NCAT Administrative and Equal Opportunity|2021-03-24

Introduction

On 16 December 2019 Alster Firth (the Applicant) lodged a complaint with the NSW Anti-Discrimination Board (the ADB) with respect to conduct he alleged occurred whilst he was employed by Coles Supermarkets Australia Pty Ltd (the Respondent), which he claimed was discriminatory against him on the basis of his disability (the Complaint).
The complaint was referred to this Tribunal by the President of the ADB pursuant to s 93(C)(b) of the Anti-Discrimination Act 1977 (the Act) on 31 August 2020 (the Referral).
By application dated 11 February 2021 the Applicant sought amendment of the complaint (the Amendment Application), which was opposed by the Respondent. These reasons for decision concern the Amendment Application, which was heard on 24 March 2021 by telephone.

Background

The Applicant is employed by the Respondent as an online delivery driver. The Applicant has not performed work since July 2019 as a result of an ongoing workers compensation claim.
The Complaint alleged that an employee of the Respondent, Ms Simon, had bullied and discriminated against him from 22 November 2017 to 14 December 2018 due to his 'back injury disability'. The Complaint was submitted by the Applicant, who was not represented at the time, using the ADB's complaint form. The Complaint made no reference to particular sections of the Act. Under the heading: 'Why do you think it is discrimination' on page 13 of the Complaint the applicant wrote words to the effect: 1. My line manager and store manager treated me differently by putting limits on my toilet visits; 2. Request to do behavioural course within two days, by the store manager; 3. My line manager asked me to not speak to other co-workers even though they are work related matters; and 4. My line manager prevented me taking equipment I needed to perform my job.

Proposed amendments

The Referral characterised the Complaint as one complaint of disability discrimination in employment, under ss 49A, 49B and 49D of the Act, including both primary and vicarious liability. The Summary of Complaint in the Referral stated: On 16 December 2019, Anti-Discrimination NSW (ADNSW) received a complaint from Mr Alster Firth against the respondent, Coles Supermarkets Australia Pty Limited. In summary, the complainant alleges that the respondent unlawfully discriminated against him on the ground of disability in the area of employment, when from 22 November 2017 to 14 December 2018, co-workers and supervisors treated him less favourably than other workers because of his medical restrictions. The complainant alleges various instances where he was allegedly harassed by co-workers because they were not happy with his medical restrictions.
The applicant seeks an Order that the Complaint be amended to include the following complaints against the Respondent within the period 1 August 2017 to 14 July 2020:

ELEMENT FACTUAL ALLEGATION IN STATEMENT DATE

1 s49D(2)(d) Repeated unreasonable behaviour by Ms Simon- co-worker August to 22 November 2017 2 s49(2)(D) or s50 Conduct by Ms Simon following a complaint to management 23 November 2017 to 14 December 2018 3 s49D(2) or s50 Conduct by Ms Heaton: threat of performance management or forced movement to a different role within the company if the applicant could not perform the role in the same manner as other employees without the disability. 15 June 2018 and 22 March 2019 4 s49D(2) or s50 Conduct by Ms Heaton : requirement to do a workplace behavioural course 16 August 2018 5 s49D(2) or s50 Conduct by Ms Bayley of requiring the applicant to lift crates that weighed more than 15 kgs (above the medical restrictions) 26 October 2018 6 s49D(2) or s50 Conduct by online manager: told not to talk with work colleagues 2 January 2019 7 s49D(2)or s50 Conduct by Ms Heaton : limitations on toilet breaks 29 March 2019 8 s49D(2) or s50 Conduct by Ms Heaton : direction to not take an EFTPOS carry bag and not to carry a spare battery 29 March 2019 9 s49D(2) or s50 Conduct by Mr Dalgleish in creating the fraudulent emails and Coles' conduct thereafter Unknown to 14 July 2020

The Applicant provided detailed affidavit evidence and annexures of the factual circumstances he alleged occurred to support the Amendment Application and each of the amendments sought. The Respondent did not seek to cross-examine him on that evidence, and did not file any evidence to support its objections to the Amendment Application.

