Fernandez v University of Technology, Sydney
[2015] FCCA 3432
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FERNANDEZ v UNIVERSITY OF TECHNOLOGY, SYDNEY | [2015] FCCA 3432 |
| Catchwords: HUMAN RIGHTS – Age discrimination – no reasonable prospects of success – summary dismissal. |
| Legislation: Age Discrimination Act2004 (Cth), ss.14, 15, 16, 56 Australian Human Rights Commission Act 1986 (Cth), ss.46P, 46PH, 46PO Civil Liability Act2002 (NSW), s.16 Federal Circuit Court of Australia Act 1999 (Cth), s.17A Federal Circuit Court Rules 2001 (Cth), r.13.10 Occupational Health & Safety Act 2000 (NSW), ss.8, 12, 106 |
| AAV15 v Minister for Immigration & Border Protection (2015) 230 FCR 454 Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 Beck v Spalla (2005) 142 FCR 555 Boyn v Schering Pty Ltd [2008] FCA 961 Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Dye v Commonwealth Securities Ltd (No. 2) [2010] FCAFC 118 Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 Eliezer v University of Sydney [2015] FCA 1045 Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 Maxwell v Murphy (1957) 96 CLR 261 Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; 219 CLR 90 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 782 Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 SZWBH v Minister for Immigration & Border Protection (2015) 229 FCR 317 Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 Vijayakumar v Qantas Airways Ltd (2009) 233 FLR 369 |
| Applicant: | LEOCADIA PHILOMENA FERNANDEZ |
| Respondent: | UNIVERSITY OF TECHNOLOGY, SYDNEY |
| File Number: | SYG 1389 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 18 September 2015 |
| Date of Last Submission: | 21 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms K. Edwards |
| Solicitors for the Respondent: | Moray and Agnew |
ORDERS
Pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth), the proceedings be summarily dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1389 of 2015
| LEOCADIA PHILOMENA FERNANDEZ |
Applicant
And
| UNIVERSITY OF TECHNOLOGY, SYDNEY |
Respondent
REASONS FOR JUDGMENT
The applicant had been employed by the respondent (“UTS”) as an administrative officer for over 20 years. Towards the end of 2007 another employee of UTS, more junior to the applicant, lodged a complaint about her. There followed a grievance procedure, the result of which was the expression of disapproval of the applicant’s actions towards the other employee. At about the time of the conclusion of that procedure it was suggested to the applicant that she might enter into a pre-retirement contract meaning that, in lieu of her tenured position, the applicant would be employed under a two year contract at a higher rate of remuneration and at the end of which she would cease her job at UTS.
The applicant entered into the pre-retirement contract on 16 December 2008 and her employment with UTS terminated pursuant to that contract on 9 December 2010.
Four years later, on 12 December 2014, the applicant lodged a complaint with the Australian Human Rights Commission (“Commission”) alleging age discrimination by UTS under the Age Discrimination Act2004 (Cth) (“ADA”). On 31 March 2015 a delegate of the President of the Commission terminated the applicant’s complaint under sub-s.46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) on the ground that the complaint was lodged more than 12 months after the alleged unlawful discrimination took place.
On 21 May 2015 the applicant applied to this Court alleging unlawful discrimination under s.46PO of the AHRC Act. On 12 June 2015 the matter first came before the Court for directions. On that day the Court ordered, amongst other things, that the applicant file and serve her points of claim by 19 June 2015. On 19 June 2015 the applicant filed a document entitled “statement of claim”. On 3 August 2015, UTS filed a response in which it sought interlocutory orders including an order that the applicant’s claims be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules2001 (Cth). The application for those orders was heard on 18 September 2015.
For the reasons that follow, the application filed by the applicant raises a number of matters outside the jurisdiction of the Court and the matters raised that are within the jurisdiction of the Court have no prospect of success. The application must therefore be summarily dismissed.
