SAJE and COHEN
[2018] WASAT 102
•18 OCTOBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: SAJE and COHEN [2018] WASAT 102
MEMBER: SENIOR MEMBER J MANSVELD
HEARD: 2 MAY 2018
DELIVERED : 18 OCTOBER 2018
FILE NO/S: EOA 2 of 2017
BETWEEN: LEENA SAJE
Applicant
AND
RABBI ADI COHEN
Respondent
Catchwords:
Equal opportunity - Victimisation - Exceptions - Statutory interpretation - Religious body - Detriment - Educational institution
Legislation:
Anti-Discrimination Act 1977 (NSW), s 50
Defamation Act 2005 (WA), s 14
Disability Discrimination Act 1992 (Cth)
Equal Opportunity Act 2010 (Vic), s 104
Equal Opportunity Act 1984 (WA), s 3, s 4, Pt II, Div 4, s 25, Div 5, PtIIAA, Pt IIA, PTIIB, PtIII, Pt IV, PT IVA, Pt IVB, Pt IVC, Pt V, s 67, s 67(1), Pt VI, s 69, s 70, s 71, s 72, s 74, Pt VIII, s 123
Equal Opportunity Bill 1984 (WA)
State Administrative Tribunal Act 2004 (WA), s 47, s 52
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr T Retallack |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Culshaw Miller Lawyers |
Case(s) referred to in decision(s):
Applicant N v Respondent C [2006] FMCA 1936
Intercorp Pty Ltd as Trustee for Intercorp Trust and Commissioner of State Revenue [2018] WASAT 90
Laurent and Commissioner of Police [2009] WASAT 254
OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155
Phillips v Minister for Education [ET/2002-000016 delivered 22 July 2003]
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings arise in the Tribunal's original jurisdiction under the Equal Opportunity Act 1984 (WA) (EO Act).
On 15 December 2016 Ms Leena Saje (applicant) lodged a complaint with the Equal Opportunity Commission (EOC) alleging victimisation by Rabbi Adi Cohen (respondent) of Temple David Congregation Inc (Temple David).
On 10 January 2017, the EOC dismissed the complaint.
On the same day the applicant filed with the EOC written notice pursuant to s 90(2) of the EO Act requiring the Commissioner for Equal Opportunity to refer her complaint to this Tribunal.
The complaint was heard on 2 May 2018 and further submissions received on 7 May 2018.
The applicant appeared in person. The respondent was represented by counsel and gave evidence. A witness for the respondent was Ms Jane Figgis. Ms Figgis is a member of the Education Committee and Honorary Secretary of the Temple David.
The decision was reserved.
History with the EOC
The applicant had originally made a complaint of sexual harassment against the respondent.
The applicant withdrew this complaint on 12 November 2015.
The applicant and respondent had entered into a Deed of Settlement (Deed) on 17 December 2015 in relation to defamation action taken by the respondent.
The applicant's request to reopen the complaint of sexual harassment was denied by the EOC on 8 March 2016.
On 8 June 2016, the applicant filed documents with the EOC which were accepted as a complaint of sex, religious conviction discrimination and victimisation against Temple David.
This complaint was withdrawn by the applicant on 29 November 2016.
On the same day the applicant sought to reopen the original complaint of sexual harassment against the respondent which was denied by the EOC on the basis it could not be reopened more than 12 months after it had been initially withdrawn.
The complaint of victimisation made by the applicant against the respondent on 15 December 2016, was dismissed by the EOC on 10 January 2017 as vexatious.
On the same day the EOC advised the respondent of the complaint of victimisation as he had not been previously informed of the complaint (EOC Report to Tribunal dated 17 January 2017).
The EOC decided that by virtue of a specific clause in the Deed, the applicant was barred from commencing or continuing any claim or proceedings against the respondent including the complaint of victimisation under the EO Act.
Procedural history in the Tribunal
The referral from the EOC was received by the Tribunal on 18 January 2017.
On 3 March 2017 the respondent made an application under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for the complaint to be struck out on the basis that it was vexatious, misconceived, lacking in substance or otherwise an abuse of process.
On 6 June 2017 a judicial member of the Tribunal dismissed the strike out application.
The complaint was subsequently referred to a compulsory conference pursuant to s 52 of the SAT Act.
At the compulsory conference held on 13 December 2017 the applicant and the respondent agreed pursuant to the compulsory conference order that the issues to be addressed at a final hearing were:
a)a complaint of victimisation under s 67(1)(a)(b) and (c) of the EO Act based on the facts of the original complaint of sexual harassment which had been withdrawn on 12 November 2015; and
b)a complaint of victimisation under s 67(1)(f) of the EO Act relating to allegations contained in a police report dated 24 October 2015 and letters by the applicant dated 26 October 2015 and 28 October 2015 which relate to matters covered by s 25 of Part 2 of Division 4 of the EO Act.
The respondent did not press the matter of the specific clause in the Deed barring the applicant from commencing any proceeding against the respondent.
Section 67 of the EO Act
Section 67 reads as follows:
(1)It is unlawful for a person (in this section referred to as the victimiser) to subject, or threaten to subject, another person (in this subsection referred to as the person victimised) to any detriment on the ground that the person victimised
(a)has made, or proposes to make, a complaint under this Act; or
(b)has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act; or
(c)has furnished, or proposes to furnish, any information, or has produced or proposes to produce, any documents to a person exercising or performing any function under this Act; or
(d)has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under this Act; or
(e)has reasonably asserted, or proposes to assert, any rights of the person victimised or the rights of any other person under this Act; or
(f)has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II, IIAA, IIA, IIB, III, IV, IVA, IVB or IVC,
or on the ground that the victimiser believes that the person victimised has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (f).
(2)Subsection (1)(f) does not apply if it is proved that the allegation was false and was not made in good faith.
(3)Subject to subsection (2), the application or continued application of subsection (1) in a particular case shall not be affected by
(a)the failure of the person victimised to do any proposed act or thing referred to in any of the paragraphs of subsection (1); or
(b)the withdrawal, failure to pursue, or determination of any complaint, proceeding or allegation under this Act.
Preliminary issue
The respondent raises a preliminary issue and submits that if determined in his favour, it will mean that he has no case to answer.
The respondent wishes to rely on s 72 of the EO Act relating to the exceptions to the EO Act concerning religious bodies.
