think had a disability in the same or similar circumstances. In the absence of an actual person whose treatment could be compared with the treatment given to Ms Xian, the Tribunal would have to rely on a hypothetical person in a comparable situation.
When there is no actual comparator, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that the respondent treated the applicant less favourably than a hypothetical person without a disability would have been treated by determining that disability was a reason for that different treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133.
At least one of the reasons for being treated in the way she was treated must be Ms Xian's presumed disability.
Requirement to attend health assessments
If this matter went to hearing, it is possible that the Tribunal would be satisfied that the reason for requiring Ms Xian to attend the health assessments was because of a suspicion, or perhaps even a presumption, that Ms Xian had a psychological disability that was affecting her ability to do her job safely. RailCorp would have a defence if it could prove that it was necessary for it to have acted in the way that it did in order to comply with a requirement of another Act or Regulation, such as s 8 of the Occupational Health and Safety Act 2000 (duty to ensure the health, safety and welfare at work of all the employees of the employer).
Because of the nature of the work that she performed Ms Xian was categorised as a rail safety worker for the purposes of the Rail Safety Act 2008. According to RailCorp, it is a condition of its accreditation as a "Rail Transport Operator" under the Rail Safety Act 2008 that it has a health and fitness management program for all rail safety workers. That program must comply with the National Standard for Health Assessment of Rail Safety Workers. The Standard allows RailCorp to refer workers for health assessments in response to concerns about their ability to perform their job safely. Whether or not this legislative scheme qualifies as a "requirement" under s 54, it is not fair or just to allow this part of Ms Xian's complaint to proceed. It is in the public interest for RailCorp to require an employee to undergo a health assessment when it has genuine concerns about the ability of that employee to perform his or her job safely. I am satisfied that that is the case in relation to the circumstances of this case.
Suspension and dismissal
The stated reason for suspending and then dismissing Ms Xian was that she did not comply with lawful directions to attend medical appointments and was consequently in breach of RailCorp's Code of Conduct. It is highly likely that if this matter went to hearing, the Tribunal would find that the reason Ms Xian was suspended and then dismissed was her failure to comply with the Code of Conduct. Any presumption that Ms Xian had a disability was not one of the reasons for being suspended or dismissed. This aspect of the complaint of disability discrimination lacks substance and leave for it to proceed is refused.
Race discrimination
What would need to be proved?
In order to substantiate her complaint of race discrimination in employment, Ms Xian would have to prove that RailCorp has breached s 8(2)(a) of the AD Act . Those provisions make discrimination on the ground of race unlawful in relation to the terms and conditions of employment. Discrimination on the ground of race is defined in s 7. The first part of the definition refers to 'direct' discrimination. The second part refers to 'indirect' discrimination. My understanding is that Ms Xian is complaining of 'direct' discrimination.
RailCorp's conduct which Ms Xian alleges constitutes race discrimination is:
(1) requiring her to attend the health assessments; and
(2) being escorted from the premises.
Requirement to attend health assessments
For Ms Xian to prove that she had been 'directly' discriminated against on the ground of race (Chinese) she would have to prove the same matters that she would have to prove to establish disability discrimination except that race must be at least one of the reasons for the treatment. There is no actual comparator. There is no evidence before the Tribunal that is capable of supporting Ms Xian's complaint of race discrimination. The complaint lacks substance and leave for this part of the complaint to proceed is refused.
Being escorted from the premises
Ms Xian was escorted from the premises following her suspension. According to Ms Xian being escorted from the premises by Mr Lofaro amounts to race discrimination because she is a "small Asian woman" and a non-Asian person would not have been treated in the same way. No actual comparator was identified. There is no evidence before the Tribunal that is capable of supporting Ms Xian's complaint of race discrimination. The complaint lacks substance and leave for this part of the complaint to proceed is refused.
Sex discrimination
What would need to be proved?
In order to substantiate her complaint of sex discrimination in employment, Ms Xian would have to prove that RailCorp has breached s 25(2)(a), (b) and/or (c) of the AD Act . Those provisions make discrimination on the ground of sex unlawful in relation to the terms and conditions of employment, dismissing an employee or subjecting an employee to any other detriment. Discrimination on the ground of sex is defined in s 24. The first part of the definition refers to 'direct' discrimination. The second part refers to 'indirect' discrimination. My understanding is that Ms Xian is complaining of 'direct' discrimination.
The conduct which Ms Xian alleges constitutes sex discrimination is:
(1) the omission of Ms Xian's family name from the subject heading of the email dated 27 June 2009;
(2) being escorted from the premises following suspension; and
(3) being dismissed.
Omission of name from email
It is likely that a Tribunal hearing this case would accept Mr Lofaro's evidence that the omission of Ms Xian's family name from the email was inadvertent. Even if it was deliberate, this allegation is frivolous and leave for it to proceed is refused.
