CITATION: Jordan -v- Northern Rivers Area Health Service [2004] NSWADT 207 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Kylie Jordan RESPONDENT Northern Rivers Area Health Service FILE NUMBER: 031083 HEARING DATES: In chambers SUBMISSIONS CLOSED: 07/05/2004 DATE OF DECISION: 09/21/2004 BEFORE: Rice S - Judicial Member; Weule B - Non Judicial Member; Lowe A - Non Judicial Member APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance MATTER FOR DECISION: Preliminary LEGISLATION CITED : Anti-Discrimination Act 1977 Commissioner of Police, NSW Police Service v Mooney (EOD) [2001] NSWADTAP 20 CASES CITED: Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 Prakash -v- Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 Razaghi -v- Director-General, NSW Department of Health & Anor [2002] NSWADT 4 APPLICANT REPRESENTATION: J Sewell, solicitor RESPONDENT K Eastman, barrister ORDERS: 1. The respondent's application pursuant to s111 of the Anti-Discrimination Act is dismissed; 2. On or before 25 October 2004 the applicant will file and serve a statement setting out the evidence she will give at an inquiry in to the complaints she made to the Anti-Discrimination Board that have been referred to this Tribunal; 3. On or before 26 November 2004 the respondent will file statements of witnesses on whose evidence which it intends to rely at an inquiry; 4. The matter to be listed for inquiry for two days at or near Lismore at a date on or after 6 December 2004, to be arranged by the Registry in discussion with the parties or by direction of the Tribunal if the either parties requests such a direction. Decision 1 For the reasons given below, the application by the respondent, under s111 of the Anti-Discrimination Act 1979 (NSW) is dismissed. The matter will proceed to an inquiry in accordance with directions given at the conclusion of these reasons. Complaint 2 On 11 November 2002 Ms Kylie Jordan complained to the Anti-Discrimination Board (ADB) that the Northern Rivers Area Health Service (NRAHS) had discriminated against her on the ground of her sex. At issue at this stage of proceedings is whether Ms Jordan also complained to the ADB that NRAHS had victimised her. The President of the ADB dealt with a letter from Ms Jordan on the basis that it did convey such a complaint. 3 The ADB brought Ms Jordan's complaints to the attention of NRAHS, and NRAHS responded, denying the allegations. 4 The then Acting President of the ADB referred the complaints to this Tribunal for inquiry, pursuant to s94(1) of the Anti-Discrimination Act 1977 (NSW) ('AD Act'). NRAHS says that the complaint of victimisation was in fact not a complaint such that it could be referred. Section 111 application 5 The Tribunal decided that it is appropriate on this occasion to hear and decide, at this early stage of the inquiry, an application under s111 of the AD Act because at issue is the Tribunal's jurisdiction to determine the victimisation complaint. It was convenient therefore to hear the application under s111 that the complaints referred are misconceived and/or lacking in substance. 6 Section 111 (1) enables the Tribunal to dismiss a complaint if it is satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason it should not be entertained. 7 NRAHS filed submissions in support of its application under s111, and Ms Jordan filed submissions in reply. The parties agreed to have the application decided in chambers. 8 NRAHS argues that: · The Tribunal has no jurisdiction to determine the victimisation complaint because no complaint of victimisation was made in accordance with the Act, · The complaint of pregnancy discrimination is misconceived and lacking in substance, · If the Tribunal has jurisdiction in relation to the victimisation complaint, that complaint is also lacking in substance. Was a complaint of victimisation made? 9 The President's report relating to his inquiry (s94(1)) says in the Complaint Summary that "Ms Jordan lodged further complaints on 19 February . . . and 10 March 2003 . . . alleging victimisation against NRAHS". 10 NRAHS says that the President has purported to refer to this Tribunal for inquiry a matter that is not in fact a "complaint" within the meaning of the AD Act. NRAHS says that the Tribunal has no power to inquire into a matter referred by the President if it is not in fact a complaint. This, says the NRAHS is a question of jurisdictional fact, and the Tribunal must satisfy itself of the existence of this fact before proceeding with an inquiry. We agree (see eg Commissioner of Police, NSW Police Service v Mooney (EOD) [2001] NSWADTAP 20 at [31-33]). 11 Ms Jordan's letter of 19 February responds to matters raised by NRAHS in its letter of 21 January, sent in reply to the President's advice to it of the complaint of sex discrimination. NRAHS submits that no complaint is made in the letter of 19 February. We agree. We note that Ms Jordan in her submissions does not rely on anything in the letter of 19 February as constituting a complaint. 12 Ms Jordan's letter of 10 March appears from its opening sentence to respond to a request from an officer of the ADB: "Regarding your request for my added complaints they are as follows:". In the letter Ms Jordan makes two allegations which in summary are that on her return from maternity leave she was given an old and slow computer, without all the necessary programs on it, and that in early February 2003 the telephone she used in the collection room was disconnected. 