Prasad v Labourpower Recruitment Services

[2021] NSWCATAD 278

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Prasad v Labourpower Recruitment Services [2021] NSWCATAD 278

Hearing dates:

7 July 2021

Date of orders:

24 September 2021

Decision date:

24 September 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

1. Leave for the complaint against Labourpower Recruitment Services to proceed is refused.

2. Leave for the complaint against Cinqplast Plastop Australia Pty Ltd to proceed is refused.

Catchwords:

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

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Jones & Anor v Ekermawi [2009] NSWCA 388

Category:

Principal judgment

Parties:

Neha Prasad - Applicant
Labourpower Recruitment Services – First Respondent
Cinqplast Plastop Australia Pty Ltd – Second Respondent

Representation:

Ms N Prasad – In person
Mr M Di-Blasio – First Respondent
Mr Powter – Second Respondent

File Number(s):

2021/157025

Publication restriction:

None

REASONS FOR DECISION

1. Ms Neha Prasad was employed by Labourpower Recruitment Services (the First Respondent) a labour hire company and had been working at Cinqplast Plastop Australia Pty Limited (the Second Respondent) since 26 September 2016. During her employment she met a person by the name of Mr Tabal, who she alleges made inappropriate comments to her and would touch her from behind. Ms Prasad was moved to another area within Cinqplast and had no contact with Mr Tabal. From about 31 October 2020 to 23 December 2020, after she was escorted off the Cinqplast site, she made allegations of intimidating behaviour by Mr Tabal.

2. On 13 January 2021, Ms Prasad was informed by Labourpower that her position at Cinqplast was no longer available.

3. On 13 January 2021, Ms Prasad says she spoke with an employee of Labourpower indicating that she wished to make a bullying and harassment complaint about Mr Tabal.

4. A formal complaint was lodged on 14 January 2021 in relation to the allegations made by Ms Prasad. Cinqplast hired an external investigator to investigate her complaint. The result of the investigation was that her claim was predominantly unsubstantiated.

5. On 3 March 2021, the President of Anti-Discrimination New South Wales (ADNSW) received a complaint from Ms Prasad alleging sexual harassment and victimisation in her employment.

6. The President’s delegate decided in relation to those complaints as follows:

7. To accept for investigation the complaint of victimisation against Labourpower for the period 13 January 2021 - 3 March 2021. The allegations relate to the termination of Ms Prasad’s contract.

8. To accept for investigation the complaint of victimisation against Cinqplast for the period 13 January 2021 - 3 March 2021. The allegations relate to the termination of the complainant’s contract.

9. To decline the allegations of sexual harassment that predate 3 March 2020 on the basis that the conduct occurred more than 12 months before the making of the complaint.

10. The President’s delegate invited Ms Prasad to provide further details of alleged sexual harassment from 3 March 2020 to date. Despite this request, no further information was provided.

The Complaints

11. In the documentation provided by the President of ADNSW the following complaints are recorded:

12. Ms Prasad had been employed by Labourpower and had been working at Cinqplast’s site since 26 September 2016 which is when she first met Mr Tabal.

13. After the commencement of her employment Mr Tabal made inappropriate comments to her, and would touch her from behind. Ms Prasad did not report this behaviour at the time.

14. In February 2020, Ms Prasad was offered a position in the QC department of Cinqplast, and at that stage had no contact with Mr Tabal.

15. On 31 October 2020, Ms Prasad alleges Tabal approached her in an intimidating manner, pressed his body against hers and recorded their conversation without her consent.

16. On 2 November 2020, Ms Prasad alleges Mr Tabal again approached her and asked her to print out a manufacturing order. She informed him that she would report him for making the recording of 31 October 2020. Ms Prasad alleges Mr Tabal called her that evening and requested she did not report him to which she agreed on the basis that he deleted the recording.

17. From 29 November 2020, Ms Prasad continued to receive text messages from Mr Tabal, and he misused her contact details.

18. On 23 December 2020, Ms Prasad was escorted offsite at Cinqplast. She had previously been told by a Mr Robert Hooper that he had applied for a permanent position for her.

19. On 13 January 2021, Ms Prasad enquired with Labourpower about resuming work at Cinqplast. She was told that her position had been terminated.

20. On 13 January 2021, Ms Prasad spoke with an employer of Labourpower and informed that employee that she wished to make a bullying and harassment complaint about Mr Tabal.

21. A formal complaint on 14 January 2021 was made by Ms Prasad to Cinqplast. Cinqplast hired an external investigator to investigate her complaint. The result was that her claim was unsubstantiated.

Statutory framework and principles governing the grant of leave

22. A decision by the President to decline a complaint under s 89B of the Act is not reviewable by this Tribunal (see – s 89B(4) of the Act). It follows that the decision of the President to decline the complaint as it relates to allegations of sexual harassment is not before me for consideration.

23. 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 stage during the investigation of a complaint, the President is satisfied that it is lacking in substance, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint (s 92(1)(a)(i)). It is this decision which I have jurisdiction to review.

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

25. 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.

26. 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]; Ekermawiat [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: Ekermawiat [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].

Submissions of the parties 

Ms Prasad’s submissions

27. Similar submissions are made concerning the particular complaints and employment history as set out in paragraph [8] above.

