Salama v Qantas Airways Ltd [2002] NSWADT 119 (11 July 2002)

Last Updated: 17 October 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Salama -v- Qantas Airways Ltd [2002] NSWADT 119

PARTIES: APPLICANT

Faisal Salama

RESPONDENT

Qantas Airways Ltd

FILE NUMBERS: 011005

HEARING DATES: 05/12/2001

SUBMISSIONS CLOSED: 05/12/2001

DECISION DATE: 11/07/2002

BEFORE: Britton A - Judicial MemberWeule B - MemberSilva A - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

Racial Discrimination Act 1975 (Cth)

CASES CITED: Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Tannock v State of New South Wales [1999] NSWADT 73

Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221

Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 [on appeal]

Assal v Department of Health and Housing (1992) EOC 92-409

Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73

Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98

Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102

Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5

APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

J Stephenson, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

K Eastman, barrister

ORDERS: That the complaint be dismissed.

Reasons for Decision:

1 This decision concerns an application made under s 111(1) of the Anti-Discrimination Act 1977 (NSW)("the Act") by Qantas Airways Ltd, the respondent in these proceedings, to have Mr Faisal Salama's complaint of unlawful race discrimination dismissed. Section 111(1) of the Act provides:

where, at any stage of an inquiry, the Tribunal is satisfied the complaint is frivolous, vexatious, misconceived or lacking in substance or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

2 It is asserted for Qantas that Mr Salama has failed to disclose a reasonable cause of action. The respondent seeks an order that the proceedings be dismissed on the grounds that the complaint lacks substance or, alternatively, is misconceived. Qantas also seeks an order for costs.

Referral of Complaint by President

3 By letter dated 6 April 1998, Mr Salama lodged a complaint with the President of the Anti-Discrimination Board ("the President"). He alleged that Qantas had discriminated against him, on the ground of race, throughout the period 1993 to October 1997, culminating in his compulsory retrenchment on 10 October 1997. This retrenchment was confirmed on 7 November 1997 following internal appeal. The Acting President decided not to exercise her discretion under s 88(4) of the Act to accept the "out of time" allegation i.e. that part of the allegation relating to the period 1993 to 6 October 1997. Accordingly, the complaint investigated by the President was confined to Qantas' decision to retrench Mr Salama.

4 The President began to investigate this complaint and on 22 December 2000 decided to investigate the complaint no further on the ground that it lacked substance. At Mr Salama's request the President referred the complaint to the Tribunal on 30 January 2001.

Background

5 Mr Salama is from a non-English speaking background and was born in Sudan. He commenced employment with Qantas on 23 June 1987. In June 1993 he was appointed to the position of Freight Operations Agent.

6 In or about August 1997 Qantas determined that 36 positions at the Sydney Freight Terminal would be made redundant. Qantas called for expressions of interest from employees interested in accepting voluntary redundancy. Qantas received 26 expressions of interest. By letter dated 8 September 1997, Mr Salama replied that he did not wish to be made redundant. However, on 10 October 1997 Ms Mangafas (Human Resources Manager - Freight) informed him that he had been compulsorily retrenched. He appealed the decision to terminate his employment through his union, the Australian Services Union. By letter dated 7 November 1997, Qantas informed Mr Salama that his appeal was unsuccessful. At the time of his retrenchment Mr Salama held the position of Freight Operations Agent at the Sydney Freight Terminal. In that position he was responsible for all functions associated with the processing of freight documentation in the export and import delivery sections of the Sydney Freight Terminal, including the front counters.

7 To put Mr Salama's evidence in context it is necessary to look at the explanation given to the Board by Qantas for its decision to retrench Mr Salama. According to Qantas, an insufficient number of employees volunteered for redundancy and therefore it was obliged to select ten employees for compulsory redundancy. In a letter to the President dated 6 November 2000, Qantas Human Resources Officer, Wayne Beale stated:

... obviously, when assessing positions required during a redundancy exercise, the skills and abilities of the person holding a particular position are assessed...Mr Salama's skill level for the position he held, even after extensive training and retraining, was not of the required standard. Given the company's decision to require employees who were able to perform all facets of the position held and Mr Salama's inability to meet this requirement his position was made redundant.

