Commissioner of Police, NSW Police Service v Mooney

1 The appellant, the Commissioner of Police, appeals against the dismissal of an application under Section 111 (1) of the Anti Discrimination Act 1977 (the AD Act) by the Tribunal below on the 17th of March, 2000. Essentially two bases for the dismissal were argued by the appellant before the Tribunal namely:- a) That the complaint was received by the President of the Anti-Discrimination Board outside of the time stipulated by section 88 (3) of the AD Act and that, in the absence of the power under s 88(4) being exercised by the President, the complaint was invalidly received and therefore invalidly referred to the Tribunal, and b) That the complaint was misconceived and lacking in substance for the purposes of section 111 (1) of the AD Act. 2 As to the first of these bases the Tribunal found that the complaint was not lodged out of time and as to the second that the claimed discrimination, both direct and indirect, was "capable of being established by the Complainant" ( see paragraphs 24 and 26 of the Tribunal's decision of the 17th March, 2000). 3 The appellant essentially revisits those arguments before the Panel by way of written and oral submissions to the effect that the Tribunal erred in determining that the complaint was lodged within the time limit provided for by the Act and that the Tribunal failed to exercise jurisdiction for the purposes of the s 111 application, more particularly, that it misconstrued the test to be applied. Background 4 In 1988 the complainant began working within the New South Wales Police Service having joined the Public Service in 1972. According to the handwritten letter constituting the complaint to the President of the Anti-Discrimination Board dated the 5th of February, 1996, the complainant maintained that an incident occurred in the early 1990s between himself and one Inspector Clark. The complainant alleged that this incident was the genesis of the alleged discriminatory acts towards him, principally on the part of Inspector Clark. 5 On the 2nd of March, 1992 the New South Wales Police Service Sick Leave Policy was published in the Police Service Weekly. Amongst other things it provided that any officer who was absent on sick leave on more than four occasions in any one calendar year maybe required at the discretion of the Commander or Manager to provide medical certificates for any future sick leave absences until a satisfactory attendance pattern was established. Further reference was made in that context to the content of the interview between the officer and the Commander or Manager and action which would be taken in the event that the sick leave record of the officer did not improve. 6 On the 12th of May 1993 a review of the sick leave record of the complainant revealed that his absences in the preceding twelve months were in excess of the Police Service Sick Leave Policy. A letter which was before the Tribunal bearing that date indicates that the Policy was implemented in relation to the complainant by way of an interview with his then Commander, a Detective Senior Sergeant Walsh on the 12th of May 1993. An addendum to that letter indicates that the Commander had declined to take any further action in relation to the matter. 7 On the 22nd of March 1994 a further review of the complainant's sick leave record indicated that his absences claiming illness during the preceding twelve months were in excess of the Police Service Sick Leave Policy. A letter notifying the complainant of that review, bearing that date, and a recommendation that no further action be taken by the complainant's then Commander, Inspector Wormleaton, was also before the Tribunal. 8 Between the 13th of July and the 12th of August 1994 the complainant was hospitalised on two occasions in relation to a gall bladder operation. He returned to work on the 19th of September, 1994 having taken approximately fourteen days sick leave over that period of time. On or about the 19th of September, 1994 the complainant was asked by Inspector Wormleaton to supply copies of all of his Medical Certificates. It appears that some consideration was given to requiring the complainant to undergo an examination at Healthquest. However, as a result of an interview between the complainant and the Senior Co-ordinator of Personnel, a Mr. Milner, on the 11 of November 1994 that requirement was waived. The complainant was advised at the interview and by way of a letter dated the 1st of December, 1994 that his sick leave record would continue to be monitored and that a review would be undertaken in a further three months. A letter bearing the same date was sent to the complainant's Commander at that time, Inspector Clark, informing him of the need to further monitor the complainant's sick leave record. 9 On the 16th of March 1995 the Assistant Personnel Officer wrote to the complainant's Commander indicating that a further review of his sick leave record was due. That review was conducted and confirmed by way of a letter to the complainant dated the 11th of April, 1995 under the hand of the Manager of the Personnel Services branch. That letter noted an improvement in the complainant's sick leave record but indicated that his record would continue to be monitored with a further review in three months. 