Thompson v Rail Corporation NSW [2008] NSWADT 329 (10 December 2008)

Last Updated: 17 December 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Thompson v Rail Corporation NSW [2008] NSWADT 329


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
Bruce Thompson

RESPONDENT
Rail Corporation NSW



FILE NUMBERS:
071138

HEARING DATES:
2 September 2008

SUBMISSIONS CLOSED:
2 September 2008



DATE OF DECISION:
10 December 2008

BEFORE:
Britton A - Deputy President





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED:
Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54
Chi v Technical and Further Education Commission [2007] NSWADT 98
CP ob HP v NSW Department of Education and Training [2008] NSWADT 281
Lucy v Commonwealth [1923] HCA 32; (1923) 33 CLR 229
Gregory v Philip Morris Ltd (1988) 80 ALR 455
Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Masters v Rail Corporation New South Wales [2007] NSWADT 45
McGowan v RailCorporation New South Wales [2006] NSWADT 220
New South Wales Teachers Federation v President, Anti-Discrimination Board & anor [2005] NSWADT 153
NZ v NSW Land and Housing Corporation [2006] NSWADT 126
Perera v Commissioner of Corrective Services [2007] NSWADT 115
Thompson v Rail Corporation New South Wales [2008] NSWADT 111
Wecker v University of Technology, Sydney [2005] NSWADT 232
West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240
Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer (EOD) [2008] NSWADTAP 24

TEXTS CITED:


APPLICATION:
Amendment of complaint
Interim order

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
K Eastman, barrister


ORDERS:
1. The application to amend Mr Thompson’s complaints is refused
2. The application for interim orders is refused
3. The matter is listed for a further case conference on 4 February 2009 at 2 pm.


Reasons for Decision:

REASONS FOR DECISION

1 These reasons address two applications made by former RailCorp employee, Mr Bruce Thompson. The first is an application to amend complaints lodged by Mr Thompson with the Anti-Discrimination Board in April and June 2007 and that have been referred to the Administrative Decisions Tribunal. The second is an application for orders reinstating Mr Thompson until such time as the Tribunal determines those complaints.

2 RailCorp opposes both applications.

Complaints before the Tribunal

3 First complaint

On 12 April 2007, Mr Thompson lodged the first of a number of complaints against RailCorp with the Anti-Discrimination Board (the First Complaint). Mr Thompson alleged discrimination on the ground of homosexuality and sexual harassment, spanning the period 2003 to April 2007. Specifically he alleged that:

(a) On 29 April 2006, graffiti appeared in a train guard’s compartment depicting an image of him next to the words, ‘Guard Lollipop’.

(b) On 22 June 2006, a group of RailCorp employees were ‘offensively gossiping’ and ‘salaciously joking’ about him at Redfern Station. He heard them say, ‘Ask him how you order a quarter pounder in French’.

(c) On 30 October 2006, graffiti containing homophobic comments directed at him, appeared in the Guard’s toilet at Central Station.

(d) On 28 November 2006, he was advised by a colleague, that graffiti directed at him containing homophobic comments was sighted in the driver’s cabin in Train Car 3935.

(e) RailCorp failed to take proper action when he complained about the above treatment.

4 Second complaint

On 20 June 2007, Mr Thompson lodged a further complaint alleging that he had been informed by a colleague that graffiti featuring comments such as, ‘I like to give blowjobs, Bruce Thompson’ had been sighted.

5 Third complaint

On 27 September 2007, Mr Thompson lodged a third complaint alleging victimisation under s 50 of the Act. He asserted that RailCorp victimised him after he had lodged his complaints by reducing his salary.

6 Referral to the Tribunal

The First and Second Complaints were referred to the Tribunal by the President by letter dated 19 December 2007. The President characterised both complaints as raising allegations of sexual harassment and discrimination on the ground of homosexuality in employment. The President declined to exercise his power to accept those allegations that fell outside the 12 month period immediately preceding the lodging of the complaints (s 89B(2)(b) of the Act). Accordingly the complaints referred to the Tribunal covered the period 12 April 2006 to 20 June 2007.

7 The President declined the Third complaint. Mr Thompson applied for leave for that complaint to proceed before the Tribunal under section 96 of the Act. Leave was refused: Thompson v Rail Corporation New South Wales [2008] NSWADT 111.

