Loke v NSW Department of Education and Communities

Transitional provisions

1. While the complaints the subject of this application were transferred by the Board to the then Administrative Decisions Tribunal, on 1 January 2014 that Tribunal was abolished with the establishment of the NSW Civil and Administrative Tribunal (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7(2) and (3) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with NCAT (the Tribunal) being vested with all the relevant functions of the Administrative Decisions Tribunal immediately before its abolition.

The conduct of these proceedings

1. The applicant has at all times been unrepresented.
2. Following a number of directions hearings, by consent, the matter was set down for hearing, on 15 and 16 May 2014.
3. At the commencement of the hearing, by consent, it was agreed that the issue of whether the applicant's complaints were sustained should be determined first and in the event they were found them to be sustained (in part or whole), the matter would proceed to a hearing and determination of the remedies sought by the applicant under subsection 108(2) of the AD Act.
4. As there was further evidence to be heard, at the conclusion of the hearing on 16 May 2014, we adjourned the matter for a further hearing on 6 August 2014. We also made a number of orders in regard to the parties filing and serving further material.
5. On 6 August 2014, we reserved our decision and at the request of the parties, made orders for the filing and serving of written submissions.
6. On 26 August 2014, at our request, the Registrar wrote to the parties inviting the applicant to file and serve a copy of the class video he had prepared for the School Assembly that was the subject of one of his complaint to the Board. The respondent had tendered into evidence a copy of the class video that had been shown at the School Assembly. However, the applicant had not provided the Tribunal with a copy of the video he had prepared.
7. The applicant did avail himself of this opportunity and filed and served a copy of the video clip he prepared. Subject to some brief submissions made in regard to the reliability of the video, the respondent did not object to the Tribunal having regard to its contents for the purpose of this application.
8. We have now considered all the material before us and for the reasons set out below we have found that the applicant's complaints have not been substantiated.

The Complaints

1. In his letters of complaint the applicant raised a number of alleged incidents of discrimination, which can be summerised as follows: 1. The applicant alleged Ms Dassaklis, the Ms Ramadan and Mr Livermore treated him with 'different/special; rules' because of his race and religion. The applicant pointed to the following specific examples of the alleged different treatment: 1. every teacher was permitted to video record classes when he was not permitted to do so and the video recordings he prepared of his class for the School Assembly were not selected and shown, where those prepared by other teachers had been shown (the Video claim); and 2. the rejection of his application, in October 2012, for the TAS Faculty 'Numeracy/Literacy Coordinator' position (the denial of opportunity claim) 1. Ms Dassaklis alleged failure to take any action when he made a report of racist comments having been made to and about him: 1. by Mr Carmine Albanese and Ms Seemi Khan in the TAS staffroom (i.e. remarks such as: "we want to get rid off (sic) the Indian teachers from here")"; and 2. by students 3. (the Racist comments claim)
2. There were two aspects of the above complaints that were not pressed by the applicant at the hearing. These were the alleged racist remarks by students and the alleged denial of opportunity.
3. In regard to the former we note, other than a mere assertion there is no material before us that identifies what was allegedly said, when it was said or the context in which it was said. Accordingly, we have not considered it any further.
4. In regard to the alleged denial of opportunity, this related to the applicant's unsuccessful application, in October 2012, for the position of Literacy and Numeracy Faculty Team Leader position at the School. In its response to the Board, the respondent said the position had been advertised, through an expression of interest to all teachers at the School. The expression of interest required applicants to address a specific set of criteria. The applications that were received were assessed, by the Head Teacher Teaching and Learning and the Head Teacher Mathematics, against the specified criteria. The applicant was not the successful in his application and the successful applicant was Ms Seemi Khan. It would appear the Head Teacher Teaching and Learning informed the applicant that his application was unsuccessful and why it had not been successful.
5. Again, as the applicant did not place any further material before us, we have not considered this aspect of his claim any further.
6. However, in his submissions to the Tribunal in October 2013, the applicant made two further complaints of discrimination on the grounds of race. These complaints alleged: 1. the School Principal and Deputy School Principal had refused his requests for transfer to another school because of his race and religion (the refusal to transfer claim), and 2. the Deputy Principal had placed him on a formal teacher improvement program because of his race and religion (the formal teacher improvement claim).
7. The respondent consented to the Tribunal considering these matters in order to have all matters dealt with.
8. Subsection 103(1) and (2) of the AD Act gives the Tribunal the power to amend a complaint (including an amendment to include additional complaints) on application of a party to the complaint or on its own motion. That power to amend can be exercised at any stage of the proceedings.
9. While the applicant did not expressly seek an amendment of his complaint under these subsections, the matter proceeded on this basis. In the event there is some doubt as to whether leave was sought and granted we formally make an order to include the abovementioned complaints.
10. We note, not long after the hearing on 6 August 2014, the applicant advised that he had been dismissed. As his dismissal is not relevant to the applicant's complaints to the Board or the additional matters raised at the commencement of the hearing we have not considered it further.

