Chand v Rail Corporation of New South Wales

[2007] NSWADTAP 54

Appeal Panel - Internal

CITATION:	Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54
PARTIES:	APPELLANT Bimla Chand RESPONDENT Rail Corporation of New South Wales
FILE NUMBER:	079026
HEARING DATES:	21 August 2007
SUBMISSIONS CLOSED:	21 August 2007
DATE OF DECISION:	2 October 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Smyth M - Judicial Member; Mooney L - Non Judicial Member
CATCHWORDS:	Anti-Discrimination Act - sexual harassment - employees not named as parties - objective test - amendment of complaint to add victimisation - leave to extend to the merits
MATTER FOR DECISION:	Prinicpal matter
FILE NUMBER UNDER APPEAL:	051080
DATE OF DECISION UNDER APPEAL:	04/17/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Attorney General of New South Wales v World Best Holdings Limited & Ors [2005] NSWCA 261 Italiano v Carbone & Ors [2005] NSWCA 17 KO & anor -v- Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 21 S v R and the Children’s Representative (1999) 24 Fam LR 213 Zhang v Blinds Pty Ltd (unreported, ADT, 17 November 2006)
REPRESENTATION:	APPELLANT In person RESPONDENT K Nomchong, barrister
ORDERS:	1. Order 1 of the Tribunal is set aside and the following order is made: ; a. The complaint of sexual harassment involving Mr Dempsey is dismissed for want of jurisdiction.; b. The complaint of sexual harassment involving Mr Plichta is dismissed under s 108 of the Anti-Discrimination Act 1977.; c. Leave is given for the appeal to be extended to the merits of the Tribunal’s decision in relation to the complaint of sexual harassment involving Mr Hinien. ; 2. Order 2 of the Tribunal is set aside and the following order is made: ; Leave is given for the appeal to be extended to the merits of the Tribunal’s decision in relation to complaints of victimisation against the respondent where the allegation under s 50(1)(c) of the Anti-Discrimination Act 1977 occurred before 18 June 2002. ; 3. Order 3 of the Tribunal is affirmed.; 4. Leave is refused for the appeal to be extended to the merits of the Tribunal’s decision in relation to any other complaint.; 5. The complaint of race discrimination is dismissed under s 107 of the Anti-Discrimination Act 1977. ; 6. The complaint of disability discrimination is dismissed under s 107 of the Anti-Discrimination Act 1977.

Introduction

1 Ms Chand began working for the State Rail Authority (SRA) in April 2000. She held various positions including customer service attendant and revenue protection officer until 2005. Ms Chand has appealed against a decision of the Tribunal dismissing each of her complaints of discrimination and victimisation against the SRA made under the Anti-Discrimination Act 1977 (AD Act). The Tribunal made the following orders:

1. The complaints of sexual harassment against three employees of the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.

2. That four of the complaints of victimisation against the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.

3. That the remaining complaints of victimisation against the respondent are not substantiated. Each complaint is dismissed.

2 Ms Chand is entitled to appeal on any question of law, but the Appeal Panel’s leave is required before the appeal may extend to a review of the merits of the appealable decision: Administrative Decisions Tribunal Act 1997 (Tribunal Act), s 113(2). Ms Chand was legally represented before the Tribunal but conducted the appeal herself.

3 At the time of the hearing before the Tribunal, the respondent was the State Rail Authority of NSW. On 30 June 2007 SRA ceased to exist as an operating rail entity and the Rail Corporation of NSW took over its functions in relation to SRA employees. We refer to the respondent in these reasons as Railcorp.

4 The complaints as referred by the President of the Anti-Discrimination Board (ADB) are the foundation of the Tribunal’s jurisdiction: AD Act, 95(3) and Tribunal Act, s 37. Despite the fact that Ms Chand made numerous complaints of discrimination and harassment to the President of the ADB, the only complaints the President referred to the Tribunal were complaints of race discrimination, disability discrimination and sexual harassment. Ms Chand’s lawyers did not mention the complaints of race discrimination and disability discrimination in the Points of Claim nor were they raised during the hearing. The Tribunal did not make any findings or orders about those complaints. One of Ms Chand’s grounds of appeal was that the Tribunal failed to deal with her complaints of race and disability discrimination. In circumstances where the complaints were not pursued, the Tribunal did not make an error in failing to make findings about those complaints. However, the Tribunal should have formally dismissed the complaints under s 107 of the AD Act as they had been abandoned.

5 Although the President did not refer to the Tribunal a complaint of victimisation the Points of Claim identified several alleged breaches of s 50 of the AD Act. Following the hearing, the Tribunal used its powers under s 103 of the AD Act to amend the complaint to include some of the victimisation complaints.

6 We will start by considering Ms Chand’s grounds of appeal in relation to the Tribunal’s findings about the sexual harassment complaints and the victimisation complaints. We will then consider Ms Chand’s grounds which relate to the process by which the Tribunal made its decision and other miscellaneous grounds of appeal. Finally, we will determine whether or not to give leave for Ms Chand to appeal against the merits of the Tribunal’s decision, or part of that decision.

Jurisdiction re sexual harassment complaints

7 Outline of law. Ms Chand alleged that three fellow employees, Mr Dempsey, Mr Hinien and Mr Plichta, had each sexually harassed her in breach of s 22B of the AD Act. Section 22B(2) states that:

It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

8 Sexual harassment is defined in s 22A to include “unwelcome conduct of a sexual nature in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.” The Tribunal dismissed the complaints of sexual harassment against all three employees because those complaints were not within the jurisdiction of the Tribunal.

