French v Gosford City Council

[2003] NSWADT 273

CITATION:	French v Gosford City Council [2003] NSWADT 273
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sue French RESPONDENT Gosford City Council
FILE NUMBER:	031021
HEARING DATES:	30/05/03
SUBMISSIONS CLOSED:	06/20/2003
DATE OF DECISION:	12/19/2003
BEFORE:	Conley J - Judicial Member; McDonald O - Member; Nemeth de Bikal L - Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Salama v Qantas Airways Limited [2002] NSWADT 119 Clymo v Wandsworth London Borough Council [1989] IRLR 241 Australian Iron & Steel Pty Limited v Banovic (1989) 168 CLR at 165 Waters & Ors v Public Transport Corporation [1991] 173 CLR 349 at 372 Travers v State of NSW [2001] FMCA 18 Purvis v State of New South Wales 13 November 2000, Human Rights and Equal Opportunity CommissionState of New South Wales (Department of Education) v Human Rights & Equal Opportunity Commission [2001] FCA 1199 Bradley v State of NSW (No 2)State of NSW v Amery [2003] NSWADTAP 16 Hill v University of New England (1990) EOC 92-291 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Bonella v Wollongong City Council [2001] NSWADT 194 Greater Manchester Police Authority v Lea [1990] IRLR 372 Commonwealth Bank of Australia v Human Rights & Equal Opportunity commission & Anor [1997] 1311 FCA 28 November 1997 Kidd v D.R.G. (UK) Ltd [1985] ICR 405 at 409
REPRESENTATION:	APPLICANT D Hillard, solicitor RESPONDENT K Eastman, counsel
ORDERS:	1. The Application to dismiss the claim pursuant to section 111 of the Anti-Discrimination Act 1977 is disallowed

1 The Applicant was employed as the Children’s Services Coordinator at Gosford City Council from March 1996 up to her resignation in September 2000.

2 The Applicant took maternity leave from 19 July 1999 to 21 May 2000. Upon return to work the Applicant sought to work 38 hours over 4 days rather than 5 days as she claimed she could not obtain child care 5 days per week. The Respondent refused this request.

3 From 22 May to her resignation in September 2000 the Applicant worked 4 days per week by virtue of using her leave entitlements, including accrued long service leave. Having used all available leave the applicant resigned her position with the Respondent in September 2000.

4 On 20/3/01 the Applicant lodged a complaint with the Anti-Discrimination Board (the ADB). She alleged that between the period March to September 2000 she was discriminated against on the ground of her carer’s responsibilities.

5 On the 10/7/01 the President of the ADB wrote to the General Manager at Gosford City Council (the Council) notifying him of the complaint. The Acting President advised that the Complaint appeared to fall within sections 24, 25, and 53 of the Anti-Discrimination Act. The Council denied the allegations by letter dated 13/6/02.

6 The President of the ADB referred the complaint to the Administrative Decisions Tribunal (the Tribunal) on 12/2/03.

7 The Respondent has made an application that the matter be dismissed pursuant to section 111 of the Anti-discrimination Act 1977 (NSW) on the basis that the claim is misconceived.

8 Leave was granted for written submissions to be filed in respect of the application to dismiss on the above grounds and the application was to be determined by reference to the submissions and documents before the Tribunal.

THE APPLICATION

The Respondent’s submissions

9 The Respondent’s written submissions specify the following grounds as to why the claim should be dismissed:

· There has been no complaint of indirect age discrimination referred to the Tribunal and the claim should be dismissed because the Tribunal has no jurisdiction to consider the age discrimination claim;

· With respect to the sex discrimination complaint, the applicant has failed to adduce the necessary evidence that would enable the Tribunal to find that all of the elements of indirect sex discrimination have been made out;

· With respect to the age discrimination claim, if the Tribunal finds jurisdiction to consider the fresh complaint, then it also suffers from a failure on the part of the Application to adduce necessary evidence that would enable the Tribunal to find that all of the elements of indirect age discrimination have been made out;

10 The Applicant relies upon “indirect discrimination” within the meaning of section 24(1)(b), she makes no claim of “direct discrimination”.

11 The issue in this application is whether a requirement or condition to work 38 hours per week in a full-time position over 5 days indirectly discriminated against the Applicant because she is a woman or because she is a relative of a child under the age of two.

No jurisdiction to determine Age discrimination complaint as that complaint was not referred by the President

12 The Respondent submits that the proceedings before the Tribunal are limited in time and scope. In this matter the President has extended time for the complaint and it is limited to the period March – September 2000.

13 Secondly the scope of the complaint is confined to the matters in the complaint. Fresh allegations of discrimination cannot be raised in the Tribunal. In Salama v Qantas Airways Limited [2002] NSWADT 119 at para 16, the Tribunal confirmed that the referral of the complaint by the President is the source of the Tribunal’s power to hold an inquiry. The scope of the inquiry is determined by the complaint referred to the Tribunal by the President. The Tribunal has no jurisdiction to investigate and find any contravention of the Act which falls outside the ambit of the complaint referred.

