Rous v Secretary, NSW Department of Education

Statutory framework and principles governing the grant of leave

1. A person may make a complaint to the President on their own behalf alleging that another person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
2. 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 lacking in substance and/or that no part of the conduct complained of could amount to a contravention of a provision of the Act, he or she may decline the complaint, in whole or in part: ss 92(1)(a)(i) and 92(1)(a)(ii).
3. Where the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.
4. Where the President refers a complaint to the Tribunal on the requirement 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).
5. 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]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25]. 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 & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 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 v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36], [37]; Jones & Anor v Ekermawi [2009] NSWCA 388 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 & Anor v Ekermawi [2009] NSWCA 388 at [60].
6. An issue that is the subject of proceedings before the Industrial Relations Commission may not be the subject of proceedings relating to a complaint before the Tribunal without the leave of the Tribunal: s 96(2) of the Act.

Background to the Complaint

1. In 1995, Ms Rous commenced employment as a teacher with the Department. In 2006 she made a workers compensation claim in respect of a psychological injury. The claim was settled in 2009. Following settlement, Ms Rous commenced employment at Wiley Park Girls High School.
2. In 2014 Ms Rous made a further workers compensation claim, again for a psychological injury. That claim was declined and a return-to-work plan (the RTW Plan) formulated. Under the Plan, Ms Rous was required to work three days per week and, if required, undertake relief teaching.
3. The Secretary alleges that from May 2014, Ms Rous repeatedly refused to comply with directions issued by the Principal of Wiley Park Girls High School to perform relief work and to attend work on the days stipulated in the RTW Plan.
4. In October 2014, the Department's Employee Performance and Conduct (EPAC) Directorate conducted an investigation into Ms Rous' conduct. The Directorate concluded that: 1. Ms Rous had repeatedly refused to comply with the directions issued by the Principal that she attend work in accordance with the RTW Plan. 2. The directions issued by the Principal were lawful. 3. Ms Rous' repeated refusal to comply with these directions amounted to "misconduct".
5. The Secretary accepted the findings made by the Directorate and on 2 March 2015, terminated Ms Rous' employment and placed her name on the NTBE List.
6. Shortly after her dismissal, Ms Rous filed an unfair dismissal claim in the NSW Industrial Relations Commission (the first IRC Proceedings). In July 2016, the Commission stayed those proceedings. Ten months later, Ms Rous withdrew her unfair dismissal claim, terminating the first IRC Proceedings.
7. In February 2017, Ms Rous commenced fresh proceedings in the IRC seeking reinstatement under s 241 of the Workers Compensation Act 1987 (NSW), (the second IRC proceedings). Section 241 permits a worker, dismissed on the grounds that he or she is not fit for employment as a result of an injury, to apply for reinstatement to employment.
8. In April 2017, Ms Rous commenced further proceedings in the IRC seeking relief under the victimisation provisions of the Industrial Relations Act 1996 (NSW) (IR Act), (the third IRC proceedings).
9. The second and the third IRC proceedings are currently before the IRC.

Scope of the Complaint

1. Ms Rous is critical of the parameters of the Complaint identified by the President. She asserts that the President ignored her claims about the conduct of the Secretary and his employees in the three IRC proceedings. At the leave hearing she stated that that conduct was her primary concern.
2. As noted in the initiating complaint, Ms Rous made numerous allegations about the proceedings before the IRC. Among other things, she alleged that the lawyers with carriage of the Department's case:

• filed "false" documents
• prepared fraudulent statements and advised staff of the Department to do the same
• colluded with the Commissioner with carriage of the first IRC proceedings, by making consent orders without her knowledge and "making sure I was dismissed from my teaching job".

1. Apparently Ms Rous has lodged complaints with the Legal Services Commission about the Department's lawyers and the lawyers she retained in the workers compensation proceedings. In addition, Ms Rous apparently has lodged complaints with the NSW Judicial Commission about the IRC Commissioners with carriage of her applications.

