Dharmalingham v Western NSW Local Health District [2015] NSWCATAD 74

Dharmalingham v Western NSW Local Health District [2015] NSWCATAD 74

Most alleged incidents were not substantiated because the applicant did not prove an objective detriment, less favourable treatment, or a causal connection with race, disability or carer's responsibilities; in several instances the Tribunal accepted innocent explanations based on concern for health, communication difficulties, workplace conflict, or management action. The native language complaint was race discrimination because Barnes complained in a formal grievance that the applicant spoke Tamil on the telephone in front of others, causing detriment, and the Tribunal found a probable connection between that complaint and the applicant's race; the respondent was vicariously liable. The...

Jurisdiction
Australia
Judgment Date
15 April 2015
Procedural Posture
Employment Discrimination Complaint Under the Anti Discrimination Act 1977 / Final Determination After Hearing in the Administrative and Equal Opportunity Division
Outcome
Complaint partly substantiated: the native language race discrimination complaint and victimisation complaint were substantiated; the other race discrimination complaints, carer's responsibilities discrimination complaint and disability discrimination complaint were not substantiated.
Legal Topics
['race Discrimination' 'disability Discrimination' "carer's Responsibilities Discrimination" 'victimisation' 'vicarious Liability' 'detriment' 'burden and Standard of Proof' 'remedies']
['anti Discrimination Law' 'employment Law' 'administrative Law'] ['race Discrimination' 'disability Discrimination' "carer's Responsibilities Discrimination" 'victimisation' 'vicarious Liability' 'detriment' 'burden and Standard of Proof' 'remedies']

Case Brief

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Procedural Posture

Employment Discrimination Complaint Under the Anti Discrimination Act 1977 / Final Determination After Hearing in the Administrative and Equal Opportunity Division

Legal Issues

  1. 1 ['Whether the respondent discriminated against the applicant on the ground of race in relation to workplace comments and incidents, including the native language complaint.' "Whether the respondent discriminated against the applicant on the ground of carer's responsibilities in relation to his daughter being in the pharmacy area." 'Whether the respondent discriminated against the applicant on the ground of disability in relation to the events of 12 February 2013.' 'Whether placing the applicant on special leave with full pay on 15 March 2013 constituted victimisation.' 'Whether the respondent was vicariously liable for conduct of its staff under s 53 of the Anti-Discrimination Act 1977.' 'What remedy should be ordered for substantiated discrimination and victimisation.']

Ratio Decidendi

Most alleged incidents were not substantiated because the applicant did not prove an objective detriment, less favourable treatment, or a causal connection with race, disability or carer's responsibilities; in several instances the Tribunal accepted innocent explanations based on concern for health, communication difficulties, workplace conflict, or management action. The native language complaint was race discrimination because Barnes complained in a formal grievance that the applicant spoke Tamil on the telephone in front of others, causing detriment, and the Tribunal found a probable connection between that complaint and the applicant's race; the respondent was vicariously liable. The...

Court Disposition

Complaint partly substantiated: the native language race discrimination complaint and victimisation complaint were substantiated; the other race discrimination complaints, carer's responsibilities discrimination complaint and disability discrimination complaint were not substantiated.

Orders

  • ["The applicant's complaint of discrimination on the grounds of race in respect of the native language complaint is substantiated." "The applicant's complaint of discrimination on the ground of race is otherwise not substantiated." "The applicant's complaint of discrimination on the grounds of carer's...