Aleksic v Commonwealth Bank of Australia [2011] QCAT 342

CITATION: Aleksic v Commonwealth Bank of Australia [2011] QCAT 342 PARTIES: Dusanka ALEKSIC v Commonwealth Bank of Australia APPLICATION NUMBER: ADL097-10 MATTER TYPE: Anti-Discrimination Matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 24 June 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. leave granted for the parties to be legally represented in the proceeding 2. application to amend the complaint is dismissed CATCHWORDS : ANTI-DISCRIMINATION – amendment of complaint – where fresh allegations of contravention of the Anti-Discrimination Act 1991 – where allegations taken to be rejected under section 141 – where amendment could not provide jurisdiction for rejected complaint – where fresh complaints had to be made to Commission APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 7 -- REASONS FOR DECISION [1] The complaint of Dusanka Aleksic referred to the tribunal alleged that the Commonwealth Bank of Australia as employer of Ms Aleksic was vicariously liable for the actions of an employee, Michelle Patterson, who allegedly made a comment in October or November 2008 to Ms Aleksic in the following terms: “speak English you bloody wog”. [2] Ms Aleksic’s original complaint to the Queensland Anti-Discrimination Commission, lodged on 15 April 2009, was based on a much wider complaint against the bank and against specified employees of the bank. On 1 December 2009 a representative of Ms Aleksic gave notice to the Commission that her complaint was against the bank only and not against individual persons. [3] The Commission expressly did not accept that part of the complaint about conduct which fell outside the statutory time limit i.e. more than one year before the complaint was lodged with the Commission. Ms Aleksic now seeks to amend her complaint to include seven further allegations of conduct by the bank’s employees which Ms Aleksic alleges are contraventions of the Anti-Discrimination Act 1991 and for which contraventions she alleges the bank is vicariously liable. [4] Section 178 of the Anti-Discrimination Act 1991 provides a wide discretion to the tribunal to amend a complaint even if the amendment concerns matters not included in the complaint. In any given case the difficulty is to identify where the limit to the exercise of discretion should lie. The jurisdiction of the tribunal arises from the referred complaint. Complaints are not able to be made direct to the tribunal but must be first made to the Commission. Complaints that have been accepted by the Commission are then referred to the tribunal for determination.1 Cases determined by this tribunal and by the former tribunal have established that a strict or pedantic approach should not be taken to the construction of complaints. 2 [5] In written submissions in support of the application to amend, Ms Aleksic argued that the new complaints were all about conduct which had occurred within one year prior to the date of the lodgement of the original complaint with the Commission or since that date. In other words, she is not seeking to include out of time incidents in her complaint. [6] It was submitted that she should not be precluded from pursuing complaints about conduct occurring in the year prior to 15 April 2009 as her original complaint was on the basis of a course of conduct. It was submitted that at the time she lodged the original complaint, she had not turned her mind to every individual incident but tried to convey the overall tenor of the pattern of the incidents. [7] The incidents which are alleged to have occurred in the year prior to 15 April 2009 appear to be the incidents described as follows: 1 Mount Isa Mines Limited & ors v Hopper [1998] QSC 287 2 McKenzie v Mackay & State of Queensland [2005]QADT 24 -- 2 of 7 -- a) An unidentified bank employee on a date between 2007 and 1 February 2010 said to Ms Aleksic “I have a problem with your accent bloody wog, you should go back to your own country.” b) An employee identified as Bobbie Italiano made a comment in early 2009 “Another wog”. c) An employee identified as Penny McAlister commented in Novenber 2008 that Ms Aleksic “was not good enough for her job and she should find another one.” d) An employee identified as Adam Swan in February 2009 placed undue burdens and requirements on Ms Aleksic that he did not place on other employees. e) An employee identified as Penny McAlister in 2009 prevented Ms Aleksic from accessing her right to complete a Gallop Survey. [8] The respondent opposed the application for amendment of the complaint. In its submissions, the respondents argued that the allegations as set out in points (c) to (e) in paragraph (7) above are not new allegations but rather were part of the original complaint considered by the Commission. After perusing the documents which formed the original complaint, the tribunal agrees that those particular allegations were part of the original complaint lodged by Ms Aleksic. [9] The respondent further argued that the complaints, as set out in points (c) to (e) of paragraph 7, against Ms McAlister and Mr Swan were not accepted by the Commission under section 141 of the Anti-Discrimination Act 1991. The respondent supports this argument by reference to an email sent by the Commission to Tony Maroun of the bank on 25 June 2009 in which the Commission appears to identify the individuals about whose conduct the Commission was considering