(1) A person must not discriminate against another person -

(a) by refusing to provide goods or services to the other person.

1. What is prohibited discrimination is set out in Part 2 of the Act of which ss 6, 7 and 8 are relevant here.
2. The applicant alleges the attributes of age, impairment and sex are relevant and that the respondent directly discriminated against her on the basis of her age, sex and impairment.
3. The applicant also alleges the respondent has victimised her contrary to s 96 of the Act.
4. This is said to have occurred because the applicant lodged the complaint with the VEOHRC. Specifically, the applicant asserts:

4. (d) I was subjected to considerable victimisation because I had complained about the way WorkSafe and its personnel had treated me and my case.

1. By application to the tribunal dated 22 July 2011, the respondent applies to have the application summarily dismissed or struck out on the basis that the claim is:

frivolous, vexatious, misconceived or lacking in substance or otherwise an abuse of process.

The application is made pursuant to s 75 of the VCAT Act 1998.

1. The application in writing fixed upon that part of the complaint that alleged discrimination on the basis of age, sex and/or impairment. In summary form, the respondent argues the applicant cannot succeed and must fail because, in carrying out its statutory functions under the Occupational Health and Safety Act 2004 ('the OHS Act'), the respondent did not provide 'a service' to the applicant within s 42(1)(a) of the Act.
2. In addition to that which is set out in the application for s 75 relief dated 22 July 2011, at the hearing, the respondent also sought to argue the complaint of victimisation must also fail. The basis of that argument is set out in a letter to the tribunal by the respondent's solicitors dated 29 September 2011 and copied by email to the applicant.
3. At the hearing of the application for s 75 relief, I gave the respondent leave to also argue that the claim of victimisation alleged must also fail. Mr Osborne, a friend of the applicant, who I gave leave to appear on her behalf, objected to this course but offered no sound reason why the applicant would be prejudiced in presentation of her case if both aspects of the argument were heard together.
4. On 9 September 2011, Senior Member Megay gave leave to the Equal Opportunity and Human Rights Commissioner to intervene in the proceeding before the tribunal. As a result, the tribunal was assisted by the helpful written and oral submission of Ms Fitzgerald who appeared on behalf of the VEOHRC.
5. Mr Osborne appeared on behalf of the applicant and he filed a submission in writing. Mr Gostencnik, solicitor, appeared on behalf of the respondent and he filed written submissions with the tribunal.
6. Relevantly, s 75 of the VCAT Act provides as follows:
   1. Summary dismissal of unjustified proceedings

(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

(5) For the purposes of this Act, the question of whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