Approach to s 111(1) applications

8 The Appeal Panel in Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 [at 34] noted that in previous Tribunal decisions which have considered applications under s 111, it has been determined that the discretion to dismiss a complaint summarily should be exercised with exceptional caution and only if the circumstances clearly warrant such action. See General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Tannock v State of New South Wales [1999] NSWADT 73; Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221; Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 [on appeal].

9 The power to award summary judgement should be exercised with extraordinary care. However we also note that where the requirements of s 111(1) have been met we are obliged not to shy from an exercise of this power. We note the comments of Sir Ronald Wilson in Assal v Department of Health and Housing (1992) EOC 92-409 at p.78, 900:

I find it consistent with the pastorally sensitive and conciliatory purpose of the Act, to interpret the power of summary dismissal conferred by s 25X [Racial Discrimination Act 1975 (Cth)] 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 s 25X of the Act in circumstances where that exercise is clearly warranted.

10 In Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 [at 35] the Tribunal applied the following test to determine whether an exercise of the Tribunal's powers under s 111(1) of the Act was warranted:

... 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 purpose 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 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 principles or has been advancing an untenable proposition of law or fact.

11 We intend to follow that approach. Accordingly the issue for us to determine is whether, taking Mr Salama's evidence at its highest, there is any reasonable evidence to support a finding that by dismissing Mr Salama, Qantas unlawfully discriminated against him on the ground of race contrary to s 8(2)(c) of the Act.

Procedural Issues

Procedural Issue 1: Evidence to be taken into account

12 The evidence before the Tribunal in this matter included the President's Report, tendered without objection, an unsigned document prepared by the complainant headed "Personal Statement" forwarded to the Tribunal under cover of letter dated 29 June 2001 (Exhibit B), a further statement prepared by the complainant dated 20 September 2001 (Exhibit C) and various documents filed on 16 July and 1 August 2001 which included amongst other things, extracts from the relevant Qantas roster for selected periods from August 1995 to 1998.

13 As is usual practice, the President's Report contained various documents provided by both parties to the President in the course of the Board's investigation. Included was material supplied by Qantas, which purported to answer the various allegations made by Mr Salama. Some of this material is in direct conflict to Mr Salama's evidence and, if accepted, would cast doubt on parts of his case.

14 Our task in this application is not to weigh up the conflicting evidence (if any). Rather we are obliged to take the complainant's case at its highest and proceed to determine whether, on that basis, the complaint made by the complainant can be proved. To put the question another way, we must determine as a matter of law whether the complainant's case, if accepted at its highest, is capable of proving the elements of the complaint to the requisite standard. To this end, while the entire President's Report was tendered without objection in these proceedings, for the purposes of this application we intend to disregard any material supplied by Qantas (or Mr Salama) which could be characterised as being unfavourable to the complainant's case. In our view to do otherwise would be inappropriate given the nature of the application before us.

Procedural Issue 2: The scope of the complaint

15 As noted above, the Acting President declined to accept that part of Mr Salama's complaint relating to incidents alleged to have occurred throughout the period 1993 to September 1997. The complaint referred to us by the Acting President relates solely to Mr Salama's retrenchment.

16 The referral of the complaint by the President is the source of the Tribunal's power to hold an inquiry. The scope of the inquiry is determined by the complaint referred to the Tribunal by the President. The Tribunal has no jurisdiction to investigate and find any contravention of the Act which falls outside the ambit of the complaint referred by the President: Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98; Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102; Commissioner of Police, New South Wales Police Service v Orr [at 16]; Razaghi v Director- General, NSW Department of Health & Anor [at 21].

17 Evidence was led in these proceedings about Mr Salama's treatment by Qantas, its agents and employees throughout the period preceding his retrenchment. Ms Eastman for the respondent contends that much, if not all, of this evidence is irrelevant as there is no valid complaint before the Tribunal relating to that period. Mr Stephenson for the complainant agrees that the Tribunal does not have jurisdiction to entertain a complaint about Qantas' treatment of Mr Salama prior to his dismissal. He asserts however that Qantas' decision to dismiss Mr Salama was inextricably linked to a series of earlier decisions made by Qantas in respect of its employee and therefore evidence of those decisions is relevant on that account.

18 Therefore material concerning the period 1993 to October 1997 was admitted into evidence for the sole purpose of determining whether as asserted for the complainant, there was any link between Qantas' decision to dismiss Mr Salama and its treatment of him during this period.

