Le Raye v Department of Further Education, Employment, Science and Technology
[2013] SAEOT 7
•14 March 2013
EQUAL OPPORTUNITY TRIBUNAL
(Civil)
LE RAYE v DEPARTMENT OF FURTHER EDUCATION, EMPLOYMENT, SCIENCE AND TECHNOLOGY
[2013] SAEOT 7
Judgment of His Honour Judge Costello
14 March 2013
ADMINISTRATIVE LAW
The Complainant alleged acts of victimisation under the Whistleblowers Protection Act 1993 in 2008-2009 and again in 2011 - consideration of Tribunal's power to determine whether Complaint within time - Tribunal empowered to enquire into and determine whether Complaint within time - acts of alleged victimisation in 2008-2009 out of time - consideration as to whether acts in 2011 constituted part of a "series of acts" so as to include the acts occurring in 2008-2009 - acts in 2011 lacking in substance and not constituting victimisation - acts not part of a series - Complaint dismissed.
Equal Opportunity Act 1984 (SA); Whistleblowers Protection Act 1993 (SA), referred to.
Francis v State of South Australia [2013] SAEOT 2; King v SA Psychological Board [1998] SASC S6621; Waters v Kuga Pty Ltd & Ors [1997] SAEOT 28.5.1997; Patrick v State of South Australia [2007] SAEOT 2, considered.
LE RAYE v DEPARTMENT OF FURTHER EDUCATION, EMPLOYMENT, SCIENCE AND TECHNOLOGY
[2013] SAEOT 7Introduction
In these proceedings the respondent has applied for an order dismissing the Complaint. It makes its application on two bases, namely that:
·With respect to certain of the allegations it is out of time;[1] and
·With respect to other allegations, although it is arguably within time, it is lacking in substance.
[1] S 93 (2) of the Equal Opportunity Act 1984 ("the EO Act") requires a Complaint to be lodged within 12 months of the date upon which a contravention of the Act is alleged to have been committed.
An order dismissing proceedings may be made at any stage of the proceedings.[2] For the reasons which follow I am satisfied that the complaint is out of time and lacking in substance.
[2] S 96(2)(b).
Background to the Complaint
In his Complaint to the Equal Opportunity Commissioner, the complainant asserted that he had been subjected to acts of victimisation within the meaning of the Whistleblowers Protection Act 1993 (“the WPA”).[3]
[3] S 9(1) of the WPA permits an act of victimisation under the Act to be dealt with as if it were an act of victimisation under the EO Act.
The WPA
Section 5 relevantly provides:
(1) A person who makes an appropriate disclosure of public interest information incurs no civil or criminal liability by doing so.
(4)… a disclosure of public interest information is made to an appropriate authority if it is made …
(h) where the information relates to a matter falling within the sphere of responsibility of an instrumentality, agency, department or administrative unit of government—to a responsible officer of that instrumentality agency, department or administrative unit;
S 4(1) relevantly provides:
public interest information means information that tends to show—
(a) that an adult person (whether or not a public officer), body corporate or government agency is or has been involved (either before or after the commencement of this Act)—
(i) in an illegal activity; or
(ii) in an irregular and unauthorised use of public money; or
(iii) in substantial mismanagement of public resources; or
(iv) in conduct that causes a substantial risk to public health or safety, or to the environment; or
(b) that a public officer is guilty of maladministration in or in relation to the performance
S 9 relevantly provides:
9—Victimisation
(1) A person who causes detriment to another on the ground, or substantially on the ground, that the other person or a third person has made or intends to make an appropriate disclosure of public interest information commits an act of victimisation.
…
(4) In this section—
detriment includes—
(a) injury, damage or loss; or
(b) intimidation or harassment; or
(c) discrimination, disadvantage or adverse treatment in relation to a person's
employment; or
(d) threats of reprisal
The complainant asserts that between March 2008 and August 2009 he was subjected to acts of victimisation as a result of him notifying his superiors in the Department of Further Education, Employment, Science and Technology (DFEEST) of practices within the payroll section which he regarded as inappropriate.[4] He also alleges further acts of victimisation in 2011 arising out of a series of emails between himself and Mr Murt, a senior officer in DFEEST.
[4] In his submissions (both oral and written) the Complainant described these practices as "corrupt". It is unnecessary on this Application for me to make any findings as to the propriety or otherwise of these practices and I expressly refrain from so doing.
As I have already observed, an act of victimisation under the WPA may be dealt with as if it were an act of victimisation under the EO Act. To that end the complainant lodged his Complaint under the EO Act.
