Borg v Commissioner, Department of Corrective Services

[2000] NSWADT 118

CITATION:	Borg -v- Commissioner, Department of Corrective Services [2000] NSWADT 118
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Josephine Borg RESPONDENT Commissioner, Department of Corrective Services
FILE NUMBER:	001008
HEARING DATES:	03/07/2000
SUBMISSIONS CLOSED:	07/03/2000
DATE OF DECISION:	08/29/2000
BEFORE:	Goode P - Judicial Member; Nemeth de Bikal L - Member; Luger M - Member
APPLICATION:	Joinder of parties
MATTER FOR DECISION:	Application to join respondent to proceedings
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Hughes -v- Bowral Cooperative Trading Limited & Ors (1997) NSW EOT 24 April 1998
REPRESENTATION:	APPLICANT A McEvoy, barrister RESPONDENT N Yetzotis, solicitor PETER WHEELER-SMITH L Gowing, solicitor
ORDERS:	1. That Peter Wheeler-Smith be joined as a respondent to the proceedings ; 2. That the Applicant, by 2 October 2000, file with the Registry and serve on each of the Respondents Points of Claim, Statements of Evidence and copies of documents that the Applicant intends to rely on in addition to the material contained in the Report of the President of the Anti-Discrimination Board ("the President’s Report") ; 3. That each of the Respondents, by 13 November 2000, file with the Registry and serve on the Applicant Points of Defence, Statements of Evidence and copies of documents that each Respondent intends to rely on in addition to the material contained in the President’s Report ; 4. That the Applicant, by 27 November 2000, file with the Registry and serve on each of the Respondents any material in reply.

Introduction

1 This is an application to join Mr Peter Wheeler-Smith as a respondent to the proceedings pursuant to s.98 of the Anti-Discrimination Act, 1977 (“the Act”) and/or s.67 of the Administrative Decisions Tribunal Act, 1997 (“the ADT Act”).

2 It is opposed by Mr Wheeler-Smith. The First Respondent (“the Department”) does not oppose the application and concedes that it would be “preferable” for Mr Wheeler-Smith to be joined as a respondent to the proceedings.

3 The Applicant, Mr Borg, maintains that Mr Wheeler-Smith is integral to her complaint in that he was personally responsible for the various acts of discrimination committed against her during the course of her employment with the Department.

4 Mr Wheeler-Smith opposes the joinder application on a number of bases. His solicitor, Ms Gowing, submits that substantial prejudice would be occasioned to him as a result of the following:

(1) The expiration of some two and a half years since Ms Borg first complained to the Department about the matter in December 1997.
(2) The fact that Mr Wheeler-Smith did not become aware of Ms Borg’s complaint to the Anti-Discrimination Board (“the Board”) until 4 June 2000.
(3) The failure of Ms Borg to ask the Board to join Mr Wheeler-Smith as a respondent.
(4) The failure of the Board to join Mr Wheeler-Smith as a respondent of its own volition.
(5) The fact that Mr Wheeler-Smith was never part of the investigation and conciliation processes conducted by the Board.

5 Ms Gowing also submits that it would be unfair to Mr Wheeler-Smith to require him to incur the expense of a lengthy hearing, particularly in circumstances where the complaint against him is far narrower than that against the Department.

Background to the Complaint

6 Ms Borg is of Maltese origin. She currently works as a Correctional Officer with the Department, having commenced employment on 19 December 1988. On 11 February 1999 she lodged a complaint with the Board alleging that she had been discriminated against on the grounds of race and sex and victimised as a consequence. She nominated Mr Wheeler-Smith as the person who had made racist remarks to her and sexually harassed her.

7 Her complaint was lodged outside the 6 month period specified in s.88(3) of the Act. However, good cause having been shown for the delay, the President exercised his discretion to accept the complaint out of time pursuant to s.88(4) of the Act.

8 Before complaining to the Board on 18 December 1997, Ms Borg made a formal complaint in writing to the Department about Mr Wheeler-Smith’s conduct towards her. She alleged that he had made racist remarks to her and that he had, in effect, also sexually harassed her.

9 Shortly after receiving Ms Borg’s complaint, the Department advised Mr Wheeler-Smith of Mr Borg’s allegations. However, Ms Borg was not interviewed about the complaint until March 1998.

10 Consequently, at the discretion of Senior Assistant Commissioner Woodham, Mr Wheeler-Smith was transferred out of Mulawa Correctional Centre (where Ms Borg worked at the time of the alleged discrimination) and charged with two breaches of discipline.

11 At her request, Ms Borg was seconded to John Morony Correctional Centre on 15 May 1998.

12 In the course of inquiring into the alleged breaches of discipline, Mr Woodham arranged for Ms Borg to be interviewed by the Governor of John Morony Correctional Centre about her allegations of discrimination against Mr Wheeler-Smith. This interview did not take place until 18 August 1998.

