Kumaran v Rail Infrastructure Corporation & Anor [2005] NSWADT 30 (21 February 2005)

Last Updated: 21 February 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Kumaran v Rail Infrastructure Corporation & Anor [2005] NSWADT 30


PARTIES: APPLICANT
Indra Kumaran
FIRST RESPONDENT
Rail Infrastructure Corporation
SECOND RESPONDENT
Laughlin Executives Pty Ltd



FILE NUMBERS: 031116 & 031117

HEARING DATES: 20/05/2004-21/05/2004, 20/08/2004

SUBMISSIONS CLOSED: 21/08/2004



DECISION DATE: 21/02/2005

BEFORE: Rice S - Judicial MemberGill M - Non Judicial MemberO'Sullivan M - Non Judicial Member





LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Amery & ors v State of New South Wales (Director-General NSW Department of Education And Training [2004] NSWCA 404
Australian Medical Council v Wilson (1996) 68 FCR 46
Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272; (2002) 55 NSWLR 232
Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745
Dutt -v- Central Coast Area Health Service [2002] NSWADT 133
Feletti v Kontoulas [2000] NSWCA 59
Fraoucene v Caruana t/as GAC Property Management Services [2005] NSWADT 1
French v Gosford City Council [2003] NSWADT 273
Li & Anor -v- Westbus Pty Ltd & Anor [2002] NSWADT 260
Malec v J.C. Hutton Pty. Ltd. [1990] HCA 20; (1990) 169 CLR 638
Sellars v Adelaide Petroleum N.L. and Others [1994] HCA 4; (1994) 179 CLR 332
Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26

APPLICATION: Race Discrimination - In work
Victimisation

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: FIRST RESPONDENT
R Banks, solicitor & A Woods,solicitor
SECOND RESPONDENT
R Keller

ORDERS: 1. That the first respondent pay to the Applicant the sum of $2,000 as compensation for loss and damage.
2. That the complaint against the second respondent be dismissed.
3. The victimisation complaint against the first respondent is dismissed.
4. That each party shall pay their own costs.


Reasons for Decision:

REASONS FOR DECISION

Decision

1 For the reasons we give below, Mr Kumaran is successful in his complaint of discrimination against Rail Infrastructure Corporation, and unsuccessful in his complaint of victimisation.

History

2 Mr Indira Kumaran worked as an estimator at what was then Rail Services Authority of New South Wales (RSA) for three months in 1998. (RSA has since become Rail Infrastructure Corporation).

3 Although he worked there, Mr Kumaran was not employed by RSA. He had an agreement with an employment agency, Laughlin Executives Pty Ltd (Laughlin), in which he agreed that each assignment he accepted from Laughlin was a separate contract of employment with Laughlin. So Mr Kumaran was an employee of Laughlin, on assignment to RSA.

4 When RSA had sought from Laughlin assignment of an estimator, Laughlin sent Mr Kumaran for an interview. He was interviewed by Mr Peter Gill, a Senior estimator with RSA who then contacted Laughlin and accepted the assignment of Mr Kumaran’s services for three months.

5 After three months Mr Kumaran had not been told of his future status with RSA. He continued to attend to his assigned duties, and asked both RSA and Laughlin for advice as to his future. Mr Gill then told Laughlin that RSA no longer required Mr Kumaran’s services, and Mr Kumaran was told of this in June.

6 Mr Kumaran complained to the Anti-Discrimination Board of discrimination in employment on the ground of race.

Complaint

7 Mr Kumaran does not say that Laughlin discriminated against him. The conduct that he says was discrimination was the conduct of RSA, through its officer Mr Gill. No question arose on the facts of Laughlin’s aiding and abetting the conduct that Mr Kumaran complains of, and during the proceedings the Tribunal dismissed the complaint against Laughlin and excused Laughlin from further attendance at the inquiry.

8 While Mr Kumaran clearly complains of discrimination on the ground of race, it is not as easy to fit the circumstances of the treatment he complains of into the regime of the Anti-Discrimination Act 1977.

