FEDERAL COURT OF AUSTRALIA

Paramasivam v Jureszek [2001] FCA 704

HUMAN RIGHTS – racial discrimination – probative value of other complaints found to be unjustified

Human Rights & Equal Opportunity Commission Act 1986 (Cth) s 46PO

Racial Discrimination Act 1975 (Cth) ss 9, 13 and 15

GAJA LAKSHMI PARAMASIVAM v MILENA JURESZEK

N 28 OF 2001

GYLES J

SYDNEY

12 JUNE 2001

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the costs of the respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     These are proceedings brought pursuant to s 46PO of the Human Rights & Equal Opportunity Commission Act 1986 (Cth) claiming breach of ss 9, 13 and 15 of the Racial Discrimination Act 1975 (Cth) and Article 5 of the Schedule thereto.  The applicant describes herself as of Indian/Sri Lankan origin.

2                     On or about 7 February 2000 the applicant was placed as a casual worker with Health Services Australia Limited (“HSA”) by an agency known as Jocellin Jansson & Associates.  She was engaged for what was called the “unbilled revenue project”, which was estimated to take one to two weeks to complete.  On 14 February 2000 the respondent started work at HSA as New South Wales Finance Manager and temporary Administration Manager.  She commenced at that time to supervise the applicant.

3                     On 21 March 2000 the applicant prepared and circulated what was described as a “Report on Billing System”.  That report was critical of the billing system then operating at HSA and of the efforts of staff at HSA related to it.  In addition to these criticisms, the applicant provided a schedule of payments for which no bills were identified in the system for the period July 1999 to January 2000.  Shortly after that, the respondent advised the applicant that she would like the applicant to stay on at the completion of the unbilled revenue project to assist in debt collection work for HSA.  The applicant had told the respondent that she had experience in debt collection. 

4                     On or about 29 March 2000 the respondent provided the applicant’s lists of unbilled revenue to other staff at HSA  so that collection of that identified revenue could commence.  The other staff found errors in the applicant’s lists and, after speaking with the respondent, those staff met with the applicant and discussed the errors.  The applicant said that the errors made by her were the result of deficiencies of the billing system, and invited those staff to speak to the respondent.  On the following day the respondent was advised by those employees that they had found further errors in the applicant’s lists.  The respondent raised the issue with the applicant.  In the course of that conversation the applicant made some derogatory remarks concerning the other employees who had discovered the errors.  The respondent instructed the other employees to check every item that the applicant had stated was unbilled and to bill on the basis of their own inquiries.  On that day the applicant sent a memorandum to the respondent on the issue of the errors in the lists she had prepared.  That memorandum amounted to a strong defence of the applicant’s own position and cast some aspersions upon the competence of other employees of HSA.  That memorandum was circulated to the other employees concerned, together with persons described respectively as Finance Officer, Business Manager and Acting Group Manager of HSA. 

5                     On 7 April 2000 the applicant addressed another memorandum to the respondent upon the subject of systems, in this case circulating it to the Board of Directors of HSA in addition to the Finance Officer, the Business Manager and the Acting Group Manager.  That memorandum amounted to a reasonably robust criticism of the existing systems and, by implication, of the managers responsible for them.  This memorandum was not requested by anyone at HSA.  The applicant drafted the memorandum and sent it on her own initiative. 

6                     On 11 April 2000 the applicant addressed another memorandum to the respondent concerning unbilled revenue, circulating it again to the Finance Officer, the Business Manager, the Acting Group Manager and, in this case, the Managing Director as well.  By this time the respondent had become concerned about the performance of the applicant, both as to the errors which by then had become apparent and as to the manner in which she was going about her duties in connection with debt collecting.  The respondent was concerned that the applicant was not spending enough time on the phone chasing debts but was concerning herself unduly with billing systems.  The respondent also says that there was a difference of opinion as to the manner in which particular bills were sent.  There was some dispute in the evidence as to the precise terms of these conversations.  Having observed the applicant and the respondent giving evidence, I would conclude that the respondent was more diffident in raising issues with the applicant than she might have intended.  The applicant is very articulate and forthright and would probably have presented as more experienced than the respondent.

