Goldsteen v TCI Bondi Junction Pty Ltd

REASONS FOR DECISION

1. In July 2017, Registered Nurse Sarah Goldsteen, lodged a complaint with the President of the Anti-Discrimination Board (respectively, "the President" and "the Board"), alleging discrimination in the area of employment on the grounds of carer's responsibility and sex (pregnancy) (the Complaint). The President referred the Complaint to the Civil and Administrative Tribunal of New South Wales (NCAT).
2. These reasons address whether Ms Goldsteen's application to join TCI director, Babiki Moini, as a party to these proceedings, should be granted. The Tribunal has a broad discretion to join a person as a party to proceedings if it "considers that the person should be joined as a party": s 44(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Mr Moini opposes the joinder application. The summary of the Complaint prepared by the President, identified a single respondent to the Complaint, "TCI Bondi Junction Pty Ltd t/as The Cosmetic Institute" (TCI). TCI took no position on the joinder application.
3. At the conclusion of the hearing to determine the joinder application, the parties were given leave to provide further submissions about the operation of s 52 of the Anti-Discrimination Act 1977 (NSW) (the Act). The submissions provided by Ms Goldsteen canvassed a number of additional issues. I did not consider those submissions, noting the cautionary words of the authorities about the danger of considering submissions filed without, or outside, leave: see for example, NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 (at p 192); and Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 (at pp 513, 514).
4. For the reasons that follow, I have decided to join Mr Moini as a party to these proceedings.

Subject matter of the Complaint

1. TCI's website describes The Cosmetic Institute as "Australia's largest cosmetic surgery clinic. We're passionate about providing everyday Australians with superior cosmetic surgery at affordable prices".
2. In July 2015, Ms Goldsteen commenced employment with TCI in the role of Director of Nursing. In mid-2016, the business was apparently restructured and a number of staff were made redundant. Ms Goldsteen was not offered a redundancy. Instead, she claims she was offered a new position, which never materialised. She alleges that a week after commencing unpaid maternity leave in November 2016, the promised role was given to a new employee.
3. Ms Goldsteen alleges that when she sought to return to work in late 2017, TCI: 1. Confirmed that her position as Director of Nursing had been made redundant but refused to offer her a redundancy payment or alternative employment. 2. Failed to provide her with details about the duties and responsibilities of the role she would be undertaking on her return from maternity leave. 3. Refused to offer her "flexible working arrangements".
4. The President identified the period of the Complaint as September 2016 to 1 August 2017. Throughout that period Mr Moini was a Director of TCI, a position he holds to this day.

Unlawful discrimination: statutory framework

1. The Act makes it unlawful for an employer to discriminate against an employee on the ground of a person's sex and on the ground of a person's responsibilities as a carer: ss 25, 49V. The Act extends the definition of "discrimination on the ground of a person's sex" to include the fact that a woman is pregnant: s 24(1A).
2. Section 25(2) of the Act makes it unlawful for an employer to discriminate against an employee on the ground of sex: 25 DISCRIMINATION AGAINST APPLICANTS AND EMPLOYEES … (2) It is unlawful for an employer to discriminate against an employee on the ground of sex: (a) in the terms or conditions of employment which the employer affords the employee, (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 subjecting the employee to any other detriment.
3. The Act does not define the words employee and employer.
4. Section 24 of the Act describes what constitutes discrimination on the ground of sex: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if the perpetrator: (a) on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, 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 of the opposite sex or who does not have such a relative or associate of that sex, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
5. In addition, the Act provides that if an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then for the purposes of this Act, the act is taken to be done for that reason: s 4A.
6. The provisions in the Act which make discrimination on the ground of carer's responsibility unlawful, are in similar terms. See s 49T of the Act.
7. To substantiate the allegations of discrimination on the ground of sex and/or carer's responsibility, Ms Goldsteen must establish that some or all of the conduct the subject of the Complaint fell within a substantive provision of the Act, that is, that she was discriminated in the terms or conditions of her employment; denied access, or limited access, to opportunities for promotion, transfer or training, or any other benefits associated with employment, or was subjected to a detriment: s 25(2) (discrimination on the ground of sex), s 49V(2) (discrimination on the ground of carer's responsibility).
8. If some or all of the conduct the subject of the Complaint is found to fall within a substantive provision of the Act, Ms Goldsteen must then establish the following elements, if the complaint is cast as "direct discrimination" (s 24(1)(a) (discrimination on the ground of sex), s 49T(1)(a) (discrimination on the ground of carer's responsibility): 1. That TCI, treated her less favourably than it treated, or would have treated, a person who was not pregnant / a person without carer's responsibility, in the same circumstances or circumstances that were not materially different (less favourable treatment). 2. If so, that one of the reasons for the less favourable treatment was Ms Goldsteen's sex, the fact she was pregnant/ because had responsibilities as a carer (causation).
9. To succeed in the allegations of "indirect discrimination" (s 24(1)(b) (discrimination on the ground of sex), s 49T(1)(b) (discrimination on the ground of carer's responsibility), Ms Goldsteen must establish: 1. That TCI imposed a requirement or condition; and 2. She was unable to comply with that requirement or condition; and 3. A substantially higher proportion of male employees, or employees who were not pregnant / who did not have responsibilities as a carer, comply or are able to comply with that requirement or condition; and 4. The requirement or condition was not reasonable having regard to the circumstances of the case.