Section 72 reads as follows:
Nothing in this Act affects
(a)the ordination or appointment of priests, ministers of religion or members of any religious order; or
(b)the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order; or
(c)the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in any religious observance or practice; or
(d)any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
Temple David
Temple David is an incorporated body. It has a constitution and a Board of Management (Board). The 'Objects' of the Association are:
(a)to conduct religious services, ministerial offices, cultural, social, philanthropic and educational activities and any other functions for a progressive form of Judaism as a basis for the continuation of Jewish Life in the modern world, as a Liberal Jewish Congregation, to fulfil the need of each generation of Jews to bring the teachings and practices of Judaism into harmony with the development of thought, advance in knowledge, and changes in the circumstances of life, in accordance with the principles and practice of Progressive Judaism, the guiding principles and practice of Progressive Judaism, the guiding principles whereof shall be the Declaration of the Central Conference of the American Rabbis. All matters of principle and religious usage and action shall be subject to the direction of the spiritual heads of the Jewish Religious Union of Australia until the appointment of a Liberal Jewish Minister in Perth.
(b)to provide, support and maintain a House of Worship according to the practice of Progressive Judaism;
(c)to stimulate and encourage the study of Judaism, its language, history and traditions;
(d)to foster an interactive, mutually supportive, stimulating social, educational and cultural community of Progressive Jews of all ages and backgrounds; and
(e)to provide a spiritual community for all Jews seeking to sanctify their lives through Jewish practice, sensitive to contemporary society and committed to Jewish tradition.
The respondent's case
Temple David is the legal entity responsible for the management of the Temple David Synagogue in Mount Lawley.
Temple David is associated with the 'Reform' branch of Progressive Judaism. Other branches are 'Reconstructionist', 'Renewal' and 'Conservative'.
By way of analogy with Christian Church traditions and structures in terms of religious denominations and orders, Progressive Judaism would be a major denomination in the same way Catholicism or Methodism are for Christian worshippers.
Temple David is also the representative body for members of the Jewish congregation attached to the synagogue, and a key part of the Association's function is the employment of an ordained minister (Rabbi) who is authorised according to international Jewish religious custom and law to conduct all of the relevant weddings, funerals, confirmations and other traditional prayer and worship services undertaken by the congregation at the synagogue (respondent's witness statement at paras 6 14).
The respondent is the Rabbi of Temple David.
The Rabbi is involved in matters of Jewish identity which includes training and approval of persons seeking to convert to Judaism.
No person will be accepted as a new member of a congregation without the approval of the Rabbi.
Conversion involves a number of phases of teaching and approval of candidates which can take a differing number of years depending upon the progress and development of each candidate.
The applicant commenced the 'Introduction to Judaism' course at Temple David in about February 2015 as part of the program for her conversion to Judaism.
This course is taught by the respondent with the assistance of a number of congregation members.
Successful conversion is ultimately evidenced by the issuing of a formal certificate of conversion called the 'T'odat Giur'. This certificate is proof of the person's Jewish identity.
Without having a 'T'odat Giur' a person who does not have a Jewish heritage will not be considered to have Jewish identity, and will not be eligible to be accepted as a member of any Jewish congregation or any branch of Judaism, and will not be able to perform any religious duty or function associated with the observance or practice of Judaism (respondent's witness statement at paras 23 60).
I accept that as a Rabbi, the respondent has expert knowledge in the areas covered by his evidence.
The respondent's submission as to the effects of s 72 of the EO Act in the proceeding is stated as follows in his closing submissions at page 2.
The applicant's involvement as a conversion candidate should be held to be either:
•training or education of the applicant as a person seeking ordination or appointment (together meaning official acceptance and approval) as a member of a religious order (being the Progressive Jewish faith) (s 72(b) of the EO Act); and/or
•in relation to the selection or appointment of the applicant to be able to perform duties or functions as a member of the Progressive Jewish faith, and/or for the applicant to otherwise participate in the observances and practices of that faith (s 72(c) of the EO Act).
In oral submissions, counsel for the respondent contended that the congregation of Temple David and involvement with its associated community can be characterised as membership of a religious order (ts 23, 2 May 2018).
And further, that the involvement of the applicant as a conversion candidate is properly characterised (to use the words of s 72(c) of the EO Act) as being her 'selection or appointment' or 'otherwise to participate in any religious observance or practice' as a member of the Temple David congregation on her conversion to Judaism (ts 23 24, 2 May 2018).
For these reasons the respondent submits that the complaint made by the applicant does not fall for consideration under the EO Act.
The applicant's case
The applicant's evidence which follows (which I accept is her understanding of Judaism and related matters), cannot be accepted as expert evidence.
The applicant accepts she was a conversion student at Temple David from early February 2015 until her expulsion from the course on 23 October 2015 (applicant's closing submission at page 4).
The applicant sets out her case for submitting that exceptions under s 72 of the EO Act do not apply in the circumstances of her complaint in her statement of issues, facts and contentions (SIFC) at pages 15 17.
The applicant says that Judaism is more than a religion; it is a 'unique combination of religion and culture'.
The applicant submits that religious orders fall under individual religions; they are social structures with a hierarchy. She uses as an example, Christianity, which she says is a religion with branches such as the Catholic and Anglican traditions, the branches having religious orders.
Examples of religious orders given by the applicant are the Benedictine Monks (New Norcia), Sisters of Mercy Brisbane and Dominican Fathers.
The applicant states that Judaism has three major movements, Orthodox, Conservative and Progressive Judaism. She submits these 'movements' are not religious orders any more than the Protestant or Catholic movements are religious orders in Christianity.
The applicant submits that in participating in the required education to convert to Judaism she was not seeking ordination or appointment as a member of a religious order. As well as Judaism not being a religious order, it does not have membership but rather adherents of the Jewish religion.
The applicant submits that conversion is a private matter, one of personal choice not subject to selection or appointment by anybody else. She says there is no requirement for a Jewish person to socialise with other Jews and a person may never participate in any Jewish religious observance or practice.
The applicant states that if a Jewish person wanted to participate in a synagogue service, he or she would first need to become a member of a Jewish congregation. The person leading a religious service (who need not be a Rabbi) would call Jewish members to perform tasks such as reading from the Torah during the service.
The applicant submits she could not be selected to participate in any Jewish religious observance or practice until she became Jewish. However she submits that s 72(c) of the EO Act might have applied had she completed her conversion and had she wanted to participate in religious observance or practice as a member of a Jewish congregation.
