GXH v University of New England

NCAT Administrative and Equal Opportunity|2024-10-02

Note: A Reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

The publication or broadcast of the names of the Respondent's employees is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Background

GXH (the Applicant) is employed by the University of New England (the Respondent) on a full-time basis as a Senior Lecturer - Level C. He has been employed by the Respondent since July 2009. On 31 May 2023 the Applicant was awarded a specific Grant (the Grant). On 30 July 2023 the Applicant submitted an application to the Respondent for promotion to Associate Professor (Academic) - Level D. On 29 November 2023 the Applicant was advised by the Respondent's Vice Chancellor and CEO that his application for promotion was unsuccessful. The Applicant appealed that decision and on 13 March 2024 the Respondent's Vice Chancellor and CEO advised the Applicant that his appeal against the decision of the Academic Promotions 2023 Committee had been dismissed.
On 15 April 2023 the Respondent's senior manager of Payroll and Superannuation wrote to the Applicant, advising him that a review of their system had discovered an underpayment of his (and other employees') superannuation, dating back to 1 July 2015.
On 7 March 2024 the Applicant made a complaint to Anti-Discrimination NSW (ADNSW) alleging race discrimination and unlawful victimisation by the Respondent in connection with the award of the Grant and his 2023 application for academic promotion. On 17 April 2024 the Applicant made a further complaint to ADNSW alleging race discrimination by the Respondent in connection with his wages and superannuation. In summary, the Applicant alleged: 1. In respect of the Grant, that: 1. The Dean of the Faculty, referred to here as 'the Professor', "gave him difficulties in establishing the grant paperwork at UNE", 2. The Professor has never congratulated him on his grant or "answered [his] email for such a high achievement", and 3. As the grant is about India and the Applicant is Indian, he has faced racial discrimination; 1. In respect of his application for promotion, that: 1. He applied for promotion and his promotion was denied, 2. No feedback was provided in the email informing him of the outcome of his application, 3. When feedback was provided, it was false and related to India, 4. His race and Indian background were not a factor for consideration in his application, 5. In a meeting with the Deputy Vice-Chancellor and the Dean to discuss his application, the Dean got angry and spoke badly to him, and 6. He was not permitted to attend the Academic Promotions Committee meeting or the Academic Promotions Appeals Committee hearing; 1. In respect of his wages and superannuation, that: 1. He is being paid as a Senior Lecturer but has been made to work as an Associate Professor for the last 15 years, 2. He should have been promoted to Associate Professor at least eight years ago; 3. He has been underpaid superannuation by the Respondent for 10 years, and 4. He is the only person to have been underpaid superannuation by the Respondent.
On 2 August 2024, the President's delegate declined the Applicant's complaints under s 92(1)(a)(i) of the Anti-Discrimination Act 1977 (the Act), on the grounds that they were misconceived and lacking in substance, based on the following: "Complaint of race discrimination and unlawful victimisation lodged 7 March 2024 [The grant] The information received from you and the Respondent does not in my view support that [the Professor], made it difficult for you to establish [the Grant]. The email records and attachments provided by the respondent, appear to support the respondent's assertions that [the Professor] did not handle paperwork relating to grant administration. Rather, responsibility for this appears to have rested with the University's Associate Dean Research, the Grants Office and the Legal Office. Despite the apparent oversight of your email by the Associate Dean Research, [the Professor's] office acted quickly to facilitate the signing of the documents, by forwarding the required documents to the Associate Dean Research, who was responsible for signing the relevant document. Despite the tight turn around required for submission of documents, the initial oversight by the Associate Dean Research and the workloads of Legal Office, the grant agreement was nevertheless executed on time and you received the associated research funding. The information does not therefore support in my view, that you were treated less favourably because of your race compared to another employee of the respondent in the same or similar circumstances, or at all. Those circumstances being where there was a tight turn around for submission of documents, where there had been an oversight by the person required to sign off, and where the legal office was handling numerous other grant applications concurrently. Against the supporting documents provided by the respondent it is not reasonable for me to draw your suggested inference that the delay in processing the grant documents was linked to your race because the grant was about India, and because you are Indian. Whilst there is no disagreement that [the Professor] did not personally congratulate you on securing the grant, the information supports that several university employees did congratulate you. This included the Grants team and the interim Vice-Chancellor. It cannot therefore follow in my view that the respondent failed to congratulate you on your achievement. In addition, other than your assertions of race discrimination, there is nothing in the information provided from which I can draw a reasonable inference that [the Professor]'s failure to congratulate you was because of your race. Application for promotion The information provided does not in my view support that your application for promotion to Associate Professor (Academic) - Level D was denied because of your race, or that you were treated less favourably in the appeals process because of your race or at all. The information appears to support, that the respondent applied its standard process in assessing your application for promotion. The reasons provided in the respondent's "Unsuccessful Applicant Feedback - [GHX]" included in the promotion committee's record of its deliberations, and the respondent's email to you of 7 December 2023, including the committee's feedback, do not in my view go to your race. Other than your allegations, there is nothing in my view to support that your race was a factor in the