A question of evidence

A pharmacy owner has launched a case alleging a licensing authority discriminated against him based on race “on a number of occasions”

Pharmacist Essam Bekhit has initiated proceedings against the Victorian Pharmacy Authority claiming a breach of the Equal Opportunity Act 2010.

Mr Bekhit alleges the Authority discriminated against him on a number of occasions when it was undertaking its role in carrying out investigations, as a result of him opening new premises.

The first of these allegations relates to investigations carried out by a representative of the Authority on two occasions.

Mr Bekhit asserts that the Authority imposed additional requirements with no legislative basis during these investigations.

For example, the inspection report included a requirement to increase the range of “approved” dispensing measures.

There was also a requirement to have “operating instructions” for scales, referring to “warm-up times before use”, which was brought up at the second inspection but not in the first.

Counsel for Mr Bekhit argues that there are no legislative or policy requirements for these measures.

Another claim of discrimination alleges that Mr Bekhit was not allowed to have his say at a panel hearing conducted in July 2017.

Further, he alleges an act of indirect discrimination occurred when a senior pharmacist refused to deal with his complaint about the investigator.

Meanwhile, the Victorian Pharmacy Authority has moved to quash the proceedings, applying for an order for summary dismissal.

Counsel for the Authority explained that as part of the inspection and reporting process, two items identified in the first investigation were mistakenly not included in the first inspection report, and this was the reason that the second investigation took place.

It was pointed out that Mr Bekhit ultimately complied with all the issues raised, and so it was difficult to now assert that some of the issues were outside legal requirements.

The Authority also argued that there was no direct discrimination, as the evidence could not substantiate that the applicant was treat unfavourably or if there was unfavourable treatment motivated by the applicant’s race.

Mr Bekhit’s solicitor countered that evidence will be called to substantiate the claim that the he was “held to a higher standard”, in contravention of the Equal Opportunity Act, “as he asserts that such actions were as a result of his ethnic background”.

The Victorian Civil and Administrative Tribunal (Human Rights Division) pointed out that Mr Bekhit does not have to prove his attributes (in this case, race) are the sole reason for any unfavourable treatment, just to show that it was a substantial reason.

Motive is also irrelevant, said the Tribunal.

Under law, a proceeding may be summarily dismissed if it is found to be “frivolous, vexatious, misconceived or lacking in substance; or is otherwise an abuse of process.”

However the Tribunal argued that in light of the claims, the allegations raises issues that “potentially could constitute discrimination”.

“This is a question of evidence and I am reluctant to dismiss any part of the claim where there is the slightest possibility that it could be proven once evidence is called,” said Tribunal member Robert Phillips, ruling that Mr Bekhit could continue with his discrimination case.

“I am not satisfied that the applicant’s case is so hopeless that it should be struck out without further evidence and submissions to the law,” said Mr Phillips.

“I am required to consider his application at its highest and questions remain in relation to whether the respondent has or has not discriminated against him in the instances alleged.”

The Authority’s summary dismissal application was dismissed, with the matter to be listed for a further hearing.

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