[2003] VCAT 41

1. That, to the extent that the Complaint and Particulars of Complaint claim that Wayne Mackay, Michael Hayden, Mark Hayden and Tim Darcy are personally liable for conduct alleged in that Complaint or those Particulars, those claims are struck out. This paragraph does not apply to allegations in that Complaint or those Particulars concerning any of those individuals to the extent that the Respondent is alleged to be liable for those matters.

2. The claim that, after the Complainant left work in December 2001, the Respondent and some of its Directors told clients of the Respondent and estate agents operating in the Geelong district that her employment had been terminated for poor work performance is dismissed.

3. In all other respects the Respondent's application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 is dismissed.

1. That the Complaint is dismissed as against the First Respondent.

2. The claim that, after the Complainant left work in December 2001, the First Respondent and some of its Directors told clients of the First Respondent and estate agents operating in the Geelong district that her employment had been terminated for poor work performance is dismissed.

3. In all other respects the Respondents' application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 is dismissed.

[1] I briefly summarise the effect of the orders that at the conclusion of the giving of my reasons I will sign. Their effect is this. In respect of proceeding no.A176 of 2002 ("the first Complaint") what I call in my reasons the post termination of employment claim is dismissed. The proceeding is struck out insofar as it makes claims that individual Respondents are personally liable. In all other respects the Respondent's Application under s.75 of the Victorian Civil and Administrative Tribunal Act 1998, which I call "the VCAT Act" is dismissed.

[2] As far as the second Complaint is concerned, that is proceeding A309 of 2001, the claim made in respect of the first Respondent which is Hayden Real Estate (Geelong) Pty Ltd which I call "the Company" is dismissed. The post termination of employment claim is dismissed, and in all other respects the Respondents' application under s.75 of the VCAT Act is dismissed. I now give my reasons.

[3] On 5 February 2002, Ms Cunningham lodged with the Equal Opportunity Commission, which I call "the Commission", a Complaint under the Equal Opportunity Act 1995 ("the Equal Opportunity Act"). The Complaint names only the Company, as the Respondent. Under s.108(1)(A) of the Act, the Commission declined to entertain the Complaint insofar as it alleged marital status discrimination. From correspondence from the Commission included in the material before me, it appears that it did so because it considered that the claim was misconceived.

[4] The fact that the Commission considers a claim to be misconceived is one of the grounds upon which under the provision I have just mentioned it may decline to entertain a Complaint. The Commission referred the other claim of the Complaint, that of lawful sexual activity discrimination, to conciliation. Conciliation was unsuccessful. By letter dated 28 May 2002, Ms Cunningham, through her solicitors who were indeed the same solicitors by whom the Complaint was lodged, required the Commission to refer all the claims in the Complaint to the Victorian Civil and Administrative Tribunal ("VCAT"). The Commission did so.

[5] The Tribunal then set a timetable for Particulars of Complaint and Defence, Witness Statements, and a date for the Hearing. After Particulars of Complaint had been filed and served, the Company applied to strike out or dismiss the Complaint under s.75 of the VCAT Act. The Company has also filed and served Particulars of Defence concerning this Complaint. This Complaint is now numbered A176 of 2002 in the Tribunal's register of proceedings.

[6] On 22 August 2002 Ms Cunningham lodged with the Commission under the Equal Opportunity Act a Complaint which eventually has become proceeding A309 of 2002 in the Tribunal's Register of Proceedings. It claims marital status and lawful sexual activity discrimination against the Company and four of its Directors, Wayne Mackay, Michael Hayden, Mark Hayden and Tim Darcy. It is identical in form to the Particulars of Complaint filed in relation to the first Complaint.

[7] Ms Cunningham applied to the Commission for this Complaint to be expedited. The Commission refused that application. The Commission considered this Complaint to be non conciliable. Ms Cunningham required the Commission to refer the Complaint to VCAT and it did so. The Respondents then applied to strike out or dismiss this Complaint under s.75 of the VCAT Act. Section 75 of the VCAT Act permits the Tribunal to strike out or dismiss all or any part of a proceeding, here the Complaint, if it is satisfied that it is frivolous, vexatious, misconceived, lacking in substance or an abuse of process.

[8] Although the Respondents in their written submissions argue that the second Complaint is vexatious, it is fair to say that this ground was not pursued in oral submissions.

[9] In determining an application of this kind, the Tribunal has in many cases followed what was said by the Victorian Court of Appeal in Rabel v. State Electricity Commission (1998) 1 VR 102. As far as relevant here, those principles are these.

