Barbaro v Certegy Australia Pty Ltd No. Dcaat-03-204

BARBARO v CERTEGY AUSTRALIA PTY LTD
[2003] SADC 122
Judge Trenorden, Members Altman & Bachmann
Equal Opportunity Tribunal

Mr Paul Barbaro complained that he was dismissed from his employment with the respondent Certegy Australia Pty Ltd, on 1 August 2002, unlawfully and in contravention of the Equal Opportunity Act 1984.
Mr Barbaro’s complaint was referred to the Equal Opportunity Tribunal by the Commissioner for Equal Opportunity pursuant to section 95(18)(c) of the Equal Opportunity Act, after she had declined to recognise his complaint as one upon which action should be taken under the Act.
The particulars of the complaint as provided by the Commissioner, are as follows:
“That on or about 8 November 2002 (sic), Certegy Australia Pty Ltd discriminated against the said Mr Paul Barbaro, contrary to sections 29, 30, 66, 67 and 91 of the Equal Opportunity Act 1984 (SA)”.
The matter was listed before the Tribunal for argument as to whether the Tribunal should, pursuant to its powers under section 96(2)(b) of the Equal Opportunity Act, make an order dismissing the proceedings.
In essence, the argument of the respondent is that the complaint should not be permitted to proceed to hearing and determination by the Tribunal because:
·The complainant previously applied to the Australian Industrial Relations Commission (the Commission) for relief in respect of termination of employment under section 170CE of the Workplace Relations Act 1996 and the application was dismissed.
·In the hearing of the said application, the Senior Deputy President of the Commission made it clear that he would consider “the prohibited reasons specified in section 170CK (of the Workplace Relations Act)” in his deliberations as to whether there was a valid reason for the termination of the complainant’s employment.
·The complainant appealed against the dismissal by the Commission, to a full bench of the Commission, which appeal was dismissed on 29 April 2003.
·Section 170HB of the Workplace Relations Act disentitles a person who has taken proceedings under section 170CE of the Act to take proceedings for any other remedy, alleging that the termination was unlawful, under a law of the State.
·In the alternative the doctrine of res judicata and alternatively, issue estoppel, operate to preclude the complainant from further proceeding in this Tribunal.
The Equal Opportunity Act 1984
By its long title, the Equal Opportunity Act is an Act to promote the equality of opportunity between the citizens of South Australia and, inter alia, to prevent certain kinds of discrimination on particular bases.
The complainant alleges that he was treated unfavourably, in that he was dismissed on the ground of his sex and/or physical impairment, contrary to the Equal Opportunity Act.
Part III of the Equal Opportunity Act deals with the prohibition of discrimination on the ground of sex, sexuality, marital status and pregnancy. Section 30(2)(c), read in combination with section 29, provides that it is unlawful for an employer to discriminate against an employee by dismissing the employee by reason of his or her sex.
Part V of the Act deals with the prohibition of discrimination on the ground of impairment. “Impairment” includes physical impairment; see section 5(1) of the Act. Section 67(2), read in conjunction with section 66 of the Act, provides that it is unlawful for an employer to discriminate against an employee by dismissing him or her because of his or her physical impairment or past or presumed impairment.
The Equal Opportunity Act provides, in section 93, that a person aggrieved by an act alleged to be in contravention of the Equal Opportunity Act may make a complaint in writing to the Commissioner of Equal Opportunity. Upon lodgement of a complaint, the Commissioner may:
·investigate the complaint: section 94(1).
·decline to recognise the complaint if of the opinion that it is frivolous, vexatious, misconceived or lacking in substance: section 95(1).
·endeavour to resolve the matter by conciliation: section 95(3).
·refer the complaint to the Equal Opportunity Tribunal for hearing and determination where the Commissioner is of the opinion that the complaint cannot be resolved by conciliation, or has attempted to resolve the complaint by conciliation without success, or has declined to recognise the complaint and the complainant has within the specified time period, require the Commissioner to refer the complaint to the Tribunal: section 95(8).
The powers of the Tribunal with respect to a complaint which has been referred to it by the Commissioner, where the Tribunal determines that “the respondent in proceedings under (Part (8) of the Act) has acted in contravention of (the Equal Opportunity Act)”, include the following:
·The making of an order requiring the respondent to pay compensation to the complainant for loss or damage arising from the contravention.
·The making of an order requiring the respondent to refrain from further contravention of the Equal Opportunity Act.
·The making of an order requiring the respondent to perform specified acts in order to redress loss or damage arising from the contravention of the Act.
The Equal Opportunity Act does not address the situation before us; namely, that where a complainant whose complaint has been referred to the Tribunal, has earlier taken proceedings in respect of the termination of employment which is the substance of the complaint, in the Australian Industrial Relations Commission under the Workplace Relations Act.
