Desouza v Secom Australia Pty Limited

[2013] FCCA 659

FEDERAL CIRCUIT COURT OF AUSTRALIA

DESOUZA v SECOM AUSTRALIA PTY LIMITED [2013] FCCA 659

Catchwords:
HUMAN RIGHTS – Application in a Case – strike out certain complaints before the Court – s.46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) – application made out in part.

Legislation:  

Australian Human Rights Commission Act 1986 (Cth), s.46PA, 46PH, 46PO

Sex Discrimination Act 1984 (Cth) ss.14, 29B, 94

Disability Discrimination Act 1992 (Cth), ss.15, 42

Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118
Gama v Qantas Airways Ltd [2006] FMCA 11; (2006) 195 FLR 475
Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531
King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8
Haile-Michael v Konstantinidis (No 2) [2012] FCA 167
Travers v State of New South Wales [2000] FCA 1565
Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90
Philip v State of New South Wales [2011] FMCA 308
Hollingdalev Northern Rivers Area Health Service [2004] FMCA 62 [4]
Vijayakumar v Qantas Airway Ltd [2009] FMCA 736
Styles v Clayton Utz (No 3) [2011] NSWSC 1452
McGuirk v The University of New South Wales [2009] NSWSC 1424

Applicant: LORNA MARGARET DESOUZA

Respondent: SECOM AUSTRALIA PTY LIMITED

File Number: SYG 1430 of 2012

Judgment of: Judge Nicholls

Hearing date: 3 April 2013

Date of Last Submission: 3 April 2013

Delivered at: Sydney

Delivered on: 28 June 2013

REPRESENTATION

Counsel for the Applicant: Mr D O'Sullivan

Solicitors for the Applicant: Turner Freeman Lawyers

Counsel for the Respondent: Mr M Seck

Solicitors for the Respondent: DibbsBarker

ORDERS

By consent, that:

1. The applicant provide to the respondent further particulars of each of the persons alleged to have subjected the applicant to unwelcome conduct of a sexual nature alleged in ground two.

The Court further orders that:

1. The respondent’s Application in a Case made on 21 January 2013 is allowed in part and the third sentence of particular (iv) of paragraph (a) of ground one, particular (v) of paragraph (a) of ground one and paragraph (c) of ground one of the applicant’s application and particulars provided in these proceedings are struck out.

2. The Application in a Case is otherwise dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1430 of 2012

LORNA MARGARET DESOUZA

Applicant

And

SECOM AUSTRALIA PTY LIMITED

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an Application in a Case made by the respondent, Secom Australia Pty Limited (“Secom”) on 21 January 2013, seeking to strike out certain complaints made by the applicant, Ms Lorna Margaret Desouza, in her substantive application to the Court, made on 29 June 2012. That substantive application, made pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the Act”), alleges sex discrimination and sexual harassment, under ss.14, 29B and 94 of the Sex Discrimination Act 1984 (Cth) (“the SDA”), and disability discrimination under ss.15 and 42 of the Disability Discrimination Act 1996 (Cth) (“the DDA”) on the part of the respondent. [Even though the Court is considering the Application in a Case, I will continue to refer to the parties as “applicant” and “respondent” as per the substantive application.]

The Australian Human Rights Commission Complaint

1. The applicant made a complaint to the Australian Human Rights Commission (“AHRC”) on 24 October 2011 (see [3] of Ms Wood’s affidavit) alleging sex discrimination, sexual harassment and disability discrimination (the “AHRC letter of complaint”).

2. Attached to that letter of complaint was a document headed “What happened?” (see page 4 of the AHRC letter of complaint attached to the substantive application to this Court and annexure “A” to the affidavit of Ms Wood – referred to below as “What happened?”), in which the applicant, through her legal representative, outlined what, where and who had allegedly discriminated and harassed her, and the manner of the alleged harassment and discrimination. Also attached to the AHRC letter of complaint were various documents relating to the applicant’s complaint.

3. The facts contained in the AHRC letter of complaint can be summarised as follows:

   1)The applicant was an employee of Secom from 26 April 2010 until the termination of her employment on 27 June 2011. The respondent is, and was at the relevant times, a business specialising in providing security. The applicant was employed as an “account manager – protective services” ([1] and [24] of “What happened?”).

   2)The applicant claimed that she was the subject of discriminatory conduct, because of her sex, in the following ways:

   i)

   Upon employment with the respondent, she was assured by Mr Alan Dibb (her direct supervisor) that she would receive a certain level of training, however this did not occur

   
   

   ([4] – [5] of “What happened?”),

   ii)Her original “account” was Colonial First State (“CFS”), however she was “allocated” a less profitable “account” after a new male colleague was “specifically” employed for the CFS “account” ([6] – [7] of “What happened?”). When this occurred she was required to move desks to a less convenient space, even though comparable male colleagues who changed “accounts” were not required to move desks ([8] of “What happened?”).

   iii)The applicant was paid a lesser amount compared to male colleagues ([2] – [3] and [7] of “What happened?”)

   iv)The applicant received a “faulty” phone on which she could not adequately make, or receive, calls. That phone was not replaced promptly and complaints about it were not “actioned” ([9] of “What happened?”). When she was allocated a new phone, it was of a lesser standard than those phones allocated to other account managers. Further, when she accidently broke her phone she was not allocated a new phone. She was aware that other male colleagues (account managers) had phones replaced, or had phones repaired, “almost immediately” ([10] of “What happened?”).

   3)The applicant claimed to have experienced sexual harassment in the workplace. The applicant was the only female member of the account managers group. She claimed that during her employment at Secom she routinely heard and witnessed “sexist and sexually harassing remarks” by male colleagues about female employees within Secom, as well as about female clients of Secom. Examples of these comments included ([11] of “What happened?”):

   i)“‘What she needs is a good lay.’ ‘We should set her up with ___.’ And ‘She’s probably having sex with ____.’[about a client]”.

   ii)“‘She’s got great boobs –  I’d love to bounce them’ [about another client]”.

   iii)“‘She’s a fat fucking bitch’ [about an on-site manager]”.

   iv)“‘She’s over-friendly, putting her boobs in people’s faces. It wouldn’t be hard to give her one’ [about a staff member]”.

   v)“‘If that skirt was any shorter, you’d be able to see her breakfast’ [about a staff member].”

   vi)“All women are bitches/ sluts anyway.”

