Bond v State of Queensland [2017] QCAT 132

[1] Robyn Bond worked with her husband, Kirk Bond, in the Department of Justice and Attorney-General. Both Robyn Bond and Kirk Bond were employed as Youth Justice Conferencing Convenors. Robyn Bond has complained that from about November 2011, she was unlawfully discriminated against in her employment because of her marital status.

[2] Mrs Bond developed a psychological disorder and in April 2014 she ceased work and lodged a claim for worker's compensation. On 6 February 2015, she lodged a complaint with the Ant-Discrimination Commission Queensland (ADCQ) alleging discrimination against her employer and Christine Thomas, who had been her direct supervisor in her employment.

[3] In her complaint, Mrs Bond relied on actions that she alleged had happened from November 2011 to when she ceased work in April 2014. On 11 June 2015, the ADCQ decided that the complaint was accepted except for allegations made outside the statutory time limit. The Anti-Discrimination Act 1991 (Qld) (ADA Act) by s 138 imposes a time limit on when a complaint can be lodged with the ADCQ. A person is only entitled to make a complaint within one year of the alleged contravention of the ADA Act. The decision of the ADCQ meant that allegations of contravention of the ADA Act which had occurred before 6 February 2014 were not accepted as part of the complaint.

[4] The complaint was not able to be conciliated at the ADCQ and was referred to QCAT on 21 September 2015.

[5] Mrs Bond filed the contentions about her complaint in the Tribunal on 1 December 2015. In her contentions, Mrs Bond set out allegations of actions by the respondents from November 2011 to April 2014. The contentions asserted that the actions during that period constituted direct discrimination on the basis of her relationship status and association with her husband. The contentions also asserted that on unstated dates the actions of the respondents constituted victimisation of Mrs Bond.

[6] A compulsory conference was held on 1 February 2016 and directions were made setting out a timetable for the filing of an application by the respondents about the contentions filed by Mrs Bond. In fact, two applications were filed after the compulsory conference: one by Mrs Bond seeking to amend her contentions and one by the respondents seeking an order to strike out the filed contentions. At a hearing on 9 June 2016, both applications were resolved by directions being made for the filing of new contentions by the parties.

[7] On 29 June 2016, Mrs Bond filed her new set of contentions. At the same time, she filed an application seeking leave to amend her complaint to include allegations that predate 6 February 2014, an allegation which had occurred subsequent to the referral of the complaint that was not accepted by the ADCQ and two new allegations. A hearing of the application was held on 29 August 2016. The parties were directed to file any supplementary submissions. The last submissions were filed on 25 October 2016.

[8] The respondents objected to parts of the final submissions filed by Mrs Bond, in particular information about a second complaint lodged with the ADCQ but rejected, reliance on other sections of the ADA Act, on interstate legislation, and making arguments that the ADCQ had exceeded its powers. The respondents applied for further directions to be made to enable them to file submissions responding to those new matters. After reading the parts of the submissions objected to by the respondents, the Tribunal was satisfied that, with one exception, those particular parts of the submissions of Mrs Bond were not of assistance to the Tribunal in determining the question of whether leave to amend the complaint should be granted. Consequently, the Tribunal did not require submissions on those points to be filed by the respondents except on one issue referred to at the end of these reasons.

[9] The basis for amendment of her complaint rests on the Tribunal exercising discretion under s 178 of the ADA Act. By that section, the Tribunal may allow a complainant to amend a complaint even if the amendment concerns matters not included in the complaint.

[10] Mrs Bond submitted that the ADCQ erred in refusing to accept the out of time allegations of discrimination. The submissions relied on authorities of Hopper v Mount Isa Mines Ltd and Ryan v Qantas Airways Ltd.[1] However, reliance on those cases is misplaced. In both those authorities, the out of time allegations were accepted by the ADCQ and contained in the complaint referred to the Tribunal. The subsequent Tribunal hearings entertained consideration of whether s 175 of the ADA Act should result in the out of time matters being retained in the complaint at the Tribunal. Mrs Bond's case is quite different and s 175 is irrelevant to her complaint.

