For instance, the new particulars of claim do not meet the bare minimum requirements of the orders in that they fail to set out the events, acts and circumstances which the applicant says amount to discrimination against him, why he says they were discriminatory or what he seeks as an outcome of this proceeding. Further, the new particulars of claim appear to refer to causes of action that are not within VCAT's jurisdiction to determine.

In these circumstances, the respondent is unable to file a new particulars of defence by 4 December 2019 as required by the orders. In lieu of filing a new particulars of defence, the respondent proposes to file an application for orders dismissing or striking out the applicant's claim and expects to be in a position to do so by 6 December 2019...

1. On 6 December 2019, the respondent filed its application pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) that the applicant's claim be dismissed on the following grounds:
   1. the particulars of claim dated 11 November 2019 is frivolous, vexatious, misconceived and lacking in substance on the basis that it fails to disclose a cause of action under the EO Act; and
   2. insofar as the particulars of claim makes claims about underpayment of the applicant under the relevant award or incorrect payments on termination, the Tribunal does not have jurisdiction to hear them.
2. The application was supported by an affidavit of Ms J. Dallimore, solicitor of Minter Ellison. The affidavit was sworn on 6 December 2019 and contained 15 exhibits.
3. Upon the filing of the section 75 application, orders were made by the Tribunal suspending the requirements for delivery of particulars of defence and witness statements and vacating the trial dates.
4. Section 75 relevantly provides:

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

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

1. I heard the section 75 application on 30 January 2020. Prior to the hearing, the respondent provided written submissions which its Counsel summarised at the hearing. I also heard oral evidence and submissions from the applicant. I reserved my decision and made orders for the applicant to provide written submissions and for the respondent to provide any responding submissions.

(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

(2) In determining whether a person directly discriminates it is irrelevant-

(b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice-

(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

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; or

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

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

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

(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person-

(g) has alleged that any person has contravened a provision of Part 4 or 6 or this Part, or Part 3, 5 or 6 of the old Act, unless the allegation is false and was not made in good faith.

PRINCIPLES RELEVANT TO SECTION 75 SUMMARY DISMISSAL APPLICATION

1. In determining applications under section 75 of the VCAT Act, the Tribunal has consistently followed principles set out in Rabel v State Electricity Commission[1]. The relevant principles were summarised by Justice Garde in Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd.[2]
2. For present purposes, the principles can be summarised as follows: The Tribunal should be very cautious before summarily terminating a proceeding under section 75 as such action will have the effect of depriving a litigant of the opportunity to have his or her case decided in the ordinary course. The Tribunal should only proceed to strike out claims when satisfied that, because of one of the grounds in section 75, the case is manifestly hopeless, undoubtedly untenable or doomed to fail. It has been said that a high threshold must be met before VCAT can summarily dismiss or strike out all or part of a proceeding[3].
3. It is also accepted that VCAT should not order summary dismissal in circumstances where the outcome of the case depends on findings of fact based on contested evidence or:

if the ultimate fate of the proceeding depends upon contested questions of fact that would be established or illuminated by oral evidence or cross - examination.[4]

1. I am also mindful that the Tribunal is obliged to ensure that self-represented parties have a genuine opportunity to articulate their case. In considering the respondent's application, I should take the applicant's case at its highest. I must not strike out or dismiss the applicant's case just because he has not articulated or explained it properly. However, I must also take into account the right of the respondent to understand the case put against it.

