HESFORD and INTEGRATED GROUP LTD

[2008] WASAT 223

HESFORD and INTEGRATED GROUP LTD [2008] WASAT 223

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 223
Act:	EQUAL OPPORTUNITY ACT 1984 (WA)
Case No:	EOA:17/2008	Heard:	DETERMINED ON THE PAPERS
Coram:	MS J TOOHEY (SENIOR MEMBER)	Delivered:	23/09/08
No of pages:	9	Judgment Part:	1 of 1
Result:	The application is dismissed
Category:	B
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Parties:	PHILLIP HESFORD INTEGRATED GROUP LTD
Catchwords:	Discrimination Imputed sexual orientation Impairment Application to dismiss as lacking in substance No evidence in support of applicant's assertions Application could not possibly succeed Application dismissed
Legislation:	Equal Opportunity Act 1984 (WA), s 35O, s 35P, s 35P(2), s 66A(1), s 66B, s 66B(2), s 89, s 90(2) State Administrative Tribunal Act 2004 (WA), s 32(4), s 32(6), s 47, s 47(1)
Case References:	General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Paramasivan v Grant [2001] FMCA 882 Rana v University of South Australia [2004] FCA 559
Orders	The application is dismissed pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA).
Summary	The applicant complained that the respondent discriminated against him on the grounds of impairment and imputed sexual orientation in the area of employment. He alleged that members of his family, his church and the army, and former employers and co-workers, had imputed he was homosexual and discriminated against him because of a brain aneurism.,The respondent denied the allegations. In particular, it denied any knowledge of the applicant's sexual orientation or imputing any sexual orientation to him and it denied knowledge of any impairment. The respondent also denied any knowledge of the individuals whom the applicant claimed had given the respondent information about him. It said the applicant's casual employment was terminated because of his poor performance and because the contract he was working on was nearing completion.,The Commissioner for Equal Opportunity had dismissed the complaint as lacking in substance. She referred it to the Tribunal at the applicant's request pursuant to s 90(2) of the Equal Opportunity Act 1984 (WA).,The respondent applied for an order dismissing the application under s 47(1) of the State Administrative Tribunal Act 2004 (WA) on the ground that it was lacking in substance. ,The Tribunal found that nothing in the material before it disclosed any basis for a finding of unlawful discrimination by the respondent. It was satisfied that the application lacked substance and should be dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : HESFORD and INTEGRATED GROUP LTD [2008] WASAT 223 MEMBER : MS J TOOHEY (SENIOR MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 23 SEPTEMBER 2008 FILE NO/S : EOA 17 of 2008 BETWEEN : PHILLIP HESFORD

Applicant

AND

INTEGRATED GROUP LTD
Respondent

Catchwords:

Discrimination - Imputed sexual orientation - Impairment - Application to dismiss as lacking in substance - No evidence in support of applicant's assertions - Application could not possibly succeed - Application dismissed

Legislation:

Equal Opportunity Act 1984 (WA), s 35O, s 35P, s 35P(2), s 66A(1), s 66B, s 66B(2), s 89, s 90(2)

State Administrative Tribunal Act 2004 (WA), s 32(4), s 32(6), s 47, s 47(1)

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Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicant : Self­represented
Respondent : Self­represented

Solicitors:

Applicant : Self-represented
Respondent : Self-represented

Case(s) referred to in decision(s):

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Paramasivan v Grant [2001] FMCA 882
Rana v University of South Australia [2004] FCA 559


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicant complained that the respondent discriminated against him on the grounds of impairment and imputed sexual orientation in the area of employment. He alleged that members of his family, his church and the army, and former employers and co-workers, had imputed he was homosexual and discriminated against him because of a brain aneurism.

2 The respondent denied the allegations. In particular, it denied any knowledge of the applicant's sexual orientation or imputing any sexual orientation to him and it denied knowledge of any impairment. The respondent also denied any knowledge of the individuals whom the applicant claimed had given the respondent information about him. It said the applicant's casual employment was terminated because of his poor performance and because the contract he was working on was nearing completion.

3 The Commissioner for Equal Opportunity had dismissed the complaint as lacking in substance. She referred it to the Tribunal at the applicant's request pursuant to s 90(2) of the Equal Opportunity Act 1984 (WA).

4 The respondent applied for an order dismissing the application under s 47(1) of the State Administrative Tribunal Act 2004 (WA) on the ground that it was lacking in substance.

5 The Tribunal found that nothing in the material before it disclosed any basis for a finding of unlawful discrimination by the respondent. It was satisfied that the application lacked substance and should be dismissed.

