Karekar v TAFE Commission of New South Wales [2002] NSWADT 17 (12 February 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Karekar -v- TAFE Commission of New South Wales [2002] NSWADT 17

PARTIES: APPLICANT

Nadkishore Karekar

RESPONDENT

TAFE Commission of New South Wales

FILE NUMBERS: 991007

HEARING DATES: 06/04/2001, 26/07/ 2001

SUBMISSIONS CLOSED: 26/07/2001

DECISION DATE: 12/02/2002

BEFORE: Goode P - Judicial MemberAlt M - MemberMcDaniel M - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Karekar v TAFE Commission of New South Wales [2000] NSWADT 187

Waters & Ors v Public Transport Corporation [1991] HCA 49; (1991) EOC 92-390

Waterhouse v Bell (1991) EOC 92-376

APPLICATION: Race Discrimination - In work

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

J Bharati, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

E Brus, barrister

ORDERS: The complaint be dismissed.

Reasons for Decision:

Background

1 From 17 August 1992 to 11 July 1996, the Applicant was employed as a general storeman at the Respondent's Ultimo campus. He is an Indian.

2 He was originally employed in one of the Respondent's stores in the School of Electrotechnology (which comprises electronic trades, electrical trades and industrial electronics). The building he worked in was known as Building P. The following month, in September 1992, he was transferred to Building K. After initially performing general duties, he worked on the second floor of Building K in a store which, inter alia, provided supplies to the Industrial Electronics section. He remained in Building K until he was transferred back to Building P in July 1995.

3 The Foreman of Class Servicing, Mr Betts, was primarily responsible for his day to day supervision. The Head Teacher of Industrial Electronics was Mr Aguilera.

4 On 25 July 1995, the Applicant received a letter from Mr Shearston, Senior Head Teacher of Electrical Trades, transferring him to Building P. Mr Shearston worked in the Electrical Trades section in Building K, primarily on the ground floor and level 1.

5 While working in Building K, the Applicant came into regular contact with Mr Shearston and Mr Saad, a storeman who worked with Mr Shearston.

6 On 2 August 1996, the Anti-Discrimination Board (the "Board") received a complaint from the Applicant alleging that he had been subjected to unlawful discrimination on the ground of his race while employed by the Respondent. Inter alia, he alleged that:

he had been subjected to discriminatory treatment

offensive language had been directed at him

he had been unfairly transferred from Building K to a different location within the Ultimo Campus (Building P)

his resignation on 11 July 1996 amounted to a constructive dismissal.

7 Details of the passage of the complaint through the Board and its associated delay in reaching the Tribunal are set out in the Tribunal's earlier decision dismissing the Respondent's application under s 111(1) of the Anti-Discrimination Act (the"Act") : see Karekar v TAFE Commission of New South Wales [2000] NSWADT 187.

The Applicant's Case

8 We understand the Applicant's case to be that the Respondent discriminated against him on the ground of his race, in contravention of s 8(2) of the Act, in the following ways:

(i) by affording him less favourable terms and conditions of employment

(ii) by subjecting him to detrimental treatment during the course of his employment

(iii) by constructively dismissing him.

Section 8(2)(a) - Employment Conditions

9 The case in respect of the first category is pressed on two bases:

that Mr Shearston directed him to do "racially motivated unauthorised extra work" on many occasions over a period of 2 years, and on one occasion said to him that "Indians are stupid".

that over a period of 18 months, Mr Saad used offensive language towards him, issued orders to him without authority, interfered with his duties, unfairly criticised him, harassed him, and generally caused him a lot of distress.

Section 8(2)(c) - Detriment

10 The case in respect of the second category embraces both the first and the third categories (see below).

Section 8(2)(c) - Dismissal

11 The case in respect of the third category is put primarily on the basis that Mr Shearston did not have the authority to transfer the Applicant to a different location within the School of Electrotechnology. The Applicant maintains that the only person who had the authority to transfer him was Mr Betts. (It appears that there was no reduction in pay attached to the transfer.)

12 As a result of the discriminatory treatment he received, the Applicant alleges that he suffered emotional distress and ill health, leaving him with no choice but to resign.

