MOONEY and BUTLERS - BARRISTERS & SOLICITORS
[2012] WASAT 40
•29 FEBRUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: MOONEY and BUTLERS - BARRISTERS & SOLICITORS [2012] WASAT 40
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: 23 FEBRUARY 2012
DELIVERED : 29 FEBRUARY 2012
FILE NO/S: EOA 40 of 2011
BETWEEN: ELIZABETH MOONEY
Applicant
AND
BUTLERS - BARRISTERS & SOLICITORS
First RespondentCOMMISSIONER FOR EQUAL OPPORTUNTIY
Second Respondent
Catchwords:
Equal opportunity - Discrimination - Whether Tribunal has jurisdiction to inquire into complaint of conduct occurring more than 12 months prior to complaint to Equal Opportunity Commissioner - Whether complaints lacking in substance - Turns on own facts
Legislation:
Equal Opportunity Act 1984 (WA), s 4, s 66B(2)(c), s 83(4), s 83(5), s 90
State Administrative Tribunal Act 2004 (WA), s 47
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
First Respondent : Mr TJ Carmady
Second Respondent : Self-represented
Solicitors:
Applicant: N/A
First Respondent : Williams & Hughes
Second Respondent : N/A
Case(s) referred to in decision(s):
Winter v Commissioner of Western Australian Police Service [2006] WASAT 87
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On 24 August 2011, the Commissioner of Equal Opportunity referred to the Tribunal, pursuant to s 90 of the Equal Opportunity Act 1984 (WA), certain complaints by Ms Elizabeth Mooney against her former employer. The Commissioner had found the complaints to be lacking in substance, and had dismissed them on that basis.
At the Tribunal's direction, Ms Mooney identified which of the various matters of complaint to the Commissioner she wished to make the subject of inquiry before the Tribunal. She also provided a statement of the evidence she wished to give in support of her complaints. The respondent then raised three preliminary issues. Two of those went to the jurisdiction of the Tribunal, and the third was whether the proceeding should be dismissed, pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA), as being misconceived and/or lacking in substance.
The Tribunal determined that, consistent with the approach taken in the decision of Winter v Commissioner of Western Australian Police Service [2006] WASAT 87, complaints of conduct more than 12 months before complaint was made to the Equal Opportunity Commissioner, and in respect of which the Commissioner had not found that good cause existed to accept the complaints out of time, fell outside the Tribunal's jurisdiction. All but two of Ms Mooney's complaints fell in that category, and were accordingly dismissed.
The Tribunal considered whether the remaining two complaints should be dismissed as lacking in substance. Essentially, the respondent contended that the applicant's evidence did not raise an arguable case of discrimination on the grounds asserted. The Tribunal agreed, and the application was dismissed.
The preliminary issues
On 30 July 2010, the applicant, (Ms Elizabeth Mooney), a legal practitioner, lodged a complaint of discrimination on the ground of impairment, family responsibility, family status, marital status, race, and sex, and a complaint of victimisation against her former employers, Butlers Barristers & Solicitors (Butlers).
Ms Mooney had been dismissed by Butlers on 31 July 2009. A number of the matters of complaint (indeed all but her dismissal) concerned conduct occurring more than 12 months before the lodgement of her complaint with the Equal Opportunity Commissioner (Commissioner).
Section 83(4) of the Equal Opportunity Act 1984 (WA) (EO Act) requires that complaints of discrimination be made within 12 months of the conduct complained of. The Commissioner invited Ms Mooney to make submissions directed to the question of whether there was good cause for the Commissioner to accept the complaints which were out of time. Section 83(5) of the EO Act permits the Commissioner to accept time barred complaints where good cause is shown.
In a letter dated 3 May 2011, the Commissioner advised Ms Mooney that she did not accept that good cause had been shown, and accordingly did not accept the complaints so far as they related to events occurring before 30 July 2009.
The balance of Ms Mooney's complaint was then dealt with by the Commissioner, but ultimately by letter dated 29 June 2011, the Commissioner advised the applicant that she was dismissing her claims as lacking in substance. Ms Mooney then sought a review of that decision by the Tribunal.
When the matter first came before the Tribunal for directions, the applicant was directed to file and serve a statement particularising her complaint of discrimination by reference to the relevant provisions of the EO Act upon which she relied. In accordance with that direction, Ms Mooney filed a document entitled 'Statement of Claim' which read as follows:
…
DUTIES OF EMPLOYER
The respondent is in breach of s66B(2)(c) and (d) Equal Opportunity Act 1984 insofar as it is unlawful for an employer to discriminate against a person on the ground of a person's impairment by dismissing the employee or subjecting the employee to any other detriment.
