Sacked director amends discrimination complaint

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Sacked director amends discrimination complaint

An employee who claimed she was discriminated against on the grounds of sex and caring responsibilities has been given permission to amend her claim.

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An employee who claimed she was discriminated against on the grounds of sex and caring responsibilities has been given permission to amend her claim.

The matter was heard in the NSW Civil and Administrative Tribunal.

Background

 
Sarah Goldsteen was director of nursing at The Cosmetic Institute, Bondi Junction (TCI).

In 2016 the business was downsized and surgery was outsourced to private hospitals. Staff were made redundant in June 2016. She went on unpaid maternity leave in November 2016.

Ms Goldsteen stated that:
  • before she went on maternity leave she was denied a redundancy and directed to do tasks not appropriate to her qualifications
  • the new role promised to her was filled by someone else as soon as she went on maternity leave
  • on her request to return to work she had been told the position of director of nursing was redundant however she had been refused payment of a redundancy or an alternative position in line with her qualifications, and
  • she had been denied flexible working arrangements (working from home) while other staff worked from home full time. 
The complaint covered the period September 2016 to 1 August 2017.
 
In July 2017 Ms Goldsteen complained to the Anti-Discrimination Board that TCI discriminated against her on grounds of carer’s responsibility and sex (pregnancy). She also sought to join Eabak Moini, a director of TCI, into the proceedings.

Original decision 

 
Principal member Britton accepted that Mr Moini was aware of the relevant decisions and as director had the power to prevent the allegedly discriminatory conduct. In the circumstances, he was subject to a duty of control or interference and by not acting he permitted the conduct, thus allowing the joinder.  
 
Principal member Britton criticised Ms Goldsteen's points of claim on numerous procedural grounds, as some conduct occurred outside the period of the complaint or focused on contraventions of the Fair Work Act rather than elements for discrimination. The issue then was the exercise of the tribunal’s jurisdiction to allow amendments to the complaint. 

Amended complaint 

 
Under s103 of the Anti-Discrimination Act, Ms Goldsteen sought to include conduct occurring from 24 July 2017 to 8 February 2018. The tribunal commented that the only qualification to the amendment power was that the additional allegation “was not included in the complaint as investigated”.  
 
The legislative intention was said to be avoidance of delay and potential duplication in lodging a fresh complaint involving the same parties or similar circumstances already before the tribunal. 
 
In allowing the application, the tribunal emphasised that the proposed amendments were:
  • connected to a course of conduct in the original complaint
  • occurred after the complaint was made, with relevant issues yet to be determined
  • was connected to a joinder application
  • did not hold any ground for declinature under the legislation, and 
  • would prevent possible duplication and associated time and costs. 

Evidence

 
Mr Moini submitted that many communications in the amended complaint were made leading up to a “without prejudice” conciliation. He said that without these communications, thought to be inadmissible, the applicant could not succeed.  
 
This contention (of inadmissible evidence) was thought to be a matter for the tribunal hearing the application, and not a basis to extinguish the matter at this interlocutory stage. Further, despite many allegations going towards the Fair Work Act, it was enough that there remained numerous pleadings that would contravene the Anti-Discrimination Act if proven.
 
Ultimately, in the interest of having all disputed matters properly addressed, and the possibility of avoiding a duplicated complaint, the amendment was granted.  
 
The bottom line: The tribunal will allow connected amendments if doing so will prevent new complaints. Further, supervisors must be careful to avoid being added to discrimination complaints for permitting conduct, especially as conciliation privilege may not be dealt with in interlocutory proceedings. 

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