Mitchell v Clayton Utz (No 3)

[2010] NSWADT 100

CITATION:

Mitchell v Clayton Utz (No 3) [2010] NSWADT 100

DIVISION:

Equal Opportunity Division

PARTIES:

APPLICANT
Michael Mitchell

FIRST RESPONDENT
Clayton Utz

SECOND RESPONDENT
Garth Williams

THIRD RESPONDENT
Jamie Taylor

FOURTH RESPONDENT
Narelle Rutz

FILE NUMBER:

091046

HEARING DATES:

On the papers

SUBMISSIONS CLOSED:

9 March 2010

 
DATE OF DECISION: 

21 April 2010

BEFORE:

Hennessy N - Magistrate (Deputy President)

CATCHWORDS:

EQUAL OPPORTUNITY – application to amend complaint -

LEGISLATION CITED:

Anti-Discrimination Act 1977

CASES CITED:

Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174
Horne v Press Clough Joint Venture (1994) EOC 92-556
Elliott v Nanda (2001) 11 FCR 240
Molony v Golden Ponds Corporation Pty Ltd (1995) EOC 92-674
Dixon v RNJ Sicame Pty Ltd & anor; Sims v RNJ Sicame Pty Ltd [2002] NSWADT 154
Cooper v Human Rights Commission [1999] FCA 180

REPRESENTATION:

APPLICANT
In person

RESPONDENT
M Byrnes, special counsel

ORDERS:

Mr Mitchell’s application to amend his complaint to add complaints of a) ‘aiding and abetting’ against Mr Trevor Robinson and Ms Sonia Goumenis; and b) victimisation against Mr Grant Fuzi and Clayton Utzis refused.

Introduction

1 Mr Mitchell has applied to amend his complaints of discrimination and harassment against Clayton Utz and three of its employees, to add two additional complaints: Anti-Discrimination Act 1977 (AD Act), s 103. The complaints Mr Mitchell wishes to add are:

a) complaints of ‘aiding and abetting’ against Mr Trevor Robinson and Ms Sonia Goumenis; and
b) complaints of victimisation against Mr Grant Fuzi and Clayton Utz.

2 The respondents oppose that application. The issue before the Tribunal is whether it should exercise its discretion to amend the complaint in the manner requested by Mr Mitchell. I have decided not to do so.

Background

3 In mid June 2007, Mr Mitchell began working as a solicitor at Clayton Utz. His employment was terminated six weeks later for engaging in sexually harassing conduct. Mr Mitchell told fellow employees that he had changed into sports clothes underneath a trench coat in his office. He says that he was then subjected to harassing remarks and other conduct including being called ‘trench’ and ‘flasher’. Mr Mitchell says that he responded by asking two of his colleagues on separate occasions whether they were fantasizing about him in his trench coat. He says he only made those comments in response to the harassment directed towards him and to indicate that he was an ‘easy going’ person. Following complaints of sexual harassment against him, Mr Mitchell’s employment was terminated and he went back to live in Canada.

4 Mr Mitchell has been diagnosed as ‘bipolar’ and says that the real reason for being dismissed was that he resisted providing detailed information about his medical condition. He met twice with Ms Rutz, the Occupational Health and Safety Advisor at Clayton Utz, and says that she asked him personal and probing questions about his medical history and the medication he was taking. He also says that she asked those questions aggressively and that, contrary to their agreement, she did not arrange for a third person to be present at the second meeting.

5 Mr Mitchell lodged several complaints of discrimination, harassment and victimisation with the President of the Anti-Discrimination Board (the Board). Those complaints were contained in a 92 page (299 paragraph) document and subsequent correspondence clarifying and adding to those complaints. The original complaint document was expressed in terms of breaches of federal anti-discrimination legislation because Mr Mitchell had initially lodged his complaints with the former Human Rights and Equal Opportunity Commission (HREOC). He eventually withdrew all those complaints and lodged them with the Board. The complaint to the Board named Clayton Utz and ten employees as respondents. The President of the Board did not accept the complaints of race discrimination based on Mr Mitchell’s Canadian national origin. Apart from the race discrimination complaints Mr Mitchell made complaints of:

1. discrimination harassment and victimisation on the ground of disability against Narelle Rutz and Claire Keeling and Clayton Utz;

2. sexual harassment against Mr Williams, Mr Taylor, Ms Goumenis, Ms Best, Mr Robinson and Clayton Utz;

3. disability and sex discrimination against Grant Fuzi and Clayton Utz; and

4. sex discrimination, disability discrimination and victimisation against Mr Catanzariti and Clayton Utz.