[10] The Tribunal should be cautious before summarily terminating a proceeding under this section, and so depriving the litigant of the chance to have the case heard in the ordinary course. It should only do so where a Respondent satisfies it that because of one of the grounds mentioned in the section, the case is manifestly hopeless, undoubtedly untenable or doomed to fail.

[11] I have before me the Particulars of Complaint and defence for the first Complaint, and the Complaint itself, the second Complaint and written and oral submissions by the parties.

[12] In their written submissions, the Respondents to the Complaints include affidavits by each of the individual Respondents to the second Complaint. It was submitted for Ms Cunningham that I should disregard these affidavits because they are properly material for the full hearing of the Complaints, not for this preliminary strike out application. I do not agree. Although ordinarily applications under s.75 of the VCAT Act do not involve the calling of oral evidence, there is nothing to prevent a party in its submissions from including affidavit material. The Tribunal's directions setting a timetable for the filing and service of submissions on this application did not prescribe the form that the submission should take.

[13] However, in my view it is not appropriate to determine finally any of the issues raised in the affidavits based on the affidavits alone. The makers of these affidavits were not called to give evidence, so that the evidence has not been tested through cross-examination. It is also clear from the material that Ms Cunningham disputes much of what is said in the affidavits. I also note that there is some internal inconsistency in the affidavit material which would in any case make it difficult to decide on the basis of those affidavits alone.

[14] I give one example. Mr Mackay says in his affidavit that meetings of the Company's Board of Directors were held on the second Friday in each month, while the other individual Respondents to the second Complaint say in their affidavits that those meetings were held on the first Friday of each month. I should say that the affidavit of Ms Lorbeer who, subject to the supervision of her principals in the firm of the Respondents' solicitors has had carriage of their case is not disputed by Ms Cunningham. That affidavit contains copies of correspondence relevant to the parties' submissions.

[15] I now briefly summarise the claims as they appear from the material before me. The Company is a real estate agency business. Ms Cunningham began to work for it as a real estate agent representative on 29 January 2001. The individual Respondents to the second Complaint are Directors of the Company. Mr Mackay is Manager of residential sales, the department in which Ms Cunningham worked. He was Ms Cunningham's manager. In August 2001, Ms Cunningham met at a dance Adam Turley, an employee of Robert Creece Real Estate Pty Ltd, a Geelong real estate agency business and a competitor of Hayden Real Estate.

[16] In about September 2001 Ms Cunningham began a sexual relationship with Mr Turley, and she told Mr Mackay of this. Mr Mackay said that he did not believe it was a good situation and would discuss it with the Directors at the next board meeting. On about 14 September 2001, Mr Mackay told Ms Cunningham that she could not attend appraisal of property also attended by the Robert Creece Real Estate agency firm. From about 15 October 2001, Ms Cunningham and Mr Turley began living together and still do.

[17] On about 12 November 2001 Mr Mackay told Ms Cunningham that Michael Hayden, the Company's chairman of Directors, wanted to speak to her and that the real issue was her relationship with Mr Turley.

[18] That afternoon Ms Cunningham met with Mr Mackay and Mr Michael Hayden. After Ms Cunningham mentioned her relationship with Mr Turley, Michael Hayden emphasised the importance of confidentiality and loyalty to the Company.

[19] Ms Cunningham then says that in November 2001, she was allocated two property appraisals and in December 2001 she was allocated none in circumstances where before these dates she had been allocated a far greater number of appraisals. Appraisals are the term used in the industry for the inspection of a property at a potential vendor's request to value the property with a view to sale.

[20] About 10 December 2001, Ms Cunningham and Mr Turley became engaged to be married. When Ms Cunningham came to work on 12 December 2001, she told some of her work colleagues, and some of these sent e-mails to all the staff informing them of their engagement. From then on Ms Cunningham says that Michael Hayden and Mark Hayden did not speak to her or acknowledge her and were unfriendly and abrupt towards her.

[21] On 15 December 2001, notice of her engagement was published in the newspaper, the Geelong Advertiser. On 17 December 2001, Mr Mackay told Ms Cunningham that the Directors of the Company had decided at a board meeting to terminate her employment, that they were uncomfortable about her relationship with Mr Turley, that she would be given an excellent reference if she told staff she had resigned, and that this was the course of action which was preferred by the Directors.

