Smith v Westpac Banking Corporation

[2013] NSWADT 77

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Smith v Westpac Banking Corporation [2013] NSWADT 77
Hearing dates:	3 April 2013
Decision date:	11 April 2013
Before:	Magistrate N Hennessy, Deputy President
Decision:	The applicant's application to amend the complaint is refused.
Catchwords:	DISCRIMINATION - application to amend complaint - conduct occurred more than six years ago - policy considerations when determining whether to amend complaint - prejudice to respondent - merits of the proposed amended complaint
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 Thompson v Rail Corporation NSW [2008] NSWADT 329
Category:	Interlocutory applications
Parties:	Alan Smith (Applicant) Westpac Banking Corporation (Respondent)
Representation:	Counsel M Seck (Respondent) G Reid (agent for Applicant) Allens (Respondent)
File Number(s):	121072

REASONS FOR DECISION

Introduction

1. Mr Smith has applied to amend his complaint of disability discrimination against his former employer, Westpac Banking Corporation. His current complaint is that Westpac refused to pay him his accrued sick leave from October 2006, when he left work, until July 2009 when his employment was terminated. I refuse to amend his complaint to add further conduct which occurred in 2006 for two main reasons. First, it is in the public interest for disputes to be resolved as quickly as possible. Secondly, the proposed amendment, as currently drafted, is misconceived.

Proposed amendment

1. Mr Smith was an employee of Westpac from 1979 until 2009. During 2006 he developed an acute anxiety disorder. He claims that his condition was caused by stressors in the workplace and he was unable to continue working. He applied for workers compensation but that application was initially refused. Later, it was granted and he began receiving workers compensation payments in June 2008.

1. The application for amendment to his discrimination complaint states that:

"The condition worsened by discrimination, victimization and staff mismanagement through:

(a)   Poor delegation of duties

(b)   Inappropriate transfers to unfamiliar roles and locations

(c)   Failure to provide training when requested

(d)   Workplace bullying and vilification

(e)   Improper personal approaches by manager

(f)   Diminution of working conditions

(g)   Failure to respond with assistance from Westpac Human Resources when requested

(h)   Denial of liability for applicant's obvious condition requiring case to be established by Applicant at great personal and economic expense

(i)   Failure to apply accrued sick leave appropriately when Applicant became too ill to work

(j)   Failure to address the Applicant's complaints in respect of the above." (Underlining added.)

1. Despite using the words "victimisation" and "vilification" Mr Smith is not alleging a breach of those provisions of the Anti-Discrimination Act 1977 (AD Act) which make victimisation and vilification unlawful. Rather, Mr Smith is relying on the provisions relating to discrimination on the ground of disability.

1. During the hearing Mr Smith's agent, Mr Reid, provided some details of the alleged conduct by Westpac employees. He said that Mr Smith reported his acute anxiety disorder to his supervisor, Mr Hurdis, in April 2006 but Mr Hurdis did nothing to support him. In particular Mr Hurdis did not contact the Human Resources Division even though Mr Smith had asked him to do so. Mr Reid noted that Mr Smith had been transferred to another location and that co-workers had laughed at him and called him a "dick head". On another occasion, when Mr Smith declined Mr Hurdis' invitation to have a drink, Mr Smith says Mr Hurdis' attitude to him changed. Further instances of discrimination were said to be that Westpac initially refused his workers compensation claim and failed to respond to his complaints.

No power to amend because complaint declined?

1. Mr Seck, representing Westpac, submitted that the Tribunal could not amend the complaint because the President of the Anti-Discrimination Board (ADB) has declined the subject matter of the proposed complaint. A person cannot lodge a complaint of discrimination directly with the Tribunal. He or she must first complain to the President of the ADB. The President determines whether or not to accept or decline a complaint: AD Act, s 89B. In this case the President accepted Mr Smith's complaint that Westpac had refused to pay him accrued sick leave. The President's Report to the Tribunal noted that:

Mr Smith confirmed with an officer of the Board on 15 March 2012 that he is proceeding with his complaint only in relation to the non-payment of accrued sick leave.

1. Mr Seck submitted that Mr Smith's decision to proceed with only part of his complaint implies that the remainder was either declined or withdrawn.

