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The Committee on the Elimination of Racial Discrimination established under
article 8 of the International Convention on the Elimination of All Forms of
Racial Discrimination,
Meeting on 26 August 1999,
Having concluded its consideration of communication No. 6/1995, submitted to
the Committee under article 14 of the International Convention on the
Elimination of All Forms of Racial Discrimination,
Having taken into consideration all written information made available to it
by the author and the State party,
Bearing in mind rule 95 of its rules of procedure requiring it to formulate
its opinion on the communication before it,
Adopts the following:
Opinion
1. The author of the communication is Mr. Z.U.B.S., an Australian citizen of
Pakistani origin born in 1955, currently residing in Eastwood, New South
Wales, Australia. He claims to be a victim of violations by Australia of
several provisions of the International Convention on the Elimination of All
Forms of Racial Discrimination.
The Facts as Submitted by the Author
2.1 In February 1993 the author, who had by then been residing for
approximately two years in Australia, was hired as an engineering officer by
the New South Wales Fire Brigade (NSWFB), which is part of the Public
Service. Before being hired, he had applied for two higher-level positions
which he claims were commensurate with his qualifications, experience and
skills. He was, however, interviewed and hired for a lower-level position
for which he had not applied and for which he contends that he was not
provided with a job description. He says he was adversely treated in
appointment because he lacked (so-called) local knowledge, a requirement
that was not mentioned in the position description or the list of desirable
criteria and had no relevance to the job performance. He claims that local
experience was a requirement created by the selection committee after
receiving his personal details, which reflected his past professional
experience of 13 years in Pakistan and Saudi Arabia.
2.2 According to the author, his position was identical to that of two other
engineering officers. One of them was Australian born Anglo-origin and the
other was a Buddhist Malaysian-Chinese. The three were hired almost at the
same time. He claims that the difference in treatment between himself (an
experienced professional engineer) and the other two officers
(sub-technicians) was racially motivated. Such differentiation allegedly
included that the author's qualifications exceeded those of his colleagues,
that his salary was inferior to that of one of the officers and that he was
placed on six months probation, unlike one of the officers. In each case, he
was treated the same as the other colleague, although he argues that he was
not informed of the probationary requirement.
2.3 The author contends that he was given a heavier workload compared to his
colleagues, that his participation in business trips was limited, and that
his access to workplace information was curtailed. He alleges harassment and
unfair treatment in the performance of his duties; he notes, for example,
that one day he was ridiculed for refusing to drink beer with colleagues
towards the end of one day's duties, although he had pointed out that his
origin and religion did not allow him to drink alcoholic beverages. He says
that he was continuously reminded of his background (professional and
social) from Pakistan and Saudi Arabia through racially motivated comments.
2.4 After he had filed two complains with the relevant department under the
Fire Brigade's grievance policy, the management prepared a report on his
"poor performance". On 30 July 1993, he lodged a complaint of racial
discrimination in employment with the New South Wales Anti-Discrimination
Board (ADB), indicating that the matter was "urgent". On 6 August 1993 his
employment was terminated, allegedly without written notice. The author
informed the ADB of this development by fax of 9 August 1993. After his
dismissal the three positions were upgraded and the other two officers were
re-employed in two of the three vacant positions without competition.
2.5 The author alleges that the handling of his claim by the ADB was biased
and discriminatory, and that the bias was racially motivated. He bases this
assessment on the delay in the handling of his case which, in his opinion,
led to his being dismissed. He contends that in a telephone conversation
with a senior conciliation officer of the ADB on 12 August 1993, the ADB had
taken part of his former employer, as ADB agreed with the employer's
suggestion that he should appeal to the Government and Related Employees
Appeal Tribunal (GREAT). GREAT examines cases of wrongful dismissal, whereas
ADB processes cases of racial discrimination. The author was therefore
reluctant to file his grievances with GREAT, and took ADB's suggestion to
mean that ADB did not believe that it was faced with a case of racial
discrimination.
2.6 The author consulted with the NSW Legal Aid Commission (LAC) with a view
to obtaining legal aid for proceedings before GREAT. However, in accordance
with the Legal Aid Commission Act, legal aid is not provided in respect of
matters before the GREAT. On 30 August 1993, the author addressed a letter
to the ADB, confirming his decision not to proceed with an appeal before
GREAT and asking ADB to give priority to his complaint.
2.7 The author also contacted the New South Wales Council for civil
Liberties (NSWCCL) which informed him, on 1 July 1994, that his complaint
had been forwarded to the Council's Complaints Sub-Committee for further
consideration. After that, the NSWCCL never contacted him again.
2.8 On 19 December 1994, ADB informed the author that its investigation had
been completed, and that the complaint had been found without merit. No
reasons for this evaluation were provided. At the same time he was informed
of his right to appeal the decision within 21 days to the Equal Opportunity
Tribunal (EOT). However, the procedure before the EOT is long and expensive,
and the author could not pay the costs for representation since he remained
unemployed after his dismissal. He claims that the LAC again refused to
provide him with legal assistance on the basis of biased criteria. He
further complains about the manner in which the EOT and the NSW Ombudsman
handled his case subsequently.
