Lunn v Storm Retirement Village (EOD)

[2003] NSWADTAP 62

Appeal Panel - Internal

CITATION:	Lunn v Storm Retirement Village (EOD) [2003] NSWADTAP 62 revised - 2/12/2003
PARTIES:	APPELLANT Sharyn Lunn RESPONDENT Storm Retirement Village
FILE NUMBER:	039042
HEARING DATES:	11/09/2003
SUBMISSIONS CLOSED:	09/11/2003
DATE OF DECISION:	12/01/2003
DECISION UNDER APPEAL:	Lunn v Storm Retirement Village [2003] NSWADT
BEFORE:	Hennessy N - Magistrate (Acting President); Britton A - Judicial Member; Bolt M - Member
CATCHWORDS:	adequacy of reasons - finding contrary to evidence - relevant/irrelevant considerations
MATTER FOR DECISION:	Principal Matter
FILE NUMBER UNDER APPEAL:	021123
DATE OF DECISION UNDER APPEAL:	05/22/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Supreme Court Rules 1970
CASES CITED:	Assal v Department of Health, Housing & Community Services (1992) EOC 92-409 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Collector of Customs v Pozzolanic (1993) FCR 280 Ebber v Human Rights and Equal Opportunity Commission & Ors (unreported, Drummond J, 17 March 1995) General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hatic v Linfox Transport (Australia) Pty Ltd [2003] NSWADT 43 Langley v Niland [1981] 2 NSWLR 104 McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477 Nagasinghe v T A Worthington QC & Anor (unreported, von Doussa J, 6 October 1994 at 5; appeal to the Full Court dismissed, unreported, 2 June 1996; application for special leave to appeal to the High Court refused [1996] 13 Leg. Rep. SL11) Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140 O'Callaghan v Loder [1983] 3 NSWLR 89 Pannizutti v Trask (1987) 10 NSWLR 531 Peter Kent Development Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported) Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Rajski v Powell (1987) 11 NSWLR 522 Spellson v George (1992) 26 NSWLR 666 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Wickstead v Browne (1992) 30 NSWLR 1 Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26
REPRESENTATION:	APPELLANT C Howell, counsel RESPONDENT S Winters, counsel
ORDERS:	1 The Tribunal’s order that it has no jurisdiction to deal with any events alleged to have occurred prior to 17 July 2001 is affirmed; 2 The Tribunal’s order dismissing the complaint of perceived homosexuality discrimination is set aside; 3 The Tribunal’s order dismissing the complaint of victimisation for the period prior to 17 January 2002 is set aside. In substitution for that order, a decision is made that the Tribunal has jurisdiction to entertain a complaint of victimisation occurring during the period of 6 months prior to 18 February 2002; 4 The matter is remitted for reconsideration by a differently constituted Tribunal.

Background to the complaint

1 Ms Lunn, the appellant, started working for the Storm Retirement Village (the respondent) as the Director of Nursing on 3 May 1999. On 17 January 2002 she complained to the President of the Anti-Discrimination Board (the Board), that she had been discriminated against on the ground of perceived homosexuality. The crux of Ms Lunn’s complaint was that rumours had been circulating among staff members about her perceived homosexuality and that despite a complaint the respondent had failed to take appropriate action. She contended that the behaviour of her colleagues and the respondent’s response to her complaint were discriminatory on the ground of perceived homosexuality.

2 On 18 February 2002, a few weeks after first complaining to the Board, Ms Lunn lodged a further complaint of victimisation against the respondent. That complaint was based on allegations that the respondent subjected her to a detriment because she said she was going to complain to the Board, or that she did complain to the Board.

Background to the appeal

3 On 22 May 2003, the respondent applied to the Tribunal for orders that the complaint be dismissed on two grounds: (1) that the complaint was made out of time and therefore the Tribunal had no jurisdiction to deal with the matter; and (2) there was no evidence to support the complaint of discrimination or victimisation and those complaints should be dismissed under s 111(1) of the Anti-Discrimination Act 1977 (the Act).