Points of Claim

1. Before considering whether the power to join Mr Moini as a party to these proceedings should be exercised, it is necessary to make some preliminary observations about the Points of Claim filed on behalf of Ms Goldsteen in April 2017.
2. First, some of the conduct particularised in the Points of Claim occurred outside the period of the complaint identified by the President, that is, September 2016 to 1 August 2017. Accordingly, unless the power conferred by s 103 of the Act to amend the Complaint is exercised, the Tribunal will lack the power to determine whether any alleged conduct that occurred outside the period September 2016 to 1 August 2017, constitutes a contravention of the Act.
3. Second, for the same reason, the Tribunal also lacks power to determine the claim of victimisation made against Mr Moini and TCI. (See Points of Claim [46] - [49]). That claim relates to alleged conduct that falls outside the temporal scope of the Complaint and was not mentioned by Ms Goldsteen in the initiating complaint made to the President.
4. Third, the Points of Claim are defective in that they largely focus on alleged contraventions of the Fair Work Act 2009 (Cth) and do not address the elements necessary to support a complaint of unlawful discrimination under the Act. A contravention of the Fair Work Act and a contravention of the Anti-Discrimination Act are not one and the same thing.

Should the power to join Mr Moini to the proceedings be exercised?

1. In considering whether the power to join Mr Moini should be exercised, I will proceed on the basis that the parameters of the Complaint are as identified by the President, that is, alleged discrimination on the grounds of sex and carer's responsibility during the period September 2016 to 1 August 2017. In exercising that power, I will have regard to the "guiding principle" of the NCAT Act, namely the facilitation of the just, quick and cheap resolution of the real issues in the proceedings: s 36(1). In addition, notwithstanding the concerns I have expressed above about the formulation of the Points of Claim, I will assume but not decide that there is an arguable case that TCI discriminated against Ms Goldsteen on the grounds of sex and carer's responsibility. I will refer to the allegations contained in the Complaint made by Ms Goldsteen against TCI of discrimination on the grounds of sex and carer's responsibility as the "primary complaint".
2. The power of joinder conferred by s 44(1) is to be read in conformity with the power to remove a person who is a party to proceedings, so that a party who is a "proper or necessary party" ought to be joined in the proceedings: Commissioner of Police New South Wales Police Force v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327 at [38].
3. It could not be said that it is "necessary" to join Mr Moini as a party to proceedings, in the sense that unless he is joined there will not be a respondent to the Complaint. Sections 25 and 49T make it unlawful for an employer to discriminate against an employee on the grounds of sex and carer's responsibility, respectively. While the parties disagree about the extent of Mr Moini's involvement in the conduct the subject of the complaint, neither suggests that he was Ms Goldsteen's employer. They agree that at all relevant times TCI was Ms Goldsteen's employer. It follows that TCI is a necessary respondent for the purpose of the Complaint. Mr Moini is not.
4. As the Court of Appeal pointed out in Commissioner of Police New South Wales Police Force v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327, whether a person is a "proper" party to proceedings raises different considerations to those relevant to the question of whether a person is a "necessary" party to proceedings: at [41]. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a "mere intermeddler" would neither be a necessary nor a proper party: at [40].
5. Section 52 of the Act makes it unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of the Act. It is argued for Ms Goldsteen that Mr Moini was one of TCI's "ultimate decision makers" and at all relevant times he was "aware of the discrimination" and directly communicated to her most of the decisions the subject of the primary complaint. She asserts that he permitted the conduct that was the subject of the primary complaint.
6. Mr Moini opposes the application for joinder. He urges the Tribunal to take a cautious approach to the application, pointing out that one of NCAT's predecessors, the Administrative Decisions Tribunal, has consistently emphasised that before exercising the power to join a person to proceedings there must be a clear link between the person sought to be joined and the subject complaint, noting that once joined, the person is exposed to the stress and expense of legal proceedings, and potential liability: Hanratty v Kempsey Shire Council [2002] NSWADT 232 at [8], James v Wild Food Highlands Pty Ltd [2012] NSWADT 111 at [35]. In addition, he points out that there must be a prima facie case established on the evidence against the person proposed to be joined: Hanratty v Kempsey Shire Council [2002] NSWADT 232 at [8], James v Wild Food Highlands Pty Ltd at [35].
