JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : LAURENT and COMMISSIONER OF POLICE [2009] WASAT 254 MEMBER : JUDGE J PRITCHARD (DEPUTY PRESIDENT) HEARD : 30 SEPTEMBER 2009 DELIVERED : 23 DECEMBER 2009 FILE NO/S : EOA 73 of 2007 BETWEEN : GERALD JEAN-NOEL LAURENT Applicant
AND
COMMISSIONER OF POLICE
First Respondent
PAUL KOSOVICH
Second Respondent
Catchwords: Discrimination on grounds of impairment - Employment - Victimisation - Equal Opportunity - Application to strike out or dismiss - Causative link - Application misconceived or lacking in substance Legislation: Equal Opportunity Act 1984 (WA), s 5, s 66A, s 66A1, s 66B(2)(a), s 66B(2)(b), s 66B(2)(c), s 66B(2)(d), s 67, s 67(1), s 90(2), s 93(1)(b), s 161, s 163(2)
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State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(2)(b), s 47, s 47(1), s 47(1)(a), s 47(2), s 47(4), s 50(1)
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 75 Result: The respondents’ application under s 47(1)(a) is upheld. Proceeding EOA 73 of 2007 is dismissed Category: B
Representation: Counsel:
Applicant : Self-represented
First Respondent : Ms L Eddy
Second Respondent : Ms L Eddy
Solicitors:
Applicant : Self-represented
First Respondent : State Solicitor's Office
Second Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141
Forrester v AIMS Corporation [2004] VSC 506
Hautlieu Pty Ltd t/as Russell Pathology v McIntosh [2000] WASCA 146
Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Regan and Kalgoorlie Taxi Car Owners Association Incorporated (1996) EOC 9844 (WA, EOT)
Soelberg and Commissioner of Police [2008] WASAT 305
Soelberg and Commissioner of Police and Ors [2007] WASAT 214
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Turner and Maunsell Australia Pty Ltd [2006] WASAT 52
Williams and Commissioner of Police [2005] WASAT 349
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REASONS FOR DECISION OF THE TRIBUNAL
Summary of Tribunal's decision 1 The applicant claimed that he was discriminated against in the area of employment on the grounds of impairment, namely his back injury and a rash, and that he was victimised contrary to the Equal Opportunity Act 1984 (WA). 2 The applicant was a police officer in the Western Australia Police Force for a number of years. The respondents were the Commissioner of Police and a Senior Sergeant who worked at the Geraldton Police Station where the applicant worked during the period in which the discrimination and victimisation is alleged to have occurred. 3 Prior to the final hearing of the applicant’s complaint, the respondents applied to the Tribunal to have the proceedings, or parts thereof, struck out or dismissed as being frivolous, vexatious, misconceived or lacking in substance pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA). 4 In making its decision, the Tribunal considered the scope of the power in s 47 and found that on its proper construction the section included a power to strike out part of a proceeding in addition to the power to dismiss or strike out a proceeding in its entirety. 5 The Tribunal found that the applicant’s allegations, as set out in his three statements of issues, facts and contentions, were either so obviously untenable that they could not possibly succeed or were manifestly groundless. The Tribunal therefore struck out the entirety of the applicant’s statements of issues, facts and contentions, and dismissed the proceeding as misconceived or lacking in substance.
Background 6 Mr Laurent was a police officer in the Western Australia Police Force from June 1996 until 24 December 2008. He claims that he sustained back injuries in the course of carrying out his duties as a police officer in February 2002 and in February 2004. In June 2006, Mr Laurent was transferred to the Geraldton Police Station. Mr Laurent claims that in about August 2007, he sustained what he describes as a rash injury in the course of carrying out his duties as a police officer. Mr Laurent claims he suffered this injury as a result of exposure to contaminants following the refurbishment of the air conditioning system at the Geraldton Police Station. (Page 4)
7 Mr Laurent alleges that while he was working at the Geraldton Police Station, the Commissioner discriminated against him in the area of employment on the ground of his impairment, namely his back injury. Mr Laurent made a complaint to the Equal Opportunity Commission (EOC) in relation to that alleged discrimination. On 18 December 2007, the Commissioner for Equal Opportunity referred that complaint to the Tribunal pursuant to s 93(1)(b) of the Equal Opportunity Act 1984 (WA) (EO Act). 8 The Tribunal ordered that Mr Laurent file a Statement of the Issues, Facts and Contentions (SIFC) which he says arise in relation to that complaint. He did so on 14 April 2008 (the first SIFC). The first SIFC was drafted by a solicitor from the EOC who was, at that time, assisting Mr Laurent to pursue his application. 9 Mr Laurent also alleges that while he was working at the Geraldton Police Station, the Commissioner discriminated against him in the area of employment on the ground of another impairment, namely his rash injury. In addition, Mr Laurent alleges that he was the subject of victimisation by the Commissioner and by Senior Sergeant Kosovich (who is a police officer who was stationed at the Geraldton Police Station when Mr Laurent worked there), contrary to s 67 of the EO Act. Mr Laurent made complaints to the EOC in relation to both matters on 10 April 2008. The EOC dismissed both complaints on the grounds that they were misconceived. On 15 August 2008, the EOC referred these two further complaints to the Tribunal pursuant to s 90(2) of the EO Act. 10 The Tribunal ordered that the proceedings commenced by both referrals by the EOC be consolidated. The Tribunal initially ordered that Mr Laurent file a SIFC setting out all of his issues, facts and contentions in the consolidated proceedings. That was not done. Eventually, the Tribunal ordered that Mr Laurent file a SIFC in relation to his second complaint of discrimination. He did so on 5 March 2009 (second SIFC). The Tribunal also ordered that Mr Laurent file a SIFC in relation to his complaint of victimisation. He did so on 17 April 2009 (third SIFC). 11 Mr Laurent's proceeding in the Tribunal is thus somewhat unusual in that it comprises three discrete sets of allegations, the details of which are set out in the first SIFC, second SIFC and third SIFC. 12 Throughout the first SIFC, second SIFC and third SIFC, Mr Laurent refers to conduct by the respondent. Sometimes, the SIFCs will specifically refer to the employees, servants or agents of the respondent. (Page 5)
On many other occasions, the SIFCs simply refer to the respondent. Generally speaking, it does not appear that Mr Laurent alleges that the Commissioner personally engaged in the conduct complained of. It thus appears that Mr Laurent’s proceedings are brought against the Commissioner on the basis that he is vicariously liable for acts done by his employees that are done in connection with their employment: s 161 of the EO Act. Section 163(2) of the EO Act requires that references in the EO Act to an 'employer' shall be read and construed in relation to employment in the Police Force of Western Australia as a reference to the Commissioner. 13 The third SIFC refers to the Commissioner as the first respondent and Senior Sergeant Kosovich as the second respondent. (Senior Sergeant Kosovich was Mr Laurent’s superior officer while Mr Laurent was stationed at the Geraldton Police Station.) For ease of reference throughout these reasons, I have referred to the Commissioner as the respondent. 14 In June 2009, the Tribunal made orders including an order that Mr Laurent file with the Tribunal a list of the witnesses he proposed to call to give evidence in support of his case. On 19 June 2009, Mr Laurent filed a witness list which indicated that he wished to call 71 witnesses to give evidence, although Mr Laurent advised at that stage most of those persons had not consented to give evidence in support of his case. 15 The respondents now apply to dismiss or strike out the entirety of the proceeding commenced by Mr Laurent against them, or alternatively to strike out parts of the first SIFC, second SIFC and third SIFC, on the grounds that the proceeding or the SIFCs are frivolous, vexatious, misconceived or lacking in substance. That application is made pursuant to s 47 of the State Administrative Tribunal Act 2004 (SAT Act). At the hearing of the application, Mr Laurent was given the fullest opportunity to make submissions explaining the basis for his allegations. 16 These reasons for decision address the following matters: (Page 6)
