Ehl v Dept of Education and Training & NSW Teachers Federation

[1999] NSWADT 102

CITATION:	Ehl - v - Department of Education and Training and NSW Teachers Federation [1999] NSWADT 102
DIVISION:	Equal Opportunity
APPLICANT:	Alan Stanislav Ehl
RESPONDENT:	Department of Educaiton and Training New South Wales Teachers Federation
FILE NUMBER:	981027 and 981028
HEARING DATES:	09/01/1999
SUBMISSIONS CLOSED:	09/01/1999
DATE OF DECISION:	25 November 1999
BEFORE:	HG Murrell SC DCJ - Deputy President O McDonald - Member L Lau - Member
PRIMARY LEGISLATION:	Anti-Discrimination Act 1977
APPLICATION:	Aiding and Abetting; Victimisation -
MATTER FOR DECISION:	Application to have complaint dismissed pursuant to section 111
REPRESENTATION:	Applicant: In person Respondent: C Ronalds of counsel instructed by L McKay, Crown Solicitor's Office P MacMahon, solicitor, MacMahon Associates
ORDERS:	1. Department's application granted in part. 2. Federation's application granted.

APPLICATION

1 Pursuant to section 111 of the Anti-Discrimination Act 1977 (the Act) each Respondent applies for the complaint against it to be dismissed on the basis that the complaint is frivolous, vexatious, misconceived, lacking in substance or fails to disclose a breach of the Act.

COMPLAINTS

2 The Complainant made complaints of victimisation against the NSW TAFE Commission (the name of this Respondent has been amended to the Department of Education and Training) and the NSW Teachers Federation.

3 On 3 December 1996 the President of the Anti-Discrimination Board received a complaint of victimisation against the Department of Education and Training. The complaint was supplemented by later correspondence. The President accepted that part of the complaint which concerned incidents that occurred after 3 June 1996.

4 On 19 December 1997 the President of the Anti-Discrimination Board received a further complaint of victimisation against the Department of Education and Training. The complaint was supplemented by later correspondence. The complaint concerned events in June 1997.

5 Pursuant to s94(1)(a) of the Act, on 18 December 1998 the President referred both complaints to the Administrative Decisions Tribunal. The complaint summary forming part of the President’s report noted that the complaints appeared to fall within ss50, 52 and 53 of the Act.

6 On 22 December 1997 the President received a complaint that the NSW Teachers Federation had aided and abetted the Department’s victimisation of the applicant.

7 Pursuant to s94(1)(a) of the Act, on 18 December 1998 the President referred that complaint to the Administrative Decisions Tribunal. The complaint summary forming part of the President’s report noted that the complaint appeared to fall within s52 of the Act.

8 In relation to each complaint, a series of points of claim has been filed with the Administrative Decisions Tribunal. The most recent set of points of claim against each Respondent was filed on 5 July 1999.

ALLEGATIONS OF FACT

9 Examining all complaints against both Respondents and both points of claim filed on 5 July 1999, the relevant factual allegations appear to be as follows.

• Since 1990 the Complainant has been employed by the Department at the Sydney Institute of Technology (SIT). He has been a member of the Federation.
• Dr Sheldon was also employed as a teacher at SIT. From 1992 she was subject of a disciplinary inquiry.
• Dr Sheldon appealed to the Government and Related Employees Appeal Tribunal (GREAT) against the outcome of that disciplinary inquiry. She also lodged a complaint of gender discrimination, which was referred to the Equal Opportunity Tribunal. On 18 December 1997 the Equal Opportunity Tribunal dismissed Dr Sheldon’s complaint.
• The Complainant believes that Dr Sheldon suffered discrimination. In 1995 he assisted her to prepare points of claim in the Equal Opportunity Tribunal. He represented her at directions hearings on 6 December 1995 and 16 May 1996.
• The Complainant represented Dr Sheldon on her appeal before GREAT on 17 to 21 June 1996.
• On 17 July and 14 August 1996 the Department conducted “fact finding interviews” with the Complainant.
• The Department disputed the Complainant’s entitlement to leave without pay in relation to the occasions when he represented Dr Sheldon at GREAT. Further, the Department contended that in representing Dr Sheldon the Complainant had engaged in secondary employment without receiving the Department’s permission to do so.
• On 30 May 1997 the Complainant attended the annual conference of TAFETA, an association of TAFE teachers which is part of the Federation. At that meeting, he distributed a document which alleged corrupt conduct by officers of the Department. The document makes reference to GREAT and refers in passing to the Equal Opportunity Tribunal.
• The document came into the possession of the Department.
• The Department arranged a “fact finding interview” in relation to the TAFETA document. The meeting was to occur on 24 June 1997.

10 Uncontested material before the Tribunal establishes the following:

• The fact finding inquiry on 17 July 1996 concerned the Complainant’s representation of Dr Sheldon before GREAT and associated leave and pay claims.
• The fact finding inquiry on 14 August 1996 concerned the assistance provided by the Complainant to Dr Sheldon in relation to her Equal Opportunity Tribunal proceedings.
• The document which was distributed at the TAFETA meeting was separately distributed by the Complainant to “all members of the TAFETA (no.2) branch situate in NSW”.
• The proposed fact finding inquiry of 24 June 1997 did not take place.
• There is no material establishing who transmitted the TAFETA document to the Department.
  
