On 31 January 2022, the President of the Anti-Discrimination Board (respectively, 'the President' and the 'ADB') referred Ms Bir's (the Applicant's) complaint to the Tribunal pursuant to s93(C)(b) of the Anti-Discrimination Act 1977 (NSW) (the Act). The complaint is that the Western Sydney Local Health District (the Respondent) discriminated against the Applicant based on her race and victimised her in contravention of ss 8 and 50 of the Act (the Complaint). The period of the complaint is from 14 July 2020 to 14 July 2021 (Complaint Period).
By application dated 3 June 2022, Ms Bir seeks to amend the Complaint. The application is opposed by the Respondent.
For the reasons that follow, we have decided to amend the temporal scope of the Complaint for events that occurred after the Complaint had been lodged with the ADB and dismiss the rest of the application to amend the Complaint.
[2]
The President's Report
On 14 July 2021 and 13 September 2021 Ms Bir lodged documents, making a complaint with the ADB of discrimination in employment because of her race and victimisation when she complained of the discrimination.
Ms Bir was assisted by her solicitor in preparing the Complaint. The Complaint dated 14 July 2021 is a complaint basis of race discrimination in employment.
The complaint form in Part C states:
The President can decline to accept a complaint if the events happened more than 12 months ago. If the events happened more than 12 months ago, what prevented you from logic lodging the complaint at the time?
Ms Bir responded by stating: "Please see the enclosed statement entitled "What happened?" and marked "A". Annexure A is a seven page small print document referring to alleged conduct that Ms Bir says she experienced at work and outside of work.
Annexure A on pg. 5 acknowledges that the President has discretion to accept a complaint concerning matters more than 12 months before the complaint date. Ms Bir explains that she made the complaint internally but does not specifically respond to the question of why she did not make the complaint to the ADB earlier.
Ms Bir also states that she is employed as a Department Head, Occupational Therapy at Cumberland Hospital. She says, 'in recent times I have been the subject to various incidents of racial discrimination' and that the 'incidents' complained of both 'as instances in and of themselves are breaches of Part 2 of the ADA and as showing hostile style work environment countrary to the ADA.'
Annexure A has the following subheadings:
1. Statement of Luci Caswell dated 7 May 2021
2. Meeting with employer on 14 January 2021
3. Complaint of 1 September 2020
4. Incident on or about 6 January 2017
5. The historical circumstances of the above incidents
On 10 September 2021, the Respondent filed a detailed response to the Complaint.
On 13 September 2021 the Applicant, through her solicitor filed a request to amend the Complaint 'to add further complaints concerning the continuing disciplinary proceedings' of Ms Bir up to the date of the letter pursuant to either s7 or s50(1)(c) of the Act.
The President's report prepared pursuant to s94A of the Act states that there are two complaints. The period of the first complaint is 14 July 2020 to 14 July 2021 and the period of the second complaint is 14 January 2021 to 26 April 2021. The report does not set out any specific allegations made by Ms Bir.
[3]
Amended Points of Claim
On 3 June 2022, Ms Bir made an application to amend the Complaint and filed Proposed Points of Claim pursuant to orders made by the Tribunal on 3 June 2022. On 11 July 2022, Ms Bir filed an Amended Points of Claim (APOC).
The APOC pleads allegations against Western Sydney Local Health District as the First Respondent and Secretary, Ministry for Health on behalf of the Western Sydney Local Health District as the Second Respondent. Allegations are made from 2013, however Ms Bir does not seek to amend the Complaint Period from this time. Neither does Ms Bir seek to amend paragraph 75 of the APOC which pleads a single complaint, which we take to mean a single complaint of discrimination on the ground of race.
[4]
Name of the employer
The Respondent submits that the correct name of the employer is Secretary, Ministry of Health, that there is only one employer and that Ms Bir has incorrectly named the Respondent and the Second Respondent in the APOC.
[5]
2016/2017 failure to investigate allegation
It is pleaded from paragraphs 15 to 20 and 72 of the APOC that in effect, a former unnamed employee of the Respondent said to Ms Bir while she was at work words to the effect 'go back to your own country - that's where you belong' on or about 22 December 2016.
