EQUAL OPPORTUNITY - sex discrimination - direct discrimination - "on the grounds of sex"
Source
Original judgment source is linked above.
Catchwords
EQUAL OPPORTUNITY - sex discrimination - direct discrimination - "on the grounds of sex"
Judgment (15 paragraphs)
[1]
Reason for decision
Mr Saed Dezfouli is a patient at the Forensic Hospital in Malabar Sydney, a "declared mental health facility" under s 109 of the Mental Health Act 2007 (NSW). The Hospital is administered by the respondent, Justice Health and the Forensic Mental Health Network (Justice Health).
Mr Dezfouli has lodged two complaints with the President of the Anti-Discrimination Board (the President) alleging that Justice Health discriminated against him on the ground of his sex in the area of services, in breach of the Anti-Discrimination Act 1977 (NSW) (the Act).
For the reasons that follow we have decided to dismiss both complaints.
[2]
Background to these proceedings
In a complaint made to the President on 9 January 2014, Mr Dezfouli alleged that Justice Health had discriminated against him on the ground of sex by allowing female patients to:
take escorted day leave from the Hospital
ride bicycles within the grounds of the Hospital
order in takeaway food
and not permitting him to do the same.
In a second complaint lodged with the President on 28 April 2014, Mr Dezfouli alleged that Justice Health had discriminated against him, again on the ground of sex, by introducing a timetable that gave female patients access to the Hospital kiosk on more favourable terms than were given to him and other male patients.
The President referred the second complaint to the NSW Civil and Administrative Tribunal (NCAT) but declined the first complaint on the ground that it was "lacking in substance". At the request of Mr Dezfouli the President referred the first complaint to the NCAT under s 92(1)(a)(i) of the Act. The Tribunal (differently constituted) granted leave under s 96 of Act, for part of the first complaint, namely the takeaway food allegation, to proceed but dismissed the balance of that complaint (Dezfouli v Justice Health and Forensic Mental Health Network [2015] NSWCATAD 11).
[3]
Statutory framework
Section 33 of the Act makes it unlawful for a person who provides services to discriminate against another person on the ground of sex:
Provision of goods and services
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex:
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which he or she provides the person with those goods or services.
…
The Act defines discrimination on the ground of sex to mean:
24 What constitutes discrimination on the ground of sex
(1) A person ("the perpetrator") discriminates against another person (
"the aggrieved person" ) on the ground of sex if the perpetrator:
(a) on the ground of the aggrieved person's sex …, 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 the opposite sex …, or
…
(1A) For the purposes of subsection (1)(a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.
Section 4A of the Act states:
Act done because of unlawful discrimination and for other reasons
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.
[4]
Issues to be decided
In relation to each allegation we must decide whether on the balance of probabilities:
Mr Dezfouli was treated less favourably than a woman was, or would have been, treated in the same circumstances, or in circumstances which are not materially different?
If so, was one of the grounds of any less favourable treatment Mr Dezfouli's sex, a characteristic that appertains generally to men, or, a characteristic that is generally imputed to men?
Justice Health concedes that permitting patients to order takeaway food and to access the Hospital kiosk, constitutes the provision of service within the meaning of s 33 of the Act.
[5]
Did Justice Health unlawfully discriminate against Mr Dezfouli on the ground of sex by refusing to permit him to order takeaway food?
Patients at the Hospital are housed in six separate units. Adolescent patients (male and female) are housed in the Austinmer Adolescent unit (the Adolescent unit) and adult female patients are housed in the Austinmer Women's unit (the Austinmer unit). Adult male patients are housed in the remaining four units: Bronte, Clovelly, Elouera and Dee Why. Mr Dezfouli resides in the Dee Why unit.
Since April 2013 patients in the Austinmer unit have been permitted to order takeaway food from outside the Hospital about once every three months. They are the only patients of the Hospital permitted to do so.
In a letter to the President dated 15 March 2014, Justice Health Chief Executive, Ms Julie Babineau wrote that the decision to allow patients in the Austinmer unit to order takeaway food, was made to enable their "pro-social behaviours" to be assessed. She pointed out that in contrast to male patients, most female patients were only permitted to visit the Hospital kiosk if accompanied by an escort. She wrote that as a consequence female patients do not have the opportunity to "sit down, socialise and interact with others in a normalising situation".