14 The Respondent submits that in this matter the President did not investigate the complaint as one of age discrimination. The President’s report does not refer to indirect age discrimination.

15 The Respondent submits that therefore in the absence of a complaint of age discrimination based upon the ground of the relative’s age being referred by the President, the Tribunal has no jurisdiction to determine such a claim. The Respondent submits this part of the complaint referred to in paragraphs 20-26 of the Points of Claim should be dismissed.

Indirect Sex Discrimination

16 The Respondent submits that the elements which must be established by the Applicant in respect of indirect discrimination on the grounds of sex are as follows:

1. What are the terms and conditions of employment for the purpose of section 25(2) (a)?

2. For the purpose of section 24(1)(b) of the Act:

· What is the condition or requirement which the Respondent is required to comply with ?

· Was the Applicant unable to comply with that condition or requirement ?

· Could a substantially higher proportion of men comply or are able to comply with the condition?

· Was the requirement or condition unreasonable in all the circumstances?

Terms and conditions of employment

17 The Respondent submits the Applicant has failed to particularise the terms and conditions of employment. The claim must therefore fail.

The condition or requirement must be separate from the job

18 The Applicant pleads the requirement or condition for the purpose of section 24(1) (b) being that “…she worked the 38 hours of her Children’s Services Coordinator position on a 5 day per week basis”

19 The Respondent submits that the requirement or condition that the Applicant work full-time hours over 5 days is part of the job and is not separate from the job.

20 The requirement or condition must be separate from the “nature of the job itself”. see Clymo v Wandsworth London Borough Council [1989] IRLR 241 at 247.

21 The applicant has therefore failed to adduce evidence of a “requirement or condition”.

What was the condition or requirement imposed upon the Applicant?

22 The Respondent submits that even if the Tribunal accepts that the requirement or condition to work 38 hours over 5 days is a requirement or condition for the purpose of section 24(1)(b) of the Act the Applicant has failed to show that at the relevant time (March – September) that such a condition was imposed upon her.

23 The Respondent submits that the evidence of the applicant is that she did not work 38 hours per week over 5 days, rather she used her time in lieu to work 4 days per week until July 2000. The Respondent agreed to this arrangement. Following this the Applicant used her long service leave entitlements to work 4 days per week. The Respondent submits that the evidence before the Tribunal is that the Applicant was never forced to work 38 hours per week over 5 days.

The Condition or requirement applies to the aggrieved person only.

24 It is further submitted that section 24(1) (b) of the Act has no operation where the relevant condition or requirement is imposed only upon the aggrieved person and does not apply generally. It is implicit that the terms of section 24 (1) (b) of the Act that the relevant condition or requirement must be imposed on a class of people and critically must be imposed upon men and women where the claim is one of sex discrimination. The very nature of indirect discrimination is based upon the adverse effects of facially neutral policies or practices. The Applicant concedes that the “condition” was only imposed upon the aggrieved person. This the Respondent submits is fatal to the claim.

25 The operation of section 24(1)(b) necessarily requires a comparison between groups or pools of men and women who can and cannot comply with the relevant requirement. In Australian Iron & Steel Pty Limited v Banovic (1989) 168 CLR 165, (“Banovic”) Brennan J at 171 held that the determination of the pools for the purpose of determining who can comply should not be based upon a “hypothetical workforce”, rather the assessment should be made upon the existing workforce. If the condition applies only to one person then it will be impossible to identify the pool of men who are able to comply with the condition because there are no men upon whom the condition or requirement was imposed.

26 The Respondent submits that where the treatment is individualised the matter should be determined as one of direct discrimination.

27 The Respondent submits that the Applicant has proceeded on a misconceived understanding of the operation of section 24(1) (b) of the Act because first, at the relevant period there was no condition or requirement imposed upon her and secondly, the condition or requirement which she alleged to have been imposed upon her was specific to her. She does not claim and nor does she adduce any evidence that the condition or requirement was imposed upon anyone else.

Was the Applicant unable to comply with the condition or requirement ?

28 At the relevant period of time the Applicant was not required to comply with the condition or requirement because up to 4 September 2000 , the council agreed to allow the Applicant to use time in lieu to work 4 days per week and to take long service leave. There is no evidence that she worked full-time hours over 5 days during this period of time.

Did a substantially higher proportion of men comply with the condition or requirement

29 A critical element that the applicant must establish if her claim of indirect sex discrimination is to be substantiated is that a higher proportion of men can comply with the relevant requirement or condition. The purpose of the comparison is to enable the alleged discriminatory effect of the requirement and condition to be accurately assessed. The purpose of this element of indirect discrimination is not to establish whether the Applicant has been affected in an adverse way because of the condition.

30 The Respondent submits that the applicant fails to identify the pool of persons (men and women) who are required to comply with the condition or requirement. The Respondent states that no particulars are provided and the pleadings state that a higher proportion of men are able to comply with the requirement that the 38 hours of the Respondent’s Children’s Services Coordinator position be worked on a 5 day week basis.

