Equal Opportunity Tribunal of New South Wales CITATION: A -V- B [1997] NSWEOT COMPLAINANT: A RESPONDENT: B NUMBER: 70 of 1995 Mr G Ireland ( Judicial Member ) TRIBUNAL: Ms L Farmer OAM Ms L Mooney GROUNDS OF COMPLAINT: Discrimination on the grounds of race and sex in the area of employment DATES OF HEARING: 05/09/1997 DATE OF JUDGMENT: 06/13/1997 Complainant: Self Represented LEGAL REPRESENTATIVES: Respondent: Mr L McKay (Solicitor) Crown Solicitor's Office Ms C Ronalds (Counsel) JUDGMENT IN FAVOUR OF: This is an application made by the Respondent, seeking directions that parts of the points of claim, dated December 15, 1996, be struck out. In support of the application, the Respondent filed outlines of its submissions which were supported by further submissions by the Respondents counsel. On the hearing of the application the Complainant was not represented, for the purpose of argument relating to the Respondent's submissions. Mr. Harrington of counsel represented the complainant for the purpose of a preliminary application under section 101A (I) of the Anti-Discrimination Act 1977 (the Act) requesting the Tribunal to make arrangements with the Anti-Discrimination Board for an officer of the Board to appear at the enquiry to assist the Tribunal. After a short adjournment, in which the Tribunal considered this application, the Tribunal decided not to accede to this request and expressed its reasons viva voce. The application by the Respondent then proceeded. Before dealing with the matters raised by the Respondent, it would be useful to give a short outline of the history of the complaint. The Anti-Discrimination Board received a letter from the Complainant dated October 9, 1992, in which the Complainant dealt with her concerns culminating on October 9, 1992, with her suspension from her position as a teacher of biological techniques at the Sydney Institute of Technology where she had been employed since January 29, 1985. The Anti-Discrimination Board investigated the complaint and on February 18, 1993, it wrote to the acting Managing Director of the Respondent, formally notifying him of the complaint and attaching a synopsis of the allegations made by the Complainant. On December 19, 1994, the President of the Board advised the Complainant that he had formed the view that the complaint was lacking in substance and he declined to entertain it further. At the request of the Complainant, and in accordance with Section 91 (I) and (2) of the Act, the President referred the complaint to the Tribunal on July 3, 1995, for inquiry. The complaint has been before the Tribunal on a number of occasions to deal with applications by the Complainant for postponement of the hearing date and on applications by the Respondent to seek further and better particulars of the Complainants point of claim or to have the points of claim amended. The points of claim originally filed by the Complainant, were withdrawn by the Complainant and, at the direction of the Tribunal, the Complainant filed a further set of points of claim. The second set of points of claim were directed by the Tribunal to be amended and the points of claim that are now before the Tribunal were filed by the Complainant on December 16, 1996. This latter direction rose out of an application by the Respondent under Section 111 (I) of the Act seeking an order that the complaint be dismissed on the grounds of lack of substance. The Tribunal declined this application. As a result of the submissions of the parties, on this occasion the Tribunal directed that the points of claim be amended by deleting allegations referable to claims of victimisation under Section 50 of the Act, as the Tribunal was satisfied it did not have jurisdiction to consider a complaint of victimisation, no claim for victimisation having been made by the Complainant to the Anti-Discrimination Board. The Tribunal pointed out to the Complainant that if she wished to pursue a claim of victimisation it would be necessary for her to raise a claim of victimisation with the Anti-Discrimination Board and that it would be in the discretion of the President of that Board as to whether in the circumstances, he would consider such a complaint although out of time. In the present application the Respondent makes the following applications: A. matters raised in the points of claim which are part of the disciplinary process the subject of the decision of the Government and Related Employees Appeal Tribunal (GREAT) on April 16, 1997, should not be included or properly maintained in the points of claim for the following reasons: 1. by virtue of the operation of Section 54 (I)(a) of the Act; 2. consideration by the tribunal of matters that have been decided by GREAT would constitute abuse of process; 3. by virtue of the operation of Sections 24, 25, 54, 55 and 56 of Government and Related Employees Appeal Tribunal Act (1980) (GREAT Act), the Complainant is precluded from proceeding with the inquiry before this Tribunal. B. The inquiry before the Tribunal is restricted to consideration of the allegations arising out of the complaint considered by the Anti-Discrimination Board and to the extent that the points of claim raise issues outside the scope of the allegations considered by the Board, the offending parts of the points of claim should be struck out; C. that a significant amount of the claims made in the points of claim (paragraph 6) do not demonstrate any contravention of the Act, and should be struck out; D. that parts of the points of