13 He seeks an apology from the Respondent, financial compensation and reinstatement.

The Respondent's Case

14 The Respondent concedes that the Applicant is an Indian. Otherwise, it denies the allegations and denies that its conduct falls within s 8(2) of the Act.

15 It maintains that Mr Shearston had the authority to transfer the Applicant from Building K to Building P and that the transfer was based solely on the rationalisation of the Electrotechnology Division and the educational needs of the students. It further maintains that the treatment the Applicant received from both Mr Shearston and Mr Saad had nothing to do with his race.

Relevant Provisions of the Act

16 Sections 8(1) and (2) provide:

"(1) It is unlawful for an employer to discriminate against a person on the ground of race:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment,

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

(2) It is unlawful for an employer to discriminate against an employee on the ground of race:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment."

17 Section 7 sets out what constitutes discrimination on the ground of race. Relevantly, s 7 states:

"(1) 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 . . . . the perpetrator:

(a) 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

(b) . . . .

(c) . . . .

(2) For the purposes of sub-section (1)(a) . . . ., 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. "

18 Section 4A of the Act makes it clear that provided the Applicant's race is one of the reasons for the Respondent's conduct, the conduct will still be regarded as unlawful, even though the Applicant's race is not the dominant or a substantial reason for the conduct. Thus, for example, in relation to the Applicant's claim that the Respondent unlawfully discriminated against him by constructively dismissing him, provided the Applicant can establish that his race was an operative ground of his alleged dismissal, he is still entitled to succeed even though there may have been additional reasons for "dismissing" him which do not contravene the Act.

Inquiry under s 8(2)

19 In order to establish his case, the Applicant must prove, on the balance of probabilities, that the Respondent discriminated against him on the ground of his race in one or more of the ways specified in s 8(2). In doing so, the Applicant needs to prove, vicariously through the conduct of the Respondent's employees (specifically Mr Shearston and Mr Saad), that the Respondent treated him less favourably than in the same circumstances, or in circumstances which are not materially different, it treats or would treat a person of a different race.

20 It seems clear that the inquiry under s 8(2) of the Act is directed to the ground of the alleged differential treatment afforded to the Complainant. In this regard, even if the Respondent had no motive or intention to discriminate, its conduct may still be characterised as discriminatory within the meaning of s 8(2). This view is consistent with the underlying philosophy of the Act as well as with a significant line of authority : see, for example, the joint judgment of Mason C J and Gaudron J in Waters & Ors v Public Transport Corporation [1991] HCA 49; (1991) EOC 92-390 at 78, 674 and the judgment of Clark JA in Waterhouse v Bell (1991) EOC 92-376 at 78, 589-78, 590.

The Evidence and Our Findings

21 In order to determine the issues raised by the various claims of unlawful discrimination, it is necessary to consider the evidence presented in the respective cases for the Applicant and the Respondent in some detail. We discuss the evidence and our findings in respect of each claim in turn below. It is convenient to deal first with the claim that the Respondent unlawfully discriminated against the Applicant on the ground of his race by constructively dismissing him.

THE "DISMISSAL"

The Applicant's Evidence

22 The applicant gave evidence that Mr Shearston did not have the authority to transfer him from Building K to Building P and said that the only person who was authorised to do this was Mr Betts. The Applicant also gave evidence that on some occasions, Mr Shearston directed him to do work which he [the Applicant] alleged was beyond Mr Shearston's authority. Of particular significance was an incident which occurred about one month before the transfer. He said he had been directed by Mr Shearston to "go downstairs and move . . . material" for him and when he repeatedly declined to do so, Mr Shearston got upset and walked away, audibly making the remark "Indians are stupid".

23 The Applicant also said that Mr Shearston asked him on other occasions to move material or to prepare something for him and that, in most instances, he had done whatever had been asked of him. Although it was not his responsibility to do the work of the storemen who worked directly for Mr Shearston, he said he complied with the requests because he was fearful of losing his job.