For these reasons the applicant submits that s 72(b) and s 72(c) of the EO Act do not apply in her case.
Consideration
I take it that the respondent is seeking to use the exceptions in s 72(b) and s 72(c) of the EO Act in the context of the respondent being in the employment of Temple David as Rabbi.
Although stated in the compulsory conference order, s 72(a) of the EO Act was not pressed by either the applicant or respondent.
I do not accept the submission of the respondent that the complaint is subject to the exceptions contained in s 72(b) and s 72(c) of the EO Act for the following reasons:
1)The onus of proving the exception lies upon the respondent (s 123 of the EO Act); and
2)My decision involves consideration of the statutory construction of s 72 of the EO Act.
The principles of statutory interpretation are usefully summarised in a recent decision of Sharp J in Intercorp Pty Ltd as Trustee for Intercorp Trust and Commissioner of State Revenue [2018] WASAT 90 (Intercorp) at [47] [53]:
•The starting point in relation to the meaning of a legislative provision is consideration of the text, in its proper statutory context.
•The proper statutory context of a provision includes reading the provision in the context of the stature as a whole and the underlying purpose of the statute and the mischief it is intended to remedy.
•The Tribunal may have regard to extrinsic materials and legislative history but these cannot displace the meaning of the statutory text.
The objects of the EO Act are set out in s 3 which reads:
(a)to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status or pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age, publication of relevant details on the Fines Enforcement Registrar's website or, in certain cases, gender history in the areas of work, accommodation, education, the provision of goods, facilities and services and the activities of clubs; and
(b)to eliminate, so far as is possible, sexual harassment and racial harassment in the workplace and in educational institutions and sexual harassment and racial harassment related to accommodation; and
(c)to promote recognition and acceptance within the community of the equality of men and women; and
(d)to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages.
The structure of the EO Act is relevantly as follows:
•Part II deals with discrimination on the ground of sex, marital status, pregnancy or breast feeding;
•Part IIAA deals with discrimination on gender history ground in certain cases;
•Part IIA deals with discrimination on the ground of family responsibility or family status;
•Part IIB deals with discrimination on ground of sexual orientation;
•Part III deals with discrimination on the ground of race;
•Part IV deals with discrimination on the ground of religious or political conviction;
•Part IVA deals with discrimination on the ground of impairment;
•Part IVB deals with discrimination on the ground of age;
•Part IVC deals with discrimination on ground of publication of relevant details of persons on Fines Enforcement Registrar's website;
•Part V deals with other unlawful acts which includes victimisation; and
•Part VI deals with general exceptions to the EO Act.
The individual Parts of the EO Act contain exceptions particular to the ground or grounds covered in that Part.
Exceptions to Part II are contained in Division 5; Division 4 in Part IIA; Division 4 in Part IIB; Division 4 in Part III; Division 4 in Part IV; Division 4 in Part IVA; Division 4 in Part IVB.
The general exceptions in Part VI apply to the whole of the EO Act and cover acts done under statutory authority (s 69); and in relation to charities (s 70); voluntary bodies (s 71); religious bodies (s 72); educational institutions established for religious purposes (s 73) and establishments providing housing accommodation for aged persons (s 74).
It is non-controversial to say that the primary focus of the EO Act is to make unlawful particular acts that take place in the context of a number of stated grounds and in the case of s 72 to allow for certain exceptions for the acts of religious bodies and to account in the exception for a person's religious susceptibilities.
The Explanatory Memorandum to the Equal Opportunity Bill 1984 (WA) states:
This clause [s 72] provides a general exemption from the operation of the Bill for certain activities of religious bodies including appointment and education of priests, ministers and members of religious orders; appointments for positions where duties involve participation in religious observances, or practices of a body established for religious observance or purposes.
The general exception allowed by a provision such as s 72 of the EO Act (which is present in some form in anti-discrimination legislation in other jurisdictions) can be characterised in this way.
… First, it operates in the context of activities having a religious purpose, dimension or connection. It relates to officials of religious organisations Priests, Ministers, and members of orders and people who perform functions in relation to religious observance or practice. It relates to participants in religious observance or practice. It relates to things done by a body established for religious purposes in conformity with the doctrine of a religion or to avoid injuring the religious sensitivities of people 'of' that religion that is, of people who profess or belong to, or identify themselves as professing or belonging to that religion. [It] is generally directed to action taken by, or in some way related to, body or organised structure[.] (Jubber v Revival Centres International [1998] VADT 62 (7 April 1998) at page 7)
Or as put by the new South Wales Court of Appeal in OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155 (6 July 2010) at [72]:
… The purpose … is to protect both religious susceptibilities of adherents to a religion, the practice of a religion and the organisation of religious bodies[.]
I accept and that Temple David when considering its Objects is a religious body for the purposes of s 72 of the EO Act.
The position of the applicant was that she wished to convert to Judaism and had embarked on the required process at Temple David. She did not complete the conversion.
It cannot be said that in the way s 72 of the EO Act has been characterised (and in this case s 72(b) and s 72(c)), that by seeking conversion to Judaism (or any other religion), a person is trained or educated into being 'appointed' into the formal structures of a religious body in the sense of assuming a position of authority or 'appointed' to perform any religious observance or practice.
Conversion in my view is a thing in itself. It comes prior to the sorts of circumstances covered by the exceptions in s 72 of the EO Act.
In my view the term 'religious order' in s 72(b) when read with the whole of that subsection in the context of s 72 as a whole, does not refer to the branches of a religion (Progressive Judaism in Judaism or Catholicism in Christianity) but rather in a more limited sense as subdivisions of the type the applicant has nominated as examples.
For example, the Catholic Archdiocese of Perth has as its religious orders a number of entities including Clerical Religious Institutes under which is included amongst others the Benedictine Monks, Carmelites, Dominicans, Franciscan Friars and so on. (Catholic Archdiocese of Perth Webpage)
As a consequence I also do not accept the submission of the respondent that the congregation of Temple David is a 'religious order' for the purposes of s 72(b) of the EO Act.
Congregation is suitably defined as a group of people who have come together in a religious building for worship and prayer (Cambridge English Dictionary Online (2018)).
For these reasons this part of the respondent's case must fail.
The complaint of victimisation under s 67(1)(a), (b) and (c) of the EO Act
The applicant's evidence and submissions
The material filed by the applicant is wide ranging and discursive. It includes allegations which fall outside the ambit of the EO Act. The material is at times difficult to follow.
