Goldsteen v TCI Pty Ltd

[2019] NSWCATAD 178

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Goldsteen v TCI Pty Ltd [2019] NSWCATAD 178
Hearing dates:	31 July 2019
Date of orders:	30 August 2019
Decision date:	30 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	The Respondent's application for orders to dismiss the complaint is dismissed.
Catchwords:	SEX (PREGNANCY) AND CARER’S RESPONSIBILITIES DISCRIMINATION – victimisation - aiding and abetting - whether case should be dismissed for want of jurisdiction - dispute between residents of different states - whether case should be dismissed on basis it is frivolous, vexatious, misconceived or lacking in substance - whether the conduct alleged, if proven, would not disclose the contravention of a provision of the Act or the Regulations.
Legislation Cited:	Anti-Discrimination Act 1977 Corporations Act 2001 Strata Schemes Management Act 1996 (NSW)
Cases Cited:	AB v State New South Wales [2014] NSWSC 81 Alchin v Rail Corporation NSW [2012] NSWADT 142 Australian Security and Investment Commission v Edensor Nominees Pty Ltd [2001 ] HCA 1 Bonner v Secretary, Department of Industry [2017] NSWCATAD 229 Burns v Corbett [2018] HCA 15 Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Dee v Commissioner of Police & Anor ( 2003) NSW ADT 217 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ehl v Department of Education and Training and NSW Teachers Federation ( 1999) NSW ADT 102 Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 General Steel Industries Inc -v- Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 GS-v-MS [2019] WASC 255 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009]NSWADTAP20 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 Purvis v State of NSW [2003] HCA 62; (2003) 217 CLR 92 Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Texts Cited:	Bernard Cairns, Australian Civil Procedure 10th edition, Thomson Reuters
Category:	Procedural and other rulings
Parties:	Sarah Goldsteen (Applicant, Respondent to strike out application) TCI Pty Ltd (First Respondent) Babak Moini ( Second Respondent, Applicant for strike out)
Representation:	Counsel: Ms Saunders (Applicant) Ms Francois (Respondent)   Solicitors: Danny King Legal (Applicant in complaint) William Roberts Lawyers (Respondent in complaint)
File Number(s):	2017/00336731
Publication restriction:	Nil

REASONS FOR DECISION

The issue

1. The issue in this matter is whether the Tribunal should dismiss the complaint made by Ms Goldsteen against TCI Pty Ltd (TCI) and Mr Babak Moini, Director of TCI, because the Tribunal lacks jurisdiction to deal with the matter or because it is either misconceived, lacking in substance or failing to disclose a contravention of section 102 of the Anti-Discrimination Act 1977 (the Act).

Background

2. Ms Goldsteen was employed by The Cosmetic Institute, TCI, from 21 November 2013. She became the director of nursing. In May 2016 the Company restructured its operations. In September 2016 Ms Goldsteen advised the Company that she was pregnant and wished to take maternity leave from February 2017 to February 2018.

3. In July 2017 Ms Goldsteen made a complaint to the President of the Anti-Discrimination Board (ADB) that she had been discriminated against by her employer TCI on the grounds of her sex (pregnancy) and carer’s responsibilities. The President of the ADB referred the complaint to the Tribunal in October 2017.

4. Ms Goldsteen moved to Queensland in or around early 2018. TCI terminated Ms Goldsteen’s employment in February 2018.

5. Ms Goldsteen’s employer, TCI, went into liquidation. The Tribunal granted a stay of proceedings against TCI. Mr Moini, as a director of TCI, was joined as Second Respondent to the complaint by the Tribunal.

Pleadings

6. In this matter, an application for dismissal by the Second Respondent, the Tribunal refers to Ms Goldsteen as the Applicant and Mr Moini as the Respondent.

7. The Applicant to the original complaint matter has filed and served amended Points of Claim. The Second Respondent has filed and served Points of Defence. No orders have been made for the filing of a reply by Ms Goldsteen. The Second Respondent had submitted that it understood the Applicant did not propose to call further evidence. However, the parties confirmed at the hearing of the Second Respondent’s application that the issue of summonses may be sought – should the matter proceed to a hearing. Further Ms Goldsteen had not yet filed a reply.

Amended Complaint

8. An amended points of claim alleges that TCI and Mr Moini as director of TCI “and the controlling mind of the Company” had subjected Ms Goldsteen to detriments including:

• not transferring her into an offered alternate role of clinical co-ordinator;

• not consulting with her about changes in the organisational structure;

• not giving her a redundancy;

• not paying Ms Goldsteen her entitlements;

• not permitting her to return to work early from maternity leave or at all; and

• dismissing her.