claim (paragraph 4) require revision as the reference to the provisions of the Act under which the alleged discrimination has occurred, refer to the provisions of the Act as amended in 1994, and should be amended to refer to the provisions of the relevant sections of the Act at the time of the alleged breaches; E. that the allegations in paragraph 8 of the points of claim, require further and better particulars, and the Respondent seeks a direction accordingly; F. that arising out of the directions made by the Tribunal, that the voluminous statement lodged by the Complainant in support of the points of claim will require revision and in an ancillary submission the Respondent has illustrated the parts of the statement which it is submitted, should be deleted. At the time of making her complaint to the Anti-Discrimination Board, the Complainant had been informed by the Respondent that it had suspended her from service with pay, and charged her with 14 counts of breaches of discipline under the Teaching Services Act 1980. A senior member of the Respondent was appointed to enquire into the charges, but that enquiry was discontinued. On December 22, 1994, another senior member of the Respondent was appointed to deal with the alleged breaches of discipline pursuant to regulations under the Technical and Further Education Teaching Service Regulation 1981. On May 11, 1995, that officer furnished a report to the managing director of the Respondent, advising that he had dismissed 9 of the 14 charges and, within the meaning of Section 83 (e) of the Teaching Services Act 1980, had found proven, the five remaining charges. He decided that the Complainant be reprimanded on one charge and on each of the other four charges that she be reduced in salary for 12 months. The Complainant appealed against this decision, to GREAT. GREAT heard the appeal on various dates commencing June 17, 1996, and delivered its decision on April 16, 1997. That Tribunal decided to set aside the decision to reduce the appellant in salary and in lieu thereof gave the Complainant a choice to tender her resignation or to be dismissed immediately. We note that in its conclusions the Tribunal stated "however, because we are of the view that the administration of this matter by the Respondent has not been blameless, and that more could have been done on an earlier time to resolve the matter, we have decided that the appellant should be given the option of resigning her employment, rather than being dismissed out of hand". This Tribunal considers that a clear distinction can be made between the nature of the proceedings and the matter that had to be decided by GREAT, on the one hand, and the nature of the proceedings and what is required to be considered by this Tribunal, on the other hand. "It is clear that the GREAT proceedings is not a criminal trial. It is a review by a statuary body of a particular administrative decision" - page 16 of the GREAT Decision. The particular administrative decision that was reviewed, was the decision taken on December 4, 1995, to reduce the Complainants salary for a period of 12 months. The GREAT decision also states "in the course of the hearing, however, the Respondent put the appellant on notice that she was now considered to be unsuitable for employment as a teacher in any college of TAFE and, therefore, the Respondent would be asking the Tribunal not only to disallow the appeal, but also to decide that she should be dismissed". The Tribunal took this latter course and decided that it should exercise the powers conferred by Section 48 (2) of the GREAT Act to "make such other decisions with respect to the appeal" as we think fit", by ordering a more severe disciplinary sanction than that imposed by the Respondent in the first instance. The reading of the decision of GREAT shows that it was concerned with the consideration of the issue of whether each of the charges of inefficiency had been made out. Those charges related to alleged unsatisfactory performance by the Complainant and covered the period from November 1, 1991, to September 11, 1992. The review by GREAT of these charges and the decision taken to suspend the Complainant on a reduced salary, can be contrasted with the inquiry to be made by this Tribunal, of alleged unlawful conduct by the Respondent rising out of the complaint made by the Complainant to the Anti-Discrimination Board. The issues to be considered by this Tribunal will deal with questions whether the Respondent during the relevant periods, to which we will refer later, unfairly treated the Complainant; whether any unfair treatment was on the ground of the race or sex of the Complainant; and whether any such discriminatory treatment was unlawful in the context of her work on one or more of the grounds proscribed in the Act. In relation to the application of Section 54 (I) of the Act, which excepts from the operation of the Act any unlawful conduct "if it was necessary for the person to do it in order to comply with the requirement of", inter ilia, any other Act or any other Regulation, the emphasis is on the necessity for the doing of the act which otherwise would be unlawful. Where there is a discretion in the doing of the act the element of necessity is not likely to arise. The provision should be construed narrowly (Waters & Ors vs. the Public Transport Corporation (1991) OC92-390). This complaint was made on October 9, 1992, the date on which the decision was taken to suspend the Complainant and on that day the Respondent