Ryan v Novartis Animal Health Australasia Ltd

Principles for granting leave - whether "fair and just"

1. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] - [38]. In that case Schmidt J: (1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; (2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; (3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and (4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.
2. The issue to be determined is whether it is fair and just in all the circumstances for the complaints to proceed.

Previous proceedings

1. Before complaining to the Anti-Discrimination Board, Ms Ryan had brought proceedings in the Federal Circuit Court. She claimed that she had been unlawfully dismissed because she had exercised certain workplace rights protected by the Fair Work Act 2009 (Cth). Ms Ryan's application related only to her alleged unlawful dismissal whereas her complaints under the Anti-Discrimination Act relate to the terms and conditions of her employment as well as termination.
2. The fact that Ms Ryan has taken proceedings in relation to some of the same facts in another jurisdiction does not prevent her from making a complaint under NSW legislation: Anti-Discrimination Act, s 88B(1). However in accordance with s 88B(2): The Tribunal must have regard to any such proceedings, and to the outcome of any such proceedings, in dealing with or determining the complaint.
3. This provision means that if leave were granted for any complaint relating to the termination of her employment to go ahead, the Tribunal hearing that matter would have to take into account the Federal Circuit Court proceedings and the outcome of those proceedings.
4. In relation to the Federal Circuit Court proceedings themselves the Tribunal would have to take into account the fact that the substantive matter was not determined at least partly because a litigation guardian could not be found. The Tribunal may also take into account the fact that Ms Ryan was found to be in contempt of the Court.
5. On 25 July 2013 Novartis filed an application in the Federal Circuit Court proceedings seeking orders restraining Ms Ryan from communicating with any of its employees, officers or contractors. On the same day the Court made orders restraining her from communicating with 72 people. Unfortunately Ms Ryan repeatedly breached the restraining orders and subsequently pleaded guilty to 44 counts of contempt of court. A fine of $10,000 was imposed and Ms Ryan was given leave to file a notice of discontinuance within 28 days: Ryan v Novartis Animal Health Australasia Pty Ltd [2014] FCCA 1242.
6. The substantive complaint was not heard or determined by the Federal Circuit Court. Neither the fact that the Court considered it necessary for Ms Ryan to be represented by a litigation guardian or the fact that she was found to be in contempt of court make it unfair or unjust for the complaint, as far as it relates to the termination of Ms Ryan's employment, to proceed.

Need for guardian ad litem?

1. The Tribunal has the power to appoint a person to act as a guardian ad litem for a party who lacks the capacity to represent themselves in the proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 45(4). In the Federal Circuit court proceedings, Judge Lloyd-Jones ordered that a litigation guardian be appointed to manage Ms Ryan's case. No-one was found who was willing to fulfil that role.
2. It may be inferred from the decision to appoint a litigation guardian that Judge Lloyd-Jones "was of the opinion that Ms Ryan suffered from psychological problems which made it impractical for her to conduct her case": Ryan v Novartis Animal Health Australasia Pty Ltd [2014] FCCA 1242 at [26].
3. There was no evidence as to Ms Ryan's capacity to represent herself in these proceedings. She assured me that she was capable of doing so. Novartis did not submit that the Tribunal should appoint a guardian ad litem.

