Lam v Parsons Brinckerhoff Australia Pty Ltd
[2011] NSWADT 174
•19 July 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Lam v Parsons Brinckerhoff Australia Pty Ltd [2011] NSWADT 174 Hearing dates: 5 July 2011 Decision date: 19 July 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. Leave for the applicant's complaints of race discrimination and victimisation to proceed is refused.
2. The respondent's application for costs is refused.
Catchwords: LEAVE - complaints declined by President of the Anti-Discrimination Board - same complaints made previously to Australian Human Rights Commission - whether leave to proceed should be refused on ground that the subject matter of the complaint has been or should be dealt with by another body Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Racial Discrimination Act 1975 (Cth)Cases Cited: Deva v University of Western Sydney [2008] NSWCA 137
Jones and Anor v Ekermawi [2009] NSWCA 388Category: Interlocutory applications Parties: Hoi Andy Lam (Applicant)
Parsons Brinckerhoff Australia Pty Ltd (Respondent)Representation: Hoi Andy Lam (Applicant - In person)
Clayton Utz (Respondent)
File Number(s): 111057
REasons for decision
Introduction
EQUAL OPPORTUNITY DIVISION (N HENNESSY, LCM (DEPUTY PRESIDENT)): The issue in these proceedings is whether it is fair and just for the Tribunal to give Mr Lam permission for his complaints of race discrimination and victimisation under the Anti-Discrimination Act 1977 ( AD Act ) to proceed. The complaints are against Mr Lam's former employer, Parsons Brinckerhoff Australia Pty Ltd (Parsons Brinckerhoff).
Leave to proceed necessary
The President of the Anti-Discrimination Board (ADB) declined Mr Lam's complaints on the basis that the subject matter of the complaint has been dealt with by another body, namely the Australian Human Rights Commission (AHRC).
Mr Lam needs to obtain the Tribunal's permission before either of his complaints can proceed: AD Act , s 96. The Tribunal has a discretion to grant or refuse leave for the complaints to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that "the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body": AD Act , s 92(1)(a)(v).
I have decided to refuse leave for both of Mr Lam's complaints to proceed.
History of complaints
Mr Lam began working for Parsons Brinckerhoff as a Senior Electrical Engineer on 8 August 2008. His employment was terminated on 1 March 2010. The reason for the termination was said to be that his performance was not satisfactory.
On 5 March 2010 Mr Lam applied to Fair Work Australia for a remedy for unfair dismissal. The application was referred to a conciliation conference which was held on 31 March 2010. The application was resolved. Without any admission of liability, Parsons Brinckerhoff agreed to give Mr Lam four weeks pay, access to outplacement services and a statement of service. Although Parsons Brinckerhoff gave Mr Lam a deed of release to sign, they paid him the money before he signed it and they never received a signed copy of the deed.
Meanwhile, on 23 February 2010 and 11 March 2010 Mr Lam had filed complaints with the AHRC against Parsons Brinckerhoff and an employee of the respondent, Mr Louis Lefevre (the Commonwealth complaint). The complaints alleged racial discrimination and victimisation under the Racial Discrimination Act 1975 (Cth) ( RDA ). Parsons Brinckerhoff says that it was not aware of that complaint at the time of the conciliation conference with Fair Work Australia.
About a year later, on 1 February 2011, the President of the AHRC terminated Mr Lam's complaints on the ground that she was satisfied that there was no reasonable prospect of the matter being settled by conciliation. Mr Lam was advised of his right to apply to the Federal Court of Australia or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. Mr Lam did not apply to either of those bodies and the time for making such an application has passed.
On 15 February 2011, two weeks after the AHRC terminated his Commonwealth complaints, Mr Lam made virtually identical complaints to the ADB alleging race discrimination and victimisation under the AD Act (the NSW complaints). Mr Lam disclosed to the ADB that he had also lodged the Commonwealth complaints with the AHRC and that those complaints had been terminated.
