Soelberg (Formerly Van Droffelaar) and Commissioner Of Police
[2008] WASAT 305
•23 DECEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: SOELBERG (FORMERLY VAN DROFFELAAR) and COMMISSIONER OF POLICE [2008] WASAT 305
MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MS K LANG (SESSIONAL MEMBER)
PROF C MULVEY (SESSIONAL MEMBER)
HEARD: 11 - 14 FEBRUARY 2008,
18 - 21 FEBRUARY 2008,
25 FEBRUARY 2008
WRITTEN CLOSING SUBMISSIONS FILED:
APPLICANT: 14 APRIL 2008
RESPONDENT: 2 MAY 2008
DELIVERED : 23 DECEMBER 2008
FILE NO/S: EOA 23 of 2007
BETWEEN: JANELL SOELBERG (FORMERLY VAN DROFFELAAR)
Applicant
AND
COMMISSIONER OF POLICE
First Respondent
DONALD LETTS
Second Respondent
Catchwords:
Police constable Discrimination alleged in workplace on the grounds of pregnancy, gender and family responsibilities Allegations of victimisation Inference of discrimination Credibility Insufficient evidence Jurisdiction Referral of complaints Costs s 88 costs of the Tribunal Causative link Causative link Comparator
Legislation:
Equal Opportunity Act 1984 (WA), s 3, s 4(1), s 5, s 8, s 10, s 11, s 35A, s 35B, s 67, s 93(1)(b), s 161, s 163, Pt II, Pt III, Pt IIIA, Pt IV
State Administrative Tribunal Act 2004 (WA), s 9, s 32, s 87
Result:
The Tribunal dismissed the applicant's allegations of discrimination and victimisation
Category: B
Representation:
Counsel:
Applicant: Mr G Stubbs
First Respondent : Ms L Eddy with Ms Cole
Second Respondent : Ms L Eddy
Solicitors:
Applicant: Dwyer Durack
First Respondent : State Solicitor's Office
Second Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Briginshaw v Briginshaw (1938) 60 CLR 336
Carr v Baker (1936) 36 SR (NSW) 301
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Cocks MacNish v Biundo [2004] WASCA 194
Commonwealth v Human Rights and Equal Opportunity Commission (Dopking No 1) (1993) 46 FCR 191
Dowling v Bowie (1952) 86 CLR 136
Frost v WA Police Service [2005] WASAT 150
G v H (1994) 124 ALR 353
Garity v Commonwealth Bank [1999] HREOCA 92-966
Ghockson v Commissioner of Police (1996) EOC 92-798
Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261
Haines v Leves (1987) 8 NSWLR 442
Hautlieu Pty Ltd t/as Russell Pathology v McIntosh [2000] WASCA 146
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 118 ALR 80
IW v City of Perth (1997) 191 CLR 1
Jamal v Secretary, Department of Health (1988) 14 NSWLR 252
Ministry of Defence v Jeremiah [1980] QB 87
Nominal Defendants v Owens (1978) 22 ALR 128
O'Callaghan v Loder [1983] 3 NSWLR 89
Purvis v State of NSW (Department of Education and Training) (2003) 217 CLR 92
Regan v Kalgoorlie Taxi Car Owners Association Incorporated (1996) EOC 92-844
Sharma v Legal Aid (Qld) (2002) 115 IR 91
Soelberg and Commissioner of Police [2007] WASAT 214
State of Victoria v Macedonian Teachers’ Association of Victoria Inc (1991) 91 FCR 47
Summerville and Department of Education [2006] WASAT 174
Waters v Public Transport Corporation (1991) 173 CLR 349
Williams and Commissioner of Police [2005] WASAT 349
Winter and Commissioner of the Western Australian Police Service [2006] WASAT 87
Zinni v Coventry Group Ltd (unreported, EOT of WA, 21 March 2002)
REASONS FOR DECISION OF THE TRIBUNAL:
Headings Index
Heading Page no.
Summary of Tribunal's decision 6
Background 7
The final allegations 20
Ms Soelberg's claims 22
The relevant legislation 23
The relevant legal principles 31
General principles 31
Legal principles relating to victimisation 33
Law relating to the drawing of inferences 34
The comparator 35
The first allegation 35
The second allegation 36
Facts 37
Ms Soelberg's credibility 41
Respondents' submissions 41
Tribunal's findings on Ms Soelberg's credibility 42
First allegation: pregnancy and sex discrimination 42
Ms Soelberg's summary of the evidence 43Ms Soelberg's evidence 43
Sergeant Gaunt's evidence 46
Inspector Dale's evidence 48
Senior Sergeant Garratt's evidence 49
Expert report 51
Dr McCarthy's evidence 52
Dr Tannenbaum's evidence 52
Ms Soelberg's submissions 54
Commissioner's assessment of evidence 62
Tribunal's findings - first allegation 65
Second allegation: sex and family responsibility discrimination 68
Evidence 69
Ms Soelberg's evidence 69
Ms Anderson's evidence 71
Senior Sergeant Garratt's evidence 72
Expert report 72
Ms Soelberg's submissions 73
Jurisdictional issue 75
Commissioner's submissions 80
Discrimination by ceasing contact and support 80
Placing Ms Soelberg on parental and annual leave 81
Treating the applicant less favourably 83
Failing to act in an appropriate manner 83
Tribunal's findings - second allegation 84
Third allegation: victimisation by Mr Letts 86
The Letts report 86
Ms Soelberg's evidence 89
Ms Soelberg's submissions on Mr Letts' evidence 90
Ms Soelberg's submissions 93
Mr Letts' summary of the evidence 94
Tribunal's findings – third allegation 96
Vicarious liability 97
Orders 98
Summary of Tribunal's decision
The applicant in this case, Ms Janell Louise Soelberg, (formerly Van Droffelaar) was employed by the first respondent, the Commissioner of Police, as a police constable from 1999 to 2007. She complained under the Equal Opportunity Act1984 (WA) that after she became pregnant and notified her officer in charge of her pregnancy in January 2003 her employer treated her less favourably than others in the workplace. Ms Soelberg alleged that the Commissioner of Police (acting through Ms Soelberg's superior officers) subjected her to detrimental treatment due to her pregnancy, gender and family responsibilities, such as duty restrictions with loss of shift penalties and by placing her on parental leave when she was sick.
Ms Soelberg also claimed that the second respondent (Mr Donald Letts, a retired sergeant) victimised her by writing a damaging and untruthful report about her after becoming aware that she may make an equal opportunity complaint.
Ms Soelberg claimed that her health deteriorated as a consequence of this treatment and she sustained a permanent psychiatric injury.She sought an apology, removal of reports and allegations from her personnel file, damages for loss of earnings and future medical expenses, and retraining. She also sought the maximum allowable award of damages under the Equal Opportunity Act 1984 (WA).
The Tribunal held that even at its highest possible interpretation, Ms Soelberg's evidence was not sufficient to prove her claims. Ms Soelberg failed to prove that the Commissioner of Police, through his officers, treated her less favourably than any officer in the same or similar circumstances. Ms Soelberg was unable to prove any causal connection between the grounds of discrimination alleged and the decisions or acts of which she complained. The Tribunal also held that it did not have jurisdiction to hear some of the allegations as they were not referred to it by the Commissioner for Equal Opportunity.