2.9 Finally, the author claims that the conduct and practices of the State
party's organs, including the EOT, had a discriminatory effect on his
professional career and that he has not been able to find a suitable
employment since his dismissal in 1993.
The Complaint
3. It is submitted by the author that the facts stated above amount to
violations of the following provisions of the Convention:
- Articles 3, 5 (c), 5 (e) (i) and 6 by the NSWFB, in that he was
discriminated on racial grounds in the terms of his appointment, in his
employment conditions and in the termination of his employment. He also
alleged race-based harassment and offensive behaviour on the part of
colleagues.
- Articles 5 (a) and 6 by the ADB, the EOT, the Ombudsman and the LAC. He
contends that the ADB did not handle his urgent complaint impartially, that
it victimized and disadvantaged him and that by delaying the case for 22
months it protected the personnel of the NSWFB. He also complains about the
way in which EOT evaluated the facts and the evidence presented during the
hearings held from 11 to 15 September 1995 as well as the conduct of the
Ombudsman who, without contacting him, accepted the ADB's version of the
dispute. He was particularly disappointed in view of the fact that the NSW
Ombudsman in office served as Race Discrimination Commissioner in the
Federal Human Rights and Equal
- Opportunities Commission for several years and was fully aware of racism
in Australia, including the ADB's general attitude in handling complaints of
race discrimination.
- Article 2, in connection with the above-mentioned provisions.
State Party's Observations on Admissibility and Author's Comments Thereon
4.1 In a submission dated March 1996, the State party noted that when the
author initially submitted his case to the Committee, it was clearly
inadmissible for non-exhaustion of domestic remedies, as the author had then
instituted proceedings before the EOT. On 30 October 1995, however, the EOT
handed down a judgement in the author's favour by which it awarded him $A
40,000 of damages and ordered his former employer to address a written
apology (within 14 days) to him. While the EOT dismissed the author's claims
of racial discrimination, it did find that the author's dismissal as a
result of his complaint amounted to victimization. Victimization of an
individual who has initiated a complaint of racial discriminations is
unlawful under section 50 of the New South Wales Anti-Discrimination Act of
1977.
4.2 The State party considered that with the judgement of the EOT, the
author's case should be considered closed. It added that the author could
have appealed the judgement on a point of law, but that no notification of
appeal had been received.
4.3 In June 1997, the State party transmitted further admissibility
observations to the Committee. It argued that the claim under article 2 of
the Convention should be considered inadmissible as incompatible with the
provisions of the Convention, pursuant to rule 91 (c) of the rules of
procedure. It pointed out that the Committee had no jurisdiction to review
the laws of Australia in abstracto, and that, in addition, no specific
allegations had been made by the author in relation to article 2. If the
Committee were to consider itself competent to review the allegation, then
it should be rejected as inadmissible ratione materiae. It argued that the
author's rights under article 2 were accessory in nature, and that if no
violation under articles 3, 5 or 6 of the Convention was established in
relation to the conduct of the NSWFB, the ADB, the EOT, the Ombudsman's
Office or the LAC, then no violation of article 2 could be established
either. Subsidiarily, the State party contended that if the Committee were
to hold that article 2 was not accessory in nature, it remained the case
that the author did not provide prima facie evidence that the above bodies
engage in acts or practices of racial discrimination against him.
4.4 The State party also rejected the author's claims of a violation of
article 3 of the Convention in that he "was segregated ... from English
speaking background personnel during a trip to Melbourne and in an external
training course". That was deemed inadmissible as incompatible ratione
materiae with the Convention. For the State party, the author had failed to
raise an issue in relation to article 3. Subsidiarily, it was argued that
the claim under article 3 had been insufficiently substantiated for the
purposes of admissibility: there was no system of racial segregation or
apartheid in Australia.
4.5 The State party submitted that the claim of a violation of article 5 (c)
and (e) (i) of the Convention by the NSWFB, the EOT, the ADB, the Ombudsman
and the LAC was inadmissible ratione materiae. In relation to the
allegations against the conduct of the case by the EOT and the LAC it
further argued that the author had failed to exhaust available and effective
domestic remedies.
4.6 As to the author's claim that the NSWFB violated his rights under
subparagraph 5 (c), to inter alia have equal access to public service and
subparagraph 5 (e) (i), to work, to free choice of employment, to just and
favourable conditions of work and just remuneration, the State party argued
that:
These allegations were reviewed by Australian tribunals in good faith and in
accordance with established procedures. It would be incompatible with the
role of the Committee to act as a further court of appeal in these
circumstances.
Subsidiarily, the State party submitted that alleged racial discrimination
in employment had been insufficiently substantiated, for purposes of
admissibility, as the author had not provided prima facie evidence which
might give rise to a finding of racial discrimination.
4.7 As to the claim that the author's right to equal treatment before the
ADB, the EOT, the Ombudsman and the LAC were violated, the State party
argued that:
These allegations (with the exception of the one against the LAC) were
incompatible with the provisions of the Convention, on the ground that the
Committee was not mandated to review the determination of facts and law of
domestic tribunals, in particular in cases in which the complainant failed
to exhaust available and effective domestic remedies.
