Tytler v GSL Custodial Services Pty Ltd - [2004] SAEOT 2

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
TYTLER v GSL CUSTODIAL SERVICES PTY LTD & ANOR
Reasons for Decision of His Honour Judge Muecke
10 November 2004
ADMINISTRATIVE LAW - PARTICULAR TRIBUNALS OR BODIES
Equal Opportunity Tribunal - allegations by a prisoner at Mount Gambier Prison of sexual harassment and harassment and victimisation - vicarious liability of a prison authority - scope of unlawful acts under s86 and s87 of the Equal Opportunity Act, 1984.
The complainant, a male prisoner, made allegations that he was sexually harassed by a female employee of a company administering the Mount Gambier Prison (and for which the company was vicariously liable) and that he was being victimised by the company - whether the complaint should be dismissed as not attracting the jurisdiction of the Tribunal, as disclosing no cause of action or complaint, or as being frivolous, vexatious, misconceived and lacking in substance.
Proceedings dismissed. None of the complaints attract the Tribunal's jurisdiction under s86 or s87 of the Equal Opportunity Act. The complaints under s86 were also trivial and lacking in any substance. Whether prisoners have protections of the Equal Opportunity Act not decided.
Equal Opportunity Act 1984 (SA) ss 5, 86, 87, 91, 96, 97; Correctional Services Act 1982 s35(1), referred to.

TYTLER v GSL CUSTODIAL SERVICES PTY LTD & ANOR
[2004] SAEOT 2

On 28 June 2004 the Registrar, Equal Opportunity Tribunal (“Tribunal”), received a letter dated 24 June 2004 from the Commissioner for Equal Opportunity (“Commissioner”). The letter indicated that the Commissioner referred to the Tribunal, pursuant to s95(8) of the Equal Opportunity Act, 1984 (“Act”), a complaint of Mr John Tytler of Pt Lincoln, made on 29 December 2003 against GSL Custodial Services Pty Ltd (“GSL”) and Ms Sonia Corbett. The letter referred to enclosing the Notice of Referral and a copy of the original complaint.
The enclosed notice referred to the Commissioner having declined a complaint from Mr Tytler against GSL and Ms Corbett made pursuant to the Act. The notice referred to the fact that the Commissioner had been requested by Mr Tytler to refer the matter to the Tribunal for hearing and determination. The notice set out particulars of the complaint as follows:
That between October 2002 and July 2003, Ms Sonia Corbett sexually harassed Mr Tytler contrary to Section 87(6)(b) of the Equal Opportunity Act, 1984 (SA) and further, that GSL Custodial Services Pty Ltd, committed an act or acts of victimisation contrary to Section 86 of the Equal Opportunity Act, 1984 (SA).
The enclosed letter from Mr Tytler dated 29 December 2003 was addressed to the Director of the Equal Opportunity Commission. Mr Tytler referred to writing “on a tentative basis so as to gauge the possibilities of action and support”.
Mr Tytler wrote that he was undergoing a sentence of imprisonment at Port Lincoln Prison, having been transferred to that prison on 8 October 2003 from the Mount Gambier Prison. He wrote that he had discovered, through Freedom of Information requests, that he had been transferred to Port Lincoln as a result of some comments he had made to a staff member that would suggest that he had developed an unhealthy relationship with the catering manager (at Mount Gambier Prison). He also referred to having discovered some notes from the Justice Information Centre which included: … “we believe he has an obsessive/fixation with the Catering Manager …”. Mr Tytler complained that both these entries were misleading as they suggested he was to blame.
In his letter Mr Tytler set out his belief that Group 4 management (which was a private company operating the Mount Gambier Prison under contract with the South Australian Government) removed him from that prison “because it was a quick easy solution to an on-going conflict” between the Catering Manager (Ms Corbett) and himself.
Mr Tytler described in some detail what he said were the background facts. He referred to he and the catering manager flirting with each other whilst he worked under her auspices in the kitchen of the Mt Gambier Prison. He alleged that at some later time she implied that she would like to have sex with Mr Tytler. He had said that he would not have sex with her and that she should think about her children and her job. He wrote that he was also thinking of his “position as a life sentenced prisoner and the impact of any sexual activity coming to the attention of the Parole Board”.
