Munt v Workers Compensation Independent Review Officer

NCAT Administrative and Equal Opportunity|2020-05-06

Background facts

Mr Munt has been diagnosed with depression and post-traumatic stress disorder. It is agreed that Mr Munt has a disability for the purpose of the Act.
On 26 November 2019, Mr Munt rang WIRO to complain about EML's management of his workers compensation claim. According to Mr Munt, when he asked "Tom", the WIRO staff member who took his call, to give him the surname of his director, "Jeff", Tom declined and said: For security reasons, Shane. We deal with the vast injured workers across the state, some that suffer from psychological injury.
Three days later, Mr Munt again contacted WIRO in response to an email he had received earlier that day about his complaint concerning EML. Mr Munt claims that the staff member he spoke to on that occasion refused to give him either his own name or the name of the EML employee who had responded to his complaint. Mr Munt claims that when he asked for an explanation the staff member replied: "I have made a decision".
Mr Munt contends that the actions of WIRO staff in refusing to give him their names or those of EML's employees who responded to his complaint, amounts to unlawful discrimination. He submits that the inference to be drawn from the statement made by "Tom" (at [20] above) is that the WIRO has made an assumption that workers who have sustained a "psychological injury", such as himself, pose a security risk to WIRO staff. Mr Munt contends that this amounts to "less favourable treatment" than would be afforded to a person who did not have a psychological injury. In addition, he contends that WIRO's decision not to disclose staff names reveals WIRO's bias against workers and partiality towards insurers. He points out that the emails between WIRO and EML in relation to his complaint, reveal that WIRO staff readily give their names to insurers.

Did WIRO refuse Mr Munt services or discriminate against Mr Munt in the terms on which the WIRO provided him with those services?

Mr Munt must establish that the conduct about which he complains falls within s 49M(1) of the Act, namely that the WIRO refused to provide him with services or discriminated against him in the terms on which it provided services. As Basten JA explained in Commissioner of Police v Mohamed [2009] NSWCA 432 at [23], the underlying structure of the Act is "not to prohibit all forms of discriminatory conduct, even where such conduct is antithetical to internationally recognised human rights and fundamental freedoms, but to identify specific grounds of discrimination, which are prohibited in specific areas of social activity".
It is agreed that in discharging the functions of dealing with and investigating complaints made by workers about insurers, WIRO provides "services" to workers.
While dissatisfied with the WIRO's alleged perfunctory treatment of his complaint about EML, Mr Munt does not assert that the WIRO refused to provide him with services, namely dealing with and investigating that complaint.
Accordingly for Mr Munt's complaint to succeed it must be established that the conduct of which he complains is capable of falling within paragraph (b) of s 49M of the Act, that is, "the terms on which [WIRO] provides [Mr Munt] with those … services". In determining whether leave for the Complaint to proceed should be granted, I will approach that question by asking whether that proposition is reasonably arguable.
The scope of s 49M(b) of the Act and the corresponding provisions relating to other grounds of discrimination, has been held by NCAT and one of its predecessor Tribunals, the Administrative Decisions Tribunal, to not extend to the manner in which the subject service is provided: see for example, Kitoko v Sydney Local Health District [2017] NSWCATAD 209 at [49]; Turner v State Transit Authority [2004] NSWADT 89 at [59]-[77]; Whitfield v State of NSW (NSW Police Force) [2011] NSWADT 265 at [92].
Even if, as Mr Munt believes, the real reason behind the directive to staff about disclosing names was because it was assumed that workers with psychological injuries were unstable and if the names of staff were disclosed, staff would potentially be put at risk, in my view it cannot be reasonably argued that this conduct is capable of falling within s 49M(1)(b). This is because that conduct could not be characterised as relating to the terms on which WIRO's complaint handling service was provided to Mr Munt. Rather it relates to the manner in which that service was provided to Mr Munt.
Arguably, it is unfortunate that the protection afforded by s 49M does not extend to the manner in which services are provided. The recommendation made by the New South Wales Law Reform Commission in Report 92, Review of the Anti-Discrimination Act 1977 (NSW) at p 170, that the Act be amended to rectify this omission has not been implemented.
It follows that as the conduct about which Mr Munt complains does not fall within the scope of 49M(1) of the Act, the Tribunal lacks the power to determine the Complaint. As found by the President, the complaint is therefore misconceived. No useful purpose would be served in permitting the Complaint to proceed. For that reason, I have decided it is fair and just to refuse leave for the Complaint to proceed.

Order 1. Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).

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: 22 June 2020

A dispute between residents of two states?

The WIRO raises but does not request the Tribunal to determine at this stage of proceedings, the question of whether the Complaint is a dispute between "between residents of different States", and, as a consequence, the Tribunal lacks jurisdiction.
Mr Munt is apparently a resident of Queensland.
The WIRO contends that he is a natural person and not "a State" for the purposes of s 75(iv) of the Constitution. It follows, he contends, that for the purpose of s 75(iv) he and Mr Munt are "residents", he of NSW and Mr Munt of Queensland and therefore the Complaint is a dispute "between residents of different States". Because NCAT is not a "court of a State", it does not have jurisdiction to determine the Complaint: Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15; Attorney General for New South Wales v Gatsby [2018] NSWCA 254.
Whether the Tribunal has jurisdiction to determine the Complaint turns on whether Mr Munt is a resident of Queensland, and, if so, whether the WIRO is "a State" for the purpose of s 75(iv) of the Constitution. The expression "a State" extends to agencies and instrumentalities of the relevant State: Deputy Federal Commissioner of Taxation v State Bank of NSW (1992) 174 CLR 219; [1992] HCA 6. For current purposes I will not address whether the WIRO is a natural person. I will assume but not decide that the Tribunal has power to determine the question of whether leave should be granted for the Complaint to proceed under s 96(1) of the Act.

Statutory framework and principles governing the grant of leave

A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation, the President is satisfied that the complaint is misconceived or lacking in substance, she may decline the complaint, in whole or in part: ss 92(1)(a)(i) of the Act. A complaint will be "misconceived" if it involves a "misunderstanding of legal principle": Alchin v Rail Corporation NSW [2012] NSWADT 142 (Alchin) at [26]. A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland & Anor (1981) 2 NSWLR 104 at 107; Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [45]; Alchin at [26].
Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she receives a written request from the complainant to do so: s 93A of the Act.
Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

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