4 The Tribunal accepted the respondent’s submission that the complaint was lodged out of time and found that it had no jurisdiction to deal with any events alleged to have occurred prior to 17 July 2001. A complaint must be lodged with the Board “within 6 months after the date on which the contravention of this Act or the regulations which is the subject of that complaint is alleged to have been committed.” (See s 88(3) of the Act). To be within time, the contraventions alleged by Ms Lunn must have occurred not more than six months before 17 January 2002 in relation to the perceived homosexuality complaint, and not more than 6 months before 18 February 2002 in relation to the victimisation complaint. While s 88(4) allows the President to accept a complaint out of time, the President did not do so in this case.

5 The second part of the respondent’s application before the Tribunal was that there was no evidence to support the complaints of discrimination or victimisation. An application to dismiss the complaints was made under s 111(1) of the Act which states that:

Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

6 The Tribunal upheld the respondent’s application and dismissed the complaint of homosexuality discrimination and that part of the complaint of victimisation that occurred prior to 17 January 2002. The Tribunal made the following orders:

The section 111 application is upheld in relation to the complaint of discrimination on the basis of perceived homosexuality for the period 17 July 2001 to 17 January 2002 and the complaint is therefore dismissed.

The section 111 application is upheld in relation to the complaint of victimization for the period up to 17 January 2002 and is therefore dismissed.

The section 111 application is dismissed in relation to the complaint of victimization for the period 17 January 2002 to 18 February 2002. This matter will have to be determined by the Tribunal at a further hearing.

7 Ms Lunn appealed against these orders to the Appeal Panel. Pursuant to s 113(2) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) the issue to be determined is whether any question of law has been identified and, if so, whether any error of law has been made by the Tribunal. The appellant did not seek leave to have the matter extended to the merits of the decision.

GROUNDS OF APPEAL AND REPLY

8 The Notice of Appeal, filed on 19 June 2003, states that:

The Tribunal erred in failing to give reasons, or adequate reasons for its decision.

The Tribunal erred in failing to take into account relevant considerations, namely the nature of the conduct said by the applicant to constitute discriminatory conduct and in particular the failure of the respondent to properly investigate Ms Lunn’s complaint and the failure to apply its own grievance procedure with respect to Ms Lunn’s complaint.

The Tribunal erred in finding that the applicant’s case, taken at its highest, could not constitute a breach of s 49ZG of the Anti-Discrimination Act.

The Tribunal erred in finding that there was no conduct that could constitute victimisation in the period up to 17 January 2002 and in dismissing the applicant’s claim based on s 111 of the Act to the extent that it involved allegations arising prior to 17 January 2002.

9 The Notice of Reply stated that:

There is no inadequacy in the reasons for the Tribunal’s decision.

The Tribunal took into account all of the conduct and events said to have occurred after 17 July 2001. The alleged failure by the Respondent to properly investigate the complaint does not constitute an allegation of unlawful discrimination. Similarly the alleged failure on the part of the respondent to apply its own grievance procedure with respect to the Appellant’s complaint does not constitute an allegation of unlawful discrimination.

The lack of specificity in the alleged error of law does not permit a reply other than there was no error of law in the Tribunal’s finding that the Applicant’s case, taken at its highest, could not constitute a breach of s 49ZG of the Anti-Discrimination Act 1977.

The lack of specificity about the conduct that could constitute victimisation does not permit a reply other than there was no error of law.

Appellant’s submissions

10 In relation to the Tribunal’s first order concerning the period covered by the complaint, the appellant submitted that the conduct of fellow employees in spreading rumours about the appellant was an ongoing course of conduct which commenced in early 2000. The appellant submitted that the complaint falls within the principles discussed in Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140. In that case, Barbour J came to the view that where a complaint involved a continuing contravention of the Act then that complaint should not be limited to the six months prior to the complaint being lodged. His Honour concluded that the complaint could be accepted any time within six months after the conduct has terminated.

11 The appellant’s alternative submission was that the Tribunal erred by failing to refer those limited parts of the complaint which fell outside the six month period, back to the President of the Board for consideration as to whether or not the discretion in s 88(4) should be exercised.