  COMPLAINT AGAINST THE DEPARTMENT

11 The Tribunal understands that the Complainant’s principal claim against the Department is that he was victimised because of the assistance that he provided to Dr Sheldon. The main form of victimisation was the arranging and conducting of “fact finding interviews”.

12 At the hearing of the s111 applications, the Complainant sought to make the further allegation that the Department restricted the Complainant’s movements in the workplace so as to isolate him from Dr Sheldon.

13 The President of the Anti-Discrimination Board (and, consequently, this Tribunal) has jurisdiction to inquire into an alleged occurrence which amounts to a contravention of the Act or Regulation. The claim must be apparent on the face of the written complaint: Reyes-Gonzalez v Sydney Institute of Technology, EOT, 6 March 1998.

14 Prior to the Tribunal commencing a hearing on the merits, it is difficult, if not impossible, for the Tribunal to determine whether there may be substance to a Complainant’s allegations. Generally, it is far more appropriate that the merits of a Complainant’s case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis. This is particularly true in the case of a self-represented Complainant: Reyes-Gonzalez v Sydney Institute of Technology, supra.

15 The Department relies on Bailey v ANU (1995) EOC 92-744 at 78-553 to support its contention that in order to establish a breach of s50(1) the Complainant would need to demonstrate a causal nexus between conduct of the Complainant which is referable to the Act and the conduct of the Respondent which allegedly caused detriment to the Complainant.

16 The Complainant did engage in conduct referable to the Act, ie he assisted Dr Sheldon in relation to her Equal Opportunity Tribunal proceedings. The information before the Tribunal shows a nexus between that conduct and the Respondent’s fact finding inquiry of 14 August 1996, which concerned the assistance provided by the Complainant to Dr Sheldon in relation to her Equal Opportunity Tribunal proceedings. Whether the Respondent engaged in unlawful conduct under s50 and whether the Complainant should be compensated for any such conduct are matters which are to be determined at a later merits hearing into this aspect of the Complainant’s claim.

17 The Tribunal has seen the transcript of the fact finding interview held on 17 July 1996. The Complainant conceded that the subject matter of this interview was the assistance which the Complainant provided to Dr Sheldon at GREAT and related issues, including the Complainant’s entitlement to leave without pay in relation to his attendance at GREAT. Even at this preliminary stage it is apparent that the Complainant will be unable to establish that the interview of 17 July 1996 was causally related to his conduct in assisting Dr Sheldon in relation to her Equal Opportunity Tribunal proceedings.

18 The allegation that the Department restricted that Complainant’s movements within the workplace so as to isolate him from Dr Sheldon does not appear in the complaint lodged with the President. Nor does it appear in the points of claim filed on 5 July 1999. The Tribunal lacks jurisdiction to deal with this allegation. Even if it had jurisdiction, having regard to the history of the matter and the many opportunities that the Complainant has had to clarify his allegations, the Tribunal would not permit the Complainant to make this allegation at this late stage.

19 The Tribunal concludes that the complaint of victimisation through the conduct of a “fact finding interview” on 14 August 1996 should proceed to a merits hearing, but otherwise the complaint/s against the Department are dismissed as lacking in substance or as beyond jurisdiction.

COMPLAINT AGAINST THE FEDERATION

20 The Tribunal understands that the Complainant’s claim against the Federation is that it aided and abetted the Department’s victimisation of the Complainant by transmitting the TAFETA document of 30 May 1997 to the Department. It is alleged that as a result of this transmission the Department arranged a fact finding interview, which was to occur in 24 June 1997 but did not proceed.

21 At the hearing of the s111 application, the Complainant sought to make the further allegation that the Federation failed to act on complaints which the Complainant made to it regarding poisoning which occurred between January 1996 and 1998, the 1998 dismissal of a teacher, Ms Valda Kerrison, or the 1997 treatment of a teacher, Ms Nergus Lalee.

22 On the face of the TAFETA document, there is little connection between the document and the assistance provided by the Complainant to Dr Sheldon in relation to her Equal Opportunity Tribunal proceedings.

23 The Complainant concedes that he has no evidence establishing transmission of the document by the Federation to the Department. The Complainant himself separately distributed the document to all members of the TAFETA (no.2) branch NSW.

24 It would appear there is no evidence available to the Complainant which would establish that the TAFETA document was transmitted to the Department with the intention of aiding, abetting, counselling or procuring an unlawful act of victimisation by the Department. In this regard the Department has referred this Tribunal to a number of decisions, including Giorgionne v The Queen (1985) 156 CLR 473 and Howard v Northern Territory (1995) EOC 92-672. These cases support the proposition (which this Tribunal accepts) that there must be more than a benign state of knowledge that something may possibly happen or may not happen to bring an alleged aider/abettor within s52 of the Act.

25 For the reasons stated in paragraph 18 above, the Tribunal will not deal with the allegation of failure to act on poisoning and other complaints.

26 The complaint against the Federation is dismissed.

27 Each party is to pay its own costs.