Mr Tytler wrote that although initially she seemed to accept his negative answer she had continued to ask him for sex. He had continued to refuse. The offers grew in intensity to the point where she was stalking him. He had asked her to stop stalking him. From that point she had become verbally aggressive towards him. She would also make provocative non-verbal signals relating to sex as well as verbally referring to sexual matters. She had started blaming him for things and the more he denied them the angrier she became. She had thrown tantrums. He had begged her to leave him alone. Her verbal abuse increased and was constant. He had pleaded with the unit management to get him out of the kitchen. Management had insisted there were no other jobs available.
Mr Tytler wrote that for the last six months of his time in the kitchen at Mt Gambier Prison the only reason he did not “break” was because of his social work training. He was, however, embarrassed, degraded, humiliated, frustrated, and at times felt hopeless and helpless.
After eventually leaving the kitchen he did not talk to the catering manager for two months. He was then summonsed by her and they talked. She said such things as “let me play with your dick like everyone else”.
Mr Tytler wrote that upon leaving Mt Gambier he had put in a request for an investigation of her behaviour. Up until four weeks before 29 December 2003 he had heard nothing. He had written to the unit manager and to Group 4, Melbourne. He had received a letter that the matter was now being investigated. On 29 December he was awaiting an outcome. He said that was his reason for writing to the Commissioner’s office. He wrote that he was not hopeful as the correctional system at times can be protective. The whole situation had caused him considerable grief and distress, and had impacted negatively on his family.
Mr Tytler asked the Commissioner if she could assist. He wrote a postscript to the letter. He referred to three letters/notes confirming his allegations concerning the catering manager. He wrote that the Department of Correctional Services, on learning he had the letters, searched him at Yatala Labour Prison in transit between Mt Gambier and Pt Lincoln. He was able to retain one letter after it was taken from him and then returned. He did not know the whereabouts of the other letters. Since then he had been able to gather two more letters that suggest his complaint is legitimate. He referred to having a letter from another inmate who asserted that the other inmate had been transferred to Pt Augusta because of the letter he wrote (in support of Mr Tytler). Mr Tytler wrote that he had written to the unit manager at Mt Gambier and was told that that prisoner was not transferred due to the letter’s content. Mr Tytler wrote that the “search (of him) at Yatala occurred due to information suggesting that I had received support in a possible complaint to Equal Opportunity, by Prison Officers to Management”.
The Registrar of the Tribunal not only received a copy of the letter to which I have just referred but also a copy of another letter written by Mr Tytler to the Commissioner. It was apparently received by the Equal Opportunity Commission on 27 January 2004.
In that letter Mr Tytler wrote that there appeared to be some misunderstanding regarding his tentative complaint. He wrote that his complaint was one that concerned sexual harassment, harassment and victimisation, and not discrimination nor his transfer from Mt Gambier. He identified the sexual harassment as coming from the catering manager at Mt Gambier Prison. He wrote that when he tried to resolve the issues arising from this harassment he was transferred. He wrote to “clarify my point of complaint as being sexual harassment, harassment and victimisation as a matter of process”.
On 13 July 2004 GSL filed an Answer in the Tribunal. In it GSL wholly denied liability to Mr Tytler. GSL relied upon the facts set out in its letter to the Equal Opportunity Commission dated 28 April 2004 in response to the complainant’s claim. That letter was attached to the Answer. It refers to the catering manager complaining to her unit manager that Mr Tytler was “stalking” her. She was very uncomfortable with what he was doing and questions he was asking about her. Mr Tytler was spoken to about that and he agreed to stay away from the kitchen and away from the catering manager. On 2 October 2003 a prison Programs Facilitator reported to management that Mr Tytler had approached her and made a number of statements concerning the catering manager. Those statements indicated that Mr Tytler had developed an “unhealthy” interest in the catering manager. Upon being informed of that the catering manager became very alarmed. She was fearful for her safety and the safety of her family. A decision was ultimately made to transfer Mr Tytler to Pt Lincoln. Upon being told of that decision Mr Tytler immediately submitted a number of forms alleging he had been the victim of sexual harassment, verbal abuse, threats and intimidation at the hands of the catering manager. The letter referred to Mr Tytler commencing a campaign of complaints against the Mt Gambier Prison upon his arrival at Pt Lincoln Prison. The letter referred to Mr Tytler commencing his complaints about being the victim of sexual harassment or abuse or any other inappropriate behaviour from the catering manager only after he had been informed of his impending transfer to Pt Lincoln. The letter referred to the fact that whilst being transferred to Pt Lincoln Mr Tytler was found in possession of three letters written by other prisoners alleging they had witnessed the catering manager acting inappropriately with Mr Tytler. Reference was made in the letter to those three prisoners.
