Singh v State of Queensland[2015] QCAT 318

APPEARANCES and REPRESENTATION (if any):

REASONS FOR DECISION

1. [1]
   The Anti-Discrimination Commissioner Queensland has referred a complaint that the respondents have breached the Anti-Discrimination Act 1991 to QCAT.  The Tribunal must accept the complaint unless the complaint was made to the commissioner more than one year after the alleged contravention of the Act.^[1]  All but one of the events that are alleged to amount to a contravention of the Act occurred more than one year before Mr Singh made his complaint to the commissioner.  The Tribunal may deal with the complaint if the Tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so.^[2]  The former Tribunal had interpreted the power in the Act as allowing part of a complaint to be dealt with while disallowing some alleged contraventions of the Act that had been referred to the Tribunal but which fell outside time limit.^[3]   
2. [2]
   The parties were directed to file submissions in the Tribunal to assist the Tribunal to make a decision as to whether those parts of the referred complaint that are based on actions that occurred more than one year before Mr Singh made his complaint to the commissioner should be accepted and determined by the Tribunal.  The parties have filed their submissions. 
3. [3]
   The referral from the commissioner reveals that the relevant date when the commissioner received the complaint form was 14 May 2014. It was not explicit from the referral documents whether this was the date when the commissioner regarded that the complaint had been made to him. The referral documents also included a subsequent letter from Mr Singh’s lawyers dated 12 June 2014 that provided further information forming part of the complaint. There was evidence in the referral documents that a delegate of the commissioner had advised one of the respondents that the threshold information concerning the allegations was not provided until 14 June 2014.^[4]  I will proceed in these reasons on the basis that the relevant date when the complaint was made to the commissioner was in fact 14 June 2014.
4. [4]
   The complaint made by Mr Singh comprised of some 102 incidents of racially motivated comments allegedly made by Mr Kingsley to Mr Singh between 25 February 2009 and 26 June 2013.   
5. [5]
   Mr Singh submitted that the sustained pattern of discrimination had a cumulative effect on him between 2009 and 2013, and indeed even after 2013. He submitted that the effect on him caused him to determine that his best choice was not to complain while he was working with Mr Kingsley. He identified that psychological effect as similar to that frequently demonstrated in the “Battered Spouse Syndrome”.  
6. [6]
   In support of that submission, Mr Singh stated that he had been conditioned to normalise the discriminatory workplace behaviour and to suppress the effects in all other aspects of his life.  He submitted that it was not until he consulted a psychologist in 2014 that he came to realise the depression he was experiencing was the result of workplace discrimination and that that discrimination was not normal in a workplace.
7. [7]
   He further submitted that he then consulted a solicitor and explored what was, and what was not, normal in workplace practices.  He submitted that with the support of his psychologist and solicitor he was able to document and catalogue his experiences and it took him time to process what had happened to him as he had systemically been burying and denying the problem for many years. 
8. [8]
   Mr Singh submitted that due to the suppression of the effects of the discrimination on him, he believes that he would not have been able to make a complaint while he was in the employment of the Queensland Police Service as he expected that making a complaint would make his working life even more difficult. 
9. [9]
   The representatives of the first respondent submitted that the comparison of Mr Singh’s position with a person identified as a “battered spouse” is baseless.   It was submitted that the battered spouse syndrome concept is limited to use as a defence in criminal cases where an abusive relationship has existed for many years in the context of a sexual relationship between the offender and victim.  It was submitted that an employer-employee relationship is different from the type of relationships where the psychological impacts relied on in “battered spouse syndrome” cases are to be found.
10. [10]
    Unlike spouses trapped within an abusive relationship, the first respondent submitted that Mr Singh was at liberty to seek other employment for any reason and that he was not prevented from exploring the range of options available to public servants such as seeking a transfer within the agency or secondment to other positions within the public service.  I find the submissions of the first respondent in response to the battered spouse argument to be compelling and I accept them.  A comparison of the position of Mr Singh in his workplace with that of a battered spouse in an abusive relationship is misguided and unconvincing. 
