Victorian Civil and Administrative Tribunal|2001-11-22|Before: Gobbo J

Packer v Vagg & Dept Education [2001] VCAT 2218 (22 November 2001)

Anti-Discrimination List - strike out application - VCAT Act s75

State of Victoria ( Department of Employment, Education and Training )

Application by First Respondent for order that the proceedings against it be struck out is upheld.

Application by Second Respondent for order that the proceedings against it be struck out is refused.

1. These were two applications to strike out complaints of discrimination lodged by Mr Scott Packer. They were against firstly, R.L. and S.J. Vagg Pty Ltd, the proprietor of retail premises known as the Lismore Supermarket, and, secondly, the Department of Education Employment and Training of the State of Victoria.

2. The former complaint arises out of an allegation by Mr Packer that he was the subject of discrimination on the basis of lawful sexual activity and sexual orientation in the provision of goods and services by the company in its operation of the supermarket.

3. The second allegation is a complaint of discrimination on the basis of lawful sexual activity, sexual orientation and disability arising out of the applicant's employment as a generalist teacher at the Lismore Primary School from 7 August to 20 October 2000.

4. Both respondents applied for an order striking out the complaints pursuant to s75 of the Victorian Civil and Administrative Tribunal Act 1998. By consent of the parties the applications were heard together. Section 75(1) of the VCAT Act provides for the summary dismissal of proceedings. It states:-

"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. Both respondents now contend that these proceedings are vexatious, misconceived and lacking in substance. In Cabot v City of Keilor [1994] VicRp 14; 1994 1 VR 220 at 23 & 224 Gobbo J applied Attorney General v Wentworth 1988 14 NSWLR 481. He held that proceedings were vexatious if they were instituted:-

"(i) With the intention of annoying or embarrassing the party against in they are bought;

(iii) irrespective of the motive, they were obviously untenable or manifestly groundless."

6. Section 44 of the repealed Equal Opportunity Act 1999 was essentially similar to s75 of the Equal Opportunity Act 1989. That section was considered by the Court of Appeal in Rabel v State Electricity Commission 1998 1 VR at 102. The thrust of the decision is that this Tribunal should not readily accede to a submission that the proceedings are unjustified unless it is apparent to the Tribunal that the proceedings are manifestly hopeless or clearly unsustainable, in fact or in law.

7. It is the contention of the respondents here that both sets of proceedings are untenable and manifestly groundless. Both respondents filed submissions to which the applicant made a written and an oral response. At the conclusion of that oral response I indicated that I proposed to uphold the application in respect of the former complaint. I said that I would give my reasons at the time of delivery of reasons in both complaints which I now do. I also indicated that I regarded the application by the second respondent the Department of Education Employment and Training as being more marginal and that I would require time to consider the matter. I will deal with the supermarket complaint first.

8. The applicant's complaint is set out in his original application lodged with the Commission on 5 June 2001. It is a short complaint. The applicant describes himself as a "homosexual aborigine and also a sex worker". He said that in late September to early October when he was living at Lismore and working as a teacher at the Lismore Primary School he visited the supermarket on several occasions. He said that he received a "homophobic response" from Rick Vagg who is the owner "as well as from his employees and patrons of the store". He was stared at by these people. In particular he was laughed at by an employee of the supermarket when he asked an innocuous question. He said "these people laughed and smirked at me because I am gay and have a feminine voice and mannerisms". He went on to say that he believed that these individuals knew that he was formerly a sex worker and this was part of the reason that they treated him as they did.

9. With that background the applicant complains that there has been discrimination against him in the provision of goods and services as prohibited by s42 on the basis of his "lawful sexual activity" which, by s6, is one of the attributes on the basis of which discrimination is prohibited. Section 42 provides

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

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

(b) in the terms on which goods or services are provided to the other person;

(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

(2) Sub-section (1) applies whether or not the goods or services are provided for payment."

10. The applicant does not contend that supermarket proprietor refused to provide goods or services to him or that he was discriminated against in the terms on which goods or services were provided. Presumably what is suggested is that he was subjected to another "detriment" in connection with the provision of goods or services. The preliminary question is therefore whether the behaviour alleged by the applicant in the course of his complaint is capable of amounting to discrimination against him on the basis of his lawful sexual activity.

11. I turn firstly to the definition of "lawful sexual activity"; s4 defines this expression by asserting it amounts to "engaging in or not engaging in or refusing to engage in a lawful sexual activity". Thus s42 prohibits, inter alia, subjecting a person to a "detriment" because he "engages" in lawful sexual activity including homosexual activity.

12. Accordingly, for present purposes, the question whether there is any evidence that the conduct of which the applicant complains amounts to a "detriment" and, if so, whether it would be open to the Tribunal to conclude that the conduct of which the applicant complains was a consequence of his engagement in lawful sexual activity in general or homosexual activity in particular.

13. It is necessary to analyse the applicant's allegations with care. The applicant has claimed he was "stared at by these people" and that he was "laughed at by an employee of the supermarket". It is acknowledged that these allegations are contained within the general statement that he "received a very homophobic response from Rick Vagg" and that "these people laughed and smirked at me because I am gay and have a feminine voice and mannerisms".

