Omeri v Quality Assurance Service Pty Ltd [2003] NSWADT 188

CITATION: Omeri v Quality Assurance Service Pty Ltd [2003] NSWADT 188 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Tahir Omeri RESPONDENT Quality Assurance Services Pty Ltd (now Standards Australia International Ltd) FILE NUMBER: 021110 HEARING DATES: 03/07/2003 SUBMISSIONS CLOSED: 07/03/2003 DATE OF DECISION: 08/27/2003

BEFORE: Needham J - Judicial Member; Mooney L - Member; Toltz D - Member APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Anti-Discrimination Act 1977 Langley v. Niland & Anor [1981] 2 NSWLR 104 CASES CITED: Reyes-Gonzales v. Sydney Institute of Technology (1998) NSWEOT (6 March 1998) Hill v. University of New England (1990) EOC 92-291 Chamberlain v. R [No 2] (1983) 153 CLR 521 APPLICANT REPRESENTATION: In person RESPONDENT A Scotton ORDERS: 1 The application under s 111(1) of the Anti Discrimination Act 1977 is dismissed; 2 Matter referred for further case conference.

1 Mr Tahir Omeri complained to the Anti-Discrimination Board on 10 January 2001 against his employer, Quality Assurance Services Australia Pty Ltd (now known as Standards Australia International Pty Ltd) ("QAS"). QAS employed Mr Omeri as an auditor. The Applicant's complaint 2 Mr Omeri's complaint arose out of the circumstances of his retrenchment. He says the retrenchment was because of his race and/or ethno-religious background. Mr Omeri is a Muslim from the Middle East. 3 The retrenchment took place on 31 August 2001. Mr Omeri says that at the QAS monthly general meeting, which he attended, the then General Manager, Mr Colin Stuart, painted "a rosy picture of the future of the company". After lunch, Mr Stuart met with Mr Omeri and informed him that he was to be made redundant, because: - A QAS was "over-resourced by between 20 and 24%; and B Mr Omeri's name came up because he earned less money during the last financial year than other managers. Also present were the HR Manager, Mr Searle, and Mr Omeri's immediate manager, Mr Alston. Mr Omeri expressed disbelief that this was the case, and Mr Stuart said to him, in a raised voice, "Are you calling me a liar?" 4 On 4 September 2001, Mr Omeri met with Mr Searle to finalise figures for his retrenchment. Mr Searle said to Mr Omeri that his earnings and performance had "absolutely nothing to do with the retrenchment", and that both were fine. He said, "There isn't enough work for all auditors and other auditors had more codes". Mr Omeri says that this is not true, and that he has the same number of codes, if not more, as other auditors. Codes are, Mr Omeri says, "simple representations of auditors' training, education, knowledge and experience". 5 Mr Omeri then requested an urgent meeting with Mr Stuart's boss, Keith, as he was "convinced the retrenchment was a result of ethno-religious discrimination". He had that meeting on 25 September 2000. In a letter dated 31 October 2000, received by him on 7 November, a further explanation was offered; that the codes held by Mr Omeri were "low risk generic codes". 6 Mr Omeri says that there were subjective and objective reasons for believing his retrenchment was contrary to the provisions of the Anti-Discrimination Act 1977, ss 7 and 8. His objective reasons were the different reasons given for his retrenchment, all of which he says were incorrect; the fact that his immediate supervisor (Mr Alston) was not consulted, and the speed of the retrenchment. The subjective reasons were a "visible change in facial expression" in Mr Stuart in March 2000 when he discovered that Mr Omeri's name was Arabic in origin, and that he became more hostile when Mr Omeri grew a beard which "a lot of people seem to associate with people of Middle Eastern origin". Mr Omeri says that Mr Stuart's facial expression when giving news of the retrenchment was readable as being discriminatory. Respondent's Reply to Allegations 7 QAS replied to the allegations on 24 July 2002. It says that it employs a multicultural mix of staff which represents many religions and backgrounds. It does not tolerate discriminatory behaviour, and has policies in place to ensure that all staff adhere to equal opportunity and anti-harassment guidelines. 8 It further says that "Mr Omeri's race and/or religion played no part in the company's decision to retrench him". The letter does not set out what factors did play a role in that decision. The Hearing 9 The Anti-Discrimination Board declined the complaint as lacking in substance. Unfortunately, as has become more prevalent in the Tribunal's experience, no details of the reasons for the decision to decline the complaint were provided. The Tribunal considers that giving even brief reasons for declining a complaint as "lacking in substance" can only enhance the transparency of the Anti-Discrimination Board complaints processes. 10 As is the practice of the Tribunal where a complaint has already been declined by the Anti-Discrimination Board, the respondent was given the opportunity of applying for an order under s 111 of the Anti-Discrimination Act 1977. That section reads: - "(1). Where, at any stage of an inquiry, the Tribunal is satisfied that a 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". 11 The respondent sought that the matter be listed for dismissal under s 111(1). 12 At the hearing Mr Omeri relied on two letters which were, in effect, additions to his complaint. These letters had been received by the Tribunal office and filed with the file, rather than being sent to the respondent. At the hearing, Mr Scotton said he had no difficulty in dealing with the allegations in the letters, and suffered no prejudice by their being produced to him for the first time at the hearing. He said he had instructions sufficient to deny the allegations contained in them. 13 The letters were dated 28 March 2003 and 11 June 2003. They alleged, in effect: - A Mr Stuart, the then General Manager, did not follow the organisations own procedures dealing with redundancies; B No policy documents on redundancy or the report into the internal enquiry into Mr Omeri's retrenchment were produced to Mr Omeri on his request; C Mr Stuart was heard by someone, who was not named in the letter or at the hearing, to say "Getting rid of that f....ing Arab was my good deed for the day"; D Another QAS auditor of Middle Eastern extraction was "very much discriminated against" before Mr Omeri joined QAS, and left both QAS and Australia as a result. The last two factors are obviously hearsay and must, as a result, be of fairly minimal weight. 