9 Mr Kumaran’s complaint is against RSA. He was not an employee of RSA, but was a contract worker in respect of whom RSA was a ‘principal’ (s4 Anti-Discrimination Act 1977). As his principal, RSA was not permitted (s10 Anti-Discrimination Act 1977) to discriminate on the ground of race

(a) in the terms on which it allowed him to work

(b) by not allowing him to work or continue to work

(c) by denying him access, or limiting his access, to any benefit associated with the work in respect of which the contract with his or her employer is made, or

(d) by subjecting him to any other detriment.

10 Mr Kumaran consistently framed his complaint as one of ‘termination of employment’. Strictly speaking, that is not a complaint he can make against RSA. The only employment relationship that was terminated was that between Mr Kumaran and Laughlin, and that occurred by operation of the terms of the contract between them. RSA did not terminate Mr Kumaran’s employment; rather, it chose to not offer him employment.

11 The actual terms of Mr Kumaran’s complaint identified conduct that, as the first respondent conceded in the manner in which it responded to the complaint, led to his not being employed by RSA. That conduct was conduct of Mr Gill, and occurred during the period of the assigned contract work, while RSA was Mr Kumaran’s principal. Thus Mr Kumaran’s complaint against RSA is as a contract worker in relation to the terms on which it allowed him to work, and possibly in relation to other detriment (s10 (a) and (d)).

12 Because Mr Kumaran’s period of assignment as a contract worker was the basis on which RSA could have made an offer of employment, Mr Kumaran’s complaint could be characterised, if an alternative were necessary, as arising under s8(a) and (b) of the Anti-Discrimination Act 1977, relating to the arrangements the employer makes for the purpose of determining who should be offered employment, and the determination of who should be offered employment

13 Mr Kumaran says that he was discriminated against in one of two alternative ways. He says that RSA treated him less favourably than in materially the same circumstances they treated or would have treated a person not of his race (direct discrimination). Alternatively he says that RSA required him to comply with a requirement with which a substantially higher proportion of persons not of his race were or would have been able to comply, which was not a reasonable requirement having regard to the circumstances of the case, and with which requirement he was not able to comply (indirect discrimination).

Direct discrimination

14 The treatment that Mr Kumaran complains of is the way that Mr Gill dealt with his written work. Mr Peter Gill was Mr Kumaran’s supervisor. Mr Gill’s evidence is that "Mr Kumaran was not performing at the required standard". He says that when Mr Kumaran asked him, around May or June, about his future status with RSA he told Mr Kumaran "I am still considering your performance due to the quality of your work presentation". The evidence points consistently towards Mr Kumaran’s complaint being one of indirect discrimination, that is one that involves the obligation to comply with a requirement.

15 Whether Mr Gill’s treatment of Mr Kumaran was direct discrimination is necessarily assessed under the Anti-Discrimination Act 1977 by reference to an actual or hypothetical comparator. There is no evidence that the other estimators, all of whom appear to have been in comparable circumstances and who were not of Mr Kumaran’s race, were treated differently. RSA conceded in their submissions that Mr Gill may have been harsh in the demands he made of Mr Kumaran, and Mr Kumaran certainly feels that this is so, but that is not a relevant consideration when asking whether there was less favourable treatment.

16 Mr Gill made no reference to Mr Kumaran’s race. It is only Mr Kumaran’s inference that his race was the ground for the way he was treated. While direct discrimination may be established on the basis of inferences (Li & Anor -v- Westbus Pty Ltd & Anor [2002] NSWADT 260 at [37]), and inference is often all a complainant of direct race discrimination has to rely on, there must nevertheless be evidence on which the inference can be based (see eg Dutt -v- Central Coast Area Health Service [2002] NSWADT 133 at [82-86]; Fraoucene v Caruana t/as GAC Property Management Services [2005] NSWADT 1 at [38]).

17 There is in this matter no evidence on which we can reasonably infer that treatment by RSA of Mr Kumaran was on the ground of Mr Kumaran’s race.

Indirect discrimination

18 Mr Kumaran complains that RSA required him to comply with a requirement with which a substantially higher proportion of persons not of his race were able to comply, which was a not reasonable having regard to the circumstances of the case, and with which he was not able to comply.

19 The issues we must decide are: did Mr Kumaran have to comply with a requirement? If so, what were its terms? Could he comply with it? Was it a reasonable requirement? Was a substantially higher proportion of persons not of Mr Kumaran’s race able to comply with it?