1. In State Electricity Commission of Victoria v Rabel and Others [1998] 1 VR 102, the Court of Appeal considered the operation of s 44(c) of the Equal Opportunity Act 1984. That section also provided a power of summary dismissal. Justice of Appeal Ormiston said, a complaint could not be dismissed under s 44(c) unless it was clear beyond doubt that the complaint was lacking in substance, that is, that the complainant had no arguable case which should be allowed to be resolved at a full hearing. In deciding this application for summary dismissal, I apply that test. The respondent must show that it is clear, beyond doubt, that the complaint is lacking in substance, and that there is no arguable case which should be allowed to be resolved at a full hearing.
2. The respondent's application for summary dismissal of the complaint insofar as it relates to allegations of discrimination, is made on the basis that in exercising its powers and functions under the OHS Act to investigate contraventions of it, the respondent did not provide a 'service' to the complainant within the meaning of s 42 of the Act. Accordingly, so it is argued, the tribunal does not have jurisdiction to hear the matter.
3. There is a lengthy background leading up to this complaint which needs to be understood. On 10 October 2006, the applicant commenced employment in the role of State Coordinator, Youth Foundations of Victoria - Community Enterprise Foundation with Bendigo Bank Limited. Her immediate superior in that role was one Natalie Elliot.
4. For various reasons, recorded in the material lodged with the complaint in the tribunal, the applicant was not happy in her employment and it is obvious from the material that a number of tensions developed between herself and Ms Elliot.
5. On 10 June 2008, the applicant made contact with the respondent for the first time alleging that she had been bullied in her place of employment. Emails were exchanged in which the applicant set out the circumstances surrounding her allegations. On 11 June 2008, the applicant emailed the respondent attaching what is referred to in the complaint as attachment 'Z'.
6. On 20 June 2008, the applicant was advised that her position at the Bendigo Bank was to be made redundant as of 23 June 2008. The redundancy was said to arise as a result of a restructure following a merger between the Bank of Adelaide and the Bendigo Bank Limited.
7. On or about 1 July 2008, there was a meeting between Inspector Ford of the respondent's office and the applicant. At this meeting the applicant provided Inspector Ford with copies of the Bendigo Bank Limited's bullying policies and procedures.
8. On 7 August 2008, Inspectors Randall and Ripper visited the Bendigo Bank for the purposes of conducting a systems review of the Bank's bullying policies and procedures. Inspector Randall noted that the training appears to be 'comprehensive and relevant'.
9. On 2 October 2008, there was phone contact between the applicant and the manager of WorkSafe's bullying team, one Belinda Lowing. On 13 October 2008, Ms Lowing advised the applicant by mail of the result of WorkCover's investigation. Lowing stated that the matters raised do not fit the definition of bullying as they are primarily concerned with salary grievance and career opportunities. The letter contains an account of the process carried out by the inspectors in relation to the allegations.[1]
10. Having received the letter from Ms Lowing advising of the outcome of WorkCover's investigation, the applicant applied to WorkSafe's internal review unit for review of the decision made. That application was made by the applicant pursuant to s 128 of the OHS Act.
11. On 28 October 2008, WorkSafe internal review officer, senior lawyer, Anne Warner, acknowledged receipt of the complainant's application for review. On 10 November 2008, Ms Warner made an internal review decision. That decision was:

the decision described as 'a decision by a WorkSafe inspector' to refuse to issue an improvement notice in relation to the alleged bullying of the applicant at her workplace is set aside and a decision that the alleged bullying complaint will be further considered by WorkSafe is substituted. The matter is referred back to WorkSafe operations for further enquiries at the workplace.

