Soelberg and Commissioner Of Police and ORS
[2007] WASAT 214
•27 AUGUST 2007
SOELBERG and COMMISSIONER OF POLICE & ORS [2007] WASAT 214
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 214 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:146/2005 | 1 DECEMBER 2006 7 MARCH 2007 25 MAY 2007 | |
| Coram: | JUDGE J ECKERT (DEPUTY PRESIDENT) | 27/08/07 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Proper respondents decided. Respondents' application to strike out dismissed. | ||
| B | |||
| PDF Version |
| Parties: | JANELL SOELBERG (formerly van Drofelaar) COMMISSIONER OF POLICE DUDLEY GAUNT DONALD LETTS LINDSAY GARRATT BRUCE CLARK STEPHEN STINGEMORE DOMENIC STALTARI KARL O'CALLAGHAN MATTHEW RAY |
Catchwords: | Referral by Commissioner for Equal Opportunity Jurisdiction of Tribunal Proper respondents Original complaint to Commissioner for Equal Opportunity Variation of original complaint Issues best left for hearing |
Legislation: | Equal Opportunity Act 1984 (WA), s 4, s 8, s 10, s 11, s 24, s 35A, s 35B, s 35AC, s 37, s 66V, s 66W, s 67, s 83, s 84, s 89, s 90, s 90(2), s 91, s 93, s 93(1), s 93(1)(a), s 93(1)(b), s 107, s 107(3), s 161, s 163, s 163(2) State Administrative Tribunal Act 2004 (WA), s 5, s 36, s 36(1), s 36(2), s 38 |
Case References: | James and Sayers (Trustee for Sayers Family Trust) [2006] WASAT 332; (2006) 46 SR (WA) 241 Summerville and Department of Education [2006] WASAT 174 Winter and Commissioner of Western Australian Police Service [2006] WASAT 87 Zinni v Coventry Group Limited (Unreported, Equal Opportunity Tribunal of WA; 21 March 2002) |
Orders | 1. Matter numbers EOA 146 of 2005 and EOA 84 of 2006 be closed and merged with EOA 23 of 2007. ,2. The proper respondents are: ,(a) first respondent: Commissioner of Police; ,(b) second respondent: Sergeant Dudley Gaunt; ,(c) third respondent: Sergeant Donald Letts; ,(d) fourth respondent: Senior Sergeant Lindsay Garratt; ,(e) fifth respondent: First Class Constable Bruce Clark;,(f) sixth respondent: Inspector Stephen Stingemore;,(g) seventh respondent: Superintendent Domenic Staltari;,(h) eighth respondent: Commissioner Karl O'Callaghan; and,(i) ninth respondent: Sergeant Matthew Ray,3. The applicant' claims of unlawful discrimination under s 11, s 35B and s 66W of the Equal Opportunity Act 1984 (WA) and victimisation under s 67 of the Act are made by the applicant against the Commissioner of Police pursuant to s 163(2) of the Act.,4. The respondents' application to strike out part of the applicant's claim is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : SOELBERG and COMMISSIONER OF POLICE & ORS [2007] WASAT 214 MEMBER : JUDGE J ECKERT (DEPUTY PRESIDENT) HEARD : 1 DECEMBER 2006
- 7 MARCH 2007
25 MAY 2007
- EOA 84 of 2006
EOA 23 of 2007
- Applicant
AND
COMMISSIONER OF POLICE
First Respondent
DUDLEY GAUNT
Second Respondent
DONALD LETTS
Third Respondent
LINDSAY GARRATT
Fourth Respondent
BRUCE CLARK
Fifth Respondent
- STEPHEN STINGEMORE
Sixth Respondent
DOMENIC STALTARI
Seventh Respondent
KARL O'CALLAGHAN
Eighth Respondent
MATTHEW RAY
Ninth Respondent
Catchwords:
Referral by Commissioner for Equal Opportunity Jurisdiction of Tribunal Proper respondents Original complaint to Commissioner for Equal Opportunity Variation of original complaint Issues best left for hearing
Legislation:
Equal Opportunity Act 1984 (WA), s 4, s 8, s 10, s 11, s 24, s 35A, s 35B, s 35AC, s 37, s 66V, s 66W, s 67, s 83, s 84, s 89, s 90, s 90(2), s 91, s 93, s 93(1), s 93(1)(a), s 93(1)(b), s 107, s 107(3), s 161, s 163, s 163(2)
State Administrative Tribunal Act 2004 (WA), s 5, s 36, s 36(1), s 36(2), s 38
Result:
Proper respondents decided. Respondents' application to strike out dismissed.