20 As we noted above, Mr Peter Gill was Mr Kumaran’s direct supervisor, and his evidence points consistently towards his having required Mr Kumaran to comply with a requirement. That Mr Gill did require Mr Kumaran to comply with a requirement, was conceded by the first respondent in submissions. In his evidence Mr Gill did not tell us explicitly what the terms of requirement were; it is for us to decide (Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26 at [27]).

21 Although Mr Gill referred to the position description that sets out the requirements for an estimator at the time that Mr Kumaran was at RSA, the document says only that "the incumbent should possess good communication . . . skills". That begs the question: what did Mr Gill call "good"?

22 Despite saying in his affidavit that Mr Kumaran’s overall performance was "rather average with [written] presentation skills . . . leaving much to be desired", Mr Gill said in oral evidence that what he meant to say was that Mr Kumaran’s overall performance was under average with poor written presentation skills.

23 In his affidavit (Exhibit 1) Mr Gill says that "[n]ot long after he commenced his engagement I became increasingly aware that Mr Kumaran was providing me with work that contained a number of spelling and typographical mistakes". Mr Gill drew our attention to examples of Mr Kumaran’s written work which, he says, was variously "grammatically incorrect", "verbose", "not logically ordered", "clumsy and unclear", "poorly written", "badly structured", "imprecise", of "poor sentence structure" "poor syntax" and "poor layout", with formatting mistakes and "inappropriate use of industry slang".

24 Mr Gill cited a number of examples of what he says are Mr Kumaran’s poor written skills, but only one from Mr Kumaran’s time at RSA. Mr Kumaran had written, on a fax cover page to an external party:

Please find attached invitation to quotation and information of Bored Piers for Slip Restoration of Stroud/Dungog Road.

Further detailed specifications &information are available at our office, address given above for your perusal.

25 Mr Gill says that the first paragraph shows poor grammar and syntax, and would have created an unprofessional impression of RSA. He says that the second paragraph is verbose and not logically ordered. He says that the text would more correctly read:

"Please find attached invitation to quotation quote and tender information of for Bored Piers to be constructed for the Slip Restoration of Stroud/Dungog Road".

Further detailed specifications &information are available at our office, address given above for your perusal. The contact details and office address are listed above.

26 Mr Kumaran was cross-examined on two documents (Exhibit D), and RSA made submissions on the documents. The documents are letters prepared by Mr Kumaran and corrected by Mr Gill. The corrections Mr Gill made do not relate to Mr Kumaran’s command of written English, but to the adequacy or appropriateness of words and terms used. For example the title ‘Availability of Materials and Goods’ is changed to ‘Conflict of Fan Details’, and the phrase ‘after the demolition’ is changed to ‘after at least partial demolition’. These corrections go to the substance, not the form of the documents, reflecting Mr Gill’s dissatisfaction with the type and range of information Mr Kumaran thought appropriate to include in a letter. The corrections to the fax, on the other hand, go to the form of the document, reflecting Mr Gill’s dissatisfaction with Mr Kumaran’s grammar and syntax.

27 Mr Gill’s readiness to correct Mr Kumaran’s written English extended to his evidence for this inquiry, in which he spent five pages identifying and commenting on the grammatical and spelling errors in two letters Mr Kumaran had written after his assignment with RSA had finished, to complain of his treatment by RSA. The relevance of this exercise is that Mr Gill "does not have any specific examples which demonstrate Mr Kumaran’s poor report or letter writing skills [but the letters] are typical of the style of writing I was almost always confronted with when Mr Kumaran presented me with his written work".

28 Mr Gill’s concern was, he says, that Mr Kumaran’s written expression "detracted from the quality of [his] work" and "reflected poorly on RSA as a professional organisation". In Mr Gill’s view "[i]t is unacceptable for an estimator to prepare a written report or document that cannot be easily understood by the reader, as the Estimator must clearly convey what is required and included in the scope of works".

29 Mr Gill was consistent in his oral evidence when explaining why Mr Kumaran’s written expression was inadequate: he said that he corrected Mr Kumaran’s written work for the sake of the client, because he believed that his approach was a better way of presenting the issue. He said that all his comments on Mr Kumaran’s work were in that vein. He says that "[w]hile some of the Division’s work was for internal clients [other Divisions of RSA]", work done for external clients was "expected to be of a professional standard and sufficiently clear to be useable by those clients".

