Mallegowda v Secretary of the Department of Transport

What would the applicant have to prove if the claim were permitted to proceed?

Statutory framework

1. Section 49B of the Act makes it unlawful to discriminate against a person on the grounds of disability. It provides that: (1) A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of disability if the perpetrator-- (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability-- (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

What is required in order to establish discrimination?

1. In order to establish a claim of discrimination, the applicant needs to establish that at least one of the reasons he was treated less favourably than others in the same or similar position (sometimes referred to as 'differential treatment') was "on the grounds of" his disability (sometimes referred to as 'the causation question').
2. In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [60] - [65], the Tribunal discusses how the question of whether or not there has been "less favourable treatment" of the applicant "than others in the same or similar position" where the comparator is a hypothetical comparator, as it is in this case. This case is similar to Dutt in that, as stated in Dutt: "The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently."
3. The words "on the grounds of" have been paraphrased as "because of", "due to," "a real" reason, a "genuine" reason or "true reason" for the treatment alleged to have been discriminatory (Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]).
4. A person may also experience indirect disability discrimination if a requirement operates differentially on a person of a different race. That will also constitute indirect racial discrimination. That was not alleged in this case.
5. The applicant bears the onus of proof that he was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to his disability (Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56]).
6. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered (Dutt v Central Coast Area Health Service [2002] NSW ADT 133 at [59] - [65]; Commission of Corrective Services v Aldridge [2000] NSWADTAP5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].)
7. It is not the case that because a person has a particular disability and experiences something he or she perceives as "adverse" to him/herself, that the conduct is discriminatory simply because the person has that disability. The person needs to prove on the civil standard that the conduct impugned occurred "on the ground of", "due to" or "because of" the disability of the person or that was one of the reasons for the conduct. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned is the disability of the person.

What if an allegedly discriminatory act is done for more than one reason?

1. Section 4A of the ADA provides that: If - (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.
2. The applicant also claims that he has been victimised as defined ins s50 of the Act. Section 50 provides as follows: (1) It is unlawful for a person ( "the discriminator" ) to subject another person ( "the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has-- (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

Why did Anti-Discrimination NSW decline the Complaint?

1. The reasons set out in the Report of the President of Anti-Discrimination NSW for the declining of the complaint on 11 January 2024 pursuant to s 92(1)(a)(i) as "lacking in substance" are stated as follows: 1. The complainant has not provided any information which could establish that his disability was a relevant consideration in the respondent's decision to decline his application for employment; 2. The complainant has not established that he has been victimised because of any prior complaints of discrimination against the same employer. 3. The respondent has provided a credible explanation as to why the application for employment of the applicant did not progress further. 4. The subject matter of the victimisation complaint has been dealt with in another jurisdiction.

Consideration of whether the complaint is lacking in substance.

1. Anti-Discrimination NSW has accepted the complaint as it relates to conduct on 24 February 2023. Section 89B of the Act provides that: 89B Acceptance or declining of complaints by the President (1) The President is to determine whether or not a complaint made to the President is to be accepted or declined, in whole or in part. (2) The President may decline a complaint if-- (a) no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations, or (b) the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint, or (c) the conduct complained of could amount to a contravention of a provision of this Act for which a specific penalty is imposed, or (d) in the case of a vilification complaint, it fails to satisfy the requirements of section 88, or (e) the President is not satisfied that the complaint was made by or on behalf of the complainant named in the complaint. (3) The President is to give notice of a decision to accept or decline a complaint to-- (a) the person who made the complaint, and (b) if the respondent has been given notice of the complaint, the respondent, so far as is reasonably practicable, within 28 days after the decision is made. (4) A decision under this section to decline a complaint in whole or in part is not reviewable by the Tribunal.