24 The Applicant relies on Mr Shearston's alleged comment "Indians are stupid" (which was allegedly made approximately one month before his transfer) to support his claim that Mr Shearston's decision to transfer him without authority was racially motivated and contravened s 8(2)(c).

25 While there is no direct evidence that Mr Shearston's other alleged unauthorised directions to the Applicant were racially motivated, the Applicant also relies on the alleged comment "Indians are stupid" to support his claim that Mr Shearston's directions were made on the ground of his race in contravention of s 8(2)(c).

26 The Applicant further relies on the fact that the letter transferring him to Building P was received on 25 July 1995, the day after he had forwarded a letter of complaint to the Respondent (signed by the Applicant and eight other storemen) in relation to Mr Saad's alleged offensive behaviour. The Applicant said he was the author of the letter. The letter was forwarded to Mr Betts, Mr Bate, Head of Studies, Electrotechnology and Mr McRae, Head of Studies, Transport.

27 The Applicant said that he was so distressed by both the detrimental treatment he received and the decision to transfer him that he was unable to work from 31 July 1995 until 11 July 1996, the date of his resignation. It appears that he was on sick leave and subsequently other leave during this time.

The Respondent's Evidence

28 Mr Shearston gave evidence stating the following:

He had not made the alleged remark "Indians are stupid".

His alleged directions to the Applicant were neither unauthorised nor racially motivated.

He was authorised to transfer the Applicant to Building P and had done so after consulting Mr Betts.

The Applicant's transfer was based on the educational needs of the Electrotechnology students, not the Applicant's race.

The Applicant's transfer arose as a consequence of the closure of the K / 211 store (and the opening of a smaller store, K / 206), the rationalisation of the Electrotechnology Division and the proposed refurbishment of Building K.

The Applicant was considered to be the most suitable employee to be transferred to Building P to help with the shortage of staff in the mechanical / transport teaching area, particularly as he had prior experience in this area.

Both Mr Saad and Mr Clark, the two storemen who were kept in the Electrotechnology Division (rather than being transferred) had more experience than the Applicant in setting up and operating electrical stores.

The decision to transfer the Applicant was made before the complaint of 24 July 1995 was received in relation to Mr Saad.

Our Findings

The alleged remark "Indians are stupid"

29 On balance, we accept that Mr Shearston did not make the alleged remark "Indians are stupid". We found him to be a reliable and credible witness. Indeed, there was nothing about his demeanour or the way he gave his evidence to suggest that he was being evasive or that his version of events could not be accepted.

30 In making an assessment of the Applicant's credibility and in deciding whether to prefer his evidence over that given by Mr Shearston, we have taken into account the fact that English is not his primary language and that it was necessary for him to be assisted by an interpreter throughout the hearing. We also acknowledge that the circumstances surrounding his transfer genuinely occasioned him a great deal of anguish and stress. The evidence suggests that he was, at the relevant time, a conscientious, punctilious and hard working employee who was concerned to ensure that everything was done to comply strictly with the Respondent's procedures (as he understood them). Taking into account the many opportunities he had to complain about the circumstances of his transfer, we found it surprising that the very first time he mentioned that Mr Shearston had made the alleged remark, "Indians are stupid", was in his Points of Claim, over 4 years after the incident allegedly occurred.

31 At the Applicant's request, the circumstances of his transfer were investigated by the Assistant Faculty Director, Mr Roberts, and the Institute Director, Mr Puffet. In neither letter of complaint is there any mention of Mr Shearston's alleged remark. (See Exhibit A). Similarly, the Applicant's responses to the Respondent's findings make no mention of the remark either (see Exhibit A); nor does the Applicant's letter of complaint to the President (see Exhibit 1).

32 Given our finding that Mr Shearston did not make the alleged racial comment, there is no remaining evidence to suggest that either the transfer, even if it were unauthorised, or Mr Shearston's alleged requests of the Applicant to do "unauthorised" work for him, were grounded on the Applicant's race. Nonetheless, for the sake of completeness, we now turn to discuss whether Mr Shearston exceeded his authority in transferring the Applicant.

WAS THE APPLICANT'S TRANSFER AUTHORISED?