By letter to Mr Lam dated 31 March 2011, the President of the ADB advised Mr Lam that the NSW complaints had been accepted for investigation but declined on the basis that the subject matter of the complaints had been dealt with by the AHRC.
Submissions
At the hearing Mr Lam said that he had further correspondence and other evidence on which he wished to rely. I declined to admit that evidence because it was not relevant. The sole issue for determination in these proceedings is whether it is fair and just for the NSW complaints to proceed in circumstances where he has previously complained to the AHRC and Fair Work Australia. I have not assessed the merits of Mr Lam's complaints. For the same reason I did not take into account the material that Parsons Brinckerhoff attached to their written submissions.
Mr Lam submitted that the ADB was aware that he had lodged complaints with the AHRC prior to lodging the same complaints with the ADB. He emphasised that he did not try to hide anything and that the ADB knew from the start that the AHRC had terminated his complaints because the President formed the view that there was no chance of conciliation. According to Mr Lam, the reason he lodged the NSW complaints rather than pursuing his Commonwealth complaints in the Federal Magistrates Court, was that he wanted to resolve the complaints through conciliation. He said that he did not know that he would be prevented from pursuing his NSW complaints in the Tribunal if he had previously lodged the same complaints with the AHRC.
In relation to the resolution of his unfair dismissal application, Mr Lam distinguished between that complaint and the Commonwealth and NSW complaints which were complaints of racial discrimination and victimisation.
Parsons Brinckerhoff did not accept that Mr Lam was unaware that his NSW complaints would be declined given that he had already made the Commonwealth complaints. They said that if he had any queries, he could have contacted the AHRC as he was invited to do in the letter that the AHRC wrote to Mr Lam when terminating his complaint.
Parsons Brinckerhoff added that they had incurred significant costs in relation to the Fair Work Australia proceedings and the Commonwealth complaints.
Findings
I accept Mr Lam's evidence that he did not know that he would be prevented from pursuing his complaint in the Tribunal if he had previously lodged the same complaint with the AHRC. In fact, s 88B(1) of the AD Act provides that a person is not prevented from making a complaint only because he or she has made a complaint or taken proceedings in relation to the same facts in another jurisdiction. The existence of that provision explains why the President accepted the complaints for investigation.
I also accept Mr Lam's evidence that he disclosed to the ADB the fact that he had previously lodged the same complaints with the AHRC and that those complaints had been terminated.
Discussion
There are two questions to be resolved. Firstly, whether the subject matter of the Commonwealth and NSW complaints is sufficiently similar to come within s 92(1)(a)(v) and secondly, if so, whether I should grant leave for the NSW complaints to proceed.
The scope of s 92(1)(a)(v) has been discussed by the Court of Appeal in Deva v University of Western Sydney [2008] NSWCA 137 (17 June 2008). In that case, the Court (Tobias, Campbell & Bell JA) held that the subject matter of a complaint includes both the alleged conduct (for example, termination of employment) and the alleged unlawful basis for the conduct (for example, race discrimination).
The Court held that the subject matter of an application to the Australian Industrial Relations Commission (AIRC) (the predecessor to Fair Work Australia) in relation to unfair dismissal was "the unfair termination of his employment on the ground that it was harsh, unjust or unreasonable." The Court regarded an application to the ADB in relation to unlawful dismissal as fundamentally different from an application to the AIRC for unfair dismissal. At [51] the Court stated that:
Although the respondent submitted that the question should be approached at a very general level so that it was sufficient to categorise the subject matter of the appellant's complaint to the ADB on the one hand and his application to the AIRC on the other as being the termination of his employment, in my view such an approach is at too high a level of generality. It fails to appreciate that although the appellant's complaint related to the termination of his employment, the "subject matter" or substance of his complaint about his dismissal was in the one case that it was unlawful, and in the other, unfair, in each case on different grounds which of themselves did not necessarily overlap.
I am bound by this decision to conclude that the subject matter of Mr Lam's application for unfair dismissal is not sufficiently similar to the subject matter of his NSW complaints for s 92(1)(a)(v) of the AD Act to apply.
