The Applicant sought to add this group of respondents two months after he first made his application. The Tribunal simply added them to the list of Respondents without the other respondents having any chance to make submissions about their joinder. Accordingly, if they are not to remain as respondents they must be removed under section 60A of the VCAT Act 1998.
The Tenth Respondent, Carmel White, was a manager in the Conduct and Ethics branch of the First Respondent. The Applicant complains about her management of misconduct allegations made against him and of his complaints about "Caucasian teachers". For example, he says that the "employment limitation" placed on him was "disproportionate punishment compared to the level of misconduct that I was accused of" and generally sets out his grievances about allegations made against him and how they were investigated and managed. Apart from asserting his own conviction that these actions were discriminatory, the Applicant names no instances of speech or behaviour which if proved would support a conclusion that what happened to him was related to his race or another protected attribute. Accordingly, taking into account the matters discussed above, the Tenth Respondent should be removed as an individual respondent.
The Applicant also says that the Tenth Respondent was involved in an investigation which victimised him for complaining to the Fair Work Commission. The EO Act 2010 prohibits only victimisation of a person who complains or takes action as described under Victoria's equal opportunity legislation (see section 104 of the EO Act 2010). A complaint about victimisation for a complaint to the Fair Work Commission does not on its face fall within that description.
The Eleventh Respondent, Cherie Marks, was the Applicant's fellow staff member. The Applicant alleged that she was sitting at the same table as the Fourth Respondent when that respondent said something about "brown skins in the staffroom". He also alleged that the Eleventh Respondent was the subject of the Fourth Respondent's acts which denigrated and humiliated him at a staff party (see above). He said that the Eleventh Respondent shared an office with the Fourth Respondent and made incorrect statements about what occurred in these incidents. Even if all these allegations were proved, they do not on their face appear to amount to unlawful discrimination or victimisation by this Respondent. Taking into account the principles identified above, this respondent should be removed as an individual respondent.
The Twelfth Respondent, Delmar Zachest, was also a fellow staff member with the Applicant. The Applicant alleged that this person provided an incorrect statement to the investigator appointed by the Regional Director. Although the Applicant alleged this was done in breach of various sections of the EO Act 2010 in order to assist other respondents in victimisation and unlawful discrimination, nothing alleged against this respondent appeared on its face to amount to unlawful discrimination or victimisation. Accordingly, taking into the account the principles identified above, this respondent should be removed.
The Thirteenth Respondent, John Allman, was the First Respondent's regional director of the region in which the Applicant's school was located. This Respondent was not represented by the First Respondent's legal representative. The First Respondent says he no longer works in the Department. This Respondent did not attend the directions hearing and has not responded to the notices sent to him (care of the school). I was not satisfied he had been served with a copy of the application or any of the notices.
The Applicant's main complaint against Mr Allman was that he had instigated an investigation of allegations made against the Applicant. The Applicant said the allegations were made by the Second Respondent (the school principal) in retaliation for his complaint to the Fair Work Commission. The Applicant said that the process followed by this Respondent was "unfair, lacked transparency and gave the appearance of being one-sided". While the Applicant asserted that this Respondent acted against him because of his employment activity, race and impairment, none of the allegations appeared on their face to be related to these protected attributes. Accordingly, taking into account the principles identified above, this respondent should be removed.
The Fourteenth Respondent, Greg Gibbs, was the investigator appointed by the regional director to investigate allegations of misconduct. The Applicant's main complaint against him was that he was not an impartial investigator and did not treat him fairly. Over almost four pages, while the Applicant asserted that this Respondent treated him badly because of his employment activity and his race and was victimising him, the allegations do not on their face support those conclusions. Taking into account the principles identified above, this respondent should be removed.
Because of the issues set out above regarding each of the Tenth to Fourteenth Respondents, if they had not already been informally joined and I were now called upon to decide whether they should be joined, I would refuse to join them. As it stands, I am satisfied that they are not necessary or proper parties to the proceeding. The allegations against them are not on their face allegations of unlawfully discriminatory conduct, despite the Applicant's invocation of various sections of the Act. Further, the First Respondent admits it is vicariously liable for wrongful conduct proved against its employees in this proceeding.
[2]
There was no dispute that the First Respondent was a proper and necessary respondent. Similarly, the respondents accepted that the Second and Fourth Respondents should be individual respondents, though they did not of course concede any facts had been established against any of them. The respondents sought the removal of the Third and Fifth to Ninth Respondents.
The Third Respondent was the Assistant Principal at the school where the Applicant worked. The Applicant claimed that this Respondent raised his voice at the Applicant a number of times. Also, the Applicant alleged, this Respondent had made incorrect statements to the investigator appointed to investigate allegations against the Applicant. In this regard, the applicant expanded upon his dissatisfaction with the way the investigation was conducted. The Applicant asserted that these events occurred because of his complaint about remarks by Ms Arena. However, on the face of it, none of the details given about the conduct of this Respondent appeared to be related to protected attributes of the Applicant or to behaviour protected by the prohibition of victimisation in section 104 of the Act. Accordingly, applying the principles identified above, he is not a proper or necessary respondent and should be removed.
