Rodgers v Revenue SA, Department of Treasury and Finance (State of South Australia)

The Full Court of the Supreme Court of South Australia heard an appeal concerning allegations of sex discrimination and victimisation. The appellant, Ms Rodgers, alleged that she suffered detriment due to the conduct of two managers, Mr V and Mr K, within the Office of State Revenue, a division of the Department of Treasury and Finance. The respondent, Revenue SA, Department of Treasury and Finance, was accused of being vicariously liable for the actions of its employees.

The court was required to determine several issues, including whether the alleged conduct of Mr K constituted victimisation and whether the respondent was vicariously liable for this conduct. It also considered whether the respondent discriminated against Ms Rodgers on the grounds of her sex through the conduct of Mr K. Furthermore, the court examined the applicability and retrospective operation of provisions within the *Limitation of Actions Act 1936* (SA) and the *Equal Opportunity Act 1984* (SA) concerning the extension of time for lodging a complaint, and whether the alleged conduct constituted a single series of acts for limitation purposes.

The court reasoned that the common law interpretation of "in the course of employment" might be too narrow and could exclude employers from vicarious liability for certain discriminatory conduct, contrary to the objects of the *Equal Opportunity Act*. It found it arguable that the conduct of both Mr V and Mr K could constitute a contravention of section 30 of the Act, potentially as a series of acts. The court also determined that section 48 of the *Limitation of Actions Act* empowered the Tribunal to extend time for lodging a complaint, rejecting the respondent's argument that lodging a complaint was not a step taken "with a view to instituting an action" because the Commissioner, not the complainant, initiated proceedings in the Tribunal.

Ultimately, the court concluded that it was not reasonably arguable that the respondent was liable for Mr K's alleged conduct between January 2006 and February 2011, as there was no evidence that the Office of State Revenue was aware of this ongoing conduct. However, the court found that the Commissioner and the Equal Opportunity Tribunal erred in their conclusions regarding the respondent's potential liability for the conduct of Mr V and Mr K, and in their assessment of the extension of time provisions. The matter was remitted for further consideration.