Ms Bir alleges that on 22 December 2006 and 6 January 2017 she notified two named persons of the employer of the racist statement and asked them to investigate. She contends that the Respondent's failure to investigate the complaint was a contravention of s 8(2)(b) and (c) of the Act.
Ms Bir seeks to amend her Complaint to include this allegation from 2016/2017.
[6]
September 2019 incident
It is alleged in paragraphs 21 to 23 and 72 of the APOC that in effect, two representatives of the Respondent said to Mr Bir words to the effect 'Oh, but you are a Tamil Tiger anyway' on about 4 September 2019. Ms Bir seeks to amend her Complaint to include this allegation from September 2019.
[7]
21 September 2021 to 26 April 2022 - Second continued investigation and disciplinary conduct
It is alleged in paragraphs 64 to 67 and 72 of the APOC that the disciplinary action taken by the Respondent is discrimination on the ground of Ms Bir's race and or is victimisation. Ms Bir seeks to amend the Complaint to include this allegation.
[8]
27 April 2022 - Suspension and medical examination direction
It is alleged in paragraphs 70 to 72 of the APOC that a suspension of employment and a direction to attend on a medical practitioner is victimisation. Ms Bir seeks to amend the Complaint to include this allegation.
[9]
Statute
The President may decline a complaint that occurred more than 12 months before the making of the complaint pursuant to s89B of the Act:
(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 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) the President 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.
The Tribunal may exercise its discretion to amend a complaint as set out in section 103 of the Act which is in the following terms:
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.
Sections 3, 36 and 44 of the Civil and Administrative Act 2013 (NSW) are also relevant to an application to amend a complaint.
[10]
2016/2017 failure to investigate allegation
This allegation was included in the Complaint to the ADB. The President determined to not refer this complaint to the Tribunal. The Respondent relies on s89B(4) of the Act to submit that the Tribunal has no power to review the President's decision pursuant to s89B(4) of the Act. Ms Bir submits that the President did not decline this part of the complaint.
The Tribunal finds that the President in referring the complaints within the Complaint Period to the Tribunal within the meaning of s93C(b) of the Act, in fact determined to not accept Ms Bir's complaints outside the 12 months period within the meaning of s89B(2) of the Act and that the Tribunal has no power to review the President's decision pursuant to s89B(4) of the Act.
In circumstances such as the present where the Applicant alleges unlawful conduct that is both within the 12 months period and outside of the 12 months period after the occurrence of the alleged conduct, there is no requirement within s89B of the Act for the President to explicitly inform the parties that that part of the complaint outside of the 12 months period after the occurrence of the alleged conduct is rejected pursuant to s89B(4) of the Act. It is sufficient for the President to notify the parties about which parts of the complaint have been accepted for investigation and subsequently which parts of the complaint have been referred to the Tribunal.
[11]
September 2019 incident
This allegation was not included in the complaint to the ADB. The Respondent relies on the decision in Singh v South Western Sydney Local Health District [2020] NSWCATAD 263 and Wecker v The Delegate (the decision maker) to the President of the NSW Anti-Discrimination Board [2014] NSWCA 372 to submit that the Tribunal has no power to amend the Complaint to include this allegation because s89B(4) of the Act.
The Respondent opposes any amendment to the Complaint and submits that the Tribunal has no power to consider a complaint which was not before the President and relies on Singh. In Singh at paragraphs [14] -[15] it is said that:
First, the discretion to amend a complaint is one that should not be exercised lightly. Should the discretion be exercised, the power to amend a complaint inevitably means that the two tiered complaint handling system established by Part 9 of the Act will be bypassed. There is no power for the Tribunal to amend the complaint to include the period back to March 2018. In that regard the Respondent relies upon s103(2) limiting amendments of complaints to matters that were not within the complaint as investigated by the President. The matters between March 2018 and November 2019 were set out in the complaint that was investigated so they were excluded by s103(2).
Second, the President has limited the complaint to the period commencing November 2019. The President may decline a complaint in whole or in part including where part of the complaint of occurred more than 12 months before the making of the complaint (see s89B(2)(b) of the Act). It follows that this decision is not reviewable by the Tribunal (see s89B(4) and Wecker v The Delegate (the Decisionmaker) to the President of the New South Wales Anti-Discrimination Board (2014) NSWCA 372 at [26]).