A. APPLICATION TO AMEND COMPLAINTS

Amendment sought by the Applicant

8 On 16 May 2008, Mr Thompson filed a number of documents including a 153-page document, headed ‘Statement of Applicant, Bruce Roger Thompson, Points of Claim and Damages’ (Points of Claim). RailCorp objected, arguing that the Points of Claim sought to raise matters outside the scope of the referred complaints. Subsequently Mr Thompson applied to amend his complaints and on 18 June 2008 filed a document setting out the amendments sought.

9 At hearing on 2 September 2008, Mr Thompson announced that he no longer relied on the 18 June 2008 document but on a document headed ‘Outline of Applicant’s submissions - Reply to the Respondent’, dated 2 September 2008 (the Amendment Application). The Amendment Application contained the following proposed amendments:

New allegations of discrimination on the ground of homosexuality including incidents, which post dated the period of the Second Complaint;

A new claim of race discrimination;

A new claim of racial vilification;

A new claim of disability discrimination;

A new claim of sex discrimination;

A new claim of victimisation;

A new claim of homosexual vilification.

Tribunal’s power to amend a complaint

10 The Tribunal’s power to amend a complaint is contained in s 103 of the Anti-Discrimination Act 1977 (the Act) which provides:

103 Tribunal may amend complaint

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.

11 The operation of s 103 has been considered in Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54; Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer (EOD) [2008] NSWADTAP 24; West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240; Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174; Perera v Commissioner of Corrective Services [2007] NSWADT 115.

12 In Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer, an Appeal Panel endorsed the broad approach taken in Chand v Rail Corporation of New South to the operation of s 103, citing with approval the following passage:

37. The ordinary grammatical meaning of section 103(2) is that the Tribunal may amend the complaint either by adding complaints or by adding anything else, such as further allegations. The only qualification to the amendment power is that the additional complaint or other matter "was not included in the complaint as investigated by the President." Contrary to the Tribunal’s decision, there is no implied qualification that the additional complaint or other matter occurred during the period of the complaint as investigated by the President.

38. There is no extrinsic material which sheds light on the rationale for section 103, but the intention of the legislature was to avoid the delay and potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances, is already before the Tribunal. The most likely source of additional complaints will be complaints that arise after the matter has been referred, but section 103 does not confine amendments to complaints of that kind. Relevant considerations when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred. Contrary to the Tribunal’s conclusion, the fact that the complaint did not occur within the period as investigated by the President, does not prevent it being added.

13 The Act does not stipulate the matters the Tribunal should take into account when exercising its power to amend a complaint. The factors to be taken into account will vary from case to case and the weighting to be given to each a matter for the Tribunal. In addition to those factors listed in Chand, the following factors may be relevant:

Whether the proposed amendment falls within one of the grounds for declinature available to the President (section 89B(2) and section 92(1)(a)).

Whether the proposed amendment is futile because it seeks to pursue claims that are untenable.

Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs.

Whether the proposed amendment raises any issue of joinder.

Whether the allegations contained in the proposed amendment forms part of a complaint lodged with the President that has yet to be determined or referred.

Whether if refused/granted, any party might be prejudiced.

Whether the party making the application is in default of previous orders.

Approach to Amendment Application

14 In written submissions Counsel for RailCorp, Ms Eastman, contended that many of the proposed amendments contained in Mr Thompson’s original amendment application were undated, not particularised and largely incomprehensible. She pointed out that a number of incidents were ‘pleaded’ as race, disability and homosexuality discrimination and victimisation.

15 While the Amendment Application clarified a number of Mr Thompson’s claims, many remained unclear. At the hearing on 2 September 2008, Mr Thompson was given the opportunity to clarify the proposed amendments and cross-reference each allegation to the relevant part of Points of Claim.

16 The statutory framework in which the Equal Opportunity Division of the ADT operates must be taken into account in dealing with Mr Thompson’s application. There is no statutory provision, rule or Practice Note that requires the party seeking to amend a complaint to outline the amendments sought in a particular form, unless directed by the Tribunal to do so. Section 73(3) of the Administrative Decisions Tribunal Act 1997 requires the Tribunal to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. In short, the Tribunal must not allow form to trump substance. In addition, the Tribunal must take such measures as are reasonably practicable to ensure that all parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered: section 73(4)(c).

17 The above makes clear that an overly strict and technical approach to the proposed amendments is to be avoided. Nonetheless it must be possible to discern with some precision the subject matter of the claim that forms part of the proposed amendment. Adopting that approach, leave to amend will be refused where, after careful consideration, I have been unable to identify to what matters a particular claim relates.