I have summarised the applicant's case from the SIFC and Appendices, her witness statement, her oral evidence and written closing submissions.
In February 2015, the applicant commenced the course of conversion to Judaism at Temple David.
At all the relevant times the respondent was the Rabbi at Temple David.
In June 2015 whilst in a class for the conversion program, the respondent made long eye contact with the applicant and his body language was positive towards her.
The respondent recommended a certain book to the applicant in the foyer of Temple David on 29 June 2015. The respondent said that the book had interesting chapters about sexuality and the wonders of the male body.
On 4 July 2015, the respondent proposed sex to the applicant by reference to a sexually explicit song from the 1990's. The respondent's proposal was given verbally and the applicant had received a link to the song by email although she did not know who sent the email (SIFC at page 28.
The applicant refers to a statutory declaration made by her daughter on 7 December 2015 stating that the applicant asked her sometime in July 2015 about the meaning of certain words in that song (SIFC Appendix 8).
The daughter was not called to give evidence, so the evidence was not tested and potentially that could have meant the evidence had to be disregarded. However the respondent, who was legally represented, did not object to the evidence and therefore the Tribunal did have some regard to the material although its weight was affected.
The applicant sent the respondent emails which included an erotic poem and other material with sexual references (the emails before the Tribunal cover the period 22 May 2015 to 12 October 2015). The respondent told the applicant he enjoyed receiving her emails.
The respondent had given the applicant a lot of attention and she had grown fond of him. However, the applicant felt trapped in this situation because the respondent had power over her because she was dependent on him in respect to her conversion to Judaism.
In mid-September 2015 the applicant spoke to the respondent about some very unwelcome comments of a sexual nature made to her by a long-term congregation member (congregation member). The respondent again said he liked the emails she was sending him.
On October 4 2015 the applicant was desperate to tell the President of the Board (President) about the situation with the respondent but did not have the strength to do so.
The applicant refers to a letter dated February 16 2016 from a friend of hers in which the friend states that in October 2015 the applicant told her about a congregation member who had harassed her sexually, threatened her and assaulted her physically (grabbed her by the arm) at Temple David.
The friend was not called to give evidence which affected the weight given to the letter of February 16 2016.
On 23 October 2015 the respondent had the applicant expelled from Temple David.
In the SIFC, the applicant refers to a note dated 13 September 2015 she gave to the congregation member and the respondent on 14 September 2015 and an email sent on 24 October 2015 to the respondent.
In the note of 13 September 2015, the applicant mentions in respect to the alleged actions of the congregation member that sexual harassment and bullying are unlawful in Australia; that legal action is an option 'I do not wish for it, but I am not scared either'.
The congregation member was not called to give evidence which affected the weight given to the note of 13 September 2015.
In the email of 24 October 2015 the applicant states that she was aware that it is the 'commissions' who deal with complaints of sexual harassment and that she knew where to go.
The applicant further refers to emails that she says she sent on the night of 23 - 24 October 2015, one to a person who was also converting to Judaism and two to 'some Board members'. These emails are not before the Tribunal.
She states:
The applicant has no doubt that the respondent was told about the emails to the Board later than the following morning (24/10/2015), and it is reasonable to think that the President believed or suspected that the applicant was going to take legal action on discrimination or sexual harassment, because she finished one of the Board emails with 'I am seeking legal advice, and shall get back to you' (SIFC at page 23).
The applicant refers to a number of named persons in the SIFC whom she says were aware of her obtaining legal advice and possibly taking legal action against the respondent. She implies that some or all of the named persons had some relationship to Temple David. She states at page 6:
It is impossible for the applicant to say how many people knew about the complaint and details around the events of 23/10/2015, because it was not a secret in the applicant's life, and she distributed a large amount of material to a number of people before 09/11/2015 for them to do as they pleased, before she followed her solicitor's advice not to repeat the allegations telling the truth.
None of the named persons were called to give evidence which affected the weight given to this evidence of the applicant.
In letters dated 26 October 2015, 28 October 2015 and 29 October 2015 the applicant emailed a number of prominent members of the Progressive Jewish community both in Australia and overseas, detailing allegations made against the respondent under the heading 'Rabbi Exploiting Conversion Student for Sexual Gratification And Then Expelling The Student On Fictitious Allegations'. (Allegation Letters)
The Allegation Letters are substantially the same but have differences. None explicitly state an intention of the applicant to make a complaint to the EOC.
In the SIFC at page 6, the applicant states that she lodged a complaint with the EOC of sexual harassment against the respondent on 27 October 2015. When taken to a copy of the complaint the applicant accepts that it has a date stamp from the EOC showing receipt of the document on 30 October 2015. The applicant accepts this suggests she sent the complaint by post although she cannot remember how she provided the complaint to the EOC.
The complaint of sexual harassment was withdrawn on 12 November 2015 on legal advice.
Despite the withdrawal of the complaint, the applicant contends that the EOC would have notified the respondent of the complaint and subsequent withdrawal because the EOC notified Temple David when she withdrew a complaint against it in November 2016. She describes this as the EOC's 'normal procedure' (SIFC at page 22).
On 2 November 2015 the respondent commenced defamation action against the applicant (this refers to a letter sent by the respondent's legal representative to the applicant, the writ was filed with the Supreme Court on 10 November 2015).
The Deed settling the defamation action was signed by the applicant on 17 December 2015.
The solicitor's letter
In crossexamination the applicant was taken to a document dated 4 March 2016 purportedly a letter from the applicant's then solicitor to the respondent's solicitor alleging the respondent having breached the Deed (solicitor's letter) (Appendix 37 to the SIFC). In her evidence the applicant says she knew the letter was sent to the respondent's solicitor, however an email from the then applicant's solicitor to the respondent's solicitor dated 12 September 2017 (which was before the Tribunal) states that she has no record of having sent the letter.
Detriment
In the SIFC under 'Effects and consequences for the applicant', the applicant sets out what she has experienced as follows:
•She has experienced severe personal hurt and has been unable to recover from the psychological damage done to her;
•Her enjoyment of life has changed;
•She is distressed at the oppressive actions of Temple David;
•She has suffered financial loss;
•Her personal relationships have suffered; and
•She continues to require medication for depression and anxiety.
