Victorian Civil and Administrative Tribunal|2002-11-26

Burke v State of Victoria (Metropolitan Ambulance Service) [2002] VCAT 1397 (26 November 2002)

EQUAL OPPORTUNITY ACT 1995 - s.75 VCAT Act - recognition of qualifications - alleged discrimination

MEDIUM NEUTRAL CITATION: [2002] VCAT 1397

For the Respondent: Mr M Rinaldi, instructed by Russell Kennedy

1. This matter comes before me by way of an application pursuant to s.75 of the Victorian Civil and Administrative Tribunal Act 1998 by the abovenamed respondent ("MAS"). It seeks to strike out the application of Kevin Burke ("Burke") on the grounds that Burke's proceeding against it is frivolous, vexatious, misconceived, lacking in substance, or is otherwise an abuse of process. Mr Rinaldi of counsel appeared on behalf of MAS. The applicant, Kevin Burke, represented himself.

2. Mr Rinaldi put the case on behalf of MAS on the basis that the whole of the proceeding should be struck out, or alternatively those parts of the statement of complaint which had not been through the procedure of referral set out in Division 7 of the Equal Opportunity Act 1995 should be struck out.

3. I am conscious of the fact that MAS bears the burden of proof in bringing this application, and that such burden is a substantial one indeed. I am aware of the many authorities relating to this, and in particular, of the principles summarised in Norman v Australian Red Cross Society (1998) 14 VAR 243. For a dismissal or strike out application to succeed, the proceeding must be obviously hopeless, obviously unsustainable in fact or in law, and on no reasonable view justify relief, or be bound to fail, which includes a situation where a complaint can be said to disclose no reasonable cause of action or where a respondent can show a defence sufficient to warrant the summary termination of the proceeding. It is, as stated, a serious matter for the Tribunal, and the burden to be discharged is a heavy one.

4. The matter proceeded by way of submissions and written material, with no oral evidence being called.

5. I shall firstly deal with the factual allegations and findings.

6. The applicant Burke was employed by Greater Manchester Ambulance Service between 1968 and 1975 and from 1978 until 1990. There he received high marks in various training courses and received a certificate of proficiency in ambulance aid. He was employed as a Qualified Ambulance Paramedic. I might say that I have perused the various references and documents which Burke has placed before me, and I accept that, in Britain, he was extremely well regarded by his employer and was a highly motivated and conscientious ambulance officer.

7. Following migration to Australia in 1990, Burke continued to work in the same industry and obtained further certificates of nursing here. He has worked for various contracting firms who perform ambulance work under the umbrella of MAS and subject to its directives. He was employed by Ambikab Pty Ltd from 1996 until January 1999, from Transcare Pty Ltd from then until September 2000, and thereafter by Victorian Patient Transport, a division of Wilson Patient Transport Pty Ltd.

8. The present dispute seems to have its genesis in 1998 when Burke sought recognition of his prior learning (RPL). Thereafter, there have been difficulties. Basically, they all relate to Burke's standing within MAS, the duties which he should be performing or be permitted to perform, and the "rank" which should be allocated to him.

9. The matter is further complicated by a proceeding which Burke brought against the MAS training provider, Monash University. That proceeding, or complaint, was pursuant to the Equal Opportunity Act. It was settled. The terms and details of the complaint and settlement do not concern me, other than the fact that Burke would appear to be relying upon the existence of that complaint as a further, if lesser, cause of the alleged discrimination against him.

10. Whilst the current dispute may have had its origins in 1998, it came to a head in more recent times. I might also add that understanding of the present dispute has been complicated by the loose and often confusing use of terminology by MAS in describing the qualification level and ranking of officers employed by its contractors. However, the following seems as clear as anything can be in this confusing case. Burke's level of qualification is recognised by MAS as that of an ambulance attendant. He claims that, given his level of training and experience in Britain, he should be, and has been, credited as a qualified ambulance officer. Each of these positions is recognised, and the necessary qualifications described, in documents known as Patient Transport Procedures ("PTPs"). There is a distinction, certainly in prestige and presumably in remuneration, between the two ranks. For example, qualified ambulance officers attend as part of their duties major sporting events, such as AFL finals. In Britain, Burke was able to perform such duties and, for example, attended major soccer matches. Whilst the contractors who employ him have a high opinion of his worth, he has not been given the accreditation necessary to undertake such duties on an "official" basis here. This seems to me to be at the core of the present dispute.

11. Reference should also be made to various items of correspondence between the parties. Two of these were obtained after I expressed some dissatisfaction with the documentation supplied. It was quite clear from references in that correspondence that there were at least two missing letters. These have since been supplied.

12. The relevant sequence of correspondence would seem to be as follows, and I am now referring to correspondence which took place in 2001 and which seems to have led directly to this dispute.

