An employer has been found guilty of racial discrimination after selection criteria for a position in a public hospital could not be met by any of the hospital’s pharmacists with an Arabic background.
Mr Awad has been a pharmacist at the Westmead Hospital in New South Wales for over 15 years. He was employed as a “Grade 2” rotational pharmacist, which meant that he did not have a speciality area in which he practised.
In 2011, he applied for, amongst other positions, a “Grade 3” Clinical Pharmacy Coordinator position with the hospital. The selection criteria for that particular position required the successful candidate to demonstrate “excellence in at least one clinical speciality practice”. As a rotational pharmacist, Mr Awad could not meet that criteria, and his application was culled and he was not offered an interview. Mr Awad made a number of complaints of direct and indirect racial discrimination and victimisation to the Anti-Discrimination Board concerning his application and other incidents at his workplace.
All of Mr Awad’s allegations of direct discrimination were dismissed.
However when considering Mr Awad’s allegations of indirect discrimination, the Grade 3 Clinical Pharmacy Coordinator position criteria became highly relevant to deciding whether Mr Awad had been indirectly discriminated against on account of his race. As Mr Awad was from Egypt, there was no dispute between the parties that Mr Awad’s race was Arab.
The Tribunal found that none of the four other Arabic-descended pharmacists at the hospital would have met the selection criteria, because they were all working as rotational pharmacists, and not as specialists. There were no non-Arabic rotational pharmacists at the time, with the Tribunal concluding that “100% of people at Westmead Hospital from a non- Arabic background could comply with the requirement”.
The employer argued that the reason the Arabic pharmacists could not meet the criteria was not race related, however the Tribunal concluded that it does not matter for what reason the group were unable to meet the criteria, in so far as it concerned the indirect discrimination part of Mr Awad’s claim. It stated that the numbers were the only relevant consideration in applying the “substantially higher proportion” test (the test required Mr Awad to show that he could not comply with a requirement or condition with which a substantially higher proportion of people who weren’t Arabic, could comply).
Therefore, having satisfied the Tribunal in relation to the “substantially higher proportion” test, the Tribunal was then required to determine if the selection criteria were reasonable. If the requirement was reasonable, it would mean that it was not discriminatory.
The Tribunal considered the applicable award for the hospital, which did not set out any classification criteria for a Grade 3 pharmacist. The award did set out classification criteria for a Grade 2 pharmacist, and which did not require “demonstrated excellence in at least one clinical speciality practice”. This led the Tribunal to conclude that the position selection criteria were not reasonable in the circumstances. This meant that the position criteria amounted to indirect racial discrimination.
Despite his success in demonstrating unlawful discrimination, Mr Awad was not awarded any compensation, because the Tribunal was not convinced that he would have been successful in his application even without the discriminatory criteria. Mr Awad’s application contained many spelling mistakes and appeared to have been prepared for a different position. It was considered by the selection panel to be an unimpressive application.
Separately, Mr Awad made a number of complaints of direct racial discrimination and victimisation to the Tribunal, with the majority being found to be unsubstantiated. However, it was held that Mr Awad suffered victimisation by reason of the complaints, because the subject of the complaints, Mr Ng, the Director of Pharmacy at the hospital, was on the selection panel for one of Mr Awad’s various applications for promotion. This was an application for a different position to the Grade 3 pharmacist position, and he was not prevented from being eligible for promotion by reason of being a rotational, rather than a specialist, pharmacist.
Mr Ng was aware of the complaints which had been made, but did not withdraw from the selection panel. The hospital had a conflict of interest policy, which Mr Ng should have followed by withdrawing from the selection process. Because he did not, and regardless of the merit of Mr Awad’s other complaints, the Tribunal concluded that Mr Awad was subject to victimisation because of his complaints.
Another of Mr Awad’s complaints of victimisation was found to be substantiated by the Tribunal. After Mr Awad refused to be interviewed by Nr Ng because of Mr Ng’s conflict of interest, he used a hospital telephone to call Human Resources. He questioned whether it was acceptable for Mr Ng to be on the selection panel for the position considering his other complaints of discrimination. While Mr Awad was on the telephone, Mr Ng told Mr Awad that he was using the telephone for a private purpose, alleging that he was misusing hospital property. The Tribunal concluded that at least one of the reasons that Mr Ng challenged Mr Awad while on the telephone was the complaints Mr Awad had made. The Tribunal said that Mr Ng was attempting to intimidate Mr Awad.
Mr Awad was awarded $10,000 because of the two instances of substantiated victimisation, assessed as damages for pain and suffering.
This case demonstrates how important it is for selection criteria to be objectively reasonable. Selection criteria imposed by an employer must bear a direct relationship to the needs of the particular position. In this case, the employer’s inability to demonstrate that the selection criteria of “demonstrated excellence in at least one clinical specialty practice” was necessary to perform Grade 3 work, meant that it was unable to show that this requirement was reasonable and lawful.
Employers should also ensure that it takes preventative steps to avoid any suggestion that an employee has been victimised following the making of a formal complaint about discrimination. Risks can be minimised through appropriate workplace policies and training