[22] Ms Cunningham left work on that day. She says that thereafter Michael Hayden and Mark Hayden and Tim Darcy informed clients of the Company with whom she had formerly dealt with and also real estate agents operating in the Geelong district that Ms Cunningham's employment had been terminated because of poor work performance.

[23] The material as a whole for Ms Cunningham discloses that her claims are these.

(A) That by not permitting her to attend property appraisals attended by the Robert Creece firm Mr Mackay directly discriminated against her on the ground of her lawful sexual activity by treating her less favourably than a person with a different lawful sexual activity in the same or similar circumstances and so breached the Equal Opportunity Act, and that by reason of s.102 of that Act the Company was also liable for that breach because it occurred while Mr Mackay was acting as its agent, or while he was an employee in the course of his employment;

(B) That by allocating to Ms Cunningham fewer property appraisals during and after November 2001 than before that date, the Directors Tim Darcy, Michael Hayden, Mark Hayden, and Mr Mackay directly discriminated against her in breach of the Equal Opportunity Act on the ground of her lawful sexual activity and/or marital status by treating her less favourably than they would have treated a person with a different lawful sexual activity or marital status in the same or similar circumstances. The Company is liable for that breach for the same reasons as I have set out under (A);

(C) That by not speaking to her, or acknowledging her and by treating her in an unfriendly and abrupt manner, Mark Hayden and Michael Hayden directly discriminated against her on the ground of her lawful sexual activity and/or marital status in breach of the Equal Opportunity Act by treating her less favourably than they would treat a person with a different lawful sexual activity or marital status in the same or similar circumstances. The Company is liable for that breach on the same basis as I have set out under (B);

(D) That by terminating her employment Mr Mackay, Michael Hayden, Mark Hayden, and Mr Darcy directly discriminated against Ms Cunningham in breach of the Equal Opportunity Act and that the Company is liable for that breach. The claim is formulated in the same way as the claim under item (C);.

(E) That by informing clients of the Company and other real estate agents in the Geelong district that Ms Hayden's employment was terminated because of poor work performance, Mark Hayden and Michael Hayden and Tim Darcy directly discriminated against her in breach of the Equal Opportunity Act and the Company was liable for those breaches on the same basis as I have mentioned in relation to claim (C);

(F) That Michael Hayden, Mark Hayden, and Tim Darcy indirectly discriminated against Ms Cunningham by imposing a requirement or condition that the Company's employees not engage in lawful sexual activity and/or have the relationship involved in the attribute of marital status with employees of another real estate agency firm operating in the Geelong district, that this was a requirement or condition with which people without Ms Cunningham's lawful sexual activity or marital status could comply, that it was a requirement or condition with which she could not comply, and which was not reasonable. The Company is said to be liable in respect of this claim on the same basis as I have mentioned earlier.

[24] In the context of this claim of indirect discrimination, the Particulars of Complaint refer as detriment to the various kinds of conduct I have mentioned in paragraphs (A) to (E) of my summary of the claims. The Respondents dispute many of the assertions made by Ms Cunningham. They deny discrimination and breach of the Equal Opportunity Act. They say, for example, that the sole reason for the conduct alleged was Ms Cunningham's poor work performance. Nevertheless, and correctly in my view, they assume for the purposes of this application that Ms Cunningham will be able to prove the facts which she now alleges.

[25] I now come to the parties' submissions. It is convenient first to deal with the submission by the Respondents about the second Complaint. The Respondents to that Complaint say that it should be struck out in its entirety because it is an abuse of process. They say this for a number of reasons.

[26] First they say that the Complaint is identical to the Particulars of Claim in relation to the first Complaint, and it is an abuse of process to pursue what are in fact two identical claims.

[27] Second, they say that s.102 of the Equal Opportunity Act makes it clear that if an agent while acting as such, or an employee in the course of employment among other things breaches part 3, the employer or principal is (subject to s.103 - which is not relied on here) also liable for that breach, and a Complaint can be made against the employer, or principal, the employee or agent, or against both of these.

[28] Ms Cunningham was legally represented throughout, from the lodgment of the first Complaint on. She chose in the first Complaint to complain only against the Company. In the second Complaint she now seeks to alter that choice and complain against both the Company and its individual Directors. It would be an abuse of process to permit her to do this. If a complainant were permitted to do this, a complainant could, for example, make a series of complaints concerning conduct allegedly engaged in by number of participants, claiming first against one participant, then against another, and then another and so on over a period of time.

