Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD)

[2005] NSWADTAP 40

Appeal Panel - Internal

CITATION:	Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40
PARTIES:	APPELLANT Sally Carter FIRST RESPONDENT Linuki Pty Ltd trading as Aussie Hire SECOND RESPONDENT Mike Fitzgerald
FILE NUMBER:	059001
HEARING DATES:	26/04/2005
SUBMISSIONS CLOSED:	04/26/2005
DATE OF DECISION:	08/22/2005
DECISION UNDER APPEAL:	Carter v Linuki Pty Ltd t/as Aussie Hire and Anor [2004] NSWADT 287
BEFORE:	Hennessy N - Magistrate (Deputy President); Grotte E - Judicial Member; Schembri A - Non Judicial Member
CATCHWORDS:	fail to exercise jurisdiction - leave to extend to the merits - opportunity to be heard - Sex discrimination - in work - statutory interpretation
MATTER FOR DECISION:	Principal Matter
FILE NUMBER UNDER APPEAL:	041008
DATE OF DECISION UNDER APPEAL:	12/15/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Interpretation Act 1987 Sex Discrimination Act 1984 (Cth)
CASES CITED:	Alexander v Home Office [1998] 1 WLR 968 Battenberg v The Union Club [2004] NSWADT 285 (9 December 2004) Commissioner for Australian Capital Territory State Revenue v Alphaphone (1994) 49FCR 576 Commissioner of Police, New South Wales Police Service -v- Orr (EOD) [2001] NSWADTAP 16 Commonwealth v Human Rights and Equal Opportunity Commission & Dopking & Anor (1993) 119 ALR 133 G v R & Department of Health, Housing & Community Services [1993] HREOCA 20 (17 September 1993) Horne & Anor v Press Clough Joint Venture (1994) EOC 92-591 McDonald v Puplick [1998] NSWSC 428 O’Callaghan v Loder [1983] 3 NSWLR 89 SRBB v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 1387 (28 November 2003) Turnbull v NSW Medical Board [1976] 2 NSWLR 281 Wilde v University of Sydney [2003] NSWADT 206 (2 September 2003) Zanella -v- Carroll's Auto Repairs Pty Ltd & anor [2001] NSWADT 220
REPRESENTATION:	APPELLANT R Francois, counsel FIRST & SECOND RESPONDENTS M Fitzgerald in person
ORDERS:	1. The Tribunal’s decision that it does not have jurisdiction to inquire into a complaint of sex discrimination in relation to Mr Fitzgerald not inviting Ms Carter to attend the Christmas party is set aside; 2. In substitution for that decision, the Appeal Panel finds that the Tribunal did have jurisdiction to inquire into that complaint; 3. Ms Carter’s complaint of sex discrimination as a result of not being made to feel welcome to attend the Christmas party is substantiated; 4. The respondents are jointly and severally liable to pay damages to Ms Carter in the sum of $500.00; 5. In all other respects, the Tribunal’s decision is affirmed; 6. Unless an application with supporting submissions is filed in the Tribunal within 28 days, there will be no order on the costs of the appeal. If any such application is filed, the opposing party's submissions must be filed within a further 28 days. In the absence of any request for a hearing, the matter will be determined 'on the papers', under s 76 of the Administrative Decisions Tribunal Act 1997

REASONS FOR DECISION

Introduction

1 Ms Carter has appealed against a decision of the Tribunal dismissing her complaint of sexual harassment and sex discrimination. She was employed as a secretary and accounts clerk by Aussie Hire, a firm which hires out building and industrial equipment. Mr Fitzgerald is a director of Linuki Pty Ltd which traded as Aussie Hire. The complaint relates to the attendance of a topless waitress at a Christmas Party held at work in December 2002. Ms Carter says that she was excluded from the party and that she felt disgusted and intimidated by the presence of a topless waitress, even though she did not attend the party or see the waitress. There was little direct evidence as to what took place at the party, but Ms Carter agreed, despite her impressions to the contrary, that all that happened was that the waitress served food and drinks to clients and other employees while topless and in lingerie. Ms Carter resigned from her employment that afternoon and has sought counselling in relation to the distress she felt at the time.

