Hollingdale v Northern Rivers Area Health Service
[2004] FMCA 721
•18 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOLLINGDALE v NORTHERN RIVERS AREA HEALTH SERVICE | [2004] FMCA 721 |
| HUMAN RIGHTS – Disability discrimination – jurisdiction of the Court – whether claims before the Court different from complaint made to the Human Rights and Equal Opportunity Commission. |
Disability Discrimination Act 1992 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Australian Medical Council v Human Rights and Equal Opportunity Commission (1995) 68 FCR 46
Bender v Bovis Lend Lease Pty Ltd [2003] FMCA 277
Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531
Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179
Jandruwanda v Regency Park College of TAFE [2003] FCA 1455
Mayer v ANSTO [2003] FMCA 209; (2003) EOC 93-285
Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160
Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90
Stokes v Royal Flying Doctor Service (No 1) [2003] FMCA 164
Travers v State of New South Wales [2000] FCA 1565
Waters v Public Transport Commission (1991) 173 CLR 349
| Applicant: | JULIE ANNE HOLLINGDALE |
| Respondent: | NORTHERN RIVERS AREA HEALTH SERVICE |
| File No: | SYG2730 of 2004 |
| Delivered on: | 18 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 4 November 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M Perry |
| Solicitors for the Applicant: | Lee Sames Egan |
| Counsel for the Respondent: | Ms K Eastman |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Court declares that it has no jurisdiction to deal with the application to the extent that it constitutes a claim of disability harassment, or seeks relief in respect of events occurring prior to May 2001.
There will be no order as to costs in relation to the respondent’s jurisdictional challenge.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2370 of 2004
| JULIE ANNE HOLINGDALE |
Applicant
And
| NORTHERN RIVERS AREA HEALTH SERVICE |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an interlocutory judgment arising from points of defence filed by the respondent, Northern Rivers Area Health Service (“NRAHS”). The applicant, Julie Anne Hollingdale, commenced proceedings pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) seeking damages for disability discrimination in employment. The proceedings were instituted in the Federal Court and transferred to this Court by order of His Honour Beaumont J on 17 August 2004. Points of claim had earlier been filed on behalf of Ms Hollingdale on 10 May 2004. Those points of claim assert some 19 instances of direct and indirect disability discrimination in employment and also harassment contrary to the Disability Discrimination Act 1992 (Cth) (“the DDA”). Ms Hollingdale asserts discrimination both in relation to a mental disability and a physical disability.
The breadth and complexity of Ms Hollingdale’s claims contrasts somewhat with the relative simplicity of the two complaints which she had made to the Human Rights and Equal Opportunity Commission (“HREOC”). Notwithstanding the complexity to the claim which emerged, Beaumont J found it appropriate to transfer the proceedings to this Court. Following the transfer, on 7 September 2004, the NRAHS filed amended points of defence which challenge the Court’s jurisdiction pursuant to s.46PO(3) of the HREOC Act to hear and determine a significant number of the claims raised in the points of claim.
On 11 October 2004 I directed that the jurisdictional issue be heard as a preliminary issue on 4 November 2004.
Both parties presented written and oral submissions on 4 November 2004. For the purposes of determining the preliminary issue, Ms Hollingdale also relies upon an affidavit by Joelene Elizabeth Hughes, law clerk, filed on 3 November 2004. The NRAHS relies upon an affidavit by Vesna Vinski, solicitor, filed on 21 October 2004.
The NRAHS disputes the jurisdiction of the Court to deal with the following claims made by Ms Hollingdale, by reference to paragraph numbers in her points of claim:
a)the claims pleaded in paragraphs 12, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47 and 49 are disputed on the basis that they allege harassment on the ground of disability which were not claims properly brought under the HREOC Act in this Court because they did not form part of the complaints which had been terminated;
b)the claims pleaded in paragraphs 7-27, 30-34, 37, 39-45 and 47 are said to raise new and different allegations of disability discrimination on the grounds of bi-polar disorder which did not form part of the complaints made to HREOC and terminated by the President;
c)the claims pleaded in paragraphs 4-7 and 9 in the points of claim are said to pre-date the matters raised in the first complaint made to HREOC by Ms Hollingdale;
d)the claims made in paragraphs 35(ii), 45(ii), 45, 46 and 47 of the points of claim plead both direct discrimination contrary to s.5(1) of the DDA and indirect discrimination contrary to s.6 of the DDA. The amended defence pleads that the applicant cannot rely upon mutually exclusive provisions of the DDA.
