DELIVERED : Edited reasons delivered extemporaneously on 11 MAY 2006

CHURCHES OF CHRIST HOMES & COMMUNITY SERVICES INCORPORATED

Equal opportunity ­ Discrimination on ground of gender ­ Need for causal relationship between treatment and gender ­ Whether application lacking in substance or misconceived ­ Whether proceedings should be summarily dismissed

Equal Opportunity Act 1984 (WA), s 8, s 27, s 90(2)

State Administrative Tribunal Act 2004 (WA), s 47

General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

1 This matter comes to the Tribunal by way of a referral from the Commissioner for Equal Opportunity. Mr Ambrus made a complaint of several matters, one of which was a complaint of sexual discrimination, to the Commissioner for Equal Opportunity which was dealt with by the Commissioner and found, on 2 September 2005, to be lacking in substance.

2 On 22 September 2005, Mr Ambrus gave notice under s 90(2) of the Equal Opportunity Act 1984 (WA) requiring the Commissioner for Equal Opportunity to refer the complaint to the Tribunal and that was done on 2 November 2005.

3 The history of the matter since then is that the Tribunal referred the matter to a compulsory conference which was conducted, or was due to be conducted, on 23 January 2006, but which did not resolve the issues and the matter came back before the Tribunal on 3 February 2006. At that stage Mr Ambrus was directed to file a Statement of Issues, Facts and Contentions by 3 March 2006 and the matter was otherwise adjourned for further directions on 24 March.

4 In accordance with the orders Mr Ambrus did file a document on 3 March 2006 which represents his Statement of Issues, Facts and Contentions. The document is lengthy, running to some 27 pages of relatively close type, and sets out a long history of complaints about matters associated with Mr Ambrus' employment by the respondent, and I'll come back to that in a moment.

5 On 15 March 2006, Mr Ambrus filed a further supplementary attachment to the original document which comprised another 5 pages. The matter was then brought on for directions on 24 March 2006. At that stage the respondent made an application to have the whole of the matter dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA) and it is that application which has come before me this morning for argument and determination.

6 Section 47 of the State Administrative Tribunal Act 2004 provides that if the Tribunal believes that a proceeding is frivolous, vexatious, misconceived or lacking in substance; is being used for an improper purpose; or is otherwise an abuse of process; then the Tribunal may order that the proceedings be dismissed or struck out and make any appropriate orders.

7 Although much of the submissions of the respondent were couched in terms of, in effect, the applicant failing to disclose a cause of action or other pleading points, the applicable provisions of s 47 that arise in this matter are those that deal with the proceedings being either misconceived or lacking in substance. It is on that basis that I will deal with the application.

8 As the respondent has observed, the principle to be applied in an application such as this is at least analogous to the principle explained by Barwick CJ in General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 which requires that, in order to strike out a proceeding, it should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the court is satisfied cannot succeed. So it is against a requirement to make that finding that I consider the issues that have been brought up this morning.

9 The respondent, in its written submissions, correctly identifies that this is a claim based on gender discrimination pursuant to s 8 of the Equal Opportunity Act 1984, and that to make out a claim of unlawful discrimination on the ground of his sex, as the applicant seeks to do, he must first establish that he was treated less favourably in circumstances that are the same or not materially different from a female employee; second, that the reason for the less favourable treatment was his gender; and there must be established a causal relationship between the gender and the alleged less favourable treatment.

10 In order to determine whether there is a case which has any capacity to succeed, it is necessary to look at the contents of the letter to the Tribunal, received on 3 March 2006, from Mr Ambrus, which sets out in great detail what he maintains as his claim.

11 I am going to refer to some passages of that letter. I am not going to go through every single allegation in detail but I have identified, I think, a number of examples, to which I want to refer, of allegations made by Mr Ambrus which generally give a representative idea of the nature of his case and enable me to deal with the application for the purposes of today.

12 The fact that I may not mention every allegation in there should not be taken to indicate that I have not read the document in detail and considered all of the allegations.

13 The document commences with some background which Mr Ambrus provides about himself and his approach to his work with the respondent which was in an aged-care facility run by the respondent.

14 I might say that, whilst I am not for the purposes of these proceedings a finder of fact, I accept, for the purposes of these proceedings, that Mr Ambrus is a well-motivated and conscientious man who in his work sought to do the best job possible for the residents of the aged-care facility for whom he was providing services. As I say, the first few pages of his statement assert that proposition.

15 There are then a series of allegations. At page 3 Mr Ambrus makes an allegation about the general approach which he says the organisation running the aged-care facility took, namely of not wanting to spend money and suggestions of cutting back on residents' care to save costs.

16 Now, I obviously make no finding as to the merits of that proposition. But, as with all allegations of fact for the purposes of the present application, which is just whether or not the matter has any substance, it is appropriate that I assume that all the factual assertions made are correct. That initial allegation provides some context for the allegations that follow in Mr Ambrus' letter.

17 He makes allegations at page 4 of what he terms "corruption" in relation to the way that the possessions of certain residents were dealt with. It says at the bottom of that page, and I quote:

"A chronological sequence of the issues called 'The root causes and the underlying root causes' causing the need to discredit me and the message I was standing for. Certain elements backed up by the organisation used sexual misconduct, harassment, sex discrimination to distract the attention from the real issues."