4. Should the third SIFC be dismissed or struck out pursuant to s 47 of the SAT Act?
The Tribunal's power under s 47 of the SAT Act 17 Section 47 of the SAT Act applies if the Tribunal believes that a proceeding is frivolous, vexatious, misconceived or lacking in substance, is being used for an improper purpose, or is otherwise an abuse of process: s 47(1) of the SAT Act. If s 47 applies, the Tribunal may order 'that the proceeding be dismissed or struck out and make any appropriate orders': s 47(2) of the SAT Act. The Tribunal may exercise this power on its own initiative or on the application of a party: s 47(4) of the SAT Act. 18 The power in s 47 of the SAT Act has been exercised infrequently by the Tribunal. That is not surprising. 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: s 32(2) of the SAT Act. Consistent with the informality of the Tribunal's procedures, proceedings before the Tribunal are not conducted by reference to formal pleadings. In this context, any application to dismiss or strike out a proceeding in the Tribunal should be approached with a great deal of caution. That will be all the more so when the party whose case is the subject of an application under s 47 is selfrepresented, does not have the benefit of legal representation or legal training, and may have difficulty in precisely setting out their claim in writing. 19 Nothing in s 47 of the SAT Act contains a temporal restriction on when an application under that section may be made or considered. Plainly, an application may be made at an interlocutory stage, but it may also be made in the course of the substantive hearing of a proceeding, for example if at the close of the applicant's case, the state of the evidence is such as to demonstrate that the proceeding is lacking in substance. Given the absence of formal pleadings, the power in s 47 should be exercised particularly cautiously if an application for its exercise is made prior to the substantive hearing of an applicant's case: see Turner and Maunsell Australia Pty Ltd[2006] WASAT 52 (Turner) at [45] [46] and the cases there cited. 20 When, as in the present case, an application is made at an interlocutory stage, it is appropriate to assume that all of the factual assertions made by an applicant will be made out, and to consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived, or lacking in substance: Ambrus and Churches of Christ (Page 7)
Homes and Community Services Incorporated[2006] WASAT 141 (Ambrus) at [16] (Deputy President Judge Chaney, as he then was). Even then, however, caution should be applied in the exercise of the power in s 47. 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 pursuant to s 47 of the SAT Act. In discrimination cases, it is not uncommonly the case that the evidence led by a respondent and crossexamination of the respondent's witnesses may provide the causative link between the conduct complained of and the ground of discrimination alleged: see Soelberg and Commissioner of Police and Ors[2007] WASAT 214 at [49] (Deputy President Judge Eckert), and Margan v University of Technology, Sydney (EOD)[2003] NSWADTAP 65 at [11]. 21 In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the power of courts to summarily dismiss a proceeding when the pleadings fail to disclose any reasonable cause of action. The principles applicable to the exercise of that power have been considered applicable to the exercise of the power in s 47. In Ambrusat [8], Deputy President Judge Chaney observed that: … the principle to be applied in an application such as this is at least analogous to the principle explained by Barwick CJ in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 which requires that, in order to strike out a proceeding, it should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the court is satisfied cannot succeed. 22 See also Turnerat [43] [48]. A similar approach has been adopted in relation to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act): see, for example, Forrester v AIMS Corporation[2004] VSC 506 at [17] [28] (Kaye J), applying State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 (Rabel). 23 In so far as the respondents submit that the proceeding is 'misconceived' or 'without substance', I note that the term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact: Rabel at 108 109 (Ormiston JA). 24 In this case, the respondents seek that the proceeding be dismissed or struck out, or alternatively, that parts of each SIFC be struck out. (Page 8)
However, s 47 of the SAT Act does not expressly permit that part of a proceeding may be dismissed or struck out on one of the bases referred to in that section. In this respect, the terms of s 47 can be contrasted with those of s 50(1) of the SAT Act, which permits the Tribunal to make an order striking out all, or any part of, a proceeding if it considers that the matter, or any aspect of it, would be more appropriately dealt with by another tribunal, court or person. The terms of s 47 of the SAT Act can also be contrasted with s 75 of the VCAT Act which expressly permits the Victorian Civil and Administrative Tribunal to dismiss or strike out all or any part of a proceeding that is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process. 25 Although s 47 does not expressly permit part of a proceeding to be struck out, in my view, on its proper construction, s 47 of the SAT Act does incorporate such a power. First, s 47 permits a proceeding to be 'dismissed' or 'struck out'. The word 'dismiss' means, amongst other things, to 'send out of court; deny further hearing to (a legal action or claim)' (Shorter Oxford English Dictionary, 6th ed, 2007). The power in s 47 to dismiss a proceeding therefore contemplates the denial of any further hearing of that proceeding in the Tribunal. On the other hand, the words 'strike out' mean to 'cancel or erase by or as by a stroke of a pen; remove from a record, text, list' (Shorter Oxford English Dictionary). The power to 'strike out' a proceeding therefore appears capable of application both to the proceeding as a whole or to particular parts of the proceeding. 26 Secondly, in so far as the term 'strike out' is capable of application to the entirety of a proceeding, clearly there is an overlap between that power and the power to dismiss a proceeding. It is a well recognised principle of statutory construction that all words used in a statute must be given meaning and effect: see Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ). The fact that the Parliament has given the Tribunal the power both to 'dismiss' or to 'strike out' a proceeding suggests that the terms used have different work to do. That supports the conclusion that the power to 'strike out' should be understood as pertaining to a part of a proceeding as well as to the entirety of a proceeding. 27 Thirdly, a 'proceeding' in the Tribunal is effectively the sum of the different allegations or issues it raises. From that perspective, the power to dismiss or strike out a proceeding must necessarily include the power to dismiss or strike out part of that proceeding. (Page 9)
28 Finally, I note that there is no other provision in the SAT Act (apart from s 47) which would permit the Tribunal to strike out a part of a proceeding on the ground that it is frivolous, vexatious, misconceived or without substance. In a case where a party to a proceeding before the Tribunal seeks to pursue some issues which are misconceived, or which have no substance, for example, the Tribunal may be hindered in acting according to equity, good conscience and the substantial merits of the case as between the parties to the case (under s 32(2)(b) of the SAT Act) if it were not able to strike out those issues from the proceeding, and thereby avoid the need for the parties to expend time and resources dealing with such issues. A construction of s 47 which encompasses a power to strike out a part of a proceeding would appear to be more consistent with the purpose reflected in s 32(2)(b) of the SAT Act.