The power of the Court to summarily dismiss proceedings
UTS asks the Court to exercise its power under r.13.10 of the Rules. That rule relevantly provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; …
The power in that rule is supplementary to the power under s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) which provides:
17A Summary judgment
…
(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
In SZWBH v Minister for Immigration & Border Protection (2015) 229 FCR 317 at 323 [24], the Full Court of the Federal Court said this of this Court’s power to summarily dismiss:
It may readily be accepted that the criterion for the exercise of the power is less onerous than that which previously obtained at common law: see for example Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 at [26] (Mansfield J). That said, the power must be exercised cautiously: cf Spencer at 131. The Court should not act to prevent an applicant prosecuting his or her case in the normal way unless the need for summary judgment is clear: see Hicks v Ruddock (2007) 156 FCR 574 at 582 (Tamberlin J). It will, ordinarily, not be appropriate to grant summary judgment in a case in which there is a real dispute between the parties as to issues of fact: see Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489 at [10] (Besanko J)..
In AAV15 v Minister for Immigration & Border Protection (2015) 230 FCR 454, Flick J explained at 458 [12]:
Notwithstanding the fact that the language now employed in both s 17A of the Federal Circuit Court Act and s 31A of the Federal Court Act is to “soften the test for a successful application for summary judgment” (Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [25], (2009) 178 FCR 401 at 408 per Spender, Graham and Gilmour JJ), when exercising the discretion the Court “must be cautious not to do an injustice … ” (Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (in liq) [2006] FCA 1416 at [30] per Jacobson J). Any “exercise of powers to summarily terminate proceedings must always be attended with caution”: Spencer v Commonwealth of Australia [2010] HCA 28 at [24], (2010) 241 CLR 118 at 131 per French CJ and Gummow J.
See also Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at [45] – [47] (Reeves J) and Eliezer v University of Sydney [2015] FCA 1045 (“Eliezer”) at [33]-[40] (Perry J).
The Court’s human rights jurisdiction
There are a number of Commonwealth statutes dealing with discrimination of different kinds: see for instance the Racial Discrimination Act1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act1992 (Cth) and the ADA (together, “anti-discrimination laws”). A number of these reflect a direct response to Australia’s obligations under the International Covenant on Civil and Political Rights done that New York on 16 December 1966. Article 2(1) of that Covenant provides:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Human rights are defined for the purposes of the AHRC Act as being the rights and freedoms recognised in the Covenant, declared by the Declarations[1] or recognised or declared by any relevant international instrument.
[1] The Declaration of the Rights of the Child proclaimed by the General Assembly of the United Nations on 20 November 1959; the Declaration on the Rights of Mentally Retarded Persons proclaimed by the General Assembly of the United Nations on 20 December 1971; and the Declaration on the Rights of Disabled Persons proclaimed by the General Assembly of the United Nations on 9 December 1975.
Part IIB of the AHRC Act establishes a regime for redress for “unlawful discrimination” under the anti-discrimination laws. It is well-established that this regime is an exclusive one for remedying contraventions of the anti-discrimination laws: Eliezer at [41] and the cases cited there. As Perry J explained in Eliezer, this means that a contravention of the anti-discrimination laws gives rise only to a right to invoke the procedures, and to obtain the remedies provided for in the AHRC Act. As will be seen, that right contains a limitation that has considerable significance in this application.
Section 46P of the AHRC Act enables a person to lodge with the Commission a written complaint alleging unlawful discrimination. That complaint may be amended with the leave of the President of the Commission: s.46PA. When a complaint is lodged the Commission must refer it to the President who has the power to terminate the complaint if it is made more than 12 months after the alleged unlawful discrimination took place: sub-s.46PH(1)(b).
Where a complaint is terminated by the President under s.46PH any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint: s.46PO.
Section 46PO(3) is critical to this application. It provides:
(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 principles concerning the effect of s.46PO(3) and the approach to be adopted in applying it were summarised by the Full Court of the Federal Court in Dye v Commonwealth Securities Ltd (No. 2) [2010] FCAFC 118 at [43]-[48] (Marshall, Rares and Flick JJ):
[43]The purpose of s 46PO is to define and filter the cause of action it creates so that it will correspond, within the limits set in ss 46PO(1) and (3), with the complaint terminated by the President of the Commission: cp Grigor-Scott v Jones (2008) 168 FCR 450 at 454 [18]-[20] per Emmett, Lander and Tracey JJ. However, in construing how far s 46PO(3) defines and limits a complaint it is important to bear in mind that s 46PO itself contemplates that a complaint, and proceedings based on it, can be made by a representative party on behalf of persons entitled to proceed, after the complaint has been terminated by the President, in representative proceedings under Pt IVA of the Federal Court of Australia Act.
