Mihnyak v Woolworths Limited [2012] NSWADT 219

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Mihnyak v Woolworths Limited [2012] NSWADT 219 Hearing dates: Submissions made 7, 20 and 25 September 2012 Decision date: 29 October 2012 Jurisdiction: Equal Opportunity Division Before: G B Furness SC, Judicial Member Decision: Application to amend complaint dismissed Period of time of complaint referred to Tribunal determined. Catchwords: Amend - out of time complaints Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Kennedy v Director- General, NSW Department of Industrial Relations [2002] NSWADT 186; Reyes-Gonzalez v Sydney Institute of Technology [1998] NSWEOT 4 of 1997; Salama v Qantas Airways Limited [2002] NSWADT 119; Commissioner of Police, NSW Police Force v Butcher [2011] NSWADTAP 9 Thompson v Rail Corporation NSW [2008] NSWADT 329 Bernard v Manly Lawn Tennis Club [2006] NSWADT 174 Category: Interlocutory applications Parties: George Mihnyak (Applicant) Woolworths Limited (Respondent) Representation: G Mihnyak (Applicant in person) Henry Davis York Lawyers (Respondent) File Number(s): 121079

Reasons for decision 1The applicant complained to the Anti-Discrimination Board (ADB) on 21 February 2012 alleging that Woolworths Limited had discriminated against him on the ground of age in employment. 2The applicant's written complaint stated that the discrimination began on 22 October 2010 and was ongoing. He explained that he had initially complained to the Australian Human Rights Commission (AHRC) and AHRC 'closed his case' in October 2011. 3He provided the ADB with a copy of his complaint to AHRC. In that complaint he stated that he was told in late May 2010 by his employer, Woolworths that he should look for another position. From early June 2010 to 22 October 2010, he applied for over 30 positions advertised on Woolworths' intranet, and 16 of those were relevant to his experience and skills. He was offered two interviews and was not successful in obtaining a position. 4He was offered a position in a supermarket which he refused because of his physical state, that is, he could not do heavy physical work. He was made redundant and finished on 22 October 2010. 5He provided the ADB with a list of 30 jobs he had applied for between June 2010 and December 2011, 19 of which were applied for before 22 October 2010 and the remainder between August and December 2011. 6On 2 March 2012, the ADB wrote to the applicant stating, among other matters that the complaint covered events that occurred in the 12 months up to the time the complaint was lodged on 21 February 2012. 7On 5 March 2012 the respondent was provided with a copy of the complaint by the ADB and a response was sought. That response was received on 23 May 2012 and in it the respondent referred to the letters it had written to AHRC and requested that the ADB decline the complaint under s.89B(2)(b) on the basis that all the conduct complained of occurred more than 12 months before the complaint was lodged. 8The ADB referred the complaint to the Tribunal on 12 June 2012. The President's summary of complaint recorded the period of complaint as May 2010 to 22 October 2010 and recorded that the complaint was referred. No reference was made to the fact that the period of the complaint was more than 12 months prior to the complaint being made. No reference was made to the respondent's request that it be declined on that basis. 9When it became evident in a case conference that there were differing accounts of the period of time covered by the complaints, submissions were sought from the parties as to what period of time should be taken as referred to the Tribunal by the ADB. The applicant said that, in addition to making those submissions, he wished to apply for the complaint to be amended.