Hamed v Director-General, Department of Education and Training [1999] VSC 310 | Case summary

Reasons for Decision Introduction 1 This case concerns three complaints made under the Anti-Discrimination Act 1977 (the Act) by the applicant, Dr Mohamed Hamed, against his employer, the Director-General of the NSW Department of Education and Training. The applicant has alleged that the respondent discriminated against him on the grounds of race and disability and that the respondent also engaged in an act of victimisation after the applicant had complained of race and disability discrimination. Most of the relevant events occurred during 2004 and 2005 when the applicant was employed by the respondent as a school teacher at Kotara High School. 2 The case was heard by the Tribunal in Newcastle over four days: 19 and 20 June, and 19 and 20 September 2006. The applicant presented his own case while the respondent was represented by counsel, Mr P Griffin. At the conclusion of the evidence the parties were directed to file written submissions. The final submissions were filed on 4 December 2006. The complaints to the President of the ADB 3 The applicant first complained to the President of the Anti-Discrimination Board (ADB) about the conduct of the respondent on 16 February 2005. At that time Dr Hamed was employed by the respondent as a science teacher at Kotara High School. Dr Hamed claimed that the Principal of the School, Mr Peter Sheargold, and the Head Science Teacher, Mr Tony Southward, discriminated against him on the grounds of disability and race in their dealings with him. In his initial letter of complaint to the President of the ADB, the applicant stated: 1. I work as a science teacher at Kotara High School; I feel that I have been discriminated against by the principal Mr Peter Sheargold and the head teacher Mr Tony Southward for the following reasons. 2. In a several occasion Mr Sheargold clearly indicated that I should medically retired, so the support teacher (white Australian) can have my position. This was in the presence of Mr Andrew Adams the rehab provider who works for injury management. 3. During my rehab period at the school I never get any assistance from the head teacher, the principal and the support teacher which appointed by the department to help me. 4. The support teacher Robin was supposed to help me during my difficult time caused by my back injury at another school, instead she gave the wrong information about me on the classroom to the head teacher, and the head teacher didn't investigate her claims. 5. On 29 October 2004, when they couldn't enforce me to medically retire, they placed me in a teacher improvement program without explaining to me why. 6. When I tried to know the reasons no legitimate response was given to me. 7. The only response from the principal that there is "a loud noise coming out of your class". 8. There are a lot of other classes which being taught by white Australian that also have noise and no action was taken against them. 9. In one occasion I sent a student to the head teacher because he refuses to do his work. The head teacher informed me that I shouldn't do that. Instead I have to send to him a student to come to my class. This is not the case with other white teacher they allowed to send troubled students to the head teacher. 10. On Monday 22 February 2004 during a meeting with the school principal and the head teacher the principal called me you have being silly, I consider this as an insult. As a result of the principal action I had a nervous breakdown and I suffered from stress and anxiety. 11. On Monday 14 2005 I attended a meeting I agreed to the program because the principal directed me to do so, but I asked him to start the program next week instead of this week because I was suffering from a severe back pain. He replied why you are here today I replied because you directed me though I am very sick. He terminated the meeting telling me and Kim (the welfare officer) off you go. Again this is the second time he insulted me in his office. 12. Kim was talking to me on my classroom after he terminated the meeting when I fainted and have a severe anxiety attack which lasted about an hour the ambulance had to come to examine me. What happened to me was a result of the principal action at the meeting. 13. There is an Indian teacher Miss B Hays working with me in the science Department and she also was treated unfairly as I am. I can't make any comment about Miss Hays' case at this stage but she could be my witness. 14. Finally I would like to say I have been discriminated against because of my injury and because I am from a different background. 4 In the form which accompanied the original letter of complaint to the President of the ADB the applicant included the following statement in a box headed 'What would you like to happen to sort out this complaint?': I would like to stop the School Principal and the head teacher from placing me in the improvement teacher program because it's biased and discriminatory due to my injury and background. 5 On 8 March 2005 the applicant wrote another letter to the President of the ADB which the President characterised as a complaint of victimisation in contravention of s 50 of the Act. In that letter Dr Hamed complained about the request made by Mr Sheargold, the Principal of Kotara High School, to Health Quest on 25 February 2005 to assess Dr Hamed's fitness to continue as a teacher. 