The Applicant's Evidence

33 The Applicant's belief that his transfer was unauthorised was expressed as follows:

"Mr Shearston's trade was on the first floor. I was on the second floor. That was a completely different trade. According to me, I think that Shearston had no right to transfer me. I understood that the only person who had a right to transfer me was my supervisor and that is because he has passed me directions up until the last day."

"[Mr Shearston's] trade was completely different to mine and for my trade I had my own head teacher, his name was Frank Aguilera. At the time this transfer letter was issued, Frank Aguilera was on holidays and what I have to say is that at that point his approval was not taken."

34 In cross examination, the Applicant said that neither Mr Shearston nor Mr Aguilera had the authority to transfer him. He also said that he was upset about being transferred because he had been given the letter of transfer by "a wrong person". When asked by Ms Brus what was wrong with the work he was required to do in Building P, he said:

"I wasn't even to thinking about that, I was concerned that a wrong person has transferred me and why is this happening."

35 In essence, the Applicant's evidence was to the effect that if Mr Betts had transferred him to Building P, he would not have had a problem with the decision.

The Respondent's Evidence

36 Mr Shearston gave evidence that at the time he made the decision to transfer the Applicant, he was acting in the position of Head of Studies, Electrotechnology, while Mr Bate was on leave. He said that the overall planning of staff, as distinct from their day to day supervision, was done by the Head of Studies, in consultation with the Senior Head Teachers and Head Teachers. In his capacity as Senior Head Teacher, he said he reported to the Head of Studies. However, in Mr Bate's absence on leave, he said all Senior Teachers reported to him.

37 Mr Shearston also said that before he made the decision to transfer the Applicant, he sat down with Mr Betts to discuss who should be moved. He gave the following evidence:

"I didn't know that at the time that he'd start[ed] in Building P and that's where we wanted a storeman back in, in that mechanical area. Mr Brian Betts suggested that would be the best option to bring him back to Building P because he had previous experience there and knowledge."

38 In his capacity as Head of Studies, Electrotechnology, Mr Shearston said that he, not Mr Betts, was responsible for the "ultimate decision".

39 At the time of the transfer, he said Mr Aguilera was on long service leave but, in any event, it was not Mr Aguilera's responsibility to determine who should be transferred.

Our Findings

40 We are satisfied that in his capacity as Acting Head of Studies, Electrotechnology, Mr Shearston was authorised to make the decision to transfer the Applicant. We do not accept the Applicant's contention that Mr Betts, in consultation with Mr Aguilera (or in his absence, Mr Rose), was the only TAFE officer who was authorised to transfer the Applicant. This contention is at odds with the evidence given by Mr Shearston, which in the absence of any contrary documentary evidence, we have no difficulty in accepting.

41 It appears that the Applicant's belief, however genuine, is based on a misunderstanding. Simply because Mr Betts was responsible for his day to day supervision, it does not follow that he was authorised to make the ultimate decision to transfer him. Moreover, the fact that a copy of the letter of transfer was forwarded to Mr Betts suggests, as Mr Shearston said, that he was fully aware of the proposed transfer and had previously approved it.

42 We accept Mr Shearston's evidence that the Applicant's race played no part whatsoever in the decision to transfer him and that as Mr Saad and Mr Clark were both viewed as having more electrical store experience than the Applicant, it was preferable to transfer the Applicant to the mechanical / transport store in Building P where he had prior experience.

43 We also find that Mr Shearston was not exceeding his authority by requesting the Applicant to move material or to prepare something for him and that, in any event, such requests were not made on the ground of the Applicant's race.

44 We further find that no nexus has been established between the forwarding of the letter of complaint in relation to Mr Saad and the decision to transfer the Applicant. We accept Mr Shearston's evidence that at the time the decision was made, he was totally unaware of the existence and content of the complaint.

45 We find that there is no reliable evidence that the Applicant was constructively dismissed on the ground of his race. Accordingly, we propose to dismiss this claim.