Workplace Relations Act (Commonwealth) 1996
Part VI A, division 3 of the Workplace Relations Act deals with termination of employment. The principle object of the division is set out in section 170CA(1), as follows:
“(a)to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee’s employment in certain circumstances; and
(b)to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and
(c)to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and
(d)to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and
(e)by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivisions D and E, to assist in giving effect to the Termination of Employment Convention.”
Under section 170CE, an employee whose employment has been terminated may apply to the Commission for relief on the ground that the determination was harsh, unjust or unreasonable, or that there was an alleged contravention of, inter alia, section 170CK, or upon a combination of the “harsh, unjust or unreasonable” ground and a ground in section 170CK.
With certain exceptions that are not relevant here, an employer must not terminate an employee’s employment for a reason, or reasons which include the employee’s sex or physical disability. This is set out in section 170CK of the Workplace Relations Act, which section has as its object (in addition to the principle object set out in section 170CA), the making of:
“provisions that are intended to assist in giving effect to:
(a)the Convention concerning Discrimination in respect of Employment and Occupation, a copy of the English text of which is set out in Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986”.
Under section 170CP of the Workplace Relations Act an employee, subject to certain pre-conditions, may apply to the Federal Court of Australia for an order in respect of an alleged contravention of, inter alia, section 170CK.
If the Federal Court is satisfied that an employer has contravened section 170CK in relation to the termination of an employee’s employment, it may make orders, pursuant to section 170CR, as follows:
“(a) an order imposing on the employer a penalty of not more than $10,000;
(b)an order requiring the employer to reinstate the employee;
(c)subject to subsection (2), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate;
(d)any other order that the Court thinks necessary to remedy the effect of such a termination;
(e)any other consequential orders.”
Subdivision F of division 3 of part 6A of the Workplace Relations Act addresses “other rights relating to termination of employment”. Section 170HA is as follows:
“Subject only to the operation of sections 170HB and 170HC, the provisions of this Division are not intended to limit any rights that a person or trade union may have to appeal against termination of employment or to secure the making of awards or orders relating to termination of employment.”
Section 170HB of the Workplace Relations Act is as follows:
“(1)An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the prior proceedings) for a remedy in respect of that termination have been commenced by or on behalf of that employee:
(a)    under another provision of this Act; or
(b)    under another law of the Commonwealth; or
(c)    under a law of a State or Territory;
alleging that the termination was:
(d)    harsh, unjust or unreasonable (however described); or
(e)    unlawful;
for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.
(2)Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:
(a)    have been discontinued by the party who began the proceedings; or
(b)    have failed for want of jurisdiction.
(3)For the avoidance of doubt, a proceeding under this Act or any other law of the Commonwealth or under a law of a State or Territory seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation:
(a)    to give adequate notice of the termination; or
(b)    to provide a severance payment as a result of the termination; or
(c)    to provide any other entitlement payable as a result of the termination;
is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination.
(4)If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application:
(a)    is discontinued by the applicant; or
(b)    fails for want of jurisdiction.”
Section 170HC is in similar terms to section 170HB, but addresses itself to an application made under section 170CE in relation to a termination of employment which it is alleged, was in contravention of section 170CK.
The Facts
The facts, as they appear in the Decision of Senior Deputy President O’Callaghan of the Australian Industrial Relations Commission are as follows:
·Mr Barbaro’s employment was terminated on 1 August 2002.
·Mr Barbaro’s applied to the Commission under section 170CE of the Workplace Relations Act alleging that the termination of his employment was harsh, unjust or unreasonable.
·Mr Barbaro’s application was referred to a Commissioner for conciliation, but was not resolved.
·Following the unsuccessful conciliation, the Commissioner issued a certificate, presumably under section 170CF, on 30 September 2002.
·Following the unsuccessful conciliation Mr Barbaro elected to proceed to arbitration.
·Senior Deputy President O’Callaghan was the Commission arbitrator appointed to determine Mr Barbaro’s application.
·At the commencement of the arbitration hearing Mr Barbaro sought to vary the grounds upon which his application had been made, so as to include grounds under section 170CK.
·Senior Deputy President O’Callaghan refused Mr Barbaro’s application to amend the grounds of his section 170CE application.
·However, Senior Deputy President O’Callaghan stated in his reasons that he “made it absolutely clear to the parties that (he) would consider the prohibited reasons specified in section 170CK in (his) deliberations on whether there was a valid reason for the termination of Mr Barbaro’s employment.”
·Senior Deputy President O’Callaghan did not accept that there was any evidence to support Mr Barbaro’s proposition that his employment was terminated because of his gender.
·In addition, the Senior Deputy President was satisfied that none of the reasons set out in section 170CK(2), upon which an employee’s employment must not be terminated, applied to Mr Barbaro.