Ms Soelberg also failed to prove that she was victimised by the second respondent, Mr Letts. There was no evidence that Mr Letts intended to cause Ms Soelberg detriment or that there was any causative link between his report on Ms Soelberg and Ms Soelberg's (then) potential equal opportunity complaint.
There was a long history to the proceedings and Ms Soelberg had made numerous allegations against nine respondents. At the beginning of the nine day hearing her counsel advised that Ms Soelberg was proceeding against only three of the respondents and that she did not intend to pursue six of her allegations. In her written closing submissions, Ms Soelberg conceded there was inadequate evidence to proceed with many of the allegations and that her claim related to three central allegations. It also appears from those submissions that the only remaining respondents were the Commissioner of Police and Mr Letts.
Despite having substantially narrowed her claim, the Tribunal dismissed all of Ms Soelberg's allegations. The Tribunal sought submissions from the parties on costs.
Background
The applicant, Ms Janell Soelberg (then Van Droffelaar), was employed by the first respondent, the Commissioner of Police (Commissioner), as a sworn police constable, from 1999 to 2007. In 2002 she transferred to Clarkson police station. Her duties as a uniformed patrol/inquiry officer included patrolling the Clarkson police station subdistrict by car and foot and conducting inquiries into offences committed within that district.
In January 2003, Ms Soelberg informed her officer in charge, Senior Sergeant Kevin Dale (now Inspector Dale), that she was pregnant. She suffered morning sickness and took annual leave from 3 February 2003 to 23 February 2003. During this time, Inspector Dale was transferred and Sergeant Dudley Gaunt was appointed Senior Sergeant and acting officer in charge of Clarkson police station.
After Ms Soelberg returned to work on 24 February 2003, she was rostered in an administrative, non-operational role at Clarkson police station, during the day shift from Monday to Friday. She was therefore not eligible for shift penalties. This continued after 12 May 2003 when Senior Sergeant Lindsay Garratt was appointed officer in charge of the station and continued until 28 May 2003.
Ms Soelberg claims in her first allegation that she was made non‑operational, against her wishes, due to her pregnancy or sex or both. The Commissioner contends that she was made non-operational at her own request, first to Inspector Dale and then to Sergeant Gaunt.
Ms Soelberg claims that as a result of being made non-operational she suffered humiliation, stress and anxiety, all of which contributed to Ms Soelberg having to take sick leave when she was six and a half months pregnant. Ms Soelberg alleges that she was treated less favourably than other officers by being forced to work in a non‑operational role on the grounds of her pregnancy or sex, in breach of s 8 and s 10 of the Equal Opportunity Act 1984 (WA) (EO Act).
On 28 May 2003, Ms Soelberg attended her obstetrician, Dr Margo Norman, who placed her on sick leave. Ms Soelberg says this was because of her high levels of anxiety, panic attacks and high blood pressure. Initially, Dr Norman placed Ms Soelberg on sick leave for the period 28 May 2003 until 30 July 2003 on the basis that Ms Soelberg 'is/was unfit for work for medical reasons'. On 30 June 2003, Dr Norman wrote to the Coroner's Court advising that Ms Soelberg 'will be unfit to attend [the court on 22 July] due to complications in pregnancy bought on by work stresses.' On 1 August 2003, Dr Norman confirmed that in her opinion 'a series of incidents relating to her interaction with a senior officer has triggered an anxiety depressive illness'.
In August 2003, Dr Norman referred Ms Soelberg to clinical psychologist, Ms Elizabeth Webb.
On 8 August 2003, the Commissioner, through WA Police Health & Welfare (Health & Welfare), accepted this claim as a work‑related injury.
Ms Julie Vlahov was the Health & Welfare officer assigned to assist Ms Soelberg with her rehabilitation.
On 29 August 2003, Ms Soelberg's child was born.
On 4 September 2003, Ms Vlahov changed Ms Soelberg's leave classification from sick leave to parental leave, effective from 29 August 2003.
Ms Vlahov also sent an email to Senior Sergeant Garratt, stating that she would have no further contact with Ms Soelberg because Ms Soelberg had given birth and was now on parental leave rather than sick leave. She told Senior Sergeant Garratt that she had informed Ms Soelberg of this (email, agreed bundle at 88).
Ms Soelberg was paid parental leave for six weeks and then annual leave until her return to work on 5 January 2004. Ms Soelberg claims that she was not fit to work throughout this period and should have remained on sick leave.
In the second allegation, Ms Soelberg alleges that Ms Vlahov changed her leave classification because of Ms Soelberg's sex and family responsibilities, and that this amounted to less favourable treatment. The decision was therefore discriminatory and in breach of s 8 and s 35A of the EO Act. Ms Soelberg alleges that the change in leave classification caused her to suffer further detriment such as loss of medical entitlements. The Commissioner says that part of this allegation is outside of the Tribunal's jurisdiction.
Ms Soelberg's third allegation in these proceedings is that she was victimised by Mr Donald Letts, formerly Sergeant Letts and now retired. A work dispute occurred in May 2003 between Ms Soelberg and Mr Letts which led Ms Soelberg to complain to her superior officers about Mr Letts.
Ms Soelberg alleges that Mr Letts became aware that she might make a formal equal opportunity complaint against him and as a result, he submitted a report to his superior officers on 22 August 2003 which included damaging and untruthful statements about her (Letts report, agreed bundle at 84 - 86). Mr Letts admits writing the Letts report but denies that it was untruthful or intended to damage Ms Soelberg. He says he wrote it to put his side of the story in case there was an equal opportunity claim in the future and to seek direction from the district office as to how to deal with officers on sick leave. Mr Letts denies that he knew that Ms Soelberg intended to make an equal opportunity complaint, although he noted the potential for such a complaint in the Letts report. He further denies that the Letts report caused Ms Soelberg to suffer any detriment.
The Letts report was placed on Ms Soelberg's personnel file. It is not disputed that superior officers refer to an officer's personnel file when considering an application for promotion.
Ms Soelberg contends that Mr Letts victimised her in breach of s 67(1)(a) of the EO Act and that as a consequence she suffered stress, anxiety, depression and damage to her professional reputation. She says that Mr Letts is personally liable for his conduct. It seems that she does not look to the Commissioner for vicarious liability pursuant to this allegation.
After her return to work in January 2004, Ms Soelberg took further sick leave from July 2004 until this leave was terminated by the Commissioner in December 2005. Ms Soelberg resigned in 2007 and now works in Queensland as an office assistant.
The above three allegations were identified in Ms Soelberg's written closing submissions filed with the Tribunal on 14 April 2008. But there is a long history involving many complaints and respondents which preceded the distillation of the allegations in Ms Soelberg's written closing submissions. It is relevant to the issue of jurisdiction and the proceedings generally and important in particular to the question of costs, to recite that history.
Some of the history is set out in the preliminary decision of Her Honour Judge Eckert, Soelberg and Commissioner of Police [2007] WASAT 214. For expedience we repeat some of that here. In those preliminary proceedings, the parties sought clarification from the Tribunal as to who were the appropriate respondents to these proceedings.
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 EO Act on the grounds of age, sex and pregnancy and victimisation in the area of employment (first EO complaint). In the first EO complaint, Ms Soelberg cites three particular incidents that she says give rise to the unlawful discrimination and victimisation. The EO Commissioner investigated the first EO complaint and attempted to conciliate it without success. On 2 September 2005, the EO Commissioner referred the 'complaint' under s 93(1)(b) of the EO Act to this Tribunal (the first referral).
