Sabha v Australian Recoveries Limited ARL Collect Pty Ltd
[2021] FCCA 1544
•9 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sabha v Australian Recoveries Limited ARL Collect Pty Ltd [2021] FCCA 1544
File number(s): MLG 3070 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 9 July 2021 Catchwords: HUMAN RIGHTS – practice and procedure – application under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) for an order extending time to bring proceeding under s 46PO(1) of that Act for unlawful discrimination – whether adequate explanation for delay – whether prejudice to respondent if order made – whether applicant would have arguable case if order made – application refused Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PH(1B)(b), 46PH(2), 46PO(1), 46PO(2)
Fair Work Act 2009 (Cth) s 383
Federal Court Rules 2011 (Cth) r 34.05
Racial Discrimination Act 1975 (Cth) ss 9, 15, 18A
Sex Discrimination Act 1984 (Cth) ss 5(1), 14(2), 106
Cases cited: Awwad v Vic Solar Technologies Pty Ltd & Anor [2020] FCCA 2838
Ferrus v Qantas Airways Limited [2006] FCA 812
Hussein v Commonwealth Of Australia Department Of Human Services Centrelink [2015] FCCA 1440
Reurich v Campbell Page Ltd [2018] FCA 683
Reurich v Sureway Employment and Training Pty Ltd [2018] FCA 680
Sabha v Australian Recoveries Limited ARL Collect Pty Ltd [2020] FCA 338
Taylor v Peninsula Sports Academy Pty Ltd [2019] FCCA 1929
Number of paragraphs: 45 Date of last submission/s: 5 July 2021 Date of hearing: 15 June 2021 Place: Sydney The Applicant: Appeared in person, by video Counsel for the Respondent: Ms T Duthie, by video Solicitor for the Respondent: Ai Group Workplace Lawyers ORDERS
MLG 3070 of 2020 BETWEEN: NOORUL SABHA
Applicant
AND: AUSTRALIAN RECOVERIES LIMITED ARL COLLECT PTY LTD (ABN 96 103 234 653)
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
9 JULY 2021
THE COURT ORDERS THAT:
1.The application for an order under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (Act) extending the time by which the applicant may make an application to the Federal Circuit Court of Australia under s 46PO(1) of the Act alleging unlawful discrimination is dismissed.
REASONS FOR JUDGMENT
INTRODUCTION
Before the Court are two applications. The first is an application brought by the applicant, Ms Sabha, against the respondent (ARL) for an order under s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) permitting Ms Sabha to bring an action for unlawful discrimination under s 46PO(1) of that Act more than 60 days after the date on which a delegate of the President of the Australian Human Rights Commission (AHR Commission) issued a termination notice under s 46PH(2) of the AHRC Act. The second application is made by ARL for summary dismissal.
I will begin by setting out the relevant background. Nothing I there set out should be taken to constitute any finding or, at least, any final finding of fact. Many of the facts I state are taken from the facts Ms Sabha alleges in her amended application.
BACKGROUND
Ms Sabha commenced employment with ARL on 15 April 2019. ARL appears to be in the business of taking assignments of debts and seeking to recover payment of debts.
At the beginning of her employment Ms Sabha was given eight days training of systems in two different teams involved in debt collection. After her training, Ms Sabha was told she would be working in motor claims insurance and third party debt collection.
Ms Sabha found the system easy to use, but the training she received was incomplete. Nevertheless Ms Sabha was able to work on between 50-80 matters every day because she found the system easy to understand.
On 29 April 2019 Mr John Skantzos commenced employment with ARL as team leader of the team of which Ms Sabha was a member.
Ms Sabha claims that on 17 May 2019 Mr Skantzos (who is identified as “respondent-2”) had a one-on-one meeting with Ms Sabha (17 May conversation) in which the following occurred (errors in original):[1]
That the Applicant and respondent-2, were only people in the meeting room, Respondent 2 asked Applicant a question that does she think “is this right role for her”? In response Applicant asked respondent-2 a question, why respondent-2 thinks that this role is not right for applicant while applicant is able to collect payments on accounts. Respondent-2 advised applicant that “because of her Indian accent and because she is a female, this is not the right role for her”. On that Applicant questioned respondent-2 that, if that is an issue why applicant has been able to perform in her previous roles. On that respondent-2 advised that he don’t know because he did not hire applicant or interviewed her but if Applicant is unable to work in this role then Applicant can move to another team called general collection. Applicant showed her desire to work in the same team by stating to respondent-2 saying “John you have 20 years of experience in car insurance I would like to learn from you”….