In a letter in response dated 3 April 2004, addressed to the President, Mr Dezfouli challenged the assumptions underlying the explanation given by the Chief Executive. He asserted that female patients did not have the opportunity to socialise when they visited the Kiosk because of what he coined as the Hospital's "sit down, eat and shut up" policy. In addition, he pointed out that the patients of the Austinmer unit took all their meals together, and therefore, in his opinion, had ample opportunity to socialise and interact.
Mr Luke Goodeve, the Nurse Unit Manager of the Dee Why Unit since January 2013, testified that it was his understanding that the Hospital did not have a general policy governing patient access to takeaway food. He understood that the decision about whether, and in what circumstances, patients were permitted to order in takeaway food, was left to the managers of the individual units within the Hospital.
Mr Goodeve said that he and other members of the Dee Why unit management team decided not to permit the patients of that unit to order in takeaway food because of concerns for patient physical health: obesity and associated problems. He stated that a recent study undertaken by the Hospital confirmed his own observations that the majority of male patients were overweight, if not obese. He stated that the Hospital had recently decided to employ a dietician and when that appointment was made all "food issues", including the takeaway food decision, would be reviewed
Mr Dezfouli agrees that obesity is a problem faced by many male patients but contends that this is caused by the medication they are prescribed and the high fat content of the diet provided by the Hospital. He argues that it is ridiculous to suggest that consuming takeaway food once every three months could materially affect a person's weight and points to the availability of low-fat takeaway options.
He asserts the real reason female patients were given the option of consuming takeaway food was because they were more difficult to control than male patients. He states that because of their relatively small number, all female patients - be they classified as acute, sub-acute, rehabilitation and long-stay - were housed in the one unit. In contrast, male patients were allocated to units based on the nature and severity of their condition, making them, according to Mr Dezfouli less difficult to manage than female patients. He contended that the "privilege" of being able to order takeaway was used as to "bribe" female patients to behave well.
[6]
Findings and conclusions
For current purposes we will assume, but not decide, that the decision to refuse to permit male patients to order in takeaway food constitutes "less favourable treatment" for the purpose of s 24(1)(a) of the Act. We will proceed to consider whether that treatment was "on the grounds of" Mr Dezfouli's gender, a characteristic that appertains generally to men, or, a characteristic that is generally imputed to men.
In each of the matters about which Mr Dezfouli complains - the takeaway food allegation and the kiosk allegation - Justice Health treated all patients of the Dee Why unit in the same way. Therefore, in these Reasons, any reference to the treatment afforded to Mr Dezfouli, or the reason for that treatment, is also a reference to the patients of the Dee Why unit and vice versa.
Mr Dezfouli need only establish that his gender was one of the reasons and not necessarily the sole or dominant reason for any less favourable treatment, (s 4A Act of the Act). In Purvis v New South Wales (2003) 217 CLR 92, Gummow, Hayne and Heydon JJ (at p 163), said that the question posed by s 5 of the Disability Discrimination Act 1992 (Cth), which is in similar but not identical terms to s 24 of the Act, was:
[W]hy was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'.
Gleeson CJ put the test slightly differently and said (at p 102) that the focus should be on the "true basis" for the treatment of the person.
Three explanations have been proffered for the differential treatment afforded to male and female patients.
First, as contended by Mr Dezfouli, the Hospital permitted patients housed in the Austinmer unit to order in takeaway food because it was considered that this might assist in modifying their problematic behaviour.
Second, as contended by the Chief Executive of Justice Health, permitting female patients to order takeaway food would give them the opportunity to socialise in a "normalising situation".
Third, as contended by Mr Goodeve, the decision to refuse to permit patients of the Dee Why unit to order in takeaway food was taken because of the problems of obesity within that group.
As Mr Dezfouli points out, the Chief Executive made no mention of the explanation proffered by Mr Goodeve in her reply to the President, in which she outlined the reason for the decision. In addition, there is strength in his argument that an occasional takeaway meal is unlikely to contribute, in any material way, to excessive weight gain.
