Employer vindicated for reasonable management action done reasonably

When extreme patience, kindness and truth defeats a thousand lies

Omila Bir v Secretary, Ministry of Health [2024] NSWCATAD 178

Bartier Perry successfully defended the NSW Health Secretary in a long running dispute caused by a Head of Department and union delegate at Western Sydney Local Health District (WSLHD). The case was reportedly one of the longest, if not the longest, discrimination trial before the NSW Civil and Administrative Tribunal (Tribunal).

Ms Omila Bir, former Department Head of Occupational Therapy at Cumberland Hospital had a sorry history of being combative and unpleasant towards those she called ‘management’. She often did so with false accusations of race discrimination and victimisation repeatedly over the years with successive different managers. Ms Bir was also the frequent subject of complaints made by her colleagues (which resulted in audits and investigation) because of Ms Bir’s frequent absences, poor time and attendance, inappropriate and aggressive communication and her less than courteous treatment of others. Ms Bir often chose to retaliate with hyperbolic and untrue claims of discrimination and victimisation. When faced with more serious disciplinary action, she lodged complaints under the Anti-Discrimination Act 1977 (NSW) (the Act) which eventually resulted in proceedings in the Tribunal.

Before the Tribunal, Ms Bir constructed her own narrative from obscure moments in time, repeated in thousands of pages of aggressive complaints. Her complaints when investigated were found not to be of any substance, but consequently hurt those falsely accused by her. Despite this, Ms Bir and her lawyers retold Ms Bir’s false narrative over close to 20 hearing days (including various interlocutory hearings). When her claims were subjected to the forensic rigours of litigation and cross-examination, the extent of Ms Bir’s lies and deceit were revealed.

Ms Bir had a careless habit of alleging that reasonable management action against her had ‘racist’ motivations. Ms Bir believed this was happening not because she was an unpleasant and unprofessional manager to her colleagues, but because of her skin colour (described by her as ‘brown’); her ethnicity (claimed by her as Punjabi from her parents), country of origin (India) and the fact that she had previously made discrimination complaints found not to be of any substance.

It mattered not to Ms Bir that one of her first managers who disciplined and counselled her was of a similar skin colour, ethnicity and national origin. Subsequent managers of different genders; skin tones, ethnicities and national origins suffered the same unfortunate fate of being accused by Ms Bir as racists.

In defending the proceedings, WSLHD was faced with the enormous task of demonstrating that Ms Bir’s extensive history of recurring baseless complaints, dating back to 2013, were made by her to distract, deter and intimidate those who were patiently, carefully and reasonably performance managing her.

Sadly, as is often the case when performance managing those unprepared to accept responsibility for their own failings, it is the managers in an organisation who are the forgotten victims. The trial process fortunately found those managers who had unsuccessfully tried to counsel and assist Ms Bir to improve her communication skills and unprofessional behaviour, to be totally innocent of Ms Bir’s unrelenting false claims of discrimination and victimisation.

The Tribunal’s judgment in Bir v Secretary, Ministry of Health [2024] NSWCATAD 178, was total vindication for WSLHD and its management. Reasonable management was found to be lawful and reasonable.

The decision also highlights several key lessons for practitioners and parties in discrimination cases. While unlawful discrimination is too easily and loosely alleged, it is rarely pleaded properly to address the actual statutory requirements – which is precisely what happened in this case despite legal representation.

Coincidence does not equal causation!

The Tribunal rightly recognised in Bir that the onus is on the applicant in discrimination proceedings to prove their case. This basic proposition appeared to escape Ms Bir and her legal representatives.

There must also be a causal connection between the impugned act and the prohibited ground, as opposed to a mere belief that there was a discriminatory course of conduct.

The approach taken by Ms Bir was the approach often taken by discrimination plaintiffs – the ‘I am – therefore it all is’ approach. As was found in another successful Bartier Perry defence case of Paramasivam v University of New South Wales [2007] FCA 875 (upheld on appeal in Paramasivam v University of New South Wales [2007] FCAFC 176), it is not sufficient for a plaintiff to merely believe that because they are of a particular race, skin colour, ethnicity or national origin, that all perceived treatment of them is actuated by these factors.

