THE Equal Opportunity Tribunal (EOT) has dismissed a complaint of alleged discrimination by victimisation made against the North West Regional Health Authority (NWRHA) by one of its former senior managers.
On March 22, the tribunal’s chairman, Donna Prowell-Raphael, dismissed Simon Wiltshire’s complaint that he was discriminated against by the NWRHA, which failed to shortlist him for the position of chief operating officer (COO) because of his trade dispute against the authority for terminating his contract, after ten days, in the position.
Wiltshire complained that in June 2010, he worked for ten days as COO before his two-year contract was terminated. He challenged his dismissal in the Industrial Court and was awarded $708,000 in damages for the “harsh and oppressive” dismissal.
In 2017, he responded to an advertisement for the position of COO, but was not shortlisted. He contended his non-selection was because of the trade dispute and that he was discriminated against by way of victimisation.
In response, the NWRHA argued that Wiltshire’s complaint disclosed no grounds for bringing a complaint under the Equal Opportunity Act (EOA).
The EOT – comprising Prowell-Raphael and lay assessor Lenore Harris – had to determine whether the Industrial Relations Act was “relevant” law as provided for in the EOA.
The EOA is intended to provide remedies for specified discriminatory practices and creates a civil offence of discrimination by victimisation which occurs when a person is treated less favourably for engaging in activities such as bringing proceedings, giving evidence or information, making allegations against an alleged discriminator or doing anything under the EOA or any “'relevant law.”
The EOA defines “relevant law” as any written law dealing with the subject matter of discrimination.
In her ruling, Prowell-Raphael held that the IRA was not “relevant law” under the EOA.
She also held that Wiltshire did not meet the burden of proof to show discrimination by victimisatiion. She said the onus was on Wiltshire to establish that his qualifications were comparable to those of the shortlisted candidates and that his previous trade dispute influenced his non-selction, but he did not do so.
“Simply enumerating and evaluating his own expertise in his witness statement and asserting his suitability do not meet the burden of establishing that his qualifications were similar or analogous to those of the shortlisted candidates.
“Moreover, although the complainant contends that knowledge of the trade dispute could be inferred, there is notably no evidence to attribute knowledge of the complainant's trade dispute to the chairman at the time she made the shortlist, whether through systemic means or institutional knowledge, nor to demonstrate that such knowledge played a role in the decision-making process.”
Wiltshire was ordered to pay the NWRHA’s costs of $14,500.
Wiltshire testified at the hearing of the tribunal, as well as the NWRHA’s chairman Lisa Agard and its former CEO Salisha Baksh.
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