7                     In any event, by 12 April 2000 the respondent had decided to dispense with the services of the applicant.  She communicated with the agency which had placed the applicant and which remained responsible for her placement, and arranged for that placement to cease on the Friday of that week.  When the respondent advised the applicant of this, I am satisfied that the respondent did so in terms in which she referred to the need for a specialist to occupy the position which was then occupied by the applicant without any detailed direct criticism of the applicant’s performance.  The discussion was not particularly pleasant, and the respondent gave evidence that it was the attitude of the applicant during that conversation which brought the matter to the point of no return.  The applicant points out in her submissions that this appears to be contrary to the fact that the decision had been made with the agency already.  I think what the respondent is saying is that if the applicant had been conciliatory and not intransigent and not made threats of action which would harm the career of the respondent, she may have changed her decision.  The letter written by the applicant to the respondent on 12 April 2000 amounts to a very robust criticism of the respondent and the management of HSA.

8                     The case for the applicant is that the objective circumstances do not establish a proper basis for terminating her services on the grounds of incompetence and that, in the absence of any other rational explanation, it should be inferred that the real reason for the applicant’s dismissal was because of her racial characteristics.  Indeed, the applicant did not suggest, either in cross examination of the respondent or in her final address, that any discrimination that might have occurred on that basis was conscious or deliberate on the part of the respondent. 

9                     It is likely that the applicant was surprised by the peremptory withdrawal of engagement, as I doubt that the respondent had made the real degree of her dissatisfaction as to performance apparent to the applicant prior to 12 April 2000.  That is not to say that the respondent did not have concerns about the applicant’s competence.  My judgment, however, is that a powerful factor in the respondent’s decision was what she perceived as the disruptive nature of the applicant’s activities and personality which were causing difficulties for her and for other employees at HSA.  In my view, the respondent was motivated in what she did by concern both as to performance and as to disruption caused by the applicant in the circumstances and that she took the view she was entitled to do this in view of the temporary nature of the applicant’s placement.  In my opinion, these views were genuinely held and held on a reasonable basis by the respondent.  It is not necessary, nor even open on the evidence, to attribute another cause for what took place.  There was no hint in the evidence of any actual racial antagonism towards the applicant by the respondent.  Furthermore, counsel for the respondent makes the point, as did the respondent in her evidence, that the respondent chose to offer the applicant an extension of the placement to another project when there was no necessity to do so.  This flies in the face of any conscious or unconscious racial prejudice causing the respondent to discriminate against the applicant.

10                  The applicant sought to rely upon the fact that the respondent conceded that she had not read any equal opportunity or cultural diversity policy statements, but rather relied upon common sense in carrying out her duties.  This does not establish any improper purpose or motive on the part of the respondent.  The respondent also gave evidence that she is what she describes as being of ethnic origin.  Her parents were born in Yugoslavia and, although she was born in Australia, her first language was Serbian, and she needed to learn English as a second language when she first attended school.  She is also married to a Pole.  She says she is very aware of issues concerning racial discrimination in the workplace and generally.  She gives evidence that she has worked, and has continued to work, with other Sri Lankans without any difficulty.

11                  For the sake of completeness, I should mention two things:

1.                  Something was initially made of failure to have access to a computer database.  This was not pressed as a basis for proving the case.  Even if it had been, I would have rejected it in view of the explanations which were given in evidence.

2.                  I ruled during the course of the hearing, and maintain the ruling, that evidence of other complaints made by the applicant of racial discrimination by a number of other parties in differing circumstances was not probative of any issue in this case, as the case was presented by the applicant.  The focus in this case is upon the respondent, not the applicant.  There was no serious issue of credit arising in the case.  Even if there had been a serious issue of credit, the applicant is not alleging any objective act which was denied by the respondent.  In other words, the applicant was not inventing circumstances showing racial discrimination.  The applicant was drawing attention to a number of facts and arguing that an inference should be drawn from them.  Even if there were a credit issue, the circumstances in which propensity evidence can be given are limited.  To be of any value, one would have to examine the bona fides and merits of each complaint, and the mere fact that a court or another regulatory authority had rejected those complaints would not establish any relevant fact in this proceeding.  Even if admissible, the most that could be proved was that the applicant had a propensity to too readily perceive racial discrimination.  That is not an issue in this case.

12                  Whilst I do not doubt that the applicant has a genuine sense of grievance as to what happened and may attribute it to racial discrimination, in my opinion there was no racial discrimination operating in the circumstances of this case.  The application is dismissed.  The applicant is to pay the costs of the respondent.

Associate:

Dated:              12 June 2001