31 The Respondent again submits this is not a condition that is imposed upon men generally or any man in particular. There has been no attempt to identify the pool. The Applicant has refused the opportunity to re-plead her claim or adduce evidence. The Respondent submits that a pool which is based upon men and women without narrowing the pool to the specific men and women who are required to comply with the Respondent’s condition is a fundamental flaw in the Applicant’s case.

32 The Respondent submits that evidence about persons who are required to comply with the condition imposed by it cannot be the subject of “judicial notice”, particularly where the facts in issue are denied.

33 The Respondent further submits that even if the Tribunal takes account of the material provided by the Applicant, that material does not relate to the issue before the Tribunal. That material covers a range of issues including the preference for women to work part-time, that is less than 38 hours per week. The reports provided by the Applicant do not deal with the ability to work full-time hours on a part-time basis.

34 The Applicant has failed to lead evidence about the findings in respect of the comparative proportions between the identified pools who are able to comply.

Indirect discrimination on the ground of age of a relative

35 The Respondent submits that the same deficiencies exist in the evidence in respect of this part of the claim.

36 The Respondent notes that it appears the claims are mutually exclusive as if the Applicant were to succeed in respect of the claim of age of a relative clearly an equal number of men would be unable to comply with the condition or requirement.

Applicant’s submissions

37 The Applicant contends that the issue in this case is straight-forward:

Did the requirement or condition to work 38 hours per week in the Children’s Services Co-ordinator position over 5 days discriminate indirectly against the Applicant because she is a woman, or because she is the parent of a child under the age of two?

38 The requirement imposed by the employer is facially neutral. Indirect discrimination requires an analysis of whether a person’s chances of successfully complying with the requirement depend upon their gender or the age of their relative, or whether membership of that group is irrelevant to their chances.

39 The issue is would a substantially higher proportion of men than women, (or a substantially higher proportion of people who do not have children under the age of two than parents with children under two), have been able to work 38 hours, 5 days per week in that job, and if so, was the requirement reasonable?

40 The Applicant submits that it is not “fatal to the claim” that during the relevant period of the alleged discrimination, the Applicant was the only person to whom the requirement or condition that the 38 hours of the Children’s Services Coordinator position be worked on a 5 day per week basis actually applied. Where a condition applies to only one actual person at a time, the pool of men and women who are able to comply may still legitimately be determined. The relevant requirement or condition does not need to be imposed more generally to permit an assessment of indirect discrimination.

41 The language of indirect discrimination under the Act expressly allows for a comparison between any person actually affected and others who may be potentially or hypothetically affected by the requirement. Section 24(l)(b) provides for a comparison to be made on the ground of sex of those who “comply or are able to comply”.

42 The High Court has confirmed that both direct and indirect discrimination “entail one person being treated less favourably than another person”, with the major difference being whether that less favourable treatment is apparent on the face of the treatment or through its impact . (see Waters & Ors v Public Transport Corporation [1991] 173 CLR 349 at 372 per Dawson and Toohey JJ.)

43 The point of provisions attacking indirect discrimination is to prevent (sic) individuals from the effect of apparently neutral conditions or requirements, which in fact operate in a manner that discriminates against particular groups, the members of which have characteristics in common.

44 The purpose of indirect sex discrimination provisions under the legislation is to eliminate practices which may at first sight have nothing to do with a person’s sex, but which may in fact impose a disadvantage upon persons of one sex which is disproportionate to the impact upon the other sex.

45 The Applicant submits that given this, when construing legislation which protects or enforces human rights, there is “a special responsibility to take account of and give effect to the statutory purpose”. ( see Waters & Ors v Public Transport Corporation [1991] 173 CLR 349 at 372 per Dawson and Toohey JJ . There seems no reason to read down and there is nothing in the language of section 24( 1)(b) which suggests that the protection against indirect discrimination should be read down to only cover the situation where the requirement or condition is actually imposed on more than one person at a given time.)

46 The Applicant further submits there is no reason (and certainly no judicial authority) why the protection against indirect discrimination should not also be available when only one person is actually affected by the discrimination.

47 If the Applicant can demonstrate that the chances of successfully complying with the requirement to work 38 hours per week in the Children’s Services Coordinator position depend upon gender, then there is no reason to suggest that as an individual she should not be protected against such an indirectly discriminatory policy.

48 The Applicant submits that in circumstances where there is no other person to whom the requirement actually applies, the legislation permits a comparison with those to whom the requirement might potentially apply. In this case, a comparison may be made between men and women within the pool of people who may potentially work in the Children’s Services Coordinator position, to determine whether substantially more men or women are able to comply. Such an approach is contemplated by the language of s24 (l)(b), permitting a comparison of either those who “comply or are able to comply’’.

49 In the present case, the question of discrimination will be determined through an analysis of the appropriate pools of people potentially affected by the requirement to work 38 hours in the Children’s Services Coordinator position be worked on a 5 day per week basis. The fact that only one person at a time actually holds the position does not prevent a complaint being made of indirect discrimination.

50 The Applicant argues that it is significant that the Respondent, who bears the onus of proof in this section 111 application, can cite no authority which specifically holds that indirect discrimination cannot operate where the condition or requirement actually applies at a specific time to only one person.