1. In the VCAT application, the applicant made two detailed claims of direct discrimination. He also made broad references to indirect discrimination and victimisation. He sought an outcome of reinstatement of employment. He also confirmed having made claims relating to this matter to each of the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), Australian Human Rights Commission (AHRC) and Fair Work Commission (FWC).
2. A significant aspect of the direct discrimination claims is the applicant's allegation of having been differently treated by Qube's transport manager (the transport manager), whom Mr Davidson identifies by name, when compared with treatment by the transport manager of a fellow employee truck driver (the fellow driver), whom Mr Davidson also identifies by name. The applicant describes himself as Caucasian. He describes both the transport manager and the fellow driver as being of Indian descent.
3. Both the applicant and the fellow driver held multi combination licences which resulted in each of them driving the biggest trucks operated by Qube at Victoria Dock for Australian Customs. These trucks were Super B doubles.
4. When compared with the fellow driver, the applicant additionally held a dangerous goods licence, a safe load program licence and valid current inductions which he stated gave him the "unique ability" at Qube Victoria Dock to load liquid fuel (diesel). This diesel was used in trucks, reach stackers, a goods train, and diesel electric generators. This resulted in him being able to re-fuel such equipment at no extra operational cost to Qube. Further, he was more senior to the fellow driver at Qube Victoria Dock and the Australian Customs (Border Force) business unit/department, the latter being a specialised Customs facility for tasks including security checks of entire trucks.
5. Another job task at Qube, within Customs X-Ray, is the driving of a tautliner combination (tautliner) which only requires a lower grade heavy combination truck licence. It was a role, according to the applicant, that was generally disliked by the truck drivers. The tautliner is lower in volume and weight to the truck the applicant normally drove but it required more physical effort for its driver when handling its freight and presented different driving challenges in windy or inclement weather.
6. Due to his years of experience, the applicant had often driven the tautliner in the past. Despite this, he asserted that, to have been required to drive it in 2018, would for him have been "in effect a demotion in rank and status".
7. However, when the tautliner driving job again became vacant (on a date initially unspecified in the VCAT application) it was allocated by the transport manager to the applicant. The applicant maintains that it should have been allocated by the transport manager to the fellow driver as it was his turn, he is much younger and he had rarely driven it in the past. The applicant then claims that this is an instance of direct discrimination due to race and it occurred at Qube Victoria Dock transport hut inside the office of the transport manager in a closed-door meeting at 1.00 pm on 14 February 2018 (the 14 February 2018 meeting).
8. Between 24 December 2017 and 7 January 2018 (both inclusive), the applicant had been on annual leave. It was upon returning to work on 8 January 2018 that he found out that he had been transferred from Australian Customs X-Ray to Qube bulk operations. The applicant again asserted that this was effectively a demotion as Customs was a coveted role which he had worked hard to attain.
9. Although admitting that he was not certain as to dates, the applicant believed that the fellow driver had taken leave for approximately four weeks in January to February 2018. However, the applicant was certain that when the fellow driver returned from leave he moved "seamlessly" straight back into Australian Customs and was not transferred into bulk operations like the applicant had been. The applicant maintained that this is the second incident of direct discrimination due to race by the transport manager.
10. The applicant then referred to both he and his colleagues (the number and identities of whom were not disclosed) having additionally been indirectly discriminated against by Qube due to race for two years prior, and continuing, and that he had further been victimised for speaking out about these existing work practices at Qube.
11. According to Mr Davidson, at the 14 February 2018 meeting, the subject of which was about him being reinstated to a particular department, the transport manager had sought his "views on Indian people, truck drivers specifically". In response, he informed the transport manager that from his research, the percentage of Indian people who then lived in Australia was 3% to 4% of the total population. On this basis, Mr Davidson explained that at Qube, the ratio of Indian staff to non-Indian staff was somewhat distorted as Indian staff at Qube represented "roughly 40%," that with the disproportionately high number of Indian employees at Qube there was a risk "potential" of nepotism, and that nepotism is a form of corruption being displayed in favour of Indian employees. However, the applicant then clarified that this had nothing to do with Indian employees in general but did so specifically with truck drivers.
12. At the end of the 14 February 2018 meeting, the transport manager had informed the applicant that he would make a formal complaint against him. On 26 February 2018, the senior transport manager of the respondent, Mr Bennett, met with the applicant (the 26 February 2018 meeting), and informed him at the outset that he was stood down immediately with pay, pending the outcome of an investigation by Qube of an allegedly severe breach of conduct by the applicant of racial vilification.
13. The applicant maintained that being stood down as he had been was contrary to the settlement of disputes procedure contained in clause 23 of the Qube Workplace Agreement 2017 (the workplace agreement). The applicant resigned at the 26 February 2018 meeting after being informed about the investigation.