6 The claims against Clayton Utz were that they were vicariously liable for the acts of their employees: AD Act, s 53. Mr Mitchell withdrew his complaint of victimisation against Ms Clare Keeling prior to the President referring the complaints to the Tribunal.

7 Following investigation, the President declined each of Mr Mitchell’s remaining complaints as lacking in substance namely:

1. disability discrimination against Clayton Utz;

2. sexual harassment against employees of Clayton Utz - Mr Williams, Mr Taylor, Ms Best, Ms Goumenis and Mr Robinson;

3. sex discrimination against Clayton Utz; and

4. victimisation against Clayton Utz, Mr Catanzariti and Ms Rutz.

8 It appears that in formulating these complaints the President took the view that because an individual employee cannot be personally liable for acts of discrimination in employment, Clayton Utz, as the employer, was the appropriate respondent in relation to those complaints. Individual employees can be personally liable for acts of sexual harassment and victimisation and that appears to be the reason that the President continued to identify certain individuals as respondents to those complaints.

9 At Mr Mitchell’s request, the President referred the declined complaints to the Tribunal. Because the complaints had been declined, the Tribunal’s leave was required before the complaints could proceed: AD Act, s 96(1). In Mitchell v Clayton Utz & Ors [2009] NSWADT 266 (the leave decision), the Tribunal made the following orders:

Leave is granted for the following complaints or parts of complaints to proceed:

a) the complaint of disability discrimination against Clayton Utz relating to Ms Rutz’ questioning of Mr Mitchell in meetings on 22 June 2007 and 19 July 2007 so far as those questions relate to Mr Mitchell’s medical history and medical treatment;

b) the complaint of disability discrimination against Clayton Utz relating to the non-attendance of a third party at a meeting with Ms Rutz on 19 July 2007;

c) the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer in relation to the alleged conduct except for

(i) allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’ unless that conduct was accompanied by conduct of a sexual nature;

(ii) the comment alleged to have been made by Mr Williams that 'solicitors could take paralegals home for sex'

d) the complaints of victimisation against Ms Rutz and against Clayton Utz as her employer.

2. Leave is refused for the following complaints or parts of complaints to proceed:

a) the complaint of disability discrimination against Clayton Utz relating to Ms Rutz’ questioning of Mr Mitchell in meetings on 22 June 2007 and 19 July 2007 so far as those questions relate to Mr Mitchell’s fitness to perform his duties;

b) the complaint of disability discrimination against Clayton Utz relating to the termination of his employment;

c) the complaints of sexual harassment against Ms Goumenis, Ms Best and Mr Robinson;

d) the complaint of sex discrimination against Clayton Utz; and

e) the complaint of victimisation against Mr Catanzariti.

Principles applicable to the amendment of complaints

10 Section 103 of the AD Act provides that:

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.
(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.
(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.

11 Section 103 was considered by the Tribunal in Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174 (8 June 2006). In that case the Tribunal said that s 103 gives the Tribunal ‘a wide discretion to amend a complaint’. At [14] Smyth JM set out several factors relevant to the exercise of the discretion to amend a complaint.

Complaints of aiding and abetting against Mr Robinson and Ms Goumenis

12 Aiding and abetting. The heading to s 52 of the AD Act is ‘aiding and abetting etc’. Section 52 provides that:

It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.