Relevant legislative provisions

19 Section 8(2)(c) of the Act makes it unlawful for an employer to discriminate against an employee on the ground of race by dismissing the employee or subjecting the employee to any other detriment. Section 4A of the Act provides that where an act is done for two or more reasons and one of those reasons constitutes unlawful discrimination, whether or not it is the dominant or substantial reason for doing that act, then the act is taken to be done for that reason.

20 Race discrimination is defined in s 7(1) of the Act:

A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:

(i) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

(ii) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of' a different race,

(iii) or requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

21 Sub-section 2 of s 7 is also relevant. It provides:

For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

Respondent's Submissions

22 Qantas denies that Mr Salama's race was a reason for terminating his employment. Ms Eastman for the respondent argues that Mr Salama's case cannot succeed as he has failed to disclose a reasonable cause of action. In particular, Mr Salama has been unable to point to any evidence that would support the claim that his race played a role in Qantas' decision to end his employment. While Qantas accepts that Mr Salama may genuinely believe that race played such a role this, argues Ms Eastman, is not sufficient to make Qantas' decision unlawful.

23 An allegation of race discrimination, submits Ms Eastman, must be based on more than Mr Salama's subjective feelings or belief. There must be objective evidence of the probability of race discrimination not just a possibility. The respondent's argument is to the effect that Mr Salama is inviting the Tribunal to infer racial discrimination merely because he does not happen to agree with action that has been taken by Qantas. Some rational evidence is required to support a valid complaint. Qantas asserts that there is no such evidence in this case and accordingly, argues Ms Eastman, the complaint must be dismissed.

24 Ms Eastman also submits that there is no evidence before the Tribunal which would support a finding that Mr Salama was subjected to indirect discrimination as defined by s 7(1)(c) of the Act. She asserts that there is no evidence that Mr Salama was required to comply with a condition that had an adverse outcome because of his race. Ms Eastman asserts that the evidence demonstrates that Qantas followed a proper process in relation to determining which of its employees would be made redundant. The criteria for determining who would be made redundant were based on work performance. She says that there is no evidence Mr Salama can point to show that, because of his race, he was not given opportunities to perform to the required standards.

Complainant's Submissions

25 Mr Stephenson for the respondent submits that the evidence establishes that throughout Mr Salama's employment with Qantas he was repeatedly singled out for less favourable treatment in part because of his race. According to Mr Stephenson, the evidence establishes that, because of this treatment, a number of things happened: he failed a critical work-related exam; he did not receive training on all aspects of his relevant position/s; and he was placed on extended probation without explanation. Mr Stephenson asserts that despite repeated attempts to raise his concerns with management these were ignored. Accordingly, when Qantas needed to determine which of its employees would be made redundant, Mr Salama found himself in a vulnerable position having been denied the opportunities enjoyed by his colleagues to develop and enhance his skills.

26 Mr Stephenson also argues that the evidence establishes that Mr Salama was harassed in the workplace by his fellow employees, including supervisors.

27 Mr Stephenson submits that, on the evidence, it would be open for to the Tribunal to find that that there is an arguable case that race was one of the reasons behind Qantas' decision to retrench Mr Salama.

Complainant's Evidence

Allegation 1: Extended probation

28 In May 1993 Mr Salama was transferred from his position as storeman to Cashier/Cargo Agent. Initially he was appointed on the basis of a six-month probationary period. According to Mr Salama this probationary period was repeatedly extended without explanation and for no apparent reason. To his knowledge, at no time was his work as Cashier/Cargo agent the subject of criticism by management or customers. According to Mr Salama, management never raised with him any concerns about his work performance. Nor had he received a warning or any other disciplinary action on account of his performance.

Allegation 2: Harassment by Supervisor

29 Mr Salama's duties as a Cashier/Cargo Agent included balancing petty cash and preparing a daily bank reconciliation. According to Mr Salama, when he worked alone he had no difficulties performing these tasks. However, on those occasions when he worked with Roger McKenzie, he claimed Mr McKenzie gave him a "hard time" and criticised his work. This caused him to lose confidence and make mistakes.

30 Mr Salama gave evidence that on those occasions when he could not reconcile his daily cash balance Mr McKenzie had instructed him to make up the difference out of petty cash. Mr Salama said he was uncomfortable with this approach but went along "because I don't like problem with this guy".