Although Ms Soelberg had lodged the first EO 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 substantial number of documents and a statement setting out her allegations. This is at 54 - 127 of the EO Commissioner's report attached to the first referral (September statement). Subsequently, Ms Soelberg also filed with the EO Commissioner an undated but very detailed 'statement of complaint and circumstances' (the detailed statement) comprising over 51 pages. The detailed statement is at 683 - 733 of the report attached to the first referral. It would seem from the dates of detail in it that it was prepared at some point in January or February 2005. The EO Commissioner sent the detailed statement to the Commissioner on 22 February 2005, with a covering letter that referred to both the September statement and the detailed statement as setting out 'the full details' of Ms Soelberg's complaint. In the detailed statement, Ms Soelberg alleges unlawful discrimination on the grounds of sex, pregnancy and age and victimisation under the EO Act by ten police officers, a member of Health & Welfare and the 'WA Police Services', arising from a significant number of events that Ms Soelberg said took place beginning on 20 January 2003 and continuing as at the time of preparing the detailed statement in 2005. Despite the limited allegations in the first EO complaint, and the first referral not having referred any individual officers to the Tribunal, Ms Soelberg believed that she had made a valid complaint against each of the respondents set out below, including the three officers mentioned in the first EO complaint and all of the officers named in the September statement and the detailed statement. She believed that all of the complaints and respondents referred to in both statements had been referred to the Tribunal by the EO Commissioner in the first referral. This was not the case.
The statements raise grounds of discrimination against potential respondents that had not been included in the first EO complaint.
In the statements, Ms Soelberg makes 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):
Table 1
Pregnancy
s 8/s 11
Sex
s 10/s 11
Age
s 66V/
s 66W
Victimisation
s 67
Sergeant Gaunt
3
2
1
2
Sergeant Letts
1
1
-
2
Senior Sergeant Garratt
2
2
1
10
First Class Constable Clark
-
-
-
2
Inspector Stingemore
2
2
1
4
Superintendent Staltari
2
2
1
1
Sergeant Skinner
2
2
1
1
Commissioner O'Callaghan
(personally)
2
2
1
2
Sergeant Ray
-
-
-
2
Senior Constable Anstee
-
-
-
1
Ms Vlahov
1
1
-
-
In the statements, Ms Soelberg also alleges 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.
On 31 July 2006, Ms Soelberg lodged a further complaint with the Commissioner (second EO complaint) which essentially added allegations of unlawful discrimination on the ground of family responsibility, which Ms Soelberg said had been accidentally omitted from the first EO complaint, and victimisation as follows:
Table 2
| Sex s 8/s 11 | Pregnancy s 10/s 11 | Age s 66V/s 66W | Family Responsibility s 35A/s 35B | Victimisation s 67 | |
| Ms Christie Huggins | 1 | 2 | 1 | 1 | 1 |
| Commissioner O'Callaghan | - | - | - | 1 | 1 |
| Ms Karen Jones | - | - | - | - | 1 |
| Sergeant Gaunt | - | - | - | 1 | - |
| Sergeant Letts | - | - | - | 1 | - |
| Senior Sergeant Garratt | - | - | - | 1 | - |
| First Class Constable Clark | - | - | - | 1 | - |
| Ms Julie Vlahov | - | - | - | 1 | - |
| Sergeant Skinner | - | - | - | 1 | - |
| Inspector Stingemore | - | - | - | 1 | - |
| Superintendent Staltari | - | - | - | 1 | - |
On 14 December 2006, the EO Commissioner referred the second EO complaint to the Tribunal (second referral) as follows:
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).
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.
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.
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. She had not referred to the Tribunal any complaints against individual officers.
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.
I have now reviewed the complaint files and am referring the following individuals on the following grounds of discrimination to the Tribunal:
TABLE 3
| Sergeant Dudley GAUNT | Pregnancy, Sex, Age and Victimisation |
| Sergeant Donald LETTS | Pregnancy, Sex and Victimisation |
| Senior Sergeant Lindsay GARRATT | Pregnancy, Sex, Age, and Victimisation |
| First Class Constable Bruce CLARK | Victimisation |
| Ms Julie VLAHOV | Sex and pregnancy |
| Inspector Stephen STINGEMORE | Pregnancy, Sex, Age and Victimisation |
| Superintendent Dominic STALTARI | Pregnancy, Sex, Age and Victimisation |
| Sergeant Nicholas SKINNER | Pregnancy, Sex, Age and Victimisation |
| Police Commissioner O'CALLAGHAN | Pregnancy, Sex, Age and Victimisation |
| Sergeant Mathew RAY | Victimisation |
| Senior Constable Darren ANSTEE | 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.
In the preliminary proceedings the Tribunal found, at [41], that based on the three referrals by the EO Commissioner to the Tribunal, the following respondents are subject to the following allegations of unlawful discrimination or victimisation arising from a number of alleged incidents:
TABLE 4
| Commissioner of Police (in his corporate capacity) | first respondent | sex, pregnancy - s 11, victimisation - s 67, age - s 66W, family responsibility - s 35B |
| Sergeant Dudley Gaunt | second respondent | victimisation - s 67 |
| Sergeant Donald Letts | third respondent | victimisation - s 67 |
| Senior Sergeant Lindsay Garratt | fourth respondent | victimisation - s 67 |
| First Class Constable Bruce Clark | fifth respondent | victimisation - s 67 |
| Inspector Stephen Stingemore | sixth respondent | victimisation - s 67 |
| Superintendent Domenic Staltari | seventh respondent | victimisation - s 67 |
| Commissioner Karl O'Callaghan | eighth respondent | victimisation - s 67 |
| Sergeant Matthew Ray | ninth respondent | victimisation - s 67 |
At [42] and [43] the Tribunal ruled that Ms Vlahov was not a proper party to the proceedings:
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.
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.
It was on this basis that amended statements of issues, facts and contentions were filed and the parties and the Tribunal prepared for ten days of hearing beginning on 11 February 2008.
Therefore, at the commencement of the final hearing, Ms Soelberg's claim was made against eight respondents (the Commissioner, Sergeant Gaunt, Mr Letts, Senior Sergeant Garratt, Inspector Stingemore, Superintendent Staltari, the Commissioner personally and Sergeant Ray). The claim against First Class Constable Clark was not pursued. In Ms Soelberg's 'substituted combined statement of issues, facts and contentions' dated 16 January 2008 (combined statement), she sets out 19 separate allegations (which she calls complaints); each separate allegation names the various respondents Ms Soelberg says committed the allegedly unlawful conduct, and after reciting each allegation in detail she sets out the damages that she claims from each respondent. Ms Soelberg also claims damages from the Commissioner in his corporate capacity as being vicariously liable for the conduct of his officers.