13. On 11 April 2001 Burke wrote to his employer, Victorian Patient Transport, referring to some previous discussions, setting out his qualifications, and expressing his interest in having his current qualifications re-assessed as being equivalent to a qualified ambulance officer, with the hope that he could man a vehicle at a public event during the upcoming Easter period. It is emphasised that this letter was addressed not to MAS but to Victorian Patient Transport. Whilst it is difficult to follow the precise sequence of events, it would appear that nothing then occurred until 11 July 2001 when Mr Roderick, Manager, Clinical Support, for Victorian Patient Transport, forwarded correspondence to Rowena McLean, Contract Officer, Non-Emergency Services, at MAS. On 13 July 2001, Ms McLean responded to Mr Roderick's letter, and requested further information concerning Burke's level of qualification. On 10 August 2001, Burke wrote to Ms McLean concerning his qualifications and his training in Britain. This letter, which is one of the additional letters supplied following my disquiet concerning the completeness of the correspondence, is of some interest. Burke, in submissions, denied with some vigour that there had been brought to his notice any correspondence requesting further particulars of his qualifications. It seemed to me evident from a letter of Ms McLean of 22 August 2001, to which I shall next turn, that there had come into his possession a letter in July 2001 from Ms McLean and that he had replied to it. The production of his letter of 10 August 2001 clearly establishes that this in fact occurred.

14. In any event, at that stage Ms McLean, by letter dated 22 August 2001, wrote to Mr Roderick requesting that correspondence be directed through Victorian Patient Transport, which was making the application on Burke's behalf, and also requesting further information.

15. The next letter of relevance appears to be that of 5 March 2002 from Ms McLean to Mr Roderick. It complains of the lack of information provided, and refers to the fact that MAS had, of its own initiative, sought further details of Burke's training and qualifications from Greater Manchester Ambulance Service. It summarises the information obtained, and concludes by stating that the information has been passed on to the Manager, Clinical Education, for re-evaluation of Burke's application to be both an ambulance attendant and a qualified ambulance officer, the positions outlined in the PTPs referred to above.

16. The next relevant letter is dated 8 July 2002, and is from Ms McLean to Mr Rixon of Victorian Patient Transport. In essence, it states that MAS has come to the conclusion that Burke does not possess sufficient educational qualifications equivalent to those required by the Monash University Centre for Ambulance Paramedic Studies, and therefore his status remains unchanged and he can continue to perform the role of ambulance attendant in non-emergency patient transport. It lists the specific assessments and examinations that he has not successfully completed.

17. The argument advanced by MAS, which had the carriage of the matter, in support of the striking out or dismissal of the whole of the proceeding could be summarised as follows. Pursuant to the provisions of the Ambulance Services Act 1986, the objectives of an ambulance service include such things as the provision of services for which specialised medical transport skills are necessary and such ambulance service may do all things that are necessary or convenient to enable it to achieve its objectives (see sections 15 and 16 of the Act).

18. Accordingly, there is a training program for ambulance officers, now conducted by the Monash Centre for Ambulance Paramedic Studies, which also conducts the qualification review process, including the recognition of overseas qualifications. In this regard, MAS implemented the "PTPs". These refer to various levels of qualification and the requirements for obtaining same. Two of these relevant to the present application are exhibited to the affidavit of Ms McLean. It is submitted that these are blanket provisions setting out requirements and qualifications universally applied. They do not discriminate. Even if they did, which is denied, such discrimination would be necessary to comply with, or is authorised by, a provision of an Act. Section 69 of the Equal Opportunity Act 1995 would operate.

19. The arguments advanced by Mr Burke could be summarised as follows. In Britain, he was a well qualified and highly regarded ambulance officer. Since migrating to Australia, he has obtained further certificates in relation to his ability to act in a nursing capacity. By letter of 3 August 1998, Burke was in essence classified as an ambulance transport assistant. There was then some further communication. Whilst Burke was employed by Transcare, an identification card in his name was issued which described his position both as an ambulance attendant and as a qualified ambulance officer. Many of the duties which he in fact performed were in fact consistent with his being a qualified ambulance officer. However, MAS have refused to classify him as a qualified ambulance officer or authorise him to be on duty at such things as major sporting events, duties which he has performed in a very satisfactory manner in Britain.

20. Burke argues that he has been discriminated against by reason of his British origin. He points to the absence of any reference to ambulance officers of an immigrant background, or reference to recognition of overseas qualifications, in the document PTP 700. He further points to a letter from Ms McLean to Mr Roderick at Victorian Patient Transport, such letter being dated 4 January 2002, concerning a complaint. In that brief letter, it is stated that "The complaint is directed at the older of the two male officers, who spoke with a strong north of England accent, who we understand to be Officer Kevin Burke". Further, in his original complaint, Burke referred to derogatory references made to him by MAS members.

