Linnell v Seachem Australia Pty Ltd

[2010] NSWADT 111

CITATION:	Linnell v Seachem Australia Pty Ltd [2010] NSWADT 111
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Patricia Linnell RESPONDENT Seachem Australia Pty Ltd
FILE NUMBER:	091114
HEARING DATES:	26 March 2010
DATE OF DECISION:	12 May 2010
BEFORE:	Scahill A - Judicial Member
CATCHWORDS:	Dismissal of complaint –sexual harassment– victimisation
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Carter v Linuki Pty Ltd [2005] NSWADTAP 40 Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 Dee v Commissioner of Police & Anor (2003) NSW ADT 217 Ehl v Department of Education and Training and NSW Teachers Federation (1999) NSW ADT 102 Fricke v Whyburn [2003] NSW ADT 10 Langley v Niland [1981] 2 NSWLR 104 Razaghi v Director-General, NSW Department of Health & Anor [2001] NSWADT 4 Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT at 6 Sullivan v State of NSW (NSW Police Force) [2009] NSWADT 2 Treddinick-v- Wentworth Area Health Service [2000] NSWADT 172
REPRESENTATION:	APPLICANT In person RESPONDENT Mr. Woods of Counsel
ORDERS:	The Application under section 102 of the Anti-Discrimination Act 1977 is dismissed. The proceedings are to be set down for a further case conference on 16 June 2010 at 12:30pm for the purpose of : Setting a timetable for further filing Dealing with the issue of whether Ms Rebecca Humphries should be joined as a Respondent; and Fixing a time and venue for the hearing of the complaint.

REASONS FOR DECISION

Introduction

1 In these proceedings, the Applicant, Ms Patricia Linnell, seeks remedies under the Anti-Discrimination Act 1977 (‘the AD Act’) for harm caused to her by the alleged sexual harassment by a work colleague and subsequent victimisation including termination of her employment while employed by Seachem Australia Pty Ltd. She claims that the Respondent is vicariously liable for these actions.

2 On 18 February 2009, Ms Linnell lodged a complaint with the Anti-Discrimination Board (‘the Board’). By a letter dated 1 October 2009, following investigation of the complaint by the Board, the President of the Board (‘the President’) referred it to the Tribunal. The accompanying Report by the President included the Board’s summary of the issues raised by the complaint and copies of the Board’s correspondence with Ms Linnell (including her initial letter of complaint) and with the Respondent.

3 The present decision relates to an application by the Respondent, supported by submissions dated 10 March 2010, for an order under section 102 of the AD Act striking out all or part of Ms Linnell’s complaint. The grounds put forward were that the complaint is

“Frivolous, vexatious, misconceived or lacking in substance
Or
The conduct alleged, if proven, would not disclose the contravention of a provision of the Act and that no further action should be taken with respect to the complaint.”

Legal Principles with respect to an Application Pursuant to Section 102

4 Section 102 gives the Tribunal the power to dismiss a complaint or part of a complaint on the same grounds given to the President under section 92 (1) (a) (i) or (ii) or (b). These are where the President is satisfied that (1)(a)(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, (b) or that for any other reason no further action should be taken in respect of the complaint, or part of the complaint.

5 In deciding whether the Tribunal should exercise the power conferred by section 102, consideration must be given to whether the facts alleged by the complainant do or might amount to a contravention of one or more of the provisions of the Act.

6 The Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action: Sullivan v State of NSW (NSW Police Force) [2009] NSWADT 2 at [15] (and the cases cited in that paragraph).

7 The need for caution is even more apparent in cases where a summary dismissal application is made prior to the adducing of the Applicant’s evidence at the substantive hearing: Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 at [34]).

8 When hearing an application for summary dismissal, the applicant’s case is taken at its highest to enable the Tribunal to determine whether the evidence is capable of amounting to a contravention of the Act: (see e.g. Razaghi v Director-General, NSW Department of Health & Anor [2001] NSWADT 4 at [10]).