CONSIDERATION The complaint of discrimination on the ground of disability

1. The Tribunal has reviewed the report of the President of Anti-Discrimination NSW (referred to here as "the President's Report") which contains all of the written material from both parties that was before Anti-Discrimination NSW when it made its decision. The oral argument at the leave hearing has also been taken into account.
2. It was apparent from the President's Report that the applicant made an application for employment with the respondent as a Project Engineer EL3 in December 2022. He had previously worked as a Project Engineer for the respondent (differently named) from 7 February 2006 to 3 April 2017. He resigned by agreement with the respondent, effective 3 April 201,7 in the context of settlement of proceedings he brought against the respondent arising from
3. As part of the application process he made for the position in December 2022, he was required to undergo pre-employment checks, including a criminal record check.
4. When the criminal record check was undertaken, the fact that the applicant had a previous conviction that he had not disclosed was discovered, advice was sought and he was advised that his application would not proceed further as he was "uncompetitive" as compared with other applicants once that conviction was known.
5. In his documents for this hearing, the applicant submitted a copy of a decision styled Prothonotary of the Supreme Court of New South Wales v Mallegowda [2016] NSWSC 1087. This was a decision of Adams J. It was a conviction for contempt, to which the applicant pleaded guilty. The judgment states that the applicant, the contemnor, was a party to defamation proceedings and threatened a witness that if he did not withdraw his affidavit, he would make complaints to the ATO and Department of Immigration against the witness. This conduct had a tendency to interfere with the administration of justice. The applicant was sentenced to a term of imprisonment of 9 months. Execution of the sentence was suspended from 9 August 2016. The Court directed that the contemnor be released from custody on condition that he entered into a good behaviour bond under Section 12 of the Crimes (Sentencing Procedures) Act, 1999 for a term of 9 months.
6. Once that sentence came to light in considering the December 2022 job application, the Department sought advice from the Professional Standards and Conduct Unit of TFNSW which advised that: "Based on their assessment, they consider Mr Mallegowda no longer a competitive applicant in the role applied for."
7. Mr Jarrad Perks, Talent Specialist with People and Culture, Transport for NSW provided an email to David Hutchinson, another staff member within Transport for NSW, dated 24 February 2023 stating that the applicant had telephoned him regarding the applicant's application. The email was in evidence in this leave hearing. In it, Mr Perks says that: "I called him to let him know that we were not proceeding with his application as he did not make it through the "PECS": pre employment checks, which includes, police checks, medical and references. The advice not to proceed was received from Professional Standards TFNSW…"
8. The applicant argues that because Mr Perks included word "medical" in that email, that the Department was somehow aware that he had a diagnosed condition of bi-polar disorder. There was no evidence that this was so and the applicant had completed a Health Declaration form on 8 February 2023 answering "No" to the question "Do you currently have any illness, disability or condition that may affect your performance in carrying out duties of the position?" Thus, there was no evidence that bi-polar disorder (or indeed any other disability) was disclosed in his application and no evidence that it was one of the reasons for the application not being progressed.
9. Although the applicant provided a medical report to the Tribunal for this hearing from Dr D. Namayakkare dated 18 December 2023 stating that he has "Bi-Polar Disease", that medical report post-dates refusal of his application.
10. There is no other evidence before the Tribunal that the respondent was aware, from information provided by the applicant or otherwise, that at the time of his application in December 2022 the applicant had bi-polar disorder or disease. Although there was a decision of the Supreme Court in 2016 that refers to that condition, there is no evidence that the Department accessed that decision.
11. The explanation provided by the respondent as to why Mr Mallegowda's application was rejected was clear and cogent, namely that the applicant's contempt conviction was identified on the applicant's criminal record check, advice was obtained from the Professional Standards and Conduct Unit, who recommended that Mr Mallegowda's application for the Project Manager's role be rejected.