In her closing submission the applicant stated:
After the respondent manoeuvred the termination of the applicant's enrolment as a student in the conversion program, the applicant lodged complaints about the respondent's conduct of sexual harassment with the Equal Opportunity Commission and Union for Progressive Judaism, the organisation that investigates complaints about Progressive Jewish rabbi's misconduct in Australia. The complaint matter was unlawful sexual harassment in education.
The complaints were leaked to the respondent and [the respondent's legal representative] together with the respondent and the Temple David Board, made threats of unlawful defamation action, and then commenced an unlawful defamation action, against the applicant. This was the second stage of the extensive unlawful victimisation against the applicant, which victimisation started on 24/10/2015, after the respondent and Temple David Board maliciously defamed the applicant to the WA Police on the legal advice of [the respondent's legal representative] (Tribunal emphasis).
The unlawful victimisation of the applicant was extensive, aggressive and vicious, and the applicant was subject to multiple counts of unbearable detriment, only to prevent her from telling the truth. The defamation action, which was illegally procured, is only one of the instances of unlawful victimisation of the applicant, and nothing in the settlement provides a bar to a complaint victimisation or a proceeding on the ground of victimisation.
The respondent's evidence and submissions
Between February and October 2015, the applicant participated in the Introduction to Judaism classes and regularly attended various Temple David services and social functions as a conversion candidate.
During the course of the applicant's enrolment the applicant sent the respondent approximately 60 - 70 emails (some with documents attached), and numerous text and voicemail messages. This compared to an average of approximately 5 - 10 such communications from the other conversion students.
The respondent did recommend the book referred to by the applicant. It had been part of the prescribed reading for the respondent's rabbinical/university studies.
By 2015 he had not read the book for 10 years. As far as the respondent can recall the book does not contain chapters on sexuality and the wonders of the male body. He denies making any comment to the applicant about the book in reference to such matters.
Unlike other students the applicant's communications related to things that were of broader interest to her and the respondent initially took that as an indication that she was a particularly enthusiastic and interested student.
By about mid-September to early October 2015, the respondent noticed that the tone and content of a number of the applicant's emails and text messages had become somewhat sexual and directed to him. In this context the respondent refers to certain emails sent to him by the applicant from 28 July 2015 to 4 October 2015 (Witness Statement at para 90).
The respondent was concerned about the applicant's communications and about mid-September 2015 brought those concerns to the attention of the President. The President advised him to keep the situation under review and maintain a record of the communications with the applicant.
At the time of the discussion with the President, the respondent was also aware that there had been a number of complaints made by the congregants about the applicant. The complaints were that the applicant was aggressive and overbearing in discussions and that she had made inappropriate sexual remarks, including in front of children.
The Education Committee of Temple David had asked the respondent to deal with the applicant on these matters and also two allegations made by the applicant in mid-June 2015 and midSeptember 2015 concerning the sexually inappropriate behaviour of a congregation member and a visiting musician (the applicant disputes she complained about a visiting musician).
The respondent's usual practice having received an email was to read it and then move it to a folder on his computer. However he would not always read the document(s) attached to an email particularly if it appeared to be a student's assignment or similar. The general preference of the respondent was to review and assess these materials together during office hours.
In late September early October 2015, the respondent had asked the President to postpone reading of all assignments until after the High Holy-Days season.
In the case of the applicant's emails there were a number of her documents that the respondent had not read until after the making of her allegations. Some of the emails and attached documents referred to are those made by the applicant on 22 May 2015, 23 May 2015, 23 June 2015 and 29 June 2015. The respondent had not been aware of these particular documents which contain sexual references at the time of discussing his concerns with the President in mid-September 2015 or when the Board met to consider the applicant's conduct on 22 October 2015.
The respondent submits that:
In hindsight, some of the sexual references are difficult to relate to conversion topics, and might suggest that [the applicant] has something of a fixation on sexual matters, and had I been aware of this material, it is my belief that I would have raised my concerns with [the President] at an earlier stage than I actually did (Witness Statement at paragraph 104).
On 12 October 2015, the respondent received a further email from the applicant which contained sexual material.
On 16 October 2015 the respondent received a text message from the applicant (not before the Tribunal) complaining that she understood she was to be excluded from a planned trip to Israel because she was not Jewish. On the same day the applicant raised the matter with the respondent in a very strident manner in front of congregants.
On 18 October 2015 the respondent received an email from the applicant which criticised members of the Temple David congregation and made a number of statements in respect of Jews.
The respondent arranged to meet with the applicant on 23 October 2015.
At the time the respondent was aware that the Board was scheduled to meet on 22 October 2015 to consider amongst other things the recommendation of the respondent that the applicant be expelled from the Introduction to Judaism class.
The respondent is an ex-officio member of the Board and attended the Board meeting.
The minutes of the Board meeting of 22 October 2015 state at 5.4:
ITJ [Introduction to Judaism] student [applicant] has been exhibiting inappropriate and unacceptable behaviour (disruptive, disrespectful and offensive) in class and in front of members of the congregation, and in email correspondence. This has included offensive comments of a sexual nature sent to [the respondent]. Copies of emails were shown to the Board. [The applicant] does not appear to have cognisance of the impact of her behaviour. [The respondent] has requested [the applicant] attend a meeting on 23/10/15 ([two female Board members] to attend) at which he will advise she is no longer welcome to attend ITJ, and ask her not to come onto TD [Temple David] premises or approach [the respondent] or his family. TD will take legal action (restraining order) if she does not comply with our request.
The Board understands and unanimously endorses [the respondent's] decision.
On 23 October 2015 the respondent and the two nominated female Board members tried to meet with the applicant but she left after a short time after not being permitted to talk to the respondent alone.
A few minutes later the applicant left a voice message followed by a text message with the respondent (not before the Tribunal) asking if she had been expelled because of her emails.
Later that day the Board sent a letter to the applicant by email. The letter states:
On behalf of Temple David Board of Management, I am writing to inform you that your participation in the introduction to Judaism class and any other activities or services at or by Temple David is terminated due to the following reasons:
1)Exhibiting inappropriate and unacceptable behaviour. This includes being disruptive, disrespectful and offensive in class and in front of members of the congregation as well as in email correspondence to the ritual committee.
2)Offensive comments of a sexual nature sent via email to [the respondent] including graphic sexual content and other material that constitutes sexual harassment under the Act.
In line with the reasons listed above the Board of Management at Temple David has unanimously decided you are no longer allowed on Temple David premises nor to contact in any way [the respondent] or his family.
