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 a complaint under the Act with the President of the Anti-Discrimination Board (the ADB) on 5 December 2002. The complaint, which was signed by Ms Nancy Carl, an Industrial Officer with the Labor Council of NSW, reads as follows:

Mrs Roslyn Stanborough has given us authority to make a complaint of Sex Discrimination (s 25 Anti-Discrimination Act) against Woolworths Limited (Woolworths) on her behalf. An authority from Mrs Stanborough is attached.

Mrs Stanborough was employed by Woolworths as an Accounts Payable Clerk for a period of 16 years and eight months.

Mrs Stanborough was made redundant by Woolworths on 25 October 2002 as a result of the decision of the Company to transfer their accounts section interstate. The Finance Department in which Mrs Stanborough was employed was staffed by predominantly female workers.

In accordance with the relevant Award, the “Woolworths Supermarkets and Warehouse Administration (State) Award”, Mrs Stanborough was paid redundancy of 20 weeks pay, as at the time of redundancy she had worked for the company for more than 6 years and was over the age of 45 years.

In approximately late August/early September 2002 Mrs Stanborough became aware that employees of Woolworths stores section known as Australian Independent Wholesalers at Warwick Farm, a predominantly male workplace, had been paid a maximum of 40 weeks redundancy. The 40 weeks paid to employees of the Stores was over and above the Award requirement of a maximum of 20 weeks pay.

The issue of the difference in redundancy payments between the female staff members at Blacktown and the male staff members at Warwick Farm was raised with Woolworths on several occasions, by Mrs Stanborough and her colleagues, by her Union and by the Labor Council. Woolworths indicated they did not intend to make an equivalent redundancy payment to the finance department and they would not reconsider their position. When asked why 40 weeks had been paid to the stores staff the representatives of Woolworths were unable to give a definitive answer.

It is the view of Mrs Stanborough that she (and a number of her colleagues) have been discriminated against on the basis of their sex and Mrs Stanborough has requested the matter be referred to the Anti-discrimination Board in an attempt to resolve the issue.

8 Woolworths was invited by the President of the ADB to respond to the complaint. It did so at length in a letter from Mr Gerry Carr, Manager – Workplace Relations, dated 23 January 2003. In that letter, under the heading ‘Separation benefits provided to employees of Australian Independent Wholesalers Pty Limited’, Mr Carr stated:

The employees referred to in the letter from the Labor Council of New South Wales dated 2 December 2002 and your letter are not employees of Woolworths. Rather they are employees of Australian Independent Wholesalers Pty Limited (AIW). Whilst AIW is a subsidiary of Woolworths, it is a separate legal entity and the separation benefits provided to its employees in a redundancy situation is a matter for AIW. AIW’s practice in relation to the provision of separation benefits to its employees is entirely irrelevant to the complaint.

9 As the complaint was not resolved by the President of the ADB it was referred to the Tribunal, on 4 March 2004, for adjudication. The parties subsequently filed Points of Complaint and Points of Defence in which the matters referred to in the previous two paragraphs were set out in some detail.

10 The applicant made the following allegations in her Points of Claim which are relevant to the issues presently under consideration in the respondent’s summary dismissal application:

a) at the time the applicant was made redundant she was working in the accounts department of Woolworths

b) the accounts department was a female dominated workplace as approximately 90% of the workforce was female

c) a few months earlier some employees of AIW, a subsidiary of Woolworths, were made redundant

d) AIW was a male dominated workplace as approximately 68% of the workforce was male

d) employees of AIW who were made redundant received more generous redundancy payments than the applicant and other employees in the accounts department of Woolworths who were made redundant

f) in the circumstances Woolworths discriminated against the applicant on the ground of sex in contravention of s 25(2)(a) of the Act.

