Ayele v Costa Group t/as Costa Tomato Exchange Co

What would the applicant have to prove if the claim were permitted to proceed?

Racial discrimination in employment

1. Section 7 of the Act makes it unlawful to discriminate against a person on the grounds of race. It provides that: 7 What constitutes discrimination on the ground of race (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator-- a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, 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 ... (2) For the purposes of subsection (1) (a) and (b), 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.
2. In relation to racial discrimination in employment, Section 8 of the Act provides that: Discrimination against applicants and employees (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. (3) Subsections (1) and (2) do not apply to employment for the purposes of a private household.

Disability Discrimination

1. Section 4 of the ADA defines the term 'disability' as follows: disability" means - (a) Total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) The presence in a person's body of organisms causing or capable of causing disease or illness, or (c) The malfunction, malformation or disfigurement of a part of a person's body, or (d) A disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) A disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour."
2. Section 49A provides as follows: A reference in this Part to a person's disability is a reference to a disability - a) That a person has, or b) That a person is thought to have (whether or not the person in fact has the disability), or c) That a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or d) That a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
3. Section 49B provides (relevantly) that: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator - (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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 who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, 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. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability… (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

What is required in order to establish discrimination?

1. In order to establish a claim of discrimination, the applicant needs to establish that at least one of the reasons he was treated less favourably than others in the same or similar position (sometimes referred to as 'differential treatment') was "on the grounds of" his disability and/or race (sometimes referred to as 'the causation question').
2. In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [60] - [65], the Tribunal discusses how the question of whether or not there has been "less favourable treatment" of the applicant "than others in the same or similar positon" where the comparator is a hypothetical comparator, as it is in this case. This case is similar to Dutt in that, as stated in Dutt: "The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently."
3. This case involves alleged disability discrimination as well as racial discrimination rather than alleged racial discrimination, as in Dutt.
4. The words "on the grounds of" have been paraphrased as "because of", "due to," "a real" reason, a "genuine" reason or "true reason" for the treatment alleged to have been discriminatory (Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
5. A person may be treated in a discriminatory fashion on the grounds of a disability because the person has or had, is thought to have had or to presently have, or will have in the future, or is thought to have in the future; or because a person exhibits a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. Where proven, each of those constitute direct disability discrimination.
6. A person may also experience indirect disability discrimination as set out in s49B(1)(b) of the ADA, if a requirement operates differentially on a person with that disability as compared with a person who does not have that disability, perceived disability or characteristic of that disability, that will also constitute indirect disability discrimination. That was not alleged in this case.
7. The applicant bears the onus of proof that he was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to the disability (Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56] and/or race.
8. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered (Dutt v Central Coast Area Health Service [2002] NSW ADT 133 at [59] - [65]; Commission of Corrective Services v Aldridge [2000] NSWADTAP5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].)
9. It is not the case that because a person has a disability and experiences something he or she perceives as "adverse" to that person, that the conduct is discriminatory simply because the person has a disability. The person needs to prove on the civil standard, to the comfortable satisfaction of the Tribunal that the conduct impugned occurred "on the ground of", "due to" or "because of" the disability of the person. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned was the disability of the person, actual or imputed.
10. If a person exhibits conduct that would be unacceptable if the person did not have a disability, the fact that the person has a disability does not, of itself, render the conduct discriminatory ( Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92.)

What if an allegedly discriminatory act is done for more than one reason?

1. Section 4A of the ADA provides that: If - (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.

Victimisation

1. Section 50 of the Act provides as follows: (1) It is unlawful for a person ("the discriminator") to subject another person ( "the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has-- (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
2. Establishing a claim of victimisation under the Act requires that the Complainant establish, on the balance of probabilities, that: (1) the Respondents or one or more of them, or one of the employees of any of the Respondents, caused the Complainant to undergo or experience something; (2) he suffered some consequential detriment; and (3) that he was subjected to that alleged detriment "on the ground of" one of the matters set out in s50(1) of the Act.
3. See Tebb v State of NSW [2020] NSWCATAT 85 at [51]; Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 at [70]; Nicholls v Director-General Dept of Education and Training (No 2) [2009] NSWADTAP20 at [28].

Why did Anti-Discrimination NSW decline the Complaint?