Relevant legislation

1. As we have noted, the applicant's claim is based on a number of allegations that the respondent, through its employees, discriminated against him, in his work, on the grounds of his race.
2. Section 8 of the AD Act (i.e. the Anti-Discrimination Act 1977) prohibits an employer from discriminating against a person on the grounds of the person's race. That section relevantly provides: 8 Discrimination against applicants and employees (1) … (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) …
3. Section 7 of the AD Act defines what constitutes discrimination (direct and indirect) on the grounds of race. The applicant asserts direct discrimination and the relevant provision is paragraph 7(1)(a) which relevantly provides: 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 … 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 with which the aggrieved person does not or is not able to comply.
4. The word 'race' is defined in section 4 of the AD Act to include colour, nationality, descent and ethnic, ethno-religious or national origin.'
5. Section 53 of the AD Act deals with the vicarious liability of an employer for acts done by an employee, or agent on behalf of the employer. That section provides: 53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.
6. The onus is on the applicant to prove, on the balance of probabilities, that the alleged discriminatory conduct of Ms Dessaklis, Ms Ramadan and Mr Livermore falls within the terms of subsection 8(2) of the AD Act and the respondent is liable for that conduct by reason of section 53 of that Act.
7. That is, to succeed in his claim, the applicant must establish, on the balance of probability, that: 1. he is a member of a particular 'race' as defined in section 4, AND 2. the alleged conduct of Ms Dassaklis, Ms Ramadan and/or Mr Livermore of which he complains concerns: 3. - the terms or conditions of employment which the respondent affords him, 4. - denying him access, or limiting his access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or 5. - subjecting him to any other detriment, AND 6. Ms Dassaklis, Ms Ramadan and/or Mr Livermore treated him less favourably than they treated or would have treated another employee not of his race (differential treatment), AND 7. at least one of the reasons for the alleged conduct was the applicant's race, even if that reason was not the dominant or a substantial reason for the AND 8. the respondent is vicariously liable for alleged conduct.
8. There is no dispute that the applicant is of a particular 'race' as defined in section 4 (i.e. his national origin is Indian, or Hindu Indian).
9. Nor is it disputed that the alleged conduct could be regarded as concerning the applicant's conditions of employment, denying/limiting opportunities to benefits associated with his employment (e.g. transfer & promotion) and/or a detriment.
10. What is primarily disputed is whether the applicant has established the 'differential treatment' test for direct discrimination and at least one of the reasons for being treated in the way he was treated was his race (the 'causation' test): see Commissioner of Corrective Services v Aldridge [2000[ NSWADTAP 5, at [46] and [47] and BKY v The University of Newcastle [2014] NSWCATAD 39 at [77].
11. As pointed out by Magistrate Deputy President Hennessy in Loke v Director General, Department of Education and Communities [2013] NSWADT 212, at [22] and [23], where there is no evidence of an actual comparator and reliance is to be placed on a hypothetical person as the comparator, it is difficult to apply the differential treatment test before examining the issue of causation. In such circumstances, Magistrate Deputy President Hennessy said an applicant would need to establish that race was a factor, by way of inference from other facts: see Hamed v Director General, Department of Education [2007] NSWADT 43 at [26] and Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [60]. For example, by inference when there is no other credible explanation for the conduct complained about.

The evidence

1. The applicant tendered into evidence the following material:

• the report of the President of the Board, dated 26 August 2013, transferring the applicants complaints to the former Administrative Decisions Tribunal
• a letter from the applicant to the Tribunal, filed and served, on 31 October 2013, in which he summarised his complaints and attaching a chronology of events
• a statement of support from George Roukanas, dated 5 May 2014
• five Classroom Observation Reports, all dated November 2013 and the applicant's evaluation of observations that had been made of his lessons in the week ending 8 November 2013
• a work reference, dated 29 July 2014, from Paul Taylor, Deputy Principal of Parramatta High School
• a further Classroom Observation Report of G Tsopanos, dated 29 November 2013
• a copy of an official email complaint made by the applicant, to Ms Dassaklis, on 1 November 2011, alleging harassment and discrimination by Mr Albanese,
• a copy of an email sent, on 24 March 2011, by Amanda Meyer (year 8 Teacher Advisor) to Ms Dassaklis concerning wide spread bad behaviour of certain students

1. The respondent tendered into evidence the following material:

• a Statutory Declaration of Seemi Khan (Ms Khan), dated 28 May 2014
• a Statutory Declaration of Mr Carmine Albanese (Mr Albanese), dated 6 May 2014
• an undated Statutory Declaration of Ms Hala Ramadan, Deputy principal of the School (Ms Ramadan)
• a further Statutory Declaration of Hala Ramadan, dated 15 May 2014
• a Chronology of Performance Issues and Absences of the applicant from July 2010 to 16 May 2014
• a Chronology of Transfer Applications, Alleged Racist Comments and Class Video
• copies of the applicant's Transfer applications made on 5 May 2011, 2 November 2011 and 15 August 2012.