Category: B
Representation:
Counsel:
Applicant : Ms J Kenny
First Respondent : Ms L Eddy
Second Respondent : Ms L Eddy
Third Respondent : Ms L Eddy
- Fourth Respondent : Ms L Eddy
Fifth Respondent : Ms L Eddy
Sixth Respondent : Ms L Eddy
Seventh Respondent : Ms L Eddy
Eighth Respondent : Ms L Eddy
Ninth Respondent : Ms L Eddy
Solicitors:
Applicant : Dwyer Durack
First Respondent : State Solicitor's Office
Second Respondent : State Solicitor's Office
Third Respondent : State Solicitor's Office
Fourth Respondent : State Solicitor's Office
Fifth Respondent : State Solicitor's Office
Sixth Respondent : State Solicitor's Office
Seventh Respondent : State Solicitor's Office
Eighth Respondent : State Solicitor's Office
Ninth Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
James and Sayers (Trustee for Sayers Family Trust) [2006] WASAT 332; (2006) 46 SR (WA) 241
Summerville and Department of Education [2006] WASAT 174
Winter and Commissioner of Western Australian Police Service [2006] WASAT 87
Zinni v Coventry Group Limited (Unreported, Equal Opportunity Tribunal of WA; 21 March 2002)
(Page 4)
Summary of Tribunal's decision
1 The applicant lodged a complaint with the Commissioner for Equal Opportunity alleging unlawful discrimination on the grounds of pregnancy, age and sex and victimisation by a number of police officers. Subsequently, she also lodged a complaint of unlawful discrimination on the ground of family responsibility. There was some confusion regarding the grounds on which the applicant complained that she was unlawfully discriminated against and victimised, and the facts supporting her allegations; and who she alleged unlawfully discriminated against her and victimised her.
2 The Tribunal decided that the Commissioner of Police, Sergeant Dudley Gaunt, Sergeant Letts, Senior Sergeant Garratt, First Class Constable Clark, Inspector Stephen Stingemore, Superintendent Domenic Staltari, Commissioner Karl O'Callaghan and Sergeant Matthew Ray were the proper respondents to these proceedings. The Tribunal found that the Commissioner for Equal Opportunity had referred to the Tribunal the Commissioner of Police for alleged breaches of s 11, s 35B and s 67 of the Act and each of the other respondents named above for an alleged breach of s 67 of the Act and that those allegations and those respondents were properly before the Tribunal.
3 The Tribunal also heard submissions regarding an application from the respondents for an order striking out part of the applicant's claim against some of the respondents on the basis that the facts as set out in the applicant's complaint to the Commissioner for Equal Opportunity (including a detailed statement of allegations filed by the applicant with the Commissioner for Equal Opportunity) and the applicant's statement of issues, facts and contentions were not capable of supporting the alleged breaches of the Equal Opportunity Act 1984 (WA). The respondents also argued that some of the allegations had not been referred to the Tribunal by the Commissioner for Equal Opportunity and that the material facts did not support the allegations of unlawful discrimination. The respondents also argued that the pleadings and documents filed by the applicant did not disclose that the conduct that is said to have given rise to the complaints of unlawful discrimination was the substantial or dominant reason for doing the act which is said to constitute victimisation. On these grounds the respondents sought to argue that the applicant's claim in part was outside of the jurisdiction of the Tribunal.
(Page 5)
4 The Tribunal held that these issues were matters for the final hearing and on that basis dismissed the respondents' application to strike out part of the applicant's claim.