6 The complaints made by the applicant to the President of the ADB were referred to the respondent for comment on 10 March 2005. On 3 May 2005 Mr Christopher Miles, the Senior Legal Officer employed by the NSW Department of Education and Training, responded to the President on behalf of the Director-General. All of the allegations of discrimination and victimisation were denied. In that letter Mr Miles also provided details of the applicant's employment by the respondent. Mr Miles advised that Dr Hamed's "employer for industrial purposes is the Director-General of Education and Training". He also advised that the applicant was employed as a teacher in a permanent capacity and that he was initially employed on 19 June 2000. After responding to Dr Hamed's complaints in some detail Mr Miles stated: In summary the Department respectfully submits to the Board that the substance of the complaint is Mr Hamed's dissatisfaction with the principal's decision to identify performance concerns and to place him on an improvement program. There is no evidence of unlawful discrimination in relation to that decision, and the complaint is lacking in substance. Accordingly, the Department would invite the Board to decline to entertain the complaint under section 90 of the Act on the grounds that it is lacking in substance. Alternatively, it is strongly submitted that the Board should decline to deal with the victimisation component of the complaint as there is no evidence at all that the respondent or any of its employees knew of the complainant's intention to file a complaint under the Anti-Discrimination Act prior to 14 March 2005. In the circumstances to the extent that conduct which is alleged occurred prior to that date, then it could not as a matter of law amount to victimisation under section 50 of the Act. 7 As the matter was unable to be resolved by the President of the ADB the applicant's three complaints were referred to the Tribunal for the purpose of a hearing. The nature of the complaints before the Tribunal 8 Following the referral of the complaints to the Tribunal the matter was initially dealt with by the Deputy President Magistrate Hennessy at a case conference on 16 November 2005. While the Deputy President declined the respondent's request that the applicant be directed to formally set out the details of his complaints in Points of Claim, steps were taken to refine the claims and to provide the respondent with reasonable notice of the nature of the claims being made by the applicant. In a document headed 'Tribunal's Summary of Complaint' the Deputy President noted that "the respondent accepts responsibility for the conduct of its employees and there appears to be no need to join any individuals as further respondents to the complaint". The complaints were described in general terms in that document as follows: The first complaint is an allegation of direct discrimination on the basis of race (Egyptian and colour - non-white) (s 8(2)(c) Anti-Discrimination Act ). The complaint was made on 16 February 2005 and relates to conduct during the period from 29 October 2004 to 16 February 2005. The second complaint is an allegation of discrimination on the basis of disability (back injury) (s 49D(2)(d) Anti-Discrimination Act). The complaint was made on 16 February 2005 and relates to conduct during the period from 29 October 2004 to 16 February 2005. The third complaint is an allegation of discrimination on the basis of victimisation (s 50(1)(c) Anti-Discrimination Act). The complaint was made on 8 March 2005 and relates to conduct during the period from February 2005 to 8 March 2005. 9 As neither party challenged this characterisation of the complaints, and as there was nothing which the applicant put to the Tribunal at the hearing or in his written submissions which departed from this characterisation, we propose to deal with the matter on the basis that these three paragraphs contain an accurate summary of the claims made against the respondent other than when dealing with the period of time covered by the complaints. This issue is dealt with below in paragraphs [17] to [19]. We also propose to deal with these complaints on the basis that the respondent is liable for the conduct of those of his employees, such as Mr Sheargold and Mr Southward, who had direct dealings with the applicant at Kotara High School. Mr Griffin did not seek to argue otherwise. Pursuant to s 53(1) of the Act employers are liable for the conduct of their employees unless any of the grounds of exculpation set out in that sub-section, or in s 53(3), are made out. 10 The first complaint involves a claim that the respondent in his capacity as the employer of the applicant unlawfully discriminated against him on the ground of race in contravention of s 8(2)(c) of the Act by subjecting him to detriment. The detriment was claimed to be the decision taken by the Principal of Kotara High School, Mr Sheargold, in October 2004 to place the applicant in an improvement program. It is a complaint of direct discrimination on the ground of race. Dr Hamed claims that he was treated less favourably on the ground of race than others of different national origin and skin colour would have been treated in similar circumstances. It is not in dispute that Dr Hamed is a person of Egyptian national origin and that his skin is of a dark colour. 