At the commencement of the final hearing, being Monday 11 February 2008, Ms Soelberg's counsel, Mr Stubbs, advised the Tribunal that Ms Soelberg would not be proceeding with her claims of victimisation against Sergeant Gaunt, Senior Sergeant Garrett, Superintendent Staltari, Commissioner O'Callaghan and Sergeant Ray. Mr Stubbs informed the Tribunal that Ms Soelberg does not pursue what she had referred to in the combined statement as the eighth complaint, ninth complaint, tenth complaint, fifteenth complaint, seventeenth complaint and nineteenth complaint; nor did she wish to continue with the victimisation component of the twelfth complaint, thirteenth complaint and fourteenth complaint as identified in [126], [138] and [147] respectively of the combined statement. On the Friday evening before, Mr Stubbs advised the respondents' counsel that this outcome was being considered. The Tribunal was not advised until the hearing.
It is not clear, but it seems to follow, particularly from [192] and [193] of the combined statement, that Ms Soelberg intended to abandon those victimisation allegations as against the individual officers but to continue with those allegations as against the Commissioner, who she says is vicariously liable for the officers' conduct under s 161 and s 163 of the EO Act. This included what is now the third allegation, being the allegation that Mr Letts victimised Ms Soelberg.
Therefore, as at the commencement of the final hearing, the respondents were the Commissioner in his corporate capacity, Mr Letts and Inspector Stingemore. The allegation against the Commissioner is that he is vicariously liable for all of the allegations set out in the combined statement which covers a long series of events beginning in January 2003, and that he therefore discriminated against Ms Soelberg under s 8 (sex), s 10 (pregnancy) and s 11 (unlawful discrimination) and s 35A and s 35B (family responsibility) of the EO Act and that he is liable under s 67 for the allegations of conduct constituting victimisation.
There are a total of 19 complaints in the combined statement; the eighteenth complaint sets out the Commissioner's vicarious liability and retains reference to complaints otherwise deleted with respect to individual officers.
Mr Letts remained potentially liable for what Ms Soelberg referred to as discriminatory conduct in preparing the Letts report.
Inspector Stingemore also remained a party to the proceedings. Ms Soelberg alleged that Inspector Stingemore victimised her by denying her right to have a support person with her when she met with Inspector Stingemore; that he victimised her by denying her a transfer to a station of her choosing; and that he victimised her by informing the officer in charge of the station to which she was transferred, of her unresolved equal opportunity complaints.
Ms Soelberg's allegations, and the respondents that she makes them against, changed again in her written closing submissions and these reasons reflect the Tribunal's deliberations on those final three allegations.
Despite the substantial and substantive changes made to the proceedings at the commencement of the hearing, counsel for both parties advised that there was either no or little scope to call fewer witnesses or to bring less evidence before the Tribunal. Essentially, the issues remained the same, although counsel for the respondents, Ms Eddy, indicated that with more notice proper consideration could have been given to reducing the scope of the evidence.
During the course of the lengthy history of bringing these proceedings to final hearing, the parties attended two compulsory conferences at the Tribunal, the Tribunal held 11 directions hearings and the Tribunal held five preliminary hearings where the parties presented substantial arguments. A lot of these attendances were held to assist Ms Soelberg and her various representatives to distil her claim and specific allegations and to ascertain the correct respondents to the proceedings. This time taken was in addition to investigation and conciliation conferences at the Equal Opportunity Commission before the first referral and then ongoing discussions between the parties and the EO Commissioner after referral to this Tribunal.
Ultimately the allegations came before the Tribunal for determination by way of a hearing to be held over 10 days from 11 to 26 February 2008, however, the hearing was completed in nine days on 25 February 2008.
The parties filed bundles of written material (four large agreed bundles, one applicant bundle and two respondent bundles) and they tendered additional materials at the hearing. The Tribunal heard from 18 witnesses. Ms Soelberg gave evidence and called three former work colleagues to testify: Senior Constable Simon Williams, retired constable Mr Dean Fitzgerald (who appeared by videolink) and Detective First Class Constable Jamie Merritt. In addition, Ms Soelberg called consultant psychiatrist Dr Dennis Tannenbaum as an expert, and her treating general practitioner Dr Max Hubble.
The respondents called Senior Sergeant Lindsay Garratt, retired sergeant Mr Donald Letts, retired First Class Constable Mr Bruce Clark (who appeared by videolink), First Class Constable Roy Bennett, Inspector Stephen Stingemore, Acting Inspector Lijuljana Cvijic, Acting Assistant Commissioner of Police Domenic Staltari, Senior Sergeant Nicholas Skinner, Senior Sergeant Matthew Ray, Ms Rene Anderson, Commissioner of Police Karl O'Callaghan, and consultant psychiatrist Dr Peter McCarthy as an expert.
Ms Soelberg and each of the witnesses filed a sworn statement of their evidence prior to the hearing. Witness statements for a number of witnesses for the Commissioner were also filed although ultimately those witnesses were not called to give evidence. Orders were made requiring Dr Tannenbaum and Dr McCarthy to meet and file a report in accordance with the Tribunal's standard procedure for expert evidence. They filed a joint report (expert report) and gave concurrent evidence.
Ms Soelberg filed written closing submissions on 14 April 2008, amending and reducing her claim thereby making much of the evidence redundant or irrelevant. The respondents filed closing submissions on 2 May 2008. The Tribunal reserved its decision.
The final allegations
We had some difficulty identifying the specific allegations that Ms Soelberg finally chose to pursue, particularly with respect to the extent of the first allegation set out below. In her closing submissions, at [1], Ms Soelberg says she 'concedes that there is not sufficient evidence to sustain claims save for those set out in paragraph 2'. Paragraph [2] describes the first allegation as 'Discriminated against by being made 'non‑operational' against her wishes for discriminatory reasons'. The closing submissions go on to discuss various aspects of the law and then sets out 'COMPLAINTS' in detail, beginning with the second allegation described below at [28] - [67]. At [68] of her submissions, Ms Soelberg describes the first allegation under the heading 'First, Fourth, Sixth and Seventh Complaints - Pregnancy and sex discrimination by Gaunt and Garratt'. That is a reference to the numbered complaints as set out in the combined statement. The closing submission under that heading refers only to Sergeant Gaunt's alleged conduct (under the sub‑heading 'Pregnancy Discrimination by Gaunt') and not to Senior Sergeant Garratt's alleged conduct. This is a substantially narrower allegation than the reference in the heading to [68] of the closing submissions, which includes a reference to not only Senior Sergeant Garratt but also the alleged conduct of Mr Letts and Ms Vlahov. It is also narrower than later references to allegations of discriminatory conduct by Senior Sergeant Garratt at [119], [132], [143] and [150] and Inspector Dale at [132] and [150]. However, as those allegations either were part of allegations specifically not proceeded with at the hearing or not referred by the EO Commissioner to the Tribunal, and therefore not validly within our jurisdiction, we have taken the closing submissions to mean that Ms Soelberg alleges that Sergeant Gaunt's alleged conduct was discriminatory and that she does not seek to include Senior Sergeant Garratt's or Inspector Dale's alleged conduct in her claim before this Tribunal. It was also difficult to distil the precise conduct by Sergeant Garratt that Ms Soelberg relies on as being unlawfully discriminatory.