1. I am not satisfied that the President of the ADB formally declined any part of Mr Smith's complaint. There is no evidence of a decision to that effect. It follows that I do not accept Mr Seck's submission, which relied on Thompson v Rail Corporation NSW [2008] NSWADT 329 at [59], that because the proposed complaint has been declined, it cannot be added now.

1. By electing only to proceed with his complaint about accrued sick leave, Mr Smith impliedly withdrew those parts of his complaint relating to any other conduct. Withdrawing part of a complaint does not necessarily prevent Mr Smith from applying to amend his complaint to add allegations in the withdrawn part of the complaint.

Amendment power

1. The Tribunal has power to amend a complaint at any stage of the proceedings. Under s 103 of the AD Act:

A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

1. The discretion to amend a complaint is unfettered. In previous cases, the Tribunal has identified various factors which may be taken into account when considering whether to amend a complaint. In this case, because the events the subject of the proposed amendment took place more than six years ago, one significant question is whether it is fair to make Westpac defend such an old claim. A second consideration is the merits of the proposed complaint.

Age of the proposed complaint

1. While there is no statutory limitation period for the filing of discrimination complaints, the President has power to decline a complaint if "the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint": AD Act, s 89B(2)(b). The existence of that provision means that the Tribunal should be mindful of the age of the allegations when determining whether to amend a complaint.

1. The policy considerations against allowing old claims to go ahead, many of which were outlined by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552, include that:

(a)   the quality of justice may suffer because relevant evidence is likely to be lost;

(b)   people should be able to arrange their affairs and use their resources on the basis that claims can no longer be made against them; and

(c)   the public interest requires that disputes be settled as quickly as possible.

1. There are countervailing policy considerations in favour of allowing an old claim to proceed. I accept that Mr Smith will be prejudiced if the application to amend is not accepted. He will be denied the opportunity to make a further complaint of disability discrimination and to obtain any remedy that may be awarded if that complaint is substantiated. Two circumstances which have historically justified the acceptance of old claims include that the injury or damage did not manifest itself for some years or that the applicant was not aware of the cause of their injury or damage until new information is presented. Neither of those circumstances applies to Mr Smith.

1. As an explanation for the delay in making the complaint, Mr Smith says he suffers from acute panic attacks which are manifested in racing pulse, breathlessness, scrambling of thought and an impulse to flee to a quiet place. He says his diagnosis of 'acute anxiety disorder' and 'depression' is ongoing. For the purpose of these proceedings, I accept Mr Smith's evidence about his condition which was supported, to some extent, by an earlier medical report. I also accept that in October 2012 Mr Smith obtained some advice from Mr Reid, who is not a lawyer but who is said to have some prior experience in courtroom procedure.

1. I am satisfied that without assistance and advice, Mr Smith does not have the capacity to make complaints of discrimination or to prepare his case for hearing. He apparently had some assistance from staff at the Anti-Discrimination Board when he lodged the initial complaint. Mr Reid is now acting as his agent. Even though Mr Smith needs assistance that does not satisfy me that I should accept such an old complaint. Apart from his disability, there was nothing to prevent Mr Smith from lodging a complaint at the time. While his disability may justify some period of delay, six years is an inordinate delay. Mr Smith expressly told the President of the Anti-Discrimination Board that he did not wish to proceed with any part of his complaint other than that involving the non-payment of accrued sick leave. He may have had the opportunity to go ahead with a complaint about those matters but he did not include them as part of his complaint.

1. Mr Smith's agent, Mr Reid, submitted that there is little or no prejudice to Westpac if the complaint is amended because it was aware of Mr Smith's proposed amended complaints as early as November 2006. At that time Mr Smith provided a statement to a person investigating his workers compensation claim. The statement includes some of the allegations in Mr Smith's list of proposed amendments to his complaint. Mr Reid also submitted that Westpac obtained a statement from Mr Smith's supervisor, Mr Hurdis, in 2006. That statement was referred to in a medical report but was not in evidence. According to Mr Reid, Westpac was preparing for litigation at that time.