28. Ms Prasad contends that on 13 January 2021 she verbally informed a Ms Brooke Quilberry of Labourpower that she was going to file this complaint. Before she was able to do so she says that Cinqplast had decided that her job was no longer required. When asked about returning to work, she said that her position was no longer available. Ms Prasad said that she was informed that Cinqplast no longer require casuals at their site, despite she says positions remaining available.

29. Ms Prasad has included in her submissions a number of text messages and emails passing between the First and Second Respondents that relate to her employment and the investigation that took place concerning her complaint. She also includes a statement from an unnamed employee setting out casual positions being available at Cinqplast despite her being told otherwise.

30. Ms Prasad also refers to allegations that she was aware other personnel had been dismissed whilst working at Cinqplast after they made a complaint of sexual harassment and intimidation. She said that armed with this history she did not make any complaint as she was fearful she would lose her job.

31. She says that she has been victimised by the respondents for making her complaint and in the result her employment was terminated.

Submissions of the First Respondent, Labourpower

32. On 23 December 2020, an employee of Cinqplast informed the National HR Manager of Labourpower that one of its employees (Mr Tabal) had obtained an Apprehended Violence Order (AVO) against Ms Prasad. Both Mr Tabal and Ms Prasad worked at the Second Respondent’s worksite in Minto. Once the AVO had been made, contact was made with Ms Prasad to discuss the practicality of the constraints pertaining to essentially her not being able to ‘go within 50 metres of any place where [Mr Tabal] works’.

33. Attempts were made to reassign Ms Prasad to a different assignment. On 24 December 2020, the First Respondent contends that an alternate work assignment was offered to Ms Prasad which she declined.

34. A copy of the AVO has been attached to the submissions evidencing the orders which were in place at that time.

35. On 13 January 2021, the First Respondent was informed by the Second Respondent that it had restructured its quality assurance team and no longer required the services of Ms Prasad or any replacement.

36. On 13 January 2021, the First Respondent informed Ms Prasad of the change in arrangements for personnel at the Second Respondent and discussed alternative roles such as a position with Darrell Lea Chocolate. At this stage Ms Prasad said she wanted to lodge a bullying and harassment claim against Mr Tabal and raised sexual harassment and bullying concerns.

37. On 14 January 2021, Ms Prasad sent to the First Respondent an email containing the written notice of a formal complaint against Mr Tabal.

Victimisation

38. Ms Prasad alleges the First Respondent subjected her to detriment by not continuing to offer her an assignment with the Second Respondent as a result of her raising the bullying and harassment complaint against Mr Tabal.

39. The question to be asked in relation to a victimisation claim is set out in Nicholls & Nicholls v Director General, Department of Education and Training (No. 2) [2009] NSWADTAP 20 at [37]:

‘One of the things listed in s50(1)(a) to (d) was at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment.’

40. The First Respondent says that it cannot be said by Ms Prasad that her raising the complaints were the true reason for her not continuing her assignment with the Second Respondent. The First Respondent was given notice by the Second Respondent of its change in business requirements. The First Respondent also sets out the lengths it went to to attempt to offer different assignments to Ms Prasad, which I accept. This evidence is not consistent with Ms Pasad’s contention that she was being victimised within the context of s50 of the Act.

Submissions of the Second Respondent

41. The Second Respondent supports the finding of the President of ADNSW in that the complaint is lacking in substance.

42. Despite an opportunity to provide material and present her allegations to the President of ADNSW, she failed to provide any evidence in relation to alleged sexual harassment from 3 March 2020.

43. The Second Respondent says that it was never the employer of Ms Prasad. The First Respondent was the employer and provided services to it at its Minto operation. On 13 January 2021, the Second Respondent sent to the First Respondent an email which is included in the papers detailing that it had changed its operational arrangements and no longer required Ms Prasad or others to perform casual services.

44. It was only on 14 January 2021, after the Second Respondent had changed its operational services, that it was informed of the complaint made by Ms Prasad. The Second Respondent contends it did not terminate Ms Prasad’s employment and it says it did not remove the need for Ms Prasad, or her position because, of the complaint.

My consideration

45. As I have set out above, I am not considering the sexual harassment claim given the findings of the President of ADNSW and the operation of s 89B of the Act.

46. Section 50 sets out the indica for a victimisation claim:

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,

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.

47. In my view the claim and the available evidence is lacking in substance. I am not satisfied that Ms Prasad has an arguable case to demonstrate victimisation against either the First or Second Respondents. I accept that Ms Prasad had not raised the allegations contained in her complaints prior to 13 January 2021. Ms Prasad has remained in the employ of the First Respondent since raising those complaints. She has been offered other reassignments which she has chosen not to accept.

48. I am not satisfied that her complaint was at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for being subjected to any detriment as alleged. As for the complaint of discrimination, if able to be proven which is not in itself clear, it is not a reason which, either alone or in combination with other reasons, was the true basis for the alleged dismissal.

49. In relation to the Second Respondent, I am satisfied that it was not Ms Prasad’s employer. I find it decided prior to becoming aware of the allegations made by Ms Prasad that it no longer required her services and had restructured its workforce.

50. I conclude that the claim and the available evidence is lacking in substance. It does not establish that Ms Prasad has an arguable case to prove that she was victimised in her employment by either the First or Second Respondent.

51. Leave to proceed is refused.

Order

1. Leave for the complaint against Labourpower Recruitment Services is refused.

2. Leave for the complaint against Cinqplast Plastop Australia Pty Limited is refused.

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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: 24 September 2021