2. The application to strike out the Complaint is otherwise dismissed.

3. The Complainant file and serve within 21 days of the date of this order further and better particulars of paragraph 14 and in particular set out all facts, matters and things constituting the directing authorising or permitting the termination of the Complainant's employment by the First and Second Respondents.

For the Respondents: Ms R. Doyle of CounselREASONS FOR DECISION

1. The Respondents in this complaint have made an application under s109 of the Equal Opportunity Act 1995 ("the EO Act") to strike out the complaint on the basis that it is frivolous, vexatious, misconceived or lacking in substance.

2. This application was heard before me at the same time as a similar application by the Respondent in complaint A151/2000 in which Tim Pallas the Third Respondent in this proceeding is named as the only Respondent ("the second complaint").

3. The complaint in this case is that of sexual discrimination whereas the second complaint is of victimisation of the Complainant following the termination of her employment.

4. Four separate but identical statements of complaint that each name a different respondent were filed with the Equal Opportunity Commission ("EOC") by the Complainant on 4 November 1999.

5. The complaints recite that the Complainant was originally employed as an electorate officer in the office of the then Leader of the Opposition (Mr Brumby) but she received her day to day directions mainly from Mr Thwaites.

6. Although the statement of complaint refers to her workplace being "a blokey" environment it makes no reference to sexual harassment and accordingly there was no complaint on the basis of sexual harassment before the Commission.

7. The substantial complaint that was before the EOC was that when a staff review was conducted by Tim Pallas, who was then acting Chief of Staff, she was not interviewed although other members of staff particularly the male members of staff were interviewed. She states the male researchers were interviewed and the female researchers were not interviewed.

8. Subsequently on 29 March 1999 her employment was terminated. She further complains that during the notice period after termination she was treated differently. However this complaint is the subject of the second complaint and needs to be considered separately.

9. She further complains that she has been discriminated against on the basis of her sex and was not given equal treatment for that reason in the review process.

10. The EOC pursuant to s108 of the EO 1995 Act declined the entertain the Complaint and at the request of the Complainant referred it to the Victorian Civil and Administrative Tribunal ("VCAT") on 7 February 2000. The report accompanying the reference states:

"The Complainant alleges discrimination on the basis of sex in the area of employment. The complaint appears to rely upon sections 14, 98 and 102 of the EO Act 1995".

11. The Particulars of Complaint filed at VCAT on 14 June 2000 seek to rely on the attribute of sex and status as a parent or carer. In addition in the amended para 12 of the Particulars of Complaint there appear to be included allegations of sexual harassment.

12. She also alleges in para 11 that the Respondents failed to honour the terms of an industrial agreement after her employment had been terminated.

13. Para 12 which concerns the allegations of sexual harassment would appear on its face to raise issues which were not the subject of a complaint in the Equal Opportunity Commission.

14. Para 13 alleges a failure by the Respondents to take reasonable precautions to prevent unlawful discrimination, that is the alleged discriminatory way in which the review was conducted, whilst para 14 alleges that the First and Second Respondents directed, authorised and permitted the termination of the Complainant's employment and the denial of her industrial entitlements and rely on sections 98 and 99 of the Act.

15. The application to strike out the complaint states that it is made pursuant to s109 of the EO Act 1995. The relevant parts of that section are set out hereunder:-

"(1) A respondent may apply in writing to the Tribunal to have a complaint or any part of it struck out on the grounds that it is frivolous, vexatious, misconceived or lacking in substance.

(a) before the respondent has been give a notice to attend under section 114(2)(a) or has otherwise been notified by the Commission or the Chief Conciliator of a date for conciliation; or

(b) after the conciliation has been completed and before the Tribunal commences to hear the complaint."

16. It is noted that s109 of the EO 1995 Act is similar to s75 of the Victorian Civil and Administrative Tribunal Act ("the VCAT Act"). However although the section is in somewhat similar terms s75 provides that the application may be made at any time whereas s109 only allows such an application to be made before the Tribunal commences to hear the complaint.

17. The meaning of the words, "frivolous, vexatious misconceived or lacking in substance" was discussed at some length in the judgments of the Court of Appeal in The State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102. In that case Ormiston JA at p107 expressly disagreed with a statement made by Sir Ronald Wilson as President of the Human Rights and Equal Opportunity Commission in Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 "that a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim would ordinarily be found to be lacking in substance". The Rabel case makes it clear that the summary dismissal of an action at a preliminary stage can only occur in circumstances where the action is absolutely hopeless or "so clearly untenable that it cannot possibly succeed" (p109). In that case the Court of Appeal proceeded on the basis that once a proceeding or part of it was struck out pursuant to s109 then the complainant was precluded from making an amended complaint. Before considering the application of this principle to the present complaint it is appropriate to consider the limitations imposed on VCAT to hear complaints imposed by the EO Act.

18. Section 124 of the EO Act gives the Tribunal jurisdiction to hear a complaint which is referred to it by the Commission under s108, 113, 117 or 123. It has no jurisdiction to hear a complaint unless it has already been referred to the Commission save for a complaint referred to it by the Minister under s111. Accordingly although the Tribunal has a general power of amendment under s127 of the VCAT Act because it is subordinate to the enabling legislation (s159 of the VCAT Act) it cannot amend a complaint so as to introduce a fresh complaint which has not been the subject of a complaint to the Commission.

19. The Complainant's allegation that she was unfairly treated in the staff review by Mr Pallas because of her sex may, if it can be supported by credible evidence, enable the Complainant to make out a case of discrimination based on her sex. Without hearing the evidence from both sides I am of the opinion that it is not possible to conclude that part of her claim is completely hopeless and has no prospect of success.

20. In addition she has alleged in paragraph 14 that the First and Second Respondents directed, authorised or permitted the termination of the Complainant's employment contrary to sections 98 and 99 of the EO Act. Again without hearing evidence in support of this allegation I cannot conclude that the allegation has no prospect of success.

21. One of the matters that would need to be considered is the fact that the Complainant was employed by the State of Victoria and not by any of the other Respondents. The Complainant was employed as an electorate officer under the Parliamentary Officers Act 1975. Section 26 provides that the President and the Speaker may employ a person to act as an electorate officer to assist a Member of Parliament.

22. The President and the Speaker may delegate the above function to the Secretary of the Department. Although it is clear that the employer is the State of Victoria the Particulars of Complaint fail to give any particulars in relation to s98 which is in the following terms:

"A person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 3 or 6."

23. In the absence of those particulars I am unable to be satisfied whether or not there is a case to be made against the Second and Third Respondents.

24. In addition to the above paragraph 11 concerns an allegation that she was not provided with access to the benefits of her Industrial Agreement. That paragraph should also be struck out as it concerns enforcement of an industrial agreement and is not a subject within the jurisdiction of VCAT.

25. Paragraph 12, which has been amended, appears to relate to sexual harassment and to the conduct of persons who were not her employers or co-workers. In my opinion this constitutes a new complaint which was not before the Commission. It follows from what I have already said that VCAT does not have the jurisdiction to hear matters relating to sexual harassment where a complaint concerning sexual harassment has not been made to the Commission and then referred to the Tribunal.

26. I have concluded that the Particulars of Complaint contain a number of allegations and complaints which I am of the opinion should be struck out.

(a) Paragraphs 11 and 12 (as amended) of the Particulars of Complaint are struck out.

(b) The application to strike out the complaint is otherwise dismissed.

(c) The Complainant file and serve within 21 days of the date of this order further and better particulars of paragraph 14 and in particular set out all facts, matters and things constituting the directing, authorising or permitting the termination of the Complainant's employment by the First and Second Respondents.