Allegations

1. Ms Ryan's allegations of sexual harassment were made during a meeting with her manager. The purpose of the meeting was to discuss a complaint by a colleague that Ms Ryan had called him an "asshole" in a text message. Ms Ryan acknowledged that she sent that text message but told her manager in the meeting that her colleague had been "all over me for weeks then when I try to talk to him about it he just fobs me off." She said that she was "made to feel cheap and used, and had gotten angry with him and called him an asshole."
2. The President of the Anti-Discrimination Board summarised Ms Ryan's complaints of sexual harassment in the following way: 1. the alleged perpetrator making a telephone call to his wife, in the complainant's presence, and speaking with his wife about him having sex with the complainant or having a relationship with her. The complainant asserts that she was supposed to have overheard this conversation but did not. This discussion made her feel uncomfortable; 2. the perpetrator touching the complainant by pressing against her on two occasions in front of other work colleagues. The complainant asserts that she did not mind the touching however she felt uncomfortable that the perpetrator did it in front of work colleagues; 3. the perpetrator flirting with the complainant. The complainant asserts she did not consider this to be a problem, however she felt uncomfortable that the perpetrator did it in front of work colleagues; and 4. the perpetrator passing her SMS text messages to their mutual supervisor in order to brag about his relationship with her.
3. Ms Ryan is aggrieved that her manager assumed that she had complained of sexual harassment, when she had not alleged sexual harassment at the meeting. She was of the view that the colleague's behaviour could just be a misunderstanding and wanted an opportunity to talk about it. Instead her manager decided to report the issue to Human Resources and Ms Ryan was made to participate in an investigation. Novartis conducted an investigation including interviewing Ms Ryan and her colleague.
4. The colleague denied sexually harassing Ms Ryan. When questioned during the investigation about alleged sexual harassment, Ms Ryan said that she thought her colleague really liked her and was often very attentive. Ms Ryan said that she sometimes smiled back at him and held his gaze. Her observation was that her colleague was happy when she was behaving in a silly and attentive fashion. She thought he had a crush on her. At other times she felt that her colleague was ignoring her. Ms Ryan gave one example of touching in the investigation interview. She said her colleague was sitting in a chair next to her, leaned over to point at something and pressed his arm, leg and shoulder against her.
5. When asked to summarise her allegations against her colleague at the end of the interview Ms Ryan said: "I allege that um, (the colleague) acted obviously in, towards me in the workplace, it's a bit of workplace behaviour that I think is inappropriate. That, that could fall under sexual harassment. Um, I know that I didn't tell him not to do that or to stop and I probably didn't give a good indication by the way I acted that he needed to stop. But I did want to talk to him about it um, because I was very embarrassed about it. I'm happy to drop it as long as um, with everybody agreeing that everybody involved could have acted better. Um, as long as there are no judgements passed. As long as it is actually dropped. Um, and I would like to think that nobody has been told that I acted inappropriately towards (the colleague). Because that wouldn't be fair because my behaviour was better, less forward than (the colleague's) ... I tried to act in a way that I thought was respectful of the fact that we are in a workplace, respectful of (the colleague's) dignity and I tried to do the right thing. Um, and I also tried to keep the issue privately, private between me and (the colleague) to sort it out."
6. The investigator summarised Ms Ryan's comments by saying, "You never told him you were embarrassed or that his behaviour was unwelcome. You just never got the opportunity to do that?" Ms Ryan answered, "No."
7. Following the investigation, the allegation that Ms Ryan had called her colleague an asshole was substantiated. Ms Ryan's allegations of sexual harassment were not substantiated.

Consideration

1. It is unlawful for an employee to sexually harass a fellow employee: Anti-Discrimination Act, s 22B(2). Sexual harassment is defined in s 22A to mean "an unwelcome sexual advance", "an unwelcome request for sexual favours" or "other unwelcome conduct of a sexual nature" in relation to the person. The conduct will not be unlawful unless "a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated."
2. None of the conduct that Ms Ryan described was "a sexual advance" or "a request for sexual favours." The third category, "other conduct of a sexual nature", is not defined but has been interpreted to mean "some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or that suggests that the object of such conduct may have done so or may do so, or is a person of a character empathetic to such behaviour.": Poniatowska v Hickinbotham [2009] FCA 680 at [294].
3. The Commonwealth Sex Discrimination Commissioner has stated in a Code of Practice for Employers: Effectively preventing and responding to sexual harassment: at 8, that, "sexual harassment is not sexual interaction, flirtation, attraction or friendship which is invited, mutual, consensual or reciprocated." Ms Ryan has described a relationship of flirtation and friendship which was largely consensual and reciprocated. If this matter were to proceed to hearing it is highly unlikely that the Tribunal would find that the conduct Ms Ryan described falls within the description of conduct of a sexual nature.
4. As well as being conduct of a sexual nature, the conduct must also be "unwelcome". The fact that Ms Ryan did not tell her colleague that his behaviour was unwelcome does not mean that her complaint would fail. But she repeatedly said that the conduct was not a problem and she did not mind the way the colleague behaved towards her. The only qualification was that Ms Ryan felt very embarrassed that the colleague acted in the way he did in front of other staff. That does not necessarily mean that the conduct was unwelcome.
5. As I have found that it is highly unlikely that Ms Ryan would be able to prove the first parts of the test for sexual harassment, I do not need to address the objective part of the test. In all the circumstances the complaint of sexual harassment is so lacking in substance that it is not fair or just for it to proceed.