1. Mr Coulton, General Manager of Industrial Relations of the respondent, provided its defence which included attachments. Relevantly, the defence stated:

1. the respondent is a wholly owned subsidiary of Qube Logistics (Aust) Pty Ltd which is Australia's largest integrated provider of import and export logistics services with over 130 locations across Australia and overseas and a workforce of over 7,500 employees; 2. Qube is very serious about its equal employment opportunity obligations as demonstrated by each of its documented Code of Conduct and Ethics, Diversity Policy, Workplace Behaviour Policy, Employee Handbook, Recruitment Procedure, Employee Assistance Program, Employee Induction, and Unconscious Bias Training;

1. the respondent had reviewed the VCAT application and the particulars of claim and was able to identify within the VCAT application two alleged incidents of direct discrimination which it set out in the defence and to which it responded;

1. at the time of the first incident, alleged to have occurred on 14 February 2018 (the allocation of the role of driving the tautliner), the fellow driver was on approved leave for the period from 5 February 2018 to 16 March 2018 (both inclusive); 2. given that the fellow driver was on leave, this alleged first incident of direct discrimination could not have occurred; 3. the alleged second incident is the claim that the fellow driver resumed his role in Australian Customs immediately upon returning to work after 16 March 2018, when compared with Mr Davidson having been transferred to bulk operations from Customs immediately upon his return to work on 8 January 2018; 4. because Mr Davidson ceased employment with Qube on 26 February 2018, it is unclear to the respondent as to how he was discriminated against in this alleged second incident; 5. Qube allocates work in line with the workplace agreement and on an as needed operational basis; 6. the workplace agreement states "in accordance with operational requirements an employee may be required to carry out duties or a mix of duties within a shift as required by the company within the employee's recognised and required skills and capabilities"; 7. the workplace agreement also provides that: "an employee of the company employed under this agreement shall perform any work that the company may reasonably require including any work of a higher or lower grade for which the employee is qualified"; and 8. the applicant did not suffer any loss of pay or detriment in the allocation of the tautliner duties even though such work would attract a lesser pay rate.

1. The new particulars of claim specifically allege five separate breaches of the EO Act by the respondent, being one of victimisation, two of indirect discrimination, and two of direct discrimination. It also includes responses to Qube's defence.
2. The indirect discrimination is asserted by the applicant to have been more serious as it allegedly impacted upon several dozen truck drivers from both day and night shifts at the Victoria dock facility. These drivers are again not otherwise identified.
3. As to the five alleged breaches, the applicant relevantly says in the new particulars of claim:

1. It commenced and continued after the 14 February 2018 meeting when the transport manager made the formal complaint against him;
2. thereafter he was never accorded the presumption of innocence;

1. in the week immediately preceding the 26 February 2018 meeting, he was on sick leave supported by a medical certificate (the sick leave);

1. without informing him, or giving him any right of reply, during the sick leave Qube hired an external trainer at significant cost to it, instead of utilising him at no extra operating cost, to train another employee as a fuel tanker driver, with that employee then replacing him as fuel tanker driver, despite him having undertaken that role exclusively for two years;
2. the complaint by the transport manager was unreasonably raised by the respondent to the levels of racial vilification and severe conduct breach; and
3. in the absence of any prior discussion or being given any opportunity to reply, and without the transport manager also being stood down, he was stood down at the 26 February 2018 meeting in contravention of the workplace agreement.

1. Indirect discrimination, both "socially" and "professionally", occurred because of the disproportionately high percentage of Indian truck drivers employed by the respondent and the resulting risk of nepotism;
2. this has been an outcome of the employment strategy of the respondent based upon its "new business model (Indian friendly)" which involves. in the medium to long term, "a homogenous, compliant, less militant work force that is unlikely to exercise full rights at EBA renewal";
3. this strategy will result in reduced pay and conditions at each EBA renewal and ultimately in significantly lower operating costs for Qube which will give it an unfair advantage when tendering for new business and contract renewals; and
4. both socially and professionally he was marginalised at the Qube workplace and excluded from social interaction, and professional information and debate with a resulting negative impact on his mental health.

1. It is based on race in employment and involves two incidents;

1. the first is when he returned from leave (the fellow driver at that stage not being on leave), he was transferred into bulk operations compared with the fellow driver who, on return from leave, was transferred back into Customs X-Ray;

1. the second is when he returned from imposed bulk operations, he was transferred to duties relating to the tautliner which is to be compared with the fellow driver who, when he returned from leave, was transferred into Super B double duties; and
2. regardless of timeline issues, he received different treatment when compared with the fellow driver on both occasions.

1. Orders for reinstatement of each of his Customs Super B double and X-Ray day shifts, tanker duties and accrued employee entitlements together with compensation of $75,000 for loss of earnings and pain and suffering; and
2. orders against Qube of civil penalties and requiring it to adjust its workforce to one that is appropriately multiculturally diverse when compared with community ranges and expectations.