13 NRAHS says that the letter of 10 March cannot be a 'complaint' under the AD Act because Ms Jordan has not acted on her own initiative to lodge a complaint, but has merely responded to a request for information from the ADB. Clearly the letter is a response to come communication Ms Jordan had with the ADB, but what that communication was, and whether Ms Jordan was responding to a request for information, or for, say, a written confirmation of a complaint she had made by phone, we do not know. All we know from the material before us is that the letter of 10 March was written by Ms Jordan "[r]egarding your request for my added complaints". There is nothing improper, and certainly nothing to invalidate a complaint, in the ADB requesting a person to put a complaint, or "added complaints", writing. 14 NRAHS says that the letter of 10 March cannot be a 'complaint' under the AD Act because an allegation of a contravention (s88(1)) must do more than merely document incidents or events. NRAHS says that mere reference to the occurrence of an event does not constitute an allegation of a contravention of the AD Act, and that a complaint of victimisation must allege a causal nexus between conduct causing detriment and the fact of an earlier event. 15 We agree with the approach and reasoning set out by this Tribunal, differently constituted, in Razaghi -v- Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at[22]: The authorities make it clear that, whilst the initial complaint to the President of the ADB must allege a contravention of the Act by another person, "it need not allege the relevant facts with the particularity of an indictment or a pleading "( Langley v Niland [1981] 2 NSWLR 104 at 107, per Hunt J). More recent cases have taken a particularly liberal view of the required minimum content of the initial complaint. The Federal Court, when dealing with similar provisions in Commonwealth anti-discrimination statutes concerning complaints to the Human Rights and Equal Opportunity Commission, has determined, on a number of occasions, that a complaint is valid if it contains nothing more than a broad allegation that another person has contravened the relevant Act ( see, eg Simplot Australia Pty Ltd v HREOC (1996) 69 FCR 90 (per Merkel J) and Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 (per Branson J)). An Appeal Panel of this Tribunal took a similar view in Commissioner of Police v Orr [2001] NSWADTAP 16 at paragraphs 14 to 16. 16 In her letter of 10 March 2003 Ms Jordan says that she is setting out "added complaints". She identifies conduct that she says took place, and detriment suffered as a result of that conduct. She identifies employees of NRAHS as being responsible for that conduct. The time at which she says that the conduct occurred is after the NHAS was aware of her having lodged a discrimination complaint. The employees of NRAHS she identifies were also identified by her in her earlier discrimination complaint. 17 In light of this, and taking an approach consistent with that Razaghi, we reject the submission that the letter of 10 March 2003 makes no allegation of victimisation within the meaning of the Act. That letter constituted a complaint within the meaning of s88 AD Act. The referral by the President was a referral of a complaint within the meaning of the AD Act and the Tribunal has the power to conduct an inquiry into that complaint. 18 The application to dismiss the complaint of victimisation for want of jurisdiction is unsuccessful. Are the complaints misconceived or lacking in substance? 19 In her complaint lodged on 11 November 2002, Ms Jordan says, in summary, that NRAHS twice refused her request that, because of her pregnancy, she be given light duties. 20 In deciding the s111 application we have had regard to the material filed by Ms Jordan and NRAHS, as well as the submissions made. The material filed is: · a document, with attachments, that Ms Jordan filed on 11 September 2003 in which she set out allegations and claims · a document in reply that NRAHS filed on 2 October which sets out replies to those allegations and claims · a document that Ms Jordan filed on 3 November 2003 which sets out in four points the remedy that she claims · a document in reply that NRAHS filed on 17 November which in a single point rejects the Ms Jordan's four points · a document that Ms Jordan filed on 23 March 2004 titled 'Points of Claim' which repeats the remedies claimed in the previous document, but also sets out 18 numbered paragraphs that describe events and make allegations · the statements of four witnesses that Ms Jordan filed on 23 March 2004. 21 NRAHS says that the material filed by Ms Jordan makes no reference to any provision of the AD Act, addresses none of the elements of unlawful discrimination, does not identify any terms and conditions that are said to be discriminatory, does not elaborate on any benefit that has been denied, does not identify a comparator, and does not identify a detriment. 22 The NRAHS submits that even if Ms Jordan's evidence is believed in its entirety, it fails to make out the elements required under the Act. 23 The point of the exercise of taking the evidence at its highest is not to see if all the elements to be proved are made out, but to determine whether the complaint is unlikely to succeed (see eg Prakash -v- Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 at [35].) The material does not itself have to prove the case – that is a matter for the inquiry – but has only to disclose a reasonable cause of action. If the material shows that the complaint is not "obviously untenable" or is not "manifestly faulty" or would not "involve useless expense" (see Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [10]) then it ought not be summarily dismissed. The complaint may have "proceeded this far because the Complainant has misunderstood legal principle or has been advancing an untenable proposition of law or fact" (Prakash at [35]). This assessment by the Tribunal is always subject to a complainant's dependence on material in the possession or knowledge of the respondent that would only become known at the inquiry (Margan at [11]). 