Radvili v Ranstad Australia Pty Ltd [2016] NSWCATAD 58 | Case summary

Judgment (2 paragraphs)

[1]

The Applicant's case for leave against First Respondent, Ranstad Pty ltd

Mr Radvili told the Tribunal that his employer Ranstad, the first Respondent, had not discriminated against him on the grounds of his race. Rather that Ranstad had aided and abetted FACS by failing to investigate what had occurred. The Tribunal accepts the submission made by the First Respondent that Ranstad's failure to investigate does not fall within the provisions of section 52. Ranstad did not "cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act."
The complaint against the First Respondent lacks substance. The Tribunal refuses leave for the Applicant to proceed with the complaint of race discrimination in employment and aiding and abetting against the First Respondent.

[2]

The Applicant's case for leave against Second Respondent, FACS.

Mr Radvili was neither an Applicant to nor an employee of FACS. His complaint against FACS under section 8 of the ADA cannot succeed. Further Mr Radvili told the Tribunal that he was told on a number of occasions by supervisors not to speak in a language other than English. This evidence was consistent with FACS' assertion that Mr Radvili's placement was terminated because of his failure to follow this directive. Further Mr Radvili's performance in the role was alleged to have been inadequate. Mr Radvili offered the example of Penny who had worked at FACS for 6 months - she was not a new worker unlike Mr Radvili - speaking with clients in Maori or a Polynesian language. The Tribunal notes however that Penny was an experienced worker who was training Mr Radvili. The circumstances appear to be materially different.

Principles for granting leave

The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] - [38]. In that case Schmidt J:◦

(1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights";
(2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;
(3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and
(4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.

1. Accordingly, the Applicant must satisfy the Tribunal that it is fair and just for the Tribunal to grant leave for the complaint to proceed, despite the decision of the President that it lacked substance.

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.

To establish a complaint of race discrimination the Applicant must be able to show that
a. he was treated less favourably than other persons; b. that the, or one of the, reasons for the less favourable treatment was his race; and c. that a comparator (of a different race) would have been treated more favourably in the circumstances and that the Respondent treated him less favourably because of his race . (See Purvis v. State of NSW [2003] HCA 62; (2003) 217 CLR 92 at [213] - [224])

Radvili v Ranstad Australia Pty Ltd

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Judgment (2 paragraphs)

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Legislation Cited (1)

Cases Cited (3)