McCoy v Lever
[2008] NSWADT 206
•1 August 2008
CITATION: McCoy v Lever [2008] NSWADT 206 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
RESPONDENT
Donna McCoy
Mark LeverFILE NUMBER: 081008 HEARING DATES: 12 June 2008 SUBMISSIONS CLOSED: 12 June 2008
DATE OF DECISION:
1 August 2008BEFORE: Scahill A - Judicial Member CATCHWORDS: Dismissal of complaint - frivolous vexatious misconceived or lacking in substance MATTER FOR DECISION: Preliminary matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977CASES CITED: Dee v Commissioner of Police and Anor [2003] NSWADT 217
Ehl v Department of Education and Training and NSW Teachers Federation [1999] NSWADT 102
Fricke v Corbett Research Pty Ltd [2004] NSWADT 128
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1REPRESENTATION: APPLICANT
RESPONDENT
In person
In personORDERS: 1. The complaint of sexual harassment against Mr Lever relating to telephone calls and the visit to Ms McCoy’s home during Ms McCoy’s absence from work referred to in paragraphs 21 to 28 is dismissed pursuant to section 102 of the ADA
2. All complaints of vilification against Mr Lever are dismissed pursuant to section 102 ADA
3. The withdrawal of the complaint in relation to unidentified telephone calls to Ms McCoy’s home in late July 2006 is noted
4. Costs are reserved.
REASONS FOR DECISION
1 On 18 of May 2007 Ms Donna McCoy made a complaint to the Anti -Discrimination Board (ADB) alleging that she had been sexually harassed, vilified and victimised in the area of employment while working for Australian Cooperative Foods Ltd trading as Dairy Farmers. The complaint letter annexed a report from an investigator Mr Butt setting out details of Ms McCoy’s allegations.
2 On the 11th of October 2007 the ADB advised Mr Lever that it was investigating complaints which involved allegations against him. On the 11th of December 2007 the ADB received a response to the complaint from Mr Lever. Mr Lever denied that he had sexually harassed or victimised Ms McCoy.
3 Following the ADB's investigation into the complaints the President of the ADB referred the complaint against Mr Lever to the Administrative Decisions Tribunal (ADT) pursuant to section 93C of the Anti - Discrimination Act 1977 on or around 1st April 2008.
4 On the 14th of April 2008 Mr Lever lodged an application seeking amongst other things that Ms McCoy's complaint him be dismissed as frivolous vexatious, misconceived or lacking in substance. This application was heard by the Tribunal on 12 June 2008.
The complaint of sexual harassment, vilification and victimisation against Dairy Farmers and Mr Lever
5 Ms McCoy's letter of the 18th of May 2007 made a complaint that she had been sexually harassed and victimised subsequent to the making of her complaint of sexual harassment and further vilified as result of her complaint of sexual harassment while employed by Dairy Farmers.
The complaint of sexual harassment against Mr Lever
6 The complaint of sexual harassment lists instances such as:
The victimisation complaint against Dairy Farmers and Mr Lever
- inappropriate sexual conversation at Christmas drinks
- the viewing of pornographic material in the office
- the sending of sexually explicit e-mails and SMS; and
- sexual conversations.
The statement attached to Ms McCoy's complaint taken by an investigator Peter Butt names Mr Lever in relation to the allegations of sexual harassment.
7 The complaint of victimisation is made against Dairy Farmers on the basis of Ms McCoy's receipt of a warning letter dated 22nd of August 2006 citing inappropriate conduct in the workplace following her complaint to management about a sexually hostile environment made by letter dated 14 July 2006. The warning letter of 22nd August 2006 was subsequently retracted by Dairy Farmers. Ms McCoy does not cite any specific actions of Mr Lever in respect of victimisation in her letter of the 18th of May 2007. However Ms McCoy confirmed during the hearing of 12th June 2008 that she considered Mr Lever’s attendances at her home in June/July 2006 as both sexual harassment and victimisation.
8 Ms Mc Coy also confirmed that it was her view that the phone calls she had allegedly received in July 2006 when the caller had hung up were most likely made by Mr Lever and were evidence of vilification and victimisation. No evidence has so far been provided which links Mr Lever to these calls such as telephone records relating to any telephone owned or rented by Mr Lever.
