Kesby v Nguyen-Dang

[2009] NSWADT 34

CITATION:	Kesby v Nguyen-Dang & anor [2009] NSWADT 34
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Julie Kesby REPSONDENTS Dr Tuan Nguyen-Dang South Eastern Sydney & Illawarra Area Health Service
FILE NUMBER:	071086 and 071087
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	15 January 2009
DATE OF DECISION:	17 February 2009
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Amendment of complaint
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174; Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54; Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85; Neeson v Director-General, NSW Department of Education and Training [2008] NSWADT 330; Perera v Commissioner of Corrective Services [2007] NSWADT 115; West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240; Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer (EOD) [2008] NSWADTAP 24.
REPRESENTATION:	APPLICANT In person RESPONDENT R Pepper, barrister
ORDERS:	1. Leave to amend the complaint made against Dr Nguyen-Dang by Ms Kesby referred to the Administrative Decisions Tribunal by the President of the Anti Discrimination Board by letter dated 3 August 2007, to include an allegation of unlawful discrimination on the ground of sex, is refused 2. Ms Kesby is directed to notify Dr Nguyen-Dang’s legal representatives, no later than seven days of the date of these orders, if she wishes to proceed with the threat allegation as an allegation of victimisation. If notice is so provided and Dr Nguyen-Dang objects to that characterisation, he must within seven days of receiving notice: (i) notify the Tribunal and all parties of his objection and (ii) advise whether he wishes the objection to be determined at or before the hearing 3. The parties are granted leave to have this matter listed for further directions and/or orders upon seven days notice.

1 These reasons address an application to amend a complaint made by Ms Julie Kesby. In August 2008, Ms Kesby lodged complaints with the President of the Anti-Discrimination Board, alleging sex harassment and victimisation against former colleague, Dr Tuan Nguyen-Dang. Ms Kesby has also made complaints against her former employer, the South Eastern Sydney & Illawarra Area Health Service (the Area Health Service), alleging unlawful discrimination on the ground of sex and victimisation.

2 Throughout the period covered by these complaints, August 2005 to August 2006, Ms Kesby was employed as a Clinical Nurse Consultant with the Cardiac Unit at Wollongong Hospital. The Hospital is operated by the second respondent, the South Eastern Sydney & Illawarra Area Health Service, which at all relevant times was Ms Kesby’s employer. Dr Nguyen-Dang worked between four to 17 hours per week as a staff specialist within the Unit.

3 In the original complaint Ms Kesby alleged that while working in the Cardiac Unit she was sexually harassed by Dr Nguyen-Dang and, when she complained about his conduct, was victimised by him (ss 22B and 50 of the Anti-Discrimination Act 1977). She asserted that the Hospital was vicariously liable for Dr Nguyen-Dang’s alleged misconduct (s 53 of the Anti-Discrimination Act) and furthermore, that it unlawfully discriminated against her on the ground of sex and victimised her when she raised complaints about Dr Nguyen-Dang (ss 24, 25 and 50 of the Anti-Discrimination Act). A summary of these complaints is set out in a document prepared by the Tribunal headed, ‘Tribunal’s Summary of Complaint’ dated 23 October 2008.

4 Ms Kesby now applies to amend her complaint to include a complaint of unlawful discrimination on the ground of sex in respect of her employment in Dr Nguyen-Dang’s private rooms, which he apparently shared with Dr Ford (the new claims). Ms Kebsy worked in the rooms from June to September 2005 for a few hours per week. That employment was separate to and independent from, Ms Kesby’s employment with the Hospital.

5 Ms Kesby has been unable to identify the subject employer and believes it could have been either Dr Nguyen-Dang, Dr Nguyen-Dang in partnership with Dr Ford or Fanberg Pty Ltd. Ms Kesby believes Fanberg to be a family company operated by Dr Ford and his wife. She claims that even if found that Dr Nguyen-Dang was not her employer he would be ‘vicariously liable for his conduct towards me as a person of equal standing to that of an employer within the combined practice of Drs Ford and Nguyen-Dang’. In the alternative she seeks leave to amend her complaint to include a claim that Dr Nguyen-Dang ‘aided and abetted’ Fanberg to discriminate against her on the ground of sex.

6 Dr Nguyen-Dang opposes the amendment application. The Area Health Service, the second respondent in these proceedings, neither opposes nor consents to the application.

