RESPONDENT: State of Victoria - Victoria Police

Pursuant to sections 75 and 109 of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal orders-

(a)

The claim of gender identity and sexual orientation discrimination;

(b)

The claims particularised in paragraphs 7, 9, 10 and 13 of the particulars of complaint.

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

3. The Complainant may apply to restate the claims struck out under Paragraph one (1) as provided for in the Tribunals reasons for decision.

4. Parties costs are reserved. The parties may apply for those costs on reasonable notice to the Tribunal and to each other.

5. Not earlier than 4 April 2004 the Tribunal will list this matter for a Directions Hearing to consider a fresh timetable for the proceeding, and whether the matter might be further mediated. At that Directions Hearing the Complainant may apply to amend the Complaint, as foreshadowed in the Complainant's submissions on the strike out application.

(1) I am now in a position to hand down this decision and it is that the complaint is struck out in part. The matters that are struck out will appear in my reasons and I now give them.

(2)

In May 2004, Mr Hecimovic lodged with the Equal Opportunity Commission, ("the Commission"), a complaint under the Equal Opportunity Act 1985 against the State of Victoria in its capacity of the Victoria Police Force. I call the respondent Vic Police. The complaint is dated 16 April 2004. The Commission declined to entertain the complaint under s.108(1)(a) and (c) of the Equal Opportunity Act. That permits the Commission to decline a complaint which it considers frivolous, vexatious, misconceived, lacking substance or which relates to an alleged breach of the Act which occurred more than 12 months before the lodgement of the complaint.

(3)

Mr Hecimovic requested the Commission to refer the complaint to VCAT and it did so. According to the Commission the complaint claims gender identity, sexual orientation, impairment and lawful sexual activity discrimination, sexual harassment and victimisation. On 29 September 2004 the Tribunal made directions for procedural steps in the matter. The matter went to mediation on 14 November 2004. Mediation did not succeed.

(4)

In accordance with the Tribunal's directions the complainant then filed particulars of complaint. Vic Police now applies to strike out or dismiss the complaint under s.75 of the Victorian Civil and Administrative Tribunal Act 1988, ("the VCAT Act"). I have before me the complaint, the particulars of complaint and written and oral submissions from the parties on the strike out application.

(5)

The submissions for Mr Hecimovic include affidavits from Mr Hecimovic himself and Mr Kennedy the Manager, Industrial Relations, of the Victoria Police Association which has assisted Mr Hecimovic with his complaint.

(6)

I now deal with the law relating to strike out application. Vic Police applies to strike out or dismiss the complaint on all the grounds mentioned in s.75 of the VCAT Act. These are that the complaint is frivolous, vexatious, misconceived, lacking in substance or an abuse of process. The Tribunal has considered the principles applying to applications of this kind in many cases such as Norman v. Australian Red Cross Society (1998) 14 V.A.R at p. 243. It has applied what the Victorian Court of Appeal said in Rabel v. State Electricity Commission (1998) 1 V.R. at p. 102.

(7)

Relevantly for this case the principles are these. If an application under s.75 is granted the proceeding will be summarily terminated. The Tribunal should be cautious before doing this and so depriving the litigant the chance to have the case heard in the ordinary course. It should only do so where, for a reason mentioned in the section, it considers the case to be manifestly hopeless, undoubtedly untenable, doomed to fail or on no reasonable basis can justify relief. The respondent, as applicant here, must satisfy the Tribunal that this is the case. The Tribunal must be careful not to treat the complaint as the whole of the complainant's evidence particularly where the complainant makes it clear that the evidence will be given at the full hearing. The Tribunal should take the complainant's case at its highest and assume that the complainant will be able to prove the facts which he asserts. Here, as I have said, the material includes two affidavits. Vic Police submit that I should regard parts of Mr Hecimovic's affidavit as self serving and give little weight to them.

(8)

This is not the full hearing of the claim. There has been no cross-examination on the affidavits and no other evidence given. I regard the affidavits as indicating the evidence the complainant will give if the matter goes to a full hearing, and also take into account that the complainant says there will be other evidence.