1. At our request the respondent also filed and served a copy of its Code of Conduct, Promotion and Transfer Procedures for School Teachers 2009 and 2012, and its policy on the Teacher Improvement Program.
2. At the hearing the applicant gave oral evidence and was cross-examined by counsel for the respondent. In support of his application, the applicant also called Mr Gonaseelan Govender (Mr Govender) to give oral evidence. Mr Govender was also a teacher at the School in the TAS Faculty. He was transferred from the School to another school at the end of 2012.
3. Attached to the applicant's letter, dated 31 October 2013, and filed in these proceedings were copies of emails Mr Govender had addressed to the Board in support of his complaint concerning the alleged racist remarks. Mr Govender was also cross-examined by counsel for the respondent.
4. Oral evidence was also given by Ms Kahn, Mr Albanese and Ms Ramadam. Each witness was also cross-examined by the applicant.
5. As we have indicated, both parties filed and served written submissions prior to the hearing and subsequent thereto.
6. In its submissions, filed on 15 August 2014, the respondent contended the applicant was not a witness of truth and pointed to a number of incidents where the applicant's evidence, when tested in cross-examination, was either illogical, inconsistent or acknowledged by him to be incorrect. The respondent argued that the applicant was in effect 'an advocate for the right of Indian people and Hindu people' and that his evidence was 'tainted by a prejudice and "axe to grind" against the School and staff.'
7. We accept the applicant's evidence was at times inconsistent and also confusing. However, we do not find that he was deliberately untruthful. Nor, do we find that the applicant's evidence was tainted by prejudice as asserted by the respondent. He was at all times unrepresented with little knowledge of the law and legal proceedings. What is evident from his evidence and the material he filed is that the applicant found his teaching experience at the School to be very stressful in many respects.
8. The applicant has also made a number of submissions as to the truthfulness of the respondent's witnesses. Again, on the material before the Tribunal, there is no evidence to support the assertions made by the applicant.
9. Before we deal with the specific allegations of the applicant it is useful to set out the relevant sequence of events. which are not disputed. These are set out in the table below. Date Event July 2010 Applicant commences teaching as a Technology and Applied Studies (TAS) teacher at the School. January 2011 Mr Albanese commences teaching at the School in the position of Head Teacher of the TAS Faculty. 29 April 2011 As part of the Teacher Assessment Review Schedule (TARS), Mr Albanese requested all TAS teachers to provide him with a copy of their program for Information Processes and Technology and their Class Lesson Plans. The applicant showed Mr Albanese a text message he had received from his wife. The message said words to the effect, 4 May 2011 'Hi Gamesh, there was phone call from someone anonymous person. He was saying that some hindu can't teach our kids in Birrong. Otherwise there will be bullets in your house. I am really worried. Don't know what to do.' Mr Albanese advised the applicant to report the incident to the School Anti-Racism contact officer Ms Gina Tsopanos. At 4:21pm the applicant sent an email to Ms Dassaklis stating that he would like to apply for an immediate 'compassionate transfer' to another school on the basis of the message his wife received and other issues of concern to him. 5 May 2011 Applicant lodged a compassionate transfer form. Mr Albanese having completed the TARS process informed staff of this in the TAS staff room. Mr Albanese also spoke to the applicant about his TARS which resulted in an altercation between them. 1 November 2011 At 10:37am the applicant sent an email to Ms Dassaklis in which he said he wanted to lodge an official complaint against Mr Albanese for harassing him in the staff room in front of other staff members and also in regard to other issues. In the email the applicant also alleged that Mr Albanese had made bias comments towards him and towards his race as an Indian. He concluded his email by asking Ms Dassaklis to help him regarding the issues he raised and to please address them. The applicant left early that day and remained absent from the School until 28 May 2012. 2 November 2011 The applicant commences a period of extended leave from the School. The applicant also lodged a further compassionate transfer application form. 4 November 2011 Ms Dassaklis sent an email to the applicant regarding his teacher performance review (i.e. TARS). In that email Ms Dassaklis advised that on the applicant resuming his duties they would have a discussion about his performance and the provision of informal support for him. 8 November 2011 Ms Dassaklis sent an email to the applicant advising him that his complaint would be handled in accordance with the respondent Department's Complaints Handling Policy. End of 2011 Mr Albanese gained another position at a different school. January 2012 Mr Bernie Livermore (Mr Livermore) commenced teaching at the School in the TAS Head Teacher position. Ms Ramadan commenced working at the School in the position of Deputy Principal. 28 May 2012 The applicant returns to work at the School. June/July 2012 Ms Ramadan is Relieving/Acting Principal for three weeks. July/August 2012 The applicant prepared a video of one of his classes and submitted it to Mr Livermore to approve for the showing at an upcoming Assembly. Mr Livermore informed the applicant that his video was not of an appropriate quality to show. Ms Ramadan and the relieving Deputy Principal, Ms Rump, agreed and determined that the video prepared by Mr Livermore would be shown. 2 August 2012 The applicant lodges a complaint with the respondent's Regional Director, Mr Murat Dizdar, requesting a transfer. 14 August 2012 The applicant was issued with an invitation to attend a meeting around informal support. The applicant responded to the invitation to attend a meeting around informal support by saying he was unable to attend. 15 August 2012 The applicant lodged a further compassionate transfer application form. In support of the application he also attached a copy of his email of 1 August 2012 to Mr Dizdar. The applicant lodged the first complaint the subject of these proceedings with the Anti-Discrimination Board alleging race discrimination in employment by Ms Dassaklis, Ms Ramadan and Mr Livermore. (the Video claim) 13 September 2012 The applicant met with Ms Dassaklis in regard to his performance. The applicant was accompanied by Mr Govender as his support person. At the meeting the applicant was informed that he would be placed on an Informal Support Program (ISP) commencing on 17 September 2012. 30 October 2012 The applicant lodges the second complaint that is the subject of these proceedings alleging discrimination for the period October 2011 to 16 October 2012 by Ms Ramadan, Mr Albanese and Ms Khan. (the denial of opportunity claim) First week December 2012 Applicant commenced the first week of a five week ISP. February 2013 Applicant commences the remaining four weeks of the ISP. 26 February 2013 Ms Khan submits a complaint to the School about the applicant. She alleged a history of intimidation and harassment. 7 March 2013 Applicant responds to the Board's request for further information and alleges a racist remark had been made. 12 and 13 March 2013 Applicant and Ms Kahn attend mediation of Ms Kahn's complaint Applicant makes a complaint to Ms Ramadan that Ms Kahn slammed to door of the staffroom closed when he was about to enter. 13 March 2013 Applicant provides particulars of the alleged racist remarks to the Board. Alleges these were made by Mr Albanese and Ms Khan (the racist remarks claim) 21 March 2013 Ms Ramadan met with the applicant and his support person - she advised the applicant that his five weeks of informal support program was unsatisfactory and that he would be placed on a formal Teacher Improvement Program (TIP).

1. We have otherwise dealt with the evidence in more detail below in the context of its relevance to the abovementioned categories of conduct the subject of the applicant's complaint.