The respondent is in breach of s35B(2) (a) (c) and (d) of the Equal Opportunity Act 1984 insofar as it is unlawful for an employer to discriminate against a person on the ground of a person's family responsibility or family status in the terms and conditions of employment that the employer affords the employee, by dismissing the employee or subjecting the employee to any other detriment.
The respondent is also vicariously liable for the acts of its employees.
BREACHES OF S66B
The respondent determined on 25 May 2009 to terminate my employment on the basis of imputed impairment and
In breach of s66B(2)(c) dismissed me on 31 July 2009
In breach of s66B(2)(d) subjected me to detriment in the nature of sustained bullying by management and staff particularised as follows:
(a) In May 2009 my office was ransacked by the office manager and two administrative staff
(b) Reasonable office assistance was denied.
(c) Office assistance was nominally put in place but management ignored or approved the fact it was not complied with
(d) I was spied on
(e) Work was done slowly
(f) Work done inaccurately
(g) Staff were directed to refuse or unwillingly complete work
(h) Staff were directed to speak to me discourteously
(i) Staff exaggerated or invented complaints about my work
(j) Staff exaggerated or invented client complaints.
(k) I was treated inappropriately in the course of my duties
(l) My work was sabotaged
BREACHES OF S35B
In breach of s35(2)(a)(c) and (d)
(a) I was unreasonably required to vacate my agreed holiday leave
(b) I was bullied when I attended children[']s appointments
(c) I was bullied when I stayed at home caring for ill children
(d) My work was sabotaged when I took leave to care for children
(e) I was dismissed for family responsibilities
AND I CLAIM DAMAGES
…
It can be seen that Mrs Mooney abandoned her complaints of discrimination on the grounds of marital status, race and sex, and her complaint of victimisation. At about the same time, she filed a statement, some 29 pages in length. The first eight pages of that document dealt with contentions as to failure by the Commissioner to accord natural justice on the issue of 'good cause'. Pages 929 contained the evidence which Ms Mooney proposed to give at a hearing of her complaints.
In response to the filing of those documents, the respondent sought to raise three preliminary issues, and provided submissions in relation to those issues. The issues identified were as follows:
1. Does the Tribunal have jurisdiction to review a decision by the Equal Opportunity Commissioner (Commissioner) to not accept a complaint of discrimination arising outside the period of 12 months from the date upon which the contravention of the Equal Opportunity Act (EO Act) the subject of that complaint is alleged to have been committed?
2. Is the Tribunal limited, when it reviews complaints referred to it by the Commissioner, to considering only those factual matters which formed part of the complaint considered by the Commissioner?
3. Should these proceedings be dismissed pursuant to Section 47 of the State Administrative Tribunal Act 2004 (SAT Act) as being misconceived and/or lacking in substance?
…
After the applicant provided written submissions in response, the preliminary issues were listed for determination.
During the course of the hearing, I ruled that those aspects of the complaints enumerated in the 'Statement of Claim' which related to conduct prior to 30 July 2009 should be struck out. Oral reasons for that decision were given during the hearing which were, in substance, as follows:
The complaints, so far as they touch on matters other than the dismissal on 31 July 2009, do not fall within jurisdiction of this Tribunal. The reason for that is simply that the Tribunal only has jurisdiction to deal with complaints referred to it under the EO Act by the Commissioner. It follows that, where the Commissioner has failed to extend time in relation to complaints of conduct occurring more than 12 months before the complaints are made to her, those complaints cannot be matters which have gone through the process which the EO Act requires and which can be the subject of referral to the Tribunal. In this case, it is clear that the question of good cause (which is the basis upon which time might be extended - s 83(5)) has been the subject of specific consideration and determination by the Commissioner outlined in her letter of 3 May 2011, where she determined that good cause had not been shown.
The applicant's position is that that decision failed to take into account materials and evidence which had been put forward by the applicant which she contends would have constituted good cause. She argues that the decision of the Commissioner to refuse to extend time should not be accepted, or alternatively, the Tribunal should somehow treat those matters as having been the subject of the Commissioner's referral. As indicated in the course of the applicant's oral submissions, it is well settled now in this Tribunal (as it had been by the Equal Opportunity Tribunal prior to the State Administrative Tribunal assuming this jurisdiction) that a decision of the Commissioner not to accept the complaint about the alleged contravention more than 12 months after the conduct occurred is not reviewable by this Tribunal.