promotion committee's deliberation and decision. It is also notable that the respondent has advised that of the 18 applicants for level D promotion, 4 others were also unsuccessful in their applications for promotion. In light of the respondent's supporting information as to the reasons your application for promotion was unsuccessful, it is not reasonable for me to draw your suggested inference that your race was the real or operative reason for the promotion committee's decision. The information provided suggests you were treated no differently to other applicants who wished to appeal the promotion committee's decision. The Vice-Chancellor's letter to you of 29 November 2023, clearly includes information about its standard process for feedback and a link to the "Academic Promotions and Appeals Procedure". Moreover, Ms M's email to you of 5 December 2023 also includes information about the appeals process and a further link to the "Academic Promotions Procedure". The email also attaches a copy of the appeals form. While you were clearly dissatisfied at not being afforded the opportunity to speak to your appeal at the promotions appeals committee meeting, the information on hand supports the respondent's assertion that this was a standard procedure. It is therefore my view that the respondent treated you no differently to any other applicant wishing to appeal a promotion decision. Victimisation You allege that when you raised issues of being treated unfairly and being discriminated against in your application for promotion feedback meeting, held 8 December 2023 with the Deputy Vice Chancellor and [the Professor], [the Professor] threatened to leave the room. The respondent has offered a different explanation for [the Professor]'s statement, being that she simply offered to leave the room when you became critical of her. Taking either version of the event, it would appear that [the Professor] did not leave the meeting and that you were happy for her to remain there. As such, I am of the view that you suffered no real detriment as a result of [the Professor]'s offered to leave the meeting. The information does not therefore support that you were subjected to unlawful victimisation via [the Professor]'s conduct. Other than the above alleged incident your complaint did not include information about what conduct you considered to be unlawful victimisation. As part of your comments in reply to the respondent's response, you have since made a number of further allegations of unlawful victimisation not previously raised in your complaint. These alleged that [the Professor] failed to greet you, turned her back to you, or otherwise ignored you at various social events. Other than your allegations there is no information to support your suggested inference that [the Professor]'s alleged treatment of you was because you had had alleged unlawful discrimination. I am also of the view that the alleged detrimental treatment was of little or no consequence to you. You had not raised these allegations previously, and the conduct appears to be of a trivial nature in my view. As such, I am of the view that you have suffered no real or substantial detriment by [the Professor]'s alleged conduct towards you at these social functions, and the conduct alleged could not therefore amount to unlawful victimisation in my view. Complaint of race discrimination lodged 17 April 2024 Underpayment of wages Your underpayment of wages claim relies on your allegation that you were paid at the wrong rate, because the respondent has allegedly taken advantage of you by not promoting you to a level commensurate with your work. You allege that the failure to promote you over the years was because of your race. On the other hand the respondent has provided information to support that you are being paid at the appropriate rate for the role in which you were employed, as Senior Lecturer - Level C. For reasons already discussed above, I am of the view that the information does not support that you were treated any differently to other applicants in the respondent's application for promotions process, or that the outcome of that process was connected to your race. The information does not in my view therefore support your allegation that you were underpaid wages because of your race, or at all. Underpayment of superannuation The respondent has advised that you were one of approximately 750 current employees affected by the superannuation shortfall due to a misconfiguration in the payroll system. The respondent has also advised that this shortfall has since been corrected. You appear to not challenge the respondent's explanation for the shortfall, but rather you have asserted wages theft and have requested that accounting evidence be provided. In light of the respondent's plausible explanation and the absence of supporting information to the contrary, there is nothing in my view to suggest that you were treated any less favourably by the respondent as compared to the 750 other employees who incurred a superannuation shortfall, or that the shortfall was somehow connected to your race."
At the Applicant's request, the President referred his complaints to the NSW Civil and Administrative Tribunal (Tribunal) as required by s 93A of the Act. I note that the President's Summary of Complaint and attached documents, as referred to the Tribunal and which I have considered in relation to this application, numbered over 700 pages.
The Tribunal has power to grant, or to refuse to grant, leave for that part of the complaint accepted for investigation by the President and referred to the Tribunal under s 93A of the Act: s 96(1) of the Act. The Tribunal conducted a hearing on 2 October 2024 on the question of leave at which both the Applicant and Respondent took the opportunity afforded to them to make oral submissions, with reference to the material included in the President's Summary of Complaint and its attachments.
The Respondent opposed leave being granted, submitting that the Applicant's complaints were misconceived and premised on a false assumption by the Applicant that the provision of the Grant was a sufficient basis for the promotion sought by him. The Respondent submitted that the Applicant had not indicated whether he was claiming direct or indirect discrimination or how it would apply to his alleged complaints, that there was no causal link between the conduct complained about by the Applicant and his race, and no evidence to support his claim of victimisation.
For the reasons that follow, I have decided to refuse leave for the complaint to proceed.

