Patrick v State of South Australia
[2007] SAEOT 2
•20 December 2007
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
PATRICK v STATE OF SOUTH AUSTRALIA
[2007] SAEOT 2
Reasons for Decision of Her Honour Judge Trenorden, Member Ms H Jasinski and Member Ms A Bachmann
20 December 2007
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION - SEXUAL HARASSMENT
Complaint lodged with Commissioner for Equal Opportunity - Commissioner declined to recognise the complaint - matter referred to Equal Opportunities Tribunal.
Complaint relates to allegations of discrimination by the South Australian Police set out in Complainant's Further & Better Particulars - question as to jurisdiction of EOT to hear complaint in relation to certain matters not included in referral from Commissioner.
HELD: Tribunal found in favour of Respondent - Tribunal unable to address matters in particulars that had not been referred by the Commissioner for Equal Opportunity.
Equal Opportunity Act 1984 (SA), referred to.
Janus v Lifeline Upper Spencer Gulf Inc (1991) EOC 92-382; Agostinelli & Ors v Kelvinator Australia Ltd (1996) EOC 92-786; Parashakis v State of South Australia [1999] SADC 102; O'Callaghan v Loder and the Commissioner for Main Roads [1983] 3 NSWLR 89; Koh v Mitsubishi Motors Australia Limited (1985) EOC 92-122; Hills v The State of South Australia [2001] SADC 48; Hills v The State of South Australia [2002] SASC 171, considered.
PATRICK v STATE OF SOUTH AUSTRALIA
[2007] SAEOT 2THE TRIBUNAL DELIVERED THE FOLLOWING JUDGMENT
On 20 March 2007 the Commissioner for Equal Opportunity declined a complaint made by the Complainant against the South Australian Police and referred the matter to this Tribunal at the request of the Complainant pursuant to the provisions of the Equal Opportunity Act 1994 (SA). The complaint related to an allegation of discrimination by the South Australian Police during incidents alleged to have taken place on 23 and 24 March 2006 at Port Adelaide. The complaint was particularised by the Commissioner for Equal Opportunity in her referral of it to this Tribunal, as follows:
"that on or about 23rd and 24 March 2006, South Australian Police Department of PO Box 1539 Adelaide 5000 in the State of South Australia discriminated against the said Patrick, contrary to sections 29, 39 and 91 of the Equal Opportunity Act, 1984 (S.A.)."
The complaint had been received in the office of the Equal Opportunity Commission on 11 April 2006.
On 13 April 2007 a document entitled “Further & Better Particulars” was filed in the Equal Opportunity Tribunal by the Complainant. That document set out under the heading “Statement of Complaint”, the following:
Sexually discriminated,
Racially discriminated,
Discriminated due to disability (mental illness).
Under the heading “Particulars of Complaint” the document set out a number of dates, together with what appears to be a series of events alleged to have occurred, and which is complained of, on each of those dates. The dates are as follows:
May 2003, 17 March 2003, Mid 2003 – Mid 2004, 29 July 2004, August 2004 - April 2007, 31 January 2005, 12 February 2005, November 2005, Murray Bridge Court, 23 & 24 March, 29 May 2006.
The March 23 and 24 date does not include a year, but as the narrative refers to “custody at Port Adelaide for failure to appear in Court”, those dates would appear to refer to the matters complained of in the complaint now before this Tribunal, in which case the year was 2006.
On 22 May 2007, the State of South Australia filed in the Tribunal an Answer to the Further & Better Particulars, submitting, inter alia, that in respect of all of the events described in the Further & Better Particulars, excepting that of 23 and 24 March 2006, the jurisdiction of this Tribunal is not invoked.
The basis of this submission was that the events of these dates have not been the subject of referrals by the Commissioner for Equal Opportunity pursuant to section 95(8) of the Equal Opportunity Act. The Respondent further submitted that in any event these complaints are not capable of being received and considered by the Commissioner as they had not been lodged with the Commissioner within the time frame set out in section 93(2) of the Equal Opportunity Act.
The question of whether the Tribunal has jurisdiction to hear complaints in relation to the events alleged to have occurred on the dates itemised in the Further & Better Particulars, except those of 23 and 24 March 2006, was set down for hearing and determination as a preliminary issue prior to the hearing of the proceedings.