   4)The applicant claimed that “[t]hroughout her employment [she] was bullied and harassed” ([12] of “What happened?”). This was primarily attributed to the general manager of Secom, Mr Ross Barnes ([12] – [13] of “What happened?”). Further, she claimed that an “administration manager” had “yelled and sworn” at her after she had asked the “administration manager” to perform an administrative task ([14] of “What happened?”). The applicant claimed that a complaint about this event to the general manager was not addressed, and that she received no support from her superiors following this incident ([14] of “What happened?”). Further, the applicant claimed that she felt she was afforded a lower level of support than other male account managers. Further, that other former Secom colleagues had commented on the differential treatment ([15] of “What happened?”).

   5)The applicant claimed that she also suffered discrimination due to her disability. She claimed that this stemmed from her worker’s compensation claim for stress-related symptoms. She claimed that due to her claim, and associated disability, the respondent did not find suitable work for her and, as a result, her employment was terminated on 27 June 2011 ([16] to [24] of “What happened?”).

4. The AHRC held a conciliation conference with both parties on 14 February 2012 ([5] of Ms Wood’s affidavit). There was no resolution of the matter at that time.

5. Following the conciliation conference, the applicant sought leave to amend the original complaint to the AHRC to include a complaint of “victimisation” ([6] of Ms Wood’s affidavit and annexure “C” of that affidavit). That claim centred on the assertion that the respondent, through the actions of a particular employee, had “impeded” the applicant’s ability to gain other employment after her position with the respondent had been made redundant. The complaint was that adverse statements had been made to a potential employer. On 29 February 2012, the AHRC granted leave to include this amendment pursuant to s.46PA of the Act ([7] of Ms Wood’s affidavit and annexure “D” to that affidavit).

6. By letter dated 30 April 2012, a delegate of the President of the AHRC terminated the complaint before the AHRC, pursuant to 46PH(1)(i) of the Act, as the delegate was satisfied that “there [was] no reasonable prospect of the matter being settled by conciliation” ([8] of Ms Wood’s affidavit and annexed to the substantive application to the Court). [For ease, the applicant’s complaint before the AHRC at the time of termination is subsequently referred to as the “AHRC complaint” or the “complaint to the AHRC”.]

Before the Court

1. On 29 June 2012 the applicant filed an application in this Court. That application set out the grounds of the complaint to the Court as well as attached documentary evidence of the complaint to, and termination of the complaint by, the AHRC.

2. The grounds of the application were:

   “1. The applicant was discriminated against in the course of her employment in that:

   (a) She was provided lesser support and resources than comparable male colleagues;

   (b) She was paid at a lower rate than comparable male colleagues doing the same work;

   (c) She was allocated different work than comparable male colleagues;

   (d) She was otherwise treated differently than comparable male colleagues that had not suffered an injury/illness;

   (e) She was selected for retrenchment when male colleagues and colleagues that had not suffered an injury/illness were not;

   (f) She was terminated due to her injury/illness.

   2. The applicant was subjected to unwelcome conduct of a sexual nature

   3. The applicant suffered victimisation in that employees of the respondent sought to impede her ability to obtain alternate employment because of, or in retaliation for her alleging that she had been discriminated against and/or harassed.”

3. The applicant sought the following orders:

   “1. An order declaring that the respondent breached ss.14, 29B and 94 of the Sex Discrimination Act 1984 (Cth);

   2. An order declaring that the respondent breached ss.15 and 42 of the Disability Discrimination Act 1996 (Cth);

   3. An order requiring the respondent to apologise to the applicant for its conduct;

   4. An order that the respondent pay the applicant damages for its breaches of the Sex Discrimination Act and Disability Discrimination Act.;

   5. Such further or other orders as the Court considers just.”

4. The applicant also sought an interlocutory, interim or procedural order:

   “1. That the respondent files a response on or before 27 July 2012.”

5. The respondent filed a response on 20 July 2012 and, in that response, opposed all orders sought by the applicant in her application to the Court.

6. At the first Court date, on 8 August 2012, the Court made orders for the progress of the matter. In particular, an order was made allowing a request for particulars to be made by the respondent to the applicant by 13 August 2012.

7. The matter was next before the Court on 19 December 2012 for mention. It was clear that the timetable set by the Court on 8 August 2012 had not been adhered to, primarily by the applicant.

8. At that time, the respondent noted its intention of filing an Application in a Case on the basis that the grounds of the application to the Court, and the particulars provided by the applicant, were outside the parameters set by s.46PO(3) the Act.

Application in a Case

1. The respondent’s Application in a Case was filed on 21 January 2013. It was listed for hearing on 3 April 2013. No grounds were provided in the Application in a Case.

2. The orders sought by the respondent in the Application in a Case are:

   “1. An order striking out the alleged complaints of discrimination set out paragraphs 1(c) and 1(d) set out in response to question 3 of the application filed on 29June 2012.

   2. An order striking out the particulars of the applicant’s claim set out in number paragraphs 1(ii), 1(iii), 1(iv), 1(v), 3(i), 3(ii), 4(i), the last 5 sub-paragraphs of 7(i), 7(ii) and 7(iii) contained in the letter dated 5 October 2012 from the applicant’s solicitors to the respondent’s solicitors requesting further and better particulars.

   3. An order that the applicant give particulars of each of the persons alleged to have subjected her to unwelcome conduct of a sexual nature alleged in paragraph 2 in response to question 3 of the application filed on 29 June 2012.

   4. Costs.

   5. Such other order as the Honourable Court thinks appropriate.”

3. Order three was consented to by the applicant.

Before the Court

1. At the hearing of the Application in a Case, Mr M Seck, of Counsel appeared for the respondent. Counsel for the applicant was Mr D O’Sullivan.

2. Both parties failed to file written submissions within the timeframe provided for in orders made (by consent) by the Court. As a result, both parties sought leave at the hearing to file, and rely, on written submissions. Leave was granted.

3. Before the Court, the respondent also sought to read and rely on the affidavit of Ms Amber Wood, sworn on 21 January 2013. There was no objection by the applicant and leave was granted by the Court. The applicant sought to read and rely on an affidavit of Ms Ellen Elizabeth Hitchen, sworn on 5 February 2013. There was no objection by the respondent and leave was granted by the Court.

The Legislation

1. The relevant section of the Act, s.46PO(3), provides that:

   “(3) The unlawful discrimination alleged in the application:

   (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

   (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.”

The Respondent’s Position

1. The respondent’s general position was that the application to the Court lacked specificity in light of the complaint made to the AHRC.

2. In written submissions and before the Court, the respondent submitted that the grounds of the application to the Court, and the particulars provided by the applicant to the respondent by correspondence (see annexure “K” to Ms Wood’s affidavit), were not “in agreement” with s.46PO(3) of the Act.

3. In particular, the respondent contended that ([15] of the respondent’s written submissions):

   “…[the] applicant has alleged unlawful discrimination in proceedings before the Court comprising acts, omissions and practices which are different in substance from those made in the AHRC complaint.”

