Pursuant to ss75, 80, 88, 89 and 109 of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal orders:

1. That to the extent that the complaint claims that the fifth respondent, in his capacity as employee, discriminated against the complainant, that claim is dismissed.

2. In all other respects, the strike-out application is dismissed.

3. The complainant is granted leave to amend the particulars of complaint to clarify the claim that the fifth respondent, in his capacity as agent for the first respondent, breached s14 of the Equal Opportunity Act 1995, and to include particulars of the alleged breach by the fifth respondent of s98 of that Act.

4. The complainant is refused leave to amend the complaint and particulars of complaint to include a claim that the fifth respondent discriminated against the complainant in the provision of goods and services.

5. The complainant is to file and serve further particulars of complaint addressing the matters in paragraph 3 by 30 November 2005.

6. The fifth respondent is to file and serve particulars of defence by 21 December 2005.

7. The directions dated 29 August 2005 are vacated. The mediation listed for 24 November 2005 is vacated.

8. This matter is re-listed for mediation on a date in January 2006 to be notified to the parties by the Principal Registrar, after the Tribunal's Registry has contacted the parties and obtained lists of suitable dates. The complainant and the individual respondents must attend the mediation in person. A person with authority to settle from the first respondent must attend. The legal representatives of the parties may attend. A support person for the complainant may attend.

9. The costs of the parties incidental to this strike-out application and any costs thrown away by the fifth respondent because of the ordering of further and better particulars of complaint are reserved. The parties have liberty to apply for those costs on reasonable notice to each other and the Tribunal.

1. My decision in this matter is that, in so far as the complaint as particularised claims that the fifth respondent, Mr Owen, in his capacity as employee, discriminated against the complainant Mr Kafantaris, that claim is dismissed. In all other respects the strike out application is dismissed and the complaint survives.

2. Mr Kafantaris is granted leave to amend the particulars of complaint to clarify the claim that Mr Owen in his capacity as the City of Yarra's agent breached s.14 of the Equal Opportunity Act 1995 ("the Equal Opportunity Act") and to include particulars of the alleged breach by Mr Owen of s.98 of that Act.

3. The Tribunal refuses the complainant leave to amend the complaint and particulars of complaint to include a claim that Mr Owen discriminated against Mr Kafantaris in the provision of goods and services.

4. Further and better particulars of complaint must be filed and served by 30 November 2005. Mr Owen is to file and serve particulars of defence by 21 December 2005. I will vacate the directions of 29 August 2005 relating to witness statement dates and the mediation date. The mediation will be re-listed on a date in January 2006 to be notified to the parties by the Tribunal's Principal Registrar after the Tribunal's registry has contacted the parties and obtained a list of suitable dates. Costs of the parties incidental to the strike out application and also costs thrown away by the fifth respondent in relation to the furnishing of further and better particulars of complaint are reserved. The parties have liberty to apply for those costs on reasonable notice to each other and the Tribunal. I now give my reasons.

5. In February 2005 Mr Kafantaris lodged a complaint with the Equal Opportunity Commission ("the Commission") under the Equal Opportunity Act. The complaint is against five respondents. The first respondent is the City of Yarra. There are three more individual respondents. The fifth respondent was Mr Owen. The complaint was prepared by Mr Kafantaris' solicitor. The complaint expressly states that it claims impairment discrimination in employment.

6. The Commission declined to entertain the complaint against Mr Owen under s.108(1)(a) of the Equal Opportunity Act. In the submissions filed on behalf of Mr Owen, there is a copy of the Commission's letter to Mr Owen's solicitors advising them of this decision. In brief, that letter states that the decision was made because the Commission considered the complaint to be misconceived as there was no employment relationship between Mr Owen and the City of Yarra.

7. The Commission referred the complaint against the other respondents to conciliation. Conciliation was unsuccessful. Mr Kafantaris, as was his right under the Equal Opportunity Act, required the whole complaint to be referred to VCAT. The Commission did this. In accordance with the Tribunal's directions, particulars of complaint and further particulars of complaint and particulars of defence for the respondents other than Mr Owen have been filed and served. Mr Owen now applies under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") to strike out or dismiss the complaint as against him.

