Kumar v Point of Care Diagnostics Pty Ltd

NCAT Administrative and Equal Opportunity|2020-11-18

REASONS FOR DECISION

On 16 October 2020 the President of the Anti-Discrimination Board referred a complaint by the applicant, Mr Anup Kumar, to this Tribunal under s 93C(b) of the Anti-Discrimination Act 1977 (the AD Act).
The complaint as referred was a complaint of discrimination in employment on the ground of race against the respondent, Point of Care Diagnostics Pty Ltd (POCD), under ss 7, 8 and 53 of the AD Act covering a period between 2 August 2019 and 2 June 2020.
The applicant is of Indian-Fijian descent and was born in Fiji.
The applicant seeks to amend his complaint. The amendments sought are: 1. Extending the period to which the complaint of racial discrimination in employment applies to the period between November 2016 and 15 June 2020. 2. Adding a complaint of victimisation by POCD contrary to s 50(1) of the AD Act covering conduct from June 2019 to June 2020. The alleged victimisation comprised intensified racial slurs and discriminatory statements, a written warning from the employer and termination of the applicant's employment. 3. Adding a complaint of racial vilification contrary to s 20C(1) throughout the period November 2015 to 15 June 2020.
The applicant also seeks to join three additional respondents on the basis that they allegedly caused, induced, aided or permitted another person to do an unlawful act under the AD Act contrary to s 52 of the AD Act. Those persons are Rupert Haines, Lisa Jessup and Alex Cross. It follows that this would require an amendment of the complaint also to include the alleged conduct.
The amendments and the joinders are opposed by POCD.

Amendment

The Tribunal's power to permit the amendment of a complaint is conferred by s 103 of the AD Act: "103 Tribunal may amend complaint (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit."
The scope of s 103 was considered by the Appeal Panel of the former Administrative Decisions Tribunal in Zhang v Blinds Pty Ltd t/as Blinds by Peter Meyer [2008] NSWADTAP 24. The Appeal Panel adopted the reasoning in Chand v Rail Corporation of New South Wales [2007] NSWADTAP 54 that the Tribunal could amend a complaint by adding a matter which had not been investigated by the President. "…the intention of the legislature was to avoid the delay and potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances, is already before the Tribunal. The most likely source of additional complaints will be complaints that arise after the matter has been referred, but section 103 does not confine amendments to complaints of that kind. Relevant considerations when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred. Contrary to the Tribunal's conclusion, the fact that the complaint did not occur within the period as investigated by the President, does not prevent it being added." (Chand at [38]).
In Thompson v Rail Corporation NSW [2008] NSWADT 329 at [13] Deputy President Britton said, after considering Zhang and Chand: "The Act does not stipulate the matters the Tribunal should take into account when exercising its power to amend a complaint. The factors to be taken into account will vary from case to case and the weighting to be given to each a matter for the Tribunal. In addition to those factors listed in Chand, the following factors may be relevant: • Whether the proposed amendment falls within one of the grounds for declinature available to the President (section 89B(2) and section 92(1)(a)). • Whether the proposed amendment is futile because it seeks to pursue claims that are untenable. • Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs. • Whether the proposed amendment raises any issue of joinder. • Whether the allegations contained in the proposed amendment forms part of a complaint lodged with the President that has yet to be determined or referred. • Whether if refused/granted, any party might be prejudiced. • Whether the party making the application is in default of previous orders."

