Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd

[2016] NSWCATAD 37

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2016] NSWCATAD 37
Hearing dates:	10 November 2015
Date of orders:	24 February 2016
Decision date:	24 February 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	1. Those parts of the complaint on which the Applicant no longer relies are dismissed. 2. The Respondent’s application for the remainder of the complaint to be summarily dismissed is refused. 3. The parties are directed to attend a mediation on 14 March 2016 at 10 am. 4. If the mediation does not resolve the complaint, the following timetable applies: (a)   Applicant (Mr Seupule-Feau) to file and serve evidence including witness statements on which he intends to rely by 11 April 2016; (b)   Respondent (the Church) to file and serve evidence Respondent including witness statement on which it intends to rely by 9 May 2016; (c)   Matter listed for hearing for 2 days on 19 and 20 May 2016.
Catchwords:	SUMMARY DISMISSAL – principles to be applied on application under the Anti-Discrimination Act – meaning of “for any other reason”
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Forrester v AIMS Corporation [2004] VSC 506 Mr and Mrs A on behalf of their four children v State of New South Wales and Department of Education and Training [2003] NSWADT 71 (7 April 2003) Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 Spellson v George (1992) 26 NSWLR 666
Category:	Principal judgment
Parties:	Eteuati Seupule-Feau (Applicant) Seventh Day Adventist Church (North New South Wales Conference) Limited (Respondent)
Representation:	Counsel: N Read (Respondent)   Solicitors: Pastor A Saunders (Agent for Applicant) MRM Lawyers (Respondent)
File Number(s):	1510072
Publication restriction:	Nil

reasons for decision

Introduction

1. Mr Seupule-Feau, who describes himself as a western region Samoan, was a pastor employed by the the Seventh-Day Adventists Northern NSW Conference Ltd, (the Church). He alleges that the Church has discriminated against him on the ground of his race in breach of s 8(2) of the Anti-Discrimination Act 1977 (NSW). The Church has applied for those complaints to be summarily dismissed and for its legal costs to be paid by Mr Seupule-Feau. After I described to Mr Seupule-Feau the kinds of complaints that he could make under s 8(2) of the Anti-Discrimination Act, he is no longer relying on many of his allegations. I have dismissed those parts of the complaint as they do not disclose a contravention of s 8(2). The remainder of the complaint is not lacking in substance, nor should it be dismissed for any other reason.

2. The Church terminated Mr Seupule-Feau’s employment as a pastor on 27 August 2013. That decision was said to be based on his poor work performance and his behaviour including saying things that were not true. In 2013, following the termination of his employment, Mr Seupule-Feau’s commenced unfair dismissal proceedings against the Church in what was then called Fair Work Australia (now the Fair Work Commission). Mr Seupule-Feau took that course in 2013 and elected to discontinue it the day before it was listed for hearing.

3. Nearly 12 months later, on 28 August 2014, Mr Seupule-Feau filed a complaint against the Church with the President of the Anti-Discrimination Board (ADB). Following requests by the ADB to clarify and articulate his complaint, he filed additional documents and “summaries” of his complaint.

4. On 30 January 2015, the President of the Anti-Discrimination Board referred Mr Seupule-Feau’s complaint of race discrimination in employment to the Tribunal. Despite Mr Seupule-Feau’s references to racial vilification and victimisation, the ADB considered that Mr Seupule-Feau’s allegations related only to the terms and conditions of his employment or some other determinant occurring in the context of his employment. Section 8(2) provides that:

(2) It is unlawful for an employer to discriminate against an employee on the ground of race:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

Grounds for dismissal

Summary

5. The Tribunal may dismiss the whole or part of a complaint on the following grounds:

a) the complaint is frivolous, vexatious, misconceived and/or lacking in substance;

b) the conduct alleged if proven, would not disclose the contravention of a provision of the Anti-Discrimination Act or its regulation;

c) the Tribunal is satisfied that for any other reason no further action should be taken in respect of the complaint: Anti-Discrimination Act, s 102 and s 92(1)(a)(i) or (ii) or (b).