The vilification complaint against Mr Lever
9 Ms McCoy also complained in her letter of vilification. Ms McCoy cites the receipt of a letter at her private home address in March 2007 as evidence of vilification. Ms Mc Coy refers to the letter as “a retaliation letter from John Peters with possibly Mark Lever being in on it also.”
10 Ms McCoy also confirmed that it was her view that the phone calls she had allegedly received in July 2006 when the caller had hung up were most likely made by Mr Lever and were evidence of vilification and victimisation. No evidence has so far been provided which links Mr Lever to these calls such as telephone records relating to any telephone owned or rented by Mr Lever. However Ms McCoy requested the issue of a summons in relation to Mr Lever's personal telephone service to clarify whether he made calls to her telephone number at these times.
Application by the respondent pursuant to section 102 of the ADA 1977
11 At the hearing of this matter on the 12th of June 2008 Mr Lever sought the dismissal of the complaints against him on the basis that they were misconceived frivolous or vexatious and lacking in substance.
12 Mr Lever made submissions on the basis of the written submission lodged on his behalf with the Tribunal on the 14th of April 2008.
13 In short Mr Lever's submissions were as follows:
Legal Principles with respect to an Application Pursuant to Section 102 of the ADA
1) The original complaint dated 18th of May 2007 was made against Dairy Farmers and that complaint had subsequently been withdrawn and terminated as the matter was subject to a settlement between Ms McCoy and Dairy Farmers. On this basis Mr Lever argued that there was no separate complaint against him and that the matter had concluded with the termination of the complaint against Dairy Farmers.
2) The respondent submits that the alleged incidents on the 23rd of December 2005 at the Parkway Hotel should be seen in the light of a party atmosphere amongst fellow employees “where alcohol was a consideration.” The respondent submitted that it would not be anticipated in terms of section 22A of the ADA that the discussion would have offended humiliated or intimidated the applicant.
3) The respondent submits that he had told Ms Mc Coy that he was unaware that he had e-mailed her inappropriate material as set out in paragraph 15 of Ms McCoy’s statement. He further notes that he had indicated to Ms McCoy that he would not do it again.
4) The respondent submits that he admits to having sent one inappropriate SMS as set out in paragraph 16 of Ms McCoy’s statement and that he indicated to Ms McCoy that he would not do it again.
5) The respondent submits that at no time did Ms McCoy display her embarrassment offence, humiliation or intimidation in relation to the receipt of the e-mails noted in paragraph 15 or the SMS in paragraph 16 of her statement.
6) The respondent submits that he was not in the office at the time of the alleged display of pornographic material on computer on the 31st of May 2006 as set out in paragraphs 17 and 18 of Ms McCoy’s statement.
7) The respondent submits that the calls referred to in paragraphs 22 to 29 did not constitute an act of sexual harassment or victimisation and were related to a workplace workers compensation matter.
8) The respondent submits that the telephone calls referred to in paragraph 30 of Ms McCoy's statement are not connected to him and that there is no evidence provided that they are connected to him. Further the respondent submits that the phone calls would not constitute either sexual harassment and victimisation or vilification.
14 Section 102 of the ADA provides as follows:
15 Section 92(1)(a)(i) and (ii) confers on the President of the ADB the power to decline a complaint during investigation of a complaint if the President is satisfied that the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance or if the President is satisfied that the conduct alleged, or part of the conduct alleged, is proven, would not disclose the contravention of a provision of this Act or the regulations.
The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a) (i) or (ii) or (b).
16 As Barwick J observed in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125" a Court must be satisfied that it has the requisite material and necessary assistance from the parties to reach a definite and certain conclusion" and "a Plaintiff ought not be denied access to the customary Tribunal which deals with actions of a kind ... unless his lack of a cause of action is clearly demonstrated".
17 The Tribunal has previously considered applications pursuant to section 111 of the ADA, which is the former provision in similar terms to section 102. Section 102 however, confers on the Tribunal the additional power of enabling the Tribunal to dismiss a complaint or part of a complaint if the conduct alleged if proven would not disclose a contravention of the provisions of the ADA.
18 In previous decisions in which the Tribunal has considered whether to summarily dismiss a complaint or part of a complaint, the Tribunal has stated, consistent with His Honour, Chief Justice Barwick’s observations set out above, that the discretion to do so must be exercised with exceptional caution and only if the circumstances clearly warrant such an action.