The decision of Senior Deputy President O’Callaghan was delivered on 20 January 2003. Subsequently, Mr Barbaro appealed this decision. The decision of a Full Bench of the Australian Industrial Relations Commission, upon appeal, was delivered on 29 April 2003. That decision refused to grant leave to appeal and dismissed the appeal.
Mr Barbaro’s complaint to the Commissioner for Equal Opportunity is dated 8 November 2002 and appears to have been lodged on 11 November 2002. That complaint was referred to this Tribunal by Notice of Referral dated 6 May 2003.
It is clear from the foregoing, that the application to the Australian Industrial Relations Commission pursuant to section 170CE of the Workplace Relations Act by Mr Barbaro was made approximately three months prior to Mr Barbaro’s complaint to the Commissioner for Equal Opportunity.
The Effect of Section 170HB Workplace Relations Act
In order for section 170HB of the Workplace Relations Act to apply, certain questions must be determined. They include:
·Whether making a complaint to the Commissioner for Equal Opportunity or asking the Commissioner to refer the complaint to the Equal Opportunity Tribunal, is “taking proceedings for a remedy in respect of the termination”.
We note that (section 96(1) Equal Opportunity Act) once a complaint has been referred to the Tribunal, it is described as “proceedings”: see sections 22, 23, 24, 26 and 27 and sections 96, 97, 98.
We are of the view that in the circumstances of this matter, Mr Barbaro’s complaint, once it was lodged in the Tribunal upon referral by the Commissioner for Equal Opportunity, became “proceedings for a remedy in respect of the termination of employment”.
We have arrived at that conclusion because the Equal Opportunity Act, in section 96 clearly sets out remedies that may be granted by order of the Tribunal (see above). If a complainant’s employment was terminated for a reason that is unlawful under the Equal Opportunity Act, the Tribunal has power to grant a remedy in respect of the termination. The complaint, once referred to the Tribunal, becomes proceedings in the Tribunal.
Mr Barbaro was an employee, or former employee, who commenced proceedings in respect of the termination of his employment. He commenced the proceedings in the Tribunal when the Commissioner for Equal Opportunity referred his complaint made under the Equal Opportunity Act to this Tribunal pursuant to section 95(8)(c), and his request.
The proceedings in this Tribunal have been commenced under a law of a State, namely an Act of the Parliament of the State of South Australia; the Equal Opportunity Act1984 (see generally: Re Colina; ex parte Torney (1994) 200 CLR 386 at [25]).
The proceedings in this Tribunal allege that the termination was unlawful, in that they alleged unlawful dismissal contrary to:
·section 30(2)(c) and section 29 of the Act; and
·section 67(2)(c) and section 66 of the Act.
We have concluded that the facts are as follows:
1.Mr Barbaro made an application under section 170CE of the Workplace Relations Act in relation to the termination of his employment on the ground that the termination was harsh, unjust or unreasonable, on 13 August 2002.
2.Between 8 November 2002 and 6 May 2003, Mr Barbaro sought to have proceedings instituted in the Equal Opportunity Tribunal for a remedy in respect of the termination of his employment under the Equal Opportunity Act.
3.The Equal Opportunity Act is a law of a State.
4.The proceedings in the Tribunal commenced on 7 May 2003 when a letter, the complaint, and the Notice of Referral were received in the Registry of the Equal Opportunity Tribunal, from the Commissioner for Equal Opportunity.
5.The remedy sought in respect of that alleged unlawful termination was initially an order for reinstatement, but as Mr Barbaro has most recently informed us, is:
(a) an order for compensation for:
(i)loss of future earnings; and
(ii)damage to reputation and humiliation;
(b) a penalty to be imposed on the respondent.
6.The proceedings in this Tribunal allege that the termination was unlawful by reason of discrimination on the grounds of sex and/or physical impairment, which reasons do not amount to a failure by the employer to provide a benefit to which Mr Barbaro was entitled on the termination.
7.The application made to the Australian Industrial Relations Commission under section 170CE by Mr Barbaro, was neither discontinued by him nor failed for want of jurisdiction.
Accordingly, it is our view that subsection 170HB(1) of the Workplace Relations Act would have applied to prevent Mr Barbaro from making an application under section 170CE of that Act, if the proceedings in this Tribunal had been instituted first. It follows that, the application by Mr Barbaro under section 170CE of the Workplace Relations Act having been neither discontinued nor failed for want of jurisdiction, Mr Barbaro is not entitled to continue with the proceedings in this Tribunal.
The respondent submitted in the alternative, relying on the authority of Miller v University of NSW [2002] FCA 882 (16 July 2002) and the authorities referred to therein, that Mr Barbaro’s proceedings in this Tribunal are barred by the doctrine of res judicata; or in the further alternative, issue estoppel.
