ASSESSMENT OF APPLICATION FOR SUMMARY DISMISSAL BY FIRST RESPONDENT

1. Mr Gogulwar argues that the first respondent has breached the EO Act by discriminating against him and failing to make reasonable adjustments. He states that the discrimination took the form of disparaging his medical exemption and denying him reasonable adjustments by insisting he use a QR code to check in. He also experienced discrimination on the basis of his political beliefs, being his non-compliance with relevant laws.
2. The basis of the application of the first respondent is that the respondent identified in the application is not a legal entity and is not correctly identified. The first respondent makes their application under section 60A(1)(b) of the VCAT Act arguing that the first respondent is not a proper party to the proceeding. The first respondent is named as 'Rowan MacDonald United Tools Dandenong South'.
3. It is of note that the first respondent named in the application made by Mr Gogulwar on 12 February 2024 lists the first respondent as 'United Tools Dandenong South'. It appears that Mr Rowan Macdonald responded to emails from the Tribunal and for reasons which are not clear, his name was added to the Tribunal's listing, resulting in the first respondent being listed as 'Rowan Macdonald United Tools Dandenong South'. At no point was this identified as an error, although the first respondent's legal representative has stated that they directly raised this issue with Mr Gogulwar. It appears clear from Mr Gogulwar's submissions that he does not wish to take any action against Mr Macdonald personally.
4. It is open to the Tribunal to allow Mr Gogulwar to amend his application, and it appears clear that the entity which he wishes to take action against is the store itself where he alleges he experienced discrimination. Mr Gogulwar has raised this in his submissions, and it appears that the genuine error he has made is a result of his lack of awareness of the correct legal procedure.
5. For the above reasons it is appropriate that pursuant to section 60A(1)(b), Mr Macdonald is removed from the application.
6. I accept the submissions of the first respondent that 'United Tools Dandenong South' is not a legal entity and not correctly identified as a party to the proceedings. The application against 'United Tools Dandenong South' is therefore dismissed as misconceived.
7. I have considered whether it would be appropriate to grant Mr Gogulwar leave to amend his application to correctly identify the legal entity against which he seeks to take action. In considering his request, I have considered the merits of his claim and also take into account that as a self-represented litigant, it is understandable that he has misidentified the correct legal entity.
8. I have determined that Mr Gogulwar's case, even if taken at its highest, is poor and incapable of succeeding. It is in effect doomed to fail and it would be inappropriate to allow him to amend his application.
9. I am not satisfied that Mr Gogulwar can successfully make out that there has been a breach of the EO Act by the business which he entered, being 'United Tools Dandenong South'. Mr Gogulwar entered a store and his exemption for wearing a mask was allegedly disparaged and he was required to 'check in'. His personal details were then used to contact his employer.
10. I have not been provided with sufficient evidence that the store was aware of Mr Gogulwar's disability, and that he was denied service as a result of that disability. It appears that he was denied service as he refused to comply with a requirement to wear a mask and to sign in. Furthermore, I am not satisfied that Mr Gogulwar was refused reasonable adjustments as a result of the store requesting him to sign in. Mr Gogulwar's application is otherwise poorly formed and does not articulate with the required level of specificity a breach of the EO Act which is able to succeed.
11. In order to establish that the respondents have discriminated against him, the applicant must first show that he had been treated unfavourably because he was a person who held the protected attributes, which in this case are disability, employment activity, industrial activity and political beliefs or activity.
12. I am not satisfied that the respondents failed to make reasonable adjustments in the delivery of service for a person with a disability. In order to succeed, the applicant will need to provide evidence that he provided the respondents with information about his disability and make a request for adjustments. There is no evidence that the applicant provided this information to the respondents.
13. The starting point with regards to making reasonable adjustments is information about the person's disability and the need for adjustments. It is not clear that this information was ever provided, other than a mask exemption being offered.
14. For these reasons, I do not consider it appropriate to allow Mr Gogulwar leave to amend his application to correctly identify the first respondent, as it would be futile to do so.