19 As the Tribunal stated in Fricke v Corbett Research P/L [2004] NSWADT 128.
20 The need for caution is even more apparent in cases where such an application is made prior to the adducing of the complainant's evidence at the substantive hearing. Ultimately, it is for each Tribunal to determine the application according to its own circumstances. It is for the Tribunal to decide whether the application should be heard and determined prior to the full hearing of the complainant's case. It has been suggested that "prior to the Tribunal commencing a hearing on the merits, it is difficult, if not impossible, for the Tribunal to determine whether there may be substance to a complainant's allegations. 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 paragraph 14. See also Dee v Commissioner of Police andAnor [2003] NSWADT 217 at paragraph 24.
21 Accordingly, the Tribunal’s approach in such matters is to take the Applicant’s case at its highest and determine whether, when taken at its highest, it could possibly substantiate a complaint or disclose a contravention of a provision of the ADA. As stated by the Tribunal in Fricke’s case.
22 The standard of satisfaction for a Section 111 application is quite high. The Tribunal must be satisfied in effect that the complainant has no chance of succeeding on the evidence as set out before it. It is not appropriate to find that discrimination has taken place on the mere assertion by the complainant that it is so and the absence of evidence to that effect. The complainant must, to establish the existence of discrimination, establish objective facts from which to infer the other facts which he sought to establish (at paragraph 20). The Tribunal approaches its role by seeing whether the facts as stated by a complainant at their highest show that there may be grounds on which to decide that the complaint either ought be dismissed or alternatively, permitted to proceed to a full hearing, in which case the respondent's evidence will be called.
Applicable Law
Section 89 ADA
Form and content of complaints
Sexual harassment
(1) A complaint is to be in writing but does not have to take any particular form.
(2) A complaint, as made, need not demonstrate a prima facie case.
23 For the purposes of this Part, a person sexually harasses another person if:
Part 2A of the ADA sets out the prohibition against sexual harassment.
22A Meaning of “sexual harassment”
Harassment of employees, commission agents, contract workers, partners etc
(a) The person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
(b) The person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated
24 Sections 22A and 22B of the ADA make it unlawful for an employee to sexually harass another employee by engaging in unwelcome conduct of a sexual nature in relation to the other person. It would appear in this matter that the Tribunal needs to decide whether:
22B Harassment of employees, commission agents, contract workers, partners etc
(1) It is unlawful for an employer to sexually harass:
(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.
(a) an employee, or
(b) a person who is seeking employment with the employer.
Victimisation
- the alleged incidents at Christmas drinks;
- the sending of email and an SMS;
- the display of videos in the workplace; and
- the attendance at Ms McCoy's home while she was away from work ill, individually constituted unwelcome conduct of a sexual nature (Tribunal emphasis) from Mr Lever to Ms McCoy.
25 Under section 50 of the ADA the Respondent will have victimised Ms McCoy if he subjected her to a "detriment" because she alleged that the Respondent had contravened the ADA. The relevant parts of section 50 are as follows:
Section 50(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,
...
(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.
I note the importance of establishing the awareness in the alleged victimiser of the intention in the victimised to make a complaint or that a complaint has been made.
Vilification
26 The ADA makes vilification on the grounds of race, homosexuality and transgenderism unlawful. It is only on these grounds that vilification is unlawful under the ADA.
27 Ms Mc Coy has not alleged that she has been vilified under any of these three grounds.
Reasons for Decision
Was there a separate complaint against Mr Lever and was it terminated by Ms McCoy’s withdrawal of her complaint against Dairy Farmers?
28 Ms McCoy's letter of the 18th of May 2007 comments specifically about Mr Lever's behaviour. Further the attached statement taken by Peter Butt makes mention of alleged behaviour by Mr Lever in paragraphs 10, 13, 15 to 17, and 20 through to 29 inclusive. In the circumstances it would appear that the section 89 of the ADA definition of a complaint has been satisfied.
29 The President of the Anti-Discrimination Board wrote to Mr Lever on 11 October 2007 and sought his response to the complaints against him. Mr Lever then responded to the President of the Anti-Discrimination Board by a letter dated the 10th of December 2007. Mr Lever was advised by the Anti-Discrimination Board of the referral of the complaint to the Administrative Decisions Tribunal in April 2008. This referral specifically nominated the complaint by Ms McCoy against Mr Lever.
