Bree v Lupevo Pty Ltd trading as Ampol Nabiac

[2001] NSWADT 106

CITATION:	Bree -v- Lupevo Pty Ltd trading as Ampol Nabiac [2001] NSWADT 106
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Roxford Bree RESPONDENT Lupevo Pty Limited trading as Ampol Nabiac
FILE NUMBER:	001051
HEARING DATES:	13/0/6/2001
SUBMISSIONS CLOSED:	05/11/2001
DATE OF DECISION:	06/13/2001
BEFORE:	Bell N - Judicial Member; Clayton S - Member; Silva A - Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance - Joinder of parties - Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Industrial Relations Act 1988 (Cth) Workplace Ralations Act 1996 (Cth)
CASES CITED:
REPRESENTATION:	APPLICANT D Fryatt, solicitor RESPONDENT B Baker, solicitor
ORDERS:	1 The Tribunal directs that notice in writing pursuant to section 98(2) of the A D Act be given by the Registry of the Tribunal to Mr David Clarke and to Mrs Tonya Clarke that they are each joined as Respondents to this application.; 2 The Tribunal dismisses the application by the Respondent under section 111 of the A D Act.; 3 The Tribunal directs that the application be listed for further case conference following the service by the Registry of the notice under section 98(2) of the A D Act.

1 The complaint by Mr Roxford Bree referred to the Tribunal on 20 September 2000 by the President of the Anti-Discrimination Board (“the Board”) concerns alleged sex discrimination in the area of employment and victimization. Very briefly, Mr Bree’s allegations are that the Respondent instituted and acted on a policy that male employees not be permitted to wear earrings to work. The place of employment of the Applicant was a service station. Mr Bree alleges that because of his refusal to abide by this alleged policy he was dismissed by the Respondent. The Respondent to the complaint, as named by the Board, Lupevo Pty. Ltd trading as Ampol Nabiac, has applied to the tribunal to dismiss the complaint pursuant to section 111 of the Anti-Discrimination Act 1977 (“the A D Act”).

2 Section 111(1) of the A D Act provides:

111 Tribunal may dismiss frivolous etc complaints

1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

3 The Respondent, through its legal representative, Mr Baker, put two main submissions in support of its application to have the application by Mr Bree dismissed. Those submissions may be summarized as follows:

1.The Tribunal has no jurisdiction to determine the application by Mr Bree because the same issue has been the subject of an order in the Australian Industrial Relations Commission (“the AIRC”);and
2. Lupevo Pty. Ltd. trading as Ampol Nabiac was not the employer of the Applicant.

Jurisdiction

4 It is common ground that a claim was made by Mr Bree to the AIRC on 29 October 1996 for “Alleged unlawful termination of employment”. The claim was referred to a conciliation conference before Commissioner Wilks on 18 December 1996. On that day an agreement was reached between the parties. Two relevant terms of the agreement were for the payment of a sum of money to the applicant by the named employers, David Clarence Clark and Tonya Ann Clark trading as Ampol Nabiac, and the execution of a deed of release between Mr Bree and Mr and Mrs Clarke.

5 It is also common ground that the deed was never signed by Mr Bree and the money was never paid to Mr Bree by Mr and Mrs Clarke. The AIRC claim by Mr Bree has progressed no further.

6 The Tribunal has before it, as an attachment to the Report of the President of the Board, a copy of a memorandum dated 18 December 1996 from Commissioner Wilks of the AIRC to the Deputy Industrial Registrar, Sydney of the AIRC which, in relation to the proceedings called “Bree v Ampol Nabiac U No. 23943 of 1996”, says only:

The above matter is settled. It was not practicable to require the parties to reduce the terms of settlement to writing.