[1] Amended Application, Part B, [4]
One day Ms Sabha felt sick and had to leave work. Mr Skantzos walked with Ms Sabha to the train station and asked whether Ms Sabha owned her house or whether she instead rented. The next day, at a meeting room, Mr Skantzos asked Ms Sabha what medication had been prescribed to her when she felt sick the previous day. Ms Sabha responded saying she did not know the name of the medication because she had not yet bought it.
As new employees joined ARL Mr Skantzos told them “don’t sit with [Ms Sabha]”. Mr Skantzos also started listening to Ms Sabha’s calls, and he started calling her name to “deviate” Ms Sabha’s focus, and he generally disturbed Ms Sabha.
On another day Ms Sabha took a call from a customer who screamed at her. Although Mr Skantzos observed the call, and took Ms Sabha into a meeting room to discuss the call, he did not provide Ms Sabha with any support.
Ms Sabha did not know how to handle calls from customers in relation to accident questionnaires. Ms Sabha says this was due to ARL’s inability to train staff properly. Further, although Ms Sabha joined ARL on 15 April 2019, the “barometer training and road rule book” was provided to half of the team only on 14 June 2019. Ms Sabha was expected to work efficiently without the main training.
ARL had an insurance team that was made redundant, and ARL hired a new team in Melbourne. There were thousands of recovery files to be chased. Ms Sabha “was given a pressure each and every day that [sic]” she “must finish those files every hour”. Ms Sabha received an email from Mr Skantzos criticising her.
When new employees joined ARL, files on which Ms Sabha had worked and which were 99% complete were transferred to the new employees. When Ms Sabha escalated this issue via email “my team leader [Mr Skantzos] decided to fire me”.
On 1 July 2019 Ms Sabha met with Mr Skantzos in which he accused Ms Sabha of not being able to listen to customers, of asking customers to repeat themselves, and of laughing at their circumstances.
On 3 July 2019 Ms Sabha met with Mr Skantzos and she was fired.
On 1 August 2019 Ms Sabha lodged an unfair dismissal application with the Fair Work Commission (FWC). The FWC dismissed that application on 29 August 2019 because Ms Sabha had not satisfied the six-month minimum employment period required by s 383 of the Fair Work Act 2009 (Cth) (FW Act).
In the meantime, on 2 August 2019 Ms Sabha lodged a complaint with the AHR Commission. On 25 November 2019 the AHR Commission conducted a conciliation conference between the parties, but the parties could not agree to resolve Ms Sabha’s complaint.
By letter dated 26 November 2019 a delegate of the President of the AHR Commission informed Ms Sabha the President terminated the complaint pursuant to s 46PH(1B)(b) of the AHRC Act (AHRC Act Termination Notice). The letter included the following information:
The AHRCA says that after a complaint is terminated, the person affected by the alleged discrimination may be able to apply to the Federal Circuit Court of Australia (FCCA) or the Federal Court of Australia (FCA) to have the allegations decided by the court.
If you apply to the FCCA or the FCA, you will need to attach the following documents to the application:
·this letter;
·the enclosed Notice of Termination; and
·the enclosed copy of the complaint.
Any application to the court must be made within 60 days of the date on the Notice of Termination.
On 16 December 2019 Ms Sabha filed with the Federal Court of Australia (FCA) an originating application in the form prescribed by r 34.05 of the Federal Court Rules 2011 (Cth). That was a form prescribed for commencing a proceeding under the FW Act. Ms Sabha’s application came before Steward J on 5 March 2020. His Honour summarily dismissed the application because his Honour found Ms Sabha could only have filed that application if it were accompanied by a certificate issued under the FW Act that the FWC was satisfied that all reasonable steps to resolve the dispute have been, or are likely to be, unsuccessful; but Ms Sabha’s application was not accompanied by any such certificate.
Steward J published reasons for judgment in which his Honour said:[2]
Before me, the applicant admitted that she did not know which form to use to commence her proceeding. It became tolerably clear that the applicant’s true intention was to commence a proceeding pursuant to s. 46PO of the AHRC Act. That conclusion is fortified by the provision of the “Notice of Termination” and the basis on which the applicant articulated her claim in the Application:
a.The Applicant relies on sections Racial discrimination under the Racial Discrimination Act 1975 (Cth) (RDA) and sex discrimination under the Sex Discrimination Act 1984 (Cth) (SDA) against ARL – Australian Recoveries Limited; and
b.Racial discrimination under the RDA against Mr John Skantzos [(the team leader)] ...
(Errors in original.)