Submissions
Ms Eastman, for the NRAHS makes the following submissions in support of the jurisdictional challenge:
The issues for preliminary determination are:
i)Those parts of the Points of Claim and the Applicant’s affidavits which seek to raise new and different claims to the complaints before the Commission. The Respondent submits that these parts of the claim should not be permitted to proceed.
ii)The Applicant seeks to raise both direct and indirect discrimination with respect to the same incidents. The Respondent says that the terminated complaints appear to concern only ‘direct discrimination’ and the proceedings should be confined.
First issue: scope of the claim before the Court
The two complaints lodged with the Commission raise discrete and clear issues. The first complaint (16 September 2002) alleges discrimination with respect to a complaint to the Pyschologists Registration Board on the ground of the Applicant’s episodic mental illness. The second complaint (14 October 2002) alleges discrimination on the ground of a visual disability with respect to the Project Officer position and then the termination of employment in August 2002. There are 3 substantive allegations made in the two complaints.
The Points of Claim allege 19 incidents of discrimination and harassment: see paragraphs 12, 14, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47 and 49.[1] However, only the following paragraphs in the Points of Claim relate to the incidents alleged in the terminated complaints:
qFirst Complaint: paragraphs 28, 29, 48 and 49.
qSecond Complaint: paragraphs 34, 35(part), 38, 39 (part), 44, 46 and 47.
[1] A table attached to the respondent’s submissions but not reproduced in these reasons sets out those parts of the claim and affidavit evidence which are said to raise new issues.
Section 46PO(3) of the HREOC Act provides that:
The unlawful discrimination alleged in the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
This section has been considered in a number of matters. In Bender v Bovis Lend Lease Pty Ltd [2003] FMCA 277 (9 July 2003) where McInnis FM said:
21. In my view having regard to the powers referred to by the Respondent, the Court clearly needs to ensure that affidavit material before the Court properly identifies issues relied upon which can be regarded as issues which are the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint. It is within the power of the Court to determine those parts of affidavit material which should be struck out. To do so is not to embark upon a process which might be better left to the trial of action but rather to ensure that issues are properly identified consistent with the obligations of the Court in considering the unlawful discrimination alleged in this application compared with the discrimination which was the subject of the terminated complaint. It is appropriate for that matter to be considered at an early stage of the proceedings particularly where there is a potential for voluminous affidavit material raising numerous issues perhaps not raised before the Commission and therefore not subject to the conciliation procedures of the Commission. To allow the affidavit material to be dealt with at trial may involve additional expense to a Respondent in meeting allegations not previously made the subject of a complaint before HREOC.
In Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160, Driver FM said:
69. The first issue to determine is one of jurisdiction. Under s.46PO of the HREOC Act, this Court's jurisdiction is limited to complaints that have been terminated by HREOC. In addition, the complaint the subject of the proceedings in court must be the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint: s.46PO(3) of the HREOC Act. The Court has no jurisdiction to deal with proceedings instituted against persons other than those who were the subject of the complaint to HREOC and neither has the Court any jurisdiction in relation to a complaint that has not been terminated: Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531
In Travers v State of New South Wales [2000] FCA 1565, Lehane J said:
[8] No doubt it was intended that a terminated complaint should not be used to launch an application to the Court, effectively bypassing the procedures provided by the legislation, alleging discrimination other than that of which a complaint had been made or covering a course of conduct substantially wider - or beginning substantially earlier - than that initially complained of. At the same time, it must be recognised that the terms of s.46PO(3) suggest a degree of flexibility ("or the same in substance as", "or substantially the same") and a complaint, which usually will not be drawn by a lawyer, should not be construed as if it were a pleading: Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188. Indeed, the initial complaint may be in quite brief and general terms, the detail being elicited in the course of inquiries by the relevant Commissioner: Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 94. It may well be that the ambit of a complaint is to be ascertained, for the purpose of s.46PO (3), not by considering its initial form but by considering the shape which it had assumed at the time of its termination.
