Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Imielska v Northern Sydney Local Health District [2013] NSWADTAP 49 Hearing dates: 16 September 2013 Decision date: 16 September 2013 Jurisdiction: Appeal Panel - Internal Before: Magistrate N Hennessy, Deputy President A Scahill, Judicial Member J McClelland, Non-Judicial Member Decision: 1. Appeal upheld 2. Tribunal's decision to summarily dismiss the complaints is set aside Catchwords: APPEAL - appeal on question of law - whether Tribunal failed to take into account full period of complaint - whether Tribunal applied the correct test for summary dismissal - whether Tribunal breached procedural fairness Legislation Cited: Anti-Discrimination Act 1977 Category: Principal judgment Parties: Grazyna Imielska (Applicant) Northern Sydney Local Health District (Respondent) Representation: G Imielska (Applicant in person) Curwoods Legal Services Pty Ltd (Respondent) File Number(s): 139020 reasons for decision 1HER HONOUR: The background to this appeal is that on 9 May 2013 the Tribunal made a decision dismissing a complaint of race discrimination and a complaint of victimisation made by Ms Imielska. The reason for the dismissal was that the complaint lacked substance and did not disclose a contravention of the Anti-Discrimination Act 1977. 2The brief history is that the President of the Anti Discrimination Board referred a complaint to the Tribunal on 27 February 2012. The complaint went through a series of case conferences and mediation was attempted. An application was made by Ms Imielska to amend the complaint to extend the period of the complaint. The complaint as referred by the President was for a period from 17 November 2010 to 6 August 2012. Ms Imielska applied for the complaint to be amended to go back to a date in 2008. The Tribunal decided by consent not to amend the complaint to go back to 2008 but to amend it to begin on 17 November 2009. The exact orders that the Tribunal made on 5 September 2012 were pursuant to s 103 of the Anti Discrimination Act 1977. The Tribunal amends the complaints. The period of the complaint in respect of both complaints, race discrimination and victimisation, is amended to 17 November 2009 to 6 August 2012. The Tribunal notes the consent of both parties to this amendment. 3We have before us the transcript of the proceedings in relation to the application for dismissal. In that transcript the judicial member correctly stated that the period of the complaint was 17 November 2009 to 6 August 2012, however, when writing the decision the Tribunal apparently overlooked the fact that the complaint had been amended and stated that the period of the complaint was 14 March 2010 to 14 March 2011. That appears at paras 1, 30 and 35 of the Tribunal's decision. 4Despite the fact that the Tribunal did not acknowledge that the complaint went back to 2009 it did, at para 33, list the matters from A to G which the applicant had presented in her application for amendment as being the allegations of victimisation. Despite the fact that the Tribunal mentioned those matters, it is our view that the Tribunal erred by not contemplating matters that occurred prior to 2009 as being part of the applicant's complaints. 5That omission is evident from the Tribunal's reasoning at para 35 when it says "When the applicant makes allegations against the respondent there is no evidence which causally connects the making of her complaint to the ADB on 17 November 2010 with any victimisation within the time period alleged". The time period alleged is the time period from 17 November 2010 not from the earlier date in 2009 from which the complaint has now been amended. 6The first ground of appeal is made out and that is that the Tribunal incorrectly understood its jurisdiction because it did not take into account that the complaint extended over a longer period than was dealt with in the decision. 7A second ground of appeal, although not articulated as such, is that the Tribunal incorrectly applied the legal test for summary dismissal. The Tribunal correctly stated the test in para 17 of its decision in the following terms: The power to dismiss a complaint summarily pursuant to s 102 of the Anti Discrimination Act has been the subject of numerous decisions of the Tribunal. The Tribunal has adopted a cautious approach to the exercise of this power. It has been noted in a line of decisions that the power should be exercised with exceptional caution and only if the circumstances clearly warrant such action including. 8And then the Tribunal summarised a number of cases. 9In this case the application was that the complaint should be dismissed because it was misconceived or lacking in substance or alternatively that, if proven, it would not disclose a contravention of the Act. It is also well-known that in determining an application for summary dismissal the complainant's evidence must be taken at its highest. 10When the Tribunal came to applying this test to the complaint of race discrimination the Tribunal made the following finding: In this matter the complaint of race discrimination is limited to the statement alleged to have been made on 9 November 2010. The Tribunal finds that the statement if proven would not amount to discrimination on the grounds of race. A statement if proven could easily have a more innocent explanation. 