Should the first SIFC be dismissed or struck out pursuant to s 47 of the SAT Act? 29 The first SIFC contends, in summary, that: 1) Mr Laurent had a back injury, 2) that he worked as a police officer at the Geraldton Police Station, 3) that the roster at the Geraldton Police Station was flexible so as to accommodate personal injuries and supervisor and staff preferences for the shifts and type of work done; 4) that prolonged periods of sitting aggravated his back injury; 5) that Mr Laurent advised his shift sergeant of this problem; 6) that for a number of months, Mr Laurent's roster was managed so as to offer him office duties which did not involve extended sitting periods during his shifts; 7) after he made a formal complaint and advised his supervisors of the bad behaviour of other officers, no efforts were made to assist Mr Laurent to manage his back injury, and he was rostered for long shifts in the Police Station, involving extended periods of sitting; and (Page 10)
8) Mr Laurent was not given the opportunity to perform acting positions at the Geraldton Police Station when they became available. 30 Mr Laurent contends that the respondent discriminated against him on the ground of his impairment, namely his back injury, in the area of employment, and thereby breached s 66A and s 66B(2)(a), s 66B(2)(b) and s 66B(2)(d) of the EO Act. 31 'Impairment' is defined in s 5 of the EO Act to include any defect or disturbance in the normal structure or functioning of a person’s body, including that which arises from an illness or injury. 32 In order to make out a claim of discrimination under s 66A(1) of the EO Act, Mr Laurent must show that: a) he suffered from an impairment; b) the Commissioner treated him less favourably than in the same circumstances or in circumstances that are not materially different, the Commissioner treats or would treat a person without such an impairment; and c) he was treated less favourably on the basis of that impairment - that is, there is a causal connection between the ground of discrimination alleged and the decision or act complained about; See Williams and Commissioner of Police [2005] WASAT 349at [35] [38] and the cases cited therein, and see also s 5 of the EO Act. 33 It is immediately apparent that certain paragraphs in the first SIFC are misconceived. In addition, more fundamental deficiencies pertain to (Page 11)
the whole of the first SIFC and support the conclusion that it is misconceived or lacking in substance.
Particular paragraphs in the first SIFC are misconceived 34 There are some aspects of the first SIFC which, on their face, are clearly misconceived. At para 30, Mr Laurent alleges that the respondent failed in his duty of care to provide a safe working environment. At para 31(b), Mr Laurent alleges that the respondent prevented him from taking sick leave, resulting in a breach of the respondent's duty of care. Both of these contentions appear to refer either to a claim of negligence, or possibly to a breach of a statutory duty such as that under occupational health and safety legislation. A claim of either kind is not within the Tribunal's jurisdiction.
Fundamental deficiencies in the first SIFC 35 There are, however, more fundamental deficiencies in the first SIFC. Leaving to one side para 30 and para 31(b), the balance of the first SIFC deals with two instances of alleged discrimination: 36 I will deal with each of these in turn.
The alleged discrimination arising from the allocation of shifts without accommodating Mr Laurent's back injury: para 3 to para 6, para 9 to para 28 and para 31(a) of the first SIFC 37 The respondents submit that the basis for Mr Laurent's claim is that he was not treated more favourably (rather than that he was treated less favourably) than a person without such an impairment would have been treated in the same, or not materially different, circumstances. By way of example, the respondents point firstly to para 4 of the first SIFC which (Page 12)
identifies as an issue in the proceeding whether the respondents took 'reasonable steps to ascertain the status of the applicant's condition'. Counsel for the respondents submits that it would not have been necessary for the first respondent to ascertain the medical or fitness status of a person without a back injury. Accordingly, counsel submits that this paragraph illustrates that Mr Laurent's contention is effectively that he should have been treated more favourably than a person with no back injury. 38 The respondents also point to para 5 of the first SIFC which identifies as an issue whether Mr Laurent continued to be rostered to office duties when the respondent knew, or ought to have known, that Mr Laurent had a back injury. Again, the respondents submit that implicit in this paragraph is an allegation that Mr Laurent should have been given a roster different from other officers. The respondents' counsel submits that that amounts to a contention that Mr Laurent should have been treated more favourably than a person without a back injury. 39 Mr Laurent's oral submissions tended to support the respondents' submissions. In relation to para 4 of the first SIFC, for example, Mr Laurent submitted that the issue before the Tribunal is whether the respondent had to provide him with assistance to manage his injury. It is difficult to relate that submission to the requirements of the EO Act for a claim of direct discrimination on the ground of impairment. 40 In addition, Mr Laurent confirmed that he wanted a concession to manage his injury. Even if Mr Laurent's case is that because of his back injury he should have been treated differently from other officers in relation to the allocation of rosters, and that he was not treated in the manner he should have been, that does not mean that he was treated less favourably than other officers. Rather, Mr Laurent's case appears to be that he should have been treated more favourably than other officers without back injuries in relation to the allocation of rosters. 41 The respondents point out, correctly, that there is no requirement under the EO Act that a person be treated more favourably than a person with an impairment without such an impairment. The respondents contend that nothing in the first SIFC discloses facts to establish that the first respondent treated Mr Laurent less favourably than it would or does treat a person who does not suffer from a back injury. That is plainly correct. (Page 13)
42 A second deficiency in relation to this first allegation of discrimination is that there is no allegation that any different treatment which Mr Laurent was afforded was on the ground of his back injury. The respondents point to para 31(a) of the first SIFC which contends that the respondent continued rostering Mr Laurent for lengthy shifts of office duties although he was informed of Mr Laurent's back injury, and its exacerbation by long periods of sitting. Counsel for the respondents submits that this paragraph does not amount to an allegation that Mr Laurent was discriminated against because of his back injury. 43 Mr Laurent submitted that it could be inferred from the first SIFC that the different treatment he received was as a result of his back injury. The difficulty with that submission is that even if Mr Laurent was treated differently as a result of his back injury, that does not necessarily mean that he was treated less favourably than a person without a back injury. 44 In any event, the submissions made by Mr Laurent at the hearing were inconsistent with any allegation that the different treatment he received was as a result of his back injury. Mr Laurent submitted that, initially, he was permitted to choose his own shifts and to alternate his shifts, in the same way that other police officers were permitted to do. However, he submitted that eventually he was not permitted to alternate his shifts. The reason, Mr Laurent submitted, was that his superiors 'did not like [him]' because of his impairment. He submitted that 'issues came up and they felt I was not being a team player'. That much also appears to be implicit in para 27 of the first SIFC in which Mr Laurent says that no provision was made in the roster of shifts to accommodate his back injury 'since he made a formal complaint and informed subordinates bad behaviours' (sic). 45 As a result of Mr Laurent's submissions, I was left with the clear understanding that either it is not part of Mr Laurent's case, or that he would not be able to establish, that on the ground of his back injury he was treated less favourably than other officers without such an impairment. The treatment Mr Laurent received was, on his submission, the result of the poor relationship he had with his superiors or fellow officers. Accordingly, even if Mr Laurent were successful in establishing all the factual contentions in his claim, he would not be able to establish the causal link between the alleged discriminatory conduct and his impairment. This part of the first SIFC is therefore clearly both misconceived and without substance. (Page 14)