13 Ms Borg subsequently met with Mr Woodham and the Superintendent of the Women’s Operational Support Program, Ms Vassallo, to discuss her outstanding concerns in relation to her complaint.

14 On 11 November 1998, she advised Ms Vassallo that in order for her complaint to be resolved, the following matters needed to be addressed:

(1) That Mr Wheeler-Smith be dismissed and/or punished.
(2) That she be promoted to the position of Senior Correctional Officer.
(3) That she remain at John Morony Correctional Centre.
(4) That an assurance be given to her that she not be victimised again by the Department.

15 The significance of point 14(2) above is that Ms Borg maintains that she was unsuccessful in securing a promotion to the position of Senior Correctional Officer (which she had applied for in December 1997) for the sole reason that she had made a discrimination complaint.

16 For reasons which the Department maintains were beyond its control (including the fact that Mr Wheeler-Smith had been on leave for lengthy periods of time) the result of Mr Woodham’s inquiries were not formally communicated to Ms Borg until 25 March 1999, over a month after she had lodged her complaint with the Board. The formal advice disclosed that the two disciplinary charges against Mr Wheeler-Smith had been substantiated and that as a consequence, he had received a formal reprimand and been advised to attend a one day harassment prevention seminar conducted by the Board.

Investigation of Complaint by the Board

17 In the course of investigating Ms Borg’s allegations of discrimination and victimisation, the Board held a conciliation conference between the Department and Ms Borg sometime in 1999. The parties were unable to conciliate the complaint.

18 It is common ground that Mr Wheeler-Smith was not involved in the President’s investigation and conciliation processes. No reason was given to us for his complete lack of involvement. Indeed, Mr Wheeler-Smith maintains that he did not become aware of Ms Borg’s complaint to the Board until 4 June 2000. There is no material to contradict this.

19 Mr Yetzotis informed us that prior to the holding of the conciliation conference, an officer of the Board had expressly told him that the Board did not intend to join Mr Wheeler-Smith as a respondent. Mr Yetzotis said no reasons were given and he did not press for any.

20 The Board’s decision not to join Mr Wheeler-Smith as a respondent is a puzzling one, particularly in circumstances where the Department had informed the Board, by letter of 6 August 1999, that it had received advice that Mr Wheeler-Smith was the proper respondent to Ms Borg’s allegations of discrimination as the Department had not authorised him to commit the acts in question.

Relevant Legislation

21 The Tribunal’s power to join a person as a party to any proceedings before it are set out in s.98 of the Act and s.67 of the ADT Act, 1997.

22 Section 98 of the Act

Section 98 of the Act provides:

(1) Where, before the holding of an inquiry, or at any stage during the holding of an inquiry, the Tribunal is of the opinion that a person ought to be joined as a party to the inquiry, it may, by notice in writing given to that person, join that person as a party to the inquiry.

(2) If a person is joined as a party to the inquiry as a complainant or respondent, the person is for the purposes of this Part taken to be a complainant or respondent (as appropriate) in relation to the complaint concerned.

23 If Mr Wheeler-Smith is joined pursuant to s.98 of the Act, he is deemed to be a party to the proceedings under s.67(1)(d) of the ADT Act. In accordance with that provision, a party to the Tribunal’s proceedings is deemed to be any person specified by or under any enactment as a party to the proceedings.

24 The clear import of s.98 is that a person who is joined as a party to any proceedings before the Tribunal is deemed to be either a complainant or a respondent (whichever is appropriate) in relation to the particular complaint. A person can, therefore, be joined as a respondent after a complaint has been referred to the Tribunal and without any need for the person to have been a respondent during the processes of investigation and conciliation conducted by the Board.

25 By making provision for a person to be joined in this way, the Act does not require the Applicant to lodge a fresh complaint. This is because a person joined by the Tribunal as a respondent becomes a respondent to the existing complaint : see Hughes –v– Bowral Cooperative Trading Limited & Ors (1997) NSW EOT 24 April 1998.

26 Section 98 of the Act confers a discretion on the Tribunal to join a person as a party to any proceedings, provided it is satisfied that it is appropriate to do so. The Act does not specify what factors should be taken into account in the exercise of this discretion. However, the Tribunal accepts that it is relevant to inquire whether substantial prejudice and procedural unfairness would be occasioned to a person as a consequence of joining him (or her) as a respondent.

27 In submitting that substantial prejudice would be occasioned to Mr Wheeler-Smith, Ms Gowing relies on the matters set out in paragraph 4 above.

28 The time lapse of 2½ years between December 1997 (the end of the period of alleged discriminatory conduct on the part of Mr Wheeler-Smith) and 4 June 2000 (when Mr Wheeler-Smith was advised of the joinder application) is significant, particularly when contrasted with the statutory period of six months for lodging the initial complaint with the Board (s.88(3) of the Act).

