Rodgers v Department of Treasury and Finance - [2013] SAEOT 8

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
RODGERS v DEPARTMENT OF TREASURY AND FINANCE
[2013] SAEOT 8
Judgment of His Honour Judge Costello
16 April 2013
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION - SEXUAL HARASSMENT
Complaint alleging sexual harassment by fellow employees in 2003-2004 and victimisation thereafter from 2004-2010 - Complaint as it related to events prior to 2009 out of time - no good reason to extend time - Limitation of Actions Act 1936 not available to extend time - although acts occurring post 2009 capable of amounting to victimisation, those acts were not acts for which the respondent could be vicariously liable - acts of alleged victimisation post 2009 incapable of constituting last in a "series of acts" so as to include acts in 2003-2004 as latter acts not capable of constituting victimisation - complaint dismissed.
Equal Opportunity Act 1984 (SA); Limitation of Actions Act 1936 (SA), referred to.
Ellson v PB Taxi Co Pty Ltd [2008] SAEOT 6; Maxwell v Murphy (1957) 96 CLR 261; Commercial Oil Refiners Pty Ltd v South Australia (1974) 9 SASR 88; State of New South Wales v Lepore (2003) 212 CLR 511; Parashakis v State of South Australia [1999] SAEOT 102; Patrick v State of South Australia [2007] SAEOT 2; Waters v Kuga Pty Ltd (1997) unreported; Agostinelli & Ors v Kelvinator Australia Ltd (1996) EOC 92-786, considered.

RODGERS v DEPARTMENT OF TREASURY AND FINANCE
[2013] SAEOT 8
The Proceedings

The respondent has applied for an order dismissing the Complaint. The Tribunal has power to make such an order at any stage in the proceedings.[1]
[1] S 96(2) of the Equal Opportunity Act 1984 ("the Act").
Background to the Complaint
The background to the Complaint is fully detailed in a letter dated 19 March 2012 from the Complainant’s solicitors to the Commissioner. The Complaint initially and, in some senses primarily, relates to an incident which occurred on 5 December 2003. However, when the letter of Complaint is analysed in more detail it is apparent that the Complainant is alleging:
·Sexual harassment (by a Mr Verrilli) in 2003;
·Discrimination (by exposing her to this sexual harassment); and
·Victimisation (comprised by bullying, harassment and intimidating conduct) from the time when the Complainant first reported the matter in December 2003 until 2006 when she moved to a different government department.
In the letter of Complaint, there is no mention of any alleged unlawful conduct after 2006. I note, in this regard, that the letter implicitly acknowledged that the Complaint was lodged “out of time” and effectively sought an extension of time from the Commissioner.[2]
[2] Letter of Complaint - para 5.1.
By letter dated 26 April 2012, the Commissioner replied to the Complainant’s solicitors. In that letter, she indicated that as all the Complainant’s allegations related to events prior to April 2009, the Commissioner had no power to extend the time within which to lodge the Complaint.[3] The Commissioner enquired as to whether there were any allegations relating to events subsequent to April 2009.
[3] Prior to the amendments to "the Act", which came into force in October 2009, there was no express power in the Act for the Commissioner to extend the time to lodge a complaint.
By way of response, in a letter from her solicitors, the Complainant alleged, for the first time, that the bullying, harassing and intimidating conduct continued up to 21 February 2011 at which time she commenced maternity leave.
The letter identified an employee of the respondent, a Mr Kilvington (a person the Complainant knew to be a friend of Mr Verrilli and someone who had witnessed the incident of sexual harassment by Mr Verrilli in December 2003) as a person who (up to the time she took leave) engaged in conduct which included grinning at her and giving her “dirty looks”.
In an affidavit sworn on 12 December 2012, she said Mr Kilvington, between 2004 and the end of 2010, when passing near her, would glare at her for a long time and give her “strong looks of disapproval”. She said that this happened approximately once per month, both in and outside the office.
It is not entirely clear to me as to when this conduct is alleged to have ceased (i.e. late 2010 or 2011) but it must have ceased by no later than 21 February 2011 when she commenced maternity leave.
In her letter to the Complainant’s solicitors dated 12 June 2012, the Commissioner determined, in effect, that:
·The Complaint, insofar as it related to events prior to April 2009, was out of time and that there was no power to extend the time;
·The allegations in respect to events subsequent to April 2009 were lacking in substance; and
·The allegations relating to Mr Kilvington’s conduct lacked a sufficient nexus to be regarded as the last in a “series of acts” within the meaning of s 93(2) of the Act.