11And, at para 28: The Tribunal does not accept that taken at its highest the applicant's claim is capable of establishing that the respondent has discriminated against her on the grounds of race. The Tribunal was unable to find that the conduct if proven would amount to a contravention of the Act. 12There are two weaknesses in the Tribunal's reasoning and in the application of the test for summary dismissal. The first is that the Tribunal finds that the allegation of race discrimination if proven would not amount to discrimination on the ground of race saying that it could have a more innocent explanation. But the Tribunal does not say what that more innocent explanation could possibly be and why the allegation on its face could not constitute race discrimination. The Tribunal also appears to be saying that the conduct would not amount to a contravention of the Act rather than lacking substance. The Tribunal does not provide a reason for concluding that there would be no contravention even if the comment were proved. 13For those reasons we do not agree with the Tribunal's application of the test for summary dismissal to the particular circumstances of the race discrimination complaint. We make a similar finding in relation to the application of the test for summary dismissal to the complaint of victimisation. 14The Tribunal made the following finding in relation to the victimisation complaint at para 35: "It is clear that this complaint is based upon an allegation which falls within the scope of para A in that she, meaning the applicant, filed a complaint in the ADB on 17 November 2010. There is however no probative evidence before the Tribunal which establishes that if there were any detriment to the applicant that it occurred on the grounds that the applicant filed her complaint to the ADB on 17 November 2010. The evidence before the Tribunal relates to longstanding issues of performance and performance management in the workplace. While the applicant makes allegations against the respondent there is no evidence which causally connects the making of her complaint to the ADB on 17 November 2010 with any victimisation within the time period alleged". 15In our view the Tribunal failed to consider whether or not, accepting the applicant's evidence at its highest, an inference could be drawn that the allegations of misconduct were linked to a complaint of discrimination. Rather the Tribunal appears to confine its consideration to any direct evidence of a link between an allegation of discrimination and the victimising behaviour. 16There is rarely direct evidence of a link between alleging discrimination and the victimising behaviour. Respondents do not typically tell an applicant that they are being punished for having made a complaint. Nevertheless there may be evidence from which such an inference can be drawn and the Tribunal appears not to have acknowledged that that was a possibility. In fact the Tribunal appears to have made a finding, before hearing the matter, that longstanding issues of performance and performance management were the reasons for the respondent's conduct. In doing so the Tribunal has not accepted the applicant's evidence at its highest but rather has come to a conclusion based on the material before it. The Tribunal's task is merely to determine whether the complaint could not succeed or does not disclose a contravention of the Anti-Discrimination Act. In our view the Tribunal has misapplied the test for summary dismissal both in relation to the complaint of race discrimination and the complaint of victimisation. 17The third ground of appeal, which was actually the applicant's second ground, is that the Tribunal breached the rules of procedural fairness. She alleged that the respondent made an amended application for summary dismissal orally on the day of the hearing and that she was never provided with that amended application in writing. Furthermore the applicant says that because the respondent spoke quickly, she found her difficult to follow and could not understand everything that she was saying at the time. Thirdly the applicant says she was not given an opportunity to respond to further submissions that the respondent made following the hearing. 18Every applicant, indeed every party to proceedings, must be afforded procedural fairness. That includes a reasonable opportunity to respond to any matter that is put against them. Having read the transcript and seen what the Tribunal did in response to the oral amended application we are satisfied that the applicant was given an adequate opportunity to respond to that amendment. The Tribunal did so by giving the parties a further opportunity to make written submissions in relation to the application and the respondent did so. The applicant was given an opportunity to respond and the respondent replied to the applicant's response. We understand that the applicant complains that she was not given a further opportunity to respond to the respondent's response but that is not the norm. 19In those circumstances we do not find that the Tribunal has breached the rules of procedural fairness but we do find for the applicant on the other two grounds of appeal, namely, a failure to take into account the proper period of the complaint and the failure to correctly apply the test for summary dismissal. The appeal should be upheld and the Tribunal's decision at first instance set aside. 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: 25 October 2013