[11] In any event, this Tribunal has no power to make any findings that the ADCQ erred when determining how to exercise its discretion under s 138 of the ADA Act. The presence or absence of error by the ADCQ is of no relevance to whether a complaint should be amended by the Tribunal. If there had been error by the ADCQ, the remedy for Mrs Bond would have been to seek judicial review of the decision made by the ADCQ. She did not seek that remedy when the decision was made to exclude the out of time allegations from her complaint.

[12] In further submissions dated 18 August 2016, Mrs Bond argued that the decision of MM v State of Queensland [2] had determined that the provisions in s 178 of the ADA Act are facilitative in nature and gave the Tribunal an unfettered discretionary power to allow an amendment of a complaint notwithstanding that the matter was not included in the original complaint. The member in MM stated that the Tribunal should exercise its powers in ways that facilitated the just and expeditious hearing of the matters in dispute, to minimise inconvenience and cost associated with that process, and to avoid unnecessary technicality and formality in the process.

[13] Mrs Bond submitted that since the amendment to s 178 in 2009 that permits amendments to include matters not in the complaint, there is no limit on the amendment power and the Tribunal can amend a complaint to add back in allegations which the ADCQ had rejected as being out of time. She submitted that Parliament contemplated that it was delegating to QCAT the discretionary power to correct flawed decisions of the ADCQ to reject out of time complaints. Mrs Bond submitted that was the only interpretation of s 178 that is consistent with the objects in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

[14] Mrs Bond submitted that it would make no sense for Parliament to empower the Tribunal to reverse the ADCQ's decision to accept an out of time complaint via s 175 but to deny QCAT the power to reverse the ADCQ's decision to reject an out of time complaint by way of amendment via s 178.

[15] The respondents submitted that the Tribunal has no jurisdiction or power to amend the complaint pursuant to s 178 of the ADA Act to include any matter rejected by the ADCQ. The respondents submitted that allegations rejected by the ADCQ lapsed under s142 of the ADA Act and have no legal force, effect or consequence and cannot be re-agitated by way of a further complaint. However, this submission is not consistent with the wording of the ADA Act when setting out what is a valid complaint.

[16] While s 136 appears to suggest that a complaint is constituted by whatever is filed by the complainant, that concept is clarified by sequent sections of the Act. In particular, s 138 states that an entitlement to make a complaint arises only for contraventions of the Act that have occurred within one year of the contravention. In that sense, there is no entitlement or basis for a person to make a complaint about allegations of contraventions that happened before the one-year period. Those allegations are simply not able to be part of a complaint at the time the complaint is made to the ADCQ.

[17] There is of course a statutory lifeline for such out of time allegations: under s 138(2), the ADCQ can accept and thereby include into a valid complaint allegations that predate the one-year limitation. If the ADCQ does not exercise the discretion to include those out of time allegations, then they were never part of the complaint. To say that the out of time allegations have been rejected is incorrect: they were never part of a valid complaint which is limited to allegations made within the statutory time limit only. There can have been no lapsing in terms of s 142 of the Act.

[18] The ADCQ did not exercise its discretion to include the out of time allegations into the accepted complaint which was referred to the Tribunal for determination. The finding on what is a valid complaint based on s 138 may differ from earlier decisions of the Tribunal decided before MM. The respondents refer to Aleksic v Commonwealth Bank of Australia [3] where the Tribunal had found that those parts of the written complaint that were not expressly accepted by the ADCQ must have been rejected by the ADCQ. Once rejected, those parts of the complaint had lapsed. However, the rejected parts of the complaint in Aleksic were not necessarily out of time. The allegations had been made against specific employees of the Bank but the accepted complaint did not include allegations against those specific employees. It was open to find that those particular allegations had in fact been rejected under s 141 and not excluded due to the effect of

s 136.

[19] The Tribunal is satisfied that, based on the conclusion that a valid complaint can only include in time allegations unless the ADCQ has exercised discretion to include out of time allegations, s 178 provides power to the Tribunal to consider whether the out of time allegations should be added to the complaint by way of amendment. Even though the ADCQ expressly considered whether discretion should be exercised to allow the out of time allegations into the complaint and found against exercising that discretion, the Tribunal's powers to amend a complaint under s 178 cannot be limited or negated by that result. The description of the power of the Tribunal under s 178 as being an unfettered discretion is an accurate one. What must be determined is whether an amendment would be in the interests of justice and accord with the objects of the ADA Act and the QCAT Act.

