Goldsteen v TCI Pty Ltd

Goldsteen v TCI Pty Ltd - [2019] NSWCATAD 178 - NSWCATAD 2019 case summary — Zoe

[13]

No jurisdiction - residents of different states

The Respondent submitted that the High Court's decision in a discrimination law matter of Burns v Corbett [2018] HCA 15 meant that the Tribunal had no jurisdiction to deal with this matter as it involved a dispute between Ms Goldsteen - now a resident of Queensland and Mr Moini - a resident in New South Wales. Such a dispute was beyond the jurisdiction of the NCAT as the Tribunal did not exercise the judicial power of the Commonwealth.
Ms Goldsteen submitted that Burns v Corbett [2018] HCA 15 is not an authority for this proposition. Burns v Corbett concerned a dispute that arose between two persons who at all times were residents of different states. In that sense, it was a dispute of an interstate character unable to be dealt with by the Tribunal.
This matter, by contrast, was wholly concerned with a dispute which arose in NSW, between residents of NSW and in respect of employment in NSW. When the complaint was referred to NCAT in October 2017, Ms Goldsteen was a resident of NSW.
Ms Goldsteen submitted that the Tribunal, once properly seized of jurisdiction, retains it and must resolve all aspects of the controversy in accordance with law: Australian Security and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1.
This Tribunal is satisfied as a matter of fact that when Ms Goldsteen made the complaint to the ADB subject of the proceedings in July 2017 - she was then a resident of NSW. Her employment with TCI had taken place in NSW and Mr Moini is a resident of NSW. The Tribunal notes the remarks made in passing of the Western Australian Chief Justice in the matter of GS-v-MS [2019] WASC 255. That matter dealt with the question of whether the Western Australian Guardianship Tribunal was precluded from dealing with a guardianship application because it involved residents of different states. The Western Australia Chief Justice commented that a body corporate does not have a residence. This Tribunal makes no finding about TCI's residence.
The complaint was referred from the President of the ADB to NCAT on or around 23 October 2017. The Tribunal did not hear evidence about Ms Goldsteen's current residence - although her submissions noted that she had moved to Queensland temporarily on 11 January 2018.
The Second Respondent did not submit that the Tribunal had lost jurisdiction at any defined time. The Tribunal is not satisfied that the Tribunal should decline to deal with the matter on the basis that it lacks jurisdiction at this time.

[14]

Application for dismissal section 102 ADA as "frivolous, vexatious, misconceived or lacking in substance".

The Second Respondent submitted that the proceeding should be dismissed as "frivolous, vexatious, misconceived or lacking in substance". The Tribunal has summarised the Second Respondent's submissions below.
The proceedings should be dismissed in circumstances where the Applicant had confirmed, through her legal representatives, to the Second Respondent and the Tribunal that she does not intend to rely upon any other evidence beyond the witness statement she signed on 21 January 2019 and its annexures to prove her claim.
Accordingly, the consideration of whether this proceeding is "frivolous, vexatious, misconceived or lacking in substance" should be determined based on the entirety of the evidence upon which the Applicant proposes to rely.
In summary, the Second Respondent contended that the evidence relied upon by the Applicant cannot support her pleaded claims for the following reasons: 1. the alleged contravening conduct is either contrary to, or not supported by, the evidence adduced by the Applicant; 2. the only potential exception to (a) is hearsay evidence which is critical to one aspect of the Applicant's claims but where she has refused to adduce direct evidence from Ms Lawson who made the statement to enable the truth of the allegations to be tested in any way before the Tribunal; 3. the other evidence relied upon by the Applicant as to the motivation for the alleged conduct consists of her bare assertions; 4. there is no evidence upon which the Tribunal could lawfully rely to hold that the Second Respondent "caused, instructed, induced, aided and/or permitted" the First Respondent to engage in the alleged contravening conduct; and 5. the claims against the First Respondent (which is still pleaded as being "a corporate entity, capable of being sued in its corporate name and style" at 1(a) of the Amended Points of Claim) are an abuse of process as it is in liquidation: see section 440D of the Corporations Act 2001.
The Second Respondent's submissions questioned the essential claims of the Applicant as follows: 1. Ms Goldsteen claimed she should have been made redundant when her core duties as Director of Nursing ceased or the 'business' was sold. However, the redundancy issue clearly arose with re-structuring in May 2016 - prior to Ms Goldsteen advising TCI she was pregnant in September 2016. Further Ms Goldsteen had the benefit of higher salary as Director of Nursing - beyond a time she says she should have been made redundant. 2. Ms Goldsteen claimed she should have been transferred to a new role of "Clinical Co-Ordinator". The Second Respondent stated there was no evidence that this position had ever been created. 3. Ms Goldsteen claimed she should have been allowed to work 3 days a week from home to enable her to look after her two children who were 9 months old when she proposed to return from parental leave. The duty statement for Director of Nursing clearly could not have accommodated this. The Respondent had in fact offered Ms Goldsteen part-time work in June 2017 which she had refused. The request for flexibility was made in June 2017 prior to any complaint to the ADB. The redundancy issue also arose with re-structuring in May 2016, prior to the complaint to the ADB in June 2017. Therefore, neither of these alleged "detriments" could be seen to be victimisation for making the complaint. 4. Ms Goldsteen was dismissed on 6 February 2018. It was not true that the Second Respondent had refused to discuss Ms Goldsteen's return to work because of her requests for flexible work. It was clear from the email exchanges that the Respondents had continued to discuss return to work with Ms Goldsteen in November 2017. Ms Goldsteen's claim to be ready willing and able to return to work until her alleged dismissal in February 2018 was contradicted by the fact that she had moved to Brisbane to start a new job in January 2018.

