A clinical pharmacist employed by a Local Health District has highlighted the risk of employers being found in breach of racial discrimination provisions of the NSW Anti-Discrimination Act 1977. While many aspects of the pharmacist’s claim, including being directly discriminated against due to his Arab race were rejected, a claim of indirect discrimination on this ground was upheld in a recent decision by the NSW Administrative Decisions Tribunal.
The NSW Anti-Discrimination Act 1977 makes it illegal for employers to discriminate against employees on the ground of race. Such discrimination can be either:
s 7(1)(c) indirect: when the employer requires the employee to comply with a requirement/condition which a substantially higher proportion of employees from another race are able to comply with, in circumstances that are unreasonable to the circumstances and with which the aggrieved person is not able to comply.
Mr Awad, an Egyptian born pharmacist with 15 years’ service with Western Sydney LHD, claimed he had been discriminated against when seeking promotion to Grade 3 positions. Selection criteria for appointment to Grade 3 set by the LHD required applicants to demonstrate experience as a Grade 1 or 2 in a clinical specialist position. Mr Awad alleged racial discrimination as not one of 12 specialist positions was occupied by any of the 4 Arabic pharmacists and as a result, he had no way of meeting the eligibility requirements for promotion to Grade 3.
The LHD contended there was no racial bar to Arabic staff gaining specialist experience but agreed it would be difficult for rotating pharmacists, including all 4 Arab background staff, to gain the specialist experience needed to qualify for Grade 3 positions. The employer also claimed the latest application by Mr Awad had been culled because it both displayed inferior written communications skills and failed to address the correct selection criteria.
The NSW Administrative Decisions Tribunal, headed up by Magistrate Hennessy, were quick to find the LHD had not directly discriminated against Mr Awad by culling his application – agreeing the evidence showed his “application was, by far, the least impressive” and race played no part in decision to cull it. Accordingly, Mr Awad had not been treated less favourably than persons of another race.
However, on the issue of indirect discrimination, the Tribunal highlighted the difference in the tests specified between s 7(1)(a) and (b) and found the facts mandated a positive finding against the LHD. Based on the fact of 100% of 12 specialist positions being held by non-Arabic pharmacists, this meant that no-one from an Arabic background could comply with the internal selection criteria for appointment to Grade 3. Accordingly, when applying the ‘substantially higher proportion’ test for indirect discrimination under s 7(1)(c), the Tribunal found the “reason that a person or group of people are unable to comply is irrelevant” as the test was satisfied as soon as a substantially higher proportion of non-Arabic than Arabic pharmacists were able to comply with the criteria of having the required specialist experience.
The Tribunal also found the requirement for demonstrated specialist experience was unreasonable given the impact this had on pharmacists of Arabic background and the fact that competent pharmacists could be recruited to Grade 3 positions without this specialist experience.
Awad v Western Sydney Local Health District  NSWADT 287 (13 December 2013)
Implications for NSW local government
The decision of the NSW Administrative Decisions Tribunal in this matter highlights the exposure NSW public sector organisations have to adverse findings on discrimination complaints brought under the NSW Anti-Discrimination Act.
While proper training and conduct by staff, especially by supervisors and line managers will generally be sufficient to ensure incidents involving direct discrimination do not take place, the same confidence should not be afforded to issues of indirect discrimination.
With the Tribunal appearing to be willing to tell an employer it should not impose selection criteria on applicants that could have a disproportionate impact on any one group subject to the protections of the Anti-Discrimination Act, constant vigilance is needed. Such vigilance would seek to proactively identify those situations where specific groups of employees may be disproportionately impacted upon by workplace policies, procedures or practices.
Additionally, given the heightened risk of discrimination claims in situations associated with recruitment and selection actions, particular care should be taken to carefully review all complaints or appeals lodged by unsuccessful applicants for any potential indirect discrimination implications.