[20] Dealing first with the out of time allegations, Mrs Bond submitted that the parties have had an opportunity before the ADCQ to fully argue their respective positions as to whether the out of time allegations should be included in the complaint. Mrs Bond submitted that only a handful of the alleged contraventions are out of time. She submitted that even though she is entitled to include the out of time alleged contraventions in her statement of evidence to give context to her complaint, she argues that the allegations should be part of the complaint itself because she should be fully compensated for the full pain and suffering that she endured for years before finally suffering a psychological breakdown.

[21] Looking at the submissions made by the parties to the ADCQ about the out of time allegations, it was submitted on behalf of the complainant that Christine Thomas and the Department had been able to fully respond to the allegations made in a worker's compensation claim that had included the allegations of discrimination. It was submitted that the individual respondent had not claimed any problems with her memory about the alleged events but had denied every allegation and had proffered different version of events from what had been alleged by Mrs Bond. It was submitted that the respondents would not suffer any prejudice due to delay affecting memory if the out of time allegations were included in the complaint.

[22] Mrs Bond submitted that the delay in bringing her complaint should not operate against her. She submitted that the discriminatory conduct had been directed by a manager towards a subordinate employee. The income for her family came from she and her husband being employed by the Department and their lives would have been made even more miserable if they had complained about the discriminatory behaviour. She submitted that it was not unreasonable for her to believe that the behaviour would end at some time. Mrs Bond submitted that there was an enormous power imbalance between the accuser and the accused and that discretion should be exercised to allow the out of time complaints.

[23] It was also submitted that Mrs Bond had become aware of the time limit in s 136 in May 2014. She submitted that she had then been recently diagnosed as having suffered a psychological injury. She and her husband were fighting through their worker's compensation claims and they had no energy to make at that time a discrimination complaint. She submitted that she had expected that her employer would provide she and her husband with a workplace that maintained their health and they had wanted to explore every possibility of returning to work before pursuing legal action against her employer. It was only when Mrs Bond had not been able to return to work and the worker's compensation claims were unfinished that she and her husband decided to lodge a complaint with the ADCQ.

[24] The respondents had submitted to the ADCQ that the out of time allegations were up to two years and four months outside the time limit. The respondents submitted that this was well in excess of what the authorities called a significant delay. The respondents submitted that Mrs Bond had elected to pursue a worker's compensation claim for the same events and that she had been aware since May 2014 that there was a time limit for anti-discrimination claims. The respondents submitted that Mrs Bond had failed to provide an adequate explanation for the delay.

[25] It was submitted that the respondents would suffer significant prejudice due to the effluxion of time between the alleged events and the lodging of the complaint. It was submitted that the length of delay itself gave rise to a general presumption of prejudice. It was submitted that the delay is likely to pose difficulties for the employees of the State who are called to give evidence about the matters raised by Mrs Bond. It was submitted that there was a tangible risk that their memories will have faded and that certain details will have been forgotten.

[26] It was submitted that the adverse effect on witness recollection will have a significant impact on the ability of the respondents to defend the out of time allegations and to properly and completely identify the relevant evidence that relates to the out of time parts of the complaint.

[27] The respondents submitted that it was wrong of Mrs Bond to argue that the respondents will not suffer prejudice from the delay by referring to the responses made by the respondents to the WorkCover claim by Mrs Bond. It was submitted that the respondents had been unable to provide a comprehensive response to the WorkCover claim due to the lack of particulars of the claim. It was submitted that the mere existence of an earlier investigation into the claim does not mean that no prejudice will result if the out of time claims were to be included into the complaint.

[28] The respondents submitted that the delay in lodging the complaint with the ADCQ was entirely the responsibility of Mrs Bond. She had been aware since May 2014 of the statutory time limit but she waited to see how her WorkCover claim would resolve. It was submitted that she had made an election to proceed with one claim over the other.