51 It is further submitted that as a matter of practice, many indirect discrimination cases occur in circumstances where the only person unable to comply with a requirement or condition is the complainant alone. (See for example, in Travers v. State of NSW [2001] FMCA 18, the case involved access sought only by the complainant to an otherwise locked disability toilet. The toilet in question would not have been available in any circumstances to other students at the school.)

52 The Applicant argues that Banovic is not authority that such a broader, hypothetical comparison cannot be made. The Applicant submits that the passage from Brennan J at 171 is not authority that a hypothetical comparison may not be made under the former section 24(3)(a). The Applicant submits His Honour is referring to the circumstances where there is a known pool of employees actually in the workforce and affected by the condition. In such circumstances, His Honour would not permit the altering of a known composition of sexes within the workplace by way of a “hypothetical workforce reconstituted to eliminate the effects of… earlier discrimination”.

53 The Applicant goes on to stress that it should be noted that Brennan J was in the minority on this specific point, in allowing the appeal. In rejecting the appeal, the majority of Deane, Dawson and Gaudron JJ accepted what Brennan J had criticised as a “reconstituted” workforce, in order to take into account the effects of earlier discrimination in the specific context of the case. It is submitted that the passages from Banovic cited by the Respondent at paragraph 42 and footnote 6 are not authority that indirect discrimination cannot operate where the condition or requirement actually applies at a specific time to only one person.

54 The Applicant submits that the first instance Human Rights and Equal Opportunity Commission (“HREOC”) decision in Purvis v State of New South Wales (13 November 2000) , is not authority for any proposition that where treatment is individualised a matter should be determined as direct, rather than indirect discrimination. Nor is it authority that a complainant cannot pursue an indirect discrimination complaint where the condition applies only to one person at a time. There was no such finding by the Commission.

55 The Applicant further asserts that it is most improper of the Respondent to suggest that the HREOC decision in Purvis contained a finding that indirect discrimination could not apply in circumstances where the condition was only imposed on one person. Such a “finding” has not been the subject of any appeal, because no finding was ever made. The complainant did not claim indirect discrimination.

56 The Applicant submits that neither Purvis nor Banovic are authority for the proposition that where treatment applies only to one person at a time, the Applicant must pursue her complaint as direct, rather than indirect discrimination, and that she cannot pursue an indirect discrimination complaint. The Respondent has presented no other authority in support of that submission.

Was the Applicant unable to comply with the requirement or condition?

57 For the purposes of the Act and other comparable anti-discrimination legislation, being “not able to comply” with a requirement means being unable to comply without suffering some appreciable disadvantage or detriment. It is practical rather than theoretical compliance which is examined.

58 The Applicant notes the specific example of a practical inability to comply, described by Magistrate Hennessy in Bradley v. State of NSW (No. 2) at [45]:

Courts in the United Kingdom and in Australia have interpreted compliance with a requirement as the ability to comply in a practical sense, rather than a theoretical ability to comply. For example, the fact that a woman could theoretically work full-time, rather than part-time, does not mean that she can comply with a requirement to work full-time, if that does not suit her situation.

59 The Applicant concedes that there is no question that the Applicant could have theoretically complied with the 5 day per week requirement, but only practically at the expense of leaving her young son without childcare. As a matter of practicality, the Applicant could not comply with the requirement. The Applicant advised her superiors on a number of occasions during 2000 that she would be unable to continue in her employment if the requirement was imposed upon her.

60 The Applicant’s evidence is that she only took time in lieu and (premature) long service leave during the relevant period because she was unable to work the 38 hours of the Children’s Services Coordinator position on a five day per week basis. The Applicant agrees with the Respondent’s submission that there is no evidence that the Applicant worked full-time hours over five days during the relevant period. The Applicant contends that this is not a lack of evidence, but rather because of her practical inability to comply with the requirement.

61 The applicant submits that there is no reason indirect sex discrimination can operate only where the Applicant is unable to comply with the requirement because of a reason “inherent or consequent upon the fact that she is a woman”. As the Federal Court of Australia has held in Australian Medical Council v Wilson (1996) 137 ALR 653 at 685 per Sackville J :

[The] purpose [of the indirect discrimination provision] is satisfied if the relevant individual in fact does not comply with the condition or requirement, regardless of whether the non-compliance flows from some immutable characteristic or from a different cause.

62 It is submitted that the Appeal Panel has applied this principle most recently in State of NSW v. Amery, [2003] NSWADTAP 16 at 40, noting that regardless of the actual reason for non-compliance by a complainant, “it is sufficient if the complainants in fact do not comply” with the impugned requirement.

63 The Applicant submits that there is evidence that the she was unable to comply with the condition. That inability to comply was because of her failure to secure childcare. Although the actual reason for the Applicant’s inability to comply is not necessary in order to establish the complaint, nevertheless the evidence shows that the responsibility for childcare falls more heavily upon women than men.

Was a substantially higher proportion of men able to comply with the requirement or condition? : Identifying the pool -

64 The Applicant does not dispute that the selection of a base group or pool for comparison will vary from case to case, according to the context in which a particular requirement is imposed.