On 13 July 2004 GSL also filed in the Tribunal an Application for Directions by which GSL sought an order that the Tribunal “dismiss these proceedings pursuant to s96(2) of the Equal Opportunity Act 1984 on the grounds that the proceedings are frivolous, vexatious, misconceived and lacking in substance”. In a supporting affidavit it was asserted that the two letters Mr Tytler had written to the Equal Opportunity Commission “sets out no cause of action or complaint that is possible to plead to”. It was asserted that there was “no substance or merit in the Complainant’s claims that he had been subjected to sexual harassment, harassment or victimisation”.
On 29 August 2004 Mr Tytler filed a Reply to GSL’s Application for Directions in which he asserted, in answer to the Defence of GSL:
1That the First Respondent (GSL) is vicariously liable re their employees actions, and have a duty to proactively present information preventing sexual harassment. The Second Respondent (Ms Corbett) acted in a manner that caused the Complainant to feel offended humiliated and intimidated through unsolicited and intentional acts of intimacy, requested sexual favours and the making of remarks that had sexual connotations pursuant to breaches of Sections 87(11)(a), (b) and (c) of the Equal Opportunity Act 1984.
2That the First Respondent did not investigate the complaint as per their policy, when informed of the sexual harassment and transferred the Complainant to another institution without check of the complaint.
3That the First Respondent refused to allow the Complainant a phone call to the Equal Opportunity Commission to lodge an harassment complaint while under their care and thus victimized the Complainant pursuant to Section 86(d) of the Equal Opportunity Act 1984.
4That the First Respondent when knowingly aware of the Complainant’s holding of evidence in support of harassment caused one document to be seized and copied without the Complainant’s permission, and thus victimized the Complainant pursuant to Section 86(d) of the Equal Opportunity Act 1984.
5That two other documents were found, provided to the First Respondent on their request, and such were never returned to the Complainant, and thus victimized the Complainant pursuant to Section 86(d) of the Equal Opportunity Act 1984.
Mr Tytler set out in his own affidavit his reply to the facts set out in GSL’s letter to the Equal Opportunity Commission of 28 April 2003. He added: “Particulars to be advised”.
By a letter dated 27 September 2004 addressed to the Tribunal Clerk of the Tribunal Mr Tytler advised that he had “not submitted any particulars as yet as I am waiting upon the outcome of applications for discover and interrogatories before filing particulars”. He referred to a hearing to strike out his complaint which was set for 20 October 2004. He sought an adjournment of that hearing as time did not allow him to seek the necessary information to provide argument against striking out his complaint. He referred to the fact that he was in the process of applying to the District Court (Port Augusta) for an injunction to prevent GSL from commencing the application to strike out his complaint, and for GSL to show cause as to why this matter should not be proceeded with. He set out other reasons for his request for an adjournment. The Tribunal Clerk wrote to Mr Tytler by letter dated 5 October 2004. Mr Tytler was advised that the hearing date listed for 20 October 2004 at 2.15pm would remain, with all rights to apply for an adjournment being preserved.
