Rodgers v Revenue SA, Department of Treasury and Finance (SA)

(2014) 240 IR 202; [2014] SASCFC 2

South Australia Full Court

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Interrogate

Catchwords

1. Human Rights
2. › Discrimination
3. › Sex discrimination
4. › Employment
5. › Vicarious liability of employer for acts of employee
6. › Whether acts committed outside workplace and after complainant's transfer were 'in the course of employment'
7. › Equal Opportunity Act 1984 (SA), s 91
1. Human Rights
2. › Discrimination
3. › Sex discrimination
4. › Employment
5. › Direct liability of employer
6. › Whether employer discriminated by subjecting employee to detriment
7. › Whether employer aware of conduct
8. › Equal Opportunity Act 1984 (SA), s 30(2)(d)
1. Limitation of Actions
2. › Extension or postponement of limitation periods
3. › Power of court to extend limitation period
4. › Whether general power to extend time under Limitation of Actions Act 1936 (SA) s 48 applies to time limit for lodging complaint under Equal Opportunity Act 1984 (SA) s 93(2)
1. Limitation of Actions
2. › General matters
3. › Retrospective operation
4. › Whether amendment conferring power to extend time operates retrospectively to revive complaints already time-barred
5. › Presumption against retrospectivity
6. › Whether respondent had acquired absolute immunity
7. › Equal Opportunity Act 1984 (SA), s 93(2a)

Quick Take

The phrase 'in the course of employment' in s 91 of the Equal Opportunity Act 1984 (SA) requires a connection between the employee's conduct and the employment; conduct by a former colleague outside the workplace with no connection to employment duties does not attract vicarious liability. The Tribunal has power under s 48(1)(c) of the Limitation of Actions Act 1936 (SA) to extend the time for lodging a complaint under s 93(2) of the Equal Opportunity Act. Section 93(2a) can operate to extend time for complaints relating to pre-commencement conduct where the respondent had not acquired an absolute immunity due to the pre-existing power under s 48. The majority and dissent differ significantly on the breadth of 'course of employment' in anti-discrimination legislation, with the dissent favouring a broader temporal and spatial test.