Appeal Panel’s findings

12 We do not agree with either of the appellant’s submissions in relation to the period covered by the complaint. The Tribunal’s finding is correct given the provisions of s 88(3) and s 88(4) of the Act and relevant case law. Section 88(3) and (4) state that:

(3) A complaint shall be lodged within 6 months after the date on which the contravention of this Act or the regulations which is the subject of that complaint is alleged to have been committed.

(4) Notwithstanding subsection (3), the President, on good cause being shown, may accept a complaint which is lodged more than 6 months after the date referred to in that subsection.

13 There is no dispute that the President did not exercise his discretion to accept the complaint out of time. In Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26, the Appeal Panel addressed the period covered by a complaint at [86] and [87]:

We agree with Barbour J's conclusion in Najdovska (supra), that a complaint can be lodged at any time as long as the contravention was continuing on a date which is 6 months before the complaint was lodged. In terms of s 88(3), that date is the "date on which the contravention . . . is alleged to have been committed."

However, in accordance with the Tribunal's view at first instance, unless the President extends time under s 88(4), any continuing contravention occurring earlier than 6 months before the complaint was lodged cannot form part of the complaint.

14 On the basis of this reasoning, we reject the appellant’s first submission. The appellant’s alternative submission, that the Tribunal erred by failing to refer that part of the complaint which fell outside the six month period, back to the President of the Board, is also rejected. Contrary to the appellant’s submission, Hatic v Linfox Transport (Australia) Pty Ltd [2003] NSWADT 43 does not support the proposition that where an out of time complaint is referred under s 94(1) of the Act, the Tribunal should return that complaint (or part of the complaint) to the President for reconsideration under s 88(4). While it is always open for a complainant to lodge a fresh complaint with the President, there is no statutory power allowing the Tribunal to refer a complaint back to the President in order to consider whether an extension of time should be granted. A failure to do so is not an error of law. Consequently, the Tribunal’s order that it has no jurisdiction to determine any alleged contravention of the Act prior to 17 July 2001 must be affirmed. It should also be noted that the Tribunal cannot make findings in relation to any contravention alleged to have occurred after the complaints were lodged, on 17 January and 18 February 2002 respectively.

PERCEIVED HOMOSEXUALITY COMPLAINT

Tribunal’s decision

15 The Tribunal dismissed the appellant’s complaint of discrimination on the ground of perceived homosexuality under s 111. The Tribunal’s reasons for accepting the respondent’s application for dismissal appear at [5] to [9] of the decision:

5. We turn now to the allegation of discrimination within the period 17 July 2001 to 17 January 2002. The applicant’s evidence is that in mid 2000 she noticed that she was being treated differently or “coldly” by fellow staff members. In late 2000 there were rumours that she was leaving her job and she received an anonymous email saying she was gay. In mid 2001 she says derogatory comments in relation to the issue of lesbianism were made to her. At some point comments are alleged to have been made to other people which suggested the applicant was homosexual. At least one of these comments was made in early 2000. In October 2001 a conversation is alleged to have taken place between 2 nurses employed by the respondent in relation to Ms Lunn’s living arrangements. The applicant says that this “rumour” was circulated by one of the nurses at a party and whilst that person was a patient at a different hospital.

6. The applicant says she first became aware of rumours circulating about her perceived homosexuality in November 2001. At this time she also noticed non-compliance with directions given by her. She complained to the respondent who undertook some investigations into the increasing number of disciplinary issues occurring but failed, the applicant says, to properly investigate her complaint or halt the conduct complained of.

7. We can only consider events and conduct alleged to have occurred after 17 July 2001. In relation to the alleged comments made we say that asserting that someone is homosexual does not amount to discrimination per se. In relation to the alleged conversation noted above we say that it could be interpreted in a number of different ways and that in any event, at its highest as a suggestion that the applicant is homosexual, is no more than that. In addition the conduct of an employee of the respondent whilst off duty does not come within the parameters of our jurisdiction.