Affidavit in support of section 75 application

1. Ms Dallimore relevantly deposed to background matters as follows:

1. on 18 March 2018, the applicant lodged an application with the FWC alleging that he had been unfairly dismissed at the 26 February 2018 meeting (the FWC application); 2. among other matters, he stated in the FWC application that he had explained to the transport manager (in the 14 February 2018 meeting) that the ratio of Indian staff at the workplace of the respondent was "distorted" and that he raised the issue of "potential nepotism" as the transport manager was of Indian or Anglo-Indian descent;

1. on 13 August 2018, the FWC application was dismissed as the FWC found that the applicant resigned from his employment at the 26 February 2018 meeting and was therefore not dismissed as required by the Fair Work Act 2009 (Cth) (the FW Act) (the FWC decision);

1. on 2 September 2018, the applicant appealed the FWC decision (the FWC appeal); 2. on 25 September 2018, the FWC appeal was dismissed with reasons delivered on 2 October 2018; 3. the applicant also filed a complaint under the Racial Discrimination Act 1975 (Cth) to the AHRC (the AHRC complaint); 4. in the AHRC complaint, the applicant alleged that he had been discriminated against on the basis of his race/colour, his ethnic/national origin and had been "treated unfairly because of another reason, including victimisation"; 5. on 11 December 2018, the AHRC complaint was terminated by the AHRC under the Australian Human Rights Commission Act 1986 (Cth), on the basis that the complaint was lodged more than six months after the alleged acts took place; 6. the applicant, on a date unknown to the respondent, also filed a complaint with the VEOHRC on the grounds of racial discrimination; and 7. on 5 April 2019, VEOHRC wrote to the applicant informing him that it had closed the matter as the respondent had notified it that it wished to withdraw from dispute resolution.

1. I have read the exhibits which, to the extent necessary, verify the background information contained in the supporting affidavit. I will, however, set out below relevant contents of the exhibits.
2. In the FWC application, the applicant, in setting out reasons for his "dismissal" relevantly stated:

1. to his knowledge only one truck driver had ever returned after being stood down with pay; 2. effectively, he had been terminated at the 26 February 2018 meeting;

1. he had just found out prior to that meeting that the fuel tanker driver role had been filled by another person;

1. prior to this, he had been the only driver at Victoria Dock with the necessary qualifications and experience to drive and refill the fuel tanker: 2. the replacement in the fuel tanker role surprised him as he had been previously asked to train him; 3. the reason for the external trainer being engaged in his absence was because the respondent would need another fuel tanker driver as the old one would be sacked; 4. accordingly, with only a very slim chance of return and having been replaced as the fuel tanker driver he said to Mr Bennett "I'll pull the pin" and he resigned effective immediately; 5. he did not want "to be put through the charade of a kangaroo court"; 6. at the time of the 14 February 2018 meeting, the transport manager had at that stage only worked for several weeks with the respondent; 7. the meeting was held to discuss his reinstatement back to Customs Super B shifts as he had been reassigned to bulk operations upon his return from holidays on 8 January 2018; 8. the transport manager had wanted to discuss Indians to which he gave frank and truthful answers; and

1. after he had raised the issue of potential nepotism with the transport manager because the transport manager held that position, the applicant said that he had not seen any examples to date but merely that he would be sensitive to it and "would switch on my radar."
2. In her reasons for the FWC decision[5], the Commissioner relevantly stated:

1. the matter was heard as a determinative conference on 20 June 2018; 2. each of the applicant, Mr Coulton and Mr Bennett gave sworn evidence;

1. it had been explained to the parties that the Commissioner would determine whether the applicant was dismissed within the terms of the FW Act and that, in the event she did so determine, she would then consider the merits of the application; and

1. from the transcript of the proceeding, the applicant had conceded that he had been aware of other employees having been trained since August 2017 to refuel the fuel tanker and he reaffirmed that his position following being stood down was "recoverable" although he believed that "the chances aren't great"; and 2. in summing - up at pargraphs 28 to 31:

...I have considered each reason put forward by the applicant in determining whether the alleged action of the employer is the principal contributing factor leading to the termination of the employment relationship. I am not persuaded that any of the reasons - alone or together - constitute conduct on the respondent's behalf that can equate to constructive dismissal.

On the evidence, the applicant formed an unshakable conclusion as to the outcome of the respondent's investigation into his comments before it commenced. This conclusion was formed by the applicant despite the applicant having never participated in an investigation before and the explanation from Mr Bennett that company policies would be followed that would ensure a fair and impartial investigation.