Proposed Amendment 1: Sexual harassment

18 Proposed Amendment 1 alleges sexual harassment under section 22 B of the Act in respect of five separate incidents (Amendment Application at [7.1]):

Graffiti incident 24 May 2006

Graffiti incident 30 October 2006

Graffiti incident 28 November 2006

Graffiti incident 20 June 2007

Gossiping about the Applicant by inspectors in June 2006

19 It is common ground that with the exception of the first incident, all are contained in the complaints that have been referred to the Tribunal and therefore amendment of the complaint is not required.

20 Graffiti incident 24 May 2006

Mr Thompson asserts that the May 2006 incident already forms part of the First Complaint. RailCorp disagrees. Mr Thompson could not point to any mention of that incident in either complaint.

21 In the First Complaint Mr Thompson alleged that on 29 April 2006, graffiti appeared in the train guard’s compartment carrying an image of him next to the words, ‘Guard Lollipop’. In oral submissions he explained that the reference in the Amendment Application to the ‘Graffiti incident –24 May 2006’ was a reference to the Points of Claim, ‘Discriminatory Graffiti – "Guard Lollipop" First Reported to Shelly Wall on 24 May 2006’ (Points of Claim paragraphs 9.12 to 9.24). The Points of Claim allege that on 24 May 2006 Mr Thompson informed RailCorp Manager, Ms Wall, of the existence of the ‘Guard Lollipop’ graffiti but took no action.

22 As best I can make out, the ‘Graffiti incident 24 May 2006’ is simply an allegation that RailCorp failed to act when notified of the 29 April 2006 incident. If, Mr Thompson is seeking to amend the complaint to include a claim that RailCorp is liable for the ‘Guard Lollipop’ graffiti, this is unnecessary as this is covered by the original complaints. Accepting Mr Thompson’s evidence at its highest, that incident could not be said to constitute sexual harassment.

23 For these reasons leave to amend the complaint to include an allegation of sex harassment in respect of the alleged ‘Graffiti incident 24 May 2006’ is refused.

Proposed Amendment 2: Discrimination on the ground of homosexuality

24 Mr Thompson seeks leave to amend his complaints by adding five incidents each of which he alleges constitutes discrimination on the ground of homosexuality. All but one, ‘Mark Irving’s behaviour at TCAC [Train Crew Assignment Centre’ (paragraph 7.2.5 of the Amendment Application), are identical to the incidents contained in Proposed Amendment 1.

25 RailCorp concedes that there is no need to amend the complaints to include the alleged 30 October 2006, 28 November 2006 and 20 June 2007 Graffiti Incidents as all are contained in the complaints that have been referred to the Tribunal.

26 24 May 2006 graffiti incident

The reasons given above in respect of the 24 May 2006 graffiti incident apply equally to this proposed amendment and accordingly leave is refused.

27 Mark Irving’s behaviour at TCAC

Mr Thompson alleges that RailCorp manager, Mr Irving victimised him because he made a complaint alleging that some colleagues had discriminated against him on the ground of homosexuality. It is not claimed or inferred that Mr Irving acted to Mr Thompson’s detriment ‘on the grounds of’ homosexuality. In my view, cast as an allegation of discrimination on the ground of homosexuality, the proposed amendment is misconceived.

28 For these reasons I have decided not to amend the complaint to include the Mark Irving and the 24 May 2006 graffiti incident allegations. As noted no amendment is required in respect to the balance of Proposed Amendment 2 as it concerns allegations contained in the complaints that have been referred to the Tribunal.

Proposed Amendment 3: Discrimination on the ground of race

29 Mr Thompson seeks leave to amend his complaints by adding five claims which he alleges each constitute discrimination on the ground of race (paragraph 7.3 of the Amendment Application):

Graffiti Incident 30 October 2006

Graffiti Incident 28 November 2006

Graffiti Incident 20 June 2007

Gossiping about the Applicant by inspectors in June 2006

Email from John Eaves and Allan Dowman, June 2006.

30 As noted, the three graffiti allegations were the subject of the initiating sexual harassment complaints and have been referred by the President. The President did not characterise any of the allegations contained in the complaints as allegations of race discrimination.