(9)

I now come to the key issues and submissions. Should the whole complaint be terminated? First it is submitted for Vic Police that the whole complaint should be dismissed as an abuse of process. Vic Police rightly argues that the abuse of process is a broad concept and that its categories are not closed. It covers such matters as proceedings brought for an improper purpose, attempts made to re-litigate matters already litigated or determined, and whether or not an Anshun estoppel or res judicata might apply. It also covers other matters. It is argued for Vic Police that combined with inordinate and inadequately explained delay in lodging the complaint a number of factors taken either singly or in combination make this complaint an abuse of process. I deal with each factor and then with the delay.

(10)

First, it is argued for Vic Police that Mr Hecimovic undertook alternative dispute resolution processes through the Vic Police Equity and Diversity Unit ("EDU") during which he signed a document indicating that his complaint to the EDU was finalised except as against

Mr Gough. It would be, it is said, an abuse of process to allow him now to revisit the matter.

(11)

Various industrial instruments applying to the Victorian Police Force, in particular for example, a certified agreement of 1988 and early agreements dated 1995 and 1996 provide that work place disputes or grievances must be dealt with by using a mechanism specified in the relevant agreement. Those dispute handling mechanisms are similar in each of the agreements. They require the dispute to be first raised by the employee with his or her immediate superior and if unresolved at that stage to be referred then to higher management. If still unresolved the dispute is to be referred to the Australian Industrial Relations Commission ("AIRC") for mediation, or if the parties consent for arbitration.

(12)

There is a suggestion in the submissions for Vic Police that the police EDU might be a dispute handling mechanism of this kind under these agreements. It is argued for Mr Hecimovic that the EDU is not such a mechanism. Before me it is said that there is not enough material to enable me to determine exactly what the role of the EDU is. It is said that it is not clearly a dispute settling mechanism within the terms of the relevant Industrial Workplace Agreements applying during Mr Hecimovic's employment.

(13)

It is then submitted for Vic Police that Mr Hecimovic could have, but did not, use the dispute settling mechanisms under the relevant industrial agreement in relation to his claims in circumstances where he ought to have done so. He ought to have done so because these agreements bound him and because this was the most appropriate means of handling the dispute. He ought also to have done so because he was obliged under his contract of employment to cooperate with his employer, in particular for the procedure of resolving workplace disputes.

(14)

I am not satisfied that apart from the industrial agreements which clearly were binding on Mr Hecimovic there is a term that can be clearly implied into his employment contract to do this, but this does not of course make the industrial agreements non-binding on him.

(15)

It is said for Mr Hecimovic that his failure to access these dispute handling mechanisms cannot constitute abuse of process for two reasons. In the first place the industrial agreements do not expressly mention, in the context of the dispute handling provisions, disputes about discrimination, sexual harassment, or victimisation. In the second place the provisions of s.170LT(8) of the Workplace Relations Act which deal with the inclusion in certified agreements of dispute handling mechanisms, speak of disputes about a matter arising under the relevant agreement. These industrial agreements do not expressly deal with discrimination or sexual harassment or victimisation. Also s.170LW of the Workplace Relations Act makes it clear that the agreement provisions concerning the handling of disputes can only empower the AIRC to settle disputes over the application of the agreement. This claim, according to Mr Hecimovic, is not such a dispute. I am not satisfied that this complaint is so clearly an abuse of process in this respect that I should strike it out.

(16)

Second, it is argued for Vic Police that Mr Hecimovic could have, and ought to have, made an application under the Workplace Relations Act alleging unlawful termination of employment. He did not do so. That Act, it is true, prohibits termination of employment for various reasons, including various kinds of discrimination and which relate to impairment and other matters claimed here. Instead of claiming under the Equal Opportunity Act, Mr Hecimovic should have applied under the Workplace Relations Act. It is now an abuse of process to complain under the Equal Opportunity Act. I do not accept this submission.