Allegation 3: Denial of opportunities to develop new skills

31 According to Mr Salama, throughout the period when he was employed as a Cargo/Cashier Agent, (approx May 1993 to May 1995) he was only given the opportunity to carry out so-called "cashier duties". He said he observed his colleagues holding comparable positions being given the opportunity to undertake what he called "cargo duties". He claims that, despite repeated requests to management, he was denied the opportunity to learn the other half of his job.

Allegation 4: Inadequate Training - Cashier/Cargo Agent

32 According to Mr Salama, in contrast to other new appointees, he received limited on-the-job training as a Cashier/Cargo Agent. He claimed that after only two or three weeks he worked alone from 7 am to 5 pm.

Allegation 5: Compulsory English Classes

33 Mr Salama gave evidence that Mr McKenzie directed him to attend English language classes. In his opinion this tuition was unnecessary. According to Mr Salama, his [English] teacher said, "there is no need for you to attend as your English is fine".

Allegation 6: Failure to provide uniforms

34 Mr Salama alleged that he was not supplied with a company uniform until about 18 months after his appointment to the position of Cashier/Cargo Agent. In contrast, Mr Salama claimed that he observed other staff being issued with uniforms immediately after appointment.

Allegation 7: Computer Course

35 In or about May 1995, Mr Salama was transferred to work in the export document section of Qantas in a clerical position. In this position he was required, among other things, to create and file flight folios.

36 According to Mr Salama, in about November 1995 he was directed by management to attend a two-week training course, which covered among other things computer skills. Mr Salama said that management gave him late notice of the course, causing him to miss the first day.

37 Students attending the course were required to sit an exam. Mr Salama said he was given only one day's notice of the exam. This was in contrast to other students who were told of the exam at the commencement of the course. Mr Salama said that on the day before the exam he was instructed by management to work back. Accordingly he did not have the opportunity to prepare for the exam. He failed the examination.

38 Mr Salama said he did not complete the second week of the course as he was instructed to return to work.

Allegation 8: Workplace Harassment

39 Mr Salama gave evidence that when he commenced as a cashier in May 1993 two work colleagues said to him "How does an Arab get a cashier's position? "

40 In October 1996 Pamela Mangafas, Employee Relations Officer, conducted an investigation into a complaint made by a female employee concerning sexual harassment in Qantas' Export Document Section. In the course of her investigation, Ms Mangafas interviewed all staff working in that section, including Mr Salama. In a report dated 3 October 1993 Ms Mangafas noted that some employees reported that Mr Salama was subject to poor treatment by a number of colleagues, including Sunil Kumar. Mr Salama claimed Mr Kumar was his supervisor.

41 Ms Mangafas found, among other things, that a member of staff targeted some of his colleagues, including Mr Salama, for ridicule. She noted, "...there is a workplace culture that has developed in the area which condoned behaviour that is inappropriate"

Allegation 9: Roster Arrangements

42 Mr Salama gave evidence that from 1993 onwards he was treated differently to other employees in respect of roster arrangements. He claimed his name appeared on a separate part of the roster and that during this period he was unable to work overtime.

Allegation 10: Management inaction to complaints

43 Mr Salama claims that from 1993 onwards he complained on a number of occasions to people in authority, including Roger McKenzie, Alfredo Schiavo, Fabio Licessi and Pamela Mangafas about various issues relating to his employment including the extension of his probationary employment. These complaints, claimed Mr Salama, were ignored.

44 According to Mr Salama, when a female member of staff lodged a complaint of sex harassment, management [Ms Mangafas] acted promptly and carried out a "full scale investigation."

Findings and Conclusions

Direct Discrimination

45 The complainant's case is cast as a complaint of so-called "direct discrimination." In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 an Appeal Panel of the Tribunal, after considering the leading authorities, set out the following question to be determined in all cases of direct discrimination: Did the respondent, on the ground of the complainant's race, treat the complainant less favourably than it treated or would have treated a person not of his race in the same circumstances or circumstances that were not materially different? This test involves two elements labelled by the Appeal Panel as "different treatment" and "causation".

46 For Mr Salama's case to succeed he must establish on balance that:

First, Qantas in ending his employment treated him less favourably than a non-Sudanese person would have been treated in circumstances that are the same or not materially different; and,

Second, that if so, the reason for this less favourable treatment was his race.

47 For the purpose of the application before us we must determine whether there is any evidence that, if accepted, would support a finding that these two elements have been made out.