The Tribunal's reference to s103(2) of the Act in paragraph 14 is to be understood as to how it interacts with s89B(2) of the Act as referred to in paragraph fifteen of the decision. Section 103 of the Act is confined by s89B(4) of the Act. The Tribunal has no power to review a decision made by the President to limit or decline a complaint of events that occurred more than 12 months before the making of the complaint.
Apart from that restraint in s89B(4) of the Act, s103 of the Act is unconfined. See Singh [16] reference to A Braiding v Charles Sturt University (2015) NSWCATAD 242 at [49]-[50].
The Respondent's submission that the Tribunal has no power to amend the Complaint regarding events that occurred after the complaint was lodged with ADB because they were not before the President is misplaced. The Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 No 79 amended s103 of the Act, so that the Tribunal had capacity to consider events not encompassed by the original complaint: s103(2) of the Act. Section 103(2) of the Act explicitly contemplates an allegation not before the ADB being included in a complaint before the Tribunal.
A number of decisions have commented on relevant considerations the Tribunal may take into account in considering whether a complaint is to be amended. The factors vary from case to case and so does the weight to be given to the different factors. Thompson v Rail Corporation of NSW [2008] NSWADT 329 (Thompson). In Thompson at [12] Britton DP considered the following factors as being particularly relevant:
Whether the proposed amendment falls within one of the grounds for declinature available to the President (section 89B(2) and section 92(1)(a)).
Whether the proposed amendment is futile because it seeks to pursue claims that are untenable.
Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs.
Whether the proposed amendment raises any issue of joinder.
Whether the allegations contained in the proposed amendment forms part of a complaint lodged with the President that has yet to be determined or referred.
Whether if refused/granted, any party might be prejudiced.
Whether the party making the application is in default of previous orders.
In Chand v Rail Corporation of NSW [EOD] [2007] NSWADTAP 54 the Tribunal found that it may add complaints whether they were investigated by the President [37]-[38].
The Tribunal has determined to not exercise its discretion to vary the Complaint pursuant to s103 of the Act for the following reasons. The September 2019 incident could have been included in the complaint to the President. No specific reason is given why it was not included. The allegation is in regard to conduct that occurred nearly two years before Ms Bir made a complaint to the ADB. Furthermore, Ms Bir does not submit that this allegation is a separate complaint of discrimination on the ground of race and it is therefore not likely to have any material effect on the remedy sought.
Ms Bir's application to amend the Complaint to include the incident from September 2019 is dismissed.
[12]
16 September 2021 to 26 April 2022 - Disciplinary proceedings and the Suspension of the Applicant on 27 April 2022
These are allegations of events that occurred after the complaints were lodged with the ADB. The allegations are particularised in the APOC to include alleged conduct, persons involved in the conduct and dates on which the alleged conduct took place.
The Respondent submitted that the proposed amendments to the Complaint should not be made because they rely on inferences and there is no evidence of discrimination or victimisation. However evidence has yet to be filed in this matter. The purpose of a document such as an APOC is to put the other party on notice of the matters alleged and not to prove to the Tribunal on the balance of probabilities that the unlawful conduct occurred.
We do not accept the Respondent's submissions that these allegations are misconceived or lacking in substance. The allegations if proven could disclose a contravention of the Act. Based on the submissions of the parties, the contest seems to be predominantly about whether the Respondent acted because of Ms Bir's conduct and or behaviour as it alleges or because of her race and or making complaints as the Applicant alleges.
The amendments sought to the Complaint are in regard to the same employer, the allegations are consistent with the character of the allegations made in the Complaint and they also allege discrimination on the ground of race and victimisation.
The Tribunal has decided to amend the Complaint pursuant to s103 of the Act in regard of the events that occurred after the Complaint was lodged with the ADB.
The Tribunal makes the following order:
1. The complaint referred by the President of the Anti-Discrimination Board to the Tribunal on 31 January 2021 is amended to incorporate the following allegations against the Respondent within the period 14 July 2020 to 27 April 2022:
1. Second Continued Investigation and Disciplinary Conduct as set out in the Amended Points of Claim in contravention of ss7, 8 or 50 of the Act; and
2. Suspension and Medical Examination Directions as set out in the Amended Points of Claim in contravention of s 50 of the Act.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 24 August 2022