13 The effect of s 52 is that a person who contributes to an act of unlawful discrimination becomes jointly liable for the conduct. The provision has seldom been used. It has most commonly been applied, not to the actions of employees, but to the actions of third parties such as unions (Horne v Press Clough Joint Venture (1994) EOC 92-556), employment agencies (Elliott v Nanda (2001) 11 FCR 240) and companies other than the employer (Molony v Golden Ponds Corporation Pty Ltd (1995) EOC 92-674). (See Rees, Lindsay and Rice, Australian Anti-Discrimination Law, Federation Press, 2008 at 10.8.32 – 10.8.40.)

14 Proposed complaint against Mr Robinson. Mr Mitchell’s allegation against Mr Robinson is that he permitted other people, Mr Williams and Mr Taylor, to sexually harass him. The factual basis for the complaint against Mr Robinson is in Mr Mitchell’s original complaint to the Board at [60] and [61]. In summary the complaint alleges that one Friday, early in the evening, Jamie Taylor went into Mr Mitchell’s office, took his overcoat, put it on and ran up and down the hall calling out, ‘trench, trench, trench’. He then went into the office of Ng Ho (where Mr Mitchell and Mr Williams were) and continued to make fun of Mr Mitchell. Trevor Robinson, a partner with Clayton Utz, came down the hall and stood outside Ng Ho’s office. Mr Williams suggested that they tell Mr Robinson some stories about Mr Mitchell changing in his office. Mr Mitchell objected to this because he did not want Mr Robinson to find out that he had changed in his office. Mr Mitchell told Mr Williams and Mr Taylor not to say anything but they referred to him as ‘trench’ in front of Mr Robinson and told Mr Robinson both true and untrue stories about Mr Mitchell having changed in his office. They also mentioned that Mr Mitchell had been naked under his trench coat. Mr Robinson did nothing to put a stop to the events. Rather, he continued to watch until he ‘got maximum enjoyment out of it and then walked away’.

15 Proposed complaint against Ms Goumenis. The allegation against Ms Goumenis is that she permitted Mr Taylor to sexually harass Mr Mitchell. The factual basis of the complaint against Ms Goumenis is in Mr Mitchell’s complaint to the Board at [62]. In summary that complaint alleged that later on the same Friday evening to which reference has already been made, Mr Taylor and Mr Mitchell were talking outside Ms Goumenis’ office when Mr Taylor started making fun of Mr Mitchell again. Mr Mitchell says he told Mr Taylor he was getting very tiresome but Mr Taylor insisted that it was funny and kept referring to the fact that he had changed his clothes in his office underneath his over overcoat and that is basically what a flasher did. Mr Mitchell then became extremely frustrated and said to Mr Taylor, ‘Why do you keep talking about this? Are you fantasising about me in my trenchcoat?’ Mr Taylor then turned to walk back into his office when Mr Mitchell said, ‘Good, I'm glad the conversation is over.’ This remark was said to have elicited a loud and sudden laugh from Ms Goumenis who had been listening to Mr Taylor make fun of Mr Mitchell from her own office.

16 President’s decision. Mr Mitchell did not mention ‘aiding or abetting’ in his complaint and the President did not identify the allegations set out above as giving rise to a separate complaint of aiding and abetting against Mr Robinson or Ms Goumenis. While it is not necessary to determine why the President did not characterise the factual allegations in that way, it is apparent from reading Mr Mitchell’s complaints that the reason he included references to the conduct outlined above was that he regarded that conduct as supporting his claim that Clayton Utz was vicariously liable for the conduct of its employees. Vicarious liability is described in s 53 in the following terms:

(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.
(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

17 Tribunal’s decision. As no complaint against Mr Robinson or Ms Goumenis of aiding and abetting had been declined by the President of the Board, the question of whether leave should be granted for such a complaint to proceed was not before the Tribunal at the leave hearing. The Tribunal dealt with the complaints of sexual harassment against Mr Robinson at [36] and [47]:

[36] Mr Mitchell says that Mr Robinson is a partner of Clayton Utz and that he was aware that he was being called 'trench' and did nothing to stop the conduct. Mr Mitchell makes no allegation of sexually harassing conduct against Mr Robinson personally. According to Mr Mitchell, Mr Robinson derived 'maximum enjoyment' out of the comment. Mr Robinson denies the allegation.

. . . .