12. The explanation from the respondent about what transpired is set out in a letter to Anti-Discrimination NSW from Sparke Helmore dated 19 July 2023 as follows: "The assessment was undertaken by Kevin Carty. He reviewed the material and, on 16 February 2023, provided Mr Mallegowda with an opportunity to explain his conviction. Mr Carty ultimately formed the view that Mr Mallegowda should not pass his criminal record check and his application for the Project Manger EL3 role should be rejected. Mr Carty initially formed this view based on the seriousness of the criminal offence and his discussion with Mr Mallegowda. He later ascertained that Mr Mallegowda's employment had bene terminated by RMS due to his failure to disclose the criminal charges and conviction. This information, and his perception as to Mr Mallegowda's lack of candour about that issue in their discussion of 16 February 2023, further influencing Mr Carty's decision to recommend that Mr Mallegowda not be employed."
13. The letter from Sparke Helmore of 19 July 2023, referred to above, states that Mr Carty's recommendation was passed to his manager, Mr Darren Keene. He agreed with Mr Carty's recommendation for the same reasons that Mr Carty relied on. As a consequence, on 24 February 2023, Mr Mallagowda was told, both orally and in writing, that his application was unsuccessful.
14. The criminal conviction originally became known to the Department in 2016 due to an article in the Sydney Morning Herald on 16 August 2016, rather than because Mr Mallegowda told the Department about it or because they accessed the decision of the Supreme Court. Once the Department became aware of it, a Deed that was in evidence stated that an investigation was undertaken into a possible breach of the relevant code of conduct, resulting in an end to the applicant's employment. He took proceedings for unfair dismissal in the IRC and made a complaint to the Australian Human Rights Commission alleging victimisation and discrimination. Those proceedings were all settled by a Deed that was entered into in settlement of those proceedings.
15. The respondent states that Mr Carty and Mr Keenan were not aware of the previous complaints or legal proceedings at the time a decision was taken to reject Mr Mallagowda's application on 24 February 2023. There is no evidence to the contrary.
16. The decision of the Supreme Court on the contempt charge (provided by Mr Mallegowda in evidence for this leave hearing) states at paragraph 21 that in 2011 a psychiatrist concluded that Mr Mallegowda suffered at that time from Bi-polar Disorder. Dr Olav Neilsson also saw him on 2 November 2015 and found that the condition was in remission (as stated at [23]).
17. There is, however, no evidence that such possible medical condition formed any part of the reasoning in the decision made in February 2023 to refuse his application for employment. The critical matter that was the Supreme Court finding that the criminal charge of contempt was made out and failure to disclose the contempt conviction and sentence to his employer.
18. Given the statement in the Health Declaration of Mr Mallegowda dated 8 February 2023 stating that he had no condition that could affect his ability to undertake the duties of the position, if the question of bi-polar disorder was in issue and they were aware of the reference to it in the Supreme Court decision of 2016 , it was open to the Department to ask the applicant to supply medical evidence about his present mental condition in 2023, which they did not, or to have him medically examined, which they did not.
19. In those circumstances, the clear and plausible explanation of the reasoning behind the decision to refuse his employment is the contempt conviction itself, the sentence and the conversation by Mr Carty with Mr Mallegowda about it.
20. Although, during the leave hearing Mr Mallegowda argued that the Deed of Release executed by the parties after the ending of the applicant's employment said he had "resigned" rather than been terminated, that does not gainsay the evaluative assessment of the respondent that the serious criminal conviction and the remarks made by Mr Mallegowda about it meant that the responsible course that Mr Carty took was to recommend refusal of Mr Mallegowda's application. It was a course open to him once the conviction and sentence came to light.
21. I am satisfied that Mr Carty formed the view that it was not appropriate to progress this application due to the criminal conviction and the applicant's responses to it.
22. Mr Mallegowda argued that inclusion of the word "medical" in the email of Mr Perks set out above meant that the respondent was aware of his bi-polar condition. This misconstrues the words of the email, which simply sets out the sorts of checks that are conducted, with no indication that any health check was conducted or that, even if it had been, there was any current information before the Department as to any medical condition that the applicant had at the time of his application.
23. Taking the evidence at its highest, there is no credible, cogent evidence that any medical condition of Mr Mallegowda was taken into account or played any part in making the decision to reject the application of the applicant for employment.
24. Accordingly, the complaint of disability discrimination on the ground of any bi-polar condition he may have had at the time the December 2022, may previously had or been thought to have had, must fail. It has no realistic prospects of success. It would not be just or fair to permit the allegation to proceed in the Tribunal.

