The applicant's complaint was made 14 months after she alleged she was discriminated against on the ground of age in being dismissed from a voluntary position.

The Tribunal considered, on its own initiative, whether the proceedings should be transferred to the South Australian Employment Tribunal (SAET) pursuant to section 98B of the EO Act. The Tribunal considered whether the application included, or was related to, matters that may be the subject of proceedings under another Act in respect of which SAET has jurisdiction.

• Given the nature of the applicant's allegations of a dismissal that has caused her injury, it appears that the most relevant of the Acts conferring jurisdiction on SAET are the Fair Work Act 1994 and the Return to Work Act 2014;
• However, it would seem that these particular review proceedings do not "include or relate to matters that may be the subject of proceedings" under either of these Acts because neither Act applies to a person who was a volunteer or unpaid worker;
• SACAT has developed its own expertise in proceedings under the EO Act commenced by unsophisticated, unrepresented litigants alleging acts of discrimination. SACAT has expertise in considering questions of extensions of time generally, including the prima facie merits of proceedings;
• For these reasons, the Tribunal would not consider that it would be appropriate or expeditious for the review proceedings to be transferred to SAET at this time.

Equal opportunity - Preliminary Applications - Extension of Time

Administrative tribunals - Procedure - Jurisdiction - Generally

Equal Opportunity Act 1984 s 98B

Fair Work Act 1994 s 4

Return to Work Act 2014 ss 3, 4, 7

South Australian Civil and Administrative Tribunal Act 2013 ss 43

1. Ms Raggio has applied to SACAT for review of a decision of the Commissioner for Equal Opportunity (Commissioner) on 4 November 2024 not to extend time for her to make a complaint under the Equal Opportunity Act 1984 (EO Act).
2. The complaint was made 14 months after the alleged discrimination rather than within the 12-month time limit prescribed in the EO Act.
3. I refer to Ms Raggio's application as the "review proceedings".
4. This is the record of the decision of SACAT under s 98B(1) of the EO Act, namely whether these review proceedings should be transferred to the South Australian Employment Tribunal (SAET). This is not a decision on the review proceedings themselves or the extension of time issue.
5. In making my decision, I have taken into account the submissions of Ms Raggio and the Commissioner made in response to Senior Member McEvoy's directions of 31 January 2025.
6. The relevant EO Act complaint was made on 21 August 2024 and concerned Ms Raggio's allegations that she was dismissed from a voluntary position as music director in her church. Ms Raggio asserted in her complaint to the Commissioner that the church discriminated against her on the grounds of age in the area of (voluntary) employment. Ms Raggio seeks reinstatement to her former position and has asserted that the church's conduct against her has left her with (amongst other things) injury to her mental health.[1]
7. The Commissioner's decision refusing an extension of time noted (amongst other things) that the Commissioner was not satisfied that a causal link between Ms Raggio's age and the dismissal from her role in the church was sufficiently demonstrated and that, even if the complaint had been made on time, the complaint would be lacking in substance.
8. I explain in these reasons why I have determined not to transfer the review proceedings to SAET.

The Tribunal may, on application by a party to the proceedings or on its own initiative, transfer proceedings before the Tribunal under this Act (the transferred proceedings) to SAET if -

(a) the transferred proceedings include or relate to matters that may be the subject of proceedings under another Act in respect of which SAET has jurisdiction; and

(b) the Tribunal considers that it would be more appropriate or expeditious for the transferred proceedings to be dealt with by SAET.

1. The clear legislative intent of s 98B(1) is that, in some cases, it will be more appropriate or expeditious for EO Act proceedings in SACAT to be referred to SAET where SAET has developed expertise in jurisdictions that have some relationship to the proceedings commenced in SACAT.

1. I am satisfied that these review proceedings are "proceedings before the Tribunal under [the EO] Act" for the purposes of s 98B(1).
2. This is an "own initiative" matter rather than one made upon an application by a party to the proceedings. I agree that, in circumstances where it appears to SACAT that s 98B(1) may be relevant to particular proceedings, SACAT should enquire on its own initiative whether the proceedings should be transferred to SAET under s 98B(1). In particular, I agree that SACAT should consider carefully whether to transfer to SAET proceedings for review of the Commissioner's decision not to extend time under the EO Act. This is because consideration of those sorts of review proceedings will likely involve some exploration of the prima facie merits of the complaint.
3. SAET has jurisdiction under numerous Acts. Given the nature of Ms Raggio's allegations of a dismissal that has caused her injury, it appears that the most relevant of the Acts conferring jurisdiction on SAET are the Fair Work Act 1994 (FW Act) and the Return to Work Act 2014 (RTW Act).[2]
4. However, it would seem that these particular review proceedings do not "include or relate to matters that may be the subject of proceedings" under either the FW Act or the RTW Act. This is because it appears that, unlike the EO Act, neither the FW Act nor the RTW Act apply to a person who, like Ms Raggio, was a volunteer or unpaid worker. It would appear the FW Act and RTW Act apply predominantly to people who are in remunerated employment.
5. Broadly speaking, the purpose of the FW Act is to regulate the relationship of employer and employee.
6. In s 4(1) of that Act are definitions which are suggestive of that Act not applying to volunteers or unpaid workers, namely:

employee means a person employed for remuneration under a contract of employment ...; > > employer means - > > ...