The claims related to the unfair and unequal treatment of the author by EOT
and LAC were inadmissible, as the author failed to exhaust available
domestic remedies. They could have been reviewed, respectively, by the New
South Wales Supreme Court and the Legal Aid Review Committee. Neither avenue
was pursued by the author.
4.8 With respect to the author's contention that the NSWFB, the ADB, the EOT,
the Ombudsman and the LAC violated his rights under article 6 of the
Convention, the State party submitted that:
This allegation was inadmissible ratione materiae, as the alleged violations
of the author's rights by the NSWFB and the ADB were properly reviewed by
the domestic courts, "in a reasonable manner and in accordance with the
law". The State party emphasizes that it was incompatible with the role of
the Committee under the Convention to act as a further court of appeal in
these circumstances. Australia had a domestic system which provided
effective protection and remedies against any acts of racial discrimination.
The mere fact that the author's allegations were dismissed did not mean that
they were ineffective.
Subsidiarily, the State party argued that the rights under article 6 of the
Convention were similar to those enshrined in article 2 of the International
Convenant on Civil and Political Rights. These are general rights which are
accessory in nature and linked to the specific rights enshrined in the
Convention. As no independent violation of articles 2, 3 and 5 of the
Convention had been made out by the author, no violation of article 6 could
be established.
Still subsidiarily, the State party submitted that the allegations under
article 6 had been insufficiently substantiated, for purposes of
admissibility, as the author did not submit any prima facie evidence that he
did not have the opportunity to seek effective protection and remedies
against alleged acts of racial discrimination in his employment, in a manner
similar to every individual in New South Wales.
5. In comments the author reiterated his allegations, claiming inter alia
that:
"six Anglo-Celtic officials" of the NSWFB "maliciously employed" him,
treated him unfairly during his employment and victimized him when he
complained about their attitude;
he had exhausted all available domestic remedies under Australian
anti-discrimination legislation, "although the remedies were unfair,
extensively exhaustive and prolonged";
he did not file an appeal against the decision of the LAC because the LAC's
advice to appeal for a review of its decision "was not in good faith and was
misleading";
as for the proceedings before the EOT, the case was conducted "in a biased
environment". A NSWFB barrister "tampered with subpoena documents" and
removed files from the record. Moreover, EOT "planted" a document in his
personnel file "in order to dismiss the case of racial discrimination
against the members of the dominant race".
The Committee's Admissibility Decision
6.1 At its fifty-first session, in August 1997, the Committee examined the
admissibility of the communication. The Committee noted that the author had
alleged violations of articles 2 and 6 of the Convention by all the
instances seized of his grievances, and of article 3 by the New South Wales
Fire Brigade. The Committee did not agree with the State party's assessment
that the author had failed to substantiate these allegations for purposes of
admissibility and considered that only the examination on the merits would
enable it to consider the substance of the author's claim.
6.2 The Committee noted that the author's claims under article 5 (c) and (e)
(i) against his former employers, the New South Wales Fire Brigade, which
were reviewed by the Equal Opportunities Tribunal, dismissed the author's
claims as far as they were related to racial discrimination. The Committee
did not agree with the State party's argument that to admit the author's
claim would amount to a review, on appeal, of all the facts and the evidence
in his case. At the admissibility stage, the Committee was satisfied that
the author's claims were compatible with the rights protected by the
Convention, under rule 91 (c) of the rules of procedure.
6.3 The author had alleged a violation of article 5 (a) of the Convention by
those administrative and judicial organs seized of his case. The Committee
did not share the State party's argument that this claim was incompatible
with the provisions of the Convention, since to declare it admissible would
amount to a review of the determination of facts and law by Australian
tribunals. Only an examination on the merits would allow the Committee to
determine whether the author was treated by these organs in any way
different from any other individual subject to their jurisdiction. The same
consideration as in paragraph 6.2 above in fine applied.
6.4 Finally, the State party had claimed that the author could have appealed
the judgement of the EOT of 30 October 1995 to the Supreme Court of New
South Wales, and could have availed himself of the opportunity to have the
decisions of the LAC to deny him legal aid by the Legal Aid Review
Committee. The Committee considers that even if this possibility still
remained open to the author, it would be necessary to take into account the
length of the appeal process; as the consideration of the author's
grievances took in excess of two years before the ADB and the EOT, the
circumstances of the present cased justified the conclusion that the
application of domestic remedies would be unreasonably prolonged, within the
meaning of article 14, paragraph 7 (a), of the Convention.
6.5 Accordingly, on 19 August 1997 the Committee declared the communication
admissible.
State Party's Observations on the Merits
A. Observations Concerning Author's Claims Under Article 2 of the Convention
7.1 In a submission dated 3 August 1998 the State party argues, with respect
to the author's claims under article 2 of the Convention, that article 2
deals with the general observations of State parties to condemn racial
discrimination and to pursue policies of eliminating all forms of racial
discrimination and promoting interracial understanding. Any rights which may
arise under article 2 of the Convention are also general rights which are
accessory in nature and linked to the specific rights enshrined in the
Convention. Accordingly, a violation of article 2 may only be found once a
violation of another right has been established. Since no other violation of
the Convention has been established, as submitted below, the author's
allegations with respect to article 2 are without merit. Furthermore, the
allegation that the State party has violated the rights of the author under
article 2 of the Convention is incompatible with the role of the Committee
on the ground that the Committee has no jurisdiction to review the laws of
Australia in the abstract.