The allegation that Mr Laurent was denied acting opportunities: para 29 and para 31(c) of the first SIFC 46 Paragraph 29 and para 31(c) simply contain the bare assertion that the respondents 'did not afford the applicant the opportunity to perform acting positions at the Geraldton Police Station'. The respondents' counsel submitted that this allegation does not amount to discrimination because it is not alleged that Mr Laurent was denied those opportunities because of his back injury. 47 Counsel for the respondents conceded that if it had been alleged by Mr Laurent that he was denied opportunities to act in other positions because of his back injury, that would have been sufficient to constitute an allegation of discrimination. While the failure to plead the connection between the denial of acting opportunities and Mr Laurent's back injury might have been cured by an amendment, as a result of Mr Laurent's submissions at the hearing, it became clear that he is not, in fact, alleging that the denial of acting opportunities was on the ground of his back injury. Mr Laurent's submissions were to the effect that he was treated the way he was not because of his back injury, but rather because other officers did not like him. Mr Laurent submitted that he was denied the opportunity to act in other positions because he stood up for his rights and 'wouldn't toe the line'. 48 Mr Laurent also submitted that his superiors had looked at his performance and concluded he had performed poorly in his existing position and therefore could not act in more senior positions. Mr Laurent submitted that the denial of opportunities to act in other positions resulted from the fact that he had made an issue of his bad back, that as a result of his requests for flexibility and his complaints, his fellow officers grew to dislike him and to scrutinise his performance, and that they concluded that his poor performance meant that he was not suitable to act in other positions. 49 This part of the first SIFC is therefore clearly misconceived because Mr Laurent does not contend that the reason why he was allegedly discriminated against was on the ground of his back injury.
Conclusion in relation to the first SIFC 50 The question in this application is whether the first SIFC is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which cannot succeed. I have (Page 15)
reached the view that that is the case. I therefore strike out that part of the proceeding which is set out in the first SIFC, in its entirety.
Should the second SIFC be dismissed or struck out pursuant to s 47 of the SAT Act? 51 The second SIFC is in similar terms to the first SIFC, although it is a far lengthier document, comprising 119 paragraphs. In summary, the second SIFC alleges that: • Mr Laurent sustained a rash injury in approximately August 2007 while working as a police officer, stationed at the Geraldton Police Station; • Mr Laurent sustained the rash injury as a result of a refurbishment of the Geraldton Police Station's air conditioning system, and his exposure to dust or contaminants such as fibreglass from the old air conditioning unit; • Mr Laurent was directed to work in the hazardous environment and was not given alternative work arrangements which could have prevented the injury; • Mr Laurent complained to the officer in charge of the Geraldton Police Station, the second respondent, and to the Occupational Safety Officer but neither of them addressed his concerns; • Mr Laurent has continued to suffer from the rash injury and has suffered pain and discomfort as a result; • Mr Laurent has received treatment for the rash injury on numerous occasions since August 2007; • Mr Laurent sustained a further skin injury as a result of steroids given to him to treat his rash injury; • Mr Laurent submitted claims for payment for treatment for the rash injury; • The respondent advised Mr Laurent in October and November 2007 of his intention to suspend Mr Laurent's medical leave pay entitlements because he had refused to undergo a medical review organised by the respondent; (Page 16)
• Mr Laurent was denied leave for his absence from work while obtaining treatment for the rash injury in August 2007, as he was deemed fit for his duties as a police officer; • As a result, Mr Laurent obtained medical treatment while performing his full duties and not taking his leave entitlements; • The respondent discriminated against Mr Laurent for failing in its duty of care to provide a safe working environment, and breached s 66A and s 66B(2)(a), s 66B(2)(b) and s 66B(2)(d) of the EO Act; • The respondent treated Mr Laurent less favourably than in the same circumstance or circumstances that are not materially different he treats or would have treated a person without the impairment, in that (for example) the respondent did not provide a safe working environment, failed to conduct an investigation and establish the source of the contaminants, did not provide Mr Laurent with alternative work arrangements, refused to provide Mr Laurent with assistance to obtain treatment and threatened to suspend his pay as a result of his suffering the injury. 52 Mr Laurent contends that the Commissioner discriminated against him on the ground of an impairment he suffered, which he describes as a rash injury, that that discrimination occurred in the area of employment, and that the respondent thereby breached s 66A, s 66B(2)(a), s 66B(2)(b) and s 66B(2)(d) of the EO Act. 53 I have set out above what an applicant must establish to make out a claim of discrimination on the ground of impairment contrary to s 66A of the EO Act. 54 The respondents submit that nothing in the second SIFC can constitute a claim of discrimination because almost all of the paragraphs in the second SIFC are effectively directed to a claim for damages, either founded in negligence, or on some other basis, for the rash injury suffered by Mr Laurent in the course of his employment. Counsel for the respondents sought to illustrate this submission by reference to a number of paragraphs in the second SIFC. The following three examples suffice (Page 17)
to demonstrate that the respondents' submission in this respect is plainly correct. 55 First, para 115 of the second SIFC sets out particulars of Mr Laurent's claim that he was treated less favourably than in the same or not materially different circumstances the respondent would have treated a person without the impairment. Those particulars include the following: • 'the [r]espondent did not provide a safe working environment': para 115(a); • 'the [r]espondent failed to conduct an investigation and establish the source of the contaminates that caused the [a]pplicant's injury': para 115(b); • 'the [r]espondent has prevented the [a]pplicant from taking sick leave resulting the [r]espondent's breach in duty of care even if such leave was being certified by a qualified medical personnel' (sic): para 115(i). 56 Save for para 115(h) (to which I will refer in a moment), the contentions in para 115, which are described as particulars of the less favourable treatment afforded to Mr Laurent, are all expressed in the language of a breach of a common law or statutory duty of care owed by the respondent to Mr Laurent. 57 Secondly, even if all of the issues identified by Mr Laurent in para 3 to para 21 of the second SIFC were answered affirmatively, that would still not establish a claim of discrimination under s 66A of the EO Act. The language of para 3 to para 21 of the second SIFC is directed to the existence, and breach, of a duty of care owed by the respondent to Mr Laurent. Paragraph 5 for instance, poses the question 'did the [r]espondent, through its employees, servants or agents, contribute to the [a]pplicant's injuries by not providing a safe work environment during and after the refurbishment of the air conditioning at the Geraldton Police Station?' Paragraph 8 poses the question 'did the [r]espondent through its employees, servants or agents put in place preventative measures for the [a]pplicant from suffering further injury within a reasonable time?' Paragraph 10 asks 'did the [r]espondent through its employees, servants or agents implement measures that may have prevented the [a]pplicant from suffering extreme injury and suffering?' 58 Thirdly, counsel for the respondents submitted that even if all of the material facts alleged in the second SIFC were true, they could not (Page 18)