[29] A contrary submission is made for Ms Cunningham. It is argued for her that the objectives of the Equal Opportunity Act include the elimination as far as possible of discrimination and the provision of redress for its victims. A complainant who genuinely seeks to pursue a claim should not be shut out because of failure to mention some or one of the alleged participants in the relevant conduct in one complaint. A complainant should not be deterred from pursuing such a claim against all alleged participants in the relevant conduct. To do otherwise would be to undermine the objectives of the Equal Opportunity Act.

[30] It is said for Ms Cunningham that the circumstances here are that the Complaints are not being made one at a time against individual Respondents. Three of the four individual Respondents to the second Complaint were mentioned in the first Complaint. These were the Respondents Mackay, Mark Hayden and Michael Hayden. After including in the Particulars of Complaint for the first Complaint, claims against the Company's four individual Directors, Ms Cunningham's solicitors sought from the Respondent to that Complaint consent to join the individuals to the first Complaint. That consent was not forthcoming. It was this failure to consent which led to the lodgment of the second Complaint.

[31] It is clear from the material before me, which includes a number of exchanges of correspondence between the complainants and the Respondents' solicitors, that this is in fact what happened.

[32] I have concluded with some hesitation that the second Complaint - except for one claim - should not be struck out on this ground. I have no doubt that it would have been more desirable for Ms Cunningham to have named in the first Complaint all those against whom discrimination was claimed. But this does not mean that the lodging and pursuing of the second Complaint against the individual Directors of the Company is an abuse of process. What constitutes an abuse of process must be a question of degree, and would depend on the circumstances of each case. The rationale behind the power to strike out a proceeding for abuse of process is to protect the interests of justice and preserve the integrity of the Tribunal's processes.

[33] On balance, to allow Ms Cunningham to pursue the second Complaint will not so endanger the integrity of those processes, or the interests of justice in a way that would justify the summary termination of the proceeding. A complainant should not be shut out from proceeding against individuals whom the complainant says are the authors of the discriminatory conduct concerned. To do otherwise would, in my view, undermine those objectives of the Equal Opportunity Act which I have mentioned. In the circumstances of this particular case, all the Respondents - both the Respondent to the first Complaint and the Respondents now to the second - have been on notice since the lodgment of the first Complaint, that the discrimination was claimed not just against the Company, but against individual Directors.

[34] Once the Particulars of Complaint identify that there were claims against individuals and consent was refused to join them, a second Complaint was lodged without delay. This meant that the individual Directors in fact had the benefit of the processes of investigation, and if appropriate, conciliation, established by the Equal Opportunity Act. This is not a case where serial Complaints are made against individuals one at a time. One Complaint was lodged covering all of the individuals against whom claims were made. These are the reasons why I am not prepared to strike out the second Complaint as against the individual Respondents.

[35] However, to the extent that the second Complaint makes claims against the Company, it should be dismissed. It duplicates the first Complaint as particularised and it would be an abuse of process to allow it to continue.

[36] To the extent that the first Complaint and the particulars of that Complaint make allegations against individual Directors and allege that they are personally liable, those claims should be struck out as against them, although not as against the Company. The only Respondent to the first Complaint was the Company. No application has been made to join the individuals as Respondents to the first Complaint.

[37] The Respondents argue that even assuming that Ms Cunningham can prove that they did what she alleges they did, the individual Respondents were, at the time, acting not as agents or employees of the Company, but as the Company's Board of Directors; in other words, as the embodiment, or decision making arm of the Company itself. They say that accordingly the claims in the second Complaint against them should be struck out, because those claims rely on their liability as agents or employees of the Company. They say that the claims against the Company in the first Complaint should be struck out because those claims rely on the Company's liability for the acts of those individuals in their capacity as the Company's employees or agents.

[38] In other words, they argue that because individuals acted as the decision making arm or embodiment of the Company, because they were in fact the Company, s.102 of the Equal Opportunity Act cannot make the Company liable in its capacity as an employer or principal, or the individuals liable in their capacity as agents or employees.

[39] It is argued for Ms Cunningham that there is a dispute about the capacity in which the individuals to the second Complaint acted, whether they acted in fact as agents or employees, or as the decision making arm of the Company. This dispute, it is argued, should go to a full hearing where evidence can be called and tested through cross-examination.