7.2 If the Committee is of the view that the rights under article 2 of the
Convention are not accessory in nature, then the State party submits, in the
alternative, that the allegations lack merit. The laws and policies of the
Australian Government are designed to eliminate direct and indirect racial
discrimination and to actively promote racial equality. Anti-discrimination
legislation, policies and programmes exist at both the federal and the State
and Territory level to ensure that all individuals are treated on the basis
of racial equality and to ensure an effective means of redress if racial
discrimination occurs. The laws, practices and policies in relation to the
NSWFB, the ADB, the EOT, the Ombudsman and the LAC fully conform with
Australia's obligations under the Convention. The author has provided no
evidence that the NSWFB, the ADB, the EOT, the Ombudsman and the LAC engaged
in acts or practices of racial discrimination against him.
B. Observations Concerning Alleged Violations of the Convention by the New
South Wales Fire Brigade
7.3 The author's allegations that his rights under the Convention were
violated by the NSWFB concern three different issues: his appointment,
conditions during his employment and the termination of his employment.
7.4 The author alleges that he was discriminated against by not being
appointed to the position of Facilities Management Officer or Service
Manager, for which he had applied, because his overseas qualifications and
experience were not taken into consideration. The State party describes the
process leading to the fulfilment of those posts and states that the
author's academic qualifications were not at any stage disregarded nor
devalued; however, he lacked the experience required, in particular local
experience. He was granted an interview for the position of Service Manager,
during which he did not demonstrate that he had sufficient relevant
experience or sufficient knowledge and understanding of the duties and
requirements of the position.
7.5 The unsuccessful applications were destroyed in December 1993, in
accordance with the NSWFB policy to retain applications for 12 months only.
The author first raised a complaint over the selection process when he made
his complaints to the EOT in 1995. Prior to this, his complaints had been
restricted to work-related issues.
7.6 The author did not apply initially for the three vacant positions of
Engineering Officer. However, the selection committee contained some common
membership with the selection committee for the service manager
communications position. Recognizing that the author met all the
requirements for one of the three positions, he was invited to submit a late
application. He submitted an application on 21 December 1992 and on 28
January 1993 he was recommended for appointment on probation.
7.7 Regarding the claim that one of the other two engineering officers was
getting more salary than the author the State party indicates that the
reason was that the said officer had already been in the Public Service for
some time.
7.8 As to probation, the usual practice is to appoint persons on probation
when first joining the public service. The author had not been advised that
his appointment was on probation due to a "systemic error"; the restructure
of the NSWFB and subsequent recruitment action had created heavy demands on
the personnel area. A number of letters of appointment were sent out around
the same time as that of the author's which neglected to mention appointment
on probation.
7.9 The EOT judgement, a copy of which was provided by the State party,
indicates, in particular: "There is no doubt that Mr. S. was treated
differently to his colleagues in relation to his appointment to the position
of Engineering Officer, both with respect to his salary and other terms of
his employment. The issue is whether this amounts to discrimination on the
ground of race. We are of the view, after a careful consideration of all the
evidence, that the reason that Mr. S. was treated differently was that Mr.
S. did not have sufficient local experience. In our view this does not
amount to discrimination on the ground of race. The failure of the
Respondent to inform Mr. S. that he was only appointed for a probationary
period was unfortunate. Without doubt Mr. S. had ground for complaint in
relation to his appointment. His contract was breached at the outset. That
is not a matter for us to redress. He was probably exploited. But he was not
discriminated against unlawfully. Whilst he has been treated adversely, it
was not on the ground concerning his race or a characteristic of his race or
a characteristic imputed to his race."
7.10 The EOT found that, while the author's supervisor had a "robust
approach" to the work to be done by those within his section, he did not
treat the author differently to anyone else in the section, nor was the
author treated differently from his colleagues to any marked degree with
reference to the tasks assigned to him.
7.11 The author had access to workplace information in the same manner as
other officers. All files were available to him and he was provided with all
information relevant to the projects for which he was responsible. In
relation to business trips he was treated in the same manner as the other
engineering officers. The author was not segregated from his colleagues on a
trip to Melbourne. He did not participate in that trip because his presence
was not required. As for his exclusion from the external training course on
Fleet Mobile Communication in June 1993, it was due to financial constraints
and his lack of seniority. As to training opportunities, the allegation
appears to relate to a course for MS Projects/Windows that the other
engineering officers attended while the author did not. However, the author
attended an Excel computer training course. Further, the EOT found that the
NSWFB was justified in excluding the author from both the business trip to
Melbourne and the Fleet Mobile Communication course, due to his lack of
seniority and the need to avoid unnecessary expenditure of public funds.
7.12 When the author complained that his workload was too high, this was
reviewed but not considered to be the case by his supervisors. He was
granted an extension to complete a project on at least one occasion in
response to his request. The EOT found it correct that at one stage the
author had five projects assigned to him while his colleagues had two each.