The video claim

1. In his first complaint to the Board, dated 15 August 2012, the applicant said the following: '… [I] tried my best to work enthusiastically and work hard. However, despite my best efforts, every time I was let down and harassed, humiliated by using different tactics by the Principal, Deputy Principal and the Head teacher. There were different rules in place, and me & Mr. Govender were treated differently with these 'different/special rules'. For example: 1) As an IT teacher, as part of multimedia, we are allowed to record student's activities in class and teach them about creating movies. I have seen many other teachers recording students work and putting it in the assembly. But, in my case, I received an email from Deputy Principal Ms. Ramadan instructing me that I am not allowed to record or use any recording device in the class. No specific reason was given apart from 'privacy issues'. 2) So, when I told this to Ms. Sandra Begg (support teacher who was encouraging me to record refugee students' experience), she asked them, and then suddenly a new rule was told to me, that I can record, but in the presence of another teacher. (So, now I have to waste another teacher's time to facilitate this activity). 3) Head teacher Mr. Livermore initially encouraged me to record my classes so that we can put my work on display in assembly. However, just a day before, on the last minute (maybe he was instructed from above), he told me that he can't put my work on display as he didn't like it, and he can only put other teacher's work (except Mr. Govender) in the assembly. He did not tell me the 'standards' before nor gave me any opportunity to improve the movie if he thought it was not up to his standard. My class students and I felt humiliated when only other teacher's work was displayed and we were ignored, excluded by giving some excuse which I do not agree. ….'
2. As we have noted, there are two aspects to this complaint.
3. The first aspect involves Ms Ramadan emailing the applicant to tell him he could not record, or use a recording device in his class room to record his lessons.
4. In her evidence, Ms Ramadan explained that in or about July 2012, Mr Livermore, the applicant's Head Teacher, informed her that the applicant intended to record his lessons with students that were being observed as part of his informal support program. This program was foreshadowed in November 2011, following his Teacher Assessment Review (TARS). However, due to his absence from the School from November 2011 to May 2012, that program was put on hold.
5. Ms Ramadan said that when the applicant subsequently confirmed his intention to record such lessons, she sought advice from the Legal Branch of the respondent Department. She said their advice was that the recording of lessons was not common practice and may have privacy implications and she was provided with a draft form of words to send to the applicant in this regard.
6. Attached to Ms Ramadan's statutory declaration, was a copy of the email she sent to the applicant, on 19 July 2012, in which she instructed him not to use 'video or audio recording devices' in his lessons. In her email, Ms Ramadan noted the applicant's intention to video record or 'film' the lesson that was to be observed by 'Liz' the following day, as part of the applicant's informal improvement program. The email also contained, in bold, the advice Ms Ramadan said she had received from the respondent's Legal Branch. We also note the email was copied to Mr Livermore and Ms Dassaklis.
7. There is no dispute that Ms Ramadan engaged in the conduct of which the applicant complained and it was conduct falling within the terms of subsection 8(2) of the AD Act. The question is whether Ms Ramadan prohibiting the applicant to video of 'film' his class had treated the applicant less favourably than she treated, or would treat a non Indian teacher in the same circumstances, or circumstances that are not materially different to those giving rise to her email to the applicant (i.e. differential treatment test).
8. The applicant, who bears the onus to establish the differential treatment test, did no more than assert he was instructed not to video record his lesson without any specific or 'logical' reason. The applicant did not provide any evidence of an actual comparator. In his complaint to the Board he asserted he had seen other teachers recording student's work and he had seen one teacher taking photographs and they were not stopped. However, he did not put any material, let alone probative material, before the Tribunal in support of those assertions. Accordingly, we must approach his claim on the basis of the comparator being a hypothetical person and determine whether the applicant has otherwise established that race was a factor in Ms Ramadan acting as she did.
9. There is no direct evidence of such. Nor is there any evidence from which this can be inferred. Indeed Ms Ramadan's evidence is to the contrary. There is no dispute that her email was sent to the applicant following advice she had received from the Legal Branch and in her oral evidence she reiterated that she would, in similar circumstances, on the basis of the same advice, prohibit any other teacher from video recording his/her lesson.