[40] I agree with Ms Cunningham's submission. I have already explained why I do not regard the affidavits included in the Respondents' submissions as determinative of this matter. This issue is in dispute and should go to a full hearing. In addition, I note that s.102 of the Equal Opportunity Act is not the only provision under which a Company might be liable. Section 14, which I take to be the primary prohibitions in the Equal Opportunity Act on which Ms Cunningham relies, prohibits an employer from discriminating against an employee in various ways. Under that section, the Company as Ms Cunningham's employee might be directly liable and the decisions and reasons for decisions of the Directors of the Company might constitute direct evidence of the Company's reasons for its conduct.

[41] The Respondents next argue that the claims of indirect discrimination, and of a reduction in the property appraisals allocated to Ms Cunningham, should be struck out because they are included in the particulars of the first Complaint, but not the first Complaint itself. They say this for three reasons.

[42] First they say that the scheme of the Equal Opportunity Act is that a Complaint goes through a number of processes, and the claims which have not gone through these processes ought not to be able to be added after the Complaint is referred to VCAT.

[43] Second they say that the Tribunal does not have jurisdiction to entertain such claims. They say that under s.134 of the Equal Opportunity Act, the Tribunal may "hear" a Complaint referred to it under various sections. Those sections include s.108 and 117, the sections under which the Commission referred the first Complaint to VCAT. The Tribunal cannot hear anything but the Complaint, that is, the Complaint lodged with the Commission.

[44] Third, they say that to the extent that the claim of marital status discrimination in the first Complaint was declined by the Commission, the hearing by the Tribunal of that claim constitutes a review of the Commission's decision, and the Tribunal cannot go outside the decision under review and add new material to that part of the Complaint.

[45] Ms Cunningham argues that I should reject their submissions. I accept this submission. In my view, when the Tribunal hears a Complaint referred to it under s.108 or 117 and also under various other referral sections in the Equal Opportunity Act, it is exercising original and not reviewed jurisdiction. It is clear from s.40 to 48 of the VCAT Act that the Tribunal has two jurisdictions. One is its review jurisdiction. The other is its original jurisdiction. Original jurisdiction is the Tribunal's jurisdiction other than its review jurisdiction.

[46] Original jurisdiction is invoked by a person entitled by or under an enabling enactment to do so applying to the Tribunal in accordance with s.67 of the VCAT Act, or by a matter being referred to VCAT under an enabling enactment in accordance with s.69 of that Act.

[47] According to s.42, the Tribunal's review jurisdiction is

"...jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision-maker".

[48] According to section 48, that jurisdiction is invoked by a person entitled to do so by or under an enabling enactment applying to the Tribunal in accordance with s.67,

[49] Alternatively, it is invoked by a decision maker referring a decision to the Tribunal under an enabling enactment in accordance with s.69,

[50] Under s.108 and 117 and other referral sections, the Commission refers a Complaint to the Tribunal. It does not refer a decision to the Tribunal. It refers a Complaint for hearing, not a decision for review. The fact that under s.134 of the Equal Opportunity Act the Tribunal has jurisdiction to hear a Complaint does not, in my view, mean that the Complaint cannot be added to by, for example, joining a party under s.60 of the VCAT Act, or amending the Complaint under s.127 of the VCAT Act, or for that matter by requiring further particulars of the Complaint to be given, or giving evidence in relation to a Complaint.

[51] The Complaint is, after all, a document which need only contain details of the alleged breaches. It is not required to state the whole of the complainant's case including all supporting particulars and evidence. Having said this, I recognise, as is clear from a number of earlier cases in this Tribunal, that there are clear limits on the Tribunal's power to amend a Complaint under s.127 of the VCAT Act and also that that amending power and the power to join parties are discretionary powers.

[52] Finally in my view, the particulars concerning indirect discrimination and concerning a reduction in property appraisals are true Particulars of Complaint, and do not require an amendment to the first Complaint itself.

[53] I note that the Commission characterises the first Complaint as falling under s.6 to 9 of the Equal Opportunity Act, that is, as claiming both direct discrimination and indirect discrimination. I also note that the first Complaint mentions the claim that Ms Cunningham was directed not to attend property appraisals where members of the Robert Creece Real Estate Agency attended. In my view, these matters are within the scope of the first Complaint, and are indeed particulars of it and it ought not to be struck out. However, in my view the claim of indirect discrimination made in paragraphs 63 to 66 of the particulars of the first Complaint is unclear and the nature of the requirement or condition alleged and how the other criteria in s.9 of the Equal Opportunity Act are alleged to apply should be further particularised. So also should the way in which the earlier conduct set out in the particulars is alleged to constitute the imposition of that requirement or condition.