2 Ms Carter lodged a complaint with the President of the Anti-Discrimination Board under the Anti-Discrimination Act 1977 (the Act). The President referred the complaint to the Tribunal characterising it as a complaint of sexual harassment and sex discrimination. Prior to 1997, a person could only substantiate a complaint of sexual harassment if the conduct breached the provisions relating to sex discrimination. The sex discrimination provisions make it unlawful for an employer to discriminate against an employee on the ground of sex in relation to the terms and conditions which the employer affords to the employee. Sex discrimination occurs where an employer treats the person less favourably than he or she treats or would have treated a person of the opposite sex in the same or similar circumstances. In O’Callaghan v Loder [1983] 3 NSWLR 89 Judge Mathews DCJ held that the creation of a hostile working environment constitutes differential treatment in relation to the terms or conditions of employment.

3 Specific provisions making sexual harassment unlawful were introduced in 1997. Section 22B of the Act makes it unlawful for an employer (in this case Mr Fitzgerald) to sexually harass an employee. Sexual harassment is defined in s 22A as follows:

For the purposes of this Part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

4 Ms Carter claimed that Mr Fitzgerald’s conduct came within the definition of sexual harassment in s 22A(a).

Summary of Tribunal’s findings

5 The Tribunal found that:

a) The conduct that Ms Carter complained about was her employer arranging a topless female waitress to attend a party at the workplace in circumstances where Ms Carter was aware of her presence: at [18] of the decision.

b) The conduct does not amount to sexual harassment because, although it was conduct of a sexual nature, it was not conduct “in relation to” Ms Carter: at [40] of the decision.

c) A hostile or demeaning atmosphere had not become a feature of the workplace environment. The party was a one-off event: at [35] of the decision.

d) The conduct did not amount to sex discrimination because it was not “treatment” of Ms Carter and even if it was “treatment” of her, it was not less favourable treatment because all employees were treated in the same way: at [48]-[50] of the decision.

e) It could not make a finding as to whether the conduct amounted to indirect sex discrimination because the Statement of Legal Issues filed by Ms Carter’s lawyers did not mention indirect discrimination and the elements of s 24(1)(b) of the Act were not addressed in evidence: at [53]-[54] of the decision.

f) Ms Carter did not make a second complaint to the Anti-Discrimination Board that she was not invited to the party and the President of the Board did not refer that complaint to the Tribunal. The Tribunal would be exceeding its jurisdiction if it inquired into such a complaint: at [46]- [47] of the decision.

Appeal Panel’s jurisdiction

6 Ms Carter appealed against each of these findings. The findings in relation to points (a) and (f) above relate to the scope and number of complaints that the Tribunal had jurisdiction to inquire into. We deal with that issue below at [30] – [36].

7 Ms Carter is entitled to appeal on any question of law, but needs the Appeal Panel’s permission for the appeal to be extended to the merits of the decision (Administrative Decisions Tribunal Act: s 113(2)). Ms Carter sought leave for the appeal to be extended to the merits. That application is considered at [37] to [38].

Sexual harassment: not “in relation to” Ms Carter

8 Meaning of “in relation to”. One of the questions before the Tribunal was whether Mr Fitzgerald’s conduct in arranging a topless waitress to attend the party in circumstances where Ms Carter was aware of her presence was conduct “in relation to” Ms Carter. Ms Carter did not attend the party or see the topless waitress. The Tribunal’s findings as to the meaning of “in relation to” are in [27]:

We do not agree that the phrase “conduct in relation to”, as the applicant submits, “merely requires that the conduct must be such that it affected the applicant”. The phrase encompasses conduct that is more remote from the applicant than if the word “towards” had been used, but it nevertheless requires a connection with the applicant, or that the conduct was done with the applicant in mind . Thus the phrase could encompass a complainant’s being aware of something of a sexual nature a person does or writes or says about the complainant to a third person, but not something of a sexual nature a person does or writes or says, unrelated to the complainant, to a third person. (Emphasis added.)
9 Ms Carter submitted that even though the Tribunal had correctly identified what the words “in relation to” mean, it failed to apply that test to the circumstances of the complaint. ( SRBB v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 1387 (28 November 2003).) The test identified by the Tribunal was in summary, that it is not enough for an employee to be affected by the conduct. The conduct must have some connection or relationship with the employee. The Tribunal explored how close that connection or relationship had to be, by looking at other similar cases.