The Application she had filed was therefore inapt. I thus informed the applicant that she may wish to consider commencing a proceeding against her former employer under the AHRC Act either in the Federal Circuit Court or this Court, provided that she filed an application in the correct form. Given the relief sought by the applicant ($30,000 in damages and an apology letter), it was agreed that such a matter would be more appropriately heard by the Federal Circuit Court.
[2] Sabha v Australian Recoveries Limited ARL Collect Pty Ltd [2020] FCA 338, [4] and [5]
Ms Sabha filed her application with this Court on 20 August 2020.
PRINCIPLES
Subsection 46PO(2) of the AHRC Act provides that an application for relief under s 46PO(1) must be made within 60 days after the date of issue of a notice under s 46PH(2) of the AHRC Act “or within such further time as the court concerned allows”. Ms Sabha was notified by the AHRC Act Termination Notice (which was dated 26 November 2019) that a delegate of the President of the AHR Commission had terminated Ms Sabha’s complaint. That means that Ms Sabha was required to apply to this Court or to the FCA within 60 days after the date of the AHRC Act Termination Notice. Ms Sabha did not make her application to this Court until 20 August 2020, almost seven months after the 60 day period prescribed by s 46PO(2) of the AHRC Act had expired, and almost six months after her application to the FCA was dismissed.
When considering whether to grant an extension of time under s 46PO(2) of the AHRC Act there are three principal matters it will usually be necessary to take into account: whether the applicant has provided an adequate explanation for the delay; whether there would be any prejudice to the respondent if an extension of time were granted; and whether the applicant has an arguable case.[3]
[3] Reurich v Sureway Employment and Training Pty Ltd [2018] FCA 680, at [18] (Markovic J)
In Reurich v Campbell Page Ltd Marcovic J accepted that the following principles Collier J, in Ferrus v Qantas Airways Limited,[4] applied to an earlier version of s 46PO(2) of the AHRC Act, applied to the exercise of the discretion conferred by s 46PO(2) to extend time:[5]
1.There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The ‘prescribed period’ of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).
2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition (Comcare v A'Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).
3.Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised (see Doyle v Chief of Staff (1982) 42 ALR 283 at 287).
4.Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension (see Doyle at 287).
5.The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 416).
6.The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (see Lucic at 417).
7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion (see Wedesweiller v Cole (1983) 47 ALR 528).
[4] Ferrus v Qantas Airways Limited [2006] FCA 812, at [19]
[5] Reurich v Campbell Page Ltd [2018] FCA 683, at [15]. Her Honour considered an earlier version of s 46PO(2) which was in substantially the same terms as the current s 46PO(2).
EXTENT AND EXPLANATION FOR DELAY
Ms Sabha’s delay in not commencing a proceeding in this Court before 5 March 2020 is readily explained by her having commenced the proceeding in the FCA. It is apparent that Ms Sabha did not appreciate that she had to take action under the AHRC Act, not under the FW Act. This, however, only accounts for Ms Sabha’s delay up to 5 March 2020.
Ms Sabha’s principal explanation for the delay after 5 March 2020 is her ill health. It is unnecessary to describe the medical conditions from which the evidence shows Ms Sabha may suffer. Ms Sabha annexed to her affidavit of 7 December 2020 a medical certificate and a table listing 11 medical consultations. At the hearing on 15 June 2021 Ms Sabha informed me of two other consultations. Ms Sabha submitted that her health was her priority. Ms Sabha also submitted it was not her fault “the application has been delayed in filing, it’s because federal court [sic] did not direct her any time frames”; and that “[d]ue to Covid-19 situation where many businesses stopped operating it took 2 months for applicant to get legal advice”, which Ms Sabha says she received on 30 April 2020.[6]
[6] Affidavit of N Sabha 07.2.2020, [3]
Counsel for ARL, Ms Duthie, submitted Ms Sabha’s delay was extensive, and Ms Sabha has not provided an adequate explanation for the delay. Ms Duthie submitted that the consultations appear to have occupied relatively little time; the substance of claims Ms Sabha formulated in her application to this Court replicated in large part the claims Ms Sabha formulated in the originating application she filed with the FCA; and Ms Sabha was on notice from 26 November 2019, being the date of the AHRC Act Termination Notice, that she was required to apply to this Court or to the FCA within 60 days of the date of the letter.
Ms Sabha’s delay after 5 March 2020 in commencing this proceeding is substantial; and I am not satisfied Ms Sabha’s medical condition explains that significant delay. Ms Sabha does not submit her medical condition prevented her from working, and the inference is available to be drawn that Ms Sabha has been working full time from around November 2019. There would therefore have been no reason why Ms Sabha’s medical condition could have prevented her from completing and filing an application with this Court in a relatively short time. That is particularly so given that Ms Sabha reproduced in the application she filed with this Court under the AHRC Act the claims she had already typed on the originating application Ms Sabha filed with the FCA. Further, Ms Sabha’s medical condition did not prevent her from seeking and obtaining legal advice by 30 April 2020.