9 No jurisdiction – complaint against Mr Dempsey not within period. The main reason for dismissing the complaint in relation to the incidents involving Mr Dempsey was that the allegations of sexual harassment did not occur within the complaint period.

10 Reasons and conclusion. At the time when Ms Chand lodged her complaints with the President of the ADB a person could lodge a complaint within 6 months after the date on which the contravention of the AD Act was alleged to have been committed: s 88(3). In this case the complaint was made on 18 December 2002. The President refused to accept as complaints any of Ms Chand’s allegations that had occurred prior to the six month period, that is, prior to 18 June 2002: Tab 19 of the President’s Report – Ex A3. The Tribunal did accept another complaint that was made in January 2003. Consequently the period of the complaint, as referred by the President to the Tribunal, was 18 June 2002 to 30 January 2003. The Tribunal has no power to determine whether incidents which took place outside that period are in breach of the AD Act: AD Act, 95(3) and Tribunal Act, s 37. As the allegations of sexual harassment in relation to Mr Dempsey were said to have occurred between March 2001 and August 2001, the Tribunal correctly concluded at [29] that it did not have jurisdiction in relation to that complaint.

11 No jurisdiction – employees not named as parties. The incidents involving Mr Hinien and Mr Plichta took place within the relevant period. The Tribunal found that it did not have jurisdiction in relation to those complaints because neither of those employees was a party to the proceedings. The President of the ADB did not name them as respondents to Ms Chand’s complaints when they were referred to the Tribunal and Ms Chand did not apply for either of them to be joined as parties. (Ms Chand submitted that the Appeal Panel should now join these employees as parties. That is something which we would not consider doing unless leave was given to extend the appeal to the merits of the Tribunal’s decision. We consider the application for leave below at [45].)

12 Reasoning and conclusion. The Tribunal rightly concluded that as neither Mr Hinien nor Mr Plichta were parties to the proceedings, even if there had been a breach of the sexual harassment provision - 22B(2) of the AD Act - it would not have been able to make an order against either of them: Italiano v Carbone & Ors [2005] NSWCA 17. But that does not mean that it did not have jurisdiction to entertain the complaint. An employer will be vicariously liable for the acts of its employees in the circumstances set out in s 53. Section 53 states that:

(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

13 The Tribunal decided at [24] that since the Points of Claim did not mention s 53 or vicarious liability, there was no allegation that the respondent was vicariously liable for any unlawful acts of its employees. Ms Nomchong, representing Railcorp, conceded that Ms Chand did plead a breach of s 53 in the Points of Claim and that the respondent replied to those allegations in the Points of Defence.

14 The Tribunal was correct when it observed that the Points of Claim did not mention s 53 or vicarious liability. However, that omission should not have led it to conclude that Ms Chand was not relying on that provision. Given that the alleged perpetrators of the harassment were not parties, the Tribunal should have appreciated that the allegations of sexual harassment were against the only other party to the complaint, namely, the respondent in its capacity as employer. It is clear that the respondent understood that the basis of the sexual harassment claim was one of vicarious liability against the employer because it said, in its Amended Points of Defence at [7], that it was relying on the defence in s 53(1) which excuses a respondent from liability if it did not authorise its employees to do the acts.

15 It follows that the Tribunal erred when it said that it had no jurisdiction to hear the complaints against Mr Hinien and Mr Plichta and when it concluded that it had no jurisdiction to determine whether the respondent was vicariously liable for their conduct. The Tribunal’s order that the sexual harassment complaints against Mr Hinien and Mr Plichta are not within its jurisdiction should be set aside. Despite its finding that it had no jurisdiction, the Tribunal went on to consider the merits of the sexual harassment complaints and found that the allegations against Mr Hinien and Mr Plichta did not amount to sexual harassment as defined by s 22A. Having come to that conclusion, the Tribunal did not need to go on to determine whether the respondent was vicariously liable for those acts. We turn now to consider the grounds of appeal in relation to those findings.

Sexual harassment complaint involving Mr Hinien

16 Tribunal’s findings. Essentially the complaint of sexual harassment against Mr Hinien was that, on three occasions, he read pornographic magazines in Ms Chand’s presence. Mr Hinien vehemently denied having done so. The Tribunal also found that a reasonable person, having regard to all the circumstances, would not have anticipated that Ms Chand would be offended, humiliated or intimidated by the conduct. The Tribunal found, as an alternative to its finding that it had no jurisdiction, that the complaint was not substantiated. Ms Chand raised three grounds of appeal in relation to this finding.

17 Incorrect finding of fact. The first ground of appeal was that the Tribunal’s finding at [40] that there had been a history of confrontation between her and Mr Hinien, was incorrect. That is a question of fact, not a question of law and we consider it below when deciding whether to extend the appeal to the merits of the Tribunal’s decision.

18 Denial of procedural fairness. Secondly, Ms Chand said that she was denied procedural fairness because Mr Hinien was on leave during the hearing and was allowed to give evidence by phone. The Tribunal explained its reasons for allowing Mr Hinien to give evidence by phone at [42]:

Mr Hinien was not available during the days of the hearing to be present to give evidence and to be cross-examined. It was explained to the Tribunal that Mr Hinien was on a holiday which he had pre-planned and that he was not able without considerable inconvenience either to postpone that holiday or to interrupt it to return to Sydney to give evidence. Subsequently it transpired that Mr Hinien was on a touring holiday in Victoria. In the face of objections from counsel for the applicant, the Tribunal acceded to the request from counsel for the respondent for Mr Hinien to give his evidence before the Tribunal by way of telephone which was amplified in the hearing room. Where there is a distinct conflict in material evidence, that manner of giving evidence deprives the Tribunal of the opportunity of observing the witness during his examination and cross-examination and prevents the Tribunal from forming any judgment as to the demeanour of the witness during this process. As a result, the Tribunal, where there is a conflict in the evidence between Ms Chand and Mr Hinien, would give preference to the evidence of the applicant.