Consideration

1. The focus of Ms Rous' concerns in the initiating complaint to the President and the leave hearing was the conduct of the lawyers and officers of the Department involved in the proceedings before the IRC. Those allegations were not addressed in the President's report. Rather, the President's delegate identified the scope of the Complaint as being limited to two decisions made by the Secretary, namely to: 1. decline to accept Ms Rous' application for casual employment; 2. maintain Ms Rous' name on the NTBE list.
2. The Act makes certain types of discrimination and other types of conduct unlawful. To constitute unlawful discrimination under the Act, the alleged conduct must be on the ground of a prohibited ground, which include disability and age. In addition, the alleged conduct must relate to one or more prescribed area of activity, which include employment.
3. In broad terms the conduct about which Ms Rous complains relates to the conduct of the Department's officers in the IRC proceedings. She has not claimed that one of the reasons for the alleged conduct was her age or disability. Perhaps more importantly, she does not suggest that that conduct falls within a substantive provision of the Act. Rather in substance she alleges that the Department's lawyers (and others) acted unlawfully and colluded with others to frustrate her applications to the IRC.
4. As noted, there is no mention in the President's report of whether a decision was made under s 92 to decline that part of the Complaint relating to the Department's conduct in the IRC proceedings. Assuming such decision had been made, I would not grant leave for that part of the Complaint to proceed, for the following reasons. First, the alleged conduct does not appear to fall within a substantive provision of the Act. Second, there is no available material to suggest that one of the reasons for that conduct was Ms Rous' age and/or disability.
5. While not Ms Rous' primary concern, I will nonetheless proceed to address whether leave should be granted for that part of the Complaint relating to the decisions to decline to accept her application for casual employment and to maintain her name on the NTBE list (the impugned decisions).

Statutory framework: discrimination on the ground of age and disability in the area of employment

1. The Act makes it unlawful for an employer to discriminate against an employee and an applicant for employment, on the grounds of age and disability. Section 49ZYB of the Act states: 49ZYB Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of age: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which employment is offered. (2) It is unlawful for an employer to discriminate against an employee on the ground of age: (a) in the terms or conditions of employment that are afforded to the employee, or (b) by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. …
2. The provision relating to discrimination in the area of employment on the ground of disability is in similar terms: see s 49D of the Act.
3. Section 49ZYA of the Act defines unlawful discrimination on the grounds of age to mean: 49ZYA What constitutes discrimination on the ground of age (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if the perpetrator: (a) on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.
4. In similar terms, s 49B of the Act defines unlawful discrimination on the ground of disability.
5. If an act is done for two or more reasons and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A.

What Ms Rous must establish if leave were granted for the Complaint to proceed: direct discrimination

1. In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 (Aldridge), an Appeal Panel of one of NCAT's predecessors, the NSW Administrative Decision Tribunal, formulated a question it said should be addressed in all cases of so-called direct discrimination. Applied to the facts of this case, the questions posed in respect of each impugned decision, are: 1. Whether, the alleged conduct falls within one or more substantive provision of the Act, namely ss 49ZYB and 49ZB of the Act. 2. If so, whether the Secretary or employees of the Department treated Ms Rous less favourably in the same circumstances or circumstances that were not materially different than he/they treated, or would have treated a person, without a disability/not of Ms Rous' age or age group (less favourable treatment). 3. If so, whether one of the reasons for any less favourable treatment was Ms Rous' age/disability, a characteristic that generally appertains to, or is generally imputed to persons with a disability/ of Ms Rous' age or age group (causation).
2. Ms Rous did not nominate an actual comparator, that is, an actual person without a disability/not of her age or age group, in the same or similar circumstances to her. Accordingly, to determine whether less favourable treatment is established, it is necessary to compare the treatment Ms Rous was afforded with the treatment that probably would have been afforded by the Secretary to a hypothetical applicant/employee in the same, or not materially different circumstances, to Ms Rous. The approach advocated by the Appeal Panel in Aldridge of separately and sequentially considering the issues of less favourable treatment and causation presents difficulties where, as in this case, an actual comparator is not identified and the elements of less favourable treatment and causation are necessarily conflated. See for example, Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63]-[65], Martin v McKensey (No. 2) [2003] NSWADT 126 at [46]; McEvoy v Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273 at [68]. Therefore, in this matter it is first necessary to ask: "What was the ground or grounds of the impugned conduct?". It is only when the answer to that question is known that it is possible to evaluate whether Ms Rous was treated less favourably than a hypothetical person without her protected attribute(s).
3. The Secretary asserts that neither race nor age played any role in either impugned decision. The Secretary claims that misconduct was the sole reason for the decision to terminate Ms Rous' employment, and being on the NTBE list was the sole reason for refusing to accept her application for casual employment.
4. In the documents provided to the President and in oral submissions made in the leave hearing, Ms Rous made a number of un-particularised allegations about the conduct of the EPAC investigation. While not expressly put, I understand her to contend that the terms of the RTW Plan, in particular the requirement that she attend work three days a week and, if required, undertake relief teaching, were oppressive. However, she did not point to any material to suggest that age or disability played any part in either impugned decision.