Victimisation complaint

1. The applicant also argues that the decision not to progress his application was made because he had previously made complaints of discrimination against the respondent, which had been settled as between the parties. Again, although the applicant states that he "strongly feels" that these previous complaints have resulted in victimisation, there is no evidence, beyond the assertion of the applicant, that this was so. This does not rise above conjecture.
2. There is no evidence of any causal link between the racial discrimination complaints made by the applicant in 2011 and 2017 and the decision on 23 February 2023 to reject his application of December 2022.
3. The applicant bears the burden of proof of this allegation on the balance of probabilities and he has not presented any convincing evidence to substantiate what may variously be considered to be an opinion, suspicion or conclusion.
4. The Tribunal is obliged to determine the leave application on the basis of the evidence before it. That evidence consists of assertions by the applicant. These assertions are unsupported by any written documents. He does not allege that anything was said to him that referred to these earlier complaints. Further, there are no witness statements by any other persons in support of allegations of victimisation.
5. Considering the evidence at its highest, there is insufficient evidence beyond generalised assertion to support this claim of victimisation within the complaint period. This is important to consider, as the applicant bears the burden of proving the claim on the civil standard, that is, on the balance of probabilities.
6. The respondent has provided a plausible, reasonable and cogent response to the complaint of victimisation.

IRC Proceedings

1. In addition, there are IRC proceedings on foot which appear to arise from the same factual circumstances, according to the President's Report, namely the decision of the respondent not to progress the application of the applicant for employment any further.
2. Shortly prior to the leave hearing, the respondent provided to the Tribunal a copy of the initiating proceedings commenced by the applicant in the IRC. The applicant complained that his permission had not been sought to use that document in the context of this hearing and that such use constituted contempt of the Tribunal pursuant to s73 of the Civil and Administrative Tribunal Act, 2013. It is not necessary to decide whether that is so, but in view of that, I have not read or taken into account the IRC proceedings initiating document but have considered oral argument on the matter.
3. The applicant gave evidence that in the IRC proceedings the relief he has sought is different from the relief he seeks in these proceedings. He said that in the IRC proceedings he seeks a verdict due to alleged victimisation, compensation for damage to his mental health and reinstatement. In this Tribunal he said that he seeks a verdict for victimisation and that no other relief is claimed.
4. There can be no question of reinstatement as applicant had not been appointed to the position.
5. Sections 96(1) and (2) of the Act state as follows: (1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1) may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. (2) An issue that is the subject of proceedings before the Industrial Relations Commission may not be the subject of proceedings relating to a complaint before the Tribunal without the leave of the Tribunal.
6. I am reasonably satisfied from the oral argument at the leave hearing that alleged victimisation is an issue that is the subject of proceedings before the IRC and is also sought to be advanced in this Tribunal in the victimisation complaint made in the application before this Tribunal. The IRC proceedings appear to arise from the same factual matrix as this application, even if the relief sought is slightly different. For the purposes of s92 (1)(a)(v), (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body. For that reason it is not, in my view, appropriate to grant leave for it to proceed.
7. If I am wrong in that view, it is nevertheless not appropriate to grant leave to proceed in this Tribunal in relation to either of the applicant's two complaints for the other reasons set out above.

Conclusion

1. On the information that has been provided, the complaints of discrimination on the grounds of disability (alleged bi-polar disease/disorder) and victimisation are not reasonably arguable or likely to succeed, even considering the evidence of the applicant at its highest.
2. From the oral argument at the leave hearing and having regard to all of the written material that is before the Tribunal in the President's Report, the Tribunal is not satisfied that the applicant has provided evidence sufficient to establish that it would be fair or just for the complaints to be permitted to proceed.
3. The Tribunal therefore declines leave for the complaint to proceed on both the complaint of disability discrimination and the complaint of victimisation.

Orders 1. Leave to proceed with the complaint of disability discrimination and the complaint of victimisation is refused.

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: 21 March 2024