19 Reasoning and conclusion. The Tribunal has power to determine its own procedure, subject to the rules of procedural fairness: Tribunal Act, s 73. The Tribunal recognised that in circumstances where a witness’ credit is in issue, it may be a denial of procedural fairness to allow that witness to give evidence by phone: S v R and the Children’s Representative, (1999) 24 Fam LR 213 per Kay, Holden and Mullane JJ at [76] and [77]. The Tribunal overcame any potential lack of procedural fairness by ruling that where Mr Hinien’s evidence conflicted with Ms Chand’s evidence, it would prefer Ms Chand’s evidence. The Tribunal did not err in allowing phone evidence in those circumstances.

20 Application of s 22A. Ms Chand’s third ground of appeal relates to the Tribunal’s application of the elements of sexual harassment in s 22A. That provision states that:

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.

21 Ms Chand said that although the Tribunal applied the objective “reasonable person” test at [46] of the reasons, it reached a subjective conclusion. That conclusion was that, “The Tribunal is not satisfied that those circumstances would lead a reasonable person in Mr Hinien’s position to anticipate that the applicant would be offended, humiliated or intimidated.” Ms Nomchong, on behalf of Railcorp, said that the Tribunal applied the appropriate test and that the finding that the Tribunal made was open and available to it.

22 Tribunal’s findings in relation to s 22A. We set out below the Tribunal’s reasoning and findings on the application of s 22A:

45 The section requires an objective assessment based on the reasonable person test as to whether in all the circumstances a reasonable person would anticipate that the other person would be offended, humiliated or intimidated by the unwelcome conduct of a sexual nature. When regard is had to all the circumstances relating to the incidents described by the applicant concerning Mr Hinien’s conduct in reading magazines depicting naked women while sitting at the same table as the applicant, consideration must be given to the circumstance that the applicant did not react in relation to this conduct in a manner that would be expected of a person who was offended, humiliated or intimidated by the conduct. The applicant only complained in specific terms about the incident on 23 August. She left it until 25 September 2002 to mention it in a memo in which she referred in much more detail to other incidents concerning Mr Hinien about which she complained in that memo. The applicant only referred to the incidents in early June 2002 and in the week of 26 August 2002 and in October 2002 in an examination during her evidence before the Tribunal.

46 Applying the objective test as to whether a reasonable person in the position of Mr Hinien would have anticipated that the applicant would be offended, humiliated or intimidated by his actions in reading a pornographic magazine in the circumstances described by the applicant, the Tribunal has had regard to the first instance in which the applicant alleges Mr Hinien read a pornographic magazine while sitting at a large table at which the applicant was also sitting, in June 2002. The applicant did not state that on this occasion she spoke to the applicant (sic). The Tribunal is not satisfied that those circumstances would lead a reasonable person in Mr Hinien’s position to anticipate that the applicant would be offended, humiliated or intimidated.

47 The incident on 23 August 2002 is different to the occasion early in June 2002 in that on this occasion the applicant did express her objection to Mr Hinien’s conduct in reading the magazine. However, the applicant did not express to Mr Hinien that she was objecting on a personal basis but rather that she was objecting to him reading the magazine ‘in the office.’ In view of the antagonistic history between the applicant and Mr Hinien, a reasonable person in the circumstances would not have interpreted the applicant’s objections as indicating that she was offended, humiliated or intimidated. In the view of the Tribunal, Mr Hinien’s interpretation of Ms Chand’s objection was confirmed by him applying on the following day for a transfer to an alternative group as he was ‘having great difficulty in dealing with and working with a fellow RPO Bimla Chand.’ The fact that the applicant only complained about Mr Hinien’s conduct on 23 August in her memo to her supervisor on 25 September 2002, and then only in the most general terms, indicates that the applicant did not regard the incident on 23 August 2002 as a serious offence. The occasion that she describes that occurred on the week of 26 August 2002 is in a similar category to the first occasion although this followed the occasion on 23 August 2002 in which Ms Chand had raised a specific objection to Mr Hinien reading an offending magazine. The Tribunal however is not able to make a finding that substantiates a claim of sexual harassment based on the applicant’s evidence of this occasion, especially as the applicant had not raised a complaint concerning the incident until examined by the Judicial Member during her evidence before the Tribunal.

48 It is the view of the Tribunal that the applicant has not substantiated to the degree necessary to satisfy the Tribunal in relation to a serious charge of racial discrimination that her claims relating to the three incidents alleged by her concerning Mr John Hinien, has been substantiated.

23 The reference to “racial discrimination” in [48] is presumably meant to be a reference to sexual harassment.

24 Reasoning and conclusion. In circumstances where sexual harassment is alleged between fellow employees, in breach of s 22B(2), there are four elements which must be satisfied under s 22A before a complaint can be substantiated. Those elements are:

a) one person has engaged in unwelcome conduct;

b) that conduct is a sexual advance, a request for sexual favours or other conduct of a sexual nature;

c) the conduct is “in relation to” another person; and

d) a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by that conduct.

