Hayashi v McGree & Others t/as StewartBrown [2025] NSWCATAD 305;

1. At the hearing of the leave application, I considered the evidence and submissions filed by Ms Hayashi and the respondent. I also heard from both parties in oral submissions, including giving Ms Hayashi the opportunity to make submissions in reply.

Principles relevant to the consideration of whether to grant leave in this case

1. Where ADNSW is satisfied that a complaint is lacking in substance, it may be declined in whole or in part under s 92(1)(a)(i) of the Anti-Discrimination Act 1977 (NSW).
2. A complaint can 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; Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
3. On 4 April 2025, having received further information from Ms Hayashi and having sought a response from the Respondent, and having then received further information from Ms Hayashi which addressed the Respondent's response, ADNSW decided to decline the complaint under s 92(1)(a)(i) of the Anti-Discrimination Act. ADNSW informed Ms Hayashi that the delegate had declined the complaint on the basis that it lacked substance, as she did not demonstrate that she was treated less favourably due to her race, nor had she established a link between the conduct of the complaint and her race. Furthermore, the respondent provided credible information about the six-month probation period and her performance issues.
4. Where a complaint is declined in this way, ADNSW must refer the complaint to the Tribunal if, as where, it receives a written request from the complainant to do so: s 93A of the Anti-Discrimination Act. However, a complaint referred to the Tribunal in this manner cannot proceed without the Tribunal's leave. That is the application before me now, to determine.
5. Under s 91 of the Anti-Discrimination Act, the Tribunal has an unfettered discretionary power to grant, or refuse to grant, leave where a complaint that has been accepted for investigation by ADNSW and then referred under s 93A: Jones v Ekermawi [2009] NSWCA 388 at [57]- [59] ("Jones"); Ekermawi v Administrative Decisions Tribunal of NSW [2009] NSWSC 143 at [25] ("Ekermawi"). Nonetheless, the discretion must be exercised having regard to the purpose of the legislative scheme established by the Anti-Discrimination Act and should also be informed by the consideration that refusal to grant leave will have the effect of bringing the complaint to an end: Jones at [57], Ekermawi at [32].
6. In considering whether the grant leave, the applicant's evidence may be taken at its highest, in a similar manner that a court or Tribunal might consider and determine a "no-case" submission. That is, the Tribunal may accept everything the applicant has put in evidence as true for the purpose of determining whether he or she can possibly succeed in establishing the necessary elements of the complaint: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWATD 73 at [35]. However, Prakash was not concerned with the question of leave after a complaint was declined under s 92. In those proceedings, the dismissal was considered only after the complainant had been given the opportunity to present his case in full and have his account tested in cross-examination. Prakash is an important decision when the Tribunal exercises its powers of dismissal under s 102 of the Anti-Discrimination Act, but in my respectful opinion, its applicability is somewhat limited regarding the question of whether to grant leave under s 96 of the Anti-Discrimination Act.
7. Rather, I consider that the better approach to determining the question of leave is to evaluate whether it is fair and just to grant or refuse leave, having regard to the particular circumstances of the case. Schmidt AJ in Ekermawi at [38] after considering the application of the statutory provisions constituting the predecessor tribunal and their interaction with s 96(1), explained what "fairness and justice" means in the context of s 96(1) of the Anti-Discrimination Act in the following way :

"... That requires the position of both parties to be considered. Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates."

1. The Tribunal is also entitled to infer certain things from the fact that leave is required. They include the fact that the need for leave is a "control filter" designed, among other things, to protect respondents from the cost of a full hearing of appeals which should not properly be entertained: World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 at [25].
2. To substantiate a complaint of direct discrimination, a complainant must establish that they were treated differently and that the differential treatment was on the ground of discrimination: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In other words, there must be conduct, and a genuine reason for that conduct was discrimination. If an act is done for two or more reasons, and one of those reasons consists of unlawful discrimination under the Anti-Discrimination Act, then whether or not that reason is dominant, the act is taken to be done for that reason; s 4A of the Anti-Discrimination Act.
3. A complainant bears the onus of proof that he or she was treated less favourably "on the grounds of", "because of" or "due" (at least in part) a specific attribute: Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56].
4. Here, and common to many cases, there is no direct evidence of causation on the grounds of race. Accordingly, Ms Hayashi would need to establish, by inference from the available facts, a causal link between her race and the treatment she alleges was discriminatory. 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: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).