6. I will refer to those grounds as “lacking in substance”, “failure to disclose a contravention” and “any other reason”.

Lacking in substance

7. The principles applicable to dismissal when a complaint is frivolous, vexatious, misconceived or lacking in substance are similar to those used by courts when considering whether a claim should be summarily dismissed. Those principles can be summarised as follows:

1. The Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91.

2. The Tribunal should only summarily dismiss a complaint “when it is clear, beyond any doubt, that the applicant has not and cannot, articulate in writing a reasonable cause of action”: Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at 354-355. If no pleadings have been filed, it may be difficult to determine whether there is a cause of action: Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at 354-355;

3. Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666.

4. An applicant’s case is to be taken at its highest when determining whether the complaint lacks substance but it is not for the Tribunal “to conduct a pre-trial assessment of the complainant’s evidence to determine whether the complainant can prove his case”: Forrester v AIMS Corporation [2004] VSC 506 at [33].

5. A proceeding can be vexatious if it is instituted with the intention of annoying or embarrassing the person against whom they are brought.

Failure to disclose a contravention

8. The second ground for summary dismissal is when the alleged conduct would not disclose a contravention of the Anti-Discrimination Act or its regulation. That means that the allegation, even if proved, would not be in breach of the legislation.

Any other reason

9. The third ground for summary dismissal is where the Tribunal is satisfied that “for any other reason” no further action should be taken in respect of the complaint. The Church put forward several “other reasons” that the complaint should be dismissed including the fact that:

1. some of the allegations occurred more than 10 years ago;

2. Mr Seupule-Feau had not complied with the timetable for the filing and service of Points of Claim and has not adequately particularised his case. It is not in keeping with the guiding principle in s 36(3)(a) of the Civil and Administrative Tribunal Act2013 (NSW) (NCAT Act) nor the objects of that Act to extend any further opportunities for Mr Seupule-Feau to amend or particularise his complaint;

3. the Church denies some of the factual assertions made by Mr Seupule-Feau;

4. the complaint was bound to fail because there was no evidence to support a nexus between the alleged treatment and his race;

5. the appropriate jurisdiction for the grievance is an unfair dismissal claim to the Fair Work Commission.

10. A question that arises in these proceedings is the meaning of the phrase “for any other reason.” That phrase has been interpreted in the context of a now repealed provision, s 111 of the Anti-Discrimination Act, but not, so far as I am aware, in the context of s 92(1)(b). The statutory contexts are slightly different. Section 111(1) of the Anti-Discrimination Act was in force prior to 2 May 2005. It provided that:

(1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

11. The meaning of “for any other reason” in s 111 was interpreted by the Tribunal in Mr and Mrs A on behalf of their four children v State of New South Wales and Department of Education and Training [2003] NSWADT 71 (7 April 2003) at [6] – [8]. There is a reference in these passages to the “ejusdem generis rule”. That rule, which means "of the same kind" in Latin, is a rule of statutory interpretation. If a provision lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed.

6 The phrase "for any other reason" in s 111(1) is not limited in any way by the preceding reasons for dismissal, namely that the complaint is "frivolous, vexatious, misconceived or lacking in substance." In Walsh and Gabell v Australian Postal Corporation [1997] NSWEOT, Patten J said:

The Tribunal in the context of Section 111 sees no reason why the phrase "for any other reason the complaint should not be entertained" should be read down by application of the ejusdem generis rule or otherwise. Rather the Tribunal is of the opinion that the phrase should be given weight as an independent basis for the dismissal of a compliant whether or not the "reason" bears relationship to the specific categorisations of "frivolous, vexatious, misconceived or lacking in substance." Accordingly the Tribunal holds that it is appropriate to deal with this matter under Section 111.

