Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 32, 38, 39

Discrimination Act 1991 ss 7, 8, 15, 19, 20, 67A, 68

Human Rights Commission Act 2005 ss 53A. 53CA, 53E

Cases cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

CPS Management v The President and Members of the Equal Opportunity Board [1991] VicRp 50; [1991] 2 VR 107

De Domenico v Marshall [1999] FCA 1305

Ezekiel-Hart v Reis and Anor [2017] ACAT 3

Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767

Kovac v The Australian Croatian Club Ltd [2014] ACAT 41

Nestle Australia Ltd v The President and Members of the Equal Opportunity Board [1990] VicRp 71; [1990] VR 805

Ralph M Less Pty Ltd v Fort (1991) EOC 92-357

Tadawan v South Australia [2001] FMCA 25

Qantas Airways v Gama [2008] FCAFC 69

Sharma v Legal Aid (Qld) [2002] FCAFC 196

List of

Papers/Texts cited: Attorney-General's Department, Consolidation of Commonwealth Anti-Discrimination Laws Discussion paper, September 2011

Allen D, Reducing the Burden of Proving Discrimination in Australia, Sydney Law Review Vol 31, 2009, 579

Drawing Inferences of Racial Discrimination, Federal Discrimination Law online

2. A person must not publish any information about this matter or any evidence provided during the proceedings that will identify the name of any party or witness.

The Tribunal reminds the applicant of the Order of Registrar K Soper, dated 26 July 2016, in relation to documents held by the respondent that the applicant subpoenaed. This Order requires the applicant to "return all copies to the Tribunal registry when the proceedings come to an end" (Order 1(c)).**

**1. Mr M (the applicant) unsuccessfully sought relief for discrimination on the grounds of race, and also relief for victimisation. The application was against B, a small aged care facility (the respondent), which was the applicant's employer. The applicant also successfully sought an order prohibiting the publication of his name or evidence that might identify him[1], and given the nature of the matter the ACT Civil and Administrative Tribunal (the Tribunal or ACAT) has extended this prohibition to the publication of the name or evidence that might identify any party or witness in these proceedings. The reasons below explain why the Tribunal has dismissed the substantive application and made an order to prevent disclosure of the applicant's, respondent's or any witness's identity, as set out in the orders above.

2. In summary, the Tribunal found that there was unfavorable treatment in that the applicant received a warning from his employer, and a note about this warning is on his employee's file.[2] However this treatment was not because of race. The Tribunal considered the evidence and could not draw a reasonable and definite inference of racism from the circumstances. The Tribunal found there was not indirect discrimination. The Tribunal found that there was not victimisation of the applicant. Given the nature of the applicant's allegations, the Tribunal found that the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (the Briginshaw principle) did not apply to the standard of proof in this case. The Tribunal made the findings above on the basis of the usual standard of proof.**

**3. In a letter dated 18 August 2015 the ACT Human Rights Commission (the Commission) referred a complaint of Mr M to ACAT under section 53A of the Human Rights Commission Act 2005 (the HRC Act).[3] The referral letter set out the nature of the applicant's complaint, being allegations of discrimination by the respondent on the grounds of race in employment. The referral letter from the HRC provided the applicant's complaint form with attachments, and various correspondence between the Commission and the parties. During the proceedings the applicant also alleged that he had been victimised[4], and he clarified that his claim included alleged indirect discrimination by the respondent on the basis of race. This expanded scope to his claims was considered by ACAT in these proceedings.[5] The respondent had the opportunity to, and did respond to the expanded scope of his claims. In ACAT proceedings, the complaint is referred to as an application.

4. Prior to the substantive hearing the parties exchanged a considerable amount of material which was before the Tribunal. The applicant served a number of subpoenas to give evidence and produce documents. The respondent contested a subpoena due to requirements of the Health Records (Access and Privacy) Act 1997.[6] ACAT ordered access by the applicant to the material, subject to an undertaking that in effect restricts the use of the subpoenaed material by the applicant to the proceedings and the return of this material to the ACAT upon conclusion of the proceedings, which is referred to in a note to the Orders above.[7] The subpoenaed material consisted of daily progress notes written by rostered staff (progress notes) for various persons residing at the aged care facility (residents) during the applicant's employment there.[8] One of the applicant's subpoenas, a subpoena to produce CCTV footage, could not be met by the respondent since the footage was no longer available.