8. The Tribunal has in many cases discussed the principles applying to such an application. Relevantly, they are these. (See for example Rabel v. State Electricity Commission [1998] 1 VR at p 102). The Tribunal must be cautious before summarily terminating a complaint under this section and so depriving the litigant of the chance to have the case heard in the ordinary course. It must only do so where for a reason mentioned in the section it is satisfied that the case is manifestly hopeless, undoubtedly untenable, or doomed to fail. Here, it is argued for Mr Owen that the case against him is manifestly hopeless because it is misconceived. This is one of the grounds mentioned in s.75.

9. I have before me the complaint, the particulars of complaint, the further particulars of complaint and written and oral submissions from the parties on the strike-out application.

10. In summary, Mr Kafantaris' claims against Mr Owen as particularised are these. At the relevant time, which appears to be mid-2003 to April 2004, Mr Owen knew that Mr Kafantaris had a medical diagnosis of multiple sclerosis. Mr Owen was a rehabilitation consultant employed by RTK Corporate Pty Ltd ("RTK"). RTK was a contractor for the City of Yarra. Mr Kafantaris' claim is that between May and November 2003, Mr Owen twice told Mr Kafantaris to find an alternative job or take social security benefits. At a meeting on 11 March 2004 attended by Mr Kafantaris and the four individual respondents, these respondents, including Mr Owen, required Mr Kafantaris to consent to, and participate in seeking re-deployment to some position outside the City of Yarra's employment. At another meeting attended by City of Yarra Management including Mr Owen and by the complainant and his solicitor Ms Wilson, on 22 March 2004, Mr Owen repeated this requirement. Mr Kafantaris' claim is that this constituted pressure by Mr Owen for him to leave his work with the City of Yarra and that this was subjecting him to a detriment in employment and constituted direct discrimination against him on the basis of his impairment in breach of s.14(d) of the Equal Opportunity Act. The impairment was multiple sclerosis.

11. I now come to the submissions. It is first argued for Mr Owen that the true interpretation of s.14(d), when read with s.102 of the Act, is that while an employer can, under s.102 be vicariously liable for the conduct in breach of the Act by an employee of that employer, those sections do not make the employer liable for the conduct of an employee of another employer. Mr Owen was employed not by the City of Yarra but by RTK. The City of Yarra cannot be liable for Mr Owen's conduct.

12. I agree. Section 14 relevantly provides that -

"an employer must not discriminate against an employee -

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

13. Some of the other matters covered by the section include dismissing or otherwise terminating the employee's employment, or denying or limiting access by the employee to opportunities for promotion, transfer, training, or to any other benefits connected with the employment. (See in particular s.14(a) and (b)). As a whole, the section is concerned with detriments imposed by the employer on the employer's employee.

"if a person in the course of employment or while acting as an agent-

(a) contravenes a provision of Part 3, 5 or 6; or

(b) engages in any conduct that would, if engaged in by the person's

employer or principal, contravene a provision of Part 3, 5 or 6 -

both the person and the employer or principal must be taken to have contravened the provision, and a complaint about the contravention may be lodged against either or both of them".

15. The section when it refers to "in the course of employment" and then later to "the employer", is speaking of the employment of the employee by the employer. Paragraph (a) relates to the employee directly. Paragraph (b) relates to conduct which, if engaged in by the employee's employer, would breach the Act and has the effect that if the employee engages in that conduct, the employee breaches the Act also. Paragraph (b) overcomes the difficulty in sections like s.14, that the obligation is cast not on the employee but the employer. So if the employee does something which, if done by that employee's employer would in the employer's capacity as employer be a breach by the employer of s.14, the employee will also breach s.14. Section 102 has the effect that if Mr Owen does something which, if done by his employer, RTK, as an employer would breach s.14, then Mr Owen and RTK are both liable. It does not have the effect that if Mr Owen breaches the Equal Opportunity Act, the City of Yarra, which the complainant agrees was not his employer, would be liable with him.