establish unlawful discrimination by the respondent against Mr Laurent on the ground of impairment. By way of example, counsel for the respondent pointed to para 31 to para 33, para 38, para 75(d), para 103 and para 110 of the second SIFC which contain allegations that Mr Laurent would not have contracted his rash injury if given appropriate warnings, that he was given incorrect treatment, or that the respondent failed to show him care or compassion. Counsel submitted that these are matters irrelevant to a claim of unlawful discrimination. That is also plainly correct. 59 Counsel for the respondents accepted that para 115(h) of the second SIFC - which contends that 'the [r]espondent threatened suspension of pay as a result of the [a]pplicant's suffering injury directly caused by the [r]espondent' - on its face bore some potential connection with a discrimination claim. However, counsel submitted that nothing in the second SIFC contained any pleading in relation to how a comparator would have been treated in the same or not materially different circumstances. That is not entirely correct. Paragraph 18 of the second SIFC at least alludes to a comparator. That paragraph poses as an issue in the proceedings 'did the [r]espondent's history of allowing certain employees to take extensive sick leave entitlements in comparison to refusing the [a]pplicant reasonable leave entitlements to seek medical treatment cause the [a]pplicant to suffer extreme agony and injury not healing?' 60 In any event, counsel for the respondents submitted that the facts relevant to para 18 and para 115(h) are set out in para 56 of the second SIFC which states, in effect, that the respondent forwarded correspondence to Mr Laurent on 15 October and 1 November 2007 which advised of the respondent's intention to suspend Mr Laurent's medical pay entitlements because he had refused to participate in a medical review organised by the respondent. Counsel for the respondents submitted that this paragraph confirmed that the reason for the suspension of the medical pay entitlement was not because of Mr Laurent's impairment, but because of his failure to participate in a medical review. Mr Laurent did not deny that this was the case. He submitted that the medical review referred to in the second SIFC was a medical review for his back injury in 2004, and that he had refused to participate in it because he considered that the facts which formed the basis for the review were incorrect. 61 It was also submitted by the respondents' counsel that the second SIFC does not contend that any other officer would have been treated (Page 19)
differently in relation to the requirement to undergo a medical review. That is clearly correct. 62 Quite apart from these deficiencies, Mr Laurent's submissions also demonstrated that he would not be able to establish his claim of discrimination on the ground of impairment for at least two other reasons. First, Mr Laurent submitted that the reason the respondents did not do more in relation to his rash injury was because he stood up for his rights in relation to his back injury. Mr Laurent submitted that the respondents 'didn't give me access to sick leave because they didn't like me as a result of my back complaints'. Even if the second SIFC could be construed as contending that Mr Laurent was treated less favourably than an officer without an impairment, he would not be able to establish that the reason he was treated less favourably was because of his impairment (that is, his rash injury). 63 Secondly, it was apparent from Mr Laurent's submissions at the hearing that he would not be able to establish that he was treated less favourably than the respondent would have treated other persons without an impairment in the same or not materially different circumstances. Mr Laurent submitted that all of the other staff were required to work in the same environment (that is, in the dust following the air conditioning refurbishment) but because his injury was much worse, he wanted to be treated 'not less favourably'. That appears to equate to a submission that he should have been treated more favourably than other staff. For the reasons given on this issue in relation to the first SIFC, the second SIFC is also misconceived.
Conclusion in relation to the second SIFC 64 The question in this application is whether the second SIFC is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which cannot succeed. The second SIFC is misconceived, without substance and is manifestly groundless. I have therefore reached the view that the second SIFC cannot possibly succeed. Accordingly, I strike out that part of the proceeding which is set out in the second SIFC, in its entirety.
Should the third SIFC be dismissed or struck out pursuant to s 47 of the SAT Act? 65 In the third SIFC, Mr Laurent alleges that the respondent discriminated against him on the grounds of an impairment, contrary to s 66A and s 66B(2)(a), s 66B(2)(b), s 66B(2)(c) and s 66B(2)(d). In (Page 20)
addition, Mr Laurent also alleges that the respondent or the second respondent victimised him. 66 The third SIFC is a far lengthier document than either the first SIFC or the second SIFC. It runs to 41 pages and 264 paragraphs. Much of it is barely comprehensible. I do not intend to refer to each paragraph of the third SIFC. For present purposes, it suffices to consider the content of the third SIFC by reference to the different groups of allegations of victimisation or discrimination which are set out in the third SIFC under the following headings: • 'assault leading to attempt to pervert the course of justice and conspiracy', at para 25 to para 47; • 'assault and smelling of hands', at para 48 to para52; • 'attending the applicant's premises to demand information to contact the applicant's medical practitioners', at para 53to para 59; • 'misconduct by victimisation to assist with the modification of work place', at para 60 to para 64; • 'malicious investigations Hutchinson's false report', at para 65 to para 69; • 'health and welfare respondent (1) victimisation', at para 70 to para 77; and • 'the respondent (1 and 2) failure to investigate a work related injury', at para 78 to para 211. 67 In considering whether the allegations of discrimination in the third SIFC are so obviously untenable that they cannot possibly succeed or are manifestly groundless, I have borne in mind what is required to be established in order to make out a claim of discrimination under s 66A of the EO Act. I referred to these matters earlier in these reasons. In assessing Mr Laurent's allegations of victimisation under s 67 of the EO Act, I have borne in mind that in order to establish victimisation under s 67, it must be established that: 1) the person victimised suffered, or was threatened with, a detriment; (Page 21)
2) the detriment alleged must be a disadvantage that is substantial and not trivial; 3) the victimiser subjected the person victimised with the detriment, or threatened to do so; 4) a dominant or substantial reason for the victimiser's conduct was that the person victimised has made or proposes to make a complaint under the EO Act, or has brought or proposes to bring, proceedings against the victimiser under the EO Act (or one of the other grounds for victimisation in s 67(1)). That is, it must be established that: • the complaint, or intended complaint, must be the dominant or substantial reason for doing the act of victimisation; • there must be an intention to cause detriment; and • there must be a causal link between the conduct of the victimiser and the detriment suffered. In the absence of facts capable of proving intention to cause the detriment, or facts capable of supporting such an inference, there will be no basis for a contention of victimisation. 68 See Regan and Kalgoorlie Taxi Car Owners Association Incorporated (1996) EOC 9844 (WA, EOT), referred to with approval in Williams and Commissioner of Police [2005] WASAT 349 at [144]; and see also Soelberg and Commissioner of Police [2008] WASAT 305 at [83]; and Hautlieu Pty Ltd t/as Russell Pathology v McIntosh [2000] WASCA 146 at [140], [168] [170]. 69 Each of the groups of allegations in the third SIFC suffers from a range of deficiencies. I have discussed these below. In addition, in so far as Mr Laurent makes allegations of victimisation, these allegations exhibit common deficiencies which I have discussed below.
