Second Maddocks Response

8/3/2019 Second Maddocks Response

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I FromDarre n Ga rd ne rDirect0282234103

ToM r G erardo D e Liseo

COpy1 l l l l l l l l l m l l l l l l l l l l l l l ! I I I I I I I I I I I I I I I l I I i 1 1 1 1 1 1 1 1I I IMaddocksLawyersL ev el 2 1. A ng el P la ce123 Pitt StreetSydney New Sout h Wa le s 2000 Austral iaGPO Box 1692Sydney New Sou th Wa l es 2001Telephone 61282234100Facsimile 61 29221 OS72in [email protected] .OX 10284 S yd ne y S to ck E xc ha ng e

PRIVATE, CONFIDENTIAL ANDFOR THE PURPOSES OF CONCILIATION UNDER THE ANTI-DISCRIMINATION ACT

I Date4/07/2011

The infonnation in this facsimile is privileged and confidential, intended only for use of the individual or entity namedabove. If you are notthe intended recipient, any dissemination, copying or use ofthe information is strictly prohibited. Ifyou have received this transmission by error please telephone us immediately on 61 282234100.Please advise this office immediately if all pages are not received.Our Ref DDG:5816346

Dear Mr De Liseo

- 4 J U L 2 8 f t

No of pages5 incl. this [email protected]

Delegate of the PresidentFacsimile0242249961

Organisation

Regional ManagerAnti-Discrimination Boardof NewSouth WalesWollongong

Complaint by Mr Ravi Mendis against the University of WollongongYour ref: 2011/0474We refer to your letter of 20 June 2011 addressed to Professor Sutton of the University of Wollongong(University), enclosing a complaint made by Mr Ravi Mendis against the University under the Anti-Discrimination Act 1997(Complaint).You have requested that the University provide a written response to Mr Mendis' Complaint and toprovide any other information that the University considers relevant to any aspect of this matter.

BackgroundWe are instructed to respond to your letter and the Complaint as follows.

1. Mr Mendis commenced employment with the University on a fixed term contract, whichcommenced on 14 September 2009 and expired on 13 September 2010. Prior to the expiryof the fixed term contract, the University entered into a second fixed term contract with MrMendis, from 14 September 2010 to 9 September 2011.

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In te r st a te o f fi coMelbourneA ffi li at ed o ff ic e s 3 ro und t he wo rl d t hr ough I heAdvo c A s ia n "t wa lk www.aclvocasia.com
mailto:[email protected]://www.maddocks.com.au/mailto:[email protected]://www.aclvocasia.com/http://www.aclvocasia.com/mailto:[email protected]://www.maddocks.com.au/mailto:[email protected]


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2. M r Mendis is a UK nationa l, subject to v isa and imm igration requirements. On 7 April 2009,a t the in te rview for the firs t fixed te rm contract, the Un ivers ity made it c lear to M r Mendis tha tthe re could be no expectation of con tinued employment beyond the fixed term . W hen theUnivers ity entered in to a second fixed te rm con tract w ith M r Mendis, it again made it c leartha t there could be no expectation of continued employment beyond the fixed term .

3. M r Mendis is emp loyed in the position of W eb Applications Developer, Faculty Educa tion,EdiT . M r M endis reports to bo th Doctor Sue Benne tt, Associate P rofessor, FacultyEduca tion, and Katrina G am ble, Faculty Business M anager, Facu lty Education . M r Mendishas, during his em ploym ent, worked w ith Karl Rudd , P rogram mer, Facu lty Educa tion, EdiT ,P rofessor Lori Lockyer, Facu lty E ducation, Charles Carceller, form er Research A ssistant,Faculty Education and S tuart Sepp, form er P rogram mer, Faculty Education , Ed iT .

4. In April 2011, M r M end is ra ised interna l comp la in ts against four Univers ity staff m em bers: M rRudd, P rofessor Lockyer, M r Carce ller and M r Sepp. M r Mendis a lleged "discrimination"against these respondents, but d id not identify the ground(s) of d iscrim ina tion.

5. Lynne W right, D irecto r, Em ploym ent Equity and D ivers ity , undertook an investiga tion in to thecom pla in ts, in accordance w ith the Unive rs ity 's G rievance Policy. M s W right found tha t therewas no evidence of d iscrim inatory conduct by any of the four respondents:

6. On 19 May 2011, Ms W right met w ith M r Mend is to in form him of the outcome of theinvest igat ion.

Compla in tInvitation to Withdraw Complaint7. On the basis o f the facts availab le to us, as de term ined by the internal investigation , it is

c lea r that M s W right d id not treat M r Mendis less favorably than a person w ithout M r Mendis 'd isability , w hen conducting and/or m aking find ings in respect o f the in ternal investigation.

