Bonner v Secretary, Department of Industry

Legal principles

1. Section 102 of the Anti-Discrimination Act gives the Tribunal power to dismiss, at any stage, proceedings relating to a complaint on certain grounds on which the President of the Anti-Discrimination Board may also decline a complaint. One of those grounds is that the proceedings are "frivolous, vexatious, misconceived or lacking in substance".
2. The legislative context of this provisions includes the "guiding principle" set out in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). In addition, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2). The Tribunal is also to act with "as little formality as the circumstances of the case permit": NCAT Act, s 38(4).
3. The power to dismiss a complaint because the conduct, even if proven, would not disclose a contravention of the legislation is similar to the inherent power of courts to strike out proceedings they are bad in law or clearly hopeless: Bernard Carins, Australian Civil Procedure (10th edition, Thomson Reuters) at 504. A pleading will be struck out if the court is satisfied that even if the plaintiff proves all the factual allegations in the pleading, those facts would not establish the essential elements of a cause of action.
4. The term "lacking in substance" was interpreted by the Court of Appeal in Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [45] in the context of the informal investigative powers in the Strata Schemes Management Act 1996 (NSW). The Court concluded at [45] that, "It would be inappropriate given the extraordinary powers triggered by a finding that an application is lacking in substance, to attribute to the phrase a meaning other than "not reasonably arguable". Although the legislative context here is different, that interpretation is also apt given that the power to summarily dismiss a complaint should be used sparingly and only where there is a high degree of certainty that the complaint will not succeed: AB v State New South Wales [2014] NSWSC 81 at [50] quoting Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

Application of principles to Mr Bonner's complaint

1. Mr Bonner is alleging that the respondent has breached s 49V(2)(a), (b) or (d) of the Anti-Discrimination Act in relation to the terms and conditions of employment, by denying him access to opportunities for transfer or by subjecting him to a detriment: (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's responsibilities as a carer: (a) in the terms or conditions of employment that the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment.
2. Mr Bonner's complaint is one of 'direct' discrimination on the ground carer's responsibility as defined in s 49T: 49T What constitutes discrimination on the ground of a person's responsibilities as a carer: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of the aggrieved person's responsibilities as a carer if the perpetrator: (a) on the ground of the aggrieved person having responsibilities as a carer, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities, or (2) For the purposes of subsection (1) (a), something is done on the ground of a person's responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer.
3. In support of his complaint, Mr Bonner provided a statement from his former manager, Ms Sandra White. In 2013 Ms White had approved an arrangement for Mr Bonner to work from the Coffs Harbour Office on an 'as needs' basis. Mr Bonner says that approval was subsequently withdrawn by his new manager, Ms Tracey Lawson.
4. Mr Bonner provided two statements from an employee who he says was in a comparable situation to him. Jason Mannall, an employee without carer's responsibilities, was transferred from Grafton to Coffs Harbour. Other less formal evidence was provided about the experiences of other employees in seeking and being granted transfers. Mr Bonner says that two other employees, Mr Edwards and Mr McCulloch, were in a comparable situation to him but are reluctant to provide a written statement. I approved the issuing of a summons to Mr Edwards and Mr McCulloch to give evidence at the hearing.
5. Mr Bonner submitted on the basis of the evidence he had provided and would provide, that other employees without carer's responsibilities were transferred for various reasons including compassionate and medical grounds, family or personal circumstances or to facilitate flexible work practices. The only point of difference that he can see between their situation and his situation is that he has carer's responsibilities. He says that the reasons the respondent gave for refusing the transfer - operational convenience and proximity to a manager and fellow team members - could equally have been given as a reason for refusing other employees' applications for transfer.
6. The respondent submitted that Mr Bonner's complaint is entirely misconceived and lacking in substance and should be dismissed in accordance with the principles in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]. According to the respondent, even if Mr Bonner proves all the factual allegations in the documents he has submitted to the Tribunal, those facts would not establish the essential elements of a cause of action under the Anti-Discrimination Act.
7. One of the respondent's arguments is that Mr Bonner has not identified a person to compare himself with to support the 'differential treatment' part of the test for direct discrimination: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [46]. According to the respondent, the circumstances of other employees who were transferred were materially different from Mr Bonner's circumstances or those employees did have carer's responsibilities.
8. Even if Mr Bonner's evidence is not sufficient for the Tribunal to find that any of the other employees he has identified are appropriate comparators, the Tribunal can make the comparison between Mr Bonner and a hypothetical employee without carer's responsibilities: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 per Mahoney JA.
9. In Dutt v Central Coast Area Health Service [2002] NSWADT 133, the Tribunal recognised that when it is necessary to apply the differential treatment test on the basis of a hypothetical comparator, the differential treatment element of direct discrimination effectively merges with the causation element. A finding that the respondent would have treated a person without carer's responsibilities more favourably than it treated Mr Bonner, could only be made if a reason for the treatment was Mr Bonner's carer's responsibilities: (See also Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26). The absence of an actual comparator does not necessarily mean that Mr Bonner's complaint is lacking in substance.
10. The causation element of direct discrimination requires that one of the reasons for refusing Mr Bonner's application for a transfer to Coffs Harbour was his carer's responsibilities: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [47] - [50]; Anti-Discrimination Act, s 4A. As with the vast majority of complaints of discrimination, a causal link would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant: (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence.
11. The fact that the respondent has provided an explanation for refusing to transfer Mr Bonner, does not necessarily mean that the complaint lacks substance.
12. Mr Bonner has identified a provision of the Anti-Discrimination Act which he says has been breached. He has also provided some evidence as to how the respondent treated other employees without carer's responsibilities who applied for transfers. Whether or not those circumstances are the same or not materially different to Mr Bonner's circumstances, is an issue about which evidence will be led and submissions made at the hearing. Even if there is no actual comparator, Mr Bonner can rely on a hypothetical comparator. The reasons the respondent gave for refusing the application for transfer do not satisfy me, on their face, that Mr Bonner's complaint is not reasonably arguable. The power to summarily dismiss a complaint should be used sparingly and only where there is a high degree of certainty that the complaint will not succeed. This is not such a case.

Order 1. The application by the Secretary, Department of Industry for Mr Bonner's complaint of carer's responsibility discrimination to be dismissed as lacking in substance is refused.

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 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: 19 July 2017