Equal opportunity - Preliminary issue - Nature of complaint referred by Commissioner for Equal Opportunity

Equal Opportunity Act 1984 (WA), s 89, s 90(1), s 90(2), s 107(3)

Applicant entitled to pursue complaint alleging sexual harassment and sex discrimination, including bullying alleged to constitute part of that alleged sexual harassment and sex discrimination against two named persons

Winter and Commissioner of the Western Australia Police Service [2006] WASAT 87

1 The Tribunal ruled that at the hearing of the applicant's complaint she would be limited to pursuing allegations of sexual harassment and sex discrimination, including bullying alleged to constitute part of that alleged sexual harassment or sex discrimination, against two named persons.

2 By letter dated 29 March 2005, the Commissioner for Equal Opportunity referred the complaint of Amber Summerville to the State Administrative Tribunal (Tribunal) pursuant to s 90(2) of the Equal Opportunity Act 1984 (WA), Ms Summerville (the applicant) having given the Commissioner notice requesting such a referral following the dismissal of her complaint under the Act by the Commissioner.

3 In broad terms, the applicant complained to the Commissioner that the Department of Education and Training had discriminated against her on the grounds of sex discrimination and sexual harassment in the area of employment.

4 On 18 February 2005, the Commissioner dismissed the complaint as lacking in substance pursuant to s 89 of the Equal Opportunity Act 1984.

5 Following receipt of the applicant's notice under s 90(2) of the Equal Opportunity Act 1984, the Commissioner referred both the complaint and her report on her investigation to the Tribunal.

6 Once the matter had been referred to the Tribunal, the Tribunal held directions hearings with a view to facilitating the resolution of the complaint. On 24 June 2005, the Tribunal ordered that by 5 August 2005 the applicant should file and serve a Statement of Issues, Facts and Contentions that she considered relevant to the claim, together with other documents that she wished to rely on at the hearing. By 2 September 2005, the respondent was obliged to file an answering statement and relevant documents. The respondents, at that point, were the Department and Mr Ashley Joyce. A question arose as to whether Mr Stephen Furtado should also be joined as a party.

7 On 29 July 2005, the Tribunal ordered that Mr Furtado be joined as a respondent. On that date it also ordered that the applicant file and serve a description of the ambit of her claim, setting out the nature of her claim and each relevant section of the Equal Opportunity Act 1984 under which it is made.

8 On 19 August 2005, the Tribunal further ordered that by 9 September 2005 the applicant file and serve a Statement of Issues, Facts and Contentions referring to the relevant provisions in the Equal Opportunity Act 1984. By 30 September 2005, the first, second and third respondents were to file and serve a response to the applicant's statement.

9 On 7 September 2005, the applicant lodged a 25 page document in compliance with the order of the Tribunal made 19 August 2005 referring to relevant provisions of the Equal Opportunity Act 1984.

10 The issue before the Tribunal now is -

• Whether the applicant has raised issues before the Tribunal which go beyond the complaint determined by the Commissioner for Equal Opportunity.

11 This issue arises because s 107(3) of the Equal Opportunity Act 1984 provides that the Tribunal shall hold an inquiry into "each complaint or matter referred to it" under s 90(2) of the Equal Opportunity Act 1984. Section 90(1) of the Equal Opportunity Act 1984 provides that "where the Commissioner has given a complainant a notice under s 89, the complainant may, within 21 days after receipt of the notice, by notice in writing served on the Commissioner, require the Commissioner to refer the complaint to the Tribunal". On the understanding that "the complaint" referred to the Tribunal must be the same complaint as that made by the complainant and determined by the Commissioner, it is clear that the Tribunal only has jurisdiction to deal with the issues raised in the complaint determined by the Commissioner and no others: see generally Winter and Commissioner of the Western Australia Police Service [2006] WASAT 87 at [45] - [52].

12 While this is a preliminary point, it is an important one as the Tribunal in equal opportunity matters does not have a roving commission to consider fresh complaints. If a person has fresh complaints, they must be referred to the Commissioner and dealt with in accordance with the requirements of the Equal Opportunity Act 1984.

13 It is therefore appropriate for the Tribunal to determine as a preliminary point whether or not the Tribunal has jurisdiction to deal with all the matters the applicant has particularised in her Statement of Issues, Facts and Contentions dated 7 September 2005.

14 On or about 4 April 2004, the applicant lodged a Complaint/Enquiry Form together with attached documentation of six pages with the Commissioner for Equal Opportunity.

15 In answer to the question "Who do you think has discriminated against you?", the applicant identified -

16 In answer to the question "What happened to you?", in relation to which the form indicates that the Commissioner needs to know what happened, where it happened, who did it and who was involved, and why does the complainant think it was discrimination, the application referred to the attached six pages of documentation. The first page of the attached documentation, which is entitled "Formal Complaint Sexual Harassment", states:

"This documentation, of allegations of sexual harassment, is made following initial contact with the following parties since February 2000".