24 Ms Jordan is under no obligation to make reference to any provision of the Act. She has clearly made a claim of discrimination on the ground of her sex. The respondent could be in no doubt: the terms of her complaint point inexorably in that direction; her complaint was characterised in that way by the President of the AD Act in his referral, who pointed out the relevant sections of the AD Act; NRAHS filed a document denying a sex discrimination claim, and NRAHS has assessed the adequacy of the material Ms Jordan has filed against the sex discrimination provisions of the AD Act. 25 The material filed by Ms Jordan identifies the conduct that Ms Jordan says was discriminatory – the refusal of her request for light duties. To the extent that material filed by Ms Jordan goes outside or beyond the complaints referred by the President the Tribunal has no power to conduct an inquiry into those matters. 26 The material filed identifies the ground on which Ms Jordan says she was discriminated against – her sex – which is a ground that is covered by the AD Act. The material identifies the situation in which she says that treatment occurred – employment – which is a situation covered by the AD Act. The material identifies the aspect of her employment to which she says the treatment related – the nature of the duties required of her – which, as terms or conditions of employment, is an aspect of employment covered by the AD Act. 27 The complaint of sex discrimination is not untenable. The allegation of sex discrimination clearly raise questions to be answered under the AD Act. 28 The material does not identify an actual comparator for purposes of determining whether there was direct discrimination. It may be that there was no actual comparator, in which case Ms Jordan must rely on establishing, principally through her examination of employees of the respondent, how a hypothetical comparator would have been treated. 29 NRAHS submits that there is "no hint" of a claim of indirect discrimination in the material filed. This is an argument that goes to the fairness of proceeding to inquiry on the state of the evidence as it is now, not to whether the complaint ought be summarily dismissed. We deal with it below as a procedural question to be addressed in the future management of the matter. 30 The application to dismiss the complaint of sex discrimination as misconceived and/or lacking in substance is unsuccessful. 31 We set out above the terms of the allegation of victimisation. It is not untenable. The allegation of victimisation clearly raise questions to be answered under the AD Act. Accordingly the application to dismiss the complaint of victimisation as misconceived and/or lacking in substance is unsuccessful. Future conduct of the matter 32 This identification at an early stage of whether the conduct complained of is direct or indirect discrimination is always a vexed issue, and one that causes justified concern on the part of a respondent. In making a claim of discrimination a complainant is required only to allege a contravention of the AD Act. When the matter reaches the Tribunal for inquiry, a complainant often cannot reasonably be expected to articulate their claim so as to distinguish between, in this case for example, s24(1)(a) and s24(1)(b) of the AD Act. Characterising the discrimination that occurred as having been "direct" or "indirect" is an exercise for the Tribunal, but the process of establishing one or the other characterisation raises very different evidentiary considerations, particularly in relation to questions of proof for a complainant and available defences for a respondent. 33 Direct and indirect discriminatory conduct can often be argued in the alternative, although cannot both be found to have occurred on the same facts. It is often unclear until the evidence is heard whether a person was in fact subject to a requirement or condition. As far as possible the prospect of indirect discrimination needs to be explored and anticipated before the hearing so that both parties are able to prepare their evidence accordingly. This minimises the need to adjourn an inquiry, for the sake of fairness, if it becomes clear only then that the alternative explanation of the facts is available. 34 In this case Ms Jordan is quite clear in alleging that she was required to carry out her normal duties in circumstances she could not, because of her pregnancy. Those allegations clearly indicate the possibility of a claim of indirect discrimination. 35 At the case conference on 4 June the parties agreed that, Ms Jordan having filed her evidence as previously directed, directions would be made for the respondent to file its evidence. In her submissions, through legal representatives, Ms Jordan indicates she would like to prepare amended points of claim. Orders 1. The respondent's application pursuant to s111 of the Anti-Discrimination Act is dismissed. 2. On or before 25 October 2004 the applicant will file and serve a statement setting out the evidence she will give at an inquiry into the complaints she made to the Anti-Discrimination Board that have been referred to this Tribunal. 3. On or before 26 November 2004 the respondent will file statements of witnesses on whose evidence it intends to rely at an inquiry. 4. The matter to be listed for inquiry for two days at or near Lismore at a date on or after 6 December 2004, to be arranged by the Registry in discussion with the parties or by direction of the Tribunal if the either parties requests such a direction. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.