Gellel v GIO General Ltd

[2012] NSWADT 134

Administrative Decisions Tribunal

New South Wales

Case Title:	Gellel v GIO General Ltd
Medium Neutral Citation:	[2012] NSWADT 134
Hearing Date(s):	5 June 2012
Decision Date:	05 July 2012
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave is refused for the applicant's complaints of sexual harassment, sex discrimination and disability discrimination to proceed
Catchwords:
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
Cases Cited:	Jones and Anor v Ekermawi [2009] NSWCA 388.
Texts Cited:
Category:	Principal judgment
Parties:	Amanda Gellel (Applicant) GIO General Ltd (Respondent)
Representation
- Counsel:
- Solicitors:	A Gellel (Applicant in person) Turks Legal (Respondent)
File number(s):	121061
Publication Restriction:

REASONS FOR DECISION

Introduction

1. The issue in these proceedings is whether the Tribunal should give Ms Gellel permission for her complaints of sexual harassment, sex discrimination and disability discrimination under the Anti-Discrimination Act 1977 (AD Act) to proceed. The complaints, which are against her workers compensation insurer, GIO General Ltd (GIO), were declined by the President of the Anti-Discrimination Board as lacking in substance.

2. Ms Gellel needs to obtain the Tribunal's permission before any of her complaints can proceed: AD Act, s 96. The Tribunal has a discretion to grant or refuse leave for the complaints to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act, including that the complaint is frivolous, vexatious, misconceived or lacking in substance. In this case I have decided to refuse leave for each of the complaints to proceed.

3. Ms Gellel participated in the hearing by phone. She was able to make oral submissions however she felt too stressed to stay on the phone to hear the submissions from the GIO's representative. In those circumstances I directed the GIO to file and serve an outline of their submissions and gave Ms Gellel two weeks to respond. Ms Gellel responded by providing copies of documents she considered relevant to her complaint.

Background

1. Ms Gellel was injured in a car accident on her way home from work on 10 August 2007. She made a workers compensation claim to GIO General Ltd (GIO) for physical and psychological impairment. As part of the assessment, she was required to attend an independent medical examination with a Workcover Accredited Psychiatrist, Dr Ahmed. Dr Ahmed provided a report dated 23 September 2011. Ms Gellel complains that GIO:

   (1)used a flawed process to assess her psychological health;

   (2)failed to inform her as to what the appointment with Dr Ahmed entailed;

   (3)allowed Dr Ahmed to ask unexpected questions relating to a previous sexual assault;

   (4)concluded that the psychological ill health was pre-existing and not due to the injury she suffered at work.

2. The sexual harassment complaint was that Dr Ahmed acted unethically in asking Ms Gellel personal questions regarding a 20 year old sexual assault. She said that these questions were unexpected and she reacted in a nervous and defensive manner.

3. Sexual harassment is defined in s 22A of the AD Act:

   For the purposes of this Part, a person sexually harasses another person if:
   (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
   (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,
   in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

4. Leaving aside the fact that Dr Ahmed is not a respondent to these proceedings, the matters about which Ms Gellel complains do not come within the definition in s 22A. Even if Dr Ahmed did ask Ms Gellel about previous sexual assaults, that is not conduct of a "sexual nature" in the context of this case. A reasonable person witnessing such questions being asked would not have anticipated that Ms Gellel would have been offended, humiliated or intimidated. While we appreciate that Ms Gellel did not like recalling traumatic events and did not consider them relevant, it was necessary for Dr Ahmed to ask them to obtain a full history.

5. The complaint of sexual harassment lacks merit and it is fair and just to refuse leave for it to proceed.

6. In relation to the complaints of sex discrimination and disability discrimination, the GIO submitted that its standard practice when assessing liability is to request that the worker attend an independent medical examination. When Ms Gellel declined to attend the initial appointment that GIO had made, she was told that failure to attend could result in the suspension of her benefits: Workers Compensation Act 1987, s 119. Ms Gellel agreed to attend and a second appointment was made, this time with Dr Ahmed.

7. We accept the GIO's submission that Ms Gellel was told about the appointment by phone and was also advised that she could take a support person. She also made contact with the Customer Relations Unit in relation to the appointment on 6 September 2011. I acknowledge that Ms Gellel did not realise that Dr Ahmed may ask questions about any current or previous psychiatric condition or about her history. However, we accept that that is standard practice in a consultation of this kind. The GIO had obtained medical and other health reports relating to Ms Gellel from various sources and provided them to Dr Ahmed. It was partly on the basis of information in those documents that Dr Ahmed questioned Ms Gellel about a previous sexual assault.

8. In answer to a question Ms Gellel asked in her complaint to the Anti-Discrimination Board, GIO advised that no audio or visual recording was made of the appointment. Dr Ahmed took notes to assist him to compile a report.

9. In order to prove a complaint of sex or disability discrimination, Ms Gellel would have to provide evidence that GIO treated her less favourably than they treated or would have treated a male, or a person who did not have a disability. Secondly, Ms Gellel would have to prove that at least one of the reasons for that treatment was that she is a woman or that she has, or was thought to have, a disability: AD Act, s 4, s 49M, s 49B(1)(a); s 33, s 24(1)(a).

10. There is no direct evidence, nor any evidence from which an inference can be drawn, that GIO's conduct constitutes discrimination in breach of the AD Act. GIO referred Ms Gellel to Dr Ahmed who conducted the assessment in an orthodox manner. GIO advised Ms Gellel that, in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998, liability for her claim had been declined for reasons including that employment with her employer was not a substantial contributing factor to her current incapacity for work.

11. On 22 December 2011, after she had made the complaints to the Anti-Discrimination Board but before she requested that they be referred to the Tribunal, Ms Gellel "commuted" her workers compensation claim for a lump sum. Her claim for compensation, including the disputed psychological injury claim, was finalised by payment of that amount.

12. The complaints of disability and sex discrimination lack merit and it is fair and just to refuse leave for them to proceed.

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