ASSESSMENT OF APPLICATION FOR SUMMARY DISMISSAL BY THE SECOND RESPONDENT

1. Mr Gogulwar states that second respondent has breached the EO Act in various ways, but specifically by dismissing his medical exemption, victimising him, failing to make reasonable adjustments and discriminating against him on the basis of his employment activity and his political beliefs.
2. The second respondent's submissions are varied and detailed, and can be summarised as follows;
   1. That the application is a set of grievances in relation to failing to wear a mask, and as such is frivolous, vexatious, misconceived, lacking in substance and otherwise an abuse of process,
   2. The proceedings are an abuse of process as the particulars of claim raise matters which were heard and dismissed in the Federal Circuit and Family Court of Australia on 1 June 2023,
   3. That the allegations occurred more than 12 months before the application was made and therefore have not been properly prosecuted for the purposes of section 71(1) of the VCAT Act, and clause 18 of schedule 1 of the VCAT Act.
3. I accept the submissions of the second respondent that the claim made by Mr Gogulwar is merely a set of grievances in relation to failing to wear a mask, and that his application, even if taken at its highest is effectively doomed to fail.
4. Mr Gogulwar alleges numerous breaches of the EO Act, however all are either mischaracterised (i.e. they are references to sections which are not capable of being breached) or the breaches are not sufficiently made out or proven.
5. Mr Gogulwar entered a store, and relying on a medical exemption, refused to wear a mask. He was asked to leave that store, and as a result, he argues that he experienced discrimination on the basis of a disability. He argues that his employer breached the EO Act, in summary, because they told him that the store was not required to accept his medical exemption. His claims of discrimination extend to being victimised as matters then escalated to senior management, his employment entitlements were not respected, and he was denied reasonable adjustments.
6. The alleged breaches of the EO Act are simply not made out. Mr Gogulwar may be disappointed by the response of his employer, and he may have a view that he is entitled to an exemption from wearing a mask. However, the action of his employer does not therefore amount to a breach of the EO Act. Mr Gogulwar does not identify the nature of his disability, and how his employer was aware of the disability. He argues that he was discriminated against on the basis of employment activity, however his claim does not point to any exercise of employment activity as defined in the EO Act.
7. I am also not satisfied that Mr Gogulwar has experienced victimisation as defined in the EO Act, as he has not sufficiently shown that he experienced victimisation as a result of exercising his rights under the EO Act.
8. For the reasons above, I am satisfied that it is appropriate to dismiss the application pursuant to section 75(1)(a) as it is frivolous, vexatious, misconceived and lacking in substance.
9. In the alternative, I am also satisfied that it is appropriate to dismiss the application pursuant to section 76(1) for want of prosecution, due to the delay in commencing the proceedings. Clause 18 of Schedule 1 of the VCAT Act allows the Tribunal to dismiss an application under the EO Act if the alleged breach occurred more than 12 months before the application was made.
10. In this instance the alleged breach occurred in August 2021, and the application was made on 12 February 2024. The delay in this instance was considerable, and in the intervening years the applicant commenced proceedings in the FCFCOA which were dismissed in 2023. I am mindful that the applicant is self-represented and may not be fully aware of his legal rights and it is appropriate to take this into account. However, in this instance, the applicant is clearly familiar with legal processes having pursued a claim in the Fair Work Commission and the FCFCOA. He has also provided lengthy submissions, which although they are flawed in their legal argument, are sophisticated and display an understanding of relevant legislation and case law. I cannot accept that in this instance the delay is reasonable.
11. Mr Gogulwar argues that there is no prejudice caused to the respondent due to delay, however I am of the view that there is a significant injustice caused by delay. The second applicant says that there are witnesses who are no longer employed by them. This is a relevant consideration, however I also place weight on the fact that Mr Gogulwar has offered no reasonable explanation for the delay, other than to say that he was attempting to resolve the matter The Tribunal should not allow dated claims to proceed without significant reason. To allow such a claim to proceed would cause significant and unfair expectations on a respondent.
12. For these reasons I also dismiss the applications against both respondents pursuant to section 76(1) of the VCAT Act.

1. Both respondents have made an application for costs.
2. The applications are both made pursuant to section 75(2) of the VCAT Act which gives the Tribunal the discretion to order costs if an order is made under subsection (1).
3. It is well established that the Tribunal's discretion to award costs is broad. The second respondent rightly submits that costs orders are not commonly made in the Human Rights Lists, however they have been made.
4. It is important to note that unlike section 109 of the VCAT Act, there is no presumption in section 75(2) that each party bears their own costs. The discretion of the Tribunal to award costs is therefore broader.
5. I am not persuaded in this instance that it is appropriate to award costs.
6. Although Mr Gogulwar's application is dismissed and not capable of succeeding, it does not necessarily follow that he should be liable for costs or compensation. The purpose of the Tribunal is to allow parties a cost-efficient manner to resolve their disputes. Mr Gogulwar has clearly been mistaken in his understanding of the law, but I do not find that his case warrants an award of compensation.

[1] Owners Corporation No1 PS537642N v Hickory Group Pty Ltd [2015] VCAT 1683.

[2] Axicom Pty Ltd v Melton CC [2020] VCAT 190 at [9].

[3] Medical Practitioners Board of Victoria v Saddik [2010] VCAT 366 at [10].

[4] Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125 at [39].

[5] Kramersh v IPD Education Ltd [2014] VCAT 1439 at [50].