1. The reasons set out in the Report of the President of Anti-Discrimination NSW for the declining of the complaint on 10 March 2021 pursuant to s 92(1)(a)(i) as "lacking in substance" are stated as follows:

• The complainant has provided nothing more than mere assertion to support his allegations that his race and/or disability were reasons for the conduct which he complains of, or that Nepalese workers have been given preferential treatment.
• On the contrary, the respondent has established that it has accommodated the complainant's role to enable him to continue working, including moving him from Level 1 to Level 2 despite his inability to perform the inherent requirements of that classification due to his disability. In that last respect the respondent has arguably treated the complainant more favourably than another worker in the same or similar circumstances as a result of his disability.
• The respondent has provided sufficient information to establish that the complainant was unsuccessful in his application for promotion because he lacked the necessary qualifications and was unable to perform the inherent requirements of that role.
• The respondent has also established that the complainant hasn't been denied opportunity for any training which is consistent with his current role.
• The respondent has provided an explanation for the alleged victimisation, which is unrelated to any previous complaint of discrimination.

Consideration of whether the complaint is lacking in substance.

1. It is unlawful to discriminate against a person on the grounds of a disability or in relation to a person's race as defined in the Act.
2. For the purpose of this leave application, it has been accepted by both parties that the applicant has disabilities. Both parties also accept that the applicant is of African race.
3. The Tribunal has considered the arguments of the applicant at the hearing of the application for leave to proceed and has also considered the written material that is before the Tribunal.
4. Mr Ayele alleges that he has been discriminated against on the grounds of his race and his disabilities whilst working for the respondent. He alleges that those of Nepalese background are treated more favourably than those of other races.
5. Mr Ayele also alleges and the respondent accepts that he has had brain surgery twice, due to a pituitary gland tumor and is still taking medication. Both parties accept that due to that surgery, if he is exposed to unpleasant or strong smells, dust or chemicals he gets terrible headaches, he cannot undertake particularly arduous jobs, work at heights, do jobs involving pollination or undertake lengthy shifts involving significant overtime.
6. The complainant acknowledges that, by arrangement, in order to accommodate his disabilities, he was shifted from Glass House four to Glass House three at times in order to attempt to prevent him from becoming ill. He alleges that he ought to have been permitted to work at Glass House three site on occasions when he was not so permitted. He also alleges that he was denied access to training and promotional opportunities. This is denied by the respondent.
7. Mr Ayele also alleges that he has been victimized for to his complaints of discrimination. This too is denied by the respondent.
8. The respondent has provided information to Anti-Discrimination New South Wales as to the composition of the work force of the respondent. That information indicates that the respondent's work force have a variety of ethnic backgrounds. Whilst there are some people who are Nepalese, there are also a number of people who are of other ethnicities, including Australian, Bangladeshi, African, Papua New Guinean, Indian, Nepalese, Chinese, Filipino, Tongan and others.
9. The Tribunal accepts that there is a racially a diverse workforce. That diverse workforce is governed by policies of the respondent which state that diversity in the workforce is valued, that racially based conduct is not permitted, that all people are to be treated appropriately on the basis of their skills and not on the basis of their race. There are guidelines for bullying, for equal opportunity, for harassment. So it appears that Costa, the respondent, has gone to some lengths to make sure that there are policies in place regarding both racial discrimination, disability discrimination and also victimisation.
10. The material contained in the report of the President of Anti-Discrimination NSW indicates that Mr Ayele appears to believe that promotion to a higher grade is, or should be, automatic. The respondent has produced information that shows that there are criteria for advancement and has stated that Mr Ayele does not meet the criteria for advancement and has sets out why that is the case.
11. The Tribunal is satisfied that advancement is not automatic or based upon amount of time a person has been employed by the respondent, but on the basis of skills and performance.
12. Detailed information as to the positions and training opportunities for which Mr Ayele has applied have also been supplied by the respondent. Opportunities sought, given and refused and consideration of applications made have been provided and would form the basis of evidence upon which the respondent would rely if the matter were permitted to proceed.
13. The respondent also states that for over 7 years they have attempted to accommodate Mr Ayele's disabilities in various ways, including not requiring that he work at heights and not giving him more strenuous tasks. Mr Ayele's own statements show that he agrees that his employer has taken his disability in to account in allocating tasks to him, for example by allowing him to work in Glass House 3 where possible.