30 Mr Gill, in answer to questions from Mr Kumaran, said that he had the same expectations of all estimators. He required a "reasonable standard" of English expression, so that what was written was correct, looked good, and resulted in others having a level of confidence in the Division. He was concerned not to create an unprofessional image of the RSA.

31 Mr Gill was frustrated by Mr Kumaran’s repeating his mistakes in subsequent documents. He says that he "had to correct almost all of [Mr Kumaran’s] written work. Virtually every document which Mr Kumaran had drafted would have to be reviewed a number of times and errors corrected before that document could be finalised or given to a client." Mr Kumaran denied this, saying that the corrections were occasional. It is not possible for us, on the evidence, to resolve this issue. Mr Gill says that the corrections "increasingly took up large slabs of my time, as I attempted to improve Mr Kumaran’s written work". Without being able to quantify it, we do accept that Mr Gill spent time correcting Mr Kumaran’s work.

32 Mr Gill denied that he failed to warn Mr Kumaran and to advise him of the need to improve his written skills. He said that what he did do was to make the corrections in Mr Kumaran’s presence. His evidence was that the standard of written communication he required of Mr Kumaran was conveyed by way of the corrections, and was implicit in that process.

33 It became apparent during Mr Gill’s evidence that Mr Kumaran’s written communication with external parties was very limited. Rather, his written work was largely for internal purposes, to support documentation and correspondence sent by Mr Gill. Mr Gill usually had to agree with and sign off on work by Mr Kumaran. Correspondence that Mr Kumaran had with, for example, sub-contractors before documents went to tender was not included in the tender documentation. It went on file, where it was accessible to RSA management for review. Mr Gill says that Mr Kumaran had on one occasion prepared documents for a tender but the need for repeated and extensive corrections, taking a "large slab" of Mr Gill’s time, was such that Mr Kumaran was not again asked to do such work.

34 Mr Kumaran did however draft documents that went directly to external clients – the fax discussed above is an example. Mr Gill could not recall any external client reacting adversely, or at all, to any of Mr Kumaran’s written expression.

35 While the requirement to which Mr Kumaran was clearly subject concerned the way in which Mr Kumaran expressed himself in his written work, less clear is what the terms of that requirement were.

36 The evidence shows that the issue raised for Mr Gill by Mr Kumaran’s written expression was the amount of time that Mr Gill had to spend correcting Mr Kumaran’s documents. Mr Kumaran’s written expression caused Mr Gill to spend what he saw as an inappropriate amount of his own time correcting Mr Kumaran’s draft documents. He did this because, in his view, Mr Kumaran’s written expression was such that the documents would have an adverse affect on the Division’s reputation, reducing confidence in the Division’s technical ability. Mr Gill suggested in his written statement that he did this as well because of the risk that Mr Kumaran’s documents would not be easily understood and would not clearly convey what is required and included in the scope of works.

37 Mr Gill was consistent in his evidence in expressing the first of these concerns. The second of the concerns he expressed once in his affidavit. He gave no examples of Mr Kumaran’s written work that risked conveying wrong or inaccurate information, or information inaccurately. The evidence shows that of the two concerns the predominant one in Mr Gill’s mind was as to the Division’s reputation and perception of its professionalism.

38 The evidence shows that Mr Gill required Mr Kumaran to express himself in written English to a standard that, in Mr Gill’s view, would convey accurately, in content and form, what was required and would not compromise the Division’s professional reputation. A different way of expressing the standard required by Mr Gill was that Mr Kumaran’s work would not take him an inordinately long time to have to correct. It amounts to the same thing – the time Mr Gill took to correct Mr Kumaran’s work was a function of what manner of expression, in Mr Gill’s view, would convey accurately what was required and would not compromise the Division’s professional reputation.

39 In light of the evidence we find that the requirement was that, in written work, certain matters be addressed (content), and written English be used (form), to a standard that, in Mr Gill’s view, would neither convey inaccurate information nor compromise the Division’s professional reputation. The requirement as it was concerned with content was to meet a standard reasonably expected of an estimator with experience. The requirement as it was concerned with form was to meet Mr Gill’s own expectations of written English expression.

