| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : LI and EDITH COWAN UNIVERSITY [2013] WASAT 113 MEMBER : MS D TAYLOR (SENIOR MEMBER) HEARD : 13 FEBRUARY 2013 AND 10 APRIL 2013 DELIVERED : 10 JULY 2013 FILE NO/S : EOA 2 of 2013 BETWEEN : DONGGUANG LI Applicant
AND
EDITH COWAN UNIVERSITY
Respondent
Catchwords: Equal opportunity Discrimination Victimisation Commissioner for Equal Opportunity dismisses complaint as lacking in substance Complaint referred to Tribunal Issue estoppel Complaint struck out Legislation: Equal Opportunity Act 1984 (WA), s 67, s 89, s 90
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1), s 47(2)
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Result: Complaint of unlawful discrimination on the ground of victimisation struck out
Summary of Tribunal's decision: The respondent applied to strike out a claim for unlawful discrimination on the ground of victimisation that had been dismissed by the Commissioner for Equal Opportunity as lacking in substance and referred to the Tribunal at the request of the applicant.
The Tribunal granted the application because the applicant was unable to adduce any evidence capable of founding the complaint.
Category: B
Representation: Counsel:
Applicant : In person
Respondent : Mr H Jackson
Solicitors:
Applicant : N/A
Respondent : WHL Legal Pty Ltd
Case(s) referred to in decision(s):
Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
Laurent and Commissioner of Police [2009] WASAT 254
Li and Edith Cowan University [2012] WASAT 72
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REASONS FOR DECISION OF THE TRIBUNAL:
Background to the claim 1 This application concerns Dr Dongguang Li (applicant), a scientist with particular interests in the broad fields of optical engineering, ballistics, image processing, global optimisation, micro-array data mining and firearm identification. He was an Associate Professor of Edith Cowan University (ECU) until 2011 when he was dismissed in circumstances that have been the subject of proceedings in this jurisdiction previously (Li and Edith Cowan University [2012] WASAT 72), and also in the Supreme Court of Western Australia and elsewhere. The dismissal occurred at a time when the applicant was receiving treatment for his mental health problems. 2 In this proceeding the applicant complains that in February 2012 he was banned from the ECU campus in Mount Lawley because he had made complaints of discrimination on a number of grounds against the respondent to the Commissioner for Equal Opportunity (Commissioner) in September 2011. He believes the respondent's action (in banning him from its premises) constitutes victimisation because it occurred in the context of a preexisting complaint to the Commissioner, and because he wished to be able to return to the campus from time to time for reasons he considered to be legitimate. 3 The respondent is a provider of tertiary education with campuses in the Perth metropolitan area and elsewhere in the State.
Complaint to the Commissioner 4 On 3 December 2012 the applicant lodged a complaint with the Commissioner against the respondent, alleging that he had been unlawfully discriminated against on the ground of victimisation. He complained of events dating from February 2012. The application to the Commissioner sets out the complaint as follows: Due to I lodged the complaint with the Equal Opportunity Commission and the case was heard by SAT and Supreme Court of WA, Edith Cowan Uni. has issued an injunction of not allowing me to enter any campuses of the Edith Cowan University by John FinlayJones and Raymond Bernstein both in writing and orally. I was told through John FinlayJones's Executive Officer Ms Ann Johnsen that if I enter any University campuses I will be dealt with by security officers and reported to police and may be arrested and charged. … (Page 4)
I was banned to enter university's campuses due to I filed an complaint against the university, which constitutes Victimisation (for complaining about discrimination). 5 In support of his complaint, the applicant provided the Commissioner with a copy of an email sent to him on 21 February 2012 by the respondent's Director of Human Resources, Mr Raymond Bernstein, that reads as follows: Tue, Feb 21, 2012 at 11:21PM
To: '[email protected]'[email protected]
Cc: Donna CUTHBERT ,[email protected]> Dear Dr Li, On behalf of the Vice-Chancellor I am authorised to provide to you with the following response to your handwritten note from 16 February 2012, coinciding with your visit on that date to the University's Joondalup campus to speak to the Vice-Chancellor, and my subsequent request for you to leave the premises: The matter you seek to raise has been subject to legal proceedings and was dismissed by the Court on 19 December 2011. I confirm the University's position that it is satisfied all entitlements owing to you have been appropriately disbursed, and no officer of the University will enter into further discussions with you on this, or any other related matter. All correspondence from you and/or your representative to the University is to be delivered to me formally via post or email and not in person. I reiterate our previous requests that you do not enter the University's campuses or personally contact University officers. Regards Raymond Bernstein … 6 On 28 December 2012 the Commissioner dismissed the complaint as lacking in substance under s 89 of the Equal Opportunity Act 1984 (WA) (EO Act). She wrote to the applicant and said the following: The reasons for dismissing your complaint are as follows: You provided an outline of your earlier EOC complaint against ECU, which I dismissed, and which you subsequently referred to the State Administrative Tribunal under S90 of the Act. You have not provided additional information to substantiate this complaint as (Page 5)
requested, and because of this you have not established victimisation under the Act. 7 The Commissioner advised the applicant that if he was dissatisfied with her decision to dismiss his complaint he could seek its referral to the State Administrative Tribunal.
