Northern Territory v Ferguson

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Kelly J
• Judgment Date: 03 May 2013
• Neutral Citation: [2013] NTSC 24
• Date: 03 May 2013
• Docket Number: FILE NO: 124 of 2012 (21244990)

[2013] NTSC 24

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Kelly J

FILE NO: 124 of 2012 (21244990)

Between:

Northern Territory of Australia

Plaintiff

and

Stephen Ferguson

First Defendant

and

Anti-Discrimination Commissioner of the Northern Territory

Second Defendant

Hofer v Anti-Discrimination Commission [2011] NTSC 20 , considered

Anti-Discrimination Act (NT) s 19, s 23, s 64, s 66, s 67, s 69(a), s 70, s 77

ADMINISTRATIVE LAW — Complaints — Anti-Discrimination Commission — Online complaint form — Complainant set out conduct complained of including threats t to kill — Complainant ticked “trade union membership” and “victimisation” — Notification of acceptance of complaint referred to “trade union membership” only — Whether one complaint or two — Whether complaint based on “victimisation” rejected — Held one complaint of prohibited conduct only said to contravene two provisions of the Anti-Discrimination Act — No evidence that the Anti-Discrimination Commission rejected part of complaint — Complaint accepted — Application refused

REASONS FOR JUDGMENT

1 In 2009 the first defendant, Stephen Ferguson, was employed by the plaintiff as a school teacher at Gapuwiyak Community Education Centre. At that time Mr Ferguson was the union representative at the school for the Australian Education Union.

The first complaint

2 On 30 August 2009 Mr Ferguson lodged a complaint with the Anti-Discrimination Commission (‘the Commission’) complaining that he had been subjected to discrimination and harassment from the assistant principal of Gapuwiyak Community Education Centre and the regional director of the Department because of his trade union activities (‘the first complaint’). The Commission accepted the first complaint pursuant to s 66 of theAnti-Discrimination Act (‘the Act’) and sent a letter to the plaintiff (and presumably the other respondents) on 30 September 2009 pursuant to s 70 of the Act notifying the plaintiff in writing of the substance of the complaint. No issue arises in this proceeding in relation to the first complaint.

The second complaint

3 On 26 February 2010 Mr Ferguson lodged a further complaint to the Commissioner under the Act (‘the second complaint’). The second complaint was lodged on an on-line form provided by the Commission which asks a number of questions and provides a list of choices for the complainant to select from. Question 3 on the form asks:

‘Question 3

Why do you think you were treated unfairly?

3a. Was it because of: (Please tick a box or boxes)

your race or ethnic origin

your sex

your age

your sexual preference or characteristics (sexuality)

your marital status (married, single, or defacto)

whether you have children or not (parenthood)

your impairment (disability)

you were breastfeeding

your trade union membership or non-membership1

your religious beliefs

your political beliefs

your medical or criminal records which are irrelevant to your situation

your pregnancy

your association with someone who has, or is believed to have, one of the above listed attributes

3b. We also look at complaints where the following things may have happened

you were sexually harassed

you were harassed because of your race, impairment, sexuality or parenthood etc.

you were asked questions about yourself which were unnecessary and upon discrimination might be based

you have a special need because of your race, sex, impairment, etc, and your special need was not catered for

you have been treated unfairly because you have a guide or assistance dog

someone has tried to help someone contravene the Anti-Discrimination Act

you were treated differently because you had put in a complaint to the Anti-Discrimination Commissioner or you were a witness for someone who put in a complaint to the Anti-Discrimination Commissioner.’

4 In answer to this question Mr Ferguson put a ‘Y’ beside ‘your trade union membership or non-membership’ under 3a. and a ‘Y’ against ‘you were treated differently because you had put in a complaint to the Anti-DiscriminationCommissioner or you were a witness for someone who put in a complaint to the Anti-Discrimination Commissioner’ under 3b.

