Kandiah and Chandler Macleod Group Limited
[2014] WASAT 96
•6 AUGUST 2014
KANDIAH and CHANDLER MACLEOD GROUP LIMITED [2014] WASAT 96
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 96 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:16/2014 | 24 JULY 2014 | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) | 6/08/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | The respondent's application under s 47(1)(a) is upheld Proceeding EOA 16 of 2014 is dismissed | ||
| B | |||
| PDF Version |
| Parties: | GANESH KANDIAH CHANDLER MACLEOD GROUP LIMITED |
Catchwords: | Equal opportunity Discrimination on ground of family responsibility in the area of employment Need for causal relationship Whether application lacking in substance or misconceived Whether proceedings should be summarily dismissed |
Legislation: | Equal Opportunity Act 1984 (WA), s 35A, s 35B, s 89, s 90(2) State Administrative Tribunal Act 2004 (WA), s 32, s 47, s 47(1)(a) |
Case References: | Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 Laurent and Commissioner of Police [2009] WASAT 254 |
Orders | On the application heard before Deputy President, Judge Sharp on 24 July 2014, it is on 6 August 2014 ordered that:,1. The respondent's application under s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) is upheld. ,2. Proceeding EOA 16 of 2014 is dismissed. |
Summary | The applicant claimed that he was unlawfully discriminated against by the respondent in the area of employment on the ground of his family responsibility or family status.,The applicant was employed by the respondent, a labour hire company, who assigned him to a position with Australia Post as a postal van driver. Even though the applicant worked with Australia Post on Australia Post's own premises for some 18 months, he remained at all relevant times an employee of the respondent.,In November 2013, the applicant by arrangement with Australia Post and with the respondent took unpaid leave. The purpose of that leave was to travel to Malaysia to introduce his newborn son to his and his wife's respective families. When the applicant returned from leave, he was informed that the position at Australia Post was no longer available and that he would be placed with another organisation, once a position acceptable to the applicant had been identified.,The applicant lodged a complaint with the Commissioner for Equal Opportunity, claiming that the respondent's conduct amounted to discrimination on the ground of his family responsibility or family status. Specifically, the applicant claimed that the respondent ought to have held open his position at Australia Post until his return from leave.,The Commissioner for Equal Opportunity considered the applicant's complaint and dismissed it. The complaint was referred to the Tribunal at the request of the applicant.,Prior to the final hearing of the applicant's complaint, the respondent applied to the Tribunal to have the proceedings struck out or dismissed as being frivolous, vexatious, misconceived or lacking in substance under s 47 of the State Administrative Tribunal Act 2004 (WA). ,The Tribunal considered that the applicant's complaint had no prospect of success because he could not produce evidence that the respondent would have treated someone in the same circumstances, but without the applicant's family responsibilities, in a more favourable way. The Tribunal therefore struck out the proceeding as lacking in substance. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : KANDIAH and CHANDLER MACLEOD GROUP LIMITED [2014] WASAT 96 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) HEARD : 24 JULY 2014 DELIVERED : 6 AUGUST 2014 FILE NO/S : EOA 16 of 2014 BETWEEN : GANESH KANDIAH
- Applicant
AND
CHANDLER MACLEOD GROUP LIMITED
Respondent
Catchwords:
Equal opportunity Discrimination on ground of family responsibility in the area of employment Need for causal relationship Whether application lacking in substance or misconceived Whether proceedings should be summarily dismissed
Legislation:
Equal Opportunity Act 1984 (WA), s 35A, s 35B, s 89, s 90(2)
State Administrative Tribunal Act 2004 (WA), s 32, s 47, s 47(1)(a)
Result:
The respondent's application under s 47(1)(a) is upheld
Proceeding EOA 16 of 2014 is dismissed
Summary of Tribunal's decision:
The applicant claimed that he was unlawfully discriminated against by the respondent in the area of employment on the ground of his family responsibility or family status.