While Ms Bir’s evidence spanned thousands of pages, her case erupted from one innocent comment made during a senior management discussion about a complaint she had made against a junior clinician. Ms Bir was simply asked: “Does Rajinder come to your office?” This question was apparently the most racist comment Ms Bir had ever heard.

Hard to believe, but true, Ms Bir then sought to construct an elaborate case of racial discrimination by way of inference, such as the inferred association between herself and a work colleague (someone also from India) and assumed less favourable connotations. She did so ignoring entirely innocent and more logical explanations – such as her colleague Rajinder who was an employee would be reasonably expected to visit Ms Bir’s office.

An important lesson, particularly in the complicated space of anti-discrimination legislation – is that coincidence does not equal causation!

A pleading for decent pleadings

Ms Bir had the benefit of both a solicitor and counsel advising and representing her during the hearing. Her pleaded case however lacked clarity and specificity. This was problematic for Ms Bir, as the Tribunal quite rightly expected better quality pleadings from her qualified legal representation. It was found that:

1. The lack of specificity in her pleadings made it challenging to determine what evidence was relevant.

2. A lack of sufficient particularisation failed to tie the allegations to the statutory elements required to be proven.

3. Conduct was generally alleged to be unlawful discrimination or victimisation without even identifying whether it was alleged to be direct or indirect discrimination.

4. Related to the above issues, a comparator was not sufficiently defined. A comparator is required for a Court or Tribunal to determine whether less favourable treatment has occurred because of the protected attribute (something required to demonstrate unlawful discrimination). A comparator whether real or a hypothetical person, must be pleaded to demonstrate alleged less favourable treatment​.

The Tribunal found that the global approach taken by Ms Bir (and often found in lazy pleadings) especially problematic. As Senior Member Dinnen explained:

A consequence of this broad-brush approach to the pleadings was that, during the hearing, it was difficult to ascertain exactly what evidence was or was not relevant, as the allegations…lacked specificity and sufficient particularisation tying them to the elements of discrimination contraventions, which were not expressly referenced.

and

This made the Tribunal’s task in determining what exactly was alleged, what evidence supported the allegation, and how exactly that alleged conduct contravened the Act, considerably more difficult than necessary.

It is often not understood that unlawful discrimination is not concerned with perceived feelings of unfairness or victimhood of individuals. It is also not sufficient for a person to merely believe conduct to be related to their colour, ethnicity, country of origin or other protected attribute.

Ms Bir was her own worst witness

Ms Bir was found to be a very unsatisfactory witness. Under the spotlight of cross-examination, she was found to have altered documents she was relying on in her case. This included leaving out transcript pages.

Her “capacity to file altered documentary evidence to misrepresent the truth” were “retrospective and self-serving exaggeration[s]”.

Ms Bir even involved her own son, Sahir Bir, in her lies. After a thorough cross-examination, it was revealed that he had tampered with mobile phone evidence by submitting altered text messages, where sections had been digitally deleted.

All of the employer’s witnesses were preferred as tellers of truth.

Despite what the Tribunal described as “sometimes facetious and repetitive questioning” in cross examination by Ms Bir’s counsel, the actions and decisions made by WSLHD managers falsely accused by Ms Bir was found to be entirely lawful and reasonable.

In the end, the evidence of WSLHD’s witnesses was wholly accepted and preferred by the Tribunal where it conflicted with the evidence of Ms Bir.

Not only was WLSHD management action lawful, reasonable and necessary, but their collective patience, kindness and truth ultimately defeated a thousand lies.

Conclusion

The Tribunal’s decision in Bir is also a timely reminder to be fair but firm when dealing with querulent and vindictive serial workplace complainers.

When serious allegations are made, such as racial discrimination and victimisation, gaining the benefit of expert legal guidance early is vital.

The Bir case outcome also proves that when all reasonable efforts to resolve a dispute are rejected by the unreasonable, there is no substitute for a thoughtful litigation strategy executed with confidence and experience. Forensically rigorous trial preparation and measured court advocacy can ultimately prevail in the justice system to vindicate lawful and reasonable employer action.

Bartier Perry’s Workplace Law and Culture team, with accredited specialists in employment and industrial law, have a proven track record and experience to successfully defend the most complex and challenging cases of alleged unlawful workplace conduct.

Authors: Darren Gardner, Andrew Yahl & Hannah Lawson