Equal Opportunity Tribunal of New South Wales CITATION: Hughes -V- Bowral Cooperative Trading Limited & Ors [1997] NSWEOT COMPLAINANT: John Raymond Hughes RESPONDENT: Bowral Cooperative Trading Limited, George Neich, Shane Whatman, Billy Ridley NUMBER: 30 of 1997 TRIBUNAL: Judge H G Murrell S.C. ( Senior Judicial Member ) GROUNDS OF COMPLAINT: Homosexual discrimination in employment DATES OF HEARING: 03/04/1998 DATE OF JUDGMENT: 04/24/1998 Complainant: Mr C. Howell of Counsel instructed by R L Whyburn & Associates Respondent: LEGAL REPRESENTATIVES: First Respondent Ms K Barratt, Divisional Manager, Employee Relations, Employer's Federation of NSW Second, Third and Fourth Respondents Mr J Shaw of Counsel instructed by B Bilinsky & Co JUDGMENT IN FAVOUR OF: Complainant Summary Background 1. The first respondent was the complainant's former employer. At the time that the complainant was so employed, the second third and fourth respondents were employees of the first respondent. 2. Outside the section 88(3) six month statutory period, the complainant sought to make a compliant against the first respondent, alleging discrimination on the basis of perceived homosexuality. 3. After considering submissions by the first respondent, the President of the Anti-Discrimination Board accepted the complaint out of time. 4. Conciliation failed. The President referred the complaint to the Equal Opportunity Tribunal. 5. Without prior notice to the second, third or fourth respondents and in the absence of those respondents, at a directions hearing before the Tribunal the complainant was permitted to join the second, third and fourth respondents. 6. The complainant filed amended points of claim, alleging for the first time that the discriminatory conduct in question constituted homosexual vilification. 7. The complainant was not a homosexual person and had never claimed to be a homosexual person. 8. The second, third and fourth respondents contended that the Tribunal lacked jurisdiction to deal with any complaint against them. Alternatively, they should have been afforded procedural fairness in relation to the joinder application. Held 9. Section 98 enables a party to become a respondent after a complaint has reached the Tribunal and without any need for the person to have been a respondent during the first part of the usual complaint process, ie that part of the process which involves the ADB. 10. Neither the requirements of procedural fairness nor the terms of the Act require that a prospective respondent be notified of an application for joinder or afforded a right to be heard on that application. 11. In the circumstances of the case, the joinder order was appropriate and should not be vacated. 12. In section 88(1D), the expression "the characteristic" refers both to "the characteristic of being a homosexual person" and to "the characteristic of being perceived to be a homosexual person". Section 88(1D) provides a remedy to a person who is vilified on the basis of perceived homosexuality. EQUAL OPPORTUNITY TRIBUNAL NO. 30 OF 1997 JOHN RAYMOND HUGHES -v- BOWRAL COOPERATIVE TRADING LIMITED (first respondent), GEORGE NEICH (second respondent), SHANE WHATMAN (third respondent) and BILLY RIDLEY (fourth respondent) JUDGMENT ON APPLICATION 1. BACKGROUND 1.1 The second, third and fourth respondents raise jurisdictional and other arguments as to why they should not remain parties to the inquiry into a complaint concerning their conduct towards the complainant when he was an employee of the first respondent. 1.2 Between 1981 and 20 March 1995 the complainant was employed by the first respondent as a shop assistant. 1.3 By a letter dated 3 November 1995 to the President of the Anti-Discrimination Board (the ABD), the complainant made a complaint against the first respondent in the following terms. (1) That the Co-op, by its employees, discriminated against Mr Hughes in his workplace because it was thought that he was a homosexual: Section 49ZH(2)(a) and (b). (2) That the Co-op discriminated against Mr Hughes in his application for promotion to Produce Manager because it was thought he was a homosexual: Section 49ZH(1)(a),(b) and (c). (3) Alternative to (2), that the discrimination set out in (1) so effected Mr Hughes' performance of his duties that he was not capable of presenting himself to the Co-op as a proper candidate for the position of Produce Manager. (4) That the Co-op discriminated against Mr Hughes in relation to his wages because it was thought that he was a homosexual: Section 49ZH(2)(a). (5) That in respect of (1), (2), (3) and (4), Mr Hughes was treated less favourably than a person who was not thought to be homosexual. 1.4 On 22 January 1996 the President of the ADB notified the first respondent that he had received a complaint alleging discrimination on the ground of imputed homosexuality in the area of employment. The letter pointed out that the complaint had been made outside the statutory six month period and sought the first respondent's views as to whether the first respondent would be disadvantaged by the complaint was accepted out of time. 1.5 The first respondent submitted that the complaint should not be accepted. However, by a letter dated 24 May 1996 the President advised the first respondent that pursuant to section 88(4) of the Anti-Discrimination Act 1977 (the Act) he had determined to accept the complaint beyond the six month period. 