5. At the time of the alleged discrimination the applicant was employed by the respondent, an approved provider of aged care in accordance with the Aged Care Act 1997[9], as a care services employee (CSE)[10]. He worked at a small aged care facility in Canberra, B (the aged care facility). Up to 2014 another entity had operated the aged care facility, but the respondent took over its operation and the applicant's employment was transferred to B with effect from 27 November 2014.[11] Initially he was a casual employee, but from 12 February 2015 he was a permanent employee, engaged to do 68 hours/fortnight primarily on the night shift, with a three month probationary period that expired on 12 May 2015.[12] Ms K was the aged care facility manager when the respondent took over operation of the aged care facility. From February 2015[13] the applicant reported to Ms O and Ms P who were appointed as new joint facility managers.[14] The applicant resigned in May 2015.[15]

6. The new facility managers instituted various changes to practices at the facility, which involved the applicant changing some of his practices with patients, including not waking them at 4AM in the mornings to prepare them for the day.[16] On 27 March it came to the attention of Ms O, one of the joint facility managers, that the applicant had written what she considered to be "inappropriate observation entries on multiple patients' progress notes over the preceding two days [ ie one progress note on 26 March and 2 on 27 March 2015]"[17] which she considered inappropriate because they "made clear statements outlining [the applicant's] opinion (his diagnosis) of what medical conditions these patients could be suffering from and the reasons why."[18] She then had a phone conversation with the applicant on 28 March 2015.[19] On 14 April 2015 she became aware of a progress note by the applicant made earlier that day.[20] She discussed this issue in person with the applicant that day and gave him a verbal warning, which is recorded in a note (the File Note) signed by both parties.[21] The applicant became concerned about the File Note he had signed and requested that it be removed from his employee's file in communications to the respondent dated 19, 23 and 24 April 2015.[22] In a reply from Mr S, the General Manager, Risk and Human Services, the respondent explained that the File Note "will ...remain in your personnel file."[23]

7. While the latter events were unfolding, on 20 April 2015 the applicant was sent a further letter from the respondent about a medication error which had occurred in the days preceding[24], that the respondent described as "where [the applicant] has signed for but not given a 7AM medication."[25] However the applicant disagreed that this was an issue about his care.[26] Also the respondent became aware that on or about the 14 April 2015 "[a] regular visiting GP consulted with [one of the joint facility managers]... regarding concerns over [the applicant's] professional behavior."[27] One of the facility managers in her oral evidence, Ms P, explained that the GP's concerns were raised with her and were about the inappropriateness of the applicant's progress notes in that they presented "what the resident may need" in the light of a "suggested diagnosis" by the applicant.[28]

8. The respondent had a meeting about managing the applicant's performance on 15 April 2015, involving the joint aged care facility managers, the General Manager, Risk and Human Services Officer and other staff of the respondent, which is recorded in a report.[29] The outcome from this meeting was a decision to support and manage the applicant which in part involved bringing the applicant on to day shifts.[30] The respondent notified the applicant on 24 April 2015 that the File Note would not be removed from his file as mentioned above (see paragraph 6), and also raised various issues with him, including about the consequences of his not attending a training course which proved to be incorrect.[31] A follow-up meeting proposed by the respondent[32] with the applicant and set for 1 May 2015 was "postponed" by the respondent due to other commitments.[33] However the applicant provided his resignation in a communication dated 1 May 2015 so the meeting never occurred.[34]

9. A hearing was held on 28 and 29 September 2016.**

**10. At the hearing the applicant appeared in person and represented himself. The respondent was represented by Mr William Ward, Special Counsel, assisted by Sam McGregor, Meyer Vandenberg, who was agent solicitor for Trevor Cork, McPhee Kelshaw Solicitors and Conveyancers.

11. At the beginning of the hearing and at each resumption of the hearing the Tribunal requested that any issues about procedural matters or fairness be raised. Any that were raised were dealt with during the proceedings.

12. During the hearing a number of exhibits were accepted into evidence. Four persons gave oral evidence, namely the applicant, the two persons who were the joint facility managers at the time of the alleged discrimination, and the General Manager, Risk and Human Services.

(a) What is the standard of proof, in particular does the Briginshaw principle (see paragraph 18 below), which concerns the weightiness of the evidence required to meet this standard, apply in this case?

(b) Did the respondent directly discriminate against the applicant in employment in that they:

• (i) treated the applicant unfavorably;

• (ii) because of the applicant's race?

(c) Did the respondent indirectly discriminate against the applicant in employment in that they:

• (i) imposed a requirement;

• (ii) that had the effect of disadvantaging the applicant;

• (iii) because of his race?

(d) Did the respondent victimise the applicant?

(e) What if any remedies are appropriate?

**14. In summary, section 53A of the HRC Act provides that a complaint about an unlawful act under the Discrimination Act 1991 (the Discrimination Act) must be referred to ACAT in certain circumstances, which occurred in this case by letter dated 29 June 2016. The letter set out the nature of the complaint.

15. Firstly, there is an allegation by the applicant that the respondent directly or indirectly discriminated against him[35] on the grounds of him having a protected attribute, being his race.[36] Under the Discrimination Act, 'race' includes "colour, descent, ethnic and national origin and nationality."[37]

16. For direct discrimination the applicant must prove that he was treated unfavourably because of one or more protected attributes, in this case race.[38] Indirect discrimination occurs where a person "imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more attributes" (in this case his race).[39] Indirect discrimination does not occur if the condition or requirement "is reasonable in the circumstances."[40]

17. His application secondly alleged that he had suffered victimisation, that is, that the respondent had subjected, or threatened to subject him to a detriment because he had taken or proposed to take discrimination action.[41]

18. In regard to the applicant's alleged discrimination, section 53CA of the HRC Act provides that "it is a rebuttable presumption that discrimination has occurred" if the complainant establishes that the "treatment ...is unfavourable" and the complainant presents evidence that "the treatment ...is because of a protected attribute" in the absence of any other explanation.[42] In regard to the standard of proof, as set out by Professor Spender in Kovac v The Australian Croatian Club Ltd [2014] ACAT 41 (the Kovac case) the applicant must prove his case on the balance of probabilities. However, as also set out by Professor Spender in the Kovac case, there is a question of whether the Briginshaw principle, which concerns the weightiness of the evidence required to meet this standard, applies in a case.

