1 Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998, the following claims in the Application are dismissed:

1. that the Respondent unlawfully discriminated against the Applicant in the area of employment by refusing to employ him in relation to five job applications the Applicant made to the Respondent in early 2020, except in relation to the attributes of "age" and "race" regarding the Support Lead and Project PI roles;

2. that the Respondent unlawfully discriminated against the Applicant in the area of employment by essentially banning him from applying for any future vacant positions with the Respondent, except in relation to the attributes of "age" and "race" and the presumed attribute of "industrial activity";

3. that the Respondent unlawfully discriminated against the Applicant in the area of education because the Respondent will not accept any applications to enrol for study made by the Applicant; and

4. that the Respondent has contravened the Charter of Human Rights and Responsibilities Act 2006 by denying the Applicant freedom of expression and by failing to provide a statement justifying the reasons that the Respondent's actions were inconsistent with the human rights protected by the Charter of Human Rights and Responsibilities Act 2006.

2 The Applicant's claim of victimisation is withdrawn.

3 The Respondent did not seek an order for costs. Accordingly, there is no order as to costs on this application.

4 The proceeding is listed for an administrative mention on 4 March 2022. The parties are directed to provide their views to the Tribunal on what the next stage of the proceeding should be by this date. The principal registrar is directed to refer the Tribunal file back to me after this date for the making of further orders. No appearance is required by the parties.

Ms S Kelly of Counsel instructed by Ms M O'Neill, solicitor

1 This was an application by the Respondent to dismiss the Applicant's claims under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).

2 The Respondent sought an order that the application be dismissed on the basis that it was misconceived and lacking in substance because the Applicant has not alleged any facts to establish his claims under the Equal Opportunity Act 2010 (EO Act) or any other Act conferring jurisdiction on the Victorian Civil and Administrative Tribunal (VCAT).

3 On 8 February 2021, John Buonopane, made a claim under the EO Act alleging that he was subjected to discrimination and victimisation by the Respondent in the area of employment (the Application).

4 The factual allegations raised in the Application are that the Respondent:

1. has not, over the course of 12 years, assessed the Applicant's job applications fairly and has rejected the Applicant's job applications, notwithstanding the Applicant was "amply qualified, skilled and experienced" for the positions; and
2. on 12 March 2020, unlawfully discriminated against the Applicant by essentially banning him from applying for future vacant positions, which is evidenced by an email from Paul Martin (Senior Manager, Talent Acquisition at RMIT) to the Applicant which stated that the Applicant's emails to the Respondent demonstrated his "attitude, values, judgement and maturity are fundamentally misaligned with our organisation, and we do not envisage employing you in the future" and that on that basis RMIT would "not be considering [the Applicant] for future applications and will not be responding to emails from [the Applicant] (the Decision).

5 The Applicant alleges that the discrimination occurred on the basis of the following protected attributes:

1. age;
2. employment activity;
3. industrial activity;
4. physical features;
5. political belief or activity;
6. race;
7. religious belief or activity; and
8. personal association with someone who has, or is assumed to have, one of these personal characteristics.

6 On 16 November 2021, the Applicant filed submissions in response to the Respondent's dismissal application which sought to amend the Application as follows:

1. that the Applicant's claim of victimisation is discontinued;
2. that a claim under section 38 of the EO Act be added to the Application; and
3. that a claim under section 15 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) be added to the Application.

7 In the Applicant's submissions at paragraph 6, he says:

[a]lthough the treatment of my previous job applications over the past 12 years do form part of my application of discrimination, I provide such information more for descriptive context.

Then, at paragraph 14 of the submissions, the Applicant says:

[a]s stated before, although I definitely know that I have been discriminated against in my job applications for the past 12 years, they do not form the basis of my application, and I provide such information to serve as context...

8 In dealing with administrative matters at the commencement of the dismissal application hearing, the scope of the Applicant's discrimination claim was discussed and it was clear to me that the Applicant did wish to pursue a claim of discrimination in relation to his five rejected job applications made in early 2020 and the hearing proceeded on this basis and on the basis of the Applicant's claims as set out above at paragraph 6 (b) and (c).

9 Therefore, the Applicant's claims in the Application, all of which are the subject of the Respondent's dismissal application, are amended to be as follows:

1. that the Respondent unlawfully discriminated against the Applicant in the area of employment by refusing to employ him in relation to five job applications the Applicant made to the Respondent in early 2020 (the Job Applications);
2. that the Respondent unlawfully discriminated against the Applicant in the area of employment by essentially banning him from applying for any future vacant positions with the Respondent;
3. that the Respondent unlawfully discriminated against the Applicant in the area of education because the Respondent will not accept any applications to enrol for study made by the Applicant; and
4. that the Respondent has contravened the Charter by denying the Applicant freedom of expression and by failing to provide a statement justifying the reasons that the Respondent's actions were inconsistent with the human rights protected by the Charter.