21. His principle complaint could be summarised as being that he has been discriminated against because his overseas qualifications have not been adequately recognised by MAS; he has worked as the equivalent of a qualified ambulance officer in England and in fact performed the duties of a qualified ambulance officer here; but nevertheless MAS refuses to classify him as a qualified ambulance officer so that he can perform the duties associated with, and receive the benefits of, such a rank; he has suffered loss and damage of various kinds as a result; and his treatment amounts to discrimination within the meaning of the Equal Opportunity Act.

22. In my opinion MAS has discharged the heavy burden which it bears. In the wealth of material placed before me, I can find no suggestion that MAS has discriminated against Burke within the meaning of Part 2 of the Equal Opportunity Act.

23. I can find no trace of either direct or indirect discrimination. Mr Rinaldi referred me to various passages from the judgment of Sackville J in Australian Medical Counsel v Wilson & Ors [1996] FCA 1618; (1996) 68 FCR 46, and particularly at pp.77 and 78. There certainly seems to me to be some parallels between the situation there described and the present case. MAS has established a system of qualification and ranking which applies "across the board" to all employees and contract workers in the ambulance services. It has a system for recognizing and reviewing prior learning. Assessment can then be made on the basis of that prior learning. There is absolutely nothing which I can find in the documentation relating to these systems which indicates any form of discrimination or preference, direct or indirect, founded on race, national origin, or any other basis which would constitute a breach of the provisions of the Act.

24. Furthermore, MAS seems almost to have gone out of its way to press Burke for details regarding his prior learning. Ultimately it was forced to make its own enquiries. It then conducted its review and an assessment was made. There is nothing in the material to suggest that there was any discrimination applied by it in the carrying out of that procedure.

25. If there was any delay in providing the information, that does not seem to have been in any way the fault of MAS, much less a deliberate policy by it. The delay was occasioned either by Burke or by Victorian Patient Transport. As mentioned earlier, Burke stated more than once that requests from MAS for further information concerning his prior learning and qualification were never received by him or brought to his attention. His letter of 10 August 2001 to Ms McLean demonstrates, at least as far as the request contained in the letter of 11 July 2001 is concerned, that his assertions are simply not correct. Interestingly, Burke's letter of 10 August 2001 also contains the statement "I appreciate that the delay in dealing with this matter may be of my employer's doing ...". He is there clearly referring to Victorian Patient Transport. His subsequent submissions, received by me after production of that letter, do not assist.

26. In summary, in my opinion, and having examined the very large amount of material that was placed before me, Burke's application, insofar as it is based upon the failure of MAS to give him the accreditation or qualification which he has sought, is doomed to failure. I cannot see that even the thinnest of prima facie cases can be made out by him. The material upon which he relies and the material provided by MAS are in no way supportive of his complaint. Indeed, they point, and point clearly, in the opposite direction, revealing guidelines and requirements of universal application and without a trace of discrimination.

27. Nor do I find that there is anything of substance in his allegations concerning discriminatory or insulting terminology used about him. It is certainly nothing that can be visited upon MAS. The reference in the letter of 4 January 2002 to an officer speaking with a strong north of England accent is firstly, and patently, true, but more importantly it is being used solely as a means of identifying Burke as opposed to another officer, and seems to me to be doing no more than reporting what was said by a third party making a complaint and endeavouring to identify the officer concerned. Nor do I find anything even resembling a case against MAS in the reference to some alleged taunts and insults referred to in the original complaint of Burke, but not repeated in the revised complaint of 9 October 2002.

28. Finally, there is absolutely nothing which has been put before me which would even remotely indicate that there has been some discrimination against Burke based upon or caused by the fact that Burke brought earlier proceedings against Monash University as the MAS training provider.

29. In my opinion, Burke's complaint is obviously hopeless and unsustainable in fact or in law. I come to that conclusion without having to consider the operation of s.69 of the Act. The operation of that section would, if it were possible, even more certainly doom the complaint to failure.

30. Based on the material which I have perused, it would seem that Burke is a hard-working and dedicated employee who has performed very well for various employers carrying out ambulance services. That, however, is not the issue. The issue is whether the complaint which he has made should be struck out or dismissed pursuant to s.75 of the Victorian Civil and Administrative Tribunal Act 1998. In my opinion, the whole of that complaint should be, and is, struck out accordingly.

Civil and Administrative Tribunal Act 1998

Opportunity Act 1995

Burke v State of Victoria

At a glance

Court

Decision date

Source

Judgment (34 paragraphs)

Burke v State of Victoria (Metropolitan Ambulance Service) [2002] VCAT 1397 (26 November 2002)

Parties

Legislation Cited (3)

Cases Cited (1)