“Misconceived”, “lacking in substance”

9 A complaint is “misconceived” or “lacking in substance” if it can be demonstrated that there exists no factual basis for the allegations, or that the allegations lack merit: Langley v Niland & Anor [1981] 2 NSWLR at 107; Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT at 6; Tredinnick v Wentworth Area Health Service[2000] NSWADT 172

10 Generally, it is far more appropriate that the merits of a Complainant's case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis. This is particularly true in the case of a self-represented Complainant: Ehl v Department of Education and Training and NSW Teachers Federation (1999) NSW ADT 102 at para 14. See also Dee v Commissioner of Police & Anor (2003) NSW ADT 217 at para 24.

11 In circumstances where sexual harassment is alleged between fellow employees, in breach of s 22B (2), there are four elements which must satisfy the definition of sexual harassment in s 22A before a complaint can be substantiated. Those elements are:

a) one person has engaged in unwelcome conduct;
b) that conduct is a sexual advance, a request for sexual favours or other conduct of a sexual nature;
c) the conduct is "in relation to" another person; and

d) a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by that conduct.

12 The Complainant wrote to the Anti Discrimination Board in a letter dated 17th February 2009. In short the complaint alleges that the Complainant suffered unprovoked sexual abuse whilst in the workplace. The Complainant said that on 15 January 2009 David Lewis had approached Rebecca Humphries in the office requesting a receipt of purchase for some scales that required to be returned by Patricia Linnell. When Rebecca Humphries had responded to David Lewis he considered Rebecca’s tone of voice to be aggressive and he said to her

“What is your problem?”
Rebecca Humphries had responded ‘very publicly’ to David Lewis
“Trish can go and suck someone’s dick.”
The Complainant alleged that David Lewis reported this to her and that she then reported the “sexual abuse” to Matthew Whiteley the Director of Seachem Australia Pty Ltd.

The Complainant alleged that Mr. Whiteley indicated that he would speak with Rebecca but that no action was ever taken. The Complainant alleged that she suffered constant negative and unfair criticism relative to her work achievements both directly from Mr. Whiteley and indirectly from members of staff since the incident and that subsequently on 10 February 2009 her position as office administrator was terminated.

13 In response to Directions from the Tribunal that she file her statement, Ms Linnell then filed a nine page document dated 22nd of December 2009 further elaborating on her dissatisfaction and incidents which occurred in the course of her employment. The Complainant also provided a statutory declaration dated 6 September 2009 of David Lewis setting out comments alleged to have been made by Rebecca Humphries to him on 15 January 2009.

Response to ADB

14 The Respondent had written to the Anti Discrimination Board on 26 March 2008 (2009) confirming that the comment had been mentioned to him by Ms Linnell and that he had approached Rebecca Humphries. In the absence of an independent witness to corroborate the allegations he had cautioned Ms Humphries and reminded her of the conditions expected. He asserted that Ms Linnell was terminated for repeated incompetence and poor work performance.

15 Mr. Whiteley again wrote to the Anti Discrimination Board on 13 May 2009 and noted that Ms Linnell's termination had been unrelated to her complaint.

16 The Tribunal considered both written and oral submissions from both the Complainant and the Respondent.

The Respondent’s submissions are set out in a document 10th of March 2010. In summary they are as follows.

Sexual Harassment

1. The conduct complained of that Ms Humphries said to Mr. Lewis “Trish can go and suck someone's dick” is not conduct of a sexual nature.
2. The conduct complained of could not be said to be “in relation to” the Complainant. The comments alleged to be made were made to third party and the Complainant only became aware of the comments through a recount of them via a third party.
3. Any reasonable person having regard to all the circumstances would not have anticipated that the Complainant would be offended, humiliated or intimidated by the comments. The Respondent noted that the Complainant’s statement does not give any evidence of offence, humiliation or intimidation arising from the alleged conduct.

1.There is no evidence that the Complainant informed the Respondent that an allegation of a contravention of the Act was to be made.
2.It is clear from the Complainant's own evidence that she was not terminated on any specified ground.
3.For section 50 to be enlivened there must be an act in contravention of the Act. If the conduct complained of could not amount to sexual harassment then in turn there could be no contravention of section 50 of the Act.