31 Graffiti Incidents

Having read what I understand to be the relevant parts of the Points of Claim, together with the initiating complaints, it is not apparent to me how the graffiti incidents referred to above could be said to have a racial character. In his initiating complaints Mr Thompson described the graffiti as ‘homophobic in character’. The only reference to race in the initiating complaints appears to be to the 30 October 2006 incident (President’s report, pp 40-41). Mr Thompson alleged that on that day, graffiti was sighted in the Guard’s toilet at Central station which contained an offensive drawing of him and various homophobic comments: ‘Gay Sydney guard’, ‘the poofter freak’ etc. Mr Thompson also claimed that ‘an offensive comment relating to my race was obliterated by the OSMs [Operations Standards Managers] and I am yet to be told what this comment read’ (President’s report, p 39). He further alleges that a colleague told him that she had seen the word ‘Nazi’ written next to the graffiti. (Points of Claim, paragraph 9.445.107)

32 It is not clear to me and nor had it been explained the basis on which it could be maintained that the word ‘Nazi’ in the context of the 30 October 2006 graffiti could be said to constitute discrimination on the ground of Mr Thompson’s race, which he identifies in the Points of Claim as ‘Jewish/French’ and ‘Jewish’.

33 The claim in my view is untenable.

34 Gossiping about Mr Thompson by inspectors in June 2006

As I understand it this allegation is contained in the President’s report, p 38. Mr Thompson alleges that he overheard a group of OSMs ‘offensively gossiping’ about him at Redfern Station. He alleges that he overheard the group ‘salaciously joking’ and one member say, ‘Ask him how you order a quarter pounder in French!’ The basis on which this allegation could be said to constitute an allegation of race discrimination is unclear and has not been explained.

35 Email from John Eaves and Allan Dowman, June 2006

As I understand it, this incident relates to a reference to the words ‘Jewish dependency’ in an email to Mr Dowman, which RailCorp contends was a typographical error and was intended to read ‘Jewish descendancy’. I accept RailCorp’s submission that this claim is untenable.

36 For these reasons I have decided not to amend the complaints to include the allegations set out in Proposed Amendment 3.

Proposed Amendment 4: Discrimination on the ground of disability

37 Paragraph 7.4 of the Amendment Application lists 12 discrete incidents that Mr Thompson contends constitute acts of discrimination on the ground of disability. It would appear that all incidents are contained in the 11 complaints lodged with the President in April 2008. A number post date the period covered by the First and Second Complaints.

38 Mr Thompson argues that leave should be granted to amend his complaints so that all complaints can be determined at the same time. He argues that it would be unfair if he was forced to wait until the investigation by the President is concluded.

39 RailCorp contends that if the complaints were amended to include these allegations the function of the President would be undermined and that the Tribunal’s power to amend a complaint should not inadvertently or otherwise, be used for that purpose.

40 To put the respective submissions made by the parties in context it is useful to examine the role of the President. Part 9, Division 2 of the Act sets out the function of the President in relation to complaints. Once a complaint is lodged the President must decide whether to accept or decline it, in whole or in part (section 89B(1)). The President may decline the complaint for any of the grounds set out in section 89B(2). A declinature decision made by the President is not reviewable by the Tribunal (section 89B(4)).

41 Having accepted the complaint, in part or whole, the President is required to conduct an investigation (section 90). If at any stage during that investigation the President is satisfied that one or more of the grounds listed at section 92(1)(a) is made out s/he may decline the complaint.

42 Where a complaint is not declined, terminated or otherwise resolved within 18 months of lodgement the complainant may request that it be referred to the Tribunal (section 93A). In certain circumstances the President may refer the complaint to the Tribunal on his/her own motion (sections 90B(5) and 93C). Once referred a complaint has the status of an application for an ‘original decision’ under the Administrative Decisions Tribunal Act 1997 (section 95(3) of the Act).

43 The President performs what the NSW Law Reform Commission has described as a ‘screening role’ (NSW Law Reform Commission, ‘Review of the Anti-Discrimination Act 1977 (NSW) Report 92, Volume 2, p 586). Subject to section 103, unless a complaint is referred by the President (or the Minister), the Tribunal has no power to determine an allegation of a contravention of the Act.

44 Conclusions

There is nothing in the wording of section 103 to suggest that the Tribunal’s power to amend a complaint cannot be exercised where the allegations that are the subject of the proposed amendment are also contained in a complaint that has been lodged with the President but has not been resolved, declined, terminated or referred to the Tribunal (For convenience I will refer to this class of complaint as a ‘pending complaint’.) Nor has this been suggested by RailCorp.