'Assault leading to attempt to pervert the course of justice and conspiracy', at para 25 to para 47 70 Paragraphs 25 to para 47 primarily address four alleged incidents. (Page 22)
71 First, Mr Laurent alleges that on 9 May 2007, at the Geraldton Police Station and in front of other staff, the second respondent walked over to Mr Laurent, slapped him on his stomach with both hands and said 'Goodness Gerald'. Mr Laurent says that at the time his stomach was distended as a result of the posture he adopted as a result of his back injury. 72 This incident occurred prior to the time when Mr Laurent made his complaint to the EOC. Nothing in the third SIFC contends that this conduct occurred because the second respondent understood that Mr Laurent intended to make a complaint. In his oral submissions, Mr Laurent accepted that this incident was not within the Tribunal's jurisdiction. 73 The second incident referred to in this part of the third SIFC appears to be an allegation that in his response to the EOC's investigation of Mr Laurent's complaint, the second respondent denied that the stomach slapping incident occurred. Mr Laurent alleges that this of itself constituted an incident of victimisation, although it is not at all apparent from the terms of the third SIFC that this is relied on as an instance of victimisation. Mr Laurent submitted that the second respondent's response was an incident of victimisation because it was a false statement. Mr Laurent alleges that the filing of this false report caused him a detriment because it was the reason why he lost his job. 74 Quite apart from the fact that this allegation is not actually set out with any clarity in the third SIFC, the more fundamental difficulty is that it is not at all apparent how a party's response to an investigation by the EOC into an alleged breach of the EO Act, could itself constitute an act of victimisation, irrespective of its content. This aspect of the third SIFC is misconceived. 75 The third incident referred to in this part of the third SIFC is an allegation that on 20 June 2007, the second respondent approached Mr Laurent, claimed he could smell alcohol and lifted Mr Laurent's hand to his face and smelt it. Mr Laurent submitted that by smelling his hands, the second respondent showed Mr Laurent 'that he could do anything to him', in order to cause Mr Laurent to suffer anxiety. Mr Laurent submitted that the second respondent engaged in this conduct as he wanted Mr Laurent to leave Geraldton Police Station because Mr Laurent had taken matters to the EOC. (Page 23)
76 This allegation is without substance, for two reasons. First, it is not apparent from the third SIFC how the second respondent's action is said to have caused Mr Laurent any disadvantage. In any event, even if it did, any such disadvantage was, in my view, trivial and not substantial and could therefore not constitute a detriment. 77 Secondly, in so far as Mr Laurent alleged in his oral submissions that the second respondent engaged in this conduct for certain reasons, the third SIFC does not contain any such allegation. In addition, the third SIFC does not set out any facts which, assuming they were established, might enable an inference to be drawn that on 20 June 2007, the second respondent was actually aware that the previous day Mr Laurent had submitted a complaint to the EOC. 78 Finally, Mr Laurent alleges that he sought that the respondent take action in relation conduct the second respondent's conduct, but that all that was done was that a meeting was arranged, which was to be conducted by the second respondent. Mr Laurent appears to contend that in organising this meeting in this way, the respondent victimised him. 79 It is far from obvious that this alleged conduct by the respondent could have caused any detriment to Mr Laurent. In addition, the third SIFC does not contain any facts which could establish that by this conduct the respondent intended to cause a detriment to Mr Laurent, or that there was any causal link between this alleged conduct and Mr Laurent's complaint to the EOC. 80 Paragraphs 25 to para 47 of the third SIFC also refer to other incidents, including the submission of a report by a Sergeant Gillis and the second respondent, the nature and recipient of which is not explained. Having regard to para 44 to para 47 of the third SIFC, however, it may be that the report referred to was a response to inquiries by the EOC in relation to a complaint made by Mr Laurent. As I have noted above, it is not apparent how a response to an investigation by the EOC into an alleged breach of the EO Act, could of itself constitute an act of victimisation. 81 There is also a reference to a survey which was apparently sent by email by the second respondent to staff at the Geraldton Police Station. The content of the survey is not explained, but Mr Laurent alleges that it humiliated him. There are no material facts set out in the third SIFC which would establish that this conduct constituted an act of victimisation. (Page 24)
82 The allegations contained in para 25 to para 47 of the third SIFC are, in my view, misconceived, without substance and therefore so obviously untenable that they cannot possibly succeed.
'Assault and smelling of hands', at para 48 to para 52 83 These paragraphs also appear to refer to the allegation that on 20 June 2007, the second respondent approached Mr Laurent, said that he could smell alcohol, grabbed Mr Laurent's hand, and smelled it. 84 For the reasons I have given in relation to the same allegation made earlier in the third SIFC, para 48 to para 52 are without substance and so obviously untenable that they cannot possibly succeed.
'Attending the applicant's premises to demand information to contact the applicant's medical practitioners', at para 53 to para 59, para 175 to para 178 85 In these paragraphs, Mr Laurent alleges that on 15 October 2007, the second respondent went to Mr Laurent's home and served him with a letter from the respondent threatening suspension of pay for his refusal to participate in a medical review. (This presumably was the medical review to which reference is made in the first SIFC.) Mr Laurent alleges that the second respondent 'commented that the applicant had a young and nice family'. He then alleges that 'in the past, in his office the second respondent had stated that the applicant had a nice young family and it would be a shame if the applicant lost his job'. Mr Laurent also alleges that he was treated unfairly by being served at home when he was due at work approximately two hours later. 86 The respondents suggested that these paragraphs appeared to constitute an allegation that there was an implicit threat that Mr Laurent would lose his job. That presumably is on the basis that the remark allegedly made by the second respondent had a particular meaning because he had allegedly made a similar remark on an earlier, unspecified occasion. Assuming for present purposes that the alleged remark by the second respondent can be characterised as a threat, the third SIFC does not allege that a reason for the making of the threat was that Mr Laurent had made a complaint to the EOC. Further, there are no facts set out in the third SIFC which would permit that inference to be drawn. It is also the case, as the respondents submit, that the third SIFC does not contain any material facts which might be relied upon to establish that the second respondent intended to cause the threatened detriment. (Page 25)
87 Mr Laurent also alleges that between May and June 2008, the second respondent went to his home and demanded Mr Laurent's medical certificates, and the names of Mr Laurent's doctors, which Mr Laurent gave him. Mr Laurent alleges that the respondents spoke to Mr Laurent's doctors and intimidated them to such an extent that Mr Laurent alleges that his health and safety was compromised. Mr Laurent alleges that this caused him to suffer another injury and to exacerbate an existing injury. At para 75 to para 178 of the third SIFC, Mr Laurent also alleges that the respondents contacted his doctors without his consent to seek medical information, and intimidated another of his doctors by requesting information in relation to Mr Laurent. 88 No facts are set out in the third SIFC which might establish that the respondents intended to cause any detriment to Mr Laurent, or that this alleged conduct was engaged in because Mr Laurent had made a complaint to the EOC under the EO Act. 89 The allegations contained in para 53 to para 59 and para 175 to para 178 are misconceived and therefore so obviously untenable that they cannot possibly succeed, and so should be struck out.