We find that the allegations for adjudication therefore are:
1. that Sergeant Gaunt directly discriminated against Ms Soelberg by not allowing her to continue as a patrol/inquiry officer or allowing her to be an inquiry officer and requiring her to perform non‑operational administrative functions against her wishes because she was pregnant, whilst other women in the Police Service who are pregnant continue as patrol/inquiry officers or inquiry officers: see [68] of Ms Soelberg's written closing submissions (first allegation). The first allegation is made under s 8, s 10, and s 11 of the EO Act and the discriminatory conduct is that Ms Soelberg was placed in a non‑operational position against her wishes and without consultation in breach of WA Police procedures: see [152] of the written closing submissions. Ms Soelberg says the Commissioner is the correct respondent for this allegation as he is vicariously liable for Sergeant Gaunt's actions;
2. that Ms Vlahov directly discriminated against Ms Soelberg on the grounds of sex under s 8 and s 11 of the EO Act and family responsibilities under s 35A and s 35B of the EO Act by:
(a) ceasing all contact and support after the birth of Ms Soelberg's child, whilst Ms Soelberg was still unfit for work;
(b)placing Ms Soelberg on parental leave from 4 September 2003 until 16 October 2003 and then on annual leave from 17 October 2003 until 4 January 2004 without first receiving a certificate stating that Ms Soelberg was fit to return to work;
(c)treating Ms Soelberg less favourably than Ms Vlahov would have treated other work colleagues in a similar situation with a work‑related illness; and
(d)failing to act in an appropriate manner in relation to the first and third allegations in these proceedings and a complaint made by Ms Soelberg and referred to in Ms Soelberg's combined statement as the fourth complaint (not being paid shift penalties) and the sixth complaint;
(second allegation), see [28] of Ms Soelberg's written closing submissions. It appears that since the final hearing Ms Soelberg has abandoned reference to being a 'reserve officer' without recognition or pay, (referred to in the combined statement as the second and third complaints) and a range of allegations against Mr Letts regarding interviewing an alleged sex offender (referred to in the combined statement as the fifth complaint), all of which she had contended should have been dealt with by Ms Vlahov. Ms Soelberg says the Commissioner is the correct respondent for this allegation as he is vicariously liable for Ms Vlahov's actions; and
3.that Mr Letts directly discriminated against Ms Soelberg by preparing the Letts report which she says contained damaging and untruthful statements. Ms Soelberg alleges that Mr Letts was aware that she may make a formal equal opportunity complaint when he wrote the Letts report and the preparation of it therefore constituted victimisation of Ms Soelberg by Mr Letts pursuant to s 67 of the EO Act (third allegation): see [164] of Ms Soelberg's written closing submissions. It appears that Ms Soelberg pursues the third allegation against Mr Letts only and not the Commissioner as well as or in lieu of Mr Letts.
Ms Soelberg's claims
As a result of the alleged discriminatory conduct and the victimisation that Ms Soelberg says she was subjected to, Ms Soelberg claims that she suffered stress, anxiety, depression and damage to her professional reputation which limits her prospects of promotion. Ms Soelberg says she suffered loss and damage including economic loss for shift penalties that she stopped earning when she was made non‑operational, that she lost access to free medical and other services, and that the amount of leave available to her was reduced due to Ms Vlahov taking her off sick leave and changing her status to parental leave. Ms Soelberg also says that she has suffered a permanent psychiatric injury and that she will have future medical expenses. Ms Soelberg also identifies loss of earnings as a police officer as she says the psychiatric injury caused to her by the unlawful discriminatory conduct ultimately led to her being unable to remain a police officer.
Ms Soelberg claims damages to restore her to the position she was in prior to early 2003 and she asks the Tribunal to award her the maximum amount of damages available under the EO Act.
Ms Soelberg seeks interest on those damages and payment of her legal costs under s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Ms Soelberg asks the Tribunal to order that the respondents apologise to her and that all references to her claim under the EO Act, both with the EO Commissioner and this Tribunal 'and related incidents' be removed from her personnel file at WA Police and her file with Health & Welfare, and that all references and related documents be destroyed. Ms Soelberg also seeks an order that 'all respondents' be ordered to undertake equal opportunity training. We take it that she means Mr Letts although it is possible that she means all officers involved in unlawful discriminatory conduct whether or not they were final respondents in the proceedings. The same consideration may apply to the apology that Ms Soelberg seeks.
Both respondents deny the allegations and seek an order for their costs. Counsel also seeks an order for costs thrown away for the five respondents who were named as respondents to the final hearing but against whom Ms Soelberg did not proceed and for Inspector Stingemore in respect of whom Ms Soelberg abandoned her allegations by way of written closing submissions filed after completion of the final hearing.
Ms Soelberg contends that the Commissioner is the correct respondent for the second allegation as he is vicariously liable for Ms Vlahov's actions. The Commissioner asserts that the allegations in (b) and (d) of the second allegation are outside of the Tribunal's jurisdiction. We deal with this below.
The relevant legislation
The relevant provisions of the EO Act are:
3. Objects
The objects of this Act are -
(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 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;
…
(c)to promote recognition and acceptance within the community of the equality of men and women; and
…
Part II - Discrimination on ground of sex, marital status or pregnancy
Division 1 - General
8. Sex discrimination
(1)For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the ground of the sex of the aggrieved person if, on the ground of -
(a)the sex of the aggrieved person;
(b)a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the sex of the aggrieved person,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
(2)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a)with which a substantially higher proportion of persons of the opposite sex to the aggrieved person comply or are able to comply;
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
…
10.Discrimination on the ground of pregnancy
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the pregnancy of the aggrieved person if -
(a)on the ground of -
(i) the pregnancy of the aggrieved person;
(ii)a characteristic that appertains generally to persons who are pregnant; or
(iii)a characteristic that is generally imputed to persons who are pregnant,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who was not pregnant; and
(b)the less favourable treatment is not reasonable in the circumstances.
(2)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the pregnancy of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a)with which a substantially higher proportion of persons who are not pregnant comply or are able to comply;
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Division 2 - Discrimination in work
11. Discrimination against applicants and employees
(1)It is unlawful for an employer to discriminate against a person on the ground of the person's sex, marital status or pregnancy -
(a)in the arrangements made for the purpose of determining who should be offered employment;
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status or pregnancy -
(a)in the terms or conditions of employment that 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;
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
(3)Nothing in subsection (1)(a) and (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person's sex, in connection with employment to perform domestic duties on the premises on which the first‑mentioned person resides.
…
Part II - Discrimination on ground of family responsibility or family status
Division 1 - General
35A.Discrimination on the ground of family responsibility or family status
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of family responsibility or family status if, on the ground of -
(a)the family responsibility or family status of the aggrieved person;
(b)a characteristic that appertains generally to persons having the same family responsibility or family status as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same family responsibility or family status as the aggrieved person,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who does not have such a family responsibility or family status.
(2)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of family responsibility or family status if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a)with which a substantially higher proportion of persons not of the same family responsibility or family status as the aggrieved person comply or are able to comply;
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Division 2 - Discrimination in work
35B.Discrimination against applicants and employees
(1)It is unlawful for an employer to discriminate against a person on the ground of the person's family responsibility or family status —
(a)in the arrangements made for the purpose of determining who should be offered employment;
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibility or family status —
(a)in the terms or conditions of employment that the employer affords the employee;
(b)by denying the employee access, or limiting the access of the employee, to opportunities for promotion, transfer or training or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
…
(4)Nothing in this section renders it unlawful for a person to do an act a purpose of which is to afford persons with a particular family responsibility or family status rights, benefits or privileges in connection with that family responsibility or family status.