19. When considering the cause of any unfavourable treatment, Professor Spender sets out the test for causation in the Kovac case as follows:**

whether the applicant's [protected attribute] is, either alone or in combination with other reasons, a real, genuine and not insubstantial reason for the unfavourable treatment....so in determining whether the respondent [in that case] has treated the applicant unfavourably...,the Tribunal will take into account all reasons for doing the act other than those that are not real or genuine or insubstantial.[43]

**20. In regard to indirect discrimination, the words "'requirement or condition' should be construed broadly so as to cover any form of qualification or prerequisite...", and may be explicit or implied.[44] In the context of anti-discrimination law, factors that are relevant to reasonableness include "whether or not the purpose for which the requirement is imposed could be achieved without the imposition of a discriminatory requirement..."[45]and "the observance of health and safety requirements."[46]

21. Section 53E of the HRC Act sets out the extent of the Tribunal's powers in regard to remedies for unlawful acts under the Discrimination Act. Section 53E of the HRC Act provides that where the Tribunal is satisfied that the respondent/s complained about engaged in an unlawful act, the Tribunal must make one or more of a range of orders, including that the respondent/s "not repeat or continue the unlawful act", "perform a stated reasonable act to redress any loss or damage", and/or "pay...a stated amount by way of compensation for any loss or damage..."[47]**

**22. The applicant's contentions against each of the five contested issues set out in paragraph 13 above are summarised below. Based on these contentions the applicant sought relief, summarised as follows: the respondent to provide him with a copy of his employee file, remove any adverse comments including the File Note from his file, retrieve any documents with adverse comments provided to third parties to date, provide a written apology, pay compensation and pay exemplary damages.[48] As mentioned above (see paragraph 1 above), during the hearing the applicant sought an additional order under section 39(2) ACAT Act to have his identify suppressed in publications about the matter.

23. During proceedings the respondent provided the applicant with a copy of his employee records, thus leaving the applicant's request for an order to this effect redundant.[49] The applicant requested an order for the respondent to retrieve any documents containing adverse comments about him on his employee file that had to date been provided to third parties. This request was also made redundant during the proceedings in that the respondent provided sworn evidence that "employee records, including records of any disciplinary action....or of any written warnings given to employees...are private and confidential. [The respondent] does not release such documents to third parties. Neither myself nor any other officer of the [respondent's] ... has released copies of the [respondent's] employment records relating to the [applicant] to a third party, including a prospective employer" or any "medical school."[50]**

Issue 1: Does the Briginshaw principle apply here?

24. The applicant was self-represented and did not address this technical issue.

Issue 2: Did the respondent directly discriminate against the applicant?

**25. The applicant described himself as a person of "Ugandan (African)" race.[51] He stated that "I cannot say that it was the case of racial discrimination because nobody ever made a derogatory comment about my race."[52] In his oral evidence he explained that while there were no direct statements made to him about his race, he suffered unfavorable treatment due to "the way I look, my culture, my language, the way I do things, my colour."[53] In his complaint to the HRC he stated that "I believe they have done this to me [the unfavourable treatment by the respondent] because of my race. There is no other explanation - no other reason as to why they would put this on my employee record."[54]

26. The unfavourable treatment he complained of was various actions taken by the employer due to his "alleged unsatisfactory work performance"[55], which resulted in the File Note being placed on his employee's file.[56] As mentioned above (see paragraph 6 above) the File Note was signed by one of the joint facility managers and the applicant, and concerned a "verbal warning" given to the applicant[57], followed by follow-up emails from the applicant on 19, 23 and 24 April 2015. In those communications the applicant raised his concerns about the File Note, and stated initially that due to the circumstances of his signing it he considered it "void"[58] and then stated later that "I never signed anything."[59]

27. The applicant in summary contended that "I was doing my job."[60] He stated that the issues raised by his employer were either due to him being targeted when others who did the same were not targeted, for example for their progress notes and their medication errors[61], or due to the respondent being inaccurate for example the fire training.[62] The issue about his fire training was conceded by the respondent to be an error.[63] Contrary to the respondent's evidence[64], the applicant denied that he slept while at work or left early.[65] The applicant did not know until these proceedings about the GP's concerns, or indeed know the GP personally[66], because they had not had time to raise it with him before his employment ceased.[67] He "disagreed" that he was responsible for the medication error[68], but in any case stated that he knew that other employees had made medication errors, and that "[t]here was not any warning given to this care staff."[69] He contended generally that other workers, including his African co-worker on night shift, had not been given warnings for the same issues as he had.[70] He also acknowledged in his oral evidence that "I don't know who else got warnings, it's their private matter."[71]