(17)

In the first place this complaint claims breach of the Equal Opportunity Act during employment and also by termination of employment. The termination claimed is by way of constructive dismissal. Mr Hecimovic claims that because of the conduct he alleges during his employment he was forced to, or had no choice but to resign. There is nothing in the Equal Opportunity Act or the Workplace Relations Act to prevent a person from choosing to air all their claims in the one forum rather than having to apply in respect of termination under the Workplace Relations Act and in respect of during employment matters under the Equal Opportunity Act.

(18)

In the second place, s.170 HB makes it clear in express terms that in effect a person can choose either to complain of unlawful termination under a State or Territory law or under the Workplace Relations Act. Once that choice is made the person must follow the chosen route unless the claim fails for want of jurisdiction or is discontinued. I am not satisfied that the complaint should be struck out or dismissed for abuse of process for this reason.

(19)

Third, Vic Police argue that this complaint is an abuse of process because it attempts to bypass the limitations in other jurisdictions in which the complainant might have sought similar remedies. To the extent the complaint claims work related injury, it should have been brought under the Accident Compensation Act 1985, ("the Accident Compensation Act"). That was the proper forum to deal with the matter. The relief sought, it is said, is in effect damages for injury suffered in the work place. The Accident Compensation Act limits the extent to which common law damages for such injury can be recovered. During his employment with the police,

Mr Hecimovic made one WorkCover claim but then withdrew that claim. He should not, Vic Police argues, be allowed to ignore the Accident Compensation Act processes in this way. To do so would undermine that Act. I do not agree, for this reason, that the complaint constitutes an abuse of process.

(20)

In the first place the objectives of the Accident Compensation Act and the Equal Opportunity Act are different. The Accident Compensation Act provides compensation for partial or total incapacity for work arising from injuries occurring in the course of employment. It is irrelevant what led to the injury so long as it has this link with employment. The Equal Opportunity Act prohibits discrimination and sexual harassment in various areas, including employment, and also prohibits victimisation. If a breach is found by the Tribunal to have occurred, the Tribunal may make or decline to make orders. If it makes orders it can order compensation for loss damages or injury suffered as a consequence of the breach, or it can make other orders to redress that loss, damage or injury or to prevent further breaches occurring. The two schemes address very different issues. On a reading of Mr Hecimovic's material as a whole he is complaining of discrimination, sexual harassment and victimisation and consequent loss, not merely of a workplace or a work related injury.

(21)

In the second place there is nothing in either Act to prevent a person, if so entitled, choosing to make a case under one or other of those Acts.

(22)

In the third place it is incorrect, in my view, to equate a complaint of breach of the Equal Opportunity Act to an action for common law damages for work related injury. I say this because the statutory schemes are completely different and this is a statutory remedy.

(23)

Fourth, Vic Police argues with respect to Mr Hecimovic's allegations concerning what happened to him at a function held at the Witches in Britches theatre restaurant, that Mr Hecimovic has raised this claim only in his Equal Opportunity Act complaint and not in his complaint to the EDU. It is said that by analogy to principles of Anshun estoppel a complainant should have brought forward all his complaints to the EDU and he cannot now add to them. I reject this submission. An analogy with Anshun estoppel principles cannot be drawn here. The EDU is not a court or tribunal, it does not make a binding or final determination. There is no clear abuse of process here.

(24)

Fifth, I come to an undated document signed by Mr Hecimovic comprising nine paragraphs. The background to the document, according to Mr Hecimovic's affidavit, is this. In 2000 Mr Hecimovic complained to the Vic Police's EDU about what he said was discrimination and harassment. Officers of that unit explained to him that he could chose either mediation or full investigation of his complaint but that a full investigation would be traumatic and long winded. He took the option of mediation.

(25)

He was provided by the EDU with statements about a particular incident he alleged in which other members of the force who were then present agreed that the particular statement had been made, but said that it had been made in jest. After discussions with the EDU he accepted transfer to another work area in the same building as the previous unit in which he had worked, where those against whom he had made the claims also worked. For reasons I need not go into here the transfer was not successful.