On the evidence before me, I cannot conclude that the applicant had a reasonable basis to form the belief that the investigation would be so flawed that he had to resign. It is important to note that in standing the applicant down on full pay, I accept the respondent's submission that it acted in accordance with clause 9.6 of the workplace agreement that applied to the applicant. This should have further removed doubt from the applicant's mind that company policies would not be followed and he had no other option but to resign. Consequently I do not accept that the circumstances surrounding the impending investigation meant that the applicant was forced to resign.

1. In the FWC appeal reasons dated 2 October 2018[6], the Deputy President relevantly stated:

1. the application was heard on 25 September 2018 to consider the issue of permission to appeal; 2. at the conclusion of the hearing, the Deputy President and Commissioner announced their decision to dismiss the appeal with written reasons to follow;

1. the FW Act requires the Commission to be satisfied that the appellant has been "dismissed". Where there is no dismissal the Commission is without jurisdiction to determine an unfair dismissal application;

1. although Mr Davidson was dissatisfied with the Commissioner's decision, he was unable to point to any significant error of fact or any error of law affecting the Commissioner's decision or her reasons; and 2. further, the Commission was not satisfied that it would be in the public interest to grant permission to appeal.

1. Although not required to do so, the applicant filed and served a witness statement dated 13 January 2020.
2. Relevantly, in his witness statement, the applicant said:

1. prior to the 26 February 2018 meeting, he had no intention of resigning; 2. instead, he had a strong need to maintain his employment because of his age, mortgage payments, satisfactory salary earnings with Qube and limited alternative full time job opportunities then available;

1. he had nothing to fear from an impartial investigation as he had only made a frank and factual reply to a question about "Indians" asked of him at the 14 February 2018 meeting by the transport manager who was senior to him in the respondent's job structures;

1. the transport manager, who is no longer employed by the respondent, "took offence and wasn't capable of dealing with truthful replies given in a reasonably empathetic tone"; 2. as soon as he sat down at the 26 February 2018 meeting, he was told that a very serious breach had been committed and he would be stood down immediately with pay, pending the outcome of an investigation; 3. given both that he had found out just before that meeting that the fuel tanker driver role was continuing to be undertaken by another employee who had been trained by an external provider, and the manner in which the meeting was being conducted, it became "obvious" to him that the investigation would not be impartial; 4. he found it "interesting to note that" the respondent "has identified unconscious bias as a potential problem and has sort (sic) to address this with appropriate training". He defined nepotism as "a form of conscious and unconscious bias towards people to who (sic) you feel an affinity, for example a relative or person from same ethnic group etc." Given this, he questioned how the raising of "potential nepotism" by him with the transport manager could be treated as a serious breach of conduct and warranted him being stood down and the subject of investigation: 5. accordingly, he believed he "had no avenue of fair redress and faced no hope with their internal processes" and not wishing to make what was a distressing experience both more protracted and unpleasant, he said "I'm pulling the pin"; and 6. he then stood up and shook Mr Bennett's hand and quickly departed Qube's premises.

Respondent's submissions for summary dismissal hearing

1. Deficiencies in particulars of claim are generally not a reason to strike them out in their entirety. However, the respondent must understand the case they are to meet, and the applicant must articulate a case that is reasonably capable of being understood[7];
2. The new particulars of claim, in general, fails to plead with any precision, the acts or omissions that the applicant alleges make up the various breaches of the EO Act and does not provide sufficient detail to allow the respondent to understand and meet any case against it. In this regard, the respondent submitted:

1. As that term is defined by section 104 of the EO Act, the applicant alleges that he was victimised on the basis that he had made a formal complaint about the number of people of Indian background employed by the respondent;
2. to succeed, he must show that his complaint about employees of Indian background in the workplace of the respondent was a complaint about an alleged contravention of Part 4 or Part 6 of the EO Act and that it was not false and that it was made in good faith and that the respondent victimised him because of the complaint. However, his allegation is bound to fail for the following three reasons:
   1. his complaint cannot properly be understood as an allegation of a contravention of Part 4 or Part 6 of the EO Act because an allegation that the workforce of the respondent was made up of a significantly higher number of people of Indian background does not constitute a breach of Part 4 or Part 6 of the EO Act;
   2. the complaint is clearly false or not made in good faith; and
   3. even if the complaint was a contravention of the EO Act, and it was not false and was made in good faith, he was not victimised and did not suffer harm. The FWC made it clear in the FWC decision that he decided to resign. Therefore, he was not unfairly dismissed and his decision to leave his employment was not something done, or caused by, the respondent.