In relation to the matters listed in section 92 -- the basis for dismissing a complaint under section 102 the Respondent submitted as follows

The complaint when considered in all the circumstances is frivolous and not of a serious nature.
The complaint is vexatious in that the Complainant displays a great deal of animosity towards the Respondent in her statement.
The complainant has misconceived the meaning of sexual harassment and victimization.
Both complaints were lacking in substance; and
On the basis of the decision in Fricke v Whyburn [2003] NSW ADT 10 at 51-53 the Tribunal should be satisfied that no further action should be taken with respect to the complaint having regard to the minor nature of the matter.
The Respondent notes in its submissions of 10 March 2010 in relation to section 102 that the statement provided by the Complainant dated 22 December 2009:
“goes into some details of the events leading to her termination, none of which relate to allegations of sexual harassment and all of which relate to allegations of unsatisfactory work performance.” and
“The Complainant gives great detail of her dissatisfaction with her employment. However notwithstanding the nine pages of her statement, the Complainant does not give any evidence of offence, humiliation or intimidation arising from the alleged conduct of Ms Humphries.”

17 The Complainant provided a document dated 23rd of March 2010 in response. In relation to the complaint of sexual harassment the Complainant

Asserted the alleged comment by Ms Humphries was comment of a sexual nature by reference to the Macquarie Dictionary’s Book of Slang.
Alleged that the Respondent
a) had consistently contradicted the reasons for termination;
b) failed to act when sexual harassment was reported; and
c) failed to provide any evidence of the complainant’s alleged poor work performance or incompetence.
The Complainant also asserted that the complaint when considered in all circumstances was of a serious nature and not frivolous and that all her correspondence was honest and factual and demonstrated no personal issues of animosity.

Application of Law

18 To determine whether the matter should be dismissed under section 102 it is necessary to assess the Complainant's case against the provisions of the Anti Discrimination Act - sections 22A and 22B in relation to Sexual Harassment and section 50 in relation to Victimisation.

Sexual harassment

19 The Tribunal must consider whether or not it could be found that Ms Humphries engaged in “other unwelcome conduct of a sexual nature in relation to” Ms Linnell.

20 The Complainant expresses her displeasure at Ms Humphries alleged comment to Mr. Lewis. It is clearly unwelcome conduct for the Complainant.

21 The question arises whether or not the alleged making of the comment is “conduct of a sexual nature” and whether it is “in relation to” the Complainant.

22 It is alleged that Ms Humphries stated

“ Trish (Tribunal’s emphasis) can go and suck someone’s dick”

The Administrative Decisions Tribunal Appeals Panel dealt with the phrase “in relation to” in the matter of Carter v Linuki Pty Ltd [2005] NSWADTAP 40 at 15

The phrase encompasses conduct that is more remote from the applicant than if the word "towards" had been used, but it nevertheless requires a connection with the applicant, or that the conduct was done with the applicant in mind. Thus the phrase could encompass a complainant’s being aware of something of a sexual nature a person does or writes or says about the complainant to a third person, but not something of a sexual nature a person does or writes or says, unrelated to the complainant, to a third person.”

In the circumstances the Tribunal finds that a Tribunal could find that the comment was directed, even if via a third party, to the Complainant and could find that it was “in relation to” the complainant.

23 Would a reasonable person having regard to the circumstances have anticipated that the other person would be offended, humiliated or intimidated by the comment?

The Tribunal considers that this is a matter for evidence before the Tribunal to consider the circumstances of the matter. The Tribunal accepts that a reasonable person could have anticipated that Ms Linnell would be offended by the comment – given the context in which it is alleged to have been made.

24 As a result it is the Tribunal's view that at its highest the complainant’s complaint allegations may amount to a complaint of sexual harassment to be put before a Tribunal. The Tribunal does not find the complaint lacking in substance.