[47] Conclusion . .... Since there is no allegation that Mr Robinson engaged in any conduct of a sexual nature as defined in s 22A, nor any other basis on which Mr Mitchell submitted that Mr Robinson could be liable under the AD Act , leave is refused for the complaint of sexual harassment against him to proceed.

18 The Tribunal did not deal with the allegation against Ms Goumenis that she laughed at remarks made by Mr Taylor because that was not the subject of any complaint that the President had declined. The Tribunal dealt with a separate incident involving a complaint of sexual harassment against Mr Goumenis at [34] and [43].

19 Failure to apply to amend complaint at leave hearing. The respondents submitted that because the Tribunal refused leave for complaints of sexual harassment against Mr Robinson and Ms Goumenis to go ahead, Mr Mitchell should not be permitted to amend his complaint to add those employees as respondents. According to the respondents, Mr Mitchell’s application is, in effect, an appeal from part of the Tribunal's leave decision. They say that Mr Mitchell is seeking to reopen issues which have already been ventilated and determined by both the President of the Board and the Tribunal.

20 This submission is not correct because the sole issue at the leave hearing was whether complaints that had been declined by the President of the Board should proceed. A leave hearing is not the occasion on which an applicant may apply for his or her complaint to be amended. That is because there is no complaint before the Tribunal to be amended unless the Tribunal grants leave for a declined complaint to proceed. The comment in the leave decision at [47] that Mr Mitchell had not submitted any other basis on which Mr Robinson could be liable was not relevant to the issue of whether leave should be granted. Consequently, all the submissions of the parties relating to what happened at the leave hearing, including that Mr Mitchell was given insufficient time to apply to amend his complaint and that, as a self-represented party, the Tribunal should have suggested to him that he could re-characterise his complaint, are irrelevant to the issue of whether the Tribunal should now amend Mr Mitchell’s complaint.

21 Relevant considerations. The considerations which are relevant in this case to the question of whether the Tribunal should exercise its discretion to amend Mr Mitchell’s complaints can be summarised as follows:

a) whether the application was made in a timely manner;

b) the relationship between the amendment sought, the complaint to the Board and the complaint before the Tribunal;

c) the merits of the proposed complaints; and

d) any prejudice to either party.

22 Application made in timely manner. Mr Mitchell applied for leave to amend his complaints after the Tribunal’s decision that some of the complaints declined by the President of the Board should go ahead. That was the appropriate time to make such an application and it was made in a timely manner.

23 Relationship between the amendment sought, the complaint to the Board and the complaint before the Tribunal. The complaint of sexual harassment to which the amendment application relates is currently before the Tribunal. The amendment seeks to jointly attribute liability for that sexually harassing conduct to Mr Robinson and Ms Goumenis. If the amendment were to be made, three respondents would be potentially liable for the same conduct: the alleged perpetrators, Clayton Utz as the employer, and Mr Robinson and Ms Goumenis as contributors.

24 Merits of the proposed complaints. The first element in establishing what is known as ‘contributory’ liability under s 52 is to establish that there was an unlawful contravention of the Act. It is this contravention which triggers the liability of third parties: Dixon v RNJ Sicame Pty Ltd & anor; Sims v RNJ Sicame Pty Ltd [2002] NSWADT 154 at [42]; Cooper v Human Rights Commission [1999] FCA 180 per Madgwick J at [27]. In this case the Tribunal has, with certain qualifications, given leave for complaints of sexual harassment against Mr Williams and Mr Taylor to proceed. Those complaints include the incident on Friday evening to which Mr Mitchell has referred. They also include the second incident later on the same evening which Ms Goumenis was said to have witnessed. While the Tribunal has not yet determined whether any of this conduct amounts to sexual harassment, that is the conduct for which Mr Mitchell now wishes to submit that Mr Robinson and Ms Goumenis are jointly liable.

25 The second element of contributory liability has four aspects:

1. the person alleged to have contributed to the act knew or had reason to suspect that the principal wrongdoer was going to engage in an act of unlawful discrimination;

2. the person had power to prevent that act;

3. the person defaulted in some duty of control or capacity to interfere with the conduct of the principal wrongdoer; and

4. that person’s default resulted in a failure to prevent the unlawful discrimination: Elliott v Nanda & Commonwealth [2001] FCA 418 at [161].