45 In my view, as a general rule the Tribunal should exercise caution in exercising its power under section 103 where the proposed amendment relates to a matter or claim that forms part of a pending complaint. Exercise of this power by the Tribunal could, among other things, deprive the parties and the Tribunal of the benefit of the complaint being screened and investigated by the President. There will however be circumstances where the interests of justice would favour the exercise of the power under section 103 to include a pending complaint. These might include where:

The allegation(s) contained in the pending complaint are closely linked to the subject matter of the complaint(s) referred to the Tribunal.

The factual allegation(s) raised in the pending complaint are narrow in scope.

There has been a delay in the investigation of the pending complaint(s).

A decision to refuse leave might result in duplication of proceedings and significant additional costs.

The balance of convenience favours the amendment.

46 Proposed Amendment 4 seeks to include for the first time allegations of discrimination on the ground of disability. It is extremely broad in scope. It encompasses 12 separate incidents. Some fall outside the period covered by the referred complaints. Given the breadth of these allegations in my view the Tribunal and the parties would in my view be assisted by the President screening the complaints. This is not a case where the interests of containing costs and the speedy resolution of the original complaint/s might favour the exercise of the power to amend.

47 For these reasons I have decided not to exercise the power to amend the complaint in respect of Proposed Amendment 4.

Proposed Amendment 5: Discrimination on the ground of sex

48 This amendment is described at paragraph 7.5 of the Amendment Application in the following terms: ‘Kimberley Hunt, as a woman, offered $100 K plus to leave RailCorp’. (See also Points of Claim, paragraph 9.907.)

49 As I understand this claim, Mr Thompson contends that he has been discriminated against on the basis of sex as RailCorp refused to offer him a settlement to drop ‘workplace proceedings’ comparable to that allegedly offered to former RailCorp employee, Kimberly Hunt. The claim is based on a newspaper article, which reported that Ms Hunt was offered $100,000 to leave RailCorp.

50 Even if the newspaper report relied on by Mr Thompson is accurate, on the material before me it is not clear on what basis it could be contended that the complaint could be substantiated. There is no evidence or material capable of being converted into evidence that would support a finding of less favourable treatment or causation.

51 For these reasons I have decided not to exercise the power to amend the complaint to include this claim.

Proposed Amendment 6: Racial vilification

52 Mr Thompson seeks leave to amend his complaints by adding a new complaint of racial vilification based on the following alleged incidents:

Graffiti Incident 30 October 2006

Star of David graffiti at Flemington Car Sheds

Bombing of Lebanon and Gaza poster

Gossiping about the Applicant by inspectors in June 2006

53 Section 20C of the Act makes it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

54 To succeed in a complaint of racial vilification Mr Thompson must establish on balance that a person or persons committed:

a public act which, incites, or is capable of inciting, hatred towards, serious contempt for or severe ridicule of a person or group of persons on the ground of his race, which he identifies as French Jewish and Jewish.

55 Graffiti Incident 30 October 2006

This incident is described at [31] of these reasons. To succeed in this claim, Mr Thompson must establish that the word ‘Nazi’ in the context of the 30 October graffiti did incite, or had the capacity to incite, hatred towards, serious contempt for or severe ridicule of him on the ground of his race, French-Jewish/Jewish or a group of persons whose race is French-Jewish/Jewish.

56 There is no evidence that the offending word in the context in which it appeared did incite hatred towards, serious contempt for or severe ridicule of Mr Thompson or a group of persons of his race. Nor has it been explained how the offending word in the context in which it was alleged to have appeared would have the capacity to incite hatred etc.

57 The claim in my view is untenable.

58 Star of David graffiti

As I understand it, this allegation relates to graffiti appearing in Flemington Car sheds in January 2004 depicting Mr Thompson next to images of a Swastika and a Star of David.

59 By decision dated 18 April 2007, the President declined to exercise his power to accept those allegations that fell outside the 12 month period immediately preceding the lodging of the complaint on 12 April 2006. The Tribunal has no power to alter that decision: section 89B(4) of the Act. The Tribunal (differently constituted) in New South Wales Teachers Federation v President, Anti-Discrimination Board & anor [2005] NSWADT 153 and Chi v Technical and Further Education Commission [2007] NSWADT 98 decided that section 103 must be read as subject to section 89(4). In short, section 103 cannot be used to review a decision of the President made under section 89B(2).