25 The Tribunal found, at [43] that there were three occasions on which Mr Hinien read pornographic magazines in the presence of the applicant and that on one of those occasions the applicant requested Mr Hinien to desist from reading such material. The Tribunal made no findings in relation to the first three elements of s 22A as to whether the conduct was unwelcome, whether it was of a sexual nature or whether it was “in relation to” Ms Chand. Those were matters which the Tribunal should have addressed.

26 The Tribunal correctly identified the fourth element, that is whether a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended humiliated or intimidated by the conduct. However the Tribunal erred when it applied that test to the facts of the case. Instead of making an objective assessment, the Tribunal based its conclusion largely on Ms Chand’s subjective reaction to the conduct. Her failure to say anything to Mr Hinien except on one occasion, the delay in reporting one of the incidents and the fact that two of the incidents were raised for the first time at the hearing, were the main matters on which the Tribunal relied in reaching its conclusion. While those matters are relevant to the question of whether the conduct was ‘unwelcome’ they are not the matters that are relevant to an objective assessment of how a person would react in the circumstances. The question is not whether the person was offended, humiliated or intimidated by the conduct. Rather, the question is whether a reasonable third party would have anticipated, in all the circumstances, that the person would have had that reaction.

27 In addition, despite finding that Mr Hinien had read pornographic magazines in Ms Chand’s presence, the Tribunal noted that Ms Chand’s evidence was “uncorroborated” and that she did not raise two of the incidents until she was giving evidence to the Tribunal. Those comments suggest that one of the Tribunal’s reasons for finding that the complaints of sexual harassment were not substantiated was its doubt that the incidents had occurred. Once the Tribunal had decided that it would prefer Ms Chand’s evidence when it was in conflict with Mr Hinien’s, and had impliedly found that the incidents occurred, it was an error to refer to doubts about the veracity of her evidence when applying the objective test in s 22A. Having found these errors, we consider below at [45] whether to extend the appeal to the merits of the Tribunal’s findings in relation to the incidents involving Mr Hinien.

Sexual harassment complaint involving Mr Plichta

28 Tribunal’s findings. The complaint against Mr Plichta was that he had brushed Ms Chand’s left buttock with his right hand. The Tribunal found that the incident did not constitute conduct of a sexual nature nor did it occur in circumstances in which a reasonable person would have anticipated that Ms Chand would be offended, humiliated or intimidated.

29 Attendance by phone. Mr Plichta filed two affidavits but the respondent applied for him to be excused from attending for the purpose of being cross-examined because of his mental state. Medical certificates were provided in support of that application. Ms Chand says that she was served with Mr Plichta’s medical certificates at the last minute and had no opportunity to test the veracity of that evidence. Despite opposing the application that Mr Plichta be excused from attending, the Tribunal granted that application. Its reasons for doing so appear at [50]:

At a case conference just prior to the hearing the respondent gave notice that it would apply under s 67 of the Evidence Act 1995 that in the circumstances relating to Mr Plichta’s mental condition that his affidavits be admitted and that he be excused from attending for the purposes of cross-examination. Although the Tribunal is not bound by the rules of evidence, and in the face of an objection by counsel for the applicant, the Tribunal considered that it was constrained by the medical certificates exhibited to the Tribunal on behalf of Mr Plichta and the Tribunal agreed to accept the affidavits which he had filed with the Tribunal.

30 Reasoning and conclusion. As with Mr Hinien’s evidence, the Tribunal decided at [54] that since Mr Plichta could not give evidence in person, where his evidence was inconsistent with Ms Chand’s evidence, the Tribunal would prefer Ms Chand’s evidence. The Tribunal made findings that were consistent with Ms Chand’s evidence but found that those findings were not sufficient to substantiate a claim of sexual harassment. In circumstances where the Tribunal preferred Ms Chand’s evidence where there was a conflict, we are not satisfied that the Tribunal made an error of law in taking Mr Plichta’s evidence by phone, rather than in person.

31 The Tribunal made an express finding in relation to this complaint that certain conduct occurred but that it was not conduct of a sexual nature. Those findings were open to it on the evidence and made it unnecessary for the Tribunal to consider the objective part of the test in s 22A. In those circumstances we can detect no error of law which would make any difference to the Tribunal’s conclusion that the complaint was not substantiated.

Victimisation

32 Amendment to include victimisation complaints. The President of the ADB did not refer any complaints of victimisation to the Tribunal. Although Ms Chand mentioned “victimisation” in some of her correspondence with the President of the ADB, she did not allege victimisation in the sense contemplated in s 50 of the AD Act. The relevant part of s 50 of the AD Act provides that

(1) It is unlawful for a person ( "the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has:

...

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

33 The President did not understand her complaint to be one of victimisation under s 50. Ms Chand agreed that the President should investigate her complaints of sexual harassment, race discrimination and disability discrimination and those were the complaints referred to the Tribunal. Nevertheless, Ms Chand’s Points of Claim contained several allegations of breaches of s 50 of the AD Act. After the hearing had finished the Tribunal rightly formed the view that because no complaint which could amount to victimisation had been articulated to the President of the ADB or referred to the Tribunal, it did not have jurisdiction to entertain those complaints. To remedy that situation, the Tribunal amended the complaint of its own motion to include some of Ms Chand’s allegations of victimisation: AD Act, s 103. Section 103 states that:

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.