Background

6 These proceedings concern a complaint of discrimination on the grounds of imputed sexual orientation and impairment in the area of employment.

7 The applicant, Phillip Hesford, alleges that the respondent, Integrated Group Ltd, unlawfully discriminated against him contrary to s 35P and s 66B of the Equal Opportunity Act 1984 (WA) (EO Act).

8 On 26 April 2007, Mr Hesford lodged his complaint with the Commissioner for Equal Opportunity. On 19 February 2008, the

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Commissioner decided the complaint was unsubstantiated and dismissed it pursuant to s 89 of the EO Act. On 3 April 2008 she referred it to the Tribunal at Mr Hesford's request pursuant to s 90(2) of the EO Act. Her referral comprises a covering letter, a summary of her investigation and documents she considered relevant to the referral.

The complaint to the Commissioner for Equal Opportunity

9 In her referral, the Commissioner advises that Mr Hesford's complaint was on the grounds of racial harassment, religious conviction and sexual orientation. She attached a copy of the standard complaint form and supporting documents as well as correspondence with the respondent.

10 The Commissioner said it was difficult to decipher the complaint itself because it included a lot of detail about Mr Hesford's past including family relationships, his time in the army and his involvement in the Pentecostal Church; it also referred to malpractice by doctors who believed Mr Hesford was homosexual and refused to treat him, and to a brain aneurism said to have been caused by those doctors.

11 The Commissioner advised that she was able to establish that Mr Hesford's complaint concerned the termination of his employment. She advised him that she would deal with his complaint as one of discrimination on the grounds of imputed sexual orientation and impairment, being a brain injury arising out of a cerebral haemorrhage in 1993. She declined to accept the matters concerning doctors as a complaint because in her view they were too imprecise.

12 Mr Hesford identified his former employer as Skilled Engineering Ltd and claimed that, together with another employee, a medical centre and the army they 'got me the sack'. He claimed that he was dismissed because a Mr Goode, who knew him from the army, told his employer that he was homosexual - which he is not. In support of his claims Mr Hesford referred to the 'scientific fact' that red-haired men are honest and never lie and said that, as a red haired man himself, he could not lie.

13 The Commissioner asked Skilled Engineering Ltd to respond to Mr Hesford's complaint. Skilled Engineering Ltd advised that they had provided training on behalf of another company, Integrated Group Ltd, but they had not employed Mr Hesford.

14 At this point the Commissioner dismissed the complaint against Skilled Engineering Ltd.

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15 Integrated Group Ltd advised the Commissioner that they had employed Mr Hesford as a mechanical fitter on a contract basis; his contract was terminated after about two weeks because he was not meeting what was required of him and the work he had been contracted to do was close to completion. They denied any knowledge of Mr Hesford's sexual orientation or any medical condition and denied knowing the person whom he alleged had passed on information about him.

16 The Commissioner reported that she sent all responses from Integrated Group Ltd to Mr Hesford who would 'generally respond with material unrelated to his employment'. On 19 February 2008 she wrote to him to say she was dismissing his complaint. On 1 April 2008 she referred the complaint to the Tribunal.

The Tribunal proceedings

17 At a directions hearing on 9 May 2008, it appeared to the Tribunal that Mr Hesford might not appreciate what is required to make out a complaint of unlawful discrimination. It referred the matter to a compulsory conference on 10 June 2008. The compulsory conference did not proceed on that day because the respondent stated it was seeking an order that the application be dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Tribunal therefore proceeded by way of a directions hearing and directed the respondent to file and serve a statement in support of its application for dismissal. The Tribunal gave Mr Hesford 21 days to respond.

The application to dismiss

18 The respondent says the proceedings are unjustified and should be dismissed. In support of its application it says:

a) it employs people on a contract basis to carry out work assignments for its clients; each assignment is a discrete period of casual employment;

b) Mr Hesford was employed on this basis and assigned to the Australian Rail Group;

c) his employment was terminated solely on grounds of his poor performance and because the work he was assigned to was nearing completion;

d) Mr Hesford has produced no evidence to support his allegations of influence by an outside person or persons;

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e) it has no relationship with a Mr Goode and it denies any knowledge of such a person; and

f) it has no knowledge of a Mr Buck (cited by Mr Hesford in papers given to the Tribunal as an employee of Integrated Group Ltd); a search of its employee databases has not identified a person of that name.