'Misconduct by victimisation to assist with the modification of work place' at para 60 to para 64 90 Mr Laurent alleges that he had to use a low storage locker at the Geraldton Police Station, and that using the locker caused him to suffer back soreness. Mr Laurent alleges that he requested the use of an upper locker, but this request was refused by the second respondent although there was a spare upper locker at the time. Mr Laurent alleges that the second respondent told the administration staff at the police station not to get involved. Mr Laurent alleges that the respondent's intention (which is presumably a reference to the second respondent) was to victimise him by failing to assist Mr Laurent in the management of his back injury, so as to cause Mr Laurent to take sick leave, be retired on medical grounds, leave the Geraldton Police Station or resign from the police force. 91 The denial of a request to use an upper locker could not, in my view, constitute a disadvantage which is substantial and not trivial, so as to constitute a detriment. 92 Mr Laurent submitted that in fact the detriment was that he suffered further problems with his back, requiring him to use his sick leave, and ultimately resulting in the respondent losing confidence in him. Even if that could be described as the detriment, this allegation is untenable for (Page 26)
other reasons. The third SIFC does not allege, and does not set out any facts which might establish, that the respondents intended to cause detriment to Mr Laurent as a result of denying him the use of an upper locker. Similarly, no facts are set out which might establish that a reason for the alleged victimisation was that Mr Laurent had made a complaint to the EOC. In addition, this part of the third SIFC does not set out when the alleged refusal of the upper locker occurred. As a result, it is not possible to ascertain whether it is alleged that this conduct took place before or after Mr Laurent made a complaint to the EOC. 93 The allegations contained in para 60 to para 64 are misconceived and therefore, so obviously untenable that they cannot possibly succeed. Paragraphs 60 to para 64 should be struck out.
'Malicious investigations Hutchinson's false report', at para 65 to para 69 94 The allegations in these paragraphs of the third SIFC are, on their face, virtually incomprehensible. Mr Laurent appears to allege that some employees of the respondent other than the second respondent made a false report, although the recipient of the report and its content is not at all clear. In his oral submissions, Mr Laurent contended that a false report had been prepared by a police officer in Scarborough where Mr Laurent was working in 2006. Mr Laurent submitted that the respondent relied on this report as one of the factors for his loss of confidence in Mr Laurent, which Mr Laurent says resulted in his dismissal from the police force. 95 The respondents submit that these paragraphs do not contain any allegation that the authors of the report knew of Mr Laurent's complaint to the EOC or that they made a false report because Mr Laurent had made a complaint to the EOC. Having heard Mr Laurent's oral submissions, it does not appear that his allegation is that the report was prepared falsely in order to cause him detriment as a result of his EOC complaint. (In any event, the preparation of the report appears to have taken place well before his first complaint to the EOC.) 96 It appears, from Mr Laurent's oral submissions, that the alleged victimisation is said to be in the respondent's use of the report as a ground for his loss of confidence in Mr Laurent, which resulted in his dismissal from the police force. In his oral submissions, Mr Laurent simply advanced the assertion that this flowed from the fact that he had made a complaint to the EOC. These allegations are not set out in the third SIFC, and no facts are set out in the third SIFC which would establish that the respondent intended to cause Mr Laurent a detriment, or that there was (Page 27)
any link between the alleged conduct of the respondent and the complaint made by Mr Laurent to the EOC. 97 The allegations contained in para 65 to para 69 are without substance and, therefore, are so obviously untenable that they cannot possibly succeed. Paragraphs 65 to para 69 should be struck out.
'Health welfare respondent (1) victimisation', at para 70 to para 77 98 Mr Laurent alleges that a letter was sent by the respondent to a doctor, seeking that he review Mr Laurent's injuries and provide a medical report in relation to those injuries. Mr Laurent alleges that the factual information contained in that letter was incorrect and that the respondent's aim was 'to victimise the applicant to the point of having the applicant retired on medical grounds or having the applicant forced to resign.' 99 The respondents submit that these allegations are incomprehensible, and that it is not possible to identify any potential claim from what is written. However, assuming that I have correctly discerned what it is that Mr Laurent alleges, there are no facts set out in the third SIFC which could establish any link between the alleged provision of incorrect information in the request for a medical review and report, and Mr Laurent's complaint to the EOC under the EO Act. 100 The allegations contained in para 70 to para 77 are without substance and are so obviously untenable that they cannot possibly succeed. Paragraphs 70 to para 77 should be struck out.