10 Ms Carter challenged the Tribunal’s interpretation and application of a decision by the Human Rights and Equal Opportunity Commission in G v R & Department of Health, Housing & Community Services [1993] HREOCA 20 (17 September 1993). In that case, Sir Ronald Wilson was interpreting the words “in relation to” in s 28A of the Sex Discrimination Act 1984 (Cth) (SDA). The circumstances were that the complainant saw a toy which later became the subject of conversations among other employees. She overhead discussions of a sexual nature where references were made to her husband and the toy. Those discussions in relation to the toy upset her. The respondent applied for the complaint to be summarily dismissed because it was lacking in substance. Sir Ronald summarised the situation:

The complainant admitted that the commentary associated with the toy was not directed at her; she simply overheard it. Her desk was partitioned off from the section where both the first respondent and the complainant's husband were located. The offending toy was placed on the desk of the first respondent and on one or two occasions was the subject of crude comment. The complainant was not physically present on any such occasion, but presumably was sitting at her desk on the other side of the partition. If the comments were directed to anyone, it is to be assumed that they were directed to the complainant's husband.
11 Sir Ronald concluded by saying that:
In the circumstances there are difficulties in finding that the conduct complained of was "in relation to the complainant". Nevertheless for the purposes of this application I am prepared to accept that the conduct could be so interpreted; my reason for doing so is that in other circumstances the presence in a workplace of sexually offensive material which is not directed to any particular employee may still constitute sexual harassment where a hostile or demeaning atmosphere becomes a feature of the workplace environment. (Emphasis added.)
12 The “other circumstances” to which Sir Ronald referred, are presumably circumstances where the complainant was relying on the sex discrimination provisions rather than the sexual harassment provisions of the SDA. Sir Ronald implied by this finding that if conduct not directed to an employee could constitute “treatment” of that employee under the sex discrimination provisions, then it could satisfy the lesser test of conduct “in relation” to an employee under the sexual harassment provisions. G & R was a case involving an application for summary dismissal where the Human Rights and Equal Opportunity Commission was required to take the applicant’s case at its highest and determine whether the evidence is capable of amounting to a contravention of the Act. Sir Ronald was not making a finding that the conduct was “in relation to the complainant” but merely accepting, for the purposes of the application, that the conduct could amount to a contravention of the sexual harassment provisions.

13 Ms Carter submitted that the Tribunal suggested incorrectly at [30] that Sir Ronald’s finding was based on the complainant having seen the toy. Sir Ronald said that “. . . the complainant stated in evidence that she was surprised and embarrassed when she first saw the toy...” The Tribunal said at [30] and [31] that:

Although the toy was not shown to the woman, she did see it and remained aware of its presence over time, as a result of others’ comments.

In those circumstances it is not accurate to imply, as the submission appears to, that that case concerned a woman merely being aware of something she did not see. The conduct under consideration was not only the presence of the penis-shaped toy which she had seen, but also the continuing comments of other staff concerning the toy, over a period of some weeks.

14 Although Sir Ronald did not focus on the fact that the complainant had seen the toy, it is clear from the decision that she did in fact see it. The Tribunal accurately observed that the conduct involved both the presence of the toy (which she had seen) and the comments of other employees. On the basis of Sir Ronald’s conclusion, the Tribunal reasoned, that
“... if a hostile or demeaning atmosphere has not become a feature of the workplace environment, then it will be very difficult to establish that conduct of a sexual nature not directed to a particular employee is conduct “in relation to” that employee.” (See [34].)
15 Ms Carter submitted that this passage demonstrates that the Tribunal only examined whether the unwelcome conduct of a sexual nature meant that a hostile or demeaning atmosphere had become a feature of the workplace environment. We do not agree with Ms Carter’s characterisation of the Tribunal’s decision. The Tribunal used the words “very difficult”; it did not confine itself in the way Ms Carter suggests. The Tribunal set out the test it was applying at [27]. It drew from G & R support for the proposition that conduct not directed towards the complainant, or done with the complainant in mind, will be unlikely to be conduct “in relation to” that person unless a hostile or demeaning atmosphere becomes a feature of the workplace environment. The Tribunal went on to find that the evidence “falls well short of establishing that a hostile or demeaning atmosphere had become a feature of the workplace environment.” (See [35]). As this was a finding of fact, we will not deal here with Ms Carter’s submissions about the evidence which she says supports a contrary view.