4. The respondent provided a table (pages 5 to 7 of the respondent’s written submissions) in which it indicated the allegations and the manner in which some “acts, omissions, or practices” did not, in its submission, “arise out of [the] same acts, omissions or practices” ([17] of the respondent’s written submissions). Specifically, and variously, it submitted that paragraphs (a), (c), (d) of ground one, and ground two of the application to the Court, were either wholly not within the substance of the complaint to the AHRC, or the particulars provided by the applicant in relation those grounds were not of the “same substance” to link them to the “acts, omissions or practices” alleged in the complaint to the AHRC.

Respondent’s Submissions on the Law

1. Before the Court, the respondent further explained the differences that, in its submission, took the grounds of the application to the Court outside of the allowable constraints defined in s.46PO(3) of the Act. The respondent “dwelt” on the words “acts, omissions or practices” to confine the breadth of the grounds allowable in an application to this Court. Further, the respondent directed the Court’s attention to “specific conduct”, and the prescribed chronology of complaints, amendments and termination before the AHRC outlined in the Act.

2. The respondent submitted that it was necessary for complaints to the AHRC to be of a level of specificity to ensure the identification of the elements of the complaint. That is, to ensure that parties were able to identify the “acts, omissions, or practices” which were alleged to have occurred in contravention of the discrimination legislation. Further, the respondent submitted that s.46PO(3) of the Act was intended to act as a “filter” and that, without the same level of specificity in the complaint to the AHRC, the Court could not be satisfied that the subsequent application made to the Court was within the parameters of s.46PO(3) of the Act. Further, that the complaint to the AHRC here had been appropriately specific and, instead, the inverse had occurred with the application to the Court.

3. The respondent referred to the Full Federal Court in Dye v Commonwealth Securities Limited (No. 2) [2010] FCAFC 118 (“Dye”) which it said had “followed” Judge Raphael’s “close connection” test in Gama v Qantas Airways Ltd [2006] FMCA 11; (2006) 195 FLR 475 (“Gama”).

4. The respondent submitted that there was no “close connection” or “substantial similarity” ([21] of the respondent’s written submissions) between the allegations made by the applicant in the letter of complaint to the AHRC and those made in the application to the Court. Therefore, the applicant was, through these “fresh allegations”, seeking to “expand the scope of her complaint impermissibly” ([24] of the respondent’s written submissions).

5. Before the Court, the respondent further submitted that the applicant had identified new incidents or acts that would not pass the “test” set by Gama (at first instance) because they were “unknown at the time of conciliation and had never formed part of the conciliation”.

6. Further, unlike the circumstances in Dye that led the Full Federal Court to allow the amended application in that case, the allegations made now were “not of the same kind” to those made in the AHRC complaint. That is, the additional incident in Dye was “capable of being characterised as an act that arose out of the same unlawful discrimination of which she complained” ([50] of Dye per Marshall, Rares and Flick JJ).

7. Further, the respondent submitted that the wording of the letter from the AHRC advising of the termination of the complaint to it had been fundamental to the Full Federal Court’s consideration in Dye. The respondent submitted that the “inclusive” nature of the termination letter in Dye, as opposed to being exhaustive in manner, allowed the Court in that case to consider further allegations. The respondent submitted that, in the current case, the letter of termination of the complaint from the AHRC was expressed in exhaustive terms and thereby limited the scope of the application to the Court.

8. The respondent submitted that the “limited flexibility” of s.46PO(3) of the Act had been explained in Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 (“Charles”) and King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8 (“King”) as allowing an applicant to put “…a different legal complexion on the same or substantially the same acts, omissions or practices” (King at [28] per Robertson J). That was, in the respondent’s submission, not the nature of the differences between the complaint to the AHRC and the application to the Court in the present case.

1. Further, the respondent submitted that the fact that the applicant had had legal assistance in the preparation of her letter of complaint to the AHRC, and subsequently in the drafting of her application to the Court, should be taken into account by the Court. Specifically that ([26] of the respondent’s written submissions):

   “…it should be taken that the complaint has been prepared with care and lists each alleged act, omission or practice said to give rise to the unlawful discrimination: Philip v State of New South Wales [2011] FMCA 308 [61].”

Applicant’s Submissions on the Law

1. The applicant submitted ([9] of the applicant’s written submissions):

   “… that all her allegations, as particularised:

   (a) are the same or the same in substance as the unlawful discrimination that was the subject of the terminated complaint; and

   (b) arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint.”

2. Further, the applicant submitted that the correct interpretation of s.46PO(3) of the Act, and that which this Court should follow, was outlined by the Court in Dye ([46] to [48] of Dye, as set out in the applicant’s written submissions at [4]):

   “[46] Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court ‘should not be used to launch an application ... effectively bypassing the procedures provided by the legislation’: Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner [1998] FCA 1607; (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B. Her Honour followed Merkel J’s decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).

   [47] As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F-G. In Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573 at 580-581 [35]- [41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39].

   [48] The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act. It is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s 46PO(3)(b) (in particular) permit of some flexibility. And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court. Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach ‘not bound by technicality’. It provided in relation to, among other provisions, s 46PO:

   ‘Court not bound by technicalities’

   46PR

   In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.

   The ‘substantive directions’ given by s 46PO(3) must still be respected, notwithstanding the provisions of s 46PR: Maghiar v Western Australia [2002] FCA 262 at [18] per French J.”

   [Emphasis per the applicant’s written submissions at [4].]

3. The applicant submitted that, unlike the interpretation propounded by the respondent, the Court’s reasoning in Dye was that: ([5] of the applicant’s written submission and with reference to [49] and [50] of Dye)

   “…a complainant need not provide ‘an exhaustive description of [the] impugned behaviour’ (at [49]) if the incident is ‘capable of being characterised as an act that arose out of the same unlawful discrimination of which she complained or it was the same in substance’ (at [50]).”

   [Emphasis in the original.]

   The applicant submitted that this indicated that the Full Federal Court in Dye did not prescribe any level of specificity for a letter of complaint to the AHRC.

4. Further, that a “plain reading” of s.46PO(3) of the Act does not require the complaint to the AHRC and the application to the Court to be identical. The applicant submitted that the Federal Court in Charles (at [39] per Katz J) and Haile-Michael v Konstantinidis (No 2) [2012] FCA 167 (at [17] per Marshall J) (“Haile-Michael”) had affirmed this interpretation. That is, that there is not a need for “complete symmetry” between the complaint terminated by the AHRC and the application to the Court.

