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

[1] I can decide this matter without the need to adjourn, and my decision is that the application to strike out or dismiss a complaint succeeds, and the complaint because it is not curable by amendment is dismissed. I will briefly explain my reasons.

[2] The Tribunal in numbers of cases has set out the principles that apply to applications which a respondent makes under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). Those principles are briefly these. The Tribunal can under that section strike out or dismiss a proceeding on the basis that it is frivolous, vexatious, misconceived or lacking in substance, and these are the grounds on which these respondents apply to strike out this complaint.

[3] The Tribunal should be cautious before summarily terminating a proceeding in this way, and so depriving the litigant of the chance to have the case heard in the ordinary course. It should only do so where it is satisfied that the case is manifestly hopeless, undoubtedly untenable or doomed to fail. In this case I am satisfied of this.

[4] The factual basis of the claim is not relevant at this stage except to say that Ms Nason concedes that she works as a volunteer, that is, that she works in an unpaid capacity. She says that she works for the National Library Service and at 85 High Street, and also at the RVIB's premises at 201 High Street, Prahran. The respondents dispute that she works as a volunteer at 201 High Street. But even if I accept that she does, the respondents still say that their conduct cannot come under the Equal Opportunity Act. They say that the only provision under which their conduct might fall are the provisions of section 14 and the related provision of section 102, both of which concern employment.

[5] In this case what Ms Nason is saying is that one of the respondents' managers, and one of the senior supervisors of the carpentry workshop located at 201 High Street have banned her from entering or staying at 201 High Street, and that the ban directly discriminates against her on the basis of her physical features, marital status, or sex, or age. Now, in relation to these matters, it is clear to me from the complaint that really she is saying that she is a worker, an employee with the RVIB at 201 High Street. She concedes that she is not paid for this work.

[6] It is clear from the definition of "employment" in s4 of the Equal Opportunity Act that it does not apply to voluntary or unpaid work, and the definitions of "employer" and "employee" pick up those exclusions.

[7] On that basis the RVIB in the terms of the Equal Opportunity Act cannot be her employer and she is not its employee. The difficulty is that section 14 requires, in my view, that there be a relationship of employer and employee between the alleged discriminator and the complainant. This complainant is not an employee in terms of the Equal Opportunity Act, and so the prohibitions in section 14 cannot apply.

[8] The only claim that might attract section 102 of the Act which concerns the vicarious liability of an employer also in my view relates to employment. Among other things, s102 makes an employer liable for its employees' conduct if that conduct breaches Part 3 or, if that conduct were engaged in by the employer, would breach Part 3. Section 14 is part of Part 3. But for a breach of s14 to occur, there must be a relationship of employer/employee between the alleged discriminator and the victim of discrimination. Again because of the restrictive definition of employment in the Equal Opportunity Act that relationship does not exist between the RVIB and the Complainant and the claim also is not made out. I also cannot find any other provision of the Equal Opportunity Act which might cover this case, and because in my view the complaint cannot be cured by amendment it should be dismissed as misconceived.

[10] First, it seems most unfortunate to me, and I understand there is dispute about the circumstances, but it seems most unfortunate that this matter has come to this stage. It seems unfortunate that there could not have been some resolution of the matter through agreement or discussion between Ms Nason and the RVIB because after all what Ms Nason has said to me is that she works as a volunteer and continues to work as a volunteer at the national library service at High Street, an organization operated in part by the RVIB. She wishes to be able to assist blind people as a volunteer, and it is unfortunate that a person who wishes to do these things has finished in this situation.

[11] Second, I recognise that there may be disputes about the circumstances under which she was in the premises at 201 High Street. But it is certainly clear that one of the things she wanted to do whilst there was to assist her visually impaired husband. The second comment would therefore be that it is very unfortunate that it seems that she is unable to enter the premises at this stage even to do that. I simply raise these matters for the RVIB's consideration. But my overall conclusion that the complaint is dismissed.