'Family responsibility or family status' is defined in s 4(1) of the EO Act as follows:
... in relation to a person, means - :
(a)having responsibility for the care of another person, whether or not that person is a dependent, other than in the course of paid employment;
(b)the status of being a particular relative; or
(c)the status of being a relative of a particular person;
Section 5 of the EO Act provides:
5.Act done for 2 or more reasons
A reference in Part II [which deals with discrimination on the ground of sex, marital status and pregnancy] ... IIA [which deals with discrimination on the ground of family responsibility or family status] … to the doing of an act on the ground of [sex, marital status, pregnancy, family responsibility or family status] includes a reference to the doing of an act on the ground of 2 or more matters that include [those mentioned grounds of discrimination], whether or not the [ground of discrimination alleged] is the dominant or substantial reason for the doing of the act.
Note that s 5 does not include a reference to s 67 - victimisation - which provides:
67.Victimisation
(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;
(b)has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act;
(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;
(d)has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under this Act;
(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 [the EO Act relevantly dealing with discrimination on the grounds of sex, pregnancy, family responsibility or family status],
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.
Section 161 of the EO Act provides:
161.Vicarious liability
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent -
(a) an act that would, if it were done by the person, be unlawful under this Act (whether or not the act done by the employee or agent is unlawful under this Act); or
(b)an act that is unlawful under this Act,
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (a) or (b) of that subsection done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
Section 4(1) of the EO Act defines 'employment' in (c) as including 'work as a State employee'. The definition of 'State employee' in the same section, 'includes a member of the Police Force of Western Australia'.
163. References to employer
…
(2)A reference in this Act to an employer shall be read and construed in relation to employment in the Police Force of Western Australia as a reference to the Commissioner of Police and anything determined or done with respect to -
(a) the offer of any such employment;
(b)the terms and conditions on which any such employment is afforded;
(c)the opportunities afforded for promotion, transfer, training or other benefits associated with any such employment; or
(d) dismissal from any such employment,
or with respect to any other matter concerning employment, by an officer or employee in the Police Department or the Police Force of Western Australia who is authorised to determine and do things in that respect shall be deemed to have been determined or done by the Commissioner of Police. [references omitted]
The relevant legal principles
General principles
Ms Soelberg bears the onus of proof and must prove her case on the balance of probabilities; Dowling v Bowie (1952) 86 CLR 136; Williams and Commissioner of Police [2005] WASAT 349 at [34]. Discrimination proceedings should be assessed on a case-by-case basis, and the standard of proof should take into account the seriousness of the allegations, the gravity of the consequences flowing from an adverse finding and the unlikelihood of the matters alleged having occurred: State of Victoria v Macedonian Teachers' Association of Victoria Inc (1991) 91 FCR 47 at [21]. This is known as the Briginshaw standard of proof which is generally accepted as the relevant standard: (Briginshaw v Briginshaw (1938) 60 CLR 336), - Ronalds, Discrimination Law and Practice (3rd ed, The Federation Press, 2008) at 202.
There does not need to be any intent by the respondent to discriminate. It is a well accepted principle of discrimination law that it is the effect of an impugned practice, not the underlying intent, that is the governing factor in determining whether the practice or conduct gives rise to discrimination: Garity v Commonwealth Bank [1999] HREOCA 92-966 (Garity); Waters v Public Transport Corporation (1991) 173 CLR 349 at 359, Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 259-260 (Kirby P); 265 (Samuels JA).
It is also not necessary for Ms Soelberg's ground of a particular matter to be the sole or even the dominant or substantial ground for the relevant act in order for unlawful discrimination to be proved; it is adequate if the ground of a particular matter is one of the grounds: see s 5 of the EO Act; Ghockson v Commissioner of Police (1996) EOC 92-798 at 78,912 (WA, EOT).
However, the act which amounts to discrimination must be deliberate; that is, advertent and done with the knowledge of the characteristic said to be the ground on which the discriminatory act is performed: Jamal v Secretary, Department of Health & Anor (1988) 14 NSWLR 252 at 265 per Samuels JA.
For a finding of unlawful discrimination to be made out it is necessary to establish a causal connection between the grounds of discrimination alleged and the decision or act complained about. Ms Soelberg must show that she was treated 'less favourably' on the ground of' her sex, pregnancy or family responsibility: Purvis v State of NSW (Department of Education and Training) (2003) 217 CLR 92 (Purvis) at 163 (Gummow, Hayne and Heydon JJ). .
Chris Ronalds' Discrimination Law and Practice (3rd ed, Federation Press, 2008) at 36 also observes that 'establishing the existence of that causal link is frequently the most crucial element in any case'.
The accepted test for causation is the 'but for test' as described by Kirby J in IW v City of Perth (1997) 191 CLR 1 at 63:
The object of the Act is to exclude the unlawful and discriminatory reasons from the relevant conduct. This is because such reasons can infect that conduct with prejudice and irrelevant or irrational considerations which the Act is designed to prevent. Because persons faced with allegations of discrimination, genuinely or otherwise, assert multiple and complex reasons - and because affirmative proof of an unlawful reason is often difficult - the Act has simplified the task for the decision-maker. It is enough that it be shown that the doing of the act was 'by reason' or 'on the ground' of the particular matter in the sense that that the unlawful consideration was included in the alleged discriminator's reasons or grounds. It must be a real 'reason' or 'ground'. It is not enough to show that it was trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator, that is sufficient to attract a remedy under the Act.
This test was applied in Purvis; Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 118 ALR 80 at 99 and Commonwealth v Human Rights and Equal Opportunity Commission(Dopking No 1) (1993) 46 FCR 191 at 223.
The test is an objective one: Garity at 79, 129.
The expression 'less favourably' in s 8, s 10 and s 35A of the EO Act is to be given its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found proved in the particular case: Ghockson v Commissioner of Police (1996) EOC 92-798 at 78,911; Haines v Leves (1987) 8 NSWLR 442 at 471 (Kirby P). The Tribunal should consider the conduct and the facts found within the context of the objectives of the EO Act as set out in the long title and in s 3 of the EO Act (Purvis).
In considering whether circumstances are 'the same' or 'not materially different' the circumstances the Tribunal must consider are all of the objective features which surround the actual or intended treatment that is said to have been 'less favourable': Purvis at [224] per Gummow, Hayne and Heydon JJ.
Implicit in the notion of the words 'less favourably' is the necessity to establish a comparator so that the Tribunal examines two situations or sets of circumstances, the actual and the hypothesised, to enable it to determine by comparison whether the treatment in the former is 'less favourable' than in the latter: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 (Mahoney JA).
Legal principles relating to victimisation
The burden of proving victimisation lies on Ms Soelberg and the standard of proof is the balance of probabilities. She must prove three things:
1.the conduct complained of was the dominant or substantial reason for doing the act of victimisation;
2.there was an intention to cause detriment; and
3.there is a causative link between the conduct and the detriment,
see Regan v Kalgoorlie Taxi Car Owners Association Incorporated (1996) EOC 92-844 .
The detriment alleged must be a disadvantage that is substantial and not trivial: O'Callaghan v Loder[1983] 3 NSWLR 89 citing Ministry of Defence v Jeremiah [1980] QB 87 at 105 (adopted in the context of discrimination in WA in Hautlieu Pty Ltd t/as Russell Pathology v McIntosh [2000] WASCA 146 (Hautlieu)at [168] – [170]).