7 Written submissions have been provided by Ms Kesby (14, 21 November and 3 December 2008) and on behalf of Dr Nguyen-Dang (15 January 2009). The Area Health Service made no submissions. By consent the application was determined ‘on the papers’.

Need to amend the complaint?

8 Ms Kesby contends that the offending conduct the subject of the proposed amendment was contained in her initiating complaint to the President and therefore the Tribunal should exercise its power to amend her complaint. She contends that the President’s delegate incorrectly characterised her complaint in respect of Dr Nguyen-Dang as simply an allegation of sex harassment and victimisation when in fact it also contained an allegation of unlawful discrimination on the ground of sex.

9 If Ms Kesby is correct and the amendment application is no more than a challenge to the President’s legal characterisation of the facts that gave to the complaint, it may be that no issue of amendment arises.

10 The resolution of this issue requires the identification of the proposed amendment and the initiating complaint.

11 Scope of proposed amendment As I understand it the offending conduct said to give rise to the allegation of unlawful discrimination on the ground of sex, is the alleged threat made by Dr Nguyen-Dang about Ms Kesby’s continued employment in his private rooms.

12 Scope of Complaint The threat allegation is contained in the President’s report and is preceded by Ms Kesby’s account of a conversation between herself, Dr Nguyen-Dang and a Hospital colleague. According to Ms Kesby, Dr Nguyen-Dang was jealous and believed that she had been overly attentive to the colleague. She stated (President’s report at pp 21 and 22):

When I left the room Dr Nguyen Dang followed me and pointed his finger at me and said that if he wanted to crucify me he could have done it already. He said that he would go back and talk to Dr Ford about whether he was still willing to continue my

employment in his rooms.

13 In the covering letter enclosing her complaints to the Board Ms Kesby wrote:

I wish to lodge a complaint about my employer of 1) sex discrimination in my employment; 2) sexual harassment in the workplace and 3) victimisation by my employer.

I further wish to lodge a joint complaint against a medical colleague of 1) sex discrimination in my employment; 2) sexual harassment in the workplace and 3) victimisation for having raised a grievance concerning my employer.

14 In hand, after the words ‘I further wish to lodge a joint complaint against a medical colleague of 1) sex discrimination in my employment’, Ms Kesby wrote, ‘aiding and abetting my employer’.

15 Under the heading ‘What I am seeking from Dr Nguyen-Dang’, Ms Kesby wrote:

1.….

2. Compensation for lost wages incurred due to my resignation from his practice, calculates at $33 per hour for two hours per week for one year.

16 In the letter of referral to the Tribunal dated 30 July 2007, the President characterised the complaints relating to Dr Nguyen-Dang, as complaints of sexual harassment and victimisation.

17 Elements of discrimination on the ground of sex Discrimination on the ground of sex is defined by s 24 of the Anti-Discrimination Act. Proceeding on the basis that Ms Kesby is alleging so called ‘direct discrimination’, she must establish:

First, that the offending conduct, namely the alleged threat, fell within one or more of the provisions of s 25(2), i.e. it represented a change in a term or condition of her employment in the private practice, denied or limited her access to a benefit or subjected her to a detriment;

Second, that in the same or similar circumstances, Dr Nguyen-Dang would have treated a male employee more favourably (differential treatment); and

Third, if so, that one of the reasons for any less favourable treatment was ‘because of’ her gender (causation).

Fourth, that Dr Nguyen-Dang’s conduct was authorised by the employer, if established that he was not the employer.

18 Findings and conclusions Ms Kesby is correct that the Tribunal is not bound by the President’s characterisation of her complaint and an order under s 103 is not required to characterise a complaint in a manner differing from that adopted by the President (Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24 at [21]; West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240 at [5 – 11]; Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85 at [27]). Accordingly the President’s view, that Ms Kesby complaint is confined to allegations of sex harassment and victimisation as against Dr Nguyen-Dang, is not determinative.

19 The key question is whether the reference in the complaint to the alleged threat could be said to constitute an allegation of sex discrimination in respect of Ms Kesby’s employment outside the Hospital.