1. Ms Hayashi provided a detailed account of the facts of each incident on which she relies. Likewise, the Respondent addressed several factual matters. I have set out, in summary form, those factual matters that I consider relevant to my determination.
2. By way of factual background, Ms Hayashi came to Australia from Japan in about February 2023 on a visa that permitted her to work. Her employment by the Respondent was her first job of any significance after her arrival in the country. While there is no dispute that Ms Hayashi is Japanese, I observed that she has an excellent grasp of English and was able to communicate her position in her written and oral submissions.
3. In essence, Ms Hayashi says that, from the start of her employment with the Respondent, she was treated in ways that made her feel excluded, disregarded and isolated. She says she received little supervision, yet was the subject of silent observation, and that she was discouraged from speaking or stating her views in meetings. In essence, she says she was criticised for speaking up and for not speaking up enough. She says that when she was hired, one of her managers commented that Japanese people are very polite, a comment which she considered racial stereotyping. The making of that comment is disputed by the Respondent, but in any event, I do not find that anything further fell as a result of that comment, if in fact it was made, in terms of how the Respondent treated Ms Hayashi.
4. Ms Hayashi then says that, as her employment continued, she received confusing directions and lacked support from her manager. The effect of the comment and her manager's conduct, she says, left her feeling constrained by the perception that she had to be polite at all times, which affected how she conducted herself in the workplace. It is not clear how that comment affected her, as she asserts; indeed, as the facts below show, she sought assistance and greater support when she felt it necessary.
5. At the leave hearing, Ms Hayashi also alleged that she was subjected to an inappropriate remark made by another employee to the effect that "that's why we don't like Chinese", which Ms Hayashi says revealed a bias against people from Asia, again, leaving her with a sense that she was unwelcome. While I am sure Ms Hayashi was offended by this comment, nothing appears in a relevant sense to have occurred in terms of discrimination against her arising from it. Further, this was an allegation raised late and without any other evidentiary support, though for the purposes of considering the question of leave, I have given weight to this comment to the extent the evidence can support it.
6. By late July 2023, Ms Hayashi requested greater support from her supervisors due, she says, to her language ability, and she requested to undertake some analytical work, as she felt her skills were not being properly used. It was around this time that Ms Hayashi says she was used as a human test subject for the Respondent's service development. This involved being observed either from behind her desk via webcam or in person. It is unclear how this is related to the complaint. Ms Hayashi draws no relevant causal link between her allegation of racial discrimination and this use of her as a test subject. At best, I consider that her portrayal of this incident reveals that the Respondent was acceding to her request for different work opportunities.
7. In early to mid-August 2023, Ms Hayashi reported to the human resources manager that her supervisor's conduct was negatively impacting her mental health and her ability to work. There is no evidence that her supervisor's conduct was motivated by racial discrimination, and she made no such allegation at the time. Clearly, she knew about complaint mechanisms because she accessed them. Her failure to complain that she was being racially discriminated against when she did complain suggests strongly that she did not perceive any racial discrimination at that time. While I can accept that the supervisor's conduct may have been poor, there was no evidence that it was motivated by racial discrimination.
8. On 21 August 2023, Ms Hayashi was the subject of a performance review. This was because, according to the Respondent, she was failing to meet key expectations in her role, including meeting deadlines and maintaining accuracy, and was lacking initiative in team interactions. Ms Hayashi says she was being unfairly criticised for her work. Once again, there is no evidence to indicate that the Respondent was dissatisfied with her performance on the basis of her race or perceived attributes of her race. Her performance on tasks as a survey administrator was reasonably measurable, and I accept that she was likely underperforming in that role. That finding is supported by the fact that weeks earlier, Ms Hayashi had recognised a need for greater support to carry out her role. Nonetheless, it is apparent that by late August 2023, the Respondent was not satisfied with her performance and had taken steps to address the issue.
9. A further meeting occurred on 6 September 2023 between Ms Hayashi and a senior manager, during which she was asked questions about the difficulty of the tasks and the achievability of the deadlines she was given. There is no indication that any aspect of this performance management process was related to racial discrimination. There was no evidence that Ms Hayashi made any claim at that time that her lack of performance was due to her suffering racial discrimination.
10. On 26 September 2023, Ms Hayashi received a letter requiring her to attend an in-person meeting with the same senior manager she had spoken with on 6 September and the human resources representative. The stated purpose of that meeting was to discuss her probationary period and her continuing employment. There is a dispute about what occurred at the meeting. In her account, Ms Hayashi says she was told that the Respondent's financial position had changed and that they were no longer able to offer her employment. The next day, Ms Hayashi received a letter terminating her employment. The letter, which the Respondent tendered, stated that it had decided to terminate her employment due to an unsuccessful completion of probation that was based on a review of her performance and her abilities, which showed a lack of compatibility with the Respondent's expectations and the requirements of the position. I consider it more likely than not that Ms Hayashi was told at the meeting that she was to be terminated because she was underperforming in her role and had therefore failed probation.
11. The Respondent denies treating Ms Hayashi in a manner less favourable than that of other employees and denies all allegations of discrimination by her. Specifically, the Respondent denies that any staff member said anything that commented on perceptions of how people from Japan should act, or anything that was anti-Asian. The Respondent provided details of its employment profile, including that the vast majority of its staff have been born overseas from a broad range of countries, both English- and non-English-speaking and that a significant number of staff are foreign nationals.

