On 1 August 2017 the President of the Anti-Discrimination Board received a complaint made by Sarah Goldsteen on 24 July 2017 alleging discrimination by TCI Bondi Junction Pty Ltd t/as The Cosmetic Institute (TCI) in the area of employment on the grounds of carer's responsibility and sex (pregnancy) (the Complaint). The President referred the Complaint to the Tribunal on 12 October 2017.
In the Complaint Ms Goldsteen stated that she was employed as Director of Nursing at The Cosmetic Institute (TCI) Bondi Junction, to manage the operating theatres and nursing staff. In 2016 the business was downsized and surgery was outsourced to private hospitals. Staff were made redundant in June 2016. She went on unpaid maternity leave in November 2016. Ms Goldsteen stated that before she went on maternity leave she was denied a redundancy and directed to do tasks not appropriate to her qualifications; the new role promised to her was filled by someone else as soon as she went on maternity leave; on her request to return to work she had been told the position of Director of Nursing was redundant however she had been refused payment of a redundancy or an alternative position in line with her qualifications; and she had been denied flexible working arrangements (working from home) while other staff worked from home full time. The Complaint covers the period September 2016 to 1 August 2017.
On 29 June 2018, on the application of Ms Goldsteen, Babak Moini, a director of TCI Bondi Junction Pty Ltd, was joined as a party to the proceedings: Goldsteen v TCI Bondi Junction Pty Ltd [2018] NSWCATAD 135.
In the reasons for decision, Principal Member Britton referred to the provisions of the Anti-Discrimination Act 1977 (the AD Act) under which it is unlawful for an employer to discriminate against an employee on the ground of a person's sex (s 25) and on the ground of the person's responsibilities as a carer (s 49V), and the extension of the definition of discrimination on the grounds of a person's sex to include the fact that a woman is pregnant (s 24(1A)). Principal Member Britton outlined the matters that Ms Goldsteen would need to establish, being that some or all of the conduct the subject of the Complaint fell within a substantive provision of the AD Act:
15. 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).
Principal Member Britton then noted that if some or all of the conduct the subject of the Compliant was found to fall within a substantive provision of the AD Act, Ms Goldsteen would need to establish the elements required to establish direct discrimination (ss 24(1)(a), s 49T(1)(a)) or indirect discrimination (ss 24(1)(b), 49T(1)(b)).
Principal Member Britton made the following observations about the Points of Claim filed on behalf of Ms Goldsteen in April 2017:
18. 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.
19. 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.
20. 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.
21. 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.
Principal Member Britton noted that while the parties disagreed about the extent of Mr Moini's involvement in the conduct the subject of the Complaint, neither suggested he was Ms Goldsteen's employer and it was agreed that at all relevant times TCI was Ms Goldsteen's employer. Principal Member Britton discussed the basis on which Ms Goldsteen had contended that Mr Moini was a proper party to the proceedings:
26. 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.
…
28. 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.
After noting the grounds on which Mr Moini rejected the contention that he permitted TCI to discriminate against Ms Goldsteen either on the ground of sex or carer's responsibility, Principal Member Britton continued:
31. 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.
32. 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.
33. 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.
Principal Member Britton concluded:
37. 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.
On 11 July 2018 the Tribunal was advised that TCI had gone into liquidation on 10 July 2018. On 31 July 2018 the action against TCI as First Respondent was stayed. Further directions were made on 31 July 2018, including for Ms Goldsteen to serve a draft Amended Complaint with sufficient particulars, and for Mr Moini to advise any objections, and for the matter to be listed if he did not consent. The parties were unable to reach agreement and the application for leave to amend the Complaint was listed for hearing.
[2]
The Amended Complaint
Ms Goldsteen seeks the following orders:
The Complaint made to the Anti-Discrimination Board on 24 July 2017 is amended to include conduct which occurred from 24 July 2017 to 8 February 2018, including the failure to consult with Ms Goldsteen about the sale of the business in August 2017, the refusal to pay Ms Goldsteen her redundancy payments, the refusals on and from 24 November 2017 to provide Ms Goldsteen with information about the sale of the business and her job status (stated to be because proceedings were on foot) and the dismissal of Ms Goldsteen on 6 February 2018.
The Grounds for the application are:
1. The proposed amendment relates to conduct which post-dates the making of the complaint to the Board and in some cases the commencement of the proceedings, and as such could not have formed part of the original complaint;
2. The conduct forms part of a course of conduct related to and arising out of the conduct which was the subject of the complaint, constituting sex discrimination and/or victimisation, and as such it is appropriate that it is dealt with in these proceedings;
3. The proposed amendment will avoid the parties having to incur the costs of a second complaint in respect of the additional conduct being made to and dealt with by the Board and potentially the Tribunal.