By a document received in the District Court of South Australia on 5 October 2004 Mr Tytler filed an “Applications to Seek Orders”. The document was headed Port Augusta Division of the District Court of South Australia. He was the applicant, GSL was the first respondent and Glenn Ahern was the second respondent. It seems that Mr Ahern was the prison director, GSL Custodial Services Pty Ltd, Mt Gambier Prison at the time Mr Tytler was there. In a letter dated 27 September 2004 accompanying that application Mr Tytler asked the Registrar of the District Court Port Augusta to have his application for an interlocutory injunction “heard at the earliest”. He wrote that he was presently incarcerated in Port Lincoln Prison and if he was required to attend the Tribunal he would have to leave that institution and be transferred to Yatala on 13 October 2004.
In his application Mr Tytler sought an “Prohibition Injunction order to prevent (GSL) from taking an action to strike out (his) action of sexual harassment and victimisation before the Equal Opportunity Tribunal”. He also sought a “ Quia Timet injunction (inter partes) to prevent (GSL) committing a threatened wrong that would substantially damage (him), and prevent the requirement of justice” in his matter presently before the Tribunal. He further sought an “interlocutory injunction preventing GSL Custodial Services from commencing a strike out application, until the Court hears argument on the legality of GSL Custodial Services action undermining the objects of the Equal Opportunity Act 1984, via the hearing of an application for a Prohibition or Quia timet Injunction”. Finally, Mr Tytler sought an order that Glenn Ahern “show cause why this matter should not proceed for summary judgment before the Equal Opportunity Tribunal”.
In documents filed in the Tribunal the catering manager has denied Mr Tytler’s allegations of sexual harassment against her. She has asserted that during her employment at Mt Gambier Prison she was harassed and threatened by Mr Tytler whilst carrying out her daily duties within the prison. That harassment and those threats was the main source of stress and anxiety she suffered which ultimately resulted in her resigning her position at GSL. She has asserted that Mr Tytler is continuing to carry out his threats and harassment towards her, to this day.
The matter came on before me on 20 October 2004. What had been set down for hearing and determination by me was GSL’s application to dismiss these proceedings pursuant to s96(2) of the Act on the grounds that the proceedings are frivolous, vexatious, misconceived and lacking in substance. Also before me, sitting as a Judge of the District Court, was Mr Tytler’s “Applications to Seek Orders” filed on 5 October 2004. That was his application seeking, amongst other things, injunctive relief to prevent GSL from taking action to strike out his action. As to that application Mr Tytler informed me that he was not pursuing that application.
Mr Tytler did, however, apply for an adjournment of GSL’s “strike-out” application. He submitted that the application should not proceed until there had been full discovery of documents necessary for him to answer the strike-out application. He referred to requiring discovery of the government’s contract with GSL, a contract between GSL and a TAFE in the south-east of South Australia, a contract that GSL had with Lifeline, GSL’s sexual harassment policy and duty of care policies, the catering manager’s CV, and her work appraisals and training record. A further ground submitted by Mr Tytler was that he had had insufficient time to prepare a response to an outline prepared by GSL’s solicitor for the strike-out application. That had been forwarded to the court and to Mr Tytler before he left Pt Lincoln. Finally, Mr Tytler relied on a submission that someone from GSL should be present to be cross-examined on certain matters alleged to be in dispute in relation to matters of fact in GSL’s outline.
I refused Mr Tytler’s application for an adjournment. I was not convinced that the documents he referred to as being necessary to be discovered for the purpose of the hearing were either necessary or relevant to GSL’s strike-out application. The outline indicated that the basis of GSL’s application was that Mr Tytler’s complaint, regardless of its content, does not attract the jurisdiction of the Tribunal. I was equally unconvinced that Mr Tytler had had insufficient time to prepare for the argument. He showed me what appeared to be a considerable volume of notes that he had prepared for submissions he wished to put before me. He also had a number of legal text books in court which he referred to in his written notes and in his submissions. I was satisfied that he had had ample time to prepare for the argument. Finally, I was satisfied that it was neither relevant nor necessary for any officers of GSL to be present in court for cross-examination on any matter. No notice had been given by Mr Tytler prior to the hearing that he required witnesses for cross-examination and, even if he had given such notice, that was a matter for the parties, not for the Tribunal.