9. Ms Goldsteen alleged that these detriments were less favourable treatment on the grounds of her sex (pregnancy); carer’s responsibilities and victimisation for making a complaint to the Anti-Discrimination Board in July 2017.

10. Ms Goldsteen also alleged that Mr Moini had aided and abetted TCI in this discrimination.

What needs to be proved to establish the complaint

11. The Tribunal sets out below what needs to be proved on the balance of probabilities.

Allegation of discrimination on the ground of sex (pregnancy)

12. Ms Goldsteen alleges that she was discriminated against on the grounds of her sex (pregnancy) in that she was subjected to detriment by her employer after she told her employer she was pregnant.

Direct sex discrimination

13. To succeed in a complaint of direct discrimination on the ground of pregnancy under sections 24 and 25 of the ADA Ms Goldsteen must show that:-

a.   she was treated less favourably than other persons;

b.   that the, or one of the, reasons for the less favourable treatment was that she was pregnant; and

c.   a comparator (of a different sex) would have been treated more favourably in the circumstances and that the Respondent treated her less favourably because she is a woman.

(See Purvis v State of NSW [2003] HCA 62; (2003) 217 CLR 92 at [213] - [224])

14. Section 4A of the ADA requires that the protected attribute – in this matter sex (pregnancy), carer’s responsibilities and victimisation - is one of the real or true reasons for the less favourable treatment. See Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009]NSWADTAP20 at [36] – [37]

15. Ms Goldsteen has alleged less favourable treatment in that TCI altered her role to her detriment; removed an opportunity to transfer into the clinical coordinator role; refused to pay her notice and redundancy on the sale of the business and dismissed her. She alleges that one of the grounds for this was her pregnancy and that someone who was not pregnant would not have been treated in this way. Ms Goldsteen cites comparators of other employees who were paid redundancy entitlements.

Direct carers responsibilities

16. To succeed in a complaint of direct carer’s responsibility discrimination under section 49T and 49V, Ms Goldsteen must show that:

1. she was treated less favourably than other persons;

2. that the, or one of the, reasons for the less favourable treatment was that she had carers responsibilities; and

3. a comparator without carers responsibilities would have been treated more favourably in the circumstances and that the Respondent treated her less favourably because she had carer’s responsibilities.

17. Ms Goldsteen refers to her unsuccessful request for flexible work arrangements due to her family responsibilities and contends that TCI treated her less favourably than it would have treated a person without family responsibilities and contravened S.49V of the Act. Ms Goldsteen alleges that other employees were permitted to work from home. See Bonner v Secretary, Department of Industry [2017] NSWCATAD 229

Indirect carers responsibility discrimination

18. To succeed in a complaint of indirect carers responsibility discrimination, Ms Goldsteen must show that the Respondent(s) required her to comply with a requirement or condition with which a substantially higher proportion of persons who do not have carers responsibilities, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which Ms Goldsteen does not or is not able to comply. The Tribunal understands that Ms Goldsteen alleges that the requirement to work full-time was a requirement with which a substantially higher proportion of employees without carers responsibilities were able to comply, with which she could not comply, and which was not reasonable in the circumstances.

Victimisation

19. Section 50 of the Act sets out unlawful victimisation:

50 Victimisation

(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,

20. To succeed in her complaint of victimisation, Ms Goldsteen must establish:

1. First, that she did one of the things listed in s 50(1) (a) to (d).

2. Second, that the Respondents caused her to experience a detriment; and

3. Third that detriment must have occurred “on the ground” that she did one of the things listed in s 50(1) (a) to (d).

21. Section 4A of the ADA provides that victimisation need only be one of the reasons for the treatment. See Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP20 at [36] – [37].

22. Ms Goldsteen contends that TCI (through Mr Moini) subjected her to detriment by refusing to discuss her role with her; refusing to agree to her early return to work; not providing flexible work arrangements; failing to make her redundant in 2017; and dismissing her.

23. Ms Goldsteen contends that one of the reasons was on the ground that she commenced and continued these proceedings. Ms Goldsteen points to correspondence between herself and the Company as evidence of this.

Complaint of aiding and abetting

24. Section 52 of the Act provides that:

It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.

25. The effect of s 52 is that a person who contributes to an act of unlawful discrimination becomes jointly liable for the conduct.