1. Following this internal review decision by Ms Warner, WorkSafe continued to investigate the applicant's complaint of bullying in her workplace at Bendigo Bank.
2. On 30 November 2008, the applicant responded to an email from Ms Lowing. The email heavily criticised WorkSafe's initial investigation and raised concerns over Lowing's description of the steps that will be taken in any subsequent investigation. In this email the applicant referred to a conversation with the Bendigo and Adelaide Bank Group Protections Officer, one Julian Carne, who advised her that an external consulting firm that specialises in internal investigations was engaged to investigate the bullying allegations. Subsequent to this conversation, an extensive interview with the applicant took place.[2]
3. WorkSafe again visited the Bendigo Bank Limited on 8 December 2008 and 12 December 2008. On 15 December 2008, the applicant sent a further email to Inspector Toseland requesting information regarding the conduct of the second investigation. Specifically, the email asks which people the inspectors had spoken to at Bendigo Bank.[3] Ms Lowing replied on the same day to the applicant by email setting out what could and what could not be done by the respondent.[4]
4. On 23 December 2008, there was a meeting between the applicant and Senior Inspector Toseland and Inspector Ford of the respondent.[5]
5. On 7 January 2009, Inspector Toseland prepared an internal WorkSafe memorandum 're file closure'. In the memorandum, Toseland concluded that, while it is evident that the applicant had strained relationships with Bendigo Bank Limited and Ms Elliot in particular, there was insufficient evidence to support the claims that there had been a contravention of the OHS Act.[6]
6. On 29 January 2009, Ms Lowing, on behalf of the respondent, wrote to the applicant advising of the result of the second or further investigation. The letter summarises the allegations and details the findings of the investigation. Ms Lowing stated in the letter that insufficient corroborative evidence was obtained. The letter does make mention of some process improvement recommendations that the inspectors made to the Bendigo and Adelaide Bank Group management.[7]
7. On 4 March 2009, the applicant wrote to WorkSafe compliance coordinator lodging a complaint in relation to the conduct of the investigations.[8] Also on 4 March 2009, the applicant wrote to the WorkSafe psychologist, one William Pappas, advising him of the allegations against WorkSafe, namely, that the investigations had not been carried out properly.[9]
8. On 15 December 2009, an application for a second internal review by the applicant was dismissed by Anne Warner. The application for internal review was dismissed on the basis that at the time the applicant requested the second internal review, she was not an 'eligible person' within s 127 of the OHS Act. Her employment with Bendigo Bank Limited having been terminated.
9. On 21 January 2010, the applicant applied to the tribunal for review of the second internal review decision.
10. On 12 May 2010, the tribunal (Acting Deputy President Billings) affirmed the decision of Anne Warner dismissing the application for internal review on the basis that the applicant was not 'an eligible person' within s 127 of the OHS Act.
11. In order to decide whether the applicant can succeed on her complaint of discrimination based on an allegation that the respondent refused to provide services to her, it is necessary to identify from the complaint and the materials supporting it, the 'services' denied to her by the respondent which are said to have resulted in detriment to her. The applicant's referral to the respondent for investigation of the Bendigo Bank alleges she was subject to various kinds of conduct at the hands of the Bendigo Bank and/or its employees (in particular Natalie Elliot) which the applicant asserts amounts to workplace bullying.
12. The applicant's complaint about the conduct of the respondent is dated 19 January 2011. It is some 19 pages in length and has 30 attachments to it. In considering this matter, I have taken considerable time to read each of these documents.
13. In summary form, and insofar as the complaint alleges discrimination being a refusal to provide 'services', the complaint alleges:

(a) the applicant lodged the complaint with the respondent about the conduct of Bendigo Bank Limited and its employees which conduct was alleged to amount to workplace bullying which the respondent did not investigate properly;

(b) the respondent failed and/or refused to issue to Bendigo Bank Limited an improvement notice and failed and/or refused to prosecute Bendigo Bank Limited for failing to provide a safe working environment for the applicant;

(c) the respondent failed to properly decide a request for internal review by its decision of 15 December 2009.

1. In the hearing of this matter, I put to Mr Osborne that the applicant's complaint could be summarised in the above way. I asked Mr Osborne whether he agreed that it was an accurate summary. Whilst he did not agree with my summary, he did not advance in any way any suggestion that in summarising the applicant's case in the way I have, that I was in error.
2. The Act defines 'services' in a very broad and inclusive way in s 4 as follows:

Services includes, without limiting the generality of the word -

(a) access to and use of any place that members of the public are permitted to enter;

(b) banking services, the provision of loans or finance, financial accommodation, credit guarantees and insurance;

(c) provision of entertainment, recreation or refreshment;

(d) services connected with transportation or travel;

(e) services of any profession, trade or business, including those of an employment agent;

(f) services provided a government department, public authority, state-owned enterprise or municipal council -

but does not include education or training in an educational institution.

The applicant here relies especially upon what is contained in subparagraph (f) of the definition.

1. The question of whether government activities amount to the provision of 'services' has been the subject of a number of decisions of appellate courts, including the High Court and of Judges of State Supreme Courts and other Tribunals. In Rainsford v Victoria and Another [2007] FCA 1059; 167 FCR 1, Justice Sundberg said the touchstone for 'service' is whether an act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs. Identification of the service is a question of fact determined by the situation of the particular case.
2. At page 17 of the report, at paragraph 72, his Honour went on to say as follows:

The judgments in IW [1997] HCA 30; 191 CLR 1 are clearly dependent on the particular fact situation of that case, but some general propositions can be identified. First, not all government functions are services, although some undoubtedly are. Second, as the difference between Dawson, Gaudron and Gummow JJ on the one hand, and Toohey and Kirby JJ on the other hand demonstrates, the way in which the service is identified is critical. It is a question of fact determined by the situation of the particular case.