18 So the context of the document is to indicate a whole lot of issues which Mr Ambrus had with the organisation, and in that context to suggest that sexual harassment or discrimination were used as the tool to distract attention. Mr Ambrus then makes some allegations about particular incidents.

19 He speaks at page 5 of what he perceived to be inadequacy of care to a particular resident, and an exposure by the organisation to damages claims, in view of the facilities that were being provided and the treatment given to a particular patient. Allegations of the same sort, being essentially complaints about inadequate care of particular residents, follow throughout the following few pages.

20 At page 7, having outlined those sorts of allegations, Mr Ambrus says that, having made reports about those particular concerns, there was a meeting where he was questioned for making those reports and, in effect, "dobbing in" fellow workers. He complains that the focus was on his intervention in the matter, rather than the neglect that he says was occurring. At the foot of page 7, he says and I quote:

"From then on I became a hunted rabbit. Mrs Skinner made my life miserable on a daily basis: humiliating, discrediting, criticising, bullying me whenever she seen me."

21 At page 8, he repeats the allegation that there was a campaign to discredit him because of the complaints he was making about the treatment of residents.

22 At page 9, he makes an allegation which he has repeated this morning in oral submissions about an incident which formed one of the matters originally referred to the Commissioner for Equal Opportunity, which amounts in effect to sexual harassment. Mr Ambrus alleges that another staff member humiliated him in front of others by, in effect, running her hands over his body and touching his private parts. That is a matter that was, as I say, referred to the Commissioner for Equal Opportunity but, I think, was found to be out of time for any action to be taken.

23 The document then goes on to make reference to other employees. In particular he refers to Ms Andrews, who was herself discredited and replaced. Mr Ambrus considered that the woman who replaced Ms Andrews was not acting in the interests of the residents, and she sacked three employees whom Mr Ambrus described as reliable. It is fairly clear that the relationship between Mr Ambrus and those with whom he worked was in a process of going from bad to worse during the period that he refers to.

24 There was then an incident where Mr Ambrus made a comment to another employee to the effect of saying, "Did you sleep naked last night?" Mr Ambrus' account is that that was said in the context of a discussion about having difficulty sleeping on a hot night and was not meant to be offensive. But it is apparent that offence was taken.

25 That led to an investigation in relation to that complaint and ultimately Mr Ambrus being referred for counselling which, at the bar table today and I think in this document, he asserts was not carried out in a professional, appropriate way. That is another example, that I will deal with further in a moment, of the deteriorating relationship and the problems Mr Ambrus was having with his employment.

26 Page 19 of the document begins with a heading "Issues leading to the termination of my job". There is reference to an incident with a vacuum cleaner with respect to which Mr Ambrus asserts he was subject to an act that amounts to sexual harassment. That is the subject of another matter which has been programmed this morning and will go to hearing in June of this year. It is a stand-alone allegation of sexual harassment in respect of which Mr Ambrus is being represented by the counsel instructed by the Equal Opportunity Commission. But that incident is said to have made working difficult as well.

27 At page 21, Mr Ambrus raises an incident in August 2004 where he was asked by Ms Douglas, who I think was the manager of the centre at the time, for him to follow her into an activity room where she advised him that, through no fault of his own, residents had indicated a preference for female carers to shower them. He says that Ms Douglas told him that she could not employ him any longer and he should go and find another job, but if he couldn't find one she was going to change his roster. He was then provided with a sheet apparently showing the proposed changed roster.

28 He did not change his employment and I have just been advised this morning that ultimately there was no change in his rostered hours. But Mr Ambrus takes this as being the start of a process of undermining his position and endeavouring to force him to leave his employment. It is quite clear from the account given in the document, that there had in fact been a series of tensions within the workplace for some considerable time before that. That is another matter I will come back to in a moment.

29 Mr Ambrus recounts in his document a number of other incidents. On one of those Mr Ambrus places particular significance. That was an incident where he removed a plastic sheet covering a resident's bed and replaced it with a sheepskin for the comfort of the resident. He was rebuked in relation to that conduct. Eventually he received several written warnings about his conduct in the workplace. None of those seems to be related to his sex but rather the warnings concern matters relating to his work practices.

30 Now, from that rather sketchy summary of the document, it can be seen that it contains a large number of allegations, none of which clearly draw a connection between Mr Ambrus' gender and the treatment that he was receiving. I raised with Mr Ambrus this morning, during oral submissions, the proposition that he needed to establish a causal connection between the allegations he was making of unfavourable treatment, and his gender. To establish that connection he referred to a number of specific matters, some of which were included in the letter of 3 March and some of which were not. I'll deal with each of those separately.

31 The first was that he said that the first time he went into the kitchen he received comments from the cook, presumably a female, who told him she didn't like men and she did not want him in the kitchen. That comment does not seem to be related to any specific allegation of unfavourable treatment. And indeed there is no mention of conduct by the cook at all in the particulars of the unfavourable treatment of which he complains, and it seems to me it does not take the matter very far.