GSL’s application then proceeded. As I indicated earlier, an outline had been provided to me and Mr Tytler by GSL’s solicitors. Mr Manuel, of counsel for GSL, spoke to that outline. Mr Tytler responded and ultimately tendered at the conclusion of the hearing a 28 page handwritten “Reply to counterclaim to strike out complaint”, by GSL (Exhibit A2). It is a detailed document with detailed references to the relevant legislation and references to High Court authority as well as to other authorities and legal texts.

I have earlier set out the Particulars of the Complaint in the Notice of Referral to the Tribunal by the Commissioner dated 24 June 2004. I have also referred to Mr Tytler’s two letters to the Commissioner. They were both expressed to be his tentative complaint. They were said to concern sexual harassment and harassment and victimisation.
The Particulars of the Complaint referred to the Tribunal were that GSL committed an act or acts of victimisation contrary to s86 of the Act, and that Ms Corbett sexually harassed Mr Tytler contrary to s87(6)(b) of the Act.
At the hearing before the Tribunal Mr Tytler identified his complaints with greater particularity.
S86 of the Act provides that it is unlawful for a person to commit an act of victimisation. The section sets out when a person commits an act of victimisation against another person. Mr Tytler better particularised his complaint against GSL by alleging that GSL committed an act of victimisation against him in that GSL treated him unfavourably on the ground that he had reasonably asserted his right to lodge a complaint or take other proceedings under the Act (s86(2)(d)), in that:
(1)GSL failed to investigate his complaint;
(2)he was disallowed a phone call by a social worker;
(3)that certain letters written by others in support of him were seized by officers at Yatala and in the case of two letters were not returned to him.
Mr Tytler better particularised his complaints against the catering manager pursuant to s87 of the Act by alleging as follows:
(1)That the catering manager, as an employee of GSL, unlawfully subjected him, a fellow employee, to sexual harassment (s87(2) of the Act).
(2)That the catering manager unlawfully subjected him to sexual harassment in the course of her performing for him services to which the Act applies (s87(6)(b) of the Act).
(3)That the catering manager, being an educational authority, unlawfully failed to take such steps as were reasonably necessary to ensure that none of her employees subjected him to sexual harassment (s87(8) of the Act).
Mr Tytler better particularised his complaints against GSL pursuant to s87 of the Act by alleging as follows:
(1)That GSL (being his employer) subjected him (as its employee) to sexual harassment (s87(1) of the Act).
(2)That GSL was vicariously liable for the acts of its employee, the catering manager at Mt Gambier Prison, whilst the catering manager was acting in the course of her employment with GSL in committing any or all of the three acts of sexual harassment particularised in the paragraph above. Mr Tytler alleged that GSL was vicariously liable in that it instructed, authorised or connived at any or all of those acts of sexual harassment committed by the catering manager.
The argument before me proceeded on the basis that the above were the complaints Mr Tytler wished to pursue before the Tribunal, notwithstanding that they were not all immediately apparent from his correspondence with the Commissioner and notwithstanding that he had submitted before me that they were not in final form. He submitted that the final extent of his complaints could not be ascertained or formulated until full discover had been made by GSL (and the catering manager).
S96(2)(a) of the Act provides that the Tribunal may, at any stage of proceedings, make an order dismissing the proceedings. GSL submitted that Mr Tytler’s complaints do not attract the jurisdiction of the Tribunal. It submitted that the Act has no application to prisoners of the crown. It submitted that the structure of the legislation, as well as its interaction with the Correctional Services Act 1982, make that clear. It submitted that as a statutory tribunal, the Tribunal is confined to dealing with matters that are within the scope of the Act.
There is no doubt in my mind about that last proposition. In order to identify whether Mr Tytler’s complaints are within the scope of the Act I considered it important to identify what they are. That was done at the hearing before me and I have set out what he identified to me. (I encourage the Commissioner to try to identify precise complaints when complaints are made and they are referred by the Commissioner to the Tribunal, particularly where there may be some lack of particularity.) I can only deal with what Mr Tytler’s complaints are, not with what he has not yet formulated as a complaint or complaints.