[44]The precise time or circumstances of some particular occasion of unlawful discrimination that he or she allegedly suffered before the complaint was begun or terminated can be the subject of representative proceedings despite the representative party being unaware of those matters when the complaint was before the Commission. That is why s 46PO(3) is drawn in sufficiently wide terms to enable proceedings to be brought in respect of some conduct other than that described in the complaint before the Commission.
[45]Thus, a complaint can be made by a person seeking to represent, for example, aged, blind or deaf persons or persons suffering from a particular disability, and allege unlawful discrimination by the provider of a public service such as transport or education. Such a complaint is unlikely to describe every instance of unlawful discrimination that may have occurred to many group members the subject of the complaint. It is of the nature of representative proceedings that individual group members may only be informed of the existence of those proceedings well after their commencement. Their individual experiences may fall within a more general or inclusory description in a complaint to the Commission. However, the dates, times, places and precise circumstances each group member may instance in giving evidence in representative proceedings would almost never be given in any detail or at all, in a complaint to the Commission. But, a person entitled to seek relief as a group member under ss 46PO(4) and (5) cannot be prevented from establishing that he or she is in fact a group member by relying on his or her experience, the exact detail of which was not given in a complaint of which he or she had no knowledge.
[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) 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) 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.
The first task is to determine the parameters of the complaint lodged by the applicant with the Commission: see Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 at [10] (Driver FM); Vijayakumar v Qantas Airways Ltd (2009) 233 FLR 369 at [98] (Scarlett FM).
The applicant’s complaint to the Australian Human Rights Commission
The applicant’s complaint to the AHRC was made in a letter dated 11 December 2014. That letter commenced with the following paragraph:
I wish to lodge a formal complaint against the University of Technology, Sydney, PO Box 123, Broadway NSW 2007 (UTS) on the grounds of forced retirement under duress from a tenured 20 year unblemished service record in lieu of a 24 months fixed term contract which also included 35 weeks of my hard earned Long Service Leave entitlement accumulated over the whole of my tenured service.
The essential matters raised in the letter can be summarised as follows:
a)the applicant had a meeting with her supervisor on 30 June 2008 following a letter concerning the complaint against the applicant referred to at [1] above;
b)at the meeting the applicant’s supervisor said something along the lines of: “why don’t you consider retiring; 20 years is a long time…”;
c)in August 2008 the applicant’s supervisor approached her stating that every now and again UTS made pre-retirement offers to staff and that at that time there was an offer of a 20% base salary increase if the applicant chose to resign from her tenured employment and signed a fixed term contract in lieu;
d)whilst claiming to be an equal employment opportunity employer UTS discriminated against the applicant on the grounds of age as it had nothing against her as far as her performance was concerned;
e)the applicant subsequently met with a representative of human resources and said that, based on the information put before her, she had expected a lump-sum payout of both her annual leave and long service leave regardless of which option she chose (that is either a 12 month contract with a 20% loading or a 24 month contract with a 10% loading);
f)the applicant said that incorporation of long service leave was not mentioned at the meeting and that it only became apparent to her after the contract was drawn up and presented to her for agreement and signature;
g)she claimed that she was misled to believe that the contract she signed was for 24 months whereas it turned out to be only for 15 months because her nine months long service leave was incorporated into it; and
h)she claimed that she was forced to sit to sign the contract which was flawed because of the incorporation of the long service leave.
The letter ends with the following request:
Please advise if UTS has breached its obligation by forcing me to retire when in fact there is no mandatory requirement to do so. Secondly, have I received all my entitlement for the 24 months contract signed or have I been paid for only 15 months instead of 24 months plus the extra Long Service Lease (sic – leave) I would have been entitled to for the extra 9 months.
On 10 March 2015 the applicant wrote a further letter to the AHRC which raised a number of other matters. Many of them concern the grievance procedure undertaken as a consequence of the complaint against the applicant brought by another employee of UTS. They can be summarised as follows:
a)the applicant was questioned under duress by the human resources person whether things that hurt her deep down were real or imagined;
b)the applicant had been bullied by staff “from day one when I was suspected of having my hand in the till”;
c)there had been mediation meetings to resolve problems raised by the applicant with certain work processes;
d)the complaint against the applicant was part of a plan to find an excuse to get rid of the applicant;
e)the employee who brought the complaint was treated differently from the applicant;
f)UTS had not responded properly to the applicant’s complaints about bullying;
g)slanderous rumours had circulated about the applicant;
h)UTS had fallen for the complainant’s “convoluted sob story”; and
i)rumours had continued to circulate about the applicant in 2012 (that is, after she had finished working at UTS).