5. Before the Court, the applicant also submitted that orders one and two sought by the respondent in the Application in a Case required a “strict and narrow” interpretation of s.46PO(3) of the Act. Further, that the applicant did not agree with the respondent’s “confined view of the definition of alleged unlawful discrimination” and the subsequent inference of detail as to “acts or omissions” required in a complaint to the AHRC. In support of this submission, particular reference was made by the applicant to s.46PR of the Act.

6. Even further, before the Court the applicant submitted that “the nature of, and the substance of the complaint that was made to the [AHRC] was, in effect, that there had been discrimination on the grounds of sex and disability” and that “broadly” the grounds and particulars objected to by the respondent fell into those two “broad” grounds.

The Relevant Law

1. The parties differ on the understanding of s.46PO(3) of the Act and the way the Court should apply it. A useful (albeit simplistic) starting point is to describe the respondent’s position as a “narrower”, or “stricter”, view of the operation of s.46PO(3) of the Act. That is, as applied to the characteristics of the letter of complaint to the AHRC, the complaint as terminated and what is pleaded before the Court, and the relationship between them. The applicant takes a “broader”, or more “flexible”, approach.

2. The parties differ on what can be drawn from Gama and Dye in this regard. [Note: references to Gama in this judgment refer to Gama at first instance and not the appeal before the Full Federal Court.]

3. To the extent that the respondent says that this Court should have regard to Gama, that may be allowed, subject to the Court’s own view of its correctness and whether it should be followed.

4. The respondent implies that Gama should be followed. Further, that the Full Federal Court in Dye followed what was said to be the “close connection” test in Gama. That, in my respectful view, distorts the order in which the Court should approach the resolution of the current dispute. The starting point for this Court, as a Court inferior to that in Dye, must be Dye. The reasons are so obvious that they require no explanation. What is subsequently allowed of Gama by Dye then may be considered by this Court.

5. In this regard, I note the following from Dye, [46] – [53] (see as set out, in part, at [37] above), as being relevant to the understanding of s.46PO(3) of the Act and of application to the disposition of the respondent’s Application in a Case:

   1)The complaint for consideration is “…the shape which it had assumed at the time of its termination” before the AHRC (Travers v State of New South Wales [2000] FCA 1565 (“Travers”) at [8] per Lehane J, see also Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 94).

   2)There is a balance to be achieved between “a degree of flexibility”, as suggested by s.46PO(3), and the important “constraint” in raising a complaint before the Court not raised before the AHRC (Travers at [8] per Lehane J, see also Dye at [46]).

   3)An applicant is permitted to allege “different facts” before the Court “…provided, however, that the facts now alleged are not different in substance from the facts formerly being alleged” (Charles at [39] per Katz J).

   4)In light of the flexibility permitted by s.46PO(3)of the Act, the application of that section “should not be read with the same strictures as apply to a pleading in a Court” (Dye at [48]).

   5)An alleged incident falls within s.46PO(3) where it is “capable of being characterised as an act that arose out of the same unlawful discrimination of which [the applicant] complained or it was the same in substance” (Dye at [50]).

6. Gama was decided nearly five years prior to Dye. It was noted in the list of authorities in Dye that Gama was “not followed”. Some care must be taken as the reference to Gama (per Judge Raphael) in Dye is at [41]:

   “Her Honour [in context, Katzmann J] construed s 46PO(3) as precluding an applicant bringing proceedings for either an act that was similar in kind to the acts complained of in the terminated complaint or another act by the same individual. She also held that a new incident, even of the same kind or type or substantially the same conduct was outside s 46PO(3), following Raphael FM in Gama v Qantas Airways Ltd [2006] FMCA 11; (2006) 195 FLR 475 at 480 [9]. Accordingly, the primary judge held that the sexual assault alleged to have occurred on 9 June 2006 was not the same or substantially the same conduct as that alleged to have occurred on 1 June 2006. But, her Honour then found that if Ms Dye intended to refer to the events she later attributed to 9 June 2006 in her description to the Commission of the events she attributed to 1 June 2006, then there was a sufficient identity between the two for the purposes of s 46PO(3). Her Honour found that the description of the alleged 9 June 2006 incident was a set of new allegations about the same incident and fell within the existing complaint.”

7. It is the case that the Full Federal Court did not say that Gama was wrongly decided. However, in my respectful view, the respondent’s reliance on Gama now and, in particular, the articulation in Gama of the “close connection” test, must be seen in light of what the Full Federal Court subsequently decided in Dye. In particular, to what it said at [41] of Dye.

8. The respondent’s reliance on Philip v State of New South Wales [2011] FMCA 308 is essentially the same as [46](5) above. The references in the respondent’s submissions to Travers, King and Charles all fall within the proposition extracted from Dye, as set out above at [46](5). That is, an alleged incident falls within s.46PO(3) of the Act where it is “capable of being characterised as an act that arose out of the same unlawful discrimination of which [the applicant] complained or it was the same in substance” (Dye at [50]).

9. The reliance on other authorities of this Court, particularly those that predate the Full Federal Court decision in Dye, must be treated with the same caution. Preference must be given to Dye (see, in particular, Hollingdalev Northern Rivers Area Health Service [2004] FMCA 721 (“Hollingdale”) and Vijayakumar v Qantas Airway Ltd [2009] FMCA 736 (“Vijayakumar”).

10. What can also be added to the understanding set out above, is what was said, relevantly, in Haile-Michael at [17] per Marshall J:

    “…[t]he terms of s.46PO(3) do not require complete symmetry between allegations made in an application before the Court and those raised in a terminated complaint.”

Consideration

Particular (ii) of Paragraph (a) of Ground One

“(ii) She was not provided with a Blackberry telephone which was on the network within the company and included access to emails and calendar. Other employees of the respondent were on this network and provided with a Blackberry telephone including Paul Jenkins who was employed after the applicant was employed. She was not provided with a mobile device and was unable to receive emails other than by her computer. Other employees of the respondent were. She was provided with the older and less serviceable computer for business. All other employees had newer and better computers.”

[See annexure “K” to Ms Wood’s affidavit]

1. The respondent submitted that the relevant complaint in the applicant’s original letter of complaint to the AHRC was limited to a mobile phone that was “faulty” and of an “inferior quality”, and that a “Blackberry telephone”, as mentioned in particular (ii) of paragraph (a) of ground one, was of a different substance to the original complaint that the applicant had received a phone of an “inferior quality”.

2. The applicant submitted that there was no difference in substance between her not receiving a “Blackberry telephone” and receiving an “inferior phone”. Further, that “…[t]he complaint clearly provides that the applicant did not receive the benefit of the same quality mobile phones as her male colleagues” ([14] of the applicant’s written submissions). The applicant submitted that this complaint was wide enough to allow the further evidence that the phone was inferior as the phone was not a “Blackberry” and was not connected to the “Blackberry service”.