11 The applicant has maintained at all times that her complaint is one of indirect discrimination on the ground of sex. The condition or requirement which was said to lead to indirect discrimination on the ground of sex was set out in paragraph 10 of the applicant’s Points of Claim where the applicant alleged that “in order for an employee to receive an above award redundancy package of 40 weeks severance from Woolworths, it was a requirement that the employee work for AIW”.

12 This allegation reveals the contention which lies at the heart of the applicant’s complaint. It is that Woolworths and AIW should be regarded as one and the same legal person for the purpose of determining whether Woolworths discriminated against the applicant on the ground of sex.

13 Woolworths made the following responses in its Points of Defence which are of relevance to this summary dismissal application:

a) Woolworths and AIW were at all relevant times separate and distinct corporate entities

b) when considering the rights and obligations created by the relevant provisions in the Act it is incorrect to compare Woolworths’ treatment of its employees with AIW’s treatment of its employees for Woolworths was not the “employer” of AIW’s employees.

14 The applicant filed Amended Points of Claim shortly before the hearing of this matter. Woolworths opposed the applicant’s right to do so on a number of grounds. The Tribunal decided not to rule on this matter until it determined the question posed in paragraph [2] because the manner in which the applicant cast her case in the Amended Points of Claim still rested on the contention that Woolworths and AIW should be regarded as one and the same legal person for the purpose of determining whether Woolworths discriminated against the applicant on the ground of sex.

15 In paragraph 10 of the Amended Points of Claim the applicant alleged that in order to obtain a more generous redundancy package from “the Woolworths group” than the package she received “it was a requirement that the employee be or be eligible to be a member of the National Union of Workers (NUW)”. The workers who were eligible to be members of the NUW were people who worked in the stores at AIW. Even though the term “Woolworths group” is not explained or defined in the Amended Points of Claim it is apparent from reading the document as a whole that it is intended to include both Woolworths and AIW. Thus, despite a change to the requirement or condition which was said to cause indirect discrimination on the ground of sex, the case still relies upon the argument that AIW’s actions may be treated as if they were Woolworth’s actions because the applicant’s fundamental concern has always been that some of AIW’s workers received more generous redundancy payments than Woolworths’ workers.

The question before the Tribunal

16 This case turns on the meaning of one word in the Act: employer. Various sections in the Act create legal rights and obligations. Some of those obligations are placed upon employers. The Act creates the statutory wrong of unlawful discrimination which may be committed on nominated grounds (such as race or sex), by particular people (such as employers), against particular people (such as employees), when engaging in particular activities (such as determining terms or conditions of employment).

17 The various statutory wrongs involving discrimination on the ground of sex are set out in Divisions 2 and 3 of Part 3 of the Act. In this case the statutory wrong which Woolworths is alleged to have committed is described in s 25(2) of the Act:

It is unlawful for an employer to discriminate against an employee on the ground of sex:
a) in the terms or conditions of employment which 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, or

c) by dismissing the employee or subjecting the employee to any other detriment.

18 The opening words of the subsection – “it is unlawful for an employer to discriminate against an employee on the ground of sex” – are given meaning by s 24(1) which reads as follows:

A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of sex if, on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

19 Paragraph (a) of s 24(1) refers to what is widely known as direct discrimination, whilst paragraph (b) refers to what is widely known as indirect discrimination. In this case, as we have noted, the applicant has alleged indirect discrimination.

20 Section 24(1) gives meaning to the words “discriminate against [a person] on the ground of sex” whenever they are used in Part 3 of the Act. The statutory wrong of discrimination on the ground of sex may be committed by a variety of people and organisations ranging from employers (s 25), to educational authorities (s 31A), to registered clubs (s 34A). In each instance the person who, or the organisation which, may commit the statutory wrong of discrimination on the ground of sex is the person referred in s 24(1) as “the perpetrator”. Thus, in this case, the corporate employer which is alleged to have breached s 25(2) of the Act, Woolworths, is the person referred to as the “perpetrator” in s 24(1). Consequently, when considering whether Woolworths breached s 25(2) of the Act, the Tribunal must determine whether it was the perpetrator of discrimination on the ground of sex as that concept is defined in s 24(1).