7 The Respondent tendered into evidence two letters written by its legal representative to the AIRC dated 20 March 2001 and 3 May 2001 seeking certification for the purposes of s.103 of the Industrial Relations Act 1988 (now the Workplace Relations Act 1996) which provided in part:

Completion of Conciliation Proceeding

1) A conciliation proceeding before a member of the Commission shall be regarded as completed when:
a) the parties have reached agreement for the settlement of the whole of the industrial dispute and the agreement has been certified under Division 4 of Part VIB; or…

8 No reply to this correspondence had been received by the Respondent at the time of the hearing.

9 The Respondent argued first that the Applicant has a claim on foot in the AIRC and that, as a Commonwealth Commission, it has “precedence” over a state tribunal and that, given there is a pending matter in a Commonwealth jurisdiction, this Tribunal has no jurisdiction to hear and determine Mr Bree’s application. In the alternative, the Respondent argued that if the claim in the AIRC is concluded, any claim made after that is subject to the decision of the Commission.

10 The Respondent also argued that Mr Bree has not come to this Tribunal with “clean hands” in that he did not advise the AIRC of his complaint to the Board and did not advise the Board of his claim to the AIRC. The Respondent made much of Mr Bree’s failure to mention the earring in his claim to the AIRC and submitted that this indicated some “duplicity” on his part.

11 The Tribunal notes that Mr Bree, in his Application to the AIRC (an extract from which was tendered into evidence by the Respondent), in answer to the request on that application form for a “brief summary of the reasons given for termination” stated:

With regards to “other” my feelings are that my former employer should not be allowed to treat employees as he does, he either makes people feel scared and insignificant, or just ignores them totally. Most of his employees just take it. Others speak up. To date I think I am alone. If interviews (confidential) were taken from other employees, I feel in doubt as to their feelings being of the same nature as mine. Maybe in different words, but a feeling of uselessness, nothingness and to under the thumb at all times. Also I think the fear of losing your job would be a significant factor. I did not want to lose my job, but it came to the point where I had no alternative as all I was doing was standing up for my rights.

12 Mr Bree complained to the Human Rights and Equal Opportunity Commission (and his complaint was later referred by that Commission to the Board) in the following terms:

Please find attached statement.(The statement details events and conversations on 11, 15, 17 and 21 October 1996) I would also like to add to the statement, the fact that accusations have been made towards me that are untrue. They were designed to allow my employer to sack me for a legitimate reason. This was done because they knew it was illegal to put me off for wearing an earring. I have lodged complaints with 2 other organizations for other problems with regard to the same employer. Please understand that this whole mess stems from the fact that I wished to wear an earring. Anything else is just a way for them to get around that problem.

13 The Tribunal also notes that in his complaint to the Human Rights and Equal Opportunity Commission, Mr Bree, in answer to a question on the complaint form as to other agencies he has complained to said “I have complained to Dept Ind Rel….”.

14 At the hearing, Mr Fryatt communicated with the Tribunal by telephone due to a misunderstanding as to the means by which the hearing was to be held. He was not accompanied by Mr Bree. The tribunal draws no adverse inference from Mr Bree’s absence.

15 Mr Fryatt, on Mr Bree’s behalf, argued that there are no proceedings currently before the AIRC, those proceedings having been settled. He acknowledged that an agreement had been reached but said that the deed which was a feature of that agreement had not been entered into nor had any moneys been paid. He argued that no order had been made by the AIRC and that there is therefore no bar to this Tribunal determining Mr Bree’s application.

16 Mr Fryatt also argued that the claim by Mr Bree under the A D Act is separate and distinct from his claim to the AIRC, in that in the AIRC Mr Bree sought, following alleged unlawful termination of employment, lost wages and some clothing that had been issued to him by his employer. By contrast, the application to this Tribunal concerns alleged discrimination on the grounds of sex and victimization. He submitted that there is therefore no duplication of relief sought.

17 The Tribunal noted a letter from Mr Bree’s legal representatives to the Respondent’s legal representatives dated 20 January 1997. The letter was tendered into evidence as an attachment to the Respondent’s submissions. In that letter objections to the Deed of Release submitted by the Respondent to the AIRC claim to Mr Bree were outlined. Relevantly, the letter states:

We agree that the paragraphs marked 1 and 2 are an accurate representation of the agreement between the parties. However, it is our Mr Hutchison’s recollection that the Deed of Release was specifically only relating to any claim our client had under the Industrial Relations Act (Cth). Accordingly, the Deed will need to be redrafted excluding, on the second page of the Deed, the words “all claims for damages” to “workers compensation” and replace this with “claims for relief under the Industrial Relations Act 1988, wages, overtime, holiday leave and leave loading”.