Period covered by the complaint

The amendment sought would extend the period covered by the complaint by more than two years. The nominated period is the complainant's period of employment with the respondent. The amendment does fall within one of the grounds on which the President could decline a complaint, as the alleged conduct occurred more than 12 months before the making of the complaint. The complainant says he would be prejudiced if the amendment was not made as he could not now lodge a separate complaint.
The applicant alleges in a statement that a number of acts of discrimination occurred during 2017. According to an account provided to the Anti-Discrimination Board (Annexure AK 5 to his submissions) there was a dispute between the applicant and two other workers, Mr Cimino and Ms Jessup. The disagreement was initially not about race but subsequently he claimed Mr Cimino called him racially offensive names including "curry", "slave" and "black bastard". Ms Jessup allegedly made comments such as "all Indians smell", "go run and pray to Ganesha" and "that curry looks like poo". Mr Cimino has left the company. Ms Jessup denies making the comments. Mr Kumar states that he made complaints to Mr Haines, a director of the respondent and to Mr Cross, the Warehouse Manager, starting in March and May 2017. Mr Cross is alleged to have made racist comments to the applicant in 2018 and 2019 with the last such comment referred to on 12 August 2019.
In May 2020 the applicant complained again to Mr Haines after his wife allegedly found a racist sign in the workplace. The respondent claims that investigating police found that the sign was falsified by his wife. There was no direct evidence of any police finding before the Tribunal.
The respondent submits that it would be prejudiced if the amendment was permitted as it involves at least one staff member who is no longer employed. It submits that all the complaints are spurious and vexatious. The complainant has made numerous complaints to other bodies including the police and Safework NSW none of which have been substantiated, therefore the complaints are futile. The complainant committed misconduct while employed and his credibility must be questioned as his complaints of racial discrimination only emerged later.
To succeed the applicant must show that he was treated less favourably, on the ground of his race, than a person of a different race would have been treated in the same or similar circumstances, and the racial nature of the conduct would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The inference must be reasonably drawn, be logical and probable, and cannot be made where more probable and innocent explanations are available on the evidence, following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70].
The comments allegedly made to and about the applicant in 2017-2019 refer to the applicant's colour, descent and national origin. I conclude that if those comments were proven to have been made, a causal link between his race and the comments can be reasonably made. There is not such an obvious causal link with the warning and dismissal given to Mr Kumar by Mr Haines in May and June 2020. I infer that he claims these actions were taken because he complained about the sign and his earlier detrimental treatment but that pertains to his claim of victimisation, dealt with below. His dismissal on 15 June 2020 is not currently part of the accepted complaint as he was still employed when he made the complaint.
The alleged detrimental treatment between March 2017 and 12 August 2019 could, if proven, constitute direct discrimination in employment on the ground of race within the meaning of s 7(1)(a).
The respondent contends that the applicant has made complaints to Safework NSW which were found to have no substance, but this related to chemical spills. It also refers to proceedings in the Fair Work Commission however there is no evidence as to the substance of these apart from Mr Cimino's application.
There is also evidence that Ms Jessup complained about the applicant's conduct on 17 September 2018 to the respondent, in particular an instance where he was allegedly offensive to her daughter.
Mr Cimino's application to the Fair Work Commission for a stop bullying order dated 12 July 2018 was in evidence. It stated: "I personally have been bullied and harassed in the workplace, firstly by Anup Kumar. He has made comments to workers saying "I know how to get rid of Tom"."
He reported an incident where he told a delivery driver that Mr Kumar would unload the truck whereupon Mr Kumar began yelling and saying "Don't point at me you schmuck" at which Mr Cimino yelled back at him.
The applicant's complaints of 20 March 2017 and 2 May 2017 regarding an incident with Mr Cimino did not complaint of racial discrimination His complaint on 3 May 2020 however stated that the earlier comments about not eating meat on Fridays were "racist". He claims that his later complaints were verbal.
Clearly there is a dispute as to whether the alleged conduct by Mr Cross, Mr Cimino and Ms Jessup occurred as described and whether he made the complaints during 2018.
The respondent will suffer some prejudice with regard to its evidentiary response if the amendment is allowed because Mr Cimino no longer works for them. There is no evidence that he cannot be located, however. Mr Cross and Ms Jessup are still employed and have provided statements denying the allegations against themselves. There may be other witnesses who can say what they observed in the workplace. Mr Haines is also still associated with the company. I do not think the prejudice is so great that the amendment should not be granted in this case.
It appears that the earliest conduct which could be unlawful under the Act commenced in March 2017, therefore there is no justification to amend the complaint to cover a period before that time. It is unclear when Mr Cimino left the company but the earliest complaint
I have reached the conclusion that amendment of the complaint of discrimination in employment should be granted so that it covers the conduct complained of since March 2017 and up to 2 June 2020. The applicant also asks that it be extended from 2 June to 15 June 2020. Currently the complaint period covers the warning but not the dismissal. As the warning was a precursor to the dismissal, this extension is warranted.