(b) ... a person who employs the employees for remuneration in an industry under a contract of employment;

remuneration means -

(a) wages or salary; or

(b) payment to or for the benefit of an employee in the nature of piece-work rates, penalty rates, shift premiums, overtime or special work rates; or

(c) allowances.

1. There are also indications in the RTW Act that it does not apply to volunteers or people doing unpaid work for others.
2. The primary object of the RTW Act, as set out in s 3(1) of that Act, is to establish a scheme that supports "workers" who suffer injuries at work.
3. In s 4(1), a "worker" means:

(a) a person by whom work is done under a contract of service (whether or not as an employee);

(b) a person who is a worker by virtue of Schedule 1;[3]

(c) a self-employed worker,

and includes a former worker and the legal personal representative of a deceased worker;

This Act applies to an injury if (and only if) it arises from employment.

2. Under s 4(1) of the RTW Act "employment" is defined non-exhaustively to include:

(a) work done under a contract of service; and

(b) the work of a self-employed person to whom the Corporation has extended the protection of this Act; and

(c) the work of persons of whom the Crown is, under Schedule 1, the presumptive employer; and

(d) attendance by a worker at a place of pick-up.

1. The information before SACAT indicates that none of these provisions of the FW Act and RTW Act apply to Ms Raggio's circumstances. Neither Ms Raggio nor her solicitors have asserted any employment relationship with the church. Her solicitors acknowledged that there is no contract of employment between Ms Raggio and the church and that she is a volunteer.[4] There is also no indication that Ms Raggio has commenced any proceedings in SAET under the FW Act, the RTW Act or any other Act which confers jurisdiction on SAET.
2. However, it is not necessary that I definitively determine if the FW Act or RTW Act would apply to Ms Raggio's circumstances. This is because if I am wrong on the question of whether Ms Raggio is a worker under the FW Act and RTW Act or if I am wrong that SAET does not have jurisdiction in respect of unpaid workers under those Acts, I would still not exercise my discretion to transfer the review proceedings to SAET.
3. SACAT has developed its own expertise in proceedings under the EO Act commenced by unsophisticated, unrepresented litigants alleging acts of discrimination. SACAT has expertise in considering questions of extensions of time generally, including the prima facie merits of proceedings. I particularly take into account Ms Raggio's apparent recent resiling from her age discrimination complaint as this may have a bearing on the determination of the prima facie merits of her complaint.[5] There is a strong suggestion in the material before SACAT that Ms Raggio is not in fact complaining of age discrimination by the church but rather of what she perceives to be the harsh and unwarranted general treatment she has received from the church. It may be that Ms Raggio's complaint to the Commissioner is, as the Commissioner observed, lacking in substance and beyond the ambit of the EO Act. These are issues to be addressed by Ms Raggio in the review proceedings. At this point in time, for these reasons, I would not consider that it would be appropriate or expeditious for the review proceedings to be transferred to SAET.
4. To be clear, in making this decision, I have also taken into account that, where there are allegations of age discrimination in employment, the terms of s 95B(2) of the EO Act would require the Commissioner to refer the complaint to SAET not to SACAT. This would ordinarily be a strong factor in favour of a transfer under s 98B(1) but one which I consider is outweighed by the other considerations in this case.
5. I consider that the question of whether SACAT should transfer these review proceedings to SAET under s 98B(1) is one that may be revisited from time to time.[6] At this point in time, I am satisfied that the review proceedings should not be transferred to SAET. However, it is possible that further information provided to SACAT in the course of determining the review proceedings might suggest a reconsideration of that position should take place.

1. These proceedings will remain with SACAT.
2. I refer these proceedings to a directions hearing for discussion with the parties as to the determination in SACAT of the review proceedings.

1. The Tribunal adjourns this matter for a further directions hearing on a date to be determined.

[1] Namely, assertions of acute mental anguish and torment, anxiety, stress and sleepless nights. See Ms Raggio's undated response to Senior Member McEvoy's directions of 31 January 2025.

[2] SAET also has jurisdiction under the Construction Industry Long Service Leave Act 1987, the Dust Diseases Act 2005, the Education and Children's Services Act 2019, the Fire And Emergency Services Act 2005, the Industrial Referral Agreements Act 1986, the Long Service Leave Act 1987, the Police Act 1998, the Public Sector Act 2009, the Technical And Further Education Act 1975, the South Australian Skills Act 2008 and the Work Health And Safety Act 2012. I am satisfied that the review proceedings do not "include or relate to matters that may be the subject of proceedings" under any of those Acts. It is not necessary to speak of them further at this point.

[3] By Schedule 1, the Return to Work Act 2014 does extend to certain unpaid workers, such as emergency service personnel. This clearly does not include Ms Raggio.

[4] Letter 19 December 2023 Tindall Gask Bentley to Father Campbell.

[5] In Ms Raggio's application for review to SACAT she states "I am not a lawyer and I put that I thought the actions against me were probably re age, ... and did not know that I was jeopardising my case by putting 'age' ...". See also Ms Raggio's email of 5 December 2024 to SACAT.

[6] Section 37(1) Legislation Interpretation Act 2021.