The applicant was employed by the respondent, a labour hire company, who assigned him to a position with Australia Post as a postal van driver. Even though the applicant worked with Australia Post on Australia Post's own premises for some 18 months, he remained at all relevant times an employee of the respondent.
In November 2013, the applicant by arrangement with Australia Post and with the respondent took unpaid leave. The purpose of that leave was to travel to Malaysia to introduce his newborn son to his and his wife's respective families. When the applicant returned from leave, he was informed that the position at Australia Post was no longer available and that he would be placed with another organisation, once a position acceptable to the applicant had been identified.
The applicant lodged a complaint with the Commissioner for Equal Opportunity, claiming that the respondent's conduct amounted to discrimination on the ground of his family responsibility or family status. Specifically, the applicant claimed that the respondent ought to have held open his position at Australia Post until his return from leave.
The Commissioner for Equal Opportunity considered the applicant's complaint and dismissed it. The complaint was referred to the Tribunal at the request of the applicant.
Prior to the final hearing of the applicant's complaint, the respondent applied to the Tribunal to have the proceedings struck out or dismissed as being frivolous, vexatious, misconceived or lacking in substance under s 47 of the State Administrative Tribunal Act 2004 (WA).
The Tribunal considered that the applicant's complaint had no prospect of success because he could not produce evidence that the respondent would have treated someone in the same circumstances, but without the applicant's family responsibilities, in a more favourable way. The Tribunal therefore struck out the proceeding as lacking in substance.
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr D Cross
Solicitors:
Applicant : N/A
Respondent : Norton Rose Fulbright Australia
Case(s) referred to in decision(s):
Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
Laurent and Commissioner of Police [2009] WASAT 254
Introduction
1 This matter comes to the Tribunal by way of a referral from the Acting Commissioner for Equal Opportunity (Commissioner). On 20 December 2013, Mr Kandiah, the applicant, made a complaint to the Commissioner under s 35B of the Equal Opportunity Act 1984 (WA) (EO Act) of unlawful discrimination on the ground of family responsibility or family status in the area of employment. The Commissioner considered the complaint and dismissed it under s 89 of the EO Act, on the basis that the complaint was lacking in substance. The applicant was advised of this in a letter from the Commissioner dated 14 April 2014.
2 On the same day, the applicant gave notice under s 90(2) of the EO Act that he required the Commissioner to refer the complaint to the Tribunal. The Commissioner did so in a letter dated 30 April 2014. The Commissioner included a report relating to the investigation which comprises a written summary of the Commissioner's investigation and copies of the documents which she relied upon (EOC bundle).
3 Prior to a directions hearing listed for 28 May 2014, the respondent informed the Tribunal that it would be making an application to dismiss or strike out the proceeding under s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). In anticipation of that application, the respondent on 23 May 2014 filed an outline of the submissions which it wished to make.
4 At the hearing on 28 May 2014, the President of the Tribunal ordered Mr Kandiah to file and give to the respondent any written submissions which he wished to make in reply to the respondent's application. He also ordered Mr Kandiah to file any further documents he intended to rely on.
5 The President listed the respondent's application for a hearing to take place on 15 July 2014.
6 On 30 May 2014, Mr Kandiah filed a document with the Tribunal which, although in the form of an application to the Tribunal, will be regarded as being his submissions in response to the respondent's application.
7 The hearing in respect of the respondent's application was subsequently adjourned and took place on 24 July 2014, at the conclusion of which the Tribunal reserved its decision.
The Tribunal's power under the SAT Act
8 Section 47 of the SAT Act relevantly provides that if the Tribunal believes that a proceeding is misconceived or lacking in substance, then the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
9 The term 'misconceived' connotes a misunderstanding of legal principle, while the term 'lacking in substance' connotes an untenable proposition of law or fact; Laurent and Commissioner of Police [2009] WASAT 254 (Laurent) at 23 and the authority cited.