29 However, while Mr Wheeler-Smith may not have been aware of the full extent of Ms Borg’s allegations, it is clear that he was aware of their general nature well before June 2000. Further, nothing was put to us to show that the substantial lapse of time would create real difficulties for him in the preparation and conduct of his case. For example, there is no material before us to suggest that important witnesses are no longer available or that significant documentation has been destroyed.

30 Ms Gowing also submits that because Ms Borg was legally represented at the time her complaint was being investigated by the Board, she had every opportunity to request that Mr Wheeler-Smith be joined as a respondent at that time. We do not consider that there is any responsibility on the part of anyone who has lodged a complaint with the Board to subsequently ensure that all relevant persons are joined by the Board as respondents to the complaint.

31 As mentioned earlier in paragraph 20, it is difficult to see why the Board did not join Mr Wheeler-Smith as a respondent. Whatever be the reason, the relevant consideration in relation to the present application is whether this has occasioned Mr Wheeler-Smith substantial prejudice. We find that it has not.

32 In relation to Ms Gowing’s submission that Mr Wheeler-Smith has been denied the opportunity to participate in a conciliation conference convened by the Board pursuant to s.92 of the Act, we note that a mediation conference convened by the Tribunal is available to the parties at any time prior to the conclusion of the Tribunal’s proceedings. The fact that the parties appear to have become entrenched in their positions does not preclude the complaint from being successfully mediated.

33 The remaining point relied on by Ms Gowing is that procedural unfairness would be occasioned to Mr Wheeler-Smith as a consequence of requiring him to participate in a lengthy hearing where the issues against him are far narrower than those against the Department. We do not accept this submission and consider that aside from the victimisation allegations which are confined to the Department, the issues arising out of Ms Borg’s claims of discrimination are substantially relevant to both Mr Wheeler-Smith and the Department. Indeed, we are satisfied that Mr Wheeler-Smith is an integral part of the complaint.

34 In relation to the allegations of sexual harassment, we note that the Act was amended on 4 July 1997 to expressly include sexual harassment as a ground of unlawful conduct (see ss.22A and 22B). Prior to the amendments, sexual harassment was caught by the sex discrimination provisions of the Act (see ss.24 and 25).

35 In the present case, the allegations of sexual harassment arose both prior to and after 4 July 1997. In relation to those allegations which arose after 4 July 1997, it appears that Mr Wheeler-Smith could be personally liable under s.22B(2) without there being a corresponding requirement to find the Department liable.

36 Admittedly, there is an additional claim of victimisation against the Department but we do not consider that the relevant issues associated with it are likely to significantly add to the hearing time of the discrimination claim involving Mr Wheeler-Smith.

37 Taking into account all the relevant considerations, we are satisfied that Mr Wheeler-Smith should be joined as a respondent to the proceedings pursuant to s.98 of the Act.

38 Section 67 of the ADT Act

Section 67(4) of the ADT Act provides:

“The Tribunal may, by order, make a person who is not a party to proceedings for an original decision or review of a reviewable decision a party to the proceedings, either of its own motion or on the written application of the person, if it is satisfied that the interests of the person are likely to be affected by the original decision (or are affected by the reviewable decision).”

39 Section 67(4) of the ADT Act clearly confers a discretion on the Tribunal to make a person a party to any proceedings provided it is satisfied that the interests of the person are likely to be affected by the original decision. “Original decision” is defined in s.7 of the ADT Act as a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision maker. An example of the original jurisdiction of the Tribunal is that which it exercises under Part 7A of the Act.

40 The scope of s.67 (4) is not entirely clear since the expression, “interests . . . . likely to be affected”, is not defined anywhere in the ADT Act.

41 Given that Mr Wheeler-Smith is not wishing to be made a party to the proceedings, any order made by the Tribunal under s.67(4) must be made of the Tribunal’s own motion (albeit in response to Ms Borg’s application).

42 No submissions were put to us by Ms Gowing, Mr McEvoy or Mr Yetzotis in relation to the scope and intent of s.67(4). While it may well be that Mr Wheeler-Smith’s interests are likely to be affected by the conduct and outcome of the proceedings, in the circumstances of the present case (including our finding in relation to s.98 of the Act, the absence of legal argument on the point and the fact that Mr Wheeler-Smith does not wish to be joined as a party to the proceedings), we do not consider it either necessary or appropriate to determine this issue.

ORDERS

(1) That Peter Wheeler-Smith be joined as a respondent to the proceedings.

(2) That the Applicant, by 2 October 2000, file with the Registry and serve on each of the Respondents Points of Claim, Statements of Evidence and copies of documents that the Applicant intends to rely on in addition to the material contained in the Report of the President of the Anti-Discrimination Board (“the President’s Report”).

(3) That each of the Respondents, by 13 November 2000, file with the Registry and serve on the Applicant Points of Defence, Statements of Evidence and copies of documents that each Respondent intends to rely on in addition to the material contained in the President’s Report.

(4) That the Applicant, by 27 November 2000, file with the Registry and serve on each of the Respondents any material in reply.