3. I do not agree with the respondent that the reference to “Blackberry telephone”, in context, is of a different substance to a “faulty” mobile phone of “inferior quality”. The distinction which the respondent seeks to draw between a reference to a “faulty” mobile phone, or one of “inferior quality”, with a “Blackberry telephone” cannot, in the circumstances, be accepted.

4. The letter of complaint to the AHRC makes reference to the person who replaced the applicant as the manager for the account to which the applicant had initially been allocated (CFS), having received, amongst other things, “a company Blackberry licence” (see [10] of “What happened?”). The applicant’s letter of complaint to the AHRC provided that “she was promised the use of a company phone”. However, she was given a “faulty” phone which affected her capacity to do her work and when she complained, no action was taken by the respondent. ([9] of “What happened?”)

5. The letter of complaint to the AHRC compares this alleged conduct towards her, by the respondent, with the respondent’s conduct towards her replacement. The complaint makes clear that her replacement was given a “company Blackberry”. ([10] of “What happened?”)

6. The word “company” in both parts of the letter of complaint links the complaint including the “Blackberry” to the alleged failure of the respondent to provide the applicant with the use of a “company phone” ([9] – [10] of “What happened?”). This is more than being the same in substance. In fact, it is consistent and identical with the complaint as made. The application to strike out this part of particular (ii) of paragraph (a) of ground one is refused.

7. The respondent also submitted that the second sentence (in particular (ii) of paragraph (a) of ground one) that referred to an “oldest and less serviceable computer” was not of such a nature that it could be found in the complaint to the AHRC. The respondent submitted that the applicant had confined her letter of complaint to the AHRC to the location of her desk and that that was of a different substance to that now particularised in the application to the Court.

8. In response, the applicant submitted that this complaint formed a part of the letter dated 8 August 2011 (see [6] and [7] of annexure “EEH1” to the affidavit of Ms Hitchen). In that letter, the applicant claimed that she was allocated “second-hand” and “faulty” equipment. In particular, [7] of that letter provided (annexure “EEH1” to Ms Hitchen’s affidavit):

   “Our client was only ever allocated second-hand equipment, which was often faulty, and her frequent requests for repairs went unanswered.”

9. That letter was sent by the applicant’s solicitors to the respondent’s solicitors and it makes reference to the factual matters asserted at particular (ii) of paragraph (a) of ground one. Ms Hitchen’s evidence is that the letter was sent to the respondent on 8 August 2011. The respondent was notified by the AHRC of the applicant’s complaint on 24 October 2011 (see the affidavit of Ms Wood at annexure “C”).

10. The applicant does not assert that this complaint appeared in her letter of complaint to the AHRC. Rather, she argues that it became part of the AHRC complaint at some time prior to termination. Therefore, the applicant submitted that it was a complaint before the AHRC at the time of termination.

11. In particular, that the applicant subsequently wrote to the AHRC, by letter dated 27 February 2012 (annexure “C” to the affidavit of Ms Wood), and sought leave to amend the complaint pursuant to s.46PA(1) of the Act. The applicant’s letter of 27 February 2012 was that the amendment was to include “claims of victimisation” under s.94 of the SDA and s.42 the DDA. The “details of the victimisation complaint” were said to be with reference to certain items scheduled “as follows”. One of those items (at [3] of the letter of 27 February 2012) was:

    “By letter dated 8 August 2011, Turner Freeman wrote to the respondent on behalf of the complainant, outlining the complainant’s various claims of bullying, discrimination and sexual harassment.”

12. The dispute between the parties centres on whether the letter of 8 August 2011 was before the AHRC, as opposed to simply a reference to the letter of 8 August 2011 being before it. The respondent said that there was no evidence before the Court to show that the letter itself was before the AHRC. The respondent also said there was nothing to show that it was attached to the letter of 27 February 2012.

13. In essence, the respondent relied on Hollingdale and Vijayakumar for the proposition that ([23] of the respondent’s written submissions):

    “[t]he parameters of the original complaint is established by reference to the incidents alleged to compose the specific acts, omissions or practices contained in the notice of termination and accompanying letter from the President of the AHRC and the terms of the documents setting out the complaints to the AHRC (including any amendments)”.

14. The respondent argued that only a reference to the letter of 8 August 2011, without the actual letter being put before the AHRC, cannot be understood as a reference to alleged incidents set out in that letter.

15. The applicant asked the Court to infer that, given the direct reference by the AHRC delegate (in the letter of notice of termination to the complaint) to the grant of leave to amend the complaint following the letter of 27 February 2012, and the reference in the letter of 27 February 2012 to the letter of 8 August 2011, the letter of 8 August 2011 would have been “asked for” by the AHRC. That was said to be because the AHRC, in the absence of the letter of 8 August 2011, would not have been able to properly fulfil its statutory obligations. For example, its obligation to conduct the conciliation conference between the parties. The applicant referred the Court to Travis at [8] in support of this position.

16. I cannot see that Travis assists the applicant in relation to the inference that she asks the Court to draw. It is the case that a degree of flexibility should be brought to this assessment. Further, that relevant detail can be elicited by the AHRC during the course of inquiry and need not only have been obtained by requesting a copy of the letter. Even further, that the AHRC complaint should not be constrained as if it were a pleading (even though solicitors were involved in the current matter). However, even if all of these matters were to be “conceded”, none of these, in my view, allow the inference to be drawn that the applicant seeks.

1. The letter of 8 August 2011 predated the lodging of the complaint to the AHRC on 24 October 2011. It is the case that the shape of the complaint as at termination, and not necessarily at lodgement, is of relevance. However, the reference to the letter of 8 August 2011 in the request to amend, was made with reference, by and large, to the sequence of action taken by the applicant leading up to the making of the request for amendment and with reference to the stated purposes of the amendment. That purpose was the alleged victimisation of the applicant arising out of her attempt to find new employment in

   
   

   late-October 2011.

2. The circumstances of the letter of 27 February 2012 and the focus on these events, leaves open a stronger, and contrary, inference to be drawn. That contrary inference is that the AHRC did not need to ask for the letter of 8 August 2011 because it was, at best, background to the subject of the request for amendment of the complaint. Further, the subject of the request for amendment does not involve the applicant being given an “oldest and less serviceable computer” as set out in particular (ii) of paragraph (a) of ground one.

3. An alternative position for the applicant in relation to particular (ii) of paragraph (a) of ground one is that [15] of the letter of complaint to the AHRC was such that, when viewed in light of relevant authorities, it was sufficient to say that the disputed particular fell within the third and fifth principles derived from Dye and as set out at [46](3) and (5) above.