10 The Tribunal will only strike out or dismiss a proceeding on this basis if it can conclude that the proceeding is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the Tribunal is satisfied cannot succeed; Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 (Ambrus) at [8].
11 Applications for strike out or dismissal by a respondent following a referral under s 90(2) of the EO Act are not unusual. However, as Deputy President Judge Pritchard, as she then was, observed in Laurent, the power in s 47 of the SAT Act has been exercised infrequently by the Tribunal. Under s 32 of the SAT Act, the Tribunal is not bound by the practices or procedures applicable to courts of record, and it is required to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. Proceedings before the Tribunal are not conducted by reference to formal pleadings and therefore 'any application to dismiss or strike out a proceeding in the Tribunal should be approached with a great deal of caution'; Laurent at [18].
12 If there is a serious question of fact to be determined, or if factual issues are likely to be affected by evidence in the possession of a respondent, that factor may render it inappropriate to dismiss the proceeding under s 47 of the SAT Act. For example, it is possible in a discrimination proceeding that the evidence led by a respondent and the crossexamination of the respondent's witnesses may provide the causative link between the conduct complained of and the ground of discrimination alleged; see Laurent at [20].
13 However, the matter should not be allowed to proceed merely to allow a complainant to 'have his day in the Tribunal' (Ambrus at [45]). In the interests of fairness to both sides, it is necessary to bring a proceeding to a conclusion as quickly and effectively as possible.
Mr Kandiah's complaint to the Commissioner
14 As I advised the parties at the hearing, I have considered in detail everything provided to the Tribunal by the Commissioner and by the parties. I do not propose to comment specifically on all of the documents and information except where it is necessary to do so for the purpose of these reasons. However, this should not be taken to mean that all of the documents and information have not been considered.
15 It is important to understand at the outset the nature of the respondent's business and the relationship between the respondent and Mr Kandiah. I will then turn to the complaint itself.
The nature of the respondent's business
16 The respondent is an Australian listed public company. It operates what it refers to as a labour hire company. It recruits and engages a substantial workforce, referred to by counsel for the respondent as a 'stable of people' (T:9; 24.07.14). It then makes the particular skills and services of the individual members of that workforce available to its customers in exchange for a fee. Its objective, it says, is to reduce the 'workforce risk' of its customers by providing an 'end to end human resources solution'.
17 The respondent is not an insubstantial organisation. It employs, according to its literature, some 1,300 persons who are what the respondent describes as 'full time' employees. I understand these to be employees of the respondent in the more traditional sense of providing services for the daytoday management and running of its business.
18 It has in addition a workforce of some 21,000 people who, again according to the respondent's literature, are people such as Mr Kandiah, who are engaged in the expectation of being assigned to any one of the respondent's customers to provide services of various kinds. I will describe these latter employees as 'external employees'.
19 It is of relevance to note in particular that the respondent remains at all times the employer of each of the external employees. The respondent pays the salaries and wages of its external employees during any time when the relevant employee is providing services to one of its customers. The respondent recovers those costs out of the fees which it charges to its customers in return for the services provided.
Mr Kandiah's employment
20 Mr Kandiah was employed by the respondent in or around June 2012. He was then assigned to Australia Post as a postal van driver and he provided those services to Australia Post from Australia Post's own premises.
21 The respondent describes Mr Kandiah as a 'casual labour hire employee' (T:7; 24.07.14).
22 Other than the placement with Australia Post, Mr Kandiah has not been made the subject of any placements during his employment with the respondent. He says that he was recruited by the respondent specifically to be placed with Australia Post.
Entitlement to leave
23 The respondent says that because its employment of external employees is casual, they have no entitlement to paid leave . However, the respondent is open to requests for unpaid leave (T:12; 24.07.14).
24 If an external employee of the respondent wishes to take unpaid leave, it is necessary simply to inform the respondent that the employee is not available for work during the proposed leave period and also to advise the entity with whom the employee is placed. That way, the respondent and the entity with whom the employee is placed can agree between themselves as to whether or not another employee needs to be made available or whether the absence of the employee concerned can be otherwise absorbed or managed.