1. Both claims of social and professional indirect discrimination are bound to fail as they do not appropriately plead how any act or omission of the respondent would be a breach of section 9 of the EO Act;

1. the new particulars of claim do not set out any practice or policy imposed by the respondent that would give rise to a claim of indirect discrimination;
2. there is no evidence that the respondent has a policy or practice of employing drivers of an Indian background other than the applicant's assertions about the disproportionality issue;
3. it is unclear how a disproportionate racial representation in the respondent's workforce caused the applicant any social disadvantage at work;
4. even if other employees did not include the applicant in their social interaction, this cannot properly be understood as a disadvantage under section 9 of the EO Act or something that was caused by the respondent; and
5. the applicant does not point to any act or omission of the respondent which caused him to suffer a disadvantage relating to his claim for professional indirect discrimination. Rather, the particulars sets out a hypothetical scenario and relies on certain studies of corruption in Australia and overseas.

1. The new particulars of claim relies on two specific instances where the applicant alleges he suffered detriment on the basis of his race in section 8 of the EO Act;
2. the first allegation is that he was not offered a specific duty, but the fellow driver was so offered;
3. the particulars of defence note that at the date this allegedly occurred as set out in the new particulars of claim, the fellow driver was on leave;

1. however, regardless of this point, the applicant alleges that he was transferred to a different type of duty which was more physically arduous but this claim is hopeless and must fail as the applicant does not show how this job allocation constitutes a detriment and there is no indication or any form of evidence that the applicant was so allocated because of his race[8]. In this regard, the respondent also relies on its defence insofar as it contains the respondent's policy about allocation of tasks;

1. the second allegation is that when the applicant returned from leave in January 2018, he was transferred from the Australian Customs facility to bulk operations which was discriminatory because the fellow driver, upon coming back from leave in March 2018, returned to a position at the Australian Customs facility, which location was "a coveted role". This is not an allegation of direct discrimination as the applicant was not treated any differently because at the time that the fellow employee returned to work from leave, the applicant no longer worked with the respondent; and
2. irrespective of this, even if the applicant's claim was about being moved to a different facility in January 2018, there is no evidence that this allocation was made because of the applicant's race.

1. In relation to the remedies sought against the respondent of penalties and orders for a regime whereby the respondent would hire less people from a multicultural background, the EO Act does not provide the applicant with power to seek penalties and, in relation to the second order, it is unclear both as to whether the Tribunal has any power to make such an order and, if so, as to its enforceability.

1. Mr Davidson had not had an opportunity to properly consider the respondent's submissions by the time the hearing commenced. Additionally, in his oral submission and evidence, it appeared he may have been raising matters relating to his case for the first time.
2. Accordingly, I made the orders for written submissions to enable Mr Davidson to both have the opportunity to deal as he wished with the respondent's submissions for the hearing and also to properly identify and clarify, and expand on, any fresh claims he might have been seeking to make and any new bases upon which he might have been seeking to rely.

1. These were filed and served on 27 February 2020. Having alleged five breaches by Qube of the EO Act in the new particulars of claim, his submissions then largely seek to respond to each of the respondent's criticisms contained in its submissions for the summary dismissal hearing.
2. In his submissions, the applicant relevantly stated:

1. discrimination at Qube is targeted towards truck drivers only and not in other areas of employment; 2. the FWC proceedings were too narrowly focussed on the issue of constructive dismissal or resignation to capture the breaches by the respondent of discrimination laws. This issue was a "byproduct (sic)" of the respondent's five prior breaches of the EO Act;

1. neither the AHRC nor the VEOHRC dealt with the substance of his case;

1. he has complied to the best of his ability with the Tribunal's directions of 31 October 2019 about content and format of the new particulars of claim; 2. he agrees that there is no jurisdiction of VCAT in this proceeding to deal with issues of payment in relation to the award; 3. the process of racial discrimination to achieve the significantly higher number of truck drivers of an Indian background is a breach of section 18(d) of the EO Act; 4. in that regard (as set out in the new particulars of claim):

Qube Indian Truck Drivers, who are a disadvantaged minority with English as a second language, are behaving as the overwhelming dominate (sic) tribe. The only way this could occur is with the approval and support of Management. Current Truck Driver distribution is achieved by a sustained, systemic, engineered outcome hiding behind cloak of equality of opportunity at front end (recruitment). What ultimately counts is substantive equality of outcomes.