10 The Applicant's claim of victimisation is withdrawn.

11 Section 75(1) of the VCAT Act states as follows:

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

12 The established principles for deciding applications under section 75 of the VCAT Act requires the Tribunal to exercise great caution. It is a serious matter to dismiss or strike out a proceeding summarily. A high threshold must be met before the Tribunal can summarily dismiss or strike out all or part of a proceeding.[1]

13 The power to summarily dismiss or strike out a proceeding, or a part of a proceeding, should be exercised only where it is obvious that the proceeding cannot possibly succeed or where it is obvious that the proceeding is an abuse of process for other reasons. Otherwise, an applicant is entitled to have the case fully heard and determined at a final hearing. It must be very clear indeed that the proceeding is absolutely hopeless or so clearly untenable that it cannot possibly succeed.[2]

14 VCAT should not summarily dismiss an application where the outcome depends on findings of fact based on contested evidence.[3]

15 As submitted by the Respondent, the burden of the summary dismissal application rests with the moving party being the Respondent.

16 The EO Act prohibits discrimination based on various attributes a person may have. Section 6 of the EO Act lists those attributes.

17 Discrimination as defined in the EO Act can be direct or indirect. Direct discrimination occurs when someone treats another person unfavourably because of a protected attribute.[4]

18 Indirect discrimination occurs when someone, for example an employer, imposes a requirement, condition or practice which disadvantages persons with a protected attribute. Typically, in the context of the Application, this is seen to occur when the requirement, condition or practice appears to treat all job applicants subjected to it equally but affects the job applicant with the protected attribute disadvantageously. However, if the requirement, condition or practice is reasonable then it is not discriminatory.

Discrimination on the basis of an attribute includes discrimination on the basis -

(b) of a characteristic that a person with that attribute generally has;

(c) a characteristic that is generally imputed to a person with that attribute;

(d) that a person is presumed to have that attribute or to have had it at any time.

An employer must not discriminate against a person -

(a) in determining who should be offered employment; or

(c) by refusing or deliberately omitting to offer employment to the person;

21 Section 38(1) of the EO Act relevantly provides:

An educational authority must not discriminate against a person -

(a) in deciding who should be admitted as a student; or

(b) refusing, or failing to accept, the person's application for admission as a student; ...

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether -

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2) This section does not apply to an act or decision of a private nature. ...

(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

(2) A person is not entitled to be awarded any damages because of a breach of this Charter.

(4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.

SUBSTANCE OF THE CLAIM - DISCRIMINATION IN EDUCATION

25 The Applicant alleges that, in banning him from applying for any future employment with the Respondent, blocking his emails, and generally refusing to respond to or acknowledge him, the Respondent has breached section 38(1) of the EO Act because, as a consequence, he is now banned from applying to enrol to study with the Respondent. Alternatively, the Applicant claims that he is on a list of students maintained by the Respondent who have a block on their admission. The Applicant's evidence was that he has not applied to enrol in any courses offered by the Respondent since 12 March 2020.

26 The Respondent denies that the Applicant has been in any way banned from applying to enrol to study at the Respondent. The Respondent's witness, Joseph Seitz-Biscarrat, who is employed by the Respondent in the role of Executive Officer, Office of the Academic Registrar, gave evidence that he has been informed by the Respondent's Information Technology Service and Direct Admission departments that the Applicant has not been prevented from applying for admission as a student at the Respondent, that his Gmail address has not been blocked by the Respondent and that he has been informed by the Manager, Admissions at the Respondent that the Applicant is not on a list maintained by the Respondent of students who have a block on their admission.

27 Under cross-examination, Mr Seitz-Biscarrat accepted that the Applicant's emails were blocked up until the end of 2020 when the Respondent changed its email system. It was also common ground between the parties that applying directly to the Respondent via email was not the only way to apply to enrol for a course as, for example, course applicants had the option to apply via the Victorian Tertiary Admissions Centre.

28 On the basis of the Applicant's evidence alone that he has not applied to the Respondent, either directly or indirectly, to enrol in a course of study since 12 March 2020, I find that section 38 of the EO Act has not been enlivened by the conduct of the Respondent as there has been no "decision" by the Respondent about whether the Applicant should be "admitted as a student" nor has there been any "refusal" or "failure to accept" any application by the Applicant for admission as a student.

29 Even if the Applicant submitted that the Respondent can still make a decision to refuse to admit him as student even in circumstances where he never applied for admission as a student (which he did not submit), I would still be satisfied on the evidence of the Respondent that the Applicant was not on a list of students who have a block on their admission. Therefore, even though the Applicant's emails were blocked until the end of 2020, because emailing the Respondent directly was not the only option for applying for admission as a student, the blocking of the Applicant's emails did not have the effect of "refusing" or "failing to accept" any application for admission that could have been made by the Applicant nor did it amount to a "decision" not to "admit" the Applicant as a student.

30 As a result, I am satisfied that section 38 of the EO Act is not enlivened by the conduct of the Respondent in making and implementing the Decision therefore the Application in this regard is lacking in substance as it cannot possibly succeed. The Applicant's claim in relation to section 38 of the EO Act is dismissed.