16 The Tribunal also drew support for its conclusion from another Tribunal decision, Zanella -v- Carroll's Auto Repairs Pty Ltd & anor [2001] NSWADT 220. In that case the Tribunal held that the displaying of a calendar with pictures of a female in the nude did not constitute sexual harassment “in relation to” a female customer who happened to see the calendar in a part of the workshop that she had not ventured into before. The Tribunal in that case said at [70] that:

The words “in relation to (the person)”, as they are commonly used, indicate a connection with the person, being in reference to the person or being with regard to the person.
17 The Tribunal in the present case agreed with that definition. Ms Carter sought to distinguish Zanella by pointing out that the conduct about which she complained occurred in her workplace, during normal working hours and while she was working, whereas Ms Zanella was a customer. However, the Tribunal did not suggest that Ms Carter’s circumstances were analogous to those of Ms Zanella. The Tribunal merely agreed with the conclusion as to the meaning of the words “in relation to” set out in that decision. The remainder of Ms Carter’s submissions on the meaning of the phrase “in relation to” concern the factual circumstances of the conduct and do not raise questions of law.

18 For the reasons outlined above, we can detect no error of law in the Tribunal’s interpretation of the words “in relation to”, nor in their application to Ms Carter’s situation. We note that having made the finding that the conduct was not “in relation to” Ms Carter, the Tribunal did not need to address the second part of the test in s 22A, namely whether a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

Sex discrimination complaint

19 Terms and conditions and detriment. The President of the Anti-Discrimination Board referred Ms Carter’s complaint as a complaint of sexual harassment and sex discrimination. Ms Carter alleged that the respondent had breached the sex discrimination provisions by discriminating against her either in the terms or conditions of her employment or by subjecting her to a detriment: s 25(2). In O’Callaghan v Loder [1983] 3 NSWLR 89 the Tribunal discussed the nature of conduct that would affect the terms and conditions of an employee’s employment. At p 103, the Judge Mathews DCJ said that:

In the normal course of events it is the persistence in the sexual conduct which renders it unlawful under this head. A single approach by an employer would be unlikely to fall within sec 25(2)(a). But one cannot discount the possibility of an employer’s single act of sexual aggression so tainting the working environment as to come within this section. It would thus be wrong for this Tribunal to limit the numbers or types of approaches which might attract sec 25(2)(a). It will depend entirely upon the circumstances of each case. But before this section can be invoked the conduct of the employer must create an unwelcome feature of the employment in a continuing rather than an isolated sense.
20 Consistent with this passage, the Tribunal found, at [35] that the evidence fell well short of establishing that a hostile or demeaning atmosphere had become a feature of the workplace environment. The Tribunal noted that the complaint was about a single instance and that up until the day of the party Ms Carter was happy with her job. Contrary to Ms Carter’s submission, the Tribunal did not decide that the conduct needed to span a particular time period before it will be in breach of s 25(2). Ms Carter submitted that the evidence does not support the Tribunal’s finding that the complaint was about a single instance, but that is a question of fact.

21 Was the conduct treatment of Ms Carter? The Tribunal held that the conduct was not “treatment” of Ms Carter and therefore did not amount to direct sex discrimination under s 24(1)(a). Conduct amounting to “treatment” has a more direct connection with the person than conduct “in relation to” that person. Consequently, once the Tribunal had decided that the conduct was not “in relation to” Ms Carter, it followed that the conduct was not “treatment” of Ms Carter. We found no error in the Tribunal’s conclusion that the conduct was not “in relation to” her. Similarly, there is no error in the Tribunal’s conclusion that the conduct was not “treatment” of Ms Carter.

22 Was the conduct “less favourable” treatment? The Tribunal went on to say that even if the conduct was “treatment”, it was not “less favourable” treatment because male employees in the same circumstances, or in circumstances which were not materially different, were treated in the same way. The Tribunal said at [50] that “For male and female employees alike, Mr Fitzgerald made arrangements for a workplace party where someone would engage in conduct of sexual nature, and employees would be, and in fact were, aware of the conduct as it occurred.”