34 Neither party challenged the Tribunal’s power to amend a complaint of its own motion after the hearing had concluded or submitted that there had been a breach of procedural fairness. The Tribunal has power to amend a complaint “at any stage of the proceedings relating to the complaint.” The Tribunal must have assumed that the proceedings were still on foot up until the time when a decision was handed down. (See Attorney General of New South Wales v World Best Holdings Limited & Ors [2005] NSWCA 261 at [92] for an interpretation of the words “conduct of proceedings before the Tribunal” in s 81(3) of the Tribunal Act.)

35 Triggers that did not occur in complaint period. The Tribunal correctly decided that it had jurisdiction to hear a complaint of victimisation even if the alleged conduct in s 50(1)(c) (the “triggers”) occurred before the start of the complaint period (18 June 2002). It is sufficient if the “detriment” occurred within the complaint period because subjecting the person to a detriment is what constitutes a contravention of the AD Act pursuant to the former s 88(3) - the out of time provision. Despite this conclusion, the Tribunal went on to state (at [66]) that it did not have jurisdiction in relation to four complaints of victimisation where the conduct that was said to have triggered the victimisation occurred before 18 June 2002. Ms Chand submitted, in the final page of her written submissions, that the Tribunal had erred in coming to that conclusion. We agree that the Tribunal did make an error in coming to that conclusion and we set out our reasons below.

36 Tribunal’s reasoning. The Tribunal decided that it was bound by s 103(2) of the AD Act (the amendment provision) to restrict the claims of victimisation to claims where both the trigger in s 50(1)(c) and the detriment had occurred during the complaint period. The Tribunal relied on an unreported decision in Zhang v Blinds Pty Ltd (17 November 2006) where the Tribunal held that s 103 only authorises the Tribunal to add complaints where those complaints arise out of the complaints which have been investigated by the President. The rationale for that view was that otherwise a complainant would have an unlimited capacity to seek to have complaints added even though those complaints had not been investigated by the President.

37 Reasoning and conclusion. The ordinary grammatical meaning of s 103(2) is that the Tribunal may amend the complaint either by adding complaints or by adding anything else, such as further allegations. The only qualification to the amendment power is that the additional complaint or other matter “was not included in the complaint as investigated by the President.” Contrary to the Tribunal’s decision, there is no implied qualification that the additional complaint or other matter occurred during the period of the complaint as investigated by the President.

38 There is no extrinsic material which sheds light on the rationale for s 103, but the intention of the legislature was to avoid the delay and potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances, is already before the Tribunal. The most likely source of additional complaints will be complaints that arise after the matter has been referred, but s 103 does not confine amendments to complaints of that kind. Relevant considerations when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred. Contrary to the Tribunal’s conclusion, the fact that the complaint did not occur within the period as investigated by the President, does not prevent it being added. Having found an error of law, we consider below at [47] whether or not to extend the appeal to the merits of the Tribunal’s decision on this point.

Procedural fairness

39 Filing voluminous material. Ms Chand’s next ground of appeal on a question of law was that the Tribunal did not accord her procedural fairness. The first alleged breach of procedural fairness relates to the fact that the respondent filed an affidavit of Ms Kerry Messenger dated 18 October 2006 which, Ms Chand said, annexed four volumes of material. On the second last day of the six day hearing the respondent told the Tribunal that it would not be tendering the affidavit or relying on the annexed material. The respondent said that the reason for that was that all the matters that it wished to prove through the tender of that material had been established by other evidence including through Ms Chand during cross-examination. Ms Chand’s ground of appeal relates to three matters:

- the respondent’s conduct in filing the material then not relying on it;

- the Tribunal’s refusal to grant a sufficiently long adjournment following the filing of that material; and

- the failure of the Tribunal to award costs against the respondent.

40 Respondent’s conduct. Ms Chand’s assertion that the respondent’s solicitor wasted her time and forced her to seek an adjournment does not raise a question of law. Questions of law must relate to the way the Tribunal conducted the proceedings or decided the case. A decision by the respondent’s solicitor not to rely on evidence that was filed in the proceedings does not relate to either of those functions.

41 Refusal to grant sufficient adjournment. Ms Chand says that the Tribunal denied her procedural fairness because it did not agree to an adjournment after the respondent had filed Ms Messenger’s affidavit. She says that her solicitor abandoned her at the last minute and the Tribunal granted her only a few days extra to prepare her response. She added that her new legal representative made two further adjournment applications. The first was refused and the second was granted, but only for a short period. Ms Chand did not apply for leave to appeal against any of those interlocutory decisions because she says that she did not know that she could do so. The Tribunal has an obligation to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings: Tribunal Act, s 73(4)(c). On each occasion when Ms Chand or her representative applied for an adjournment, the Tribunal gave her the opportunity to present her argument and made a decision on the basis of the evidence and the submissions. We can detect no error of law in the way the Tribunal determined the adjournment applications.

42 Failure to award costs. Ms Chand also submitted that costs should be awarded against the respondent for filing voluminous evidence on which they did not ultimately rely. As Ms Chand made no application for costs to the Tribunal, there is no appealable decision refusing costs.

Other questions of law

43 Ms Chand referred in her written submissions to an alleged failure on the part of the Tribunal to apply the correct standard of proof. Apart from her point about the application of the test for sexual harassment in s 22A, Ms Chand did not make her ground of appeal under this heading sufficiently clear for us to respond to it in any meaningful way. Ms Chand also submitted that the Tribunal had taken into account various irrelevant considerations. Taking into account irrelevant considerations when exercising a discretion may be a ground of judicial review. The Appeal Panel is not conducting a judicial review of the Tribunal’s decision, rather it is determining whether it is has made an error of law. If Ms Chand means that the Tribunal took into account evidence with which she did not agree, or placed undue weight on that evidence, then those are matters that we will consider below. Several of Ms Chand’s submissions did not raise any question of law related to the Tribunal’s decision and we have not addressed them. They include submissions about the public interest and the objectives of the AD Act.