17 Reference is then made to various persons or organisations. The reason the applicant made reference to them appears at the end of the list where she states:

"It will be clear from the above list, my attempts to be listened and to find path of conciliation, were made well prior to this workers compensation case". (The reference to the "workers' compensation case" is a reference to a separate proceeding).

18 The applicant makes favourable reference in the attached documentation to the Director of Education, and her response to the allegations. She notes that "a meeting was then arranged between [the Director of Education and another person] and myself to discuss the allegations in the context of this document".

19 In the balance of the attached document - the next five pages - the applicant by reference to different periods between 1994 and September 2002 gives her account of the incidents that had caused her to lodge her complaint with the Commissioner. Her complaints concerned what she said the Vice Principal said or did, and later in the sequence of events refer to the conduct of the music teacher, Mr Furtado.

20 At page six of the attached documentation, the applicant summarises her complaint in these words:

"In summary, I believe that lack of following procedure, or perhaps not even having a procedure in place, has caused much of the difficulties. There is no 'safe' way to make a concern known, and even when the risk was taken to inform Management, I was targeted as 'not coping'. It is very difficult to note sexual harassment when it also occurs at Management level. It is very difficult to note sex-based harassment and bullying, when it occurs at Management level."

"It's the fear of losing one's job, or not being believed, or the cover-up, which keeps people silent about sexual harassment, bullying and sex-based harassment."

22 In the Complaint/Enquiry Form, the applicant in response to other requests for information provided the names of witnesses, being other people who could help with the investigation.

23 In answer to the question "How has this affected you?" the applicant stated:

"By keeping the first occasions of sexual harassment 'contained', I kept my job but was subjected to later intimidation and eventually assault by my up line manager... Ashley Joyce has become one of the main character witnesses against me in my appeal with workers compensation."

24 The up line manager alleged to have intimidated and eventually assaulted the applicant was also named as one of the witnesses who could help with the Commissioner's investigation. The alleged assault appears to have given rise to the workers' compensation claim referred to in the complaint.

25 In a section dealing with "resolving the complaint", the applicant indicated that:

"A formal investigation to take place. I have made informal complaints - and then formal complaints to the Education Department ... The sexual harassment continues (according to present staff). With a zero tolerance policy, stated, I want this behaviour stopped."

26 When the Commissioner notified the applicant she was dismissing the applicant's complaint under s 89 of the Equal Opportunity Act 1984, the Commissioner stated:

"After considering these documents, I have decided there is insufficient evidence to support your complaint of discrimination on the grounds of sexual harassment and sex discrimination ..."

27 Plainly the Commissioner had characterised the complaint as one of "sexual harassment and sex discrimination".

28 In the applicant's Statement of Issues, Facts and Contentions dated 7 September 2005, she states the following issues:

1. Ashley Joyce engaged in conduct of unwanted sexual advances, unwelcome conduct of a sexual nature that included physical touching, staring at parts of my body, suggestive comments and intrusive questionings. There were also instances of sexually provocative conduct with another person that caused embarrassment and humiliation to me. Mr Joyce's conduct was reported to my superior... who failed to take action to stop the behaviours of Mr Joyce.

2. Mr Stephen Furtado made suggestive comments, discriminatory comments, written notices and emails that were based on my gender. There were also instances of sexually provocative conduct with other persons that caused embarrassment and humiliation to students and myself. Mr Furtado's conduct was reported to my superior ... to Ashley Joyce and to ..., all of who failed to take action to stop the behaviour of Mr Furtado.

3. Despite repeated and numerous reports to various officers within the Department of Education and Training as well as many outside organisations, was unable to obtain assistance in bringing the matters of sexual harassment and sexual discrimination by Mr Furtado and Mr Joyce to account. The Department of Education and Training, through its officers, failed in the application of the provisions of the Equal Opportunity Act 1984.

4. The Department of Education and Training has indicated that it will attempt to use the terms of settlement in a Deed of Discharge to stop any proceedings against the Department of Education and Training, or against any agents of the Department of Education and Training, for incidents and actions that occurred after 6 February 2003.

29 What is clear from the complaint lodged by the applicant with the Commissioner is that:

1. The complaint was only ever against Mr Joyce and Mr Furtado. While the supervisor/superior was referred to on a number of occasions he was not specifically the subject of the complaint. Indeed he was nominated as an appropriate witness for the Commissioner to contact when she made further investigations.

2. The complaint against Mr Joyce and Mr Furtado relates to sexual harassment and sex discrimination, including bullying said to constitute part of their alleged sexual harassment or sex discrimination.

3. Complaints about sexual harassment and/or sex discrimination were not levelled at any persons apart from Mr Joyce and Mr Furtado.