For the purposes of this application, EO Act relevantly provides:
93—Making of complaints
(1) A complaint alleging that a person has acted in contravention of this Act may be made—
(a) by a person aggrieved by the act;
…
(1c) A complaint—
(a) must be in writing and set out the details of the alleged contravention; and
(b) must be lodged with the Commissioner.
(2) A complaint must be lodged—
(a) if the alleged contravention is constituted of a series of acts—within 12 months of the last of those acts;
(b) in any other case—within 12 months of the date on which the contravention is alleged to have been committed.
(2a) The Commissioner may, on application, extend the time for lodging a complaint, even if the time for lodging the complaint has expired, if the Commissioner is satisfied—
(a) that there is good reason why the complaint was not made within the stipulated time period; and
(b) that in all the circumstances it is just and equitable to do so.
(2b) If the Commissioner decides to refuse an application to extend the time for lodging a complaint, the Commissioner must give the applicant notice in writing of the decision and of the applicant's right to have the decision reviewed.
…
95B—Referral of complaints to Tribunal
If, in respect of a complaint, the Commissioner—
(a) is of the opinion that the matter cannot be resolved by conciliation; or
(b) has attempted to resolve the matter by conciliation but has not been successful in that attempt; or
(c) has declined to recognise the complaint as one on which action should be taken and the complainant has, within 3 months of being notified of the Commissioner's decision, by notice in writing, required the Commissioner to refer the complaint to the Tribunal, the Commissioner must refer the matter to the Tribunal for hearing and determination.
96—Power of Tribunal to make certain orders
(1) The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make one or more of the following orders:
(a) subject to this section, an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to a person for loss or damage arising from the contravention;
(b) an order requiring the respondent to refrain from further contravention of the Act;
(c) an order requiring the respondent or any other party to the proceedings to perform specified acts with a view to redressing loss or damage arising from the contravention or remedying a discriminatory or unlawful act.
(2) The Tribunal may, at any stage of proceedings under this Part—
(a) make an interim order to prevent prejudice to a person affected by the proceedings;
(b) make an order dismissing the proceedings.
Division 2—Review and appeal
96B—Review of refusal to extend time
(1) If the Commissioner has refused an application for an extension of time within which to lodge a complaint, the applicant may apply to the Tribunal for a review of the decision.
(2) An application for review must be made within 1 month after notification of the decision.
(3) The Tribunal may confirm the decision of the Commissioner or substitute its own decision.
Time Limit
It will be apparent from the background to this matter that, at least in relation to some of the alleged acts, they are “on their face” out of time. The Tribunal’s power to consider and determine whether a Complaint is within time has been the subject of consideration by a number of divisions of the Tribunal. Most recently in Francis v State of South Australia[5] the Tribunal had this to say:[6]
[5] [2013] SAEOT 2.
[6] [2013] SAEOT 2 at para 13.
Immediately prior to 2 October 2009, the Act provided, in s 93(2):
A complaint must be lodged –
(a) when the alleged contravention is constituted of a series of acts – within six months of the last of those acts;
(b) in any other case – within six months of the date on which the contravention is alleged to have been committed.
…
Immediately prior to 2 October 2009, there was no provision in the Act for the granting of an extension of time within which a complaint could be brought.
Mr Stevens argued that the provisions of the Act which were in force prior to 2 October 2009 apply to alleged contraventions of the Act which occurred prior to that time. Mr Stevens pointed out that there are no transitional provisions in the Act. There is no reason to believe that the amendments which came into operation on 2 October 2009 were intended to have retrospective effect.
What, then, is the effect of the Commissioner referring a complaint which is out of time, and which relates to events which occurred prior to 2 October 2009, to the Tribunal? Mr Stevens argued that referral to the Tribunal was a proper course for the Commissioner to take, given that the Tribunal is in a better position than the Commissioner to ascertain as a matter of fact whether a complaint is out of time. Mr Stevens acknowledged that this argument may be contrary to the effect of some prior decisions of the Tribunal. Mr Stevens argued that, once a complaint, to which the now superseded s 93(2) applies, has been referred to the Tribunal, the Tribunal not only has the power to consider whether the complaint was lodged within time, but has a duty to consider that question. Mr Stevens argued that the Act created rights within certain constraints. The right to bring a complaint before the Commissioner (which is a necessary pre-requisite to the complaint being referred to the Tribunal, there being no provision for a complaint to come directly to the Tribunal from the complainant) is constrained by the six month time limit. Mr Stevens argued that a purported complaint outside of that time limit is simply not a complaint under the Act, and is not something that the Tribunal has any jurisdiction to consider. The question of whether there exists a complaint under the Act is a jurisdictional fact which the Tribunal is obliged to determine.