21 The statutory wrong of discrimination on the ground of sex which is found in s 25(2) may be committed by an “employer” against an “employee”. Those terms are not defined in the Act. The meaning of the word “employee”, as it is used in the Act, was considered by Spigelman CJ in Commissioner of Police v Estateof Russell (2002) 55 NSWLR 232 at 247-250 in the context of determining whether a police officer was an “employee” for the purposes of the attributed liability provision in the Act (s 53) which renders an “employer” liable for some actions of an “employee”.

22 Contrary to the submissions of counsel for the respondent, the Chief Justice’s remarks in Russell were not limited to the meaning of the word “employee” in s 53. Those remarks inform the meaning of the terms “employer” and “employee” whenever they are used in the Act. Spigelman CJ concluded that the term “employee” was not limited to a person who would fall within the common law meaning of that term (i.e. a person engaged to perform work under a contract of service), but extended to “a person who is paid for performing work on a regular basis at the request, and at the direction, of another” ((2002) 55 NSWLR at 248). After applying this test the Chief Justice concluded that, for the purposes of the Act, NSW police officers were employees of the Commissioner of Police even though the Commissioner and his/her officers were not in the relationship of employer and employee at common law. This interpretation received unanimous support in the Court of Appeal. Davies A-JA agreed with the judgment of Spigelman CJ and Stein JA agreed with the Chief Justice on this point.

23 Thus, on a proper understanding of the Chief Justice’s reasoning in Russell, when the terms “employer” and “employee” are used in the Act they may have, in some circumstances, a meaning which extends beyond the common law notions of employer and employee. The precise outer limits of who may be characterised as an “employer” and an “employee” for the purposes of the Act were not determined in Russell.

24 Whatever those outer limits may be, the applicant seeks to give the word “employer” a meaning which falls way beyond anything which can be reasonably drawn from the approach taken by the Chief Justice in Russell. It was not in dispute that the applicant and Woolworths were at all relevant times in a common law relationship of employer and employee. It was also not in dispute that at all relevant times there was no relationship between the applicant and AIW. The respondent sought, however, to contrast her treatment at the hands of Woolworths with AIW’s treatment of its employees.

25 By doing this, by framing her claim of indirect discrimination on the ground of sex in such a manner that it turns upon a comparison of Woolworths’ treatment of the applicant with AIW’s treatment of its employees, the applicant sought to attribute the conduct of AIW to Woolworths. In terms of the relevant statutory definition of discrimination on the ground of sex in s 24(1)(b) of the Act, the applicant seeks to have Woolworths and AIW treated as the one “perpetrator” for the purpose of measuring the impact of an alleged condition or requirement upon people of different gender. This cannot be done.

26 It was not in dispute that Woolworths and AIW were, at all relevant times, related companies. Company extracts reveal that Woolworths is a listed public company, whilst AIW is a proprietary company. Both companies share the same registered address and the companies have some directors in common. In his affidavit Mr Gerald Carr, the Corporate Workplace Relations Manager of Woolworths, stated that “in or about 1996, Woolworths acquired AIW as a wholly owned subsidiary”. Woolworths and AIW are clearly “related corporations” within the meaning of s 50 of the Corporations Act2001 (Cth).

27 In her written submissions Ms Wilson, the solicitor for the applicant, described at some length the involvement of Woolworths and its employees in the industrial affairs of AIW. Some of these assertions were disputed by counsel for Woolworths. Ms Wilson concluded her written submissions with the following statements:

The Applicant submits that Woolworths cannot have it both ways: it cannot be the employer sometimes and not others. It is party to an industrial agreement that regulates the employment of AIW employees; it made the decision to close down its AIW warehouse operation; it was closely in control of the AIW operations; and it included AIW in its corporate image and profile. Yet it now claims it is not the employer of AIW employees, when a claim of discrimination is made against it.