I am also not satisfied that any part of Ms Sabha’s delay in applying to this Court is due to any failure by the FCA to inform Ms Sabha of a time by which she was required to do that. The AHRC Act Termination Notice informed Ms Sabha that any “application to the court must be made within 60 days of the date on the Notice of Termination”.
PREJUDICE TO RESPONDENT
ARL has identified a number of matters it submits would cause it prejudice if an order extending time is made. Principal among them is the assertion that Mr Skantzos and other persons Ms Sabha mentions in her amended application are no longer employed with ARL, and the time that has passed may have degraded their memories of the relevant events. These are not significant disadvantages in the circumstances of this case. Ms Sabha communicated the factual basis of her claims almost immediately after her employment ceased. ARL, therefore, would have had an opportunity to obtain information from those who could have given information in relation to Ms Sabha’s claims.
ARGUABLE CASE?
Ms Sabha sets out her case in the amended application which she filed on 9 December 2020. It is structured as follows:
(a)In section 1 (which appears in the section headed “Part A – Orders sought”), Ms Sabha sets out the compensation she seeks. This consists of compensation for the salary and commission Ms Sabha says she would have earned had ARL not fired her for the period up to the day Ms Sabha obtained alternative employment. Ms Sabha also claims an amount representing commissions she claims she earned, but which ARL has not paid.
(b)In section 2 (which appears in the section headed “Part A – Orders sought”), Ms Sabha seeks interlocutory orders that “Respondent-1 and Respondent-2” prove in court the grounds on which Ms Sabha was fired, and orders that “Respondent-1 and Respondent-2” produce to the court other documents Ms Sabha there identifies.
(c)In the section headed “Part B – Grounds of Application” Ms Sabha claims she was “fired by respondent-2 on 3/7/2019 whereas racist comment was made on her on 17/5/2019 by respondent-2 [sic]”. In paragraph 4 Ms Sabha sets out the 17 May conversation. In paragraph 6 Ms Sabha sets out in detail what she claims constituted various harassing behaviours by “respondent-2”, and other incidents that occurred in the course of her employment.
In section 4 of Part B, in response to the printed question, “Under what Act is the discrimination you are complaining of unlawful”, Ms Sabha placed a cross next to the boxes that appear before “the Racial Discrimination Act 1975” and “the Sex Discrimination Act 1984”. In section 5 of Part B, in response to the words “State all sections of the Act that are relevant to this claim”, Ms Sabha included “Sections 5, 14 and 106 of the SDA” and “Sections 9, 15 and 18A of the RDA”.
I will consider separately whether Ms Sabha has any arguable or reasonably arguable case of discrimination under the Sex Discrimination Act 1984(Cth) (SD Act), and under the Racial Discrimination Act 1975 (Cth) (RD Act).
Claim under SD Act
The central provision of the SD Act on which Ms Sabha relies is s 14(2), which provides that it is unlawful for an employer to discriminate against an employee on the ground of, among other things, the person’s sex by, among other things, “dismissing the employee”, or by “subjecting the employee to any other detriment”. Section 5(1) of the SD Act specifies when a person (discriminator) discriminates against another person (aggrieved person) on the ground of the sex of the aggrieved person; and that is when “the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex”. Section 106 of the SD Act deals with vicarious liability.
In her amended application Ms Sabha alleges four events or classes of events. One is what occurred in the 17 May conversation; the second is Mr Skantzos harassing Ms Sabha; the third is Ms Sabha not having been given proper training; and the fourth is ARL terminating her employment. One fundamental difficulty with Ms Sabha’s claims under the SD Act is that the amended application does not allege facts that could reasonably suggest that these events occurred because of Ms Sabha’s sex. Stated another way, there is nothing in the facts Ms Sabha alleges in the amended application that could reasonably suggest that, assuming the alleged events occurred, Ms Sabha was treated less favourably than relevant comparators would have been treated in circumstances that were the same or not materially different from the circumstances in which Ms Sabha alleges the events occurred. It is true Ms Sabha alleges that Mr Skantzos “seemed to be okay with other team mates having fun, taking long breaks not working enough but all work pressure was created only on [Ms Sabha] on purpose”; but Ms Sabha does not identify the composition of the “other team mates”. It may well include persons of the female gender; and, it may include persons of a similar ethnicity to Ms Sabha.