18 The Tribunal concludes, on the basis of this letter, that Mr Bree, through his legal representatives, was concerned to avoid “giving away” his rights beyond those relevant to the industrial relations jurisdiction.

19 Mr Fryatt argued that the proceedings in the AIRC have simply “gone nowhere”, after the settlement that was reached became “defective”. In particular, he argued, no order has been made by the AIRC, Commissioner Wilks having simply advised the Registrar, Sydney of the AIRC, after a conciliation conference, that the matter is settled.

20 The Tribunal is conscious of the need to maintain comity with other tribunals and commissions. In particular section 95A of the A D Act provides:

95A

1. An issue that is the subject of proceedings before the Industrial Relations Commission may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.
2. This section does not affect the operation of section 107 in relation to evidence given before, or findings made by, the Industrial Relations Commission.

21 The Act provides no definition of the words “Industrial Relations Commission” and so it is not clear whether it is the New South Wales or Australian Industrial Relations Commission that is referred to in section 95A. However, the general intention of the provision is clear: the Tribunal should have regard to proceedings in the industrial relations jurisdiction on the same issue before deciding to grant leave to proceed in relation to that issue in this Tribunal. The provision creates no bar to concurrent prosecution in both jurisdictions but simply requires consideration by the Tribunal of whether leave should be granted for such concurrent prosecution to proceed.

22 On the evidence available to the Tribunal, it is not possible to reach a conclusion as to status of the proceedings in the AIRC. The characterization of the status of those proceedings in that jurisdiction is, in any event, properly a matter for the AIRC and the only evidence of such a characterization is Commissioner Wilk’s advice to the Registrar that the matter is settled.

23 The Respondent has argued on the one hand, that Mr Bree has been duplicitous by not making reference to the “earring” issue in his claim to the AIRC. On the other hand the Respondent has also argued that the issue raised before the AIRC and this Tribunal are the same.

24 Mr Bree’s complaint to the Human Rights and Equal Opportunity Commission and then to the Board centers on his employer’s actions in relation to his wearing of an earring and seeks to characterize those actions as unlawfully discriminatory. His claim to the AIRC makes no mention of this or of discrimination generally but instead asserts that his termination from employment was unlawful for the reasons set out in his application to the AIRC (reproduced above). His refusal to sign the Deed of Release prepared by the respondent to the claim in the AIRC was based, as evidenced by his legal representatives’ letter of 20 January 1997, on a desire to protect his rights beyond those falling within the industrial relations jurisdiction.

25 The Tribunal concludes, on the basis of these findings, that Mr Bree’s complaint under the A D Act and his claim to the AIRC concern distinct and separate issues and are therefore open to concurrent prosecution. There is, in the Tribunal’s view, no bar to the Tribunal hearing and determining Mr Bree’s application.

26 It will, of course, be incumbent on the Tribunal, in the event of an award by it of compensation in respect of, for example, loss of wages, to take into account any amount of compensation recovered by Mr Bree in another jurisdiction in respect of the same head of damages.

Proper Respondent

27 On the issue of whether the correct Respondent has been named in these proceedings, Mr David Clarke gave evidence that the service station at which Mr Bree was employed, ie, Ampol Nabiac is not, and was not at the relevant time, owned by Lupevo Pty Ltd, which he described as a family company. His evidence was that the service station at Nabiac was owned and is still owned by a partnership between Mr David Clarke and Mrs Tonya Clarke. Mr Clarke stated that the employer of Mr Bree was the partnership of D C and T A Clarke, that is, himself and his wife. His evidence was also that Lupevo Pty. Ltd. was a guarantor for that partnership in arrangements for its purchase of the service station and that while he is now a Director of Lupevo Pty Ltd, he was not a Director of that company at the time of Mr Bree’s employment. Mr Clarke said that at that time the only directors of the company were his parents, Stanley Clarence Clarke and Alice Elizabeth Clarke.