The proposed Amended Compliant is annexed to an email of 24 August 2018 between the parties' representatives (provided in a statutory declaration affirmed by Mr Moini's legal representative), and provided to the Tribunal by Ms Goldsteen's representatives with their request that the matter be listed. That document restates the original Complaint, and continues under the heading "Since this complaint was lodged:". Paragraphs 1 and 2 list events after 1 August 2017, including that a meeting was held on 14 August 2017 between TCI staff and management to discuss the sale of TCI to Macquarie Health, from which Ms Goldsteen was excluded; and that on or around 22 September 2017 the final remaining nursing staff member was dismissed by reason of redundancy and paid notice and redundancy entitlements. Paragraph 3 states that TCI no longer required Ms Goldsteen's job as Director of Nursing to be performed or have a position of comparable status and remuneration to offer her, and she was not offered a position by Macquarie Health, dismissed or paid notice and redundancy entitlements.
Paragraphs 4 to 10 and 12 identify communications between Ms Goldsteen, her representatives, TCI, and Mr Moini between 24 November 2017 to 6 February 2018, and on 8 February 2018. In paragraph 11 Ms Goldsteen states that as at 7 February 2018 she was ready willing and able to return to her role at TCI, with or without flexible working arrangements. In paragraph 13 Ms Goldsteen states that on 8 February 2018 TCI notified her of her dismissal effective 6 February 2018; and in paragraph 14 that she was not paid notice, redundancy pay, or accrued but untaken annual leave. In paragraph 15 Ms Goldsteen contends that the above conduct in addition to the earlier conduct complained of, constituted sex discrimination and/or victimisation.
[3]
Submissions
In support of the application for leave, Ms Goldsteen submits that the conduct particularised:
1. Is connected to the conduct the subject of the original complaint as investigated by the President;
2. Occurred after the Complaint was made and in large part after the investigation was concluded;
3. Occurred within 12 months of the date of the application for leave to amend;
4. Is capable of forming a contravention of ss 25 and 49T of the AD Act, and in Mr Moini's case a contravention of s 52 of the AD Act; and
5. Is conduct that could be the subject of further separate complaint to the President.
Ms Goldsteen submits that there is no suggestion that the complaint otherwise falls within one of the grounds of declinature set out in s 89B or s 92; the objection appears to relate primarily to the original complaint rather than the amendments, and raises issues of pleading and contested facts; and no other discretionary reason to refuse to allow the amendment arises.
In opposing the application, Mr Moini submits that the communications referred to in paragraphs 4 to 13 of the Amended Complaint were all made in the context of the lead up to the conciliation at the Board, and on a without prejudice basis. The documents referred to in paragraphs 7, 9 and 12 specifically stated that they were "without prejudice". Accordingly, Ms Goldsteen could not succeed in establishing her complaint as the evidence would be inadmissible, and Mr Moini is not waiving his rights. Mr Moini accepts that to refuse the amendment could lead to a fragmentation of proceedings, however that would only occur if the proposition that the material shows that the claim has no prospects is not successful.
Ms Goldsteen in reply does not concede that the without prejudice claim attaches to all the correspondence, and submits it is a separate issue as to whether the conduct can be established.
[4]
Consideration
The Tribunal's power to permit the amendment of a complaint is conferred by s 103 of the AD Act:
103 Tribunal may amend complaint
(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.
(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.
(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.
The scope of s 103 was considered by the Appeal Panel of the former Administrative Decisions Tribunal in Zhang v Blinds Pty Ltd t/as Blinds by Peter Meyer [2008] NSWADTAP 24. In rejecting the proposition that s 103 only authorises the Tribunal to add complaints where those complaints arise out of complaints that have been investigated by the President, the Appeal Panel adopted the reasoning in Chand v Rail Corporation of New South Wales [2007] NSWADTAP 54, which was in the following terms:
37. The ordinary grammatical meaning of section 103(2) is that the Tribunal may amend the complaint either by adding complaints or by adding anything else, such as further allegations. The only qualification to the amendment power is that the additional complaint or other matter "was not included in the complaint as investigated by the President." Contrary to the Tribunal's decision, there is no implied qualification that the additional complaint or other matter occurred during the period of the complaint as investigated by the President.