28 In the absence of extraordinary circumstances disputed questions of fact should not be resolved in a summary dismissal application. Where there is factual dispute the applicant’s version of the facts should be accepted for the purpose of determining whether the complaint should be summarily dismissed. Consequently, we must proceed on the basis that everything which the applicant has put in evidence is true (see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]). There is, however, a distinction between evidence advanced by the applicant and the conclusions which the applicant suggests can be reasonably drawn from that evidence. We are under no obligation in a summary dismissal application to accept, without question, the applicant’s assertions about a conclusion which may be drawn from the evidence. The Tribunal may reach its own conclusions about that which may be drawn from the evidence.

29 We do not accept the applicant’s submission that the evidence leads to the conclusion that Woolworths was “sometimes” the employer of AIW’s employees. Even if the assertions concerning Woolworths’ involvement in the industrial affairs of AIW are correct, it is not legally possible to attribute the actions of AIW to Woolworths for the purpose of deciding whether Woolworths, as an employer, discriminated against its former employee, Mrs Stanborough, on the ground of sex when determining the size of the redundancy payments to be made to Mrs Stanborough and other employees in the finance division. The case advanced by the applicant requires us to construe the word “employer” in s 25(2) of the Act to mean a corporate employer and some, or all, of its related companies. There is no reason why the word “employer” should be given that meaning.

30 Counsel for the respondent pointed out in their written submissions that it has been trite law since Salomon v Salomon and Co Ltd [1897] AC 22 was decided over a century ago that a company is a separate legal entity from those people who formed it and those who control it. The separate entity doctrine has implications for groups of companies. Each member of a group of companies is an independent legal entity. As Ford points out: “Although a group of companies is an economic unit, the initial position in law is that each member company is a separate legal entity with its own rights, privileges, duties and liabilities separate from those of other member companies” (H Ford, R Austin and I Ramsay, Ford’s Principles of Corporations Law (11th ed), LexisNexis Butterworths, Sydney, 2003 at p 131). The commercial life of the community takes place with this fundamental legal principle in mind.

31 From time to time various statutes expressly lift the corporate veil by declaring that in some circumstances the notion of a company’s separate legal status should be ignored or set aside. At other times the courts have been prepared to interpret statutes or principles of the general law in such a way that separate companies are treated as one and the same legal person when particular circumstances exist.

32 By chance an express statutory provision which lifts the corporate veil is found in s 25(4) of the Act. Section 25(3) of the Act provides that in certain limited circumstances the obligations cast upon employers by s 25(1) and (2) not to discriminate against various people on the ground of sex are set aside. One of those circumstances is what is commonly referred to as the ‘small employer exception’. Section 25(3)(b) provides, in effect, that it is quite lawful for an employer to discriminate on the ground of sex “where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5”.

33 This exception is qualified by s 25(4) which provides that:

For the purposes of subsection (3)(b), a corporation shall be regarded as the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.

34 Section 25(4) sets aside the notion of separate legal status for related corporations when undertaking the counting of employees required for the purpose of determining whether an employer falls within, or without, the ‘small business exception’ to the general prohibition upon sex discrimination in employment. The clear legislative purpose of s 25(4) is to prevent an employer who wishes to engage in sex discrimination from claiming the benefit of the ‘small business exception’ by establishing numerous related companies all of which do not employ more than five employees. Thus, the legislature has expressly declared in s 25(4) that in the limited circumstances governed by that sub-section the notion of separate legal status of related companies is set aside. The effect of s 25(4) is that an employer is to be treated as the employer of all of the employees of its related companies for the sole purpose of determining whether it has so few employees that it is entitled to fall within the ‘small business exception’ to the prohibition on sex discrimination in employment.