8. The applicant was not present when most of the comments noted above were made and has provided no evidence that they were part of a pattern of discrimination against her. She says only that she felt she was being treated differently but does not provide sufficient detail to found her allegation that the respondent was treating her differently. We do accept however that the applicant was working in a difficult environment and found the rumours and reported conversations distressing when she learned of them. However based on the evidence, we do not consider that this environment, or the actions of the respondent amounted to discrimination pursuant to the Act.

9. Having carefully considered all of the applicant’s evidence, and taking her case at its highest, we do not accept that the matters complained of could possibly constitute a breach of section 49ZG of the Anti-Discrimination Act. We do not accept that the respondent discriminated against the applicant by treating her less favourably in the same circumstances or in circumstances which are not materially different, from a person that the employer did not think was a homosexual person.

16 A complaint can be dismissed under s 111(1) if the Tribunal is satisfied that it is “frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained”. The words “frivolous, vexatious, misconceived or lacking in substance” were interpreted, in a slightly different but analogous context, by Hunt J in Langley v Niland [1981] 2 NSWLR 104. At 107 Hunt J held that those words relate to the “insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all.” However, Hunt J added that the words “for any other reason” include the reason that the complaint does not disclose a contravention of the Act. A complaint which relied on a ground not covered by the AD Act or, to use Hunt J’s example, a complaint which fell within one of the exceptions in the Act, would not disclose a contravention.

17 Consequently, a complaint may be dismissed either because of the factual insufficiency of the complaint or because, even accepting the evidence at its highest, it does not disclose a contravention. (See Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].) The failure of the complaint to disclose a contravention of the Act is analogous to the inherent and/or statutory power of courts to dismiss proceedings when the pleadings fail to show a reasonable cause of action. For example, Part 13, rule 5 of the Supreme Court Rules 1970 allows the Court to stay or dismiss proceedings where no reasonable cause of action is disclosed. The rule gives the Court a discretionary power to dismiss the plaintiff’s case when it is so weak that to permit the proceedings to go to trial would be futile: Peter Kent Development Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported). Ritchie’s Supreme Court Procedure NSW (Peter Taylor SC ed, Butterworths 1984) notes at 2325 that “The test to be applied has been variously described as whether the matter is ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’, ‘so manifestly faulty that it does not admit of argument’, one which ‘the court is satisfied cannot succeed’, ‘one where under no possibility can there be a good cause of action’, or one which ‘would involve useless expense’ (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; Pannizutti v Trask (1987) 10 NSWLR 531 at 536; Rajski v Powell (1987) 11 NSWLR 522 at 524; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942.

18 Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the respondent, that fact alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the applicant has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1).

19 Wilson J in Assal v Department of Health, Housing & Community Services (1992) EOC 92-409 at p.78,900 rejected the onerous test of “no real prospect of success.” His Honour said at p. 78,900 “A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance.” That test has been adopted by the Federal Court in Nagasinghe v T A Worthington QC & Anor (unreported, von Doussa J, 6 October 1994 at 5; appeal to the Full Court dismissed, unreported, 2 June 1996; application for special leave to appeal to the High Court refused [1996] 13 Leg. Rep. SL11) and Ebber v Human Rights and Equal Opportunity Commission & Ors (unreported, Drummond J, 17 March 1995 at 54).

20 However, Carr J in McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477 (18 October 2000) distinguished Wilson J’s approach in Assal because in those cases the “complainants had had their day before the Commission.” In McGlade, the proceedings were at a preliminary stage when they were dismissed. In those circumstances, Carr J endorsed the position taken by the Court of Appeal in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102. In that case Ormiston JA said that “there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end.” We agree with and adopt Ormiston JA’s approach.

Relevant legislative provisions

21 The relevant provision defining direct discrimination on the ground of homosexuality is s 49ZG which states that:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of homosexuality if, on the ground of the aggrieved person’s homosexuality or the homosexuality of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s homosexuality if it is done on the ground of the person’s homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons.