31 The Applicant claims that the Respondent is a "public authority" as defined in section 4 of the Charter and so has an obligation to consider the Charter when making decisions and to act consistently with the human rights contained within it. The Applicant further claims that, in making the Decision to "disenfranchise" him from the Respondent's recruitment process by blocking his emails, refusing to further correspond with him and refusing to consider him for future vacant positions, the Respondent has contravened section 15 of the Charter by denying his right to freedom of expression.

32 The Respondent's position is that, as to whether it is a "public authority", that question is beyond the scope its dismissal application. Regardless, it asserts that the Applicant has not alleged any facts to establish that the Respondent has acted in a way that is incompatible with or failed to give proper consideration to the right to freedom of expression in section 15 of the Charter and, even if the Respondent was a "public authority", the Decision is of a private nature and so the Charter doesn't apply pursuant to section 38(3) of the Charter. Additionally, the Respondent's position is that an alleged breach of the Charter is not actionable on its own and so the Tribunal does not have jurisdiction to hear a stand-alone claim that the Respondent has contravened section 15 of the Charter.

33 Section 15 of the Charter protects the right to freedom of expression. Section 15(1) of the Charter states that "[e]very person has the right to hold an opinion without interference." Putting aside whether the Respondent is a public authority or not, I am not satisfied that, in making and implementing the Decision, the Respondent could be said to be interfering with the Applicant's right to hold an opinion. It is true that, in making and implementing the Decision, the Respondent has decided to cease to listen to or receive the opinions of the Applicant but the Decision or any outcome of the Decision does not interfere with the right of the Applicant to hold an opinion. As a result, I find that the Applicant has not alleged any facts that could enliven section 15(1) of the Charter.

[e]very person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether -

35 The Applicant asserts that the conduct of the Respondent in making and implementing the Decision has interfered with his right to freedom of expression by impeding his right to "impart information and ideas" to the Respondent by way of emailing critical feedback to the Respondent about its recruitment processes.

36 Whilst it is true that, in making and implementing the Decision, the Respondent has closed an avenue of expression that was previously available to the Applicant, being the avenue of providing direct feedback to the Respondent, I do not accept that, in ceasing to communicate with the Applicant, including by refusing to accept any future job applications, the Respondent has interfered with the Applicant's "right to freedom of expression". This is because, nothing in the Decision or its implementation by the Respondent prevents the Applicant from expressing his opinion or "imparting information and ideas" about the Respondent's recruitment processes or any other matters in any medium whatsoever, it's just that the Respondent has made the decision that it no longer wishes to hear the Applicant's opinions and ideas. The Respondent's situation analogous to a person who goes door to door expressing their views. It cannot be said that, if one person refuses to open their door to hear the person's views, that that person's right to freedom of expression has been denied by that person for there are always other doors to knock on. In other words, whilst the Applicant has the right to freedom of expression, a person, including the Respondent, is entitled not to listen.

37 The Applicant does not allege that the Respondent has tried to silence him in any other way apart from in relation to the Decision. As a result, I find that the Applicant has not alleged any facts that could enliven section 15(2) of the Charter.

38 If I am wrong about that and, presuming for the purposes of the Respondent's dismissal application that the Respondent is a "public authority" as defined in section 4 of the Charter (about which I make no findings), then I additionally find that the Decision is of a "private nature" and so the Charter does not apply to the Decision.

... unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right

but goes on to state at section 38(3) that "[t]his section does not apply to an act or decision of a private nature."

40 The Applicant submitted that that the Respondent is a "public authority" and was acting as a public authority because it offers employment to the general public and, in McAdam v Victoria University & Ors[5], another university was found to be a public authority.

41 The Respondent submits that, in McAdam v Victoria University & Ors, the Tribunal only presumed that Victoria University was a public authority for the purposes of its summary dismissal application which has not been confirmed which I accept was the case. The Respondent also submitted that section 38(1) of the Charter doesn't apply because the Respondent was not acting as a public authority but was dealing with a private matter with a member of the public and that the Decision was not made under any statute or policy or the like.

42 The meaning of the word "private" is not defined by the Charter. The Macquarie Australian dictionary relevantly defines the word "private" to mean "relating to or affecting a particular person or small group of persons; individual; personal... confined to or intended only for the person or persons immediately concerned." As a result, given the Decision only relates to the Applicant as an individual and not to the general public or any other persons and the Applicant has not alleged that the Decision was made under any statute or policy or the like, I am satisfied that, if the Respondent was a "public authority" that the Charter would not apply to the Decision because it is "of a private nature."

43 As a result, I am satisfied that the protections in the Charter are not enlivened by the conduct of the Respondent in making and implementing the Decision therefore the Application in this regard is lacking in substance as it cannot possibly succeed. The Applicant's claims in relation to the Charter are dismissed.

44 Having made these findings in relation to the Charter, I do not need to need to consider the Applicant's claims that the Respondent failed to consider the Charter or provide a statement of reasons justifying the Decision or the Respondent's assertion that the Tribunal does not have jurisdiction to hear a stand-alone claim that the Respondent has contravened section 15 of the Charter.