Legal Principles

A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] (Ekermawi). That discretion 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 at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. 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 at [60].
In considering a leave application the Tribunal must take the applicant's evidence at its highest, that is, everything the applicant has put in evidence is accepted as true and then the Tribunal determines whether he could possibly succeed in his complaint of racial discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].
If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.
Section 7 of the Act outlines what is considered discrimination 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 … c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, 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) 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.
Section 7(1)(a) outlines what conduct is considered "direct race discrimination" and s 7(1)(c) outlines what conduct is considered "indirect race discrimination".
Pursuant to s 8(2) of the Act, it is unlawful for an employer to discriminate against a person on the ground of race: 1. in the terms or conditions of employment which the employer affords the employee, 2. 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 3. by dismissing the employee or subjecting the employee to any other detriment. 8 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.
In order to establish a claim of racial 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 race (sometimes referred to as "the causation question").
The words "on the grounds of" have been paraphrased as "because of", "due to," or "a real" reason, a "genuine" reason or "true" reason for the treatment alleged to have been discriminatory: see Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
To demonstrate causation between differential treatment and a person's race in matters of direct discrimination, the question to be asked is whether the person's race is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment: see Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144; Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20.
Where there is no direct evidence of causation on the ground of race, a causal link between the Applicant's race and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence: see Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] (Dutt).
If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered: see Dutt at [59]‑[65]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].
In Dutt at [60]‑[65], the Tribunal discussed the question of whether or not there has been "less favourable treatment" of the applicant "than others in the same or similar position" where the comparator is a hypothetical comparator: "[63] … 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."
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 his race: see Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56]. It is not the case that because a person is of a particular race and experiences something he or she perceives as "adverse" to him/herself, that the conduct is discriminatory simply because the person is of that race. The person needs to prove on the civil standard that the conduct impugned occurred "on the ground of", "due to" or "because of" the race of the person or that was one of the reasons for the conduct. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned is the race of the person.
A person may also experience indirect racial discrimination if a requirement operates differentially on a person of a different race.