A number of observations may be made about the scope of the applicant’s complaints. First, there were two bases put forward by the applicant for the treatment of her by UTS: her age and, some long held plan to get rid of her. Second, she complained about having been bullied by staff. Third, she complained that she was forced to sign the pre-retirement contract. The duress alleged appears to be based upon her claim to have been misled about the fact that she was expected to take her long service leave during the term of the pre-retirement contract rather than to be paid out for it at the end of her employment.
Having examined the parameters of the applicant’s complaints to the AHRC it is next necessary to examine the grounds raised by her in these proceedings in order to determine whether they exceed the parameters of the complaint.
The grounds in the application to the Court
In her application filed on 21 May 2015 the applicant specified that she was complaining of unlawful discrimination under the ADA. Attached to the application were two pages marked respectively “Part A – Orders Sought” and “Part B – Grounds of Application”. Part B is the part relevant to this application. It essentially contains little more than direct or paraphrased excerpts from the complaint made by the applicant to the AHRC in her letter dated 11 December 2014. In essence, the grounds were that UTS discriminated against the applicant on the grounds of age as it had nothing against her as far as her performance was concerned.
As I have noted, when the application first came before the Court on 12 June 2015 the applicant was ordered to file and serve points of claim by 19 June 2015. On 19 June 2015 she filed a document entitled “statement of claim”. The allegations in this document go well beyond those set out in the application. In particular, the statement of claim includes the following claims that:
a)false rumours had been spread by a person from the School of Finance and Economics whose mother lives in the same street as the applicant;
b)UTS had breached occupational health and safety laws;
c)UTS had been negligent in its duty of care in that it did not provide a workplace that was safe and where there was no discrimination harassment and bullying;
d)certain named lecturers had insulted the applicant and her supervisor had just let it pass;
e)the applicant has been offended, insulted, humiliated and intimidated by finger-pointing by some of her neighbours;
f)a lecturer had insulted the applicant in March 1995 by accusing her of stealing crockery and cutlery;
g)somebody at work threw the applicant’s lunch from the fridge into the bin and then told her about it;
h)the applicant had been suspected when a large sum of money went missing;
i)the applicant had been suspected when a large quantity of photocopying paper was missing;
j)the applicant had been suspected when some desktop/laptop computers disappeared in 1995;
k)the applicant had been taunted about her chances of promotion in light of the suspicions about her stealing;
l)she had been discriminated against on the basis of a disability, namely ugliness; and
m)UTS had discriminated against the applicant on the basis of her age.
The matter next came before the Court on 2 July 2015. On that occasion the applicant was ordered to respond to the request for further and better particulars from UTS dated 30 June 2015. The applicant responded to that request in a letter dated 15 July 2015 which is in evidence before me. The request for particulars was focused upon the applicant’s allegations concerning discrimination on the basis of age. As that is a matter that clearly fell within the parameters of the complaint to the AHRC, it is not necessary to consider any of the applicant’s detailed responses to that request for present purposes. I will return to the response in dealing with UTS’ argument that the claim is bound to fail and so should be summarily dismissed.
Consideration
Conclusions on the issue of jurisdiction
Having regard to the claims made by the applicant in the statement of claim it is clear that, apart from the allegation involving discrimination on the basis of age, the complaints fall outside the scope of the complaint made to the AHRC. In particular, the allegation that the applicant was discriminated on the basis of disability was not one made to the AHRC and so falls outside the jurisdiction of this Court in light of s.46PO(3) of the AHRC Act.
Prima facie, the allegations concerning bullying, taunting, suspicions about stealing, and harassment do fall within the parameters of the complaint made to the AHRC. Whether or not there is any prospect of their succeeding is another issue.
The issue of whether UTS was in breach of occupational health and safety legislation and/or its duty of care to the applicant may have been outside the scope of the complaint to the AHRC, however, the right of the applicant to bring proceedings in respect of them does not depend upon the AHRC Act. For that reason they will be considered further below.