23 According to Ms Carter, the arrangements for the workplace party were patently not a gender-neutral arrangement. She said that the hiring of the topless waitress was for the entertainment and titillation of the male participants. That meant that the work environment was sexually hostile to women, rather than men. Ms Carter referred to a passage from Horne & Anor v Press Clough Joint Venture (1994) EOC 92-591 at 77,175, where, in the similar legislative context of the Equal Opportunity Act 1984 (WA), the Western Australian Equal Opportunity Tribunal said:

. . .that the presence of sexual posters . . . constituted both a discriminatory condition of employment and a detriment, within the meaning of s 11 of the Act, and that by requiring the complainants to work in that environment the company was treating them, on the ground of their sex, less favourably than male employees were being (or would have been) treated in circumstances that were the same or not materially different, within the meaning of s 8(1).
24 We agree with Ms Carter that conduct that does not single out women can still constitute less favourable treatment of women compared with men. The fact that the conduct does not formally distinguish between men and women does not mean that it cannot be less favourable treatment of women if women are more likely to feel intimidated or harassed by the conduct. But in this case, the Tribunal had already decided that the conduct was not “treatment” of Ms Carter, so it did not need to decide whether or not it was “less favourable treatment”. Consequently, the Tribunal’s finding on that point did not affect its final decision.

Indirect sex discrimination.

25 Ms Carter submitted that the Tribunal did not afford her procedural fairness because it failed to allow her to make submissions on the issue of “indirect” sex discrimination. Under s 24(1)(b) a person will have “indirectly” discriminated against a person on the ground of their sex if he or she:

- requires the aggrieved person to comply with a requirement or condition;

- with which a substantially higher proportion of persons of the opposite sex comply or are able to comply;

- being a requirement which is not reasonable having regard to the circumstances of the case and;

with which the aggrieved person does not or is not able to comply.

26 Ms Carter’s lawyer told the Tribunal at the hearing that, “The nature of this inquiry is such that . . . the Tribunal could find that there was an indirect sex discrimination circumstance as well.” Towards the end of the hearing, the Tribunal asked Ms Carter’s lawyer whether he addressed indirect discrimination in his submissions. His answer was:
Hillard: No, we don’t. The submissions conclude that primarily we – these are submissions in relation to sexual harassment. We’re happy to seek leave to file further submissions in respect of indirect sex discrimination but we say that quite fairly and squarely these things fall within the section 22A test.

Rice: If they don’t?

Hillard: If they don’t, it’s an inquiry by the Tribunal and you’re open to make any other finding that you wish to.

Rice: I just wanted you to be on notice that it may be that, having formed a view that if we look at the range of options – you’ve volunteered on the legal issues that direct discrimination is an option --

Hillard: Yes

Rice: . . and then I think you’ve acknowledged it’s not even indirect discrimination – as long as you’re content for us, should our reasoning lead us in that direction, to make a finding on that basis.

Hillard: Yes.

Rice: Good, okay.

Hillard: And just in terms of the indirect to the pool, we’d say that the obvious pool to take are the employees there of the respondent. All of the male employees were able to – were in a position to be able to attend. The only female employee was (not transcribable). . in we’d say that’s the appropriate pools to draw for comparison, but I’d rather not go down that path at this late in the day.

Rice: No, just as long as you don’t mind us going down that path.

Hillard: Not at all.

27 Ms Carter says that when the Tribunal decided against her in relation to sexual harassment and direct sex discrimination, it should have invited the parties to make further submissions on indirect sex discrimination. The Tribunal explained the reason for its conclusion that it could not make a finding as to whether conduct amounted to indirect sex discrimination at [52] to [54]:
52 The Tribunal invited Ms Carter, who was legally represented, to consider whether the conduct she complained of could be characterised as involving a discriminatory requirement or condition. If so, the evidence and argument could have addressed the considerations in s24(1)(b), commonly known as ‘indirect’ discrimination.

53 The ‘Statement of Legal Issues’ filed on behalf of Ms Carter had not identified ‘indirect discrimination’, or matters relevant to s24(1)(b), in relation to this or any other conduct. The written submissions filed on behalf of Ms Carter at the conclusion of the evidence refer to submissions only "in respect of the alternative claim of sex discrimination".

54 In any event, the necessary elements to be established under s25(1)(b) were not addressed by the evidence. Whatever the facts suggest might be argued under the Anti-Discrimination Act 1977, no evidence was led by a legally represented party on the issue. In those circumstances we are unable to make findings on matters relevant to s24(1)(b); not only has Mr Fitzgerald not been given notice that he is at risk of such a finding (Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 at [33]), but the applicant has made it clear that she seeks no such finding.