acceptance of Ms Aleksic’s complaints. None of the identified individuals were Ms McAlister or Mr Swan. [10] This position is confirmed in a letter from the Commission to the bank dated 14 August 2009 in which the Commission specifically states that the complaint has been accepted under section 141 of the Act and identifies the respondents to that complaint as being the Commonwealth Bank of Australia and four individuals. None of the respondents to the accepted complaint were Ms McAlister or Mr Swan. [11] There is further evidence as to what part of the complaint lodged by Ms Aleksic was accepted by the Commission under section 141 of the Act. In a letter dated 21 April 2010 from the Commission to the bank it is stated: “We have accepted the allegation which was lodged within the one year time limit.” The allegation as set out in an attachment refers only to vicarious liability for the conduct of Ms Patterson who on one occasion in either October or November 2008 made a specified comment. [12] It can be reasonably inferred from the Commission’s documents that the allegations of contraventions of the Act concerning the incidents in which Ms McAlister and Mr Swan were said to be involved were not taken forward for conciliation and then referred to the tribunal. The respondent -- 3 of 7 -- argues that those parts of the original complaint were not accepted under section 141. [13] The respondent submitted that under section 141 the Commission must decide either to accept or reject a complaint. If a complaint is rejected, section 142 provides that it lapses and it was submitted that under section 142 Ms Aleksic is not entitled to make a further complaint based on the acts relied on in the rejected complaint. It was submitted that the only remedy open to Ms Aleksic was to ask the Commission for reasons why parts of her complaint were rejected. [14] The difficulty with this argument arises from the fact that the Commission did not use the word “reject” or even the words “not accept” when explaining what outcome it had reached when dealing with the allegations of incidents occurring in the period 15 April 2008 to 15 April 2009, other than about Ms Patterson, in the complaint originally made by Ms Aleksic. In fact the Commission’s decision letters are silent as to the outcome of the allegations made against Ms McAlister and Mr Swan. [15] The Commission has a statutory responsibility in section 141 to make a decision about a complaint. The decisions are limited: either to accept or reject. There is no third option for a complaint to remain undecided in section 141. The only conclusion that can be drawn in this case is that those parts of the original complaint that were not expressly accepted must have in reality been rejected by the Commission. [16] A rejected complaint lapses and cannot be the subject of a further complaint. Ms Aleksic is seeking to make what amounts to a further complaint against Ms McAlister and Mr Swan with allegations of contravention of the Act that have been rejected by the Commission. The tribunal’s jurisdiction is to determine referred complaints. The complaints against Ms McAlister and Mr Swan could not have been referred to the tribunal. The use of the amendment powers in section 178 cannot confer jurisdiction on the tribunal where otherwise there was no jurisdiction to entertain a complaint. 3 [17] The case based on allegations against Ms McAlister and Mr Swan is unlike the situation where the tribunal determines to categorise a complaint in terms differently from the Commission. In several earlier cases determined by the former tribunal the complaint considered by the tribunal is quite properly taken to include particulars not specifically raised in the original complaint or is taken to be based on grounds not articulated in the original complaint. The tribunal is not bound by the opinion of the Commission as to how the accepted complaint is described.4 However the complaint that is referred to the tribunal can only be the complaint accepted under section 141. [18] In this case the allegations sought to be included were in the original complaint and were rejected by the Commission. The tribunal will not 3 Mount Isa Mines Limited & ors v Hopper [1998] QSC 287 4 Wilson & McCollum v Lawson & Anor [2008] QADT 27 and McKenzie v Mackay & State of Queensland [2005] QADT 24 -- 4 of 7 -- allow an amendment to include in the complaint the allegations set out in points (c) to (e) of paragraph 7. [19] The allegation as set out in point (a) of paragraph 7 appears to be a fresh complaint and is without many identifying features. The employee who is alleged to have made the comment is not known nor is the date when the comments were allegedly made. Given the period of time, from 2007 to 1 February 2010, the incident may well have occurred more than one year prior to 15 April 2009 and may be out of time. [20] The respondent submits that the particulars of this incident are so vague that they cannot be responded to by the bank. Ms Aleksic’s complaint is only made against the bank. She is not seeking to add more respondents to this complaint. She alleges that the bank is vicariously liable for alleged contraventions of the Act by its employees. It would be very difficult for Ms Aleksic to prove this allegation and for the bank to respond effectively to the allegation as set out in point (a) of paragraph 7 when the identity of the employee is not disclosed and when the date of