30 In these circumstances, the applicant is limited to doing the following things in these proceedings in the Tribunal:

• calling evidence to establish that either Mr Joyce or Mr Furtado engaged in sexual harassment or sex discrimination against the applicant including by bullying;

31 It follows that the applicant is not able in these proceedings to do the following things:

• to pursue allegations of sexual harassment or sex discrimination against any persons apart from Mr Joyce or Mr Furtado.

32 Having regard to the four issues the applicant has listed in her Statement of Issues, Facts and Contentions and set out above, the Tribunal makes the following in principle rulings:

• Issue 1 insofar as it involves Mr Joyce may be maintained by the applicant.

• Issue 2 insofar as it relates to Mr Furtado and Mr Joyce may be maintained by the applicant.

• Issue 3 was not the subject of the complaint to the Commissioner and may not be pursued directly by the applicant in the proceedings in the Tribunal, subject to what is said below.

• Issue 4 also does not appear relevant to the complaint referred to the Tribunal, but if and when any question arises in these proceedings at the instance of any of the respondents concerning the effect of the Deed of Discharge on the current proceedings, that issue can then be resolved.

33 Having made these in principle rulings, the Tribunal should add that at any subsequent hearing in the Tribunal, evidence that the complainant may wish to call concerning the conduct or actions of persons other than Mr Joyce and Mr Furtado, which she can demonstrate is relevant to the allegations the applicant makes about the conduct of Mr Joyce and Mr Furtado, will be admissible.

34 However, to the extent that any such evidence is irrelevant to the allegations made about the conduct of Mr Joyce and Mr Furtado, it will be inadmissible.

35 It is not appropriate at this preliminary stage to attempt to rule on what foreshadowed evidence will be considered relevant and irrelevant in advance of a hearing.

36 It will be necessary for the applicant, in due course, to file and serve witness statements in which she (and any other witnesses she proposes to call) set out clearly and concisely what they wish to say in relation to the allegations the applicant has made against Mr Joyce and Mr Furtado.

37 Questions may then arise concerning the admissibility of statements made in the witness statement. They can be ruled on later in light of the in principle rulings made in these reasons.

38 So far as the application made on behalf of Mr Furtado is concerned, to the effect that he should not be a party to the proceedings, it seems to the Tribunal on the facts set out above, that Mr Furtado, along with Mr Joyce, was always the subject of complaint and the fact that he may or may not have been expressly referred to by the Commissioner for Equal Opportunity or on other documents, is not the relevant to the question whether he was a party or should remain a party.

39 In my view, because the primary objects of the complaint of the applicant expressly were and remain Mr Joyce and Mr Furtado, they should be parties to the proceedings. That each of them at material times was employed by the Director General of the Department of Education and Training properly means that the Director General should also be and remain a party. Whether the Director General has vicarious responsibility for the conduct of Mr Joyce and Mr Furtado at material times may have some meaning and consequences depending on the outcome of the proceedings, but it is not determinative at this stage of who the parties should or should not be.

40 The simple fact is allegations are made against Mr Furtado. It seems to the Tribunal that because his actions are directly impugned, and always have been, it is necessary for him to be a party to the proceedings. This may be unfortunate from his point of view as it may mean that he has to incur additional expense in responding to the proceedings. Nonetheless, in order properly to dispose of the allegations that have been referred to the Tribunal under the Equal Opportunity Act 1984, the Tribunal is effectively obliged to treat the applicant, Mr Joyce, Mr Furtado and the Director General of the Department of Education and Training as necessary parties to the proceedings.

41 At this stage, in light of the in principle rulings set out above, the Tribunal would propose the following directions:

1. The application be set down for a final hearing to commence on a date to be fixed.

2. The applicant to file and serve on all parties within 30 days signed written witness statements of those persons (including herself) she proposes to call to give evidence on her behalf at the final hearing.

3. The witness statements to be filed on behalf of the applicant are to be confined to the following matters:

• the allegations of sexual harassment or sex discrimination made against Mr Ashley Joyce and Mr Stephen Furtado including bullying said to be part of their alleged sexual harassment or sex discrimination.

4. Each of the respondents is to file and serve signed written witness statements they each respectively propose to call to give evidence on their behalf at the final hearing, within 30 days of being served with the applicant's witness statements.

5. Each party is to file and serve a duly indexed and paginated bundle of documents it wishes to rely on at the final hearing 14 days before the final hearing date.

42 A further directions hearing will now be held in the Tribunal on 13 July 2006 with a view to:

• fixing the date of and likely duration of the final hearing; and,

• fixing a further directions hearing date to review the state of the proceedings prior to the final hearing.

43 The Tribunal orders that a further directions hearing be held on 13 July 2006 at 10am.

I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE M L BARKER, PRESIDENT