CITATION: Deva v University of Western Sydney [2006] NSWADT 350 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Pradeep Deva RESPONDENT University of Western Sydney FILE NUMBER: 061096 HEARING DATES: 06/12/06 SUBMISSIONS CLOSED: 12/06/2006 DATE OF DECISION: 12/12/2006 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application for leave to proceed MATTER FOR DECISION: Preliminary matter Anti-Discrimination Act 1977 LEGISLATION CITED : Superannuation (Resolution of Complaints) Act 1993 (Cth) Workplace Relations Act 1996 (Cth) CASES CITED: Military Superannuation & Benefits Board of Trustees No 1 v Drake [2003] FCA 78 Xu v Sydney West Area Health Service [2006] NSWADT 3 APPLICANT In person REPRESENTATION: RESPONDENT N Rontidis, Solicitor ORDERS: Leave for Mr Deva's complaint of discrimination to be the subject of proceedings before the Tribunal is refused. REASONS FOR DECISION Introduction 1 On 1 September 2005 Mr Deva lodged a complaint with the President of the Anti-Discrimination Board (ADB) alleging that the University of Western Sydney had discrimination against him on the ground of his race, age and marital status. The alleged discrimination relates to the termination of Mr Deva's employment with the University on 13 January 2005. Mr Deva had also applied to the Australian Industrial Relations Commission (AIRC) for relief in relation to the allegedly unfair termination of his employment. That matter was heard and determined on 21 June 2005, two months before Mr Deva lodged his complaint with the President of the ADB. The AIRC decided that the termination of Mr Deva's employment was not harsh, unjust or unreasonable. 2 The President of the ADB declined the discrimination complaint on the basis that the subject matter of the complaint had already been dealt with by the AIRC: Anti-Discrimination Act 1977 (AD Act), s 92(1). That provisions says that: (1) If at any stage of the President's investigation of a complaint: (a) the President is satisfied that: . . . (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. 3 If the President declines a complaint under this provision, the complainant may request that the complaint be referred to the Tribunal. However the Tribunal's leave is required before the matter can proceed: AD Act , s 96(1). A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1), but not including a complaint to which section 91 (2) applies, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. 4 The issue to be determined is whether I should give Mr Deva "leave" or permission to continue with his complaint. The AIRC hearing 5 The reason the University gave for terminating Mr Deva's employment was unsatisfactory performance. The AIRC found that Mr Deva had a long history of unsatisfactory work performance for which he was counselled on several occasions. It also found that Mr Deva was given an opportunity to respond to that counselling and had been paid while on leave for 11 months while his performance was reviewed. The AIRC concluded that there was a valid reason for Mr Deva's termination related to his work performance and that the reasons for termination were notified to him on specific occasions and formally dealt with in counselling sessions. Reasons Mr Deva says leave should be granted 6 Mr Deva submitted that the subject matter of his complaint was not dealt with by the Industrial Relations Commissioner for several reasons and tendered bundles of documents in support of his case. I examined those documents and concluded that they were not relevant to any finding I needed to make in order to decide whether or not to grant leave to Mr Deva for his complaint to be the subject of proceedings before the Tribunal. 7 In support of his submission Mr Deva said that his application to the AIRC related to unfair dismissal, not to unlawful termination on a discriminatory ground. The Workplace Relations Act 1996, as then enacted, allowed an employee to apply to the AIRC for relief in respect of a termination that was said to be "harsh, unjust or unreasonable": s 170CE. In addition, or in the alternative, an employee was able to apply for relief on the basis that the termination was for a discriminatory reason such as race, age or marital status: s 170CK(2)(f). Mr Deva sought relief for unfair dismissal, not for dismissal based on a discriminatory reason. He says that that was because he was given advice to take the "softly/softly" approach. 8 Another reason Mr Deva says that the subject matter of his complaint was not dealt with by the AIRC was that relevant evidence supporting his allegations of discrimination were not before the AIRC or if they were before it, the Commissioner did not read that evidence. Mr Deva said that while he mentioned Equal Employment Opportunity, the Commissioner found his submissions to be incomplete and incomprehensible. He says that that is because he did not include all the relevant information about the discriminatory treatment. In particular, Mr Deva said that three significant documents were not before the AIRC. He refers to those documents as documents 16, document 66 and document 69. These documents are emails from work colleagues and/or supervisors which Mr Deva says contain racial slurs against him. I have examined those documents but it is not necessary to make any findings about them in the context of these proceedings. 