Dee v Commissioner of Police and Anor

[2003] NSWADT 217

CITATION:	Dee v Commissioner of Police & Anor [2003] NSWADT 217
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Rachael Dee FIRST RESPONDENT Commissioner of Police SECOND RESPONDENT Barry Lalonde
FILE NUMBER:	031005
HEARING DATES:	08/09/2003
SUBMISSIONS CLOSED:	09/08/2003
DATE OF DECISION:	09/15/2003
BEFORE:	Behrendt L - Judicial Member; Alt M - Member; McDonald O - Member
APPLICATION:	Sex Discrimination - In work - Sexual Harassment - In workplace - Victimisation
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Carroll v Zielke & Ors [2001] NSWADT 146 Commissioner of Police v Orr [2001] NSWAP 16 D v Berkley Challenge Pty Ltd [2001] NSWADT 92 Langley v Niland [1981] 2 NSWLR 104 at 107 Razaghi v Director General, NSW Department of Health & Anor [2002] NSWADT 4
REPRESENTATION:	APPLICANT K Eastman, barrister FIRST RESPONDENT S Winter, barrister SECOND RESPONDENT A Gibian, solicitor
ORDERS:	1. The First Respondent’s application to have the Applicant’s complaint of sex discrimination dismissed is rejected.; 2. The First Respondent’s application to have the Applicant’s complaint of victimisation dismissed is upheld.; 3. The First Respondent’s application to have part of the complaint dismissed under s.111 because the President did not lawfully accept it out of time is rejected.; 4. The First Respondent’s application that they should not be a party to the proceedings in relation to the Applicant’s sexual harassment claim is rejected.

REASONS FOR DECISION

1 This is a complaint referred to the Administrative Decisions Tribunal (“the Tribunal”) on 10 January 2003 by the President of the Anti-Discrimination Board (“of the First Respondent, the NSW Police Commissioner”). The Applicant alleges, inter alia, sexual harassment by the Second Respondent.

2 Section 111(1) of the Anti Discrimination Act 1977 states;

Where at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.
3 The First Respondent has made an application under s.111 on three grounds, namely;
a. That the Tribunal does not have jurisdiction to hear the complaints of sex discrimination and victimisation that the Applicant has brought before it in her Amended Points of Claim.

b. That the Tribunal does not have the jurisdiction to hear the parts of the complaint that occurred before June 1999.

c. That the First Respondent should not be a party to the proceedings.

Jurisdiction for Complaints of Sex Discrimination and Victimisation

4 The first issue raised by the First Respondent concerns the Amended Points of Claim filed by the Applicant on 3 July 2003.

5 The First Respondent argues that the Applicant made a complaint of sexual harassment to the Board and that the allegations of sex discrimination and victimisation were only put forward by the Applicant in her Amended Points of Claim, filed in the Tribunal on 3 July 2003.

6 The Tribunal receives its jurisdiction from the complaint referred to it by the Board under s.94(1). The Tribunal cannot consider complaints that go beyond the parameters of the original complaint contained in the Presidents Report. The initial complaint must allege a contravention of the Anti-Discrimination Act1977 but “it need not allege the relevant facts with the particularity of an indictment or pleading”. (Langley v Niland [1981] 2 NSWLR 104 at 107). Particularly where Applicants are unrepresented, the Tribunal can allow the Applicant to pursue complaints that are articulated in the complaint to the Anti-Discrimination Board even if the specific breach of the section of the Act breached are not identified.

7 This requires the Tribunal to consider the ambit of the allegations made by the Applicant within the President’s report to form a view as to whether there is reference to a complaint that can be seen to constitute a breach of the Act even though the Applicant may not have specified the section breached.

8 The Tribunal considered the complaint made to the Board by the Applicant on 23 December 1999. The Applicant clearly states, when asked what type of lawful discrimination she suffered, that she believed the conduct was “sex discrimination”. There is therefore evidence within the original complaint to give the Tribunal jurisdiction to consider sex discrimination. It remains to be seen whether the Applicant is successful in proving a complaint of sex discrimination.

9 The Tribunal also considered whether the Applicant’s complaint to the Anti-Discrimination Board contained a claim of victimisation. The Applicant makes no reference to victimisation within the complaint and there is no evidence in the incidents and harms that the complainant articulates that can imply a complaint of victimisation as a result of having made the complaints about the Second Respondent.

10 For this reason, the claim of victimisation made by the Applicant in her Amended Points of Claim is beyond the jurisdiction of the Tribunal.