11 The second complaint involves a claim that the respondent in his capacity as the employer of the applicant unlawfully discriminated against him on the ground of disability in contravention of s 49D(2)(d) of the Act by subjecting him to detriment. The detriment was claimed to be the conduct of the Principal of Kotara High School, Mr Sheargold, and the Head Teacher in Science at that school, Mr Southward, towards the applicant from the time they first had dealings with him in December 2003 until the date upon which the complaint was lodged. It is a complaint of direct discrimination on the ground of disability. Dr Hamed claims that he was treated less favourably on the ground of disability than others who did not have his disability would have been treated in similar circumstances. It is not in dispute that at all relevant times the applicant had a disability which fell within the definition of that term in s 4 of the Act. That disability was a back injury which he sustained as a result of a fall at Northlakes High School in February 2003. 12 The third complaint involves a claim that the respondent victimised the applicant in contravention of s 50(1)(c) of the Act by subjecting him to detriment because he had complained of discrimination on the grounds of race and disability. The detriment was claimed to be the request made by Mr Sheargold to Health Quest on 25 February 2005 to assess the applicant's fitness to continue duties. It is not in dispute that in mid-February 2005 the applicant had complained to Mr Sheargold, Mr Southward and Mr Wayne Ible, the School Education Director of the Hunter/Central Coast Region, about discrimination on the grounds of race and disability. 13 The applicant did not record in any document initially filed with the Tribunal the remedies which he claimed in the event that his complaints were substantiated. During the course of the hearing, however, the applicant indicated that he was seeking damages of $40,000 in relation to each complaint. This claim for damages was confirmed in the applicant's final written submissions. The evidence 14 There were two witnesses for the applicant: the applicant himself and Ms Bernadette Hayes who was a fellow teacher at Kotara High School. Both the applicant and Ms Hayes prepared written statements and they augmented those statements with additional oral evidence. Mr Griffin cross-examined both witnesses. The applicant tendered a statement from Ms Kim Stevenson, a Staff Support Officer from the Adamstown office of the NSW Department of Education and Training, two reports from Dr Kevin Helme, a consultant psychiatrist, and a report from Mr Mike Hammill, a registered psychologist. The applicant also tendered a number of testimonials from fellow teachers at his new school, former students and their parents. 15 The respondent led evidence from five witnesses: Mr Peter Sheargold (Principal, Kotara High School), Mr Anthony Southward (Head Science Teacher, Kotara High School), Mr Wayne Ible (School Education Director of the Hunter/Central Coast Region), Ms Robin Paddon (Science Teacher, Kotara High School), and Ms Jocelyn Ringland (Student Services Officer, Department of Education and Training). All of these witnesses were cross-examined by the applicant. In addition the respondent tendered various documents including its 'Procedures for managing teachers who are experiencing difficulties with their teaching performance', diary entries made by Mr Sheargold, and reports concerning the applicant. Conclusions 16 All of these complaints turn on issues of fact. The only legal issue of any consequence involves the period of time covered by the applicant's complaint of discrimination on the ground of disability. That complaint was made to the President of the ADB on 16 February 2005. The first incident which the applicant referred to in his evidence was a meeting with Mr Sheargold which took place 14 months earlier in December 2003. 17 In the past the period of time encompassed by a complaint was often a matter of dispute. Until the Act was amended by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 (which commenced operation on 2 May 2005), s 88(3) stipulated that a complaint must be lodged within six months of the date upon which the alleged contravention of the Act occurred unless the President of the ADB consented to a complaint being lodged out of time. Consequently, the Tribunal had no jurisdiction to find that an act of unlawful discrimination had occurred on a date which was more than six months prior to the date of the complaint unless the President had consented to an 'out of time' complaint. Further, in a series of cases which culminated in the Appeal Panel decision in Wollongong City Council v Bonella [2002] NSWADTAP 26, the Tribunal held that whilst a complaint could be made of a continuing contravention of the Act, the complaint could not encompass events which occurred after the date upon which the complaint was lodged with the President of the ADB. 18 This regime has now changed substantially as a result of the amendments to the Act by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004. The complaints in this case straddle both the former regime and that which has existed since the amendments to the Act came into effect on 2 May 2005. The intention of the legislature is that the new procedural regime should apply to part-heard cases because Part 5 of Schedule 1 to the Act stipulates that the amendments effected by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 apply to proceedings not finalised on the date of the commencement of the Amendment Act. 19 The old 'six month rule' no longer exists. The President of the ADB now possesses a discretionary power to decline a complaint if all or part of the conduct alleged occurred more than 12 months prior to the making of the complaint (s 89B(2)(b)). If the President does not exercise the discretionary power to decline a complaint, it appears that the complaint may encompass conduct which occurred more than 