1.6 On 12 November 1996 the Board held a conciliation conference attended by the complainant and officers of the first respondent. The conciliation conference failed to resolve the matter. Accordingly, on 13 March 1997 the President referred the complaint to the Tribunal. 1.7 At a directions hearing held on 19 June 1997, the Tribunal granted "leave to the complainant to join as additional respondents" the second, third and fourth respondents. The second, third and fourth respondents had no prior notice of the joinder application and were not represented on the application. 1.8 On 26 June 1997 the third respondent (and probably the second and fourth respondents) were advised that the Tribunal had granted leave for their joinder. 1.9 In August 1997 the second and third respondents instructed a solicitor to act for them. 1.10 On 24 October 1997 the complainant filed amended points of claim in which he named as respondents the second, third and fourth respondents. The amended points of claim allege that the second, third and fourth respondents assaulted the complainant and repeatedly made offensive comments and engaged in offensive conduct because of the complainant's perceived homosexuality. The amended points of claim contain the first allegation by the complainant that the alleged discriminatory conduct constituted homosexual vilification within the meaning of section 49ZT(1) of the Act. 2. RESPONDENT'S CONTENTIONS 2.1 On this application, the second third and fourth respondents advance the following contentions. (1) The Tribunal has no jurisdiction to deal with the second, third or fourth respondents as respondents to the complaint because, in breach of section 88(1) of the Act, the complainant has never lodged with the President of the ADB a written complaint against the second, third or fourth respondents. (2) The complainant is precluded from now proceeding with a complaint against the second, third or fourth respondents because the section 88(3) statutory six month period for lodgement of a complaint has expired and, unlike the President, the Tribunal has no jurisdiction to extend the statutory period for lodgement of a complaint. (3) Before directing joinder on 19 June 1997, the Tribunal should have given the second, third and fourth respondents prior notice of the complainant's joinder application and should have afforded the second, third and fourth respondents the opportunity of resisting the application. A proper review of the merits of the joinder application demonstrates that the second, third and fourth respondents should not be joined as respondents in the inquiry. Consequently, the joinder order should be vacated. (4) Pursuant to section 88(1D) of the Act, a vilification complaint cannot be lodged unless the person on whose behalf the complaint is lodged has or claims to have the characteristic that is the ground for the conduct that constitutes the alleged contravention. It is common ground that the complainant does not have the characteristic of being a homosexual person, and has never claimed to be a homosexual person. 3. CONTENTIONS (1) AND (2): NO COMPLAINT LODGED WITH THE PRESIDENT, AND EXPIRY OF THE TIME LIMIT WITHIN WHICH TO LODGE A COMPLAINT 3.1 The Tribunal's power to direct the joinder of a party is found in section 98 of the Act. Section 98 provides: (1) Where, before the holding of an inquiry, or at any stage during the holding of an inquiry, the Tribunal is of the opinion that a person ought to be joined as a party to the inquiry, it may, by notice in writing given to that person, join that person as a party to the inquiry. (2) If a person is joined as a party to the inquiry as a complainant or respondent, the person is for the purposes of this Part taken to be a complainant or respondent (as appropriate) in relation to the complaint concerned. 3.2 The effect of section 98(1) joinder is that the person joined is deemed to be a complainant or respondent (as appropriate) in relation to the complaint concerned. Section 98 enables a party to become a respondent after a complaint has reached the Tribunal and without any need for the person to have been a respondent during the first part of the usual complaint process, ie that part of the process which involves the ADB. The section 88(4) time for lodging a complaint is not directly relevant because the joinder of a person does not involve the lodging of a fresh complaint. Rather, a joined respondent becomes a respondent to an existing complaint. 4. CONTENTION (3): ALLEGED DENIAL OF PROCEDURAL FAIRNESS re s.98 JOINDER AND APPLICATION TO VACATE JOINDER ORDER 4.1 Joinder as a respondent does not of itself have any impact upon the rights or legitimate expectations of a person. Consequently, one would not expect that a person would be granted a hearing on the issue of joinder. In relation to the commencement of proceedings against a respondent, it is not usual for the prospective respondent to be heard on the question. The position is no different in the case of a joinder application. 4.2 Sections 99 and 101 of the Act expressly provided for notice and a right to appear and be heard at an inquiry. These rights are conferred upon parties. The express conferral of these rights is to be contrasted with the failure to make any express reference to rights of prospective parties. 4.3 Section 98(1) enables the Tribunal to join a person "by notice in writing given to that person". This expression suggests that the first notice which a person may expect to have of joinder is notice received after the event of joinder. 