If you do not comply with this directive legal action will be taken.
A meeting was organised to discuss this situation with you on the morning of October 23, 2015. In attendance was [the respondent], …, as chair of the Education committee and … as Vice President.
You chose to walk out on this meeting after only a few minutes, refusing to hear what [the respondent] wanted to say once again, displaying a disrespectful attitude to all present.
The respondent says he did not receive the email the applicant states she sent to him on 24 October 2015.
On 24 October 2015 the respondent attended the Mirrabooka Police Station (see below).
After becoming aware of the Allegation Letters (specifically the one of 26 October 2015), the respondent sought urgent legal advice on 29 October 2015.
On 29 October 2015, Temple David wrote to the applicant seeking further information concerning the allegations made against the respondent.
On 30 October 2015 the applicant responded to the President.
On 2 November 2015 the respondent's legal representative sent the applicant a concerns notice pursuant to s 14 of the Defamation Act2005 (WA) (concerns notice).
Between 2 November 2015 and 5 November 2015 the respondent's legal representative corresponded with the applicant alleging defamation and seeking a retraction and apology.
On 10 November 2015 the respondent through his legal representative filed a Supreme Court writ seeking damages and an injunction against the applicant for defamation.
On 12 November 2015, the respondent's legal representative was contacted by the applicant's legal representative.
On the same day the applicant withdrew her complaint of sexual harassment made under the EO Act against the respondent.
Settlement of the defamation action was agreed and the Deed signed by the applicant on 17 December 2015.
The respondent states he was not aware of the complaint of sexual harassment made by the applicant (withdrawn on 12 November 2015) until after his legal representative received the papers of the Tribunal proceeding on 25 January 2017.
At no time prior to January 2017 did the respondent believe that the applicant had made, or proposed to make a complaint against him under the EO Act or that the applicant had made or intended to make any allegation against him that he had done anything that was unlawful under the EO Act.
It is submitted in respect to the claim of the applicant under s 67(1)(a), (b) and (c) of the EO Act that because the respondent was not aware of the complaint of sexual harassment it was impossible for him to have done anything about it or because of it.
The applicant has provided no evidence that the respondent knew of the matters set out in s 67(1)(a), (b) and (c) of the EO Act or believed that the applicant had done or proposed to do one of those matters.
It is submitted that in taking legal advice on 29 October 2015 (which the respondent says was a Friday) it was too close in time to the applicant making her complaint of sexual harassment to the EOC on 30 October 2015 and the concerns notice of 2 November 2015 for the respondent to have been made aware of that complaint.
It is submitted that the applicant has in any case not proved that she has suffered a detriment in that invoking a lawful court process (the defamation action), cannot be a detriment as it is meant in s 67 of the EO Act. The applicant remained entirely free to make a complaint under the EO Act.
Consideration
In Laurent and Commissioner of Police [2009] WASAT 254 (Laurent) at [67] Pritchard DCJ (as her Honour then was) said:
… in order to establish victimisation under s 67, it must be established that:
1)the person victimised suffered, or was threatened with, a detriment;
2)the detriment alleged must be a disadvantage that is substantial and not trivial;
3)the victimiser subjected the person victimised with the detriment, or threatened to do so;
4)a dominant or substantial reason for the victimiser's conduct was that the person victimised has made or proposes to make a complaint under the EO Act or, or has brought or proposes to bring, proceedings against the victimiser under the EO Act (or one of the other grounds for victimisation in s 67(1)). That is, it must be established that:
•the complaint, or intended complaint, must be the dominant or substantial reason for doing the act of victimisation;
•there must be an intention to cause detriment; and
•there must be a causal link between the conduct of the victimiser and the detriment suffered. In the absence of facts capable of proving intention to cause the detriment, or facts capable of supporting such an inference, there will be no basis for a, contention of victimisation.
Taking Laurent as the legal framework upon which a claim for victimisation is to be determined I find that the applicant's claim in respect of s 67(1)(a), (b) and (c) is not made out.
My reasons are as follows.
It appears from the applicant's closing submissions that the alleged threat of and then commencing 'unlawful defamation action' is the detriment she suffered in her claim of victimisation under s 67(1)(a), (b) and (c) of the EO Act.
She also details the alleged effects on her personal and financial life in her SIFC although it seems to me this also captures the effects of the complaint of sexual harassment which she withdrew on 12 November 2015.
The applicant does not appear to explicitly link her claim to her expulsion from the Introduction to Judaism course and from the congregation of Temple David of which she was notified on 23 October 2015.
The only reference to an earlier communication which mentions sexual harassment and the option of legal action is the note the applicant purportedly gave to the congregation member and the respondent on 14 September 2015 referencing the alleged actions of the congregation member.
The applicant did not question the respondent about this note in crossexamination nor did she call the congregation member to give evidence of the note's existence and receipt.
The respondent denies that he received the email allegedly sent to him by the applicant on 24 October 2015 and which also references sexual harassment and 'commissions' who deal with such complaints.
The applicant did not test the respondent's evidence on this matter.
The applicant also refers to emails she allegedly sent on 23 - 24 October 2015 including to some Board members stating she was seeking legal advice but these emails are not before the Tribunal nor were the Board members called to give evidence.
Regarding the Allegation Letters (specifically the one dated 26 October 2015), the respondent's uncontested evidence is that he sought urgent legal advice about this on 29 October 2015. The 29 October 2015 was a Thursday not a Friday as stated by the respondent.
By that time the applicant had completed her complaint of sexual harassment to the EOC (dated 27 October 2015) which was received by the EOC on 30 October 2015.
The applicant is asking the Tribunal to find that the applicant knew either directly or by hearing from others that she was contemplating making a complaint of sexual harassment and that the victimisation arose from those circumstances.
The evidence does not in my view support the contention of the applicant either directly or by inference.
I do not find the applicant's evidence to be credible. Important material around the time of her making the complaint to the EOC and upon which she relies was not before the Tribunal; and of the material that has been filed, the recipients either were not called to verify the contents or in the case of the respondent, his evidence in contradiction was not tested by the applicant.
The applicant claimed there were additional documents yet despite the large amount of material before the Tribunal those documents were not produced. I find it implausible that if they existed they would not have been produced.
The matter of the solicitor's letter is a cause for concern as to whether some or all of the material referred to by the applicant but not before the Tribunal exists in the form she asserts.