Mr Tytler alleges that GSL treated him unfavourably on the ground that he had reasonably asserted his right to lodge a complaint under the Act, being a complaint that he had been subjected to sexual harassment by the catering manager. I shall assume for present purposes that an alleged contravention of s87 in the context of an complaint under s86 does not require that the s87 allegation is a matter properly within the scope of the Act. Mr Tytler said that his allegation under s86 about being treated unfavourably was evidenced in three separate ways.
First, he alleged that GSL failed to investigate his complaint. Even if that was a matter which is properly characterised as unfavourable treatment (which I doubt) Mr Tytler’s original letter of complaint to the Commissioner indicated that the matter was being investigated at the time he made his complaint to the Commissioner, albeit not as quickly as he expected. He told the Commissioner that he was writing to the Commissioner’s office because he had not yet then heard of the outcome of the investigation.
Secondly, he alleges that GSL, through a social worker (apparently employed by GSL at Mt Gambier Prison), disallowed him a phone call. Mr Tytler told me that when Mr Tytler made his request to the social worker, that person indicated that the request could not be dealt with by her because she had a conflict of interest.
Thirdly, and finally, he alleges that officers at Yatala Labour Prison took letters from him, copied one and returned it to him, but did not return the others. He told me that he had accidentally left two letters in the transport which had taken him to Yatala Labour Prison from Mt Gambier. He alleges that those letters have been found and not returned to him. He has obtained other letters of support similar to those that have not been returned.
I do not consider that any of these allegations could properly be characterised as unlawful acts pursuant to s86 of the Act. Even if the first could fall within the ambit of s86, Mr Tytler’s letter to the Commission indicated that it was being investigated at the time he wrote to the Commissioner. The second could not, in my view, be said to be unfavourable treatment because it seems to me the social worker concerned refused to allow the phone call, if she did so refuse, because she had a conflict of interest. As to the third, it seems to me that they are not allegations against GSL but against the authorities at Yatala, assuming that they have any substance.
Even if any of them did fall within s86 I consider that they are such as to warrant dismissal by the Tribunal at this stage. I consider that they are trivial and lacking in any substance. I would dismiss them whether or not they are properly matters within the scope of the Act, and whether or not the Act properly has application to prisoners of the crown as was submitted by GSL.
To support his complaint against the catering manager under s87(2) of the Act Mr Tytler submitted that both he and the catering manager were employees of GSL. Mr Tytler submitted that a Job Description (Exhibit A1) indicates that he is an employee. Mr Tytler relied on a number of High Court authorities to argue that there were sufficient indicia relating to him to justify a finding that he was an employee of GSL. Mr Tytler relied on the interpretation section of the Act which provided that “employee” included an unpaid worker, and an “unpaid worker” is defined as meaning a person who performs any work for an employer for no remuneration.
I reject all those submissions. I consider there is no substance to any of them. Mr Tytler is a prisoner who is committed to a correctional institution pursuant to an order of a court. The person holding or acting in the position of Chief Executive Officer of the Department for Correctional Services has the custody of him. He is, while in a correctional institution, required to perform such work, whether within or outside the precincts of the correctional institution, as the manager (being the person for the time being in charge of the institution) directs. If he performs work he is entitled to an allowance at a rate from time to time fixed by the Minister with the approval of the Treasurer. This is further to an allowance to which he is entitled from time to time fixed by the Minister with the approval of the Treasurer while in a correctional institution. The Manager must deduct from his weekly income an amount calculated in accordance with the Minister’s directions for a levy imposed under the Victims of Crime Act 2001.
All these provisions are found in the Correctional Services Act 1982. None of them constitute indicia of an employer/employee relationship, let alone such a relationship between GSL and Mr Tytler.
Mr Tytler alleges that the catering manager unlawfully subjected him to sexual harassment in the course of her performing services to which the Act applies for him (s87(6)(b) of the Act). Mr Tytler was working in the kitchen at Mt Gambier Prison and the catering manager was in charge of the kitchen there. “Services to which this Act applies” means certain things that are set out in s5 of the Act. None of them could conceivably apply here, although (j) of the definition refers to “services provided by a government department, instrumentality or agency or a municipal or district council”. I am satisfied that the catering manager was not providing services to Mr Tytler as a government department, instrumentality or agency. (Neither was GSL.) Even if GSL could be said to be an agent of the Department for Correctional Services I do not consider that a proper construction of the Act would include “services” the Department for Correctional Services “provided” to a prisoner as falling within the definition. Even if it was, I am satisfied that the catering manager would not be “in the course of … performing services” for Mr Tytler by simply being the catering manager in charge of the kitchen at Mt Gambier Prison where he worked.