4. Paragraph 15 of the letter of complaint to the AHRC (attached to the application to the Court) is in the following terms:

   “The complainant generally feels that she did not receive the same treatment and support as other, male account managers. Former colleagues have commented to the complainant that she was treated differently, and detrimentally, in comparison to her male account manager colleagues.”

5. In the preceding paragraphs, the applicant had complained to the AHRC that she was bullied and harassed by the respondent and some of its employees (see [12] – [14] of the AHRC letter of complaint). It is clear that at [15] the applicant complained about being treated differently to other male account managers. That was put in the general context of a complaint about bullying and harassment (see the heading above [12] – “Bullying and Harassment”, which includes [15]).

6. The applicant’s complaint of differential treatment was factually particularised at [10] of the letter of complaint to the AHRC, or at least drew on the factual allegations set out there. This included the reference to her male replacement being given a “laptop”, along with other “new” equipment. In these circumstances, the reference in particular (ii) of paragraph (a) of ground one to an “oldest and less serviceable computer” than that given to other employees, is a new alleged fact which nonetheless, in substance derives from the same complaint. It should be allowed. The respondent’s position is not made out.

Particular (iii) of Paragraph (a) of Ground One

“(iii) She was not provided Admin support. Other employees were.”

[See annexure “K” to Ms Wood’s affidavit]

1. Particular (iii) of paragraph (a) of ground one complains about a lack of administrative support. The respondent submitted that there was nothing in the complaint to the AHRC to “catch” this particular.

2. The applicant submitted that [15] of the letter of complaint to the AHRC (“[t]he complainant generally feels that she did not receive the same treatment and support as other, male account managers”) was broad enough to include this particular. Further, that there was specific reference in the complaint to an occasion on which she had “…unsuccessfully attempted to seek administrative support from an administrative employee” ([15] of applicant’s written submissions).

3. This is similar to the matter immediately above. The complaint to the AHRC was of differential treatment by the respondent as towards her and other male account managers ([15] of the AHRC letter of complaint).

4. When that is read in the context of the factual allegations under the heading of “Sex Discrimination” (page 4 to page 5 of the AHRC letter of complaint) it is clear that the term “Admin support” is a description, or generalised label, for the various factual assertions made in relation to the provision of equipment (including resources) required to do the relevant job. This complaint is to be allowed. The respondent’s position is not made out.

Particular (iv) of Paragraph (a) of Ground One

“(iv) Her requests for assistance, and supervision from her immediate supervisor, Mr Dibb and his supervisor Mr Milson, were repeatedly ignored. Other employees had their enquiries dealt with quickly and responsively. She was excluded from meetings attended by other employees in which support and guidance was provided.”

[See annexure “K” to Ms Wood’s affidavit]

1. Particular (iv) of paragraph (a) of ground one asserts a lack of assistance and supervision. The applicant asserted that she was ignored by her immediate supervisor when making her requests for assistance and supervision. The respondent submitted that there was no reference to either of those matters in the AHRC complaint. Before the Court, the respondent further explained that there was “no reference there to any provision of any prompt assistance or supervision”. While the respondent accepted that there had been complaints about a lack of initial training, such complaints were not broad enough to include this particular.

2. Further, the respondent submitted that the applicant had confined her complaint to the AHRC to the “allegations of discriminatory treatment” expressed in a “quite specific narrative form”. The respondent submitted that the allegations found in the particulars were of a “fundamentally different substance”. Specifically, the respondent drew a difference between a “failure to provide training”, as in the particulars, and “someone not returning her phone calls”, as in the letter of complaint to the AHRC.

3. The applicant submitted that [15] of the letter of complaint to the AHRC caught this particular. Further, that at [4] and [5] of the AHRC letter of complaint, the applicant had outlined her “lack of support, training and guidance” ([16] of the applicant’s written submissions).

4. At particular (iv) of paragraph (a) of ground one, the applicant essentially makes three factual allegations. The first is that her immediate supervisors repeatedly ignored her requests for assistance. Second, that this was in contrast to how other employees were treated. Third, she was excluded from meetings at which other employees were given support and guidance.

5. I agree with the applicant that [15] of the AHRC letter of complaint provides, in part, the basis for some of the facts asserted in the particulars. The claimed lack of support and differential treatment is plainly stated. That this emanated from persons in authority, or in a supervisory or managerial role, is plainly implied. If read in context with the whole of the AHRC letter of complaint, the complaint becomes explicit.

6. I note that I took the view that the reference in the particulars (particular (iv) of paragraph (a) to ground one) to “Mr Milson”, described as Mr Dibb’s “supervisor”, was a mistaken reference to “Johan Nilsson” (see [6] of the AHRC letter of complaint). That the particulars identify Mr Dibb, is a factual assertion arising from the same complaint, and, in that sense, is in substance similar to the complaint as terminated by the AHRC.

7. I also note at this point that this illustrates the divergence between the parties as to relevant applicable authorities. The respondent, in relying on Gama and the so-described “close connection” test, has failed to grasp what, in my respectful view, is the far more nuanced understanding of s.46PO(3) explained in Dye (and with reference to the relevant authorities set out there) and the balance to be achieved by the Court in its consideration, and application, of the various elements of that understanding of s.46PO of the Act.

8. The respondent’s submissions make reference to the “quite specific narrative form” of the applicant’s letter of complaint to the AHRC. That does not expose any weakness in the applicant’s relevant arguments before the Court now.

9. The matters set out in the letter of complaint are plainly in narrative form. However, that can be explained when regard is had to the direction provided by the AHRC to the applicant. The relevant part of the letter of complaint commences with:

   “What happened?

   Describe the events that you want to complain about. We need to know what you say happened, where it happened and who did it. Please give us all the dates and other details that you can remember. If you are complaining about employment, please tell us when you commenced employment, your job title and whether you are still employed.”

   [Emphasis in the original.]

   The applicant then proceeded to answer that question in the manner directed.

10. Having said that, however, I agree with the respondent that the applicant’s assertion that she was excluded from meetings cannot be said to, in substance, arise from the complaint to the AHRC as presented in the narrative in the AHRC letter of complaint. The lack of support and training set out at [4] – [5] of the letter of complaint to the AHRC was plainly directed to the allegation concerning Mr Dibb.

11. Therefore the respondent’s objection to particular (iv) of paragraph (a) of ground one is, in part, made out in relation to the third sentence of particular (iv) of paragraph (a) of ground one. Otherwise, the objection is not made out.

Particular (v) of Paragraph (a) of Ground One

“(v) There were also a number of informal meetings that our client was deliberately excluded from which took place with the National Manager and Assistant National Manager. This prevented the applicant asking important question in relation to her job requirements. At other times, she would attempt to contact Alan Dibb directly by telephone however he would rarely respond to her calls. The other employees involved included the other account managers, Brett Robertson, Tim Gaven, Paul Jenkins.”

