Howard v CSR Ltd [1997] HREOCA 9 (19 March 1997)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

RACIAL DISCRIMINATION ACT 1975 (CTH)

DISABILITY DISCRIMINATION ACT 1992(CTH)

No. H97/7

Between:

Barry Howard

Complainant

And:

CSR Ltd

Respondent

EX TEMPORE

REASONS FOR DECISION

of

Sir Ronald Wilson

President

Location of Hearing: Sydney

Hearing Date: 19 March 1997

Date of Decision: 19 March 1997

Appearances: The complainant appeared in person.

Stephen Price, solicitor, of Corrs Chambers Westgarth, Solicitors appeared for the respondent.

I propose to deliver my decision now. I have had the opportunity to hear the evidence during the morning and to reflect on it as it proceeded and during the brief intermission. It means that whilst I reserve the right just to polish up the transcript of what I say now, what you are hearing is basically my reasons in dealing with the complaint. The parties will receive a written record of those reasons within the next week or 10 days or so.

In many ways this has been a simple case to determine. What this hearing has done is to remind me just how valuable is this hearing process that the Commission has been able to undertake in relation to Mr Howard and many other complainants in providing an opportunity for the clarification of misunderstanding, for the encouragement of complainants to feel that there has been some consolation. Even if they lose their complaint, at least they have been able to voice their concerns to an independent authority and to have them adjudicated on. That includes requiring the person against whom or the corporation against whom the complaint is made to give their explanation to that independent authority and to have it adjudicated on.

So even though I am going to dismiss the complaint that Mr Howard has brought I am hoping and believe that he will go away feeling justified in the sense that he has been listened to. He has been able to call his witnesses and he is now able to hear my reasons for the action that I am going to take. In his original complaint Mr Howard said:

"In conclusion I basically would like two questions answered; the first question, is it really because of my medical condition, diabetes, that I have not been put on permanent?"

I notice that Mr Price spoke of the diabetes complaint as being abandoned. I am not sure that Mr Howard did abandon it and I think it is better to clear it up and for me to deal with it. If he were right it would justify a complaint under the Disability Discrimination Act which renders it unlawful to disadvantage a worker in the course of his employment by reason of a disability that he has. Undoubtedly diabetes is a disability and Mr Howard's belief when he made the complaint was that he may have been denied permanency because of the conversation about diabetes with Mr Roberts.

Having heard both Mr Howard and Mr Roberts in that regard I find that Mr Howard was casting round for a possible explanation for the lack of fulfilment of his ambition -which has always been, since he started working for the company, to become permanent. I find there is no evidence to ground his anxiety that it was because of his diabetes that he was not made permanent.

The evidence is compelling that so long as the RTA is prepared to license a driver, being satisfied that, in the case of diabetes, the diabetes is under control, medical control, and offers no risk to either the driver or other users of the road then there is no reason for the company to discount the usefulness of a driver on that ground. So I find that diabetes has played no part in the history of Mr Howard's employment with the company.

The second question that Mr Howard would like answered is:

"Or is it because I have been named as a witness in the complaint Mr Suter has at present before the Human Rights Commission regarding CSR Readymix involving Mr Jim Dunbar, union delegate?"

Again there is no evidence that persuades me that the company somehow bought into that argument between Mr Dunbar and Mr Howard and formed an attitude towards Mr Howard's employment that was prejudicial to him and used it as a basis for denying him permanency. This complaint only comes within the jurisdiction of the Commission under the Racial Discrimination Act because it is by virtue of section 27 of that Act that it's unlawful for a person to be penalised in their employment by reason that that person has furnished or proposes to furnish any information or documents to a person exercising any powers or functions under this Act.

Mr Suter having made a complaint to the Race Discrimination Commissioner, Mr Howard comes within the latter part of that section as being a person who proposed to furnish information to the Race Discrimination Commissioner in support of Mr Suter's complaint. So much may be conceded, but there is no acceptable evidence that he has been prejudiced in his employment by reason of that support. I do not need to consider whether Mr Suter's complaint comes within the Racial Discrimination Act because that is a matter that has been the subject of another hearing before another commissioner and the decision in that matter will be given in due course.

The reason why I am dismissing the complaint on this second ground that gave rise to Mr Howard's anxiety is simply that there is no connection established between Mr Dunbar's disaffection for Mr Howard and the latter's failure to be made permanent. There is no basis at all in the evidence for a conclusion that Mr Dunbar has exercised influence with the company management, with Mr Roberts in particular, to the prejudice of Mr Howard. Therefore I have no alternative but to dismiss that complaint.

The question of the seizure of the engine and whether Mr Howard has rightly been blamed in whole or in part for that unfortunate outcome is a matter that I do not have to determine because there is no jurisdiction under the anti-discrimination legislation for which the Commission has responsibility to lead me into that question.

We are not an industrial relations commission or tribunal that can adjudicate when a person is dismissed on whether that dismissal is fair or unfair. Nor can the Commission rule simply on whether or not you have been treated unfairly in not being made permanent.

We can only say whether the failure to make you permanent can be attributed to disability discrimination or under the Racial Discrimination Act. As a complainant you have to bear the onus of proof on the balance of probabilities that one or other of those matters has explained the failure to make you permanent. I have to say that on the evidence there is no connection between your diabetes, or your support for Mr Suter, that would enable this Commission to find your complaint substantiated.

The complaint is dismissed.

Dated this nineteenth day of March 1997

Sir Ronald Wilson

President