See also Jandruwanda v Regency Park College of TAFE [2003] FCA 1455 and Stokes v Royal Flying Doctor Service (No.1) [2003] FMCA 164.
The Respondent submits that the claim before the Court should be limited to those matters that were the subject of the terminated complaint. Those parts of the Points of Claim and the Applicant’s affidavit that address issues and seek findings of unlawful discrimination that were not the subject of the terminated complaint should not be permitted to proceed. The Respondent submits that where there is no terminated complaint with respect to these matters, the Court has no jurisdiction to hear and determine such matters.
Second issue: Complaints of both direct and indirect discrimination
It is not clear from the Points of Claim at paragraphs 35, 38 –39, 44 - 47 how both the direct and indirect discrimination claims may be maintained where it has been held that claims of direct and indirect discrimination are mutually exclusive: see Australian Medical Council v Human Rights and Equal Opportunity Commission (1995) 68 FCR 46 at 55 per Sackville J referring to the operation sections 9(1) and 9(1A) of the Racial Discrimination Act 1975 (Cth) and Waters v Public Transport Commission (1991) 173 CLR 349 at 393 per McHugh J. This approach has been followed in this Court: see Mayer v ANSTO [2003] FMCA 209; (2003) EOC 93-285 at [71].
Accordingly, the Applicant must make it clear the basis upon which she seeks to rely on these mutually exclusive provisions.
Conclusion
For these reasons, the Respondent submits that the claim before the Court should be limited to the complaint that was terminated by the Commission on 22 May 2003. The Respondent submits that the addition of these claims involves a substantial amount of evidence which will extend the hearing of the claim significantly. It is proper for the Court to deal with these issues to ensure that the resources of the Court are not taken up with matters which are not properly put before it. Further, that the Respondent is not exposed to the risk of increased costs in meeting the matters which are not the subject of the terminated complaints. The new and additional matters are not properly part of the Court's jurisdiction and should not be entertained.
Mr Perry, for Ms Hollingdale, responds as follows[2]:
[2] The emphasis in the original submissions has been retained
Part of the Applicant’s complaint to HREOC[3] provided:
[3] Vinsky affidavit, annexure “A” attachment 30.
“In particular, Mr Warren Shaw … and Ms Jane Dulieu … had made submissions to the HCCC which includes statements about behaviours of mine they claim to have observed or which were reported to them, when I was on sick leave with hypomania in March – April 2000. For part of that time, I was an in-patient in Mullumbimby Hospital and this hospitalisation, plus other incidents they allege occurred during my illness, have been submitted to the HCCC as evidence of professional misconduct on my part. …”
Relevantly, in her reasons[4] the delegate says:
[4] Vinsky affidavit, annexure “A” attachment A, page 1.
“Ms Hollingdale asserts that she was treated less favourably in employment due to her disabilities being her vision impairment and her psychiatric illness. …”
The delegate had earlier[5] noted that the Applicant stated in her complaint that she was employed by the Respondent as a clinical psychologist for approximately 12 years. It seems the Respondent submits that the complaint commences upon the Respondent referring a complaint about the Applicant to the Psychologists Registration Board, presumably “in or around August 2001”.[6] However, paragraphs 5-6 of the Points of Claim and 18-34, 36-46 of the Applicant’s affidavit are allegations of fact. However, s.46PO(3) is primarily concerned, not with the allegations of fact that can be made in an application under s.46PO(1), but rather with the legal character which those allegations of fact can be claimed to bear.[7] There is no unlawful discrimination alleged in paragraphs 5 or 6. They are historical facts alleged to provide clarity to such discrimination alleged thereafter. In any event, such matters have been expressly referred to in the complaint by the Applicant to HREOC in paragraph 3, attachment B of annexure “A” to the Vinsky affidavit.