25 The Respondent notes in its submissions that the complainant had provided a 9 page statement which did not provide details of how victimization had occurred. In Razaghi, the Tribunal commented as follows:

22 The authorities make it clear that, whilst the initial complaint to the President... must allege a contravention of the Act by another person, "it need not allege the relevant facts with the particularity of an indictment or a pleading" ( Langley v Niland[1981] 2 NSWLR 104 at 107, per Hunt J). More recent cases have taken a particularly liberal view of the required minimum content of the initial complaint. The Federal Court, when dealing with similar provisions in Commonwealth anti-discrimination statutes concerning complaints to the Human Rights and Equal Opportunity Commission, has determined, on a number of occasions, that a complaint is valid if it contains nothing more than a broad allegation that another person has contravened the relevant Act... An Appeal Panel of this Tribunal took a similar view in Commissioner of Police v Orr[2001] NSWADTAP 16 at paragraphs 14 to 16.
Razaghi v Director-General, NSW Department of Health & Anor [2001] NSWADT 4 at [22] ).

26 In her written and oral submissions concerning her allegations of victimisation the complainant alleges that after she made the complaint of “sexual abuse “ to Mr. Whiteley “that everything changed”. The Tribunal understands that it is the Complainant’s case that her complaint of victimization falls within s 50(1) c of the Act. In her written submission the Complainant alleges that Mr. Whiteley had subjected her to detriment by

a) moving Ms Humphries into the office where Ms Linnell worked;
b) unjustly criticizing her work; and
c) eventually dismissing her - because she had complained to Mr. Whiteley that Ms Humphries had “sexually abused” her.

The Tribunal understands from Ms Linnell’s submissions that she considers that Mr. Whiteley favoured Ms Humphries over her and was unhappy that Ms Linnell had made a complaint about Ms Humphries.

27 Mr. Whiteley in his letter to the ADB of 26 March 2009 confirms that Ms Linnell did mention the comment to him and that he had approached Rebecca Humphries.

28 In the circumstances the Tribunal finds that while it is a matter for evidence before the Tribunal as to how the Complainant alleges the actions complained of were based in victimization, the Complainant’s case at its highest could support a complaint that she was subjected to a detriment on the ground that she alleged to Mr Whiteley that Ms Humphries committed an act which would amount to a contravention of the Anti Discrimination Act.

29 The Tribunal notes that it is not necessary for the complainant to prove that her dismissal was solely for an unlawfully discriminatory reason for a complaint of victimization to be proved.

30 Section 4A of the Anti- Discrimination Act provides

a)4A Act done because of unlawful discrimination and for other reasons
If:
(a) an act is done for 2 or more reasons, and
(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),
then, for the purposes of this Act, the act is taken to be done for that reason.

31 In these circumstances the Tribunal could find that the making of a complaint of sexual abuse by Ms Linnell to Mr. Whiteley had been one of the reasons for alleged detrimental treatment and the termination of employment.

Is the conduct able to constitute a breach of the relevant sections?

32 It appears to the Tribunal that the kind of conduct alleged (as briefly summarised in paragraph 12) could, as a matter of law, constitute sexual harassment and victimisation within the meaning of the relevant sections. The applicant’s employment was terminated. While there are cogent arguments to support the Respondent’s contentions, when the applicant’s case is taken at its highest, the applicant has made allegations which, if proven at the hearing and if not adequately dealt with by the Respondent, would enable a Tribunal to find that she had been unlawfully discriminated against on the grounds of sexual harassment and victimized.

Decision

33 The Tribunal is of the view that the Applicant’s complaint does not lack substance and that this complaint should be allowed to proceed to a full hearing at which time the Respondent’s evidence will be adduced. It may be that ultimately the complaint is not substantiated, as the Applicant must establish all the elements of sexual harassment and victimization to succeed. However, at this stage, it is the Tribunal’s view that it would be premature and unfair to the Applicant to summarily dismiss the complaint as it appears that, if proven, it may disclose a contravention of the ADA.

34 The Tribunal declines to dismiss the complaint of sexual harassment and victimization.

1. The Application under section 102 of the Anti-Discrimination Act 1977 is dismissed.
2. The proceedings are to be set down for a further case conference on 16 June 2010 at 12:30pm for the purpose of :
Setting a timetable for further filing;
Dealing with the issue of whether Ms Rebecca Humphries should be joined to the matter as a Respondent; and

Fixing a time and venue for the hearing of the complaint.