35 The proximity of this statutory provision, which casts aside the notion of the separate legal status of related corporations in limited circumstances, to the substantive provision relied upon by the applicant in this case cannot be ignored.

36 Whilst the old principle of statutory construction which was referred to as the expressio unius est exclusio alterius rule (‘an express reference to one matter indicates that other matters are excluded’) has been subsumed within the overarching legislative purpose approach to statutory interpretation (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355), it is significant that when seeking to give a meaning to a word in the Act (“employer”) we are confronted by a provision in the very same section of the Act which expressly declares that, for a limited purpose, the word should be given a meaning which sets aside the separate legal status of related companies, whereas the applicant submits that we should reach the same conclusion by implication when seeking to determine who is an “employer” for the general purposes of the Act.

37 It is impossible to resist the conclusion that if the word “employer”, when used in section 25(2), was intended to encompass the related companies of a corporate employer, the legislature would have included a provision to this effect, just as it did in s 25(4) when it declared that whilst undertaking the counting of employees required for the purpose of determining whether an employer is eligible to fall within the ‘small business exception’ to the general prohibition upon sex discrimination in employment, the separate legal status of related companies should be disregarded.

38 From time to time various courts and tribunals, as well as legislatures, have been prepared to lift the corporate veil by declaring that in some circumstances the notion of a company’s separate legal status should be ignored or set aside. That is what the applicant has urged us to do. In the circumstances of this case that would require us to interpret the word “employer” in such a way that in some instances that word should mean a corporate employer and some, or all, of its related companies. Whether we can do that in any case, because the existence of s 25(4) creates such a strong presumption against setting aside the notion of corporate legal status except in the circumstances to which that sub-section is directed, remains open to doubt. However, as counsel for the respondent conceded that it may be possible to do so in some instances we are prepared to proceed on the basis that there may be limited circumstances in which it would be permissible for the Tribunal to interpret the word “employer” in such a way that it included a company and some of its related corporate entities.

39 According to counsel for the respondent there are four circumstances in which the courts have been prepared to ignore or set aside a company’s separate legal status. They are when:

a) there are sham arrangements

b) a company acts as trustee or agent for another

c) a clear agency or partnership relationship is implied or imputed between companies; and

d) it is apparent that the corporate form is used to avoid an existing legal obligation.

40 For present purposes we are prepared to accept that this is a reasonable summary of the circumstances in which it may be possible to construe the word “employer” in such a way that the actions of one corporation may be attributed to a related corporate employer. It was not suggested by the solicitor for the applicant that there were any sham arrangements in this case or that AIW was established by Woolworths to avoid any legal obligations. It appears that the applicant relies upon the argument that because AIW was a subsidiary of Woolworths it was of necessity the agent of that company with the result that AIW’s actions should be treated as if they were the actions of Woolworths.

41 Agency is a legal doctrine in which one person (the agent) is authorised to act for another person (the principal) and to enter into transactions (e.g. contracts) which legally bind the principal. The courts have consistently held that more than mere subsidiary status is required in order to conclude that a parent company may be held legally responsible for the actions of a subsidiary as result of the doctrine of agency. Ford has described the state of the law as follows:

It follows from Salomon’s case that even where the company has only one member in a position to exercise complete control over it, whether it be a company controlled by a sole individual shareholder or a wholly-owned subsidiary company controlled by a parent company, control by that member will not make the company an agent of that member so as to make its acts bring rights or duties to the member: Gramophone and Typewriter Ltd vStanley [1908] 2 KB 89; Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 at 274. In the High Court the separation between the legal identities of parent and subsidiary has been emphasised: Industrial Equity Ltd v Blackburn (1977) 137 CLR 567 and Walker v Wimborne (1976) 137 CLR 1 at 6-7 per Mason J. (H Ford, R Austin and I Ramsay, Ford’s Principles of Corporations Law (11th ed), LexisNexis Butterworths, Sydney, 2003 at p 123)

42 This is not a case in which agency arises for there is no evidence that AIW was the mere agent of Woolworths in its dealings with its employees. It was not in dispute that AIW was acquired by Woolworths in 1996 as a going concern and that it operated thereafter as part of the Woolworths group of companies. It was also not in dispute that Mr Roger Corbett, the Group Managing Director of Woolworths, announced the cessation of AIW’s commercial activities in April 2002. This decision lead to some of AIW’s employees being made redundant and, as a result, some of those people received higher redundancy payments than those which were paid around the same time to people such as the applicant who worked in the accounts department for Woolworths.