65 The applicant refers to Bonella and states that in a case such as Bonella, the particular requirement regarding permission to use a Council motor vehicle for private as well as business purposes was specific and unique to the employment circumstances at the workplace. The appropriate base group in that context was all Assistant Managers employed by the Respondent. It was not suggested that there is something inherent about women which made them more or less likely to be Assistant Managers. Given the particular nature of that workplace and requirement in question, it was appropriate in Bonella to look at all of the employees affected, to determine whether a substantially higher proportion of men than women could comply with the requirement.

66 The applicant submits that by contrast, the present case does not involve a condition with which the Applicant says she is unable to comply due to the specific circumstances of the workplace. Rather, the Applicant alleges that she is unable to comply due to a social matter which applies more generally to women, namely a greater responsibility for child care.

67 In the present case, the applicant contends that it is not appropriate to limit the base group to the pool of people to whom the requirement or condition actually applied at the time of the discrimination. During the relevant period, the Applicant was the only person to whom the requirement or condition that the 38 hours of the Children’s Services Coordinator position be worked on a 5 day per week basis actually applied. Such an analysis, with a pool of just one person, would only ever produce proportions of 0% or 100%, depending upon the specific characteristics of the person holding the position at any given time. It is argued that this does not produce a statistically reliable assessment of the impact of gender on ability to comply with the actual requirement.

68 The applicant contends that bearing in mind the small size of the pool, and the obvious potential for statistical distortion, it is appropriate to compare the broader proportions of the male and female working populations in order to determine safely whether a substantially higher proportion of men or women were able to comply with the condition. The appropriate and reliable method for assessing the proportions of compliance with the requirement or condition that the Children’s Services Co-ordinator position be worked 38 hours on a 5 day per week basis, is to use a base group of employees who might potentially work in the Children’s Services Coordinator position. That is, to examine the populations of workers in NSW, to determine whether male or female workers are able to comply. Such an approach is contemplated by the Act, with s24 (1)(b) permitting a comparison of either those who “comply or are able to comply”.

69 The Applicant takes as the base group for comparison the working population of NSW. There has been no evidence filed which suggests that potential applicants for the Children’s Services Coordinator position are so statistically at variance with the broader NSW population as to make the use of the broader NSW working population unreliable as a base group. There is no reason, for example, to conclude that the probability of childcare responsibilities among potential applicants for the Children’s Services Coordinator position is statistically at variance with that of the broader NSW population.

70 The Respondent submitted that there was a “fundamental flaw” in the Applicant adopting an approach which did not “narrow the pool to the specific men and women who are required to comply with the Respondent’s condition”. The Applicant contends that the approach of adopting a pool of the broader NSW working population, and then assessing rates of compliance between men and women within that pool is an entirely appropriate approach, and one which is supported by the authorities. ( see for example Banovic at 178 where Deane and Gaudron JJ state there is no warrant for excluding the calculation of proportions by reference to the general male and female populations, if it will reveal the significance if any of sex to compliance.)

71 The Applicant refers to Rosemary Hunter, in Indirect Discrimination in the Workplace, where she describes broader socio-cultural behaviour patterns such as female responsibility for childcare, as “general-attribute types”. Hunter at page 208 suggests that:

the general population may be the most appropriate pool where compliance with a requirement or condition depends on general, group-related attributes rather than on specific, employment-derived qualifications. “General-attribute” types of requirements would include criteria that…are indirectly discriminatory because of the different social and cultural characteristics shared by women. The national or State population can reliably be used as the pool for comparison in such cases. unless there is evidence of significant regional or class variations in behaviour”.

72 Reference is again made to Hunter where she states that where a particular requirement has an adverse impact because of the different “general attributes” of status groups, “statistical evidence could be derived from general population or labour force data”( at page 212) and at page 214 where she cites in this context the English case of Greater Manchester Police Authority v Lea [1990] IRLR 372 at 375 as providing “a good example of a Tribunal taking a realistic approach to available statistical evidence”.

73 The Applicant claims that in that case, the English Industrial Tribunal accepted the national labour force as an appropriate pool for comparison of the relative proportions of men and women able to comply. On appeal, the Employment Appeal Tribunal held that the Tribunal’s choice was reasonable, citing an accepted principle that the pool chosen does not have to be a statistically perfect match of the persons who would be capable of filling and interested in the job.

74 It is noted by the Applicant that the Authority had not proffered any alternative statistics of its own and further noted that nothing in the evidence suggested that the general UK Labour Force statistics were in fact a distortion of the “perfect” statistics (that is, the actual statistics had they been available, of all persons who would be capable of filling and interested in the job).

75 The Applicant states that the same approach should be taken here. The Respondent has offered no alternative statistics, and there is nothing to suggest on the evidence that the broader NSW working population statistics would be a distortion of the “perfect” statistics (which are unavailable) of all persons capable of filling and interested in the Children’s Services Coordinator job.