20 It is difficult to discern from Ms Kesby’s 43-page complaint, what matters are allegations of contraventions of the Anti-Discrimination Act and what matters are simply background information. The focus of the complaint is her treatment while in the employ of the Hospital. Throughout the complaint Ms Kesby identified her employer as the Hospital and made only passing reference to her employment in the private rooms. She made no express complaint about her employer, whom she apparently believed at the time of making the complaint to have been Dr and Mrs Ford (‘I wrote a letter to Dr and Mrs Ford, my employer, informing them briefly of what had happened and why I was resigning’: President’s report, p 22).

21 The allegation, as I understand it is, that Dr Nguyen-Dang had threatened Ms Kesby’s continued employment in the private practice in retaliation for what he thought to be her over familiarity with a Hospital colleague and because she had threatened to raise the issue with Hospital management (‘I told Dr Dang that if I was going to speak to Professor Owensby or Drs Gunasekara about the incident then I would have to speak about his feeling for me and he needed to prepare for that to become public knowledge’: President’s report, p 19). Leaving to one side the thorny issue of the identity of the subject employer, there is nothing on the face of the complaint to indicate that Ms Kesby is asserting that the alleged threat constitutes differential treatment on the ground of sex.

22 It is apparent that the statement contained in the covering letter to Ms Kesby’s complaint, that she wished to make a complaint of ‘sex discrimination against Dr Nguyen-Dang –aiding and abetting’, is a reference to employment at the Hospital. That is consistent with Ms Kesby’s reference in the covering letter and throughout the complaint to the Hospital as her employer.

23 While the Tribunal is not bound by the President’s legal characterisation of the complaint its power to accept a different characterisation is not unfettered. The Tribunal is constrained by the facts that gave rise to the complaint. The task of distinguishing between a legal characterisation and an amendment to a complaint will not always be straightforward.

24 In my view a fair reading of Ms Kesby’s complaint does not indicate that she was alleging unlawful sex discrimination in the context of her employment at Dr Nguyen-Dang’s private rooms and accordingly it is not open to me to accept that characterisation of the complaint. It might be arguable that the alleged threat could be characterised as an allegation of victimisation, an issue to which I shall return.

25 For these reasons it is necessary to proceed to consider whether leave to amend the complaint should be granted.

Should the complaint be amended?

26 The Tribunal’s power to amend a complaint is contained in s 103 of the Anti-Discrimination Act which provides:

103 Tribunal may amend complaint

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.

27 The operation of this provision has been considered in Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54; Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer (EOD) [2008] NSWADTAP 24; West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240; Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174; Perera v Commissioner of Corrective Services [2007] NSWADT 115; Neeson v Director-General, NSW Department of Education and Training [2008] NSWADT 330 and Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85.

28 The Appeal Panel in Zhang endorsed the broad approach taken in Chand, and held that the only qualification to the power to amend under s 103 is that the additional complaint or other matter was not included in the complaint as investigated by the President: at [38].

29 Ms Kesby claims that the power to amend her complaint should be exercised because the respondents have been on notice for some time that she is seeking compensation for lost income from the private practice; no effort has been made by either respondent to defend the matters now before the Tribunal; in making her complaint to the Board she was reliant on the advice provided by officers of the Board which she now believes to be incorrect; the factual allegations on which the new claim is based were contained in the President’s report; there will be sufficient evidence to enable the claims against Dr Nguyen-Dang as an employer, to be upheld at the hearing once the details of the associate /informal partnership arrangement are declared by Dr Ford.

30 Counsel for Dr Nguyen-Dang urges the Tribunal not to exercise its power to amend the complaint and argues that if Ms Kesby’s application succeeds the scope of the existing complaint would be amplified and further delay and burgeoning costs inevitable.

31 Findings and Conclusions It is common ground that the Tribunal has power to amend Ms Kesby’s complaint, the issue to be determined is should that power be exercised in the circumstances of this case.

32 Before proceeding to consider this issue it is necessary to make some brief observations about the statutory provisions on which Ms Kesby’s claims are based. Section 25 of the Anti-Discrimination Act, the substantive provision on which Ms Kesby relies, makes it unlawful for an employer to discriminate against an employee on the grounds of sex in the area of employment. While Ms Kesby is correct in her assertion that an employer is liable for the conduct of their agents and employees (subject to the qualification in s 53 of the Anti-Discrimination Act), nonetheless it remains necessary to identify the employer.

