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 the respondent has not satisfied me to the requisite standard that the applicant was dismissed other than because of her exercise of her workplace right.
[3] Moore v Slondia Nominees Pty Ltd [2012] FMCA 273 at para 86
The exercise of a workplace right to which Mr Lindsay FM referred was Ms Moore’s claim of an underpayment of wages. The Federal Magistrates Court matter was adjourned on 17 April 2012 to consider the issue of penalty.
Slondia’s argument
Mr Duggan referred to the decision of the Equal Opportunity Tribunal in Pazios & Anor v Pulteney Grammar School,[4] in which the Tribunal said:
…upon an application by a respondent for the Tribunal to exercise its power under s 96(2)(b), the Tribunal must be satisfied, on what is before it at that time, that there is no reasonable prospect of success of the complaint.
[4] [2008] SAEOT 7
Mr Duggan argued that the complainant had no reasonable prospect of success before the Equal Opportunity Tribunal on three grounds; firstly, that the complainant’s argument was trivial and lacking in substance, secondly, that estoppel or res judicata applies and that the complainant’s case is an abuse of process, and, thirdly, that the Tribunal is unable to order the compensation sought in any event.
Trivial and lacking in substance
Mr Duggan said that the complainant’s claim alleges discrimination on the grounds of sex on 5 June 2009 (actually, the complaint says 15 June 2009) and 29 December 2010. The first date coincides with the beginning of Ms Moore’s employment by Slondia, and the second date coincides with the end of that employment, which came about by the dismissal of Ms Moore by Slondia. Mr Duggan relied on a paragraph of a letter from the then Acting Commissioner for Equal Opportunity to Ms Moore dated 17 June 2011 which said:
In my opinion, your complaint is misconceived. My reason for this decision is that your complaint against Slondia Nominees appears to centre on a dispute over your employment status that existed throughout your employment with them rather than unfair treatment on the basis of your sex.
Mr Duggan adopted this view, and submitted “there are no acts disclosed in the actual complaint, which would amount to a contravention of the sex discrimination provisions of the Act.”
I reject this argument. There is an implicit allegation in the complaint that the reason for the omission to pay the complainant penalty rates was that the complainant is female, and that the omission was contrary to s 29(2) and s 30(2)(a) of the Act. There is a further allegation in the complaint that issues relating to the complainant’s employment status as casual or part-time were dealt with on behalf of Slondia in a manner contrary to the Act. In addition, there is an allegation that Ms Moore was not offered training in the same way as the male employees were, and it is implicit in the complaint that this treatment was on account of her sex.
Mr Duggan submitted that Ms Moore has not established that the male employees with whom she compares herself were in the same situation as she was, such that the comparison was relevant for the purposes of the Act. The respondent has chosen to make an application for the proceedings to be dismissed before trial. It is not reasonable for the respondent to complain at this stage of the process that Ms Moore has not yet established facts.
I reject the first ground for the application to dismiss the proceedings put forward on behalf of the respondent.
Estoppel, Res Judicata or abuse of process
Mr Duggan asserted that the complainant’s case should be dismissed by reason of estoppel or res judicata. This submission was based upon the proceedings in the Industrial Relations Court (SA) and the proceedings in the Federal Magistrates Court. Mr Duggan pointed out that the issue of the nature of the complainant’s employment, in terms of whether it was casual or permanent part-time, was an issue which had been determined by the Industrial Relations Court (SA). Mr Duggan said, in argument:
The applicant’s under payment claim against the respondent has therefore been determined in relation to that issue, and it’s been found that she is a casual employee of the respondent. The respondent will submit that this prevents the complainant from pursuing a current dispute about the nature of her employment before the tribunal, which she seems to be doing in her complaint, and more specifically in her affidavit which is before the tribunal.
Dixon J described, at a basic level, both issue estoppel and res judicata in Blair v Curran,[5] and those descriptions have been cited with approval many times since. Dixon J said, of issue estoppel:
A judicial determination directly involving an issue of fact or of law disposes once for all [sic] of the issue, so that it cannot afterwards be raised between the same parties or their privies.
[5] (1939) 62 CLR 464 at 531
Comparing issue estoppel and res judicata, Dixon J said:
The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Issue estoppel and res judicata were discussed in some detail in the High Court by Brennan J in Rogers v R:[6]
Although merger provides a distinction between res judicata and issue estoppel, both doctrines bind the parties and their privies to accept a final judicial decision of a question between the parties as correct. The rule is expressed in the maxim res judicata pro veritate accipitur. The parties and their privies are bound by the judgment or order into which any cause of action or right to relief has passed (res judicata) and by the determination of any issue which was the necessary legal justification or foundation for the prior decision (issue estoppel)…
Issue estoppel extends not only to findings of fact or decisions on points of law that are expressly declared in a judgment or order but to any “matter which it was necessary to decide, and which was actually decided, as the groundwork of the decision itself, though not then directly the point at issue”... But issue estoppel does not extend to findings of fact which, though contested and probative of the ultimate issue, are not necessary to, or are not the legal foundation of, the decision made…
Being so confined, the doctrine is not accorded a scope broader than the maxim res judicata pro veritate accipitur demands. Subsequent decisions can be made untrammelled by the prior determination provided they are not necessarily inconsistent with it.