However, I am satisfied that the subject matter of the Commonwealth complaints is sufficiently similar to the subject matter of the NSW complaints for s 92(1)(a)(v) of the AD Act to apply. The subject matter of the Commonwealth complaints to the AHRC is set out in Mr Lam's emails dated 23 February 2010 and 11 March 2010. The subject matter of the NSW complaints to the ADB dated 14 February 2011 is in virtually identical terms. The Commonwealth complaints were considered under ss 9, 15, 18A and 27 of the RDA . Those provisions respectively define race discrimination; make certain kinds of conduct in employment unlawful, make employers vicariously liable for certain acts of their employees and make victimisation a criminal offence. The NSW complaints were considered under ss 7, 8 and 50 of the AD Act . Those provisions respectively define race discrimination, make certain kinds of conduct in employment unlawful and make victimisation unlawful.
While not identical, the subject matter of the NSW and Commonwealth complaints is sufficiently similar to come within s 92(1)(a)(v).
The second issue is whether, in the circumstances of this case, I should grant leave for the NSW complaints to proceed. The considerations which favour the granting of leave include that Mr Lam was not aware that the President of the ADB would decline his complaints and that the complaints have not been resolved. The considerations which favour refusing leave include that the AHRC dealt with the subject matter of the Commonwealth complaints for approximately 12 months before terminating the complaints. Mr Lam had the opportunity to have his complaints dealt with by the Federal Court or the Federal Magistrate's Court and Parsons Brinckerhoff have incurred significant costs in relation to the Fair Work Australia proceedings and the Commonwealth complaints.
In effect, by lodging the NSW complaints Mr Lam has attempted to start the complaint process again in circumstances where considerable resources on the part of both Parsons Brinckerhoff and the AHRC have already been expended in an attempt to address his complaints. It is not in the public interest to allow Mr Lam to engage in what amounts to 'forum shopping'.
Costs
Parsons Brinckerhoff applied for costs pursuant to s 88(1A) of the Administrative Decisions Tribunal Act 1997 (ADT Act) . The general rule is that each party bear its own costs, but costs may be awarded if it is 'fair' to do so taking into account the specific matters listed in s 88(1A) of the ADT Act and any other matter that the Tribunal considers relevant. The matters which Parsons Brinckerhoff considered relevant were that:
(1) Mr Lam's complaints have no tenable basis in fact or law;
(2) Mr Lam's complaints had been dealt with by other bodies and processes including the AHRC, Fair Work Australia and the ADB;
(3) despite receiving a benefit when both parties resolved the Fair Work Australia application by conciliation, Mr Lam continues to make the same complaints;
(4) Parsons Brinckerhoff vigorously denied that it has engaged in race discrimination and/or victimisation in relation to Mr Lam's employment or termination of his employment and has provided extensive submissions and documentation to support its position.
Mr Lam's response to the costs application was that he did not require Parsons Brinckerhoff to incur the expense of hiring a lawyer. He asked rhetorically why he should pay their costs.
Neither the ADB nor the Tribunal has made any finding about the merits of Mr Lam's complaints. Consequently, it would not be fair to award costs on the basis that those complaints lack merit. Similarly, because Mr Lam's application to Fair Work Australia was an application for unfair dismissal, not a complaint of discrimination or victimisation, it would not be fair to award costs in these proceedings because that application was resolved. The remaining basis for the costs application is that Mr Lam chose to lodge an application with the ADB after his complaints had been terminated by the AHRC. I have found that Mr Lam did not know that he would be prevented from pursuing his complaint in the Tribunal if he had previously lodged the same complaint with the AHRC. In those circumstances it is not fair to make an order for costs against him.
Orders
1. Leave for the applicant's complaints of race discrimination and victimisation to proceed is refused.
2. The respondent's application for costs is refused.
**********
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar/Associate
Decision last updated: 19 July 2011
0
2
3