26. Before a person can be liable as a contributor, there must be a finding of an unlawful act by another person: Dixon v RNJ Sicame Pty Ltd [2002] NSWADT 154 at [42].

27. At the hearing of the Application, the parties told the Tribunal that even though proceedings against the First Respondent TCI have been stayed, this was not a bar to the Tribunal ultimately making a finding of unlawful discrimination against TCI.

28. Ms Goldsteen referred to emails from Mr Moini to her concerning her employment as evidence of Mr Moini aiding and abetting in unlawful discrimination.

Application for Dismissal by Second Respondent

29. The Second Respondent, Mr Moini, applied to the Tribunal for orders that the complaint be dismissed. The Second Respondent contended that the Tribunal had no jurisdiction to deal with the complaint as it involved a dispute between residents of different states (see Burns v Corbett [2018] HCA 15) and that Ms Goldsteen’s complaint was lacking in substance and did not disclose a contravention of the Act, pursuant to section 102 of the Act.

No jurisdiction - residents of different states

30. The Respondent submitted that the High Court’s decision in a discrimination law matter of Burns v Corbett [2018] HCA 15 meant that the Tribunal had no jurisdiction to deal with this matter as it involved a dispute between Ms Goldsteen - now a resident of Queensland and Mr Moini – a resident in New South Wales. Such a dispute was beyond the jurisdiction of the NCAT as the Tribunal did not exercise the judicial power of the Commonwealth.

31. Ms Goldsteen submitted that Burns v Corbett [2018] HCA 15 is not an authority for this proposition. Burns v Corbett concerned a dispute that arose between two persons who at all times were residents of different states. In that sense, it was a dispute of an interstate character unable to be dealt with by the Tribunal.

32. This matter, by contrast, was wholly concerned with a dispute which arose in NSW, between residents of NSW and in respect of employment in NSW. When the complaint was referred to NCAT in October 2017, Ms Goldsteen was a resident of NSW.

33. Ms Goldsteen submitted that the Tribunal, once properly seized of jurisdiction, retains it and must resolve all aspects of the controversy in accordance with law: Australian Security and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1.

34. This Tribunal is satisfied as a matter of fact that when Ms Goldsteen made the complaint to the ADB subject of the proceedings in July 2017 – she was then a resident of NSW. Her employment with TCI had taken place in NSW and Mr Moini is a resident of NSW. The Tribunal notes the remarks made in passing of the Western Australian Chief Justice in the matter of GS-v-MS [2019] WASC 255. That matter dealt with the question of whether the Western Australian Guardianship Tribunal was precluded from dealing with a guardianship application because it involved residents of different states. The Western Australia Chief Justice commented that a body corporate does not have a residence. This Tribunal makes no finding about TCI’s residence.

35. The complaint was referred from the President of the ADB to NCAT on or around 23 October 2017. The Tribunal did not hear evidence about Ms Goldsteen’s current residence – although her submissions noted that she had moved to Queensland temporarily on 11 January 2018.

36. The Second Respondent did not submit that the Tribunal had lost jurisdiction at any defined time. The Tribunal is not satisfied that the Tribunal should decline to deal with the matter on the basis that it lacks jurisdiction at this time.

Application for dismissal section 102 ADA as "frivolous, vexatious, misconceived or lacking in substance".

37. The Second Respondent submitted that the proceeding should be dismissed as "frivolous, vexatious, misconceived or lacking in substance". The Tribunal has summarised the Second Respondent’s submissions below.

38. The proceedings should be dismissed in circumstances where the Applicant had confirmed, through her legal representatives, to the Second Respondent and the Tribunal that she does not intend to rely upon any other evidence beyond the witness statement she signed on 21 January 2019 and its annexures to prove her claim.

39. Accordingly, the consideration of whether this proceeding is "frivolous, vexatious, misconceived or lacking in substance” should be determined based on the entirety of the evidence upon which the Applicant proposes to rely.