14. The respondent argues that the applicant has been promoted from a Level 1 to a Level 2 worker, at a higher pay grade, despite not having the necessary skills for that position, including removing tasks from that role that are usually expected to be part of the role. Thus, the respondent argued that they have been responsive to accommodating the applicant's disabilities and he has been promoted even though his disability has meant that, on one view, he was unable to perform the inherent requirements of the position.
15. Given that there are skill and performance-based criteria for advancement and for specific positions, plausible reasons have been given for the failure of the applicant to be promoted beyond Level 2. The applicant's claim that he was not promoted due to race, without evidence to establish that, beyond assertion, is not likely to succeed. The claim of the applicant that because he has been there for over seven years he "ought" to have been promoted further is very unlikely to succeed.
16. If the evidence of the respondent is accepted that the applicant was promoted from Level 1 or Level 2 in spite of not meeting the inherent requirements of the position is accepted, the respondent may be held to have done more than the Act requires to ensure that the applicant is not discriminated against due to his disabilities.
17. The respondent points out that in terms of the position of Glasshouse Supervisor for which the applicant applied, other applicants for the position held Bachelor's and Mastoral qualifications, whilst he held TAFE qualifications.
18. In terms of training opportunities, the applicant has not identified specific training opportunities that he has been denied. The respondent refutes the allegation that there are any relevant training opportunities that the applicant has been denied.
19. The applicant has provided little evidence apart from his own assertions that he has been discriminated against on either the ground of his disability, his race or both, or that he has been victimised within the meaning of the term in s50 of the Act. There is no documentary evidence supporting his assertions and no other evidence apart from his own statements. By contrast, there is a statement from his supervisor, documents from the company records as to policies and procedures followed in relation to training and promotional opportunities and detailed submissions referring to those documents.
20. Even in his reply to the detailed statements of the respondent, dated 6 February 2021 with substantiating documents, the applicant did not provide any documents to support or substantiate his claims. Nor has he provided a statement from any other witness willing to support his claims. On the other hand, he has demonstrated that he had applied for two rather than one promotion, as the respondent had claimed.
21. That said, the respondent has presented cogent evidence that convincingly counters the allegations of the applicant. Thus, for example in relation to promotion to Glasshouse Supervisor, there was a detailed process outlined, a number of applicants and candidates interviewed, that those interviewed had higher educational qualifications than Mr Ayele and that some of the tasks of the position involved working at height, which Mr Ayele is unable to do due to his disability.
22. It appears from the evidence of the respondent that the respondent has gone to considerable lengths to enable Mr Ayele to continue to work productively, taking his disabilities into account.
23. In relation to victimisation, a clear and plausible explanation of alleged conduct was given and there appears to be little prospect of the applicant proving victimisation.
24. To the extent that the applicant seeks that the Tribunal draw an inference from the conduct alleged that there has been discrimination or victimization, the law relating to the drawing of inferences needs to be considered. The Tribunal has considered in a number of cases whether, and the circumstances in which, inferences can be drawn in. As set out in Dutt at [70], the Tribunal has identified considerations in the drawing of inferences as follows: "A causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts i. An inference must be reasonably drawn on the basis of the primary facts ii. An inference can be drawn from a combination of facts, none of which viewed alone would support that inference. iii. A fact relied on as the basis of an inference need not be proved to the requisite standard of proof iv. It is not enough that the inference is a mere possibility: it must be one of "probably connection" v. The inference must be a logical one, and no supposition vi. An inference cannot be made where more probably and innocent explanations are available on the evidence."
25. In this case, there are no facts, alleged facts or persuasive evidence supporting the drawing of an inference that there was disability discrimination, racial discrimination or victimisation, even though the applicant may strongly hold views to the contrary
26. The Tribunal is obliged to determine the leave application on the basis of the evidence before it. Considering the evidence at its highest, there is insufficient evidence beyond assertion to support this claim. This is important, given that the applicant bears the burden of proving the claim on the civil standard, the balance of probabilities.

Conclusion

1. From the oral argument at the leave hearing and having regard to all of the written material that is before the Tribunal in the President's Report of Anti-Discrimination New South Wales, the Tribunal is not satisfied that the applicant has satisfied the onus of establishing that it would be fair or just for the complaint to be permitted to proceed.
2. The Tribunal therefore declines leave for the complaint to proceed.

Orders 1. Leave to proceed with the complaint of racial discrimination is refused. 2. Leave to proceed with the complaint of disability discrimination is refused. 3. Leave to proceed with the complaint of victimisation is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2021