James v State of NSW

[2020] NSWCATAD 117

NCAT Administrative and Equal Opportunity|2020-04-30

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Court

NCAT Administrative and Equal Opportunity

Decision date

2020-04-30

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

REASONS FOR DECISION

In February 2019, the President of the Anti-Discrimination Board (respectively, "the President" and "the Board") referred to the NSW Civil and Administrative Tribunal (NCAT) a complaint made by Corrective Services Officer, Rita James. In that complaint, lodged with the Board in August 2018, Ms James alleged that her employer, the Secretary of the Department of Justice (Corrective Services NSW) had victimised her and discriminated against her on the ground of disability.
Ms James has applied to NCAT, requesting the Tribunal to exercise the power conferred by s 103 of the Anti-Discrimination Act 1977 (NSW) (the Act), to amend the complaint. That application is largely opposed by the respondent.
I decided to determine Ms James' application to amend the complaint (the Amendment Application) "on the papers" because both parties consented to that course and I was satisfied that the issues could be adequately determined by considering the parties' written submissions: s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
For the reasons that follow, I have decided to amend the complaint in part but not to the full extent sought by Ms James.

[2]

Proper name of the respondent

In the complaint referred to the Tribunal, the President identified the respondent as "Department of Justice (Corrective Services NSW)". The proper name of the respondent is "the State of NSW": s 5 of the Crown Proceedings Act 1988 (NSW). I declare that the correct name of the respondent is the State of NSW and request the Registrar to take the necessary administrative steps to give effect to that declaration.

[5]

The Second Complaint

In August 2018, Ms James lodged a further complaint with the President (the Second Complaint) alleging that Corrective Services had victimised her (s 50) and discriminated against her on the ground of disability (s 49D). This is the complaint that is the subject of the Amendment Application.
The President determined the period of that complaint to be 23 January 2017 to 16 August 2018 in respect of the complaint of victimisation and 17 May 2017 to 16 August 2018 in respect of the complaint of discrimination on the ground of disability.
In a pro forma complaint lodged with the Board on 16 August 2018, Ms James listed the following alleged conduct by Corrective Services and/or its employees, which she asserted amounted to a "detriment" within the meaning of s 50 of the Act: 1. Tendering in the proceedings relating to the First Complaint (the First Proceedings), an affidavit sworn by Assistant Commissioner, Dr Ann-Marie Martin, which purportedly contained false and inaccurate information, namely that Ms James had been "performance managed". 2. Failing to deal with Ms James' complaint about Assistant Commissioner Martin's actions by stating in evidence that she had been performance managed. 3. Refusing Ms James' request made on 23 January 2017 for "transfer at grade" and failing to give reasons for that decision. 4. Refusing Ms James' request for an "acting up opportunity". 5. Requiring Ms James to submit any leave applications manually rather than the "usual process" of electronic lodgement. 6. Failing to respond to a work health and safety incident lodged by Ms James in March 2017. 7. Wrongly accusing Ms James of "abandoning her post" a few days after the Tribunal handed down its decision in James No 1. 8. In August 2017, requiring Ms James to meet in person with Assistant Commissioner Martin and other managers to discuss Ms James' return to work in the Intensive Drug and Alcohol Treatment Program (IDATP) at the John Morony Correctional Complex. Ms James claimed that because of the "bullying culture" within Corrective Services, it would be detrimental to her mental health to attend that meeting in person. 9. Alleging in an email sent on 3 October 2017 by Ms Cindy Moore, Acting Regional Support Director Manager Metro, Corrective Services, that Ms James was "confrontational in the workplace" and displayed "aggressive behaviour … toward other staff members". 10. Failing, as requested by Ms James in an email sent on 11 September 2017 to Commissioner Peter Severin, to investigate her complaint that she had been victimised by not being offered "higher duties" and subjected to "bullying and harassment". 11. Failing, as requested by Ms James, to review the investigation report prepared by O'Connor, Marsden and Associates (the OCM report), which Ms James asserted contained several discrepancies and factual inaccuracies. (In late 2017, Corrective Services appointed consultants, O'Connor, Marsden and Associates, to investigate allegations made by Ms James of being victimised, bullied and harassed. In a report provided to Corrective Services in January 2018 (the OCM report), O'Connor, Marsden and Associates concluded that none of the 21 identified allegations made by Ms James were substantiated.)
In addition, in the complaint form lodged with the Board on 16 August 2018, Ms James claimed that the following alleged conduct by Corrective Services amounted to unlawful discrimination on the ground of disability: 1. Refusing/failing to grant Ms James' "request for reasonable adjustment", made in September 2017, namely, to be transferred to the Dillwynia Corrective Centre.. 2. Declining Ms James' second request to "act in higher duties", apparently made in May 2017.