Extension to the merits

44 Race and disability complaints. Ms Chand’s first ground for requesting leave for the appeal to be extended to the merits of the Tribunal’s decision was that it did not deal with her complaints of race and disability discrimination. As we have said, while the President of the ADB referred those complaints to the Tribunal they were not pleaded in the Points of Claim or during the hearing. Ms Chand was legally represented at the time when the Points of Claim were filed and during the hearing. A decision was apparently made to abandon those complaints and Ms Chand should not be given a further opportunity to re-agitate them.

45 Sexual harassment complaints. Ms Chand submitted that the Appeal Panel should now join Mr Hinien and Mr Plichta, the employees who allegedly sexually harassed her, as parties. We do not intend to do so. Ms Chand’s representative had every opportunity to join them as parties before the Tribunal. In relation to the complaint against Mr Hinien, we have found that the Tribunal erred when it applied s 22A. That error warrants leave being given for the appeal to be extended to the merits of the Tribunal’s decision in relation to this complaint. We can either remit the complaint to the Tribunal to be heard and decided again, in accordance with this decision, or we can determine the merits of that complaint ourselves: Tribunal Act, s 114. As the Tribunal found that the incidents had occurred and that finding involved no error, there is no issue of credit to be determined. In those circumstances we have decided to determine the merits of this complaint ourselves after inviting further submissions from the parties. The only issues that remain to be decided are:

(i) whether the facts as found by the Tribunal at [43] in relation to Mr Hinien’s conduct constitutes “unwelcome conduct of a sexual nature” in relation to Ms Chand, as set out in s 22A of the AD Act ?

(ii) If so, would a reasonable person, having regard to all the circumstances, have anticipated that Ms Chand would be offended, humiliated or intimidated by that conduct?

(iii) If so, is Railcorp vicariously liable for the conduct of Mr Hinien pursuant to s 53 of the AD Act?

(iv) If so, what remedy, if any, should the Appeal Panel order?

46 The Appeal Panel invites Ms Chand to file and serve any further submissions on these questions within 28 days of the date of these reasons. Those submissions should not contain any new evidence but should refer to the transcript of evidence before the Tribunal and to documents admitted in evidence. Railcorp is invited to file and serve any submissions in reply within a further 28 days. The matter will then be listed for hearing on those issues.

47 Victimisation complaints. We have found that the Tribunal erred when it concluded that s 103 did not allow it to add a complaint of victimisation where the trigger for the “detriment” had occurred prior to the beginning of the period of complaint. The triggers which the Tribunal did not consider because they occurred before 18 June 2002 were those listed in paragraphs 4(a), 4(b) (apart from the complaint to Mr Platt alleged to have been made in October 2002), 4(c), 4(d) and 4(e) (apart from the complaints referred to Mr Abel and Mr Karouche in September 2002) of the Points of Claim. (See [68] of the Tribunal’s decision.) Those “triggers” were as follows:

4(a) Complaints to the Human Resource Officer (South East Sector office) alleging that she had been sexually and racially discriminated against by Dr Walsh, a State Rail panel doctor;

4(b) Complaints to Jan Plichta, Mark Abel and Mark Karouche and to Kevin Platt alleging that she had been sexually and racially discriminated against and sexually harassed by Mr Dempsey;

4(c) Complaints to Janette Koelmeyer and Alan Thomposn alleging that she had been sexually discriminated against by Mr Joe Cadry;

4(d) Complaints to Janette Koelmeyer and Alan Thomposn alleging that she had been sexually discriminated against by Mr John Pias;

4(e) Complaints to Jan Plichta, Mark Abel and Mark Karouche alleging that she had been discriminated against on the basis of her disability and marital status by Ms Nirmala Joshi.

48 In view of the Tribunal’s error, we intend to extend the appeal to a review of the merits of the Tribunal’s decision that the victimisation complaints based on these triggers be dismissed. The following directions are made in relation to that complaint:

Within 28 days of the date of these reasons Ms Chand is to file and serve submissions addressing the following issues based on the transcript of evidence and documents before the Tribunal:

(i) in relation to the “triggers” which fall within the definition in s 50(1)(c):

- what is the evidence that would lead to the conclusion that a detriment allegedly suffered by Ms Chand was ‘on the ground of’ those triggers;

- who subjected her to a detriment on the ground of that “trigger”, and

-what was the detriment and when did it occur.

(ii) what remedy, if any, should the Appeal Panel order in relation to each alleged breach of s 50.

Within a further 28 days Railcorp is to file and serve submissions in response. The matter will then be listed for hearing on those issues.

49 When making those submissions, the parties are reminded of the following matters. Section 50 will not be breached unless the allegations Ms Chand says led to the detriment fell within one of the paragraphs of s 50(1). The only paragraph Ms Chand relied on was s 50(1)(c). The respondent submitted that only four of Ms Chand’s triggers fell within that provision, namely the trigger in 4(a) about Dr Walsh, the trigger in 4(b) that she complained to Mr Plichta about Mr Dempsey, the trigger in 4(c) about Mr Cadry and the trigger in 4(d) about Mr Pias. The respondent said that many of the remainder of the complaints Ms Chand made were in the nature of protected disclosures. The respondent’s submission on this point is summarised in the written submissions to the Tribunal at p 19. Ms Chand should address this point in her written submissions to the Appeal Panel.