My conclusion in respect of the scope of the jurisdiction of this Court to deal with the claims raised by the applicant is that it does not extend to dealing with any allegation that the applicant was discriminated on the basis of any disability, namely ugliness. Those claims were not raised before the Commission. For that reason, the question of whether ugliness, in and of itself, whatever it may be, can constitute a disability raises interesting questions of law which must be left to another day.
Should the remaining claims be summarily dismissed?
Age discrimination
The first question that arises in relation to the application for summary dismissal is the form of the relevant legislation that is applicable to the applicant’s claims. The facts relied upon by the applicant essentially took place in 2008. That was when she says she was forced to give up her tenured position and to enter into a less favourable 2 year pre-retirement contract which led to her loss of long service leave. Although she also raises matters that occurred after the termination of her employment, it is clear that they did not involve UTS in any way and I leave them aside for the moment.
The pre-retirement contract was entered into on or about 16 December 2008. As at that date, the ADA relevantly provided:
14 Discrimination on the ground of age -direct discrimination
For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:
(a)the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different age; and
(b)the discriminator does so because of:
(i) the age of the aggrieved person; or
(ii) a characteristic that appertains generally to persons of the age of the aggrieved person; or
(iii) a characteristic that is generally imputed to persons of the age of the aggrieved person.
15Discrimination on the ground of age - indirect discrimination
(1)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:
(a)the discriminator imposes, or proposes to impose, a condition, requirement or practice; and
(b)the condition, requirement or practice is not reasonable in the circumstances; and
(c)the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons of the same age as the aggrieved person.
(2)For the purposes of paragraph (1)(b), the burden of proving that the condition, requirement or practice is reasonable in the circumstances lies on the discriminator.
16Act done because of age and for other reason
If an act is done for 2 or more reasons, then, for the purposes of this Act, the act is taken to be done for the reason of the age of a person only if:
(a) one of the reasons is the age of the person; and
(b) that reason is the dominant reason for doing the act.
(Emphasis added)
Section 16 was repealed and replaced by operation of s.3 of item 1 of sch.1 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth). The new provision applied to acts done after commencement of the amendment, namely, 5 August 2009.
Section 16 now provides:
16 Act done because of age and for other reason
This section applies if:
an act is done for 2 or more reasons; and
(b)one of the reasons (whether or not it is the dominant or a substantial reason) is:
(i) the age of a person; or
(ii) a characteristic that appertains generally to persons of the age of a person; or
(iii) a characteristic that is generally imputed to persons of the age of a person.
For the purposes of this Act, the act referred to in paragraph (1)(a) is taken to be done because of the age of the person.
(Emphasis added)
In light of the transitional provisions in the Act that inserted the current form of s.16, the statutory provisions that apply to the applicant’s claims are those that pertained as at December 2012. For that reason, in order to be successful, the applicant must establish that the dominant reason for the act complained of was her age.
The ADA commenced on 23 June 2004. The general rule is that a statute changing the law ought not, unless the intention appears with reasonable certainty, be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events: Maxwell v Murphy (1957) 96 CLR 261 at 267 (Dixon CJ). There is no indication in the ADA of any intention that it is to operate retrospectively. For that reason, the applicant cannot rely on any act that occurred prior to 23 June 2004 as constituting unlawful discrimination: see Boyn v Schering Pty Ltd [2008] FCA 961. Thus, the applicant’s allegations of events prior to that date that stretch back to 1995 can be left to one side. That said, there are some events, such as when the applicant’s lunch was thrown out, in respect of which no date is given. I will deal with those events as though they had taken place after 23 June 2004.
The threshold question that arises in this application is whether the applicant has reasonable prospects of establishing that the dominant reason for any or all of the acts she relies upon was her age. In my view she does not have reasonable prospects of doing so.
The only fact which could conceivably provide any link between the actions of UTS complained of by the applicant and her age is the suggestion to her by her supervisor: “why don’t you consider retiring, 20 years is a long time”. Because that suggestion is central to her claims, it is worth setting out her version of it in full (as it appeared it the complaint to the AHRC):
…
At this meeting Professor Matolcsy [the applicant’s supervisor] acknowledged our presence (i.e. Teresa Whitters, Human Resources Unit representative, Dr Stephen Lim, lecturer in the School of Accounting, my support person and myself) immediately turned to me and said something along the lines of why don’t you consider retiring; 20 years is a long time; Judy Dousha (a staff member from the School of Accounting) has retired; I intend to relinquish my position as Head of School of Accounting and asked me to consider his proposal. He then rather abruptly closed the meeting by saying something like this meeting is over! This not only surprised me but also Dr Lim and I presume Ms Whitters as well!