the incident is not known. [21] The tribunal will not allow an amendment to include this fresh allegation. Quite apart from any other basis that may be discussed later in these reasons, it would be a futile exercise to allow this allegation to be part of the case to be proven by Ms Aleksic and to be responded to by the bank. The allegation appears without substance when unaccompanied by identifying particulars. It would be embarrassing for Ms Aleksic to attempt to prove this allegation as it is presented in this application and it would be unduly prejudicial to the respondent to have to attempt to respond to an allegation so devoid of identifying features. [22] I will deal with the remaining allegation as set out in point (b) of paragraph 7 with the other allegations that Ms Aleksic is seeking to include by way of amendment into the complaint to be determined by the tribunal. Ms Aleksic seeks to include what appear to be fresh allegations of contraventions of the Act into her complaint. Most of these fresh allegations involve conduct that is alleged to have occurred after Ms Aleksic lodged her complaint with the Commission. [23] She submits that these allegations are part of a continuum of unlawful conduct for which the bank should be held accountable. She submits that it would be more convenient and cost effective for the tribunal to consider these fresh complaints at the same time as it considers the referred complaint. [24] The former tribunal has in earlier cases accepted such an argument and allowed amendments that include what are fresh complaints when there is a sufficient connection found to exist between the new allegations and the referred allegations. 5 It is clear that in appropriate circumstances that argument is compellingly attractive and amendment can be properly made. This is not such a case. 5 See discussion in McKenzie v Mackay & State of Queensland [2005] QADT 24 -- 5 of 7 -- [25] The tribunal rejects the submission that this case involves a continuum of conduct that should be viewed as a whole. That may have been the case if the complaint had been based on allegations of systematic contravention of the Act by the bank’s employees for which the bank was being held directly liable. However this case is presented on the basis that the bank is vicariously liable for the conduct of specified employees. It is not argued that the respective employees acted in concert or were even aware of the conduct alleged to have been undertaken by each other. [26] In the original complaint Ms Aleksic made about 30 separate allegations that were similar to the allegations sought to be included at this stage into her complaint to be determined by the tribunal. Most of the original allegations were out of time and rejected on that basis. However others were made within time but were not accepted by the Commission. [27] The reasons for rejection were not set out by the Commission but as there were no findings under section 139 of the Act, it can reasonably be assumed that the complaints were rejected as Ms Aleksic had not satisfied the Commission that there were sufficient particulars of contravention of the Act to meet the threshold in section 136(1). The same might ultimately be said about the fresh complaints. The tribunal does not have the capacity or the jurisdiction to conduct preliminary investigations into the complaints and that role properly is borne by the Commission under the Act. [28] Fresh allegations of contraventions of the Act must be made to the Commission, investigated and considered by the Commission for acceptance or rejection and if accepted as part of a valid complaint, taken to conciliation before those allegations can properly be referred to the tribunal under the scheme set out in the Act The tribunal is not convinced that there has been a case made out by Ms Aleksic to establish the ability of the tribunal to permit a departure from the statutory process in this case. [29] The tribunal refused the application made by Ms Aleksic to amend her complaint and dismissed her application. Ms Aleksic was legally represented through the Commission stage in 2009 and 2010 when she had the opportunity to raise fresh complaints but she did not do so. She cannot now raise these fresh allegations before the tribunal. Any such complaints should be made to the Commission. [30] Ms Aleksic also sought leave to be legally represented in this proceeding. The single incident which is the basis for the proceeding does not involve complex questions of fact or law. However Ms Aleksic has manifested difficulty in understanding the process through which her complaint has already passed and in understanding the tribunal’s processes. At a directions hearing earlier this year she told the tribunal that she understood the limitations on her complaint but still produced contentions that strayed far outside the scope of the referred complaint. She risked her complaint being dismissed by her inertia until she sought legal advice [31] The tribunal was satisfied that it was in the interests of justice that Ms Aleksic was legally represented throughout this tribunal proceeding. Once that position was reached, the tribunal considered that it was appropriate -- 6 of 7 -- that the respondent also have leave to be legally represented as this would ensure that the tribunal was provided with submissions throughout the proceeding which had the benefit of input from legal professionals. -- 7 of 7 --