7 This approach was also taken by Hunt J in Langley v Niland [1981] 2 NSWLR 104. Being a Supreme Court decision, that case is binding authority for this Tribunal. Hunt J considered the meaning of the same phrase "for any other reason the complaint should not be entertained" in s 90(1) of the AD Act. That provisions mirrors s 111(1) but relates to the power of the President of the ADB (formerly the Counsellor of Equal Opportunity) to decline a complaint. Hunt J said, at p 107 that:

The counsellor may also decline to entertain a complaint where she is satisfied that it should not be entertained "for any other reason". Normally, such a phrase would be construed ejusdem generis with the four adjectives which preceded it so as to exclude the application of s 90 where the complaint is considered to be outside the provisions of the Act rather than one for which there is an insufficient or unmeritorious factual basis. The ejusdem generis rule must nevertheless give way to an indication that the words are to be read in the general sense in which they are expressed: R v Regos [1947] HCA 19; (1947) 74 CLR 613, at pp 623, 624; Cody v J H Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629 at p 639. There is, in my opinion, a strong indication in this statute that the words in question should not be read ejusdem generis.

8 This passage makes it clear that there may be other reasons, independent of the factual basis or merit of the complaint, which would justify the complaint being dismissed.

12. Section 102 and s 92(1) of the Anti-Discrimination Act are drafted slightly differently from s 111. Section 102 provides that:

The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).

13. Section 92 provides that:

(1) If at any stage of the President’s investigation of a complaint:

(a) the President is satisfied that:

(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

14. There are at least two possible interpretations of s 102. The first is that the legislature intended, in effect, to re-enact s 111 with the addition of a third ground for dismissal: failure to disclose a contravention. Interpreted in that way, the current provisions empower the Tribunal to dismiss a complaint because it is “frivolous, vexatious, misconceived or lacking in substance” it does not disclose a contravention of the legislation or “for any other reason”. In accordance with previous authority, the words “for any other reason” are not to be read in accordance with the ejusdem generis rule but, rather, in the general sense in which they are expressed.

15. An alternative interpretation of s 102 and s 92(1)(b) is that since none of the reasons in s 92(a)(iii)-(vii) are listed as express grounds for summary dismissal in s 102, dismissal under s 92(b) may only be for a reason other than those listed at 92(a)(iii)-(vii).

16. Because neither party made submissions on this point, I am reluctant to express a concluded view. However, as the Anti-Discrimination Act is beneficial legislation, for the purpose of these proceedings, I will adopt the alternative interpretation. That means that the Church cannot rely on any of the reasons listed in 92(a)(iii)-(vii) as a ground for summary dismissal.

Consideration

17. Based on this conclusion and the principles set out at [7] above, I will not consider dismissing the complaint on the basis of any of the following matters:

1. non-compliance with the timetable for the lodging and service of documents;

2. the age of the allegations as long as they are within the period of the complaint referred by the President;

3. that the Church denies some of the facts on which Mr Seupule-Feau’s case is based;

4. that Mr Seupule-Feau has not adequately particularised his case as long as a reasonable cause of action has been set out;

5. the complaint is bound to fail because there is no evidence to support a nexus between the alleged treatment and Mr Seupule-Feau’s race; or

6. the appropriate jurisdiction for the grievance is an unfair dismissal claim to the Fair Work Commission.

18. The only “other reasons” which I will consider are that:

1. Mr Seupule-Feau has not and cannot, articulate in writing a reasonable cause of action;

2. the allegations do not come within the period of the complaint as referred by the President.

Consideration

19. On 10 August 2015 Mr Seupule-Feau forwarded to the Church’s legal representatives a further Revised Summary of his complaint and several attachments. The Further Revised Summary of complaint included references to invasions of privacy, breaches of procedural fairness and that certain documents were invalid. If Mr Seupule-Feau is suggesting that he is entitled to a remedy under the Anti-Discrimination Act for a breach of his privacy, a breach of procedural fairness or being provided with an invalid document, he is mistaken. These are not causes of action which can be brought under the Anti-Discrimination Act. What Mr Seupule-Feau needs to prove is that the facts giving rise to those allegations constitute a breach of s 8(2) of the Anti-Discrimination Act.

