NSW discrimination tribunal sticks to six-month time limit

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NSW discrimination tribunal sticks to six-month time limit

A Linfox employee has failed in his bid to have an alleged series of race discrimination incidents that happened over a two-year period considered as part of a claim lodged in June 2000. Under s 88 of the Anti-Discrimination Act (NSW) complaints must be lodged within six months of the alleged contravention.

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A Linfox employee has failed in his bid to have an alleged series of race discrimination incidents that happened over a two-year period considered as part of a claim lodged in June 2000. Under s 88 of the Anti-Discrimination Act (NSW) complaints must be lodged within six months of the alleged contravention.
 
The employee argued a 'contravention' of the act could include a series of discrete incidents that together formed a course of conduct. Providing the date of the last act occurred no more than six months before a complaint was lodged, he argued all the preceding incidents were also within time.
 
The NSW Administrative Decisions Tribunal, however, rejected this broad definition of a 'contravention'. It said the wording of the provision was clear. The relevant date for the purpose of s 88(3) was the date the contravention was alleged to have been committed. Where the contravention was ongoing, the relevant date/s for the purpose of s 88(3) were the date/s the contravention was alleged to have been committed.
 
Background
 
Linfox Transport (Aust) Pty Ltd applied under s 111(1) of the Anti-Discrimination Act 1977 (NSW) to have part of a complaint made by an employee dismissed on the grounds that it was out of time and, as a consequence, the tribunal lacked jurisdiction. The employee contended that the whole of the complaint was 'within time' and thus the jurisdictional issue did not arise.
 
The employee lodged his complaint in June 2000 claiming Linfox and its employees had subjected him to race discrimination. He also alleged that when he complained he was victimised by Linfox. Attached to the initiating complaint, were copies of three letters from the employee to Linfox which detailed allegations of race discrimination said to have occurred from April 1998 to May 2000. He lodged a second complaint in May 2001 and a third in June 2001.
 
Under s 88(3) complaints must be lodged with the President of the Anti-Discrimination Board within six months of the alleged contravention. Under s 88(4), the president has discretion to accept a complaint outside that period where good cause has been shown.
 
The parties agreed that the tribunal had jurisdiction to inquire into those matters referred to in the initiating complaint that occurred after December 1999 and all matters raised in the second and third complaints. What was in issue was the tribunal's jurisdiction to inquire into matters that were alleged to have occurred six months before the lodgment of the initiating complaint.
 
The employee argued a 'contravention' of the act could include a series of discrete incidents or events which together form a single series or course of conduct and that, providing the date of the last act occurred no more than six months before the lodgement of the complaint, all preceding events/incidents that formed part of that series of events were also within time. In this case the last incident occurred within this six-month period and consequently, the employee asserted all those incidents that occurred before December 1999 were also within time. Hence, he said, the whole of the initiating complaint was lodged in compliance with s 88. Linfox argued that the pre-December allegations were not a course of conduct, but rather discrete incidents, involving different people, separated by time.
 
Findings
 
The tribunal began by saying that great caution should be exercised before concluding that the events complained of could not possibly form a related series of events constituting a course of conduct. However, it rejected the employee's broad definition of a 'contravention'. It said the wording of the provision was clear. The relevant date for the purpose of s 88(3) was the date the contravention was alleged to have been committed. Where the contravention was ongoing, the relevant date/s for the purpose of s 88(3) were the date/s the contravention was alleged to have been committed.
 
'In our view it matters not whether the complaint consists of a continuous contravention or discrete acts which together form of a course of conduct. We see nothing in the wording of s 88, which supports the [employee's] contention that in respect of course of conduct contraventions the onlyrelevant date for determining when it was "alleged to have been committed" is the date of the 'last manifestation' of that conduct.'
 
The tribunal went on to say that while it did not share the employee's view that s 88(3) was ambiguous, he had correctly identified a real problem imposed by the statutory time limit in respect of ongoing complaints. 'As he points out, s 88, as drafted, means in effect that ongoing contraventions which extend beyond six months are outside the jurisdiction of the tribunal unless the president exercises his discretion under s 88(4) or a fresh complaint is lodged. (The later option is of course not available to a complainant who for whatever reason has tolerated ongoing discriminatory conduct for a period in excess of six months).'
 
It concluded it was not persuaded that s 88(3) should be applied differently in respect of continuous contraventions. Accordingly, it found that the allegations that fell outside the six-month limit did not fall within the scope of the tribunal's jurisdiction. However, it said, evidence about certain events outside the six-month limit might have probative value in, for example, explaining the context within which an event within jurisdiction took place.
 
See: Hatic v Linfox Transport (Australia) Pty Ltd[2003] NSWADT 43, (7 March 2003).
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