19 In response, Mr Hesford has submitted a number of documents. Four are headed 'Affidavit'. In the first he says that:

a) he challenges the respondent's statement that he was dismissed on account of his performance;

b) Mr Buck is 'trying to make the deal' and he is involved in 'surrogating' Mr Hesford's family behind his back;

c) he was sacked to give Mr Buck 'more room to move';

d) he saw Mr Goode in the army; and

e) it is very apparent what is going on.

20 In the second 'Affidavit', Mr Hesford refers to his qualifications for employment and alleges that a manager at Australian Railway Group stole certain of his army papers. He says this document is a 'massive problem to the AMA and to Stuart Buck' and refers to a Dr Wong having stated that he is homosexual and suffers from bipolar. The third 'Affidavit' refers to Mr Hesford's family and to members of the Pentecostal Church and to Stuart Buck and Dr Wong having created a 'disaster'. The fourth 'Affidavit' is much longer but in a similar vein.

21 Other documents submitted by Mr Hesford include what appear to be Affidavits and other documents, including the results of DNA testing, filed in proceedings in the Family Court; a Certificate of Service from the Australian Army; and trade and other certificates.

Legislative framework

The EO Act

22 To establish a claim of unlawful discrimination on the ground of imputed sexual orientation or impairment, an applicant must show that he or she was treated less favourably than the respondent treated, or would have treated, another person in the same or not materially different

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circumstances to whom that sexual orientation was not imputed or who did not have that impairment. The unlawful treatment must be on the ground of the imputed sexual orientation or the impairment or a characteristic that appertains generally to persons having the same imputed sexual orientation or impairment: s 35O and s 66A(1) of the EO Act.

23 In the area of employment, an applicant must show that an employer unlawfully discriminated in the terms or conditions of employment afforded the employee by denying the employee access to benefits, dismissing the employee or subjecting him or her to any other detriment: s 35P(2) and s 66B(2) of the EO Act.

The SAT Act

24 Section 47 of the SAT Act provides that, if the Tribunal believes that a proceeding is:

(a) is frivolous, vexatious, misconceived or lacking in substance;

(b) is being used for an improper purpose; or

(c) is otherwise an abuse of process,

it may order the proceedings be dismissed or struck out and may make appropriate orders. The power may be exercised on the application of a party or on the Tribunal's own initiative.

25 The power to summarily terminate an action must be used sparingly and there must be very clear justification for summary intervention to prevent an applicant submitting his or her case for determination in the usual way:

[O]nce it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process. (Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91)

26 The power must be exercised with exceptional caution, particularly when the applicant is unrepresented: Paramasivan v Grant [2001] FMCA 882, applying General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129.

27 In General Steel Industries Inc v Commissioner for Railways (NSW) Barwick CJ (at 130) described the test as follows:

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The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.

…

Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

28 In Rana v University of South Australia [2004] FCA 559, Lander J, allowing an appeal against the summary dismissal of an application, noted that:

[The] philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant's claim.

Reasons for decision

29 The Tribunal is mindful that Mr Hesford represents himself and appears not to have had the benefit of legal advice. Further that, while it falls to an applicant to make out his or her claim, the Tribunal has the power to inform itself as it sees fit, and it must take measures that are reasonably practicable to assist a party: s 32(4) and s 32(6) of the SAT Act.

30 Mr Hesford was asked by the Commissioner for Equal Opportunity to provide evidence in support of his complaint and it is apparent from her report to the Tribunal that she went to some lengths to identify the nature of the complaint and obtain information about it. She sent him copies of the detailed written responses she received from Skilled Engineering and Integrated Group Ltd and he was on notice of the position of each in response to his allegations.

31 The mere fact that the Commissioner for Equal Opportunity has dismissed a complaint as lacking in substance, or for any other reason, is not a ground for the Tribunal doing the same. However, the process before the Commissioner underlines the number of opportunities that Mr Hesford has had to produce credible evidence in support of his

(Page 9)

complaint. The Tribunal is satisfied that he has had adequate opportunity to present any information that might support a finding in his favour.

32 Nothing in the material submitted by Mr Hesford to the Tribunal or in the material sent to the Tribunal by the Commissioner discloses any basis for a finding of unlawful discrimination by the respondent. His application comprises unsupported assertions most of which have no apparent bearing on a finding of unlawful discrimination. It cannot possibly succeed on the evidence Mr Hesford has put before the Tribunal.

33 The Tribunal is satisfied that the application is lacking in substance and should be dismissed.

Orders

34 The application is dismissed pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA).

I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS J TOOHEY, SENIOR MEMBER