8. M s W right's find ings were based on her review of the re levant documentation and ba lancingthe evidence of. the parties to the com pla in t. M s W righ t found that, where the conductoccurred, "w ork re la te d d is ag re emen ts , w hic h w ill o cc ur in th e work pla ce ... h av e b ee nin appropria te ly p ersonalis ed [b y M r Mend is j. "

9. It is a lso clear, on the basis of the facts availab le to us, as de te rm ined by the internalinvestigation, that the four responden ts to the interna l com pla in t d id not trea t M r M endis lessfavorab ly than a person w ithout M r M end is ' d isab ility , when interacting w ith h im in theworkplace.

10. Accord ing ly, we invite M r Mendis, under section 92B(1) of the An ti-Disc rim ination Ac t 1997,to w ithdraw the com pla in t.

11. A lternative ly . shou ld M r Mendis not w ithdraw his compla in t, we are of the view that it isreasonably open to the delegate of the P resident to exerc ise d iscretion to decline to enterta inthe com pla in t, pursua nt to subsectlons 92(1)(a)(i),(ii),(iii), (v i) an d (v ii) and subse ctio ns92(1 )(b) of the An ti D isc rim ina tion Ac t 1977, because the com pla in t is m isconceived, lack ingin substance, not capab le of amounting to a contravention of the Act, and for other reasonsinc lud ing that the in ternal com pla in t has been adequate ly dealt w ith by the Unive rs ity and theUn ivers ity has taken adequa te steps to deal w ith M r Mendis ' grievances.

Response to Complaint12 . By way of genera l rep ly, the Un ivers ity denies tha t there has been any contravention of theAnti-D iscrim ina tion Act 1977 fo r the reasons a lleged or at a ll.

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13. In essence, as we understand Mr Mendis' Complaint, he alleges that Ms Wright treatedMr Mendis less favorably because of his disability when conducting and/or making findings inrespect of the internal investigation.

14. The University denies that Ms Wright treated Mr Mendis less favorably than a person withoutMr Mendis' alleged disability when conducting and/or making findings in respect of theinternal investigation. Ms Wright investigated the internal complaint in accordance with theUniversity Grievance Policy and guidelines.

15. Ms Wright's findings were based on her review of the relevant documentation and balancingthe evidence of the parties and witnesses to the complaint.16. Ms Wright found that:16.1 the substance of Mr Mendis' complaint was that he felt that he had been undermined at

work, which had led to a loss of opportunity for promotion, loss of opportunity for continuedemployment beyond the fixed term and loss of opportunity to remain in Australia when hisfixed term contract (and visa) expired;16.2 there was no evidence of discriminatory conduct by any of the four respondents towards Mr

Mendis;16.3 the complaints were low level matters that were "work related disagreements, which wilfoccur in the workplace ... [and] have been inappropriately personalised."

16.4 Mr Mendis had exhibited sarcastic and inappropriate behaviour towards his colleagues; and16.5 given that Mr Mendis was employed on a fixed term contract, without a promise of promotionor continued employment beyond the fixed term, Mr Mendis had not lost any opportunities in

terms of promotion, ongoing employment or remaining in Australia.17. By way of response to the substantive allegations in the Complaint, the University responds:17.1 First Paragraph ~the University denies that there was a conflict of interest in Ms Wright

undertaking the internal investigation. Further, on 2 May 2011, Ms Wright discussed thisissue with Mr Mendis. Ms Wright explained that she had a dual reporting relationship withboth John Patterson, Senior Deputy Vice-Chancellor, and Gerard Sutton, Vice-ChancellorProfessor, and that given Professor Lockyer was the wife of Mr Patterson, she would notdiscuss the investigation with him. Mr Mendis appeared satisfied with this explanation andagreed that Ms Wright could continue to proceed as the investigator.

17.2 Example 1 - on 19 May 2011, Ms Wright, when informing Mr Mendis of the outcome of theinvestigation, stated that some of the respondents had also complained of Mr Mendis'alleged inappropriate conduct. Ms Wright gave the example of how Mr Mendis' comment "i f Iwere a straight white middle class man .... like Garry Hoban for example" could, in thecontext in which it was made, be misinterpreted as discriminatory. Ms Wright did not make afinding as to whether such conduct was discriminatory.