28. In regard to the issue covered in the File Note, the applicant gave examples from the subpoenaed material of progress notes by other employees that might be considered diagnoses rather than symptoms. For example, he referred to a progress note written on 13 March 2015 by a care worker who referred to "diaphoresis" and "rigor"[72], and another written on 14 March 2015 that refers to "delirium?."[73] In any case he contended that management had asked all staff to write more notes, to offer opinions about residents' health.[74] He stated that night staff were particularly required to do substantial notes to ensure that day staff and medical staff at the start of their shift and attending during the day were well informed.[75] For the applicant, "[t]rying to look into matters that affect our residents is my passion", "I thought it was only fair to have a clinical idea (which is optional of course) about what's affecting our residents to best look after them at times."[76] Indeed the applicant researched on the internet medical matters relevant to residents and used this information to inform his progress notes.[77]

29. The applicant verified that he has held a certificate 4 qualification in aged care since 2015, and underwent an English proficiency test to undertake these studies.[78] As part of these studies he agreed in his oral evidence that he had acquired skills and knowledge about the difference between facts and opinions, symptoms and diagnosis, and that making these distinctions is important to making appropriate records in aged care.[79] When the Tribunal asked the applicant what he understood a "symptom" to mean, the applicant answered that it is "the real cause, what is behind the problem."[80]**

Issue 3: Did the respondent indirectly discriminate against the applicant?

30. The applicant's contentions about indirect discrimination were not clearly stated by the applicant. His overall contention was that some or all the requirements placed on him as set out in paragraphs 26 to 28 above indirectly discriminated against him on the grounds of race. He contended that requirements were applied in such a way as to target him, his main examples being the requirements about progress notes and medication errors. Overall he contended that this demonstrated that "plots were being made to terminate my contract."[81]

Issue 4: Did the respondent victimise the applicant?

31. The applicant's contention that he was victimised due to his discrimination complaint was only raised during the proceedings. He didn't raise concerns about discrimination with the respondent while employed, although he did mention that he was seeking "legal advice" about the situation in an email just before he left.[82] He was frightened to raise his legal concerns before he left because "I had to survive so I didn't raise."[83] After he received legal advice he understood that he could be "terminated for no reason", had no right "to claim unfair dismissal since he was on probation", and he began to understand that the respondent was "out to get him."[84] He contended that the correspondence and phone calls from the respondent and its representatives since then, which were connected to these proceedings and prior discussions between the parties about his race discrimination complaint, were evidence of his victimization.[85]

32. During the proceedings the applicant sought an order for his identity to be suppressed, as set out above (paragraphs 1 to 2). He stated that he has never lodged a discrimination complaint before[86], demonstrating his concern that lodging one will not be perceived well even by the Tribunal. He contended that if the details of his case are published it will defeat the purpose of his application which is to ensure that his work history is not in any way marked by adverse issues. Even if he is successful he submitted that a person who makes a discrimination complaint is unattractive to a prospective employer.[87]

33. The respondent's contentions against the five issues listed in paragraph 13 above are summarised below.

Issue 1: Does the principle in the Briginshaw case apply here?

34. The respondent contended that the principle did apply based on case law.[88]

Issue 2: Did the respondent directly discriminate against the applicant?

**35. Overall, the respondent's contention was that the unfavorable treatment set out in paragraphs 26 to 28 above was a responsible response to the applicant's performance issues, taking into account the legislated and other requirements that applied at the aged care facility. Ms O, one of the facility managers confirmed that she identified breaches of the 'Quality of Care Principles' at the facility, and the actions taken in regard to the applicant were necessary to bring the facility into full compliance with these principles and related requirements.[89] The respondent contended that Ms O was very well qualified to identify such breaches since she was a registered "Quality Assessor with the Australian Aged Care Quality Agency", a registered nurse, a lecturer in various certificate courses on aged care and related services, and had a long work record in aged care services and management.[90]

36. The performance issues were summarised in the letter to the applicant giving him notice of a meeting on 1 May 2015 (later postponed), dated 27 April 2015 as follows: "1) Inappropriate documentation in resident's notes, 2) Inability to attend mandatory training, 3)Misunderstanding of your role and scope of practice, and 4) lack of respect for senior management roles and processes."[91] The respondent acknowledged to the applicant shortly after this letter was sent that they were incorrect about issue 2.

37. The File Note related to the first, third and fourth performance issues raised by the respondent above. The respondent contended that while there may be progress notes written by other employees that are not appropriate, the applicant demonstrated repeated difficulty with writing appropriate progress notes. This was demonstrated even after an informal discussion about them between him and a facility manager. The facility manager in her statement went into some detail about the role of a CSE, being to take "notes and observations...to document factual observations. The ...CSE is qualified in providing Aged Care Services, usually by way of a Certificate level qualification [as was the case with the applicant]...CSEs are neither qualified, nor engaged, to provide medical or clinical opinions..."[92] The facility manager, Ms O, who is well qualified including being a trainer (see paragraph 35 above), coached the applicant during the meeting for the formal warning about the differences between facts and opinions/symptoms and diagnoses for this reason, despite him holding a Certificate 4. The respondent contended that the difficulties of the applicant in writing progress notes raised serious concerns about the applicant's ability and willingness to perform his CSE role, and in combination with other issues, led to a meeting by key staff of the respondent's to support and manage him better. The respondent's documentation[93] and oral evidence[94] was that they were not considering terminating the applicant's employment.