Allegations

1. Ms Ryan's allegations of victimisation are that after she made the disclosures about her colleague's behaviour to her manager in the meeting, her manager: 1. escalated the matter to an investigation by Human Resources; 2. became biased against her and was rude and judgmental; 3. changed his mind about extending her contract beyond 1 January 2013 and terminated her employment; 4. checked with previous employers about her conduct in the past and instructed staff to inspect her for alcohol use during the period from 2 October until 1 November 2012.
2. When asked to summarise that complaint during the investigation, Ms Ryan said: "I um allege that, um, we had, (the colleague) and I had um, some problems with flirting and possible sexual harassment in the workplace and I left in abusive text message for (my colleague) and that following on from that I was forced to give my account of the story or part of it to (my manager). Um, and he wanted it closed and I wanted it closed and kept small, but I felt that after that point (my manager) has blamed me and judged me and drawn false conclusions about my behaviour um, without knowing the full story. And if you close something then you need to lay to rest, you can't judge people on something without it being investigated. In fact I don't think you can anyway because, because of victimisation policies, you can't judge somebody who makes a complaint, especially when they do it against their will. And I would like to be given respect to the fact that I tried to do the right thing and not to be judged for it."

Consideration

1. Section 50 of the Anti-Discrimination Act provides that: (1) It is unlawful for a person ("the discriminator" ) to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
2. To prove that she has been victimised, Ms Ryan would have to establish that she: 1. did one of the things listed in s 50(1)(a) to (d); (the trigger) 2. was subjected to a detriment; and 3. at least one of the reasons she was subjected to that detriment was that she did one of the things listed in s 50(1)(a) to (d) (causation).

The trigger

1. Each of the alleged detriments were said to have been triggered by the 'complaint' of sexual harassment. Section s 50(1)(c) requires that Ms Ryan alleged that a person "committed an act which, whether or not the allegation so states, would amount to a contravention of the Anti-Discrimination Act": (Emphasis added)
2. Ms Ryan was adamant that she did not allege at that meeting that her colleague had sexually harassed her. She did not want her disclosures to be investigated. Furthermore, the investigation found that the disclosures did not amount to a contravention of the Anti-Discrimination Act. I have also decided that it is highly unlikely that a Tribunal hearing this matter would regard the allegations as a breach of that Act. Consequently Ms Ryan would, in all likelihood, be unable to prove that she did anything, as described in s 50(1)(c).

Detriment?

1. Next the Tribunal would have to consider whether the consequential conduct amounts to a 'detriment.'
2. It is a detriment to Ms Ryan if her manager was biased, rude and judgmental, if he changed his mind about extending her contract and ultimately terminated her and if he checked with previous employers about her conduct and instructed staff to search her for alcohol. It is arguable that the fact that Ms Ryan's manager referred her allegations to be investigated does not constitute a 'detriment' to Ms Ryan. The manager had an obligation after the allegations were made to refer them for investigation.

Causation?

