CATCHWORDS Anti-Discrimination - Application to strike out/dismiss complaint - whether Equal Opportunity as extraterritorial effect - nature of the circumstances on which Equal Opportunity Act operates - whether VCAT clearly inappropriate forum in which to hear matter - Victorian Civil and Administrative Tribunal Act 1998 s75; Equal Opportunity Act 1995 ss and 8 and 14; Australia Act 1986 (Commonwealth) s2

DEPUTY PRESIDENT: The decision of this matter has been reserved and I am now in a position to hand it down. My decision is that under s.75 of the Victorian Civil and Administrative Tribunal Act 1998, the complaint is dismissed.

Before I give my reasons for the decision, I should say at the conclusion of the reasons we will give you a signed copy of the order. But before I hand down my reasons I should simply recognise the representative for the complainant. It is?

DEPUTY PRESIDENT: Thank you, I now hand down my reasons. In June 1998 Mr Reid lodged with the Equal Opportunity Commission a complaint of disability discrimination in employment or in contact work under the Equal Opportunity Act 1995. In these reasons I call that Act the Equal Opportunity Act.

The Commission declined the complaint as misconceived. In the material before it the Tribunal has the Commission's reasons for declining and also the respondent's response to the Commission in relation to the complaint. The respondent company claims that it is a Swiss company and not subject to Australian law.

Mr Reid requested the Commission to refer this declined complaint to this Tribunal under s.108 of the Equal Opportunity Act. The Commission did this in September 1998 but the referred complaint was received by the Tribunal on 6 October 1998. There followed a number of attempts to serve the complaint on the respondent company. The company refused to accept service on the basis that it was not subject to this Tribunal's jurisdiction. Eventually the complaint was served on the company via the diplomatic channel.

Before the proceeding continued further, the Tribunal directed Mr Reid to make written submissions on the question of the Tribunal's jurisdiction to hear and determine this complaint. Those submissions have now been filed together with supporting documentation. They are comprehensive and have greatly assisted the Tribunal.

Before dealing with the jurisdictional question it is necessary to give a brief summary of Mr Reid's employment history with the company and the place in that history of the conduct alleged in the complaint. The Jet Aviation group of companies is part of a world wide business involving the supplying of flight crews to fly planes which are owned by clients of the group.

As I have said the business is world wide. Mr Reid is an aircraft pilot. On 7 May 1989 he commenced work as a pilot under a contract between him and Jet Aviation Business, AG, which in these reasons I call Jet Aviation Business. The contract was terminable on three months notice after the completion of a three months probation period. Mr Reid's salary was payable in Swiss francs.

Mr Reid worked as a pilot under this contract in a large number of countries including Australia. In 1992 Jet Aviation Business terminated this contract with effect from May 1992 making it clear that the reason for doing so was the plane of its client, which Mr Reid was then piloting, had been sold. In October 1992 Jet Aviation Business's chief pilot offered, and Mr Reid accepted, employment under a second contract. The offer and acceptance was made by telephone.

A written contract was sent by Jet Aviation Business to Mr Reid on 30 October 1992 and was signed by him. It commenced on 1 December 1992. Mr Reid worked as a pilot under this contract again in a number of countries. In January 1995 Mr Reid received from Jet Aviation Business a third contract for signature which in these reasons I call the third contract. The parties to this contract are expressed to be Mr Reid and Jet Aviation (Bermuda) Limited, a company incorporated in Bermuda.

In these reasons I call this company Jet Aviation Bermuda. The contract was dated 27 January 1995 and was expressed to come into effect on 1 January 1995. It was terminable by either party on written notice either by fax, telex or, registered letter. The effect of clause 2 is that if notice of termination was given after the three month probation period as was the case here, three calendar months notice of termination must be given.

That notice is deemed to be given, if given by fax, on the date of dispatch of the notice; if given by telex, when the notice has been dispatched and the appropriate answer back has been received; or when given by letter, when it is left at the address provided by the employee. That is the effect, broadly, of clause 2.

The contract incorporated expressly the document called "The employment policy of Jet Aviation Bermuda". By clause 12 any existing contract between the employee and any other Jet Aviation company in the group was terminated. Clause 11 of the contract provides -

"This contract shall be governed by Bermuda law and the employee hereby submits to the jurisdiction of Bermuda for all matters in connection with this contract. Jet Aviation Bermuda shall have the right to bring legal proceedings against the employee if applicable in any other court or jurisdiction".

Mr Reid signed this contract on 27 January 1995, returned the signed contract to Switzerland where, on 31 March 1995, it was signed on behalf of Jet Aviation Bermuda. The employment policy incorporated in the contract stated by article 2 that if neither the individual contract of employment nor the employment policy contained other provisions then the laws and regulations of Bermuda shall apply to the contract of employment.