40. In summary, the Second Respondent contended that the evidence relied upon by the Applicant cannot support her pleaded claims for the following reasons:

1. the alleged contravening conduct is either contrary to, or not supported by, the evidence adduced by the Applicant;

2. the only potential exception to (a) is hearsay evidence which is critical to one aspect of the Applicant's claims but where she has refused to adduce direct evidence from Ms Lawson who made the statement to enable the truth of the allegations to be tested in any way before the Tribunal;

3. the other evidence relied upon by the Applicant as to the motivation for the alleged conduct consists of her bare assertions;

4. there is no evidence upon which the Tribunal could lawfully rely to hold that the Second Respondent "caused, instructed, induced, aided and/or permitted" the First Respondent to engage in the alleged contravening conduct; and

5. the claims against the First Respondent (which is still pleaded as being "a corporate entity, capable of being sued in its corporate name and style" at 1(a) of the Amended Points of Claim) are an abuse of process as it is in liquidation: see section 440D of the Corporations Act 2001.

41. The Second Respondent’s submissions questioned the essential claims of the Applicant as follows:

1. Ms Goldsteen claimed she should have been made redundant when her core duties as Director of Nursing ceased or the 'business' was sold. However, the redundancy issue clearly arose with re-structuring in May 2016 – prior to Ms Goldsteen advising TCI she was pregnant in September 2016. Further Ms Goldsteen had the benefit of higher salary as Director of Nursing – beyond a time she says she should have been made redundant.

2. Ms Goldsteen claimed she should have been transferred to a new role of "Clinical Co-Ordinator". The Second Respondent stated there was no evidence that this position had ever been created.

3. Ms Goldsteen claimed she should have been allowed to work 3 days a week from home to enable her to look after her two children who were 9 months old when she proposed to return from parental leave. The duty statement for Director of Nursing clearly could not have accommodated this. The Respondent had in fact offered Ms Goldsteen part-time work in June 2017 which she had refused. The request for flexibility was made in June 2017 prior to any complaint to the ADB. The redundancy issue also arose with re-structuring in May 2016, prior to the complaint to the ADB in June 2017. Therefore, neither of these alleged “detriments” could be seen to be victimisation for making the complaint.

4. Ms Goldsteen was dismissed on 6 February 2018. It was not true that the Second Respondent had refused to discuss Ms Goldsteen’s return to work because of her requests for flexible work. It was clear from the email exchanges that the Respondents had continued to discuss return to work with Ms Goldsteen in November 2017. Ms Goldsteen’s claim to be ready willing and able to return to work until her alleged dismissal in February 2018 was contradicted by the fact that she had moved to Brisbane to start a new job in January 2018.

Reliance on Hearsay evidence

42. The Respondent contended that there may be hearsay evidence which is critical to one aspect of the Applicant's claims. However, Ms Goldsteen refused to adduce direct evidence from Ms Lawson who made a statement, to enable the truth of the allegations to be tested in any way before the Tribunal.

Bare or mere assertion evidence

43. The Respondent also submitted that Ms Goldsteen’s claims were “bare or mere assertions.” It was not appropriate for the Tribunal to rely upon these to make findings.

44. For example, in Fricke v Corbett Research Pty Ltd [2004] NSWADT 128, the Tribunal confirmed at [37]:

"The standard of satisfaction for a section 111 (predecessor to section 102) application is quite high. The Tribunal must be satisfied in effect that the complainant has no chance of succeeding on the evidence as set out before it. It is not appropriate to find that discrimination has taken place on the mere assertion by the complainant that it is so and the absence of evidence to that effect. The complainant must, to establish the existence of discrimination, establish objective facts from which to infer the other facts which he sought to establish".

45. In Dutt v Central Coast Area Health Service [2002] NSWADT 133, the Tribunal confirmed at [82]:

"When there is no evidence to support an inference that race was a ground, particularly when there is evidence giving rise to other, equally plausible inferences, an applicant is left with nothing more than their belief that their race was a ground. In terms of legal proof, with which the Tribunal is necessarily concerned, such a belief is insufficient to establish unlawful discrimination".

46. Given the evidence set out above, the Applicant's evidence rises no higher than bare assertion and all available inferences do not support the basis of what occurred being due to any alleged reason which is unlawful under the ADA.

Involvement of the Second Defendant

47. 20.   There is no evidence upon which the Tribunal could lawfully rely to hold that the Second Respondent "caused, instructed, induced, aided and/or permitted' the First Respondent to engage in the alleged contravening conduct within the meaning of section 52 of the ADA.

Legal Principles Section 102 of the ADA – dismissal of complaint

48. Section 102 of the ADA provides:

The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a) (i) or (ii) or (b).

49. Section 92(1) (a) (i) and (ii) give the President of the ADB the power to decline a complaint during investigation of a complaint if the President is satisfied that the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or if the President is satisfied that the conduct alleged, or part of the conduct alleged, is proven, would not disclose the contravention of a provision of the Act or the regulations.