17.3 Example 2 - Ms Wright investigated the allegations against Mr Carceller, and found, onbalance, that they were not substantiated due to the evidence provided by the respondents.17.4 Example 3 - Ms Wright investigated the allegations against Professor Lockyer, and found,on balance, that they were not substantiated due to the evidence provided by the

respondents. Ms Wright found that Mr Mendis had exhibited sarcastic and inappropriatebehaviour towards his colleagues, for example his comment in an email dated 10 February2011 to Natalie Cooper, "I apologise jf i come across like I'm speaking to someone with anfQ in the low 70s but .... " Mr Mendis, in his Complaint, does not object to therecommendation of communication training per se, stating "VOW recommends that I train in''professional'' email communication (which I do not object to). "


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17.5 Example 4 - Ms Wright investigated the allegations against Mr Rudd, and found, on balance,that they were not substantiated due to the evidence provided by the respondents.Furthermore, Mr Mendis, in his internal complaint, does not claim that Mr Rudd objected tothe technology being called "Diva" because it was associated with him "being openly gay'but because "I appreciate that as a brand name "Diva" appeals to women more so thanmen."

Equal Opportunity Employer18. As an equal opportunity employer, the University is well aware of its obligations under anti-discrimination legislation and takes these obligations very seriously.19. The University has in place a number of policies, including the Equal Opportunity andAffirmative Action Policy, Respect for Diversity Policy, Non-Discriminatory LanguagePractice and Presentation Policy and Guidelines and University Code of Conduct, whichaddresses equal opportunity and discrimination. These pollcies were in place at all timesrelevant to the Complaint.20. These policies and guidelines are available on the intranet, and all staff, including

Mr Mendis, Ms Wright, Mr Rudd, Professor Lockyer, Mr Carceller and Mr Sepp, have accessto these policies and guidelines.21. In addition, all permanent staff are required to, and have, completed some form of equalopportunity and discrimination training at the University, including Mr Mendis, Ms Wright, MrRudd, Professor Lockyer and Mr Sepp.

University's Accommodation of Staff with Disabilities22. The University also has in place a number of policies and procedures that deal specificallywith disability discrimination and which aim to support staff with disabilities, namely DisabilityPolicy and Workplace Adjustment Procedures for Staff Members with a Disability Policy.These policies are also available on the intranet and were in place at all times relevant to the

Complaint.23. Workplace Adjustment Procedures for Staff Members with a Disability Policy andaccompanying procedures, namely Request for Workplace Adjustment and WorkplaceAdjustment Management Plan, aim to assist staff with disabilities in the workplace.

Workplace adjustments may be permanent or temporary and may include provision ofspecialized equipment, facilities or work related aids, job redesign or modification to workareas. The workplace adjustments enable employees to use their skills effectively andaccess the same benefits as other employees.

24. The workplace adjustments process requires the staff member to disclose their disability totheir supervisor. and work with their supervisor. the Employment Equity and Diversity Unit,the Occupational. Health & Safety Unit or any other relevant support staff on campus to putin place workplace adjustments, if necessary, to assist with their disability.

25. On 2 May 2011, Ms Wright discussed Mr Mendis alleged disability with him, and asked himwhether the University could provide him with support in respect of his alleged disability.Again, on 19 May 2011, when Ms Wright informed Mr Mendis of the outcome of the internalinvestigation, she asked Mr Mendis whether he required any support. Mr Mendis' responseto Ms Wright was that 'he could manage himself as he had done so for the last decade onhis own.'

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26. It appears from Mr Mendis' Complaint that he has recovered from his alleged disability ("[oJnan outpatient consultation w ith D r. G arvey in J an 2004 he suggested that I'd m ade a fullyrecovery") and that the environment at the University does not affect his health ("[mJyemployment at UOW here in A ustra lia ... is NOT an environment that w ould conduce poormenta l h ea lth , in my partic ula r case ... I fin d my work fulf il ling.'?

Conciliation27. We confirm that the University would welcome the opportunity to attend a conciliationconference with Mr Mendis with a view to reaching a mutually agreeable resolution to theComplaint. We would however request that the Board remind Mr Mendis that the Universityexpects that Mr Mendis will observe the strict confidentiality requirements of conciliation

under the Act.28. Ms Lynne Wright, Director Employment, Equity and Diversity and Ms Lisa Ucles, Manager,

Staff Services, of the University will attend the conciliation scheduled for Wednesday 13 July2011.

Please call Darren Gardner of this firm on 02 8223 4103 should you wish to discuss any aspect of thisletter ..Yours faithfully

Darren GardnerPartnerAccredited specialist - employment and industrial law

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