Different treatment

48 The first element to be determined is whether Mr Salama was subjected to less favourable treatment than a person not of his race in the same circumstances or in circumstances which were not materially different.

49 It is conceded for Qantas that the termination of Mr Salama's employment would be less favourable treatment when compared to a person whose employment was not terminated. But as Ms Eastman points out no attempt has been made by Mr Salama's representatives to identify an actual comparator i.e. an employee of another race in the same circumstances or circumstances that were not materially different from Mr Salama. The complainant's case has apparently proceeded on the basis that it is enough to establish that Mr Salama has been subjected to a detriment.

50 We have before us scant evidence about those Qantas employees who were not selected for compulsory retrenchment. During the relevant period, Qantas employed staff from a range of different racial and ethnic backgrounds at the Sydney Terminal. A number of Mr Salama's colleagues in comparable positions were not made redundant. It is apparent that of this number some, if not all, were not Sudanese.

51 It is difficult to say from the evidence before us whether it is appropriate to use any of Mr Salama's colleagues who were not selected for retrenchment as a basis for comparison. We have no evidence for example of whether any of this group were in a comparable position to Mr Salama in terms of work performance, history, length of employment and any other relevant factors? This raises the interesting issue as to how much detail is required to establish that the nominated comparator is an appropriate basis for comparison. In a case such as this, is it sufficient merely to point to a colleague not of the complainant's race who occupied a comparable position and who was not retrenched or, must the complainant adduce evidence to refine the basis of comparison?

52 For the purpose of this application, we proceed on the basis that an employee not of Mr Salama's race who was not retrenched constitutes an appropriate basis for comparison.

Causation

53 The critical issue for determination is whether there is any evidence, which, if accepted, would support a finding that one of the reasons Mr Salama was dismissed, was his race, or a characteristic of his race.

54 It is conceded for the complainant that there is no direct evidence that race played any role in this decision. However Mr Stephenson contends that there is evidence, which would support the Tribunal drawing such inference. It is not in issue that Mr Salama was selected for retrenchment because he did not have the range of skills Qantas deemed necessary for a Freight Operations Agent.

55 Mr Stephenson contends that such a decision was, in effect, inevitable, because Qantas' conduct and that of its employees denied Mr Salama the opportunity to obtain the skills and experience necessary to carry out the requirements of his position. Had it not been for this treatment, Mr Stephenson asserts, Mr Salama would not have found himself in the vulnerable position, which effectively "justified" Qantas' decision to retrench him. Mr Stephenson contends that we are entitled to draw the inference from the totality of the evidence before us, in particular that relating to the harassment of Mr Salama by his colleagues, that Mr Salama was denied the opportunity to succeed in his position because of his race.

56 Before analysing this evidence we make the following observation. Some of Mr Salama's evidence was characterised by a high degree of generalisation and lacked detail about many of the matters of which he complains. The statements filed by him (Exhibits B and C) were prepared without the benefit of legal assistance and many of the claims set out in those documents were of a broad and general nature. Similarly, in oral evidence many of his claims were broadly described. This difficulty was compounded by the fact that Mr Salama's first language is not English. In assessing the evidence we have taken these factors into account and construed any ambiguities or lack of exactness in the evidence in Mr Salama's favour.

57 Before us is some evidence which if accepted may support a finding that Mr Salama was not given the opportunity to acquire the training, skills and experience necessary to meet the demands of his position (Allegations 3, 4 and 7). We understand Mr Stephenson to argue that these missed opportunities must be seen in the broader context of a work environment where Mr Salama was singled out for poor treatment (Allegations 1,6, 9 and 10) and was harassed by colleagues (Allegations 2, 5 and 8). The issue for us to determine is whether Mr Salama was denied these opportunities on account of his race. Race, contends Mr Stephenson, can be the only plausible explanation for this different treatment.

58 The harassment allegations are central to Mr Stephenson's submission. We understand it to be argued that three incidents support the contention that Mr Salama was the victim of racially based harassment/abuse or general harassment/abuse because of his race. We will refer to this conduct as "race harassment".

59 The first harassment allegation concerns the findings made by Ms Mangafas in her report dated 3 October 1996. The second relates to offensive comments said to have been made by some of Mr Salama's fellow employees in 1993: "How does an Arab get a cashiers position?" The third relates to Mr Salama's treatment by Mr McKenzie.