In case we are in error in our decision with respect to the primary submission we will consider the alternative contention.
However, it appears to us that there is a further point of law of relevance, which was not argued (neither party were represented by a legal practitioner). The objects of the Workplace Relations Act (section 3) could be said to represent an intention on the part of the Commonwealth Parliament that the Act is to cover the field of employer–employee relations, including terminations, and that the object of section 170CK, in addition, evokes a parliamentary intention that the Act was enacted to implement the international obligation assumed by the Commonwealth under the Convention concerning Discrimination in respect of Employment and Occupation. An argument along these lines would suggest that, by force of section 109 of The Constitution of the Commonwealth of Australia, those parts of the Equal Opportunity Act that purport to address termination of an employee’s employment on discriminatory grounds, are invalid to the extent that they are inconsistent with the Workplace Relations Act, and therefore cannot be the basis of proceedings in this Tribunal, in relation to a termination alleged to have been made for reasons of sex and/or physical disability. This argument was not addressed, and we will take it no further, given our conclusion with respect to the force of section 170HB of the Workplace Relations Act.
Res Judicata

The question is whether the claim made in the proceedings in this Tribunal, namely unlawful termination on the grounds of (a) sex and (b) physical impairment, have already merged into judgment on the application instituted by Mr Barbaro under the Workplace Relations Act (see generally: Dixon J in Blair v Curran (1939) 62 CLR 464 at 532).
It was assumed by the respondent that the doctrine applies in respect of a decision of the Commission. As has been observed by Branson J in Miller v University of NSW (above), an arbitration in the Commission gives rise to a decision which determines legal rights between the parties and subject to any appeal to the Full Bench of the Commission, is final and binding (see section 170CH and section 170CI Workplace Relations Act). The decision upon arbitration is supported by full reasons and must be in writing (section 170JA). It follows from the nature of the Commission’s jurisdiction and powers, that the doctrines of res judicata and issue estoppel extend to decisions made by the Commission upon applications to it such as that made by Mr Barbaro: see The Administration of The Territory of Papua and New Guinea v Daero Guba (1973) 130 CLR 353 per Gibbs J at 453.
Mr Barbaro’s application to the Commission was made under section 170CE, by which it was necessary for him to establish that the termination was harsh, unjust or unreasonable; a contravention of section 170CK, 170CL, 170CM or 170CN; or fell into some combination of the two categories. His application was based on the grounds that the termination was harsh, unjust or unreasonable. Mr Barbaro later sought to amend, to include grounds in section 170CK, namely that his employment was terminated by reason of his sex and/or physical ability. The amendment was not allowed, but according to his decision, the Senior Deputy President of the Commission who arbitrated with respect to the application, heard evidence on these issues and decided, inter alia, that Mr Barbaro’s dismissal was not terminated for any reason prohibited by section 170CK, having made it clear to the parties that he “would consider the prohibited reason (sic) specified in section 170CK … on whether there was a valid reason for the termination of Mr Barbaro’s employment.”
It is an interesting question as to whether the cause of action based on the section 170CK grounds continues to have an independent existence. Mr Barbaro was unable to formally amend his application to the Commission but the Senior Deputy President took into account his claim on the grounds of sex and physical ability, as if the application had been amended. Upon appeal, the full bench of the Commission did not see fit to grant leave, and after canvassing the grounds of appeal, dismissed the appeal. This was the course Mr Barbaro took and accepted. If he had sought to argue section 170CK grounds from the outset, he would have had open to him the option of arguing that the dismissal was unlawful on these grounds in the Federal Court. He did not choose that path. He requested that his claim on the section 170CK grounds be dealt with by the Commission along with his claim that the termination was harsh, unjust and unreasonable, and it was. He must be bound by the course he has taken.
There is little difference between the grounds alleged under section 170CK of the Workplace Relations Act and those alleged under the Equal Opportunity Act. The ground of sex, is the same in both. The ground of physical ability under section 170CK is by its words, different from the ground of (discrimination on the ground of) physical impairment, under the Equal Opportunity Act. However, we consider that in practical terms, the grounds are the same.
The cause in the Commission was, inter alia, whether there had been an unlawful dismissal on ground that the dismissal was by reason of sex or physical ability (or both). The parties here are the same. The cause of action is the same as one of the causes dealt with finally by the Commission. The claims made in this Tribunal by Mr Barbaro, have already passed into judgment in the Commission and so the doctrine of res judicata would apply to prevent the continuation of proceedings in this Tribunal.
Conclusion
Given our conclusions above, with respect to the contention that the proceedings in this Tribunal are precluded by section 170HB(4) of the Workplace Relations Act and the alternative contention, based on the doctrine of res judicata, we do not need to consider this question further.
We order that the proceedings be dismissed.

[2003] SADC 122

5 September 2003