The Legislation
The making of a complaint that a person has acted in contravention of the Equal Opportunity Act is addressed in division 1 of part 8 of that Act. Section 93 authorises the making of a complaint by a person aggrieved by the act complained of. The complaint must be lodged with the Commissioner, in writing, and set out the details of the alleged contravention: section 93(1c). In addition, a complaint must be lodged within 6 months of the date on which the contravention is alleged to have been committed or, where the alleged contravention is constituted of a series of acts, within 6 months of the date of last of those acts: section 93(2). Upon a complaint being lodged, the Commissioner must cause a written summary of the particulars of the complaint to be served upon the respondent named in the complaint: section 93(3).
Upon the lodgement of a complaint, the Commissioner is empowered to conduct an investigation into the alleged contravention: section 94(1). However, if the Commissioner forms the requisite opinion under section 95(1), the Commissioner may decline to recognise the complaint as one upon which she should take action and in the circumstances must notify the complainant in writing.
Where the Commissioner has declined to recognise a complaint as one upon which action should be taken, the complainant may within 3 months of being notified of the Commissioner’s decision, require the Commissioner, by notice in writing, to refer the complaint to this Tribunal, in which case the Commissioner must refer the matter to the Tribunal for hearing and determination: section 95(8). In that circumstance, the Commissioner must lodge the complaint with the Tribunal: section 95(8a).
Once the complaint has been referred to the Tribunal and is lodged with the Tribunal, the Equal Opportunity Tribunal Rules 1988 provide that the Registrar of the Tribunal is to notify the complainant in writing that the referral (of the complaint) has been filed and that the complainant is required to provide particulars of the complaint within 14 days: rule 4(1)(ii). Rule 4 of the Equal Opportunity Tribunal Rules further provides that within 14 days of service of the Registrar' s notice upon the complainant, he or she must file in the Registry of the Tribunal particulars of the complaint including “a concise statement of the material facts relied upon in respect of each and every allegation of discrimination, victimisation or sexual harassment”: rule 4(1)(iii)(b).
In passing, we note that the terms of rule 4(1)(iii)(b) could arguably be read by a complainant as an invitation to detail all and any allegations of discrimination, victimisation or sexual harassment on the part of the respondent, whether they are relevant to the complaint that has been referred to the Tribunal, or not. Such an invitation might appear to be open where a complainant is not legally represented and not accustomed to reading rules of Courts and Tribunals.
It is clear from the Equal Opportunity Act that this Tribunal, in relation to a complaint that has been made to the Commissioner for Equal Opportunity, has jurisdiction only upon referral of the complaint to the Tribunal by the Commissioner: see section 93. It follows that the Tribunal cannot hear and determine any complaint of a contravention of the Act unless that alleged contravention has been the subject of a complaint first to the Commissioner, which has subsequently been referred to this Tribunal. This was confirmed by the Tribunal in Janus v Lifeline Upper Spencer Gulf Inc (1991) EOC 92-382 and subsequently in Agostinelli & Ors v Kelvinator Australia Ltd (1996) EOC 92-786 and Parashakis v State of South Australia [1999] SADC 102.
The complainant complains of discrimination on the ground of sex and sexuality. The relevant provisions of the Equal Opportunity Act are as follows:
Part 3, Division 1
29 – Definition of discriminate
(1) In this Part –
discriminate means –
(a) discriminate on the ground of sex;
(b) discriminate on the ground of sexuality;
(c) discriminate on the ground of marital status;
(d) discriminate on the ground of pregnancy,
and discrimination has a corresponding meaning.
(2) For the purposes of this Act, a person discriminates on the ground of sex –
(a)if he or she treats another person unfavourably because of the other’s sex; or
(b)if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and –
(i)the nature of the requirement is such that a substantially higher proportion of persons of the opposite sex complies, or is able to comply, with the requirements than of those of the other’s sex; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(c)if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons of the other’s sex, or on the basis of a presumed characteristic that is generally imputed to persons of that sex.
(3) Subject to subsection (4), for the purposes of this Act, a person discriminates on the ground of sexuality –
(a)if he or she treats another person unfavourably because the other’s sexuality, or a presumed sexuality; or
(b)if he or she treats another person unfavourably because the other does not comply, or is not able to comply, with a particular requirement and –
(i)the nature of the requirement is such that a substantially higher proportion of persons of a different sexuality complies, or is able to comply, with the requirement than of those of the other’s sexuality; and
(c)if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons of the other’s sexuality, or presumed sexuality, or on the basis of a presumed characteristic that is generally imputed to persons of that sexuality.