60 It is useful to place Ms Mangafas' report in context. In September 1996 a female employee in the Export Document section of Qantas, where Mr Salama then worked, complained to Qantas management that colleagues had sexually harassed her. [No allegation was made in respect of Mr Salama.] Ms Mangafas was appointed to investigate those allegations. She found the complaints broadly substantiated and the offending employees were disciplined.

61 In the course of her inquiries, Ms Mangafas broadened her investigation to determine, among other things, whether, in the 12-18 months period preceding the complaint, colleagues had subjected Mr Salama to "inappropriate treatment".

62 A number of employees reported to Mrs Mangafas that they observed Mr Salama being subjected to "pretty poor" treatment by some of their colleagues including, Mr Sunil. The summary of the record of interview with Mr Salama states, "Faisal stated that he was unaware of any problems in the workplace relating to the behaviour of others. (There is some question with regard to Faisal's level of literacy and comprehension, although he states he understands English well.)"

63 Ms Managafas concluded that a staff member, Mr Dutt, involved himself and initiated some of this behaviour i.e. use of bad language, offensive jokes, making fun of others and speaking to staff in a derogatory manner. He targeted certain staff for ridicule including Mr Salama and encouraged others to join in. She further found that a workplace culture had developed which "condoned behaviour that is inappropriate; senior staff and supervisors are not equipped to deal with or resolve harassment issues in the workplace; staff do not feel confident that their complaints will be adequately dealt with without reprisal or victimisation by other staff."

64 Ms Mangafas found that certain staff targeted Mr Salama and others with "inappropriate behaviour" but her report provides no guidance as to what she meant by that term. There is no express reference in the report to Mr Salama being subjected to racist taunts or any other race, ethnic or language-related harassment. Not surprisingly, given that the trigger for the report was a complaint of sex harassment, the report is punctuated with references to sex harassment. The report makes no direct reference to race or race harassment.

65 Mr Stephenson characterises the Managfas report as evidence that Mr Salama was subjected to a racially hostile work environment. We do not accept this view of the report. While the report clearly indicates that Mr Salama was ridiculed by a small number of colleagues, there is nothing on its face to suggest that this harassment had a racist flavour or was conducted on racial or ethnic grounds. We accept Mr Stephenson's argument that, as identified by Ms Mangafas, Qantas staff lacked confidence in management's capacity or will to deal with the harassment of Mr Salama and others. However, to substantiate the claim of race harassment there must be some evidence that would support an interpretation of the report that Mr Salama had been ill-treated because of his race.

66 The only mention in Mr Salama's evidence of the Mangafas Report is in the context of what he sees as the disparate treatment given to his colleague's sex harassment complaint with that of his own complaint. According to Mr Salama, his complaints were ignored while his colleague's were thoroughly investigated. There is simply no evidence that Mr Salama sought to complain to Ms Mangafas or indeed anyone in management of race harassment.

67 In his statement to the Tribunal (Exhibit B) Mr Salama states that all the staff [in the Export/Import team] "...knew I was unhappy or uncomfortable with my job as a result of the treatment or back-biting towards me." He stated that he believed this backbiting was because of his race but does not explain what he means by this or the grounds on which he drew this conclusion. In examination-in-chief, when asked about his treatment by colleagues from 1993 onwards, the only example cited by Mr Salama concerned Mr McKenzie (to which we shall return).

68 We do not accept the submission that the Mangafas report alone or read together with Mr Salama's own evidence can be characterised as evidence of race harassment. The clear evidence was that Mr Salama was poorly treated by some of his employees for some or all of the 12-18 month period before September 1996. However we do not know what form this harassment took or why it occurred. No doubt, as stated by Mr Salama, he holds the firm belief that he was so treated because of his race. But, in the absence of any supporting evidence, this belief is not sufficient to base a finding of race harassment. It may be that throughout all or some of the period March 1995 to September 1996 Mr Salama was racially harassed (or abused) by some of his colleagues. However, the evidence before us, taken at its highest, does not support such a finding.

69 The second alleged incident of race harassment by an employee concerns Mr McKenzie. As noted above, Mr Salama claims that Mr McKenzie "picked upon" his work making him lose confidence and forced him to attend unnecessary language classes. In addition, Mr Salama accused Mr McKenzie of suggesting he adopt certain improper accounting procedures. While the evidence at its highest could support a finding that Mr McKenzie "picked on" the complainant, in our view there is no evidence that he did so because of race. We do not accept that it follows that Mr McKenzie "picked on" Mr Salama on the basis of race because he forced him to attend English classes.