38. The respondent submitted that the content of the progress notes on any objective reading was inappropriate for a CSE to write. In any case, a visiting GP who did not know the applicant on the applicant's own evidence (and therefore was not aware of his race), also raised issues about the appropriateness of the applicant's progress notes (see paragraphs 26 to 28 above).

39. The respondent contended that the applicant was incorrect in his contention that he was singled out to receive warnings. For example, when the medication error was raised with the applicant, in fact three other staff members also received similar warnings as confirmed in an email by Ms O, a facility manager, dated 15 April 2015 to the General Manager, Risk and Human Services.[95]**

Issue 3: Did the respondent indirectly discriminate against the applicant?

**40. In relation to the applicant's claim of indirect discrimination, the respondent contended that the requirements, including that to limit progress notes to observations (see paragraphs 26, 37 to 38 above) placed on the applicant were the same as those required of all other CSE staff. The requirements did not disadvantage the applicant due to his race, indeed on the applicant's own evidence his African co-worker was not having performance issues like him. The respondent gave evidence that their staff profile includes persons from a wide range of cultural and linguistic backgrounds who usually perform their roles well.

41. The respondent explained that aged care, due to the vulnerability of aged residents, is a highly regulated area under the Aged Care Act 1997 (Cth), and is subject to audits against aged care quality standards including those on healthcare and safety. The actions taken by the respondent to manage the applicant's practices in the aged care facility were necessary to ensure compliance with these requirements, and so "reasonable in the circumstances."[96]**

Issue 4: Did the respondent victimize the applicant?

42. The respondents contended that they could not have victimised the applicant since they did not become aware that the applicant was considering any legal action until 3 May 2015 (see paragraph 31 above). They did not become aware of the applicant's race discrimination complaint until after his employment had ceased.[97] The respondent contended that their communications with the applicant in regard to the employment dispute, and then later proceedings before the HRC and the Tribunal for a race discrimination complaint, were reasonable and not victimising.

43. The respondent did not agree that the applicant's identity should be suppressed. The respondent did not request that their name be suppressed, but did advise that their facility name would be changing in the near future so that the request from their point of view was redundant.[98]

Issue 1: Does the principle in the Briginshaw case apply here?**

**44. The applicant must prove his case on the balance of probabilities. The Discrimination Act is exemplary legislation[99] in that it provides for a rebuttable presumption that discrimination has occurred if the applicant proves that the treatment was unfavourable and in the absence of any other explanation that this was because of the protected attribute, in this case race and/or political conviction (section 53CA of the HRC Act). However there was an issue in this case about whether the Briginshaw principle applied (refer to paragraph 34 above). As mentioned above (refer to paragraph 18 above), Professor Spender in the Kovacs case explained that "Briginshaw is authority for the proposition that the more serious the allegation, the more weighty the evidence must be for the Tribunal to be satisfied that it is proven."[100]

45. In the Kovac case the Tribunal found that the Briginshaw principle did not apply where a club, which relied on patronage of club members, was the respondent. Professor Spender referred to Branson J's judgment in Qantas Airways v Gama [2008] FCAFC 69, which "challenged the routine application of Briginshaw in discrimination cases".[101] In assessing "the gravity of the matters alleged", Professor Spender observed in the Kovac case that it did not "involve an allegation of fraud or lack of probity" and that the allegations were not as serious as the allegations in other cases where the Briginshaw principle was found to apply[102], for example, of sexual harassment against a public figure or adultery.

46. In this case the allegations were about discriminatory behaviour by an aged care facility in employment. The allegations were not of the most serious nature in that they do not involve allegations of fraud or collusion as in the Ezekial-Hart[103] case. The Tribunal finds that the nature of the allegations are at the lower end of the scale and concludes that the Briginshaw principle does not apply in this case.

47. The Tribunal finds that even though the Briginshaw principle does not apply in this case, the applicant did not prove that he had been subject to discrimination on the balance of probabilities, as set out below (refer to paragraphs 48 to 55 below). While the Discrimination Act provides for a rebuttal presumption (refer to paragraph 18 above), this presumption was not enlivened in this case.**

Issue 2: Did the respondent directly discriminate against the applicant?

**48. The Tribunal accepts the evidence of the respondent that the actions of the respondent (set out in paragraphs 35-41 above) were a responsible response to the applicant's performance issues, taking into account the legislated requirements including Quality of Care Principles that applied to the facility.

49. A disputed issue was whether the respondent's actions were because of the applicant's race. The Tribunal finds that there was no evidence that race was a reason for the respondent's actions. Indeed there is an alternative coherent well-evidenced basis to the respondent's actions which was set out by the respondents in their evidence.