Background
5 The applicant, Janell Soelberg, is a police constable who has been in the Police Service since 1999. In January 2003, she notified her senior officer that she was pregnant and would be taking parental leave and that after the birth of her child she wished to return to the Police Service on a part-time basis.
6 Ms Soelberg claims that she was unlawfully discriminated against on the grounds of sex, pregnancy, family responsibility and age in employment and that she was victimised by various police officers and therefore by the Commissioner of Police whom she asserts is vicariously liable for the officers' actions. There have been a number of preliminary hearings with the aim of identifying the proper respondents to the allegations in these proceedings.
7 On 24 May 2004, Ms Soelberg lodged a complaint with the Commissioner for Equal Opportunity (EO Commissioner) against the Western Australian Police Service, Sergeant Gaunt, Senior Sergeant Garratt and Sergeant Letts alleging unlawful discrimination under the Equal Opportunity Act 1984 (WA) (the Act) on the grounds of age, sex and pregnancy and victimisation in the area of employment (first complaint). In her complaint, Ms Soelberg cites three particular incidents that she says give rise to the unlawful discrimination and victimisation. The EO Commissioner investigated the complaints and attempted to conciliate them without success. On 2 September 2005, the EO Commissioner referred the "complaint" under s 93(1)(b) of the Act to this Tribunal (the first referral).
8 Although the applicant had lodged the first complaint with the EO Commissioner on 24 May 2004 setting out allegations against three officers in particular, on 17 September 2004 she gave the EO Commissioner a detailed "statement of complaint and circumstances" (the statement) comprising over 51 pages. The EO Commissioner sent the statement to the Commissioner of Police on 22 February 2005, with a covering letter that referred to the statement as setting out "the full details" of Ms Soelberg's complaint. It appears that a copy of the first complaint was not sent to the Commissioner of Police. In the statement, the applicant alleges unlawful discrimination on the grounds of sex, pregnancy and age and victimisation under the Act by ten police officers, a member of the health and welfare branch
(Page 6)
- of Police Services and the "WA Police Services" arising from a substantial number of events that she said took place beginning on 20 January 2003 and continuing as at the time of preparing the statement. Despite the limited allegations in the first complaint, the applicant (and possibly the Commissioner of Police) thought that all of the allegations against all of the people named in the statement, arising from all of the incidents set out in the statement, were before the Tribunal for determination. The applicant believed that she had made a valid complaint against all of the above respondents and that all of the complaints referred to in the statement had been referred to the Tribunal by the Commissioner. In directions hearings the Tribunal expressed a contrary view and subsequently oral and written submissions were made. Meanwhile, the parties were seeking clarification of the first referral from the EO Commissioner.
9 The first referral cited "the Police Service" as the respondent; the front cover of the EO Commissioner's report shows the respondent as "WA Police Service". The first referral did not deal with the complaints of victimisation made in the first complaint against Sergeant Gaunt, Senior Sergeant Garratt or Sergeant Letts. The report forwarded by the EO Commissioner to the Tribunal did not include copies of any correspondence addressed to those three individual officers advising them of the complaint or seeking their views regarding Ms Soelberg's allegations. However, the EO Commissioner's report included the statement.
10 On 1 December 2006, in a preliminary hearing before the Tribunal, counsel for the applicant and the Commissioner of Police advised that it was their clients' understanding that the statement constituted the complaint and the referral for the purposes of these proceedings; counsel for the Commissioner of Police advised that the statement comprised the Commissioner's first advice and entire knowledge at that time of Ms Soelberg's complaint.
11 The statement raised grounds of discrimination against potential respondents that had not been included in the first complaint. There is no indication that the EO Commissioner treated the statement as a new complaint; there is no indication that the EO Commissioner corresponded directly with any of the additional respondents named in the statement. Although the applicant and the Commissioner of Police treated the statement as constituting the complaint before the EO Commissioner and referral before the Tribunal, the EO Commissioner was quite specific in her referral
(Page 7)
- to the Tribunal that she was only referring the allegations contained in the first complaint and as against the "Police Service" only.