Victimisation

To succeed in a claim of victimisation, the applicant must show that 1. he was subjected to a detriment by the respondent; and 2. the reason he was subjected to that detriment was that he had made a complaint which comes under s 50(1).
The applicant relies on s 50(1)(c) and (d), however in my view s 50(1)(c) is the more applicable. Based on the applicant's statement the earliest at which he made a complaint about conduct which could amount to a contravention of the AD Act was on 3 May 2017. He later complained again in July 2017. He claims that he also made a complaint at a meeting with the respondent on 25 May 2020.
The applicant submits that the victimisation consisted firstly of worsening racial discrimination consisting of racist comments and name calling. The last alleged instance of such conduct which he refers to was on 12 August 2019. He claims that he was also victimised by being accused of misconduct on 25 May 2020, suspended and eventually dismissed in June 2020.
The respondent denies that the behaviour worsened as claimed and it also claims that the applicant committed misconduct while employed and it was because of that misconduct that his employment was terminated.
On the applicant's account of events, it appears that the conduct towards him was consistent rather than worsening and there is no record of it occurring after 12 August 2019 until May 2020.I am not satisfied that the applicant can show that the conduct worsened and therefore an amendment on this basis should not be made.
As to the warning and dismissal, this occurred almost three years after he started making complaints. The applicant states that at a meeting on 25 May 2020 with Mr Haines he complained about his earlier detrimental treatment including being called a "black cunt" and a "black bastard". He says the meeting was about the sign his wife allegedly found. The respondent says it was to raise issues of his performance and conduct. .A letter to him from the respondent dated 27 May 2020 supports this. The letter was a formal warning and he was given an opportunity to improve.
He was suspended on 2 June 2020 pending an investigation into an unspecified allegation. According to the letter dated 15 June 2020 terminating his employment, it involved physically assaulting another employee and other complaints of intimidatory behaviour. He was dismissed on the basis of misconduct.
On the available evidence, it is unlikely that the applicant could show that the warning, suspension or dismissal contravened s 50 because: 1. there was another documented reason for the warning, which led to the suspension and eventually the dismissal; and 2. It is improbable that the respondent would only act in May 2020 to victimise him for complaints made almost a year earlier.
In my view there is insufficient basis to permit amendment of the complaint relating to victimisation.

Racial vilification

The applicant seeks to rely on the racial vilification provisions in the AD Act and submits that the conduct referred to above met the requirements of s 20C. To do so, the applicant must show that the respondent incited hatred, severe contempt or serious ridicule of "a person or group of persons on the ground of the race of the person or members of the group" by "a public act".
The acts described by the applicant occurred at work. It appears that he normally worked in a large warehouse.
'Public act' is defined in section 20B of the AD Act to include: '(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.'
The applicant submits that the employees in the workplace should be regarded as members of "the public" and that the communication consisted of "speaking". There is no evidence of how many persons worked at the workplace at the relevant times and would have been able to hear the alleged conversations. There is no evidence as to who was permitted to enter the warehouse. There is no evidence as to whether people passing by could have observed what was going on or hear what was being said in the workplace (see for example Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79).
No case was brought to my attention where it has been considered whether conduct in a workplace (where the communication or conduct did not reach outside that workplace) could be held to constitute racial vilification. The applicant submits, however, that it is an object of the AD Act to stop the mischief of people inciting racial hatred. It is inconsistent with the objects of the Act to limit the definition of "public act" to exclude a workplace or to interpret the Act so that employees at a workplace are not "the public". Such an interpretation would have the effect that employees could incite racial hatred within a workplace without any redress.
I do not accept this submission. In Jones v Trad [2013] NSWCA 389 Justice Ward JA stated at [27]: "I consider that the task of construing the racial vilification provisions is one to be approached with conservatism, recognising the high value placed by the common law, and by the by the legislature, on freedom of expression."
Section 20C addresses conduct whereby hatred, ridicule or contempt can be incited in members of the public by means of public communication, public observation or dissemination. The applicant's argument that speech overheard by employees in a workplace constitutes a "public act" does not have any prospects of success in my view. This amendment should not be permitted.

