Tsambourakis v CSIRO [1992] HREOCA 2 (3 February 1992)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

RACIAL DISCRIMINATION ACT 1975

No. H90/5

Between

George Tsambourakis

Complainant

And

CSIRO

Respondent

REASONS FOR DECISION OF A.R. CASTAN, QC

DATE OF DETERMINATION: 3 February, 1992

The complainant was born in Greece in 1946, and in 1975 gained a doctorate in Mineralogy and Petrography from the University of Vienna in Austria. On 7 July 1978 the complainant commenced employment with the Division of Mineral Chemistry of the CSIRO at Melbourne. On 1 July 1983 the complainant was promoted from Experimental Scientist Class 2 to Experimental Scientist Class 3. In April 1987 the complainant was unsuccessful in an application for promotion to Senior Research Scientist.

On 18 May 1988 the complainant lodged a complaint with the Victorian Commissioner for Equal Opportunity, as agent for the Human Rights and Equal Opportunity Commission ("the Commission") alleging that the failure to promote him, and the conditions of work afforded him, constituted discriminatory acts. Thereafter, in accordance with sections 20, 21 and 24 of the Racial Discrimination Act1975 ("the Act"), the Victorian Commissioner on behalf of the Race Discrimination Commissioner, Ms Irene Moss, commenced an investigation into the allegations the subject of the complaint, and endeavoured by conciliation to effect a settlement of the matter. Ultimately on 23 July 1990 the Race Discrimination Commissioner referred the matter to the Commission pursuant to section 24E of the Act as she was of the opinion that the matter could not be settled by conciliation. Subsequent to referral, the complainant informed the Commission that his complaint was now limited to the issue of promotion.

On 6 February 1991 the respondent submitted that the complaint should be dismissed pursuant to section 25X of the Act.

At present, my inquiry is at an interim stage. Section 25X of the Act is in the following terms:

"25X

Where, at any stage of an inquiry, the Commission is satisfied that a complaint is frivolous, vexatious, misconceived, lacking in substance or relates to an act that is not unlawful by reason of a provision of Part II, it may dismiss the complaint."

The respondent having applied for such a dismissal, I deemed it expedient to proceed with the inquiry upon the material which had been provided to the Commission by the parties, which comprised the following:

1. A. 18/5/88 Letter of complaint.

B. 13/9/88 Letter from Commission to complainant.

C. 1/10/88 Letter from complainant to Commissioner.

D. 22/12/88 Copy letter from complainant to CSIRO.

E. 3/3/89 Letters from Commissioner to respondent.

F. 10/3/89 Letter from CSIRO to Commissioner.

G. 20/3/89 Letter from CSIRO to Commissioner.

H. 27/4/89 Letter from Commissioner to CSIRO.

I. 8/5/89 Additional information from complainant.

J. 8/5/89 Statement from Peter Davey.

K. Undated Time-table for reclassification process.

L. 17/5/89 Letter from CSIRO to complainant.

M. 16/5/89 Letter from CSIRO EEO Officer to respondent.

N. 31/5/89 Documentation from CSIRO to Commissioner.

O. 1/6/89 Documentation from complainant to Commissioner.

P. 2/6/89 Copy letter to complainant from union.

Q. 2/6/89 Information provided by CSIRO to Commissioner.

R. 6/6/89 Information from complainant to Commissioner.

S. 5/7/89 Statistical information from CSIRO to Commissioner.

T. 13/7/89 Letter of reply from respondent to Commissioner.

In addition I have considered:

2. Statement of Issues prepared by the Commission.

3. Complainant's comments on Statement of Issues.

4. Respondent's comments on Statement of Issues.

5. Witness statements of complainant.

6. Witness statements of respondent.

7. Submission concerning section 25X by respondent.

8. Submission concerning section 25X by complainant.

9. A. (undated) Letter from complainant concerning submission of respondent with respect to section 25X.

B. 20/11/90 Letter from complainant containing comments concerning respondent's witnesses.

C. 16/11/90 Letter from complainant concerning difficulties of preparation caused by respondent.

10. Correspondence dated 23 January 1991 and 9 October 1991 to the complainant and respondent regarding submissions concerning section 25X.

At this stage, and since the matter is proceeding almost entirely upon the material provided by the parties, questions of credibility clearly cannot be relevant. Except to the extent that compelling inferences to the contrary are properly to be drawn from the documentary evidence, the veracity of the evidence put forward by the complainant has been assumed for the purpose of making this threshold assessment.