38. There is no extrinsic material which sheds light on the rationale for section 103, but the intention of the legislature was to avoid the delay and potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances, is already before the Tribunal. The most likely source of additional complaints will be complaints that arise after the matter has been referred, but section 103 does not confine amendments to complaints of that kind. Relevant considerations when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred. Contrary to the Tribunal's conclusion, the fact that the complaint did not occur within the period as investigated by the President, does not prevent it being added.
In Thompson v Rail Corporation NSW [2008] NSWADT 329 Deputy President Britton said, after considering Zhang and Chand:
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.
It does not appear to be in dispute that the additional conduct complained of is connected to the conduct the subject of the original complaint and occurred after that complaint was made, including the dismissal of Ms Goldsteen. The proposed Amended Claim is responsive to the points made by Principal Member Britton at paragraphs 19 and 20 of the reasons on the joinder application. There is nothing to suggest that there is anything in the amended complaint that would provide one of the grounds specified in ss 89B or 92(1)(a) on which the President could decline a complaint. In favour of the amendment is, as accepted by Mr Moini, that there is at least the potential for possible duplication of proceedings and costs if Ms Goldsteen is required to lodge a new complaint.
However, there is still a reliance on alleged contraventions of the Fair Work Act (see paragraph 21 of the reasons on joinder). The proposed Amended Complaint does identify some conduct which may if established fall within a substantive provision of the AD Act, for example the claim that Ms Goldsteen was dismissed and was not paid redundancy or other payments or provided with flexible working arrangements. However, paragraphs 4, 5, 6, 7, 8, 9 and 10 of the proposed Amended Complaint appear to be part of the negotiations as to Ms Goldsteen's request for flexible working arrangements, rather than conduct. Further, it is difficult to understand how the claim that there was a failure to consult with Ms Goldsteen about the sale of the business could constitute conduct falling within a substantive provision of the AD Act.
The proposed Amended Complaint has added in paragraph 15 a reference to claim of victimisation. No claim of victimisation was referred by the President of the Board to the Tribunal. To substantiate that claim Ms Goldsteen would need to establish that the alleged conduct falls within s 50 of the AD Act, that is, that she has been subjected to detriment in any circumstances on any of the grounds in s 50(1), such as that she has brought proceedings against the respondents under the AD Act.
In her reasons in the joinder application Principal Member Britton reached the conclusion that there was some material which, if accepted, would support a finding that Mr Moini permitted the alleged conduct asserted before 1 August 2017. The Tribunal has only very limited information provided as to the extent of Mr Moini's role in the alleged conduct after 1 August 2017. Nothing has been put to the Tribunal that might establish that Ms Goldsteen's additional claims against the Second respondent are untenable.
The claim needs to be particularised, both the original Complaint and the proposed Amended Complaint if the amendment is allowed. While noting the matters that would need to be established, the Tribunal is not of the view that it is at this point so clear that the matters referred to in [23], [24] and [25] pose insurmountable barriers to the application such that the proposed amendment could be considered to be futile in the sense discussed in Thompson.
Mr Moini's primary contention is that the evidence on which Ms Goldsteen would need to rely is inadmissible. The President's referral to the Tribunal includes some documents relating to the conciliation facilitated by the Board on 21 September 2017, which was before the communications identified by Ms Goldsteen in paragraphs 4 to 10 and 12. The extent to which any of the communications between the parties, whether or not formally described as being "without prejudice", in the period after the Board conciliation and while the matter has been before the Tribunal for case conferences, are admitted in evidence is a matter for the Tribunal hearing the application, and not a basis on which the Tribunal could safely conclude at this interlocutory stage that the matters the subject of the amended complaint could not succeed.
The Tribunal concludes that in the interests of having all matters in dispute properly addressed in the proceedings, and that to avoid any possibility that a separate complaint may need to be lodged with and investigated by the President, the amendment should be granted. The directions previously been made for preparation of this matter for hearing are varied, so as to facilitate future progress of the matter.
[5]
Orders
The Tribunal orders:
1. The application to amend the Complaint referred to the Tribunal by the President of the Anti-Discrimination Board is granted.
2. The Applicant is to file and serve the Amended Complaint and Amended Points of Claim, the evidence including witness statements on which she intends to rely, and submissions, on or before 19 January 2019.
3. The Second Respondent is to file and serve Points of Defence and evidence and submissions in response on or before 15 February 2019.
4. The Applicant is to file and serve any material in reply, on or before 1 March 2019.
5. The parties are to notify the Tribunal and each other by 15 February 2019 advice as to which witness(s) are required for cross examination at the hearing, an estimate of the length of the hearing, and their available dates for March 2019. The matter will be allocated a hearing date based on that information, and the parties advised.
[6]
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: 04 December 2018