10 On the 11th of July, 1995 a further review of the complainant's sick leave record was undertaken by the complainant's Commander, Inspector Clark, at the request of the Personnel Services branch. The recommendation on this occasion was that the complainant continue to supply Medical Certificates for each occasion that he was on sick leave over the following six months. That recommendation was brought to the attention of the complainant on the 12th of July, 1995. 11 The complainant indicates in his statement that it was the combination of these events, and what he regarded as an unsatisfactory working relationship between himself and Inspector Clark, which culminated in his decision to resign. On the 17 of July, 1995 he advised Mr.Wormleaton of his intention to resign. That was the complainant's last day at work, because he commenced his annual leave on and from 18 July 1995. By letter dated the 21 of July, 1995 the complainant tendered his resignation effective as at the 18 of August, 1995 being the last date of his annual leave. In the course of that letter of resignation the complainant said "resulting from my age I have been the subject of harassment and discrimination from Robert Campbell Clark with the result I am compelled to give this notice of my early resignation." 12 The discrimination alleged by the complainant on the grounds of disability and age was pleaded under sections 49D(2)(a)-(d) and 49ZYB(2)(a)-(c) of the Anti-Discrimination Act. The complainant's case under both provisions was based on both direct and indirect discrimination. The nature of the alleged indirect discrimination (s 49B(1) and s 49ZYA(1)) was the obligation to comply with the Sick Leave Policy, that is, that he was subjected to an unfettered discretion to monitor his sick leave if it exceeded the prescribed level. A further allegation of conduct with a view to causing the complainant to retire from employment was made under s 49ZV of the Ant-Discrimination Act. 13 As can readily be seen from the history of the matter set out above, the complainant claims that the events giving rise to the alleged direct and indirect discrimination for the purposes of s 49D(2)(a)(b) and (d), and s 49ZYB(2)(a) and (b), are those which occurred on and before the 17 of July, 1995. There was no conduct on the part of Inspector Clark, or the respondent, which could affect the complainant in the terms and conditions of his employment , deny or limit his access to opportunities for promotion, transfer or training, or other employment-related benefit, or subject him to any other detriment, after 17 July 1995, because he was no longer at the workplace. Lest it be thought that the complainant was capable of being indirectly discriminated against by the application of the Sick Leave Policy to him, even after he had tendered his resignation, there must be some practical nexus between the requirement or condition and the complainant's obligation to comply : see Styles v Dept Foreign Affairs (1988) 84 ALR 408 at 426. In other words, the latest date upon which the complainant alleges that a contravention of the Act occurred for these purposes was the 17 of July 1995. 14 That leaves the alleged contravention constituted by the complainant's "constructive dismissal" under s 49(2)(c) and s 49ZYB(2)(c). The law in relation to "constructive dismissal" has developed primarily in the industrial relations jurisdiction, and has been applied in the human rights and equal opportunity jurisdiction when a complainant alleges dismissal as an act of discrimination : see Librizzi v Flower Power Pty Ltd [1999] HREOCA 5. The general principles relating to "constructive dismissal" were set out in Allison v Bega Valley Council (1995) 63 IR 68. Of particular relevance to this matter is the following :- "Although the term 'constructive dismissal' is quite commonly used, it can deflect attention from the real inquiry. That should involve an analysis of what occurred. Did the employer behave in such a way as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so, despite, on the face of it, the employee appears to have given his or her resignation ? ...... Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was freely given and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed." (emphasis added) 15 It is clear from these principles that the "dismissal", which is the allegedly discriminatory act, is the act of resignation, not the date upon which the resignation might take effect. The complainant formally tendered his resignation on 21 July 1995, although he had in fact considered the contract of employment at an end on 17 July 1995. 16 Before proceeding it should be observed that it is not disputed that the complainant suffered from a disability. The precise nature of the disability has not been identified although it is apparent from the circumstances surrounding the complaint that it related to the gall bladder operation and osteoporosis in the knees. Nor does there appear to be any factual dispute, in the sense that the events set out above were contested by either of the parties. Rather it was the interpretation of these events by the complainant and the inferences which he sought the Tribunal to draw from them with which the respondent/appellant took issue. On the hearing of the application, the appellant tendered the whole of the complainant's documentary case before the Tribunal, none of which was objected to by the complainant/respondent. Ground One : That the Tribunal Erred in Determining that the Complaint was Lodged within the Requisite Time. 17 The Tribunal's reasoning on this limb of the appellant's argument appears at paragraph 8 of the decision. In effect, the Tribunal held that the resignation arose out of the alleged discriminatory acts of the respondent/appellant and that accordingly, the contravention of the Act flowed from the date upon which the resignation took effect, being the 18 of August, 1995. Thus the Tribunal reasoned that the complainant had a period of six months from the 18 of August, 1995 within which to lodge his complaint with the President of the Board. 