Legal principles

The Tribunal may exercise its discretion to amend a complaint in broad terms as set out in section 103 of the Act. The relevant considerations to be taken into account when exercising its discretion are addressed in Thompson v Rail Corporation NSW [2008] NSWADT 329 and McCrystal v Commissioner of Police, New South Wales Police Force (2018) NSWCATAD 299 at [10]-[12]: In Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24 (Zhang), an Appeal Panel of one of NCAT's predecessors, the Administrative Decisions Tribunal (ADT), considered the scope of the power conferred by s 103. The Appeal Panel rejected the proposition that s 103 only authorises the Tribunal to add complaints where these arise out of complaints that have been investigated by the President, citing the decision of the Appeal Panel in Chand v Rail Corporation of New South Wales [EOD] [2007] NSWADTAP 54 (Chand) at [37]- [38]. The Appeal Panel in Chand at [38] commented that relevant considerations when deciding whether to exercise the discretion to add a complaint are the age of the additional complaint and its relationship with the complaint that has already been referred. In Thompson v Rail Corporation NSW [2008] NSWADT 329, after considering Zhang and Chand, I considered the factors that may be relevant to the exercise of the power to amend a complaint, at [13]: The Act does not stipulate the matters the Tribunal should take into account when exercising its power to amend a complaint. The factors to be taken into account will vary from case to case and the weighting to be given to each a matter for the Tribunal. In addition to those factors listed in Chand, the following factors may be 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.
The objects of the Civil and Administrative Act 2013 (NSW) (CAT Act) at s 3 and its guiding principle at s 36 are also relevant considerations for the Tribunal in determining whether to exercise its discretion.

Consideration

The Applicant submitted that its proposed amendments to the Complaint as characterised by the President in the Referral would: 1. identify the separate and distinct acts alleged by the Applicant against employees of the Respondent in the Complaint as separate complaints of discrimination or victimisation, with reference to specific provisions of the Act relied upon; 2. expand the complaint temporally to August 2017 to include a short period of time prior to the incident of 22 November 2017, for the purpose of providing context to the escalation of conduct; 3. expand the complaint to include additional conduct which occurred in the context of the Complaint period, but were not specifically referred to in the Complaint.
In the Complaint, the Applicant identified the conduct he is complaining about without specifically distinguishing each incident or occurrence as a separate complaint or identifying the relevant provision of the Act relied upon. The Applicant submitted that the Complaint had been prepared without legal assistance and an unrepresented litigant may not have the knowledge to identify conduct said to be discriminatory and the manner in which it is described in s49 and s50 of the Act, which I accept.
In objecting to the Amendment Application, the Respondent referred to the decisions of A Braiding v Charles Sturt University [2015] NSWCATAD 242 at [49] - [50] and [54] and Singh v South Western Sydney Local Health District [2020] NSWCATAD 263 at [24] to support a submission that lack of legal advice alone would not be sufficient to allow an amendment. I agree, but the Applicant is not relying solely on the fact that he was not legally represented as grounds for this Amendment Application.
The Respondent relied heavily on the Complaint as expressed in the ADB complaint form by the Applicant, and the Referral's characterization of it as "one complaint". The Respondent submitted that the Applicant's Complaint in the ADB form: "clearly identified the relevant conduct and clearly explained why the Applicant alleges that the conduct constitutes disability discrimination. There was no ambiguity in the Complaint and no room for any doubt that the conduct complained of was conduct in the Relevant Period. The Respondent was entitled to proceed on the basis that the conduct in the Relevant Period was the only conduct that was in issue and did in fact proceed on this basis as can be seen by the Respondent's response dated 17 March 2020, which responds only to the allegations relating to conduct in the Relevant Period: refer section 2 of the Respondent's response. It is also clear from the President's Report that only conduct within the Relevant Period was the subject of the conciliation conference.
The Summary of Complaint in the Referral acknowledges that the conduct complained of is with respect to more than "one complaint": …co-workers and supervisors treated him less favourably than other workers because of his medical restrictions. The complainant alleges various instances where he was allegedly harassed by co-workers because they were not happy with his medical restrictions.
On my review the Complaint refers to the facts grounding each of the amendments referred to at 8 above, with the exception of Amendment 9 in the table. The conduct which the Applicant alleges was discriminatory goes beyond the actions of Ms Simon from 22 November 2017 to 14 December 2018, which is incorporated as Amendments 1 and 2, to encompass the actions of the Respondent's other employees, as outlined at 5(1) to 5(4) and 6 above.
The Applicant has provided detailed evidence in his affidavit of the various instances in which he alleges his co-workers and supervisors treated him less favourably than other workers because of his medical restrictions, which I accept are an expansion of the matters referred to in his Complaint and summarised in the Referral. The Applicant's evidence also explains why the timeframe of the complaint should be expanded to incorporate related conduct in the 4 months prior to 22 November 2017, which culminated in and provide context for the incident on 22 November 2017.
With the exception of Amendment 9, the expansion of the timeframe of the complaint after 14 December 2018 (the Additional Conduct) seeks to include conduct by the Respondent and its employees towards the Applicant which is otherwise already referred to in the Complaint, albeit without the dates on which it occurred being specified. This Additional Conduct is submitted to constitute either discrimination or victimization under the Act. The complaint identified above at paragraph 8 as Amendment 9 is somewhat different, as the Applicant was not aware that the conduct had occurred until after the Complaint was submitted, and documents were sought from the Respondent as a consequence to the Response they provided the ADB on 17 March 2020.
The Applicant submitted that matters in favour of the Additional Conduct being incorporated in the Amended Application were that the proposed amendments were precise as to the date, the identity of the person and the alleged conduct, that the allegation involving the alleged fraudulent emails only became known to the applicant after he filed the complaint, and that the allegations are accompanied by contemporaneous written documents created by the applicant. The factual circumstances and context in which the Additional Conduct occurred is common to the Applicant's other complaints. I give those considerations reasonable weight.
The Respondent submitted that the expanded complaints, including the Additional Conduct, would fall within the grounds available to the President of the ADB for declinature under s 89B(2) and s92(1) of the Act. I accept that the conduct subject of the Amendment Application, including much of the Additional Conduct, could constitute a ground for declinature under s 89B(2)(b) but agree with the Applicant's submission that this would not necessarily amount to declinature in these circumstances, where the factual allegations of conduct supporting the allegations are the subject of another complaint that has been referred to the Tribunal. I give this consideration limited weight.
The Respondent submitted that the proposed amendments disclose an additional 17 causes of action which are untenable on the evidence currently before the Tribunal. I disagree that the appropriate test is to examine the evidence currently filed. The Tribunal needs to determine whether, if the Applicant makes out the factual allegations it alleges, that could constitute discrimination or victimization under the Act. In my view it could, and so the proposed amendments are not untenable. Although the Respondent submitted that there may be grounds for declinature under s 92(1)(a) of the Act, I don't accept that there is an evidentiary basis upon which the President would be satisfied of any of those matters in relation to the Applicant's Complaint.
The Respondent submitted that the amendments to incorporate allegations of victimization as well as discrimination in relation to the conduct, and especially in relation to the Additional Conduct, would require additional investigation by the Respondent, which I accept in a general sense and give reasonable weight in the circumstances. However I consider that such additional investigation would need to occur in the context of a new complaint lodged in relation to the same factual circumstances complained about, instead of incorporating the victimization complaints or the Additional Conduct into these proceedings. I agree with the Applicant's submissions that the proposed amendments would obviate the need to lodge a new complaint and avoid possible duplication of proceedings and costs, in circumstances where the much of the factual circumstances are common, and give this consideration significant weight.
The Respondent submitted that it would suffer prejudice if the Tribunal were to grant the amendments, but did not provide any evidence of specific prejudice. I accept that the Respondent will suffer the presumed, general prejudice which a party to proceedings could incur as a result of an amendment to the case it had anticipated or prepared, but consider that little weight should be afforded to this consideration in these circumstances where there is no specific prejudice identified or supported by evidence, where the factual circumstances have significant overlap and commonality, and where the parties have not yet been ordered to file and serve their evidence in support of the substantive application.
In the circumstances I consider that the factors in favour of the amendments outweigh those against. Accordingly I have decided to exercise the power to amend the complaint in the terms sought by the Applicant.