14. The applicant's explanations for what he sees as discriminatory behaviour cannot enhance the conduct itself. In my opinion for these purposes I would need to be able to identify behaviour that amounts to subjecting the applicant to "any other detriment in connection with the provision of goods and services" and would have to be able to link that with the applicant's proclivity for engaging in homosexual activity. If the applicant is right, the manager and the employees of the supermarket laughed at and smirked at him because he is "gay and has a feminine voice and mannerisms". In the course of the hearing, he said it was also because of the clothing that he was wearing. He produced that clothing. It might be described as flamboyant.

15. In my opinion, these events do not establish that such detriment as the applicant was experiencing at the time was because of his disposition to participate in a particular type of "lawful sexual activity" as opposed to his presentation to those individuals at the time. Their reaction to his presentation may have been insensitive. Understandably, it created resentment in the mind of the applicant. However, there is no basis for saying that it was a reaction to the applicant's sexual activity as opposed to his presentation in the supermarket.

16. In my opinion, for an application reliant upon this section to succeed, there must be evidence upon which it would be open to the Tribunal to conclude that the behaviour complained of was, at least in part, a consequence of the applicant's sexual activity as opposed to his presentation in the supermarket, however that may have been interpreted by the persons working there.

17. I turn now to consider the more difficult question of alleged discrimination arising out of the applicant's employment as a teacher by the second respondent. The applicant's complaints are set out in his statement of the 4 June 2001. His general complaint is that he was forced to resign as a teacher as a result of what he believes to have been homophobic treatment and hostility regarding his former work as a sex worker.

18. In so far as he provides particulars of that treatment or hostility they seem to me to arise out of the following passages in his complaint:-

(i) "Often when I walk down the corridor of the school I was laughed at by Barbara, Judy and Gaye. Again, I believe this occurred because I am gay and have been a sex worker.

(ii) On one occasion Judy and Gaye asked if I was gay. I replied that I was. This resulted in my colleagues being bent over with laughter when I left the staff room. This type of behaviour occurred on a continual basis, mainly throughout October 2000.

(iii) Barbara used to smirk when I went into the staff room. She was assigned by Andrew to be my mentor, meaning that she was to spend one hour per week with me. Over the period 7 August 2000 to 20 October 2000 she spent a total of one and a half hours with me."

19 Clearly it is the applicant's contention that the conduct detailed in all three passages amounts to "humiliation and/or denigration" and is thus a "detriment" for the purposes of s14(d). I assume, also, that the applicant contends that the conduct referred to in para 18(iii) constitutes discrimination in the form prohibited by s14(c). That section prohibits discrimination against employees. It provides as follows:-

"An employer must not discriminate against an employee--

(a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment;

(b) by dismissing the employee or otherwise terminating his or her employment;

(c) by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retraining program;

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

20 The respondent has filed a detailed response to the applicant's allegations. That includes material suggesting that the conduct complained of did not occur and that the persons nominated were not aware at the time that the applicant had history of work as a sex worker. There is nothing in the allegations made by the applicant to suggest that any persons for whose conduct the employer is vicariously liable was aware that he had been a sex worker. Such evidence must exist before the employer can be called upon to provide a response. In so far as the complaint rests upon the suggestion that discrimination occurred because the employees of the employer were aware of the applicant's history as a sex worker it must fail.

21. The question then is whether in the material that I have quoted the applicant is able to establish that he has any prospect of succeeding in a claim that he has been discriminated against by being subjected to a detriment as defined or has been denied access to a training programme.

22. I take the view that being "laughed at" by fellow employees is capable of amounting to a detriment. In my opinion this is the substance of the allegation made by the applicant in the first and second complaints that I have quoted above. On the other hand a "smirk", even when repeated, is more difficult to classify. In some circumstances it may be equated to laughter to the extent that it amounts to a detriment. In other circumstances it may not. For present purposes my view is that it does not go far enough to satisfy the statutory standard.

23. Of course it is not sufficient for the applicant to show that he has evidence of what might amount to a detriment. He must go further to show this amounted to discrimination to against him. I have already mentioned that the employer's response is that the behaviour complained of did not occur. For the moment that is not to the point. For these purposes I am concerned only to determine whether if the complaints of the applicant are established they are capable of amounting to the unlawful behaviour of which he complains and which is prohibited by the Equal Opportunity Act 1995.

24. Accordingly, the remaining question is whether such behaviour is capable of amounting to discrimination against the applicant by reason of it being conduct which is prohibited. In this case the applicant's allegation is that the discrimination was a consequence of his lawful sexual activity ie. his sexual orientation. In my opinion there is no basis for such a connection in respect of the first passage quoted above, however there is in respect of the second. The applicant's complaint is that he was asked if he was "gay". When he replied that he was this resulted in his colleagues "being bent over with laughter" when he left the staff room.

25. It seems to me therefore that in this passage alone the applicant provides evidence of discrimination in a manner that is prohibited by the legislation. Having come to this conclusion it necessarily follows that I am not in a position to say that his complaint is untenable or manifestly groundless.

24. There is no evidence that the alleged deprivation of access to a training programme was in any way due to the applicant's "lawful sexual activity". In so far as the complaint relies upon s14(c), it must fail.

25. Accordingly the respondent's application for summary dismissal of the complaint must be refused.

Civil and Administrative Tribunal Act 1998

Equal Opportunity Act 1999

Equal Opportunity Act 1989

Opportunity Act 1995

Packer v Vagg & Dept Education [2001] VCAT 2218

At a glance

Court

Decision date

Before

Source

Judgment (50 paragraphs)

Packer v Vagg & Dept Education [2001] VCAT 2218 (22 November 2001)

Parties

Legislation Cited (4)