However, an analysis of the tasks assigned to the latter showed that they
were of substantially greater complexity and scope that those assigned to
the author. Moreover, the EOT did not accept the author's case that he was
required to attend to duties of contract administration that were of higher
accountability than those of his colleagues. Material tendered by the NSWFB
indicated that at various times throughout their employment all three were
required to attend to duties of contract administration and consideration of
vendor submissions.
7.13 Several comments alleged to have been made by the author's colleagues
were carefully evaluated by the EOT, which concluded that they were isolated
remarks made on purely social occasions and did not reflect any vilification
or a basis for finding of racial discrimination.
7.14 Regarding the termination of the author's employment the State party
submits that it was primarily due to the fact that he refused to do certain
work, was unable to maintain good work relationships and created disruptive
tension in the workplace by accusations against staff members. Furthermore,
all three engineering officer positions were re-described and re-advertised
in December 1993. The process commenced in May 1993, i.e. before the author
made his complaints of 13 and 19 July 1993. His two colleagues were
appointed to two of the re-described positions. The author did not apply.
7.15 The author alleges that he lodged two complaints of discrimination
which were not investigated by the NSWFB according to their grievance
policy. Although it is clear that the complaints were not investigated
strictly according to the NSWFB grievance policy, this does not, of itself,
indicate that the author was victimized. However, it appears to have
contributed to the finding by the EOT that the author had been victimized.
It was the author's continued insistence that he would not carry out certain
duties unless he was paid engineers' rates which was the primary factor
which led to the Director General's decision to annul his probationary
appointment. Another factor was that, although his annulment depleted the
resources of the communications unit at a time of great activity and change,
the Director General was aware that the author's continued presence was
creating disharmony and adversely affecting the work performance of all
involved. All officers in the Unit had become increasingly concerned that
their every action and conversation was being scrutinized by him and
recorded in a manner not consistent with workplace harmony.
7.16 The EOT considered that the author's complaints of racial
discrimination significantly hardened his superior's views of him and were
"a substantial and operative factor" upon the NSWFB adopting the view that
he should be dismissed rather than seeking to resolve the issue by resorting
to a grievance procedure. It also considered that although the NSWFB had
stated, in a letter to the President of the ADB, that the author was
dismissed because he refused to do certain work, the NSWFB had "subjected"
the author "to a detriment, namely to termination of his employment without
notice" because of his disciplinary allegations: this, in the tribunal's
opinion, was contrary to Section 50 of the Anti-Discrimination Act 1977.
7.17 The State party concludes that the author has not provided any evidence
that could justify his claims that the NSWFB violated articles 5 (c) and 5
(e) (i) in his appointment, during the course of his employment and the
termination of his employment. As noted above and consistent with the
evidence before the EOT, the selection committee concerned with the author's
appointment to the NSWFB placed an emphasis on relevant local experience.
This was on the basis that the engineering conditions and practices in
Australia in relation to which the author was employed are significantly
different to those conditions and practices in which the author had
previously operated. For this reason the author's starting salary was $A
2,578.00 less than that of his colleagues. The EOT also found that there was
no racial discrimination in relation to any aspect of the author's
employment.
7.18 In the NSWFB and throughout every jurisdiction in Australia there are
no restrictions to access to public service on the basis of race, colour,
descent or national or ethnic origin. The New South Wales Government - like
all jurisdictions throughout Australia - has a policy of Equal Employment
Opportunity which actively encourages the recruitment of, inter alia, people
from other than English-speaking backgrounds into the public service.
7.19 The State party submits that the communication does not raise an issue
under article 3 of the Convention in relation to any aspect of his
employment with the NSWFB, since there is no system of racial segregation or
apartheid in Australia. It also submits, in relation to the author's
allegations that the NSWFB failed to investigate his complaints according to
the official grievance policy, that the author has not provided any evidence
that the investigation of his grievance by his superiors at the NSWFB was an
ineffective way to provide him with protection and remedies.
7.20 The State party reiterates that it is not the function of the Committee
to review the findings of the EOT. That submission is based on jurisprudence
of the Human Rights Committee in deciding cases under the Optional Protocol
to the International Covenant on Civil and Political Rights. It is also
analogous to the well established "fourth instance (quatrième instance)"
doctrine of the European Court of Human Rights, that an application that
merely claims that a national court has made an error of fact or law will be
declared inadmissible ratione materiae. The evidence provided in the
transcript of the hearing before the EOT and the EOT's judgement shows that
the author's allegations were carefully considered within the meaning of
racial discrimination under the Anti-Discrimination Act, which in turn
reflects the terms of the Convention, and were found to be unsubstantiated.
C. Observations Concerning Alleged Violations of the Convention by the
Anti-Discrimination Board, the Equal Opportunity Tribunal, the Ombudsman and
the Legal Aid Commission
7.21 Regarding the author's complaint vis-à-vis ADB the State party submits
that the author has failed to provide any evidence to demonstrate a casual
connection between the ADB's acts and the alleged discrimination he suffered
at work. When he lodged a complaint with ADB on 30 July 1993 he was already
aware that he was about to lose his job. Accordingly, it could not have been
"as a result" of the ADB's behaviour that the author allegedly suffered
discrimination, hostile behaviour and lost his job. As for the complaint
that ADB did not apply for an interim order to preserve his rights the State
party contends that the power in section 112 (1) (a) to preserve the status
quo between the parties does not extend to preserving a complainant's
employment.