20. As well, the Further Revised Summary of Complaint made allegations of racial vilification and victimisation. The complaint, as referred by the President of the Anti-Discrimination Board, was a complaint of race discrimination in employment under s 8(2). No complaint of racial vilification under s 20C or victimisation under s 50 was referred. To rely on breaches of those provisions the Tribunal would first need to amend the complaint: Anti-Discrimination Act, s 109.

21. The Further Revised Summary of Complaint also raises some new allegations which were not in the original complaint. Again, those allegations cannot form part of Mr Seupule-Feau’s complaint unless the Tribunal amends the complaint.

22. At the 10 November 2015 hearing to determine the application for summary dismissal, I asked Mr Seupule-Feau to make another attempt to identify his complaint. I explained that he must identify those allegations which he claims constitute race discrimination in employment in breach of s 8(2) of the Anti-Discrimination Act. On 24 November 2015 he filed an amended document containing seven allegations. I accept this document as being the totality of the allegations on which Mr Seupule-Feau now relies. Those parts of the complaint on which Mr Seupule-Feau no longer relies are dismissed.

23. The allegations on which Mr Seupule-Feau now relies can be summarised as follows:

1. an incident on 11 February 2005; (allegation 1)

2. letters written in September 2009; (allegation 2)

3. stand down letter 13 March 2013 (allegation 3 and 4)

4. second and final warning letter dated 27 August 2013 (allegation 5);

5. stand down notice (allegation 6)

6. withholding of evidence (allegation 7).

24. The period of the complaint is 11 February 2005 to 27 August 2013. Each of the allegations is said to have taken place during that period. The remaining questions are firstly whether or not Mr Seupule-Feau has articulated a reasonable cause of action in relation to each of these seven allegations and whether those allegations, if proved, could constitute a breach of s 8(2).

First allegation - 11 February 2005

25. The first allegation is that on 11 February 2005, the Northern NSW President, Pastor Lang, engaged Mr Seupule-Feau in conversation at the front door of his home. I understand Mr Seupule-Feau to be alleging that Pastor Lang told him that the three people staying with Mr Seupule-Feau should leave within a few days. According to Mr Seupule-Feau, Pastor Lang used his “position, status and authority to impose on” him his “personal and perceived Australian values and cultural practices in relation to Mr Seupule-Feau’s hospitality in regard to the three guests staying at the Feau’s home”. Mr Seupule-Feau regards this incident as a “racially discriminating imposition on his personal privacy”.

26. Requiring people to leave Mr Seupule-Feau’s home could constitute a ‘detriment’ under s 8(2)(c) if the provision of housing was a term or condition of employment. While Mr Seupule-Feau cannot obtain a remedy for breach of privacy, he can obtain a remedy for breach of s 8(2)(b), for example, if he can prove that he was being denied a benefit associated with his employment. That would be a ‘reasonable cause of action’. It is not the Tribunal’s role at this stage of the proceedings to determine whether Mr Seupule-Feau will be able to prove that any less favourable treatment was on the ground of his race.

Second allegation - content of letters not investigated

27. This allegation appears to be that in letters written to the South Pacific Division President, Dr. Barry Oliver, in September 2009, a parishioner, Mr Darryl Hall, made the comment that, “Inverell has many chiefs, not like Moree Church where Eti is the chief.” Another unidentified parishioner is alleged to have said that, “Eti should go back and teach the natives.” The complaint is that President Lang did not investigate this matter, not that the statements themselves constitute racial vilification.

27. Refusal to investigate or take some other action in response to a complaint may constitute a ‘detriment’ under s 8(2)(c). Again, that would be a ‘reasonable cause of action’. It is not the Tribunal’s role at this stage of the proceedings to determine whether Mr Seupule-Feau will be able to prove that any less favourable treatment was on the ground of his race.

Third and fourth allegations - stand down letter

29. The third and fourth allegations relate to a “stand down” notice Mr Seupule-Feau received from Pastor Lawman on 13 March 2013. Mr Seupule-Feau compares a version of the letter composed by Pastor Lawman with the final version written by a private investigator, Mr Habgood. He says the final version is more definitive in relation to its findings than Pastor Lawman’s version. While it is not immediately apparent to me, it is arguable that this matter could constitute a detriment in employment.