60 In this case the President’s decision concerned allegations of sexual harassment and discrimination on the ground of homosexuality. The Star of David graffiti allegation is an allegation of racial vilification and did not form part of the original complaints. Accordingly the declinature decision does not encompass that allegation and section 89(4) has no application and the complaints can be amended to include the Star of David allegation. The issue to be determined is whether in the circumstances of this case that power should be exercised. Here there is no apparent nexus between the Star of David allegation and those contained in the complaints referred. Given among other things, the passage of time since the alleged incident I have decided not to exercise my power to amend the complaint to include this allegation.

61 Bombing of Lebanon and Gaza poster

I understand this to be a reference to the posters allegedly displayed in and around Central Station in July 2006 that Mr Thompson believed were put up by members of the Rail Tram and Bus Union NSW (RTBU); the union representing RailCorp employees. The offending posters urged union members to join a public rally to protest against the ‘Bombing of Lebanon and Gaza’. According to Mr Thompson this poster was ‘very anti-Semitic’.

62 There is no apparent nexus between the offending poster and the allegations contained in the complaints that have been referred by the President. Nor is there is evidence that the poster did incite hatred etc. It has not been explained how the poster had the capacity to incite hatred towards etc., Mr Thompson or a group of persons of his race on the ground of his/their race. It may be, as I understand Mr Thompson to believe, that anti-Semitic remarks were made at the rally advertised by the poster, but to succeed in his claim Mr Thompson must establish that the relevant public act namely the poster, did incite etc or had the capacity to do so.

63 For these reasons I have decided not to amend the complaints to include this allegation.

64 Gossiping about the Applicant

This is the allegation described in par. [34] of these reasons.

65 Like the poster incident there is no evidence that the alleged remarks incited hatred towards etc., or had the capacity to do so. I have therefore decided not to amend the complaints to include this allegation.

66 Nazi Key ring incident

Mr Thompson alleges that in June 2006 a colleague told him what he characterised as an ‘anti-Semitic joke’. The colleague is alleged to have been wearing a ‘Nazi Swastika insignia key ring’. This incident according to Mr Thompson confirmed ‘the existence of an anti-Semitic culture at RailCorp’.

67 For the purpose of these reasons I proceed on the basis that the offending conduct namely the wearing of the ring and the joke could be characterised as a ‘public act’, for the purpose of section 20 B of the Act.

68 This incident fell within the period of the complaint. There is no apparent nexus between it and the allegations contained in the complaints referred. There is no evidence that the ring incident incited hatred towards etc. Nor has it been explained how the capacity to do so. Therefore I have decided not to amend the complaints to include this allegation.

69 Summary

For these reasons I have decided not to exercise the power to amend the complaints to include Proposed Amendment 6.

Proposed Amendment 7: Homosexual Vilification

70 Mr Thompson seeks leave to amend his complaint to include allegations of homosexual vilification. The incidents relied on are identical to those on which the claim for sexual harassment are based.

71 The claim in my view suffers from a fundamental defect. Section 49 ZT(1) makes it unlawful for a person, by a public act, to incite hatred towards etc. a person or group of persons on the ground of homosexuality. While Mr Thompson maintains that (unknown) RailCorp employees were responsible for the graffiti he concedes that the authors cannot be identified. He also concedes that he is unable to identify the persons whom he alleged had been gossiping about him (see Amendment Application 7.7.5). Without identification of the person/s alleged to have committed the offending public act, the allegation cannot succeed and accordingly the proposed amendment is futile.

72 For these reasons I have decided not to exercise the power to amend the complaints to include Proposed Amendment 7.

Proposed Amendment 8: Victimisation

73 Mr Thompson seeks leave to amend his complaints by adding a new complaint of victimisation. He relies on 15 separate incidents. They are largely the same as those contained in Proposed Amendment 4 (allegations of disability discrimination). As best as I can make out, the alleged incidents are contained in either the victimisation complaints that were the subject of an unsuccessful leave application to the Tribunal (Thompson v Rail Corporation New South Wales [2008] NSWADT 111) or, are contained in one of the 11 pending complaints yet to be determined by the President.

74 In my view it would not be appropriate to revisit the earlier decision of the Tribunal referred to above. Nor, for the reasons given in relation to Proposed Amendment 4, should the power to amend the complaint, to include a pending complaint, be exercised in the circumstances of this case.