Referral by the Commissioner 8 On 3 January 2013 the Commissioner referred the complaint to the Tribunal under s 90 of the EO Act in response to the applicant's request that it be so referred.
The Tribunal proceeding 9 On 15 January 2013 at the first hearing for directions in the current proceeding, the respondent applied to have the matter struck out pursuant to the provisions of s 47(1) and s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). That application was listed for hearing on 13 February 2013 and directions were given requiring the respondent to provide the applicant with a written submission in support of the application to strike out the proceeding, and affording the applicant an opportunity to provide a written response. 10 The applicant represented himself throughout the proceeding. The respondent was legally represented. 11 Following the hearing, the respondent wrote to the applicant seeking his agreement to move the hearing date to a later date more convenient to its counsel. In view of the applicant's disinclination to accede to the request and preference for the hearing to take place on 13 February 2013, the respondent's formal request to vacate the hearing and relist it at a later date was refused on 29 January 2013 . 12 On 31 January 2013 the respondent filed its written submissions in support of its application to strike out the proceeding. At paragraph 29 the respondent states: Taken at its highest, the complaint is lacking in substance, as it: a) essentially traverses the same facts that were previously before the EOC and SAT in SAT Application EOA 6 of 2012 and were dismissed: Ambrus and Laurent; and/or b) there is nothing to indicate that the previous EOC complaint was a reason for, never mind the dominant or substantial reason, for the (Page 6)
Respondent to request the Applicant not enter the Respondent's campus. At paragraphs 30 32, the respondent says the following: 30 As set out in the Deputy President's Reasons for Decision, the circumstances alleged in SAT application EOA 6 of 2012 did not give rise to a findings [sic] of discrimination on the grounds of impairment under s66A(3), victimisation under s67 EO Act, or any other breach under the EO Act. 31 The Applicant has already had the opportunity to air the grievances that are the subject of this proceeding in the hearing in SAT Application EOA 6 of 2012. The Respondent will suffer considerable prejudice (i.e. time and expense) in undertaking further interlocutory steps/appearing at the hearing in circumstances where it has already successfully defended those allegations. If the Applicant is dissatisfied with the SAT's decision in EOA 6 of 2012, a right of appeal exists under s105 of the SAT Act (which he has, in fact, exercised). 32 The Applicant has provided no additional evidence to substantiate the subject matter of the previous Complaint. The respondent submits, in essence, at paragraph 34 that: The complaint is misconceived and/or lacking in substance as the facts disclosed by the Applicant are incapable of supporting a breach under s67. There is no evidence that the Applicant's previous complaints to the EOC/SAT were the substantial or dominant reason for excluding him from the Respondent's campuses, as required by the s67 of the EO Act: Williams. The direction that the Applicant not enter/remain on campus, or communicate with university staff, was given in the context that the Applicant was subject to a suspension, investigation and the eventual termination of his employment for misconduct. The conduct complained of by the Applicant in this proceeding is alleged to have commenced from 16 February 2012 which is after his employment with the Respondent had been terminated. There is no evidence that the complaints of discrimination to the EOC/SAT were the substantial, dominant or in fact any reason for what appears to be a lawful direction. 13 In addition, the respondent submits at paragraph 35 that the applicant has adduced no evidence that the facts disclosed give rise to detriment having been caused to the applicant, as required by s 67 of the EO Act. 14 In essence, the respondent advanced two main arguments: firstly, that the applicant had failed to provide a factual foundation for his complaint and, secondly, the facts relied upon had already been (Page 7)
adjudicated upon by the Tribunal in the previous proceeding (and were the subject of an appeal to the Supreme Court). 15 On 11 February 2013 the applicant filed his response to the application. He opposed the application and sought the following relief: 16 The applicant maintained that his complaint was well founded and summarised his position as follows: 17 He expanded his submissions in a detailed written response. At paragraph 15 he refers to the previous proceeding and says: On 12 September 2011 the applicant filed a complaint to the Equal Opportunity Commission (EOC) for complaining ECU's impairment discrimination against him based on four incidents. 18 At paragraph 16 he addresses the substance of his current complaint and he asserts: On 16 February 2012 Deputy Vicechancellor John FinlayJones announced to the applicant through his executive officer that the applicant was not allowed to enter any of ECU's campuses because he has complained against John FinlayJones to [the] Equal Opportunity Commission.
