Munt v Workers Compensation Independent Review Officer

[2020] NSWCATAD 156

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156

Hearing dates:

6 May 2020; 28 May 2020 (final submissions)

Date of orders:

22 June 2020

Decision date:

22 June 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Britton, Principal Member

Decision:

Leave for the complaint to proceed under s 96(1) of the Anti-Discrimination Act 1977 (NSW) is refused.

Catchwords:

HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave

 

EQUAL OPPORTUNITY — whether impugned falls within s 49M of the Anti-Discrimination Act 1977

COURTS AND TRIBUNALS — whether Workers Compensation Independent Review Officer is “a State” for the purposes of Ch III of the Constitution

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Alchin v Rail Corporation NSW [2012] NSWADT 142
Attorney General for New South Wales v Gatsby [2018] NSWCA 254
Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15
Commissioner of Police v Mohamed [2009] NSWCA 432
Deputy Federal Commissioner of Taxation v State Bank of NSW (1992) 174 CLR 219; [1992] HCA 6
Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
Jones & Anor v Ekermawi [2009] NSWCA 388
Kitoko v Sydney Local Health District [2017] NSWCATAD 209
Langley v Niland & Anor (1981) 2 NSWLR 104
Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23
Turner v State Transit Authority [2004] NSWADT 89
Whitfield v State of NSW (NSW Police Force) [2011] NSWADT 265

Texts Cited:

New South Wales Law Reform Commission, Report 92 - Review of the Anti-Discrimination Act 1977 (NSW), (1999)

Category:

Procedural and other rulings

Parties:

Shane Munt (Applicant)
Workers Compensation Independent Review Officer (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
General Counsel, Workers Compensation Independent Review Officer (Respondent)

File Number(s):

2020/00112300

Publication restriction:

Nil

REASONS FOR DECISION

1. In December 2019, Mr Shane Munt lodged a complaint (the Complaint) with the President of the NSW Anti-Discrimination Board (the President) alleging that in contravention of the Anti-Discrimination Act 1977 (NSW) (the Act), the Workers Compensation Independent Review Officer (WIRO) had discriminated against him on the ground of disability. The thrust of Mr Munt’s Complaint is that his request to be given the names of WIRO staff responsible for dealing with his complaint about insurer, Employers Mutual Limited, was refused.

2. After investigating the matters raised by Mr Munt, the President exercised the discretion to decline the Complaint, on the ground that it was “misconceived”: s 92(1)(a)(i) of the Act. At Mr Munt’s request, the President referred the Complaint to the NSW Civil and Administrative Tribunal (NCAT) as required by s 93A of the Act.

3. Because the President exercised the discretion to decline the Complaint, it cannot proceed without leave of the Tribunal: s 96(1) of the Act. Mr Munt urges the Tribunal to grant leave, submitting that there is no proper basis for the conclusion reached by the President that the Complaint was misconceived. The WIRO disagrees and urges the Tribunal to refuse leave.

4. For the reasons that follow, I have decided not to grant leave for the Complaint to proceed.

WIRO’s functions

5. The WIRO is an independent officer, appointed by the Governor of NSW, whose functions include oversight of the operation of the workers compensation scheme in NSW and dealing with complaints from workers about insurers: s 27 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Injury Management Act). Section 27A of that Act gives workers the right to complain to the WIRO about any act or omission of an insurer that affects their entitlements, rights or obligations under the Workers Compensation Acts. The Injury Management Act requires the WIRO to deal with such complaints within 30 days of receipt unless otherwise decided and to investigate the complaint and report to the worker and the insurer on the findings of the investigation: s 27A of the Injury Management Act.

A dispute between residents of two states?

6. The WIRO raises but does not request the Tribunal to determine at this stage of proceedings, the question of whether the Complaint is a dispute between “between residents of different States”, and, as a consequence, the Tribunal lacks jurisdiction.

7. Mr Munt is apparently a resident of Queensland.

8. The WIRO contends that he is a natural person and not “a State” for the purposes of s 75(iv) of the Constitution. It follows, he contends, that for the purpose of s 75(iv) he and Mr Munt are “residents”, he of NSW and Mr Munt of Queensland and therefore the Complaint is a dispute “between residents of different States”. Because NCAT is not a “court of a State”, it does not have jurisdiction to determine the Complaint: Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15; Attorney General for New South Wales v Gatsby [2018] NSWCA 254.

9. Whether the Tribunal has jurisdiction to determine the Complaint turns on whether Mr Munt is a resident of Queensland, and, if so, whether the WIRO is “a State” for the purpose of s 75(iv) of the Constitution. The expression “a State” extends to agencies and instrumentalities of the relevant State: Deputy Federal Commissioner of Taxation v State Bank of NSW (1992) 174 CLR 219; [1992] HCA 6. For current purposes I will not address whether the WIRO is a natural person. I will assume but not decide that the Tribunal has power to determine the question of whether leave should be granted for the Complaint to proceed under s 96(1) of the Act.

Statutory framework and principles governing the grant of leave

10. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.

11. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation, the President is satisfied that the complaint is misconceived or lacking in substance, she may decline the complaint, in whole or in part: ss 92(1)(a)(i) of the Act. A complaint will be “misconceived” if it involves a “misunderstanding of legal principle”: Alchin v Rail Corporation NSW [2012] NSWADT 142 (Alchin) at [26]. A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is “not reasonably arguable”: Langley v Niland & Anor (1981) 2 NSWLR 104 at 107; Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [45]; Alchin at [26].

12. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she receives a written request from the complainant to do so: s 93A of the Act.

13. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.

14. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

Discrimination in the area of services on the ground of disability

Statutory framework

15. Section 49M(1) of the Act makes it unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(a)   by refusing to provide the person with those goods or services, or

(b)   in the terms on which he or she provides the person with those goods or services.

16. Section 49B of the Act explains what constitutes discrimination on the ground of disability:

(1)   A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator:

(a)   on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b)    requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2)   For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

…

17. If an act is done for two or more reasons and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.

18. Disability is defined by s 4 of the Act to include a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. Section 49A expands the definition of disability to include past, future and presumed disability.

Background facts

19. Mr Munt has been diagnosed with depression and post-traumatic stress disorder. It is agreed that Mr Munt has a disability for the purpose of the Act.

20. On 26 November 2019, Mr Munt rang WIRO to complain about EML’s management of his workers compensation claim. According to Mr Munt, when he asked “Tom”, the WIRO staff member who took his call, to give him the surname of his director, “Jeff”, Tom declined and said:

For security reasons, Shane. We deal with the vast injured workers across the state, some that suffer from psychological injury.

21. Three days later, Mr Munt again contacted WIRO in response to an email he had received earlier that day about his complaint concerning EML. Mr Munt claims that the staff member he spoke to on that occasion refused to give him either his own name or the name of the EML employee who had responded to his complaint. Mr Munt claims that when he asked for an explanation the staff member replied: “I have made a decision”.

22. Mr Munt contends that the actions of WIRO staff in refusing to give him their names or those of EML’s employees who responded to his complaint, amounts to unlawful discrimination. He submits that the inference to be drawn from the statement made by “Tom” (at [20] above) is that the WIRO has made an assumption that workers who have sustained a “psychological injury”, such as himself, pose a security risk to WIRO staff. Mr Munt contends that this amounts to “less favourable treatment” than would be afforded to a person who did not have a psychological injury. In addition, he contends that WIRO’s decision not to disclose staff names reveals WIRO’s bias against workers and partiality towards insurers. He points out that the emails between WIRO and EML in relation to his complaint, reveal that WIRO staff readily give their names to insurers.

23. The WIRO rejects the allegation that workers with psychological injuries are treated less favourably than other people with whom WIRO staff deal. In support, the WIRO points to the letter dated 18 Februray 2020 from the director of WIRO’s complaint handling team to the Board in which the director states that all members of the complaint handling team are instructed not to “disclose full names … for the dominant purpose of protecting the safety of team members”. The director asserted that this policy “applies to all members of the public and not just injured workers”.

Did WIRO refuse Mr Munt services or discriminate against Mr Munt in the terms on which the WIRO provided him with those services?

24. Mr Munt must establish that the conduct about which he complains falls within s 49M(1) of the Act, namely that the WIRO refused to provide him with services or discriminated against him in the terms on which it provided services. As Basten JA explained in Commissioner of Police v Mohamed [2009] NSWCA 432 at [23], the underlying structure of the Act is “not to prohibit all forms of discriminatory conduct, even where such conduct is antithetical to internationally recognised human rights and fundamental freedoms, but to identify specific grounds of discrimination, which are prohibited in specific areas of social activity”.

25. It is agreed that in discharging the functions of dealing with and investigating complaints made by workers about insurers, WIRO provides “services” to workers.

26. While dissatisfied with the WIRO’s alleged perfunctory treatment of his complaint about EML, Mr Munt does not assert that the WIRO refused to provide him with services, namely dealing with and investigating that complaint.

27. Accordingly for Mr Munt’s complaint to succeed it must be established that the conduct of which he complains is capable of falling within paragraph (b) of s 49M of the Act, that is, “the terms on which [WIRO] provides [Mr Munt] with those … services”. In determining whether leave for the Complaint to proceed should be granted, I will approach that question by asking whether that proposition is reasonably arguable.

28. The scope of s 49M(b) of the Act and the corresponding provisions relating to other grounds of discrimination, has been held by NCAT and one of its predecessor Tribunals, the Administrative Decisions Tribunal, to not extend to the manner in which the subject service is provided: see for example, Kitoko v Sydney Local Health District [2017] NSWCATAD 209 at [49]; Turner v State Transit Authority [2004] NSWADT 89 at [59]-[77]; Whitfield v State of NSW (NSW Police Force) [2011] NSWADT 265 at [92].

29. Even if, as Mr Munt believes, the real reason behind the directive to staff about disclosing names was because it was assumed that workers with psychological injuries were unstable and if the names of staff were disclosed, staff would potentially be put at risk, in my view it cannot be reasonably argued that this conduct is capable of falling within s 49M(1)(b). This is because that conduct could not be characterised as relating to the terms on which WIRO’s complaint handling service was provided to Mr Munt. Rather it relates to the manner in which that service was provided to Mr Munt.

30. Arguably, it is unfortunate that the protection afforded by s 49M does not extend to the manner in which services are provided. The recommendation made by the New South Wales Law Reform Commission in Report 92, Review of the Anti-Discrimination Act 1977 (NSW) at p 170, that the Act be amended to rectify this omission has not been implemented.

31. It follows that as the conduct about which Mr Munt complains does not fall within the scope of 49M(1) of the Act, the Tribunal lacks the power to determine the Complaint. As found by the President, the complaint is therefore misconceived. No useful purpose would be served in permitting the Complaint to proceed. For that reason, I have decided it is fair and just to refuse leave for the Complaint to proceed.

Order

1. Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 June 2020