4.4 The Tribunal concludes that neither the requirements of procedural fairness nor the terms of the Act require that a prospective respondent be notified of an application for joinder or afforded a right to be heard on that application. 4.5 Nevertheless, the Tribunal has entertained submissions from the second, third and fourth respondents to the effect that they should not have been joined as respondents, and that the joinder order should be vacated. 4.6 The second, third and fourth respondents rely on the seriousness of the allegations levelled against them (including the allegations of vilification), the period of time which elapsed between the termination of the complainant's employment and the joinder application, and to the fact that they have been denied the benefit of making representations to the ADB and participating in the Board's conciliation process. 4.7 The seriousness of the allegations suggests that the Tribunal should inquire into the allegations. 4.8 The time lapse between 30 March 1995 (the end of the period of alleged discriminatory conduct) and mid 1997 (when the joinder application was made and the respondents were advised of their joinder) is significant, particularly when contrasted with the statutory period of six months for lodging a complaint. However, in the absence of evidence as to when the substance of the complaint actually came to the attention of the second, third and fourth respondents, the Tribunal cannot conclude that a time lapse of this length has occasioned substantial prejudice. 4.9 It is true that the second, third and fourth respondents have been denied the benefits of having the matter proceed through the ADB. An important benefit of that process would have been participation in a conciliation conference convened pursuant to section 92. However, pursuant to section 106 of the Act, the complaint against the second, third and fourth respondents may still be resolved by conciliation. The Tribunal is required to take all such steps as to it seem reasonable to effect an amicable settlement. It is the Tribunal's practice to encourage parties to attend mediation. Mediation is available to the complainant and the second, third and fourth respondents at any time before the conclusion of the Tribunal's inquiry. 4.10 The Tribunal is satisfied that the joinder order was appropriate and should not be vacated. 5. CONTENTION (4): ALLEGATION THAT s.88(1D) PRECLUDES PURSUIT OF VILIFICATION COMPLAINT 5.1 Section 49ZT(1) provides: (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. 5.2 Paragraph 55 of the complainant's amended points of claim alleges that the discriminatory conduct of the second, third and fourth respondents constitutes homosexual vilification within the meaning of section 49ZT(1) of the Act. The respondents contend that the Tribunal has no jurisdiction to deal with these vilification complaints (or, alternatively, ought not to entertain the vilification complaints) because compliance with section 88(1D) is a necessary prerequisite to the proper lodging of a vilification complaint and the complainant does not fulfil he section 88(1D) requirement. 5.3 Section 88(1D) provides: ( 1D) A vilification complaint cannot be lodged under this section unless each person on whose behalf the complaint is lodged: (a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention concerned; or (b) claims to have that characteristic and there is no sufficient reason to doubt that claim. 5.4 As stated above, the complainant's case is that he was subjected to discriminatory conduct because of the perception that he was a homosexual person. It is common ground between the parties that the complainant is not a homosexual person and has never claimed to be a homosexual person. 5.5 It is the respondent's contention that if, in section 88(1D), " the characteristic" means "the characteristic of being a homosexual person", then the complainant has never had a basis for lodging a vilification complaint and should not be allowed to pursue a vilification compliant before the Tribunal. 5.6 The expression " the characteristic" is not defined and does not appear elsewhere in the Act 5.7 The expression "a characteristic" appears in section 49ZG(2). Section 49ZF provides: A reference in this Part to a person's homosexuality includes a reference to the person's being thought to be a homosexual person, whether he or she is in fact a homosexual person or not. Section 49ZG provides: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of homosexuality if, on the ground of the aggrieved person's homosexuality or the homosexuality of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons, or who do not have such a relative or associate who is a homosexual person, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's homosexuality if it is done on the ground of the person's homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons. (emphasised) 5.8 Section 49 ZF (interpretation), section 49ZG (what constitutes discrimination on the grounds of homosexuality) and section 49ZT (which renders homosexual vilification unlawful) are all contained in Part 4C of the Act. Consequently, section 49ZG renders it unlawful to discriminate on the ground of perceived homosexuality and section 49ZT renders it unlawful to vilify on the ground of perceived homosexuality. 5.9 Section 88(1D) appears in Part 9 of the Act. The question is whether, in section 88(1D), "the characteristic" means "a characteristic in the sense referred to in section 49ZG(2)", "the characteristic of actually being a homosexual person", or "the characteristic of being a homosexual person within the extended section 49ZF meaning of homosexuality". 