That proposition is obviously correct. This Tribunal is a creature of statute having only the powers and jurisdiction conferred on it either by an enabling Act or the SAT Act. In the absence of a specific provision providing a right of review in relation to particular types of decisions, the Tribunal has no jurisdiction to interfere with those decisions. There is no provision in the EO Act which provides for review by the Tribunal of a determination under s 83(5) by the Commissioner.
So it follows that those matters which the Commissioner declined to deal with because they were out of time cannot be the subject of inquiry by the Tribunal. That is so regardless of whether or not criticism might be justified or made in relation to the way the Commissioner went about making her decision (a matter upon which I make no comment). It does not fall to the Tribunal to make that inquiry. If there is a complaint about the regularity of the Commissioner's decision in relation to time, in particular, whether or not it amounts to some denial of natural justice as is suggested by the applicant, that is a matter to be dealt with elsewhere in the context of judicial review proceedings.
It follows that I am satisfied that the matters which are set out in the document entitled 'Statement of Claim of Elizabeth Mooney' filed 25 October 2011, save for the allegation of a breach of s 66B(2)(c) relating to dismissal on 31 July 2009, should be struck out on the basis that they were not matters referred to the Tribunal by the Commissioner. In relation to the allegations under s 35B, the alleged breaches contained in paragraphs a - d in that document should also be struck out on the same basis.
It is clear from what I have said that I see nothing wrong with the logic and reasoning in the decision in Winter and Commissioner of Western Australian Police Service [2006] WASAT 87 and the reasoning in that case forms the basis of the conclusion I have reached. What is equally clear is that evidence of matters occurring more than the 12 months before the discriminatory conduct may be relevant to consideration of the character of the events which are within time and may be admissible on that basis.
The application under s 47 of the SAT Act
Having made that ruling for the reasons explained, I turn to deal with the issue on which I reserved my decision, namely the application to dismiss the claim as lacking in substance.
Following the striking out of the complaints related to events prior to 30 June 2009, what remains of the applicant's case is a claim for discrimination on the basis of impairment and family status. In particular, she alleges that the respondent discriminated against her by dismissing her from her employment by reason of an impairment or her family status. The respondent contends that, taken at its highest, Ms Mooney's evidence is incapable of supporting the finding of discrimination on the grounds asserted and that her application is thus lacking in substance, that being a ground upon which the Tribunal is empowered to dismiss an application pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Discrimination on the ground of impairment
Ms Mooney's evidence in relation to impairment is contained in her statement under the heading 'Events relevant to imputed impairment claim'. In her written submissions she appears to base her claim on her having an actual impairment or alternatively, an imputed impairment.
Ms Mooney's written submissions in relation to her case for impairment read as follows:
…
50. The [A]ct broadly defines impairment and the applicant sets out circumstances that fall within this broad definition. In paragraph 24 of my statement it is stated that I was very upset and went home. I state in paragraph 25 that I took a sick day. I state it affected my ability to work that week.
51. The decision was formalised on 6 June 2009 according to the evidence of Michelle Lothian. A preliminary decision had already been made on 25 May when an ad was placed to replace me. According to the definition in the [A]ct the impact on me constituted an [i]mpairment and/or an imputed impairment.
…
The evidence referred to in those submissions is to the effect that, on 22 May 2009, Ms Mooney learnt from a friend in Melbourne that an article was being published in a Melbourne newspaper regarding her husband's death which was highly defamatory of her. She advised the principal of her employer, Mr John Butler, of that fact the same day. She came to work on the following Monday, 25 May 2009, but was 'still very upset from the article and went home'. She said that the same day her employer lodged an advertisement on the Internet seeking to replace her, although she only learnt of that by chance (precisely when, is not disclosed).
Ms Mooney said that she stayed at home on 26 May 2009 taking a day of sick leave. She said that the article affected her billings that week and she only billed a small proportion of her normal billing budget. That, she said, did not affect her monthly billings more than marginally because she had been working hard for the rest of the month. I gather that her reference to her billings being down is said to demonstrate that she was impaired, a proposition that seems somewhat tenuous. She then took holiday leave on 1 June 2009 for four days to consult lawyers in Victoria. Upon her return to work, she sensed a change in the way she was treated, and she outlined in her statement a number of incidents of concern to her in relation to her treatment at work. None of those instances appear, on their face, to have any relationship to Ms Mooney's distress about the publication of the article. Her view of their relevance to the defamatory article was, however, explained in para 26(aa) of her statement where she said:
…
After Butlers observed the impact of the defamatory article upon me between 25 May and 29 May followed by my leave in the following week they made a decision to sack me on 6 June 2011. They then unleashed certain members of staff to harass and report on me to provide justification for their proposed actions until they could find a replacement. They imputed that I was emotionally unstable. They also needed to wait until after the [a named client] trial to do this because of the difficulties that would arise if I were sacked beforehand.