28 Mr Clarke’s evidence was also that a letter to Mr Bree dated 17 October 1996 from Mr Clarke headed “Warning of Dismissal” and stating, among other things, that Mr Bree’s “continued wearing of a “Stud” in (his) ear is in breach of the company policy and grooming standards explained to you by two members of management on the 09/08/96 and provided to you in writing on the 11/10/96…”, was written on the following letterhead:

LUPEVO Pty Ltd

Trading as:

AMPOL FORSTER AMPOL NABIAC

29 Mr Clarke also confirmed that a document entitled “Job Description” relating to the position of “Sales, Console, Driveway Attendant” was on the same letterhead. He stated that the words “Lupevo Pty Ltd” appeared on the letterhead because Lupevo Pty Ltd was and is the owner of the service station at Forster and it was desired to use the same letterhead for both the service station at Nabiac and the service station at Forster.

30 Mr Fryatt, for Mr Bree, submitted that, given the use of the “LUPEVO Pty Ltd” letterhead by Mr Clarke to convey important employment information to Mr Bree, he was entitled to regard Lupevo Pty Ltd as his employer by virtue of the doctrine of implied or ostensible authority. In addition he submitted that, due to the familial relationship between the directors of the company at the relevant time and David Clarke, David Clarke had the express authority of the directors to bind the company.

31 The Tribunal notes that the correspondence from the Board in the President’s report to the respondent to Mr Bree’s complaint is addressed to “Mr David Clarke, Ampol Nabiac”. That correspondence asks, among other things, “Please state the name of Mr Bree’s legal employer”. This and other questions were not answered by Mr Clarke, whose legal representative replied to the Board that the matter had been finalized by way of settlement in the AIRC.

32 There is nothing in the President’s Report to indicate why the complaint referred to the Tribunal by the Board was referred as being against Lupevo Pty Ltd. Mr Fryatt was unable to offer any explanation of why this was so. It is interesting to note that it is not just Lupevo Pty Ltd that is named by the Board as the Respondent to Mr Bree’s complaint, but Lupevo Pty Ltd t/a Ampol Nabiac . As noted above the Board’s only correspondence to a respondent to Mr Bree’s complaint was addressed to “Mr David Clarke, Ampol Nabiac”.

33 Section 98 of the A D Act provides:
98 Joinder of Parties by the Tribunal
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.


34 The Tribunal canvassed the provisions of section 98 with the legal representatives of the parties and requested their submissions on whether the Tribunal should exercise the power conferred under that section.

35 Mr Baker, for Mr Clarke and Lupevo Pty Ltd, submitted that the complaint giving rise to this application was first made more than four years ago and that it is too long after the events concerned to join another party. He also argued that Mr Bree has been aware since 1996 that David Clarke was his employer. Finally, he submitted that any error by the Board is a matter for the Board to correct and is not a matter for the Tribunal to address.

36 Mr Fryatt, for Mr Bree, submitted that it is in the interests of justice that the Tribunal exercise its power under section 98 to join David Clarke and Tonya Clarke as respondents to the application. He noted that the original complaint by Mr Bree had been made against David Clarke and that given Mr Clarke’s close involvement with Lupevo Pty Ltd and his awareness of the complaint by Mr Bree, he would suffer no prejudice by being joined as a Respondent to the application before the Tribunal.

37 Given Mr Clarke’s statement that he, with his wife as partner, was Mr Bree’s employer at the relevant time, the particular relationship of Mr Clarke to the Respondent named by the Board and his consequent knowledge of Mr Bree’s complaint and involvement in the investigation of the complaint by the Board, the Tribunal is of the opinion that Mr David Clarke and Mrs Tonya Clarke should be joined as Respondents to the application.

38 The Tribunal directs that notice in writing pursuant to section 98(2) of the A D Act be given by the Registry of the Tribunal to Mr David Clarke and to Mrs Tonya Clarke that they are each joined as Respondents to this application.

39 The Tribunal dismisses the application by the Respondent under section 111 of the A D Act.

40 The Tribunal directs that the application be listed for further case conference following the service by the Registry of the notice under section 98(2) of the A D Act.