26 According to the respondents, Mr Mitchell has failed to particularise the conduct of Mr Robinson or Ms Goumenis that he alleges ‘permitted’ the sexual harassment. He is said not to have identified evidence to suggest that either of those people took steps to permit the alleged sexual harassment. At its highest, Mr Mitchell’s case is that they were aware of the alleged conduct and did nothing. The respondents submitted that those circumstances do not reach the level of 'permitting' a person to engage in sexual harassment. Contrary to the respondents’ submissions, it is clear from Mr Mitchell’s submissions that it is the inaction of Mr Robinson and Ms Goumenis when witnessing the alleged conduct and their reaction to that conduct that constitutes the alleged breach.

27 Prejudice to applicant. If his complaint of sexual harassment is substantiated, Mr Mitchell is entitled to be compensated for any loss or damage suffered ‘by reason of the respondent’s conduct’: AD Act, s 108(2)(a). If Clayton Utz is held to be vicariously liable for the sexually harassing conduct and Mr Robinson and Mr Goumenis are found to have contributed to that conduct, then liability for the loss or damage will be shared jointly between the three respondents, that is, the perpetrators, the employer and the contributors. The amount of that loss or damage will not change regardless of whether one, two or three respondents are jointly liable for it. Consequently, the only prejudice to Mr Mitchell of a refusal to add complaints against Mr Robinson and Ms Goumenis is that if the alleged perpetrators or Clayton Utz are unable to pay any damages which are awarded, Mr Mitchell would have recourse to the contributors, Mr Robinson and Ms Goumenis for those damages. Realistically, it is likely that the alleged perpetrators and/or Clayton Utz, would have the capacity to pay any damages the Tribunal may award in relation to the complaint of sexual harassment.

28 Prejudice to respondents. Mr Mitchell submitted that there is no hardship to Mr

Robinson (and presumably Ms Goumenis) in being added as party. According to the respondents there is undoubtedly prejudice because the allegations against both Mr Robinson and Ms Goumenis have no substance and those allegations have the potential to damage to their reputation and good name. It was said that the original complaint was made one and a half years ago and the relevant events are now close to three years old. Furthermore, the issues raised in defending an aiding and abetting complaint are necessarily different to those of sexual harassment.

29 Conclusion. Mr Mitchell has applied to add a complaint of aiding and abetting against Mr Robinson and Ms Goumenis in relation to a complaint of sexual harassment. If the complaint of sexual harassment is substantiated both the perpetrators and Clayton Utz as their employer, would be liable. While the complaint of aiding and abetting does not necessarily lack substance, it is rare for complaints of this kind to be made against other employees. That is because the perpetrators are personally liable for sexual harassment and the employer is vicariously liable if the elements of s 53 are made out. There is no tangible benefit to Mr Mitchell in adding a complaint which would make a third person jointly liable for any sexually harassing conduct. In particular, no extra damages can be awarded even if the third parties are found to have contributed to the harassment. On the other hand, there is serious prejudice to Mr Robinson and Ms Goumenis if they are made parties to a complaint of sexual harassment. On balance, I am of the view that the complaint should not be amended to add the complaints identified by Mr Mitchell of aiding and abetting against Mr Robinson and Mr Goumenis.

Complaints of victimisation against Mr Fuzi and Clayton Utz

30 Victimisation is unlawful pursuant to s 50 of the AD Act:

(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.

31 The elements of a victimisation complaint are

1. the complainant did or was suspected of doing one of the acts set out in s 50(1)(a) – (d); (the triggering event)

2. the respondents subjected him to a detriment; (the detriment)

3. the detriment was on the ground of the triggering event (causation).