It is alleged by the complainant that he was the victim of racial discrimination under paragraphs (a) and (b) of section 15(1) of the Act. So far as material, the section provides as follows:

1. It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:

(a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified;

(b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or

(c) ..........

by reason of the race, colour, or national or ethnic origin of that second person or of any relative or associate of that second person.

In his reasons for decision in the matter of Adel Assal v. Department of Health, Housing and Community Services handed down in November 1991, the President of the Commission, Sir Ronald Wilson, held that paragraph (b) of section 15(1) does not necessarily require that there be another person or persons "having the same qualifications and employed in the same circumstances on work of the same description" as the complainant before s.15(1)(b) can apply. Although, as the President pointed out in that matter, it might be said that otherwise there is nothing with which the treatment of the complainant could be directly compared, the paragraph does not have this meaning. The President stated:

"If it meant that, it would follow that provided an employer arranges his work force in such a way that no direct comparison is possible, then that employer would be free to inflict detriments on the basis of race to his heart's content without incurring the risk of a complaint. That could have not been the intention of the legislature. On the contrary, the paragraph must, on its proper interpretation, be given a more general application. I believe that the provision refers to treatment in the course of employment which is at variance with the treatment normally extended to occupants of the same or comparable positions, and which is occasioned by reason of the race, colour or national or ethnic origin of the occupant in question."

I respectfully agree with the views expressed by the President and have approached this matter, and the question of the application of section 15(1)(b), upon that basis.

In a full inquiry, there are three elements, each of which the complainant must establish on the balance of probabilities in order to substantiate the complaint. The first element is that there must be conduct for which the respondent is responsible which discriminated against the complainant in the way described above. Secondly the reason, or a reason for the discriminatory conduct must be referable to the race, colour or national or ethnic origin of the complainant. Thirdly, section 18 of the Act, as it applied to the circumstances at the time the alleged discriminatory conduct occurred, requires that, where an act is done for more than one reason, the complainant must show that his race, colour or national or ethnic origin constituted the dominant reason for the doing of the act.

The absence of any one of these elements is fatal to a complaint. However, before turning to these elements, it is necessary to give consideration to the meaning and effect of the test laid down in section 25X. In order to survive the preliminary consideration required by section 25X, it is sufficient for the complainant to persuade the Commission that his complaint is not "misconceived or lacking in substance." There have been some different views expressed concerning the meaning of this phrase.

In Ellenbogen v. Federated Municipal and Shire Council Employees Union of Australia and Others (1989) E.O.C. 92-252 a former President of the Commission, Justice Einfeld, dealt with statutory procedures applicable to that case which were identical to those presently under consideration. At page 77,447, his Honour said:

"The right of a complainant to require a reference to the Commission of a rejected complaint constitutes an entitlement to a consideration or hearing of the complaint by the Commission. Legalistic procedures should not be permitted to frustrate or side-step this right or to exclude a claim with any possible merit, however slight or remote."

Later in his judgment, at page 77,452, the Judge suggested:

"There must at the very least be available some semblance of evidence that might support or even hint at a just claim."

A different criterion was suggested by Commissioner Moss in A -v- B & Anor[1991] HREOCA 6; (1991) EOC 92-367. The Commissioner said:

"I should not exercise the power of summary dismissal contained in section 79 [identical to section 25X] in this matter unless it is clear that the complainant has no reasonable prospect of success."

In considering the difference between these two approaches to section 25X and its predecessors or equivalents, the President, in the case of Adel Assal v. Department of Health, Housing and Community Services, referred to above, found difficulty with both of the suggested formulations. He said of the test suggested by Justice Einfeld:

"With the greatest respect to his Honour, I believe these passages might be misunderstood and therefore fail to reflect the plain meaning of the words 'lacking in substance'. A claim which presents no more than a remote possibility of merit which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance."

Conversely, in referring to the test laid down by Commissioner Moss as outlined above, the President said:

" ........ I wonder if this test [no reasonable prospect of success] does not raise the threshold too high. It is possible that a complainant's case will exhibit substance, notwithstanding that the ultimate outcome remains clouded in doubt. Bearing in mind that the power to dismiss a complaint summarily may be exercised at any stage of an inquiry, I believe it may be inappropriate in some cases to relate the criterion of 'lack of substance' to the complainant's prospects of success at all. It may sometimes be sufficient, once the complainant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support, simply to ask the question whether there is anything of substance which requires an answer from the respondent. Even this brief discussion serves to confirm me in the belief that it is unwise to postulate any rules intended to guide the exercise of the power in question. That exercise must be governed by the words of the statute itself in the context of the particular circumstances of the case.