30 In the circumstances I find that Mr Lever has at all relevant times been made aware of the existence of the complaint against him – and that the disposal of the complaint against Dairy Farmers did not end the matter in relation to him individually.
31 In determining whether the whole or any part of the Applicant’s complaints should be dismissed summarily pursuant to section 102 or alternatively, the whole of or any part of the complaints should proceed to a full hearing, the Tribunal has examined whether the facts as stated by the Applicant, at their highest, could substantiate a complaint or disclose a contravention of the legislation. In performing this task the Tribunal has proceeded with exceptional caution.
Complaint of sexual harassment against Mr Lever
32 I have considered each of the instances that Ms McCoy cites as sexual harassment by Mr Lever. I have considered whether at their highest each of the matters might have been unwelcome conduct of a sexual nature and whether a reasonable person would anticipate that the other person would be offended humiliated or intimidated. I consider that all instances of Ms McCoy’s complaint of sexual harassment should be left for consideration at any substantive hearing – other than those relating to Mr Lever’s alleged behaviour in calling and visiting Ms McCoy’s home in June/July 2006.
33 The various telephone calls and the visit to Ms McCoy’s home during Ms McCoy’s absence from work referred to in paragraphs 21 to 28 cannot be said to be unwelcome conduct of a sexual (Tribunal’s emphasis) nature in relation to Ms McCoy. Accordingly I dismiss this aspect of the complaint against Mr Lever as a complaint of sexual harassment pursuant to section 102 of the ADA.
34 However Ms McCoy complains that this behaviour also constitutes victimisation. At its highest the behaviour if proved may amount to a detriment. The complaint relating to paragraphs 21-28 of Ms McCoy’s statement remains on foot insofar as it is a complaint of victimisation.
Vilification complaint
35 As indicated above Ms Mc Coy has not alleged that she has been vilified on any unlawful ground – race, homosexuality or transgenderism.
36 Accordingly any complaint of vilification against Mr Lever relating to the letter sent by persons unknown to Ms McCoy’s home is misconceived as a vilification complaint. In so far as Ms McCoy’s complaint against Mr Lever alleges vilification I dismiss that part of the complaint.
Victimisation complaint
Attendance at Ms McCoy’s home and telephone calls by Mr Lever 22nd June-2ndJuly 2006
37 These matters have been dismissed by the Tribunal as instances of sexual harassment. However it is the Tribunal’s view that at their highest these allegations could constitute victimisation. The issue of whether Mr Lever had knowledge of Ms McCoy’s complaint about sexual harassment or her intention to make one to Dairy Farmers was not contested during the hearing. This aspect of the victimisation complaint remains on foot.
Unidentified phone calls
38 Ms McCoy refers to unidentified phone calls from 20-28 July 2006 in paragraph 30 of her statement. Ms McCoy told the Tribunal that she considered these as evidence of vilification and victimisation by Mr Lever. The Tribunal has dismissed the complaint of vilification in relation to these telephone calls.
39 In considering whether these telephone calls may constitute victimisation by Mr Lever I note there is no evidence before the Tribunal of the provenance of these calls.
40 Ms McCoy advised the Tribunal on 30 July 2008 that this complaint is withdrawn.
Conclusion
41 The complaint of sexual harassment against Mr Lever – except in respect of his attendances at Ms McCoy’s home and telephone calls in June/July 2006 remains on foot.
42 The complaint of sexual harassment against Mr Lever in respect of his attendances at Ms McCoy’s home and telephone calls in June/July 2006 is dismissed.
43 The complaint of victimisation in relation to Mr Lever’s attendances at Ms McCoy’s home and telephone calls in June/July 2006 remains on foot.
44 The complaint of victimisation in respect of the unidentified telephone calls to Ms McCoy’s home in late July 2006 is withdrawn.
45 All complaints of vilification are dismissed.
Orders
- 1. The complaint of sexual harassment against Mr Lever relating to telephone calls and the visit to Ms McCoy’s home during Ms McCoy’s absence from work referred to in paragraphs 21 to 28 is dismissed pursuant to section 102 of the ADA
2. All complaints of vilification against Mr Lever are dismissed pursuant to section 102 ADA
3. The withdrawal of the complaint in relation to unidentified telephone calls to Ms McCoy’s home in late July 2006 is noted
4. Costs are reserved.
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