RELEVENT LEGISLATION

Anti-Discrimination Act 1977

24 What constitutes discrimination on the ground of sex
(1) A person (the perpetrator) discriminates against another person on the ground of sex if, on the ground of the aggrieved person’s sex … the perpetrator:…

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex,…comply or are able to comply, being a requirement not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

…
(2) It is unlawful for an employer to discriminate against an employee on the ground of sex:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by dismissing the employee or subjecting the employee to any other detriment…

49ZYA What constitutes discrimination on the ground of age

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if, on the ground of the aggrieved person’s age or the age of a relative or associate of the aggrieved person, the perpetrator :

…

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

49ZYB Discrimination against applicants and employees

…

(2) It is unlawful for an employer to discriminate against an employee on the ground of age:
(a) in the terms or conditions of employment that are afforded to the employee; or

…

(b) by dismissing the employee or subjecting the employee to any other detriment.

(1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complain should not be entertained, it may dismiss the complaint.

…

(2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry

(3) Nothing in this section limits the generality of the powers conferred on the Tribunal by Chapter 6 of the Administrative Decisions Tribunal Act 1997.

The Background

76 The Respondent has made an application to have the proceedings dismissed pursuant to section 111 of the Anti-discrimination Act(NSW) 1977 which provides as follows:

Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complain should not be entertained, it may dismiss the complaint.

77 The Tribunal has stated that a “submission (that the complaint is lacking in substance or ‘for any other reason’ should not be entertained) is to be treated analogously to a submission of no case to answer” in civil proceedings”: Hill v University of New England (1990) EOC ¶92-291 at 77,940. In [2002] NSWADT 4 Member Rees stated that the approach mirrors that taken by courts dealing with summary applications in civil proceedings. He quotes from Professor Bernard Cairns who discusses the cases which deal with summary dismissal applications pursuant to Part 13 rule 5 of the Supreme Court Rules 1970, and analogous provisions in other jurisdictions. Professor Bernard Cairns ( Australian Civil Procedure, 4th ed, Sydney: LBC Information Services, 1996 at page 242) has summarised the law as follows:

So the general principle is that a pleading is liable to be struck out if it is plain and obvious that if all the alleged facts are proved it is still insufficient as a claim or defence. The formulae applied to bring an individual case within the general principle are that the case, whether a claim or defence, is unsustainable or unarguable, worse than demurrable, so manifestly faulty that it does not admit of argument, cannot be amended or is incontestably bad. These defects must relate to matters of substance, not just to the form of the pleading. If the court can see a substantial case, even though it is badly pleaded, the action cannot be summarily terminated .

78 The Tribunal considered this issue in Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35] where it stated the following:

In undertaking this examination we believe that the appropriate way forward is to take the Complainant's evidence at its highest point, or in other words, and for the purposes of this exercise, to accept that everything which the Complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination. In essence, and in the circumstances of this case, the Tribunal should evaluate the evidence as if a 'no case' submission had been made at the conclusion of the Complainant's evidence. If, at the end of this exercise, the Tribunal concludes that the Complainant could not succeed it is likely, in the absence of abuse of process, that the complaint has proceeded this far because the Complainant has misunderstood legal principle or has been advancing an untenable proposition of law or fact.

79 The general approach to such applications is that the Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action. The need for caution is even more apparent in cases where a s 111(1) application is made prior to the applicant adducing evidence.

80 It is noted that want of jurisdiction, within the terms of section 111, has been construed to fall within the category of “for any other reason the claim should not be entertained”.

81 In relation to the application here the Respondent contends that the claim of indirect discrimination on the ground of age of a relative was not referred by the President of the Anti-Discrimination Board (“the ADB”) to the Tribunal and the Tribunal therefore lacks jurisdiction to determine the issue.

82 The Respondent further contended that in relation to the claim of sex discrimination complaint the Applicant has failed to adduce the necessary evidence to find that all the elements are made out. The Respondent then makes a number of submissions in relation to this part of the claim.

83 The Respondent also contended the in relation to the age discrimination complaint the Applicant has failed to adduce the necessary evidence to establish the complaint has been made out.

The Claim – Discrimination on the grounds of age of a relative

84 The Applicant was employed as the Children’s Services Coordinator at Gosford City Council from March 1996 up to her resignation in September 2000.

85 The Applicant took maternity leave from 19 July 1999 to 21 May 2000. Upon return to work the Applicant sought to work 38 hours over 4 days rather than 5 days as she claims she was unable to obtain childcare 5 days per week. The Respondent refused this request.

86 From 22 May to her resignation in September 2000 the Applicant did in fact work 4 days per week by virtue of using her leave entitlements including long service leave. Having used all available leave the applicant resigned her position with the Respondent in September 2000.

87 On 20/3/01 the Applicant lodged a complaint with the Anti-Discrimination Board (the ADB). She alleged that between the period March to September 2000 she was discriminated against on the ground of her carer’s responsibilities.

88 The Applicant’s points of claim filed in the Tribunal allege indirect sex discrimination and indirect discrimination on the ground of age of a relative in the area of employment.

89 The Respondent submits that the President did not refer a complaint in respect of indirect discrimination on the ground of age of a relative. The Tribunal therefore has no jurisdiction to determine the claim. The Applicant in turn submits that the facts of the claim were sufficiently pleaded to the ADB to allow for a claim in respect of indirect discrimination on the ground of age of a relative. The Applicant submits that it is not for the President to frame the applicant’s claim.