50. The Tribunal has previously held that the discretion to dismiss a complaint summarily, i.e. without full hearing, under s 102 (formerly s 111(1) of the Act) must be exercised with exceptional caution and only if the circumstances clearly warrant such action. (See Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin v Rail Corporation NSW [2012] NSWADT 142 at [20]; Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 at [84]; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73.)

51. As the Tribunal stated in Fricke –v- Corbett Research P/L [2004] NSWADT 128

The need for caution is even more apparent in cases where such an application is made prior to the adducing of the complainant's evidence at the substantive hearing. Ultimately, it is for each Tribunal to determine the application according to its own circumstances. It is for the Tribunal to decide whether the application should be heard and determined prior to the full hearing of the complainant's case.

52. Consistent with the approach taken by the authorities, in deciding whether to exercise the power to dismiss the complaints, or part of the complaints, summarily, the Tribunal takes the approach of taking the facts on which Ms Goldsteen relies at their highest and asking whether they reveal an arguable case to which the Respondents should answer: Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]–[26]; and Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38].

When is a complaint lacking in substance or fails to disclose a contravention?

Lacking in substance

53. In Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [45] the Court of Appeal interpreted the phrase “lacking in substance” in the context of the informal investigative powers in the Strata Schemes Management Act 1996 (NSW). The Court concluded at [45] that, “It would be inappropriate given the extraordinary powers triggered by a finding that an application is lacking in substance, to attribute to the phrase a meaning other than “not reasonably arguable”. Although the legislative context here is different, that interpretation is also apt given that the power to summarily dismiss a complaint should be used sparingly and only where there is a high degree of certainty that the complaint will not succeed: AB v State New South Wales [2014] NSWSC 81 at [50] quoting Barwick CJ in General Steel Industries Inc -v- Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

54. It has been suggested that "prior to the Tribunal commencing a hearing on the merits, it is difficult, if not impossible, for the Tribunal to determine whether there may be substance to a complainant's allegations. Generally, it is far more appropriate that the merits of a complainant's case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis. See Ehl v Department of Education and Training and NSW Teachers Federation (1999) NSW ADT 102 at [14]. See also Dee v Commissioner of Police & Anor (2003) NSW ADT 217 at [24].

Complaint does not disclose a contravention

55. The power to dismiss a complaint because the conduct, even if proven, would not disclose a contravention of the legislation is similar to the inherent power of courts to strike out proceedings that are bad in law or clearly hopeless: Bernard Cairns, Australian Civil Procedure 10th edition, Thomson Reuters at 504. A pleading will be struck out if the court is satisfied that even if the plaintiff proves all the factual allegations in the pleading, those facts would not establish the essential elements of a cause of action.

Tribunal’s consideration

Lacking in substance and does not disclose a contravention

56. The fact that the Respondent has provided an explanation for refusing to provide flexible working arrangements does not necessarily mean that the complaint lacks substance. The Tribunal is presented with opposing views about whether it was possible for Ms Goldsteen to perform duties under flexible arrangements.

57. The Respondent submitted that the there was no evidence to support Ms Goldsteen’s accusations of victimisation. Ms Goldsteen referred to her email to Ms Kate Lawson, clinic manager at TCI dated 13 June 2017 which requested return to work with flexible working arrangements. It also stated, “I do not think that TCI should discriminate against me as working from home does not seem to be an issue when it comes to other employees.”

58. In response, Ms Lawson’s email of Tuesday 11 July 2017 stated:

“Hello Sarah,

Thank you for your email.

I’ve spoken with Babak (Mr Moini) and he has advised that he is unwilling to provide a redundancy package or allow a work from home arrangement.

Regards

Kate Lawson

Clinic Manager

59. Ms Goldsteen points to Mr Moini's email to her on Friday, 24 November 2017 in response to Ms Goldsteen’s request to return to work on Monday, 4 December 2017. Mr Moini’s email states:

Hi Sarah, given there remains an open unconcluded investigation with the ADB (since referred to NCAT) I am not able to advise in this matter.

60. Ms Goldsteen also referred to an email on 28 November 2017 from Mr Moini which stated, “we are unable to provide an employment start date until you confirm you no longer require to work from home.”

61. At the hearing of this application, the Second Respondent’s counsel contended that there were other interpretations of the correspondence which did not point to victimisation. Neither Ms Goldsteen nor Mr Moini gave evidence at the hearing of the Application for strike out. The Tribunal considers the interpretation of Ms Goldsteen’s and Mr Moini’s emails to remain a matter for the Tribunal to determine at any eventual full hearing.