[5] Ibid, para. 3
[6] Ibid, para.4
[7] Charles v. Fuji Xerox Australia Pty Ltd, 105 FCR, 573 at 580.37-38
As to Points of Claim 7-12 and the adjacent paragraphs referred to in the table, the Applicant repeats the submission in paragraphs 2 and 3 above in respect of the Respondent’s contention that these paragraphs make allegations about the period April-June which pre-date the matters set out in the complaint.
In respect of paragraph 12, the unlawful discrimination, for the purposes of s.46PO(3), it is that referred to by the delegate as the Applicant asserting that “she was treated less favourably in employment due to her disabilities being her vision impairment and her psychiatric illness”. These matters form part of the complaint by the Respondent to the Psychologists Registration Board and the Health Care Complaints Commission (HCCC) and were therefore the subject of a terminated complaint. Indeed, in the reasons by the Delegate for her decision,[8] reference is made to a response by the Respondent in these proceedings, addressed to HREOC dated 20 November 2002. On page 3, paras. 4-5, reference is made to such matters.
[8] Vinski affidavit, annexure “A” attachment A page 2 para. 1
As to Points of Claim 13-14 and the adjacent paragraphs referred to in the table:
i)These matters are part of the unlawful discrimination complained about, that is, the Applicant being treated less favourably in employment due to her disabilities and therefore, they are the same allegations of fact as those which were made in the relevant terminated complaint and those facts bear the same legal character as they were claimed in the complaint to bear.
ii)In the alternative, to the extent that the facts now being alleged are found to be different from the facts alleged in the terminated complaint, such facts are not different in substance from the facts formally alleged.
iii)Further, or in the alternative, to the extent that it is found that the facts alleged bear a different legal character from that they were claimed in the complaint to bear, the legal character now alleged is not different in substance from the legal character formerly being claimed.[9]
[9] Fuji Xerox at 580.38-40.
iv)Further, or in the alternative, to the extent that it is found that the legal character of these allegations are different substance from the legal character claimed in the terminated complaint, such legal character arise(s) out of the facts which are now being alleged.
As to Points of Claim 15-17 and the adjacent paragraphs referred to in the table, I repeat the submission made in paragraph 7 above. Further, the matters complained of in the Points of Claim/paragraph(s) of the Applicant’s affidavit are referred to or arise from the complaint made by the Respondent to the Psychologists Registration Board and the HCCC. There must be a degree of flexibility involved in this exercise and a complaint should not be construed as if it were a pleading.[10]
[10] Travers v. State of New South Wales [2000] FCA 1565.
As to Points of Claim 18-37 and the adjacent paragraphs referred to in the table, I repeat the submission made in paragraphs 6 to 8 above.
As to Points of Claim 38 – 39 and the adjacent paragraphs referred to in the table:
i)The alternative allegations arise because there are two disabilities. The Respondent directly discriminated against the Applicant here because it treated the Applicant in a different manner from the manner in which another is or would be treated in comparable circumstances because of the bi-polar disability. Alternatively, if it be found that the Respondent here treated the Applicant just as another is or would be treated, there is still an indirect discrimination because the impact of such “equal” treatment is that the Applicant was treated less favourably than “another” because of the visual disability.
ii)The bi-polar disorder has always been the subject of a complaint. The original complaint to HREOC[11] refers to “episodic mental illness and “episodes of bi-polar disorder”.
As to Points of Claim 40-43 and the adjacent paragraphs referred to in the table, I repeat the submission in paragraph 6 to 8 above.
As to Points of Claim 44-47 and the adjacent paragraphs of the Applicant’s affidavit referred to in the table:
i)I repeat the submission in paragraphs 6 to 8 above.
ii)I repeat the submission made in paragraph 10 above.