[6]

Principles governing the exercise of the power to amend a complaint

Section 103 of the Act gives the Tribunal power to amend a complaint: 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.
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 listed 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. See also McCrystal v Commissioner of Police, NSW Police Force [2018] NSWCATAD 299 at [9]-[13].

[8]

Proposed Amendment 1

Ms James requests the Tribunal to amend the Second Complaint by adding Corrective Services' failure to return Ms James to the John Morony Correctional Complex throughout the period 27 January 2017 to 2 August 2017, the date the Tribunal handed down its decision in James No 1. As noted above, the President determined the period of the victimisation allegation in the Second Complaint to be 23 January 2017 to 16 August 2018.
As noted, in James No 1 the Tribunal found that Corrective Services' refusal to permit Ms James to return to work at the John Morony Correctional Complex where she had been working until late 2015, amounted to a contravention of s 50 of the Act. The Tribunal ordered Corrective Services to pay Ms James compensation in the sum of $20,000 for "hurt and distress" and "loss of quality of life in having to travel up to 2 extra hours per day to work": James No 1 at [135].
Ms James contends that the conduct the subject of Proposed Amendment 1 amounts to a "continuing contravention of the Act". Corrective Services opposes Proposed Amendment 1, contending that the alleged contravention of the Act the subject of that amendment, was determined by the Tribunal in the First Proceedings. It contends that if Ms James were permitted to reventilate those allegations it would amount to an "abuse of process".
The primary difficulty posed by Proposed Amendment 1 is that the period for which the Tribunal awarded compensation in James' No 1 is not apparent from the available material. The Tribunal considered that the period of the First Complaint extended beyond May 2016. (See for example [73], where the Tribunal referred to the "implicit extension of the complaint beyond the date of lodgement in May 2016 with the ADB".) However, the Tribunal did not state when the period of that complaint came to an end. Nor did it state in its reasons the period covered by its award of compensation.
It is possible, as Ms James contends, that the Tribunal awarded compensation for the period commencing June 2016 and ending on the day Ms James filed her evidence in the First Proceedings (23 January 2017). Equally, it is possible that the Tribunal awarded compensation for the period ending on the last day of the hearing (28 March 2017), or the day it handed down its reasons for decision (2 August 2017).
It would be inappropriate for this Tribunal to consider the question of whether Corrective Services' failure to return Ms James to the John Morony Correctional Complex for the period 23 January 2017 to 2 August 2018 amounts to victimisation if that issue has already been decided. On the available material I cannot be satisfied, as Ms James contends, that the Tribunal limited its consideration and awarded compensation for the period ending 23 January 2017.
It follows that I must decline to exercise the discretion to amend the Second Complaint by adding Proposed Amendment 1.

[9]

Proposed Amendment 2

Ms James requests the Tribunal to amend the Second Complaint by adding to the proposed orders listed in her Points of Claim filed on 19 June 2019, an order that Corrective Services give her a "permanent role at classification 9/10", or in the alternative, a "temporary role at grade 9/10 for development purposes" (the requested orders).
Corrective Services opposes this request, contending that the Tribunal lacks the power to make the proposed orders because to do so would interfere with its "managerial prerogative". In the alternative, Corrective Services contends that the proposed orders are unreasonable because, among other things, the positions requested may not be available.
The submissions made by both parties are misconceived. A complaint, within the meaning of the Act, and Points of Claims are not one and the same thing. Whether the Tribunal can and should exercise the power conferred by s 108 of the Act to make the orders sought by Ms James is irrelevant to the exercise of the power conferred by s 103 to amend the Second Complaint. The exercise of that power requires the Tribunal to first decide whether the alleged conduct said to contravene the Act that is the subject of the amendment application, falls within the scope of the Second Complaint. Second, if it does not fall within the scope, the Tribunal must decide whether the discretion to amend that Complaint should be exercised. In contrast, the exercise of the power to make the requested orders requires the Tribunal to determine whether the Complaint is substantiated, in whole or part, and, if so, whether the orders sought fall within the scope of s 108, and if so, whether the power to make those orders should be exercised.
Ms James does not require an amendment to the Second Complaint in order to request the Tribunal to make the orders sought. It is not appropriate to deal with the merits of the submission made by Corrective Services about the orders sought by Ms James, in the context of an amendment application. To remove doubt, Ms James is permitted to amend the Points of Claim to include the requested orders.