22 Section 49ZG is merely the definition of discrimination. Section 49ZH is the substantive provision relating to discrimination against employees. Section 49ZF makes it clear that discrimination on the ground of homosexuality “includes a reference to the person’s being thought to be a homosexual person, whether he or she is in fact a homosexual person or not.” We have used the word “perceived” homosexuality to describe discrimination on this ground.

23 In the context of this case, the relevant provisions are s 49ZH(2) relating to existing employees. That provision states that:

(2) It is unlawful for an employer to discriminate against an employee on the ground of homosexuality:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

24 None of the exceptions in 49ZH applies to the circumstances of this case. While the Tribunal’s decision does not indicate which of these provisions in s 49ZH(2) is relied on by the complainant, there is no real dispute, as we understand it, that the alleged conduct relates to the terms or conditions of the appellant’s employment, access to benefits associated with employment and/or subjecting Ms Lunn to a detriment.

Appellant’s submissions

25 The appellant’s submission in relation to this complaint was threefold: the Tribunal failed to take into account relevant considerations and/or the Tribunal erred in finding that her case, taken at its highest, could not constitute a breach of s 49ZG of the Act and/or the Tribunal gave inadequate reasons for dismissing the complaint.

Failing to take into account relevant considerations

26 The appellant pointed to several allegations set out in paragraph 49 of her written submissions to the Appeal Panel, which she said the Tribunal failed to take into account. In particular, the appellant highlighted allegations about the respondent’s response to Ms Lunn’s concerns about unfair treatment. Ms Winters for the respondent pointed to [6] and [9] of the Tribunal’s reasons (set out above at [15]) to support her submission that the Tribunal had taken into account all the relevant evidence. At [6] the Tribunal said “She complained to the respondent who undertook some investigations into the increasing number of disciplinary issues occurring but failed, the applicant says, to properly investigate her complaint or halt the conduct complained of.” Although the Tribunal did not discuss any of the allegations relating to the respondent’s conduct (as distinct from the alleged conduct of fellow employees in circulating rumours about her) the respondent says that the Tribunal took all the evidence into account because they said, at [9] “Having carefully considered all the applicant’s evidence, and taking her case at its highest, we do not accept that the matters complained of could possibly constitute a breach of section 49ZG of the Anti-Discrimination Act.”

27 We accept the respondent’s submission that the Tribunal took account of the factual matters contained in the evidence before it. Although the Tribunal did not specifically refer to the conduct of the respondent, it did say that it had considered all the applicant’s evidence. That evidence comprised the President’s Report, the Statement of Sharyn Lunn dated 12 March 2003 and the Agenda of a Meeting of the Board of Directors, 20 November 2001. The question for the Appeal Panel is whether, on the basis of that evidence, the Tribunal erred in concluding that the complaint of perceived homosexuality should be dismissed for any of the reasons set out in s 111(1).

Evidence at its highest, could not constitute a breach of s 49ZG

28 The second ground of appeal in relation to the complaint of perceived homosexuality discrimination was that the evidence, taken at its highest, could not constitute a breach of s 49ZG. (We note that s 49ZG is merely the definition of discrimination and the breach would, more accurately be characterised as a breach of the substantive provision: s 49ZH.) In Collector of Customs v Pozzolanic (1993) FCR 280 at 289 the Federal Court listed several matters which constitute questions of law including “the question, whether the facts fully found fall within the provisions of a statutory enactment, properly construed …” This corresponds with the appellant’s ground of appeal. In our view, the question of whether the facts as fully found (and taken at their highest) are lacking in substance or do not disclose a contravention of the Act, is a question of law.

29 The facts as fully found relating to the complaint of perceived homosexuality discrimination and which occurred during the period from 17 July 2001 to 17 January 2002 include the following:

1. “Comments” allegedly made in mid 2001, that Frances Holman said words to the effect of “Do you know Rosemary’s partner?” Ms Lunn said “At this time I was writing in the staff communication book and looked up to see Frances Holman flipping her tongue in and out. I was shocked, looked away and avoided further conversation by stating that I didn’t know the nurse’s partner”.

