Bacirongo v ACL Pty Ltd [2011] NSWADT 12 (20 January 2011)

Last Updated: 30 May 2011

Administrative Decisions Tribunal New South Wales

Case Title:	Bacirongo v ACL Pty Ltd
Medium Neutral Citation:	[2011] NSWADT 12
Hearing Date(s):	7 December 2010
Decision Date:	20 January 2011
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	1.Leave is granted for the applicant's complaint of race discrimination to proceed. 2.The matter is listed for case conference on 9 March 2011 at 11:45am.
Catchwords:	LEAVE - race discrimination complaint declined lacking in substance - leave required for complaint to proceed - whether fair and just in the circumstances
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Jones & Anor v Ekermawi [2009] NSWCA 388 Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165
Texts Cited:
Category:	Procedural and other rulings
Parties:	Isaac Bacirongo (Applicant) ACL Pty Ltd (Respondent)
Representation
- Counsel:
- Solicitors:	I Bacirongo (Applicant – in person) Allens Arthur Robinson (Respondent)
File number(s):	101115
Publication Restriction:

REASONS FOR DECISION

Introduction

1. Mr Bacirongo complained to the President of the Anti-Discrimination Board that he had been discriminated against by his employer, ACL Pty Ltd on the ground of his race. After arriving as a refugee from the Congo Mr Bacirongo, who describes himself as a pygmy, was a client of ACL. ACL is contracted by the Department of Immigration and Citizenship (DIAC) to deliver the Adult Migrant English Program (AMEP) and the Integrated Humanitarian Settlement Strategy (IHSS) to refugees. In 2005 ACL employed Mr Bacirongo as a casual case worker. In 2007 he was appointed to a permanent position. Mr Bacirongo resigned in March 2010 and is now studying. He said that as a result of the treatment he received at ACL he has been diagnosed with post traumatic stress and depression and has been prescribed anti-anxiety and anti-depressant medication.
2. The President of the Board declined the complaint as lacking in substance. The reasons for declining that complaint included that ACL have given plausible, non-discriminatory reasons for the way in which Mr Bacirongo was treated and had, on numerous occasions, treated him more favourably than they were legally required to do. Nevertheless, Mr Bacirongo requested that his complaint be referred to the Tribunal. A complaint which has been declined cannot go ahead unless the Tribunal gives its permission: Anti-Discrimination Act 1977 ( AD Act ), s 96). The test to be applied is whether it is fair and just in all the circumstances for the complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The onus is on Mr Bacirongo to satisfy the Tribunal that leave should be granted.

Complaint

3. Mr Bacirongo's complaint, which covers the period from September 2005 to January 2010, can be summarised as follows:

a) he was paid at a lower rate of pay compared with that received by his colleagues who were performing the same role and when he was appointed to a permanent position he was the lowest paid person in the organisation;

b) he was repeatedly not advised of available positions or was not appointed to positions he did apply for;

c) he was harassed and humiliated in front of his colleagues; and

d) he was sent to the English classes for refugees, while others were sent to TAFE English classes.

4. ACL provided a chronology of Mr Bacirongo's employment history and responded in detail to each of the over 70 allegations Mr Bacirongo made in his complaints to the Board. The allegations and ACL's responses are set out at pages 96 to 134 of the President's Report.

Legislative provisions

5. If permission were given for the matter to proceed to a hearing, Mr Bacirongo would have to substantiate his complaints on the balance of probabilities. Mr Bacirongo is alleging that his employer has breached s 8(2) of the AD Act which provides that:

(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.

6. What it means to "discriminate against an employee on the ground of race" is set out in s 7:

(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 or the race of a relative or associate of the aggrieved person, 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 who has such a relative or associate of a different race, or

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

(c) 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.

7. Section 7(1)(a) defines what is known as 'direct' discrimination. At least one of the reasons for the conduct must be the person's race even if that reason was not the dominant or a substantial reason for the treatment: AD Act , s 4A. Section 7(1)(b) defines what is known as 'indirect' discrimination. My understanding of this complaint is that Mr Bacirongo's is complaining of 'direct' discrimination.
8. In order to prove on the balance of probabilities that ACL has discriminated against him on the ground of race, Mr Bacirongo would have to prove that:

1. he is a member of particular race as defined in s 4;

2. the alleged conduct relates to the terms or conditions of his employment or constitutes subjecting him to a detriment: AD Act , s 8(2)(a) and (c);

3. ACL treated him less favourably than it treats or would have treated another employee not of his race in circumstances which are the same or not materially different: (differential treatment); and

4. the alleged conduct was on the ground of Mr Bacirongo's race: (causation).

9. Race . Mr Bacirongo nominated his race as pygmy. He is from the Congo and comes from a group that speaks the Kitembo language. There was no dispute that 'pygmy' constitutes a race.
10. Terms and conditions of employment . ACL did not dispute that the alleged conduct relates to the terms and conditions of Mr Bacirongo's employment.
11. Differential treatment . The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Bacirongo must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. Mr Bacirongo nominated several people as relevant comparators including Mr Edison Yongai, who he said was being paid $28 an hour when he was being paid much less. ACL denied that anyone was paid $28 an hour as a casual case worker. Mr Bacirongo also alleged that other employees who were Arabic speakers like the manager, were appointed to case co-ordinator positions. He added that other employees with no qualifications or experience were promoted above him. ACL maintains that in one case, they did not receive an application from Mr Bacirongo and in another case he withdrew his application. They said that when Mr Bacirongo did apply for a position and was unsuccessful, the appointments were made on merit.
12. Causation . Even if Mr Bacirongo could prove "differential treatment" in relation to some or all of the conduct about which he complains, he would also have to prove "causation." At least one of the reasons for being treated in the way he was treated must his race. There is no need to prove that ACL intended to discriminate. Discrimination may not be conscious. The fact that the reason for the conduct is almost always within the respondent's knowledge makes it difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation remains under the AD Act that the legal and evidential burden remains on the applicant to prove his or her case.
13. Conclusion. Mr Bacirongo has made multiple allegations of discrimination and harassment against ACL over a 5 year period. ACL has denied some of those allegations including the content of several conversations. Without hearing the evidence, it is not possible to form a view as to whether Mr Bacirongo's version of these conversations is likely to be accepted if the case goes to hearing. In relation to several other allegations, ACL has provided an explanation for the way in which Mr Bacirongo was treated. Despite those explanations, Mr Bacirongo remains convinced that at least one of the reasons for the treatment that he was afforded was his race. Again, it is difficult to predict, without hearing the evidence, whether a Tribunal would be satisfied that ACL acted in a discriminatory manner. While there is no direct evidence of race discrimination, Mr Bacirongo was not appointed to at least one position for which he applied. Whether or not that decision was based, even in part, on his race is a matter that can only be determined by hearing all the evidence. In relation to the other allegations, Mr Bacirongo may be able to satisfy the Tribunal that an inference can be drawn that race was at least one of the factors that contributed to his treatment. In those circumstances it is fair and just for the complaint to proceed.

Order

1. Leave is granted for the applicant's complaint of race discrimination to proceed.

2. The matter is listed for case conference on 9 March 2011 at 11:45am.

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