7. It is necessary therefore to decide whether there is some material, which, if accepted, would support a finding that Mr Moini "permitted" the conduct the subject of the primary complaint. In addressing that issue, I will adopt the meaning of the word "permit" applied in Dixon v RNJ Sicame Pty Ltd [2002] NSW ADT 154 at [54] and James v Wild Food Highlands Pty Ltd at [39]. That is, a person will "permit" the conduct the subject of the primary complaint if, he or she: 1. knows or has reason to anticipate or to suspect that the particular act is to be or is likely to be done, 2. has the power to prevent it, 3. makes default in some duty of control or interference arising under the circumstances of the case, and 4. thereby fails to prevent it.
8. Mr Moini rejects the contention that he permitted TCI to discriminate against Ms Goldsteen either on the ground of sex or carer's responsibility.
9. First, he submits that the conduct, which he asserts is the substance of the Complaint, namely the refusal to permit Ms Goldsteen to work from home three days a week, was consistent with TCI's policy. Second, at the time that decision was communicated to Ms Goldsteen, he was one of two directors of TCI; Mr Alistair Champion remained a director of TCI until 2 June 2017. Third, in any event, the decision to refuse Ms Goldsteen's request to work from home was "entirely reasonable" and therefore not in contravention of the Act. Fourth, the initial refusal of Ms Goldsteen's request to work from home was made by TCI's Clinical Manager, Ms Lawson, and therefore it cannot be said that he was the relevant decision-maker within TCI. Finally, it would be unfair if he were to be joined given Ms Goldsteen's decision not to apply to join Mr Champion.
10. Whether, as Ms Goldsteen asserts, Mr Moini was the ultimate decision-maker in relation to the decisions the subject of the primary complaint, is not to the point. There is material which, if accepted, supports a finding that Mr Moini was aware of some of the decisions the subject of the primary complaint. (See, for example, the email from TCI's Clinical Manager to Ms Goldsteen sent on 29 June 2017). Whether those decisions were consistent with TCI's policy is not relevant to the question of whether Mr Moini permitted the offending conduct to occur. Nor is it determinative that the task of negotiating with Ms Goldsteen and dealing with her return to work was apparently delegated to a member of staff. The fact that Mr Moini was one of two directors of TCI is capable of supporting the inference being drawn that Mr Moini had the power to prevent the offending conduct and, in the circumstances of the case, was subject to a duty of control or interference in relation to key decisions relating to Ms Goldsteen's employment.
11. That Mr Moini was one of the two directors of TCI when some of the offending decisions were made does not, as he appears to argue, weigh against a conclusion that he permitted the offending conduct to occur. Section 52 does not require that the person said to have permitted the conduct the subject of the primary complaint, be the only person who permitted that conduct.
12. I am satisfied that there is some material which, if accepted, would support a finding that Mr Moini permitted the alleged conduct the subject of the primary complaint.

Should the discretion to join Mr Moini be exercised?

1. As a director of TCI since 2013 and its sole director since 2 June 2017, Mr Moini plainly has an interest in these proceedings. Together with the finding that it is arguable that he permitted the conduct the subject of the primary complaint to occur, leads me to conclude that he is a proper party to the proceedings.
2. Neither party addressed whether Mr Moini would suffer any prejudice if he were to be joined at this stage of the proceedings. The initiating complaint was made close to two years ago. Since its referral to NCAT in October 2017, the Complaint has been the subject of two case conferences, a mediation and a hearing on the joinder issue. While the delay in making the application to join Mr Moini is not insubstantial, it has not been suggested that he would suffer any substantial prejudice as a result of the delay.
3. The delay in making the application weighs against exercising the discretion to join Mr Moini. Nonetheless, I conclude that the interests of justice favour joining Mr Moini in these proceedings.

Case management

1. As discussed above, some of the conduct particularised in the Points of Claim falls outside the parameters of the Complaint. Therefore, the Points of Claim must be amended. In addition, consideration will need to be given to whether an application should be made for the Complaint to be amended. If an amendment application is made, the Tribunal will be required to consider whether the timetable set out below is suspended or varied. It should not be assumed that the Tribunal will agree to exercise the power to amend the Complaint.
2. I make the following directions: 1. By 23 July 2018 Ms Goldsteen must file and serve an amended Points of Claim and all material on which she seeks to rely. 2. By 20 August 2018 the Respondents must file and serve Points of Defence and all material on which they seek to rely. 3. By 3 September 2018, Ms Goldsteen must file and serve any material in reply. 4. The matter is listed for directions on 28 August 2018 at 14:00 to list the matter for hearing.

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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: 29 June 2018