Reasonableness

40 To the extent the requirement was concerned with content it was a reasonable requirement. It was simply a requirement that someone working as an estimator do what is expected on an estimator. It may be, as the first respondent conceded in submissions, that Mr Gill was too harsh in his expectations of Mr Kumaran in this regard, but that is a matter of direct discrimination which we have already dealt with. In itself the requirement as to content was not unreasonable in the circumstances.

41 To the extent the requirement was concerned with form, Mr Gill did not set out or describe what standard of written English he expected. At no time did Mr Gill say to Mr Kumaran what standard he expected of his written English. Mr Kumaran was not told, for example, that he should ensure that his grammar and syntax conformed to ordinary Australian usage. He was not told, by reference to a particular error, how he should express himself differently on the next occasion. The requirement was simply that the form of Mr Kumaran’s written expression conform to Mr Gill’s expectations. The unreasonableness of that requirement is illustrated by looking at Mr Gill’s corrections of the fax cover sheet (see paragraphs [24]-[26] above).

42 Judged by ordinary standards of English expression, Mr Kumaran’s written text contains errors, most obviously "quotation" (a noun) instead of "quote" (part of the infinitive verb), and the preposition "of" instead of "for". The placing of the phrase "for your perusal" at the end of the sentence could fairly be described as ambiguous, confusing or simply wrong.

43 In his corrections Mr Gill himself shows a degree of grammatical inconsistency. Although he would insert the definite article before "Slip Restoration", he would not do so before "Stroud/Dungog Road", and he would not insert the indefinite article before "invitation". Mr Gill chooses to insert an adjective before "information", but would not do so before "specifications".

44 Mr Gill’s evidence is that the standard of expression he expected of Mr Kumaran had been "implicit" in his corrections. Mr Gill did not speak to Mr Kumaran about Mr Kumaran’s standard of written expression, but conveyed his expectations through the corrections he made. Consistently with this approach, Mr Gill refers in his affidavit to Mr Kumaran’s "failure to make the corrections I had indicated" (emphasis added).

45 Mr Blythe, for Laughlin, says that Mr Gill had told him in April "Yesterday I had to counsel [Mr Kumaran] about his written communication skills". Mr Gill does not make this claim in his evidence, and Mr Kumaran denies that such counselling ever took place. Only Mr Blythe’s recollection of a comment indicates that Mr Gill counselled Mr Kumaran, and we are not satisfied that such ‘counselling’ took place. If it did there is not evidence as to its content, and certainly not that it amounted to an explanation of the standard of written English Mr Gill required.

46 Mr Gill says in his affidavit that after the assignment was terminated, he said to Mr Kumaran that the reason he was not employed by RSA was his poor written English. Mr Gill’s evidence is that he then said to Mr Kumaran "I have spoken to you about this on several occasions". Although Mr Gill says that this is what he said, there is no other evidence of his having spoken to Mr Kumaran during the course of the assignment, and no suggestion by Mr Gill that, even if he did speak to Mr Kumaran, it was to explain the standard of written English he required.

47 We are satisfied that, as Mr Gill says, the standard of expression he required of Mr Kumaran was merely "implicit" in his corrections. How then was Mr Kumaran to know on the next occasion whether, for example, definite or indefinite articles were required, or adjectives were preferred? In these circumstances the requirement, to the extent it was concerned with form – Mr Kumaran’s grammar and syntax – was not reasonable.

48 It will often in business be reasonable to require that written English be of a certain standard. But such a requirement might be unreasonable in circumstances where, as in this case it was, its terms are such that compliance with it is a matter of subjective judgment by another person, and that person fails to give guidance as to how the requirement might in future be complied with.

Non-compliance

49 It is Mr Gill’s evidence, borne out by his conduct at the time, that Mr Kumaran was unable to comply with the requirement. Indeed, RSA acted as it did precisely because of what it saw as Mr Kumaran’s non-compliance. Would a substantially higher proportion of people not of Mr Kumaran’s race have been able to comply?

Compliance by people not of his race

50 Mr Kumaran is Sri Lankan by birth and upbringing. English is not his first language. Although he speaks English confidently, he speaks it in a way that sounds accented to a person for whom English is a first language. His language, grammar and sentence structure is different from that of a person for whom English is a first language. His uncontested evidence – although it may not in this jurisdiction even need to be a matter of evidence – is that most people of his race speak English as he does. We accept that this is so.