50. The Tribunal accepts that the weight of precedent supports the view that inferences about race discrimination can be drawn from the evidence in any case, since discrimination can be hidden even to those who are racist.[104] Raphael FM in Tadawan v South Australia [2001] FMCA 25 summarised the law in this respect as follows:**

In the absence of direct proof an inference may be drawn from the circumstantial evidence. The High Court has said that where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... [105]

**However, in this case the Tribunal can find no circumstances from the evidence that "give rise to a reasonable and definite inference of racism". [106] The applicant in essence contended that the Tribunal should infer that racial discrimination had occurred because "There is no other explanation - no other reason as to why they would put this on my employee record"[107]. But there is a coherent explanation provided by the respondent as set out above (paragraphs 35 to 41 above). And there was no evidence of acts by the respondent that even suggested racism. This is in contrast to the situation Raphael FM had in Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767. In the Gama case there were statements which he found to be racist such as "he looked like a Bombay taxi driver" and that he walked up the stairs "like a monkey."[108] By contrast, in this case a key witness, Mr S, the General Manager, Risk and Human Services, gave oral evidence that he had never met the applicant until after his employment ended.[109] Also issues with the applicant's progress notes were independently raised by a visiting GP, who the applicant on his own evidence said he did not know because he did the night shift and the GP came during the day shift (see paragraphs 27, 38 above).

51. The applicant provided limited probative evidence to support his contentions or to refute the respondent's evidence. Indeed his evidence that he was 'singled out' is incorrect on the evidence before the Tribunal, since other employees were in fact given a warning for medication errors (paragraph 39 above). The Tribunal makes the observation based on the answer given by the applicant to the Tribunal's question "what is a symptom" that the applicant does not appear to understand the meaning of this term despite his training (see paragraph 29 above).**

Issue 3: Did the respondent indirectly discriminate against the applicant?

**52. The Tribunal accepts the evidence of the respondent that the respondent did not indirectly discriminate against the applicant, (see paragraphs 40 to 41 above).

53. In the alternative, the Tribunal accepts that aged care, due to the vulnerability of aged residents, is a highly regulated area under the Aged Care Act 1997 (Cth), and is subject to audits against aged care quality standards including those on healthcare and safety. The actions taken by the respondent to manage the applicant's practices in the aged care facility were necessary to ensure compliance with these requirements, and so "reasonable in the circumstances."[110]

54. If the applicant had poor or no English and had no certifications or experience in aged care services, then the outcome on this issue could have been different. However this was not the case here. The applicant on his own evidence came from an English-speaking Commonwealth nation, passed an English proficiency test to study his certificate courses, held a Certificate 4 in aged care services and had extensive experience working in the aged care sector (see paragraph 29 above).[111]**

Issue 4: Did either respondent victimize the applicant?

55. The Tribunal finds that the respondent did not victimise the applicant. It accepts the respondent's contention that the communications it had with the applicant over the employment dispute and then the race discrimination were reasonable and appropriate and not evidence of victimisation.

56. The Tribunal agrees with the applicant that there should be an order for his identity to be suppressed. The reasons are not just those presented by the applicant (see paragraph 32 above).[112] In this case the Tribunal is satisfied that the identity of all parties and witnesses should be kept private under section 39(5)(b) of the ACAT Act in order to protect the privacy of residents at the aged care facility whose progress notes were relevant to the hearing. The aged care facility is small, and if the names of the parties and witnesses were made available it may be that residents' notes referred to, however briefly, in this decision might mean that the residents themselves can be identified.

(b) A person must not publish any information about this matter or any evidence provided during the proceedings that will identify the name of any party or witness.

The Tribunal reminds the applicant of the Order of Registrar K Soper, dated 26 July 2016, in relation to documents held by the respondent that the applicant subpoenaed. This Order requires the applicant to "return all copies to the Tribunal registry when the proceedings come to an end" (Order 1(c)).**

[1] Section 39(2)(b) of the ACT Civil and Administrative Tribunal Act 2008

[2] Respondent's response to HRC, letter dated 26 June 2015, page 2

[3] Letter from ACT Human Rights Commission to ACAT, dated 18 August 2015

[4] Applicant's submission, dated 15 September 2016

[5] Respondent's outline of submissions, dated 14 September 2016; respondent's supplementary submissions, dated 14 October 2016

[6] Respondent's submissions in objection to subpoena, dated 10 May 2016

[7] Order, Registrar Soper, dated 26 July 2016

[8] Respondent's letter to ACAT, with progress notes attached, 3 August 2016; Exhibit C2

[9] Statement of Mr S, General Manager, Human and Risk Services, dated 13 September 2016, paragraph 4

[10] Statement of Ms O, dated 10 September 2016, paragraph 30

[11] Statement of Mr S, General Manager, Human and Risk Services, dated 13 September 2016, paragraph 6

[12] Statement of Mr S, General Manager, Human and Risk Services, dated 13 September 2016, paragraph 31

