1. Dr Chakraborty has made a complaint against Alison Jeynes, a co-worker with him at Healthworks medical practice in Bendigo. Dr Chakraborty was a doctor employed in the practice and Alison Jeynes was the Office Manager.
2. This is an application for the striking out of Dr Chakraborty's complaint against Alison Jeynes under s 75 of the Victorian Civil and Administrative Tribunal Act 1998.
3. Dr Chakraborty has complained that Alison Jeynes has breached the Equal Opportunity Act 1995 and in particular s 14 of that Act. He says she has discriminated against him because he is of Indian descent, and also because he is male.
4. Section 14 provides that an employer must not discriminate against an employee and certain aspects of that prohibited conduct are set out in the sub-sections to s 14. The aspect relied upon in this case is 14(d) which provides that an employer must not discriminate against an employee by subjecting the employee to any other detriment.
5. Although s 14 is directed against employers, Dr Chakraborty has not brought this proceeding against his employer. He has brought it only against Ms Jeynes.
6. Dr Chakraborty relies upon s 102 of the Act which provides as follows:

"If a person in the course of employment or while acting as agent -

(a) contravenes a provision of Part 3, 5 or 6; or

(b) engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 3, 5 or 6 -

both the person and the employer or principal must be taken to have contravened the provision, and a complaint about the contravention may be lodged against either or both of them."

1. Thus, Dr Chakraborty says that the detriment of which he complains was conduct which was engaged in by her in the course of Jeynes' employment at Healthworks, the mutual employer of both the complainant and the respondent.
2. The conduct which is said to constitute the detriment consists of the following:

(i) Not allocating a time slot to Dr Chakraborty in relation to a minor procedure which needed to be performed on a patient.

(ii) Speaking to Dr Chakraborty in an aggressive tone in relation to this incident.

(iii) Supplying information to the Bendigo Advertiser and to the Herald Sun in respect of his competence or performance as a doctor in the practice.

1. Dr Chakraborty says that this conduct was rude, unwarranted and caused him hurt, humiliation and distress.
2. Dr Chakraborty alleges that this conduct was engaged in by Alison Jeynes because of his race.
3. In addition, he says that the fact that he is male also contributed to her behaviour because he alleges that she would have preferred a female doctor at the practice.

The principles applicable in a strike out application

1. I take it to be clear law that in determining a strike out application I should take the complainant's case at its highest and that I should presume for the purpose of deciding this application that the complainant will be able to establish all the facts on which he relies. If the strike out application is successful then it will dispose of the matter before the complainant has had any opportunity to put his case. Therefore, I should exercise caution before summarily terminating a proceeding and should only do so if the proceeding is obviously hopeless, obviously unsustainable in fact or law, on no reasonable view can justify relief, or is bound to fail.
2. Counsel for the complainant submitted that the complaint, as I have outlined it, raises questions of fact which, if proved, will establish Dr Chakraborty's claim. He submits the claim is not doomed to fail, and it is a matter for trial as to whether or not the incidents which Dr Chakraborty complained of took place at all, were motivated by race or sex, and took place in the course of the respondent's employment so as to be properly categorised as a detriment within the terms of sections 14 and 102 of the Act.

1. There are three main issues relied upon by the respondent in the application. The first was the assertion by counsel for the respondent that at the time Alison Jeynes was interviewed by each newspaper she had resigned her employment at Healthworks. Therefore s 102 of the Equal Opportunity Act would have no application to the circumstances surrounding her newspaper interviews because none of this conduct occurred in the course of her employment.
2. The second matter relied upon was that the remaining conduct described by Dr Chakraborty could not amount to evidence of discrimination by Alison Jeynes against the complainant because of his race or sex as there was simply no evidence connecting that conduct to his race or sex.
3. Thirdly, Counsel for Jeynes submitted that there was no evidence in the complaint of a comparator. This evidence would be required to establish that, following the words of s 8 of the Act, he had been treated less favourably than Jeynes had treated or would treat someone who was not of Indian race or the male sex, in the same or similar circumstances.
4. Counsel for Jeynes submitted that overall the description of Jeynes' behaviour towards Dr Chakraborty during her employment was so inconclusive that it would be an abuse of process to allow these allegations to go to trial.

Was Alison Jeynes employed by Healthworks at the relevant time?