Being escorted from the premises
According to Ms Xian, being escorted from the premises by Mr Lofaro amounts to sex discrimination because she is a "small Asian woman". She says that a male employee was dismissed a few years earlier but he was not escorted from the building. There was no evidence about the circumstances in which the male employee was dismissed and whether those circumstances were the same or not materially different from the circumstances in which Ms Xian was dismissed. If this part of the complaint proceeds to hearing, it is highly unlikely that the Tribunal would find that the fact that Ms Xian is a woman had anything to do with the decision that she should be escorted from the premises as soon as she was suspended. This part of the complaint lacks substance and leave for it to proceed is refused.
Dismissal
Ms Xian submits that the decision to dismiss her constitutes differential treatment because a male staff member was given three warnings before he was dismissed and she was only given two warnings. If this matter proceeds to hearing, it is highly unlikely that the Tribunal would find that the fact that Ms Xian is a woman had anything to do with the decision to dismiss her. The reason that she was dismissed was that she breached the Code of Conduct by failing to attend the health assessments. This part of the complaint lacks substance and leave for it to proceed is refused.
Sexual harassment against Mr Lofaro and RailCorp
What would need to be proved?
Sexual harassment is defined in s 22A of the AD Act :
For the purposes of this Part, a person sexually harasses another person if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
Alleged conduct
The allegation of sexual harassment relates to Mr Lofaro's conduct on 26 June 2009 when he escorted Ms Xian from RailCorp premises. The complaint against RailCorp arises because an employer is vicariously liable for any conduct of its employees that breaches the AD Act unless an employer took all reasonable steps to prevent the employee from contravening the Act: AD Act , s 53. To constitute sexual harassment, there must be some unwelcome conduct of a sexual nature such as a sexual advance or request for sexual favours: AD Act , s 22F. Ms Xian has not identified any conduct in which Mr Lofaro engaged that was of a sexual nature. Consequently, the complaints of sexual harassment against Mr Lofaro and against RailCorp are lacking in substance and leave for them to proceed is refused.
Victimisation complaints
What needs to be proved?
Ms Xian complained that RailCorp, Mr Lofaro and APESMA victimised her in various ways. To prove victimisation, Ms Xian must establish that:
(1) she alleged that RailCorp, Mr Lofaro and APESMA had done something which would amount to a contravention of the AD Act or done anything under or by reference to the AD Act ( the trigger );
(2) the alleged discriminator (RailCorp, Mr Lofaro and APESMA) subjected her to a detriment; ( the detriment ) and
(3) the detriment was on the ground that Ms Xian made the relevant allegation against the alleged discriminator; ( causation ) ( AD Act , s 50).
Victimisation against RailCorp
Ms Xian alleges that the triggers for the detriments that she suffered were complaints of sex discrimination and sexual harassment in relation to incidents in January 2007, September 2007 and May 2008. The January 2007 complaint was about males using the female toilets at her workplace; the September 2007 complaint was about receiving sexually abusive SMS messages on her work phone and the May 2008 complaint was about the conditions of a female toilet leading to a suspicion that a male had been using the female toilets.
The detriment that she allegedly suffered at the hands of RailCorp was:
(1) the way in which RailCorp dealt with the safety incident;
(2) being required to attend a health assessment; and
(3) being escorted from the premises on 26 June 2009.
In order to substantiate her complaint, Ms Xian must prove that her 2007 and 2008 complaints were at least one of the reasons that she was subjected to the various detriments at the end of 2008 and in 2009. It is highly unlikely that a Tribunal hearing these complaints would be satisfied that any of the alleged detriments took place because Ms Xian made complaints up to two years before her employment was terminated. There is no temporal connection between the alleged triggers and the alleged detriments. In addition, there is a plausible explanation for all the alleged detriments which does not include the fact that she had previously made complaints.
Victimisation against Mr Lofaro
The detriment suffered by Ms Xian by Mr Lofaro's conduct was allegedly:
(1) being part of the "twisted" management of the safety incident;
(2) requiring her to attend a health assessment and warning her of serious consequences if she did not attend;
(3) escorting her from the premises on 26 June 2009; and
(4) subsequent actions including sending an email to all staff with the subject "Ms directed not to attend work".
It is highly unlikely that a Tribunal hearing these complaints would be satisfied that any of the alleged detriments took place because Ms Xian made complaints up to two years before her employment was terminated. There is no temporal connection between the alleged triggers and the alleged detriments. In addition, there is a plausible explanation for all the alleged detriments which does not include the fact that she had previously made complaints.
Victimisation against APESMA
The detriment suffered by Ms Xian by APESMA's conduct was allegedly:
(1) assisting the RailCorp managers in relation to their allegation that she had health problems and that she should undergo a health assessment;
(2) making negative comments about Ms Xian's behaviour;
(3) directing her not to obtain alternative legal advice and threatening her career if she did not undergo the health assessment; and
(4) failing to allocate a different industrial officer after she complained about Ms Funnell.
APESMA denies that Ms Xian suffered any detriment as a result of its actions. Even if she did, Ms Xian has not identified how the making of complaints to RailCorp in 2007 and 2008 could have been a reason for the way APESMA treated her more than two years later. The complaint lacks substance and leave for it to proceed is refused.
Order
Leave is refused for the Applicant's complaints against the 1st, 2nd and 3rd Respondents under the Anti-Discrimination Act 1977 to proceed.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar/Associate
Decision last updated: 20 July 2011
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