wrote to the Complainant setting out the 14 charges of breach of discipline alleged against her. The complaint therefore, cannot traverse actions subsequent to October 9, 1992. The decision to suspend the Complainant on October 9, 1992, and decisions taken in relation to her employment prior to that date were not, in the view of the Tribunal decisions which it was necessary to take in terms of an Act or under regulations. Each of those decisions, on the face of the material before the Tribunal at this time, were matters of discretion taken by officers of the Respondent who were not bound by necessity as a consequence of legislative or regulative force to either make the decision at all or to make the decision in the form of the decision that was taken. The Tribunal considers that Section 54 (I) of the Act does not apply to except from the operation of the provisions of the Act, actions which would be unlawful and are based on the discretionary exercise of a power conferred under a provision of a statute or regulation. The Respondent submits that having regard to the decision of GREAT and to the appeal which has subsequently been made to the Supreme Court NSW against that decision, that the Tribunal is precluded from considering so much of the complaint as is covered by the decision of GREAT. Section 25 (3) of the GREAT Act prohibits an employee who has appealed to GREAT in respect of a decision of a kind the subject the appeal by the claimant, from appealing or instituting other proceedings under any Act or law "in respect of that decision". For the reasons referred to earlier, the Tribunal considers that the decision reviewed by GREAT is not directly the subject of the complaints about which the Tribunal is to enquire. The question of the jurisdictional issues that can arise where an employee appeals to GREAT against a decision of TAFE, was considered by GREAT in the matter of an appeal by Harrison against a decision of TAFE. GREAT delivered a decision on July 10, 1992, in which that Tribunal preferred the submission on behalf of the Complainant "that the decision which was attacked in the proceedings before the EOT was not the decision to demote the appellant which is challenged in the proceedings before this Tribunal but, rather, the decision of the Respondent to suspend her without pay and involve her in lengthy disciplinary proceedings which, as it happened, culminated in a decision of demotion. The complaint of discrimination before the EOT was that the initiation of the disciplinary process had been motivated by an act of unlawful victimisation in breach of the Anti-Discrimination Act". In the view of this Tribunal, a similar approach should be adopted in this inquiry. The Tribunal has already expressed its view that the inquiry by this Tribunal is of a different nature to the appeal made to GREAT. For the same reason, the Tribunal considers that the principle of abuse of process would not apply to prevent this Tribunal from maintaining its inquiry into the questions of discriminatory and unlawful conduct arising out of the Complainants allegations in her complaint. The Respondent further submitted that Part 5 of the GREAT Act contains provisions for appeals to the Supreme Court of NSW on a question of law. The Complainant has in accordance with these provisions appealed against the decision of GREAT. The submission of the Respondent is that once a decision is made by the Supreme Court in relation to an appeal from GREAT, this Tribunal could not overturn such a decision as it would be subject to the exception in Section 54 (I)(d) of the Act as an act necessary of one to comply with "an order of any court". The Respondent goes further and submits that even if the disciplinary process of the Respondent was unlawful under the Act, the Equal Opportunity Tribunal once an appeal is lodged to the Supreme Court has no power to declare it to be unlawful, as only a Judge of the Supreme Court of NSW has power to intervene and make a declaration as to validity of the disciplinary process. In the view of the Tribunal this submission also fails for the same reasons expressed earlier, namely, that the matters raised by the Complainant for inquiry by this Tribunal do not require the Tribunal to make orders relating to the unlawful nature of the disciplinary process as such, but require the Tribunal to consider allegations of unlawful conduct up to, and possibly including, the decision to bring 14 charges of inefficiency or non performance by the Complainant and to suspend her. The complaint does not encompass a consideration by this Tribunal of actions taken by officers of TAFE in relation to the Complainant, after the decision conveyed to her on October 9, 1992, of her suspension and the laying of 14 disciplinary charges against her. Any orders which this Tribunal might make arising out of its consideration of the actions of TAFE and its officers prior to the October 9, 1992, and arising under the Act, would not, in the view of the Tribunal, conflict or interfere with decisions which might be made by the Supreme Court of NSW in considering the appeal of the Complainant against the decision of GREAT. It is necessary now to progress to a consideration of the consequences to the points of claim of December 15, 1996, which flow from the decisions taken by the Tribunal. Consideration will be given also to the other matters raised by the Respondent as to the appropriate form of the paragraphs in the points of claim. Paragraph 4 needs to be clarified