33 In respect to the alternative claim that Dr Nguyen-Dang ‘aided and abetted’ the subject employer, it is to be remembered that no issue of liability as an accessory can arise unless first established that a contravention of the Anti-Discrimination Act has occurred. It is the “primary” complaint, in this case, unlawful discrimination on the ground of sex, which triggers the liability of third parties under the accessorial provisions of s 52 of the Anti-Discrimination Act.

34 It follows that the identification of the subject employer is critical to the success of Ms Kesby’s new claims.

35 Despite her best efforts, Ms Kesby has been unable to identify who was her employer at the private practice. It would appear from the material before me that it might have been:

Dr Nguyen-Dang

Dr Ford

Dr Ford and Mrs Ford

Dr Nguyen-Dang in partnership with Dr Ford

Fanberg Pty Ltd

Fanberg Pty Ltd in partnership with either Dr Nguyen-Dang, Dr Ford, or both.

36 The identification of the employer is not an incurable problem and one commonly encountered in legal proceedings. Nonetheless it is relevant to the progress of these proceedings. If the amendment sought by Ms Kesby was granted it would be necessary to first, determine who was the employer and second, if found to be a person or persons other than Dr Nguyen-Dang, decide whether he, she or it should be joined to the proceedings. The substantive proceedings would come to a halt until those issues are resolved.

37 That delay needs to be put in the context of the progress of the matter to date. The complaints were made to the Board over two and a half years ago and were referred to the Tribunal in August 2007. Since that time seven directions hearings have been conducted and a number of interlocutory applications determined.

38 Ms Kesby is faced with the difficult task of representing herself in proceedings which involve five separate allegations of contraventions of the Anti-Discrimination Act and two respondents, both of whom are represented by experienced counsel. The complaints span a twelve-month period and involve matters said to have occurred over four years ago.

39 I accept Ms Kesby’s explanation that it was only when she came to prepare the Points of Claim that she fully appreciated that she would be unable to pursue a complaint of sex discrimination in respect of her employment in the private practice.

40 Had this application been made earlier the balance of factors might have favoured amending the complaint. This however is not the first amendment application made by Ms Kesby. A previous application was determined last year. While I accept that some indulgence ought be granted on account of the difficulties Ms Kesby confronts as a self represented party, it does not follow that her interests should be permitted to trump those of other parties. Dr Nguyen-Dang is entitled to have the complaints made about him more than three years ago determined in a timely fashion.

41 I have given careful consideration to the powerful arguments advanced by Ms Kesby but for the reasons as stated have decided not to amend her complaint.

Characterisation of complaint

42 In fairness to Ms Kesby as a self represented party, I believe it necessary to point out that the alleged threat might be capable of being characterised as an allegation of victimisation under s 50 of the Anti-Discrimination Act. Section 50 makes it unlawful for a person (the discriminator) to subject another to a detriment on the grounds that he or she alleged that the discriminator has done something that would amount to a contravention of the Anti-Discrimination Act or the discriminator suspects that the person intends to do so. In contrast to s 25, liability under s 50, is not restricted to employers.

43 It is not in issue that the President has referred a complaint of victimisation against Dr Deng to the Tribunal. As noted, Ms Kesby does not require leave of the Tribunal to amend her complaint if, what is sought, is simply a different legal characterisation to that given by the President, to a factual contained in the complaint.

44 As a matter of procedural fairness it will be necessary for Ms Kesby to promptly notify all parties if she wishes to proceed on this basis.

Orders

1. Leave to amend the complaint made against Dr Nguyen-Dang by Ms Kesby referred to the Administrative Decisions Tribunal by the President of the Anti-Discrimination Board by letter dated 3 August 2007, to include an allegation of unlawful discrimination on the ground of sex, is refused.

2. Ms Kesby is directed to notify Dr Nguyen-Dang’s legal representatives, no later than seven days of the date of these orders, if she wishes to proceed with the threat allegation as an allegation of victimisation. If notice is so provided and Dr Nguyen-Dang objects to that characterisation, he must within seven days of receiving notice:

(i) notify the Tribunal and all parties of his objection and

(ii) advise whether he wishes the objection to be determined at or before the hearing.

3. The parties are granted leave to have this matter listed for further directions and/or orders upon seven days notice.