Moore v Slondia Nominees - [2012] SAEOT 1

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
MOORE v SLONDIA NOMINEES
[2012] SAEOT 1
Judgment of Her Honour Judge Cole
7 June 2012
DISCRIMINATION LAW
Complaint alleging discrimination in the terms and conditions of complainant's employment on the grounds of her sex - respondent makes application for an order dismissing the proceedings on the grounds that the complainant's claim was trivial and lacking in substance and should be dismissed by reason of estoppel or res judicata and that no further compensation should be awarded to complainant due to awards of compensation already received from claims lodged in other jurisdictions - all respondent's arguments rejected. The application for an order dismissing the proceedings refused.
Equal Opportunity Act 1984 (SA); Fair Work Act 2009 (Cwlth), referred to.
Pazios & Anor v Pulteney Grammar School [2008] SAEOT 7; Moore v Slondia Nominees Pty Ltd [2012] FMCA 273; Blair v Curran (1939) 62 CLR 464; Rogers v R (1994) 181 CLR 251; Walton v Gardiner (1993) 177 CLR 378, considered.

MOORE v SLONDIA NOMINEES
[2012] SAEOT 1

Ms Moore has made a complaint against Slondia Nominees Pty Ltd (“Slondia”), her former employer, pursuant to the Equal Opportunity Act 1984 (“the Act”), alleging discrimination in the terms and conditions of her employment on the grounds of her sex.
An interim application has been made on behalf of Slondia seeking an order dismissing the proceedings pursuant to s 96(2)(b) of the Act.
The Act provides, in s 96(2)(b):
96(2) The Tribunal may, at any stage of the proceedings under this Part –
(a) make an interim order to prevent prejudice to a person affected by the proceedings;
(b) make an order dismissing the proceedings.
It is clear from the documents annexed to the affidavit of Mr Duggan[1] that Ms Moore has successfully pursued proceedings against Slondia in the Industrial Relations Court (SA) for the underpayment of wages. In a decision dated 5 September 2011,[2] Industrial Magistrate Mr Ardlie found that Ms Moore had been employed by Slondia from 15 June 2009 to 11 April 2010, and that, during her employment, her work came within the Level 2 classification under the Textile, Clothing, Footwear and Associated Industries Award 2010 (prior to 1 January 2010, the earlier version of this award was called the Boot and Shoe Award 2006). Mr Ardlie determined that Ms Moore was entitled to a casual rate loading throughout the period of her employment. Implicitly, Mr Ardlie determined that Ms Moore was a casual employee.
[1] Affidavit of Ben Duggan sworn on 17 April 2012
[2] Moore v Slondia Nominees Pty Ltd [2011] SAIRC 64
Ms Moore also pursued a claim in the Federal Magistrates Court pursuant to the Fair Work Act 2009, alleging that she had been dismissed from her employment in contravention of a general protection. On 4 April 2012, a Federal Magistrate, Mr Lindsay, delivered a decision in relation to that claim in which he found:[3]
At the conclusion of the evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moore v Slondia Nominees

Details

AGLC: Moore v Slondia Nominees [2012] SAEOT 1
Case: [2012] SAEOT 1
Decision Date: 7 June 2012

CaseChat Overview and Summary

Moore v Slondia Nominees is a case where the complainant, Ms Moore, made a complaint against her former employer, Slondia Nominees, under the Equal Opportunity Act 1984. She alleged discrimination in the terms and conditions of her employment on the grounds of her sex. Slondia Nominees made an interim application for an order dismissing the proceedings. The legal issues that the Equal Opportunity Tribunal was required to decide were whether Ms Moore's claim was trivial and lacking in substance, whether estoppel or res judicata applied, and whether any further compensation should be awarded to Ms Moore due to awards of compensation already received from claims lodged in other jurisdictions.

The Tribunal rejected all of Slondia Nominees' arguments and refused the application for an order dismissing the proceedings. The Tribunal found that Ms Moore's complaint raised the issue of discrimination on the basis of sex in an employer/employee relationship contrary to the Act and that it was not appropriate to impose a burden of proof prior to the trial of the matter. The Tribunal also determined that neither estoppel nor res judicata applied and that the proceedings were not an abuse of process. Furthermore, the Tribunal rejected the argument that any compensation which might be achieved by Ms Moore in these proceedings would be trivial, given the prior awards of compensation in the Industrial Relations Court (SA) and the Federal Magistrates Court. The Tribunal found that the basis upon which compensation may be awarded under s 96 of the Act went beyond the basis for an award of compensation in either of the other two jurisdictions, and because the Act specifically contemplated the possibility of an award of compensation in circumstances where compensation had been awarded in another forum.

In conclusion, the application for an order dismissing the proceedings was refused. The Tribunal found that Ms Moore's complaint had merit and that it was not appropriate to dismiss the proceedings at this stage. The case will proceed to trial, where the merits of Ms Moore's complaint will be determined.

Orders