Whilst the Commissioner did not expressly advert to the necessity for her to exercise her power to extend the time to lodge a Complaint it must follow that she declined to do so in view of the fact (as I have said) that paragraph 5.1 of the Complainant’s letter of Complaint acknowledged that the Complaint was “out of time” and urged the Commissioner not to “terminate it”.
Although the Complainant had a right to seek a review of that part of the Commissioner’s decision (which implicitly refused to extend the time) no such application was made either by 12 July 2012[4] or at all.
[4] S 96B of the Act gives the Complainant a right to apply for a Review of a decision of the Commissioner to refuse to extend time. The application must be made within one month of the decision.
The Test for Dismissal at a Preliminary Stage
In Ellson v PB Taxi Co. Pty Ltd,[5] Judge Trenorden considered the appropriate test for dismissal and said:
In other jurisdictions, for the success of an application to dismiss a claim against a defendant, the Court has to be satisfied that there is no reasonable basis for the claim: District Court Civil Rules R 232(2). It has been held that “it was not necessary for the Court to undertake a predictive assessment of the prospects of success of the plaintiff’s claim, but to see whether the claim was reasonably arguable”: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720. That judgment was in relation to the exercise of the Court’s discretion under s 31A of the Federal Court Act 1976 whereby the Court had to be satisfied that the party who was in the situation of the complainant in the subject proceedings, had no reasonable prospect of successfully prosecuting the proceedings against the party who had applied for summary judgment.
The statement in Boston (above) is consistent with the approach of the High Court in Dey v Victorian Railways Commissioners (1949) 78 CLR 62.
The test in the Equal Opportunity Tribunal should not be different from that applicable in a Court. A complainant is entitled to submit his or her case against named respondents for the determination of the Tribunal, unless the Tribunal is satisfied on the application and argument of the respondent, that there is no likelihood of success of the complaint against that respondent.
[5] [2008] SAEOT 6 at paras 8-12.
I agree with and adopt Her Honour’s analysis and conclusion. I now turn to consider the various arguments advanced by the respondent in support of its application.
Is the Complaint Out of Time?
The Complaint was lodged with the Commissioner on 19 March 2012. The Complainant commenced maternity leave from the Department on 21 February 2011. There were no (and nor could there have been) any unlawful acts, in contravention of the Act, after that date. The Complaint needed to be lodged within 12 months of that date. Accordingly, it is out of time.
Events prior to 2 April 2009 – Power to Extend Time
Prior to the amendments to the Act which came into force on 2 October 2009, the Act relevantly read:
S 93 (2) A complaint must be lodged—
(a)if the alleged contravention is constituted of a series of acts—within 6 months of the last of those acts;
(b)in any other case—within 6 months of the date on which the contravention is alleged to have been committed.
The Act as it then stood, contained no other provision relating to a time limit. Importantly, as I have already observed, there was no power in the Act to extend the time within which to lodge a Complaint. At that time, on the expiration of the six month time limit, a Complaint could not be validly instituted.
In 2009, by amendment, the Act increased the time limit to 12 months and introduced a power in the Commissioner to extend the time for lodging the Complaint.
In the context of the way in which the law is to be applied to a statute which changes the law, the High Court has said:[6]
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.
[6] Maxwell v Murphy (1957) 96 CLR 261, 267; Commercial Oil Refiners Pty Ltd v South Australia (1974) 9 SASR 88.
In my view, the provisions, in the amending Act under consideration, do not display a clear intention to confer a right in the form of a revival of an entitlement to lodge a complaint which has been extinguished.
Accordingly, subject to the question of whether the conduct of Mr Kilvington can be said to constitute part of a “series of acts”, the alleged contraventions prior to 2 April 2009 cannot be made the subject of an extension of time.
Kilvington’s Conduct (post 2009) – Victimisation
S 86 of the Act deals with victimisation and relevantly provides:
86—Victimisation is unlawful
(1) It is unlawful for a person to commit an act of victimisation.
(2) For the purposes of this section, a person commits an act of victimisation against another person (the victim) if he or she treats the victim unfavourably on the ground that the victim has—
…
(c)made allegations that the victim … has been the subject of an act that contravenes this Act.