1. after he returned from leave on 8 January 2018 and was transferred into bulk operations, his position at Customs Super B continued to be occupied by a casual employee who had occupied that role in his absence;
2. both the fellow driver and his brother (whom the applicant also identified by name) returned to work from their leave straight back into Customs Super B shifts with their same trucks. As such, they had both been differently treated to him as a result of "ethnic nepotism" and discrimination by race;
3. it is irrelevant that he relies on different treatment with his two comparators (the fellow driver and his brother) when he had ceased employment with Qube as when he was employed with Qube he had received different treatment to them;
4. he would still be working at Qube if he had received the same treatment as his two comparators; and

1. being stood down on full pay pending the outcome of an investigation would not have equated to his normal pay as there would have been an absence of overtime and any tax-free meal allowance.

1. Mr Davidson's submissions do not reflect overall material he raised at the summary dismissal hearing, neither advance his case nor properly respond to the concerns or issues raised by Qube's submissions at the hearing, predominantly repeat the material already filed by him and again do not outline an identifiable cause of action. As such, his claims should be summarily dismissed.
2. By reference to each of the claims, Qube relevantly replies as follows:

1. The applicant submits that he was victimised because he made a complaint about the disproportionate number of truck drivers of Indian background employed by Qube which is a complaint under Part 4 of the EO Act, with particular reference to section 18(d);
2. he has still not provided any evidence which would constitute a complaint under section 18(d) as his complaint about its hiring practices is not a complaint about him or anyone else in an employment context who has suffered detriment on the basis of a protected characteristic of race;

1. Mr Davidson does not engage with the respondent's submission that even if the applicant's complaint met the requirements of section 104(1)(g) of the EO Act, he has not demonstrated the suffering of any detriment or harm as he decided on his own volition to resign from his employment with Qube[9];

1. his concerns about differential treatment in relation to his responsibilities at Qube cannot fall within victimisation as such treatment is alleged to have occurred following his return from leave which is prior to him making his complaint on 14 February 2018 about Indian truck drivers; and
2. although unclear, he appears to seek to raise a further allegation in the new particulars of complaint that Qube's use of unconscious bias training is evidence that his treatment following his complaint was victimisation under the EO Act. If made, this is incomprehensible as he has not provided any explanation as to how the events that transpired at the 26 February 2018 meeting was treatment amounting to victimisation because of the unconscious bias training.

1. He fails to properly identify any condition, practice or policy which would give rise to a claim for indirect discrimination which he must do as section 9 of the EO Act provides that a condition, practice or policy which is reasonable will not breach that provision;
2. for Qube to argue that a condition, practice or policy is reasonable it has to properly understand what is alleged[10];
3. an assertion that there is a disproportionate number of truck drivers of Indian background employed by it is not evidence of such a practice or policy;
4. his submissions about social indirect discrimination is really a claim about his work colleagues; and
5. he cannot point to any specific instance of social or professional indirect discrimination that has actually caused him detriment, but rather, only to "plausible likely scenarios".

1. It appears that his main complaint is that he was moved out of his job as a Customs Super B driver when he returned from leave, but that other truck drivers of Indian background returned to their position as Customs Super B drivers when they returned from leave;

1. however, he fails to allege or point to evidence that he was treated differently because of his race or, assuming he was in fact treated differently to his colleagues of Indian background, he does not show that this treatment was because of his race[11]. This is even more telling when Qube's defence points to the rotation policy used by it to interchange its truck drivers through different divisions of its business;

1. in both his oral submissions (at the summary dismissal hearing) and his written submissions, he noted that a casual took his place when he was on annual leave and he named that employee and, upon his return, the casual remained in that position while he was re-allocated. The casual worker was not of Indian background. Accordingly, even if such reallocation caused him detriment, it cannot be reasonably understood to be based on his race;
2. his reliance on the fellow driver and his brother is misplaced as there is no longer the need to rely on comparators;
3. more importantly, his reliance on the treatment of the fellow driver that occurred after his resignation cannot reasonably be understood as evidence showing that he was treated less favourably due to race, when he no longer worked with Qube;
4. any reliance on his pay in his submissions has nothing to do with his claim for direct discrimination.

