Somasundaram v State of South Australia
[2012] SAEOT 3
•17 October 2012
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
SOMASUNDARAM v STATE OF SOUTH AUSTRALIA
[2012] SAEOT 3
Judgment of Her Honour Judge Cole
17 October 2012
DISCRIMINATION LAW
Matter referred from Equal Opportunity Commission - complainant alleges discrimination on the grounds of race - preliminary questions.
Equal Opportunity Act 1984 (SA), referred to.
Janus v Lifeline Upper Spencer Gulf Inc (1991) EOC 92-382; Hills v State of South Australia (2001) EOC 93-145; Hills v State of South Australia (2002) 82 SASR 102; Patrick v State of South Australia [2007] SAEOT 2; Rankin v State Electoral Office [2008] SAEOT 13; Dye v Commonwealth Securities Limited (No. 2) [2010] FCAFC 118, considered.
SOMASUNDARAM v STATE OF SOUTH AUSTRALIA
[2012] SAEOT 3
By notice received on 21 January 2011, the Acting Commissioner for Equal Opportunity (“the Commissioner”) referred to the Equal Opportunity Tribunal (“the Tribunal”), pursuant to s 95B of the Equal Opportunity Act 1984 (“the Act”), a complaint of Dr Somasundaram (“the complainant”). This is a decision in relation to a series of preliminary points which have been raised in the matter.
The complainant is a psychiatrist. He came to Australia from Sri Lanka, which was his country of birth. In his complaint to the Commissioner, dated 28 May 2010 but stamped as having been received by the Commissioner on 1 June 2010, the complainant related that he obtained his specialist qualification in psychiatry in Sri Lanka in 1985 (MD psych) and undertook one year of post graduate training in the UK. Ultimately, the complainant obtained a MRC Psych in the UK in 1999. Meanwhile, he worked as a consultant psychiatrist in Northern Sri Lanka and held the position of Senior Professor of Psychiatry at the University of Jaffna, Sri Lanka.
The complainant said in the complaint that he was appointed in April 2006 to the Glenside Campus Mental Health Service as a consultant psychiatrist at level 3, having obtained the British FRC Psych in February 2005, which was a pre-requisite for his registration in Australia as a psychiatrist. The complaint recorded that the complainant gained his Australian FRANZCP in February 2007, which was a pre-requisite for specialist registration with the Medical Board of South Australia. The complaint said:
…But with the FRANZCP and Medical Board of South Australia specialist recognition, my past “relevant experience” should have been taken into account in my appointment at the subsequent annual cycle in April, 2007 when my contract was renewed. However, this was not done and I feel that this is discriminatory of foreign graduates most of whom come here from 3rd world developing countries.
The complainant also said, in his complaint:
I have approached our Human Resources (15/5/08); Prof Norman James, Clinical Director (19/8/08); Dr Eli Rafalowicz, Executive Director (3/3/09); Sam Contarino, Human Resources Manager (24/3/09 – 6/7/09); Derek Wright, Director Mental Health Operations and Margaret Honeyman, Chief Psychiatrist (15/7/09 – 5/11/09) and South Australian Salaried Medical Officers Association (SASMOA) (25/3/10 – 10/5/10). Basically, they have reiterated that the earlier decision was within the industrial agreements. SASMOA suggested I could take it up with Equal Opportunity Commission.
The pro forma complaint form that the complainant completed has a panel for the answer to the question:
What would you like to see happen that would resolve this complaint?
The complainant’s answer was:
Appointment as senior consultant taking my past “relevant experience” into account.
The complainant also ticked the box provided on the pro forma complaint form to indicate that he thought that he had been discriminated against because of his race. It was clear that the discrimination was alleged against his employer, which is the State of South Australia, as the complainant is employed in the public health system.
The Acting Commissioner for Equal Opportunity referred the complaint to the Tribunal by notice dated January 2011, which said:
PARTICULARS OF THE COMPLAINT
That on or about November 2009, Adelaide Health Service of GPO Box 1898 ADELAIDE 5001 in the State of South Australia discriminated against the said Dr Somasundaram, on the grounds of race contrary to the Equal Opportunity Act 1984 (SA).
After the referral of the matter into the Tribunal by the Commissioner, various pre-trial matters were attended to by the parties. On 26 June 2012, amended particulars of claim were filed on behalf of the complainant. The amended particulars include the following:
7. The Complainant claims that he was discriminated against unlawfully by the Respondent (his employer), on the grounds of race, in respect of the terms and conditions of his employment, namely his salary, contrary to Section 52(2) of the Act.