28 The hearing rule of procedural fairness requires a decision maker to hear a person before making a decision affecting their interests. While the content of the rule will vary depending on the circumstances, we agree with Ms Carter that in the context of this case, it is a fundamental requirement of procedural fairness that a party be allowed to put on submissions: Commissioner for Australian Capital Territory State Revenue v Alphaphone (1994) 49FCR 576 at 592. Ms Carter was allowed to put on submissions. This was not a preliminary hearing to determine whether or not certain provisions had been breached with an opportunity to go on to consider whether other provisions had been breached. There was a single hearing and the parties provided written submissions. Neither Ms Carter’s ‘Statement of Legal Issues’ nor the written submissions addressed indirect discrimination. Mr Hillard said that he was happy to seek leave to file further submissions in respect of indirect sex discrimination, but emphasised the point that their case was primarily one of sexual harassment under s 22A.

29 The Tribunal decided firstly, and in our view correctly, that Ms Carter had not argued her case in terms of indirect discrimination. If Ms Carter had been putting her case as one of indirect discrimination, then the ‘Statement of Legal Issues’ and the written submissions would have reflected that intention. The Tribunal did not deny Ms Carter the opportunity to put on submissions and did not deny her procedural fairness. The Tribunal went on to note that even if indirect discrimination had been pleaded orally during the course of the hearing, no evidence was led on the issue.

Separate complaint of sex discrimination

30 Ms Carter submitted that the Tribunal had failed to exercise its jurisdiction in relation to a complaint of sex discrimination. According to Ms Carter, that complaint was that she was treated less favourably than male employees on the ground of her sex because she was not invited to the Christmas party. The Tribunal found that Ms Carter had not complained that not being invited to the party amounted to sex discrimination. It concluded that it had no jurisdiction to entertain such a complaint. The Tribunal said at [45] that:

But in any event that conduct was not the subject of complaint to the Anti-Discrimination Board. It was not a complaint that was referred to us. Only one complaint was referred by the President of the ADB to the Tribunal for inquiry, relating to the conduct described above in paragraph 17. That is the conduct that could be characterised as either or sexual harassment or sex discrimination.
31 Notwithstanding that finding, the Tribunal made the comment at [44] that “. . . the party was the last place she wanted to go” and that “an invitation would have been, at the least, pointless.” The Tribunal’s conclusion that it did not have jurisdiction was based on the fact that Ms Carter made only one complaint and the President referred only one complaint to the Tribunal. While the allegation about arranging for the attendance of a topless waitress could be a breach of either the sexual harassment or sex discrimination provisions of the Act, the Tribunal appears to have concluded that because an allegation about failure to be invited to the party involved different conduct, it was not part of the single complaint referred to the Tribunal.

32 Statutory framework. The Tribunal’s jurisdiction is governed by the Act and the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 37 of the ADT Act gives the Tribunal jurisdiction “to act as the primary decision-maker” if the enactment so provides. The relevant enactment in this case is the Anti-Discrimination Act 1977. The former s 96 (which was the relevant provision when this matter was heard) gives the Tribunal jurisdiction to “hold an inquiry into each complaint or matter referred to it under section 91(2), 94(1) or 95.” Ms Carter’s complaint was referred under s 94(1). A complaint referred to the Tribunal under s. 94(1) is initiated by a “complaint” in writing, lodged with the President under s 88 “in respect of any contravention of this Act”. (See Commissioner of Police, New South Wales Police Service -v- Orr (EOD) [2001] NSWADTAP 16.) Section 88 provides, in part, that:

Except as provided by this section, a complaint in writing in respect of any contravention of this Act or the regulations which is alleged to have been committed by a person (other than a contravention in respect of which a specific penalty is imposed) may be lodged with the President by:

(a) a person on the person’s own behalf, or

. . .

33 In McDonald v Puplick [1998] NSWSC 428, Simpson J cautioned against interpreting s 88 and the procedural provisions of the Act in an overly formal way. When attempting to define a “complaint”, Her Honour said:
On the one hand it is a written document. However, the notion of “complaint” can be rather more abstract than that. It can include the substance of what is contained in a letter of complaint. There is much to be said for the view that it would be a mistake to place too strict a construction on this aspect of the terminology used in the Act. While due attention must be paid to the language used by the Act in proscribing identified forms of discrimination, those sections of the Act dealing with the procedures relating to the making of a complaint and its determination must be construed in the context of the Act as a whole. There is clearly to be found in the Act an intention on the part of the legislature to eliminate undue formality.