50 Three of the “triggers” within s 50(1)(c) happened in 2000 and the complaint to Mr Plichta was made in July 2001. The respondent submitted to the Tribunal that there was a plausible reason for the way Ms Chand was treated between 18 June 2002 and 30 January 2003, that is, that she was subject to medical restrictions in terms of the people with whom she could work. Ms Chand should also address this point in her written submissions to the Appeal Panel.

51 Finally, in the Points of Claim Ms Chand listed eleven instances of “detriment” which the alleged triggers are said to have caused. Further particulars of those instances were provided. Some of those alleged detriments occurred after the period of complaint and cannot succeed for that reason. For example, one of Ms Chand’s allegations, that she was denied redeployment, occurred in May 2004. In addition, the first time Ms Chand submitted a medical certificate to say that she was fit for pre-injury duties was 29 October 2003, which is outside the complaint period. The Appeal Panel has no jurisdiction to deal with a “detriment” which occurred outside the complaint period. Consequently, Ms Chand should not refer to those matters in the written submissions.

52 Remaining allegations of victimisation. In relation to the three remaining allegations of victimisation, the Tribunal made factual findings (at [80], [81] and [86]) that the events that Ms Chand said had triggered the detriment had not occurred. While Ms Chand disagreed with those findings, and pointed to evidence supporting her version of events, her disagreement does not justify re-opening those complaints. The Tribunal’s finding that the events said to trigger the detriment had not occurred made it unnecessary for it to determine whether Ms Chand had suffered any detriment as a result of those events.

53 Errors of fact. Ms Chand says the appeal should be extended to the merits of the Tribunal’s entire decision because the Tribunal made inaccurate or incomplete statements, findings of fact with which she disagrees and negative statements about her.

54 Inaccurate or incomplete statements. Ms Chand disagreed with some of the Tribunal’s statements. For example, in the factual background at [17] of the decision, Ms Chand says that some of the dates are incorrect and references to Dr Tran’s medical certificate should have stated that it was a workcover certificate. She also says that she did not lodge any complaints against ASIC as recorded by the Tribunal at [18]. While Ms Chand attributed great significance to these alleged errors or omissions, in our view, even if her version is correct, the errors or omissions had no bearing on the Tribunal’s ultimate findings or the reasons for its decision and do not warrant extending the appeal to the merits of the Tribunal’s decision.

55 Findings with which Ms Chand disagrees. Ms Chand disagreed with the Tribunal’s finding at [81] that she did not send a fax to Mr Platt or his secretary on 15 October 2002. The Tribunal set out the evidence in relation to its finding that the fax was not sent and gave cogent reasons for its conclusion. Ms Chand submitted that the Tribunal should have summonsed two employees who could have shed some light on that question and that the Tribunal was in breach of its obligations under s 73(5)(b) of the Tribunal Act by failing to do so. Section 73(5)(b) obliges the Tribunal to ensure that all relevant material is disclosed to it so that it can determine all of the facts in issue in any proceedings.

56 The obligation in s 73(5)(b) varies depending on whether the Tribunal is making an original decision (as in this case) or reviewing a reviewable decision. In cases in the Equal Opportunity Division, the Tribunal ordinarily allows the applicant to define the scope of the complaint and adduce relevant evidence: KO & anor -v- Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 21. While the Tribunal has power to summons witnesses of its own motion under s 84 of the Tribunal Act, it will not have made an error of law if it fails to do so. That is the case even if that witnesses’ evidence would assist in determining an issue in dispute.

57 Ms Chand also disagreed with the finding at [40] that there had been a history of confrontation between her and Mr Hinien. The relevant history was set out in Mr Hinien’s affidavit. It was not put to Mr Hinien in cross examination that there was no history of confrontation between him and Ms Chand. In fact Mr Hinien gave evidence that he and Ms Chand were “not exactly the best of colleagues”. He also said (at page 67 of the 10/11/06 transcript) that:

I had an interest in avoiding confrontation with her and..(not transcribable)..quite a lot and grinned and beared basically many incidents in the event of maintaining harmony, however, it did reach a stage where I could no longer take it and I requested simply to be transferred from her team. I did not in any way discredit her, nor bad mouth her, nor put her in a negative, and try to seemingly make it a personal thing. It was more me really feeling uncomfortable with the situation and merely requesting a transfer. It was nothing more and nothing less.

58 Mr Hinien’s written and oral evidence is consistent with the Tribunal’s finding that there was a history of confrontation between him and Ms Chand.

59 Negative statements about Ms Chand. Ms Chand says that several statements in the reasons for decision put her in a negative light. The first statement was made at [17] when the Tribunal was outlining the factual background to the complaint:

16 July 2003: Applicant instructed by respondent to consult Dr Gordon Davies, psychiatrist. Dr Davies certifies opinion that applicant suffers from probably (sic) paranoid personality disorder.

60 Ms Chand said that she did not suffer from such a disorder and that the comment was derogatory. The second statement to which Ms Chand took exception was that the Tribunal recorded that she had consulted with five psychiatrists on six occasions. Ms Chand said there was no evidence to support that statement. Thirdly, Ms Chand said that there was no evidence that she had made a total of 167 complaints of harassment or other mistreatment as recorded by the Tribuanl at [18]. The Tribunal said:

During the period of her employment with the respondent, it was stated by the respondent that the applicant made a total of 167 complaints in which the applicant alleged that she had been harassed or otherwise was subjected to mistreatment at the hands of employees of the respondent. Only some of the total number of complaints, were of a formal written nature.