32 The second matter that Mr Ambrus raised was that he drew a comparison between the way a male resident, who was apparently naked in his room, was treated over that incident compared to the way his employer, that is the respondent, reacted to the sexual harassment allegations which Mr Ambrus made himself. In substance, Mr Ambrus is raising issues about the treatment of the resident concerned on the one hand and the way that the employer dealt with an allegation in relation to matters concerning him as member of staff.

33 Given the nature of the residents, (some of whom, as Mr Ambrus has said, suffered from dementia - and I am not suggesting this gentleman concerned did) clearly there were issues about the way that residents are treated which will require in many cases a different sort of treatment from the way that staff members are treated. I do not express any views about the appropriateness of the respondent's treatment in either case but I do not think that a comparison between the two incidents gives rise to an inference of unfavourable treatment by reason of gender in respect to Mr Ambrus.

34 The third general area that Mr Ambrus raised was again a comparison. He compared the treatment he received from his employer and a counsellor in relation to the harassment allegation made against him by the other employee concerning the "sleeping naked" comment on the one hand, and on the other hand, the respondent's failure to do anything about a female patient who was constantly pursuing Mr Ambrus in an inappropriate way.

35 Again I think these two matters are separate. Whatever one may think of the particular way that Mr Ambrus was treated in the follow-up to the complaint against him, there is no doubt that follow-up and, if necessary, counselling is an appropriate response by the respondent to an allegation made by another employee. I do not believe that one can draw inferences from the comparison of the two incidents which would be capable of supporting the conclusion of Mr Ambrus having been treated unfavourably because of his gender.

36 Apart from those matters, Mr Ambrus raised a number of incidents, most of which are contained in his written submission, where he asserts that other employees of the respondent sought to create situations of conflict between him and residents and sought on occasions to humiliate him. He gave an example of an allegation, completely unfounded, of him having body odour.

37 Two things can be said about those allegations. The first is that they are an illustration that for some reason or other the relationship between Mr Ambrus and other employees was poor and that he was treated badly by other employees. But none of them, I think, can be said to be referable to Mr Ambrus' gender on the version of events as given in detail in Mr Ambrus' letter.

38 The second thing is that those allegations put in context the matter, I said I would come back to, namely the issue of Mr Ambrus not being permitted to shower some female residents. The history of other events indicates what might have been a motivation for the conduct in relation to the showering issue. Turning to that issue I indicated earlier what Mr Ambrus says about it in his written submission.

39 It may be that, if he was treated less favourably than some other employee by reason of being a man, namely that he was not permitted to shower the patients and that led to changes in his roster, that treatment possibly comes within one of the exceptions outlined in s 27 of the Act. But I am not assuming that for the purposes of these proceedings.

40 But it seems to me that, putting that allegation at its highest in the context of the ongoing relationship, what was said in relation to his ability to shower patients really was simply a step in a series of actions taken to cause Mr Ambrus to be as uncomfortable or unhappy as possible in the hope that he would move on in his employment. I think that it cannot be said that there can be drawn an inference from that history of treatment that it was motivated by his being a male and not a female.

41 I think the breadth of the allegations which Mr Ambrus makes demonstrates that his real concerns are about the way that the respondent conducted its business in its treatment of its residents and in the way that other staff reacted to him in the light of his concerns about that matter and his views about the appropriate treatment of residents.

42 It seems to me that it is simply not possible to extract from either the lengthy written submission that Mr Ambrus makes, nor his oral submissions this morning, a reasonable basis for drawing an inference (because there is nothing express) that the treatment which he received was as a result of him being a man.

43 I have no doubt that Mr Ambrus' perception of the cause of his treatment is coloured by the fact that he was, as it happens, at least for the most part of his time with the respondent, the only man employed as a carer. So it is understandable that he might think that, because he was being treated in the way he was, it was because he was a man - whereas I think the more reasonable inference to be drawn is that it was because of the way he went about his work that he received the treatment that he did.

44 The decision to dismiss an application as lacking in substance is one that should only be taken after very careful consideration of the case and where it is clear that there is no realistic prospect of success of an application. I am conscious of Mr Ambrus' well-motivated desire to right what he perceives as wrongs. And one would be tempted to simply let him have his day in court, as it were, or day in the Tribunal, to air those grievances at least so that they can be fully ventilated and any witnesses that Mr Ambrus wants to be called can be heard.

45 But there are two sides to these proceedings and one has to work fairness to both sides. There is no doubt that to permit these proceedings to continue on the broad-ranging allegations that are made would create a very substantial prejudice to the respondent. And in view of the conclusion that I've reached as to the prospect of success of the proceedings the temptation to let Mr Ambrus have his day in the Tribunal simply has to be resisted.

46 So, for those reasons, I have come to the view that whatever may be the merits of the allegations and concerns which Mr Ambrus expresses in these proceedings, they are not allegations which can provide a foundation for relief under the Equal Opportunity Act 1984. And in that sense the proceedings are misconceived or lacking in substance and I think they should therefore be dismissed. So that is the order that I propose to make.

I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, DEPUTY PRESIDENT