Cause of action under s 52

The applicant says there is evidence that each of the three named persons breached s 52 and he should be allowed to pursue that cause of action and join them as respondents. He has not specified whether the alleged conduct consists of causing, inducing, aiding or permitting the unlawful conduct in each case. He also claims that all three persons are said to have caused, induced, aided or permitted all the unlawful conduct - that is, discrimination in employment, victimisation and racial vilification. For the reasons stated above it is not necessary for me to consider racial vilification and the complaint of victimisation is limited to his dismissal in June 2020.
The applicant submits that the amendment and joinder should be permitted to protect his complaint in the event that he fails to establish liability under s. 53 against the respondent. That misunderstands the operation of s 52. The section only applies if unlawful conduct has been established (Dixon v RNJ Sicame Pty Ltd [2002] NSWADT 154 at [42]). If he was not successful in his complaint of discrimination it would not be necessary for the Tribunal to determine whether there was any contravention of s 52.
The applicant's account of the events in the workplace state that he was the subject of multiple incidents of racial discrimination and victimisation. As noted above, the only form of victimisation the applicant may pursue is his dismissal. There is no evidence to suggest that Mr Cross and Ms Jessup, being employees, caused, aided, induced or permitted his dismissal.
The conduct alleged against Ms Jessup is that she made racist comments to him or in his presence, she was present when other persons did so, and she laughed on one occasion when someone did so. Given that she is not said to have had a supervisory role, there is no material before the Tribunal that would indicate that she caused, aided, induced or permitted the conduct of others.
It is alleged against Mr Haines and Mr Cross that they were aware of the conduct of Mr Cimino and Ms Jessup but did not do anything to prevent it. Mr Cross is named as the Warehouse Manager. The applicant says he complained to him several times. According to the applicant, Mr Cross dismissed his complaints and did not act to prevent them. There is no evidence to show that Mr Cross or Mr Haines caused, aided or induced the conduct.
Mr Haines is a director of the company. On the applicant's account he made a number of complaints to Mr Haines about Mr Cross and Mr Cimino which were not acted upon.
To succeed in establishing that Mr Cross or Mr Haines permitted the conduct the applicant has to prove: 1. That they knew or had reason to anticipate or to suspect that the particular act was to be or is likely to be done, 2. That they had the power to prevent it, 3. That they had some duty of control or interference in the circumstances but failed to exercise it, and 4. thereby failed to prevent it. (Goldsteen v TCI Bondi Junction Pty Ltd [2018] NSWCATAD 135 at [28]).
I am satisfied that there is material which, if accepted, would support a finding that Mr Haines had knowledge of at least some of the alleged conduct occurring and as a director of the business, had a duty of control and was in a position to act to prevent it or stop it from continuing. While the complaints made in early 2017 were vague, the applicant says that complained verbally about eight times in late 2017 to Mr Haines.
Mr Cross was the Warehouse Manager and Mr Cimino worked in the warehouse. It is not clear that Mr Cross had any role with regard to Ms Jessup, however. It is possible to infer from the evidence that Mr Cross had authority to direct Mr Cimino's behaviour while at work. This has not been denied by the respondent.
The proposed amendment could be declined under 89B(2)(b) as much of the conduct complained of occurred more than 12 months before the making of the complaint. The proposed amendment is not futile as the claims are not untenable. The proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs. The complaint does raise an issue of joinder, and I deal with that below.
There may be some prejudice to the respondent given the passage of time since the alleged events.

Joinder

Section 44(1) and (2) of the Civil and Administrative Tribunal Act 2013 states: "44 Parties and intervention (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has - (a) been improperly or unnecessarily joined, or (b) ceased to be a proper or necessary party.
Principal Member Britton said in Goldsteen that the power of joinder conferred by s 44(1) is to be read in conformity with the power to remove a person who is a party to proceedings, so that a party who is a "proper or necessary party" ought to be joined in the proceedings.
The factors to be taken into account when exercising its discretion to join a party include: 1. whether any prejudice might result to any party or to the person sought to be joined from the granting or the refusing of application; 2. whether the Tribunal will, if the person is joined, have jurisdiction to deal with the case against them; and 3. where the person is to be joined as a respondent, whether the complainant's case against that person is not strongly arguable on a prima facie basis. (Hanratty -v- Kempsey Shire Council [2002] NSWADT 232)
These principles were followed by the Tribunal in Goldsteen although the test applied by Principal Member Britton in that case was whether there was material which would support a finding that the conduct complained of had occurred in contravention of the Act, rather than whether the prima facie case was "strongly arguable". As Hanratty was decided under the former legislation, I have preferred the test in Goldsteen.
There is already one respondent so it is not necessary to join Mr Cross or Mr Haines for that reason. The question is whether the case concerning Mr Cross and Mr Haines permitting the discriminatory conduct alleged is supported by any material before the Tribunal. I have found that there is some material to support the claim.
As to prejudice, some time has passed since the earliest alleged events but Mr Cross and Mr Haines have been involved in the responses to the complaint. Taking into account all relevant considerations, I am of the view that Mr Cross and Mr Haines should be joined as respondents under this cause of action.

ORDERS 1. The complaint is amended: 1. To extend the period covered by the complaint of discrimination in employment on the ground of race, under sections 7 and 8 of the Anti-Discrimination Act 1977, to between 1 March 2017 and 15 June 2020; and 2. To add a complaint that Mr Alex Cross and Mr Rupert Haines breached s 52 of the Anti-Discrimination Act by permitting unlawful conduct between 1 March 2017 and 15 June 2020. 1. Mr Rupert Haines and Mr Alex Cross are joined as respondents to the proceedings for the purposes of the complaint in 1(b) only. 2. The application to amend the complaint by adding a complaint of racial vilification is refused. 3. The proceedings are referred to the Registry to be listed for directions.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2020

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