12 months before the date upon which the complaint was lodged. We propose dealing with the applicant's complaint of discrimination on the ground of disability on the basis that it encompasses conduct which took place between December 2003 and 16 February 2005. As the applicant claims that he first experienced discrimination on the ground of disability, it is appropriate that we deal with that complaint first. Complaint of discrimination on the ground of disability 20 While it is not in dispute that the applicant has a disability and that he believed that he was treated unfairly by the respondent during the period of time that he worked at Kotara High School, the precise nature of the applicant's claim that he was subjected to detriment and treated less favourably than others on the ground of his disability is difficult to identify. It is not sufficient for the applicant to establish that he was treated unfairly and that he has a disability. It is necessary for the applicant to establish that he was treated unfairly because he has a disability. It is necessary to demonstrate that he was subjected to treatment by his employer which objectively amounted to a detriment and that there was a causal connection between his disability and that treatment. The applicant's claims about conduct which amounted to discrimination on the ground of disability are further complicated by the fact that some of these claims overlap with some of his allegations about conduct which amounted to discrimination on the ground of race. He has also claimed that some of this conduct amounted to discrimination on the ground of religion. That is not a ground of unlawful discrimination under the Act. 21 The applicant claims that the Principal, Mr Sheargold, made a derogatory comment in the course of discussion about his disability during an initial meeting which took place in December 2003. Dr Hamed claimed that the comment amounted to a rejection of him. The applicant also claims that he did not receive adequate support at Kotara High School from Mr Sheargold, Mr Southward, or the support teacher who worked with him, Ms Robyn Paddon, because of his disability. We are not satisfied that there is any substance to these claims. 22 The 'offending' word used by Mr Sheargold in the meeting which took place in December 2003 was 'supernumerary'. The other people present at that meeting, which was the initial contact between Mr Sheargold and Dr Hamed concerning his appointment to the position of science teacher at Kotara High School commencing in 2004, were Mr Southward, the Head Science Teacher, Mr Andrew Adams, a case worker from Absolute Injury Management who provided rehabilitation services to Dr Hamed, and Mr Michael Palmer, a Staff Welfare officer from the Department of Education and Training. Mr Adams and Mr Palmer were not called to give evidence. 23 Prior to his appointment to a position at Kotara High School the applicant had been working at West Wallsend High School in a part-time position. In February 2003 the applicant was injured in a fall at Northlakes High School. He then had nearly six months away from work on workers compensation before returning to part-time work at West Wallsend with restrictions on the duties he could perform. The purpose of the meeting at Kotara High School in December 2003 was for Mr Sheargold to ascertain what duties the applicant could perform and for Mr Sheargold to allocate classes to Dr Hamed for the 2004 school year. The applicant alleges that following some discussion about the workload which he (the applicant) could perform, Mr Sheargold stated in reference to the applicant that he did not want a 'supernumerary' at the school. Mr Sheargold does not deny that he used the word 'supernumerary' but claims that he used it in reference to a person who would need to be appointed to the school to assist with the workload which ordinarily would be allocated to a person in the full-time position to which Dr Hamed had been appointed. We accept Mr Sheargold's version of his use of the term 'supernumerary' because it is logically connected to the manner in which that term is used in the school system. We accept Mr Sheargold's explanation that a 'supernumerary' is a person appointed to a school in an 'above establishment' position for what is usually a fixed period of time. The term could not logically have been used in relation to Dr Hamed because he had already been appointed to an 'establishment' position at Kotara High School. If there was to be a 'supernumerary' it had to be a new member of staff who would be appointed on a fixed term, as opposed to casual, basis to assist with the workload attached to Dr Hamed's 'establishment' position. A 'supernumerary', Ms Robyn Paddon, was in fact appointed to assist with that workload. 24 It is quite apparent that Dr Hamed on the one hand, and Mr Sheargold and Mr Southward on the other hand, had very different views about the role which Ms Paddon was expected to play when working with Dr Hamed. Whatever that role was supposed to be, there is simply no evidence which suggests that Mr Sheargold, Mr Southward or Ms Paddon failed to provide the applicant with proper support because of his disability. Ms Paddon was clearly placed in a very difficult position throughout 2004 and we accept that she was a truthful witness who sought to provide proper assistance to the applicant and to the students in his classes. We also accept the evidence of Mr Sheargold that both he and Ms Paddon made appropriate efforts to assist the applicant with his return to work program at Kotara High School. We note that the applicant did not attend Kotara High School on the first school day in 2004 and that he did not provide Mr Sheargold with an explanation for his absence until contacted by Mr Sheargold. We accept Mr Sheargold's evidence that throughout 2004 he met Dr Hamed and his rehabilitation provider Mr Adams on 11 occasions to deal with his return to work program. 