We accept Mr Stevens’ argument that the Tribunal has the power to consider and determine whether a complaint was made within time, whether the Commissioner had jurisdiction under the Act to deal with it, and whether the Tribunal has jurisdiction under the Act to deal with it, as a question of jurisdictional fact. The decision of the Tribunal in Somasundaram v State of South Australia that the Tribunal has no jurisdiction to consider whether a complaint was out of time is incorrect.
I respectfully agree with and adopt these remarks.
Turning now to the current application, the respondent relies on two bases in support of its application to dismiss, namely that the complaint is out of time and secondly that it is lacking in substance.
The Complaint Out of Time
The Complaint was lodged on 7 December 2011. In order for it to be “within time” the alleged contraventions of the Act (in this case the alleged acts of victimisation) must have occurred on or after 7 December 2010 or if the alleged contraventions were constituted by a series of acts the last of these acts must have occurred on or after 7 December 2010.[7]
[7] S 93(2) of the EOT.
The 2008-2009 Acts
In his Complaint the complainant summarised the acts of victimisation. The alleged acts appear to be:
·his treatment by officers in DFEEST, resulting from his raising concerns about being overpaid and
·decisions by his superiors not to appoint him to managerial and payroll positions for which he was qualified, these decisions again said to be stemming from his raising the issue of overpayments by the Payroll Section.
He alleges that these acts led to and culminated in him resigning from his employment in August 2009. The last act of victimisation connected to his employment is alleged to have occurred at the time of his resignation.
In relation to these acts the Commissioner declined to exercise her discretion to extend the time. The Act provides a complainant with a right to seek a review of a decision by the Commissioner refusing to extend the time.[8] An application seeking such a review must be instituted within 1 month after notification of the decision. The Commissioner conveyed her decision, refusing to extend the time, to the complainant by letter dated 29 February 2012. In that letter she expressly referred to the time limit of one month.[9]
[8] S 96B.
[9] Exhibit R1 - Book of Documents p 13.
No application to review the Commissioner’s decision was made by 29 March or at all. Accordingly the Complaint in so far as it seeks to rely on alleged acts of victimisation occurring in 2008 and 2009 is out of time.
The 2011 Acts
Lacking in substance
The complainant also asserts in a subsequent letter to the Commissioner that some 2½ years later (in late 2011) there were further acts of victimisation, in a series of emails between himself and Mr Robin Murt, a senior officer in DFEEST, wherein the complainant sought to raise, again, his alleged victimisation in 2008 and 2009 and to invoke the provisions of the WPA.
When viewed in the most sympathetic light, from the complainant’s point of view, the emails from Mr Murt reveal actions which were not only appropriate but positively favourable to the complainant in that he acknowledged his complaints and referred them to an authorised officer for investigation under the WPA.
Two things flow from my categorisation of these emails as appropriate and helpful actions by Mr Murt. First, they could not possibly constitute acts of victimisation under the WPA. In order for these emails to constitute victimisation under the WPA the complainant would need to establish, inter alia, that he had suffered a detriment, within the meaning of S 9(4) of the WPA, as a result of the actions of Mr Murt. I note that, in not dissimilar circumstances, the Supreme Court declined to find that a complainant had suffered a relevant “detriment” where it was alleged that there had been a failure to properly investigate a disclosure of information under the WPA.[10]
[10] King v SA Psychological Board [1998] SASC S6621; also see Waters v Kuga Pty Ltd & Ors [1997] SAEOT 28.5. 1997.
In my view there is not the slightest possibility of there being a detriment in circumstances where nothing more has occurred than the referral of a Complaint to an authorised officer for the purposes of investigation. In short, the Complaint, in this respect, although within time, is wholly lacking in substance.
Part of a Series of Acts
Secondly, as appropriate and reasonable actions, they could not form part of a series of acts of victimisation.
Furthermore and in any event, the acts are temporally remote and factually different from the acts alleged in 2008 and 2009. Each of these factors has been recognised as being relevant to the determination of whether acts can constitute a “series”.[11] If the acts do not constitute part of a series it follows that the alleged acts of victimisation occurring prior to December 2010 remain out time.
[11] Patrick v State of South Australia [2007] SAEOT 2.
Conclusion
The Complaint with respect to acts of alleged victimisation in 2008-2009 is “on its face” out of time. The 2011 acts do not form part of a series of acts of victimisation such as would permit the Complainant to rely upon acts (in 2008-2009) which are otherwise out of time. The Complaint insofar as it relies upon acts (in 2011) within time is lacking in substance.
The Complaint is therefore dismissed.
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