61 Ms Chand says that these statements painted a negative picture of her and led the Tribunal to question her credibility.

62 Reasoning and conclusion. While the first statement is accurate in the sense that Dr Davies did express such an opinion about Ms Chand, it was not necessary for the Tribunal to include it in the reasons for decision. The second statement is also irrelevant. Ms Chand’s mental health was not an issue that was before the Tribunal and she was offended by the Tribunal’s reference to it. The third statement was accurate in that it recorded an assertion by the respondent’s representative about the number of complaints that Ms Chand had made on the basis of material in the President’s Report. Again, it was not strictly necessary for the Tribunal to record that assertion. The Tribunal did not need to include these negative statements about Ms Chand because it did not come to an adverse conclusion about her credit. In those circumstances it cannot be inferred that those statements affected the Tribunal’s willingness to accept Ms Chand’s evidence. The Tribunal accepted much of her evidence and where it was rejected, cogent and detailed reasons were given. In our view, while gratuitous, none of the negative statements justify re-opening the decision on its merits.

Conclusion

63 The Tribunal made the following orders:

1. The complaints of sexual harassment against three employees of the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.

2. That four of the complaints of victimisation against the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.

3. That the remaining complaints of victimisation against the respondent are not substantiated. Each complaint is dismissed.

64 The Tribunal’s order that the sexual harassment complaints against Mr Hinien and Mr Plichta are not within its jurisdiction should be set aside. The Tribunal has jurisdiction to hear and determine those complaints and make orders if the respondent is vicariously liable for the conduct of its employees. The order, in so far as it relates to the complaint against Mr Dempsey, should be affirmed because the incidents involving him fall outside the complaint period.

65 Although neither Mr Hinien nor Mr Plichta was a respondent to the proceedings before the Tribunal, the Tribunal had jurisdiction to determine whether their conduct constituted sexual harassment and whether Railcorp was vicariously liable for that conduct. We have also found that the Tribunal erred in its application of the test in s 22A to the allegations of sexual harassment involving Mr Hinien. That error justifies us giving leave to extend the appeal to the merits of the Tribunal’s decision in relation to that part of the sexual harassment complaint. We make the following directions:

Ms Chand is to file and serve any further submissions on the following questions within 28 days of the date of these reasons. Railcorp is to file and serve any submissions in reply within a further 28 days. The matter will then be listed for hearing on those issues.

(i) whether the facts as found by the Tribunal at [43] in relation to Mr Hinien’s conduct constitutes “unwelcome conduct of a sexual nature” in relation to Ms Chand, as set out in s 22A of the AD Act?

(ii) If so, would a reasonable person, having regard to all the circumstances, have anticipated that Ms Chand would be offended, humiliated or intimidated by that conduct?

(iii) If so, is Railcorp vicariously liable for the conduct of Mr Hinien pursuant to s 53 of the AD Act?

(iv) If so, what remedy, if any, should the Appeal Panel order?

66 In relation to the complaints of victimisation we have found that the Tribunal erred when it decided that it was bound by s 103(2) of the AD Act (the amendment provision) to restrict the claims of victimisation to claims where both the trigger in s 50(1)(c) and the detriment had occurred during the complaint period. We have given leave for the Tribunal’s decision in relation to those victimisation complaints to be extended to the merits of the Tribunal’s decision and make the following directions:

Within 28 days of the date of these reasons Ms Chand is to file and serve submissions addressing the following issues based on the transcript of evidence and documents before the Tribunal:

(i) in relation to the “triggers” which fall within the definition in s 50(1)(c):

- what is the evidence that would lead to the conclusion that a detriment allegedly suffered by Ms Chand was ‘on the ground of’ those triggers;

- who subjected her to a detriment on the ground of that “trigger”, and

-what was the detriment and when did it occur.

(ii) what remedy, if any, should the Appeal Panel order in relation to each alleged breach of s 50.

67 Within a further 28 days Railcorp is to file and serve submissions in response. The matter will then be listed for hearing on those issues.

68 We have dismissed Ms Chand’s complaints of disability and race discrimination because despite the fact that those complaints were referred by the President of the ADB to the Tribunal, they were subsequently abandoned. We have also refused Ms Chand’s application to extend the appeal to the merits of the Tribunal’s decision by joining Mr Hinien and Mr Plichta as respondents or in relation to any other matter.

Orders

1. Order 1 of the Tribunal is set aside and the following order is made:
a. The complaint of sexual harassment involving Mr Dempsey is dismissed for want of jurisdiction.

b. The complaint of sexual harassment involving Mr Plichta is dismissed under s 108 of the Anti-Discrimination Act 1977.

c. Leave is given for the appeal to be extended to the merits of the Tribunal’s decision in relation to the complaint of sexual harassment involving Mr Hinien.

2. Order 2 of the Tribunal is set aside and the following order is made:
Leave is given for the appeal to be extended to the merits of the Tribunal’s decision in relation to complaints of victimisation against the respondent where the allegation under s 50(1)(c) of the Anti-Discrimination Act 1977 occurred before 18 June 2002.
3. Order 3 of the Tribunal is affirmed.

4. Leave is refused for the appeal to be extended to the merits of the Tribunal’s decision in relation to any other complaint.

5. The complaint of race discrimination is dismissed under s 107 of the Anti-Discrimination Act 1977.

6. The complaint of disability discrimination is dismissed under s 107 of the Anti-Discrimination Act 1977.