2. On 19 November 2001 Ms Lunn reported to Shane Jenkins, the respondent’s business manager, that she had been advised by the Deputy Director of Nursing, Lynette Wright, that stories concerning her sexual preferences were circulating at the Nursing Home. Mr Jenkins said he would speak to Mr Milton Fowell, the Chair of the Board, about the matter.

3. Mr Fowell suggested that Ms Lunn contact a solicitor, Mr Merrick who was a member of the Board of the respondent, about her concerns. Mr Merrick wrote letters of demand to two employees about the rumours.

4. On 20 November 2001, a Board meeting determined that a review would be conducted by Mr Peter Wildblood into certain personnel matters and a report was completed.

5. On Monday 7 January 2002, the appellant was informed of a comment made about her in the staff tea room to the effect that “What Sharyn Lunn needs is a cunt muncher”.

6. On 8 January 2002, Ms Lunn approached the Anti-Discrimination Board for advice.

7. In January 2002, Ms Lunn became aware of further comments made by staff about her sexual preferences during the preceding six months. These included:

· Fay (Christensen) Smith RN has stated that soon after she commended working at the nursing home in September 2001, Frances Holman told her “You need to be very careful with Betty Gordon because Sharyn Lunn lives with her daughter. You can make whatever you like of that arrangement.” Another version of this incident was that “Fay Smith stated that Frances Holman had informed her at nursing hand-over on 12 October 2001, ‘I have rung Mrs Gordon’s daughter about her cellulitis because Sharyn Lunn lives with her daughter. You can make whatever you like of that arrangement’.”

· Joanne Croft spread the rumour about Ms Lunn’s perceived homosexuality to staff at Manning Base Hospital when she was hospitalised in late 2001.

· Joanne Croft spread the rumour at a recent party she attended which was also attended by a friend of Ms Lunn.

8. On 9 January 2002 Ms Lunn advised Mr Fowell of her intention to lodge a complaint with Anti-Discrimination Board because the rumour mongering was continuing.

9. Mr Fowell requested that Ms Lunn write him a letter detailing the stories that had been circulating about her. Ms Lunn did so on 10 January 2002. On 15 January 2002 Mr Fowell had a conversation with Ms Lunn in which he asked her to obtain statements from the people who had informed her of the rumours and also asked her whether she intended to continue working at the Nursing Home.

10. On 16 January 2002, Mr Lunn received a letter from Mr Fowell requesting that she meet with the Board on 22 January 2002. The letter stated, among other things that “The Board is concerned that the apparent inability of yourself and others to resolve personal conflicts stands in the way of management reform and harmony in the workplace”.

11. The respondent had a policy on harassment/discrimination which required that where complaints were made, a full investigation should be made, including interviewing witnesses. No steps under the respondent’s policy were taken with respect to Ms Lunn’s complaint.

30 There is apparently no dispute that the alleged conduct came within s 49ZH(2). Essentially, Ms Lunn’s case appears to be that the respondent is either vicariously liable for the conduct of its employees or has tolerated and condoned a work environment which has been “poisoned” by harassment and discrimination on the ground of perceived homosexuality. In O'Callaghan v Loder [1983] 3 NSWLR 89, Mathews DCJ found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment" or as a "term or condition" of employment, thereby falling within relevant substantive provisions or prohibitions in the Act. The appellant has pointed with particularity to the alleged differential treatment. While we are not aware that any real or hypothetical comparator has been identified at this stage, it is arguable that the treatment complained of, taken at its highest, meets the test in 49ZG(1)(a).

31 The final question is whether the complaint is so hopeless that it should be dismissed because of an insufficiency of evidence relating to “causation”. To be unlawful, discrimination must be “on the ground of” the appellant’s perceived homosexuality. It is unusual in cases of alleged discrimination for there to be direct evidence of the basis for the allegedly differential treatment. However, where there is no direct or circumstantial evidence from which an inference could be drawn that the appellant’s perceived homosexuality was even one of the reasons for the conduct, the Tribunal may be satisfied that the complaint has no reasonable prospect of success.