The explanation advanced by Mr Dezfouli is reasoned and plausible. However, it does not support a finding that one of the reasons for the less favourable treatment was his sex. It merely establishes that (i) the managers of the Austinmer unit hold the opinion that residents in their care exhibit problematic behaviours and allowing them to occasionally order takeaway food, might modify that behaviour and (ii) the managers of the Dee Why unit either did not consider that the patients in their care exhibited problematic behaviour, or, if they did, had either not turned their mind to, or did not share the opinion held by the managers of the Austinmer unit permitting patients to, order in takeaway food might act to modify poor behaviour.
The available evidence indicates that decisions about patient access to takeaway food, was made on a unit-by-unit basis. The decisions to allow patients of the Austinmer unit to order takeaway food and not to allow patients of the Dee Why unit to do the same, were made independently of each other. None of the explanations given for any less favourable treatment support a finding that one of the reasons for that treatment was the gender of Mr Dezfouli or other patients of the Dee Why unit.
Mr Dezfouli does not rely on the "characteristics extension" in s 24(2) and nothing arises from the evidence which causes us to consider that provision.
We are not satisfied that the decision to refuse to allow Mr Dezfouli and/or the patients of the Dee Why unit to order in takeaway food was "on the grounds" of his/their sex. That part of the first complaint is not established and must therefore be dismissed.
[7]
Did Justice Health unlawfully discriminate against Mr Dezfouli on the grounds of sex in the terms under which it permitted him to visit the Hospital kiosk?
For a number of years a kiosk has operated in the grounds of the Hospital. The kiosk is open to patients and staff between 1000 and 1400 hrs, Monday to Friday. Some patients, such as Mr Dezfouli, are permitted to access the kiosk without an escort, apparently because they are assessed as not posing a threat to the safety of staff and other patients. Others must be escorted. (Since August 2014 Mr Dezfouli has been "banned" from visiting the kiosk. This is irrelevant to the questions we must decide, as the "ban" was introduced after the period of the complaint, namely 28 April 2013 to 28 April 2014.
Patients are permitted to visit the kiosk only at designated times in accordance with a timetable developed by Justice Health.
The trigger for Mr Dezfouli's complaint was the timetable introduced by Justice Health in April 2014 (the April 2014 timetable). That timetable is reproduced at Annexure A to these Reasons. Annexure A also contains the timetables in operation immediately before and after the April 2014 timetable, that is, those introduced in November 2013 and June 2014.
Under all versions of the timetable, each unit of the Hospital was allocated a number of 30 or 60 minute time slots when they could visit the kiosk. Generally, one unit of the Hospital was allocated to each timeslot. On occasion, two units were allocated the same timeslot. (For example, under the April 2014 timetable, the Adolescent and Austinmer units "share" the 1200 to 1230 hrs Thursday and Friday timeslots.)
The following table outlines the total number of hours and rostered timeslots allocated to the patients of the Dee Why and Austinmer units under the November 2013, April 2014 and June 2014 timetables.
November '13 April '14 June '14
Total hours
Dee Why 5 hours 4 hours 3.5 hours
Austinmer Women's 4 hours 4 hours 4 hours
Time slots
1000-1030 (M,T, W, Th) 1000-1030 (M, W, Th) 1000-1030 (M, T, W)
Dee Why 1300-1400 (M,W, Th) 1300- 1400 (T) 1030 - 1130 (Th)
1300-1400 (T)
1200-1300 (M) 1200-1300 (M) 1200-1300 (M)
Austinmer Women's 1130-1200 (T, W) 1130-1200 (T, W) 1130-1200 (T, W)
1130-1230 (Th, F) 1130-1230 (Th, F) 1130-1230 (Th, F)
[8]
Mr Dezfouli contends that under all versions of the timetable, the Austinmer unit was allocated "better" time slots than the Dee Why unit. He points out that under the April 2014 timetable, the number of lunchtime timeslots allocated to the Dee Why unit dropped from three to one.
[9]
Was hot food served at the kiosk before 1130 hrs?
The only significant factual issue in dispute is whether, as claimed by Mr Dezfouli, hot food could be ordered from the kiosk before 1130 hrs.
Justice Health contract manager, Mr Glen Le Clerc, is responsible for overseeing the operation of the kiosk. He testified that hot food is generally available from about 1010 until 1345 hrs. He claimed that, for the purpose of these proceedings, he visited the kiosk on a regular basis shortly after it opened and observed patients and staff buying hot food.