'The respondent (1 and 2) failure to investigate a work related injury', allegations of negligence, corruption at para 78 to para 174, para 179 to para 211, para 237 to para 238, para 240, para 243 and also para 260 and para 262(a) to para 262(k) 101 Paragraphs 78 to para 163 are in very similar terms to para 30 to para 114 of the second SIFC. Other paragraphs in this part of the third SIFC allege that the respondents neglected to provide Mr Laurent with a safe work place by not having the Geraldton Police Station checked for possible contaminates, that the respondents did not address the cause of Mr Laurent's injury in the workplace and following the refurbishment of the air conditioning, required him to return to a workplace that was not adequately cleaned so as to prevent him from suffering further illness. Mr Laurent also alleges that the respondents failed to warn him and to deal with the cause of his illness in accordance with their occupational health and safety regulations. These allegations appear to be directed to a (Page 28)
claim of a breach of a duty of care in negligence, or a breach of occupational health and safety legislation. Neither is within the Tribunal's jurisdiction. 102 These various allegations appear to be summarised in the contention in para 260 of the third SIFC in which Mr Laurent alleges that the respondent, through its employees, agents or servants, discriminated against him on the ground of an impairment 'by failing in its duty of care to provide a safe working environment and possible breach of sections 66A, 66B(2)(a), 66B(2)(b), 66B(2)(c) and 66B(2)(d) of the Act'. 103 In para 262(a) to para 262(k), Mr Laurent duplicates the particulars of alleged discrimination in para 116 of the second SIFC, with one additional particular, namely that the respondents refused to assist in providing a safe work place. 104 The second SIFC contained allegations of a similar nature. My reasons for concluding that the second SIFC should be struck out apply equally to these paragraphs of the third SIFC. 105 In addition, para 237 to para 238, para 240 and para 243 contain allegations of corruption on the part of officers within the police force. Mr Laurent contends that the proceedings should continue so that these allegations can be tested. The Tribunal does not have jurisdiction to deal with, or to make findings in relation to, allegations of corruption. 106 Paragraphs 184 and para 185 of the third SIFC allege that the respondents engaged in discrimination and victimisation in relation to Mr Laurent. Mr Laurent alleges that the second respondent refused to assist Mr Laurent with transport to seek specialist medical assistance in Perth and that this constituted victimisation. It is also alleged that the respondent refused to process Mr Laurent's medical claim and refused to pay his costs, despite his claim being work-related. Mr Laurent alleges that this constituted treating him less favourably than other staff without such issues. From Mr Laurent's oral submissions, it appeared that these paragraphs were in fact intended to allege victimisation. Mr Laurent submitted that the denial of his entitlements and the failure to investigate his complaint constituted a detriment to him. 107 The third SIFC does not set out any facts in relation to the allegations in para 184 and para 185 which might permit an inference to be drawn that the respondent intended to cause Mr Laurent to suffer a detriment, or which might establish any link between this alleged conduct by the (Page 29)
respondent and the complaint made by Mr Laurent to the EOC under the EO Act. 108 The allegations contained in para 78 to para 174, para 179 to para 211, para 237 to para 238, para 240 and para 243 are, for these reasons, misconceived and so obviously untenable that they cannot possibly succeed. These paragraphs should be struck out.
Observations in relation to the allegations of victimisation in the third SIFC 109 Quite apart from the specific issues to which I have referred already, there are some issues common to each allegation of victimisation. 110 As I have already observed, a common feature of the allegations of victimisation in the third SIFC is that they are not accompanied by any facts which might establish any link between the alleged acts of victimisation and the fact that Mr Laurent had made a complaint to the EOC under the EO Act. The impression this creates is that the third SIFC is founded on a fundamental misconception about the nature of victimisation under s 67 of the EO Act. That misconception appears to be that because a complaint was made under the EO Act and the respondents knew of that, then any conduct by the respondents which caused Mr Laurent a detriment must necessarily have been engaged in because he made a complaint to the EOC under the EO Act. From that perspective, the allegations of victimisation in the third SIFC are misconceived. 111 Secondly, in para 219 of the third SIFC, Mr Laurent appears to allude to the reason for the respondents’ conduct, namely that Mr Laurent reported that other officers had engaged in misconduct or illegal behaviour. Paragraphs 220 to para 231 of the third SIFC set out the nature of that alleged misconduct or illegal behaviour. If that is a correct reading of the third SIFC, then in so far as it alleges victimisation, the claim is clearly misconceived because Mr Laurent would not be able to establish that a dominant or substantial reason for the conduct was that he had made a complaint to the EOC. 112 However, in his oral submissions, Mr Laurent appeared to advance an alternative view of para 219 to para 231. Mr Laurent submitted that the illegal conduct referred to in those paragraphs itself amounted to victimisation. Mr Laurent submitted that whenever he worked with other officers, they did 'stupid things' in an effort to incite him to behave inappropriately so that they could report him, or in order to discredit him or to subject him to detriment. If para 219 to para 231 are intended to constitute allegations of victimisation (and on their face, there is nothing (Page 30)
to indicate that that is so) they clearly are without substance. There is nothing to indicate any link between this conduct by other officers and any complaint made by Mr Laurent to the EOC under the EO Act, nor are any material facts pleaded which might establish that the officers in question intended to cause Mr Laurent a detriment, or that Mr Laurent suffered any detriment as a result of the conduct. 113 Finally, para 261 and para 262(l) to para 262(v) appear to summarise the various allegations of victimisation which are set out elsewhere in the third SIFC. Paragraph 261 is a general allegation that 'the respondent, through its employees, agents or servants, victimised against the applicant for subjecting to unfair treatment and fictitious allegations and other detriments listed' (sic). Paragraphs 262(l) to para 262(v) then set out a number of allegations of victimisation, the majority of which appear to reflect earlier paragraphs in the third SIFC. These particulars serve to demonstrate that the allegations of victimisation made by Mr Laurent do not constitute allegations of victimisation contrary to s 67 of the EO Act. By way of example, para 262(r) alleges that the respondents subjected Mr Laurent to 'corruption and cohesion', while para 262(t) and para 262(u) allege that the respondents subjected Mr Laurent to a 'dangerous situation' and to 'torment'. These allegations do not relate to the matters which must be established to make out a claim of victimisation under s 67 of the EO Act.
Remaining paragraphs in the third SIFC 114 The remaining paragraphs in the third SIFC, generally speaking, set out the issues Mr Laurent contends arise in relation to the allegations set out in the third SIFC, and set out his contentions that he was discriminated against, or that he was the subject of victimisation. These paragraphs do not add anything substantive to the allegations which I have considered above, nor do they overcome the deficiencies I have identified above.
Conclusion in relation to the third SIFC 115 The question in this application is whether the third SIFC is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which cannot succeed. I have reached the view that that is the case. I therefore strike out that part of the proceeding which is set out in the third SIFC in its entirety. 116 In a case where an applicant is selfrepresented, in a Tribunal where the proceedings are not conducted with formal pleadings, and given that the concepts of discrimination and victimisation under the EO Act involve (Page 31)
a degree of complexity, there may be some temptation to simply let an applicant have their day in court: see Ambrus at [44] (Deputy President Judge Chaney). Mr Laurent appears genuine in his desire to ventilate matters that he sees as reflecting adversely on the integrity of the police service. However, it seems likely that the respondents would have suffered substantial prejudice had I been inclined to permit Mr Laurent to have his day in court. The allegations raised in the proceeding were wideranging, and pertained to many aspects of Mr Laurent’s work over a period of some months. It is likely that the respondents would be put to considerable expense to respond to those allegations. It would be unfair to the respondents to permit Mr Laurent to continue with the proceeding in view of my conclusion that he has no prospect of success in the proceeding. 117 As I would strike out the entirety of the first SIFC, second SIFC and third SIFC, the proceeding itself should be dismissed. Accordingly, the proceeding will be dismissed pursuant to s 47(1)(a) of the SAT Act because it is misconceived or lacking in substance. 118 I would emphasise that the dismissal of the proceeding flows entirely from what is required to establish a claim of discrimination on the ground of impairment, and a claim of victimisation, under the EO Act. Nothing in these reasons deals with the merit of the allegations made by Mr Laurent in any general sense or whether the allegations made by Mr Laurent might support other causes of action. The dismissal of the proceeding simply reflects the fact that because the allegations Mr Laurent pursued in the Tribunal under the EO Act are misconceived and lacking in substance, the proceeding should not be permitted to continue.
Orders
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