32 In this case, the reasons for the respondent’s conduct are largely within the knowledge of the respondent. After summonsing documents and/or cross-examining witnesses, Ms Lunn may be able to prove that at least one of the reasons for the respondent’s conduct was that they perceived her to be homosexual. In those circumstances it is not appropriate for the complaint to be dismissed as lacking in substance. (See Wickstead v Browne (1992) 30 NSWLR 1.)

33 The Tribunal’s order dismissing the complaint of perceived homosexuality discrimination is set aside. Having come to this conclusion, there is no need to determine whether the Tribunal’s reasons were adequate.

COMPLAINT OF VICTIMISATION

Section 50

34 The complaint of victimisation pursuant to s 50 of the Act was lodged on 18 February 2002. Section 50 states that

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

35 The Tribunal concluded at [11] as follows:

I deal now with the allegation of victimisation. I start by noting that nothing that the complainant has alleged within the time period we have examined, in our view amounts to a contravention of the Act. We consider that whilst there were complaints made to the respondent’s Board, of rumours in relation to the applicants sexual preference, there were no complaints alleging discrimination made until the complaint was lodged with the Anti-Discrimination Board on 17 January 2002 and then was brought to the attention of the respondent’s Board. We note that the complaint alleging victimisation was lodged with the Anti-Discrimination Board on 18 February 2002. On the basis of the evidence heard today, we are of the view that it is not appropriate to dismiss the claimant’s application insofar as it relates to victimisation in respect of the period 17 January 2002 to 18 February 2002 only.

36 The appellant says that the facts before the Tribunal were that Ms Lunn made allegations concerning the respondent’s conduct prior to 17 January 2002 which, if proved, would constitute conduct falling within s 50(1)(c) of the Act. Those matters include: allegations that she raised complaints on 19 November 2002 concerning the gossip and innuendo about herself; her verbal advice to Mr Fowell on 9 January 2002 that she intended to make a complaint to the Anti-Discrimination Board and her further letter to the respondent dated 10 January 2002. Ms Lunn has particularised the detriment that she alleges she suffered as a result of these actions, namely the instigation of the Wildblood inquiry, the letter to her of 16 January 2002 and the failure to properly inquire into her complaints.

37 As with the complaint of perceived homosexuality discrimination, the question of whether the facts as fully found, are ‘lacking in substance’ for the purpose of s 111(1) of the Act, is a question of law. While the Tribunal had before it all the relevant evidence, and took that evidence into account, it appears to have overlooked the fact that Ms Lunn engaged in conduct prior to the lodgement of her complaint with the Anti-Discrimination Board, which, “arguably” could fall within the provisions of s 50(c). It is not only the lodging of a discrimination complaint that may give rise to a victimisation complaint. In our view, it is arguable that Ms Lunn’s evidence, taken at its highest, is capable of supporting a finding that the requirements of s 50(c) have been made out for the period prior to 18 January 2002. If the complaint is restricted to the period after 17 January 2002, then any detriment alleged as a result of conduct prior to that date could not be included in the Tribunal’s consideration.

Appeal Panel’s findings

38 In accordance with the provisions of s 88(3) the victimisation complaint could span the period of 6 months prior to its lodgement on 18 February 2002, bearing in mind that it must not be broadened beyond the scope of the contravention already alleged. Consequently, the Tribunal’s order dismissing the complaint of victimisation for the period prior to 17 January 2002 is set aside. In substitution for that order, a decision is made that the Tribunal has jurisdiction to entertain a complaint of victimisation occurring during the period of 6 months prior to 18 February 2002.

Orders

1. The Tribunal’s order that it has no jurisdiction to deal with any events alleged to have occurred prior to 17 July 2001 is affirmed.

2. The Tribunal’s order dismissing the complaint of perceived homosexuality discrimination is set aside.

3. The Tribunal’s order dismissing the complaint of victimisation for the period prior to 17 January 2002 is set aside. In substitution for that order, a decision is made that the Tribunal has jurisdiction to entertain a complaint of victimisation occurring during the period of 6 months prior to 18 February 2002.

4. The matter is remitted for reconsideration by a differently constituted Tribunal.

Decision revised 2/12/03 - incorrect decision launched