14 No witnesses were called at the hearing of the s 111 application by either side. 15 Mr Omeri, as well as the two letters, relied upon the failure by the respondent to show that there was a single, objective reason for his retrenchment. 16 The respondent's position was that the allegations were unsubstantiated. Redundancies were dealt with on a case-by-case basis, and that there were no discriminatory factors underlying the retrenchment. However, no reasons for the retrenchment were given by the respondent, either in the written submissions to the Board or orally or in writing to the Tribunal. Mr Scotton said, for the respondent, that QAS was "far more tolerant than most organisations", and that it employed two other Muslim/Arabic auditors. Four other persons were made redundant that day. He says that the alleged breaches of the Anti-Discrimination Act 1977 are not backed up by evidence. Principles of Law 17 What test should be applied under s 111? The words "misconceived" or "lacking in substance" apply where there exists no factual basis for the allegations, or that the allegations lack merit - see Langley v. Niland & Anor [1981] 2 NSWLR 104 at 107D-G; Reyes-Gonzales v. Sydney Institute of Technology (1998) NSWEOT (6 March 1998) at 6. The words "frivolous" and "vexatious" reflect the summary dismissal provisions of Part 13 r 5 of the Supreme Court Rules. In effect, the respondent needs to show that the case is hopeless; a submission that the applicant's complaint is lacking in substance is analogous with a "no case to answer" submission in civil proceedings - see Hill v. University of New England (1990) EOC 92-291 at 77,940. The applicant's case must, in effect, be taken at its highest and the question asked - if the facts alleged by the applicant are proved at a hearing, will the applicant still fail? Of course, some applicants require proof of issues through cross-examination of the respondent's witnesses, and that factor should be taken into account when assessing likelihood of success or failure on an s 111 application. 18 The complaint of Mr Omeri is not supported by any other evidence apart from his own allegations. The only evidence of direct discrimination is based on unattributed hearsay. The discrimination, therefore, is inferential. That is, Mr Omeri submits that the differing and incorrect reasons for dismissal, as well as the hearsay admission by Mr Stuart, should lead to an inference of racial or ethno-religious discrimination. 19 For the purposes of this application under s 111, the facts alleged by Mr Omeri should be taken at face value. That does not mean, of course, that the unsubstantiated, second-hand hearsay should be given undue weight. The comment of Mr Stuart was told to Mr Omeri by an unnamed third party. It was not, in terms, directed specifically at Mr Omeri, although it can be inferred that Mr Omeri was possibly the subject of the comment. That evidence would need to be in an admissible form and to be the subject of cross-examination at any hearing. It may be that at a hearing the person who told Mr Omeri his version of what Mr Stuart said will be available for cross-examination; as things currently stand, Mr Omeri is unwilling to identify him. The evidence of the statement by Mr Stuart is therefore inadmissible. The Tribunal is not bound by the rules of evidence, but needs to have due regard to fairness in its dealings. Evidence such as this is not a proper part of a fair hearing, as it is almost impossible to test without the person who heard the statement giving evidence. 20 The standard of satisfaction for an s 111 application is quite high. The Tribunal must be satisfied, in effect, that the application has no chance of succeeding on the evidence as set out before it. It is not appropriate to find that discrimination has taken place on the mere assertion by the complainant that it is so, and in the absence of evidence to that effect. The complainant must, to establish the existence of discrimination, establish "objective facts from which to infer the other facts which it is sought to establish" (Chamberlain v. R [No 2] (1983) 153 CLR 521 at 536). The objective facts must lead to an inference, not a mere conjecture. Where there are a number of equally plausible explanations for the matters from which facts are sought to be inferred, there is no basis to infer discriminatory behaviour because of Mr Omeri's belief that the conduct is so explained. Consideration of the s 111 application 21 Here, the objective facts are that Mr Omeri was made redundant, and that varying explanations were given for this action. No explanation was proffered in writing or orally by the respondent, although the discriminatory conduct was denied. There is some slight indication (the second-hand hearsay from the unnamed person, currently in inadmissible form) that Mr Stuart admitted to a racial or ethno-religious reason for the redundancy. There is no evidence that the comment, if made, was an operative factor in the retrenchment. 22 However, the facts at their highest show that there may be grounds on which to decide that the complaint is substantiated. The varying explanations for the redundancy may point to a hidden agenda within QAS and the failure by the respondent to point to a particular reason does not assist the Tribunal in dispelling this suspicion. Although the objective evidence is not strongly in favour of a finding of discriminatory conduct, there is sufficient before the Tribunal to allow this matter to proceed to a hearing. There should be a further case conference to finalise matters of evidence and to set a hearing date. The respondent's s 111(1) application is dismissed.

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