5 Question 5 of the on-line form is as follows:

‘Question 5

It is important to show that you were treated unfairlybecause of an attribute you have ticked at questions 3a & 3b. Explain what happened and why you think the way you were treated was based on your attribute. (Unless you already explained this in question 5).’ (sic)

6 Mr Ferguson answered that question as follows:

‘Due to me submitting the current on-going case with your organisation, I was threatened by my Principal, Shirley (who has since been investigated by the Police, served with an Infringement Notice for using “threatening words in a public place towards your staff” and paid a fine for this). She threatened to ‘kill me, hang me from a tree and send her family to burn down my house because I had submitted 35 pages of lies about her already’ (referring to this case), while I was working in Gapuwiyak Community, due to me submitting this case. My Assistant Principal at that time, Lindall Watson (currently acting Principal at Gapuwiyak CEC), also linked me to this case by telling Shirley at the same time, in front of 2 other witnesses, that ‘Stephen had already put in that complaint about you and that she would help her get rid of me’. I strongly believe this to be a case of victimisation by both of these women due to my current submission to the Anti-Discrimination Commission, of which Shirley has had to answer questions relating to her conduct and my allegations of workplace discrimination due to my union activity at Gapuwiyak CEC while under her authority.’

7 The people complained about in this complaint were the plaintiff, the principal of Gapuwiyak CEC (Ms Shirley Nirrpuranydji) and the assistant principal (Ms Lindall Watson).

8 On 9 March 2010 the Commissioner's delegate wrote to Mr Ferguson stating:

‘I am writing to inform you that I have accepted your complaint of prohibited conduct, which was received by the Anti-Discrimination Commission (“ADC”) on 26 February 2012.’

9 The Commissioner's delegate sent a letter dated 10 March 2010 to the plaintiff (and similar letters to the other respondents) pursuant to s 70 of the Act, in the following terms, notifying the respondents that the complaint had been accepted:

‘I advise that the Anti-Discrimination Commission (“the ADC”) has received a complaint under the Anti-Discrimination Act (“the Act”) from Mr Stephen Ferguson. Mr Ferguson has made an allegation of victimisation, contrary to section 23 of the Act.

I formally accepted this complaint on 10 March 2010 in my role as delegate of the Anti-Discrimination Commissioner and must now proceed to investigate it.’

10 The full complaint was not enclosed with this letter, only an extract, namely the answer to question 5 set out above. The letter advised that the legal basis of the complaint was victimisation under s 23 of the Act because of the prior complaint. The letter did not mention that the complaint also asserted that the complainant had been treated unfairly because of his trade union membership or non-membership.

11 From the outset, the Department's response to the second complaint was entirely focused on trying to have it dismissed on technical grounds, rather than dealing with the substance of the complaint. TheDepartment's initial response to the second complaint was contained in an email from Ms Lee Rayner, the Director Legal Services of the Department of Education and Training, on 23 March 2010 in the following terms:

‘In relation to the victimisation complainant (sic) my only concern is with the time frame because the School Principal Shirley is presently not on duty. I am nearly 100% sure ofwhy she made the threats to Stephen (because she thought he had gone to the Union to complain about her borrowing money off people) and it had absolutely nothing with the complaint to the ADC (sic) however naturally I will have to verify that before I put it in writing officially to you. The victimisation complaint has no basis at all.’

12 Ms Rayner confirmed that understanding in her formal response to the second complaint (dated 15 April 2010) in the following terms:

‘Mr Ferguson is claiming that the reason that Ms Nirrpurranydji made threats against him was due to the fact that he had lodged a complaint with the Anti-Discrimination Commissioner (ADC). I can advise after checking with Ms Nirrpurranydji on two separate occasions that Ms Nirrpurranydji made the threats against Mr Ferguson for the following reasons:

1) Primarily because she believed that Stephen Ferguson had made a complaint to the Union about her borrowing money from staff at Gapuwiyak School.

2) Due to the intense pressure Ms Nirrpurranydji felt in dealing with Stephen Ferguson. He had already lodged a section 59 grievance against her under thePublic Sector Employment and Management Act. This had been internally investigated by two departmental staff and Ms Nirrpurraydji felt totally frustrated in dealing with Stephen Ferguson.

The belief on that day that he had gone to the Union to complain about her was the ‘straw that broke the camel's back’. It had absolutely nothing to do with the initial complaint to the ADC and to suggest that the threats were related to the ADC complaint is ridiculous.’

She concluded:

‘The Department of Education and Training (DET) denies that it has victimised Mr Ferguson as a consequence of his initial discrimination complaint. DET's position is that:

There is no basis for the complainant's allegation of victimisation.

Any assertion that is (sic) has victimised Mr Ferguson as a consequence of his initial complaint of discrimination is without foundation of fact and should be rejected; and

...