12 In the statement, Ms Soelberg made the following allegations of unlawful discrimination and victimisation against the following officers (the number shows the number of separate allegations against each officer arising from separate alleged incidents):
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13 In the statement, Ms Soelberg also alleged that the "Western Australian Police Service" unlawfully discriminated against her on the grounds of pregnancy, sex and age in employment, and, through the conduct of senior officers, victimised her. Ms Soelberg also made allegations in the statement against Ms Julie Vlahov, a psychologist with health and welfare branch of the Police Service, of unlawful discrimination on the grounds of sex and pregnancy.
(Page 8)
14 On 31 July 2006, Ms Soelberg lodged a further complaint with the Commissioner (second complaint). In that complaint, Ms Soelberg made allegations of unlawful discrimination and victimisation against:
s 8/s 11 |
s 10/s 11 |
s 66V/s 66W |
s 35A/s 35B |
s 67 | |
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16 On 14 December 2006, the EO Commissioner referred the second complaint to the Tribunal (second referral) as follows:
(Page 9)
- "Ms Soelberg's complaint is brought against the Commissioner of Police, Western Australia Police (as the employer) and alleges discrimination on the ground of family responsibility in the area of employment and also victimisation (additionally naming the Commissioner of Police himself)."
17 The cover sheet of the EO Commissioner's report to the second referral cited the "Commissioner of Police, Western Australia Police" as the respondent, which the Tribunal takes to mean a reference to the Commissioner of Police in his corporate capacity. Therefore, after receipt of the second referral the following matters were properly before the Tribunal:
• Commissioner of Police in his corporate capacity - allegations of unlawful discrimination in employment on the grounds of sex, pregnancy, family responsibility and age discrimination, and of victimisation; and
• Commissioner of Police personally - allegation of victimisation (based on a generous interpretation of the letter constituting part of the second referral).
18 After the second referral, once again, it became clear in directions hearings that there was some confusion as to what allegations of unlawful conduct against which respondents were validly before the Tribunal. This was also reflected in the various documents filed in the Tribunal, including submissions and statements of issues, facts and contentions which set out variously ten and nine named respondents to the proceedings.
19 The applicant, through her solicitors, sought clarification from the EO Commissioner. Ultimately, on 24 April 2007, the EO Commissioner wrote to the Executive Officer of the Tribunal advising that on 2 September 2005 and on 14 December 2006 she had referred complaints by Ms Soelberg "against the WA Police" to the Tribunal. Quite clearly, the EO Commissioner held the view that she had not referred to the Tribunal any complaints against individual officers.
20 In that letter (the third referral) the EO Commissioner advised:
"On March 12, 2007 I received a request from Counsel acting for Ms Soelberg to review my decision about referring eleven named individuals.
(Page 10)
- I have now reviewed the complaint files and am referring the following individuals to the Tribunal:
Sergeant Dudley GAUNT: Discrimination on the grounds of Pregnancy, Sex, Age and Victimisation;
Sergeant Donald LETTS: Discrimination on the grounds of Pregnancy, Sex and Victimisation;
Senior Sergeant Lindsay GARRATT: Discrimination on the grounds of Pregnancy, Sex, Age, and Victimisation;
First Class Constable Bruce CLARK: Discrimination on the grounds of Victimisation;
Ms Julie VLAHOV: Discrimination on the grounds of sex and pregnancy;
Inspector Stephen STINGEMORE: Discrimination on the grounds of Pregnancy, Sex, Age and Victimisation;
Superintendent Dominic STALTARI: Discrimination on the grounds of Pregnancy, Sex, Age and Victimisation;
Sergeant Nicholas SKINNER: Discrimination on the grounds of Pregnancy, Sex, Age and Victimisation;
Police Commissioner O'CALLAGHAN: Discrimination on the grounds of Pregnancy, Sex, Age and Victimisation;
Sergeant Mathew RAY: Discrimination on the ground of Victimisation; and
Senior Constable Darren ANSTEE: Discrimination on the ground of Victimisation.
I have investigated these complaints and am referring them as I am of the view that these matters are unlikely to be resolved through conciliation.