[See annexure “K” to Ms Wood’s affidavit]

1. Particular (v) of paragraph (a) of ground one outlines “informal” meetings to which the applicant claimed that she was not invited. The respondent submitted that this could not be found in the AHRC complaint.

2. The applicant made the same submissions for this particular as particular (iv) of paragraph (a) of ground one (see [80] above).

3. Having regard to what is set out immediately above at [82] – [88] (in relation to particular (iv) of paragraph (a) of ground one), I agree with the respondent that this complaint does not arise from the complaint before the AHRC and as terminated by it. The respondent’s objection to particular (v) of paragraph (a) of ground one is made out.

Paragraph (c) to Ground One

“(c) She was allocated different work than comparable male colleagues;”

“(i) The applicant was required to deal with recovering payment on unpaid accounts up to a period of between five to seven years previously. None of the other account managers, other than Tim Gaven who dealt with accounts associated with his one client, none of the other account managers were required to deal with outstanding accounts which were up to seven years old. No other account managers were required to deal with accounts that were not related to their client.

(ii) The applicant was required to undertake this accounts role in addition to her regular duties which impacted upon her substantive role due to excessive workload which was outside the scope of her job position. She had repeatedly requested a job description but this was never provided to her.”

[See substantive application to the Court and annexure “K” to Ms Wood’s affidavit]

1. The respondent submitted that no complaint about the applicant being allocated work different to her (comparative) male colleagues was made to the AHRC. Further, that the “acts, omissions or practices” provided in the particulars to paragraph (c) of ground one could not be identified, to any extent, in the letter of complaint to the AHRC. The respondent submitted that the applicant’s complaint about work allocation was limited to the fact that she had been removed from one account and placed on another.

2. The applicant submitted that this complaint arose out of the “same acts and practices” of the respondent as alleged in the complaint to the AHRC ([10] of the applicant’s written submissions). Further, that in its response to the AHRC letter of complaint, the respondent had recognised that this ground was a “live issue”. In particular, that the respondent’s response to the AHRC complaint, which can be found at annexure “B” to the affidavit of Ms Wood, specifically stated that (at [3]):

   “Secom denies that Ms Desouza was moved from managing the Colonial First State account because of her gender…Secom allocates work to employees with the relevant skills and experience to complete the work in accordance with the needs of Secom and its clients.”

3. Further, that the applicant’s letter of complaint to the AHRC at [15] included a “broad narrative description” of this issue. That “broad narrative” outlined her impression of being treated differently as compared to her male colleagues. That statement, in the applicant’s submissions, was broad enough to cover the ground in the application to the Court.

4. It can be accepted that what is set out at [15] of the letter of complaint to the AHRC is a broad assertion of differential treatment between the applicant and her male account manager colleagues. However, I do not see that the relevant authorities (Dye and those which I have referred to above) stand for the proposition that such broad statements should be read in such a way as to allow any subsequent assertion to be included, irrespective of the context in which the AHRC complaint was framed.

5. The authorities recognise flexibility as an available element. They also make plain that that flexibility extends to the assertion of new facts. However, the distinction is that the substance of those facts must not be different to that contained in the complaint as terminated by the AHRC.

6. In my view, this complaint offends the latter, in that it cannot be said to, in substance, be the same as the AHRC complaint. What is asserted in the particulars to paragraph (c) of ground one is that the applicant was required to deal with unpaid accounts in a way not required of other account managers. Further, that this requirement meant she had to undertake an excessive workload outside the scope of her “job position” (see the annexure “K” to Ms Wood’s affidavit).

7. It is here that [15] of the letter of complaint to the AHRC must, again, be read in context. To the extent that it represents some general assertion, that assertion must be understood in the context of the document in which it appears. That context, relevantly with reference to [4] and [5] of the letter of complaint to the AHRC, substantially links [15] of the letter of complaint to the AHRC to Mr Dibb (and the different treatment relevant to the applicant’s ability to conduct the CFS account, her removal from this account, the circumstances of its allocation to a new male employee, and the lack of administrative support to the conduct of her work).

8. I cannot see that the alleged expectation of recovery of unpaid debts, and the applicant’s “substantive” workload, can be said to be of such character as to be said to have substantially arisen from the AHRC complaint.

9. The applicant’s reference to annexure “B” of the affidavit of Ms Wood (the respondent’s reply to the AHRC in relation to the applicant’s AHRC letter of complaint) does not assist here. In that document the respondent denies that the applicant was moved from the CFS account because of her gender. Before the Court, the respondent submitted that its work allocation practice, contrary to the applicant’s submission, when seen in context of the respondent’s letter, and the applicant’s letter to which it responded, says nothing about the requirement for the applicant to recover unpaid debts or to undertake duties beyond her “normal” job. Duties, which in any event, the applicant says otherwise were never provided (in the sense of explained) to her.

10. The respondent’s objection to paragraph (c) of ground one is made out.

Paragraph (d) to Ground One

“(d) She was otherwise treated differently than comparable male colleagues and colleagues that had not suffered an injury/illness;”

“(i) The applicant was treated differently in that the applicant was advised that there was no work available to her, and that there was no reason for her to return to work. The applicant was further treated differently than her comparable male colleagues in that (in the event the respondent asserts there was process undertaken to identify redundancy) such process was undertaken when she was absent from work and she was provided no capacity to provide input into that process.”

[See substantive application to Court and annexure “K” to Ms Wood’s affidavit]

1. The respondent submitted that this complaint, as particularised, was in opposition to the facts as described in the AHRC complaint. First, particular (i) of paragraph (d) of ground one alleged that the applicant was “advised there was no work available”. That could not be made out on the facts contained in the complaint to the AHRC. Specifically, at [23] of the letter of complaint to the AHRC, the applicant had stated that she was told that “…she had not been stood down and she was expected to attend work…”. The respondent submitted that that was different in substance to the complaint now and could not “appear to form part of any claim for unlawful discrimination”. Further, that the second sentence of particular (i) of paragraph (d) to ground one, concerning the applicant’s ability to participate in the redundancy process, was not included in the AHRC complaint.

2. In written submissions, the applicant submitted that the factual situation was clear in the AHRC complaint. Further, before the Court, the applicant submitted that, like paragraph (c) of ground one, this particular could be caught within [15] of the letter of complaint to the AHRC. Moreover, that it was clearly stated in the letter of Ms Hitchen, dated 8 August 2011, and therefore was not a matter of a different substance as alleged by the respondent.

