HUMAN RIGHTS – application for leave pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) alleging unlawful discrimination – whether the applicant’s claims of sex discrimination and victimisation are reasonably arguable – consideration of James v WorkPower Inc [2018] FCA 2083
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Wilson v Britten-Jones (No 2) [2020] FCA 1290
Case
[2020] FCA 1290
Decision Date
CaseChat Overview and Summary
In Wilson v Britten-Jones (No 2), the applicant, an equity partner and former deputy managing partner of a law firm, sought leave to commence proceedings against the managing partner, alleging unlawful discrimination and victimisation under the Sex Discrimination Act 1984 (Cth). The applicant alleged that her removal from her positions was discriminatory and a retaliatory act following her reporting of workplace bullying by her colleagues. The court had to decide whether the applicant's claims of sex discrimination and victimisation were reasonably arguable, considering the principles set out in James v WorkPower Inc.
The primary legal issue was whether the applicant had established a reasonably arguable case for her claims under the Sex Discrimination Act. The court considered whether the allegations of victimisation were factually arguable, applying the standard from James v WorkPower and subsequent cases. The court also examined the broader context of the applicant's claims, including her position within the firm and the nature of the complaints against her.
The court found that the applicant's claims of victimisation were not reasonably arguable, as they did not meet the factual threshold set by the precedents. Although the applicant had alleged various procedural flaws and inappropriate conduct by the managing partner, the court held that these did not establish a reasonably arguable case of victimisation. The applicant had not demonstrated a causal link between her reporting of bullying and her subsequent treatment by the managing partner that would satisfy the requirements of the Act.
As a result, the court refused leave to commence proceedings on the claims of sex discrimination and victimisation. The applicant could still proceed with other claims outlined in her application. The court's decision was based on the lack of factual basis for the victimisation claims and the high threshold for establishing such claims under the relevant legislation.
The court ordered that leave to make an application under section 46PO(1) of the Australian Human Rights Commission Act 1984 (Cth) be refused. This decision was in line with the Federal Court Rules 2011, particularly Rule 39.32, which governs the entry of orders in such proceedings.
Orders
Orders of the court
1. Leave to make an application pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1984 (Cth), be refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
In that context it is first appropriate to outline the factual background to this matter and the statutory framework and principles relevant to the grant of leave. Factual background The following factual background is only a brief overview, and contains allegations that the applicant seeks to establish if leave is granted. As noted above, these events occurred in the context of the applicant being an equity partner of the law firm, Piper Alderman, which she had been since March 2012. The applicant was the leader of the property practice group and deputy managing partner. In late October 2018 complaints were made against the applicant by two junior female lawyers of the firm, who were members of her practice group. The complaints concerned allegations of workplace bullying by the applicant of those lawyers, who were working under her supervision. In early November 2018 the applicant was advised by the managing partner of the firm, Mr Tony Britten-Jones, of those complaints. The complaints were referred by Mr Britten-Jones to Mr Tim Capelin, a partner of the firm whose area of expertise is in employment law. On or about 23 November 2018 Mr Capelin engaged an external barrister, Ms Penny Thew, on behalf of the firm to conduct an independent investigation into the allegations of bullying made against the applicant. Ms Thew conducted her investigation throughout late November and early December 2019, which involved interviewing the complainants, the applicant and other staff members who were witnesses. Ms Thew appears to have provided to management on about 14 December 2018 a completed report, however which at that time remained in “draft”. The report in what appears to be final form is dated 21 December 2018 (the Thew report). The report produced by Ms Thew as a result of the investigation, inter alia, reached the conclusion that some of the allegations were sustained. In evidence, principally filed by each party in relation to the supplementary submissions, were a number of email communications between relevant persons leading up to and after the provision of the report. These included references to the conduct of the applicant both as to the foundation of the complaints, and after being notified of the complaints. On 6 January 2019, the applicant was advised by Mr Britten-Jones that she was to be provided with the report the next day, and that her response would be required within 7 days. On 6 January 2019 Mr Britten-Jones also notified the applicant that he had purported to remove the applicant from her