Mr Scully, the applicant in this proceeding, brought a claim pursuant to the Anti-Discrimination Act (NSW) ("the Act") against Secretary of the Department of Transport (Transport Secretary and Sydney Metro) ("the respondent") claiming that it, through its employees discriminated against him in employment on the ground of race and victimised him during the period of 13 February 2023 to 7 June 2023. Mr Scully's complaint is about a recruitment process the respondent carried out in 2023 and about statements made about his behaviour on 23 March 2023.
The respondent sought to summarily dismiss the proceeding pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and or s 102 of the Act on the basis that the proceedings are misconceived or lacking in substance. The respondent submitted that the applicant's case, taken at its highest failed to disclose any evidence that the respondent breached ss 8 or 50 of the Act.
For the reasons that follow I have decided to grant the application for summary dismissal.
[2]
Relevant Law
Mr Scully's claim is made pursuant to ss 7(1)(a),8(2)(a),(b) and (c) and 50(1)(b) to (d) of the Act. Section 7(1)(a) defines direct discrimination as less favourable treatment on the ground of the person's race. Race does need to be the only reason for the treatment; s4A.
Section 8(2) makes it 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.
Section 50 of the Act makes it unlawful for a person to victimise another person on the ground that the person had made a complaint or did other acts as set out in s 50(1)(a) to (d).
In a summary dismissal application pursuant to s 102 of the Act or s 55 of the CAT Act, the discretion to dismiss a claim prior to hearing the merits of the claim must be exercised with exceptional caution. In circumstances where there may be substance to an applicant's allegations which if accepted would ground a finding that discrimination has occurred, no strike out of the complaint should be contemplated. Seventh-Day Adventist Church (North NSW Conference) Limited v Seupule-Feau [2016] NSWCATAP 256 at [22] - [24]; Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [11]; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at [20].
A complaint or part of a complaint can be dismissed if it is 'so clearly untenable that it cannot possibly succeed.' General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130, [10] per Barwick CJ.
In a dismissal application, the applicant's case is taken at its highest to enable the Tribunal to determine whether the evidence is capable of amounting to a contravention of the Act. Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. The onus of proving that a complaint ought to be summarily dismissed lies on the person seeking such an order. Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [53].
[3]
Mr Scully's evidence
Mr Scully relied his own affidavits and documents and affidavits of other persons who gave evidence of Mr Scully's good character.
There were numerous documents in which Mr Scully made internal complaints of discrimination, bullying, harassment and victimisation by his direct management and the leadership team. None of the documents referred to discrimination on the ground of race or victimisation because of some conduct or complaint on the ground of race.
Mr Scully provided detailed notes of meetings and conversations he had with colleagues and from management. There is evidence of there being some internal conflict between the team Mr Scully was leading and members of another team. There is a specific allegation that on 1 June 2023 Mr Murray said to him "go out in the street and jump under the bus", because Mr Scully took counsel from his own leadership team prior to sending an email to senior management expressing criticism of Mr Murray's conduct during a meeting.
The reference to discrimination in the complaints was in regard to the recruitment process. The respondent's recruitment procedure required shortlists to be gender balanced unless an exemption was approved. In early March 2023, there was no gender balance on the shortlist for the role by female candidates and Mr Hefer readvertised the role. This led to the recruitment process being delayed.
On 21 March, Mr Hefer told Mr Scully that Ms Howard, his second up manager, considered that he talked too much, his communication style was causing misunderstandings or that his approach was wrong. Mr Scully interpreted this feedback to mean:
Feedback as potentially racially vindictive targeting my Scottish accent and heritage
On 23 March 2023, Mr Scully attended a meeting with Ms Howard and Mr Hefer. Ms Howard stated that there had been feedback that was not positive and that Mr Scully's style was not palatable to others and there is too much conflict. Mr Scully concluded that there appeared to be "an association between my racial background and the unfolding recruitment process."
On the following day, Mr Scully organised meetings with persons who were mentioned by Ms Howard but none of them said that they had issued with his communication style.
On 19 April 2023, Mr Scully was invited to interview for the role and he attended the interview on 28 April 2023. However, he was not the successful candidate for the role.
In an internal complaint letter dated 11 May 2023, Mr Scully wrote that the complaint involved:
The behaviour and treatment directed towards me resulting in harassment discrimination under a protected characteristic throughout a alive recruitment campaign and subsequent meetings.
[4]
Consideration
Mr Scully applied for a promotion in February 2023. He was interviewed for the role in April 2023 but was not the successful candidate. Mr Scully believed that false statements made by a second up manager, Ms Howard that people could not understand him because of his Scottish accent were the reason why he was not selected for the promotion. There is no allegation by Mr Scully that Ms Howard or any other person stated or inferred that the problems identified by Ms Howard were because of Mr Scully's race or accent. However, he did believe that this was the case.
In reaching the decision as to whether the proceedings are to be dismissed pursuant to s 102 of the Act or s 55(1)(b) of the CAT Act, I am required to determine whether Mr Scully's complaint against the respondent, taken at its highest, cannot possibly succeed. The onus is on the respondent to satisfy the Tribunal that the claim ought to be summarily dismissed because it is misconceived or lacking in substance.
For the purpose of this application, I accept Mr Scully's evidence at its highest. I accept that his records of the conversations and meetings he had with Ms Howard and others to be accurate.
However I find that Mr Scully's complaint pursuant to ss 8 and 50 against the respondent cannot possibly succeed as the undisputed evidence was that there was no reference by any person of Mr Scully's race. There is no evidence that the concerns raised by Ms Howard about Mr Scully's communication was on the ground of his Scottish heritage or his accent. There is no evidence that the assertion that Mr Scully talked too much was linked to his Scottish heritage. There is no evidence that the respondent preferred to appoint a person to the role who was not Scottish. There was no evidence of any association between Mr Scully's Scottish heritage and the decisions made by the respondent during the recruitment process.
There is evidence of there being internal conflict in Mr Scully's workplace and there being numerous meetings and discussions about workflows, responsibility for work to be performed and overlapping responsibilities.
There is no evidence to ground an inference that Ms Howard's comments on 23 March 2023 were made based on his Scottish heritage or accent as it is just as likely to be as set out in Mr Scully's own evidence that the comments were made because of the internal conflict in Mr Scully's workplace.
It may have been that Ms Howard or others acted in a manner that was inconsistent with the respondent's policies or that he had been bullied. It is not for me to consider or determine.
Furthermore, Mr Scully was interviewed for the role following the meeting on 23 March and there is no evidence that the meeting in March had any bearing on the recruitment process or decision making.
There is no factual basis to ground of claim of s 50 of the Act. Mr Scully took the Tribunal to the internal complaint he made on 7 June 2023 and meetings on 23 and 25 March 2023. However there is no suggestion that either during the meetings or in the written complaint there is refence to any prohibited reason set out in s 50(1)(a) to (d) of the Act.
The Tribunal makes the following order:
1. The proceeding is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.
[5]
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
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Decision last updated: 17 December 2024