MacDonald v Home Care Service of New South Wales

[1999] NSWADT 116

CITATION:	MacDonald -v- Home Care Service of New South Wales [1999] NSWADT 116
DIVISION:	Equal Opportunity
APPLICANT:	Grant MacDonald
RESPONDENT:	Home Care Service of New South Wales
FILE NUMBER:	111 of 1997
HEARING DATES:	09/22/1999; 11/03/1999
SUBMISSIONS CLOSED:	11/03/1999
DATE OF DECISION:	26 November 1999
BEFORE:	H G Murrell SC DCJ - Deputy President M Luger - Member M Alt - Member
PRIMARY LEGISLATION:	Anti-Discrimination Act 1977
APPLICATION:	Victimisation -
MATTER FOR DECISION:	Application to have complaint dismissed pursuant to section 111(1)
REPRESENTATION:	Applicant: In person Respondent: C Barton, solicitor, Freehill Hollingdale & Page
ORDERS:	1. Complaint dismissed.

1 By an application made on 7 September 1999 pursuant to s111 of the Anti-Discrimination Act 1977, the respondent asks the Tribunal to dismiss a complaint of victimisation referred to the Tribunal. The respondent contends that the complaint is frivolous, vexatious, misconceived, lacking in substance or ought to be dismissed on the basis that a dismissal would be just in all the circumstances.

2 Points of claim and points of defence have been filed in the Tribunal. On 21 July 1999 the Tribunal gave a direction that all materials upon which the applicant intended to rely be filed by 12 August 1999 and indicated that if the materials were not filed by that time they would not be taken into account. Further materials were filed by 12 August 1999. Consequently, the material currently before the Tribunal comprises all of the evidence upon which the applicant relies in support of his victimisation complaint.

BACKGROUND

3 The victimisation complaint and an earlier complaint of discrimination have a long history.

4 In January 1995 the respondent advertised a position of field worker. The applicant applied for the position and was interviewed. He was unsuccessful. An employee of the respondent made remarks to the applicant which suggested that the applicant may have been the object of discrimination on the basis of age, sex or presumed disability. The applicant complained about discrimination. Thereafter, the recruitment process was declared void. The position was re-advertised. The applicant re-applied, and was re-interviewed on 24 March 1995. The applicant was not offered a permanent position. The selection criteria stipulated that “ability to work any day of the week” was one criterion for selection. The applicant stated that he was not available every day. He sought to be assessed for eligibility only and, if successful, to be placed on a eligibility list for the next six months. No eligibility list was compiled. The applicant alleges that the only other unsuccessful candidate for a permanent position was offered casual work but no such offer was made to him.

5 On 21 February 1995 the applicant made a complaint to the Anti-Discrimination Board against the respondent, alleging discrimination in employment on the grounds of sex, age and presumed disability. The complaint related to the incidents of January 1995. Obviously, the events of March 1995 were not canvassed in the complaint as the complaint was made in February 1995.

6 The February 1995 discrimination complaint was referred to the Equal Opportunity Tribunal and heard in October 1996. There were materials before the Equal Opportunity Tribunal concerning the second interview in March 1995 and the failure to create an eligibility list. The applicant argued that the non-preparation of an eligibility list following the March 1995 interviews constituted unlawful victimisation in breach of s50(1)(c)of the Anti-Discrimination Act 1977.

7 The Equal Opportunity Tribunal determined that the respondent was entitled not to select the applicant. The Tribunal stated that as the respondent’s selection committee found that the applicant did not meet the selection criteria for the position it followed that he could not have been placed on an eligibility list even had such a list been complied.

8 On 31 December 1996 the applicant made the current victimisation complaint, alleging that, contrary to its policy, the respondent had not compiled an eligibility list and had failed to consider the applicant for casual work. The applicant complained that he was subjected to these two detriments because he had previously alleged discrimination by the respondent.

9 On 24 February 1997 an investigating officer at the Anti-Discrimination Board wrote to the applicant advising that the President had decided that the alleged victimisation by failing to prepare an eligibility list did not disclose a contravention of the Act. The investigating officer stated that it was clear from the Equal Opportunity Tribunal’s decision of October 1996 that the respondent’s failure to prepare an eligibility list was not a breach of the Act. The letter stated that the President declined to re-examine the issue. As to the second victimisation allegation, ie the alleged failure to offer casual employment, the investigating officer sought more details of the basis upon which the failure to offer casual employment was said to be victimisation. On 3 April 1997 more details were again sought. None were forthcoming.

10 On 16 July 1997 the President wrote to the applicant reiterating that the allegation concerning non-preparation of an eligibility list had been declined as failing to disclose a contravention of the Act. The President went on to state that, as the applicant had continually failed to provide requested information in relation to the issue of casual work, the complaint was declined for “any other reason” under s90(1) of the Act.

11 By a summons filed in the Supreme Court and dated 9 December 1997, the applicant sought orders and declarations in relation to the President’s decision to decline the first complaint, the Equal Opportunity Tribunal’s decision of 29 October 1996 and the President’s decisions of 24 February and 16 July 1997.