…
Section 66B(2)(c) renders it unlawful for an employer to discriminate against an employee on the ground of the employee's impairment by dismissing the employee. It is that provision upon which Ms Mooney relies.
Impairment is defined by s 4 of the EO Act. That definition reads as follows:
…
impairment in relation to a person, means one or more of the following conditions
(a)any defect or disturbance in the normal structure or functioning of a person’s body; or
(b)any defect or disturbance in the normal structure or functioning of a person’s brain; or
(c)any illness or condition which impairs a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,
whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment
(d)which presently exists or existed in the past but has now ceased to exist; or
(e)which is imputed to the person;
…
When pressed at the hearing of the preliminary issues to identify the nature of the impairment, or imputed impairment, upon which Ms Mooney relies to establish her case, she said that her impairment was the emotional distress caused by the publication of the article in the Melbourne newspaper. She submitted that emotional distress was a condition which could fall into any of paras (a) (b) or (c) of the definition of impairment because it amounts to a defect or disturbance in the functioning of a person's brain (and thus she submitted their body or a part of their body) or was a condition which impaired emotions. She submitted that a susceptibility to emotional distress was a 'condition subsisting at birth' for all human beings, and therefore, the requirement that the relevant condition arises either from a condition subsisting at birth or from an illness or injury was satisfied. She submitted that the definition of impairment should be given a broad interpretation.
The first thing that can be noted about the applicant's case in relation to impairment is that it appears to rest upon an inference that the decision to dismiss Ms Mooney, and the subsequent difficulties at her workplace which she enumerates, all occurred as a result of either her actually being emotionally distressed, or her employer imputing to her emotional instability. That inference is apparently said to arise as a result of the coincidence in timing of her becoming upset by the publication of the article and the appearance of an advertisement on the Internet for a senior family lawyer, and in turn the alleged poor treatment of her over the following two months prior to her dismissal. The applicant did not identify any other objective evidence which might support her contention that the actions about which she complained were caused by her employer's belief that she was emotionally distressed or was 'emotionally unstable'. There are obvious difficulties in establishing a case based on inference or assumption.
Putting that to one side, however, the fatal difficulty of the applicant's position is the definition of impairment. I do not accept that a period of emotional distress caused by the happening of some distressing event satisfies the definition of impairment. The words 'whether arising from a condition subsisting at birth or from an illness or injury' require the identification of some condition which gives rise to a defect or disturbance of the normal structural functioning of a person's body or brain, or is an illness or condition which impairs thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour. In other words, it is necessary to identify some physical, psychiatric or psychological condition possessed by a person which has one of the effects identified in paras (a), (b) or (c) of the definition. Ms Mooney has not asserted any such condition, illness or injury. I very much doubt that some temporary period of distress, to which all human beings are susceptible, can, in any event, be said to constitute a defect or disturbance of the normal structural functioning of a person's brain or could be described as an illness or condition which impairs emotions. But even if it could, it would not be sufficient to constitute impairment for the purposes of the EO Act in the absence of a condition subsisting at birth or an illness or injury which is identifiable.
For that reason, I agree with the conclusion reached by the Commissioner that the complaint based upon discrimination on the ground of impairment is lacking in substance or is misconceived. It follows that that aspect of the complaint should be dismissed.
Claim on the basis of family responsibility
The applicant submitted that this claim was made in the alternative to the claim for discrimination on the ground of impairment. That is because it is clearly her case that the decision to terminate her employment was made on 6 June 2011 (or perhaps 29 May 2009) as a result of her employer learning of her distress at the publication of the article in Melbourne. Her claim based on family responsibility is that if, after the hearing, the evidence does not support her primary claim, then it may be open for the Tribunal to find that the reason for her dismissal was that she absented herself from work, on the day she was dismissed, because both she and her daughter were ill. Ms Mooney's evidence in relation to that issue reads as follows:
…
On Monday 27 July 2009 I received an email from John Butler at 8.01 am demanding I provide a complete update on all of my matters by 4.30 that day in hard copy and by email. I asked Tanya if she could assist by locating all the files. She looked very angry to be asked to do anything. I said I needed them urgently. She told me the request had to be in writing so I emailed it to her. It took over 24 hours before I received the files so I had to try and work off the file electronically which was not ideal.