I find it consistent with the pastorally sensitive and conciliatory purpose of the Act to interpret the power of summary dismissal conferred by section 25X as reflecting the intention of the legislature that it is in the public interest, as well as in the interest of both parties, that the hearing of a complaint which is clearly shown to be lacking in substance should be summarily terminated. Certainly, it is no kindness to a complainant to shrink from the exercise of the power conferred by section 25X of the Act in circumstances where that exercise is clearly warranted."

With respect, I would adopt the formulation of the test as postulated by the President, as outlined above, in preference to that suggested in either of the earlier decisions referred to above, adding only that just as it is no kindness to a complainant to shrink from the exercise of the power, where that exercise is clearly warranted, so also a complainant is entitled to a full hearing of a matter, where a careful examination of the material indicates that there is any real substance to the complaint.

I turn now to a consideration of the evidence, dealing particularly with the second element, namely that of the alleged racial basis for the conduct. I direct attention to that second element, not because of any assumption that there has been or has not been discriminatory conduct, but rather because it is the alleged absence of any racial basis for the conduct that forms the essence of the respondent's submissions under section 25X (although the respondent also relies upon its detailed denials of any of the alleged discriminatory conduct claimed by the complainant).

On 14 November 1990 the complainant included in his material, precise details of the persons who would appear and give evidence as witnesses. Subsequently on 27 November 1990 the complainant forwarded statements from witnesses, and other relevant information. In carefully analysing this material, the following matters appear, which relate specifically to the question of whether or not there was a racial basis to the respondent's conduct:

(a) the complainant indicated in his letter dated 20 November 1990 that the witnesses' evidence would:

"Expose that I am not the only person discriminated against in the Division by Dr Frost and by Dr Beigler and that both are capable of discriminating on racial grounds.";

(b) Dr George Lukaszewski would be called to confirm:

"(d) Dr Frost and Dr Biegler have discriminated against others in the past ......";

(c) Mr Martin Willoughby-Thomas would give evidence that:

"(c) Some members of the Association (Dr Holmes etc) and CSIRO insist that I am not discriminated against and that my case is a grievance case. State the difference between 'grievance' and 'discrimination' cases. When in his/OA opinion a person is 'racially' discriminated against.";

(d) John Watts would confirm that:

"(a) Dr Frost is a very difficult person to work for or with";

"(b) [Dr Frost] Has treated Dr Armin Kempf unjustly (racial discrimination)."

(e) the witness statement of George Michael Lukaszewski contains the following passages:

"Dr Frost has on various occasions made disparaging and what I construed to be racial comments about individuals in the Division. Dr Frost has frequently made comments about my name, regarding its oddity and length. He suggested I should shorten it (or Aglicise it) [sic].

...... Dr Frost has openly alleged that I, with others, have assisted the writing or even written some of Dr Tsambourakis' official correspondence. Dr Frost asserted that it was not possible for Dr Tsambourakis to do so, as he had very limited skills in English and could not write ..... I have reason to believe that there were racial aspects to the discrimination against Dr Armin Kempf whom Dr Frost considered unsuitable. Dr Kempf was portrayed as 'a scientist of poor quality with whom no one would work'."

Subsequently, on 8 February 1991 Dr Tsambourakis presented a detailed submission to the President of the Commission in support of his case. Matters which relate specifically to the question of a possible racial basis to the respondent's conduct appear as follows:

(a) "I have been referred to (in my absence) as 'The Mad Greek', 'That Man', 'Ethnic', 'a person with whom nobody should work', 'a troublemaker' ..... In 1989, there were rumours spread (Dr Frost?) that 'Dr Reid' gave me the job because he felt sorry for me' (because I was a migrant?) ....."

"That my letters were written by others because I was unable to write even one word in English".

(b) I was only a few months with CSIRO when rumours were circulating about me. 'I was a bloody idiot with a PhD from a Banana Republic'. Because my command of English was not good at that time and because I am a peaceful person, I did not get involved in making formal replies. I thought that eventually these rumours will die, which they did. These comments were made by Mr Ian Madsen, who was a Technical Assistant at that time. Mr Madsen and I, have not been on friendly terms since. Mr Madsen is in charge of the X-ray Diffraction Section (he looked after and maintained the instruments)."