12 On 12 June 1998, Justice Simpson decided that the President’s decisions on the first complaint and the Equal Opportunity Tribunal’s decision of 29 October 1996 were procedurally flawed in that there had been no jurisdiction to deal with the alleged acts of discrimination which post dated the complaint of February 1995. However, Justice Simpson declined to grant relief because the applicant had promoted and encouraged the Equal Opportunity Tribunal to deal with the events of March 1995. As to the decision of 24 February 1997, her Honour found that the President ought to have fully considered the allegation of victimisation through non-creation of an eligibility list. However, again for discretionary reasons, her Honour refused to grant relief because the applicant plainly did not meet the eligibility criteria and therefore could not have been placed on an eligibility list even if one had been created. In Justice Simpson’s view, the President was bound to decline this aspect of the matter, albeit for reasons other than those given. In relation to the President’s decision of 16 July 1997, her Honour referred to the fact that the President had divided the victimisation complaint into two parts. She acknowledged that the applicant did not agree that the complaint had two parts. Her Honour referred to the President’s statement that the matter concerning casual employment was declined “for any other reason”. Her Honour referred to the President’s statements that the applicant had been given ample opportunity to provide particulars of the allegation and to the President’s statement that the applicant had a right to appeal to the Equal Opportunity Tribunal. Her Honour considered that the statements made by the President provided ample justification for the President’s taking the course that he did take. Accordingly, her Honour refused the orders sought in relation to the President’s decision of 16 July 1997.

13 On 5 August 1997 the applicant requested that the President refer the victimisation complaint to the Equal Opportunity Tribunal.

14 The President had labeled the aspect of the victmisation complaint which concerned the non-creation of an eligibility list as part A, and had labeled the aspect which concerned casual work as part B. On 27 August 1997 the President referred part B of the complaint to the Equal Opportunity Tribunal. The President did not expressly refer and did not intend to refer part A of the complaint. Relying on s90(1A) of the Act, he considered that, as part A had been declined for failing to disclose a contravention of the Act, he was not obliged to refer that part.

15 The respondent (the applicant on the s111 application) makes the following submissions.

(1) The President was entitled to divide the applicant’s victimisation allegations into two parts and treat them as separate complaints. As the part A allegation (concerning non-creation of an eligibility list) was declined as failing to disclose a contravention of the Act, the President was not required to refer that allegation to the Tribunal under s91 of the Act.

(2) Alternatively, part A of the complaint ought to be dismissed under s111 as lacking in substance. There is no evidence

that the failure to prepare an eligibility list subjected the applicant to any detriment or was causally related to the applicant's

previous complaint of discrimination.

(3) As to the failure to offer the applicant casual work, despite the applicant having the opportunity to develop this matter

by providing particulars to the President and by filing evidence in the Tribunal, no information was provided to

substantiate the allegation or to establish any causal link between the failure to offer casual employment and the earlier

discrimination complaint.

(4) The respondent ought to be awarded costs of the application.

SECTION 91 OF THE ACT

16 Section 91 of the Act provides:

“(1) Where the President has given the complainant a notification under section 89B(4) or 90(1), the complainant may, within 21 days after the date of that notification, by notice in writing served on the President, require the President to refer the complaint to the Tribunal.

(1A) Sub-section (1) does not apply to a notification in which the President is given, as a reason for declining to entertain a

complaint, that what has been alleged in a complaint does not disclose any contravention of this Act.

(2) On receipt of a notice under sub-section (1), the President shall refer the complaint to the Tribunal together with a report

relating to any inquires made by the President into the complaint.”

17 The applicant contends that he made only one complaint of victimisation, ie the complaint contained in his letter of 31 December 1996 that as a result of his assertions of January 1995 discrimination he was subjected to the detriments that he was not offered casual employment and no eligibility list was compiled following the interviews in March 1995.

18 The Tribunal accepts the applicant’s contention that he made only one complaint. By s87 “complaint” is defined, inter alia, to mean a complaint lodged under s88. Section 88(1) speaks of “a complaint in writing in respect of any contravention of (the) Act”. Section 50(1) makes it unlawful for a discriminator to subject a person victimised to any detriment on any specified ground. The respondent contends that each act of subjecting to a detriment constitutes a separate complaint which can be severed and considered separately. In the Tribunal’s view, such an approach is unduly complex. When a person alleges that he or she has been subjected to detriments of the same general type on the ground that he or she has made an allegation of discrimination, and when the related allegations are made in one document, there is only one complaint. The President should have referred both Part A and Part B of the applicant’s complaint to the Tribunal.

19 The Tribunal’s view is that the allegation concerning non-preparation of an eligibility list does disclose a contravention of the Act.

20 While the President should have referred the whole of the complaint to the Tribunal, he did not do so. Once the President has given as a reason for declining to entertain a complaint that it discloses no contravention, he cannot be required to refer the complaint. In such circumstances, the Tribunal has no power to call in the unreferred part of the complaint.

21 Had it the power to call in and deal with the eligibility list aspect of the complaint, the Tribunal would find that allegation of victimisation to be unsubstantiated for the same reason that the Equal Opportunity Tribunal and Justice Simpson considered it to be unsubstantiated, ie the applicant clearly did not meet the eligibility criteria and could not have been placed on an eligibility list even if one had been created. Further, the Tribunal accepts the respondent’s submission that there is no evidence that the failure to compile an eligibility list was causally related to the applicant’s previous complaint of discrimination. The allegation is lacking in substance.

22 As to the alleged failure to provide the applicant with casual work, the applicant had ample opportunity to provide the President with information which might substantiate the allegation and has been afforded every opportunity to file material in the Tribunal which might establish the allegation. Apart from the bare allegation, no information regarding this matter has been forthcoming. The Tribunal is driven to conclude that this allegation is lacking in substance.

23 The complaint is dismissed as lacking in substance.

24 In the Tribunal’s view, there are no special circumstances which justify an order for costs. It is appropriate that each party pay its own costs.