SUBSTANCE OF THE CLAIM - DISCRIMINATION IN RECRUITMENT - THE JOB APPLICATIONS

45 The Applicant applied for five vacant positions with the Respondent in early 2020 being:

1. IT Change and Release Manager on 5 January 2020;
2. Change Manager on 31 January 2020;
3. Senior Business Analyst on 24 February 2020;
4. Support Lead on 11 March 2020; and
5. Project PI - Business Analyst on 11 March 2020.

46 The Applicant was not offered any of the five positions by the Respondent. The Respondent's witness, Paul Martin, who was employed by the Respondent in the position of Senior Manager, Talent Acquisition, gave evidence that the first three positions the Applicant applied for, being IT Change and Release Manager, Change Manager and Senior Business Analyst, were withdrawn and cancelled as a result of the financial impacts of the COVID-19 pandemic. This evidence was not challenged by the Applicant and so I accept the evidence of Mr Martin that these three positions were withdrawn due to the financial impacts on the Respondent caused by the pandemic.

47 As a result, any claim of unlawful discrimination by the Applicant in relation to not being offered the IT Change and Release Manager, Change Manager and Senior Business Analyst roles is lacking in substance because it cannot possibly succeed. The Applicant's claims in relation to the IT Change and Release Manager, Change Manager and Senior Business Analyst jobs are therefore dismissed.

48 In relation to the Support Lead and Project PI roles, Mr Martin's evidence was that the Applicant's job applications were vetted and assessed by two recruiters and that the Applicant was not shortlisted for an interview and ultimately not successful for these roles because the recruiters considered that the skills and experiences listed in other candidates' applications were more desirable and preferred over the skills and experience listed in the Applicant's job applications.

49 Mr Martin's evidence was also that he had not had any previous dealings with the Applicant, had never met or spoken with the Applicant, does not know what the Applicant looks like and was not aware of the Applicant's age or other personal attributes and that the Applicant did not list his age or other personal attributes in his job applications. Mr Martin's evidence did not change under cross-examination.

50 Even if I were to accept Mr Martin's evidence in this regard, the issue remains that direct evidence from the two recruiters that "vetted and assessed" the Applicant's job applications for the Support Lead and Project PI roles has not been provided nor has the Applicant had the opportunity to cross-examine the two recruiters.

51 Additionally, I accept the submissions of the Applicant that his age and race, including nationality or national origin, can reasonably be inferred by the Respondent from the information in his job applications including his name and his employment history.

52 Therefore, I find that the Applicant has alleged facts that, if proven, could lead the Tribunal to a finding that the Respondent has engaged in unlawful direct or indirect discrimination in recruitment in breach of section 16 of the EO Act in relation to the attributes of race and/or age. This aspect of the Application survives the dismissal application.

53 As to the Applicant's allegations that discrimination also occurred in relation to the attributes of employment activity, industrial activity, physical features, political belief or activity, religious belief or activity and personal association with someone who has, or is assumed to have, one of these personal characteristics (the Other Attributes), there is no evidence and the Applicant has not alleged any facts that could lead the Tribunal to a finding that the Respondent engaged in unlawful discrimination on the basis of the Other Attributes in relation to the Job Applications.

54 Having considered the content of the Applicant's résumé and cover letter that was submitted to the Respondent by the Applicant in applying for the Support Lead and Project PI roles, I am satisfied that the Applicant's résumé and cover letter do not contain any information from which it could reasonably be inferred, or that could lead the Respondent to presume, that the Applicant has or has had the Other Attributes. Additionally, I am also satisfied that it could not be presumed by the Respondent that, because of the Applicant's race and/or age, that Applicant has or has had any of the Other Attributes or that such an inference reasonably possible.

55 As a result, I find the Applicant's claim that he was subjected to discrimination on the basis of the attributes of employment activity, industrial activity, physical features, political belief or activity, religious belief or activity and personal association with someone who has, or is assumed to have, one of these personal characteristics in relation to his applications for the Support Lead and Project PI roles is lacking in substance as it cannot possibly succeed. The Applicant's claim of discrimination in relation to the Support Lead and Project PI roles on the basis of the Other Attributes is therefore dismissed.

SUBSTANCE OF THE CLAIM - DISCRIMINATION IN RECRUITMENT - THE DECISION

56 The Applicant claims that, in making and implementing the Decision, the Respondent subjected him to unlawful discrimination on the basis of his employment activity, industrial activity, physical features, political belief or activity, religious belief or activity, race, age and personal association with someone who has, or is assumed to have, one of these personal characteristics.

57 The Respondent says it made and implemented the Decision because the Applicant's emails to the Respondent demonstrated that the Applicant's "attitude, values, judgement and maturity are fundamentally misaligned with [the Respondent]" and not because of any protected attribute listed in section 6 of the EO Act that the Applicant claims to have. The Respondent submitted that the Applicant's emails were rude and offensive. The Applicant rejected that his emails were rude and offensive and submitted that his emails were direct critical feedback to the Respondent regarding its recruitment processes.

58 The Respondent submitted that the Applicant cannot possess the protected attribute of "employment activity" because only employees can possess the attribute of employment activity and, as the Applicant was only a prospective employee of the Respondent and not an actual employee, he cannot engage in employment activity as defined in the EO Act and so cannot be said to possess the attribute of "employment activity".

