Dezfouli v Justice Health and Forensic Mental Health Network (No 6)

[2018] NSWCATAD 161

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Dezfouli v Justice Health and Forensic Mental Health Network (No 6) [2018] NSWCATAD 161
Hearing dates:	12 June 2018
Date of orders:	27 July 2018
Decision date:	27 July 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	Leave to proceed with the complaint of victimisation is refused.
Catchwords:	ANTI-DISCRIMINATION – Where complaint of victimisation declined by President of Anti-Discrimination Board as lacking in substance – Application for leave to proceed with complaint -- Whether fair or just to grant leave
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Bacirongo v ACL Pty Ltd [2011] NSWADT 12 Carroll v Department of Family and Community Services [2015] NSWCATAD 82 Jones v Ekermawi [2009] NSWCA 388 Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94
Category:	Procedural and other rulings
Parties:	Saeed Dezfouli (applicant) Justice Health and Forensic Mental Health Network (respondent)
Representation:	Solicitors: Applicant by telephone Justice Health and Forensic Mental Health Network legal adviser (respondent)
File Number(s):	2018/00167609

REASONS FOR DECISION

1. Mr Dezfouli complained that a nurse, employed by the respondent (“the Nurse”), sexually harassed him in breach of the Anti-Discrimination Act 1977 (AD Act). Mr Dezfouli also complained that he was victimised by other nurses after making a complaint. The President of the Anti-Discrimination Board (“President”) declined his complaint of victimisation as lacking in substance: AD Act, s 92(1)(a)(i).

2. Mr Dezfouli applied to the Tribunal for leave to proceed with his complaint of victimisation in the Tribunal.

3. The Tribunal may give Mr Dezfouli permission for his complaint to go ahead if it is fair and just to do so: Jones v Ekermawi [2009] NSWCA 388; AD Act, s 96(1). The onus is on Mr Dezfouli to satisfy the Tribunal that leave should be granted: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 at [2]; Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 at [3].

4. I have decided not to give Mr Dezfouli permission for his victimisation complaint to go ahead because it is highly unlikely that he would be able to substantiate it.

Background

5. On 10 September 2017, Mr Dezfouli wrote to the President alleging that, after the Nurse had been notified that Mr Dezfouli had complained about her to the Anti-Discrimination Board (“Board”), she had:

“told her colleagues and they have teamed up against me, by being rude and provocative to me, to make me to react to get me for it. Now I am walking on broken glasses, anytime I may cut my feet. Then they will grab and drag me to seclusion and stick a needle in me and drop me on the bed for 4 days.”

6. The Board wrote to Mr Dezfouli, asking him to provide details of the events which he alleged constituted victimisation under s 50 of the AD Act.

7. On 14 October 2017, Mr Dezfouli replied to the Board, saying that after he had complained about the Nurse, she:

“told her colleagues about it they made my life so miserable by victimising me and being rude and provocative towards me that on 09/08/2016 when the Police came here to interview me I gave him a letter telling him that to lower the heat on me and reduce the possibility of reprisal, retailiation and repercussion I have decided not to pursue my complaint.

But that didn’t stop the Nurses of Victimising me, by trying to provoke me to behave in an irradical [sic] way so that they can put me in the seclusion and stick a needle in me and drop me on the bed for 4 days to tell me who is in charge and who runs the show.”

8. The Board accepted Mr Dezfouli’s complaint of victimisation on 30 November 2017 for investigation under s 89B of the AD Act.

Victimisation complaint

9. If the complaint were to proceed, Mr Dezfouli would have the onus of establishing that he had been victimised. Section 50(1) of the AD Act provides:

“50 Victimisation

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.”

10. In summary, to prove victimisation Mr Dezfouli would have to prove that:

1. he did one or more of the things listed in (a) – (d): (the trigger);

2. the respondent subjected him to a detriment; and

3. the detriment was on the ground that Mr Dezfouli did one of the things listed in (a) – (d): (causation) (see Carroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24]).

Trigger

11. There is no dispute that Mr Dezfouli made a complaint of sexual harassment against the Nurse, so that there was a “trigger.” The other two matters are, however, contested.

Detriment

12. The respondent denies subjecting Mr Dezfouli to a detriment and says that, without more specificity about what allegedly occurred, it cannot investigate the matter further.

13. Mr Dezfouli’s allegations are very vague. Importantly, he does not identify which nurses are said to have engaged in the alleged conduct against him. Whilst the allegation that a nurse or nurses put him in seclusion and stuck a needle into him has some degree of specificity, there is no indication of when this was said to have occurred or the circumstances in which it allegedly occurred.

14. Mr Dezfouli did not dispute that the respondent had a policy at all relevant times that Mr Dezfouli is only approached with a minimum of two staff in attendance. This makes it less likely that the alleged conduct occurred. As Mr Sterry submitted for the respondent, it is also improbable that Mr Dezfouli would decline to proceed with a police complaint, for fear of reprisal, but nevertheless be prepared to make a victimisation complaint to the Board and the Tribunal. A number of elements of Mr Dezfouli’s complaint, including this, cast doubt upon its credibility.

Causation

15. On the third issue, causation, Mr Dezfouli’s complaint is very vague. He claims to know that the Nurse told her colleagues that he had made a complaint about her, but does not explain how he knows this. He alleges that the nurses provoked him to behave in an “irradical way” so that they could put him in seclusion. There is no evidence, first that other nurses knew about Mr Dezfouli’s complaint about the Nurse or secondly that, if they did, this was the cause of their alleged behaviour. There is no evidence, other than Mr Dezfouli’s word, that he was in fact put into seclusion and sedated for four days.

Conclusion

16. For these reasons, the complaint lacks substance and it is not fair or just for it to proceed.

ORDER

1. Leave to proceed with the complaint of victimisation is refused.

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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