90 The Applicant herself wrote her complaint to the ADB. Having regard to the complaint made to the ADB we find that the facts of the complaint are sufficiently set out. The President has treated the complaint as one of indirect discrimination on the grounds of sex. The facts on the face of the complaint would also support a complaint in respect of indirect discrimination on the grounds of age of a relative. The facts of the complaint were properly before the ADB and the facts of the complaint have properly been referred to the Tribunal. We therefore do not accept the Respondent’s submission that because the President has chosen to categorise the complaint as one of indirect sex discrimination that the Applicant is precluded from claiming indirect discrimination on the ground of age of a relative.

Indirect Discrimination on the grounds of sex

91 The Respondent submits that the claim is fatally flawed because the Applicant alleges indirect discrimination in respect of a condition or requirement that only applies to her. There is no dispute that the condition or requirement that the Children’s Services Coordinator work a 38 hour week over 5 days per week only applies to the Applicant.

92 In respect of this claim the Applicant is the sole person to whom the challenged requirement applies. She therefore claims the base group is properly all those persons to whom the requirement “potentially could apply”, that is the entire workforce of New South Wales. The Respondent submits that the pool must be the appropriate pool to whom the requirement applies, not a hypothetical workforce.

93 The essence of indirect discrimination on the basis of sex is that facially neutral policies have an adverse impact on the grounds of sex, similarly in respect of the claim of age of a relative. The Respondent submits that in order for the Applicant to succeed she must establish that the Respondent required her to comply with a condition that a substantially higher proportion of men comply or are able to comply with (or alternately persons with children under two).

94 There is only one person to whom this condition applies, therefore there can be no statistical analysis within the workforce. Therefore the dual issue arises of whether this can be a claim of indirect discrimination where the impugned requirement affects only one person and whether the applicant has correctly identified the pool or base group.

95 We will deal firstly with the question of whether the Act applies when the impugned condition or requirement applies to only one person. The Respondent submits that it is “implicit” that for the provisions in respect of indirect discrimination to apply there must be more than one person affected by the condition.

Can there be indirect discrimination where the challenged condition or requirement applies to only one person

96 The Respondent asserts that it is implicit in the legislation that a claim of indirect discrimination cannot be made out in circumstances where the challenged requirement or condition applies to only one person. We note the Anti-discrimination Act 1977 itself is silent on this issue. We have regard to the fact that this Act is beneficial legislation designed to protect against discrimination both direct and indirect. Therefore if there were any ambiguity, beneficial legislation is to be construed in favour of the class of persons designed to protect. We do not find that there is any ambiguity in any event as there is nothing within the legislation which precludes such a claim. We do not find there is any reason by virtue of the terms of the legislation, nor by way of judicial determination, that precludes a person from relying upon the provisions of the Anti-discrimination Act in relation to indirect discrimination in circumstances where there is only one person to whom the challenged requirement or condition applies. Accordingly we decline to dismiss the claim on this basis.

Selection of The Base Group

97 Having determined this issue we are faced with the next question of what is the appropriate base group in circumstances where the condition or requirement applies to one person.

98 The Respondent submits that firstly there is nothing in the “pleadings” to identify the relevant base group or pool of comparison and nothing which shows whether or not a substantially higher proportion of men are able to comply with the impugned requirement or condition. The Respondent asserts that the Applicant has both failed to identify the group upon whom the condition is imposed and further failed to undertake any statistical analysis of those who are able to comply against those who cannot comply on a gender basis. It therefore becomes impossible to assess the reasonableness of the condition. The respondent further submits that there cannot be a hypothetical workforce.

99 It is submitted that it is incumbent upon the Applicant to properly identify the relevant pools of persons who can and cannot comply.

100 We have regard to the four general principles of indirect discrimination which were identified by Sackville J in Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission & Anor [1997] 1311 FCA 28 Nov 1997 (“the Finance Sector Union Case”) as follows:

The base groups appropriate to particular cases will vary according to the context;

The selection of the base group should be calculated to reveal the significance, if any, to sex in compliance;

The decision to select a particular base group involves a mixed question of fact and law;

The Court on an application for review does not make its own assessment groups, but considers whether the base group chosen is too broad or too narrow, by a process akin to determining whether relevant considerations were taken into account or relevant considerations were not taken into account.

101 We note the facts of Banovic were such that there was an actual workforce. The issue was whether to allow a hypothetical workforce in circumstances where there was an actual workforce in order to take account of past discriminatory practices.

102 We have regard to the principles established by the Federal Court in the Finance Sector Union Case. Of particular assistance, however is the reasoning and consideration of judicial comments which lead to the identification of the “principles”. Reference is made to the principal authority of Banovic which was dealing with the provisions of section 24 (3) (a) of the Anti-Discrimination Act and the comments of the majority (Deane, Dawson and Gaudron JJ) on the selection of base groups for the purposes of the comparison. The joint judgement as it identifies the principles is quoted at 178-179 as follows:

The more difficult question concerns the identification of base groups of men and women which will enable the proportions of complying men and women to be calculated. That issue s 24 (3) is totally silent. In the court of appeal, Street CJ held that the identification of a base group was “a matter of fact to be determined having regard to the context in which the requirement or condition is imposed”, adding that “[i]t will be the group to which it is directed and which will be divided or segregated by it”. On the other hand, Priestley JA (with whom Mahoney JA agreed), after a consideration of decisions based on the similar decisions based on the similar provision in the Sex Discrimination Act (UK) inclined to the view that the relevant base groups were the male and female populations of New South Wales.

