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. Applicant's submissions 10The applicant made submissions as to the period of time covered in the complaint referred by the ADB. He submitted that he had made it clear to the ADB that his complaint was related to his redundancy from Woolworths and all the unsuccessful job applications up until February 2012. 11The applicant also applied to amend his complaint to include all job applications with Woolworths from May 2010 to February 2012. The reasons for his application were that the amendment will not disadvantage Woolworths because he is not raising any new facts not known by Woolworths and that Woolworths has confirmed that he applied for each of those jobs. He attached to his application a list of 30 jobs he had applied for. Respondent's submissions 12The respondent submitted that the complaint should be limited to the alleged acts of age discrimination occurring between 21 February 2011 and 21 February 2012. Woolworths submitted that the President's Summary contained an error as to the period of complaint and that the alleged acts which pre-date 21 February 2011 have not been accepted as a complaint by the ADB. 13The respondent submitted that because the President did not expressly accept the complaint to include alleged contraventions prior to the 12 months, then those allegations do not form part of the complaint and cannot be investigated or referred to the Tribunal. Further, there is no material suggesting that the President amended the complaint to include events prior to 22 October 2010 or after 21 February 2011. 14The respondent submitted that the authorities make it plain that the Tribunal's jurisdiction is confined to the complaint properly referred by the President of the ADB under s.93A of the Anti-Discrimination Act (the Act): 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. 15The respondent submitted that the power to amend a complaint should be read subject to s.89B(4) which provides that a decision by the President to decline a complaint in whole or in part is not reviewable by the Tribunal: Thompson v Rail Corporation NSW [2008] NSWADT 329. 16The respondent also submitted that s.109 of the Constitution invalidates s.103 of the Act to the extent that the latter might otherwise permit an amendment to the complaint in the terms sought by the applicant. That submission is based on AHRC having terminated the applicant's complaint to it and the applicant not having made application to the Federal Court or the Federal Magistrates Court. 17Alternatively, the respondent submits that the Tribunal should not exercise any discretion to amend the complaint because the applicant has already made a complaint to AHRC and not taken it any further; the conduct complained of took place two or more years ago; and the respondent would suffer prejudice. What was the period of time covered in the complaint referred? 18Section 89B of the Act provides as follows: (1) The President is to determine whether or not a complaint made to the President is to be accepted or declined, in whole or in part. (2) The President may decline a complaint if: (a) no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations, or (b) the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint, or (c) the conduct complained of could amount to a contravention of a provision of this Act (not including section 20D, 38T, 49ZTA or 49ZXC) for which a specific penalty is imposed, or (d) in the case of a vilification complaint, it fails to satisfy the requirements of section 88, or (e) thePresident is not satisfied that the complaint was made by or on behalf of the complainant named in the complaint. (3) The President is to give notice of a decision to accept or decline a complaint to: (a) the person who made the complaint, and (b) if the respondent has been given notice of the complaint, the respondent, so far as is reasonably practicable, within 28 days after the decision is made. (4) A decision under this section to decline a complaint in whole or in part is not reviewable by the Tribunal. 19The applicant's complaint was of acts alleged to have occurred from 22 October 2010 and continuing to the date of the complaint, 20 February 2012. 20The President had a discretion to decline that part of the complaint which occurred between 22 October 2010 and 21 February 2011, being the time outside of 12 months preceding the making of the complaint: s.89B(2)(b). The President was obliged to give notice of a decision to accept or decline a complaint to the person who made the complaint: s.89B(3)(a). 21The Tribunal finds that the letter from the ADB to the applicant dated 2 March 2012, stating, among other matters that the complaint covers events that occurred in the 12 months up to the time the complaint was lodged on 21 February 2012, satisfied the President's obligation to give notice. That letter has the effect of conveying to the applicant that that part of the complaint which pre-dated 21 February 2011 was declined. 22The Tribunal is satisfied that the reference in the President's Summary to the period of complaint being May 2010 to October 2010 was an error. That period was not the period of the complaint asserted by the applicant, nor did it cover the 12 months before the complaint was made. 23The applicant's complaint did refer to the applicant being told in May 2010 that he would need to look for another job and his being made redundant on 22 October 2010. These dates appear to have been recorded in the President's summary in error and instead of the dates set out in the letter to the applicant and referred to above. Should leave be given to amend the complaint? 24The power of the Tribunal to amend a complaint is set out in s.103: (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit. 25The Tribunal agrees that to amend the complaint to include the period of time which the President declined under s.89B(2)(b) would be contrary to s.89B(4) in that it would effectively be using the power in s.103 to review a decision by the President which is not permitted by s.89B(4): see Thompson v Rail Corporation NSW [2008] NSWADT 329 at [59]. 26Further, in the event that the Tribunal has a residual discretion to amend the complaint, it would not exercise that discretion to do so in the manner sought by the applicant. The Tribunal is of the view that the applicant had the opportunity to take the complaint made to the AHRC to a federal court in October 2011 and did not do so. Also, the acts complained of took place two and one half years ago. The Tribunal adopts the remarks made by a Tribunal in Bernard v Manly Lawn Tennis Club [2006] NSWADT 174 at [34]. The most significant factor against amending the complaint to include the sexual harassment allegations is the fact that the Applicant had previously lodged the identical complaint with HREOC. She chose not to proceed. There is a public interest in finality to proceedings. That factor together with the lengthy period of time since the alleged conduct occurred outweighs the factors in favour of granting the amendment. Consequently the application to amend the complaint to include sexual harassment is refused. 27It is not necessary to consider the respondent's submission that s.109 of the Constitution invalidates s.103 to the extent that the latter might otherwise permit an amendment to the complaint. 28The application to amend the complaint is dismissed. 29The matter is listed for case conference on 7 November 2012 at 11.30am. ********** 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. Decision last updated: 29 October 2012