5.10 The first possible meaning can be excluded. Section 49ZG(2) distinguishes between homosexuality and characteristics appertaining to homosexual persons. If section 88(1D) referred only to the latter, then it would preclude the lodgment of a vilification complaint on the basis that the complainant was actually a homosexual person. That cannot have been the intention of section 88(1D). 5.11 As to the second meaning, if in section 88(1D) the expression "the characteristic" meant "the characteristic of actually being a homosexual person", then a person who was perceived to be a homosexual person would lack any remedy for the conduct rendered unlawful by section 49ZT. The effect of section 49ZF is that section 49ZT renders unlawful both vilification on the basis of actual homosexuality and vilification on the basis of perceived homosexuality. While serious homosexual vilification contrary to section 49ZTA is an offence which may be prosecuted, homosexual vilification rendered unlawful by section 49ZT is not an offence. A contravention of the Act attracts no sanction or consequence, whether criminal or civil, except to the extent expressly provided by the Act: section 123. If section 88(1D) precluded the lodging of a vilification complaint based on perceived homosexuality, then no consequence would flow from the unlawful vilification of a person perceived to a be a homosexual person. There would be neither a criminal consequence (via prosecution) nor a civil consequence (via complaint). It cannot have been the intention of the legislature to create a category of unlawful conduct but leave the victim of that conduct without a remedy. 5.12 The legislative history confirms that it was not the legislature's intention that a victim of vilification on the basis of perceived homosexuality be left without a remedy. 5.13 Sections 49ZF and 49ZG were inserted by Act 142 of 1982. Later, the concept of homosexual vilification was introduced into the Act. By the Anti-Discrimination (Homosexual Vilification) Amendment Act 1993, homosexual vilification provisions were enacted. Sections 49ZT (homosexual vilification unlawful) and 49ZTA (offence of serious homosexual vilification) were inserted into the Act. At the same time, subsection (1AB) was inserted into section 88. Section 88 (1AB) provided: ( 1AB) A homosexual complaint in writing may be lodged with the President: (a) in accordance with subsection (1), but only if the person or persons on whose behalf the complaint is lodged is, or are, or are thought to be, homosexual persons; or (b) by a representative body (as referred to in paragraph (b) of the definition of representative body) on behalf of a named person or persons who is, or are, or are thought to be, homosexual persons. The explanatory note to the Anti-Discrimination (Homosexual Vilification) Amendment Bill 1993 stated: The Bill: makes it unlawful for a person to vilify another person or a group of persons on the ground of their homosexuality and, consequently, enables a complaint to be made under the Act concerning the vilification of homosexual persons … Schedule 1 (1) inserts a new Division 4 into Part 4C (discrimination of the ground of homosexuality) which contains the following provisions: … proposed Section 49ZT makes it unlawful for a person to engage in the vilification of homosexual persons …The proposed section will enable complaints to be made to the President of the Anti-Discrimination Board and to be dealt with in accordance with the procedures currently set out in the Act. There is no doubt that, at the time that section 49ZT and section 88 (1AB) were introduced, it was intended that a person could lodge a complaint on the basis of perceived homosexuality. 5.14 By the Anti-Discrimination (Amendment) Act 1994, section 88 was substantially amended. The former section 88(1A)- (2A) was omitted and new subsections were inserted. One of those new subsections was subsection (1D). In the second reading speech (4 May 1994) at 1831, the Attorney General referred to the fact that section 88 (1)(as it then was)did not allow a person to lodge a complaint on behalf of another if the first person was not affected by the alleged discrimination. He indicated that the amendments to section 88 were to designed to enable a "next friend" to act on behalf of an aggrieved individual, and to allow representative bodies with a proper and sufficient interest to lodge complaints on behalf of aggrieved individuals who consented to that course. The second reading speech refers to an expansion of the category of persons able to lodge a complaint, and makes no reference to limiting the category of persons previously able to lodge a complaint. Indeed, the history of amendments to the Act over the past two decades demonstrates an expansion of the categories of discriminatory conduct rendered unlawful, and an expansion of the categories of permissible complainant. 5.15 Despite the ambiguity of the provision, it is the Tribunal's view that in section 88(1D) the expression "the characteristic" refers both to "the characteristic of being a homosexual person" and to "the characteristic of being perceived to be a homosexual person". The legislative history and the purpose and beneficial intent of the legislation generally, and sections 49ZF and 49ZT in particular, require this conclusion. 5.16 The applications are dismissed. 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