[10]

Proposed Amendment 3

The OCM report is the subject of Proposed Amendment 3. As noted at [14] above, Ms James asserts that that report contains several "discrepancies and factual inaccuracies". Among other things, Ms James contends that OCM failed to give her an adequate opportunity to respond to the 21 allegations OCM examined in the course of its investigation, resulting in her being denied procedural fairness. Ms James urges the Tribunal to join OCM and the OCM investigator responsible for the preparation of the report, as parties to these proceedings.
Ms James does not appear to allege that OCM and/or its investigator discriminated against her on the ground of disability either in the area of services or employment. Rather, I understand Ms James to allege that OCM and/or its investigator subjected her to the detriment of producing a "factually inaccurate report" in contravention of s 50(1) of the Act. In addition, she contends that OCM acted as "agent" for Corrective Services and by the operation of s 53 of the Act, Corrective Services is liable for OCM's actions. For current purposes I will assume that that contention is arguable.
This, however, does not resolve the more fundamental difficulty of identifying the alleged contravention committed by OCM and/or its investigator for which Corrective Services is said to be liable. Even if it is accepted that Ms James was subjected to the detriment of being the subject of a report which contained several "discrepancies and factual inaccuracies" and not being given an adequate opportunity to respond to adverse comments about her, it does not follow that there has been a contravention of s 50 of the Act. Causation is a critical element in any complaint of victimisation under s 50. It is not sufficient to establish that the person victimised was subjected to a detriment. Here, Ms James must establish that OCM subjected her to the alleged detriment of a flawed report because she did one of the things listed in s 50(1): see Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37]. There is nothing in the detailed documents submitted by Ms James in support of the Amendment Application to suggest that OCM and/or its investigator subjected her to the alleged detriment because she made the First Complaint or did one of the things listed in s 50(1) of the Act. Nor is it suggested that Corrective Service directed or suggested to OCM and/or its investigator that they prepare a flawed report to damage Ms James.
I have decided to decline to exercise the power to amend the Second Complaint to include Proposed Amendment 3 primarily because Ms James has failed to articulate how the actions of OCM and/or its investigator amount to a contravention of the Act. In addition, if the Second Complaint were amended to include Proposed Amendment 3, before making the amendment it would be necessary to invite OCM and its investigator to respond to the application to join them in these proceedings. This would result in further delay in these proceedings, which have already been on foot for over 12 months.
In declining to exercise the power to amend the Second Complaint by including Proposed Amendment 3, I make no finding as to the accuracy or otherwise of the OCM report.
My decision does not prevent Ms James from calling OCM's employees or consultants to give evidence in these proceedings if she wishes to question them about facts in issue which have some apparent relevance to the question of whether the Second Complaint is substantiated.

[11]

Proposed Amendment 4

The conduct the subject of this proposed amendment is the refusal by Corrective Services' Executive Director of Strategic Resources, Mr Michael Baldi, to accede to Ms James' request to conduct a review into the OCM report. Ms James contends that because of that refusal she was subjected to a detriment within the meaning of s 50 of the Act. In addition, Ms James seeks that Mr Baldi be joined as a party to these proceedings.
Corrective Services opposes this Proposed Amendment, contending that the claim is untenable.
The submissions made by the parties rest on the flawed assumption that the conduct the subject of this Proposed Amendment falls outside the scope of the Second Complaint. The alleged contravention of the Act not only falls within the period of the victimisation complaint (23 January 2017 to 16 August 2018) but was squarely raised by Ms James in the initiating complaint: see President's Report, p 11, dot point 2. Whether, as Corrective Services contends, the allegation lacks merit is not relevant to the question of whether it falls within the scope of the Second Complaint.
If the Tribunal finds substantiated the allegation regarding Mr Baldi's refusal to accede to Ms James' request to conduct a review of the OCM report, by the operation of s 53 of the Act Corrective Services is rendered liable for Mr Baldi's actions, unless it is established that it did not authorise, or took all reasonable steps to prevent, Mr Baldi from doing that act: see ss 53(1), 53(3), of the Act. I do not understand Corrective Services to contend that it did not authorise Mr Baldi's decision to refuse to accede to Ms James' request to conduct a review of the OCM report. If my understanding is correct, Ms James can pursue this allegation irrespective of whether Mr Baldi is joined as a party to these proceedings. In my view, no useful purpose would be served in joining Mr Baldi as a party to these proceedings.
If I am mistaken and Corrective Services does not accept liability for Mr Baldi's conduct, it must notify the Tribunal and Ms James within seven days of the date of this decision. I will then consider whether it is appropriate to exercise the discretion to join Mr Baldi as a party to these proceedings.