[18]

Legal Principles Section 102 of the ADA - dismissal of complaint

Section 102 of the ADA provides: The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a) (i) or (ii) or (b).
Section 92(1) (a) (i) and (ii) give the President of the ADB the power to decline a complaint during investigation of a complaint if the President is satisfied that the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or if the President is satisfied that the conduct alleged, or part of the conduct alleged, is proven, would not disclose the contravention of a provision of the Act or the regulations.
The Tribunal has previously held that the discretion to dismiss a complaint summarily, i.e. without full hearing, under s 102 (formerly s 111(1) of the Act) must be exercised with exceptional caution and only if the circumstances clearly warrant such action. (See Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin v Rail Corporation NSW [2012] NSWADT 142 at [20]; Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 at [84]; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73.)
As the Tribunal stated in Fricke -v- Corbett Research P/L [2004] NSWADT 128 The need for caution is even more apparent in cases where such an application is made prior to the adducing of the complainant's evidence at the substantive hearing. Ultimately, it is for each Tribunal to determine the application according to its own circumstances. It is for the Tribunal to decide whether the application should be heard and determined prior to the full hearing of the complainant's case.
Consistent with the approach taken by the authorities, in deciding whether to exercise the power to dismiss the complaints, or part of the complaints, summarily, the Tribunal takes the approach of taking the facts on which Ms Goldsteen relies at their highest and asking whether they reveal an arguable case to which the Respondents should answer: Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]-[26]; and Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38].

[22]

Lacking in substance and does not disclose a contravention

The fact that the Respondent has provided an explanation for refusing to provide flexible working arrangements does not necessarily mean that the complaint lacks substance. The Tribunal is presented with opposing views about whether it was possible for Ms Goldsteen to perform duties under flexible arrangements.
The Respondent submitted that the there was no evidence to support Ms Goldsteen's accusations of victimisation. Ms Goldsteen referred to her email to Ms Kate Lawson, clinic manager at TCI dated 13 June 2017 which requested return to work with flexible working arrangements. It also stated, "I do not think that TCI should discriminate against me as working from home does not seem to be an issue when it comes to other employees."
In response, Ms Lawson's email of Tuesday 11 July 2017 stated: "Hello Sarah, Thank you for your email. I've spoken with Babak (Mr Moini) and he has advised that he is unwilling to provide a redundancy package or allow a work from home arrangement. Regards Kate Lawson Clinic Manager
Ms Goldsteen points to Mr Moini's email to her on Friday, 24 November 2017 in response to Ms Goldsteen's request to return to work on Monday, 4 December 2017. Mr Moini's email states: Hi Sarah, given there remains an open unconcluded investigation with the ADB (since referred to NCAT) I am not able to advise in this matter.
Ms Goldsteen also referred to an email on 28 November 2017 from Mr Moini which stated, "we are unable to provide an employment start date until you confirm you no longer require to work from home."
At the hearing of this application, the Second Respondent's counsel contended that there were other interpretations of the correspondence which did not point to victimisation. Neither Ms Goldsteen nor Mr Moini gave evidence at the hearing of the Application for strike out. The Tribunal considers the interpretation of Ms Goldsteen's and Mr Moini's emails to remain a matter for the Tribunal to determine at any eventual full hearing.

[23]

Bare or mere assertion and Drawing inferences

The Second Respondent submitted that the Tribunal could not rely on the Applicant's bare or mere assertions about discrimination in the absence of proof of the reason for the Respondent's actions. The Tribunal has previously acknowledged the difficulty in an Applicant providing direct evidence of an alleged ground of discrimination.
As with many complaints of discrimination, a causal link between Ms Goldsteen's pregnancy and carers responsibilities and the conduct of the Respondents may have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant: ". . . (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence."
At the same time, it is accepted by the Tribunal that where there is no direct evidence of discrimination, and where an Applicant relies on inferences to be drawn from the evidence, where more probable and innocent explanations are available on the evidence, the inference will not normally be drawn. See Dutt v Central Coast Area Health Service [2002] NSWADT 133.
In the decision of the Tribunal in Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 the following was noted in relation to the drawing of inferences: The Tribunal finds in these preliminary proceedings under section 102 of the Act, that the Tribunal cannot make findings on the available evidence about inferences which should be drawn and that this is properly a matter for a Tribunal to decide at a full hearing. The questions of whether the inference is logical rather than supposition, or whether there is a more probable and innocent explanation available on the evidence, will be matters to be considered on a full hearing of the evidence. Without hearing from witnesses, it is not appropriate for the Tribunal, in a section 102 application, on the available evidence in this matter, given the conflict between the evidence of the Applicant and the Respondent, to weigh the evidence (which is predominantly in written form) and decide whether an inference should be drawn from the evidence.
The Tribunal was presented with a number of emails between Ms Goldsteen and representatives of TCI. The Tribunal is satisfied that the content of these exchanges is open to differing interpretations. This should be left to a full hearing before the Tribunal.

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