B. INTERIM ORDER APPLICATION

75 Mr Thompson applies for an interim order under section 105 of the Act reinstating him until such time as the complaints that have been referred to the Tribunal and any pending complaint are determined.

76 That application is opposed.

Background to decision

77 It is necessary to sketch in the background to the decision to terminate Mr Thompson’s employment.

78 On 17 March 2008, Mr Thompson attended a meeting with his supervisor Ken Cook and Injury Management Supervisor, Natasha De Bellis where he is alleged to have said words to the effect:

I sometimes look in the knife in my drawer and wonder why I shouldn’t stick it in Vince Graham [RailCorp, Chief Executive Officer].

In my paranoid state I may not be able to control myself.

79 After that meeting Mr Thompson was stood down.

80 On 27 May 2008 Mr Thompson was advised that RailCorp was considering terminating his employment on medical grounds. At a meeting on 3 June 2008 with RailCorp managers and Dr Armand Casolin, Mr Thompson was provided with a copy of RailCorp’s ‘Termination on Medical Advice’ policy and told he would be provided with an opportunity to identify any alternatives to termination.

81 By letter dated 25 August 2008, John Counter, RailCorp General Manager, Human Resources, advised Mr Thompson that it had been decided to terminate his employment on medical grounds. He gave this reason for that decision:

RailCorp is satisfied on the basis of the available medical reports and the advice of Dr Casolin that there is no option for you to return to your substantive position in Communication and Marketing, for the position to be modified, or for you to be redeployed in another part of the organisation for the reasons set out above. Further, as there are no unilateral transfer provisions available to RailCorp, a direct transfer such as those you suggest in the correspondence listed noted above is not an alternative to medical termination.

Tribunal’s power to make an interim order

82 Section 105 of the Act provides:

105 Interim orders

(1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order:

(a) to preserve the status quo between the parties to the complaint, or

(b) to preserve the rights of the parties to the complaint, or

(c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred,

pending determination of the matter the subject of the complaint.

(2) Section 89 of the Administrative Decisions Tribunal Act 1997 applies to an interim order of the Tribunal in the same way as it applies to an original decision of the Tribunal.

83 The operation of this provision has been considered in McGowan v RailCorporation, New South Wales [2006] NSWADT 220; CP ob HP v NSW Department of Education and Training [2008] NSWADT 281; NZ v NSW Land and Housing Corporation [2006] NSWADT 126; Wecker v University of Technology, Sydney [2005] NSWADT 232; Masters v Rail Corporation New South Wales [2007] NSWADT 45.

84 The above decisions have broadly adopted the principles that have been developed in other contexts for the granting of interlocutory orders. While those principles provide useful guidance about the factors to be taken into account in exercising the power conferred by section 105, in my view a cautious approach should be taken to importing equitable doctrine into that provision. The Act provides no express guidance on the factors to take into account in exercising the power. The power conferred by section 105 is unfettered and the factors to be taken into account and the weight to be afforded to each will vary from case to case. The only precondition is that the status quo or rights of the complainant are threatened, or the circumstances of the parties that existed before the relevant alleged contravention of the Act have changed.

Arguments in support of application

85 Mr Thompson argues that the application should be granted as he does not pose a risk to Mr Graham or any RailCorp employee. He submits that he is fit to return to the positions of rail guard or marketing manager. He contends that had manager, Ken Cook, known him better he would have realised that he had no intention of harming Mr Graham or anyone else at the March meeting and he often said similar things when under extreme stress. He contends that Ms De Bellis who also attended the meeting, knew this and for that reason was not troubled by his comments. He asserts that if he were to return to RailCorp he would be able to conduct himself in an appropriate and professional manner. He rejects the argument put for RailCorp that the employment relationship has broken down.

Can an order be made?

86 Before an order can be made under section 105 it must be established the order is necessary to give effect to paragraph (a), (b) or (c) of section 105(1).

87 To enliven paragraph (c) it needs to be established that the circumstances of the parties that existed before the contravention of the Act, alleged in the complaint, have changed. There is no requirement that the alleged contravention relate to the changed circumstances. Accordingly an order could be made to return Mr Thompson to the position he was in before the initiating complaints were made notwithstanding that he has not complained to the Board about the termination of his employment.