Complaint Out of Time

11 The second jurisdictional question raised by the First Respondent is an argument that the Tribunal lacks the jurisdiction to hear the part of the complaint that was lodged with the Board out of time. The complaint was lodged with the Board on 23 December 1999. This meant that the aspects of the complaint that occurred before 23 June 1999 were out of time. The President investigated those parts of the complaint under s.89(1) of the Anti-Discrimination Act 1977 between June 2000 to August 2002. The President also exercised his power under s.92 of the Anti-Discrimination Act 1977 to attempt to resolve the complaint by conciliation, including those parts of the complaint that were outside of the 6 month time limit. On November 2002, the President accepted the out of time part of the complaint.

12 The First Respondent claims that the President did not properly accept those parts of the complaint that were outside of the 6 month time limit and argues that the President took steps to accept the complaints after power had been exercised under s.89(1) and s.92. The First Respondent argues that those parts of the complaint were not proplerly referred by the President of the Anit-Discrimination Board and are therefore beyond the Tribunal’s jurisdiction.

13 The First Respondent relies on Razaghi v Director-General, NSW Department of Health & Anor [2002] NSW ADT 4 for the proposition that:

“in the absence of evidence that the President of the ADT has exercised his/her powers to accept a complaint lodged out of time, the Tribunal must proceed on the basis that the ambit of the complaint, in terms of time, is limited to the six month period preceding the lodgement of the claim with the President (see Commissioner of Police v Orr [2001] NSWTAP 16). The Tribunal would be acting beyond jurisdiction were it to investigate and find any contravention of the Act which fell outside the ambit of the complaint referred to it by the President of the ADT.”
14 However, in this case, the President did exercise his power under s.88(4) to accept the complaint out of time. His letter of 28 November 2002 informing the parties of decision to do so is evidence of that.

15 The notice to the parties of the exercise of the power under s.88(4) may have occurred after the powers were exercised under s. 89(1) and s. 92. However, this does not affect the Tribunal’s jurisdiction.

16 There is no reason for the Tribunal to question the processes and exercise of discretion by the President of the Board in dealing with this complaint before it was referred. While these issues relate to the President’s powers under the Anti-Discrimination Act 1977, they do not impinge upon the Tribunal’s jurisdiction.

Vicarious Liability

17 The First Respondent also submitted that they should not be a party to the proceedings because s.52 and s.53 of the Anti Discrimination Act did not apply to behaviour described in s.22A.

18 The First Respondent claims that conduct defined in s.22A gives rise to a personal liability. Section 22A defines “sexual harassment”:

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.

19 Section 22B(6) states:
“It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons.”
20 Section 53 relates to the liability of principals and employers. Section 53(1) states:
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 of 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.
21 Further s.53(3) states:
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.
22 There is nothing in the wording of s.53 that would imply that conduct found to be sexual harassment does not give rise to vicarious liability for principals and employers. There are cases within this jurisdiction that have applied s.53(1) to conduct found to be sexual harassment ( Carroll v Zielke & Ors [2001] NSWADT 146, D v Berkeley Challenge Pty Ltd [2001] NSWADT 92).

23 The First Respondent also submitted, in the alternative, that should s.53 apply to conduct found to fit the definition in s.22A and s.22B(6), the First Respondent falls into the exemption contained within s.35(1), namely, “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.

24 Section 111 allows for a complaint to be dismissed if it is “frivolous”, “vexatious”, “misconceived”, “lacking in substance” or “for any other reason should not be entertained”. The power to summarily dismiss a complaint under that section should be exercised with extreme caution and the Tribunal must approach s.111 applications on the basis that the applicant must be given every reasonable opportunity to set out the content of a complaint and to produce evidence to support it (Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4).

25 Accordingly, the issue for the Tribunal is, whether taking the Applicant’s evidence at its highest, there is evidence that the First Respondent was vicariously liable for the actions of its employees, the Second Respondent. Under that test, there is enough material in the Applicant’s complaint to satisfy the Tribunal that the First Respondent should remain a party to the proceedings. Whether the First Respondent has acted in a manner that allows the reliance on the exception in s.53 is a matter to be decided at the hearing.

26 Similar principles apply in relation to the Applicant’s reliance on s.52. It is incumbent upon the Applicant to show that the First Respondent acted in a manner that would give rise to liability under that section. Whether that claim has been made out is a matter for hearing.