[29] The respondents submitted that Mrs Bond had failed to adequately explain the delay. It was submitted that a diagnosis of a psychological disorder in April 2014 could not explain why a claim was not made two years earlier. It was submitted that the explanation that Mrs Bond had preferred to make complaints within her work environment was an inadequate ground for explaining the delay. It was submitted that Ms Thomas was unaware that such a complaint had been made against her in 2012. It was also submitted that Mrs Bond had not relied on the internal complaints to resolve what she considered to be workplace difficulties as she had expressly declined to escalate the matters she had raised in November 2011 to anyone in a higher management role.

[30] In more recent submissions, the respondents argue that there are further grounds why the out of time allegations should not be added into the complaint. It was submitted that Mrs Bond had had multiple opportunities to prepare her contentions for the Tribunal proceeding and had taken almost a year to raise the issue of adding to her complaint. At the hearing on 9 June 2016, the representative for Mrs Bond declined to request an amendment of the contentions to add in the out of time allegations. It was submitted that Mrs Bond did not comply with the further directions of the Tribunal made on 9 June 2016 but instead she had filed an application to amend. It was submitted that Mrs Bond should not be given another opportunity to amend her complaint when she had declined an opportunity to do so at the hearing on 9 June 2017.

[31] It was submitted that the respondents had been forced to incur unnecessary time and costs in defending the claims and in seeking to respond to the tactics used by Mrs Bond. It was submitted that allowing the out of time amendments would be inconsistent with the objects of the QCAT Act. It was submitted that allowing the amendment of the complaint to add in out of time allegations at this stage after what had already happened at the ADCQ and in the Tribunal to date would not be proceeding in a manner that is fair, just, economical, informal, and quick.

[32] The submissions made by Mrs Bond and by the respondents all have merit to some degree. Both sets of submissions are supported by authorities. The Tribunal must decide whether it is in the interests of justice that the out of time allegations are included in the complaint to be determined by the Tribunal. The anti-discrimination legislation is, by its nature, protective jurisdiction. It is designed to protect the fragile freedoms that arise from the fundamental rights that each member of the community has to be equal before and under the law, and to equal protection and equal benefit of the law without discrimination.

[33] The prologue to the ADA Act acknowledges these rights. It also states that there are special measures in the ADA Act for the promotion of equality of opportunity for everyone by protecting them from unfair discrimination. Provisions in the ADA Act that have the effect of limiting the exercise of the steps that are designed to protect those fundamental freedoms must be carefully applied. In this case, the exercise of discretion by the Tribunal must take into account recognition that the ADA Act is protective legislation which should be beneficially interpreted from a rights prospective.

[34] It is apparent that should the out of time amendments not be allowed, Mrs Bond will miss out on seeking to redress what she calls discriminatory conduct in the period from November 2011 to February 2014. The delay in seeking redress for that alleged conduct was lengthy. However, Mrs Bond explained that she continued working and hoping that the conduct which she found objectionable would cease. She took other avenues to seek some redress, such as making various complaints within her workplace, but it was not until she was diagnosed with a psychological disorder and she ceased work that she determined to seek redress outside of her workplace.

[35] She lodged a WorkCover claim and had again hoped that by that means she could effect sufficient change and redress to resolve her complaints and return to a workplace that she regarded as safe for her wellbeing. The Tribunal is satisfied that the explanation on those grounds for the delay in lodging an anti-discrimination complaint has been adequately made by Mrs Bond.

[36] The Tribunal is also satisfied that the submissions of the respondents that they would be caused significant prejudice if the out of time claims were to be added to the complaint are not sustained. The complaint by Mrs Bond of what she called discriminatory conduct based on her relationship with her husband was known to the respondents well before February 2015. The information in the ADCQ referral documents and in the later submissions to the Tribunal reveal that Mrs Bond had provided complaints on this ground to Ms Thomas in writing as early as November 2011. There is similar information before the Tribunal that complaints on this same ground were raised on other occasions before Mrs Bond ceased work in April 2014.

[37] The respondents were on notice of these complaints and would not have been taken by surprise by the matters raised in the complaint documents lodged by Mrs Bond with the ADCQ. The submissions of the respondents that adequate particulars of the alleged discriminatory conduct were not provided to the ADCQ or to the Tribunal in the initial set of contentions filed by Mrs Bond are accurate, but that in itself should not result in leave to amend being denied to Mrs Bond. Particulars can be provided prior to the respondents putting on their evidence and proceeding to a final hearing.