8. The Complainant claims that the Respondent discriminated against him in the manner prescribed in Section 51(b) of the Act, namely indirect discrimination, as follows:
8.1 The Respondent treated the Claimant [sic] unfavourably:
8.1.1By assigning him a salary upon the commencement of his employment in May 2006 at Step 3, rather than at Step 9; and
8.1.2By assigning him a salary in May of each year 2007, 2008, 2009, 2010 and 2011 below Step 9.
8.2.The Respondent imposed upon the Claimant [sic] a particular requirement in respect to the assignment of his salary, namely, duration of membership of FRANZSCP, or its equivalent, British FRC Psych.
8.3The nature of the requirement was such that a substantially higher proportion of persons of a different race, namely, Australians or Australian psychiatrists, comply with the requirement, than those of the Complainant’s race, namely Sri Lankans or Sri Lankan psychiatrists.
8.4…
The parties have now requested that the Tribunal determine a series of preliminary questions. The questions are questions of law, so I am sitting alone pursuant to s 23(1a) of the Act.
Preliminary Questions
Question 1.Is the Complaint before the Equal Opportunity Tribunal (the “Tribunal”) out of time?
The Commissioner referred the complaint to the Tribunal pursuant to s 95B, which provides:
If, in respect of a complaint, the Commissioner –
(a) is of the opinion that the matter cannot be resolved by conciliation; or
(b) has attempted to resolve the matter by conciliation but has not been successful in that attempt; or
(c) has declined to recognise the complaint as one on which action should be taken and the complainant has, within 3 months of being notified of the Commissioner’s decision, by notice in writing, required the Commissioner to refer the complaint to the Tribunal,
the Commissioner must refer the matter to the Tribunal for hearing and determination.
The Act makes no provision for a complainant to bring a complaint directly to the Tribunal. Complaints must be made to the Commissioner, and only the Commissioner can refer a complaint to the Tribunal, although she must do so if required to by the complainant in accordance with s 95B(c).
The respondent’s argument with respect to the timing of the complaint does not relate to the referral of the complaint to the Tribunal. The respondent’s argument as to time relates to the timing of the making of the complaint to the Commissioner.
The complainant’s complaint was made to the Commissioner on 1 June 2010. The complaint was made pursuant to s 93 of the Act, which provides, relevantly:
93(1c) A complaint –
(a)must be in writing and set out the details of the alleged contravention; and
(b)must be lodged with the Commissioner.
(2) A complaint must be lodged –
(a)if the alleged contravention is constituted of a series of acts – within 12 months of the last of those acts;
(b)in any other case – within 12 months of the date on which the contravention is alleged to have been committed.
(2a)The Commissioner may, on application, extend the time for lodging a complaint, even if the time for lodging the complaint has expired, if the Commissioner is satisfied –
(a)that there is good reason why the complaint was not made within the stipulated time period; and
(b)that in all the circumstances it is just and equitable to do so.
(2b)If the Commissioner decides to refuse an application to extend the time for lodging a complaint, the Commissioner must give the applicant notice in writing of the decision and of the applicant’s right to have the decision reviewed.
The Act further provides, in s 96B:
(1) If the Commissioner has refused an application for an extension of time within which to lodge a complaint, the applicant may apply to the Tribunal for a review of the decision.
(2) An application for review must be made within 1 month after notification of the decision.
(3) The Tribunal may confirm the decision of the Commissioner or substitute its own decision.
Prior to amendments to the Act which came into force on 2 October 2009, the time provided for in s 93(2) was six months rather than twelve months and the Commissioner had no express power to extend time.
Mr O’Leary argued, on behalf of the respondent, that the complainant’s complaint to the Commissioner was out of time. Mr O’Leary argued that the complaint alleged that discrimination took place in April 2007. The time for the lodging of a complaint with the Commissioner was six months under s 93(2) of the Act as it was in 2007. Time therefore expired in October 2007. Mr O’Leary argued that the approaches by the complainant to various senior people in his workplace, as quoted above from his complaint, did not give rise to fresh acts of discrimination. Mr O’Leary argued that the only act of discrimination alleged in the complaint took place in April 2007.