59 Section 4(1) of the EO Act relevantly defines "employment activity" to mean:

(a) employee, in the employee's individual capacity -

(i) making a reasonable request to the employee's employer, orally or in writing, for information regarding the employee's employment entitlements; or

(ii) communicating to the employee's employer, orally or in writing, the employee's concern that the employee has not been, is not being or will not be given some or all of the employee's employment entitlements; ...

60 Section 4(1) of the EO Act relevantly defines "employee" to include:

(a) a person employed under a contract of service, whether or not under a federal agreement or award;

(b) person employed under the Public Administration Act 2004 or appointed to a statutory office;

(c) a person engaged under a contract for services;

(d) a person who is engaged to perform any work the remuneration for which is based wholly or partly on commission ...

61 Section 4(1) of the EO Act relevantly defines "employer" to include:

(a) a person who employs another person under a contract of service, whether or not under a federal agreement or award;

(b) a person who engages another person under a contract for services;

(c) a person who engages another person to perform any work the remuneration for which is based wholly or partly on commission ...

62 Section 4(1) of the EO Act relevantly defines "employment" to include:

(a) employment under a contract of service, whether or not under a federal agreement or award;

(b) employment under the Public Administration Act 2004 or under a statutory appointment;

(d) work that is remunerated wholly or partly on commission - ...

63 Having considered the definitions of "employee", "employer" and "employment" in section 4(1) of the EO Act, I find that what is consistent with all three definitions is that none of the definitions includes a "prospective employee" or "job applicant". Although all three definitions are inclusive in nature, which indicates that the relevant definition may not be exhaustive, as the concepts of a "prospective employee" and "job applicant" were common concepts when the attribute of "employment activity" was first included in the EO Act's predecessor in 2008, I am satisfied that it was the intention of parliament to exclude the concepts of a "prospective employee" and "job applicant" from the definitions of "employee", "employer" and "employment" in section 4(1) of the EO Act.

64 As to the definition of "employment activity" in section 4(1) of the EO Act, which relevantly states "an employee, in the employee's individual capacity ...", there is also no mention of the concepts of a "prospective employee" or "job applicant". As a result, I accept the submission of the Respondent that, in order to be able to possess the attribute of "employment activity", a person such as the Applicant must be an employee, regardless of whether the employee has commenced working for the employer, so long as there is in existence, whether in writing or not, a contract of service which is not the case where a person is a prospective employee or job applicant.

65 Therefore, as the Applicant was a job applicant and/or a prospective employee of the Respondent when the Respondent made and implemented the Decision, he could not have possessed the attribute of "employment activity" in relation to the Respondent and so the Applicant's claim in this regard is lacking in substance because it cannot possibly succeed. The Applicant did not allege, and there was no evidence that could lead the Tribunal to a finding that, the Respondent presumed that the Applicant possessed the attribute of "employment activity". The Applicant's claim that the Decision subjected him to unlawful discrimination on the basis of the protected attribute of "employment activity" is therefore dismissed.

66 The Applicant asserts that, in making and implementing the Decision, the Respondent subjected him to unlawful discrimination on the basis of his "industrial activity". The Respondent submitted that the Applicant did not mention any trade union or industrial organisation in his emails to the Respondent and so there was no evidence that the Applicant possessed the attribute of "industrial activity". The Applicant submitted that being outspoken and critical is a characteristic that a person with the attribute of "industrial activity" generally has or is generally imputed to a person with that attribute and so, by complaining to the Respondent about its recruitment processes, he engaged in "industrial activity" or the Respondent presumed he possessed the attribute of "industrial activity".

67 Section 4(1) of the EO Act defines "industrial activity" to mean:

(a) being or not being a member of, or joining, not joining or refusing to join, an industrial organisation or industrial association; or

(b) establishing or being involved in establishing an industrial organisation or forming or being involved in forming an industrial association; or

(c) organising or promoting or proposing to organise or promote a lawful activity on behalf of an industrial organisation or industrial association; or

(d) encouraging, assisting, participating in or proposing to encourage, assist or participate in a lawful activity organised or promoted by an industrial organisation or industrial association; or

(e) not participating in or refusing to participate in a lawful activity organised or promoted by an industrial organisation or industrial association; or

(f) representing or advancing the views, claims or interests of members of an industrial organisation or industrial association; ...

68 Having considered the content of the emails between the Applicant and the Respondent prior to and including the Decision, I am satisfied that the Applicant does not make mention of any actual or proposed trade union activity, including in relation to any industrial association or organisation, or any refusal to participate in any such activity.

69 This is because the Applicant's emails to the Respondent after his Job Applications were unsuccessful were complaints of a private nature regarding how the Applicant disapproved of the Respondent's recruitment processes and there is nothing in the content of the emails that could be characterised as collective or trade union movement related in nature which would enliven the attribute of "industrial activity".