51 Because the requirement in this case is understood only by reference to Mr Gill personally, and to his view as to when written English is of an acceptable standard, it is appropriate to note that Mr Gill is Anglo-Saxon and English is his first language.

52 The group of people among whom the comparison must be made consists of those people subject to the requirement, that is: estimators working under Mr Gill at RSA. As the first respondent submitted, the pool is, effectively, anyone capable of performing an estimator’s duties. Any number of people of any race could have worked under Mr Gill at RSA – relevantly, the pool of people within which the comparison is to be made encompasses people of all and any race including, for example, people of Anglo-Saxon background.

53 To the extent that the requirement meant having to anticipate, and to infer accurately from his corrections, how Mr Gill wanted matters expressed, people of any race might have been as unable as Mr Kumaran was to comply; as we noted above, some of Mr Gill’s expectations appear to have been as much a matter of choice as a matter of correct grammar. But to the extent that the requirement meant having to use spelling, grammar, syntax and structure in a way that would satisfy Mr Gill, in our view a substantially higher proportion of persons not of Mr Kumaran’s race, for example, a person of Anglo-Saxon background, would have been able to comply with the requirement than Mr Kumaran was able to.

Findings

54 In summary, we are satisfied that RSA, through Mr Gill, required Mr Kumaran to comply with a requirement with which a substantially higher proportion of persons not of Mr Kumaran’s race were able to comply, being a requirement which was not reasonable having regard to the circumstances and with which Mr Kumaran was not able to comply. That finding should be understood in the following context.

55 The words "on the ground of the aggrieved person’s race" after the word "if" in the opening paragraph of s7(1) have no work to do or are mere surplusage in relation to s7(c) and should be ignored (Amery & ors v State of New South Wales (Director-General NSW Department of Education And Training) [2004] NSWCA 404 per Beazley JA at [49]). It is not relevant whether Mr Kumaran’s inability to comply "flows from some immutable characteristic or from a different cause" (Australian Medical Council v Wilson (1996) 68 FCR 46 per Sackville J at 80, adopted in Amery per Beazley JA at [133-135]), and it is not necessary to identify the actual reason for the Mr Kumaran’s inability to comply (French v Gosford City Council [2003] NSWADT 273 at [63]).

56 Nevertheless, because relief could be refused if the failure to comply was because of unreasonable conduct on a complainant’s part (Amery per Hodgson JA at [177]), it is relevant to record our finding that Mr Kumaran’s inability to comply flowed from his race, due to which he does not write English as a native speaker would. It does not matter that Mr Kumaran with, say, training and practice might have had some chance of complying – the fact is that he could not comply (Australian Medical Council v. Wilson (1996) 68 FCR 46 per Sackville J at 79-80, adopted in Amery per Beazley JA at [133-135]).

57 In his evidence Mr Kumaran made light of the errors he made in his drafting, saying that the documents he prepared were only drafts. He said that he would have made more of an effort if he had known of the "the consequences", that is, that his services would not be required after the three month assignment. From this it might be said that Mr Kumaran’s inability to comply with the requirement flowed from, if not unreasonableness, then perhaps carelessness. There was evidence that Mr Kumaran was offered help with his written English, but not until after Mr Kumaran’s assignment to RSA was over.

58 In our assessment of Mr Kumaran’s evidence there was a degree of bravado involved in his evidence on this point –he was concerned to play down the seriousness of his mistakes, and to highlight what he took to be the unfairness of Mr Gill’s decision not to continue with his services. Mr Kumaran was quite simply unable to comply with Mr Gill’s requirement as to form, eg grammar, syntax and spelling, and was not wilful in persistently making what Mr Gill saw as errors – Mr Kumaran was indeed unable to meet the requirement.

Victimisation

59 After his assignment with RSA was terminated in June 1998, Mr Kumaran wrote to RSA and Laughlin, protesting against the decision, addressing what he knew to be RSA’s concerns about his English expression, and complaining of unfair dismissal. In October 1998 Mr Kumaran wrote to RSA alleging that their termination of his services was discrimination on the grounds of race and disability.