1. Finally, presuming the trigger and the detriment were proved, the Tribunal would have to consider whether there is a causal link between Ms Ryan's allegations about sexual harassment and what happened to her.
2. The escalation of the matter to an investigation by Human Resources was undoubtedly done as a result of Ms Ryan disclosing information about her colleague's behaviour at the meeting. But I have decided that it is highly unlikely that a Tribunal hearing this matter would regard the disclosure as a trigger or the 'escalation' of the complaint as a detriment.
3. The allegations that the manager became biased against her and was rude and judgmental are vague. Ms Ryan has not indicated how she would establish that there was any connection between those alleged behaviours and the disclosures during the interview.
4. Ms Ryan says that her manager reneged on a previous commitment to extend her six-month contract and ultimately terminated employment. The letter of termination states that Ms Ryan was being terminated for breaching confidentiality regarding the investigation. Ms Ryan admits that she did breach confidentiality in relation to a communication with one staff member but does not consider that the breach justifies the termination.
5. Ms Ryan alleges that there is a direct link between the sexual harassment complaint, the investigation and her termination. Had she not made the allegations there would have been no investigation and no ground for dismissing her for her actions during the investigation.
6. This analysis misunderstands the meaning of "on the ground of' in s 50. That test does not require the Tribunal to ask whether "but for" the allegation of sexual harassment Ms Ryan would not have been dismissed. Rather, there must be a causal link between the allegation and the dismissal. In this case the chain of causation is broken by the fact that Ms Ryan breached confidentiality by communicating with a staff member when she was told not to do so.
7. In relation to the alleged inspection for alcohol use, Ms Ryan says that Novartis contacted previous employers and was told about rumours that she was a problem drinker and that she had had an affair with a married man. She alleges that subsequently, Novartis "instructed other staff to inspect me for alcohol use." Ms Ryan says that those checks into her past were in retaliation to her 'supposed' allegations of sexual harassment. Again, even if Ms Ryan is able to prove this chronology of events, it is difficult to see a causal connection between Ms Ryan disclosing behaviour about a colleague and inquiries into her past. If previous employers did mention problems with alcohol and decisions were made following those conversations, it would be difficult for Ms Ryan to prove the necessary causal connection with the initial disclosures about her colleagues behaviour.
8. In my view, the complaint of victimisation lacks substance and it is not fair or just for it to proceed.

Disability discrimination complaint

1. The allegations of disability discrimination appear to relate to Ms Ryan being searched for alcohol. In her complaint to the Anti-Discrimination Board Ms Ryan alleges that her car was broken into on two occasions. On 18 October 2012 when she returned to her car in the afternoon, she was sure it had been accessed for the second consecutive day. One of the rear doors was unlocked but nothing was missing. Ms Ryan said that she rarely uses that door and always double checks the locks. She reported the incident to police. She also alleges that her handbag was searched and that other staff followed her into the toilet and laughed and gossiped about her.
2. Ms Ryan describes her disability in the following terms; "My disability is a medical illness that causes me to look unwell on some days. I have a past medical history of alcohol abuse that was previously diagnosed as depression and anxiety with a resort to alcohol abuse. I have a mental illness. I was diagnosed with paranoid schizophrenia by my former employer in the course of my lawsuit and they used this diagnosis to mislead the court that I am incapable of speaking for myself (which is in breach of my human rights to freedom of speech, a fair trial and right to defend myself) this is further discrimination for reasons of mental illness."
3. Ms Ryan said she communicated past alcohol problems to a manager on 29 October 2012 in her attempt to become reconciled with him. She says that her employer knew about the fact that she had one expired drink-driving charge from speaking to a previous employer.
4. If leave were granted for the complaint of disability discrimination to proceed, the legal burden of proof would be on Ms Ryan to prove her case on the balance of probabilities. Ms Ryan's allegations are largely speculation.
5. In my view, she would not be able to prove to a Tribunal hearing this case, on the balance of probabilities, that they had occurred. In those circumstances the complaint of disability discrimination lacks substance and it would not be fair or just for it to proceed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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: 10 August 2015