The events leading up to Mr Kandiah's complaint
25 On 22 July 2013, Mr Kandiah, in an email headed 'Paid Parental Leave', informed the respondent that he intended to take two weeks 'paid parental leave' starting on 26 August 2013 (EOC bundle at page 27). The 'paid' aspect of this application was queried by Ms Toni Kerr, a senior consultant with the respondent. Mr Kandiah explained to her that, as part of the Government's 'Paid Parental Leave' scheme, the Government would pay him 'Dad and Partner Pay' for that period. He told her that he was merely informing the respondent that he intended to take parental leave because it was a Government requirement that he did so (EOC bundle at pages 28 and 29).
26 By way of further explanation, Mr Kandiah provided to the respondent a link to an Australian Government website containing an information sheet from Centrelink entitled 'Paid Parental Leave scheme for employers'. It contains the following paragraph:
Under the Paid Parental Leave scheme, eligible working parents can get governmentfunded pay (up to 18 weeks Parental Leave Pay or two weeks Dad and Partner Pay) when they take time off work to care for a new child. Fulltime, parttime, casual, seasonal, contract and selfemployed workers may be eligible.
27 The information also contains a section headed 'Dad and Partner Pay'. This provides as follows:
Dad and Partner Pay is for eligible working dads or partners … and they may get up to two weeks pay based on the rate of the National Minimum Wage. They must not be working during this time or must be on unpaid leave.
Employers do not play a role in providing Dad and Partner Pay. We always pay your employees directly. It's still important to be aware of Dad and Partner Pay because your employee may approach you about taking unpaid leave so that they can receive Dad and Partner Pay.
28 It transpired that Mr Kandiah took only one week of unpaid leave in August, from the date when his child was born on 27 August 2013 until 2 September 2013. He did not apply for or receive any Government payment during that period (T:16; 24.07.14). On his return, he reported to Australia Post and resumed his duties.
29 Mr Kandiah then in November 2013 took some further leave, the purpose of which, he told the Tribunal, was to travel to Malaysia with his wife and baby to spend time with his and his wife's respective families. It was not a holiday, he says, he 'was on paid parental leave' (T:17; 24.07.14). That period of leave was from 2 November 2013 until 25 November 2013.
30 Mr Kandiah refers to this period of leave as his 'Dad and Partner leave' (EOC bundle at page 21). During that period, Mr Kandiah received certain payments from the Government under the 'Dad and Partner Pay' scheme.
31 The respondent knew that Mr Kandiah was taking that period of leave in November. The respondent received a handwritten note, undated, from Mr Kandiah, addressed to 'To Whom It May Concern' containing an advice that Mr Kandiah 'would not be in the country from the 2nd of November 2013 and the 25th of November 2013' (EOC bundle at page 44). Mr Kandiah accepts that he gave this note to the respondent, although he told the Tribunal that the note was given to the respondent in a different connection and 'has got nothing to do with this case' (T:5; 24.07.14).
32 What is not clear is whether Mr Kandiah told the respondent about the purpose of this second period of leave.
33 On 25 November 2013 Mr Kandiah reported to Australia Post that he was available to return to work on the same date. He was then required by either the respondent or Australia Post to obtain a medical certificate of his fitness to work (because of a previous workplace injury). Mr Kandiah obtained that clearance on 2 December 2013.
34 Mr Kandiah advised the respondent that he wished to return to his previous assignment with Australia Post. The respondent informed him that 'there are currently no available roles with that client at the moment, but [the respondent] will contact you when suitable alternative assignments become available' (EOC bundle at page 38).
The complaint of unlawful discrimination
35 Mr Kandiah's complaint is that the respondent should have held open his position at Australia Post during his period of leave and failed to do so. The respondent's failure to do so, in Mr Kandiah's submission, amounts to unlawful discrimination on the ground of family responsibility or family status by, in effect, dismissing him for taking leave in connection with his family responsibility or family status.