70 For example, there is nothing in the emails about "being or not being a member of, or joining, not joining or refusing to join, an industrial organisation", "establishing or being involved in establishing an industrial organisation", "organising or promoting or proposing to organise or promote a lawful activity on behalf of an industrial organisation", "encouraging, assisting, participating in or proposing to encourage, assist or participate in a lawful activity organised or promoted by an industrial organisation", "not participating in or refusing to participate in a lawful activity organised or promoted by an industrial organisation" or "representing or advancing the views, claims or interests of members of an industrial organisation". Therefore, I am not satisfied that, because the Applicant complained about the Respondent's recruitment processes, that it follows that, in the absence of any other alleged facts, that the Applicant possessed the protected attribute of "industrial activity" at the time of the Decision.

71 Whilst it is true that a person with the protected attribute of "industrial activity" would likely have the characteristics of being outspoken and critical of a prospective employer or that those characteristics could generally be imputed to a person with that attribute, the way section 7(2)(b) and (c) of the EO Act is drafted requires a person to firstly possess the protected attribute before the characteristic can be something they generally have or can generally be imputed to them. For example, regular meetings between a union representative on a recruitment drive and their co-workers would likely be a characteristic of "industrial activity" whereas other regular meetings between co-workers would not.

72 Therefore, as I have found that there is nothing in the emails between the Applicant and the Respondent that could enliven the attribute of "industrial activity" to the extent that it was actually held by the Applicant, I find that, although the Applicant was critical and outspoken about the Respondent's recruitment processes, the Applicant has not alleged any facts that could lead the Tribunal to a finding that he has engaged in "industrial activity" as defined in section 4(1) of the EO Act.

73 Nevertheless, the Applicant has alleged that the Respondent presumed that he possessed the attribute of "industrial activity" because he is outspoken and critical and that the reasons given by the Respondent for making and implementing the Decision were an attempt to conceal the real reasons for the Decision. The evidence of the Respondent's witnesses did not specifically deal with the allegation that the Respondent presumed that the Applicant possessed the attribute of "industrial activity".

74 Section 7(2)(d) of the EO Act relevantly provides that:

Discrimination on the basis of an attribute includes discrimination on the basis -

(d) that a person is presumed to have that attribute or to have had it at any time.

75 Therefore, I am satisfied that the Applicant's claim that the Respondent presumed he possessed the protected attribute of "industrial activity" and that the Decision was made on this basis, is an allegation which, if proven, could lead the Tribunal to a finding that the Respondent has engaged in unlawful discrimination.

76 As a result, I find that the Applicant has not alleged any facts that could lead the Tribunal to a finding that the Applicant actually possessed the protected attribute of "industrial activity" at the time the Decision was made and so the Applicant's claim in this regard is lacking in substance because it cannot possibly succeed. However, the Applicant's clam that the Respondent presumed that he possessed the protected attribute of "industrial activity" because he is critical and outspoken, being the real reason for the Decision, is not absolutely hopeless in the employment/recruitment context and so I do not accept that this aspect of the Applicant's claim should be dismissed summarily.

77 The Applicant's claim that the Decision subjected him to unlawful discrimination on the basis of the protected attribute of "industrial activity" is therefore dismissed except in so far as it relates to section 7(2)(d) of the EO Act.

78 The Applicant asserts that, in making and implementing the Decision, the Respondent subjected him to unlawful discrimination on the basis of the protected attribute of "physical features". The Respondent submitted that the Applicant has not alleged any facts that could lead the Tribunal to such a finding and relied on the evidence of Mr Martin which was to the effect that he was unaware of any of the Applicant's personal attributes including the Applicant's appearance when he made and implemented the Decision. The Applicant did not make any direct submissions regarding the protected attribute of "physical features".

79 Section 4(1) of the EO Act defines "physical features" to mean:

a person's height, weight, size or other bodily characteristics; ...

80 Having considered the content of the emails between the Applicant and the Respondent prior to and including the Decision, I am satisfied that neither the Applicant nor the Respondent mention anything that could be interpreted to be a reference to the Applicant's physical features. I have also already found at paragraph 54 above that nothing about the Applicant's physical features could reasonably be inferred from or presumed by the Respondent as a result of the Applicant's Job Applications and I accept the evidence of Mr Martin, which was not disputed by the Applicant, that he did not know anything about the Applicant's physical features when he made and implemented the Decision.

81 As a result, I find that the Applicant has not alleged any facts that could lead the Tribunal to a finding that the Respondent made and implemented the Decision because of any actual or presumed physical features of the Applicant and so the Applicant's claim in this regard is lacking in substance because it cannot possibly succeed. The Applicant's claim that the Decision subjected him to unlawful discrimination on the basis of the protected attribute of "physical features" is therefore dismissed.

82 The Applicant asserts that, in making and implementing the Decision, the Respondent subjected him to unlawful discrimination on the basis of his "political belief or activity". The Respondent submitted that there was nothing in the emails between the Applicant and the Respondent that could amount to "political belief or activity" as the Applicant's complaints and dissatisfaction with the Respondent's recruitment processes were a private matter. The Applicant submitted that being outspoken and critical is a characteristic of a person with the attribute of "political belief of activity" and that a person's values, being one of the reasons provided by the Respondent for the Decision, are informed by their political beliefs.