(26)

Mr Hecimovic then told Inspector King of the EDU at a meeting, that he was intending to resign. Inspector King told him that matters needed to be finalised for the force's records. He told him that Inspector Reed and Senior Sergeant Taylor, two of the people against whom Mr Hecimovic had made complaints, were not central to his complaint and asked Mr Hecimovic if he would be happy to withdraw from his complaint. Inspector King told Mr Hecimovic that Senior Sergeant Humphrey, another person against whom Mr Hecimovic had complained, had responded in writing to the complaint and had refused to meet with Mr Hecimovic. Inspector King mentioned the officers who had made the statements, which I mentioned earlier, where they had said that in their view although a particular comment had been made, it had been made in jest. No other options were offered to Mr Hecimovic according to his affidavit. Again, according to his affidavit, it was at this meeting with Inspector King that he signed the nine paragraph document.

(27)

In brief, the document states as follows: that he wishes to omit Mr Reed and Mr Taylor from his allegations; that Sergeant Wisby has never discriminated against him; that he disagrees with certain parts of Sergeant Humphrey's statement but that the Sergeant has been helpful to him and their problem may have been a difference in personalities and the matter with him is finalised. He regards his issue with Sergeant Brennan as trivial although he considers he is owed an apology but that as far as he is concerned the matter is now finalised. And that Mr Gough, another subject of his allegations, was wrong and that he Mr Hecimovic would not take his intimidation further.

(28)

Vic Police argues that this document was prepared and signed by Mr Hecimovic and that it was reasonable for Vic Police to rely on it as an indication that all his matters were finalised except for those in relation to Mr Gough. There is no evidence, Vic Police says, that

Mr Hecimovic did not understand or know what he did, nor is there evidence that he was forced or pressured to sign. It was his choice. It will be abuse of process to permit him to re-agitate these matters now.

(29)

It is argued for Mr Hecimovic, based on his affidavit, that the circumstances in which the document was signed, at a resignation meeting, after there were certain suggestions made in relation to the complaints by Inspector King, and after Mr Hecimovic was told that he had to finalise his complaints, that there is some suggestion that the document may have been made under some pressure and certainly with insufficient opportunity to consider its implications.

(30)

There is included in the material for Mr Hecimovic three medical reports from his treating psychiatrist Dr Matthews, his treating general practitioner Dr Maurice and his treating psychologist Dr Sullivan. These reports suggest that at the time of the resignation Mr Hecimovic was suffering from major depressive disorder and adjustment disorder. They mention cognitive compromise and possible effects on decision making. The psychologist's report expresses the view that

Mr Hecimovic was at certain stages incapable of rational decision making, and that at the time of his resignation he did not have the capacity to make a complaint to the Equal Opportunity Commission or to carry through such complaint.

(31)

These reports are capable, in my view, of being interpreted as casting doubt on Mr Hecimovic's capacity to make and sign the nine paragraph document. The document is not a deed, a contract or a formal release. It is not in any way a mutual agreement between him and Vic Police. It was made during an internal police process, not during some external mediation conducted in a non-Vic Police forum. I agree with the submissions made by the complainant that there may well be some doubt about whether there was any intention to create legal relations.

(32)

I do not accept, in these circumstances, the Vic Police submission that the document can be treated as somehow binding on Mr Hecimovic and it would be an abuse of process to permit him to raise the claims to which the document relates in another forum. The complaint in this respect is not so clearly an abuse of process that it should be struck out or dismissed.

(33)

I now deal with the question of improper purpose. It is said that this complaint is brought for an improper purpose. It is not brought to adjudicate claims made by Mr Hecimovic under the Act, it is brought because his application to rejoin the Victoria Police Force was rejected. I do not accept this submission of Vic Police. In my view, looking at the material as a whole,

Mr Hecimovic has a genuine belief in his claim and wants to adjudicate claims of sexual harassment, discrimination on various grounds, and victimisation under the Equal Opportunity Act.