Consideration

To determine whether, as the Respondent contends, the complaint is lacking in substance, it is necessary to first identify the elements the Applicant must establish, if leave is granted for the complaint to proceed.
If cast as a complaint of direct discrimination pursuant to s 7(1)(a) of the Act the Applicant must establish: 1. that he is Indian; 2. that the conduct described above at paragraphs 3(1), 3(2), 3(3) occurred; 3. that the Respondent treated him less favourably than it treated, or would have treated, a non-Indian person in the same circumstances, or in circumstances which were not materially different (differential / less favourable treatment); 4. that one of the reasons for any less favourable treatment was the Applicant's race, or a characteristic that generally appertains to, or is generally imputed to, Indian persons (causation).
There appeared to be no complaint of indirect race discrimination. In order for the direct discrimination, if found, to be unlawful pursuant to s 8(2) of the Act, the Applicant would then need to demonstrate that the differential treatment on the ground of his race: 1. were part of the terms or conditions of his employment with the Respondent, or impacted on the terms or conditions of his employment, or 2. denied him or limited his access to an opportunity for promotion, transfer or training, or to any other benefits associated with employment, or 3. was dismissal from his employment, or 4. subjected him to "any other detriment" in the context of his employment.
In relation to the Applicant's victimisation complaint, the Applicant would need to demonstrate that: 1. he did one or more of the things listed in s 50 (a) - (d) of the Act, which I will refer to as the "trigger"; 2. the Respondent subjected him to a detriment; and 3. the detriment was on the ground that the Applicant did one of the things listed in s 50 (a) - (d) of the Act, which I will refer to as "causation": see Carroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24].
I understand the Respondent to accept that the Applicant is Indian, and that the following conduct occurred: 1. that [the Professor] did not personally congratulate the Applicant on receipt of the Grant; 2. that there was a delay in processing the documentation for the Grant; 3. that the Applicant applied for the promotion and was unsuccessful; 4. that the Applicant appealed the decision to refuse his promotion application and was not afforded the opportunity to speak at the appeal; 5. that the Applicant's appeal was unsuccessful; 6. that the Applicant was underpaid superannuation; 7. that [the Professor] offered to leave the room when the Applicant complained about discrimination during a promotion feedback meeting on 8 December 2023.
The Respondent does not accept that the following conduct occurred: 1. that the Applicant had been working at Associate Professor level for 15 years; 2. that the Applicant was underpaid wages as a result of working at Associate Professor level for 15 years; 3. that the Applicant was treated differently to any other of the candidates applying for the promotion; 4. that the Applicant was treated differently to any other persons appealing their promotion decision; 5. that the Respondent failed to congratulate the Applicant on receipt of the Grant;
It was unclear whether the Respondent accepted that [the Professor] had treated the Applicant as he alleged at various social functions.
The Respondent did not accept causation - it, that any of the conduct it had accepted it had occurred, was because of, or on the ground of, the Applicant's race. It also did not accept that any of the conduct by [the Professor] towards the Applicant, if it occurred as alleged, was because the Applicant complained of discrimination.
The Applicant's evidence at hearing was that he had been working for the Respondent for 15 years and had experienced continuous racism, discrimination and unfairness. He believed the Dean had not congratulated him about the Grant and had not communicated with him about it, in relation to facilitating it, because of his race. He had been told in his annual performance reviews for years that he needed to get a grant in order to get a promotion, and when he had finally obtained the Grant his application was rejected without feedback.
I asked the Applicant to show me where in the voluminous materials it confirmed that the University had said, as he claimed "If you receive a grant, you get a promotion". He referred me to documents at page 197, which included a list of the grant funding he had obtained, and page 688, which was a copy of his performance review including his aspiration "I would like to have professional development", but did not include the claimed statement by the Respondent that obtaining a grant would result in a promotion.
The Applicant complained that the Committee feedback on his promotion application had been "discriminatory racist, unfair & biased and negatively assessed" because "India" had been mentioned twice within 2 paragraphs. The relevant feedback was: "Profoundly significant career interruptions were taken into consideration when assessing the application relative to opportunity. The committee recognised achievement in lots of areas in particular leadership in teaching and learning and some leadership and research in terms of HDR supervisions and grant applications, the main area of concern however was the service leadership with more involvement in formal leadership roles recommended. The core projects currently underway in India were acknowledged but it was noted that it was difficult to assess the level of impact and significance of these projects to demonstrate achievement at a level D. The candidate should be commended on celebrating cultural diversity and connecting UNE to diverse international communities and for future applications the committee would recommend including a narrative on how these connections impact UNE and India. In preparing an application in the future, the candidate is encouraged to develop a narrative that articulates the leadership and impact of contribution that is characteristic of the standards for level D."
I pointed out to the Applicant that these paragraphs and the records he identified at pages 664 and 665 of the President's Summary of Complaint made no reference to his ethnicity, but referred only to the subject matter of his work and projects. The Applicant was unable to accept that the reference to "India" in the feedback forms did not refer to his ethnicity. He stated that there was a culture of racism at the Respondent's University and that it was offensive to refer to India in his promotion application feedback, despite his application referring to the projects and teaching with which he was involved in India, and the Grant being associated with Australian-Indian entities.