In August 2008 Professor Matolcsy came to see me with a proposition that every now and again the University make pre-retirement offers to staff and current (at the time) there was an offer of a 20 percent base salary increase if I chose to resign from my tenured employment and agreed to sign a fixed term contract in lieu. He added that he did not know the details and suggested that I get in touch with Ms Whitters for more information. He again checked with me if I had thought about it or had seen Ms Whitters about it.
In my view, these facts, if accepted, would not establish that any reason for UTS’ conduct was her age. First, her age is never mentioned. The fact that a person has worked in one workplace for 20 years does not give an accurate indication of their age. Secondly, although a reference to retirement might give rise to some inference connected to a person’s age, the matter specifically mentioned by Professor Matolcsy was the length the applicant’s employment. Thirdly, the applicant’s case is that age must have been the dominant reason for UTS’ conduct because she had been a model employee. However, it will be recalled that the context of the reported conversations was the grievance procedure undertaken in respect of the applicant’s conduct towards a junior staff member. The outcome was disapproval of the applicant’s conduct.
Even if I considered that the applicant could reasonably establish that her age was the dominant reason for UTS’ conduct, she would have to establish that there was either direct or indirect discrimination. In order to establish a direct discrimination she would have to show that she was treated less favourably than others of a different age in circumstances that are the same or not materially different, and that that treatment was because of her age: s.14 ADA. None of the facts asserted by the applicant in her claims have any prospect of meeting that requirement. In order to establish indirect discrimination she would have to establish that a condition, requirement or practice was imposed, that that condition requirement or practice was not reasonable, and that the condition, requirement or practice has or is likely to have the effect of disadvantaging persons of the same age as the applicant: ADA s.15. None of these matters could be established on the applicant’s version of events.
Finally, liability under the ADA can be established in an indirect way. Section 56 of the ADA provides:
56Liability of persons involved in unlawful acts
A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Part 4 is, for the purposes of this Act, taken also to have done the act.
However, once again, none of the facts alleged by the applicant could reasonably establish that UTS came within s.56.
For those reasons, I consider that there is no reasonable prospect that the applicant’s claims based upon unlawful discrimination against her on the basis of her age will succeed.
Other claims: breach of Occupational Health & Safety legislation, duress and negligence
In light of my conclusions about the applicant’s claims based upon discrimination, an immediate jurisdictional question arises in respect of the applicant’s other claims. This Court is a federal court of limited jurisdiction. That said, when a Court which can exercise Federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457. The “matter” is the whole controversy between the parties and includes those part of the proceedings that arise under common law or state legislation so long as they arise out of the same substratum of facts: see for example, Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 (“Moorgate”). The non-Federal part of the matter is often referred to as the “accrued jurisdiction” of the Court. The label, however, is unimportant: once it is established that a claim is within the “matter”, it is within the jurisdiction of the Court.
The question that arises is whether the Court retains this accrued jurisdiction in circumstances where, for one reason or another, it is unnecessary for the Court to determine the federal aspect of the matter. The answer is that it is well accepted that if the federal question is decided adversely, is struck out, or is found not necessary to be decided the matter does not cease to be in the jurisdiction of the Court: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481; Beck v Spalla (2005) 142 FCR 555 at [25]; and, Moorgate at 476 (see generally, the article by Allsop J (as his Honour then was) “Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002”, (2002) 23 Australian Bar Review 29 at 41ff).
I have considerable doubts as to whether the applicant’s claims in relation to the occupational health and safety laws, negligence and duress fall within the same matter as the claims in respect of discrimination. However, for present purposes it is unnecessary to determine that issue. The facts alleged by the applicant simply do not support any of those claims and the claims ought to be summarily dismissed.
Occupational Health & Safety laws
The applicant does not specify the occupational health & safety laws upon which she relies. The current legislation governing occupational health and safety in New South Wales is the Work Health and Safety Act 2011 (NSW) which commenced in January 2012. At the time of the applicant’s employment, the relevant legislation was the Occupational Health & Safety Act 2000 (NSW). Section 8 of that Act provided that an employer must, so far as is reasonably practicable, ensure the health, safety and welfare at work of all the employees of the employer. A breach of that provision constituted an offence: s.12. However, proceedings could only be brought with the permission of various people: s.106. In other words, it is not a provision the breach of which give rise to a civil cause of action.