Accordingly I ask that my previous referrals of this matter be amended, and these respondents are referred to the State Administrative Tribunal under section 93( 1 )( a) of the Equal Opportunity Act 1984."
(Page 11)
21 This decision and reasons therefore deal with the preliminary issue of who are the proper respondents to these proceedings before the Tribunal, being EOA 146 of 2005, EOA 84 of 2006 and EOA 23 of 2007 relating to the first, second and third referrals respectively.
22 These reasons also deal with an application by the respondent to strike out part of the applicant's claim on the grounds that some of the allegations had not been referred to the Tribunal by the EO Commissioner and that some of the allegations are not capable, "on the facts pleaded", of constituting a breach of the Act. Further, that the facts do not disclose that the alleged unlawful discriminatory conduct was the substantial or dominant reason for the alleged victimisation. On these grounds the respondents argue that substantial parts of the applicant's claim are outside of the jurisdiction of the Tribunal.
23 The parties filed written submissions and the Tribunal heard oral submissions with respect to the two preliminary matters before the Tribunal.
Who are the proper respondents?
24 The parties have asked the Tribunal to rule on who are the proper respondents to these proceedings and what allegations of unlawful discrimination are before the Tribunal.
25 Section 4 of the Act defines complaint. Section 83 deals with the making of a complaint to the EO Commissioner and s 84 provides that the EO Commissioner shall investigate each complaint lodged with her. Section 89 allows the EO Commissioner to dismiss some complaints and s 90 and s 93 relate to the referral of complaints by the EO Commissioner to the Tribunal. Section 91 deals with resolution of complaints by conciliation. Section 107 provides that if a matter is referred by the EO Commissioner the Tribunal must hold an inquiry into "each complaint or matter referred to it".
26 This Tribunal has the power to determine whether or not a complaint is within into jurisdiction (Zinni v Coventry Group Limited (Unreported, Equal Opportunity Tribunal of WA; 21 March 2002)). In each case, the Tribunal decides, as a matter of fact, what the EO Commissioner has referred to it and determines whether a matter is within its jurisdiction; it does not set the limits of its jurisdiction. Within that context, as the Act is beneficial legislation, the Tribunal would interpret this referral liberally for the benefit of the applicant. The Tribunal should give it a broad
(Page 12)
- interpretation. But the Tribunal cannot give it an interpretation that includes a matter that has clearly not been referred to the Tribunal.
27 In Winter and Commissioner of Western Australian Police Service [2006] WASAT 87 this Tribunal made it clear that this Tribunal has no jurisdiction to hear allegations that are not in the original complaint lodged with the EO Commissioner, in particular see [36],[49] and [51].
28 In Summerville and Department of Education [2006] WASAT 174 the President, at [11], confirmed this approach. He held that the complaint referred to the Tribunal must be the same complaint as that made to the EO Commissioner by the complainant and investigated by the EO Commissioner. The Tribunal only has jurisdiction to deal with those issues originally raised in the complaint (see also James and Sayers (Trustee for Sayers Family Trust) [2006] WASAT 332; (2006) 46 SR (WA) 241).
29 Under s 107(3) of the Act, the jurisdiction of this Tribunal to hear complaints of discrimination under the Act is triggered by the referral to it by the EO Commissioner. The complainant cannot itself bring matters before the Tribunal. The Tribunal is required to hold an enquiry into each complaint or matter referred to it by the EO Commissioner.
30 These proceedings initially arose from the first referral made pursuant to s 93(1)(b) of the Act. Section 93(1) provides:
"93. Reference of complaints to the Tribunal
(1) Without prejudice to the Commissioner's powers under section 89, where the Commissioner -
(a) is of the opinion that a complaint cannot be resolved by conciliation;
(b) has endeavoured to resolve a complaint by conciliation but has not been successful in such endeavours; or
(c) is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal,
the Commissioner shall refer the complaint to the Tribunal together with a report relating to the investigation made by the Commissioner into the complaint."