If the discrimination was constituted of a series of acts, which Mr O’Leary doubted, then, in order to be within time, Mr O’Leary argued, the last of the series of acts would have to have been performed within the year before the making of the complaint to the Commissioner. Mr O’Leary argued that, in order for an alleged contravention of the act to be constituted of a series of acts for the purposes of s 93(2)(a), there would have to be a number of acts, or events, which are linked or connected to each other, and which are not simply the consequence of a single self contained act.[1]
[1] Janus v Lifeline Upper Spencer Gulf Inc (1991) EOC 92-382; Hills v State of South Australia (2001) EOC 93-145; Hills v State of South Australia (2002) 82 SASR 102
The copy documents tendered to the Tribunal by consent contained a letter from the Acting Commissioner for Equal Opportunity to the Crown Solicitor dated 20 September 2011. That letter said, in part:
I note that you consider that the alleged discrimination occurred in April 2007. If the complaint had been limited to allegations of unlawful discrimination at this time, then Dr Somasundaram’s complaint would have been outside the timeframe of the Act. S.93(2) of the Act was amended by the Equal Opportunity (Miscellaneous) Act 2009 (SA) with a date of commencement of 2 October 2009. Prior to this date the time limit in s.93(2) was six months, and I had no discretion to extend time. However, as noted previously, it was my view that there were allegations that fell within the timeframe of the Act when Dr Somasundaram lodged his complaint.
It seems from that letter (and from the notice referring the matter to the Tribunal) that the Acting Commissioner, whilst handling the complaint, considered the complaint to be within time, and dealt with it accordingly.
In effect, Mr O’Leary is asking the Tribunal to review the decision of the Acting Commissioner in relation to the question of whether the complaint made to her was made within time. Had the Acting Commissioner been applied to for an extension of time, and had she refused that application, then the complainant could have applied to the Tribunal for a review of that refusal pursuant to s 96B. However, the Acting Commissioner has treated the complaint as being within time, and has activated the jurisdiction of the Tribunal under s 95B of the Act. There is no provision in the Act for the Tribunal to review the handling of the complaint by the Commissioner, in respect of time, in those circumstances. The Tribunal has no jurisdiction to review the decision of the Commissioner to deal with the complaint as a complaint made within time.
The answer to question 1 is that the Act does not provide for complaints to be brought before the Tribunal by a complainant. Rather, complaints are referred to the Tribunal by the Commissioner. In the circumstances of this complaint and referral, there is no relevant time limit as far as the activation of the jurisdiction of the Tribunal by the referral to it of a complaint by the Commissioner is concerned. The Tribunal does not have jurisdiction to review a decision of the Commissioner to deal with a complaint as a complaint made to her within the time limits provided for in s 93(2) of the Act.[2]
Question 2 If the answer to question 1 is Yes:
[2] I acknowledge that this decision is contrary to the decision in Janus v Lifeline Upper Spencer Gulf Inc (1991) EOC 92-382, which was made in relation to an earlier version of the Act, which did not include s 93(2a) nor s 96B.
2.1 Is the Tribunal empowered to extend time? And
2.2 If the answer to question 2.1. is Yes, in the circumstances of this case, should time be extended.
In view of the answer to question 1, question 2 does not arise.
Question 3Is the complainant bound to the particulars of complaint initially made to the Commissioner of Equal Opportunity?
Mr O’Leary argued that it was axiomatic that the Tribunal’s jurisdiction is confined to the complaint filed by the complainant, and referred to s 93(1c), s 93(2) and s 95B of the Act. Mr O’Leary also relied upon the decision of the Tribunal in Patrick v State of South Australia[3] in which the Tribunal said:
It is clear from the Equal Opportunity Act that this Tribunal, in relation to a complaint that has been made to the Commissioner for Equal Opportunity, has jurisdiction only upon referral of the complaint to the Tribunal by the Commissioner: see section 93. It follows that the Tribunal cannot hear and determine any complaint of a contravention of the Act unless that alleged contravention has been the subject of a complaint first to the Commissioner, which has subsequently been referred to this Tribunal.[4]
[3] [2007] SAEOT 2 at [14]
[4] see also Rankin v State Electoral Office [2008] SAEOT 13 at [28]
The Act provides, in s 23(2):
The Tribunal must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms, and is not bound by the rules of evidence, but may inform itself on a matter in such manner as it thinks fit.
The Equal Opportunity Rules 1988 provide:
4(1)(ii)As soon as reasonably practicable after the filing of the notice of referral the Registrar shall notify the complainant named in the referral in writing that the referral has been filed and that the complainant is required to provide particulars of the complaint within the time specified in the notice, being fourteen days.
…
(iii)Within 14 days of service of the Registrar’s notice upon the complainant that person shall file in the Registry particulars of complaint stating:-
(a)the name and address of the person against whom the complaint is brought (“the respondent”),
(b)a concise statement of the material facts relied upon in respect of each and every allegation of discrimination, victimization or sexual harassment;
and
(c)the precise relief or order which the complainant seeks.
