Harms v Sydney West Area Health Service

[2011] NSWADTAP 48

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Harms v Sydney West Area Health Service [2011] NSWADTAP 48

Hearing dates:

29 November 2010

Decision date:

28 October 2011

Jurisdiction:

Appeal Panel - Internal

Before:

R Madgwick, Deputy President
G Furness, Judicial member
J Schneeweiss, Non Judicial member

Decision:

1) Mr Harms' submissions are to be treated as an informal Notice of Appeal raising the following questions of law and the time for lodging such notice extended accordingly:

a) Whether he had not been given the opportunity to respond to the respondent's objection to the admission of evidence of certain matters allegedly occurring after the time of his alleged victimisation, and

b) Whether at the conclusion of the hearing he was denied the opportunity to make submissions in reply to those of Ms Price the solicitor for the respondent.

2) The question referred to in Order 1(a) is answered in the affirmative.

3) Leave is given to extend the appeal to the merits so far as necessary to enable the Appeal Division to reconsider the merits of the case in the light of any written reply to Ms Price's submissions in the original hearing that Mr Harms may now wish to make. Such reply must be made within 28 days.

4) The appeal is dismissed as to all other grounds.

Category:

Principal judgment

Parties:

Allan Frederick Harms (Appellant)
Sydney South West Area Health Service (Respondent)

Representation:

A Harms (Appellant in person)
Bartier Perry (Respondent)

File Number(s):

109049

 Decision under appeal 

Citation:

Harms v Sydney South West Area Health Service [2010] NSWADT 183

Date of Decision:

2010-07-21 00:00:00

Before:

Equal Opportunity Division

File Number(s):

091023, 091096

REASONS FOR DECISION

1. Mr Harms appeals against the dismissal by the Tribunal in its Equal Opportunity Division of his claims that his erstwhile employer, the respondent, discriminated against him as a carer, and subsequently victimised him for complaining of that discrimination.

1. The appeal purports to raise one or more questions of law, and Mr. Harms also seeks leave to extend the appeal to the merits. The Notice of Appeal did not actually outline any question of law, but in written submissions Mr Harms complained in effect that 1) he had not been given the opportunity to respond to the respondent's objection to the admission of evidence of certain matters allegedly occurring after the time of his alleged victimisation, and 2) at the conclusion of the hearing he was denied the opportunity to make submissions in reply to those of the solicitor for the respondent.

1. Mr Harms was self-represented both in the Equal Opportunity Division and before us and, as he asserted, his appreciation of legal and procedural niceties was not acute. His submissions should be treated as an informal Notice of Appeal on these issues and the time for lodging such notice extended accordingly.

1. As to the merits, if the matter fell to be judged without the benefit of any such further submission by Mr Harms, there would be no proper basis for giving leave to revisit the merits. The reasons for decision of the Tribunal below yield no ground for any conclusion that the Tribunal did not properly and justifiably address the factual material and the argument actually before it.

1. However, as will be seen, we would answer one question of law raised by Mr Harms in his favour. In the result, the most efficient means of ultimate disposition of the matter will be for us to give such leave and revisit the merits after Mr Harms has had the opportunity, not given below, to say what he wishes.

1. It appears that, not long before the hearing of his claims, his former solicitors declined to act further. This compounded the difficulty for Mr Harms and consequentially the Tribunal below to deal with the matter in any very orderly way. As a result Ms Price, the solicitor for the respondent, very properly explained her understanding of the claims and their surrounding circumstances to the Tribunal.

1. As Ms Price pointed out, Mr Harms' second complaint to the Anti-Discrimination Board was made on 2 June 2009 and at first not characterised as one of victimisation but as alleging further carer-discrimination. Ultimately Mr Harms' employment by the respondent as a security guard came to an end in October 2009 either, as the respondent said, by his resignation or, as Mr Harms would have it, by constructive dismissal. As Ms Price understood and outlined the matter, the supposed dismissal "was the act of victimisation and ... retaliatory action for [his] having complained" of the alleged earlier discrimination against him.

1. Mr Harms then tendered a statement he made on 3 February 2010. Ms Price said:

"There are parts of the statement that go way beyond what we say are the matters in the points of claim ... parts of that statement ..., we say, go to the victimisation complaint that isn't properly before the Tribunal. But I think perhaps for the purposes of today, it's best if the statement be allowed in and the Tribunal decide what weight to give to those matters". (emphasis added)

1. The Tribunal accordingly admitted the statement as an exhibit without calling on Mr Harms to respond to what Ms Price had said.