to ensure that it refers to the relevant provisions of the Act as they were in force at the times of the alleged discrimination. The Tribunal agrees with the submission of the Respondent that the relevant legislation is not the provisions of Sections 7, 24 and 25, as they presently apply. The Sections to be applied are those in force prior to the amendments in the 1994 amending act. In relation to the grounds relating to race in paragraph 4, no mention is made of a breach by the Respondent of Section 8 of the Act. This is an omission which should be corrected. There is also a need to examine and to specify with more precision which provisions of Section 8 and of Section 25, the Complainant will allege have been breached by the Respondent and which give rise to the claim of unlawful conduct by the Respondent. In relation to paragraph 6 of the points of claim, the Respondent has submitted that, with one exception viz. sub paragraph 18, the allegations should be confined to the period from April 1992, to October 1992. The Respondent submits that the complaint made to the Anti-Discrimination Board and referred by that Board to the Respondent for comment, only canvassed events between these dates. On reading the letters of complaint to the Anti-Discrimination Board, dated October 9, 1992, and supplemented by a letter of November 3, 1992, the Tribunal does not agree that the scope of the complaint should be restricted in the manner required by the Respondent. Reference has already been made to the scope of the inquiry not to include actions and events after October 9, 1992. Paragraph 6 does not seek to canvass such later periods, and the Tribunal considers it appropriate to emphasise this restriction to its inquiry. As to the scope of the inquiry for actions and events prior to April 1992, the Tribunal considers that it is relevant where it can be demonstrated that such actions and events have a connection with the build-up to the specific actions taken against the Complainant between April and October 1992, that such earlier actions and events should be allowed to be brought before the inquiry although they may not then be the subject of a separate item of complaint. The exception is that contained in sub paragraph 18 of paragraph 6 of the points of claim. The Tribunal would not require the Complainant to delete any parts of paragraph 6 but will allow the Complainant to encompass the material the Complainant wishes to present to the inquiry, by reference to actions and events which took place in periods between August 1988 and 9 October 1992. In relation to paragraph 8 of the points of claim, the Tribunal would not allow this claim to be maintained in its present form. Although it purports to be referable to discrimination against the Complainant contrary to Sections 7, 24, 52 and 53, of the Act, the allegation that the Complainant was "subjected to discrimination on the ground that she made a complaint to the EEO Officers", is a complaint of victimisation pursuant to Section 50 of the Act. The Tribunal has previously decided that it has no jurisdiction to hear a complaint of victimisation. The Tribunal would accordingly direct that paragraph 8 of the points of claim be deleted. The Tribunal, however, would consider the inclusion of the fact that a complaint had been made by the Complainant to the EEO Officer as an item that could be included as a further sub paragraph in paragraph 6 of the points of claim, as it may be relevant to the allegations of discrimination. The only remaining matter is to comment on the Respondents submissions concerning the Complainants statement. As a result of the views of the Tribunal expressed in this decision, paragraph 6 of the points of claim will not change. Although paragraph 6 when taken with paragraph 4 and paragraph 5, may not be an ideal form for compiling points of claim so that the Tribunal and the Respondent have a precise statement of the issues to be addressed in the inquiry, with the clarification of paragraph 4, there is sufficient material to enable the inquiry to proceed to a hearing. The Tribunal has referred to the considerable series of interlocutory applications that have been made in this matter. This process has not been assisted by the lack of legal representation for the Complainant. It appears that the Complainant will continue without legal assistance. In these circumstances, the Tribunal would not entertain any further applications aimed at elucidating or refining the issues to be dealt with in the inquiry. The nature of the Tribunals functions is to facilitate an expeditious hearing of an inquiry without the travail of the more formal pleadings of the superior courts. Taking into account the attempts by the Respondent to have the issues more clearly enunciated and the difficulties in this process arising from the Complainants lack of legal skills, the Tribunal directs that the parties now confer with the Registrar to establish mutually suitable dates for the hearing of this inquiry. In relation to the summons filed by the Complainant to be issued to GREAT requiring the production of transcripts and other documents held for the recent appeal by the Complainant to that Tribunal, as a result of the view taken by this Tribunal in this decision that this inquiry will not extend to events after 9 October 1992, it would not be appropriate for that summons to be issued. There will be no order as to costs in relation to this application. 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.