Counsel for the State suggested that the touchstone for service should be whether the act involves helpful or beneficial activity: IW 191 CLR at 11 per Brennan CJ and McHugh J. I accept that this is a useful test, but in a qualified way. Most activities are helpful or beneficial to someone. That in itself does not make them services. The question must be whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs. There is little doubt that GSL provides a service to the State: there was in evidence parts of the prison services agreement the State and ACF and further evidence that ACF subcontracted its obligations to GSL.

1. His Honour went on, at paragraph 78, page 17 as follows:

The accommodation of prisoners in cells within the prison system is similarly an inherent part of incarceration. Prisoners must be housed somewhere within the prison system and that this is so demonstrates that for a prisoner to have a cell is not a helpful or beneficial activity so far as the prisoner is concerned. Insofar as there is choice in the allocation of prison cells, it is a purely administrative and prison management matter. It does not, of itself, provide prisoners with a benefit. Rather, it is better described as being 'part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services', to adopt the words of Underwood J in Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner [2003] TASSC 27; (2003) 11 Tas R 324 at 341.

1. In Waters v Public Transport Corporation [1991] HCA 49; [1991] 173 CLR 349 at page 404, Justice McHugh said, inter alia, as follows at page 404:

Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. If a person is alleged to have refused to perform services, eg, the services in question must be identified in sufficiently concrete terms to enable the board to determine whether or not there has been a refusal to perform those services. What is a sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as 'the public transport system'.

1. In IW v City of Perth [1997] HCA 30; [1996-1997] 191 CLR 1 at pages 16 and 17, Chief Justice Brennan and Justice McHugh dealt with this issue in the following way:

Similarly, when is a council required to act in a quasi judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual. This is likely to be the case where the council, before making a decision, is required to consider matters that affect the public interest. In such a case, the council may be providing a 'service' in a very general sense because its ratepayers ultimately benefit from the process. But that may not be sufficient to bring the process within the scope of Part IV A of the Act ... In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides. The appellant does not assert, and the tribunal did not find, that the relevant service which the city provides was the consideration of an application for approval. There was clearly no refusal to provide such a service. Rather, the appellant asserts that it was the refusal to approve the application that was the refusal of the service which the council provided. However, the city did not provide any service of giving approvals. Conversely, it did not provide any service of refusing approvals. The council, acting on behalf of the city, merely had a duty to consider applications and a discretionary power to refuse or approve those applications unconditionally or on conditions.

1. In Secretary of the Department of Justice v The Anti-Discrimination Commissioner (supra) Justice Underwood, in the Supreme Court of Tasmania, had to consider the question of whether, in making a decision to refuse to prosecute, the Director of Public Prosecutions was providing a service. His Honour analysed all of the authorities and said, at paragraphs 52 and 53 as follows:

This question of what constitutes the provision of facilities and services came before the Court of Appeal (UK) again in Farah v Commissioner of Police of Metropolis [1988] QB 65. At issue in this case was the conduct of the police in investigating and prosecuting the plaintiff who was a Somali refugee. The court held that insofar as a police officer assist and protects the public, he or she is providing a service or facility, but in the pursuit, arrest and charging of criminals, the police officer is not providing a facility or service. He or she is then exercising or performing the duties of his or her office. The Act, section 3, provides an inclusive definition of services. Services relating to any profession and services provided by a State authority appear in that definition. Mr Geason submitted that at the relevant time, the DPP was providing a legal service to EKS and, therefore, as the recipient of that service, EKS was engaged in, or was undertaking an activity in connection with that service. However, application of the above authorities leads me to the conclusion that at the time the DPP acted as described in paras 3 and 4 of his letter dated 19 January 2000 and which led to the making of the complaint, he was not providing a service but performing a statutory duty.