Mr Reid worked under this contract as a pilot, again in various countries. In October 1996 Jet Aviation Business's chief pilot advised Mr Reid by telephone that his contract was terminated. The termination was confirmed by a letter from Jet Aviation Bermuda dated 24 October 1996. The letter states that the termination takes effect from 1 January 1997.

Later in January 1997 Jet Aviation Business's chief pilot offered, and Mr Reid accepted, employment again with the Jet Aviation Group. A offer and acceptance, again, was by telephone. The document called "Supplement to employment agreement" was signed by the general manager and chief pilot of Jet Aviation Business, was dated 21 January 1997 and was faxed to Mr Reid.

It is implicit in the material before me that Mr Reid then signed this contract. On its proper construction and for the purpose of this proceeding, I am satisfied that the agreement to which this fourth contract was supplemental was the Jet Aviation Bermuda contract of which notice of termination had previously been given but which had not terminated at the date on which the fourth contract was faxed to Mr Reid.

The supplemental contract, the fourth contract, states that it is signed by the chief pilot and general manager on behalf of Jet Aviation Business. It contains terms concerning the employee's home base, accommodation, salary and observance of local regulations but no other terms. Nothing about termination, nothing about notices, nothing about sick leave and entitlements or the laws governing the contract. All of these matters were included in the third contract.

I am satisfied that this fourth contract incorporates, but in a varied form and subject to its express conditions, the conditions contained in the third contract. It does not seem to have been a contract with Jet Aviation Management AG, which is the company named as respondent to this complaint. It appears to me, as I have said, that the chief pilot and general manager of Jet Aviation Business signed this fourth contract on behalf of that company.

The alternative possibility is that the chief pilot and general manager signed as agent for Jet Aviation Bermuda but in my view the stronger possibility is that the signature was on behalf of Jet Aviation Business. It is also a possibility that the agreement was supplemental to the earlier second contract which had been made with Jet Aviation Business and had commenced in December 1992 and terminated in March 1995. I consider this a less probable construction of the fourth contract because some years had passed since the second contract was entered into and had terminated.

If that very much earlier contract was intended to be referred to I would have expected the reference to have been much clearer.

On the view I have taken, the name of the respondent will need to be amended to Jet Aviation Business. Bearing in mind that this Tribunal should consider cases according to their substantial merits, I have assumed for the purpose of this proceeding that the correct respondent is Jet Aviation Business as that company was Mr Reid's employer at the time of the alleged discrimination.

I return to the summary of the background to this complaint. All contracts and particularly the fourth contract with the Jet Aviation Group of companies was signed by Mr Reid in Melbourne. It appears that the companies which were parties to these contracts, and in particular the fourth, executed the contracts in Switzerland.

Where the written contract was preceded by a telephone conversation between Mr Reid and the chief pilot of Jet Aviation Business, the telephone conversation was between that pilot in Switzerland and Mr Reid in Melbourne. At all times material to this case, Mr Reid was an Australian citizen, ordinarily resident in Victoria. There is no evidence that Jet Aviation Business or for that matter Jet Aviation Bermuda is incorporated in or carries on business in or has a presence in Victoria.

In 1997 Mr Reid developed a condition of the jaw called temporalmandibular joint disorder. On 8 September 1997 Mr Reid advised Jet Aviation Business that because of his medical condition he was unable to fly aircraft. This advice was based on the opinions of various specialist medical practitioners by whom he was being treated at the time. Mr Reid sent a medical certificate to Jet Aviation Business on that date and continued to send medical certificates on a regular basis to that company.

In November 1997 Jet Aviation Business faxed Mr Reid in Melbourne requiring him to return to work. Mr Reid continued to be unable to fly aircraft and continued to send medical certificates to Jet Aviation Business to that effect. On 21 January 1998 Mr Reid received in Melbourne a fax from Jet Aviation Business terminating his employment with effect from 31 January 1998.

His medical treatment and his inability to fly aircraft because of his medical condition continued. Because of this, Mr Reid has been unable to renew his licence with the American FAA which had qualified him to pilot aircraft. The fax terminating Mr Reid's employment makes it clear that the reason for the termination is because of Mr Reid's inability to work as a pilot for the past months and what the company regarded as his continuing inability to work as a pilot.