(Page 13)
31 The matters initially before the Tribunal pursuant to the first referral are those allegations referred to in the first complaint. The EO Commissioner's report which accompanies the referral is a "report relating to the investigation made by the Commissioner into the complaint." The referral through the report cannot include new or different allegations not included in the complaint. The referral is limited in its scope to the matters the subject of the "complaint".
32 This issue has been determined by the Tribunal in James, in Winter and in Summerville and it is clear, following those decisions, that what is before this Tribunal is the EO Commissioner's referral letter together with the complaint as varied by the referral letter. The balance of the Commissioner's report of investigation into the complaint and any other materials put before the Commissioner by the parties and sent to this Tribunal is evidence before the Tribunal. This approach has been consistently followed by this Tribunal.
33 Therefore, in these proceedings, what was originally before the Tribunal pursuant to the first reference was a "complaint against the Police Service alleging unlawful discrimination on the ground of sex, pregnancy and age discrimination and victimisation by the Police Service in the area of employment."
34 The applicant is of the view that she had lodged a second complaint with the EO Commissioner on 17 September 2004 when she sent the statement to the EO Commissioner. From what is before the Tribunal, it is clear that at that time the EO Commissioner did not treat the statement as constituting a new complaint under the Act as she does not appear to have investigated the new allegations or incidents included in the statement, nor attempted to conciliate them and she did not refer them to the Tribunal.
35 Pursuant to the second referral, the Tribunal also had before it allegations of unlawful discrimination on the grounds of family responsibility against the Commissioner of Police in his corporate and personal capacity. The EO Commissioner did not include a report with the third referral. However, it appears to be based on the allegations in the statement and as the third referral sought to amend the first and second referrals, the Tribunal accepts that the reports accompanying those referrals, including the statement, form part of the report (and therefore the evidence) ultimately before the Tribunal.
(Page 14)
36 Section 161 of the Act provides that where an employee or agent of a person does an act in connection with their employment that is unlawful under the Act, then the employer is vicariously liable for that conduct. There is a limited range of unlawful conduct under the Act where the employee is personally liable. Allegations of victimisation under s 67 of the Act are an example of conduct where an employee might be personally liable for their conduct done in the course of their employment and the employer might also be vicariously liable for that conduct. In most other situations of unlawful conduct in the course of employment, the employer is liable and not the employee personally. This is clear from the wording of the relevant sections in the Act which make discriminatory conduct in employment and the workplace unlawful (see for example s 11, s 24, s 35AC, s 37).
37 Under s 163(2) of the Act, a reference to an employer under the Act is to be construed in relation to employment in the Police Service as a reference to the Commissioner of Police.
38 Therefore, in these proceedings, the proper respondent for allegations of unlawful discrimination on the grounds of sex, pregnancy, age and family responsibility and for victimisation is the Commissioner of Police in his corporate capacity; individual officers may also be proper respondents in allegations of victimisation under s 67 of the Act. Despite the parties' view of what may have been referred by the EO Commissioner to the Tribunal on 2 September 2005 it is clear that the only matters before the Tribunal pursuant to the first referral are allegations of unlawful discrimination on the grounds of sex, pregnancy, age and victimisation in the area of employment arising from the three incidents detailed in Ms Soelberg's complaint.
39 Although this Tribunal's jurisdiction is activated by a referral of a complaint by the EO Commissioner to the Tribunal, it cannot exercise jurisdiction that it does not have either under the Act or the State Administrative Tribunal Act 2004 (WA)(SAT Act). The Tribunal can not therefore consider allegations of unlawful discrimination by individuals where the Act provides for the liability of the employer, and relieves the employee of personal liability. Under the Act (s 163) the Commissioner of Police is liable for unlawful discrimination by members of the WA Police Service under s 11 (pregnancy, sex as referred to in s 10), s 66W (as referred to in s 66V age) and s 35B (as referred to in s 35A family responsibility). Individual officers and the Commissioner of Police are potentially liable for allegations of victimisation under s 67.