11. [11]
    It was also submitted by the first respondent that Mr Singh did not produce any credible evidence that he had been incapable of making a decision not to lodge an anti-discrimination complaint prior to consulting a psychologist in 2014. In the absence of any such evidence, it was submitted that the Tribunal could not decide whether Mr Singh’s psychological condition had impacted on his ability to make a timely complaint.  I agree.  Apart from mere assertions, there is no reasonable basis on which I can find that Mr Singh was prevented from making a complaint before June 2014 because of any relevant psychological factor. 
12. [12]
    I have difficulty accepting the assertions made by Mr Singh that he had been conditioned to normalise the racist comments and that he had not realised until 2014 that a person making these type of comments did not constitute normal workplace behaviour.  Mr Singh’s evidence is that he recorded in his diary words said to him by Mr Kingsley that are now the subject of his complaint.  He did not appear to record many other workplace events or comments in his diary.  A reasonable inference can be drawn from his evidence that he recorded the words attributed to Mr Kingsley because he wanted to be able to recall what was said and when the words were said for some future use, such as making a complaint to his superiors or to an agency outside of his employment. 
13. [13]
    I find that by making a record of the words allegedly said by Mr Kingsley, Mr Singh demonstrated that he was aware that the racist language was inappropriate and not a normal occurrence found in a workplace.  I reject the assertion that Mr Singh did not know what was normal behaviour in a workplace. Mr Singh had submitted that he had worked in other workplaces but he not experienced discrimination in any other workplace.  It is reasonable to infer that Mr Singh could, as a result of his other workplace experiences, evaluate what behaviour is likely to be normally found in a workplace and what is not.  
14. [14]
    Mr Singh also submitted that his religious beliefs gave him the strength and ability to endure the racist behaviour directed towards him by Mr Kingsley.  It was argued that this endurance, born out of his religious beliefs, could explain why Mr Singh took no action to complain of Mr Kingsley’s behaviour until 2014.  I accept that this may be the case but the submission also confirms that Mr Singh had made a conscious decision not to complain about the behaviour of Mr Kingsley before June 2014.   The first respondent argues that Mr Singh should be bound by that decision.
15. [15]
    The first respondent submitted that Mr Singh, as a police officer, had ready access to numerous resources available through the work intranet and from interactions with his colleagues which would have enabled him to engage in formal internal processes to resolve a complaint about Mr Kingsley’s behaviour.  The first respondent submitted that Mr Singh had threatened to make a discrimination complaint against Mr Kingsley in 2013 but did not follow through with his threat.  The first respondent submitted that making the threat in 2013 was inconsistent with Mr Singh’s claimed reasons for the delay until 2014 in making a complaint.  
16. [16]
    It was submitted that Mr Singh finally made his complaint when he was subjected to disciplinary action in 2014.  The first respondent pointed to evidence of a partially completed internal complaint form dated 6 March 2014, created on the same day as Mr Singh’s interview about the disciplinary matter but not lodged by him with the Queensland Police Service.  
17. [17]
    The first respondent submitted that this document demonstrates that Mr Singh was aware of remedies available to him and that he had made a conscious decision not to lodge a complaint until he himself was made the subject of a complaint by Mr Kingsley and subsequently investigated.  I agree that it is reasonably open on the evidence that Mr Singh was aware, or at least could have readily become aware if he wanted to, of the complaint options available to him well before June 2014 and that he had decided not to take up any such option.  In the absence of any compelling argument from Mr Singh, I agree with the submissions of the first respondent that Mr Singh should bear the consequences of a decision not to complain about the behaviours he alleges were directed towards him by Mr Kingsley.  
18. [18]
    Mr Singh submits that it was unjust to prevent complaints about discriminatory behaviour that occurred before June 2013 to be determined by QCAT.  However, under section 175(2), the tribunal may deal with the complaints if on the balance of fairness between the parties it would be reasonable to do so.  The second respondent, Mr Kingsley, does not oppose the pre June 2013 events remaining in the complaint for determination by QCAT as he submits that the complaints are essentially a fabrication and he wants an opportunity to prove that is the case. 
19. [19]
    The first respondent does oppose QCAT dealing with the pre June 2013 events.  It argues that the length of time of the delay, more than four years out of time with the earliest incidences alleged, is in itself prima facie prejudicial to a respondent.  It argues that the failure by Mr Singh to report his allegations at an earlier time places the respondents at a significant disadvantage. 