For these reasons, I am satisfied that Ms Sabha’s claims based on unlawful discrimination under the SD Act are not reasonably arguable and Ms Sabha, therefore, would have no reasonable prospects of succeeding on a claim based on the SD Act.
Claim under RD Act – s 9
Ms Sabha relies on s 9 and s 15 of the RD Act, and the vicarious liability provision contained s 18A of the RD Act. Subsection s 9(1) of the RD Act provides:
It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
There is nothing in the allegations of fact contained in the amended application which, if accepted, could reasonably support conduct that would fall within s 9(1) of the RD Act. A claim based on a contravention of s 9(1) of the RD Act, therefore, is not arguable and, for that reason, would have no reasonable prospects of success.
Claim under RD Act – s 15
Section 15 of the RD Act provides that it is unlawful for an employer to do a number of things, one of which is to dismiss another person from his or her employment “by reason of the race, colour or national or ethnic origin” of the person. I have considered elsewhere the meaning of “by reason of the race . . . or ethnic origin of that other person”, [7] and I will consider this part of Ms Sabha’s claims bearing in mind what I there said.
[7] Hussein v Commonwealth Of Australia Department Of Human Services Centrelink [2015] FCCA 1440, at [80]-[90]
This part of Ms Sabha’s claims contain one set of allegations which, if accepted and considered alone, could conceivably support a claim that ARL terminated Ms Sabha’s employment because of her race or ethnicity. The allegations are what Mr Skantzos said in the 17 May conversation. Those allegations, however, must be considered in the context of all of the allegations made in the amended application. In particular, account must be taken of the following:
(a)First, in the 17 May conversation Mr Skantzos went no further than asking whether Ms Sabha’s role was right for her, and suggesting that if she was unable to work in the role Ms Sabha could be moved to another team. That does not manifest any intention to terminate Ms Sabha’s employment.
(b)Second, ARL did not terminate Ms Sabha’s employment until 3 July 2019, some six weeks after the 17 May conversation, and after the events alleged in the amended application occurred. These events include Ms Sabha being pressured to perform more and more work; Ms Sabha not knowing how to handle customers because Ms Sabha claimed she had not been trained on questioning customers about accidents; Ms Sabha being bullied and harassed by Mr Skantzos; and Ms Sabha escalating what she considered to be the unfair assignment to newly arrived employees of files Ms Sabha had almost completed.
(c)Third, Ms Sabha does not allege that, other than the 17 May conversation, Mr Skantzos or any other person made a statement about Ms Sabha’s ethnicity or race.
In these circumstances, although I cannot say that Ms Sabha’s case based on s 15 of the RD Act is bound to fail, I am satisfied that the case based on the claim that ARL terminated Ms Sabha’s employment because of her race or ethnicity would be very weak, and, for that reason, Ms Sabha would not have reasonable prospects of succeeding on such clam.
DETERMINATION
I have found that Ms Sabha’s delay in commencing the proceeding in this Court was significant; Ms Sabha has not given an adequate explanation for the delay that occurred after 5 March 2020; Ms Sabha has no arguable case under the SD Act or under s 9 of the RD Act; and, although she may have a case under s 15 of the RD Act that is not bound to fail, such a case would be very weak and would not, therefore, enjoy reasonable prospects of success. In those circumstances I am unable to be satisfied that it is proper or appropriate to make an order under s 46PO(2) of the AHRC Act extending the time for Ms Sabha to make an application under s 46PO(1) of the AHRC Act.
Given this conclusion, the question whether the proceeding should be summarily dismissed does not arise.
OTHER MATTERS
I should record that on 5 July 2021, after I reserved my judgment, Ms Sabha sent an email to my associate in which she referred to two cases. The first is Awwad v Vic Solar Technologies Pty Ltd & Anor,[8] and the second is Taylor v Peninsula Sports Academy Pty Ltd.[9] Both cases involve claims under the FW Act that arose out of a failure to pay an employee’s entitlements. They are not relevant to any issue that has arisen in Ms Sabha’s application for an order under s 46PO(2) of the AHRC Act.
[8] Awwad v Vic Solar Technologies Pty Ltd & Anor [2020] FCCA 2838
[9] Taylor v Peninsula Sports Academy Pty Ltd [2019] FCCA 1929
DISPOSITION
I propose to order that Ms Sabha’s application for an order under s 46PO(2) of the AHRC Act extending the time for Ms Sabha to make an application under s 46PO(1) of the AHRC Act be dismissed. I will not make any order for costs because ARL does not seek an order for costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 9 July 2021
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