Part 3, Division 5
39 – Discrimination in provision of goods and services
(1) It is unlawful for a person who offers or provides –
(a)goods; or
(b)services to which this Act applies,
(whether for payment or not) to discriminate against another –
(c)by refusing or failing to supply the goods or perform the services; or
(d)in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.
(2) Where the nature of a skill varies according to whether it is exercised in relation to men or to women, a person does not contravene this section by exercising the skill in relation to men only, or women only, in accordance with the person’s normal practice.
Part 6, Division 7
91 – Liability of employers and principals
(1) Subject to this section, a person is, for the purposes of this Act, vicariously liable for the acts or defaults of agents or employees while acting in the course of their agency or employment.
(2) A person is not vicariously liable for an act of sexual harassment committed by an agent or employee, unless the person instructed, authorised or connived at that act.
(3) In any proceedings brought under this Act against a person in respect of an act alleged to have been committed by an agent or employee acting in the course of the agency or employment, it is a defence to prove that the person exercised all reasonable diligence to ensure that the agent or employee would not act in contravention of this Act.
(4) Where a person would, but for the existence of a defence under subsection (3), be liable under this Act to any criminal or civil liability arising out of the act or default of an agent or employee, the agent or employee is liable to that criminal or civil liability.
The Arguments
Counsel for the complainant submitted that the contravention the subject of the complaint is comprised of a series of acts and that as the complaint was submitted within 6 months of the last of the series of acts, the complaint was made within time and therefore the entire series of acts may be considered by this Tribunal. In support of her submission, Ms Richardson for the Complainant referred the Tribunal to O’Callaghan v Loder and the Commissioner for Main Roads [1983] 3 NSWLR 89 and Koh v Mitsubishi Motors Australia Limited [1985] EOC 92-122.
In Koh, a complaint had been lodged with the Registrar of the Sex Discrimination Board, in which the complainant had declared that the respondent had discriminated against her on the grounds of her sex. In due course, the grounds of the alleged discrimination were varied by the complainant. These changes were allowed by the Board because the essence of the complaint had not changed. As the Board said,
… the first ground of Mrs Koh’s original complaint was wide enough to encompass the matters covered by the recasting of the complaint. The recasting of the complaint did not introduce matters that were not inherent in the first paragraph of the written complaint …
The particular ground of the complaint was the allegation that the Company had not evaluated or re-evaluated the work of the complainant. This allegation had been varied over the course of the progress of the complaint to an allegation that the respondent had failed properly to evaluate the work of the complainant. In addition a ground had been added that the respondent had failed to correct the situation when given the opportunity to do so. This aspect of the decision in Koh turns very much on its own facts and what happened in the course of the progress of the complaint, and is not similar to the situation before the Tribunal now. Here a complainant seeks to add a number of events or incidents that occurred mostly prior to the events the subject of the complaint referred by the Commissioner, as being part of a series of acts constituting sexual harassment by the respondent. That was not the situation in Koh.
Ms Richardson relied on the decision in O’Callaghan v Loder to argue that it is open to this Tribunal to allow a complainant to expand upon a simple complaint drafted by the complainant and lodged with the Commission. In O’Callaghan v Loder the complaint was simple, alleging discrimination based on sex and sexual harassment, but with no details of dates on which alleged acts occurred and no particulars of the alleged acts. However, the judgment or determination to which the Tribunal was referred was a determination of a question of law in an enquiry preliminary to the hearing and determination of the complaint by the Tribunal. Questions of law were heard and determined by the judicial member of the Tribunal, sitting alone. One of these questions involved a jurisdictional issue, namely as to whether the allegations set out in the complaint initiating the inquiry in the Tribunal were capable of amounting to a contravention of the relevant legislation. At the commencement of her reasons, Matthews DCJ indicated that “after further discussion it was determined that the sole factual basis for this preliminary enquiry should be the complaint itself”. Thus, it had been agreed or determined (it is unclear which) that the complaint, simple as it was, should form the factual basis for the preliminary inquiry. We do not accept that the decision in O’Callaghan does support the submission that a simply articulated complaint in relation to events alleged to have occurred on two dates, can form the basis for an allegation of discrimination constituted by a series of acts that had not been previously advised.