20. [20]
    There was no contemporaneous investigation of any of the allegations by the Queensland Police Service and the first respondent argues that it will be difficult now to identify any potential witnesses to respond to the allegations after so much time has passed.  It was submitted that memories are likely to have faded and witnesses may be of little assistance to the tribunal in determining the truth of the allegations.   I agree that the evidence required to test the allegations will, after the passage of significant time associated with many of the allegations, be compromised and is likely to leave the tribunal unable to make any factual findings with confidence. 
21. [21]
    The first respondent argued that there would be a significant evidentiary burden placed on the first respondent to look into allegations as far back as February 2009 where documents and relevant material may have been destroyed in accordance with the employer’s document retention and disposal policies.   It was submitted that the balance of fairness to all parties is against allowing the out of time complaints to proceed to be determined by QCAT.
22. [22]
    The allegations made by Mr Singh are contested by both respondents.  Mr Kingsley, in his submissions, states that the 102 alleged incidents are factually related and will be relied on by Mr Kingsley in his formal response to the complaint to show they are an interconnected construction of fabrications by Mr Singh.  In other documents contained in the referral report, Mr Kingsley asserts that he was not at work on some of the days when it is alleged he made comments to Mr Singh.  By proving that some of the recorded complaints could not have been made, Mr Kingsley is expected to argue that the credibility of the other recorded allegations must also be doubted.
23. [23]
    However, Mr Kingsley should not be prevented from making submissions as to Mr Singh’s credibility about all or some of the diary entries even if the complaint going forward for determination only contained one allegation of racist comments alleged to have occurred in June 2013. There is no unfairness to Mr Kingsley if the tribunal were to order that any pre June 2013 allegations would not be dealt with by way of determining whether they constitute actionable discriminatory behaviour.  The diary entries would still be evidence that could be used to test Mr Singh’s credibility.  
24. [24]
    I am persuaded by the submissions made by the first respondent that on the balance of fairness between the parties, the delay in making his complaint has caused such prejudice to the respondents that they will not be able to respond adequately to the allegations of discrimination.  Even if witnesses are found who were present during verbal exchanges between Mr Singh and Mr Kingsley from 2009 to 2013, the memories of those witnesses will be impaired by the passage of time.  It is for good reason that time limits are imposed by the Act.  The limitation period is particularly apt for cases where there is an absence of objective documentary proof that action took place on a stated date.  
25. [25]
    The complaint is not that a single incidence occurred on one day but that 102 incidents occurred over almost four and a half years. The evidentiary burden on the respondents is very high to refute each and every one of those allegations.  It is not suggested that any one or more of the comments are more egregious than the others where the focus of the response could be on that incident of alleged discriminatory behaviour.   Rather Mr Singh alleges that the accumulation of all the incidents resulted in harm to him.  All of the complaints will have to be responded to by the respondents and the hearing is likely to be factually complex and costly to run. 
26. [26]
    I find that on balance of fairness to all the parties, the decision made by Mr Singh not to make any contemporaneous complaint about 102 alleged incidents of discretionary behaviour should be upheld.  His later complaint made in June 2014 will, if going forward for determination by QCAT in late 2015, result in significant prejudice all of the parties, including Mr Singh, in proving whether or not the incidents did occur where some incidents are said to relate to events more than six years down the track.   If the accuracy of his recording is successfully undermined, then he would have to convince the Tribunal that his memory is accurate without reliance on his records. 
27. [27]
    The tribunal will not deal with the instances of discrimination that are said to have occurred before 14 June 2013.  The contentions filed by Mr Singh must be amended by 30 June 2015 to rely on only the events that are said to have occurred after 14 June 2013. 
28. [28]
    There is a final issue raised by the respondents.  Mr Singh’s contentions actually raised more than 102 instances of discriminatory behaviour by Mr Kingsley. Additional instances were included in the contentions that were not in the complaint referred to QCAT.  Mr Singh did not seek to amend the referred complaint before the contentions with additional instances were filed.  The respondents oppose the addition of instances that are not part of the referred complaint. 
29. [29]
    If Mr Singh wants to rely on instances that have not been referred to QCAT, he must apply for an order allowing his complaint to be amended under section 178.  Until an order in such terms is made, matters that are outside the referred complaint will not be able to form part of the contentions and must be removed.