[13]

Proposed Amendment 6

The conduct the subject of this Proposed Amendment relates to Corrective Services' actions in allegedly hindering Ms James' return to work from 23 November 2017 until Ms James ultimately returned to work, which I understand was in late October 2019. (Ms James makes no claim with respect to the period 16 February 2018 to 5 April 2018 during which her GP certified that she was totally unfit for work.)
In her application to amend the Second Complaint, Ms James lists several alleged actions taken by Corrective Services which she asserts resulted in her return to work being delayed. These include Corrective Services' alleged actions in:

failing to make genuine attempts to identify and to offer Ms James "suitable duties";
failing to comply with the "Developed Injury Management Plan";
failing to return Ms James to her substantive position, when certified fit to return to work; and
instructing Ms James to attend a "fit for duty" assessment.

Ms James contends that the reason Corrective Services subjected her to these alleged detriments was because she made the First Complaint.
The question of whether to exercise the discretion to amend the Second Complaint to add Proposed Amendment 6 raises competing considerations. Weighing against the exercise of that discretion are the following factors: 1. First, on the available material it is not possible to assess whether it is reasonably arguable that some or all of the alleged conduct the subject of this Proposed Amendment can be characterised as a detriment within the meaning of s 50 of the Act. Nor is it possible to assess whether it is reasonably arguable that the reason for that conduct was because, as Ms James contends, she made the First Complaint. 2. Second, if the allegation the subject of Proposed Amendment 6 is added to the Second Complaint, the scope of issues to be determined in these proceedings will be significantly enlarged. This is likely to materially extend the length of the hearing and the time needed to finalise these proceedings. In addition, it is likely to increase Corrective Services' costs and the resources each party and the Tribunal will be required to devote to these proceedings.
On the other hand: 1. If the application is refused, Ms James might make a further complaint to the Board about the conduct the subject of this Proposed Amendment, resulting in a third set of proceedings. That will have resource implications for the parties and the Tribunal and may ultimately mean that each will be required to expend more resources than they would have, had the power to amend the complaint been exercised. 2. If Ms James lodges a complaint with the President about Corrective Services' actions in relation to her return to work, taken between November 2017 and October 2019, the President may exercise her power to decline that part of the conduct which occurred more than 12 months before that complaint was lodged: s 89B(2)(b).
In balancing these considerations, I am required to have regard to the guiding principle: to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36(1) of the NCAT Act.
While the considerations are finely balanced, I have decided not to exercise the discretion to amend the Second Complaint to include the allegations that are the subject of Proposed Amendment 6, primarily because to do so is likely to significantly enlarge the matters to be determined and further delay the resolution of the real issues in the proceedings.

[15]

Proposed Amendment 8

Ms James requests that the Second Complaint be amended by adding the following allegations of victimisation: 1. Being subjected to differential treatment in respect of a "Transitional Plan". 2. Being made the subject of a "return to role" plan by Human Resources Director, Cathryn Hellams.
Corrective Services properly concedes that the first allegation forms part of the Second Complaint. With respect to the second allegation, Corrective Services urges the Tribunal to decline to exercise its power to add that allegation to the Second Complaint. In support, Corrective Services points to the age of the complaint and asserts that the conduct complained of could "not amount to a contravention of the Act".
In an email sent on 22 August 2017, Ms Hellams requested Ms James to attend a meeting with herself, Dr Martin and others to discuss Ms James' return to work at the John Morony Correctional Complex. Ms James replied that she was not willing to attend the proposed meeting because she had "no wish to be subjected to further bullying and harassment". I understand the substance of the second allegation to be Ms Hellams' actions in advising Ms James in an email sent on 23 August 2017, that the aim of the foreshadowed meeting would be to discuss a "return to work plan". The request made by Ms Hellams that Ms James attend a meeting in August 2017 was squarely raised by Ms James in the initiating complaint (see [14] of these reasons).
The factual matters raised in the second allegation fall within the temporal scope of the Second Complaint and overlap with matters raised by Ms James in the initiating complaint. The factual matters raised by this allegation appear to be relatively narrow in scope. Adding this allegation to the Second Complaint is unlikely to materially increase the time needed to determine the Second Complaint or to delay the finalisation of these proceedings. For these reasons I have decided to add to the Second Complaint the allegation:
'being made the subject of a "return to role" plan by Human Resources Director, Cathryn Hellams.'

James v State of NSW

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