43 In both instances the size of the redundancy payment was determined by an industrial instrument. The redundancy payment made to the applicant and her similarly placed colleagues in the accounts department was determined by a NSW award, the Woolworths Supermarket and Warehouse Administration (State) Award 2001, whereas the redundancy payment made to some of the AIW employees was governed by a Commonwealth certified agreement, the AIW-NUW Redundancy Entitlements Certified Agreement 2002. The fact that the redundancy payments in question were made under different industrial instruments which were made pursuant to different Acts of different parliaments does not lend any support to the argument that AIW acted at all relevant times as the agent of Woolworths.

44 In essence the applicant has argued that because of the intermingling of some of the activities of Woolworths and AIW, Woolworths should be regarded as the employer of AIW’s employees for the purposes of s 25(2) of the Act because for all practical purposes the two companies were one and the same entity. That may well be a reasonable response from the average person who is not interested in the niceties of company law, but it is not the answer compelled by law. Whilst it is understandable that the applicant may feel aggrieved by the fact some people employed within the same group of companies received more generous redundancy payments than others we cannot change the realities of company law.

45 As we have already noted, the entire commercial life of the community is conducted on the understanding that, except where parliament directs or except where the circumstances are highly unusual, companies, even though related, are separate legal entities. In the ordinary course of events one company is not legally responsible for the actions of another company just because they are related. Here there is no evidence to suggest that AIW was at all relevant times a mere agent of Woolworths and that, as a consequence, all of AIW’s actions as an employer should be attributed to Woolworths for the purpose of determining whether Woolworths was in breach of the sex discrimination provisions in the Act.

46 The answer to the question posed in paragraph [2] is ‘No’. Woolworths was not the employer of employees of AIW for the purpose of s 25(2) of the Act.

47 Unless the actions of AIW are attributed to Woolworths the applicant has no arguable case because her complaint relies upon a comparison of her redundancy payment with the redundancy payments made to the people who worked in the stores at AIW.

48 The Tribunal is given the power to summarily dismiss a complaint by s 102 of the Act which states:

The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a)(i) or (ii) or (b).

49 The grounds in s 92(1)(a)(i) or (ii) or (b) upon which the President may decline a complaint are:

The complaint, or part of the complaint, is frivolous misconceived or lacking in substance [s 92(1)(a)(i)]

The conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations [s 92(1)(a)(ii)]

The President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint [s 92(1)(b)]

50 There are numerous cases in which the meaning of the terms “misconceived” and “lacking in substance” have been considered. In keeping with statements made by Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 when dealing with similar provisions in Victorian anti-discrimination legislation, we propose to proceed on the basis that, in broad terms, “misconceived” means a “misunderstanding of legal principle” and “lacking in substance” means “an untenable proposition of law or fact”.

51 We are satisfied that the complaint is both misconceived and lacking in substance. The complaint is misconceived because the applicant has misunderstood the meaning of the word “employer” in s 25(2) of the Act. It is lacking in substance because even on the interpretation of the word “employer” which is most favourable to the applicant there is no evidence to suggest that AIW was at all relevant times the mere agent of Woolworths and that AIW’s actions in relation to redundancy payments to its former employees should be attributed to Woolworths.

52 The respondent’s application pursuant to s 102 of the Act must succeed. We order that the complaint be dismissed.