In essence, for the Complainant to succeed against the respondent, she must show not only that Mr Kilvington treated her unfavourably on the ground that she had made allegations against Mr Verrilli but also that, when he did so, he was acting in the course of his employment.[7]
[7] S 91 of the Act provides that "a person is ... vicariously liable for a discriminatory or unlawful act of an agent or employee of the person committed while acting in the course of their agency or employment."
The alleged unfavourable treatment consists of “grinning” at her and giving her “dirty looks” or as she later says in her affidavit, “glaring” at her for long periods and giving her “strong looks of disapproval”.
Section 6(3) of the Act provides that “a person … treats another unfavourably on the basis of a particular … circumstance if [he] treats that person less favourably than in identical or similar circumstances [he] treats … a person who … is not affected by that circumstance”.
Although the Complainant’s allegations in this regard are vague and somewhat imprecise, I am satisfied that the alleged conduct, particularly when occurring on a regular and extended basis, is capable of making a person feel both uncomfortable and vulnerable and adversely affect a person’s enjoyment of a work environment.
I am also satisfied that, if this conduct occurred, there is no plausible explanation for it having occurred other than by reason of the circumstance of her reporting Mr Verrilli and that therefore, by his conduct, he was treating her less favourably.
In argument, Mr Stevens submitted that the Complainant, suffering as she was from an anxiety disorder (which the Complainant herself conceded caused her to experience paranoia, oversensitivity and insecurity) was likely to have misinterpreted Mr Kilvington’s otherwise unobjectionable conduct and perceived it to be something which it was not.
On what amounts to a “strike out application”, I am not prepared to characterise her observations and perceptions in this way. I am satisfied that his actions are capable of amounting to victimisation.
Vicarious Liability of the Respondent
If the actions of Mr Kilvington are capable of amounting to victimisation, are they actions for which the respondent is vicariously liable being actions carried out within the course of his employment with the respondent?
In considering whether Mr Kilvington was acting in the course of his employment, the context of the work places of both the Complainant and Mr Kilvington is important.
In 2003, when the incidents with Mr Verrilli occurred, the Complainant was working in The Department of Treasury and Finance as was Mr Kilvington. In 2006, the Complainant transferred to the Department of Environment and Heritage while Mr Kilvington remained employed with the respondent.
Accordingly, when the acts constituting the alleged victimisation (within time) took place i.e. post April 2009, can it be said that where the Complainant and Mr Kilvington were working in quite separate departments (albeit departments of the government of South Australia) that Mr Kilvington’s actions towards the Complainant were in the course of his employment.
The High Court had occasion to consider the question of vicarious liability in State of New South Wales v Lepore.[8] In his judgment, Gleeson CJ said that:[9]
An employee is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes – although improper modes – of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.
[8] (2003) 212 CLR 511.
[9] (2003) 212 CLR 511 at para 42.
And that:[10]
It is the nature of that which the employee is employed to do on behalf of the employer that determines whether the wrongdoing is within the scope of the employment.
[10] (2003) 212 CLR 511 at para 46.
In their joint judgment Gummow and Hayne JJ concluded that an employer will be liable for an intentional tort only where the conduct was done in the intended pursuit of the employer’s interests or where the conduct was done in the ostensible pursuit of the employer’s business.[11]
[11] (2003) 212 CLR 511 at para 239.
Kirby J effectively accepted that the appropriate test was that identified by Gleeson CJ namely, that there must be a “sufficient connection” between the unauthorised acts and acts which are authorised.[12]
[12] (2003) 212 CLR 511 at para 316.
Regardless of which of the analyses of their Honours one adopts, the alleged actions of Mr Kilvington were clearly not done in the course of his employment. There is no connection, real or apparent, between his actual duties and the intimidatory conduct alleged nor could it be said that it was conduct in the intended pursuit of his employer’s interests be those interests that of the named respondent or the State of South Australia.
In summary, in my opinion, if the alleged acts of victimisation took place, they did not take place in the course of Mr Kilvington’s employment and as such the respondent cannot be vicariously liable.
Should the Commissioner have extended the time to lodge the Complaint?
In order for the Commissioner to “extend time” she needed to be satisfied that there was good reason as to why the Complaint was not made within the stipulated time period i.e. within 12 months of the alleged contravention and that in all the circumstances it was just and equitable to do so.
