Hillman v Bankstown District Sports Club Ltd [2006] NSWADT 250

CITATION: Hillman v Bankstown District Sports Club Ltd [2006] NSWADT 250

DIVISION: Equal Opportunity Division

APPLICANT PARTIES: Jon Hillman RESPONDENT Bankstown District Sports Club Ltd

FILE NUMBER: 061045

HEARING DATES: 16/08/2006

SUBMISSIONS CLOSED: 08/17/2006

DATE OF DECISION: 08/21/2006

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Anti-Discrimination Act 1977

IW v City of Perth (1997) 191 CLR 1 CASES CITED: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Xu v Sydney West Area Health Service [2006] NSWADT 3 Yo Han Chung v University of Sydney [2002] FCA 106 Awadallah v CPA Australia [2004] FCA 768

APPLICANT In person REPRESENTATION: RESPONDENT D Robinson, barrister

ORDERS: 1. Leave is granted; 2. Application listed for a case conference on 20 September 2006 at 9.15a.m.

REASONS FOR DECISION Introduction 1 The Bankstown Sports Club Ltd (the Club) suspended Mr Hillman's membership as a result of an allegation of sexual harassment against him by a female employee of the Club. Mr Hillman complained to the President of the Anti-Discrimination Board (ADB) that the Club's actions constitute victimisation under the Anti-Discrimination Act 1977 (AD Act). The basis for that complaint was that Mr Hillman said that the Club had suspended his membership because, in 1997, he had complained to the ADB that another employee of the Club had discriminated against him on the ground of race. The President of the ADB declined Mr Hillman's complaint of victimisation on the basis that it was lacking in substance. Mr Hillman decided to pursue his complaint in the Tribunal but before he can do so, he needs the Tribunal's permission or "leave": AD Act, s 96(1). Approach to determining leave under section 96 2 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under s 96. I adopt those principles in relation to this case. In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. In relation to complaints of victimisation, s 50 of the AD Act requires Mr Hillman to prove that the Club has subjected him to a detriment (the suspension of his membership) on the ground that he made a complaint of race discrimination to the ADB against an employee of the Club in 1997. If this complaint goes to a hearing, Mr Hillman would have to prove that the suspension of his membership was "on the ground of" him having made the 1997 complaint. 3 The phrase "on the ground of" means whether the making of the 1997 complaint "had a real causative effect in the sense that but for its presence the act complained of would not have occurred": IW v City of Perth (1997) 191 CLR 1 at 62-64; see Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [43]. Mr Hillman must be able to point to direct evidence or evidence from which an inference can be drawn, which supports his assertion that but for his first complaint to the ADB, the Club would not have suspended his membership: Yo Han Chung v University of Sydney [2002] FCA 106 Spender J at [46]; Awadallah v CPA Australia [2004] FCA 768; Evidence linking first complaint with suspension 4 Mr Hillman points to several circumstances or events which, in his view, would establish that the reason the Club suspended his membership was "on the ground" that he made the 1997 complaint. I have chosen to highlight four of those matters. The first factor is that shortly after the alleged incident of sexual harassment occurred, an employee of the Club who approached him, knew his name. Mr Hillman says that the only way he would have known his name was if the employee who was the subject of his 1997 complaint told him. Mr Hillman bases this submission on his understanding that both employees have had supervisory positions at the Club since before 1997. 5 The Club's response to this submission is that as Mr Hillman visited the Club once or twice a month, it is not surprising that a long term employee would know his name. Further, the Club said that there could be numerous explanations for the employee knowing his name other than that the employee, the subject of Mr Hillman's first complaint, told him. 6 The second circumstance which Mr Hillman says suggests that he has been victimised is that the employee against whom he originally complained was present at the Club on one of the occasions when Mr Hillman was to meet with the Board about the allegations of sexual harassment. According to Mr Hillman the employee smirked at him and made comments which indicated that he was making his presence felt. Mr Hillman says that it is too much of a coincidence to conclude that the employee was there by chance. According to the Club, the behaviour of the employee on that evening is not suggestive of any involvement on his part. 7 The third event which aroused Mr Hillman's suspicions was that he says two of the Club's Board members who were determining the allegations of sexual harassment, made remarks during a meeting which suggested that they had already made up their mind that he was guilty. Again, the Club asserts that if those remarks were made, it is not necessarily indicative of any connection between his first complaint to the Board and the Club's determination of the sexual harassment allegation. Furthermore, the Club says that it was never notified of Mr Hillman's first complaint and that the ADB's file bears that out. Mr Hillman says that he notified the Club of his complaint to the ADB by letter dated 18 April 1997. Mr Hillman produced a copy of that letter but the Club said that it never received it. 8 The final matter which Mr Hillman says connects his first complaint with the Club's decision to suspend him is that the allegation of sexual harassment is totally false. He says that the five signed statements of witnesses to the alleged incident are incorrect and that it is highly suspicious that they were only provided three months after the alleged incident occurred. According to Mr Hillman, the employee who complained about his behaviour, the supervisor who questioned him and the employee who was the subject of his first complaint are all long term employees of the Club and know each other well. The other witnesses were relatively junior employees who Mr Hillman says could have been influenced by more senior employees to sign untrue statements. 9 Mr Hillman is also highly suspicious that the Club has not provided more CCTV footage of the incident. The Club says that they only have two minutes of CCTV footage and that that footage has been shown to Mr Hillman. Mr Hillman says that it is extremely difficult to believe that the Club does not have more footage of the incident given the number of cameras in the area in which the incident occurred. Mr Hillman says that that footage would establish that he did not sexually harass the employee. Conclusion 10 Given the nature of this application, I should take Mr Hillman's evidence, as distinct from the inferences or conclusions he draws, at its highest. Therefore I accept, for the purpose of deciding whether to give leave, that the following events took place: 1. An employee who questioned Mr Hillman after the alleged harassment incident knew his name. 2. That employee, the employee who made the sexual harassment allegation and the employee the subject of his first complaint of discrimination are all long term employees of the Club and know each other well. 3. The employee who was the subject of his first complaint was present when Mr Hillman was waiting to meet with the Board about the harassment allegations. He smirked at Mr Hillman and "made his presence felt". 4. Two of the Club's Board members made comments which suggested that they had made up their mind that Mr Hillman had harassed the employee before hearing his side of the story. 5. At least some of the Club's Board members knew, before Mr Hillman told them on 11 April 2005, that he had made a discrimination complaint against another employee in 1997. 6. The allegations of sexual harassment against him are false. 11 Ultimately Mr Hillman would have to establish that "but for" his first complaint the Board would not have suspended his membership. The Tribunal hearing the complaint would have to be satisfied that the Board members were motivated by a desire to pay back Mr Hillman for making the first complaint. The alternative scenario is that the Board members genuinely assessed the evidence in relation to the sexual harassment complaint against him and decided, on the basis of that evidence, to suspend him. 12 Despite the passage of time since Mr Hillman's first complaint, if Mr Hillman can ultimately prove all the matters alleged in paragraph 10 above, the Tribunal may be able to draw an inference that "but for" his first complaint he would not have been suspended. Until the evidence is presented and tested, it is not possible to predict the outcome of Mr Hillman's complaint. Nevertheless, taking his evidence at its highest, it has reasonable prospects of success. For that reason, leave is granted. Orders 1. Leave is granted. 2. Application listed for a case conference on 20 September 2006 at 9.15a.m