7.22 As to the allegation that the ADB did not act promptly, it is submitted
that an ADB officer spoke with NSWFB on 10 August 1993 and asked if the
NSWFB would delay the decision to dismiss the author until the ADB had
investigated his complaint. The ADB had no power under the
Anti-Discrimination Act to compel the NSWFB to reinstate the author. After
the author advised the ADB that he was not proceeding with an appeal to
GREAT because he did not want reinstatement, the matter was no longer
considered by the ADB to be urgent, in accordance with the ADB's usual
policy. Furthermore, there is no evidence that the ADB did not act
impartially in considering the author's complaints. Indeed, it is clear from
correspondence from the ADB and the Ombudsman that the conciliation officer
complied with the ADB's usual procedures.
7.23 The author twice complained about the conduct of the ADB in
investigating his complaint to the New South Wales Ombudsman. Each of the
author's complaints was declined. The Ombudsman informed the author that he
was declining to investigate the author's urgent complaint about the alleged
delay of the ADB because he considered that the ADB had adhered to its usual
procedure for dealing with urgent complaints. The State party submits that
the author's claim against the ADB is manifestly ill-founded and lacking in
merit.
7.24 As for the author's allegations concerning the EOT's handling of the
hearing, the State party submits that it would appear from the transcript
that, as is often the case with proceedings involving unrepresented persons
and all the more so where the particular tribunal's raison d'être is the
elimination of discrimination, the EOT went to great lengths to be fair to
the author. The author obtained a fair and relatively long hearing (the
proceedings took five days). In particular, the transcript indicates that
the EOT:
was very polite at all times to the author and assisted him with questions;
granted the author leave to be assisted by a friend;
invited him "not to hurry, there was plenty of time";
protected him when giving evidence and allowed a witness to be recalled at
the author's request;
allowed the author to cross-examine one of the NSWFB's witnesses for almost
a whole day;
on many occasions tried to assist the author to explain why events and
actions were or were not based on race.
7.25 The author has failed to provide any evidence that the proceedings were
unfair, or motivated or tainted in any way by racial discrimination, or that
the EOT judgement was unjust. Accordingly, the proceedings before the EOT
were neither in violation of article 5 (a) nor ineffective within the
meaning of article 6.
7.26 Regarding the author's claim with respect to the Ombudsman, the State
party explains that the author made two complaints in writing to the
Ombudsman about the handling of his case by the ADB. The Ombudsman's Office
declined to investigate because the author had alternative means of redress
before the EOT. As explained to the author, because of the high number of
complaints and the limited resources available to the Ombudsman to
investigate them, priority is given to those matters which identify systemic
and procedural deficiencies in public administration, where complainants
have no alternative and satisfactory means of redress. The author's
allegation that a government department "can get away with it" if there is
an alternative means of redress available to the victim is illogical. If
there is an alternative means available then the government department
"cannot get away with it".
7.27 Furthermore, there is absolutely no evidence to support the allegation
that the Ombudsman "colluded" with ADB officials. The preliminary inquiries
undertaken by the Ombudsman disclosed that the conduct of the relevant ADB
officer complied with the usual ADB procedure. In the absence of prima facie
evidence of misconduct on the part of the ADB, the Ombudsman had no
alternative but to decline to investigate the author's complaint. No amount
of consultation with the author would have altered this fact.
7.28 In a letter dated 26 April 1995 the author wrote to the Ombudsman
seeking a review of the decision. In that letter he had the opportunity to
raise his specific objections to the decision to decline his complaint. He
did not do so and merely reiterated his earlier complaint and outlined
developments in the hearing of this matter by the EOT.
7.29 There has been no evidence submitted by the author that the decision of
the Ombudsman was motivated or tainted by racial discrimination in violation
of article 5 (a), or that this remedy was ineffective within the meaning of
article 6.
7.30 As for the author's claims regarding the decision of the LAC to refuse
his application for legal aid, the State party argues that the decision was
made in accordance with the Legal Aid Commission Act and the Legal Aid
Policy Manual, in a manner which treated the author no differently to any
other person making an application for legal aid. The author was advised by
the LAC that legal aid was not available for any person in respect of
matters before the GREAT. The refusal of legal aid did not preclude the
author from accessing and effectively conducting proceedings before GREAT.
This body is designed to be used by unrepresented persons. Finally, it was
the author's choice to pursue his complaint through the ADB and withdraw his
proceedings before the GREAT, since he was not interested in reinstatement.
Accordingly, the author has failed to provide any evidence that he was
treated unfairly by the LAC in relation to his application for aid for legal
representation before GREAT, or that lack of legal aid was the determinative
factor in his decision to pursue a remedy through the ADB.