3. To be clear, the thrust of paragraph (d) of ground one is that, following injury and illness, the applicant was advised that there was no work available for her and that, in this she was treated differently to other colleagues.

4. The respondent says that when that is compared to the AHRC complaint it is contrary to the facts. The respondent’s reliance is on [23] of the letter of complaint to the AHRC.

5. It is the case that at [23] of the AHRC letter of complaint, the applicant records that she was told by Mr Barnes (the general manager at Secom) “that she had not been stood down and that she was expected to attend work as usual at 9am on Monday 27 June 2011.”

6. However, the respondent’s reliance on this one part of what appears under the heading of “Workers Compensation Claim” ([16] – [28] of the AHRC letter of complaint) is, it must be said, disingenuous. Any plain reading of the entirety of what is set out there, is that whatever was said previously to her (at [23] of the letter of complaint to the AHRC), when she returned to work after absence, because of her medical symptoms, she was told there was no work for her. How else could what is attributed to Mr Barnes at [24] of the letter of complaint to the AHRC be understood.

7. As to being treated differently in this regard, [25] of the letter of complaint to the AHRC stands in answer to the respondent.

8. I should note that the reference to an absence of process (to the extent that it may ultimately be relevant in these proceedings) also arises from what is described at this part of the letter of complaint to the AHRC ([18] – [24] of the AHRC letter of complaint).

1. The respondent’s application in relation to paragraph (d) of ground one is not made out.

Particular (i) of Ground Two

“(2) The applicant was subjected to unwelcome conduct of a sexual nature”

“(i)…

…

‘She always acts like a slut.’

‘I’d like to give her one.’

‘What she needs is a good hard fuck.’

‘I’d like to stick my dick between her tits.’

‘Those gook bitches in accounts couldn’t organise a fuck in a brothel.’

[See substantive application to the Court and annexure “K” to Ms Wood’s affidavit]

1. The respondent submitted that the comments found in the “last 5 sub-paragraphs” (see Application in a Case) of particular (i) of ground two went beyond those in the complaint to the AHRC in a manner that was of a “different substance”. Further, that the additional comments were of a “different character”.

2. The applicant submitted that the comments included in particular (i) of ground two were not of a different character.

3. The applicant set out in her letter of complaint to the AHRC examples of comments made in her presence which she said constituted sexist and sexually harassing conduct. (See [11] of the AHRC letter of complaint under the heading of “Sexual Harassment”).

4. Particular (i) of ground two sets out a list of comments. The respondent does not dispute those comments set out at particular (i) of ground two other than the last five set out above. It must be said it would be difficult to do so given what is set out at [11] of the letter of complaint to the AHRC. Instead, the current dispute is limited to only the last five comments set out at particular (i) of ground two of the application to the Court. That is, those comments set out above (at [110]).

5. It must be said that, before the Court, the respondent never satisfactorily explained how the “second” set of comments could be said not to be, in character and in substance, arising out of the same unlawful discrimination of which the applicant complained to the AHRC. They are merely further examples, or particulars, of the applicant’s complaint. That is self evident on the plainest reading. The respondent’s application is not made out in relation to this particular (i) of ground two.

Particular (ii) of Ground Two

“(ii) These comments were made in the general workplace on a daily basis. The times when the applicant complained about that conduct she was told that any complaints she made to any senior manager would lead to ‘problems’ for her. Her direct manager Mr Alan Dibb said words to the effect:

‘You don’t want to embarrass me Lorna. I wouldn’t do that if I was you.’”

[See annexure “K” to Ms Wood’s affidavit]

1. The respondent says that the comment alleged to have been said by Mr Dibb in particular (ii) of ground two, was not part of the complaint to the AHRC. Before the Court, nothing further of relevance was submitted by the respondent. The applicant submitted that the complaint was in the nature of the previous complaints regarding a lack of support when “making complaints about the behaviour of her colleagues” and, therefore, arose out of the same “practices, acts and omissions” ([19] of the applicant’s written submissions).

2. I agree with the applicant that particular (ii) of ground two arises out of the same practices, acts and omissions as in the AHRC complaint. The applicant’s complaint to the AHRC was that she was not supported when she made complaints about her colleagues. Before the Court, and in particulars, the applicant has given an example of this. The respondent’s complaint is not made out in regard to particular (ii) of ground two.

Particular (iii) of Ground Two

“(iii) The conduct was undertaken by numerous employees of the respondent, including Brett Robertson, Tim Gaven, Paul Jenkins, Alan Dibb, Johan Nilsson and Ross Barnes. Mr Barnes is the most senior manager that the applicant had contact with. She had no real capacity to make a complaint beyond him.”

[See annexure “K” to Ms Wood’s affidavit]

1. The respondent submitted that the applicant had failed to attribute her alleged sexual harassment to any specific individuals. The respondent took issue with the word “including” in particular (iii) of ground two, referring to McCallum J’s statement in Styles v Clayton Utz (No 3) [2011] NSWSC 1452 (at [79]) that “[t]he use of the term ‘including’ to preface such particulars should be avoided”. The respondent submitted that the particular left it to the respondent “to speculate about the identity of the other persons in respect of whom the respondent is alleged to be vicariously liable” (referring to McGuirk v The University of New South Wales [2009] NSWSC 1424).

2. The respondent submitted, at [29] of written submissions, that

   “…a corporate employer cannot be engaged in sexual harassment and can only be culpable on the ground of vicarious liability under s 106 of the SD Act. The respondent cannot meaningfully avail itself of the defence under s 106(2) unless it knows which employee is alleged to have engaged in the sexual harassment.”

   Whether the matter alleged can be made out is, of course, a separate issue to be tried at the hearing of the application to the Court.

3. The respondent’s concern regarding the use of the word “includes” can be addressed, as the respondent requested, by an order by the Court that the applicant provide, by way of further particulars, the complete list of the identities of those who it is alleged made these comments. In any event, before the Court the applicant agreed to do this by consenting to order three of the Application in a Case. The respondent’s complaint is not made out in relation to part (iii) of ground two.

Conclusion

1. In summary therefore, the respondent’s complaint in the Application in a Case is not made out with respect to particular (ii), (iii) or (iv) of paragraph (a) of ground one, save for the third sentence of particular (iv) of paragraph (a) of ground one (“…she was excluded from meetings attended by other employees in which support and guidance was provided”). Similarly, for the reasons set out above, the respondent’s Application in a Case is not made out with respect to paragraph (d) of ground one and particular (i), (ii) and (ii) of ground two.

2. The respondent has, however, successfully made out its complaint in relation to the third sentence of particular (iv) of paragraph (a) of ground one, particular (v) of paragraph (a) of ground one and paragraph (c) of ground one. I will make orders accordingly.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 28 June 2013