83 Section 4(1) of the EO Act defines "political belief or activity" to mean:

(a) holding or not holding a lawful political belief or view;

(b) engaging in, not engaging in or refusing to engage in a lawful political activity; ...

84 The Applicant did not specify what lawful political belief or view he held or did not hold or what lawful political activity he was or was not engaging in regarding his emails to the Respondent. Having considered the content of the emails between the Applicant and the Respondent prior to and including the Decision, I am satisfied that the Applicant's emails to the Respondent after his Job Applications were unsuccessful were complaints of a private nature regarding how the Applicant disapproved of the Respondent's recruitment processes and that there is nothing in the content of the emails that could enliven the protected attribute of "political belief or activity".

85 Although being critical and outspoken may be a characteristic of a person with the attribute of "political belief or activity", as discussed above at paragraph 71, a person must first possess the protected attribute before the characteristic can be something they generally have or can generally be imputed to them.

86 Whilst it may be true that a person's political beliefs inform their values, a person's values are not themselves a protected attribute and so for a person's values to be a characteristic of a person with a protected attribute under section 7(2)(b) and (c) of the EO Act, that person must first possess the protected attribute. As I have found that nothing in the content of the Applicant's emails to the Respondent enlivens the protected attribute of "political belief or activity", any values expressed by the Applicant in his emails to the Respondent cannot be a characteristic, whether actually held or imputed, of a person with the attribute of "political belief or activity". In other words, because the Applicant does not possess the attribute of "political belief or activity", there are no relevant characteristics of the Applicant, including his values, for me to consider under section 7(2)(b) and (c) of the EO Act in relation to that attribute.

87 I am also satisfied that, given the private nature of the Applicant's emails to the Respondent, there are no alleged facts or other grounds on which it could successfully be argued by the Applicant that, as a result of the content of his emails, the Respondent presumed that the Applicant possessed the protected attribute of "political belief or activity".

88 As a result, I find that the Applicant has not alleged any facts that could lead the Tribunal to a finding that the Applicant possessed, or that the Respondent presumed he possessed, the protected attribute of "political belief or activity" and so the Applicant's claim in this regard is lacking in substance because it cannot possibly succeed. The Applicant's claim that the Decision subjected him to unlawful discrimination on the basis of the protected attribute of "political belief or activity" is therefore dismissed.

89 The Applicant asserts that, in making and implementing the Decision, the Respondent subjected him to unlawful discrimination on the basis of his "religious belief or activity". The Respondent submitted that the Applicant did not mention anything about religion in his emails to the Respondent and so there was no evidence that the Applicant possessed the attribute of "religious belief or activity". The Applicant submitted that a person's values, being one of the reasons provided by the Respondent for the Decision, are informed by their religious beliefs.

90 Section 4(1) of the EO Act defines "religious belief or activity" to mean:

(a) holding or not holding a lawful religious belief or view;

(b) engaging in, not engaging in or refusing to engage in a lawful religious activity; ...

91 The Applicant did not specify what lawful religious belief or view he held or did not hold or what lawful religious activity he was or was not engaging in regarding his emails to the Respondent. Having considered the content of the emails between the Applicant and the Respondent prior to and including the Decision, I am satisfied that the Applicant's emails to the Respondent after his Job Applications were unsuccessful were complaints of a private nature regarding how the Applicant disapproved of the Respondent's recruitment processes and that there is nothing in the content of the emails that could enliven the protected attribute of "religious belief or activity".

92 Taking into account that being critical and outspoken may be a characteristic of a person with the attribute of "religious belief or activity", as discussed at paragraph 71 above, a person must first possess the protected attribute before the characteristic can be something they generally have or can be generally imputed to them.

93 Whilst it is most certainly true that a person's religious beliefs inform their values, a person's values are not themselves a protected attribute and so for a person's values to be a characteristic of a person with a protected attribute under section 7(2)(b) and (c) of the EO Act, that person must first possess the protected attribute. As I have found that nothing in the content of the Applicant's emails to the Respondent enlivens the protected attribute of "religious belief or activity", any values expressed by the Applicant in his emails to the Respondent cannot be a characteristic, whether actually held or imputed, of a person with the attribute of "religious belief or activity". In other words, because the Applicant does not possess the attribute of "religious belief or activity", there are no relevant characteristics of the Applicant, including his values, for me to consider under section 7(2)(b) and (c) of the EO Act in relation to that protected attribute.

94 I am also satisfied that there are no alleged facts or other grounds on which the Applicant could successfully argue that, as a result of the content of his emails, the Respondent presumed that the Applicant possessed the protected attribute of "religious belief or activity".

95 As a result, I am satisfied that the Applicant has not alleged any facts that could lead the Tribunal to a finding that the Applicant possessed, or that the Respondent presumed he possessed, the protected attribute of "religious belief or activity" and so the Applicant's claim in this regard is lacking in substance because it cannot possibly succeed. The Applicant's claim that the Decision subjected him to unlawful discrimination on the basis of the protected attribute of "religious belief or activity" is therefore dismissed.