1. The dispute between Mr Smith and Westpac in 2006 related to his entitlement to workers compensation payments. Mr Smith did not complain of discrimination at the time. While there may be a statement from Mr Hurdis which addresses some of the factual issues Mr Smith proposes to raise, Westpac was not formally on notice of any discrimination complaint until Mr Smith lodged his complaint with the Anti-Discrimination Board in October 2011. Part of that complaint was subsequently withdrawn. Mr Reid submitted that Westpac has not previously responded to the issues raised by Mr Smith but there was no evidence that any formal complaint had been made which required a response.

1. Westpac would be prejudiced if it were required to respond to allegations which are now more than six years old. There is likely to be some written evidence in relation to the allegations, but inevitably memories will have faded and some documents will no longer be available. Westpac is entitled to arrange its affairs and use their resources on the assumption that a claim of discrimination cannot be made at this late stage. The public interest requires that disputes be settled as quickly as possible. Mr Smith is not able to satisfy me that there is any overriding circumstance which would justify the acceptance of such an old complaint.

1. As well as the public policy considerations relating to the acceptance of old complaints, the likelihood that the amended complaint will not be substantiated is a relevant consideration.

Merits of the proposed complaint

Legal requirements

1. I have assumed that the amended complaint would allege that Westpac has discriminated against Mr Smith on the ground of disability contrary to s 49D(2) of the AD Act:

It is unlawful for an employer to discriminate against an employee on the ground of disability:

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

(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

(d) by subjecting the employee to any other detriment.

1. What it means to "discriminate" on the ground of disability is set out in s 49B:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

What would Mr Smith would have to prove?

1. I understand Mr Smith to be alleging "direct" discrimination as defined in s 49B(1)(a). To substantiate a complaint of direct disability discrimination in breach of s 49D(2)(a) or (d), Mr Smith would have to prove that:

(1) he has a disability as defined in s 4 and s 49A;

(2) Westpac treated him unfavourably in relation to the terms and conditions of his employment or by subjecting him to a detriment;

(3) in the same circumstances, or in circumstances which are not materially different, a person without Mr Smith's disability would not have been treated in that way ("differential treatment"); and

(4) at least one of the reasons for being treated in that way was his disability ("causation").

Disability

1. Disability is defined in s 4 to include "a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment or that results in disturbed behaviour". It is likely that acute anxiety disorder would come within that definition.

Terms and conditions of employment or detriment

1. The treatment that Mr Smith identified as being the subject of the complaint relates to the terms and conditions of his employment. Mr Smith's agent, Mr Reid, attempted to flesh out some of the details of the allegations at the hearing. He referred to documents including a statement Mr Smith had made to a workers compensation insurance investigator in 2006 and an email to his workplace. Despite those references, the allegations have not been presented in enough detail for Westpac to respond. That is not fatal to the complaint at this stage. It is enough that the allegations have been made and that they relate to the terms and conditions of employment.

Differential treatment

1. The first component of the test for direct discrimination is the "differential treatment" test. The treatment afforded to Mr Smith must be compared with the treatment that would have been afforded to a person who did not have a disability. Mr Reid did not nominate a person whose treatment could be compared with the treatment Mr Smith was given. When there is no actual comparator, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that Westpac treated Mr Smith less favourably than a hypothetical person without a disability by determining that disability was a reason for that treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133.

Causation

1. To substantiate his complaint, at least one of the reasons for Westpac treating him in the way it did must be the fact that he had an acute anxiety disorder. That is not how Mr Smith has characterised his proposed complaint. His allegation is that his condition was "worsened by discrimination, victimization and staff mismanagement". He then gives ten examples of the conduct which led to the worsening of his acute anxiety disorder. Unlike eligibility for workers compensation, the extent to which conduct in the workplace caused his condition is not the issue in relation to complaints of disability discrimination. Mr Smith's proposed complaint is misconceived because he is alleging that the conduct exacerbated his condition rather than alleging that his condition was one of the reasons for the conduct.

1. Contrary to Mr Seck's submission, I do not consider Mr Smith's proposed amended complaint to be untenable. But I am satisfied that, as presently drafted, it is misconceived. That is one of the factors that has persuaded me to refuse the application for amendment.

Conclusion

1. I refuse to amend the complaint of disability discrimination in employment to include alleged conduct which took place in 2006. The main reason for the refusal is that Westpac would be unduly prejudiced if it were required to respond to allegations which are now more than six years old. In addition, the complaint as presently characterised, is misconceived.

Decision last updated: 11 April 2013