Dhillon v Rail Corporation of NSW

[2009] NSWADT 96

Set aside by Appeal:

CITATION:

Dhillon v Rail Corporation of NSW [2009] NSWADT 96

DIVISION:

Equal Opportunity Division

PARTIES:

APPLICANT
Anastasia Dhillon

FIRST RESPONDENT
Rail Corporation NSW

SECOND RESPONDENT
Tony Osmani

THIRD RESPONDENT
Tony Sinikoski

FOURTH RESPONDENT
Alfonso Mateo

FIFTH RESPONDENT
Jose Mateo

SIXTH RESPONDENT
Fady Younes

FILE NUMBER:

071111

HEARING DATES:

23 April 2009

 
DATE OF DECISION: 

6 May 2009

BEFORE:

Britton A - Deputy President

LEGISLATION CITED:

Anti-Discrimination Act 1977 (NSW)

CASES CITED:

New Zealand v NSW Land and Housing Corporation [2006] NSWADT 126
Trevor Gallagher v Aboriginal Hostels Ltd [2006] AIRC 298
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

REPRESENTATION:

Applicant Representative
P Thew, barrister

Respondent Representative
Y Shariff, barrister

ORDERS:

Application for interim orders is dismissed.

REASONS FOR DECISION

1 Ms Dhillon applies for an interim order under s 105 of the Anti-Discrimination Act 1977 (NSW) in the following terms:

That RailCorp reinstate the special allowance paid to Ms Dhillon between August 2006 that was terminated on 15 Feb 2009.

2 RailCorp opposes this application.

3 At the hearing listed to determine this application, the parties advised that in principle, agreement had been reached about a second proposed order, which was set out in Ms Dhillon’s submissions filed in the Tribunal on 15 April 2009.

4 The materials before the Tribunal and considered in this application are:

- the President’s Report;
- two affidavits sworn by Ms Dhillon on 6 April and 22 April 2009 respectively (but only paragraphs [14] – [21] of the latter);
an affidavit sworn by her solicitor, Mr Michael Jaloussis, on 3 April 2009; and
- an affidavit prepared by RailCorp manager, Ms Danielle Mesa, sworn on 20 April 2009.

Both parties provided written submissions.

Factual Background

5 To put the parties’ submissions in context it is necessary to sketch in the factual background to Ms Dhillon’s application.

6 In July 2005, Ms Dhillon lodged an internal complaint with RailCorp in which she alleged that she had been sexually harassed by the Second to the Fifth Respondents. At that time she was acting in the position of Administrative Assistant and paid an annual salary of $60,000. Her substantive position entitled her to a lesser salary of about $47,000. In August 2005, RailCorp created a temporary position for Ms Dhillon, which attracted a slight increase in salary to $63,000.

7 In November 2005, Ms Dhillon lodged a workers’ compensation claim. She has not returned to work since that time. That claim was accepted and Ms Dhillon was paid the rate prescribed by the applicable workers’ compensation legislation. In August 2006, following a request by Ms Dhillon and apparently media pressure, RailCorp agreed to ‘top up’ her workers compensation payments to the salary she would have received had she continued to work (‘the Special Leave Payment’). It is common ground that this payment was in excess of RailCorp’s obligation under the governing workers’ compensation legislation.

8 RailCorp contends that this payment was not in the nature of a ‘replacement’ of Ms Dhillon’s workers’ compensation payment, nor made pursuant to any policy, nor stated to apply indefinitely but was and remained a payment made at RailCorp’s discretion.

9 Late last year RailCorp manager, Ms Mesa commenced a review of Ms Dhillon’s file. She decided to terminate the payment and claims the factors relevant to that decision included:

- the completion of the investigation into Ms Dhillon’s allegation of sex harassment;
- RailCorp’s decision to terminate or ‘otherwise deal with’ the subject employees;
- Ms Dhillon’s advice that she would not be returning to RailCorp (which is denied); and
- her view that in those circumstances the payment could no longer be seen as a ‘temporary fix’.

10 Ms Dhillon was advised in December 2008 that the Special Leave Payment was under review. Ms Mesa claims she notified Ms Dhillon in mid February 2009 that a decision had been made to terminate the Payment. This is denied. According to Ms Dhillon, the last payment was made in mid February 2009; while RailCorp contends that it was in the fortnight ending March 2009.

11 In April 2007, Ms Dhillon lodged a complaint with the Anti-Discrimination Board. That complaint was referred to the Tribunal in September 2007.

