Smith v Westpac Banking Corporation

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…