70 In our view, the only clear evidence of any race abuse is the remarks said to have made to Mr Salama in 1993 upon his appointment to the position of Cashier/Cargo Agent. If accepted, this evidence may support a finding that Qantas through its employees unlawfully discriminated against Mr Salama in respect of his conditions of employment, contrary to the provisions of s 8(2)(a) of the Act. However, this is not the subject of our inquiry. This incident is only relevant to our inquiry if it can be established that there is some causal link between it, the subsequent decisions that allegedly resulted in Mr Salama being denied training and other opportunities and, critically, the final termination decision. Mr Salama told us in evidence he did not know who made these offensive remarks. We simply do not know if they were made by a person who occupied a position of authority or influence within Qantas or indeed a person who had any association with the section in which Mr Salama worked at that time. In any event, the remark made in 1993 must be considered very remote from events that took place several years later.

71 Can it be said that there is any evidence on which to base a finding that one of the reasons Qantas allegedly denied Mr Salama training and other opportunities, thereby jeopardising his on-going employment, was his race? In the absence of any direct evidence, Mr Salama must establish that there is some evidence on which the Tribunal could properly draw such an inference. The evidence, taken at its highest, shows that in 1993 Mr Salama was subject to a single incident of verbal racial abuse by persons unknown. The evidence also shows that for part or all of the 12-18 months preceding September 1996, he was subjected to harassment of an indeterminate nature for reasons unknown by colleagues including a supervisor. Does this evidence, together with the evidence of Mr Salama's claims of general unfair treatment, provide any basis for the drawing of the inference that race played a role in the various decisions which purportedly denied Mr Salama the opportunity to succeed in his position?

72 We are not satisfied that it does. There are simply too many unknown factors in the evidence before us. Taken at its highest, the evidence for Mr Salama shows that a person unknown racially abused him once in 1993 and that he was otherwise ridiculed over a period of up to 18 months by members of Qantas staff.

73 There are any numbers of reasons why a person or a group may insult or harass another individual. The Act itself lists some of those grounds, but there are many other which spring to mind. If Mr Salama was insulted in 1996, it could have been for one or more reasons or on one or more grounds. However we do not know what they are because he has not provided the relevant evidence.

74 It is possible that Mr Salama was less favourably treated than other employees throughout the period 1993 to October 1997 for reasons to do with his race. However, there is no direct evidence that this was the case, nor, in our view on the evidence available to us, could such inference be drawn. It follows, therefore, that there is no basis on which a finding could be made that the final decision to terminate Mr Salama was contaminated by considerations of race. Mr Salama has not been able to provide the critical link in the chain of evidence, which would provide the legal basis for an arguable case.

Indirect Discrimination

75 As we noted, the complainant's case is cast as a complaint of so-called "direct discrimination". In the interests of completeness we will examine whether the complaint could succeed if characterised as a complaint of indirect race discrimination as defined in s 7(1)(c) of the Act.

76 For a complaint of indirect discrimination to succeed, Mr Salama must establish on balance: first that Qantas required him to comply with a requirement or condition; second, that a substantially higher proportion of non-Sudanese employees comply, or are able to comply, with that requirement or condition; third, the requirement or condition is not reasonable having regard to the circumstances of the case; and fourth he does not comply, or is not able to comply, with the requirement or condition.

77 We have no evidence before us of any condition or requirement imposed by Qantas. Nor is there any evidence that Mr Salama was unable to comply with any condition or requirement.

78 Accordingly in the absence of any evidence, which addresses the critical elements of indirect discrimination, this complaint must be dismissed.

Conclusions

79 For the reasons set out, we are of the opinion that this is an appropriate case in which to exercise the power to dismiss the complaint summarily on the basis that it lacks sufficient substance to proceed. We feel, to adopt the language of Sir Ronald Wilson in Assal, that it would be no kindness to Mr Salama to shrink from the exercise of the power given that it is so clearly warranted in this case. His complaint will be dismissed.

Orders

1. That the complaint be dismissed.

2. That the respondent is directed to file and serve written submissions in respect of its cost application on or before 14 days of the date of this decision;

3. That the complainant is directed to file and serve any submissions in reply within 14 days of receiving the respondent's submissions.