10. Accordingly, we find the applicant has failed to establish that Ms Ramadan's conduct in prohibiting him from video recording his class that was to be observed as part of his informal support program was a breach of section 8 of the AD Act.
11. The second aspect of the applicant's video claim involves the refusal to allow him to show his video clip at the School Assembly.
12. The applicant said Mr Livermore, the TAS Head Teacher, was proactive in displaying video recording of teachers work at the front office of the School and at School Assemblies. However, the applicant went on to assert that Mr Livermore had not applied the same rule for himself and Mr Govender. He went on to assert Mr Livermore excluded his work and that of Mr Govender when there was an opportunity for them to prepare and show a class video during a School Assembly. There is no evidence of Mr Govender having prepared a video clip.
13. The particular incident relied on by the applicant, was the video he had prepared, in July/August 2012, for showing at a School Assembly.
14. In his evidence, the applicant said he and the other teachers in the TAS Faculty had been told to create a video representing their own respective fields of teaching for presentation at a School Assembly. The respective fields were food technology, timber technology and computer technology. Being a computer technology teacher, the applicant video recorded one of his lessons on using computers. He said that when he presented the video to Mr Livermore, he was told that his video was not of a 'sufficiently good quality' for presentation at the Assembly. He said Mr Livermore had nevertheless prepared another video for presentation to the School Assembly which did not contain any of the activities of the computer technology classes within the TAS Faculty.
15. It was the applicant's submission that had there been an issue with the quality of his video, Mr Livermore should have told him in advance about it and he should have given him a chance to improve the quality of his video. He said Mr Livermore never gave him any such chance before, or after the School Assembly presentation.
16. In her evidence, Ms Ramadan said it was for Mr Livermore, as Head Teacher of the TAS Faculty, to decide whether the applicant's video clip was suitable to show at an Assembly. She said Mr Livermore prepared a second video clip and approached Ms Rump (the relieving Deputy Principal) and herself as to whether the video clip prepared by the applicant was suitable to show. She said they watched both video clips (i.e. the one prepared by the applicant and the clip prepared by Mr Livermore) and decided Mr Livermore's clip was more appropriate to show on the Assembly as it promoted the entire TAS faculty. She also said that the quality of the applicant's video recording was not great as the camera movement was too fast, it lacked stability and its content was also too discreet to represent the entire TAS faculty. .
17. Ms Ramadan's description of the applicant's video clip is consistent with that contained in the video clip the applicant filed in these proceedings. That prepared by Mr Livermore was considerably more professional and informative of the work shown.
18. Again, there is no dispute that Ms Ramadan and Mr Livermore refused to accept the video clip prepared by the applicant for showing at the School Assembly and that the video clip prepared by Mr Livermore was shown.
19. However, we are unable to find, as asserted by the applicant, that Mr Livermore denied him the opportunity to improve the quality of his video and conduct falling within subsection 8(2) of the AD Act. In this regard, there is no evidence of the applicant having requested that he be given that opportunity and it was refused, or that there was duty on Mr Livermore to do so, under a policy, procedure or direction of the School or the respondent more generally. Accordingly, we have not considered this assert conduct any further.
20. This leaves the conduct of Ms Ramadan and Mr Livermore in refusing to accept the video clip prepared by the applicant for showing at the School Assembly and whether the applicant has established that the conduct meets the differential treatment test and the causation test.
21. It is not clear on the evidence whether the video clip that was presented to the School Assembly was prepared by Mr Livermore in its entirety, or whether Mr Livermore merely put together video clips that had been prepared by other TAS teachers. In either case, we understand Mr Livermore and the other teachers are not of Indian descent. And while there might be an argument of differential treatment test having been established, in our view, on the material before us, we are not satisfied the applicant's race was a factor in Ms Ramadan or Mr Livermore having refused to accept the applicant's video clip. The reason for refusal appears to have been solely on the basis of the applicant's video clip being of poor quality and limited scope and hence not of a standard that was suitable for showing at a School Assembly.
22. Accordingly, the applicant has also failed to establish this aspect of his video claim.