(34)

Seventh, I come to the question of delay. Vic Police argues that the delay in lodging the complaint is so inordinate and inexcusable as to constitute an abuse of process. It says that the first incident complained of occurred in 1997, more than seven years before the complaint was lodged, and that the last incident complained of occurred more than four years before that lodgement. Mr Hecimovic's explanation for the delay, it says is unacceptable and because of the lapse of time, the quality of justice and the opportunity of fair hearing will be impaired. Memories will have faded, documents will have been lost, witnesses will have become unavailable.

(35)

It is argued for Mr Hecimovic that there is a reasonable excuse for the delay and that a fair hearing of this matter will still be possible. I accept that submission. The medical reports and Mr Hecimovic's affidavit indicate that from 2000 to May 2003 he suffered from a major depressive illness, ending with collapse and intensive treatment in May 2003. After that his condition improved. After that collapse in May 2003 he approached the Police Association seeking assistance with his allegations. Negotiations followed between the Police Association and Vic Police. These ended in February 2004.

(36)

A complaint was lodged in April 2004. I am not satisfied that this delay is inexcusable. Nor am I satisfied that a full and fair hearing is not possible. There were statements which are far more contemporaneous than this complaint which were made to the EDU. Some of the witnesses, I understand from the material, are still members of the force; others who are required to attend can be compelled to attend.

(37)

Mr Hecimovic also says that until he was told by the Police Association in May 2003 he did not know, and was never told by the EDU, that he could complain under the Equal Opportunity Act. There is some inconsistency between this statement and other material. Included in the complaint is a statement by Mr Hecimovic that mentions an Equal Employment Opportunity Office, an EEO office. It has been unnecessary for me to consider this as a reason for delay because ultimately my decision is that the delay is not inexcusable, there is sufficient excuse based on other factors.

(38)

I now come to the specific claims. The respondent raises a number of specific claims and I deal with each in turn. I first deal with the claim of gender identity and sex orientation discrimination.

(39) It is clear from the particulars of complaint and the complainant's submissions that these claims are not pursued at this time. These were claims which were mentioned in the Commission's referral of this complaint and there is some suggestion that these claims are pursued in the complaint itself. It seems to me the appropriate course to strike out these complaints at this point. However I give Mr Hecimovic liberty to reinstate this claim. That is given on the basis that under s.224 of the Equal Opportunity Act there is a transitional provision which relates to the Equal Opportunity (Gender Identity Sexual Orientation) Act 2000. That Act commenced on 9 October 2000. The effect of sub-section (1) of that section appears to be that a complaint may be lodged after the commencement of that amending Act which alleges discrimination on the basis of gender identity or sexual orientation whether or not occurring before or after the commencement of that Act. It is on this basis that I give this leave.

(40) I now turn to paragraphs 3 to 6 of the particulars of complaint. Vic Police argues that I should strike out these paragraphs. In brief they claim lawful sexual activity discrimination. The lawful sexual activity is sexual activity between men and men. The basis of the claim relates to either characteristics imputed to people engaging in this activity or presumed activity of this kind.

(41) The allegation is that from 1997 to 1999 various police officers regularly, and with increasing frequency over time called Mr Hecimovic poofter, faggot, cross-dresser and other derogatory terms. Vic Police says that no complaint was made about this to higher management until 2000 and that Vic Police cannot be liable for something which it did not know existed at the time. I do not agree with this submission.

(42)

Under the Equal Opportunity Act an employer is vicariously liable for breaches of the Act by an employee of that employer in the course of employment, unless the employer can, on the balance of probabilities, prove that the employer took reasonable precautions to prevent among other things discrimination. Those precautions need to be in place before the discrimination occurs. Vicarious liability does not depend on the existence of complaint or on prior knowledge of the breach. The vicarious liability defence in s.103, the reasonable precautions defence is a defence that must be established by the respondent. This is a matter for a full hearing.