1. At present there is no evidence one way or another before me as to when the respondent ceased her employment with Healthworks.
2. Counsel for the respondent invites me to find as a fact that she ceased her employment before the comments were made which were the basis of the newspaper articles.
3. The first Bendigo Advertiser article appeared on 6 January 2009 and the second appeared on 7 January 2009. The Herald Sun article also appeared on 7 January 2009. Counsel for Jeynes asserted that by 7 January she had resigned, and that I could be sure of this because there are references in the articles to her saying that she had done so.
4. However, there is no evidence in this case yet as to the circumstances surrounding her resignation. There is no evidence as to when the conversations took place between Alison Jeynes and the relevant journalists.
5. Counsel for the respondent suggested that the words "in the course of employment" as they appeared in s 102 were very specific and that in interpreting those words the respondent could call in aid many established authorities which had considered the parameters of that term. He submitted that it was a far more confined term than words such as "arising out of her employment" or "whilst legally employed", which had been used by counsel for the complainant.
6. In my view the question of whether or not the conduct of Jeynes in speaking to journalists from the Herald Sun or the Advertiser arose out of the course of her employment with Healthworks cannot be determined until there is some factual evidence on which such a finding can be made. I anticipate that this would require evidence as to when it was that Ms Jeynes resigned, whether she worked out a period of notice, and whether there are other surrounding circumstances which may affect the proper interpretation of s 102.
7. It is thus premature for any determination to be made now as to this factual issue.

Do the balance of the complaints disclose discrimination?

1. The respondent submitted that even if Dr Chakraborty is able to prove the balance of the matters about which he complains, such conduct could not be linked to any unlawful discrimination. He relied in particular upon a recent decision of this Tribunal in the matter of Dickie v State of Victoria & Ors (Anti-Discrimination) [2009] VCAT 713 where Senior Member Megay made the following observations:

"To say that the complainant's allegations turned out to be entirely unsupported would be an understatement. Before turning to the evidence there are some preliminary comments that are often voiced in this Tribunal and which bear repeating. The Equal Opportunity Act 1995 is conceptually difficult. It is poorly understood by the community in general and by litigants and persons specifically.

What is not understood by many is that much conduct that is considered unfair by a particular litigant is not necessarily discriminatory conduct per se. Put simply, just because someone does not warm to you and does not like you and does not agree with you and does not share your particular passions, it does not follow that his or her conduct is unlawful and falls within the Act."

1. These observations of Senior Member Megay are, in my view, a clear and accurate statement of the law.
2. Senior Member Megay referred also to the observations of Deputy President Macnamara in Drummond v Telstra Corporation Ltd [2008] VCAT 2630 where he said:

"Most people in one form or another possess most of the attributes (as defined in the Act). It is frequent experience in this list that people who feel they have been unjustly dealt with, whether in employment or other context, identify what they see as unfair treatment and their possession of one or more attributes as leaping to the allegation that they have been the victims of direct discrimination."

1. These observations are also clearly true, and have been made in earlier cases before the Tribunal and the Courts. An early example is that of Fullagar, J in Department of Health v Arumagam [1988] VicRp 42; [1988] VR 319 where His Honour held that racism should not be inferred where a more probable and innocent explanation was available on the evidence.
2. The respondent says that Dr Chakraborty has not established any nexus between the events which he alleges took place and the attributes of race or sex. She submits that an innocent explanation of the behaviour is clear from the facts themselves. She says that she does not dispute that she admonished the doctor, but says that she did so in her role as manager of the office. She says this role carried with it the responsibility to manage allegations of poor work practice. She suggests the circumstances point to her concern about the doctor's behaviour because it was contrary to established protocols in, for instance, revealing an intimate patient diagnosis to a third party. She says this is entirely consistent with the facts alleged by Dr Chakraborty, and is a much more probable explanation than an inference of prejudice.
3. She submits that if an innocent explanation is clearly more probable, then the Tribunal should find the case against her to be so weak that it would be an abuse of process to allow it to go to trial.
4. In the case of Dickie itself, Senior Member Megay came to the conclusion that the conduct complained of was an emotionally charged exchange of views without any connection to discrimination on the grounds of race.
5. The case of Dickie was, however, a case which went to trial, and in which all of the available evidence of behaviour was assessed by the Member before coming to her conclusion. It was not a s 75 application.
6. The Tribunal must be careful when considering an application for summary dismissal not to shut out a complainant from investigating a connection which may be hard to prove. As was said, also in Dickie, by Senior Member Megay:

"Racist and discriminatory behaviour is rarely overt and often must be inferred from the surrounding factual matrix and the behaviour of those involved. It would be rare indeed for a respondent to admit to having engaged in discriminatory behaviour on the grounds of race or some other prohibited ground."