[13] Statement of Ms O, dated 10 September 2016, paragraph 13

[14] Statement of Mr S, General Manager, Human and Risk Services, dated 13 September 2016, paragraph 28-29

[15] Letter of resignation from applicant to respondent, dated 1 May 2015, attachment J, Statement by Mr S, dated 13 September 2016

[16] Statement of Ms O, facility manager, dated 10 September 2016, paragraph 21-29; Management Report for Meeting 15 April 2015, respondent's response to HRC, Letter dated 26 June 2015, attachment AW2, page 1

[17] Statement of Ms O, dated 10 September 2016, paragraph 31; paragraphs 31-34

[18] Statement of Ms O, dated 10 September 2016, paragraph 31

[19] Statement of Ms O, dated 10 September 2016, paragraph 38-40; Management Report for Meeting 15 April 2015, Respondent's response to HRC, Letter dated 26 June 2015, attachment AW2, page 1

[20] Management Report for Meeting 15 April 2015, Respondent's response to HRC, Letter dated 26 June 2015, attachment AW2, page 2

[21] Statement of Ms O, dated 10 September 2016, paragraph 49-59; 63-70; File Note, dated 14 April 2015, attachment C, Statement by Mr S, dated 13 September 2016

[22] Attachments E, F and H, Statement by Mr S, dated 13 September 2016

[23] Attachment G, Statement by Mr S, dated 13 September 2016

[24] Letter from respondent to applicant, dated 20 April 2015; email from Ms O, facility manager to General Manager, dated 19 April 2015, attachment C, Statement of Ms O, dated 10 September 2016

[25] Email from facility manager to General Manager, dated 19 April 2015, attachment C, statement of Ms O, dated 10 September 2016

[26] Hand-written response from applicant on letter from respondent to applicant, dated 20 April 2015

[27] Email from Ms O, facility manager, to General Manager, dated 19 April 2015, attachment C, Statement of Ms O, dated 10 September 2016

[28] Oral evidence, Ms P, facility manager, hearing 29 September 2016

[29] Management report for Meeting 15 April 2015, respondent's response to HRC, Letter dated 26 June 2015, attachment AW2, page 1

[30] Statement of Ms O, dated 10 September 2016, paragraph 76-78; Management Report for meeting 15 April 2015, respondent's response to HRC, Letter dated 26 June 2015, attachment AW2, page 1

[31] Email from the applicant to the respondent, dated 24 April 2015, attachment H, statement by Mr S, dated 13 September 2016

[32] Letter from respondent to applicant, dated 27 April 2015, attachment I, statement by Mr S, dated 13 September 2016

[33] Statement by Mr S, dated 13 September 2016, paragraph 53

[34] Letter of resignation from applicant to respondent, dated 1 May 2015, attachment J, statement by Mr S, dated 13 September 2016

[35] As defined in section 8 of the Discrimination Act 1991

[36] Section 7(1)(h) and dictionary of the Discrimination Act 1991

[37] Dictionary, Discrimination Act 1991

[38] Section 8(2) Discrimination Act 1991

[39] Section 8(3) Discrimination Act 1991

[40] Section 8(4) and (5) Discrimination Act

[41] Section 68(1)(a) Discrimination Act 1991

[42] Section 53CA(2)(a) and (b) of the HRC Act

[43] Kovac v The Australian Croatian Club Ltd [2014] ACAT 41 at [90]

[44] Defining the term, condition or requirement, Federal Discrimination Law online, citing sex discrimination case of Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, 168

[45] Not Reasonable in the Circumstances, Federal Discrimination Law online, citing disability discrimination case of Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 363-364 (Mason and Gaudron JJ), 378 (Brennan J), 395 (Dawson and Toohey JJ).

[46] Not Reasonable in the Circumstances, Federal Discrimination Law online, citing disability discrimination case of Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 395 (Dawson and Toohey JJ), and also Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121, 145 [115] (Sackville and Stone JJ)

[47] Subsections 53E(1) and (2) of the HRC Act

[48] Applicant's submission, dated 15 September 2016, page 5

[49] Applicant's submission, dated 15 September 2016, page 5

[50] Statement by Mr S, dated 13 September 2016, paragraphs 60-62

[51] Applicant's complaint to HRC, dated 6 May 2015, page 5

[52] Applicant's submission, dated 26 October 2015, page 3

[53] Oral evidence applicant, hearing 28 September 2016

[54] Applicant's complaint to HRC, dated 6 May 2015, page 9

[55] Applicant's submission, dated 26 October 2016, page 3

[56] Attachment G, Statement by Mr S, dated 13 September 2016

[57] File Note, dated 14 April 2015, attachment C, Statement by Mr S, dated 13 September 2016

[58] Applicant's email, dated 19 April 2015, attachment E, Statement by Mr S, dated 13 September 2016

[59] Applicant's email, dated 24 April 2015, attachment H, Statement by Mr S, dated 13 September 2016

[60] Applicant's submission, dated 15 September 2016, page 2; applicant's work references dated 12 August 2014 and undated, attachment D, Statement by Mr S, dated 13 September 2016