18 Section 88 (3) of the Anti-Discrimination Act provides :- "A complaint shall be lodged within six months after the date on which the contravention of this Act .... which is the subject of that complaint is alleged to have been committed." 19 A complaint for the purposes of section 88 is an allegation in writing that the Act has been contravened by conduct directed towards the complainant by a respondent. Such alleged discriminatory conduct towards a complainant, which occurs in the workplace, (as is alleged in the present circumstances) may have consequences for the complainant after he has physically left the workplace and does not intend to return. However, the complainant made it abundantly clear in the terms of the complaint lodged with the Board that the alleged discriminatory acts all occurred in the period leading up to and including 21 of July, 1995. In other words, there was no contravention of the Act on the date upon which the resignation took effect. 20 In arriving at this conclusion, we have not overlooked the fact that the complainant alleged a series of acts, or a course of conduct which was said to constitute discrimination. Time commences to run from the last manifestation of the course of conduct, for the purposes of s 88(3) ; per Barbour J in Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140 at p 76,385. In this matter, the last manifestation of the alleged course of conduct for the purposes of establishing discrimination was 21 July 1995. 21 It follows that the Tribunal erred in determining that the date of resignation was the relevant date for the purposes of section 88 (3). The last date for the lodgement of the complaint was the 21 January, 1996. 22 Given that the complaint was lodged out of time, we turn to consider the question whether the exercise of a discretion under section 88(4) was enlivened in the circumstances of this matter. The argument before the Tribunal below proceeded on the basis that the evidence was completely silent on the question whether the President in fact exercised his discretion under s 88(4). 23 Subsection 4 reads as follows:- "Notwithstanding subsection (3) the President, on good cause being shown, may accept a complaint which is lodged more than six months after the date referred to in that subsection." 24 On the hearing of this appeal the appellant asserted that the President did not exercise his discretion under subsection 4. The complainant/respondent argued that the exercise of the discretion did not arise because the complaint was within time and, ( in the alternative) that if the complaint was out of time, the Panel can not infer that there was a failure to exercise discretion when the evidence is silent on the question. 25 In the absence of any evidence as to whether the discretion was exercised, what inference should the Panel draw ? Whilst the Tribunal itself did not turn its mind to the question ( it having determined that the complaint was within time), exactly the same evidence is before the Panel as was before the Tribunal. It seems therefore, that the Panel is in as good a position as the Tribunal to draw inferences from the evidence or the lack thereof. 26 For the reasons given below, there can be no presumption of regularity in the manner in which the President dealt with the complaint. The material must be examined for what it indicates. 27 It has been observed in the course of a number of recent decisions in the NSW Court of Appeal that drawing an inference of a failure to consider a relevant fact by a body or authority ought to be undertaken cautiously. However, if the inference is available to be drawn then the Court should not hesitate to do so. Moreover, it may more readily be drawn where there is no evidence from those with knowledge of the facts or where the whole of the documentary material before the body or authority makes no reference to the relevant fact : see Baiada & Ors -v- Waste Recycling and Processing Service of New South Wales [1999] NSWCA 139 and Franklins Limited -v- Penrith City Council and Campbells Cash and Carry Pty. Limited [1999] NSWCA 134. 28 The reference to "on good cause being shown" in subsection 4 refers to the satisfaction on the part of the President that the delay has been explained and that no prejudice has thereby been created : see McAuliffe -v- Puplick & Anor. (1996) EOC 92-800. Had the discretion under subsection 4 been addressed and exercised, one might expect the President's report and the correspondence from the President to the respondent and from the President to the complainant to reflect a consideration of those factors, ie, the delay and the question of prejudice to either or both of the parties. 29 The Panel is of the view that the inference contended for by the appellant should be drawn because of the absence of any material within the President's report (including the correspondence and documents annexed thereto) referring either to any delay on the complainant's part in lodging the complaint or to any questions of prejudice arising from that delay. The Panel is therefor of the view that the President did not exercise the discretion under s 88(4). 