1. From these decisions, the respondent submits, and I agree, that a number of principles applicable in this case can be discerned. Firstly, whilst government activities are capable of being services, not all are. Secondly, it is critical to identify with precision the service said to have been refused. Thirdly, a service, to be a service, must confer a benefit, advantage or welfare on the complainant. Fourthly, the exercise of statutory functions or duties which require the exercise of a discretion, which is quasi judicial in nature, are not services. Fifthly, the performance of a statutory duty to decide whether or not to prosecute are not services. Sixthly, the decision to refuse to exercise a statutory discretion is not a refusal of a service, although a refusal to consider to exercise the discretion may be a refusal of a service. Finally, performance of statutory duties will not be regarded as services.
2. So far as I understand the applicant's submissions in reply, she relies upon what the High Court decided in IW v City of Perth (supra) and argues that that case is determinative of the question of whether a service was refused to the applicant by the respondent. I do not accept that submission which I had difficulty understanding. Mr Osborne, who appeared for the applicant, had a great deal of difficulty in coming to grips with the fact that the respondent distinguishes the IW v City of Perth case from the facts here.
3. Ms Fitzgerald submitted that the High Court in City of Perth accepted the Macquarie definition of the ordinary meaning of the word 'services' at page 11 of the judgment. She submitted that when used in relation to government activities, the literal meaning of the word 'services' should be applied and accorded its natural breadth. Further, she submitted, the Act is beneficial legislation designed to promote equality, eliminate discrimination as far as possible, and provide redress for people who have been discriminated against. Thus, she submitted, when interpreting the word 'services' the tribunal should take into account the beneficial and remedial objectives of the Act. I generally accept those submissions but in my judgment they do not assist the applicant on the facts of this case.
4. Ms Fitzgerald's written outline added the following:
   1. The respondents cite the joint judgment of Brennan CJ and McHugh J in IW v Perth as authority for the proposition that when the 'service' in question is the exercise of a statutory power or a statutory duty it is not a 'service' for the purposes of equal opportunity legislation. The Commission submits that this is neither the correct interpretation of the judgment, nor the definition of services within equal opportunity legislation. The general descriptors 'statutory power' or 'statutory duty' cover a broad range of activities undertaken by government, many of which fall within the ordinary meaning of the word 'services', which is the meaning that it has within the Act.

For example, the Commission's own training activities and dispute resolution service are statutory functions under the EOA 2010, yet they are clearly 'services'.

1. I understood Mr Osborne, on behalf of the applicant, to also adopt this submission.
2. In my view, the question of whether a decision not to prosecute or take action under the OHS Act against the respondent can be said to be a 'service' within s 42(1)(a) of the Act is best determined by an analysis of the provisions of the OHS Act itself. It is only when that is done that the full nature of the work done by the respondent can be properly understood and the nature of the statutory function or duty made clear.
3. Section 2 of the OHS Act sets out the objects of the Act. Relevantly here, s 2 subs (1)(a) and (b) are relevant. They provide as follows:
   1. Objects

(a) to secure the health, safety and welfare of employees and other persons at work; and

(b) to eliminate, at the source, risk to the health, safety or welfare of employees and other persons at work; and

1. s 2(2) of the OHS Act provides that in regard to the administration of the OHS Act regard should be had to the principles of health and safety protection set out in s 4.
2. Section 4 sets out the principles of 'Health and Safety Protection'. Subsections (2) and (3), in combination, place responsibility for health and safety in the workplace on the employer.
3. Section 7 of the OHS Act sets out the functions of the respondent under the OHS Act. Relevantly, s 7(1)(c) provides:

(c) To monitor and enforce compliance with this Act and the regulations.