The last alleged act of victimisation could not have taken place any later than February 2011 and as such the Complaint needed to be lodged by February 2012. It was not lodged until 19 March 2012.
In her affidavit, the Complainant says that it was not until she was away from the workplace that she felt able to take action regarding the making of a Complaint, citing a fear of having to face Mr Verrilli. In this respect, I note that she consulted solicitors to obtain advice on this matter in July 2011, some eight months prior to commencing proceedings.
Although I am satisfied that the conduct of Mr Kilvington is capable of amounting to unlawful victimisation, I am not persuaded that it is, in these circumstances, appropriate to extend the time for two reasons.
First, there is nothing before me, even now, to explain why the Complaint could not have been lodged within time. Furthermore, even when it was ultimately lodged it was lodged, complaining of events occurring in 2003 and 2004. It was only after the need to identify dates past 2009 was adverted to by the Commissioner, that periods past that time were specified but, even then, in only the most general fashion.[13]
[13] Letter 16 May 2012 to Commissioner - para 3.
Secondly and arguably more importantly, it would not be just and equitable to the respondent to do so. Quite apart from the lack of fairness in now requiring the respondent to defend a Complaint relating to events which are nearly 10 years old, there is simply no basis upon which it could be said that the post 2009 actions were within the scope of the Kilvington’s employment.
Limitation of Actions Act 1936
The Complainant also sought to invoke the provisions of the Limitation of Actions Act 1936 (SA) (“the LAA”) in support of her argument that time should be extended.
I agree with counsel for the respondent that the provisions of s 48 of the LAA cannot be called in aid in circumstances where there are specific provisions in the Act itself (in s 93(2a)) setting out criteria which must be satisfied in order to obtain an extension of time, which criteria are different from the criteria in s 48.
I also agree with and adopt the reasoning of the Tribunal in Agostinelli & Ors v Kelvinator Australia Ltd,[14] to the effect that s 48 has no application to the time limit in s 93.
[14] (1996) EOC 91-786; See also Parashakis v State of South Australia 1999 SADC 102.
Series of Acts
If the actions of Mr Kilvington amounted to victimisation, were his actions the last in a series of acts such as to bring into account the conduct of Mr Verrilli and others in 2003-2004?
I am not satisfied that his conduct can be so categorised.
Discrimination on the grounds of sex, sexual harassment and victimisation are all dealt with in separate sections of the Act. To discriminate on the grounds of sex, to sexually harass a person and to subject a person to victimisation are separate contraventions of the Act each with its own requisite “elements”.
In my opinion, when s 93(2) speaks of an alleged contravention of the Act being constituted of a series of acts, that series must be one involving a series of acts of sexual discrimination or sexual harassment or victimisation but not a series constituted by a combination of some or all of the three.

So understood, the acts of Mr Kilvington (even if they amounted to victimisation) could not be the last in a series of acts commencing with the acts of Mr Verrilli because Mr Verrilli’s acts could not possibly constitute victimisation within the meaning of s 86.
Furthermore, and in any event, in order for the actions of Mr Kilvington and Mr Verrilli to constitute parts of a series, there would need to be established a sufficient link or nexus between the two. A sufficient link may be established if there is eg a requisite temporal or factual connection between the two.[15] It will not be sufficient if there are a number of otherwise unconnected acts committed by a range of different individuals occurring years apart one from another.
[15] Patrick v State of South Australia [2007] SAEOT 2; Waters v Kuga Pty Ltd & Cusano (1997) unreported.
Conclusion
I am satisfied that the respondent is entitled to succeed in its application. There is in my view no likelihood of the complainant succeeding in making out her Complaint against the respondent.
The Complaint is out of time. Insofar as it relates to facts prior to April 2009, the Complaint cannot be maintained because there is no power to extend the time. Insofar as it relates to events after 2009, the Complaint is out of time and no good reason has been demonstrated as to why the Commissioner should have extended the time.
Furthermore, although I am satisfied that Mr Kilvington’s actions are capable of amounting to victimisation, they are actions for which the respondent could never be liable.
Finally, the actions of Mr Verrilli in 2003-2004 could not constitute part of a series of acts culminating in Mr Kilvington’s acts because Mr Verrilli’s acts were not acts of victimisation.
For these reasons the Complaint is dismissed.