. . .

34 Contrary to the Tribunal’s finding, the allegation that Ms Carter was not invited to the party was the subject of complaint in writing to the President of the Anti-Discrimination Board. In her complaint Ms Carter said that:
I was not told anything about this party and I was definitely not invited ...

That morning for the first time since I had been working there, all staff members were present including ones who worked weekends whom I had never met before. Every one of them stopped work to participate while I was expected to carry on working. . .

Prior to December 2nd, I became aware from overhearing comments between other people (never in the same room as me) that my employer Mike Fitzgerald was putting on a Christmas party. All my co-workers were fully aware of the details, but I was deliberately excluded. I was not told anything about this party and I was definitely not invited.

35 When the President referred the complaint to the Tribunal, he described it as one complaint “alleging discrimination on the grounds of sex and sexual harassment in the area of employment.” In the complaint summary attached to the letter of referral, the President said that “Mr Fitzgerald was arranging a Christmas party . . . on the work premises, to which she was not invited.” The summary also stated that, “. . .she felt that her employer had been evasive toward her and that she had been deliberately excluded from the arrangements.” While the President's characterisation of the complaint made to him cannot bind the Tribunal, it is clear that the President regarded Ms Carter’s allegations about not being invited to the party as part of her complaint.

36 A complaint in writing lodged with President may be in respect of more than one contravention of the Act. While the word “contravention” in s 88 is expressed in the singular, s 8(b) of the Interpretation Act 1987 states that “ a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form.” The Tribunal routinely treats multiple allegations involving separate breaches of the Act as one complaint (For two recent examples, see Wilde v University of Sydney [2003] NSWADT 206 (2 September 2003) at [12] and Battenberg v The Union Club [2004] NSWADT 285 (9 December 2004) at [4].) As long as Ms Carter made a complaint in writing alleging that she was discriminated against by not being invited to the party and the President referred that complaint to the Tribunal under s 94(1) the Tribunal has jurisdiction to inquire into that complaint under s 96. It would be unduly formal for the Tribunal to require an applicant to make separate complaints in respect of each alleged contravention of the Act. Similarly it would be artificial to require the President to refer conduct in relation to a single incident or event as separate complaints. In our view, the Tribunal did have jurisdiction to inquire into the allegations of not being invited to the party as part of the complaint of sex discrimination. It made an error of law in deciding that it did not have that jurisdiction.

Extension to merits?

37 Having identified an error of law, we need to decide whether to grant Ms Carter leave to extend the appeal to the merits of the decision. The evidence addressed the issue of whether or not Ms Carter had been invited to the party. We have a full copy of the transcript. The credibility of the witnesses was not a major issue and, in the interests of resolving this matter quickly, we have decided to extend the appeal to the merits of that part of the complaint. We have decided to grant leave only in relation to the allegation that not being invited to the party amounts to sex discrimination. We found no error of law in relation to the other grounds of appeal and there are no other circumstances that persuade us to extend the remainder of the appeal to the merits.

38 We will decide the case on the basis of the evidence before the Tribunal. (Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297, Glass JA.) We are required by section 115 of the ADT Act to reach our own decision in the matter taking into consideration any relevant factual material which was before the Tribunal and by applying the law as it stands at the time the appeal is heard.

Evidence about not being invited to the party

39 Ms Carter’s statement says that when she told Mr Fitzgerald that the waitress had called, he said to her “It’s a party for the boys ... you don’t need to worry about it.” Mr Fitzgerald denied having said that. Ms Carter also related a conversation she had with another employee, Daniel. She said, “Is the party just for the Council workers or is it the only Christmas party?” Daniel replied, “I know the party is just for the Council workers. The party is just for the Council workers.” Ms Carter says that Mr Fitzgerald told her the same thing later in the day. Ms Carter also alleged that she was expected to stay and work while all the men had a Christmas party. She said, “I was the only one not allowed to attend a Christmas party.” In her evidence Ms Carter said that she would not have wanted to attend the party if she had known a topless waitress was going to be there. In those circumstances she would have asked if she could go home.