While the Tribunal accepts the Applicant's evidence for the purposes of determining whether leave ought to be granted, and takes it at its highest, there is no evidence supporting the Applicant's assertions that he was entitled to a promotion because he received the Grant. The evidence before the Tribunal, taken at its highest, was that the Applicant believed his receipt of the Grant meant that his application for promotion would be, but that this belief was not supported by any statements or inferences made by the Respondent or its employees.
The evidence provided by the Respondent regarding the promotions assessment process and the considerations taken into account in determining whether an application for promotion is successful, does not support any claim that the receipt of a grant by a candidate results in an individual's promotion. It is clear from the evidence before the Tribunal that a number of factors and considerations are taken into account in considering applications for promotion, only one of which is the receipt of such research grants. I therefore cannot find on the evidence before me that the Applicant was entitled to the promotion he unsuccessfully applied for, because he was in receipt of the Grant.
There is no evidence before the Tribunal that the Applicant's application for promotion was treated any differently to the other applications considered by the Respondent for promotion.
While the Applicant claims he received no feedback in relation to his application, on his own evidence he did receive feedback (which he then complained was racist and discriminatory, as discussed above at [36]). There is no evidence before the Tribunal that the Applicant was treated differently to any of the other applicants whose applications for promotion were rejected by the Respondent. Nor is there any evidence that any other unsuccessful candidates who appealed the rejection of their promotion application were treated any differently in the course of their appeal, or that they were allowed to speak at the appeal when the Applicant was not.
There is also no evidence to suggest that [the Professor] personally congratulated other individuals who were in receipt of grants, but not the Applicant. The evidence before the Tribunal at pages 137 and 157 supports the Respondent's assertion that the Applicant was congratulated by the Respondent's Grants Team and interim Vice-Chancellor.
I consider the following parts of the Applicant's claim to be lacking in substance on the basis that he has not provided with the Tribunal with evidence, beyond assertion, supporting those parts of his claim, and there is evidence to the contrary: 1. that no feedback was provided in the email informing him of the outcome of his application for promotion; 2. that when feedback was provided, it was false and related to India; 3. that he has been made to work as an Associate Professor for the last 15 years, but has been paid erroneously at Senior Lecturer level; 4. that he should have been promoted to Associate Professor at least eight years ago; 5. that he is the only person to have been underpaid superannuation by the Respondent.
Where there is no evidence of differential or less favourable treatment, there is no discrimination. I find that the following parts of the Applicant's claim are misconceived and lacking in substance on the evidence before the Tribunal, because there is no differential or less favourable treatment of him, in comparison to any other individual (real or hypothetical): 1. that he applied for promotion and his promotion was denied; 2. that he was not permitted to attend the Academic Promotions Committee meeting or the Academic Promotions Appeals Committee hearing.
The Respondent accepted that there was a delay in processing the Applicant's Grant but submitted that, on the evidence before the Tribunal, this delay was inadvertent and was rectified within a very short timeframe so as not to prejudice the Applicant's receipt of the Grant. The evidence before the Tribunal was that the Applicant had sent the grant information to [the Professor], but it was not part of [the Professor]'s role to handle the paperwork relating to grant administration. [The Professor]'s office forwarded the grant information to the Associate Dean Research, who handles grant administration. The email was overlooked until it was brought to his attention on 14 June 2023, following which the necessary documentation was prepared and executed and the Applicant received the grant funding. I agree that where there was no demonstrable prejudice caused to the Applicant by the delay, there is no "detriment". Even if I did accept, however, that the delay had caused the Applicant some detriment, there is no direct evidence that this delay had anything to do with the Applicant's race.
As discussed above, where there is no direct evidence of the causal connection, the Tribunal can consider whether an inference ought to be drawn on the available evidence. Despite the Applicant's belief that references to "India" in his promotion assessment feedback constituted overt racism, as was pointed out to him at the hearing, those references are clearly made in relation to the work in India he had included in his promotion application, not his ethnicity. There is no evidence before the Tribunal upon which the Tribunal would infer that the real, genuine or true reason for the Respondent's conduct in delaying the processing of the Applicant's Grant, was the Applicant's race. This is because the inference is not logical or reasonable, and there are more probable innocent explanations for the conduct, being that the delay in processing the documentation for the Grant was inadvertent, and was rectified as soon as possible.
Nor is there any direct evidence that the real, genuine or true reason for [the Professor]'s failure to congratulate the Applicant upon his receipt of the Grant had anything to do with his race. The evidence before the Tribunal demonstrated that [the Professor] had many competing priorities and responsibilities. The more probable and innocent explanation on the evidence is that those competing priorities and responsibilities (which did not include grant administration) meant that she did not respond to many emails, including the Applicant's.
I therefore agree with the President's Summary of Complaint that the Applicant's complaints of race discrimination are misconceived and lacking in substance.