9 Finally, Mr Deva said that he was not able, or not permitted, to call all relevant witnesses in the proceedings before the AIRC. I do not need to take that submission any further. If Mr Deva is suggesting that the AIRC made an error of law in the way it conducted the hearing, then his remedy was to appeal against that decision. Approach to determining whether to grant leave 10 In deciding whether to grant leave, I am not conducting a merits review of the President's decision to decline the complaint. Nevertheless it is relevant to decide what the words "the subject-matter of the complaint" in s 92(1)(a)(v) mean. There was no dispute that Mr Deva's unfair dismissal application was "dealt with" by the AIRC or that the AIRC is a relevant body. 11 Provisions referring to complaints about the same "subject matter" can be found in legislation including the Human Rights and Equal Opportunity Commissioner Act 1986 (Cth), s 46PH(1)(d) and the Superannuation (Resolution of Complaints) Act 1993 (Cth), s 19(1). As far as I was able to ascertain, there has been no judicial consideration of the meaning of s 46PH(1)(d). However s 19(1) of the Superannuation (Resolution of Complaints) Act 1993 has been the subject of some judicial consideration. That provision refers to "a complaint about the same subject matter". In Military Superannuation & Benefits Board of Trustees No 1 v Drake [2003] FCA 78 Merkel J noted at [28] that: S19(1)(a) requires that the complaint to the Tribunal be "about the same subject matter" as the complaint to the trustee. It is significant that the statutory requirement in s19(1)(a) is not that the complaint to the Tribunal and to the trustee be the same complaint or be a complaint that makes the same claim for relief. The two complaints may still be about the same subject matter, notwithstanding that the way in which a complainant may wish to have the complaint resolved might differ in each complaint. 12 A similar point applies to s 92(1)(a)(v) of the AD Act . That provision does not require that the same complaint has been dealt with by another body. It merely requires that the subject matter of the complaint has been dealt with by another body. The subject matter of Mr Deva's application to the AIRC was that his employment was terminated unlawfully and that he should receive a remedy for that termination. That was also the subject matter of his complaint to the Anti-Discrimination Board. The subject matter does not change because Mr Deva says that the termination was for a discriminatory reason rather than because it was harsh, unjust or unreasonable. 13 The purpose of s 92(1)(a)(v) is to avoid an applicant bringing proceedings against the same respondent twice in relation to the same circumstances or events. It is an extension of the principle of res judicata. That principle is that once a judgment is entered, no further proceedings can be maintained on the same cause of action. Section 92(1)(v) applies to proceedings relating to the same subject matter. The public policy for both res judicata and s 92(1)(a)(v) are to protect respondents from being exposed more than once to litigation in relation to the same cause of action or the same circumstances or events. 14 In a previous decision, Xu v Sydney West Area Health Service [2006] NSWADT 3 (9 January 2006), I set out some general principles relating to the circumstances in which the Tribunal should grant leave for a complaint to proceed. That case related to a decision of the President of the ADB to decline a complaint as lacking in substance. Similar principles apply where the President exercises his discretion to decline a complaint because the subject matter has been dealt with by another body. In particular, there should be a substantial reason for leave to be granted. There was no such reason in this case. The subject-matter of the complaint has been dealt with by the AIRC and public policy considerations militate against Mr Deva being given another opportunity to seek relief for the termination of his employment. The University submitted, in the alternative, that the Tribunal should refuse leave because the complaint is frivolous, vexatious, misconceived or lacking in substance. Having decided not to grant leave on another basis, I do not need to consider that submission. Order 15 Leave for Mr Deva's complaint of discrimination to be the subject of proceedings before the Tribunal is refused. 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.