Finally, as against the catering manager, Mr Tytler alleges that she, as an educational authority, unlawfully failed to take such steps as were reasonably necessary to ensure as far as practicable that none of her employees subjected him, as a student, to sexual harassment (s87(8) of the Act). “Educational authority” is defined as meaning the person or body administering any school, college, university or other institution at which education or training is provided. I am satisfied that the catering manager does not fall within that definition and is therefore not an educational authority. (Neither is GSL). I reject Mr Tytler’s submissions as to s87(8) of the Act.
In summary, as to Mr Tytler’s complaints against the catering manager pursuant to s87 of the Act, I conclude that none of them fall properly within the scope of that section of the Act. I would dismiss them for that reason.
As against GSL, Mr Tytler alleges that it, being his employer, unlawfully subjected him (as an employee) to sexual harassment. S87(1) of the Act refers, however, to an employer to which that section applies as being a natural person. GSL is not a natural person and, for the reasons to which I have already referred, GSL is not Mr Tytler’s employer. S87(1) of the Act cannot apply in this case.
Mr Tytler’s other allegations against GSL are that it is vicariously liable for the acts of the catering manager whilst she was acting in the course of her employment with GSL by sexually harassing Mr Tytler in the ways already referred to.
I have concluded that the catering manager could not be found to have sexually harassed Mr Tytler in the ways he alleges. Accordingly, GSL cannot be vicariously liable under the Act for those alleged acts. In addition, there is no allegation or evidence that GSL instructed, authorised or connived at any act of sexual harassment of Mr Tytler by the catering manager. That is a further reason why GSL could not be vicariously liable for any act of sexual harassment committed by the catering manager (see s91(2) of the Act).
My conclusion is that I would dismiss Mr Tytler’s complaints against GSL and the catering manager because none of them, if they were established, fall within the purview of ss96 or 97 of the Act. If some did fall within s96 of the Act I would dismiss them as being trivial, vexatious, and lacking in any substance. I make no comment on the truth or otherwise of Mr Tytler’s allegations against Ms Corbett.
I have reached these conclusions without considering whether persons committed to a correctional institution pursuant to an order of a court or a warrant of commitment have, or are entitled to, the protections of the Act. Mr Tytler argued that they did have them and were entitled to them. He relied in part on s35(1) of the Correctional Services Act 1982. That section provides that “a prisoner is not by virtue of imprisonment debarred from the benefit of any Act or law relating to legal aid”. He submitted that that sub-section should be construed as providing that a prisoner is not debarred from the benefit of any Act. He submitted that the Equal Opportunity Act was such an Act. I reject that submission. S35(1) of the Correctional Services Act 1992 preserves the benefit of any Act relating to legal aid to a prisoner. It goes no further than that.
Mr Tytler also relied on a principle of statutory construction that where there is ambiguity in an Act of Parliament the court should adopt a construction that better attains the object of the legislation. He submitted that the fact that the Act did not apply directly to prisoners was an inadvertent Parliamentary oversight and that it should be construed to attain its stated object to prevent certain kinds of discrimination and to promote equality of opportunity for all citizens of the State. I acknowledge the rule of statutory construction and the objects of the Act but I reject Mr Tytler’s submission that I should construe the Act on the basis that the legislature had by oversight overlooked prisoners, and that I should construe the Act as applying to everyone rather than just to those persons identified in the detailed provisions of ss86 and 87 of the Act.
I do not find it necessary to decide whether prisoners have some or all of the benefits of the Act in appropriate circumstances. It is sufficient for my decision to conclude that none of Mr Tytler’s complaints fall within the sections of the Act relied on.
I dismiss his complaint in its entirety.