Conclusion

1. The two impugned decisions are intertwined. If found that one of the reasons for placing Ms Rous on the NTBE list was age/disability, it follows that one of the reasons for the subsequent decision to refuse her application for casual employment will be age/disability.
2. In submissions filed on 11 December 2017, the Secretary squarely raised the absence of evidence to support a finding that Ms Rous' age or disability played a role in the impugned decisions. Much the same point was made in the President's report. In the leave hearing, Ms Rous failed to point to any material to support the assertion that age and/or disability played a role in the impugned decisions.
3. In determining whether to exercise the discretion conferred by s 96(1), I have taken into account that Ms Rous, like many self-represented complainants, appeared to have difficulty recognising the importance of identifying the elements necessary to establish a complaint of unlawful discrimination and material that might support each element. Nonetheless, Ms Rous was on notice that the President had formed the view that the Complaint lacked substance and that she had failed to point to material which might support the claim of discrimination. In December 2017, the Tribunal (differently constituted) adjourned the leave hearing to give Ms Rous the opportunity to address these issues. At the reconvened hearing, it was apparent that Ms Rous had not taken steps to address these issues. It would appear that one of the reasons is because, as acknowledged by Ms Rous, her real grievance is with the manner the Secretary defended the applications to the IRC and the conduct of the IRC Commissioners. These are matters for which the Act was not designed to give relief.
4. The available material together with the submissions made by Ms Rous at the leave hearing did not instil any sense of confidence that these shortcomings are likely to be remedied if the matter were to proceed in the Tribunal.
5. I agree with the conclusion reached by the President that cast as a complaint of direct discrimination, the Complaint appears to lack substance.

What Ms Rous must establish if leave were granted for the Complaint to proceed: indirect discrimination

1. To succeed as a complaint of indirect discrimination, Ms Rous must establish in relation to one/each of the impugned decisions that: 1. The Secretary imposed a requirement or condition; and 2. She was unable to comply with that requirement or condition; and 3. A substantially higher proportion of persons not of her age/age group/ without a disability comply or are able to comply with that requirement or condition; and 4. The requirement or condition was not reasonable having regard to the circumstances of the case.
2. Ms Rous did not address whether the Complaint could be cast as an allegation of indirect discrimination on the ground of age and/or disability. After considering possible formulations of a condition or requirement that might be applicable to the facts of this case, I formed the view that none are readily apparent on the available material. In undertaking that task I had regard to the principles established by the authorities about the proper approach to the formulation of the subject requirement or condition in the context of a claim of indirect discrimination and the need not to give a narrow or technical construction to the words condition and requirement: see for example, State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 at 195; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 393, 406-7; Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 185; Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at 143.
3. In my view, on the available material cast as a complaint of indirect discrimination, the Complaint appears to lack substance.

Conclusion

1. As the Supreme Court pointed out in Ekermawi, a decision to refuse to grant leave under s 96(1) of the Act, will finally determine Ms Rous' rights under the Act: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors at [32]. Accordingly, a cautious approach must be taken in the exercise of the discretion. For the reasons given above, on the available material the Complaint appears to lack substance. I have formed the view that if the Complaint were to proceed in the Tribunal, Ms Rous is unlikely to be willing or able to address the lack of supporting material to support her claims. . For these reasons I have concluded that it is fair and just to refuse leave.

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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: 14 March 2018