40 Mr Fitzgerald said in his statement that, “It was not a party for the employees of Aussie Hire, although they were allowed to mingle with the customers a bit at the party if they wanted to, so long as they remembered that they were still at work and had to answer the phones and serve customers that came in to hire equipment.” Mr Fitzgerald denied that Ms Carter was the only person working on that day and annexed a copy of the diary worksheets showing the bookings for that day. He said that he did not give a direct invitation to any Aussie Hire employees, male or female, to the Christmas function. According to Mr Fitzgerald, “All Aussie Hire employee were told that the party was for Aussie Hire’s better customers and that they could mingle in with the customers so long as they remembered they were still employed to work on that day.”

41 Mr Fitzgerald agreed in cross-examination that he had done nothing to encourage Ms Carter to attend the party. He also agreed that all the male staff attended the party at some stage, although he emphasised throughout his evidence that his employees were still on duty and attended to customers and phone calls while the party was on. Mr Fitzgerald also agreed that other than the waitress, all the people who attended the party were male.

42 On the basis of this evidence we find that Ms Carter was not invited or encouraged to attend the party. While other male employees were not specifically invited, they were made to feel welcome to attend.

Application of law

43 Differential treatment? A comparison must be made with the way Mr Fitzgerald treated or would have treated a male employee in the same circumstances or in circumstances which are not materially different. We are satisfied that Mr Fitzgerald made male employees feel welcome to attend the party, but he did not make Ms Carter feel welcome to attend. In Commonwealth v Human Rights and Equal Opportunity Commission & Dopking & Anor (1993) 119 ALR 133 per Wilcox J at [19] said “As Mahoney J pointed out in Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR at 20, the concept underlying this element is detriment; the aggrieved person being treated in a manner less favourable than that accorded someone of a different ... status.” The detriment that Ms Carter felt was that she was being excluded from something that other employees were made to feel welcome to attend.

44 Causation. The next question is whether the differential treatment afforded to Ms Carter was “on the ground” of her sex. Sex only needs to be one of the grounds for the less favourable treatment, it does not need to be the only ground or even the dominant or substantial reason for the treatment: s 4A of the Act. We are satisfied that Ms Carter was the only employee who was not made to feel welcome to attend the party. There is nothing apart from Ms Carter’s gender that would explain that differential treatment.

45 Remedy. Having found the complaint substantiated various remedies are available. For example, we may order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation “for any loss or damage suffered by reason of the respondent’s conduct ... “: s 113(b)(i). Neither Ms Carter’s evidence, nor her lawyer’s submissions to the Tribunal attempted to separate Ms Carter’s damages as a result of not being made to feel welcome to attend the party from the damages arising from Mr Fitzgerald arranging for a topless female waitress to attend a party. The evidence discloses that Ms Carter left her workplace on the day of the party and did not return. The reason she left was the presence of the topless waitress, and what Ms Carter imagined was taking place, not the fact that she was not made to feel welcome to attend the party. Consequently, there has been no economic loss to Ms Carter as a result of not being included in the party.

46 Non-economic loss? We agree with Ms Carter’s lawyers that non-economic loss should not be so minimal as to diminish respect for or trivialise the public policy behind anti-discrimination legislation. (Alexander v Home Office [1998] 1 WLR 968 at 975.) However, in this case, not being made welcome to attend the party contributed in a very minor way to Ms Carter’s distress. By far the most significant cause of her distress was the presence of the topless waitress. In those circumstances her damages for non-economic loss are minimal. We would assess them at $500.

Order

1. The Tribunal’s decision that it does not have jurisdiction to inquire into a complaint of sex discrimination in relation to Mr Fitzgerald not inviting Ms Carter to attend the Christmas party is set aside.

2. In substitution for that decision, the Appeal Panel finds that the Tribunal did have jurisdiction to inquire into that complaint.

3. Ms Carter’s complaint of sex discrimination as a result of not being made to feel welcome to attend the Christmas party is substantiated.

4. The respondents are jointly and severally liable to pay damages to Ms Carter in the sum of $500.00.

5. In all other respects, the Tribunal’s decision is affirmed.

6. Unless an application with supporting submissions is filed in the Tribunal within 28 days, there will be no order on the costs of the appeal. If any such application is filed, the opposing party's submissions must be filed within a further 28 days. In the absence of any request for a hearing, the matter will be determined 'on the papers', under s 76 of the Administrative Decisions Tribunal Act 1997.