[54] The Respondents next submit that certain claims are incapable of constituting discrimination and should be struck out. They first say that there is incapable of being a link between Ms Cunningham's alleged attributes of lawful sexual activity and marital status and the Respondents' alleged conduct of allocating less property appraisals to her in the months of November and December 2001. They say that on her own material, the Respondents became aware of her relationship with Mr Turley in early to mid September 2001, but that the property appraisals allocated to her did not reduce until November 2001. I am not satisfied that it can be said that this claim is manifestly hopeless in the sense that there is manifestly no link between the Respondents' alleged conduct and the attributes.

[55] On its proper construction, and taking into account all the material before me, Ms Cunningham's claim is that her lawful sexual activity and/or marital status were actuating factors leading the Respondents, over a period of time, to subject her to various disadvantages or detriments beginning with the refusal to permit her to attend appraisals at which the Creece firm was involved, continuing with a reduction in property appraisals allocated to her, and culminating in the termination of her employment. She is alleging that this conduct forms a pattern commencing almost immediately after she told Mr Mackay of her sexual relationship with Mr Turley and gradually worsening, particularly after the fact of her engagement became known to the staff of the Company. It is the whole of this conduct, taken collectively, that is alleged to constitute a detriment, and it is the coincidence in time between Ms Cunningham advising Mr Mackay and other Directors of her relationship with Mr Turley that is relied on to permit the Tribunal to infer that some of the actuating reasons for this conduct were the attributes mentioned in her claim. This part of the claim should not, in my view, be struck out.

[56] The Respondents next argue that the claim that Ms Cunningham was not spoken to or acknowledged, and was treated in an unfriendly or abrupt way by the Company's Directors after her engagement became known to the Company is incapable of constituting a detriment to her. I do not agree.

[57] First, for the reasons I have just explained, Ms Cunningham is claiming that a series of actions collectively constitute detriment.

[58] Second, properly read, the claim is not that the Respondents ought to have positively congratulated her on her engagement, but rather that she was ostracized by the Company's Directors, and in this way singled out from other staff. This is of itself, in my view, conduct capable of constituting a detriment to her.

[59] Third, as this Tribunal and its predecessors have pointed out on a number of occasions, "detriment", when used in the Equal Opportunity Act, is capable of covering a disadvantage of any kind as long as that disadvantage is real and not illusory. Ms Cunningham is not saying, in my view, that this behaviour by the Respondents constituted humiliation or denigration.

[60] Fourth, I note that the Directors of the Company in their affidavits give various alternative explanations for not speaking to Ms Cunningham on that day, and also deny that any breach of the Act occurred. These are matters which should, in my view, go to a full hearing. They are matters in dispute, and evidence as to them should be given.

[61] I should add that in my view paragraph 67 of the particulars of the first Complaint and also the second Complaint relate to loss caused by all of the discrimination claimed, not just the indirect discrimination claim. However, in my view, for clarity, and in relation to the particulars of the first Complaint, these particulars should be amended so that further particulars of the way in which s.14 of the Act is alleged to have been breached should be included. The Respondents then argue that the discrimination claims made concerning conduct allegedly occurring after the termination of Ms Cunningham's employment are incapable of falling within s.14 of the Equal Opportunity Act, and so should be struck out or dismissed.

[62] It is argued for Ms Cunningham that s.14 is wide enough to cover these claims. It is said that they arise out of her employment and are incidental to it. It is said that the alleged conduct would not have occurred but for her employment with the Company.

[63] I agree with the Respondents' submissions. Section 14 is headed "Discrimination against employees." It provides-

"An employer must not discriminate against an employee -

(a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment;

(b) by dismissing the employee or otherwise terminating his or her employment;

(c) by denying the employee access to a guidance program, apprenticeship training program or other occupational training or retraining program.

(d) by subjecting the employee to any other detriment."

[64] Section 4 gives "employer", "employee", and "employment" respectively broad meanings so as to cover, for example, contracts not only of service but contracts for services, and also those who work on a commission basis.

[65] In my view, according to its clear wording s.14 only covers matters arising during employment, and also termination of employment, but not matters arising after employment has ended. Although the objectives of the Equal Opportunity Act can be said to indicate that the legislation is social legislation and aims to protect human rights, this does not mean that the language in the Act should be strained so as to give it a meaning which the words cannot bear. Although at common law certain duties are said to arise which extend after the termination of the employment, for example duties concerning matters relating to confidentiality, these duties cannot be used to override or change the plain meaning of the words in s.14. It follows that the claims concerning conduct allegedly occurring after the termination of Ms Cunningham's employment are manifestly hopeless, cannot be cured by amendment and should be dismissed.