1. Mr Harms complained in a written submission to us:

"The Registrar ( sic : Mr Harms may have confused the presiding Deputy President with the Registrar) upheld the objection of the Respondent's solicitor in regards to matters arising after June 2009. I was not given the opportunity to argue this or explain the circumstances ..."

1. There is no substance in this complaint: there was ultimately no objection and no upholding of any. Further, later in the course of the hearing, Mr Harms to some extent canvassed the rival versions of the termination of the employment both when he was cross-examined and when he cross-examined a witness for the respondent. After all the evidence was in, the presiding Deputy President also sought to have Mr Harms clarify the nature of his victimisation complaint. Mr Harms indicated that it consisted of his having been denied the ability to work certain shifts that he wanted to work. He did not assert that his actual complaint concerned his dismissal. (In his original complaint he had referred to being denied certain shifts and also to some relatively minor kinds of alleged harassment). However, immediately before this, Mr Harms had explained in evidence that the circumstances of his tendering a letter of resignation were factually linked to his efforts to obtain the desired shifts.

1. The Deputy President then asked Mr. Harms whether there was anything else he wanted to say as to why he should succeed. At that point it seems there was not.

1. Ms Price was then called upon to make her submissions.

1. When she concluded, the Tribunal announced through the presiding Member that it would reserve its decision. The Tribunal did not ask Mr Harms whether he had anything to say in reply.

1. The question is whether the Tribunal thereby denied Mr Harms a full and fair opportunity to put his case, so as to constitute procedural unfairness.

1. It is true that the presiding member had been at pains to elucidate the conceptual and factual basis of Mr Harms' case and to give him every chance, before Ms Price spoke, to say what he wanted to say. It is also true that in every other respect the Tribunal afforded Mr Harms every appropriate opportunity to participate fully in the hearing.

1. There is no hard and fast rule about the order or number of addresses, though it is usual and frequently desirable for the moving party to have the last say even if that party also had the first say. The requirements of procedural fairness are flexible, varying with the circumstances of different cases. A failure to accord procedural fairness should not lightly be ascribed to a tribunal of the seniority and experience of the Tribunal below and expressly required by its constitutive statute (the Administrative Decisions Act 1997 )to inform itself of matters " subject to the rules of natural justice " (s73(2) and

"(4) ... to take such measures as are reasonably practicable:

...

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings" (S73)

1. Nevertheless, we think that there was a failure of procedural fairness in this case. The facts were complex, aspects of them were hotly disputed and their forensic and conceptual relevance were not beyond further possible explanation. Mr Harms was unevenly matched against Ms Price and at short notice self-represented. It is not beyond the bounds of possibility that Mr Harms may have been able to say something that might have countered Ms Price's seemingly persuasive arguments. In any case, he should have had the chance to do so. It was a case where fairness required that he should have a right of reply. The appeal on this point should be upheld.

1. To resolve the matter now, without the expense of a further hearing, we will give leave to extend the appeal to the merits so far as necessary to enable us to reconsider the merits of the case in the light of any written reply to Ms Price's submissions in the original hearing that Mr Harms may now wish to make. Such reply must be made within 28 days. The leave does not extend to the tendering of additional evidence.

Formal Orders

(1)   Mr Harms' submissions are to be treated as an informal Notice of Appeal raising the following questions of law and the time for lodging such notice extended accordingly:

(a)   Whether he had not been given the opportunity to respond to the respondent's objection to the admission of evidence of certain matters allegedly occurring after the time of his alleged victimisation, and

(b)   Whether at the conclusion of the hearing he was denied the opportunity to make submissions in reply to those of Ms Price the solicitor for the respondent.

(2)   The question referred to in Order 1(a) is answered in the affirmative.

(3)   Leave is given to extend the appeal to the merits so far as necessary to enable the Appeal Division to reconsider the merits of the case in the light of any written reply to Ms Price's submissions in the original hearing that Mr Harms may now wish to make. Such reply must be made within 28 days.

(4)   The appeal is dismissed as to all other grounds.

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Decision last updated: 28 October 2011