The hearing on 13 February 2013 19 The respondent's oral submissions echoed its written submissions. 20 The applicant's inability to demonstrate a fundamental requirement of s 67 of the EO Act, that he had been subjected to some form of detriment because he had made a complaint to the Commissioner was emphasised. The respondent pointed to the fact that by February 2012, the applicant was no longer employed by the respondent and so, as a result, the privileges to which he had previously been entitled (Page 8)
(that included open access to the campus and its facilities) were no longer his to enjoy. 21 The applicant submitted in response that he was in the process of enrolling as a student at ECU and produced a document supportive of that bald assertion. Moreover, he indicated that he had a CD recording of the exchange that took place at the campus on 16 February 2012 when he had been asked to leave the premises. He sought an opportunity to provide the Tribunal with a copy of this recording and asserted that it would prove that there was a clear nexus between his complaint to the Commissioner in 2011 and the decision to exclude him from the campus. 22 The applicant struggled to maintain his composure at times during the hearing and indicated that he was receiving treatment for his health problems on an ongoing basis. 23 Counsel for the respondent conceded that the applicant should have the opportunity to adduce the additional information upon which he sought to rely and to that end the hearing was adjourned to enable the applicant to provide the Tribunal and the respondent with a copy of the recording that the applicant asserted went to the heart of his claim.
The hearing on 10 April 2013 24 The hearing resumed on 10 April 2013. During the intervening period, the applicant produced copies of the CD containing the video recording of the incident on 16 February 2012 that he relied upon as proving that he had been the victim of discrimination. This CD shows a film that is 6 minutes and 28 seconds in length. It appears to be a recording made discretely in a reception area. The applicant says that it was made by his young daughter without his knowledge, in the reception area of the administration offices at ECU on 16 February 2012. 25 By way of response, the respondent filed two affidavits from members of its staff. 26 Anyone viewing the film will see the applicant sitting at a table in the foyer writing a note. He talks quietly to a child seated to his left. There appears to be information about the university on the table that includes a brochure advertising WAAPA. The applicant can be seen getting up from the table and approaching a counter. He speaks to a woman wearing a black dress. This is Ms Ann Johnsen. It is not possible to hear the conversation that passes between them in its entirety. It is (Page 9)
possible to tell that the conversation is brief and cordial and includes the applicant being told that his note will be passed on to Mr Bernstein. 27 A man with a beard (Mr Raymond Bernstein) joins the conversation that appears to be short and to the point. He asks the applicant to 'say goodbye' and to leave the campus. There is no audible reference made by anyone to an existing complaint of discrimination having been made to the Commissioner. 28 The applicant continued his oral submissions when the hearing resumed. He maintained that on 16 February 2012 he was told to leave the campus and not to return. He submitted that the reason he was told to leave and not come back was because he had made the prior complaint to the Commissioner. In stark contrast to his position at the hearing on 13 February 2013, he no longer maintained that the film taken on that day that he had produced in the meantime contained any spoken words uttered by anyone that linked his complaint to the request for him to leave the premises. 29 Instead, the applicant submitted that the film proved a number of things that included the identities of the persons present during the incident. These were not in dispute. He also said that he had given his 11yearold daughter his mobile telephone for 'gaming' and that he was not aware that she had started filming anyone. He said that the film proved that Ms Johnsen was rude to him. He also said that he did not expect to be treated in this way and that as a result of the conduct of the staff at ECU he had suffered psychological damage. 30 In addition, the applicant explained that he had good reasons now for needing permission to enter the campus. He wished to know if he could enrol as a student, escort his daughter to and from a maths class held there and attend social events in the grounds to which he and his family were invited by former colleagues. 31 He was very upset that documents from the respondent had been served at his home one evening and explained with emotion and in some distress how the proceedings generally had caused him huge damage, both physically and psychologically. 32 The respondent submitted that the applicant's position was untenable, as the film upon which his case was now based had failed to live up to its advance publicity. (Page 10)