What must the applicant establish?
36 To make out a claim of unlawful discrimination under s 35B of the EO Act, Mr Kandiah must establish that:
a) he has responsibility for the care of another person or he has the status of being a relative of a particular person; and
b) the respondent treated him less favourably, in circumstances that are the same or not materially different, than the respondent treats a person who does not have the same family responsibility or family status; and
c) he was treated less favourably because of his family responsibility or family status, that is, there is a causal connection between the ground of discrimination alleged and the decision or act complained about.
(a) Family responsibility or family status
37 I do not consider that Mr Kandiah would have any difficulty in establishing as a matter of fact that he has family responsibility or family status as defined in the EO Act.
(b) Less favourable treatment
38 The test for less favourable treatment necessarily involves making a comparison with another person so that a complainant can say that his or her treatment was less favourable. That person must be in 'circumstances' which are 'the same' or 'not materially different'; s 35A of the EO Act.
39 Mr Kandiah must prove on the balance of probabilities that the respondent treated him 'less favourably' than the respondent would have treated another person without Mr Kandiah's family responsibility or family status. The expression 'less favourably' in s 35A of the EO Act bears its ordinary meaning.
40 The identification of the 'comparator' is an essential element of unlawful discrimination. It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is hypothetical. However, the facts about the way in which the comparator is, or would be, treated must be established. In this case, the relevant comparator might be an employee who took two weeks of unpaid leave, but not for the reasons of family responsibility or family status.
41 This was raised with Mr Kandiah at the hearing. In response, Mr Kandiah informed the Tribunal that it is 'impossible' for him to establish how any of the other external employees of the respondent are treated in the same or similar circumstances. Mr Kandiah says that he has no knowledge of how any other external employee of the respondent is treated because his workplace environment at all relevant times was at Australia Post's premises. Specifically, he says 'I do not have any evidence, black and white evidence, regarding this' (T:17 and 23; 24.07.14).
(c) Causal connection
42 Finally, it is necessary for a complainant in a complaint of unlawful discrimination to establish a causal connection between the act complained of and the less favourable treatment. The respondent maintains that it was unaware that Mr Kandiah took leave in November 2013 because of his family responsibility or family status (EOC bundle at pages 38 and 39), (T:5 and 6; 24.07.14).
The Tribunal's finding
43 The decision to dismiss an application as lacking in substance is one that should only be taken after very careful consideration of the case and where it is clear that there is no realistic prospect of success of an application; Ambrus at [44].
44 I have reviewed Mr Kandiah's submissions, both written and oral, and I have examined the documents provided to the Tribunal by him and by the Commissioner. I have concluded that I should not permit this proceeding to continue. It would simply be putting off what will be the inevitable finding that Mr Kandiah does not have and cannot produce the evidence necessary to establish that the respondent treated him 'less favourably' than the respondent would have treated another person without Mr Kandiah's family responsibility or family status. That is fatal to his claim.
45 Further, even though it is unnecessary to come to any conclusion on this, I can say that there is no evidence sufficient to establish that the respondent's failure to reassign Mr Kandiah to his former position with Australia Post in any way relates to his family responsibility or family status.
46 The respondent, on the other hand, denies that it treated Mr Kandiah less favourably than any other of its external employees in the same or similar circumstances, irrespective of his or their family circumstances and denies that it is guilty of any form of unlawful discrimination. It says that it has clear policies in place in relation to workplace diversity and avoiding discrimination in the workplace (EOC bundle at page 38).
47 In view of the insurmountable problems that Mr Kandiah will face in establishing his complaint, I have reached the conclusion that he has no prospect of succeeding. I therefore find that the proceeding is lacking in substance and should be dismissed. That is the order I make.
Order
1. The respondent's application under s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) is upheld.
2. Proceeding EOA 16 of 2014 is dismissed.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE T SHARP, DEPUTY PRESIDENT
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