[6] (1994) 181 CLR 251 paras 9-11
It does not seem to me at this stage of the proceedings that Ms Moore’s case in this Tribunal necessarily requires her to seek a finding of fact or a determination of law that is different from the findings of fact and determinations of law already made by the Industrial Relations Court (SA) or the Federal Magistrates Court. Indeed, as Ms Moore was successful in both of those matters, it may be that, far from seeking in these proceedings findings of fact or determinations of law contrary to the findings of fact or determinations of law in the previous matters, she may seek to rely on the judgments in those matters. Issue estoppel has not arisen at this stage of the proceedings. As to res judicata, it is plain that the complaint made by Ms Moore under the Act is not the same right or cause of action as the right or cause of action pursued by Ms Moore in the Industrial Relations Court (SA) or the Federal Magistrates Court. The Industrial Relations Court (SA) dealt with Ms Moore’s entitlement to wages as an employee. The Federal Magistrates Court dealt with the termination of Ms Moore’s employment. Neither matter dealt with the question of whether Ms Moore was discriminated against in her employment on the ground of sex contrary to s 30 of the Act. To put it another way, the issue of the motivation of the employer in relation to its conduct towards Ms Moore is critical to her complaint under the Act, and that is not an issue which was the subject of either of the preceding actions. At this stage of the proceedings, on the basis of the material before the Tribunal at present, res judicata has not arisen.
Mr Duggan submitted that, if it were determined that there were no issue estoppel, the complaint should still be stayed as an abuse of process, following Walton v Gardiner.[7]Put simply, the principle established in Walton v Gardiner[8] was that, where a later set of proceedings, whilst not precisely the same as an earlier set of proceedings, nonetheless arose out of the same pattern of conduct as the earlier set of proceedings, and displayed a substantial degree of overlap between the issues to which the earlier set of proceedings gave rise, and the issues which the later proceedings seek to have decided, then the later proceedings may be an abuse of process, even though no issue estoppel arises.[9]
[7] (1993) 177 CLR 378
[8] ibid
[9] Note, though, that on the facts in Walton v Gardiner, the earlier proceedings were, themselves, stayed as an abuse of process on account of prejudice to the defendants due to the gross delay in bringing the proceedings.
Concerning the present case, Mr Duggan argued that Ms Moore’s complaint under the Act was reliant upon the same set of facts as the prior proceedings before the Industrial Relations Court (SA) and the Federal Magistrates Court, and sought remedies in relation to those same facts. This, he argued, was sufficient to render the proceedings before this Tribunal an abuse of process in the Walton v Gardiner[10] sense. I reject this submission. The present proceedings go beyond the facts and issues which were the subject of the previous proceedings and necessitate an investigation of the motivation of the employer in relation to its dealings with Ms Moore as an employee. The actions do not overlap in a manner and to an extent such as to render the proceedings before this Tribunal an abuse of process.
[10] ibid
Compensation
Mr Duggan argued that Ms Moore had been awarded compensation in respect of the underpayment alleged in the Industrial Relations Court (SA) and, in respect of her dismissal, in the Federal Court.[11] Mr Duggan submitted that I should now find that Ms Moore has been adequately compensated, and that it would not be appropriate for this Tribunal to make any further award of compensation. Mr Duggan submitted, in the alternative, that any amount likely to be awarded by this Tribunal would, in the light of the prior awards, be so minimal as to be trivial.
[11] Though it seems from a document produced by Ms Moore that the decision of the Federal Magistrates Court is now subject to an appeal to the Federal Court.
I reject these arguments. The Act provides, in s 96(1), (3) and (3a):
96(1)The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make one or more of the following orders:
(a)     subject to this section, an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to a person for loss or damage arising from the contravention;
(b)     …
(c)     an order requiring the respondent or any other party to the proceedings to perform specified acts with a view to redressing loss or damage arising from the contravention or remedying a discriminatory or unlawful act.
…
(3)The damage for which a person may be compensated under subsection (1) includes damage to his or her feelings.
(3a)In awarding compensation the Tribunal must take into account the amount of damages or compensation (if any) awarded in other proceedings (criminal or civil) in respect of the same acts or series of acts.
The heads of compensation contemplated in s 96 of the Act go beyond the bases upon which compensation could be awarded in either of the two prior actions. In addition, the Act specifically provides for damages already awarded to a complainant in other proceedings. I therefore reject this third ground of the application for an order dismissing these proceedings.
Summary and Conclusion
Slondia applied to have Ms Moore’s complaint dismissed pursuant to s 96(2) of the Act.
The first ground for the application was that the allegations the subject of the complaint are trivial and lacking in substance and have been inadequately substantiated. I reject this ground. The complaint clearly raises the issue of discrimination on the basis of sex in an employer/employee relationship contrary to the Act. At the present stage of the proceedings, it is not appropriate to impose a burden of proof prior to the trial of the matter.
The second ground for the application was that the proceedings were subject to issue estoppel or res judicata. I have determined that neither estoppel nor res judicata arise. I have further determined that these proceedings are not an abuse of process.
The third ground for the application was 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. I have rejected this ground because the basis upon which compensation may be awarded under s 96 of the Act goes beyond the basis for an award of compensation in either of the other two jurisdictions, and because the Act specifically contemplates the possibility of an award of compensation in circumstances where compensation has been awarded in another forum.
The application for an order under s 96(2) is refused.