Mr Dezfouli, on the other hand, says that in the complaint period hot food could only be purchased after 1130 hrs and in support points to the statement to that effect made by Ms Babineau in her letter to the President dated 26 June 2014.
Mr Dezfouli claims, and Justice Health concedes, that in April 2014 a sign was displayed outside the kiosk stating that hot food would only be served from 1130 hrs.
The weight of evidence indicates that in April 2014 hot food was only available from the kiosk from 1130 hrs. On the available evidence it is not possible to decide how long this situation continued. In our opinion little turns on this, because as Mr Dezfouli contends, it is reasonable to assume that most patients would prefer to have the option of purchasing a hot meal around lunchtime rather than first thing in the morning, the timeslot largely allocated to the Dee Why unit (1000 to 1030 hrs). Accordingly, the time of the day Mr Dezfouli was allocated to visit the kiosk is relevant to the determination of whether the treatment he was afforded was "less favourable", regardless of whether hot food was available during those times.
While there is some variation in the three timetables before us, as Mr Dezfouli contends, the majority of the timeslots allocated to the Dee Why unit were between the hours of 1000 and 1030 hrs. The Dee Why unit was allocated fewer lunchtime timeslots than the Austinmer unit with the number dropping from three under the November 2013 timetable (Monday, Wednesday Thursday 1300 to 1400) to one under the April and June 2014 timetables. In contrast, the Austinmer unit was allocated three lunchtime timeslots (Monday 1200 to 1300, Thursday and Friday 1130 to 1230 hrs), under all versions of the timetable.
We find that the timeslots allocated to the patients of the Dee Why unit under the November 2013 and April 2014 timetables assessed overall, were objectively less favourable than those allocated to the patients of Austinmer unit.
[10]
Explanation given by Justice Health to the President
In a letter to the President dated 26 June 2014, Ms Babineau wrote that the timetabling issues raised by Mr Dezfouli were being reviewed and:
The kiosk timetable was regularly reviewed to meet the needs of all patients.
The summary of the Complaint prepared by the Board records that Mr Goodeve told an officer of the Board:
Although it appeared from the roster that more hours are allocated to patients in the Austinmer unit, they are only permitted to attend the kiosk in small groups, so each female patient in fact has less time to visit the kiosk than male patients.
Allocating times under the timetable ensures there is not a mix of acute patients and patients who are less ill.
The timetable is not set in stone and regularly changes in response to staff and patient feedback.
[11]
Was Mr Dezfouli treated "less favourably"?
Section 24(1)(a) of the Act requires us to compare the treatment afforded to Mr Dezfouli with the treatment afforded to a female patient(s), in the same or not materially different circumstances. The comparator may be an actual or hypothetical person. Mr Dezfouli nominates the patients of the Austinmer Women's unit as an appropriate comparator.
It is plain that the treatment afforded Mr Dezfouli and that afforded to the female patients of the Austinmer unit, was different, in that among other things the Austinmer unit was allocated a greater number of the "premium" lunchtime slots. Neither party addressed whether the circumstances surrounding that differential treatment was the same or "not materially different". Because of our ultimate decision on causation it is not necessary to resolve this issue. For that reason, in analysing the issue of causation we adopt the approach we took in relation to the takeaway food allegation, of assuming that less favourable treatment is established.
[12]
Was one of the reasons for the less favourable treatment Mr Dezfouli's sex?
Justice Health submitted that "security issues" played a role in timetabling decisions. In addition, Justice Health argued that the "very good" timeslots given to the mixed-sex Adolescent unit and the male Clovelly unit (1300 to 1400 hrs, three days per week under all timetables) ,supports its contention that gender played no role in timetabling decisions.
Security (and presumably staffing) considerations explain why a decision was taken to restrict the times patients could access the kiosk so to limit the number of people who could be present at the kiosk at any one time. The information provided by Mr Goodeve to the Board about patients of the Austinmer unit only being permitted to visit the kiosk in small groups, explains why that unit was allocated more time in each week than the Dee Why unit. However neither explanation addresses why the Austinmer unit was allocated more lunchtime timeslots than the Dee Why unit under the April 2014 and June 2014 timetables.