88 Equally in my view it would be open to the Tribunal to make an order to ‘preserve the rights’ of Mr Thompson under section 105(1)(b).

Should an order be made under section 105?

89 In deciding whether to exercise the power under section 105 of the Act the well-known test set out by Mason CJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 provides useful guidance:

[I]n order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

90 If the order sought by Mr Thompson is not granted he will suffer irreparable damage in the sense that damages will not be an adequate remedy, especially given the statutory cap on damages that can be awarded in this jurisdiction.

91 The key question in my view raised by this application is whether Mr Thompson would face greater prejudice if refused an interim order than RailCorp would if the order was granted (the balance of convenience). Critical to this issue is whether the ‘trust and confidence’ or the relationship between the parties has broken down: Lucy v Commonwealth [1923] HCA 32; (1923) 33 CLR 229, 237, Gregory v Philip Morris Ltd (1988) 80 ALR 455 and Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, 428. If it has, then it would seem that RailCorp would face the greater prejudice if Mr Thompson were to be reinstated, albeit on an interim basis.

92 Relevant to this issue is whether Mr Thompson said the words at the meeting on 17 March 2008 that have been attributed to him. In submissions, he denied doing so but went on to state that had Mr Cook ‘known him better’ he would have realised that he had no intention to act on that threat, and indeed it was not uncommon for him to make outbursts of that type when he became anxious as a result of RailCorp’s action or inaction.

93 There is no evidence that Mr Thompson took steps to challenge the allegation that he used the offending words. The report of treating psychologist, Ms Julie Catt, indicates that Mr Thompson told her that he had used those words. (See report prepared by Ms Catt, 13 June 2008, p 1). The only ‘evidence’ that might support a finding that the words were not used was the unsupported and subsequently contradicted claim made by Mr Thompson in these proceedings. On the evidence before me I am satisfied that the offending words were used.

94 As Mr Thompson correctly points out there are competing medical opinions about whether he poses a risk to other employees. Consultant psychiatrist, Kipling Walker believes that he does and that the risk is both unacceptable and ongoing (report prepared by Dr Walker, 5 May 2008). His treating psychologist, Julie Catt disagrees and believes Mr Thompson does not pose a physical or psychological threat to those around him. She acknowledges however that when faced with ‘an anxiety-provoking situation, or in situations when he faces an anxiety provoking situation... he tends to express himself in a highly vociferous and dramatised manner’ (report prepared by Ms Julie Catt, 13 June 2008). Mr Thompson’s treating psychiatrist, Dr Selwyn Smith, shares that view. He believes that Mr Thompson would not represent a risk to other employees if he were to undertake work in marketing (but not as a rail guard). He acknowledges however that Mr Thompson ‘emotionally decompensates particularly when he is focussed upon as recently occurred in a formal meeting’ (report prepared by Dr Selwyn Smith, 6 June 2008).

95 Whether Mr Thompson poses a risk to Mr Graham or other RailCorp employees is, in my view, not determinative. The real issue is whether there is a risk that the conduct, that is the use of the offending words, might be repeated. There can be no argument that the statement: ‘I sometimes look in the knife in my drawer and wonder why I shouldn’t stick it in Vince Graham’ is most serious in nature. It is difficult to see how the ‘trust and confidence’ of the employment relationship could be restored after those words have been used especially if there was a risk that they or similar words might be repeated.

96 While the experts whose opinions are before me have reached different conclusions about the aetiology of Mr Thompson’s medical condition, none claim that there has been any material improvement since March of this year. His treating psychiatrist concedes that when faced with stress Mr Thompson ‘emotionally decompensates’.

97 There is no evidence to suggest that Mr Thompson recognises the seriousness of his conduct. He has taken no steps to withdraw the offending remarks or apologise to the CEO.

98 It may be that the nature of Mr Thompson’s medical condition is such that he was unable to control his emotions, which led him to use the intemperate words. It might also be that because of his medical condition he lacks the necessary insight to recognise that his conduct was unacceptable. Whatever the explanation, the evidence indicates that the relationship between Mr Thompson and his employer has been seriously damaged and for the foreseeable future cannot be restored. In those circumstances RailCorp in my view would face the greater prejudice if Mr Thompson were to be reinstated albeit on an interim basis.

99 For these reasons I have decided not to exercise the power to grant the orders sought by Mr Thompson.

Orders

1. The application to amend Mr Thompson’s complaints is refused

2. The application for interim orders is refused.