The racist comments claim

1. The applicant alleged that racist remarks were made on two occasions. The first occasion he alleged to have occurred on 1 November 2011, and they were alleged to have been made by his then Head Teacher, Mr Albanese. The second occasion was alleged to have occurred in October/November 2012, and they were alleged to have been made by Ms Seemi Khan.
2. The only basis on which mere words could amount to discrimination would be if they came within the test set laid down in O'Callaghan v Loder [1983] 3 NSWLR 89. In that case Mathews DCJ found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a 'detriment' or a 'term or condition' of employment. Such conduct was found to constitute discrimination on the ground of sex because it was directed to women only and occurred because the intended recipient was a woman. As pointed out by Magistrate Deputy President Hennessy, in Imielska v Director-General, NSW Health [2012] NSWADT 25, at [23], on the basis of the reasoning in this decision and other leading decisions (e.g Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17): … [an] employer could be held to have contravened sex discrimination laws by failing to respond appropriately to a work environment permeated by sexual harassment . The actual discrimination on the ground of sex for which the employer is liable is the employer's inadequate response to the work environment, which the female employee is forced to endure. These principles apply equally to harassment on other grounds including age and race.
3. The same reasoning has been applied where mere words are alleged to amount to discrimination in work on the ground of race: see Fletcher v TNT Australia Pty Ltd [2011] NSWADT 175 at [23] and Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17. That is, an employer could be liable for racist comments if it failed to respond appropriately to a work environment "poisoned" by racial harassment.
4. The 1 November 2011 allegation - The applicant first raised this allegation in his email, to Ms Dassaklis, sent on 1 November 2011. As noted above, this email was sent on the day Mr Albanese spoke to the applicant and the other TAS teachers in respect of their TARS results. In that email the applicant made a number of complaints about Mr Albanese, including the following: 3) He made such 'biased comments towards me and towards my race as 'Indian' in the staffroom. However, I did not take it seriously before. He has said that, "we want to get rid of Indians from this school". And 'Italians do things better than Indians" etc. Mr Govender was also a target was (sic) such comments and he can be contacted regarding this. (…)
5. The applicant did not raise this issue again until March 2013, when the Board sought further information from him in regard to the alleged racist remarks he had raised in response to the respondent's reply to his complaints to the Board.
6. Mr Govender did not give any evidence about the abovementioned alleged remarks of Mr Albanese. His only evidence was that he heard Mr Albanese shouting on 1 November 2011.
7. In his statutory declaration, Mr Albanese gave a detailed account of his recollection of his dealings with the applicant, including the events of 1 November 2011 when the applicant question him about his TARS results. He said the applicant was yelling at him and he alleged the applicant said words to the effect 'You are being racist and doing this because I am Indian.'
8. Mr Albanese denied he had made the comment 'We want to get rid of Indians from the School' as this was not his belief, or a comment that he would make.
9. In regard to the other alleged comment, 'Italians do things better than Indians', Mr Albanese said he denied ever making such a comment in a racially discriminatory context. He went on to say that this was not a comment he would ordinarily make, but he said he may have made a comment along these lines in the context of a friendly discussion about soccer. He just could not remember a context of this nature and if it had occurred it would have occurred in the first four weeks of working at the School.
10. In his oral evidence, Mr Albanese acknowledged that he had yelled at the applicant towards the end of 2011. He said he had informed Ms Dassaklis and had apologised to the applicant.
11. Having regard to all the material before us, we are not persuaded that the applicant has established the asserted racist remarks by Mr Albenese. As noted in his email to Ms Dasaaklis, the applicant was not specific as to when and in what context the alleged remarks were made. He did not say the remarks were made that day, but alleged that they were indicative of remarks that had been made in the past and were remarks he had not taken seriously. Mr Govender, in his evidence made no mention of Mr Albanese having made remarks of the kind asserted by the applicant. Had they been said, one would have expected him to also give evidence of the words Mr Albanese said.
12. In light of Mr Albanese's denial and explanation, which was tested in cross-examination and not successfully challenged, we are not satisfied that the applicant has established that Mr Albanese made the racist remarks as alleged.
13. The October/November 2012 allegation - In his letter to the Board, the applicant said he had made an official complaint, to the School, about Ms Khan's alleged racist remarks on 12 March 2013. This was several days after he had informed the Board about such remarks generally and one day before he responded to the Board's request for more information about the alleged racist remarks.
14. The applicant alleged the racist remarks were made in October/November 2012 and were in the following terms: "We don't want black faced Indian people in this staff room. It's better when they are not here." And "We don't want Hindu's (sic) in this staff room, and we want to get rid of Hindu teachers from here somehow."
15. The applicant said, Mr Govender was a witness 'of this incident, and co-incidentally he was transferred out of our school within few days of this incident. …'
16. On 3 April and 14 May 2013, Mr Govender sent an email to the Board in support of the applicant's complaint of Ms Khan's alleged racist remarks. In his emails, Mr Govender said he had been provided with a copy of the applicant's correspondence to the Board dated these dates. It was in his second email, that Mr Govender said he heard Ms Khan say the words as alleged by the applicant in his 13 March 2013 complaint to the Board.
17. Whether Mr Govender had a separate recollect as to what he heard is difficult to tell. In cross-examination he acknowledged he was aware of the terms of applicant's complaint to the Board concerning the alleged racist remarks of Ms Khan. Nevertheless, he said he heard Ms Khan say words to this effect. He said swearing in the TAS staff room was common practice by all staff members, including female staff members.
18. In her statutory declaration Ms Khan denied having made the alleged racist remarks. She reiterated that denial in her oral evidence and also denied swearing in the TAS staff room as inferred by Mr Govender.
19. In her statutory declaration, Ms Khan gave evidence about a complaint she had made, in late February 2013, to the School, about the applicant. The complaint related to the applicant having called her on her private mobile phone after she had left the School swimming carnival due to feeling unwell. She informed one of the teachers that she was leaving. The applicant not knowing she had left or that she was unwell telephoned her on her mobile phone. It would appear Ms Khan felt intimidated by this call on her private number and the applicant appears to have called as he was concerned about her.
20. The School appointed a mediator to mediate the complaint, which occurred on 12 and 13 March 2013. It was the evidence of Ms Kahn that she continued to feel intimidated by the applicant during this process.
21. On the morning of 13 March 2013, the applicant also made a complaint, to Ms Ramadan, about Ms Kahn having closed the door of the TAS staffroom, as he was about to enter it. A copy of that complaint was attached to Ms Ramadan's statutory declaration. In that complaint, the applicant made no reference to Ms Khan having made racist remarks, but he did say her conduct demonstrated her 'hatred towards him.'
22. Once again, the onus is on the applicant to prove that the alleged racist remarks were in fact made by Ms Khan as asserted.
23. In our view, on balance, the applicant has failed to persuade us that Ms Khan made the racist remarks as alleged in his complaint to the Board.
24. In these proceedings, the applicant has not provided any specific evidence as to when the alleged remarks were a made, or the context in which they were made. We note the applicant was absent from School during the first week of October, on 17 and 31 October 2012 and also during a number of days in November 2012. During this time he also lodged his third and fourth complaint to the Board and a Workers Compensation Claim and there is no evidence of the applicant having mentioned the alleged racist remarks in the complaint or the claim. Had they been made during this time one would expect him to have raised these as he had already raised a number of matters of concern, including the appointment of Ms Khan to the Literacy and Numeracy Faculty Team leader position.
25. We also agree with the respondent's submissions that little weight can be given to the email Mr Govender sent to the Board on 14 May 2013. This was clearly no more than an expression of support for what the applicant had asserted in his complaint. In making this finding we are not critical of Mr Govender and the evidence he gave.
26. Hence, on the basis of Ms Khan's denials of having made the alleged remarks and in the absence of specific evidence as to when the alleged remarks were made and the context in which they were made we are not satisfied that the applicant has established that Ms Khan made the remarks as alleged.
27. Accordingly, we find the applicant has also failed to prove the alleged racist remarks by Ms Khan.