Leave refused in relation to the complaint of racial discrimination

1. It is unlawful under ss 7 and 8 of the Anti-Discrimination Act for an employer to discriminate against an employee on the basis of their race. What constitutes racial discrimination is set out in s 7(1)(a)- (c) of the Anti-Discrimination Act. What constitutes unlawful discrimination is set out in s 8 and may involve discriminating against an employee in the terms or conditions of employment, denying or limiting an employee's access to opportunities for training, promotion or transfer or other benefits associated with employment or by dismissing the employee or subjecting them to any other detriment.
2. That means that Ms Hayashi, taking her evidence at its highest, would need to establish that the Respondent treated her less favourably, denied access to the benefits associated with employment, subjected her to detriment or dismissed her on the basis of her race.
3. The Respondent submitted that, even if Ms Hayashi was able to prove all the factual allegations she has made, those facts would not establish the essential elements of a cause of action under the Anti-Discrimination Act. I agree with that submission.
4. In accepting Ms Hayashi's evidence and taking it at its highest, as well as considering the Respondent's explanations and records made at the time, I am unable to conclude that the breakdown in the employment relationship was in any way related to the Respondent treating Ms Hayashi differently from any of its other employees on the basis of her race. I note, in particular, that whenever Ms Hayashi complained to her managers or supervisors, or sought greater support, she did not complain that she was being subjected to different treatment on the basis of her race or perceived racial characteristics - yet she was clearly capable of seeking assistance and asking for help and did so from time to time.
5. I am unable to conclude from Ms Hayashi's evidence, which is necessarily self-serving though nonetheless legitimate, and her submissions that she was subjected to bullying or harassment as a result of her race. I can well accept that she suffered at work due to suboptimal management and supervision. I can also accept that her experience working for the Respondent has had a significant negative impact on her well-being and confidence. But her evidence, even taken at its highest, fails to disclose the necessary causal link to establish a basis that the conduct she suffered from arose as a result of discrimination on the basis of race.
6. I am also satisfied that the Respondent's dissatisfaction with her work performance was persistent from at least August 2023 and that her failure to improve in her work performance was the only reason for the termination of her employment. The contemporaneous documentary evidence supports a more innocent explanation, whereas Ms Hayashi's allegations are entirely unsupported by evidence. Ms Hayashi's allegations effectively invite the Tribunal to draw an inference of racial discrimination on the basis of supposition and conjecture, and I reject that invitation.

1. Having concluded that Ms Hayashi's evidence, even taken at its highest, fails to disclose a proper basis for a claim of racial discrimination in employment, I decline to grant leave for her to proceed in the Tribunal
2. I make the following order:

(1) Leave to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).

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.

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.