12 The application for interim orders was filed with the Tribunal on 3 April 2009. Ms Dhillon was incapable of providing instructions to her solicitor from about 2 March 2009 to 30 March 2009.

13 The Tribunal’s power to make interim orders is conferred by s 105 of the Anti-Discrimination Act which provides:

105 Interim orders
(1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order:
(a) to preserve the status quo between the parties to the complaint, or
(b) to preserve the rights of the parties to the complaint, or
(c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred,
pending determination of the matter the subject of the complaint.
…

Does the Tribunal have power to make the order sought?

14 It is argued for Ms Dhillon that it is open to the Tribunal to make the order sought under paragraphs (a) and (b) of s 105(1). It is common ground that paragraph (c) has no relevance to this application as the disputed allowance did not commence until after the matters complained about in her complaint to the Board had occurred.

15 In summary, Ms Dhillon’s argument is that the Tribunal has power to make an order pursuant to both paragraphs (a) and (b) because:

- the provision of the special payment has, by custom and usage over two and a half years, become a contractual payment;
- the nature of the payment is, in any event, irrelevant when considering the status quo or the rights of the parties; and
- the Tribunal is not bound to fix the relevant time as the time of application for interim orders but may fix another time for the purposes of establishing the state of affairs that constitutes ‘the status quo’.

16 In relation to the question of preservation of the status quo, counsel for Ms Dhillon, Ms Thew, argues that the Tribunal should apply a purposive construction of the sub-section. She relies on the definition of ‘status quo’ in Butterworths Legal Dictionary (Nygh, P and Butt, P (eds), Sydney, 1997), which is ‘the state of affairs now or at some given time’ [emphasis added] and points out that this definition was accepted by the Tribunal in New Zealand v NSW Land and Housing Corporation [2006] NSWADT 126. Relying on that definition, she submits that the Tribunal is entitled to select a particular time, not necessarily the time of the application or hearing, as the relevant time at which the status quo may be preserved.

17 Ms Thew contends that it is evident from a reading of s 105 that Parliament’s intention was to enable the Tribunal to protect a complainant’s ‘human rights’ and to protect them from discrimination. She asserts that, taking a purposive approach to the construction of s 105 ‘leads to an interpretation that does not restrict the status quo or rights to a particular date’. Her argument in effect is that the Tribunal should read ‘preserve the status quo’ as including the meaning ‘restore the status quo ante’. She says that any other interpretation would defeat the purpose of the provision. She says that a restrictive reading of the provision would mean that the power under s 105(1)(a) could only be used where a complainant had advance notice of the offending decision.

18 She says that the proposed Order, if made, would ‘keep alive’ or keep ‘in existence’ the state of affairs that existed as at the date the special payment was terminated.

19 On the question of whether there are rights to be preserved under s 105(1)(b), Ms Thew argues that, by the passage of time, custom and usage, a payment that may have begun as an ex gratia or discretionary payment has, at some unspecified point before its purported termination, transformed into a contractual payment.

20 I was referred to the decision of the Australian Industrial Relations Commission in Trevor Gallagher v Aboriginal Hostels Ltd [2006] AIRC 298 as authority for the proposition that a lengthy passage of time may be sufficient for a custom to give rise to a contractual obligation by implication. That is to say, an objective analysis of the conduct of the parties to the contract may suggest a meeting of minds and an agreement.

21 RailCorp, on the other hand, submits that the Tribunal has no power to make the proposed Order under either head. Counsel for RailCorp, Mr Shariff, contends that, while the Tribunal may ‘preserve the status quo’, it does not have power to reinstate or revive a previous state of affairs that no longer obtains. Further, he argues that Ms Dhillon had no relevant rights to be preserved by the order as the special payment is entirely discretionary being, in effect, an ex gratia payment.

22 In relation to the issue of preservation of the status quo, Mr Shariff argued that words constituting the phrase ‘preserve the status quo’ must be read and interpreted together, as a phrase, not as a collection of discrete words unanchored from their context. Relying on the Macquarie Dictionary definition, he says that ‘preserve’ means to ‘keep alive or in existence’, to ‘save’, to ‘keep up’ or ‘maintain’, or to ‘keep possession of’ or ‘retain’. Thus, he says, the Tribunal has no power under sub-section (1)(a) to restore a state of affairs that no longer exists but only to maintain or save a current state of affairs.

23 In relation to the question of whether Ms Dhillon has a right to the special payment, RailCorp’s position is simply that the payment was always discretionary and that there was never any agreement, express or implied, that it would become an entitlement under a contract of employment.

