Neeson v Director-General, NSW Department of Education and Training

[2008] NSWADT 330

CITATION:	Neeson v Director-General, NSW Department of Education and Training [2008] NSWADT 330
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Bruce Neeson RESPONDENT Director-General, NSW Department of Education and Training
FILE NUMBER:	081041, 081077
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	29 October 2008
DATE OF DECISION:	10 December 2008
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Amendment of complaint
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174; Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54; Perera v Commissioner of Corrective Services [2007] NSWADT 115; West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240; Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer (EOD) [2008] NSWADTAP 24
REPRESENTATION:	APPLICANT In person RESPONDENT R Horton, solicitor
ORDERS:	The complaint referred to the Administrative Decisions Tribunal by the President of the Anti-Discrimination Board by letter dated 23 July 2008 is amended to include an allegation of victimisation in relation to the Department’s decision not to accept Mr Neeson’s application for employment as a teacher on a casual basis.

1 In February of this year Mr Bruce Neeson retired from teaching after a career of close to 50 years. He claims he was forced into early retirement as a result of alleged harassment and bullying by officers of the NSW Department of Education and Training and the parents of the students at the school in which he taught. He lodged complaints about these matters with the President of the Anti-Discrimination Board, alleging discrimination on the grounds of age and disability, and victimisation.

2 Mr Neeson requests that the Tribunal exercise its power to amend the complaint to include a further allegation of victimisation. The allegation relates to the decision made by Mr David McGrath, Manager, Teacher Recruitment to refuse to accept Mr Neeson’s application for employment as a casual teacher. Mr Neeson was advised of that decision by letter dated 31 July 2008. The decision postdates the period of the complaints that have been referred to the Tribunal, namely, January 2006 to May 2008.

3 The Director-General opposes the amendment application.

Tribunal’s power to amend a complaint

4 The Tribunal’s power to amend a complaint is contained in s 103 of the Anti-Discrimination Act 1977 (the Act) which provides:

103 Tribunal may amend complaint

(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.

5 The operation of s 103 has been considered in Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54; Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer (EOD) [2008] NSWADTAP 24; West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240; Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174 and Perera v Commissioner of Corrective Services [2007] NSWADT 115.

6 In Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer, an Appeal Panel endorsed the broad approach taken in Chand v Rail Corporation of New South to the operation of s 103, citing with approval the following passage:

37. The ordinary grammatical meaning of section 103(2) is that the Tribunal may amend the complaint either by adding complaints or by adding anything else, such as further allegations. The only qualification to the amendment power is that the additional complaint or other matter "was not included in the complaint as investigated by the President." Contrary to the Tribunal’s decision, there is no implied qualification that the additional complaint or other matter occurred during the period of the complaint as investigated by the President.

38. There is no extrinsic material which sheds light on the rationale for section 103, but the intention of the legislature was to avoid the delay and potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances, is already before the Tribunal. The most likely source of additional complaints will be complaints that arise after the matter has been referred, but section 103 does not confine amendments to complaints of that kind. Relevant considerations when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred. Contrary to the Tribunal’s conclusion, the fact that the complaint did not occur within the period as investigated by the President, does not prevent it being added.

7 The Act does not stipulate the matters the Tribunal is required to take into account when exercising its power to amend a complaint. In exercising this discretionary power the Tribunal must take into account all relevant factors, which will vary from case to case. The hierarchy or weighting to be given to each is a matter for the Tribunal. The following factors may be relevant in addition to those factors listed in Chand:

Whether the proposed amendment falls within one of the grounds for declinature available to the President (s 89B(2) and s 92(1)(a)).

Whether the proposed amendment is futile because it seeks to pursue claims that are untenable.

Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs.

Whether the proposed amendment raises any issue of joinder.

Whether the allegations contained in the proposed amendment forms part of a complaint lodged with the President that has yet to be determined by the President or referred to the Tribunal.

Whether any party might be prejudiced if the complaint is /is not amended.

Whether the party making the application is in default of previous orders.

Submissions

8 As I understand Mr Neeson’s submissions, he contends that the Department refused to accept his application as a casual teacher because he complained to the Anti-Discrimination Board and initiated proceedings in the Tribunal. In support of that claim, he points to an email from Mr McGrath dated 19 September 2008, which stated ‘Any decision regarding an approval to teach will depend on the outcome of the current proceedings’.

9 It is argued for the Director-General that the allegation made by Mr Neeson is without justification. He argues that the letter from Mr McGrath to Mr Neeson dated 31 July 2008 makes clear that the reason for the offending decision was ‘[U]nresolved concerns about [Mr Neeson’s] efficiency as a teacher’. He contends that Mr McGrath did not link the processing of Mr Neeson’s application to become a casual teacher to the outcome of the Tribunal proceedings and indeed did not become aware of them until advised by Mr Neeson.

Decision

10 The issue to be determined is whether in the circumstances of this case the power to amend Mr Neeson’s complaints should be exercised to include the allegation relating to his employment as a casual teacher.

11 In his amendment application Mr Neeson uses the terms ‘victimisation’ and ‘discrimination’ (on unspecified grounds) interchangeably. However from reading his submissions I understand him to be alleging victimisation under s 50 of the Act and I will proceed on that basis.

12 Section 50 provides:

50 Victimisation

(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,

(e) 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.

13 For Mr Neeson’s allegation of victimisation to be substantiated, he must establish that as a consequence of having made a complaint about the Department or having brought proceedings under the Act or one of the other things listed in s 50(1), he was ‘subjected to’ the detriment of having his application to be considered as a casual teacher, refused.

14 The Director-General’s submissions suggests that the Tribunal must be satisfied of the truthfulness or otherwise of the factual allegations made by Mr Neeson or that it has a reasonable prospect of success, before the power to amend can be exercised. It is noteworthy that it would not be open to the President to decline a complaint on those grounds (ss 89B(1) and 92(1)(a)).

15 Whether the Tribunal ultimately accepts the stated reason for the decision to refuse Mr Neeson’s application is a matter for the evidence and in my view it would be premature at this stage of proceedings, before the filing of any evidence, to determine that issue. While no direct evidence that the offending decision was ‘on the ground of’ Mr Neeson having made a complaint and initiated proceedings in the Tribunal, it is arguable that there is some evidence form which this could be inferred, namely the statement contained in the email from Mr McGrath.

16 In my view the following factors are relevant in deciding whether to amend the complaint:

The factual allegation contained in the proposed amendment is narrow in scope and its determination is unlikely to add significantly to the length of the hearing.

The proposed amendment does not fall within one of the grounds for declinature available to the President (s 89B(2) and s 92(1)(a)).

On its face the proposed amendment does not appear futile.

If the application is refused, Mr Neeson has indicated that he will lodge a complaint about his casual teaching application with the President. Unless resolved this will result in duplication of proceedings and additional costs.

It does not appear that the proposed amendment raises any issue of joinder. As I understand it the Department accepts responsibility for the conduct of its officers in respect of this matter.

The proposed amendment concerns incidents that occurred in the last six months and is close in time to the matters raised in the complaints referred to the Tribunal.

17 In my view the circumstances of this case favour the exercise of the power to amend the complaint.

Orders

1. The complaint referred to the Administrative Decisions Tribunal by the President of the Anti Discrimination Board by letter dated 23 July 2008 is amended to include an allegation of victimisation in relation to the Department’s decision not to accept Mr Neeson’s application for employment as a teacher on a casual basis.