The Fifth Respondent, Therese Sweeney, was the Head of Science during much of the period when the Applicant worked at McKinnon Secondary College. The Applicant's documents[9] contain two full pages describing issues or events involving the Applicant and this Respondent. The Applicant says she subjected him to harassment, unfair treatment and disrespect. However, the events described do not mention any speech or behaviour of this Respondent which on its face appears to be related to any protected attribute of the Applicant. Accordingly, taking into account the principles identified above, this Respondent is not a proper or necessary party and should be removed.
The Sixth Respondent, Lachlan Nobel, was the Head of Senior School at McKinnon Secondary College. A full page of the Applicant's documents[10] sets out the Applicant's complaints about this Respondent, whose behaviour the Applicant claims was disrespectful and unprofessional. The Applicant complains that the principal took no action about this and says "I felt that my feelings and my opinion did not matter. Others could treat me as they wanted in the workplace without fear of any recrimination for their inappropriate behaviour merely because of my race". As far as this complaint concerns the principal, I note that she is the Second Respondent.
Despite the Applicant's assertion that the Sixth Respondent's treatment of him was related to his race, on its face none of the conduct attributed to him appears to be related to any protected attribute of the Applicant. Accordingly, this Respondent is not a proper or necessary party and should be removed on the basis of the principles identified above.
The Seventh Respondent, Harriet Barrow, was a fellow staff member of the Applicant's. He complains that she called him "unprofessional", that she acted unethically in attempting to advantage her students and that she undermined him. While the Applicant asserts she behaved towards him in an "unprofessional and disrespectful" manner because of his race, none of the conduct described, on its face, appears to be related to any protected attribute of the Applicant. Accordingly, taking into account the principles identified above, this respondent is not a proper or necessary party and should be removed.
The Eighth Respondent, Ben Buntmann, was the school representative for the Australian Education Union. The Applicant complains that in March 2013 this Respondent shouted at him at a meeting and afterwards screamed at him and advanced threateningly towards him. The Applicant complains that the Principal did little to support him over this matter and that this Respondent continued to bully him. The Applicant said he told the principal this was because of his race and the principal did not act, with the result that the Applicant had to work in an unsafe workplace. The events described do not on their face indicate that the behaviour of this Respondent was related to any protected attribute of the Applicant. As far as they relate to the principal, she is already a respondent. Taking into account the principles identified above, the Eighth Respondent is not a proper or necessary party and should be removed.
The Ninth Respondent, Trevor Groves, was the daily organiser at McKinnon Secondary College, responsible for assigning extra duties. The Applicant complains that the respondent unfairly gave him more extra duties than other teachers and that when the Applicant complained to the principal this treatment became worse. It is possible that this escalation of behaviour if proved could be victimisation as described in section 104 of the Act, but on its face the description lacks essential elements which would link the escalation of behaviour to any action of the Applicant described in section 104(1) (a) to (h) of the EO Act 2010. Further, nothing in the events described appears on its face to refer to a protected attribute of the Applicant.
Since the First Respondent accepts it is vicariously liable for the behaviour of its employees and in the circumstances where there are already a number of respondents and many allegations and assertions, it is appropriate that the Ninth Respondent be removed. Later, if the Applicant's particulars reveal alleged details which would indicate on their face that this Respondent's behaviour was related to the Applicant's race or that the allegation of an escalation of unfair treatment can be related to matters covered by section 104, the Applicant will be free to apply to join this respondent as a respondent.
[3]
At the directions hearing on 19 April 2016, I refused the Applicant's application that the Tribunal appoint a professional advocate for him, under section 62(6) of the VCAT Act 1998.I refused that application and advised the Applicant that he could apply again if the matter was not resolved at the Compulsory Conference. In his written submissions filed on 14 June 2016, the Applicant applied again for a professional advocate to be appointed. He did not have leave to make that application and it was not one of the matters I had indicated would be considered at that directions hearing. Accordingly, that application is again refused.
[4]
I also make the usual orders for the next step in the proceeding, which will be a compulsory conference. The Applicant is required to attend in person. The First Respondent is required to attend by a person with authority to bind that respondent in any resolution of the proceedings. Each of the other Respondents must attend in person. No party may attend by telephone, in accord with the usual procedure for compulsory conferences. The parties' legal representatives if any are permitted to attend. As usual at VCAT, the procedure at the compulsory conference will be decided by the member presiding.
For the assistance of the presiding member and of the parties, each party is required as set out in the orders to prepare and provide to the other parties a short position paper in preparation for the conference. This will form part of the conference and will not remain on the Tribunal file.
[5]
[1] That is an application by the First to Ninth Respondents and the informally joined Tenth to Twelfth and Fourteenth Respondents. The Thirteenth Respondent made no applications.
[6]
[4] See the discussion of vicarious liability in Halsbury's Laws of Australia at [415- 80]
[7]
[5] See the discussion of joint tortfeasors generally in Halsbury's Laws of Australia at [415- 180]. These principles are basic so I have not set out the relevant case law.