Nicholls v Brewarrina RSL Club Limited [2013] NSWADT 29

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Nicholls v Brewarrina RSL Club Limited [2013] NSWADT 29 Hearing dates: Submissions filed on 12 December 2012 and 25 January 2013 Decision date: 06 February 2013 Jurisdiction: Equal Opportunity Division Before: G Furness, SC, Judicial Member Decision: Application to amend the complaint to include a complaint of victimisation based on the conduct set out in paras 227 - 230 of the submissions made and filed 5 October 2012 is granted Catchwords: Application to amend, victimisation Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Chand v Rail Corporation of New South Wales (EOD) HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADTAP/2007/54.html" \o "View Case"[2007] NSWADTAP 54 Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer (EOD) HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADTAP/2008/24.html" \o "View Case"[2008] NSWADTAP 24. Category: Interlocutory applications Parties: Michael Nicholls (Applicant) Brewarrina RSL Club Limited (Respondent) Representation: S York (Applicant) Pigott Stinson (Respondent) File Number(s): 121100

reasons for decision 1On 9 August 2012, the Anti-Discrimination Board referred to the Tribunal two complaints made by Mr Nicholls against the Brewarrina RSL Club (the RSL Club); a complaint of racial discrimination and a complaint of racial vilification. The complaints arose from words used by the then Secretary/Manager of the RSL Club to Mr Nicholls when Mr Nicholls arrived for work on 16 April 2011. Mr Nicholls is an Aboriginal man and had been employed by the RSL Club for eight years as a doorman/security person. Mr Nicholls complains that the then Secretary/Manager said to him "you are not wanted at this Club and you are nothing but a useless black cunt". A short time later, Mr Nicholls says there was a further exchange outside the RSL Club when the then Secretary/Manager poked him in the chest and made comments similar to those he made in the RSL Club. 2On that day and following these events, Mr Nicholls completed an incident report at the RSL Club and reported the matter to the police. It appears that Mr Nicholls did not return to work at the RSL Club. 3Mr Nicholls has submitted that over the following months the RSL Club did not respond to his various efforts to 'remedy the incident' and did not provide Workcover forms which he had asked to be provided to him. 4Mr Nicholls complained to the Anti-Discrimination Board (the Board) on 7 March 2012.He provided to the Board copies of the letters he sent to the RSL Club in May 2011. The letters refer to complaints of unfair dismissal, assault and vilification arising from the events of 16 April 2011. Mr Nicholls also provided the Board with two letters from the RSL Club to him in response to his complaint. One is undated and the other is dated 13 July 2011. Further time to consider his complaint was sought by the RSL Club in each letter. 5At a case conference held on 14 November 2012, Mr Nicholls made an application to amend his complaint to add a complaint of victimisation. Written submissions were made by Mr Nicholls in support of his application and the RSL Club also made written submissions. 6Mr Nicholls submitted that he suffered physical and mental injury from the conduct of the RSL Club in that he was not provided Workcover forms, did not have his complaint handled in a professional, timely manner and was not provided any assistance to return to work. He submitted that the action of the RSL Club was 'an act of de-facto dismissal'. He submitted that his complaint to the Police was not acted upon because the senior police officer was on the RSL Board of Directors. 7The RSL Club opposes the application to amend and submitted that it did not victimise Mr Nicholls. 8The 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. 9The operation of s 103 has been considered in a number of decisions including by an Appeal Panel in Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54 and Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer (EOD) [2008] NSWADTAP 24. 10In Zhang, an Appeal Panel endorsed the approach taken in Chand to the operation of s 103, citing with approval the following passage: The ordinary grammatical meaning of section 103(2) is that the Tribunal may amend the complaint either by adding complaints or by adding anything else, such as further allegations. The only qualification to the amendment power is that the additional complaint or other matter "was not included in the complaint as investigated by the President." Contrary to the Tribunal's decision, there is no implied qualification that the additional complaint or other matter occurred during the period of the complaint as investigated by the President. There is no extrinsic material which sheds light on the rationale for section 103, but the intention of the legislature was to avoid the delay and potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances, is already before the Tribunal. The most likely source of additional complaints will be complaints that arise after the matter has been referred, but section 103 does not confine amendments to complaints of that kind. Relevant considerations when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred. Contrary to the Tribunal's conclusion, the fact that the complaint did not occur within the period as investigated by the President, does not prevent it being added. 11Victimisation is dealt with in s.50 of the Act. It states: (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 12Thus, victimisation occurs when the respondent causes the applicant to suffer some loss damage or injury because the applicant has made a complaint or allegation within the meaning of s.50(1). 13The first issue is whether the proposed amendment falls within s.50(1). The reference in the letter from Mr Nicholls to the RSL Club dated 4 May 2011 to him having suffered racial vilification by the then Secretary/Manager is sufficient to bring the conduct complained of within subsection (c) of s.50. 14In considering whether the proposed complaint is tenable, the term 'detriment' is to be construed broadly and not narrowly. It is clear that to dismiss a person because they made a complaint would amount to grounds for a claim under s.50. In this case, the claim is that by not dealing with his complaint in a timely fashion, the applicant did not, for a period which is unknown, return to work for the RSL Club. I am satisfied that this conduct, if proven, is capable of being characterised as a detriment. Mr Nicholls would then have to prove that he was subjected to that detriment because he complained of racial vilification. While no evidence has been adduced of causation, it is tenable that Mr Nicholls may be able to prove the necessary connection. 15Other matters to be considered in determining Mr Nicholls' application is when the events the subject of the proposed amended complaint occurred, whether there is any reason for the delay in making the proposed amended complaint and whether the RSL Club will suffer any prejudice if the application is granted. 16The events occurred within the months following 16 April 2011 and, had the proposed amended complaint been made at the same time as the two complaints which were made, it would have been within 12 months of the events occurring. In those circumstances there would have been no basis for the President of the Anti-Discrimination Board declining the complaint as out of time. 17The applicant has not provided any reason for not making this complaint to the Board at the time he made the complaints of racial discrimination and racial vilification. The events complained of occurred about 20 months ago, however, the RSL Club has not submitted that it would suffer any prejudice because of the period of time which has elapsed. It is noted that both the applicant and the RSL Club are self- represented. 18Having taken into account these matters, and the purpose of the power to amend which is to prevent any delay in requiring the applicant to make a fresh complaint to the Board, I grant the application to amend the complaint to include a complaint of victimisation based on the conduct set out in paras 227 - 230 of the submissions made and filed 5 October 2012.