As to Points of Claim 48-49 and the adjacent paragraphs in the table, I repeat the submission in paragraphs 6 to 8 above.
The Motion by the Respondent should be dismissed with costs.
[11] Vinsky affidavit, annexure “A” attachment B.
Ms Hollingdale also seeks leave to make some minor amendments to the points of claim.
Reasoning
I accept, as I did in Rispoli v Merck Sharpe & Dohme [2003] FMCA 160 at [69] that the Court’s jurisdiction is limited to complaints that have been terminated by HREOC. In addition, the complaint the subject of the proceedings in Court must be the same as or the same in substance as the unlawful discrimination that was the subject of the terminated complaint. The Court has no jurisdiction to deal with proceedings instituted against persons other than those who were the subject of the complaint to HREOC and neither has the Court any jurisdiction in relation to asserted discrimination that formed no part of the complaint made to HREOC and terminated by the President. This may have the effect of limiting the subject matter of the proceedings in Court, both as to time and other factual subject matter.
The task for the Court is to determine what are the parameters of the complaint that has been terminated. The documents on which that determination may properly be based include, but are not necessarily limited to, the notice of termination and accompanying letter from the President, and the terms of the document or documents setting out the complaint or complaints to HREOC.
Ms Hollingdale made her first complaint to HREOC by letter dated 16 September 2002. In that letter Ms Hollingdale says the following:
I wish to register a complaint against Northern Rivers Area Health Service for discriminating against me for a disability, episodic mental illness.
I was employed by the Health Service for 12 years as a clinical psychologist. In July 2001 an industrial dispute began between my employer and myself. In December 2001 NRAHS referred a complaint about me to the Psychologists’ Registration Board which was sent on to the Health Care Complaints Commission. The Health Service did not provide any details of its complaint (“inappropriate behaviour in the workplace”) until June 2002. The detailed submissions, sent to my by the HCCC for comment, refer to episodes of bi-polar disorder that I have had in the past.
In particular, Mr Warren Shaw, Mental Health Manager, Eastern Cluster, and Ms Jane Dulieu, drug and alcohol worker/team leader, have made submissions to the HCCC which include statements about behaviours of mine they claim to have observed or which were reported to them, when I was on sick leave with hypomania in March-April 2000. For part of that time I was an inpatient in Mullimbimby Hospital and this hospitalisation, plus other incidents they allege occurred during my illness, have been submitted to the HCCC as evidence of professional misconduct on my part.
I have submitted a detailed response to the NRAHS’ allegations about me to the HCCC. Currently, I am awaiting its determination.
Obviously, this complaint to HREOC centres upon the complaint made by the NRAHS to the Psychologists’ Registration Board in December 2001. However, the complaint to the Psychologists’ Registration Board could not exist in isolation. It depended upon the facts and circumstances leading up to the complaint. In my view, the facts and circumstances referred to by the NRAHS in its complaint to the Psychologists’ Registration Board and the facts and circumstances detailed by Ms Hollingdale in her response to the allegations made by the NRAHS necessarily form a part of the complaint she made to HREOC on 16 September 2002.
On 14 October 2002 Ms Hollingdale made a second complaint to HREOC. She stated as follows:
I lodged a complaint against Northern Rivers Area Health Service on 16.9.02. Now I wish to lodge a second complaint: for discrimination against me by the Service for my visual disability.
After I was successful with a workers’ compensation claim (September, ’01) against the Service for work-related stress due to harassment by management, NRAHS refused to allow me to return to my substantive position as a clinical psychologist. From December ’01 I was forced me [sic] to work in a project officer position. This work was unsuitable for me as it required constant computer usage and I have a severe visual defect. I submitted a report from my optometrist – John Boyce, 55 Jane Street, Burleigh Heads – but the Health Service insisted on an assessment by an opthalmalic surgeon, Dr Mark Noble, 22 Conway Street, Lismore. I had a long wait for an appointment with him – July ’02. His report, like John Boyce’s makes it clear that prolonged computer work is very difficult for me: my contact lenses, on which I am dependent for vision, dry out and blur. My difficulties were compounded by the location of the project officer position in Lismore, which is an hour’s drive from my home and 50 minutes from my usual workplace, Mullimbimby. I lodged an incident report about my visual problems with the computer and with a long drive home with blurry lenses, but this was ignored.