[38] The deleterious effect of fading memory due to the passage of time will have an equal impact on the evidence of all parties and witnesses. However, that effect will be lessened in this case due to the existence of contemporaneous documents relating to the conduct from November 2011 to April 2014 as already disclosed to the ADCQ and to the Tribunal.

[39] The Tribunal concludes that it is in the interests of justice that the out of time allegations are added to the complaint of Mrs Bond. Such a result would provide her with an opportunity to protect her rights to work in a non-discriminatory workplace in the event that her complaint is ultimately found to disclose unlawful behaviour by her employer and line manager. It also provides the respondents with an opportunity to establish that they had not acted in a discriminatory manner and will put an end to the allegations of discriminatory conduct during the entire period in question from November 2011 to April 2014.

[40] In providing these opportunities to all the parties to achieve a resolution of the issues which have been raised now for over five years, the Tribunal believes that the objects of the QCAT Act will be satisfied by providing a fair, just, and economical manner for the final resolution of the issues.

[41] However, the Tribunal does not accept the submissions of Mrs Bond that an amendment of her complaint should also be made in relation to the subject of a later complaint made on 23 November 2015 and rejected by the ADCQ. This part of her amendment application differs significantly from her request that the out of time allegations should be added to her complaint. As discussed in these reasons, the out of time allegations had not been rejected by the ADCQ. What had happened about those allegations was that the ADCQ declined to exercise discretion to include them into the otherwise valid complaint.

[42] The ADCQ rejected the subsequent complaint lodged on 23 November 2013. It was submitted by the respondents that the Tribunal has no power to amend the complaint by adding in allegations that have been rejected by the ADCQ. The respondents submitted that while the discretion of the Tribunal under s 178 of the ADA Act is unfettered, the discretion nevertheless has limits. In particular, the discretion cannot re-enliven complaints previously rejected by the ADCQ and to do so would be beyond jurisdiction and outside the scheme set up by the ADA Act for only referred complaints to be determined by the Tribunal.

[43] The Tribunal accepts those arguments. Placing statutory limits on the discretion of the Tribunal does not fetter that discretion: the limits define the boundaries of the discretion but do not influence the Tribunal as to how to exercise the discretion.

[44] The statutory scheme in the ADA Act provides for certainty when complaints are rejected by the ADCQ. Under s 141, complaints are either accepted or rejected. If rejected, s 142 provides that the complaint lapses and the complainant is not entitled to make a further complaint relating to the act that was the subject of the rejected complaint. Mrs Bond is seeking to make a further complaint about the subject matter of the rejected complaint by including those matters in the current complaint before the Tribunal. Her arguments to the contrary are not convincing.

[45] The Tribunal concludes that the amendment power in s 178 does not extend to permitting an amendment to the current complaint before the Tribunal that would allow Mrs Bond to make a further complaint about matters rejected by the ADCQ. The ADA Act provides certainty that once rejected, a complaint cannot be re-enlivened. The Tribunal does not have power to re-enliven a complaint by exercising discretion under s 178.

[46] Lastly, Mrs Bond seeks to amend her complaint to add in what she describes as fresh allegations. Mrs Bond alleges that subsequent to lodging the anti-discretionary complaint in February 2015, she was subjected to victimisation on two separate occasions by the respondents. One occasion relates to comments and actions of Ms Thomas about incidents described in the WorkCover claim by Mrs Bond and the second occasion relates to the handling of a public interest disclosure made against Ms Thomas.

[47] The respondents oppose amendment to include both the new allegations. In relation to the WorkCover comments, the respondents argue that the original complaint document lodged with the ADCQ included a victimisation ground. The respondents argue that the allegations of direct discretion and victimisation based on the comments made by Ms Thomas in May 2014 were rejected by the ADCQ. However, that is not the case. ADCQ accepted the complaint for allegations made within time. While Mrs Bond had not categorised clearly or even comprehensively what conduct she regarded as amounting to victimisation, she had complained of victimisation.