Refusal of requests for a transfer

1. As noted above, the applicant made three formal requests for transfer on compassionate grounds. These were made on 4 May 2011, 2 November 2011 and 15 August 2012.
2. At the commencement of the hearing, the applicant asserted that Ms Dassaklis and Ms Ramadan had discriminated against him, on the grounds of his race, in not supporting his applications for a compassionate transfer. In his closing written submissions, the applicant refined this and said he put several transfer applications with the respondent's Staffing Department and they were all rejected and his issues/requests were ignored. He went on to say 'Hence, the DEC has failed in their responsibility to provide a safe & and equal workplace to me.' He said this was recognised by the Workers Compensation Commission in upholding his claim for compensation in March 2014. He went on to reiterate that other teachers were granted transfers in the same period he had sought a transfer, yet he was denied this 'despite having a strong case for transfer'.
3. In our view the applicant has failed to establish that Ms Dassaklis, Ms Ramadan or the respondent Staffing Department in rejecting or not supporting his transfer applications have done so on discriminatory grounds of his race.
4. The respondent filed and served a copy of the applicant's on-line Transfer Application Forms.
5. We note the applicant's first request (4 May 2011) was made on the basis of the threatening telephone call his wife received that day and the complaints parents of students had made, to the respondent Department, about his teaching. In regard to the parent complaints, the applicant said he could only interpret the actions of the parents to be racist, as they could have been dealt with effectively at School level.
6. The applicant's on-line Form notes that Ms Dassaklis had supported this application for a transfer. The Form, however, states that the application had been 'Rejected by Staffing' and it contained a brief comment of 'Teacher Staffing Service Centre' having advised the applicant that 'after careful consideration' his application for compassionate transfer status had been declined.
7. The applicant's next application for compassionate transfer (2 November 2011) was made the day after the applicant's altercation with Mr Albanese in regard to his TARS results and his formal complaint, to Ms Dassaklis, about Mr Albanese.
8. In support of this application, the applicant attached a copy of his complaint about Mr Albanese. The applicant's on-line Transfer Form contains a note from the School (Ms Dassaklis) that the issues raised in the applicant's supporting documentation (i.e. the complaint about Mr Albanese) were workplace related issues which had been delegated to the Deputy Principal of the School to manage.
9. Again, the Form states that the application had been 'Rejected by Staffing' and it also contained the same brief comment of the 'Teacher Staffing Service Centre.'
10. In support of his third formal application for a compassionate transfer (15 August 2012), the applicant attached two letters. One letter, dated the same date as his applicant, was addressed to the Director Staffing Services of the respondent. In this letter the applicant gave a number of reasons for seeking a transfer. These included: (a) 'Continuous harassment and discrimination by the school principal Ms Dassaklis, deputy principal Ms Ramadan and the head teacher Mr Livermore' at the School; (b) the issues were ongoing even though he tried ways to resolve the issues by taking leave without pay and attempting to build a healthy workplace relationship. However after a couple of days, the issues reoccurred and he can, 'clearly feel the discrimination and harassment'; and (c) he was in constant fear of this effecting his health and he was seeking an opportunity to work in a 'fearless, harassment-free environment and to get an equal opportunity to grow in the teaching career'.
11. The other letter he attached was a copy of the letter he had sent, on 1 August 2012, to the Regional Director of the respondent Department. That letter was in similar terms to the complaint the applicant had made to the Board on 16 August 2012.
12. The applicant's on-line Transfer Form contains a note from the School (Ms Dassaklis) that the application was not supported. This Form also states that the application had been 'Rejected by Staffing' and it contained the same brief comment that was on the other Forms.
13. In her evidence, Ms Ramadan explained every application for a transfer is made on-line and sent to the Principal of the relevant School for approval. However, the actual determination of an application is always made within 'Staffing', a section within the respondent Department. She said applications for transfer are made and determined in accordance with respondent's procedures as set out in the 'Promotion and Transfer Procedures'. In this regard she noted that the policy provided that where a teacher is flagged as experiencing difficulty on an informal or formal improvement program, they cannot transfer to another school until the informal or formal programs are completed and the teacher is found to be proficient and satisfactory. As we have already mentioned, on 1 November 2011, Mr Albanese had informed the applicant that there were concerns about his performance as a teacher following the TARS. Ms Dassaklis subsequently advised the applicant, on 4 November 2011, that he would be placed on an informal improvement program. He did not start that program until mid 2012, due to numerous absences and other issues. Nevertheless, on the material before the Tribunal, the applicant was the subject of such a program when he made his second and third formal application for compassionate transfer.
14. We note the respondent's Promotion and Transfer Procedures (the Procedures) provide for various categories of transfer, including 'compassionate transfer'. The Procedures state that 'an application for compassionate transfer will be approved only on the basis of exceptional and compelling circumstances.'
15. The Procedures also provide for applications for transfer to be made, on-line, by the teacher seeking a transfer, through the respondent's employee self-service website,. That application is then sent to the Principal of the School where the teacher is teaching. The Principal is required to (a) verify the information provided by the applicant for a transfer, (b) whether they support the application for transfer and to (c) to indicate whether the applicant for a transfer is competent and performing satisfactorily on the Teacher Assessment Review process.
16. The Procedures also set out specific objective criteria that 'Staffing' is to consider in determining an application for transfer. The applicant made no reference to having met the criteria for a compassionate transfer. On the contrary, his applications suggest he either did not understand how the criteria applied to him and his teaching experience, or he tried to place himself in the best light possible without reference to the criteria.
17. We do not question the applicant's motivation for seeking a compassionate transfer. We note Mr Govender was transferred to another School at the end of 2012, but accept it was a transfer on a completely different basis.
18. However, we are not satisfied the applicant has place before the Tribunal any evidence that would support a finding that Ms Dassaklis, Ms Ramadan or Staffing's conduct in failing to support, or rejection his transfer applications, was such that he was treated less favourably than they treated, or would have treated another non-Indian teacher and that a factor in their decision to not support, or refuse his transfer application was his race.
19. On the contrary, the overwhelming evidence is that Ms Dassaklis and Ms Ramadan (in the event she had a role in this regard) did not support his second and third application for a transfer in accordance with the respondent's Procedures. The evidence points to a similar finding in regard to Staffing's rejection of his transfer applications.
20. Accordingly, we find the applicant has failed to establish his refusal to transfer claim.