1. Each case must therefore be looked at on its facts to see whether there is any evidence which, if accepted, might support such a finding. It would only be if no such evidence was potentially discernable that the case could be characterised as frivolous, vexatious, misconceived or lacking in substance at this early stage.
2. In this case, in my view, there are sufficient facts alleged which, if proved, could be used to ground such an inference. Dr Chakraborty says that race is the context in which the behaviour of Jeynes took place, and that this is evident when the whole of the circumstances surrounding her conduct in giving press interviews is examined.
3. He says he will be able to establish at trial that the allegations of professional misconduct made by Jeynes are untrue. He says those allegations are so irrational that they must have been ill motivated. He says she has made those allegations in order to denigrate him.
4. Chakraporty says Jeynes has blown up an ordinary issue of professional practice, and that she has done so because of prejudice against him on the grounds of race and sex. He says the necessary link can be inferred from her aggressive treatment of him, and her refusal to treat him according to usual professional protocols, combined with her action in giving media interviews about his behaviour in which professional conduct, race and caste are intertwined.
5. It is not my role at this stage to make a final determination on any of these matters but it is in my view clearly arguable that the matters raised by Jeynes in the newspaper interview could throw light on the connection between Jeynes conduct towards Dr Chakraporty and his race , in the manner suggested by counsel for Chakraborty. It is, in my view, an arguable proposition, not a proposition which is clearly misconceived at law and/or doomed to fail on the facts.
6. I turn now to consider the complaint of discrimination on the grounds of sex. The complainant alleges that Alison Jeynes had wanted a female doctor to be employed, and has treated him in the way set out above because of her annoyance that a female doctor was not employed in his place.
7. It is true that he does not assert any particular fact which provides evidentiary support for that assertion. However, the respondent has herself introduced a letter which might have some bearing on this issue.
8. The respondent's submissions filed in this application reproduce a letter of resignation from Ms Jeynes which is quoted in those submissions as follows:

"I feel I have a lot to offer Healthworks and have tried my best, by my actions, to further its progress. I have been proactive in providing a new lady doctor for Healthworks and stepping in to protect its reputation and doctors, where it is obvious that a problem may arise from actions taken by staff."

1. The quoted words may be interpreted in several different ways. Counsel for Jeynes say the words show her innocent motivation. One of the possible other interpretations of these words, and particularly the words"I have been proactive in providing a new lady doctor for Healthworks" is that Ms Jeynes has taken it upon herself to engineer a situation whereby Dr Chakraborty is to be edged out of the practice in favour of a female because of her prejudice against male doctors.
2. I stress that this is only one possible interpretation of this letter and that I have no factual material before me at all about the letter or the circumstances in which it came to be written.
3. However, this underscores the fact that the matters which have been raised are factual matters which should be explored at a hearing, rather than used as arguments to justify the striking out of this claim before any evidence has been considered.

1. The respondent further submits that the allegations against her cannot be proven to be a breach of the Act as Dr Chakraborty must be able to establish that the treatment he received was less favourable treatment than provided to others. She points out that there is no evidence that this was the case. No evidence has been put forward as to the appropriate comparator, or to support less favourable treatment to comparable staff. Although the allegations are denied, counsel for Jeynes points out that even if the Tribunal was to find that Jeynes was rude and aggressive to Dr Chakraborty, she may have taken the same attitude to all staff, showing no different treatment to Dr Chakraborty.
2. However, until very recently Dr Chakraborty has been unrepresented. I think it unreasonable to require an unrepresented complainant to understand the issues surrounding proof of a comparator and the need for appropriate evidence to be put forward in proof of the claim.
3. Even now that he is represented, I take the view that evidence about a comparator in an employment dispute such as this may require third party discovery. It would not be likely that an employee would ordinarily have access to information as to how other employees are treated without detailed investigation of a workplace. It would not be reasonable for the absence of such evidence at this preliminary stage of the proceeding to be used as a ground for striking out the claim.
4. Accordingly, I decline to strike out the complaint. The respondent's application under s 75 is refused.