Victimisation

The Applicant's complaint of victimisation alleges that [the Professor] "got angry and spoke badly" to him in the meeting of 8 December 2023. In response to requests for further information from ADNSW, the Applicant identified (at pages 679 - 680 of the President's Summary of Complaint) additional instances of [the Professor]'s conduct in various professional and social settings associated with the Respondent's faculty, including dinners, morning teas and barbeques. The Applicant alleged that [the Professor] failed to respond to his greetings, speak to him or otherwise acknowledge him at such events.
The Applicant claims that in the meeting of 8 December 2023 he complained that his failure to be promoted was based on racism and discrimination. Although not expressly submitted by the Applicant, I assume that this is therefore claimed to be the "trigger" within the meaning of s 50(1)(c) of the Act - that the Respondent committed an act which would amount to a contravention of this Act.
The Applicant then needs to demonstrate that he has suffered a detriment. The Respondent's submissions on this issue were that the Applicant had not provided any evidence of detriment, "that the University has at all times treated the Applicant fairly and reasonably". The Applicant's claims of detriment in the context of victimisation, however, are not focussed on how the Respondent has treated him generally, but how [the Professor] has personally interacted with him at various social events. Taking the Applicant's evidence at its highest, for the purpose of determining whether a claim of victimisation could be substantiated, I accept that [the Professor] has ignored the Applicant in various social settings as alleged between 2022 and 2023, and I accept that she "threatened" to leave the meeting on 8 December 2023 when he complained that his failure to obtain a promotion was discriminatory.
However, there is no direct evidence that such conduct by [the Professor] was causally connected to the complaint the Applicant raised about racism and discrimination in relation to his promotion. Accordingly, to demonstrate causation, an inference would have to be drawn by the Tribunal on the available evidence, which is logical and reasonable.
There is no such logical or reasonable inference available on the evidence before the Tribunal that [the Professor]'s conduct towards the Applicant, even if it was proven as alleged by the Applicant, was because of, on the grounds or, or related to the Applicant's complaint of racism and discrimination on 8 December 2023. Many of the instances of [the Professor]'s complained about conduct occurred prior to that date. The settings in which they are alleged to occur are group social or professional events, where it is more logical and reasonable to infer that [the Professor] had other persons competing for her attention, and priorities other than speaking to the Applicant, than to infer that she did not interact with the Applicant because he had complained of discrimination.
In relation to the meeting on 8 December 2023, even if I were to accept the Applicant's account of that meeting, to the effect that [the Professor] appeared "angry and spoke badly" towards him, and threatened to leave the meeting, there is insufficient evidence upon which I could draw the inference that this conduct was because the Applicant had said he would make a complaint of discrimination. The more probable explanation is that this is how the Applicant perceived her request, in the context of critical feedback which she and the Deputy Vice-Chancellor were giving him, and which was disappointing to him. It is also doubtful whether such conduct could have caused the Applicant a "detriment", in circumstances where it is agreed that [the Professor] did not leave the meeting, and the meeting continued.
I therefore do not accept on the evidence available to the Tribunal that any of the interactions between the Applicant and [the Professor] caused the Applicant any tangible "detriment", and I do not infer that any of [the Professor]'s conduct towards the Applicant, on the evidence available to the Tribunal, was causally connected to the Applicant's complaint of racism or discrimination.
I agree with the assessments contained in the President's Summary of Complaint, that the Applicant's complaints are misconceived and lacking in substance, for the reasons expressed above.

Should leave be granted or not granted?

In deciding whether it is "fair and just" to grant or to refuse leave, in addition to the grounds discussed above, I have taken into account the evidence of the Applicant about the impact the Respondent's conduct has had on him, and his perception of there being a culture of racism within his faculty. I have taken into account his evidence of how disappointed and frustrated he was and is with the decision to not grant him the promotion he believes he has earned, and how offended he has felt as a result of [the Professor]'s conduct towards him. I also take into account the purpose of the legislative scheme as expressed in Ekermawi and I am guided by the consideration that the refusal of leave in these proceedings would finally determine the complainant's rights under this legislative scheme.
However, for the reasons discussed above, I agree with the ADNSW's assessment, as contained in the President's Summary of Complaint, that the Applicant's complaints are misconceived and lacking in substance.
In my view it would therefore not be fair or just to grant leave for the Applicant's complaints to proceed.

Order 1. Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the Applicant's complaints to proceed. 2. The publication or broadcast of the name of the applicant is prohibited. The Applicant is to be referred to as 'GXH'. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: A Reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 3. The publication or broadcast of the names of the Respondent's employees is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: A Reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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

Amendments 03 March 2025 - Decision amended to include Orders 2 and 3 made on 27 February 2025. The names of the Applicant and the Respondent's employees have been anonymised. Minor formatting corrections have been made. 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 March 2025

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