60 On 1 February 1999 Mr Kumaran complained to the Anti-Discrimination Board of discrimination in employment on the ground of race. Soon afterwards, on 17 February 1999 Mr Kumaran was interviewed by RSA for the position of estimator at Wagga Wagga, but was not appointed to the position.

61 Mr Kumaran complained to the Anti-Discrimination Board of victimisation by RSA arising from the Wagga interview and selection process. Mr Kumaran alleges that despite his not volunteering Mr Gill as a referee in the course of his application and interview for the Wagga position in February 1999, Mr Gill, of his own volition, might have been in touch with the selection panel and might have conveyed views that prejudiced the prospects of Mr Kumaran’s appointment. Mr Kumaran said in his complaint of victimisation "I had once again been penalised by Mr Gill to protect him against my racial discrimination complaint".

62 There is no evidence that that is the case. Mr Neil Macartney convened the selection panel for the Wagga position that Mr Kumaran applied for. His evidence is that of his own volition he telephoned someone – he thinks it might have been Mr Gill but cannot be sure – "to determine if Mr Kumaran had fitted into our workplace environment better than his referees had indicated was the case in relation to private contracting". He cannot remember what was said, nor did he keep a record. Mr Macartney’s evidence is that Mr Gill "did not initiate the enquiry and did nothing more than respond to my enquiries".

63 Mr Gill’s evidence is that he received a call in August 1998 from a Mr Bill Pigg, the Technical Services Manager for the Wagga region, who asked Mr Gill for his "impressions" of Mr Kumaran. He replied only by saying "Look, he wouldn’t be suitable for the position". Mr Kumaran had applied for a position at Wagga in August 1998 and was unsuccessful. It is not that application that is the subject of his victimisation complaint, but his later application in February 1999.

64 Mr Gill received a call from Mr Pigg in August 1998 that is not relevant to the victimisation complaint. We are satisfied, on balance that it was Mr Gill whom Mr Macartney called in February 1999. Mr Kumaran did not volunteer Mr Gill as a referee, and Mr Macartney kept no record of the call he said he made to Mr Gill.

65 We would not expect Mr Macartney, in the ordinary course of a selection process, to make inquiries of Mr Gill and, if he did, we would expect him to keep a record of the conversation. We note what Mr Gill agrees he said to Mr Pigg in August 1999 and infer that he said something similar to Mr Macartney in February 1999. There is no evidence that Mr Gill said what he said on the ground that Mr Kumaran had made allegations under the Anti-Discrimination Act 1977.

Damages

66 The Tribunal is able to order RSA to pay to Mr Kumaran damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of its conduct. The question that arises in the circumstances is what loss or damage was caused by RSA’s discriminatory conduct.

67 Mr Kumaran claims extensive economic loss, well in excess of the jurisdictional limit of $40,000, including economic loss calculated by reference to his income had he been employed by RSA at the conclusion of the three month assignment and continued in that employment to the time of the Tribunal’s inquiry.

68 At the time of his assignment, the employment relationship was complicated by the terms of the letter from Laughlin advising Mr Kumaran of the assignment:

My congratulations on your being offered the position of temporary Estimator with Railway Services Authority of NSW. . .

. . . your commencement date will be 23 February 1998, for a duration of three months, then becoming permanent.

69 Mr Kumaran says that his expectation, based on this letter, was that after three month period of probation he would become an employee of RSA. The evidence shows that the type of employment on offered in such circumstances was as a "temporary employee", a term used at the time by RSA to mean ‘on a contract basis’. What Mr Kumaran is claiming is, in effect, the value of his lost opportunity to be employed by RSA (see eg (see eg Feletti v Kontoulas [2000] NSWCA 59 [34]-[35]).

70 That Mr Kumaran would be offered employment after three months is clearly implied by the letter Mr Kumaran received from Laughlin’s advising him of the assignment to RSA. We heard evidence that this implication was not intended by Laughlin, and was corrected by My Bligh, for Laughlin, in discussion with Mr Kumaran after Mr Gill asked for that clarification.

71 Although the letter to Mr Kumaran was poorly and misleadingly worded, we are satisfied that it did not convey the actual terms of his assignment and that Mr Kumaran was aware of the conditional nature of his tenure at RSA. His assignment continued for longer than three months only because Mr Gill did not at the proper time consider what action he wanted to take in relation to the assignment. When he did, he elected to not offer employment to Mr Kumaran, and to terminate the assignment. Why did he do that?

