Dezfouli v Justice Health and Forensic Mental Health Network

NCAT Administrative and Equal Opportunity|2019-05-28|Before: Health J

REASONS FOR DECISION

Mr Dezfouli complained to the Anti-Discrimination Board (the Board) that a nurse employed by the first respondent (the Nurse), sexually harassed him in breach of the Anti-Discrimination Act 1977 (AD Act). Mr Dezfouli also complained that he was victimised after making a complaint. The President of the Anti-Discrimination Board (the President) declined his complaints of sexual harassment and victimisation against both the Nurse and her employer as lacking in substance: s 92(1)(a)(i) AD Act.
Mr Dezfouli applied to the Tribunal for leave to proceed with his complaints in the Tribunal.
The Tribunal may give Mr Dezfouli permission for his complaints to go ahead if it is fair and just to do so: Jones v Ekermawi [2009] NSWCA 388; s 96(1) AD Act. The onus is on Mr Dezfouli to satisfy the Tribunal that leave should be granted: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 at [2]; Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 at [3]. The discretion to grant leave for a complaint to proceed must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones v Ekermawi [2009] NSWCA 388.
I have decided not to give Mr Dezfouli permission for his sexual harassment or victimisation complaints to go ahead because it is highly unlikely that he would be able to substantiate them.

Sexual harassment complaint

To succeed in a complaint of sexual harassment against either of the respondents, Mr Dezfouli would have to prove that, in the course of receiving services from a person, that person engaged in unwelcome conduct of a sexual nature in relation to him in circumstances in which a reasonable person would have anticipated that Mr Dezfouli would be offended, humiliated or intimidated: ss 22A, 22F AD Act.
Justice Health accepts that Mr Dezfouli was receiving services from the Nurse at the time of the alleged conduct.
The issue is whether the complaints should proceed. That depends to some extent on the merits of the complaints. Mr Dezfouli relies on the record of the incident in a report provided to the MHRT in August 2017. That document (of which there is only one page, with no confirming identification or date) is included in Mr Dezfouli's complaint to the Board. The document records his statement as to what is said to have occurred in April 2017, in the context of another issue as to his treatment in the hospital when he requested to see a podiatrist. It lends some support, reasonably close to the time the events are said to have occurred, for the allegation in the complaint that an identified nurse had once said "I have feelings for you" and that he rejected her approach. A similar statement appears in the extract from a second document said to have been provided to the MHRT by his treating doctor in September 2017.
There is minimal material provided by the respondent Justice Health, only the confirmation that a verbal complaint was made on 10 July 2017, that the follow up written complaint cannot be located, and the complaint was investigated. The documents forwarded to the Tribunal by the Board do not include any record of how the complaint was investigated or what steps may have been taken to obtain information from either Mr Dezfouli or the Nurse. There is no evidence from the Nurse before the Tribunal.
If the facts are established as asserted by Mr Dezfouli, the issue is whether the elements of s 22A of the AD Act could be met. Section 22A defines "sexual harassment" in the following terms: 22A Meaning of "sexual harassment" For the purposes of this Part, a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
Mr Dezfouli states, and I accept, that the Nurse's approach was unwelcome and offensive to him. It is arguable that it was conduct of a sexual nature. Section 22A also requires proof of an objective element which evaluates the behaviour in question from the perspective of the reasonable person. For the complaint to succeed Mr Dezfouli would have to establish that the Nurse's conduct took place in circumstances which would have caused a reasonable person to anticipate that he or she would be "offended, humiliated or intimidated". While it is possible for a single event to be so regarded, it is relevant that Mr Dezfouli complains of only one instance of unwelcome touching and words. The words were not sexually explicit, and did not take the form of unwanted questions or suggestions; on an objective assessment a reasonable person is likely to characterise it as a declaration of the Nurse's feelings. In the Tribunal's view it is unlikely that Mr Dezfouli could establish the objective element of s 22A of the AD Act.
The Tribunal concludes that it is not fair and just for the complaints of sexual harassment to proceed because it is highly unlikely to succeed if they go to a hearing.

Victimisation complaint

If the complaint were to proceed, Mr Dezfouli would have the onus of establishing that he had been victimised. Section 50(1) of the AD Act provides: 50 Victimisation (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.
In summary, to prove victimisation Mr Dezfouli would have to prove that: 1. he did one or more of the things listed in (a) - (d): (the trigger); 2. the respondent subjected him to a detriment; and 3. the detriment was on the ground that Mr Dezfouli did one of the things listed in (a) - (d): (causation) (see Carroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24]).

Trigger

There is no dispute that Mr Dezfouli made a complaint of sexual harassment against the Nurse. If it were established that Mr Dezfouli had alleged that the Nurse had committed an act that would amount to a contravention of the AD Act, that would constitute a "trigger" for the purposes of s 50(1)(c).

Detriment and causation

The detriment of which Mr Dezfouli complains is that after he rejected her, the Nurse became "unprofessional, unethical, rude, offensive and provocative" towards him. He states that he complained to the NUM and his treating doctor when he could not put up with her attitude any more. There is no indication in the complaint, or in any of the supporting material provided to the Board, that this alleged conduct occurred after he made the complaint to the NUM on 10 July 2017. At its highest, his position appears to be that after he made the complaint a 2:1 approach was implemented, meaning that two staff approach him at all times. Even if he could establish that he was subjected to a detriment, in the form of a disadvantage with consequent loss, damage or injury, in the absence of any material to suggest that any such detriment arose because of or could be attributable to the making of the complaint, there are limited prospects of success in establishing the elements of s 50 of the AD Act.
The Tribunal concludes that it is not fair and just for the complaints of victimisation to proceed because it is highly unlikely to succeed if they go to a hearing.

Conclusion

The Tribunal orders:
Leave for the complaints of sexual harassment and victimisation to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977.
Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 disclosure of the name of the second respondent is prohibited.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 10 July 2019

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