[48] To the extent that she had not identified the comments made by Ms Thomas in the WorkCover claim as an occasion of alleged victimisation, there is a need for Mrs Bond to clarify the content of her allegations of victimisation. On balance, it would be preferable for the Tribunal to give leave to amend the complaint so that this occasion of alleged victimisation is clearly within the complaint that will be determined by the Tribunal. Section 178 provides the power for this amendment to be made. By exercising discretion under s 178, the Tribunal is permitting an instance of alleged victimisation to be adjudicated in circumstances where that instance was not expressly identified in the original complaint document but where the ground of victimisation was itself expressed in the document.

[49] The second allegation of victimisation that Mrs Bond seeks to include in her complaint relates to a public interest disclosure that Mrs Bond and her husband made against Ms Thomas. It is submitted that on 12 October 2015 Mrs Bond and her husband were notified that Sean Harvey had been appointed to decide the outcome of their public interest disclosures. When their objections to this appointment were nor responded to, Mr Bond and Mrs Bond made a complaint to the Queensland Ombudsman. It is submitted that three days after this complaint had been lodged, Mrs Bond was directed to attend a medical examination by her employer. It was alleged that this action constituted victimisation as the medical examination was interpreted to be part of the process that could result in involuntary retirement for Mrs Bond.

[50] The respondents submitted that this second allegation of victimisation had already been lodged with the ADCQ in November 2015 and had been rejected by the ADCQ. It was submitted that the Tribunal had no power to amend the complaint to add in this second allegation of victimisation.

[51] However, in the final submissions filed by Mrs Bond on 25 October 2016, it was submitted that the respondents were wrong to make the submission that the second victimisation matter had already been rejected by the ADCQ. Mrs Bond submitted that she had not earlier made a victimisation complaint to the ADCQ in relation to the State denying her natural justice by appointing Sean Harvey to decide whether Ms Thomas knowingly and willingly committed multiple violations of the State's Code of Conduct. Mrs Bond submitted that the earlier and rejected complaint to the ADCQ was based on the allegation that Mr Harvey retaliated against Mrs Bond by directing her to attend a medical examination.

[52] After being served with the final submission of Mrs Bond, the respondents made a further application for directions to the Tribunal seeking the opportunity to file further submissions in response to the submissions of Mrs Bond of 25 October 2016. In particular, the respondents argued that they had not seen the text of the letter from the ADCQ dated 16 January 2016 which outlined the rejection of the latter complaint of victimisation by Mrs Bond. The respondents argued that procedural fairness considerations required that the Tribunal afforded the respondents an opportunity to respond to the new matters raised in the final submissions of Mrs Bond.

[53] The application was referred to Mrs Bond who objected to the making of further directions allowing the respondents an opportunity to have the final response to the matters raised by Mrs Bond.

[54] The Tribunal has earlier in these reasons indicated that it did not find the final submissions made on behalf of Mrs Bond to be helpful in reaching its conclusions on how to apply s 178 of the ADA Act to the issues in this application to amend the complaint. The Tribunal was of the view that the reliance by Mrs Bond on a former version of s 155 of the ADA Act, on interstate legislation, and allegations that the ADCQ had exceeded its statutory powers did not require any response from the respondents. However, it is a different matter regarding the allegations of Mrs Bond that her November 2015 complaint to the ADCQ was not based on the victimisation allegation that she wants now to include into the complaint before the Tribunal.

[55] The Tribunal considers that reliance on the terms of that November complaint and the terms of rejection of that complaint by the ADCQ does require a response from the respondents. The Tribunal cannot make a decision on this final point of the amendment application without specific input from the respondents.

[56] The respondents are directed to file in the Tribunal and to send a copy to the representative for Mrs Bond of their submissions about the allegation by Mrs Bond that her rejected November 2015 complaint to the ADCQ was not based on the same allegation that she seeks to insert into the current complaint before the Tribunal and that as a consequence she is not precluded from the amendment that she seeks the Tribunal to make. Those submissions must be filed within 14 days of this order.

[57] The Tribunal will decide the remaining part of the amendment application after the time for the filing of those submissions has passed.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Bond v State of Queensland [2017] QCAT 132 (2 May 2017)

Parties