(Page 15)
40 The Tribunal notes that the first referral was made under s 93(1)(b) of the Act and the second and third referrals were made under s 93(1)(a) of the Act. Ultimately this distinction should have little bearing on the proceedings. The Tribunal did not receive any submissions on whether or not the Commissioner could amend her earlier referrals and for the purposes of these proceedings the Tribunal has treated the third referral under s 93(1)(a) of the Act as incorporating the first and second referrals. The Tribunal has made an order, for administrative convenience and effective management of the proceedings, combining all three referrals into one matter before the Tribunal and all documents filed with and held by the Tribunal for all three matters from the documents for the one new matter, being EOA 23 of 2007. The relevant allegations are as set out in the applicants' combined statement of issues, facts and contentions filed in EOA 84 of 2006.
41 Based on the three referrals by the EO Commissioner to the Tribunal, the Tribunal finds that the following respondents are subject to the following allegations of unlawful discrimination or victimisation arising from a number of alleged incidents as detailed by Ms Soelberg in her statement of issues, facts and contentions:
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42 At no time in these proceedings has Ms Soelberg made an allegation of victimisation against Ms Vlahov and she is therefore not a proper respondent to these proceedings; in any event, the applicant advised that she did not wish to pursue her application with respect to Ms Vlahov personally. The Tribunal made an order on 25 May 2007 that Ms Vlahov is not a party to these proceedings.
43 Although in the second complaint Ms Soelberg made allegations of victimisation against Ms Huggins and Ms Jones, those allegations have not been referred by the EO Commissioner and are therefore not validly before this Tribunal. Senior Constable Anstee and Sergeant Skinner would have been proper respondents as referred by the EO Commissioner to the Tribunal, but in her written submissions to the Tribunal dated 7 March 2007 and in subsequent oral submissions, the applicant, through her counsel, advised the Tribunal that they were not "proper respondents to these proceedings" and that she is not pursuing her complaint against them. Accordingly, despite the Commissioner's referral of both of those officers to the Tribunal, on the grounds of alleged victimisation, the Tribunal has not named them as respondents and on 27 May 2007 it made orders in those terms.
44 On 20 July 2006, this Tribunal ordered that the Commissioner of Police in his corporate capacity is a proper respondent to these proceedings, but for the sake of completeness the Tribunal make that order again. In the orders that follow, the Tribunal has listed the respondents in the sequence adopted by the parties in the documents they have filed with the Tribunal.
45 Passing consideration must also be given to s 36 and s 38 of the SAT Act. Section 36 provides that:
"(1) A person is a party to a proceeding before the Tribunal if the person is —
(a) the applicant;
- (b) a person joined under section 38 as a party to the proceeding;
- (c) a person intervening in the proceeding; or
(d) specified by this Act or the enabling Act to be a party to the proceeding.
- (2) If the proceeding is in the Tribunal’s original jurisdiction, anyone else in respect of whom a decision of the Tribunal is sought is also a party."
46 It would therefore appear to follow, that as the applicant seeks a decision against various police officers, they should also be a party pursuant to s 36(2). However, s 36(2) is subject to the fundamental jurisdictional issue arising under the Act. Section 5 of the SAT Act provides that if there is any inconsistency between the SAT Act and an enabling Act, the enabling Act prevails. On that basis, s 36 cannot override the requirements of the Act that in order to validly be a party to proceedings under the Act, both the complaint and the party must be referred to the Tribunal by the EO Commissioner so that the Tribunal's jurisdiction is triggered.
Respondents' application to strike out
47 The respondents made an application to the Tribunal to strike out parts of the applicant's statement of issues, facts and contentions on the grounds that various allegations were outside of the jurisdiction of the Tribunal to deal with because:
1. the allegation or facts are either different to what was set out in the complaint to the EO Commissioner or not included in the first complaint;
2. the allegations of fact are not capable of supporting a breach of the Act;
3. there is no evidence that the conduct that the applicant claims is a breach of the Act was the substantial or dominant reason for doing the act which is said to constitute victimisation;
4. the alleged victimisation did not constitute a detriment that in the circumstances was substantial as required by s 67 of the Act; and
(Page 18)
- 5. there is no evidence that the respondents intended to cause a detriment or that the applicant was treated less favourably.