Orders

The complaint referred by the President of the Anti-Discrimination Board to the Tribunal on 31 August 2020 is amended to incorporate the following complaints against the Respondent within the period 1 August 2017 to 14 July 2020: 1. Repeated unreasonable behaviour by Ms Simon from August 2017 to 22 November 2017 in contravention of s49D(2)(d) of the Act; 2. Conduct by Ms Simon following a complaint to management from 23 November 2017 to 14 December 2018 in contravention of s49(2)(D) or s50 of the Act; 3. Conduct by Ms Heaton: threat of performance management or forced movement to a different role within the company if the applicant could not perform the role in the same manner as other employees without the disability on 15 June 2018 and 22 March 2019 in contravention of s49(2)(D) or s50 of the Act; 4. Conduct by Ms Heaton: requirement to do a workplace behavioural course on 16 August 2018 in contravention of s49(2)(D) or s50 of the Act; 5. Conduct by Ms Bayley of requiring the applicant to lift crates that weighed more than 15 kgs (above the medical restrictions) on 26 October 2018 in contravention of s49(2)(D) or s50 of the Act; 6. Conduct by online manager: told not to talk with work colleagues on 2 January 2019 in contravention of s49(2)(D) or s50 of the Act; 7. Conduct by Ms Heaton: limitations on toilet breaks on 29 March 2019 in contravention of s49(2)(D) or s50 of the Act; 8. Conduct by Ms Heaton: direction to not take an EFTPOS carry bag and not to carry a spare battery on 29 March 2019 in contravention of s49(2)(D) or s50 of the Act; 9. Conduct by Mr Dalgleish in creating the fraudulent emails and Coles' conduct thereafter from an unknown date to 14 July 2020 in contravention of s49(2)(D) or s50 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 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: 31 March 2021

Civil and Administrative Act 2013(NSW)

Firth v Coles Supermarkets Australia Pty Limited

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

ELEMENT FACTUAL ALLEGATION IN STATEMENT DATE

Parties

Legislation Cited (3)

Cases Cited (2)