Eventually, NRAHS refused to accept my general practitioner’s certificate for sick leave because of the computer work aggravating my opthamalic condition and in August I was dismissed.
The delegate of the President wrote to the then solicitor for Ms Hollingdale on 22 May 2003 to advise of the termination of the complaints. It is apparent that HREOC treated the two complaints together and regarded them as complaints of direct discrimination in employment on the basis of Ms Hollingdale’s psychiatric illness and her vision disability. However, as is pointed out by Mr Perry in his submissions, an applicant is not bound by the legal characterisation given to a complaint by HREOC. That is especially so when more than one legal characterisation is possible based upon the terms of the complaint. As I read the two letters of complaint made by Ms Hollingdale, they could constitute a complaint of either direct or indirect disability discrimination and possibly both.
In her letter, the delegate of the President described Ms Hollingdale’s complaint in the following terms:
Ms Hollingdale states that she was employed by NRAHS as a clinical psychologist for approximately 12 years. Ms Hollingdale states that in or around August 2001 NRAHS alleged that her behaviour in the workplace was inappropriate. Ms Hollingdale states that NRAHS refused to allow her to work in her substantive position as a clinical psychologist even though she was certified fit to do so by her psychiatrist.
Ms Hollingdale alleges that from December 2001 she was forced by NRAHS to work as a project officer. Ms Hollingdale states that the work as a project officer was not suitable for her as it required constant computer usage and that she had a vision disability which made it difficult for her to perform the duties of the position.
Ms Hollingdale alleges that NRAHS refused to accept her general practitioner’s certificate which stated that her computer work aggravated her visual disability. She states that she was dismissed from her employment with NRAHS in August 2002.
Ms Hollingdale asserts that she was treated less favourably in employment due to her disabilities being her vision impairment and her psychiatric illness. Ms Hollingdale’s complaint was forwarded to NRAHS by letter dated 31 October 2002.
The letter from the delegate also refers to the response received from NRAHS. I have that response in evidence before me. That response assists in establishing the parameters of Ms Hollingdale’s complaints, because it identifies the period during which the events occurred leading to the NRAHS complaint to the Psychologists’ Registration Board, and also identifies those events. The delegate summarises the response in the following terms:
NRAHS responded to Ms Hollingdale’s complaint on 20 November 2002. NRAHS states that from around May to July 2001 it was concerned about Ms Hollingdale’s behaviour at work. NRAHS stated that Ms Hollingdale was hostile and aggressive towards NRAHS employees and community members during this period.
NRAHS stated that on 23 July 2001 a letter of concern was written to the New South Wales Psychologists’ Registration Board in relation to Ms Hollingdale’s behaviour. NRAHS states that it provided Ms Hollingdale with the alternative duties as a project officer pending investigation by the Registration Board. NRAHS states that it made several attempts to accommodate Ms Hollingdale’s disability in the project officer position including reducing her working hours.
NRAHS states that the duties of the project officer position are varied and did require work on a computer but that there were other duties which did not involve computer work. NRAHS states that at no time when working as a psychologist when she was required to use a computer did Ms Hollingdale advise NRAHS that she had a visual disability.
The NRAHS states that Ms Hollingdale’s disabilities were never a factor in their decision to terminate Ms Hollingdale’s employment.