Mr O’Leary argued that the details of the alleged contravention of the Act must be specified in the complaint. The further and better particulars, and any amendments to the pleadings, are confined to what is necessary to more precisely identify the issues arising form the complaint. It is not permissible for a complainant to raise additional complaints or contraventions beyond those identified in the original complaint.
Mr Tredrea argued, in effect, that it was enough for the complainant to raise an allegation of a breach of the Act at the level of generality of “discrimination by an employer on the basis of race” in the initial complaint. All other information could then be supplied by way of particulars.
This question cannot be answered comprehensively in the abstract. I agree with Mr O’Leary that, in order for the Tribunal to deal with an issue, that issue must be the subject of the complaint referred to the Tribunal by the Commissioner pursuant to s 95B. However, in this case, the critical question is at what level of particularity the breach of the Act complained of needs to be set out in the complaint. In considering this question, it is important to bear in mind the provisions of s 23 of the Act, set out above. Complainants to the Commissioner are very often unrepresented at the stage of the making of the complaint. Many of them do not have a high level of education (this does not apply to Dr Somasundaram). Many have English as a second language, and some do not speak or write English at all. The preamble to the Act says that it is:
An Act to promote equality of opportunity between the citizens of this State; to prevent certain kinds of discrimination based on sex, race, disability, age or various other grounds; to facilitate the participation of citizens in the economic and social life of the community and to deal with related matters.
In this matter, the complainant raised in his complaint the question of the classification of his employment upon the renewal of his contract from April 2007. He said (and part of this is quoted above):
I was appointed in April 2006 as a consultant at level 3 taking into account my having gained the British FRCPsych in Feb 2005 which was considered a pre-requisite (equivalent to the Australian FRANZCP) for my registration in Australia as a psychiatrist. I gained my Australian FRANZCP in Feb, 2007 which was a pre-requisite for specialist registration with Medical Board of South Australia. I have no complaint about these procedures by the Royal College of Psychiatrists and Medical Board of South Australia. But with the FRANZCP and Medical Board of South Australia specialist recognition, my past “relevant experience” should have been taken into account in my appointment at the subsequent annual cycle in April, 2007, when my contract was renewed. However, this was not done and I feel that this is discriminatory of foreign graduates most of whom come here from 3rd world developing countries.
The “Amended Particulars of Claim”, now provided on behalf of the complainant by his solicitors, seek to include, in the complaint, the assignment to Dr Somasundaram of a salary at Step 3, rather than Step 9, in May 2006, at the commencement of his employment with the State of South Australia, as an act of discrimination on the basis of race. On one reading of the complainant’s written complaint to the Commissioner, quoted above, he is specifically excluding his initial appointment in April 2006 from his complaint. There are other possible readings, however, and, in all of the circumstances, I think that it is sufficiently clear from the original complaint that Dr Somasundaram’s concerns were that his relevant experience was not being counted properly, on account of his race, when the level of his position was being assigned, so that the whole of the period of his employment, at least to the date of his complaint, was potentially placed in issue. I do not consider that a complaint to the Commissioner should be read strictly, as a pleading in a Court might be read.[5] Having regard to the purpose of the Act and s 23, I consider that, once a type of discrimination is raised in a complaint (in this case, discrimination on the basis of race), a degree of latitude should be given to the complainant with respect to the subsequent provision of particulars.
[5] see Dye v Commonwealth Securities Limited(No. 2) [2010] FCAFC 118 at para 46 and authorities cited therein
The answer to question 3, in so far as a useful answer can be given in the abstract, is that at least the type of discrimination alleged by the complainant needs to be raised in the complaint to the Commissioner, and the complaint needs to be referred to the Tribunal pursuant to s 95B, in order for the Tribunal to deal with discrimination of that type in relation to the complainant. However, in view of the preamble to the Act and s 23, and the nature of the jurisdiction, some latitude will be given to a complainant in providing further particulars and in amending the complaint.
Question 4Is [sic] the Complainant and the Tribunal bound by the particulars of the complaint, as expressed by the Commissioner in the Notice of Referral filed on 21 January 2011?
Mr O’Leary submitted that the Tribunal’s jurisdiction could neither be extended nor confined by the Commissioner’s “characterisation” of the complaint. I agree. Pursuant to s 95B of the Act, the Commissioner must, in specified circumstances, refer “the matter” to the Tribunal. “The matter” is the complaint. Nothing the Commissioner says in the Notice of Referral can alter the nature or the content of the complaint.
The answer to question 4 is No.
Question 5What Particulars of Claim, if any, now put before the Tribunal for determination by the Complainant [are] beyond the Tribunal’s jurisdiction?
In view of the reasons set out above, none of the particulars of claim now pleaded are beyond the Tribunal’s jurisdiction.
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