In the absence of any facts capable of proving intention to cause the detriment, or facts capable of supporting such an inference, there is no basis for a contention of victimisation: Hautlieu at [140].
There was a long history to the proceedings and Ms Soelberg had made numerous allegations under the EO Act against variously, seven, eleven and ultimately nine respondents. There were three separate referrals from the Commissioner for Equal Opportunity to the Tribunal. However, there was still substantial confusion, particularly on the part of Ms Soelberg, about what and who had validly been referred to the Tribunal by the Commissioner for Equal Opportunity. This culminated in a preliminary hearing before Judge Eckert, when Ms Soelberg sought clarification of the allegations and which respondents had validly been referred to the Tribunal for inquiry; and the Commissioner of Police applied to strike out some of Ms Soelberg's allegations.
The detailed history of the proceedings and the Tribunal's findings on those preliminary matters are set out in Soelberg and Commissioner of Police and Ors [2007] WASAT 214. The 'others' referred to in the citation are set out in the decision and are: Dudley Gaunt, Donald Letts, Lindsay Garratt, Bruce Clark, Stephen Stingemore, Domenic Staltari, Karl O'Callaghan and Matthew Ray.
In that preliminary hearing, based on the submissions before it, the Tribunal decided that the Commissioner of Police, Sergeant Dudley Gaunt, Sergeant Donald Letts, Senior Sergeant Lindsay Garratt, First Class Constable Bruce Clark, Inspector Stephen Stingemore, Superintendent Dominic Staltari, Commissioner Karl O'Callaghan and Sergeant Matthew Ray were the proper respondents to these proceedings as they had been referred to the Tribunal by the Commissioner for Equal Opportunity. The Tribunal found that the Commissioner for Equal Opportunity had referred to the Tribunal for inquiry the Commissioner of Police for alleged breaches of s 11 (sex, pregnancy), s 35B (family responsibility) and s 67 (victimisation) of the EO Act and each of the other respondents named above for an alleged breach of s 67 of the EO Act and that those allegations and those respondents were therefore properly before the Tribunal. However, the Tribunal made no findings as to the evidence or the likely success of Ms Soelberg's application before the Tribunal.
At the preliminary hearing, the Tribunal dismissed the Commissioner of Police's strike-out application on the ground that decisions by the Tribunal regarding evidence were matters properly for the final hearing.
During the course of the lengthy history of bringing these proceedings to final hearing, the parties attended two compulsory conferences at the Tribunal, the Tribunal held 11 directions hearings and five preliminary hearings where the parties presented substantial arguments. A lot of these attendances were held to assist Ms Soelberg and her various representatives to distil her claims and specific allegations, and to ascertain the correct respondents to the proceedings. This time taken was in addition to investigation and conciliation conferences at the Equal Opportunity Commission before the first referral, and then ongoing discussions between the parties and the EO Commissioner after referral to this Tribunal.
Ultimately, the allegations came before the Tribunal for determination by way of a hearing to be held over 10 days from 11 to 26 February 2004, however, the hearing was completed in nine days on 25 February 2008. The final hearing began on Monday 11 February 2008. At that point there were eight named respondents who attended for the hearing rather than nine, as Ms Soelberg had not pursued her claim against First Class Constable Clark.
In Ms Soelberg's 'substituted combined statement of issues, facts and contentions' dated 16 January 2008 (combined statement), she set out 19 separate allegations (which she called complaints); each separate allegation named the various respondents Ms Soelberg says committed the allegedly unlawful conduct, and after reciting each allegation in detail she set out the damages she claimed from each respondent. Ms Soelberg also claimed damages from the Commissioner in his corporate capacity as being vicariously liable for the conduct of his officers.
At the commencement of the final hearing, Ms Soelberg's counsel, Mr Stubbs, advised the Tribunal that Ms Soelberg would not be proceeding with her claims of victimisation against Sergeant Gaunt, Senior Sergeant Garrett, Superintendant Staltari, Commissioner O'Callaghan (personally) and Sergeant Ray. Mr Stubbs informed the Tribunal that Ms Soelberg would not pursue what she had referred to in the combined statement as the eighth complaint, ninth complaint, tenth complaint, fifteenth complaint, seventeenth complaint and nineteenth complaint; nor did she wish to continue with the victimisation component of the twelfth complaint, thirteenth complaint and fourteenth complaint as identified in [126], [138] and [147] respectively of the combined statement. On the Friday evening before, Mr Stubbs advised the respondents' counsel that this outcome was being considered. The Tribunal was not advised until the hearing.
It was not clear at the time, but it seemed to follow, particularly from [192] and [193] of the combined statement, that Ms Soelberg intended to abandon those victimisation allegations as against the individual officers but to continue with those victimisation allegations as against the Commissioner rather than against the individual officers, on the basis, she claimed, that the Commissioner was vicariously liable for the officers' conduct under s 161 and s 163 of the EO Act.
We then heard the matter over nine days, with the only respondents being the Commissioner of Police in his corporate capacity, Mr Letts and Inspector Stingemore. The allegation against the Commissioner of Police was that he was vicariously liable for all of the allegations set out in the combined statement which covered a long series of events beginning in January 2003, and that he therefore discriminated against Ms Soelberg under s 8 (sex), s 10 (pregnancy) and s 11 (unlawful discrimination) and s 35A and s 35B (family responsibility) of the EO Act and that he is liable under s 67 for the allegations of conduct constituting victimisation.
Mr Letts remained potentially liable for what Ms Soelberg referred to as discriminatory conduct in preparing a report known as 'the Letts report'.
Ms Soelberg alleged that Inspector Stingemore victimised her by denying her right to have a support person with her when she met with Inspector Stingemore; that he victimised her by denying her a transfer to a station of her choosing; and that he victimised her by informing the officer in charge of the station to which she was transferred, of her unresolved equal opportunity complaints.
In her written closing submissions, Ms Soelberg conceded there was inadequate evidence to proceed with many of the allegations and that her claim related to only three allegations. Though not clearly stated, it also appeared from those submissions that the only remaining respondents were the Commissioner of Police and Mr Letts. However, the precise nature of Ms Soelberg's allegations remained somewhat unclear.
Despite having substantially narrowed her claim, the Tribunal dismissed all of Ms Soelberg's allegations - see Soelberg (formerly Van Droffelaar) and Commissioner of Police [2008] WASAT 305.
In our decision we held that even at its highest possible interpretation, Ms Soelberg's evidence was not sufficient to prove her claims. Ms Soelberg failed to prove that the Commissioner of Police, through his officers, treated her less favourably than any officer in the same or similar circumstances. Ms Soelberg was unable to prove any causal connection between the grounds of discrimination alleged and the decisions or acts of which she complained. We also held that we did not have jurisdiction to hear some of the allegations as they were not referred to the Tribunal by the Commissioner for Equal Opportunity.
Ms Soelberg also failed to prove that she was victimised by the second respondent, Mr Letts. There was no evidence that Mr Letts intended to cause Ms Soelberg detriment or that there was any causative link between his report on Ms Soelberg and Ms Soelberg's (then) potential equal opportunity complaint. As referred to above, Ms Soelberg abandoned her claim against Inspector Stingemore in her written closing submissions.
The Tribunal sought submissions from the parties on costs. On 25 March 2009 the Tribunal delivered an oral decision and reasons regarding costs. These are the edited written reasons that reflect the grounds of our decision to order costs payable to the respondents and former respondents.