(43)

It is then argued by Vic Police that the name calling, the words used are ambiguous and are not clearly discriminatory. I do not agree that the words are incapable of constituting lawful sexual activity discrimination in the way I have described it. They are not incapable of constituting a detriment, they are capable of being described as humiliation or denigration both of which are expressly included in the definition of detriment under the Equal Opportunity Act. They are capable of referring to imputed homosexual activity so that it can be argued that they are evidence in themselves of the basis of their use. These paragraphs should not be struck out.

(44) I next turn to paragraph 7. This paragraph alleges that in 1999 Mr Hecimovic attended a work function at Witches in Britches theatre restaurant. The entertainer of the function called him on to the stage and he had been told that he liked dressing in women's clothes and gave him a woman's dress to wear. Mr Hecimovic says that he felt obliged to put on the dress but that he felt humiliated and embarrassed. Vic Police argues that this should be struck out because it is insufficiently particularised and insufficiently linked with employment. I agree. I propose to reserve right to apply to reinstate this claim if the Tribunal can be satisfied that the difficulties have been cured.

Mr Humphrey in about 1998 told Mr Hecimovic in front of others that he actively engaged in sex with gerbils. It is argued for Vic Police that there is nothing to indicate that Mr Humphrey knew this conduct was unwelcome and that the fact that conduct must be unwelcome is, and this is correct, a critical requirement for the definition of sexual harassment under the Act. I do not agree that this paragraph should be struck out. In his affidavit Mr Hecimovic states that the conduct was unwelcome. Objectively a reasonable person in Mr Humphrey's shoes should have known that the conduct would be unwelcome, at least to most people. In my view further dispute about this should be a matter for the full hearing.

(46) I now come to paragraph 9. This paragraph claims impairment discrimination. The impairment being a mental or psychological condition. It alleges that in 1999

Mr Hecimovic made a WorkCover claim which he then withdrew. After his return from sick leave he alleges that he was questioned and belittled by members of the force because of having made the WorkCover claim. Vic Police argues this is incapable of constituting impairment discrimination. As presently pleaded I agree.

(47)

It is not clear what the comparator for direct discrimination here should be. If the reason for the belittling comments was the claim rather than the impairment it is not clear how the conduct could be said to have been based on impairment. If as Mr Hecimovic says in his affidavit the culture of the force was to criticise anyone who complained against another member for any reason, it is hard to see how a person who made a claim against any employee but who did not have an impairment would not have been treated in the same way. The Tribunal may reinstate this claim if the complainant can satisfy it that these difficulties are cured.

(48) I now come to paragraph 10. This claims that on a training day in May 2000 Senior Sergeant Brennan shouted at Mr Hecimovic for not bringing his jacket and called him spastic moron, fuckwit and dickhead. It is argued for Victoria Police that this claim should be struck out because it is not impairment based, it is abuse. I agree. In this context I do not think it would be reasonably open to the Tribunal at hearing to infer that this comment is impairment based. It includes clearly some non-impairment based words. The more probable explanation is that Sergeant Brennan was angry and said simply whatever came into his head. In my view this paragraph should be struck out.

(49) I now come to paragraphs 12 to 14. These paragraphs allege that in 1999 Mr Hecimovic complained to various police officers about discrimination by Mr Gough. He was told by these officers that he was having personal problems. Again in 1999 he complained to the EDU about discrimination by certain police officers. He was told by a member of the unit in which he previously worked, the Response Unit, that he was regarded as a dog which in his affidavit he alleges to be a pejorative term used for those who complain about their fellow members to higher management. He was told by another member of that unit that Mr Gough threatened to sue him because he had complained to the EDU.

(50) Under s.97 of the Equal Opportunity Act victimisation means subjecting another person to a detriment or threatening to subject another person to a detriment because, among other things, that person has made an allegation of a breach of the Act, here discrimination.

(51) In my view the use of the term "dog" and the threat to sue are allegations not incapable of constituting a detriment to Mr Hecimovic but in my view the suggestion of personal problems is incapable of constituting victimisation. At best this is an allegation that the complaint by Mr Hecimovic was ignored rather than any further detriment. In relation to the question of vicarious liability I say what I said earlier concerning the defence to that liability. It follows then that the complaint is struck out in part.