Stanborough v Woolworths Ltd

[2005] NSWADT 203

CITATION:	Stanborough v Woolworths Ltd [2005] NSWADT 203
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Roslyn Stanborough RESPONDENT Woolworths Ltd
FILE NUMBER:	041045
HEARING DATES:	07/06/2005
SUBMISSIONS CLOSED:	06/07/2005
DATE OF DECISION:	08/30/2005
BEFORE:	Rees N - Judicial Member; Lowe A - Non Judicial Member; Mooney L - Non Judicial Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Corporations Act 2001 (Cth)
CASES CITED:	Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Salomon v Salomon [1897] AC 22 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
REPRESENTATION:	APPLICANT M Wilson, solicitor RESPONDENT G Hatcher SC with K Eastman, barrister
ORDERS:	Complaint dismissed

Introduction

1 In this case the respondent has sought an order pursuant to s 102 of the Anti-Discrimination Act 1977 (the Act) that the applicant’s complaint of unlawful discrimination on the ground of sex be dismissed because it is misconceived or lacking in substance or, alternatively, because the complaint alleges conduct which if proven would not amount to a contravention of the Act.

2 In order to deal with this application the parties agreed upon a threshold question for the Tribunal to determine. That question is:

Was Woolworths Ltd, between April 2002 and October 2002, the employer of employees of Australian Independent Wholesalers Pty Limited (now ACN 001 259 301 Pty Limited) for the purpose of s 25(2) of the Anti-Discrimination Act 1977 (NSW)?

3 The applicant has complained that her former employer, Woolworths Ltd (Woolworths), discriminated against her on the ground of sex. The threshold question has been posed because of the way in which the applicant’s complaint has been cast. That complaint requires comparison of the way in which the applicant was treated by Woolworths when she was made redundant in October 2002 with the way in which former employees of Australian Independent Wholesalers Pty Limited (AIW) were treated when they were made redundant in August and September 2002.

4 It was not in dispute that at all relevant times Woolworths and AIW were related companies. The applicant has alleged that the redundancy payments made to the Woolworths employees, who were predominantly female, were far less generous than the redundancy payments made to a group of the AIW employees, who were predominantly male.

5 The respondent’s application was heard by the Tribunal at Sydney on 7 June 2005. Both parties were legally represented. The applicant was represented by Ms Wilson (solicitor) and the respondent was represented by Mr Hatcher SC and Ms Eastman.

6 Ms Wilson conceded that if the answer to the question posed in paragraph [2] was ‘No’ the applicant had no case because her complaint of sex discrimination, however cast, required comparison of her treatment with the treatment of former employees of AIW.

Background

7 The applicant, Ms Roslyn Stanborough, lodged…