I find that the solicitor's letter was not sent.
The applicant has not shown to the required standard that the respondent was aware that she was contemplating a complaint of sexual harassment to the EOC or that he became aware that she had made the complaint prior to the commencement of the proceedings in the Tribunal in January 2017.
There was no direct evidence before the Tribunal that the EOC notified the respondent of the complaint of sexual harassment made on 30 October 2015 prior to the applicant withdrawing the complaint on 12 November 2015 or subsequent to the withdrawal.
The applicant cannot rely upon what she asserts is the normal procedure of the EOC to notify respondents of complaints because she has not produced evidence from the EOC to substantiate that assertion.
I find the respondent to be a credible witness.
It is, in my view, entirely reasonable for the respondent to have sought legal advice when faced with the Allegation Letters (specifically the one dated 26 October 2015). They contain significant and very serious allegations which required a response.
That the response by the respondent ultimately was an action for defamation was a right of action available to a person in the respondent's position.
His right to take such action was not unlawful as contended by the applicant and cannot be considered to be a detriment as contemplated in s 67 of the EO Act. I find that the respondent commenced action because he believed he had been defamed and not because of any complaint under the EO Act.
The applicant's complaint under section 67(1)(a), (b) and (c) of the EO Act should be dismissed.
The complaint of victimisation under s 67(1)(f) of the EO Act
The compulsory conference order references a Police Report of 24 October 2015 (Police Report) and the Allegation Letters (specifically those of 26 October and 28 October 2015) and relates the complaint to matters covered by s 25 of the EO Act.
Section 25 reads as follows:
(1)It is unlawful for a person who is a member of the staff of an educational institution to harass sexually a person who is a student at that educational institution or is seeking admission to that educational institution as a student.
(2)A person shall, for the purposes of this section, be taken to harass sexually another person if the firstmentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person, and
(a)the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person's studies or the other person's application for admission to an educational institution as a student; or
(b)as a result of the other person's rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person's studies or the other person's application for admission to an educational institution as a student.
(3)A reference in subsection (2) to conduct of a sexual nature in relation to a person includes a reference to the making, to or in the presence of, a person, of a statement of a sexual nature concerning that person, whether the statement is made orally or in writing.
Section 25 can only apply in this case if Temple David can be classified as an educational institution, the applicant was a student and the respondent a member of the staff of Temple David.
Educational institution in s 4 of the EO Act means a school, college, university or other institution at which education or training is provided.
The applicant's evidence and submissions
The applicant submits that Temple David is an educational institution for the purposes of the EO Act; she was a student in the Introduction to Judaism class and the respondent was employed by Temple David.
The applicant refers to the Objects of Temple David set out in its Constitution which includes conducting 'educational activities' for a progressive form of Judaism and encouraging the study of Judaism, its language, history and traditions.
Under clause 11 of the Constitution the Board may establish committees one of which is the Education Committee.
The applicant also refers to a document headed 'Education at Temple David'. The document mentions the Introduction to Judaism class and also the 'Temple David Religion School'.
The Introduction to Judaism class is open to all congregants 'to further their knowledge as well as those wishing to convert. The class is interactive, text based and expanded through modern technology'.
The Religion School has 'a group of dedicated and professional teachers' and receives a grant from the Ethnic Schools Commission.
The Religion School 'create[s] an educational environment that promotes Jewish ethics and values by example'. Subject areas are mentioned which are planned by teachers.
The Allegation Letters according to the applicant attract the objects of s 67(1)(f) in that they clearly document allegations of sexual harassment in the course of her conversion to Judaism in attending the Introduction to Judaism classes conducted by the respondent.
In respect to the Police Report referred to by the applicant, in the SIFC she states at page 32:
Around 10.30 am on 24/10/2015, an utterly dishonest incident report was lodged at the Bayswater Police Station. This happened after the applicant had complained to the respondent's employer Temple David about the respondent's proposal for sex, and after she had emailed the respondent about her intent to go to the Commission about sexual harassment.
The Police Report states as follows:
The victim is a Rabbi of the Temple of David Congregation in Mt Lawley. The POI is a recent attendee and since August has been sending the victim inappropriate emails and text messages of a sexual nature.
The victim claims he has not reciprocated and recently has held meetings with the churches board to have the POI removed from the Congregation due to her inappropriate behaviour.
Once the POI was informed of this, she has made allegations to the Congregation that the Rabi (sic) made the sexual advances on her.
At the time of this report being made there are no reports from the POI to police regarding this incident.
Victim wished to make a police report as he was advised by his lawyer to do so.
Victim supplied a copy of the emails and text messages to police that were sent to him between the dates in August and October. (Stored in HCCF)
IMS checks reveal that no complaint of offence made by the victim at this stage.
In her closing submission the applicant characterised the detriment she suffered by virtue of this arm of her complaint as:
… which victimisation started on 24/10/2015, after the respondent and Temple David Board maliciously defamed the applicant to the WA Police on the legal advice of[.]
The respondent's case
The evidence of Ms Figgis
Ms Figgis has been a member of Temple David's Education Committee since November 2014.
Temple David conducts two educational activities, a language school and the Introduction to Judaism class.
Language school
Although referred to as a school the language program is a Saturday morning program (8.50 am to noon) which is offered predominately to the children of Temple David members when they are between the ages of 5 and 13 years of age.
The program currently has 29 students who meet in the basement of Temple David which has been fitted out for purpose.
The language program has an annual budget of about $16,500 which is allocated to teachers and assistants' honorarium, resources, materials and textbooks, rent utilities and maintenance and administrative overheads.
Sources of funding are a grant from the Office of Multicultural Interests through a community language program to support the teaching of Hebrew, student fees, a private trust and in-kind support primarily from Temple David.
The current teachers are a retired secondary school teacher, a recently qualified teacher who is registered with the Teacher Registration Board of Western Australia, a parent of a child in the program and two young assistants.
There are no formal contracts in place with any of the teachers and there is no real hierarchy although the retired secondary school teacher effectively coordinates the program.
The curriculum includes five main areas: Hebrew language, Jewish identity, knowledge of the Jewish calendar (festivals), the Tanakh (Bible) and Israel.
The purpose of the curriculum is to provide a holistic and inclusive education experience to enable the children to confidently take their place in the Progressive Jewish community.