24 In my opinion, RailCorp is correct on both points.

25 As tempting as it may be in some circumstances to interpret the phrase ‘to preserve the status quo’ as entitling the Tribunal to wind back the clock, or indeed, if Ms Dhillon’s argument is accepted, to wind it forward, to benefit or protect a complainant, to do so would be to stretch the language of the sub-section beyond breaking point. The sub-section appears to be intended to ensure that a respondent may not take future action that disadvantages or prejudices a complainant and to give complainants a right to claim the Tribunal’s protection from threatened prejudice or disadvantage pending determination of their complaint by the Tribunal. This is to be inferred from the use of the word ‘preserve’. That sub-section (1)(c) deals specifically with the restoration of a status quo ante bolsters RailCorp’s argument for the interpretation that I have accepted.

26 Further, the definition accepted by both parties of the status quo – ‘the state of affairs now or at some given time’ – does not mean that the Tribunal can bend time to its own whim. The phrase ‘or at some given time’ merely enables the user of the phrase ‘the status quo’ to specify whether he or she is referring to a present state of affairs or a state of affairs at another time. This does not help Ms Dhillon because the state of affairs she would like preserved no longer exists unless she has an ongoing right or entitlement to the payment.

27 It is a statement of the obvious to say that something, whether it be a state of affairs or a previously tangible object that no longer exists cannot be preserved. For these reasons I have concluded that s 105(1)(a) does not confer power on the Tribunal to make the Order sought by Ms Dhillon.

28 I turn to the argument that Ms Dhillon has a right or entitlement to the Special Payment by virtue of custom, usage and the passage of time and accordingly s 105(1)(b) is available to make the Order sought.

29 It is fundamental to the law of contract that there is no contract, and therefore no rights and obligations under one, unless the parties in question have reached an agreement, which is to say, have a meeting of minds. An agreement may be inferred from the conduct of the parties. The test is an objective one: see, for example, Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165.

30 The evidence of the alleged agreement does not, in my opinion, suggest that RailCorp at any time intended, much less reached an understanding with Ms Dhillon, that the payment would become part of her employment benefits under a contract. Rather, the payments were commenced, it is obvious, as a result of an attack on Rail Corp by the tabloid media and the political pressure that the media brought to bear on it. Mr Shariff argues that RailCorp was a generous and benevolent employer – perhaps so, but its primary interest, in my view, was the preservation of its corporate image.

31 Nowhere, even in the affidavit of Ms Dhillon, is there any direct evidence of a meeting of minds that the special payment or allowance would become a contractual entitlement.

32 The phrase ‘special allowance’ or ‘special payment’ implies that it is unusual and therefore not an ordinary entitlement. Following the flood of publicity in the media about the claims that the managers who had allegedly harassed Ms Dhillon continued to be paid their large salaries while suspended, and the efforts made by RailCorp to address the public perceptions of injustice and victimisation, Ms Dhillon understood that she was receiving special treatment. However, it is difficult to see any evidence, except that the payments continued for over two years, that RailCorp led her to understand that the special payments were anything other than special and related to her complaints of sexual harassment.

33 As is acknowledged in the affidavits tendered on her behalf, these payments were over and above her entitlements under workers’ compensation legislation.

34 As time passed, Ms Dhillon may have hoped and even believed that this special treatment would continue ad infinitum. She, understandably, came to rely on them. She may even have thought she was entitled to them. However, her subjective understanding, belief or hopes about the nature of the payments is not the point. The test is an objective one. The only evidence of such a meeting of minds, if it exists, is inferential, namely, the passage of time.

35 The fact that the payments continued for a considerable period of time, however, is explained by the fact that the internal investigation and disciplining of the managers took time and the fact that the anti-discrimination proceedings have also been protracted. Having been bitten once, very hard, by the media, Rail Corp appears to have decided that, in fairness to Ms Dhillon, and in the hope that it would be viewed as a benevolent employer, it would continue the special payments until recently. However, its patience appears to have become thin, as the resolution of the complaint has drawn on.

36 When all these circumstances are considered, it seems to me more likely than not that the payments were always intended to be ex gratia payments and that there was never a tacit understanding reached by the parties that they would become contractual payments. In short, Ms Dhillon had no rights in respect of those payments to preserve. Accordingly in my view, the power conferred by s 105(1)(b) cannot be used to make the Order sought by Ms Dhillon.

37 It follows that the Tribunal has no powers to exercise under s 105.

Ms Dhillon’s application for interim orders is dismissed.