Bare or mere assertion and Drawing inferences

62. The Second Respondent submitted that the Tribunal could not rely on the Applicant’s bare or mere assertions about discrimination in the absence of proof of the reason for the Respondent’s actions. The Tribunal has previously acknowledged the difficulty in an Applicant providing direct evidence of an alleged ground of discrimination.

63. As with many complaints of discrimination, a causal link between Ms Goldsteen’s pregnancy and carers responsibilities and the conduct of the Respondents may have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant:

“. . .

(b)   an inference must be reasonably drawn on the basis of the primary facts;

(c)   an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;

(d)   a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";

(e)   the inference must be a logical one, and not supposition;

(f)   an inference cannot be made where more probable and innocent explanations are available on the evidence.”

64. At the same time, it is accepted by the Tribunal that where there is no direct evidence of discrimination, and where an Applicant relies on inferences to be drawn from the evidence, where more probable and innocent explanations are available on the evidence, the inference will not normally be drawn. See Dutt v Central Coast Area Health Service [2002] NSWADT 133.

65. In the decision of the Tribunal in Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 the following was noted in relation to the drawing of inferences:

The Tribunal finds in these preliminary proceedings under section 102 of the Act, that the Tribunal cannot make findings on the available evidence about inferences which should be drawn and that this is properly a matter for a Tribunal to decide at a full hearing. The questions of whether the inference is logical rather than supposition, or whether there is a more probable and innocent explanation available on the evidence, will be matters to be considered on a full hearing of the evidence. Without hearing from witnesses, it is not appropriate for the Tribunal, in a section 102 application, on the available evidence in this matter, given the conflict between the evidence of the Applicant and the Respondent, to weigh the evidence (which is predominantly in written form) and decide whether an inference should be drawn from the evidence.

66. The Tribunal was presented with a number of emails between Ms Goldsteen and representatives of TCI. The Tribunal is satisfied that the content of these exchanges is open to differing interpretations. This should be left to a full hearing before the Tribunal.

The Tribunal’s approach to hearsay evidence

67. The Second Respondent objected to the reliance upon Ms Lawson’s emails to Ms Goldsteen on the basis that they constituted hearsay. The Second Respondent submitted that the Tribunal would never, in the interest of procedural fairness, permit the introduction of or reliance upon hearsay evidence.

68. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2). The Tribunal is also to act with "as little formality as the circumstances of the case permit": NCAT Act, s 38(4).

69. The Tribunal is satisfied that the Tribunal is not bound by the rules of evidence. The pleadings in this matter have not yet closed and Ms Lawson may yet be called as a witness. Further it is a matter for a full Tribunal hearing to determine whether or not elements of evidence are admissible.

Conclusion

70. The Second Respondent submitted that even taking Ms Goldsteen’s statements at their highest, Ms Goldsteen’s statements did not support her complaints of pregnancy, carers responsibilities or victimisation discrimination. The Tribunal approaches its role by considering whether the facts as stated by a complainant at their highest show that there may be grounds on which to decide that the complaint either ought to be dismissed or alternatively, permitted to proceed to a full hearing, in which case the Respondent's evidence will be called.

71. Ms Goldsteen has identified provisions of the Anti-Discrimination Act which she says have been breached. She has also provided some evidence as to how the Respondent treated other employees who were not pregnant, or who did not have carer’s responsibilities. The Tribunal has email exchanges between Ms Goldsteen and representatives of TCI which are open to interpretation as to the reasons for the employer’s actions. The power to summarily dismiss a complaint should be used sparingly and only where there is a high degree of certainty that the complaint will not succeed. This is not such a case.

72. The Tribunal has considered the Applicant's case as a whole in determining whether the case should be dismissed.

73. For the reasons detailed above the Tribunal is not satisfied that the Applicant's case, taking the Applicant's case at its highest for the purposes of these proceedings, is frivolous, vexatious, misconceived or otherwise lacking in substance, or fails to disclose a breach of the Act or regulations.

74. The Tribunal is not satisfied that it lacks jurisdiction to deal with the matter because of the residency of the parties.

75. Accordingly, the Tribunal decided not to make orders under section 102 of the Act to dismiss the application.

Orders

1. The Respondent's application for orders to dismiss the complaint is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 30 August 2019