25 We are not satisfied that the applicant was subjected to any detriment on the ground of his disability by the respondent during his period of time at Kotara High School. Complaint of discrimination on the ground of race 26 The applicant claims that the respondent subjected him to detriment because he is a person of Egyptian national origin and because he is a person with dark skin. As was the case with the applicant's claim of discrimination on the ground of disability, it is not sufficient for the applicant to establish that he was treated unfairly and that he is a person of different national origin and skin colour to other teachers at Kotara High School. It is necessary for the applicant to establish that he was treated unfairly because of his national origin and/or skin colour. It is necessary to demonstrate that he was subjected to treatment by his employer which objectively amounted to a detriment and that there was a causal connection between his 'race' (in this case his national origin and skin colour) and that treatment. 27 The incident which lies at the centre of the applicant's claim of race discrimination was the decision taken by Mr Sheargold in late October 2004 to place Dr Hamed in a program for managing teachers who were experiencing difficulties with their teaching performance. We accept that the applicant felt that it was grossly unfair that he be placed in this program. It is not our task, however, to determine whether Mr Sheargold's decision was fair; it is our task to determine whether this decision was influenced in any way by Dr Hamed's race because placement in this program clearly amounted to a detriment within the meaning of s 8(2)(d) of the Act. 28 Direct evidence of racial discrimination is rare. There is none in this case. It is quite acceptable, however, to reach a conclusion that a respondent has engaged in discrimination on the ground of race by drawing that inference from other facts found by the Tribunal (see eg Glasgow City Council v Zafar [1998] 2 All ER 953 and State of Victoria v McKenna [1999] VSC 310). We have concluded that there is no evidence in this case which would permit us to conclude that race was a factor which influenced Mr Sheargold's decision to include Dr Hamed in the teacher improvement program or that it influenced any later conduct by Mr Sheargold or any other person employed by the respondent towards Dr Hamed. 29 We accept that Dr Hamed found the decision to include him in the teacher improvement program deeply offensive. Dr Hamed is a highly qualified high school science teacher. He holds a PhD in toxicology from a reputable university in the United States. He has held university positions in Egypt. His experience as a high school teacher was, however, rather limited at the time these events took place. Dr Hamed first worked as a school teacher in 2000. We accept Mr Southward's evidence that he had numerous meetings with Dr Hamed throughout 2004 during which he raised concerns about various aspects of Dr Hamed's teaching performance. We accept Mr Sheargold's evidence that he felt as Principal of the school that he had good reasons for including Dr Hamed in the teacher improvement program and that Dr Hamed's national origin and skin colour were not matters which influenced that decision. 30 The only evidence which would permit us to draw the inference that Dr Hamed's national origin and/or skin colour were matters which influenced Mr Sheargold's decision to place Dr Hamed in the teacher improvement program was the evidence by Ms Hayes of a statement made by Mr Southward at a meeting of teachers in early 2005. According to Ms Hayes, Mr Southward made the following statement at that meeting: "The bottom line is if you had children would you want them to be in Mohamed's class. That is why I and Peter are insisting on him being on an improvement program". 31 Even if Mr Southward made this statement, which he denied, it does not permit the inference to be drawn that the actual decision-maker in this case, Mr Sheargold, was influenced by Dr Hamed's national origin and skin colour when he decided to place him in the improvement program. The only permissible inference which could be drawn from this statement is that Mr Southward did not have a high opinion of Dr Hamed's abilities as a school teacher. It is simply not possible to move from an opinion held by one person about the applicant's abilities as a school teacher to an inference that a different person, Mr Sheargold, acted as he did because of Dr Hamed's national origin and skin colour. 