Ms Soelberg’s submissions
In her written submissions on costs, Ms Soelberg contended that no award of costs should be made against her, as under s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), parties generally bear their own costs in a proceeding before the Tribunal. Ms Soelberg cited Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007] WASAT 317 at [47] and argued that the Tribunal should only exercise its discretionary power to award costs under s 87(2) of the SAT Act where:
a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings; has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order for costs where a matter has been brought vexatiously or for improper purposes.
Ms Soelberg argued that the Tribunal should not award costs against her because any unnecessary prolonging of the hearing was not caused by her. She argued that any delay was caused by the Equal Opportunity Commission in failing to properly refer her complaints to the Tribunal, by her legal representatives in failing to properly advise her as to the scope of her claim and by the respondents who refused to negotiate with her or make an offer of settlement.
Ms Soelberg asserted that her claim was neither capricious nor an abuse of power, as at a preliminary hearing, the Tribunal dismissed the respondents’ application to have part of her claim struck out and ordered that the nine respondents were the proper respondents. Ms Soelberg’s written submissions on costs then stated that discontinuing her claim against six of the respondents on the first day of the hearing was in fact reasonable as she received the respondents’ amended statement of issues, facts and contentions only three weeks before the hearing date. She contended that it was not until she had read this document that she was aware of the respondents’ response to her claim.
Ms Soelberg further contended that the Tribunal should not make an award of costs against her as she would be unable to pay any amount ordered.
The respondents’ and previously named respondents’ submissions
In their written submissions the respondents and previously named respondents (respondents) acknowledged that the Tribunal is generally a ‘no cost’ jurisdiction. However, the respondents argued that the Tribunal should exercise its broad discretion and award costs under s 87(2) of the SAT Act in this case. The respondents argued that Ms Soelberg pursued a claim that was clearly untenable or which no reasonable person would have believed could be successful: Summerville and Department of Education [2006] WASAT 368 at [37] - [38].
The respondents contended that the allegations made against the individual police officers were frivolous, vexatious, capricious and unreasonable. The respondents argued that Ms Soelberg was warned that not all of the previously named respondents should be joined to the proceedings and that Ms Soelberg’s complaints could not be sustained. In addition, by limiting the scope of her claims immediately before and after the hearing, Ms Soelberg caused all respondents needless expense and she unnecessarily prolonged the hearing.
The respondents further maintained that issues concerning a person’s financial situation are irrelevant considerations in determining whether or not the Tribunal should exercise its discretion to award costs under s 87(2) of the SAT Act.
To assess the amount of any costs award made, the respondents submitted that the Tribunal must make a determination as to what costs are reasonable given the nature of the matter, its complexity, its importance, possibly its urgency, and the amount of time and effort required to properly prepare and present the case. Following that rationale and guided by the scale of costs prescribed by the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA), the respondents argued that costs of $72,040.20 was reasonable, having regard to the amount of legal work that was required in this matter and the numerous, ultimately unnecessary witnesses and documents the respondents were required to prepare: J & P Metals Pty Ltd and Shire of Dardanup[2006] WASAT 282 at [7].
Tribunal’s findings
We have given this decision very close consideration and are very troubled by it. As noted by both parties, under s 87 of the SAT Act this is a cost-free jurisdiction. However, the cases in which this Tribunal has awarded costs have developed into a body of case law which establishes that the Tribunal not only can, but should, make a costs order where a party has conducted themselves in such a way as to unnecessarily prolong a hearing or has acted unreasonably or inappropriately in the conduct of the proceedings: Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [84] - [85]; Commissioner for Equal Opportunity and Alcoa of Australia Ltd.
Ms Soelberg would have us draw a distinction here between the conduct of a party and the conduct of that party’s solicitor; however, we do not draw that distinction. A party and their lawyer have a private arrangement and that is between them. What we look at is the relationship between party and party and in our view these proceedings were conducted unreasonably and inappropriately by Ms Soelberg.
We have also considered whether or not costs should be awarded against Ms Soelberg on the basis that she maintained proceedings that should not have been maintained against parties where there was no case to answer. In this case, the Tribunal had gone to some trouble during the preceding months to warn Ms Soelberg about expanding the proceedings and the difficulties with her many allegations. In our view, the individual officers should never have been named and many of the allegations should never have been made; Ms Soelberg pursued a claim which was clearly untenable and which no reasonable person would have believed could be successful.
An extraordinary amount of time was put into these proceedings. For two years prior to the hearing the matter went back and forth, working out who should be respondents and requesting the Commissioner for Equal Opportunity to re-refer matters. Throughout this process the respondents consistently argued that the individual officers should not be joined to the action and that the complaints could not be sustained even if all matters alleged by the applicant were proved. It was only on the morning of the hearing that the applicant dropped the majority of named respondents from the proceedings.
It is our view that if it was apparent that six of the allegations could not proceed on the morning of the hearing, it was also apparent well in advance of the hearing date. The applicant should have made the decision to limit her allegations a lot earlier; no reasonable person would have believed the claim could have been successful against a number of the respondents.
We then had a very lengthy and complex hearing with a large number of witnesses, including the Commissioner of Police. At the conclusion of the hearing, Ms Soelberg again proceeded to limit her allegations and conceded that there was insufficient evidence to sustain all but three of her numerous complaints against only two of the respondents. This conduct by the applicant means that considerable cost was incurred by both the respondents and the Tribunal and a substantial amount of the evidence that was either led or defended need never have come before us.
So we had, first of all, the level of unreasonableness on the morning of the first day of the final hearing when the basis of the application was fundamentally changed and allegations against most of the respondents were abandoned. This was despite the applicant and her legal advisors having had two years and numerous opportunities to closely consider the merits and the extent of the allegations. We then had the position at the end of the hearing where the applicant again said she was not going to proceed with certain allegations; an appraisal of the case had finally been undertaken but it really should have been made a long time before the proceedings went to final hearing. In her written closing submissions, Ms Soelberg again amended the application against another respondent and reduced the claim to three allegations.
Ms Soelberg seeks to attribute some liability for her predicament to the Tribunal. She contends that at preliminary hearings the Tribunal joined all the parties and dismissed the strike-out claim by the respondent. As can be seen from the reasons in Soelberg and Commissioner of Police and Ors [2007] WASAT 214 the Tribunal was assisting Ms Soelberg to define what was validly before the Tribunal as having been referred by the Commissioner for Equal Opportunity. The Tribunal did not at that point deal with the merits of Ms Soelberg's claim. It could not do so until it had heard the evidence. It was Ms Soelberg's obligation to assess the merits of her claim well before hearing.
For the above reasons, we find that the applicant Ms Soelberg conducted the proceedings unreasonably and the proceedings were unnecessarily prolonged. The applicant is therefore ordered to pay the respondents’ costs.
Quantum of costs
The respondents submitted that their costs were $139,137 but claimed only $72,040.20. However, they did make an offer for the applicant to settle costs at $50,000. On that basis, we make an order that an award of costs is payable by the applicant in favour of the respondents for $50,000 pursuant to s 87 of the SAT Act.
Order
The Tribunal orders that the applicant pay the respondents and the previously named respondents' costs of $50,000.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J ECKERT, DEPUTY PRESIDENT
7
16
2