1. It has been necessary to consider in detail the documentation and steps in the proceeding to date.
2. The applicant attended both directions hearings. At the second directions hearing, it was clearly and comprehensively set out to the applicant both why the initial particulars of claim were unacceptable and what was required to be contained in the new particulars of claim.
3. From a purely formatting perspective, the new particulars of claim remains unsatisfactory. However, this, of itself, is not a basis to grant the order sought by the respondent.
4. The problem for Mr Davidson is that the contents of the new particulars of claim still does not define the claim any more clearly.
5. His position in this regard also gains no further assistance from his subsequent oral and written submissions and witness statement.
6. As is also apparent, there have been numerous opportunities in this proceeding for the applicant to have properly defined his claim against Qube.
7. However, despite this situation, no reasonable cause of action in the terms of the EO Act has been disclosed and any further opportunities for amendment will not improve his claim.
8. I have no reason to doubt that the applicant has put the whole of his case in the material that is before me but, despite this, I cannot find that there is a real issue of substance which should go to a full hearing.
9. Mr Davidson's case is misconceived or lacking in substance. As such, even viewing it from its highest, it is manifestly hopeless, undoubtedly untenable or groundless and is bound to fail.
10. I accept the submissions of Qube and grant its application for summary dismissal of the entire proceeding. There is no basis to consider a "lesser" order striking out part or all of the proceeding.
11. As to the claim of alleged victimisation, an allegation that there is a significantly higher number of truck drivers of Indian background at Qube does not constitute a breach of either Part 4 or Part 6 of the EO Act. However, even if the applicant's complaint about this issue was an allegation of a contravention by Qube of the EO Act and the complaint was not false and was made in good faith, he did not suffer a detriment and he was not victimised. Even putting aside the FWC decision and its findings, there is nothing of substance that has been put by Mr Davidson in this proceeding to support anything other than a finding in this proceeding that he decided to resign and this decision was not due to anything done or caused by Qube. Accordingly, the claim of victimisation must fail.
12. In relation to allegations of indirect discrimination, the new particulars of claim does not refer to any specified incident involving the applicant or identify any detriment to him. Instead, his case on this issue includes references to an international study into occupational health, a Victorian project relating to diversity in employment, various Royal Commissions, and hypothetical scenarios. Additionally, the applicant does not provide any basis or evidence that the alleged new business model and employment strategy were a practice or policy of Qube, or imposed by it. The claims of indirect discrimination must fail.
13. Before looking at direct discrimination, it is not in dispute that Qube reallocated duties between appropriately qualified drivers from time to time as recorded in its defence. Additionally, there was no loss of pay to the applicant as a result of reallocations.
14. One incident of direct discrimination relates to the applicant returning to work on 8 January 2018 and being transferred from the "coveted" Customs role into bulk operations. The driver who filled Mr Davidson's role while he was away continued in it despite Mr Davidson's return. This driver was a casual and was not of Indian background. When the fellow driver returned from leave after 16 March 2018, he returned straight back to Customs. I cannot see how this constitutes discrimination as Mr Davidson had ceased employment at Qube on 26 February 2018. However, this important consideration aside, no evidence is provided that any of this allegedly different treatment of the applicant was because of race.
15. Mr Davidson was subsequently transferred from bulk operations to tautliner duties. The fellow driver was on leave at that time. No evidence is provided that this reallocation occurred because of race. Although he regarded this as a demotion in terms of rank and status, and asserted that it was more physically arduous, the applicant did not provide any further evidence about how this reallocation constituted a detriment to him. The claims of direct discrimination also must therefore fail.
16. Given my above findings, any issues about remedies fall away. I will otherwise make the appropriate order for summary dismissal.

[1] Rabel v State Electricity Commission (1998) 1 VR 102.

[2] Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd (2015) VCAT 1683 (Hickory) [6] - [12].

[3] Towie v State of Victoria [2008] VSC 177 [29].

[5] Davidson v Qube Logistics [2018] FWC 4481.

[6] Davidson v Qube Logistics [2018] FWCFB 6074.

[7] Lanigan v Circus Oz (Human Rights) [2018] VCAT 1980 [7] - [8].

[8] Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; [2017] 256 FCR 247.

[9] Davidson v Qube Logistics [2018] FWC 4481 [28] - [31].

[10] Wylie v McCann Worldgroup Pty Ltd [2009] FMCA 959 [100].

[11] Ferris v State of Victoria [2018] VSCA 240 [26] - [27].