positions of property practice team leader and deputy managing partner. On 14 January 2019 the applicant’s solicitors wrote to Mr Britten-Jones and made a number of allegations and threats. These included: that during a meeting held with the applicant on 22 November 2018 Mr Britten-Jones engaged in “inappropriate bullying conduct”; that the applicant had been advised that she has “separate rights in defamation” against three-named individuals, including the two complainants and that it was anticipated that in the near future they would be issuing each of those individuals with a “Concerns Notice” (see s 14 of the Defamation Act 2005 (NSW)); complaints as to the procedures adopted by Ms Thew, and that they were flawed, and also the fact that there had been no mediation as an alternative; that Ms Thew was not sufficiently experienced to undertake the investigation entrusted to her and that the matter should have been instead referred to a more senior practitioner; that the applicant had concerns regarding the integrity of a number of witnesses and suggested that one of them (not the complainants) gave evidence that was “completely fictitious”; and that it was suggested by the applicant that falsified documents were provided to the investigator.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Leaving aside the issue as to whether this Court has jurisdiction as to victimisation, the allegations of victimisation pleaded in paragraphs [73] and [74] of the statement of claim are factually not reasonably arguable as interpreted in James v WorkPower, and later authorities. Again accepting the bar for the grant of leave is not particularly high, even assuming this Court has jurisdiction, the applicant has not established that she has a reasonably arguable case in relation to the claim of victimisation. Conclusion For the reasons given above, leave to commence proceedings in relation to the claims of sex discrimination and victimisation under the SD Act is refused. I note that the applicant also agitates other claims in her originating application which can now proceed.
Ratio Decidendi
Legal Principle Established
The test as to apparent relevance is a low threshold, and as both sexual harassment and bullying relate to workplace conduct, at this early stage, the apparent relevance of those paragraphs (save for those identified below) is established. Consideration As a preliminary observation, there is some inconsistency in the terms of the amended notice, where some, but not all like paragraphs contain impugned phrases. There is also overlap between some paragraphs in relation to the documents sought. Having received the respondents’ objections, I note the applicant did not further seek to amend the amended notice to address any of the matters raised. There was merit in some of the respondents’ objections. As the respondents identified, many of the paragraphs relate to matters covered in the Partnership Act notice. However, as the applicant submitted, that without more is not a basis to challenge the amended notice as an abuse of process. Nor is the fact that in answer to the Partnership Act notice, the respondents produced those documents for inspection. That said, the claims in respect to those matters which were in the Partnership Act notice appear generally now to be in broader terms than in that notice. For example, “any employee of the partnership” in the amended notice (and the reference to “member of the partnership” in the original notice to produce) are concepts, with perhaps two limited exceptions (see paragraph [4] and [8] of the Partnership Act notice), which have been added to the relevantly similar requests made in the Partnership Act notice, broadening that which was originally requested as relevant. Also introduced in the amended notice was the phrase “expressions of concern” which was added to “complaints and allegations” (which had been referred to in the relevantly similar request in the Partnership Act notice). There is no explanation for the inclusion of the broader terms. For example, there is no evidence, or suggestion that viewing a particular document has led to a basis to seek production of further documents. That tends to support the submission that the broader terms are fishing. Against that background I turn to the objections. While I am not satisfied that the amended notice should be set aside in its entirety, some aspects should be struck out. There are two common features of many of the paragraphs of the amended notice which are problematic. None of the features should be considered in isolation, as many of the paragraphs have more than one of the features below, which necessarily exacerbates the issues that arise from that feature, with respect to each. In addition, separate issues arise in relation to particular paragraphs. First, paragraphs [1], [3], [7], [8], [12], [15], [17], [19], [24], each refer to documents evidencing and/or recording communications between six categories: five identified persons and then a catch all “any employee of the Partnership”. That latter phrase replaced “any other Member of the Partnership” to address concerns raised during the hearing about the breadth of that concept as defined in the notice to produce. Member of the Partnership was defined as “includes all or any party, associated staff, principal, employee, contractor, solicitor, partner, consultant or any related entity of the Partnership”.