On Monday 27 July 2009 I left work at approximately 3.20 pm to take my daughter to the orthodontist. On Tuesday I left work at approximately 5 pm to collect my daughter from choir. On Wednesday I awoke feeling very ill having been ill all night and waking with a high temperature and fever. My phone was in my car three floors down. I was very concerned about taking any sick leave, and when the fever had passed I got up, emailed Chrissie Hayter to let her know I was coming in shortly.
Michelle Lothian made comment about me being away and said that I shouldn't cry wolf.
On Thursday I came into work very early as I had to leave for a couple of hours to see my daughter made a monitor and participate in a skit at school. I was in at around 7 am and left at about 8.30am returning at about 10.30am. I advised reception I would be out for a short time when I left.
On Friday my daughter was extremely ill as was I. I think I was still ill from Wednesday. Imogen had been vomiting all night. I suspect we both had swine flu which was going around. I obtained an early doctor appointment and she was given a needle to stop her vomiting. Before we left I rang Butlers at approximately 8.30 am and spoke to Tanya. She was extremely hostile in tone. Despite telling her that I was ill and my daughter was ill and had been vomiting all night and that I was now taking her to the doctors she asked me when I was going to be in. I said "I'm not". She then said in an incredulous tone, "how old is your daughter?" suggesting I leave her at home and come in. I reminded her that I was ill too.
I fell asleep on the couch as did my daughter and when I woke at midday I found three messages on my phone from John Butler. The first was just after 11 am asking him to ring him immediately, the second was just after 12 asking me to ring him urgently and there was also a third message. I called him and he sacked me on the phone. I was shocked. I asked why I had been sacked and he said there had been continuing problems. When I asked him what these were he didn't seem to know. I pressed him and he said he would write to me. He did this on 2 August 2011. I responded with a detailed response on 12 September 2009 and on 19 September he advised he would respond comprehensively by 23 September 2009.
The letter of 2 August 2011 from Butlers to Ms Mooney was produced at the hearing of the preliminary issues. That letter set out, as reasons for the decision to dismiss Ms Mooney a number of 'concerns'. Those concerns included complaints from clients and other solicitors, below average computer literacy, communication failures within the firm, failure to attend meetings, failure to settle drafts and respond to emails from staff and failures to maintain lists of current matters.
As an example of a communication failure, reference is made to Ms Mooney's failure to attend work the previous week and not answering her phone with the result that her whereabouts were unknown until after 10 am. Ms Mooney seized upon that illustration as demonstrating that a reason for her dismissal was the circumstances set out in her evidence referred to above, which involve her attending to the needs of her daughter, and thus amounted to discrimination on the ground of her family responsibility. She maintains that the other alleged reasons set out in the letter of 2 August 2009 were unfounded, and were merely fabrications to justify her dismissal.
The first thing that can be observed about the case put forward by the applicant is that her absence from work on 31 July 2009 was, on her own evidence, attributable to her illness as well as the illness of her daughter. The failure to make contact with the employer, which is the substance of the complaint in the employer's letter of 2 August 2009, appears logically attributable to Ms Mooney's own illness rather than that of her daughter.
More importantly, however, Ms Mooney's own evidence, and her submissions, are directed to the proposition that the decision to dismiss her was made in June 2009, and every thing that happened thereafter was designed to provide a basis for her dismissal. Her alternative case is therefore inconsistent with her primary contention. It is a case based entirely on inference based on events which appear to be the culmination of what, on Ms Mooney's evidence, was a somewhat dysfunctional employer/employee relationship which had subsisted at least for some months. Having considered the evidence proposed to be adduced, and Ms Mooney's submissions in relation to that evidence, I am satisfied that her claim for discrimination on the basis of family responsibility or family status has no reasonable prospect of success. It is thus lacking in substance. It too, should be dismissed.
Conclusion
Ms Mooney has obvious deep resentment in relation to her treatment by her former employer. The gravamen of her complaints is that she was wrongfully dismissed. That is not the same as having been subjected to unlawful discrimination. Regardless of whether or not Ms Mooney's complaints about the way she was treated were justified, nothing in her submissions, or the evidence which she proposes to give, reasonably supports a conclusion that her dismissal resulted from some form of unlawful discrimination. Her application should be dismissed.
Orders
1.The application is dismissed.
I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT
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