72 Mr Kumaran’s assertion is that, but for the discriminatory requirement, he would have been employed. He assumes it is certain that, had he not been subject to the discriminatory conduct, he would have been offered what RSA called ‘temporary employment’, that is contract employment, and would have continued in that employment for some six years, to the time of the Tribunal’s inquiry.

73 That assumption cannot be made. Mr Kumaran was rejected as a prospective employee after a period on assignment from an agency. He had an opportunity to be employed, and we must consider the probability of his having been employed in the circumstances, but for the discrimination. When assessing damages we should take into account the probability of Mr Kumaran’s being employed, "unless the chance is so low as to be regarded as speculative - say less than 1 per cent" (Malec v J.C. Hutton Pty. Ltd. [1990] HCA 20; (1990) 169 CLR 638 at 643; and see Sellars v Adelaide Petroleum N.L. and Others [1994] HCA 4; (1994) 179 CLR 332; Smith B, Loss of a Chance [1999] VUWLRev 17; (1999) 29 VUWLR 225).

74 This approach is taken when damages are to be assessed "for deprivation of a commercial opportunity, whether the deprivation occurred by reason of breach of contract, tort or contravention of s.52(1) [of the Trade Practice Act]" (Sellars at p 355). Although the status of a breach of the Anti-Discrimination Act remains unclear (see eg Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272; (2002) 55 NSWLR 232 at [69]- [78]; [99]), it is appropriate, in light of current authorities and practice, for this Tribunal to proceed on the basis that damages under the Anti-Discrimination Act are assessed at least by analogy with, if not actually as, tortious damages (see eg the authorities set out in Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745 at [33]).

75 A clear barrier to Mr Kumaran’s employment prospects, and thus to his obtaining a remedy based on likely employment, is that, to an extent, he did not comply with that part of the requirement concerned with content. Quite apart from Mr Gill’s dissatisfaction with Mr Kumaran’s grammar and syntax, he was dissatisfied with what Mr Kumaran, as an estimator, included in and omitted from his drafts. Mr Gill may have been harsh in this assessment, but it is an assessment that he clearly made and its fairness is a matter we cannot look into.

76 In the circumstances, we assess the probability of Mr Kumaran’s being employed by RSA in June 1998 as having been "so low as to be regarded as speculative – say less than 1 per cent" (per Malec), and its value to have been negligible (per Sellars at 355). As there is no real lost opportunity on which Mr Kumaran can place any value, he is not entitled to compensation for economic loss.

77 Mr Kumaran claims compensation for psychological harm, including depression and loss of self-esteem, and loss of amenity including loss of respect within his marriage and socially.

78 Mr Kumaran was given the opportunity to present evidence, other than his own, in support of these claims but did not do so. We accept his evidence that his not being employed by RSA caused him distress, and that distress is strongly implicit in the correspondence he had in 1998 with RSA, Laughlin, and statutory bodies to which he complained.

79 An amount of damages by way of compensation for distress is appropriate. Having regard to the absence of independent evidence of loss and damage, the jurisdictional limit, and the amount of damages commonly awarded by this Tribunal in similar circumstances, we assess an appropriate sum by way of compensation for distress is $2,000.

80 We are empowered to make a range of orders to address the consequences of a breach of the Anti-Discrimination Act 1977, including an order intended to ensure that the discriminatory conduct will not be repeated. It is now almost seven years since the discriminatory conduct occurred, and we are unaware of the manner in which the first respondent’s workplace now operates. It would not be appropriate to make orders that require the first respondent to act in a particular way.

FINDINGS AND ORDERS

81 We find the complaint of race discrimination is substantiated against Rail Infrastructure Corporation. We find the complaint of race discrimination is not substantiated against Laughlin Executives Pty Ltd. We find the complaint of victimisation is not substantiated against Rail Infrastructure Corporation.

82 Accordingly we order:

1. That the first respondent pay to the Applicant the sum of $2,000 as compensation for loss and damage.

2. That the complaint against the second respondent be dismissed.

3. The victimisation complaint against the first respondent is dismissed.

4. That each party shall pay their own costs.