30 It is now necessary to return to the terms of sections 88 and 89 of the Act in order to appreciate the appellant's argument to the effect that the Tribunal lacked jurisdiction to inquire into the complaint. Section 88 (1) relevantly provides that a complaint in writing in respect of a contravention of the Act may be lodged with the President by a person on the persons own behalf. The provisions of subsections 3 and 4 of section 88 have already been referred to above. Section 89(1) provides that "the President shall investigate each complaint lodged with the President under section 88." It must therefor, in our view, be lodged in compliance with all of s 88(1) - (4). On the face of those subsections, it appears to the Panel that a complaint which is not lodged within six months of the alleged contravention of the Act (s 88(3)), and has not been the subject of the exercise of the discretion to accept a complaint lodged out of time (s 88(4)), is not a complaint lodged with the President under section 88, for the purposes of section 89 (1) of the Act. In short, the statutory power to investigate a complaint apparently arises only when the conditions attaching to s 88 are observed, that is, when a complaint is validly received. 31 Another way of expressing the view above, is to say that subsections (3) and (4) of s 88 stipulate an essential preliminary condition (that is, they are mandatory provisions) to the exercise of the President's statutory power to receive and investigate complaints, as opposed to laying down a mere procedural condition (that is, they are directory provisions) for the exercise of the statutory power. A failure to comply with an essential preliminary condition invalidates an act done in breach of the condition, whereas a failure to comply with a procedural condition does not. A classification of provisions according to these terms is, however, the end of, rather than the beginning of the argument. Since the High Court in Project Blue Sky v ABA [1998] 194 CLR 355 approved of the approach taken by the NSW Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20, the focus of any determination with respect to the validity of an act done in breach of a condition regulating the exercise of a statutory power is the construction of the statute itself. 32 According to the majority judgment in Project Blue Sky, the question of validity "depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. ...... The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances." (at 389) 33 A review of cases which highlight those factors which have proved decisive in other contexts was undertaken by the NSW Chief Justice in Timbarra Protection Coalition Inc v Ross Mining NL and Ors [1999] NSWCA 8, following Project Blue Sky. Before embarking on that review, the Chief Justice observed that "there is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference [the condition] is a jurisdictional fact. All the normal rules of statutory construction apply." (at para 39) He further observed the distinction between those "factual reference(s)" or conditions in a statute which, when properly construed, "can only be satisfied by the actual existence (or non-existence) of the fact" and those "factual reference(s)" or conditions, the existence of which could be determined by the decision maker. In the latter case, the statute is often framed in terms of the satisfaction, belief or opinion of the decision maker. (paras 40-42) 34 Turning then to the construction of s 88(3) of the AD Act, the language of the provision is in mandatory terms. The complaint "shall be lodged" within six months of the alleged contravention of the Act. There is nothing in the language of the subsection which suggests that the President may determine whether a complaint is lodged within the relevant time frame, according to his satisfaction or belief or opinion. By way of contrast, the language of subsection (4) suggests that the existence of "good cause" is to be determined according to the President's satisfaction, but that is not to the point. For the reasons outlined above, we find that the discretion under subsection (4) was not exercised ; the matter must therefor be approached on the basis that the complaint was lodged out of time. 35 When construing the provisions of the AD Act, particular regard must be had to the statutory purpose, in so far as the legislation protects or enforces human rights : see Waters v Public Transport Corporation (1991) 173 CLR 349 and IW v City of Perth (1997) 146 ALR 696. However, there is no ambiguity, either in the terms of subsection (4), the terms of section 88 taken as a whole, or the terms of Division 2 of Part 9 of the Act. The legislature clearly intended that complaints to the Anti Discrimination Board bear some reasonable temporal proximity to the events giving rise to the complaint. Where they do not bear that proximity, the legislature provided for an exception to the general rule, upon demonstration of "good cause" by the complainant. The fact that the legislature allowed only one proviso to an otherwise strict time limit suggests that it was conscious of the need to ameliorate potential hardship to a deserving complainant, who could satisfactorily explain the failure to complain within the time limit set down by the Act. However, no other basis for receiving a complaint lodged out of time can be discerned from the Act. 