1. Section 8 of the OHS Act provides the powers of the respondent. Relevantly, it has all the powers and functions of an inspector under the OHS Act. Those powers and functions are found in Part 9 of the Act.
2. Section 9 is a coercive power. It gives the respondent power to require information.
3. Part 3 of the OHS Act deals with 'general duties relating to health and safety'. Division 2 of Part 3 provides for the 'main duties of employers'.
4. Section 21 provides for the duties of employers to employees. In particular, s 21(1) provides as follows:
   1. Duties of employers to employees

(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risk to health.

Penalty: 1800 penalty units for a natural person; 9000 penalty units for a body corporate.

1. The duty owed by an employer to an employee is an ongoing duty. Breach of the duty is an indictable offence.
2. Part 9 of the OHS Act deals with inspectors and enforcement. It provides for the appointment of inspectors and provides the inspectors with a range of coercive powers.[10]
3. Section 111 gives an inspector and the Authority the power to issue an improvement notice 'if an inspector reasonably believes that a person is contravening or has contravened a provision of the Act'. The discretion is entirely with the inspector.
4. Section 112 is a similar and complimentary power. It provides the inspector and the respondent with the power to issue a prohibition notice if an inspector reasonably believes that an activity is occurring or has occurred at a workplace that involves or will involve an immediate risk to health or safety of a person.
5. Section 130 provides that proceedings for an offence may be brought by the respondent or one of its inspectors. If no proceedings are brought, s 131 provides a mechanism for the applicant to request the respondent to bring a prosecution and to advise whether a prosecution 'has been or will be brought or give reasons why a prosecution will not be brought'. If the respondent advises that a prosecution will not be brought, the respondent must refer the matter to the office of the Director of Public Prosecutions if so requested. In this matter there was no such request made by the applicant within ss 131(1) or 131(3) of the OHS Act.
6. In my judgment, the OHS Act is clear. The onus for ensuring compliance with the OHS Act in the workplace rests on the employer. The primary duty to ensure the safety of employees within the workplace rests on the employer, not the respondent. Enforcement of the OHS Act, investigation of breaches of the Act, the laying of charges under the OHS Act rests with the respondent and its inspectors. The OHS Act gives the respondent and its inspectors numerous coercive powers. Whether those powers are exercised and how they are exercised is a matter for the discretion of the inspector. In the case of issuing an improvement notice under s 111, the inspector must have formed 'a reasonable belief' of contravention of the Act. Importantly, the powers of the Authority, or one of its inspectors, are not exercisable simply because a person insists that they be exercised. Each case will depend upon the evidence found by an inspector upon investigation and the inspector's proper appraisal of that evidence.
7. Sections 63, 75 and 89 of the OHS Act give limited instances where a third party, such as the applicant, can request an inspector to attend the workplace. None of those sections are relevant here.
8. Proceedings for an offence under s 21 can only be brought by the inspector who must first have evidence from which he or she could form an opinion there is a reasonable prospect of conviction. That evidence would have to prove each element of a charge under s 21 beyond reasonable doubt.
9. The OHS Act does not provide a complaints mechanism. There is a review procedure established by Part 10 (ss 127-129), which provides the applicant with a right of review and that was availed of by the applicant here. There is, as I have said, also a mechanism which would involve review by the Director of Public Prosecutions. The applicant did not avail herself of that mechanism.
10. Under the OHS Act, the duty to ensure a safe place of work and a safe working environment is on the employer and the employees. The respondent must exercise its powers under the Act whether there be an injury or not, the respondent does not discharge the employers duty which is an ongoing one.
11. On the facts of this matter, how the applicant's employer was investigated was a matter for the respondent's inspector. The method of investigation, the extent of the investigation and, importantly, the findings of the investigation and what, if any, steps which should be taken following the investigation, are all matters for the respondent's inspector. In my view, the appellant has no say in any of these matters and nor could it be said a service was being conducted for her benefit. Whether or not the respondent's inspector issued or, did not issue an improvement notice under s 111 or, a prohibition notice under s 112 or, laid a charge under s 21, are all matters for the inspector to decide, not for the applicant to request.
12. I agree with the submission of the respondent that the powers of the respondent's inspector under the OHS Act are analogous to the powers of the DPP. The principles applied by Justice Underwood in Department of Justice v The Anti-Discrimination Commissioner are equally applicable here.
13. Applying the relevant principles to this case, the applicant's complaint identifies the relevant services that were refused her by the respondent, namely:

(a) that the respondent failed to properly investigate her complaint of workplace bullying; and

(b) the respondent failed to issue an improvement notice to the Bendigo Bank and/or refused to prosecute the Bendigo Bank for failing to provide a safe working environment.

1. In my view, those alleged services are not services within s 42(1)(a) of the Act. The power to investigate, the power to issue an improvement notice, the power to charge an offence are all statutory functions or duties which require the exercise of a discretion that is quasi judicial in nature. If exercised, none of them would confer any benefit, advantage or welfare on the applicant. The statutory functions are designed to ensure compliance with the OHS Act regardless of whether or not anyone has been injured.
2. The applicant also alleges she was discriminated against in a second internal review she sought. This needs some explanation.
3. On 13 October 2008, the applicant was advised by mail of the result of the respondent's investigation of the Bendigo Bank Limited. On 27 October 2008, she sought an internal review of the decision under s 128 of the OHS Act.
4. An internal review set aside the initial decision not to issue an improvement notice and sent the matter back for further investigation. The applicant makes no complaint about this internal review decision.
5. On 7 January 2009, the respondent concluded again there was insufficient evidence to support the applicant's claims of bullying. The applicant sought a review of this further decision in December 2009. The respondent refused a second application for internal review. That refusal was in writing and was tendered in evidence. On 21 January 2010, the applicant applied to the tribunal to review the second internal review decision. On 12 May 2010, Acting Deputy President Billings dismissed her application because, as he found, the applicant, having ceased her employment with Bendigo Bank Limited, was no longer an 'eligible person' to seek review.
6. In my view, it cannot be argued that the respondent failed to properly decide the applicant's request for internal review of its decision of 15 December 2009. By that time, her employment had been terminated by Bendigo Bank Limited and she was no longer an 'eligible person' to seek such a review. Further, in my judgment, the internal review mechanism is not the provision of a service within s 42(1)(a) of the Act. It is a function that is quasi judicial in nature from which there is a right of review in this tribunal. The applicant exercised that right and exhausted her remedy there. Just because she did not get the result she wanted is no reason for arguing or concluding she has been refused a service.
7. In conclusion, so far as the complaints of discrimination are concerned, the three services that the applicant asserts have been refused her by the respondent, in my opinion, are not 'services' within s 42(1)(a) of the Act. I have reached this conclusion having regard to the provisions of the OHS Act which provides the source of statutory power and applying the various principles which may be gleaned from the cases set out above.
8. Applying the principles in SEC v Rabel and Others (supra), so far as the complainant alleges discrimination, in my judgment, the applicant has no arguable case and the respondent's application under s 75 must succeed. I turn now to the complaint of victimisation.
9. Section 96 of the Act provides that a person must not victimise another person.
10. Section 97 sets out what is victimisation. It provides as follows:
    1. What is victimisation?
       • (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 -

(b) has brought any other proceedings under this Act against any person;

(c) has given evidence or information, or produced a document, in connection with any proceedings under this Act;

(d) has attended a preliminary conference under Part 7;

(e) has otherwise done anything in accordance with this Act in relation to any person;

(f) has alleged that any person has contravened a provision of Part 3, 5 or 6, unless the allegation is false and was not made in good faith;

(g) has refused to do anything that would contravene a provision of Part 3, 5 or 6 -

or because the person believes that the other person or the associate has done or intends to do any of those things.