30. Mr Seupule-Feau also gives examples of pastors from Caucasian backgrounds who were not stood down despite having done things which Mr Seupule-Feau regards as more serious than he did. I assume from that submission that Mr Seupule-Feau also alleges that the decision to stand him down is itself, a breach of s 8(2) of the Anti-Discrimination Act. If this assumption is incorrect, Mr Seupule-Feau should formally withdraw this part of his complaint within 7 days of receiving these reasons.

31. Standing down an employee is conduct that could constitute a ‘detriment’ under s 8(2)(c). It would remain for Mr Seupule-Feau to prove that his race was a reason for that decision.

Fifth allegation - second and final warning letter

32. On 16 November 2009 President Lang sent a "Second and Final Warning Letter" stating that “The Executive Committee has placed you at Moree and Narrabri with the requirement that you live in Moree”. Mr Seupule-Feau says that imposing a residential requirement to live in Moree was not a condition of his employment.

33. If the requirement to live in a certain location is a term or condition of Mr Seupule-Feau’s employment, this conduct could come with s 8(2)(a) of the Anti-Discrimination Act. As I have said, it is not the Tribunal’s role on an application for summary dismissal to determine whether Mr Seupule-Feau will be able to substantiate this claim on the basis of the evidence that he has provided to date.

Sixth allegation – stand down notice

34. On 12 March 2013 Mr Seupule-Feau received a letter from Jared Henly, Head Elder Moree Church, raising further concerns about Mr Seupule-Feau’s work performance and behaviour. The Church stood Mr Seupule-Feau down on full pay pending investigation of these concerns.

35. On 13 March 2013 Mr Seupule-Feau received a ‘stand down’ notice from Pastor Lawman. That letter included the following two statements;

We believe we have reached the stage where we can no longer employ you as a pastor.

We have also been advised of an apparent problem you have with the aboriginal community.

36. Mr Seupule-Feau makes the point that he received this letter by email 3 hours before the Board of Directors began their deliberations. He also highlights some differences between the two stand down letters.

37. While it is not clear from the material Mr Seupule-Feau has provided, I have assumed, for the purpose of these proceedings, that he is also complaining of the termination of his employment. If that is the allegation it would, if proved, be a breach of s 8(2)(c). If this assumption is incorrect, Mr Seupule-Feau should formally withdraw this part of his complaint within 7 days of receiving these reasons.

Seventh allegation –withholding of evidence

38. At a meeting on 23 July 2013 it is alleged that Pastor Geelan, Acting Chairman of the Board of Directors stated that, “I will neither confirm nor deny that the Moree allegations was received in writing or by hearsay”. According to Mr Seupule-Feau, this was a ‘deliberate concealing of evidence that denied him procedural fairness and is a breach of s 8(2)(c).

39. Whether or not the alleged statement constitutes a breach of procedural fairness is irrelevant to Mr Seupule-Feau’s complaint of race discrimination. While it is not immediately apparent to me, Mr Seupule-Feau may be able to persuade a Tribunal hearing this case that this allegation constitutes a detriment and, on the basis of evidence yet to be provided, that the information was ‘concealed’ because of his race.

Costs

40. The Church submitted that if the Tribunal grants any or all parts of its application, it should order Mr Seupule-Feau pay the Church’s costs in that or those respects. It was not necessary to determine the Church’s application for costs because the application for summary dismissal is refused.

Orders

1. Those parts of the complaint on which the Applicant no longer relies are dismissed.

2. The Respondent’s application for the remainder of the complaint to be summarily dismissed is refused.

3. The parties are directed to attend a mediation on 14 March 2016 at 10 am.

4. If the mediation does not resolve the complaint, the following timetable applies:

1. Applicant (Mr Seupule-Feau) to file and serve evidence including witness statements on which he intends to rely by 11 April 2016;

2. Respondent (the Church) to file and serve evidence including witness statement on which it intends to rely by 9 May 2016;

3. Matter listed for hearing for 2 days on 19 and 20 May 2016.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 24 February 2016