Gibbs v UnitingCare NSW.ACT

[2010] NSWADT 273

CITATION:	Gibbs v UnitingCare NSW.ACT [2010] NSWADT 273
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Theresa Gibbs RESPONDENT UnitingCare NSW.ACT
FILE NUMBER:	101114
HEARING DATES:	8 November 2010
SUBMISSIONS CLOSED:	8 November 2010
DATE OF DECISION:	16 November 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	LEAVE – victimisation – merits of complaint
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
REPRESENTATION:	APPLICANT In person RESPONDENT S Borrow, solicitor
ORDERS:	1. Leave for the applicant’s complaints of disability discrimination to proceed is refused 2. Leave for the applicant’s complaint of victimisation to proceed is refused.

REASONS FOR DECISION

Introduction

1 The issue in this case is whether the Tribunal should give Ms Gibbs permission (‘leave’) for her complaint of victimisation to go ahead even though the President of the Anti-Discrimination Board (ADB) declined that complaint as lacking in substance. The complaint of victimisation is against Ms Gibbs’ former employer, UnitingCare NSW.ACT which runs the Lillian Wells Nursing Home. Ms Gibbs was employed as a registered nurse and as the Acting Director of Care from March 2008. She resigned on 6 April 2009.

2 The President also declined Ms Gibbs’ complaints of disability discrimination. Although she required the President to refer those complaints to the Tribunal, she withdrew them on the day of the hearing. As they have been withdrawn, leave is formally refused for those complaints to proceed.

Test for granting leave

3 Section 96 of the AD Act provides that a complaint that is referred to the Tribunal after it has been declined by the President, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. In Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Schmidt AJ emphasised that leave applications should be determined on the basis of fairness and justice. Where the complaint lacks substance leave may be refused if that is what justice dictates.

Victimisation complaint

4 Section 50 of the AD Act makes ‘victimisation’ unlawful. It provides that:

(1) It is unlawful for a person ( "the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

5 To prove that she has been victimised, Ms Gibbs would have to establish that she:

a) did one of the things listed in s 50(1)(a) to (d);

b) was subjected to a detriment;

c) at least one of the reasons she was subjected to that detriment was that she did one of the things listed in s 50(1)(a) to (d).

6 In addition, the detriment to which Ms Gibbs was allegedly subjected must have occurred during the period of the complaint, that is between 6 November 2008 and 5 November 2009.

7 The President may decline a complaint if the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint: AD Act, s 89B(2)(b). In this case, by letter of 11 February 2010, the President accepted Ms Gibbs’ complaints but only in respect to conduct alleged to have occurred 12 months prior to the date she lodged her complaint, that is 6 November 2008 to 5 November 2009. It is implicit in that decision that the President declined the complaint in so far as it related to any earlier period.

8 When asked at the hearing to identify the detriment she had suffered, Ms Gibbs identified incidents which had occurred in September and October 2008 while she was still at work. Ms Gibbs was on leave from 10 November 2008 and did not return to work after that date as she was suspended on full pay following her period of leave. As the detriment to which Ms Gibbs says she was subjected occurred prior to 6 November 2008, the victimisation complaint cannot succeed and it would not be fair or just to grant leave for it to go ahead.

1. Leave for the applicant’s complaints of disability discrimination to proceed is refused.

2. Leave for the applicant’s complaint of victimisation to proceed is refused.