In Hills v The State of South Australia [2001] SADC 48, a determination of the Equal Opportunity Tribunal, the Tribunal acknowledged that discrimination of the kind alleged in that case (on the ground of physical impairment) “can comprise a course of conduct culminating in the relevant act or omission”. That matter went on appeal to the Supreme Court where the Court noted that the Tribunal had rejected a submission that there was a course of conduct amounting to a series of acts for the purposes of section 93(2) of the Act. In the Supreme Court judgment, Hills v The State of South Australia [2002] SASC 171, The Honourable The Chief Justice (with whom other members of the Full Court agreed) concluded that its decision in this respect had been open to the Tribunal and that “the consequence of that rejection was that Mr Hills could complain only about events in 1996, because of the time limit in section 93(2) of the Act”, but continued with the following:
That decision does not render earlier events irrelevant, they remain relevant to the extent that they explain events in 1996.
(the events in 1996 included the decision in respect of which discrimination was alleged.)
Under section 93, a person who is aggrieved by an act may make a complaint alleging that the actor has acted in contravention of the act. The "act" complained of might be constituted by a series of acts: see section 93(2)(a). Thus, the Act in section 93 recognises that a contravention might be in a single act, or be constituted by a series of acts. The Act in section 93(2) sets out a time limit for the lodgement of a complaint of a contravention of the Act. A complaint must be made within 6 months of the act of contravention ("event"), or where the contravention is constituted by a series of acts ("events") - within 6 months of the last event in the series of events. Thus, the Act in section 93 does not speak to a series of contraventions. The Act enables the making of a complaint after a single contravention, whether that is constituted by one event or a series of events that taken together, form the alleged contravention.
We have considered what is necessary to establish a series of acts. Having had regard to the Macquarie Dictionary definition of "series", we make some observations concerning a "series". First, the term connotes a number of events; thus it follows that there must be more than 2 events. Secondly, the term implies linked or connected events. The events may be connected because, for example, they occurred in the same premises or were the actions of the same person, on each occasion. Whatever the nature of the connection or link, one must exist. A number of isolated incidents perpetrated by various employees of the one entity probably would not suffice. It would have to be shown that there was a link between each of the incidents, sufficient for the incidents to constitute a series of acts.
The Decision
It appears to us that the act of alleged discrimination the subject of the complaint initially made to the Commissioner for Equal Opportunity was constituted by a series of acts that took place on the 23 and 24 March 2006.
The "particulars of complaint" set out in the complainant's document Further & Better Particulars, filed in the Tribunal on 13 April 2007, appear to be a list of alleged contraventions of the Act, some of which contraventions appear to be constituted by a number of acts. We are unable to conclude that the list comprises acts that are linked in any way so as to constitute a series of acts amounting to a contravention of the Act. Taken separately, each event or series of events identified by a date or dates or the words "Murray Bridge Court" in the list might have constituted a contravention of the Act, but they do not constitute together a series of acts so as to form a contravention of the Act. This being the case, this Tribunal is unable to address those matters in the list that have not been referred to it by the Commissioner for Equal Opportunity. However, the earlier events might be relevant to explain the events of 23 and 24 March 2006.
Ms Richardson tendered a bundle of documents that comprised complaints that had been lodged with the Commissioner for Equal Opportunity. These documents constituted allegations of a contravention by the South Australian Police on 4 separate occasions, namely 11 April 2006, 19 April 2004, 14 May 2004 and 14 November 2003. They were put before us to counter any suggestion that the items in the list comprising the Particulars of Complaint had not been placed before the Commissioner and thus could not be heard by this Tribunal.
We cannot address these alleged acts of contravention. They have not been referred to the Tribunal by the Commissioner nor, as we have determined, are they part of a series of acts including 23 and 24 March 2006, that taken together, form a single contravention. The legislation is quite clear. This Tribunal may only address those matters that have been referred to it by the Commissioner.
Conclusion
The preliminary issue is now determined against the Complainant. Excepting the events said to have occurred on 23 and 24 March 2006, none of the events set out in the Further & Better Particulars document filed by the Complainant can be considered by the Tribunal as part of a series of acts constituting a contravention of the Act, that has been referred to this Tribunal for determination. As we have said, those events that allegedly occurred earlier, might at most be relevant at the hearing of the Complaint, to explain the later events, but that is for another day.
The respondent is entitled to the order it seeks. The Tribunal now orders as follows:
That the complaints with respect to the events of 17 March 2003, May 2003, mid-2003 to mid-2004, 29 July 2004, August 2004 to April 2007, 31 January 2005, 12 February 2005, November 2005, Murray Bridge Court, and 29 May 2006 be dismissed for want of jurisdiction.
4
1
1