Negligence
The applicant has not stated that she has suffered any loss as a result of the alleged negligence of UTS. On that basis, her statement of claim is inadequate and liable to be struck out. In any event, her claim does not come to grips with the legislation that governs workplace injuries in New South Wales.
The relevant legislative provisions in respect of workplace injuries in New South Wales are contained in the Workers Compensation Act1987 (NSW) (“WCA”) and the Workplace Injury Management and Workers Compensation Act1998 (NSW) (“WIMA”). Those Acts contained detailed provisions relating to proceedings for injury in the workplace in New South Wales, including those arising from claims of negligence or breach of contract, none of which have been addressed by the applicant. Given that the applicant has not alleged that she has suffered any injury, impairment or other damages as a result of the negligence by UTS it is impossible to determine whether she has any rights under those Acts at all. Of particular note in this respect is s.151H of the WCA which provides that no damages are payable unless permanent impairment is at least 15% of the relevant threshold (see also Civil Liability Act2002 (NSW) s.16). Finally, s.318A of the WIMA requires the claimant to refer his or her claim to mediation before he or she can commence court proceedings for recovery of work injury damages.
All that the applicant has done is to baldly assert breaches of “Occupational Health & Safety laws” and breach of duty of care by UTS. In light of the difficulties that her claim faces under the relevant statutory regime in New South Wales, even if these claims fell within the “matter” before the Court they would not have a reasonable prospect of success.
Duress
The classic statement of what amounts to duress in the legal sense of that term was made by McHugh J in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 45 – 46. The question to be asked is whether the pressure put on a person to enter into a contract was illegitimate in the sense that it consists of unlawful threats or amounts to unconscionable conduct.
The highest that the applicant’s case in this respect goes is that she was forced “to sign the contract which was flawed, firstly by incorporation of my long service leave into the contract and secondly, short changing me by paying me only 15 months consider 24 months under duress”. There is no assertion of any fact which supports a conclusion that the applicant was placed under any pressure. On her own version of events Professor Matolcsy made an open-ended suggestion to the applicant about entering into a pre-retirement contract. Secondly, even though the applicant said that she was misled into believing that her long service leave would not fall within the terms of the contract nobody who took the time to read the agreement could have reasonably held that belief. The agreement says in plain terms:
You will take 35 weeks of long service leave from 9 April 2010 to 9 December 2010.
The applicant signed that agreement. She does not allege that any threat was made to her in the event that she did not sign it. An allegation that she was “short changed” might have some traction in a claim for breach of contract but is in my view not sufficient to give it a reasonable prospect of success. The agreement was clearly one pursuant to which the applicant was paid at a significantly higher rate than she would otherwise have been paid. The consideration for that increased payment was that, at the end of the contract, she would no longer be employed by UTS.
For those reasons none of the applicant’s additional claims is sufficiently set out in either her application, statement of claim or response to the respondent’s request for particulars. For that reason they are liable to be struck out.
Further leave to amend
I have considered whether the appropriate course in these circumstances is to allow the applicant further time to amend her pleadings. However, she has been given the opportunity to adequately state her case not only by the order requiring her to file points of claim but also in the response to the request for particulars made by the respondent. Further, the applicant has not said in response to the respondent’s application for summary judgment that there are any other material facts upon which she relies or which she could include to support her claims and which might improve the prospects of succeeding on a final hearing.
Further submissions
At the conclusion of the hearing of this application, I granted leave to the parties leave to file submissions about the relevant health and safety legislation. UTS filed submissions in accordance with that leave and I have taken them into account. Ms Fernandez filed very lengthy submissions after the hearing, but they did not deal with the issue in respect of which leave was granted. Because her submissions were not within the parameters of that leave, I have not considered them: see MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 citing Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246 at 257-258 per Mason J; Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [27]-[31] per McHugh J; NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; 219 CLR 90 at [191]-[192] per McHugh A-CJ, Gummow, Callinan and Heydon JJ; Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 782 at [2]-[5] and Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 at [66]-[72].
Conclusion
For those reasons the appropriate order is that the proceedings be summarily dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 21 December 2015
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