96 The Applicant asserts that, in making and implementing the Decision, the Respondent subjected him to unlawful discrimination on the basis of his "race". The Respondent submitted that the Applicant did not mention anything about his race in his emails to the Respondent and relied on the evidence of Mr Martin, which was essentially that he did not know anything about the Applicant's personal attributes when he made the Decision, so there is no evidence that the Decision was in any way based on the Applicant's "race".

97 The Applicant submitted that that his race, including his nationality or national origin, can reasonably be inferred by the Respondent from the information in his job applications, including his name, which is why his job applications were unsuccessful and so his emails to the Respondent were a convenient excuse for the Respondent to make and implement the Decision as the real reason for the Decision was his "race".

98 Section 4(1) of the EO Act relevantly defines "race" to include:

99 Having already considered the Applicant's claim of discrimination on the basis of the attribute of "race" in relation to the Job Applications, I find that, in asserting that the Decision amounts to a continuation of that alleged discrimination, the Applicant has alleged facts that, if proven, could lead the Tribunal to a finding that the Respondent has engaged in unlawful discrimination on the basis of the Applicant's "race". Although Mr Martin provided evidence as to his reasons for making and implementing the Decision, he did not provide any evidence about any discussions he may have had with the two recruiters that "vetted and assessed" the Applicant's job applications, if any, prior to making the Decision. Therefore, the Applicant's claim in this regard should not be dismissed summarily.

100 The Applicant asserts that, in making and implementing the Decision, the Respondent subjected him to unlawful discrimination on the basis of the attribute of "age". The Respondent submitted that the Applicant did not mention anything about his age in his emails to the Respondent and relied on the evidence of Mr Martin, which was essentially that he did not know anything about the Applicant's personal attributes when he made the Decision, so there is no evidence that the Decision was in any way based on the Applicant's "age".

101 The Applicant submitted that that his age can reasonably be inferred by the Respondent from the information in his job applications, including his employment history, which is why his job applications were unsuccessful and so his emails to the Respondent were a convenient excuse for the Respondent to make and implement the Decision as the real reason for the Decision was his "age" which is referred to by the Respondent in its reasons for the Decision being his "maturity". The Respondent submitted that the use of the word "maturity" in relation to the Decision needs to be seen in the context of the Applicant's emails to the Respondent which the Respondent considered rude and offensive.

102 The meaning of 'age" is not defined in the EO Act.

103 Having already considered the Applicant's claim of discrimination on the basis of the attribute of "age" in relation to the Job Applications, I find that, in asserting that the Decision amounts to a continuation of that alleged discrimination, the Applicant has alleged facts that, if proven, could lead the Tribunal to a finding that the Respondent has engaged in unlawful discrimination on the basis of the Applicant's "age". Although Mr Martin provided evidence as to his reasons for making and implementing the Decision, he did not provide any evidence about any discussions he may have had with the two recruiters that "vetted and assessed" the Applicant's job applications, if any, prior to making the Decision. Therefore, the Applicant's claim in this regard should not be summarily dismissed.

Personal association with someone who has, or is assumed to have, one of these personal characteristics

104 The Applicant asserts in his Application that, because of the Decision, the Respondent has subjected him to unlawful discrimination on the basis of his "personal association with someone who has, or is assumed to have, one of these personal characteristics", being any of the protected attributes listed in section 6 of the EO Act. The Respondent submitted that no such person has been mentioned by the Applicant in his Application or otherwise.

105 Having considered the Application and the Applicant's evidence and submissions, I accept the submission of the Respondent that the Applicant has not identified any person that he claims to be associated with. Therefore, as no personal associate has been alleged by the Applicant, he could not possess the attribute of "personal association with someone who has, or is assumed to have, one of these personal characteristics" and so the Applicant's claim in this regard is lacking in substance because it cannot possibly succeed. The Applicant's claim that the Decision subjected him to unlawful discrimination on the basis of the protected attribute of "personal association with someone who has, or is assumed to have, one of these personal characteristics" is therefore dismissed.

106 In summary, the Applicant's claims of discrimination in relation to the attributes of "age" and "race" regarding the Support Lead and Project PI roles and the Decision have survived the Respondent's summary dismissal application as well as the Applicant's claim under section 7(2)(d) of the EO Act in relation to alleged discrimination on the basis of the presumed attribute of "industrial activity" in relation to the Decision.

107 The reason these claims have survived is that, taking into account the high threshold required to be met in order to summarily dismiss all or part of a proceeding, I am not satisfied that the Respondent has discharged its burden in this regard as I am not persuaded that the surviving claims are absolutely hopeless regardless of how remote their prospects of success may or may not be.

[1] Towie v Victoria [2008] VSC 177 [9].

[2] Lisa Muscatello t/as Apartments Melbourne Domain v Booking.Com (Australia) Pty Ltd (Civil Claims) [2019] VCAT 914 [6].

[3] Campagnolo v Benalla and District Football League Inc [2009] VSC 228; Chan v Kostakis [2003] VCAT 951.

[4] Equal Opportunity Act 2010 s 8.

[5] McAdam v Victoria University & Ors (Anti-Discrimination) [2010] VCAT 1429.