[66] The Respondents next say that the claims of discrimination based on marital status or lawful sexual activity are so inadequately particularised that they should be struck out. I do not agree that these claims should be struck out, but in my view certain further particulars of them should be given. As the Supreme Court said in Barbon v. West Homes Australia Pty Ltd (2001) VSC 405, while at the Particulars stage the case does not have to be outlined with the exactness of a pleading and all the evidence which is to be given at the hearing need not be set out, particulars must be sufficient to allow the other side to know what is the case it must meet.

[67] In my view, the Particulars of the first Complaint and the second Complaint which state that in September 2001 Ms Cunningham began a sexual relationship with Mr Turley, can be reasonably understood to mean that the lawful sexual activity in question was consensual sexual intercourse between those two. The statement in those particulars of the first Complaint and in the second Complaint, that in October 2001 Ms Cunningham began to live with Mr Turley, and in November 2001 became engaged to him, when read with the earlier statements I have just mentioned, can be reasonably understood to mean that the marital status involved is that of a domestic partner. That is, "domestic partner" as defined in s.4 of the Equal Opportunity Act and applied to this case to mean that Ms Cunningham and Mr Turley were not married but were living as a couple on a genuine domestic basis. However, for clarity in my view the particulars of the first Complaint should state the date on which that relationship of domestic partnership is alleged to have commenced.

[68] The Respondents next argue that the claims are incapable of constituting discrimination status; that is, domestic partner discrimination and lawful sexual activity discrimination as those terms are defined in the Equal Opportunity Act. Under s.4 domestic partner of a person means-

"A person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender)"

[70] The Respondents argue on the basis of the wording of these definitions and of such cases as Boehringer Ingelheim Pty Ltd v Reddrop (1984) EOC 92/108, and Waterhouse v Bell (1991) EOC 92/376, that the attribute of being a domestic partner refers to a relationship of a particular kind and that the attribute of lawful sexual activity refers to a particular kind of sexual activity, but that neither attribute is concerned with the identity of the particular person with whom that relationship exists, or that activity is engaged.

[71] The Respondents say that even assuming that Ms Cunningham can prove what she asserts, their concerns were with Mr Turley as the participant in the relationship or activity, not with their relationship or activity itself. In other words, had the activity or relationship been with a person other than Mr Turley, the Respondents would not have acted as they did. If a close relationship had existed between Ms Cunningham and Mr Turley otherwise than as domestic partners and not involving any sexual activities, the Respondents would still have acted as they did. They do not deny that they were concerned that Ms Cunningham would reveal to Mr Turley - the employee of the Company's competitor - confidential information gained in the course of the Company's business.

[72] Indeed, this is a concern mentioned in the Company's letter sent to Ms Cunningham after she had left work in December 2001. It is also mentioned in the affidavits included in the Respondents' submissions. The Respondents say that this concern is unrelated to any relationship as a domestic partner, or any lawful sexual activity in which Ms Cunningham might have been engaged. A contrary submission is made for Ms Cunningham on the following basis.

[73] First it is argued that the attributes of lawful sexual activity and being a domestic partner of their very nature involve another person and that at least in the circumstances of this case, it is impossible to disentangle the identity of the participants from the attributes themselves.

[74] Second, a similar argument is made concerning the reasons of the Respondents for their alleged conduct. Those reasons, it is said, related both to the identity of the particular participants in the relationship of domestic partners or the lawful sexual activity as well as to that relationship or activity themselves. The reasons cannot be disentangled. Had there been no lawful sexual activity or relationship of domestic partners between Ms Cunningham and Mr Turley, but some other close relationship, the Respondents would not have acted as they are alleged to have done.

[75] Third, it is argued that the Respondents' alleged conduct toward Ms Cunningham was based not on some perception that because of her weakness or deficits in her character she would reveal confidential information to Mr Turley (a reason which clearly would not be based on lawful sexual activity or her status as a domestic partner) but rather on an assumption made without taking her individual circumstances into account, that the relationship of domestic partners and/or her lawful sexual activity will necessarily involve the exchange of confidences, including commercially confidential information relating to the participants' employers between the participants in the relationship or activity.