32 Proposed complaint against Mr Fuzi. Mr Mitchell alleges that both Mr Fuzi and Clayton Utz victimised him contrary to section 50 of the AD Act. Mr Fuzi is said to be the head of Banking and Financial Services at Clayton Utz. The triggering event pursuant to s 50(1)(c) was that Mr Mitchell told Mr Fuzi during an interview that he had been sexually harassed by other employees. The ‘detriment’ was restricting his access to necessary information about the accusation of sexual harassment against him during the investigation process. The causal connection between those events was said to be that Mr Fuzi refused to provide the necessary information straight after Mr Mitchell made that allegation. Mr Mitchell clarified in his reply to the respondents’ submissions that he is seeking to add Clayton Utz as a respondent because they are vicariously liable for Mr Fuzi’s conduct.

33 Mr Mitchell explained the victimisation complaint in his submissions to the Tribunal in the following terms:

Once I informed Grant Fuzi that I experienced harassment, he refused to provide the rest of the allegations against me (he had only provided three of eight at that point). Once he heard my accusations, he said he needed to check with some other people before he could release the rest of the allegations although he later provided the allegations by e-mail (as I insisted he would have to do because otherwise it would be impossible to respond). Grant Fuzi and Clayton Utz restricted my access to other necessary information about the accusations against me that I should have been guaranteed under the employee handbook.

For example, Clayton Utz employee handbook warns that action will be taken against employees who make false complaints of sexual harassment. Also, the employee handbook states that it will follow natural justice in dealing with the investigation. For these two guarantees to have any meaning, a person accused of sexual harassment needs to be provided a certain amount of information about the accusations and accuses so that he can respond. . . Knowing the case against me should have included knowing all the relevant particulars and the names of the accusers . . .

34 Complaint to the Board. In his complaint to the Board, Mr Mitchell says that at the interview Mr Fuzi read three allegations to him. Mr Mitchell then told Mr Fuzi that employees had been making fun of him. Mr Mitchell asked Mr Fuzi to disclose the remainder of the complaints against him. He did so in an email the same day but Mr Mitchell says that that email did not contain any names or dates. Mr Mitchell wrote back requesting further particulars and more time to respond. An extension of time was granted but further details were not provided because Mr Fuzi took the view that the details were sufficient for Mr Mitchell to respond. Mr Mitchell responded by the due time and his employment was subsequently terminated pursuant to what Clayton Utz referred to as their contractual right to do so as Mr Mitchell was still within his probationary or qualifying period. Mr Mitchell alleges that Mr Fuzi’s conduct constituted discrimination on the ground of sex and/or disability.

35 President’s decision. As Mr Mitchell did not make a complaint of victimisation against Mr Fuzi in relation to these events, the President of the Board did not consider whether to decline a complaint of that kind. The only complaint which has any bearing on the complaint of victimisation that Mr Mitchell now seeks to add is the complaint of disability and sex discrimination in relation to the termination of his employment. The Board declined that complaint. Mr Fuzi was not made a respondent to that complaint because it is the employer, not the individual employee, who is liable for any discrimination relating to the termination employment: AD Act, s 49D(2)(c).

36 Tribunal’s decision. In relation to the termination complaint, the Tribunal said in the leave decision at [13] that:

13 Termination . Mr Mitchell initially complained that his employment had been terminated on the ground of his disability. In his written submissions, Mr Mitchell said that the inference that he was terminated on the ground of disability arises from two sources. The first was that Clayton Utz did not investigate the allegations of sexual harassment against him appropriately suggesting that those allegations were not the real reason for his termination. The second was that the certificate from his doctor was designed to get Clayton Utz to ‘back off from their aggressive questioning’. At the hearing Mr Mitchell said that it was not the disability itself that led to his termination but his continuing refusal to provide information about his medical condition. Clayton Utz’ version of events is that very serious allegations of sexual harassment were made against Mr Mitchell which were being investigated and that Mr Mitchell was given sufficient particulars to respond to those allegations. His disability was not a reason for the termination of his employment.

37 The Tribunal resolved this issue at [29] and [30]:

29 Termination . Mr Mitchell was employed by Clayton Utz for six weeks. His employment was terminated on 30 July 2007. He made it clear at the hearing that his case was that he was terminated because he refused to answer or resisted answering ‘private’ and ‘probing’ questions about his medical condition and treatment after the first meeting with Ms Rutz. Mr Mitchell obtained a letter from his doctor saying that ‘there are no medication issues that you need to be aware of’. Mr Mitchell says that that letter was requested because of the questions he was being asked.