1. 'Complaint' for the purposes of s 97(1)(a), is not a complaint in the general sense. For the purposes of the Act it is defined in s 4 as 'complaint means a complaint lodged under s 105'.
2. Therefore, before victimisation can occur as a result of making a 'complaint' within s 97(1)(a) of the Act, a 'complaint' must be made to the VEOHRC and the conduct alleged to constitute the victimization must have occurred after the complaint, not before it.
3. The respondent's argument that the complaint of victimisation cannot succeed is best summarised by the letter from its solicitors to the tribunal copied to the applicant as follows:

In her complaint to the VEOHRC, the complainant sets out a number of complaints she made to the respondent in relation to the manner in which it dealt with her allegations of bullying against her former employer, and alleges that she was 'victimised' by the respondent as a result of making such complaints.

As the tribunal would be aware, in order to prove that an act of victimisation has occurred, a complainant must be able to demonstrate that the respondent has subjected or threatened to subject a person to detriment because that other person has already made a complaint or brought proceedings under the EO Act, or otherwise engaged in activity relating to the procedures under the EO Act.

It is the respondent's submission that the complainant's allegations of victimisation do not satisfy section 97 of the EO Act. Specifically, section 97(1)(a) does not apply as the work 'complaint' in that subsection has a technical meaning inapplicable in this case. Further, section 97(1)(f) does not apply as in order for it to have operation, the alleged treatment complained of must be connected to an attribute, and state what that attribute is. At no point in the complainant's complaint does she connect the alleged treatment of the respondent to one of the alleged attributes (ie sex, age or impairment). Further, the final paragraph of section 97 also does not apply as the respondent could not have anticipated that the complainant intended to bring the complaint to the VEOHRC, or that the complainant intended to allege acts or omissions which would constitute a contravention of the EO Act. There is no evidence at all in the complainant's complaint which points to such a conclusion.

1. The applicant does not argue, nor could she on the accepted facts here, that she was victimised because she lodged this complaint with the VEOHRC. The conduct which she asserts amounted to victimisation here all allegedly occurred before the complaint was lodged.
2. It follows that s 97(1)(a) cannot have application as the respondent properly argues.
3. The complaint specifically deals with victimisation at paragraphs 26 and following. I have read those paragraphs closely. They are convoluted and very difficult to follow. So far as allegations of victimisation are concerned, there is no attempt to link the alleged victimising treatment of the applicant to one or other of the alleged attributes of sex, age or impairment.
4. It follows that the allegations of victimisation if based on s 97(1)(f) also cannot succeed. Further, the alternative provided by the concluding paragraph to s 97 cannot have application here. That is because the respondent could not have anticipated that the applicant intended to allege acts or omissions which could constitute a contravention of the Act.
5. Mr Osborne was invited by me to address the arguments advanced on behalf of the respondent. He did not advance any argument to the contrary.
6. On the complaint of victimisation, in my judgment, the applicant has no arguable case and the respondent's application under s 75, in so far as it relates to that ground, should also succeed.
7. For these reasons, the applicant's complaints that she was discriminated against and victimised by the respondent made by letter dated 19 January 2011 to the VEOHRC referred for hearing by the tribunal are dismissed pursuant to s 75 of the VCAT Act.

[1] The letter from Lowing to the applicant is attachment Z1 to the complaint.

[2] The email from the applicant to Ms Lowing is attachment M to the complaint.

[3] This email is attachment N to the complaint.

[4] The reply is attachment Q to the complaint.

[5] A note of that meeting is attachment F to the complaint.

[6] The memorandum is attachment E to the complaint.

[7] The letter is attachment O to the complaint.

[8] The letter from the applicant to the respondent is attachment Q to the complaint. [Judge the letter Q is mentioned in footnote No 4 - can you please check?]

[9] The letter to Pappas is attachment S to the complaint.

[10] See ss 98, 99, 100, 101, 103, 104, 110.