48 Whilst it is necessary for an applicant to provide adequate detail of the facts supporting its allegations before the Tribunal, so that a respondent knows the case against it and what it is required to answer, the applicant is not required to set out all of its evidence in its statement of issues, facts and contentions. Neither, in the Tribunal's view, is the applicant required to set out all of its evidence in its complaint to the EO Commissioner. In the Tribunal's view, there is sufficient factual detail before the Tribunal to enable the respondents to respond to the allegations against them. Issues such as whether or not a particular respondent had the requisite knowledge, for the purposes of s 67 of the Act, are matters for the substantive hearing.
49 These issues and details are matters of evidence. They will form part of the evidence in chief provided in witness statements or orally and provided in oral cross-examination. It would be unfair, particularly in a Tribunal such as this, to dismiss part or all of an applicant's claim on the grounds that the facts pleaded do not support a breach of the Act when the pleadings indicate that there will be evidence bought at the hearing to support what the applicant alleges are the facts. In this case, the applicant, through her counsel, also submits that this will be the case.
50 In the Tribunal's view, the facts pleaded raise serious questions which are properly addressed at the final hearing of this matter. The submissions made by the respondents refer in part to different facts to those alleged by the applicant or they place a different interpretation on factual matters alleged by the applicant. In those circumstances in particular, it is up to the Tribunal to decide which facts it accepts and then to apply those facts to the relevant tests and questions of law provided by the Act.
51 The respondents argue that the discriminatory conduct that is complained of must have been a substantial or dominant reason for the doing of the act which is said to constitute victimisation. This is a question of fact that should properly be left to the Tribunal to decide after the substantive hearing. The respondents say that the applicant's pleadings do not disclose whether any of the respondents knew, prior to 16 February 2004, that the applicant intended to make a complaint under the Act and that therefore evidence and complaints after that date should be disallowed by the Tribunal at this point of the proceedings. In the Tribunal's view, this is a question for hearing and the applicant is
(Page 19)
- entitled to not only bring her evidence in full regarding it but to cross-examine the respondents and their witnesses. It is then on that basis that the Tribunal makes that decision as to whether or not the requirements of s 67 have been met.
52 This is not to say that there will never be a situation where the Tribunal might dismiss an application because the facts pleaded do not disclose a cause of action. There will be cases where the Tribunal will be able to deal with questions of fact and evidence based on written submissions prior to a substantive hearing. This is particularly so where a claim is entirely lacking in substance or so misconceived that it cannot, in the most generous of interpretations, support a claim of discrimination or victimisation under the Act. But this is not such a case.
53 The applicant's view of the evidence is adequate to be construed as grounding a possible breach of the Act and it is a matter for this Tribunal, after hearing all of the evidence, weighing it and concluding on the credibility of each witness, to decide whether the evidence does in fact support the applicant's contentions of unlawful conduct and victimisation.
54 The respondents' strike-out application is therefore dismissed.
Orders
1. Matter numbers EOA 146 of 2005 and EOA 84 of 2006 be closed and merged with EOA 23 of 2007.
2. The proper respondents are:
- (a) first respondent: Commissioner of Police;
(b) second respondent: Sergeant Dudley Gaunt;
(c) third respondent: Sergeant Donald Letts;
(d) fourth respondent: Senior Sergeant Lindsay Garratt;
(e) fifth respondent: First Class Constable Bruce Clark;
(f) sixth respondent: Inspector Stephen Stingemore;
(g) seventh respondent: Superintendent Domenic Staltari;
(h) eighth respondent: Commissioner Karl O'Callaghan; and
(i) ninth respondent Sergeant Matthew Ray.
- 3. The applicant's claims of unlawful discrimination under s 11, s 35B and s 66W of the Equal Opportunity Act 1984 (WA) and victimisation under s 67 of the Act are made by the applicant
- against the Commissioner of Police pursuant to s 163(2) of the Act.
4. The respondents' application to strike out part of the applicant's claim is dismissed.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT
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