[76] This is to say that there is a characteristic which is generally imputed by the Respondents to those in the relationship of domestic partners, or who engage in this particular kind of lawful sexual activity. The Respondents, it is said, acted as they are alleged to have done towards Ms Cunningham because of this imputed characteristic. This part of the claim then is one capable of falling under s.7(2)(C) of the Equal Opportunity Act, the effect of which is that discrimination on the basis of an attribute includes discrimination on the basis of a characteristic that is generally imputed to a person with that attribute.

[77] I am not satisfied that the case is manifestly hopeless on this ground. The issues of fact need to go to a full hearing for determination. The issues of law are difficult and should be determined at a full hearing in the light of the facts as found and after fuller argument.

[78] However, in my view, further particulars of how exactly Ms Cunningham puts this part of her case are needed to enable the Respondents to know exactly what case they must meet.

[79] The Respondents then said that Ms Cunningham has not sufficiently identified the comparator for the purposes of direct discrimination both in the second Complaint and in the particulars of the first Complaint. No direction has been made for particulars of the second Complaint. That Complaint need only, under s.105 of the Equal Opportunity Act, contain details of the alleged breach. In my view it complies with this requirement.

[80] The particulars of the first Complaint, however, must clearly refer to the relevant comparator so that the Respondent can know what case it must meet; that is, to enable the Respondent to know how exactly the alleged breaches are characterised. In my view the comparator is sufficiently particularised. From the Particulars of Complaint, it appears to be with a person with a different lawful sexual activity or marital status from that alleged by the complainant.

[81] I should also say that I do not accept the Respondents' submission that I should strike out paragraphs 4, 6, 8, 12, 13, 16, and 20 to 30 of the first Complaint because since the material in those paragraphs were not mentioned in the Particulars of Complaint, the material in those paragraphs has effectively been abandoned by Ms Cunningham. The material in those paragraphs is, in my view, properly matters for witness statements and was rightly excluded from the Particulars of Complaint. There is no reason to strike out the Complaint on this basis.

[82] My conclusion is that the first Complaint is dismissed in part as I have indicated, as struck out in part as I have indicated. There will be liberty to Ms Cunningham to apply for reinstatement of the parts that have been struck out depending on the fate of any joinder or consolidation application she might wish to make. As I have said, this of course does not apply to the claims both in the first and second Complaint concerning post termination of employment conduct. They have been dismissed. Otherwise the Respondents' application in respect of both Complaints fails.

[84] First, these Complaints will be listed for a directions hearing at which Ms Cunningham may make any joinder or consolidation application that may be appropriate. At that hearing directions for amended Particulars of Complaint in relation to the first Complaint will no doubt be given, and also a timetable will be set in relation to the second Complaint. Those directions, of course, will depend on the fate of the applications I have just mentioned. There may also be a reinstatement application depending on the fate of the joinder or consolidation applications.

[85] Second, in its submissions the Respondents in effect ask me to reconsider decisions of the Tribunal such as Yimm v. State of Victoria (2000) VCAT 821. As far as the Tribunal's jurisdiction in relation to the referral of Complaints under the Equal Opportunity Act is concerned, the Respondents raised arguments not raised in Yimm's case and I have dealt with those arguments on that basis.

[86] Third, some of the parties' submissions were concerned with the Tribunal's powers on an application to join parties or to amend Complaints. Neither of those applications have been made, so it has been unnecessary for me to consider these matters.

[87] Fourth, although many of the Respondents' submissions raise important questions as to whether or not various claims in these Complaints should be summarily terminated, and although in some respects I have indicated that I consider Ms Cunningham's particulars of the first Complaint inadequate, the Respondents in my view have in some of their submissions adopted an unduly technical and narrow reading of the Particulars of Complaint. Although the particulars should indicate the complainant's case with sufficient particularity so that the Respondents know the case they have to meet, the particulars should not be read in an unduly technical way.

[88] This Tribunal is not a court of pleading. Litigants frequently appear without legal representation, and often when they do, they can do little more than set out their story as they see it. If particulars are interpreted too narrowly or technically this would in my view probably deter, or even prevent an unrepresented claimant from pursuing claims before this Tribunal. This would not promote the objectives of the Equal Opportunity Act, particularly those which relate to the provision of redress for the victims of discrimination and the elimination of discrimination. That Act sets up simple mechanisms for commencing and conciliating Complaints. Those mechanisms should not be allowed to falter at the Tribunal stage.