103 Commenting that section 24 (3) (a) requires an exercise which will ascertain whether sex is significant to compliance with the condition or requirement in question the judgement goes on to state as follows:

…the base groups which are appropriate to that exercise will vary according to the context in which the condition or requirement is imposed. That being so, there is no warrant for reading s 24(3)(a) as invariably requiring the calculation of proportions by reference to the general male and female populations . Equally, there is no warrant for reading section 24(3)(a) as excluding that calculation if it will reveal the significance, if any, of sex to compliance. The silence of s 24(3)(a) as to the method of identifying appropriate base groups should, we think, be taken as requiring the Tribunal to determine for itself the base groups which will reveal whether sex is a significant factor in compliance. …

104 The judgement clearly provides that in certain circumstances reference to the general population is an acceptable method of determining the significance of sex to compliance.

105 The joint judgement makes reference to Banovic, particularly the judgements of Dawson J at 187 and McHugh J at 199 where they refer to the decision of Waite J of the U.K. Empolyment appeal Tribunal of Kidd v D.R.G. (UK) Ltd [1985] ICR 405 at 409 where it is stated that … “for the purposes of the statutory comparison, like must be compared with like in a context appropriate to the case under review”.

106 We note both the Applicant and Respondent seek to rely upon the matter of Purvis, and the transcript of the Proceedings in the High Court. We note that that matter was not a claim in respect of indirect discrimination and we find it to be of little assistance in this relation to the matter before us.

107 We note that the purpose of the selection of “pools” or “base groups” is to allow for a process whereby the challenged requirement can be assessed having regard to “pools” of people who are able to comply as against “pools” of people not able to comply with the challenged requirement.

108 Having regard to the principles identified in the Finance Sector Union Case and to the reasoning in Banovic we find that in circumstances where the challenged requirement applies to one person only it is not inappropriate to determine whether a person is more able to comply on the grounds of sex to look to the workforce generally. In the circumstances of this case, that would be the New South Wales Workforce. We therefore do not accept the Respondent’s submission that the Applicant has failed to particularise or select the appropriate pool.

109 We note that the Respondent has raised a number of additional grounds as to why the application should be dismissed. We deal with these below again noting they are preliminary points only and that no evidence has as yet been taken.

Failure to particularise terms and conditions of employment

110 The Respondent asserts the Applicant has failed to particularise the terms and conditions of employment. In the circumstances of this matter the relevant term or condition of employment is the challenged requirement to work 38 hours per week over 5 days. We therefore do not accept the Respondent’s submission that the claim should be dismissed on this basis.

Condition or requirement must be separate from the job

111 The Respondent asserts that the condition or requirement must be separate from the job. The Respondent asserts that the impugned condition or requirement is this matter is not separate from the job. The Applicant was employed in the position of Children’s Services Coordinator. It was a requirement or condition that that position be worked 38 hours per week and a further requirement or condition that the position be worked over 5 days. We therefore do not accept the Respondent’s submission that the claim should be dismissed on this basis as on its face the challenged requirement is separate from the job.

Was the requirement or condition imposed upon the Applicant?

112 The Respondent asserts that there is no evidence that the Applicant was required to comply with the requirement or condition nor that she was unable to comply with the condition. We do not accept this. It is an agreed fact that the Applicant was required to work 5 days per week. It is further an agreed fact that she did not comply with the condition, instead using leave entitlements to enable her to work 4 days per week.

113 Taking the Applicant’s claim at it’s highest we do not accept the Respondent’s submission on the basis the Applicant appears to have suffered some disadvantage by being required to comply with the condition on the face of the material before the Tribunal.

Was the Applicant unable to comply with the condition or requirement?

114 The Applicant asserts that she was unable to comply with the condition because she was unable to obtain childcare 5 days per week. Taking the claim at its highest there is no reason why we should not accept this fact.

Indirect discrimination on the grounds of age of a relative – deficiencies with the claim

115 It is noted the Respondent makes a submission that this part of the claim suffers the same deficiencies as the claim in relation to discrimination on the grounds of sex in relation to each element. The Respondent also submits that the claim is mutually exclusive in relation to the discrimination on the grounds of sex.

116 We are not satisfied on the Respondent’s submission that the Applicant does not have arguable claim. We reach this conclusion having regard to the fact that no evidence has as yet been taken and as stated above, caution must be taken when dismissing a claim prior to the taking of evidence.

117 For the reasons provided above the Tribunal finds that the Applicant’s claim, taken at its highest is an arguable claim and therefore should not be dismissed pursuant to section 111 of the Anti-discrimination Act 1977.