There are no formal tests or assessments conducted as part of the program and there are no formal grades, certificates or awards given. There is no formal graduation; the final outcome is simply intended to be the successful celebration of the Bar/Bat Mitzah.
Introduction to Judaism class
These classes are conducted primarily (but not exclusively) for people who are interested in converting to Judaism.
The purpose of the course is to prepare the students for conversion (if that is what they wish for), or to provide them with a general understanding of Judaism (if they are not wishing to convert).
The students meet weekly during the course in the Temple David boardroom.
The course is mainly taught by the respondent. Two Temple David members teach the Hebrew component of the course; one is a retired primary school teacher and the other an engineer with no teaching qualifications.
There are no formal contracts in place with the two Temple David members and they are not paid. The respondent may choose to direct them from time to time.
The respondent is employed by Temple David as Rabbi; he has a formal contract; and his teaching duties are considered to be an important part of his role.
The respondent has divided the course into seven study units which cover the three pillars of Judaism: Jewish holy time (the Jewish year), Jewish worship, Jewish life-cycle rituals, Jewish history, Jewish literature and Jewish living.
There are no exams or formal assignments and no grades, certificates, awards or graduation.
The course does not have a formal budget or funding as most of the teaching is considered to come within the general religious duties of the respondent. The students generally pay a fee of $240 a term which is paid into the general revenue of Temple David.
In addition to attending conversion classes, students are expected to attend religious services at the synagogue with some regularity, and to join in the Temple David/community activities with the congregation.
The respondent's evidence regarding the Police Report
On 23 October 2015 (after the brief meeting with the applicant subsequent to her expulsion from the Introduction to Judaism classes and Temple David), the respondent became aware that the applicant had communicated with some Temple David congregants spreading a rumour suggesting she was in some form of personal relationship with him.
The respondent was concerned in the circumstances that the applicant might attempt to directly approach him which he did not want.
The respondent spoke with the President and another Temple David congregant and the advice given was to notify the police about the situation in case it escalated.
On 24 October 2015, the respondent attended a police station with his wife and the President. After explaining the situation the respondent was shown a photo on a computer monitor which he identified as the applicant.
The advice of the police was that the respondent seek a restraining order against the applicant.
The respondent's submission
The respondent submits that the small size and nature of Temple David, its range of other primarily religious or community objects, and the limited/ancillary nature and limited scope of its educational activities preclude it from being properly characterised as a school, college, university or other similar 'educational institution' within the meaning of s 4 of the EOA Act.
It is submitted that the meaning of 'institution' in the definition of 'educational institution' imports a large organisation formed for, or having, a particular purpose or object which does not describe Temple David.
In addition, on a proper construction of s 67(1)(f) of the EO Act, the section is not engaged merely by an allegation of facts constituting an act that is unlawful, there must be an allegation that the act or acts complained of were unlawful by reason of some provision of the EO Act.
The respondent states that in New South Wales and Victoria the relevant legislation expressly provide that the allegation need not refer to a contravention of the legislation.
The respondent restates his submission that the defamation concerns notice and writ were entirely legitimate and lawful and cannot be properly characterised as a detriment for the purposes of s 67 of the EO Act. It is submitted that the defence provided in s 67(2) of the EO Act contemplates the possibility of legal proceedings by which an allegation is proven to be false and not made in good faith.
Consideration
I find that for the purposes of the EO Act, Temple David is an institution at which education and training is provided in respect of the operation of its Introduction to Judaism class.
I do so for the following reasons.
In a decision of the Equal Opportunity Tribunal of Western Australia (EOT), Phillips v Minister for Education [ET/2002-000016 delivered 22 July 2003], the Equal Opportunity Tribunal at [63] [64] refused to give the term 'educational institution' a narrow interpretation and found that it applied to the administrative functions of the Chief Executive Officer of the Education Department in respect to home schooling.
Similarly in Applicant N v Respondent C [2006] FMCA 1936 (Applicant N) it was found that a child care centre was an 'educational institution' for the purposes of the Disability Discrimination Act 1992 (Cth) in which the definition of 'educational institution' was the same as that in the EO Act.
In Applicant N at [41] [43] it was held:
… Education is a broad concept and, in my view the definition in s 4 of the DDA of "educational institution", by including the words "or other institution at which education or training is provided", is clearly intended to cover institutions providing education or training other than schools, colleges or universities.
… the Respondent [child care centre] can be said to manage an institution which provides for education of children in the development of mental or physical powers and/or the moulding of some aspects of character.
… The child care centre … is an educational institutional in the sense that it is an institution that provides education in the broader sense as defined.
Temple David employs the respondent. His teaching duties are an important part of his role. The Introduction to Judaism class in addition to conversion students is open to those who wish to be given a general understanding of Judaism.
This is consistent with the notion of education 'in the broader sense' (Applicant N) that can be captured in the definition of 'educational institution'.
It is common ground that the applicant was a student in the Introduction to Judaism class.
Despite my finding that Temple David is an 'educational institution', I am not satisfied that the applicant has made out the complaint under s 67(1)(f) of the EO Act.
The submission of the respondent that s 67(1)(f) requires a positive reference by the applicant to an unlawful act in the EO Act has merit when read in the context of the whole of s 67.
Although the respondent did not state the specific legislation in New South Wales and Victoria to support the submission it appears he was referring to s 50 of the Anti-Discrimination Act 1977 (NSW) and s 104 of the Equal Opportunity Act 2010 (Vic) which do not require an explicit statement about contravention of the relevant antidiscrimination legislation.
I do not need to finally determine whether the applicant was required to explicitly allege in the Allegation Letters that the respondent had done an act that was unlawful under the EO Act to invoke s 67(f) because even if I accept that was not required by the applicant she suffers from the same evidentiary deficiencies as with her claim under s 67(1)(a), (b) and (c) of the EO Act.
The Police Report does not add anything to the applicant's case. I accept the evidence of the respondent that he attended the police station because he was concerned about a possible escalation of the applicant's behaviour if she attempted to directly contact him.
The respondent was entitled to report the situation to the police in those circumstances and in doing so he did not cause the applicant to suffer a detriment of the type s 67 of the EO Act contemplates.
The applicant's complaint under section 67(1)(f) of the EO Act should be dismissed.
Order
For the reasons given, the Tribunal makes the following order:
1.The complaint in proceedings EOA 2/2017 between Leena Saje and Rabbi Adi Cohen is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, SENIOR MEMBER
18 OCTOBER 2018
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