7.31 If the matter is one for which legal aid is available and the means
test is satisfied, but there is some doubt concerning the merit, then, in
accordance with the Legal Aid Commission Act, the LAC may cover the cost of
obtaining an opinion from junior counsel on whether the applicant has
reasonable prospects for success. On 28 March 1995, the LAC authorized the
author to seek an opinion from junior counsel as to whether the proceedings
before the EOT had reasonable prospects for success and the likely quantum
of damages that might be awarded to the author. The solicitor's expenses
were paid by the LAC. However, it was finally found that the author's
application did not satisfy the LAC's merit test. The author has failed to
demonstrate how the LAC's decision to refuse him legal aid on the basis that
his claim lacked merit was unfair or amounted to unequal treatment.
7.32 The author was advised in writing in respect of the refusal of his
application for legal aid to appear before the GREAT and of his application
for legal aid to appear before the EOT that he could lodge an application to
have each of these decisions reviewed by a Legal Aid Review Committee within
28 days. The author states that it was impossible for him "to comply with
the EOT hearing dates and complete the LAC's appeal process. The LAC
explicitly informed the author of section 57 of the Legal Aid Commission Act
which provides for the adjournment of proceedings by a court of tribunal
pending the determination of an appeal by the Legal Aid Review Committee.
The author did not lodge an appeal to the Legal Aid Review Committee in
respect of either decision to refuse his applications for legal aid. The
fact that the LAC advised the author of his right of appeal is further
evidence that he was treated fairly.
7.33 The author's claim against the LAC is manifestly ill-founded and
lacking in merit. The author has failed to provide any evidence that the LAC
decisions to refuse the author legal aid for representation before GREAT or
EOT were unfair or motivated or tainted in any way by racial discrimination,
and therefore in violation of article 5 (a), or that this remedy was
ineffective within the meaning of article 6.
Author's Comments
A. Allegations Concerning Violations of the Convention by the New South
Wales Fire Brigade
8.1 With respect to the fact that the author was not appointed to two
positions for which he had applied he disagrees with the State party's
argument that understanding of the local market was an essential criterion
advertised or mentioned in the description for the position of Service
Manager and states that during his employment he was given several tasks of
local contract market and purchase. His application showed his skills and
experience to carry out all the accountabilities mentioned in the job
description for the two positions. Furthermore, he was more suitable than
the person appointed as Service Manager, as he had a postgraduate training
course in maintenance management and six years of experience in the
management of emergency services communication. During his employment the
author was assigned with one task of the Service Manager's position. i.e.
the purchase of Test Analyser. He was less favourably treated on the ground
of his racial background in that he was not even granted interview for both
positions. Furthermore, it is not correct that he only complained over the
selection process when he filed a complaint with the EOT in 1995. He did
raise the matter with his submission of 15 December 1993 to the ADB.
8.2 The author does not fully agree with the State party's statement
regarding the steps that led to his appointment as an engineering officer.
As for his remuneration, he says it is not true that one of his two
colleagues received the same salary as him. The EOT found that the colleague
also received allowances by reason of being placed on a special "on-call"
roster which gave him additional salary and permanent access to a car.
8.3 As for the probation issue the author argues that under section 28 (2)
of the Public Sector Management Act, a person may be appointed to a position
in the Public Service without being required to serve a probation period.
Given his qualifications, skills and experience he could have been exempted
from probation. The reason for not being exempted was based on racial
considerations.
8.4 Concerning the workload he says that he had to work during the Easter
holidays in order to complete a project that, given its complexity, took
longer than what his supervisors suggested. He also says that his supervisor
treated the migrant staff as second class citizens and that his regret and
denial of discriminatory intent is untrue.
8.5 The author insists that he was segregated from the white officers on a
trip to Melbourne in connection with a project he was working on and, for
which, he had previously been sent to Sydney. As for training, the Fleet
Mobile Communications course dealt with the latest technologies in mobile
radio communication. He was the most deserving employee of the NSWFB for his
course, as he was made responsible for the radio communications projects.
The cost of the course was not very high.
8.6 As for the State party's statement that the author did not apply when
the position was re-advertised he states that, by then, he had already been
dismissed. Applying would have meant that he had to compete, as an external
candidate, with hundreds of other applicants. Furthermore it would have been
useless. As the EOT found, the NSWFB was unwilling to employ him.
8.7 As for the State party's claim that the author had refused to carry out
work assigned to him the author refers to the EOT judgement in which the
tribunal was of the view that the incidents referred to by his superiors did
not amount to clear refusal by the author. He also states that he did not
refuse the lawful order or requested engineer's pay; the State party's
allegations that he refused duties for money are baseless. With regard to
the workplace harmony and productivity, there was no complaint against the
author from any staff member, neither did EOT find that there was any
evidence that he created disruptive tension in the workplace.
B. Allegations Concerning Violations of the Convention by the
Anti-Discrimination
Board, the Equal Opportunity Tribunal, the Ombudsman and the Legal Aid
Commission
8.8 The author states that when he requested the ADB to deal with his case
on an urgent basis, as he feared he would be dismissed, the ADB limited
itself to inform the NSWFB that a complaint had been lodged. ADB did not act
promptly and deliberately delayed action until the dismissal took place. The
author also argues that the ADB was unwilling to investigate his claims
regarding "discrimination in appointment", in an attempt to minimize his
prospects of success in the EOT and in seeking legal aid; indeed, the ADB's
baseless findings that the author's complaint was lacking in substance
undermined his prospects of success with other organs.