(c) "Dr Frost is a cunning racist and a bigot, details of his practices will be discussed in the hearing."

"In March 1986 Dr Beigler accidentally saw a letter of Dr Frost, typed by his personal secretary, addressed to me. I was informed that it was a very 'racist' letter, containing numerous discriminatory statements. Dr Beigler intercepted that letter, he talked with Dr Frost and Dr Frost send me another one instead. In an Adelaide Hotel, Dr Frost was reading applications of job seekers, a witness saw him rejecting some, by throwing them over his shoulder onto the floor. When asked what he was doing, he replied 'I'm throwing out all of those not born in Australia'."

(d) ".... [Dr Frost] stated clearly that 'Dr Kempf was a German who did not wish to become an Australian, wanted to go back to Germany and Dr Beigler did not like him.' At the same time he was re-assuring Dr Kempf that he would do anything he could to extend his tenure. Dr Kempf to my knowledge is an Australian citizen ... and bought his own house in Melbourne."

(e) "In mid May to mid June 1983, Dr Frost visited Europe and one of the countries he wished to visit was Greece, but he did not have any contacts. He asked for my assistance. .......... However, after his arrival things went wrong all of a sudden. The 'doors' were politely closed and his visits were restricted or cancelled. Dr Frost claims that 'they thought he was a spy'. However, I believe he insulted the intelligence of the Greek people that he met, it is well known that Greeks are a most hospitable and friendly people. Similar comments filter through from Austria, there he visited the RADEX GMBH on behalf of project sponsors. Apparently they were not very impressed with his knowledge, attitude and his arrogance either. In two occasions (in 1985 and 1986) I directly accused Dr Frost of discriminating against me on the grounds of my ethnic origin. Both times he looked at me with a grin in his face and replied 'Prove it George, prove it'."

(f) "Evidence will be given that he often criticised my PhD commenting that 'IT WAS NOT WORTH MUCH BEING FROM VIENNA, BUT I WOULD NOT KNOW THAT SORT OF THING' (because I was Greek)?"

For present purposes I assume that all of the matters put forward by or on behalf of the complainant, and by all of the witnesses which he would seek to call, are true. Perhaps the most striking feature about the material put forward by the complainant in relation to the denial to him of the promotion opportunities to which he asserts he was properly entitled, is the absence of any material linking any discrimination against him, to a racial basis.

Each of the matters extracted, which may bear upon the existence of racial discrimination in general, can carry little significance in the absence of some evidence or material linking them to the complainant himself. There does appear to be evidence that might give rise to the conclusion that another employee, Dr Kempf, was the subject of conduct motivated by racist concerns, though whether or not Dr Kempf was subject to any discrimination in his employment by reason thereof is not at all clear. However this is not of assistance to the complainant himself in the absence of evidence of substance, going to the question of racially discriminatory conduct directed towards him, as distinct from other persons.

The complainant partially concedes as much in his own submission. He indicates that, in relation to a number of the comments that were made against him, they did not include any reference to race or ethnic origin, but he nevertheless believed them to have such a source. This is illustrated by the complainant's insertion of a reference to a possible racial basis by inserting words in brackets after quoting comments alleged to have been made by Dr Frost, which comments as quoted do not themselves contain any words referable to race or national or ethnic origin.

Insofar as the material does contain any references to race or national or ethnic origin which can be linked to the complainant himself, it is confined to comments made by a Mr Ian Madsen, a Technical Assistant, who was not in a position to affect the complainant's employment, to some criticisms of the complainant's capacity to write in English, and to an intervention by Dr Beigler with Dr Frost, which resulted in a more moderate letter being sent to the complainant than that originally drafted by Dr Frost. There is no evidence of the actual contents of the original draft letter.

In the result, the proper conclusion to be drawn from an evaluation of the whole of the material submitted by or on behalf of the complainant is that the complaint is 'misconceived or lacking in substance' in the statutory sense required by section 25X of the Act.

It is clear that the complainant is aggrieved by the discrimination which was perpetrated against him, in his perception of the matter. However, assuming that there had been such discrimination, there is no substance in the allegation that it was based upon race or national or ethnic origin. The complaint must therefore be dismissed.

................................................

AARON RONALD CASTAN

Hearing Commissioner

Dated: 3 February, 1992

MELBOURNE