16. It is unnecessary for me to decide here whether as suggested on Mr Owen's behalf, the definition of "employee" in s.4 of the Equal Opportunity Act is incapable of covering a corporate employee. Suffice it to say that the definition is inclusive. It covers not only work under a contract of service, but also a contract for services. It is broad in its terms and is not expressly limited as argued on behalf of Mr Owen. It refers to "person" in this context. "Person" is defined in s.38 of the Interpretation of Legislation Act 1984 which applies to Victorian legislation generally, to include a body corporate.

17. Mr Owen, however, is a respondent in this case. RTK is not a respondent. In my view the claim that under s.102 Mr Owen is liable as an employee of the City of Yarra is manifestly hopeless and should be dismissed.

18. But this is not the end of the matter. Mr Kafantaris says in the particulars of complaint that Mr Owen acted on behalf of the City of Yarra. This can mean either that he was an employee of the City of Yarra or its agent. As far as agency is concerned, the parties are in dispute. Mr Kafantaris says that Mr Owen was the City of Yarra's agent. The City of Yarra says that its only agent was RTK. According to the particulars of complaint, Mr Owen seems to have taken part in at least two meetings, at which City of Yarra's management were present. I am not prepared to say that this part of the claim is so hopeless that it should be dismissed at this point.

19. For the first time in written submissions Mr Kafantaris claimed that Mr Owen discriminated against him by subjecting him to a detriment in connection with the provision of services by Mr Owen to him. The services were said to be vocational and occupational rehabilitation services. This was not alleged in either the complaint or particulars of complaint.

20. I am not prepared to give leave to the complainant to amend the complaint to include this claim. It was not included in the complaint as lodged with or handled by the Commission. What the Commission referred to the Tribunal was the complaint which expressly stated that it only claimed discrimination in employment. I do not think that the Tribunal can go beyond the scope of this referral to include this new claim now. Even interpreted in a broad and non-technical way, the complaint never claimed this. In this respect I agree with the submissions made on behalf of Mr Owen.

21. Mr Kafantaris' claim as clarified by the submissions is that Mr Owen breached s.98 of the Equal Opportunity Act by requesting, instructing, inducing, encouraging, authorising or assisting the City of Yarra to breach the Act. This wording almost exactly follows what is said in s.98 itself. The effect of s.99 when applied to this case is that if Mr Owen, in relation to the City of Yarra did these things and as a result the City of Yarra breached Part 3, 5 or 6, both it and Mr Owen are taken to have breached those provisions and a complaint may be made against either or both of them. Here, the provision which they are taken to have contravened is s.14(d) which relates to discrimination by subjecting an employee to a detriment. This is indeed the breach of the Act claimed in the complaint.

22. In my view, a claim of breach of ss.98 and 99 is not beyond the scope of the referral of the complaint but it is insufficiently particularised and more particulars of it must be given. The Tribunal should not be over-technical here. The purpose of particulars is to tell the respondents the case they have to meet. No witness statements have yet been filed or for that matter particulars of defence by Mr Owen. Even though one set of further and better particulars has been filed, Mr Kafantaris should be given leave to file further particulars of this part of the claim. On this matter I accept the complainant's submissions.

23. It is submitted for Mr Owen that s.98 relates only to positive conduct and that there is no such positive conduct by Mr Owen here. In my view, the case should not be dismissed as manifestly hopeless on this ground at this point. First, it may well be that s.98 contemplates omission as well as commission, at least where it can be said that there was a duty or legitimate expectation that the relevant person would act. Second, the parties are in dispute as to whether Mr Owen's alleged conduct constitutes encouragement or the various other things referred to in the section. This dispute cannot be decided here, it must go to a full hearing.

24. Finally, there is a brief mention in the submissions on behalf of Mr Owen of s.80 of the Equal Opportunity Act. As an exception to the prohibitions on discrimination, and by virtue of s.12, the burden of establishing this exception is on the person claiming it. There is no affidavit or other evidence to establish the exception here.

25. The strike-out application is substantially dismissed. I have already explained the other orders that I have made. That concludes my reasons for decision.