8.9 The author complains about the manner in which the EOT handled his case.
He says, for instance, that it did not order the ADB to provide an officer
to assist the inquiry, despite the fact that it could have done so under the
provisions of the Anti-Discrimination Act; during the conduct of the inquiry
the EOT gave advantage to the NSWFB; it further disadvantaged the author by
conducting the hearing in public, reporting to the media and publishing the
judgement; enormous amounts of duplicated documentation was given to him to
read during the hearing, however, he was not given extra time to read it,
except for a few minutes adjournment; the transcripts of the five-day
hearing show that he did not have sufficient time to cross-examine the six
NSWFB witnesses; two of the witnesses brought by the NSWFB were migrants
whose testimony in the witness box did not fully coincide with their
affidavits; the EOT allows the NSWFB to be represented by the Crown
Solicitor against the unrepresented author without witnesses.
8.10 In its judgement the EOT justified the treatment of the author by the
authorities as "unfair", "unfortunate", "exploitation", "adverse", etc., but
failed to acknowledge the discriminatory impact and outcome on the author
due to his different race to others in similar circumstances. The EOT failed
to recognize the continuous pattern of unequal treatment between the author
and the other two officers in the same circumstances and considered that the
race based harassment in the workplace during duty hours were simple jokes
on social occasions.
8.l1 The author claims that his personnel file with the NSWFB was taken over
by the EOT and he was not allowed to inspect it. The EOT judgement indicates
that his personnel file contained a letter dated 4 May 1993 according to
which he should be considered for further promotion at the end of his first
year of employment. The author expressed doubts as to the authenticity of
that letter and considers that it was "planted" by the EOT to justify its
judgement that the NSWFB did not discriminate against him on racial grounds.
8.12 The author states that the Ombudsman abused her discretionary powers by
declining to investigate his complaints and deliberately misinterpreting
section 13 of the Ombudsman Act, despite the fact that the author had
identified systemic and procedural deficiencies in the ADB. She did not
answer as to why she did not investigate the wrongdoings of the ADB
officials. The Ombudsman was deliberately not understanding that in one
instance the ADB "got away" by colluding with the NSWFB and declaring that
the author's claim of victimization lacked substance. The victimization
claim was later substantiated and NSWFB paid the damages, not the ADB. After
receiving two complaints against a public administration, it is unfair that
the Ombudsman was relying on the information or advice supplied by the same
public administration and reporting it back to the author. The author sent a
letter to the Ombudsman, dated 26 April 1995, in which he explained in
detail the types of improper conduct by the ADB official. Furthermore, the
Ombudsman failed to advise the author as to the kind of additional
information she needed to reopen the case.
8.13 The author states that the report of the LAC's sponsored counsel and
the LAC's decision to refuse legal aid were unfair, as the author was
successful in establishing his case of victimization in the EOT. It is
incorrect to say that the author had to choose ADB instead of GREAT because
he was not interested in reinstatement. If he was not interested in
reinstatement, why did he seek reinstatement through EOT? The real reason
for his withdrawal from the GREAT appeal was the denial of legal assistance.
8.14 Finally, the author disagrees with the State party's observations
regarding non-violation of article 2 of the Convention. He refers to the
Committee's opinion on communication No. 4/1991, in which it is stated that
"the Committee cannot accept any claim that the enactment of law making
racial discrimination a criminal act in itself represents full compliance
with the obligations of States parties under the Convention".[FN1]
---------------------------------------------------------------------------------------------------------------------
[FN1] CERD/C/42/D/4/1991, para. 6.4.
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Examination on the Merits
9.1 The Committee has considered the author's case in the light of all the
submissions and documentary evidence produced by the parties, as required
under article 14, paragraph 7 (a), of the Convention and rule 95 of its
rules of procedure. It bases its findings on the following considerations.
9.2 The Committee notes that the author's claims were examined in accordance
with the law and procedures set up by the State party to deal with cases of
racial discrimination. It notes, in particular, that the complaint was
examined by the New South Wales Anti-Discrimination Board (ADB) first and by
the Equal Opportunity Tribunal (EOT) on appeal. The EOT examined the
author's claims regarding racial discrimination and victimization concerning
his appointment, employment and dismissal. On the basis of the information
at its disposal, in particular the text of the EOT's judgement, the
Committee is of the opinion that the EOT examined the case in a thorough and
equitable manner.
9.3 The Committee considers that, as a general rule, it is for the domestic
courts of State parties to the Convention to review and evaluate the facts
and evidence in a particular case. After reviewing the case before it, the
Committee concludes that there is no obvious defect in the judgement of the
EOT.
10. In the circumstances the Committee on the Elimination of Racial
Discrimination, acting under article 14, paragraph 7 (a) of the
International Convention on the Elimination of All Forms of Racial
Discrimination, is of the opinion that the facts as submitted do not
disclose a violation of the Convention by the State party.
11. Pursuant to article 14, paragraph 7 (b), of the Convention, the
Committee suggests that the State party simplify the procedures to deal with
complaints of racial discrimination, in particular those in which more than
one recourse measure is available, and avoid any delay in the consideration
of such complaints.
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