36 The consequences of invalidating every complaint lodged out of time, absent the exercise of the discretion under subsection (4), are obviously far-reaching. A complainant who lodges a complaint a matter of days or weeks after the expiration of the time limit (as in the instant case) may regard such a consequence as unnecessarily harsh and arbitrary. The consequences to the prospective respondent are felicitous, in that the respondent avoids accountability for the alleged discriminatory conduct. If, however, the strict terms of subsection (3) are to be ignored, what purpose does subsection (4) serve ? It seems inescapable that the legislature intended that the time limit stipulated in s 88(3) was not a matter incidental to the exercise of the power to investigate the complaint, rather it is a preliminary to the exercise of that power. 37 Some authority for this view is to be found in Janus v Lifeline Upper Spencer Gulf Inc (1991) EOC 92-382. Section 93(2) of the Equal Opportunity Act 1984 (S.A.) provides that a complaint must be lodged within six months of the alleged contravention of the Act, or the last of a series of acts being the alleged contravention of the Act ; see also s 138 of the Anti Discrimination Act 1991 (Qld) ; s 83(4) of the Equal Opportunity Act 1984 (W.A.) ; s 63 of the Anti Discrimination Act 1998 (Tas) ; s 65 of the Anti Discrimination Act 1992 (N.T.). (By way of contrast, there is no time limit prescribed by the Equal Opportunity Act 1995 (Vic), rather the Commission may decline to entertain the complaint on the grounds that the alleged contravention occurred more than twelve months before the complaint was made (s 108)). 38 In Janus, the complainant lodged a complaint in June 1989, whereas the job interview which constituted the alleged contravention of the Act occurred in September 1988. The Commissioner had referred the complaint to the Tribunal for inquiry. The Tribunal held that s 93(2) was mandatory as to the time limit for lodging complaints. Whilst the Tribunal was to "act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal form" (the equivalent of S 73(3) of the Administrative Decisions Tribunal Act 1997(NSW)), that power was only relevant where the Tribunal's jurisdiction had been properly invoked. The Tribunal had no jurisdiction to hear the matter because there had been no complaint brought before the Tribunal in accordance with the Act. The same construction of the South Australian provisions has been upheld and applied to like effect in Parashakis v State of South Australia [1999] SADC 102 following Agostinelli & Ors v Kelvinator Australia Ltd 12/2/96. 39 There is also obiter dicta within the judgment of Levine J in McAuliffe v Puplick & Anor (1996) EOC 92-800 which tends toward this construction of s 88(3) of the AD Act. Referring to the President's discretion under subsection (4), Levine J said :- "the decision under s 88(4) affects legal rights and has a finality of its own within the structure of the legislation and confers a power which enables an exemption from the command in s88(3) that a complaint should be lodged within 6 months after the date on which the contravention is alleged to have been committed. It is clear that the legislature has indicated that the time for lodging complaints is not to be 'unlimited' ..." 40 Before leaving this issue, it is appropriate that we say something about a number of decisions of this Tribunal in the past which have sought to deal with complaints lodged out of time, in the absence of evidence that the discretion under s 88(4)has been exercised, by reliance upon the presumption of regularity. Two in particular deserve mention. In Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140 the Tribunal applied the presumption of regularity to confirm its jurisdiction to deal with a number of complaints which had been lodged out of time, and in respect of which there was no evidence that the President had exercised her discretion under s 88(4). The Tribunal reasoned that once a complaint was referred, the Tribunal was seized of jurisdiction. However no analysis of the terms of s 88(3) and (4) and their place in the statutory scheme of the AD Act was undertaken before arriving at this view. The Tribunal applied and followed Najdovska in Harrison v State Bank of NSW (1987) EOC 92-200. In the light of what has been said by the Court of Appeal in Franklins Limited -v- Penrith City Council and Campbells Cash and Carry Pty. Limited [1999] NSWCA 134 (at para 28), the presumption of regularity cannot be applied where questions of power are concerned. The correct approach is to determine the nature of the statutory scheme, that is, whether the observance of the time limit was intended as a preliminary to the exercise of the power. If the answer is yes, the presumption of regularity has no part to play. These earlier decisions of the Tribunal in this particular respect must now be regarded as erroneous. 41 Accordingly, the Tribunal below lacked jurisdiction to hear the complainant/respondent's complaint and the s 111 application should have been upheld on that basis. In these circumstances, there is no necessity to deal with the second ground of the appeal. 42 The formal orders of the Panel are :- 1. The decision of the Tribunal to refuse the application to dismiss the complaint is set aside. 2. In substitution, the complaint is dismissed pursuant to s 111(1) of the Anti Discrimination Act.

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.