I draw from these documents the following conclusions concerning the elements of Ms Hollingdale’s complaint that was terminated by HREOC which now may be the subject of proceedings in this Court. First, the complaint was not limited to the period from December 2001. Neither was it limited to the complaint made by NRAHS to the Psychologists’ Registration Board. It extended to all actions taken by NRAHS from May 2001 to deal with its concern about Ms Hollingdale’s behaviour at work. This appears to be a complaint of direct disability discrimination in employment by reference to Ms Hollingdale’s mental disability. While Ms Hollingdale refers to submissions about her made to NRAHS by Warren Shaw and Jane Dulieu, based upon their observations of Ms Hollingdale between March and April 2000, Ms Hollingdale’s complaint did not stipulate when those submissions were made. From the NRAHS response to HREOC I infer that it was not before May 2000. There was no complaint personally against Mr Shaw and Ms Dulieu and they are not parties to these proceedings. Their actions in March and April 2000 may be relevant to these proceedings in an evidentiary sense but the Court cannot grant relief in respect of them.
Secondly, the complaint includes a complaint that Ms Hollingdale was compelled to work in an inappropriate project officer position. Further, the complaint includes the allegation that NRAHS refused to accept a general practitioner’s certificate stating that the duties of this position aggravated a visual disability. However, this part of the complaint is not limited to a complaint based upon the visual disability. Ms Hollingdale had alleged to HREOC that she was put into the project officer position following a workers’ compensation claim based upon stress. She refers to “harassment by management” which in my view links this part of the complaint to the first part of the complaint concerning the manner in which NRAHS dealt with its concerns about Ms Hollingdale’s behaviour. It follows that this part of the complaint may be presented as a further example of direct disability discrimination in employment by reference to Ms Hollingdale’s mental disability or direct or indirect disability discrimination in employment by reference to her visual disability, or possibly all three.
There is, in my view, no obligation upon an applicant to make an election between mutually exclusive direct and indirect disability claims. If both claims are arguably open upon the facts, they may be pleaded in the alternative. The fact that they are mutually exclusive would almost inevitably lead to a disadvantageous costs outcome for an applicant, but that is the applicant’s choice.
I see no allegation of disability harassment in Ms Hollingdale’s complaints to HREOC. The only reference to harassment is Ms Hollingdale’s claim that she made a successful workers’ compensation claim in September 2001 against the NRAHS for workplace harassment by management. Ms Hollingdale did not say what the harassment was or whether it was connected in some way to her mental or physical disability. She said the workers’ compensation claim was for work related stress. In my view, Ms Hollingdale’s reference to harassment was included only to link the NRAHS’ refusal to allow her to return her substantive position as a clinical psychologist to her earlier complaint of direct disability discrimination on account of her psychiatric illness relating to the manner in which the NRAHS dealt with its concerns about her behaviour in the workplace. In other words, the reference to harassment formed a bridge between the two letters of complaint and did not form an independent complaint. I am fortified in that conclusion by noting that Ms Hollingdale said herself that she had successfully dealt with the alleged harassment in her workers’ compensation claim. What she was complaining about in her second letter was what followed from the successful resolution of that workers’ compensation claim.
It is significant that the letter from the delegate of the President makes no reference at all to harassment. Neither does the notice of termination. That tells me that HREOC did not regard the complaint as including a complaint of harassment. If Ms Hollingdale was, contrary to my conclusions above, intending to make a complaint of disability harassment, it was not seen as such by HREOC and it has not been terminated. It follows that I have no jurisdiction to deal with Ms Hollingdale’s claim before the Court, to the extent that it asserts disability harassment.
I have decided that there should be no order as to costs in respect of the resolution of the jurisdictional challenge. The NRAHS has been partially successful in confining the scope of these proceedings. However, the NRAHS has been unsuccessful in requiring Ms Hollingdale to elect between claims of direct and indirect disability discrimination and in attempting to quarantine her allegations to separate issues concerning her asserted mental and physical disability. Further, the time period for the complaint terminated by HREOC commenced in May 2001 rather than in December 2001 as asserted by the NRAHS. As both parties have been partially successful, they should each bear their own costs of this interlocutory hearing.
Ms Hollingdale should now be given the opportunity to replead by filing amended points of claim. This will also necessitate the filing of amended points of defence by the NRAHS. I will make appropriate directions as to a new timetable leading to the final hearing of the proceedings.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 18 November 2004
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