The alleged grounds of discrimination 33 The applicant's complaint arises, if at all, under s 67 of the EO Act that provides: (Page 11)
34 According to the applicant, the respondent's decision to deny him access to its grounds and facilities amounts to a detriment. However, to succeed in establishing that this detriment arises as a result of discrimination on the ground of victimisation, the applicant must show that he has been subjected to the detriment because he made a complaint to the Commissioner under the EO Act. To that end, he must establish that there is a causal link between his complaint to the Commissioner in 2011 and the detrimental treatment about which he complains.
The relevant legal principles 35 The respondent accepts that where an application to strike out the proceeding is made at an interlocutory stage, the Tribunal should assume that all of the factual assertions made by the applicant will be made out and to consider in that light whether the proceeding is misconceived or lacking in substance: see Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 (Ambrus) at [14]; also Laurent and Commissioner of Police [2009] WASAT 254 (Laurent). Deputy President Judge Chaney, as he then was, said the following in Ambrus, at [8] when discussing the principle to be applied when considering an application to strike out a proceeding: … 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. … 36 The term 'misconceived' connotes a misunderstanding of legal principle, while the term 'lacking in substance' connotes an untenable proposition of fact or law. 37 In considering the Tribunal's power under s 47 of the State Administrative Tribunal Act 2004 (WA) in Laurent, Deputy President Judge Pritchard, as she then was, said the following, at[18]: The power in s 47 of the [State Administrative Tribunal Act 2004 (WA)] 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 [State Administrative Tribunal Act 2004 (WA)]. 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 (Page 12)
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.
Conclusion 38 I accept the applicant's submission that his current complaint of discrimination on the ground of victimisation is based on events different in time to those about which he complained in the previous proceeding. 39 I reject the respondent's submission that the claim for victimisation should be struck out as it has previously been the subject of adjudication by the President. A reading of the President's decision in Li and Edith Cowan University [2012] WASAT 72 at [52] makes it clear that the Tribunals' review jurisdiction to determine a complaint of victimisation was not engaged in the terms of the referral made by the Commissioner to the Tribunal in January 2012. 40 For both these reasons, it seems to me that the principles of issue estoppel and res judicata do not arise in this proceeding. 41 By the conclusion of the applicant's submissions on 10 April 2013 it was apparent that he could no longer maintain that a conversation had taken place in the foyer of an administration building at ECU on 16 February 2012 that linked the request that he leave the premises and not return with his previous complaint of unlawful discrimination to the Commissioner. This was because, central to the applicant's case, was reliance upon a film that he believed would prove his point. Unfortunately for the applicant, the conversation he remembers is not one recorded on film and adduced as evidence in support of his claim in this proceeding. The fundamental problem for the applicant is that his recollection of the meeting that took place in the foyer on 16 February 2012 does not accord with the evidence that he provided by way of a filmed recording of the incident. Had the applicant's recollection of events been supported by the film that he produced and contained any reference to his previous complaint then there may have been a foundation for his claim. 42 I accept that the applicant harbours genuine and profound feelings of misery and humiliation as a result of the loss of his employment in 2011. I also accept that his sense of grievance about a number of decisions made by the respondent in connection with the end of his employment continue to cause him great anguish. However, his belief that he has been (Page 13)
discriminated against in the circumstances that he describes in this proceeding does not make it so. His allegations lack substance because there is no evidence from any source that is capable of substantiating his claim.
Order 43 1. The proceeding is struck out as lacking in substance. |