Apart from stating that the timetable was constantly under review and attempts were being made to accommodate patient and staff concerns, Justice Health provided us with little information which might assist us to understand the basis of its decision to allocate more lunch time timeslots to the Austinmer unit than allocated to the Dee Why unit.
As Mr Dezfouli points out his sex need only be one, not necessarily the main or substantial reason for the offending treatment. Further, he does not need to establish that Justice Health intended to discriminate against, or to treat him less favourably.
Mr Dezfouli believes his gender influenced the making of the timetabling decisions which resulted in him being allocated less favourable time slots than allocated to the patients of the Austinmer unit. There is no direct evidence to support that belief. While mindful that the explanations proffered by Justice Health are not entirely satisfactory, having scrutinised all of the material before us we have concluded that it does not provide an adequate basis to draw the inference, that Mr Dezfouli's sex was one of the reasons for the less favourable treatment he was afforded by Justice Health.
As was the case in relation to the takeaway food allegation Mr Dezfouli does not rely on the "characteristics extension" in s 24(2) of the Act and nothing arises from the evidence which causes us to consider that provision.
The timetabling decisions made by Justice Health in relation to the patients of the Dee Why unit may be unfair, as Mr Dezfouli contends. However, to find that that treatment constitutes unlawful discrimination we must be satisfied on the balance of probabilities that Mr Dezfouli's sex was one of the reasons for the "less favourable treatment". We are not satisfied that the available evidence supports that finding and therefore must dismiss the complaint.
[13]
Consideration of further evidence provided after hearing
At the close of the hearing we made directions relating to the kiosk timetables. We did so because of concerns that the version of the timetables on the Tribunal file did not correspond with the version Mr Dezfouli provided to the Tribunal before the hearing. As Mr Dezfouli had not kept a copy of the timetables he provided to the Tribunal and did not attend the hearing in person, he was unable to comment on whether the copy on the Tribunal file corresponded with the copy he had provided. As it turned out the version he had supplied corresponded with the version on the Tribunal file.
In addition to directing Justice Health to give Mr Dezfouli a copy of the version of the timetable it understood he had provided to the Tribunal, we invited Mr Dezfouli to make submissions in the event that he considered the version of the timetable provided to the Tribunal did not correspond to the version he had provided. In addition we invited Justice Health to respond to any submissions made by Mr Dezfouli.
In their written submissions, Justice Health attached new material which related to proceedings before the Industrial Relations Commission of NSW and made submissions about that material. Justice Health submitted that that information was relevant to the timetabling issues, the subject of Mr Dezfouli's complaints.
We did not regard to this material because Justice Health had not been invited to, and did not seek leave to, provide it to the Tribunal. It may be that Justice Health's representative misunderstood the directions we made. Whatever the reason, we thought it would be useful to explain why we have disregarded this material.
The Tribunal is required to afford all parties procedural fairness and, among other things, to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (s 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW)). Justice Health had not been invited to provide new evidence to the Tribunal and more to the point, Mr Dezfouli had no notice of, and no opportunity to respond to, the evidence and submissions provided by Justice Health. This was not a matter of formality or form but a matter of procedural fairness.
The authorities have identified the harm in filing of submissions without, or outside, leave: see for example, NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 (at p 192); and Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 (at pp 513, 514); Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 (at p 330).
Given the Tribunal's broad powers to determine its own procedures (see for example, s 38(1) of the Civil and Administrative Tribunal Act), it would have been open to us to take into account the new material filed by Justice Health, providing of course that Mr Dezfouli was given the opportunity to respond. We decided not to do so because first, Justice Health had ample opportunity to provide the new evidence and make submissions about it before, and in the course of, the hearing; and, second, to do so in the circumstances of this case would in our opinion be inconsistent with one of the objects of the Civil and Administrative Tribunal Act, namely to resolve the real issues in dispute justly, quickly and cheaply. The prompt and fair dispatch of matters in the Tribunal requires order and regularity in the provision of evidence and submissions for the Tribunal's consideration.
[14]
Orders
The complaint lodged by Mr Dezfouli with the President of the Anti-Discrimination Board on 28 April 2014, is dismissed.
That part of the complaint lodged by Mr Dezfouli with the President of the Anti-Discrimination Board on 9 January 2014 in relation to the ordering of takeaway food, is dismissed.
[15]
Annexure A
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: 03 August 2015