30 Conclusion . The AD Act does not make it unlawful for an employer to terminate an employee for refusing to answer questions regardless of the reason for asking those questions. To substantiate his complaint, the ‘real’, ‘genuine’ or ‘true’ reason for the termination must be his disability or imputed disability. It is not open for Mr Mitchell to submit that ‘but for’ his disability he would not have been terminated. The manner in which the complaints of sexual harassment were investigated does not assist Mr Mitchell to establish that his disability was a reason for his termination when he is not alleging that the termination was because of his disability. Consequently, the complaint of disability discrimination in relation to the termination of Mr Mitchell’s employment lacks substance and leave is refused for that part of his complaint to proceed.

38 Application made in timely manner. Mr Mitchell applied for leave to amend his complaints after the Tribunal’s decision that some of the complaints declined by the President of the Board should go ahead. That was the appropriate time to make such an application.

39 Relationship between the amendment sought, the complaint to the Board and the complaint before the Tribunal. Mr Mitchell complained to the Board about not being given sufficient information about the allegations against him but characterised those complaints as complaints of disability and/or sex discrimination. There is no complaint currently before the Tribunal relating to the investigation of the sexual harassment allegations or the termination of Ms Mitchell’s employment.

40 Prospects of the complaint being substantiated. The respondents submit that the new allegation is based on speculation and that Mr Mitchell has not pointed to any evidence which would substantiate his complaint. Mr Mitchell did point to some evidence in support of his application in his submissions. He made the following comment in his written submission in reply at [14]: Detriment: Grant Fuzi stopped providing details about the claims – although the accusation were eventually released, other important information was withheld over the next few days.’ Despite giving a detailed account of the meeting with Mr Fuzi and subsequent events in his complaints to the Board, Mr Mitchell did not mention that Mr Fuzi reacted to his allegations of harassment by saying that he needed to check with other people before he could release the rest of the allegations. His complaint suggests that Mr Fuzi read out three allegations prior to Mr Mitchell disclosing that he had been the subject of harassing behaviour. Mr Mitchell has since pointed to evidence which he says supports his complaint.

41 Prejudice to applicant. The prejudice to Mr Mitchell if this complaint is not added is that he will have lost the opportunity to bring the complaint and, if substantiated, receive the benefit of any remedy the Tribunal may order.

42 Prejudice to respondents. The re-characterisation of factual allegations in the original complaint pertaining to Grant Fuzi into a victimisation complaint against Mr Fuzi and Clayton Utz is prejudicial to both respondents as neither is currently a respondent to a complaint of that kind.

43 Conclusion. While based on events to which Mr Mitchell referred in his original complaint, the proposed amendment constitutes an entirely new complaint. Mr Mitchell initially characterised the conduct as discrimination on the ground of disability and/or sex. He now seeks to re-characterise it as victimisation. Mr Mitchell had ample opportunity to characterise his complaint as one of victimisation against Mr Fuzi and Clayton Utz when he first complained to the Board. Given the extremely detailed nature of that complaint it is clear that Mr Mitchell was aware of the victimisation provisions and had given a great deal of thought to the question of whether anything that happened to him during his 6 weeks of employment with Clayton Utz constituted a breach of anti-discrimination legislation. Even though Mr Mitchell is self-represented, he is a lawyer and has a detailed understanding of the anti-discrimination provisions. On balance, it would be unfair to allow Mr Mitchell to re-cast his complaint to allege victimisation when complaints of disability and sex discrimination in relation to the same conduct are not before the Tribunal and Mr Mitchell had ample opportunity to make that complaint to the Board.

Mr Mitchell’s application to amend his complaint to add complaints of:

a) ‘aiding and abetting’ against Mr Trevor Robinson and Ms Sonia Goumenis; and
b) victimisation against Mr Grant Fuzi and Clayton Utz

is refused.