Placement on the formal teacher improvement program

1. As we have noted, following his TARS results, the applicant was placed on an informal improvement program in November 2011. All teachers in the TAS Faculty were subject to the TARS.
2. The applicant alleged that Ms Dassaklis' conduct in placing him on the program was victimisation and discriminatory, contrary of the AD Act. As this complaint was the subject of the decision of Magistrate Deputy President Hennessy in Loke v Director General, Department of Education and Communities [2013] NSWADT 212 and for which leave was refused, we have considered it no further.
3. The evidence is that, in March 2013, on completion of his informal improvement program, Ms Ramadan informed the applicant that his teaching performance had not improved sufficiently and that he would be placed on a formal improvement program. Both programs are designed to provide support to teachers in improving their teaching.
4. The applicant contended that Ms Ramadan had made her decision on racist grounds as he had received good reports from 'senior executives like Ms Gina Tsopanos, Mr Roukanas, Ms Sandra Begg, Ms Christine Absolom' during his informal improvement program. The applicant tendered into evidence copies of these reports (i.e. lesson observation sheets or Lesson Observation /Feedback Guide).
5. The applicant said Ms Ramadan was on leave during October/November 2013. He went on to say, on her return Ms Ramadan started giving him "'Unsatisfactory' remark & bad reports' and she moved 'Ms Tsopanos & Ms Begg from my observations, and replaced them with the people who have been harassing me (Mr Livermore etc.)
6. In her evidence Mr Ramadan the procedures for dealing with teachers who are experiencing difficulties with their teaching performance are set out in the respondent's 'Teacher Improvement Program' publication dated February 2010. That program provides for an informal and formal teacher improvement program. She explained that Ms Dassaklis had placed the applicant on an informal improvement in November 2011, prior to her commencing at the School. She said, in June and July 2012, after the applicant had returned from extended leave, she, Mr Livermore, Ms Rump and Ms Dassaklis observed some of the applicant's classes and prepared a lesson observation report as part of the applicant's informal improvement program. These reports, Ms Ramadan said indicated significant deficiencies in the applicant's ability to lesson plan and preparation and classroom management. Copies of these reports were attached to Ms Ramadan's statutory declaration.
7. Ms Ramadan said the applicant was invited to attend a meeting, with Ms Dassaklis, on 16 August 2012 to discuss his teaching performance. That meeting eventually took place on 3 December 2012. In attendance were, the applicant, Mr Govender (as support person), Ms Dassaklis, Ms Ramadan and Ms Woodward (as minute taker). Ms Ramadan said that during this meeting the applicant was given a support plan that outlined what he needed to achieve and the supports that were available to him for this purpose.
8. Ms Ramadan said that at the conclusion of the five-week informal support provided to the applicant, she, as Acting Principal had to decide whether the applicant had performed satisfactorily during this support period. She said she, in consultation with Ms Rump and Mr Livermore, decided the applicant 'needed to proceed to a formal improvement program as he had not made satisfactory improvement and required additional support to reach a satisfactory level of performance.' She said that the decision was made upon consideration of all matters that had been identified for which the applicant had been shown to require as a result of his 2011 TARS and his classroom reports, including those of Ms Absalom. Attached to Ms Ramadan's statute declaration was a copy of Ms Absalom's Lesson Observation Sheet for 8 and 13 February 2013. Ms Ramadan said these observations were discussed with the applicant on 13 and 20 February 2013. He was also given feedback on 1 and 11 February 2013.
9. On 21 March 2013, Ms Ramadan informed the applicant that he would be placed on a formal improvement program as he had not made adequate improvement during the informal support program to be classified as a proficient teacher given his years of experience. Ms Ramadan reiterated that the decision was made on the basis of all the classroom reports and her own observations.
10. Shortly thereafter the applicant went on leave for the remainder of term 1 and term 2 of 2013.
11. In her oral evidence, Ms Ramadan confirmed that of the 15 to 20 teachers she supervised, the applicant was the only teacher who had been placed on an informal and then formal teacher improvement program. However, she reiterated her evidence that she did so, on the basis of the class room reports and her own observations.
12. It is evident the applicant was given considerable feedback following his class observations. The applicant provided a class observation of Mr G Roukanas, which is dated 16 August 2011. That report supports the applicant's contention that his teaching was well constructed and articulated. The observation ended by saying 'Well done sir -'. As the report pre-dates the applicant being placed on the informal teacher improvement program we have placed very little weight on it.
13. The applicant tendered into evidence a copy of an evaluation report for the week ending 8 November 2023 and pro-forma class room reports completed by Ms Sandra Begg on 7, 19 and 26 November 2012 and those completed by Ms Tsopanos on 14,18 and 29 November 2012. The evaluation report notes that Mr Roukanas was an unofficial observed.
14. The reports completed by Ms Begg were very brief, with little comment, and she ticked the box 'satisfactory' on the second page as being her overall marking of her observation of the applicant's class. The reports of Ms Tsopanos dated 14 and 18 November were similarly brief. However, Ms Tsopanos' report of 29 November had additional information attached. This information included some suggestions for improvement.
15. In the 8 November 2102 evaluation report Mr Stevens is recorded as having said 'feedback was mostly positive. It will be discussed in detail later on during the meeting on Wednesday.'
16. It is evident that there were further class observations after 29 November 2012, which the applicant has not placed before the Tribunal.
17. The February 2013 lesson observation sheets of Ms Tsopanos and the minutes of the feedback sessions attached to the statutory declaration of Ms Ramadan are comprehensive and do record a number of areas where the applicant needed to improve his performance as a teacher.
18. It is the applicant's contention that as his performance was considered by others to be satisfactory, the only explanation for Ms Ramadan's decision to place him on a formal teacher improvement program was his race.
19. In our view, an inference of this nature is not established from the material that is before us. We accept that some of his colleagues marked his performance as satisfactory after they observed his lessons. However, as is evident from the evidence of Ms Ramadan these observations only formed a part of his overall assessment under the informal improvement program that had been initiated by Ms Dassaklis, in November 2011.
20. While it is not for the Tribunal to determine whether the applicant's performance as a teacher was or was not satisfactory, we find that on the material before us, Ms Ramadan's decision to place the applicant on a formal improvement program was a decision made in accordance with the respondent's procedures as set out in the 'Teacher Improvement Program' publication. That is, there is no basis to infer, as suggested by the applicant that a factor in Ms Ramadan's decision to place him on an formal teacher improvement program was his race.

Conclusions and Orders

1. For the reasons set out above, we have found that the applicant has failed to establish that the conduct of: 1. Ms Ramadan and Mr Livermore in respect of his video claim, 2. Ms Dassaklis, Ms Ramadan and Staffing in respect of his compassionate transfer applications, and 3. Ms Ramadan in respect of placing him on a formal improvement program was contrary to section 8 of the AD Act and discriminatory on the grounds of his race.
2. We have also found that the applicant has failed to establish that Mr Albanese and Ms Khan made the racist remarks as asserted.
3. On this basis, it has been unnecessary for us to determine whether the respondent is vicariously liable for the conduct of Ms Dassaklis, Ms Ramadan, Mr Livermore or Staffing. Nor has it been necessary for us to consider whether the respondent failed to respond to a work environment of racial harassment. This does not mean that we found the applicant to have been deliberately untruthful. However, he did appear to have little understanding or appreciation of the provisions of the AD Act and its application to his own circumstances.
4. On the basis of our findings, the appropriate order is to dismiss the applicant's application. 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: 29 May 2015