THE APPLICANT'S EMPLOYMENT CONDITIONS

The Applicant's Evidence

46 As mentioned in para 9 above, the Applicant alleges that the Respondent discriminated against him on the ground of his race in contravention of s 8(2)(a), by affording him less favourable terms and conditions of employment. We have already found that Mr Shearston did not direct him to do "racially motivated unauthorised extra work". Accordingly, we now turn to discuss the Applicant's allegations against Mr Saad.

47 The Applicant gave evidence that Mr Saad's conduct towards him and other storemen was rude and offensive and that he was the main target of Mr Saad's harassment. Mr Toledo, a storeman in the Electrotechnology Division also gave evidence that Mr Saad used rude and offensive language when speaking to the other storemen. He also signed the letter of complaint in relation to Mr Saad on 24 July 1995.

48 The letter of complaint was signed by Tony Attard, Paul Cook, Peter Clark, Hassan Fawaz, Tim Fok, Carmelo Loreto, Narendra Prasad, the Applicant and Mr Toledo. It states the following:

"We the undersigned storem[e]n do not want to work with John Saad (Storeman Building K-109) anymore because of his offensive language, unnecessary cause of trouble relating to work, lying, back stabbing, etc, etc.

Enclosed copies will give you a fair idea about him, but there are many unwritten complaints most of the staff members are unhappy about him.

Looking forward to appropriate action.

. . . "

49 The evidence presented on behalf of the Applicant suggests that the other storemen who complained about Mr Saad's conduct represented a mix of racial origins ranging from Anglo-Saxons to people of Arabic, Filipino, Indian and Chinese origin. It is the Applicant's case that he was the main target of Mr Saad's harassment and, therefore, that it is open to the Tribunal to conclude that he received less favourable treatment on the ground of his race.

The Respondent's Evidence

50 Mr Saad gave evidence that he had been employed by the Respondent for a period of 16 years and that when he worked as a storeman at the Ultimo campus, his immediate supervisor was Mr Betts.

51 He conceded that he had displayed anger towards the Applicant on "a couple of occasions", once, when the Applicant had refused to assist with moving some furniture for the teaching staff and, on another occasion, when the Applicant had insisted that he sign for 4 board markers which had been requested by the teaching staff. He said that on the first occasion, he told the Applicant to "piss off" and on the second occasion, he said, "if it gets too hot in the kitchen why don't you get out". He said that he had been frustrated on both occasions.

52 When asked by the Judicial Member whether he had ever displayed anger towards any of the storemen who had complained about him he said:

"Well if you see the way they carry on you'd get pretty angry with them too just quietly."

He was also asked whether he considered that he had treated the Applicant any differently from any of the other store personnel, he said:

"No, I do not. He had a job to do the same as what I did and I did the job to the best of my ability and I asked for assistance and I was refused."

53 Mr Saad denied that the Applicant was the main target of his actions and said that none of his behaviour had been directed at him because of his race or ethnic background.

Our Findings

54 While the evidence suggests that Mr Saad may have behaved in a way which the Applicant (and other storemen) found offensive, there is no evidence that Mr Saad's treatment of the Applicant occurred on the ground of his race.

55 We accept Mr Saad's evidence that the Applicant was not the main target of his actions. We found Mr Saad to be a frank and forthright witness and accept that his tendency to become easily frustrated was not confined to the Applicant.

56 We find that the Applicant genuinely believed that Mr Saad specifically singled him out. However, even if he were singled out, there is no evidence, either direct or indirect, which supports the view that such treatment occurred on the ground of the Applicant's race. Accordingly, we propose to dismiss this claim.

DETRIMENTAL TREATMENT

Our Findings

57 It follows from our findings above, that we are not satisfied that the Respondent subjected the Applicant to detrimental treatment during the course of his employment, in contravention of s 8(2)(c). Accordingly, we propose to dismiss this claim.

CONCLUSION

58 We wish to state our view that had the Respondent (through either Mr Shearston or some other appropriate person) chosen to discuss the Applicant's proposed transfer with him in advance (rather than simply presenting him with the letter directing him to attend for duty in Building P), many of the misunderstandings associated with the transfer may well have been avoided.

ORDERS

59 The complaint be dismissed.