[61] Applicant's submission, dated 15 September 2016, page 3: applicant's oral evidence, hearing 28 September 2016

[62] Applicant's submission, dated 15 September 2016, page 5; statement by Mr S, dated 13 September 2016, paragraph 45

[63] Statement by Mr S, dated 13 September 2016, paragraph 45

[64] Statement of Ms O, dated 10 September 2016, paragraphs 50, 64-66

[65] Applicant's submission, dated 15 September 2016; applicant's oral evidence, hearing 28 September 2016

[66] Applicant's oral evidence, hearing 28 September 2016

[67] Oral evidence Ms P, hearing 29 September 2016

[68] Hand-written response from applicant on letter from respondent to applicant, dated 20 April 2015

[69] Applicant's submission, dated 15 September 2016, page 3

[70] Applicant's oral evidence, hearing 28 September 2016

[71] Applicant's oral evidence, hearing 28 September 2016

[72] Applicant's oral evidence, hearing 28 September 2016, referring to Progress Note, page SD-10, exhibit C2

[73] Applicant's oral evidence, hearing 28 September 2016, referring to Progress Note, page SD-12, exhibit C2

[74] Applicant's submission, dated 15 September 2016, page 1; applicant's submission, dated 6 October 2015, page 2; applicant's oral evidence, hearing 28 September 2016

[75] Applicant's response to formal warning, letter dated 18 April 2015, p1, attachment to Applicant's complaint to HRC, dated 6 May 2015; applicant's submission, dated 6 October 2015, page 2

[76] Applicant's response to formal warning, letter dated 18 April 2015, pp 3, 4, attachment to applicant's complaint to HRC, dated 6 May 2015

[77] Applicant's oral evidence, hearing 28 September 2016

[78] Applicant's oral evidence, hearing 28 September 2015 referring to exhibit C3; applicant's submission, dated 6 October 2015, page 1

[79] Applicant's oral evidence, hearing 28 September 2016

[80] Applicant's oral evidence, hearing 28 September 2016

[81] Applicant's submission, dated 15 July 2016, p2.

[82] Email from applicant to respondent, dated 3 May 2015, attachment to applicant's complaint to HRC, dated 6 May 2015

[83] Applicant's oral evidence, hearing 28 September 2016

[84] Applicant's oral evidence, hearing 28 September 2016

[85] Applicant's oral evidence, hearing 28 September 2016

[86] Applicant's submission, dated 15 September 2016, page 1

[87] Applicant's oral evidence, hearing 28 September 2016

[88] Respondent's supplementary submissions, dated 14 October 2016, paragraph 11, citing Nester v ACT Fire Brigade [2004] ACTDT 2

[89] Statement of Ms O, dated 10 September 2016, paragraph 80; oral evidence of Ms O, 28 September 2016

[90] Statement of Ms O, dated 10 September 2016, paragraphs 1-12; oral evidence of Ms O, 28 September 2016

[91] Respondent's letter to applicant, dated 27 April 2015, page 1

[92] Statement of Ms O, dated 10 September 2016, paragraph 30

[93] Management Report for Meeting 15 April 2015, page 2

[94] Oral evidence Mr S, General Manager, Risk and Human Services, Hearing 29 September 2016

[95] Statement of Ms O, dated 10 September 2016, Attachment C

[96] Section 8(4) Discrimination Act 1991

[97] Statement of Mr S, General Manager, Human and Risk Services, dated 13 September 2016, paragraphs 26-27

[98] Respondent's submissions, hearing 29 September 2016

[99] Attorney-General's Department, Consolidation of Commonwealth Anti-Discrimination Laws Discussion paper, September 2011, 15 at https://www.ag.gov.au/Consultations/Documents/ConsolidationofCommonwealthanti-discriminationlaws/Consolidation%20of%20Commonwealth%20Anti-Discrimination%20Laws.pdf ; see also Allen D, Reducing the Burden of Proving Discrimination in Australia, Sydney Law Review Vol 31, 2009, 579

[100] Kovac v The Australian Croatian Club Ltd [2014] ACAT 41 at [94]

[101] Kovac v The Australian Croatian Club Ltd [2014] ACAT 41 at [99]

[102] Kovac v The Australian Croatian Club Ltd [2014] ACAT 41 at [103], citing De Domenico v Marshall [1999] FCA 1305

[103] Ezekiel-Hart v Reis and Anor [2017] ACAT 3

[104] Drawing Inferences of Racial Discrimination, in Federal Discrimination Law online, page 27 athttps://www.humanrights.gov.au/sites/default/files/content/legal/FDL/2011/3_RDA.pdf

[105] Raphael FM, Tadawan v South Australia [2001] FMCA 25 at [52]

[106] Raphael FM, Tadawan v South Australia [2001] FMCA 25 at [52]

[107] Applicant's complaint to HRC, dated 6 May 2015, page 9

[108] Raphael FM, Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767 at [97]

[109] Oral evidence, Mr S, General Manager, Risk and Human Services, Hearing 29 September 2016

[110] Section 8(4) Discrimination Act

[111] Applicant's oral evidence, 28 September 2016