Dr Sidhu has complained of race and age discrimination against the Sydney Local Health District (SLHD) where he was a Registrar in 2011, 2012 and the beginning of 2013. The President of the Anti-Discrimination Board declined the complaint as "lacking in substance." When that happens, Dr Sidhu must obtain the Tribunal's permission or "leave" before the complaint can go ahead: Anti-Discrimination Act 1977(NSW), s 96.
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. 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": [32];
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: [28];
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 went on to say, that:
"Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates": [38].
Even if it is likely that an applicant will be able to prove a breach of the Anti-Discrimination Act, leave may be refused where, for example, the respondent has taken appropriate steps to remedy or redress the conduct complained of": Jones v Ekermawi [2009] NSWCA 388 at [32]. Similarly, if any damages that could be awarded are within a very low range, that may also be a factor affecting the fairness of granting leave: Mitry v Abbas [2013] NSWADT 214.
The details of the complaint are summarised in the report from the President of the Anti-Discrimination Board and were described in detail by Dr Sidhu this morning. In essence, he complains that in 2013 when he applied for leave, and for his term placement to be at the Royal Prince Alfred Hospital rather than at Concord, those requests were initially refused, although he was later granted leave to visit his ill father.
After SLHD granted the leave, Dr Sidhu injured his back which put him on further sick leave and he has not returned to work since that time.
Dr Sidhu provided details of interactions and emails between himself, his supervisor Professor LeCouteur, Dr Cullen, Dr Murray, Dr Thoo and Dr Diu throughout January 2013. He makes allegations such as: that Dr Thoo knew he had been given leave but was determined not to allow him to go on leave; that he said he was not contactable when he was contactable and, in relation to Dr Diu, that he did not wish him to return to work at the Concord Hospital. He says, in short, that Dr Thoo and Dr Diu planned to completely damage his career and his reputation.
Dr Sidhu said he had no choice but to complain to his employer which he did on 10 April 2013. That complaint was investigated and found not to be substantiated.
Dr Sidhu then complained to WorkCover NSW with the support of his union but he was not satisfied with that process. He says now that he is merely asking for a mediation and an explanation as to why Dr Thoo and Dr Diu have done this to him.
In order to substantiate the complaint of discrimination Dr Sidhu would have to prove that Sydney Local Heath District discriminated against him on the ground of either his age or his race. Race discrimination is made unlawful by s 8 of the Anti-Discrimination Act. It appears to me that Dr Sidhu is complaining of a breach of s 8(2)(a) and/or (b):
(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.
He is complaining that his employer discriminated against him in the terms or conditions of employment which the employer affords to him or by limiting his opportunities for any benefits associated with employment. He also makes those kinds of allegations in relation to age discrimination which is made unlawful by s 49ZYB of the Anti-Discrimination Act.
Race discrimination is defined in s 7 and age discrimination in s 49ZYA. I understand Dr Sidhu to be complaining of direct race discrimination as defined in s 7(1)(a) and direct age discrimination as defined in s 49ZYA(1)(a) of the Anti-Discrimination Act.
In order to make out a claim Dr Sidhu would have to prove two things. The first is that he was treated less favourably than a person not of his race or of a younger age would have been treated in the same circumstances or in circumstances which are not materially different. The second is that a reason for that treatment was his race or his age.
As Mr Rudd representing the Sydney Local Health District has pointed out, Mr Sidhu did not mention race or age in any of his complaints until asked by the President of the Anti-Discrimination Board to explain the grounds for his complaint. In all his complaints, Dr Sidhu uses terms such as bullying, intimidation and harassment, rather than discrimination. His age or his race is not mentioned. At p 41 of the President's report he writes, "I have been asked to provide information or evidence that will indicate or suggest the harassment I have described in my complaint happened because of at least two grounds". He goes on to say,
"I am an Australian of Indian origin whereas both Dr Thoo and Diu are Australians of Asian origin. Dr Diu and I have been working together as advanced trainees at one time in 2008 at Bankstown Hospital and am aware of his prejudices and views. Further, most of the Registrars are recent graduates from local universities and me being of middle age and overseas trained were clearly other factors for which both of them picked on me."
He goes on to elaborate on that submission in the letter.
According to Dr Sidhu he has merely reported his experiences of the way Dr Thoo and Dr Diu have treated him. Until asked by the President of the Anti-Discrimination Board, he had not put the complaints of harassment and bullying in any context of race discrimination or age discrimination. He writes that Dr Thoo and Dr Diu have "violated policy guidelines for workplace bullying and harassment." He now believes that his race and his age were the reason for their actions.
There is no direct evidence that either Dr Thoo or Dr Diu treated Dr Sidhu differently from other employee because of his race or his age. Not surprisingly, no one said or wrote anything that would suggest that they were reasons for the treatment. The only way Dr Sidhu could establish that connection is by identifying other primary facts which would allow the Tribunal to draw an inference to that effect. An inference must be logical, reasonable and establish a "probable connection" with race or age. An inference cannot be made where more probable and innocent explanations are available on the evidence: Dutt v Central Area Health Services [2002] NSWADT 133 at [70].
I consider that it would be highly unlikely if this complaint proceeded to a hearing, that the Tribunal would draw an inference that because Dr Thoo and Dr Diu, who are apparently of Asian Australian background, have treated Dr Sidhu any differently because he is an Indian or middle aged from the way they have treated or would treat other people. A more innocent explanation is that provided by SLHD in their correspondence to the Anti-Discrimination Board at p 48 - 53 of the President's Report. As I am satisfied that the Tribunal would not draw that inference it is neither fair nor just for the complaints to proceed.
That is not to say, that Dr Sidhu has not been the subject of harassment or bullying. I make no finding in relation to those allegations. The only role for this Tribunal is to determine whether a basis for any of those allegations could be age or race.
Furthermore, Dr Sidhu now says that the only remedy he is seeking is mediation or an explanation for the treatment about which he complains. The Tribunal does not offer mediation where leave is required before the complaint can proceed. SLHD has provided their version of events and, apart from admitting liability, it is difficult to imagine what kind of explanation would satisfy Dr Sidhu. The fact that Dr Sidhu is not seeking damages or any other remedy provided for in s 108 of the Anti-Discrimination Act is a further reason for concluding that it is not fair or just for the complaint to proceed.
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: 13 April 2015