32 The applicant alleges that there were incidents which occurred at meetings with Mr Sheargold following the October 2004 decision to place him in the teacher improvement program which also constituted discrimination on the ground of race. On 22 November 2004 Dr Hamed, Mr Sheargold and Mr Southward met to discuss the applicant's placement in the teacher improvement program. It is not in dispute that in the course of that meeting the applicant suggested that the teacher who had been appointed as a supernumerary to assist, Ms Robyn Paddon, had been spying on him. It is also not in dispute that Mr Sheargold responded to this suggestion by saying that it was "silly". In his evidence the applicant stated that he was "insulted and humiliated" by this comment which he regarded as "demeaning". He stated that the "Kotara High School principal would not speak to a white teacher in such a demeaning way". Dr Hamed stated that "[a]s a result of this incidence I suffered stress and anxiety and having a nervous breakdown". After this incident Dr Hamed did not return to any teaching duties at Kotara High School for the rest of the 2004 school year. This incident did not amount to unlawful discrimination on the ground of race. In the circumstances it was not a 'detriment' to the applicant for the term "silly" to be used. There is no evidence which suggests that Dr Hamed was treated less favourably than a person of a different national origin and/or skin colour would have been treated in similar circumstances. 33 Another similar incident occurred at a meeting held between Mr Sheargold, Dr Hamed and Ms Kim Stevenson (Staff Support Officer, NSW Department of Education and Training) on 14 February 2005 to discuss his participation in the teacher improvement program. At this time it had not been possible to implement the teacher improvement program because the applicant had been absent from the school in late 2004 and when he had returned to school for the commencement of the 2005 school year he had been unwilling to take part in the program. At the meeting on 14 February 2005 Mr Sheargold gave Dr Hamed various instructions about the teacher improvement program including a direction that he should provide Mr Southward with some lesson plans by 16 February 2005. The applicant sought to further delay the commencement of the program but Mr Sheargold insisted that it should commence. The applicant then stated that he would not be at the school on various dates, including 16 February 2005, because he would be on sick leave. Mr Sheargold then announced that the program would be delayed until the applicant was fit to return to work and he terminated the meeting. At some stage after stating to the applicant that "the meeting is over", Mr Sheargold pointed at the door and said "off you go". While this was not the most diplomatic way to emphasise that the meeting was over, in the circumstances the use of these words did not amount to a 'detriment' to the applicant. There is no evidence which suggests that Dr Hamed was treated less favourably than a person of a different national origin and/or skin colour would have been treated in similar circumstances. 34 We are not satisfied that the applicant was subjected to any detriment on the ground of his race by the respondent during his period of time at Kotara High School. Complaint of victimisation 35 The applicant's final complaint is one of victimisation. The act of victimisation is claimed to be the decision taken by Mr Sheargold on 25 February 2005 to seek an assessment from Health Quest concerning Dr Hamed's fitness to continue his duties as a school teacher at Kotara High School. It is not in dispute that in mid-February 2005 the applicant had complained to Mr Sheargold, Mr Southward and Mr Wayne Ible, the School Education Director of the Hunter/Central Coast Region about discrimination on the grounds of race and disability. Those complaints were essentially the same as the complaints to the President of the ADB which are the subject of these proceedings. 36 Section 50(1)(c) of the Act is contravened if a person is subjected to "detriment" because he or she has alleged that another person has engaged in unlawful discrimination. Thus there must be conduct which constitutes a "detriment" to the applicant and there must be a causal connection between the conduct which amounts to a "detriment" and the making of an allegation of unlawful discrimination. Neither matter is made out in this case. It was not a "detriment" to the applicant for Mr Sheargold to request that Health Quest assess his fitness to continue duties. Given Dr Hamed's extended absences from work and his obvious reluctance to participate in the teacher improvement program because he claimed that there health issues which prevented him from attending, it was quite appropriate for the Principal to seek an assessment from Health Quest. Mr Sheargold had no capacity to influence that process to the detriment of the applicant because it was a matter for the medical practitioners who worked with Health Quest to determine Dr Hamed's fitness for work. Further, there is no evidence which suggests that there was a causal connection between Mr Sheargold's decision to request a Health Quest assessment and the applicant's claims of unlawful discrimination. 37 We are not satisfied that the applicant was victimised in contravention of s 50(1)(c) of the Act by the respondent during his period of time at Kotara High School. Decision and orders 38 As none of the three complaints have been substantiated they must be dismissed. The respondent should be given the opportunity to seek an order for costs if he so desires and the applicant must be given an opportunity to respond to any application for costs. 39 The Tribunal makes the following orders: 1. Complaints dismissed. 2. The respondent must file and serve written submissions in support of any application which he proposes to make for costs within 14 days of the date of these orders. 3. The applicant must file and serve any written submissions he proposes to make in opposition to an application by the respondent for costs within 14 days of receiving the respondent's written submissions.

Hamed v Director-General, Department of Education and Training

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