I deal with the jurisdictional issues raised on this occasion taking Mr Reid's case at its highest, that is, assuming that Jet Aviation Business's conduct is as alleged in the complaint and on the basis that that company is the correct respondent. The jurisdictional issues can be approached by asking the following questions. (1) Does the Victorian Parliament have power to legislate extra-territorially? (2) If it does, did the Parliament intend, in the Equal Opportunity Act, that that Act should have effect extra-territorially? (3) Is this claim covered by the Equal Opportunity Act? (4) Is this Tribunal an appropriate forum in which to have the claim determined?

Before answering these questions I make two general comments. The first is that this claim clearly involves elements, some of which are within and some of which are outside Victoria. The question is how does the Equal Opportunity Act apply to such a claim?

Under s.43 of the Victorian Civil and Administrative Tribunal Act 1998, which I call the VCAT Act, the Tribunal has jurisdiction in respect of a matter referred to it under an enabling enactment. The Equal Opportunity Act is an enabling enactment.

The Equal Opportunity Act requires the Equal Opportunity Commission at a complainant's request, made in accordance with the provisions of that Act, to refer the complaint to VCAT. By s.134 it gives VCAT jurisdiction to hear and determine complaints referred. This complaint has been referred to VCAT in accordance with the provisions of that Act.

Section 75 of the VCAT Act permits the Tribunal to strike out or dismiss a complaint which, among other things, is misconceived. To be struck out or dismissed at a preliminary stage such as the stage which this complaint has reached, the Tribunal must be satisfied that the complaint is manifestly hopeless or doomed to fail. One of the ways in which VCAT might reach this conclusion is if it is satisfied that the Equal Opportunity Act is incapable of applying to the complaint.

This is why it is relevant to ask the question, how does the Equal Opportunity Act apply to a claim containing elements within and outside Victoria such as this? If the Equal Opportunity Act does not apply to this claim this Tribunal will have no jurisdiction to hear and determine it. The Tribunal is not a superior court, it is a statutory creature with limited and specified jurisdictions. Its jurisdiction under the Equal Opportunity Act is to hear and determine complaints made under that Act and alleging contravention of that Act, (see ss.104 and 105).

If this complaint is beyond the scope of that Act then the complaint will be misconceived in the sense that the Equal Opportunity Act is incapable of covering it.

This brings me to the first question I formulated. Does the Victorian Parliament have power to legislate extra-territorially? The answer is yes. Section 2(1) of the Australia Act 1986 of the Commonwealth provides -

"It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of the State that have extra-territorial operation".

This section confers on the Victorian Parliament a power as ample as that of the United Kingdom Parliament but with the limitation that there must be some connection, albeit general or remote, with Victoria. (See Union Steamship Company of Australia v. King [1988] HCA 55; [1988],166 C.L.R. 1 at 13 and 14, Lipohar v. R. [2000], 74 A.L.J.R.282, particularly at 297 in the judgment of Justices Gawdron, Gummow and Hayne).

However, this legislation relates to the competence of State Parliaments or their power to make laws which have extra-territorial effect. It does not reverse or abolish the presumption that a statute is not intended to operate extra-territorially unless it makes that intention clear either expressly or by necessary implication. (See Both v. Lithall [1989], 85 A.L.R.621, particularly at 636, Jumbunna Coalmines NL v. Victorian Coalminers Association [1908], 6 C.L.R. at 309, Green v. Burgess [1960] V.R..158).

The presumption is supported by s.48(b) of the Interpretation of Legislation Act 1984 (Vic) which is to the effect that unless an Act contains a contrary intention a reference to a locality jurisdiction or other matter or thing is to be construed as a reference to a locality, jurisdiction, matter or thing in and of Victoria.

The section of the Interpretation of Legislation Act then obviates the need for a Victorian statute to state that it applies only in and to Victoria. (See Ristevska v. Australia Olympic Committee, 12 August 1996, a decision of the Anti Discrimination Tribunal).

I come to the second question. Did Parliament intend the Equal Opportunity Act to operate extra-territorially? There is nothing in the express words of that Act or in the Parliamentary debates on the bill which eventually became that Act that indicates that it did.

Parliament has, in a number of other Victorian statutes, made express provision for extra-territorial operation, for example s.6 of the Fair Trading Act 1999. There is no such provision here.

As I am permitted to do by s.35 of the Interpretation of Legislation Act 1984, I have also referred to the objectives of the Equal Opportunity Act. So far as they are relevant to this claim those objectives include to eliminate discrimination as far as possible by prohibiting discrimination on the basis of various attributes and to provide redress to the victims of discrimination. (See ss.3, paragraphs (b) and (d)).

While these objectives show that Parliament intended that the Act should have a broad application, they do not require the necessary implication that the Act was intended to apply extra-territorially. In coming to this view I follow a line of reasoning, different from that of the ADT in Ristevska's case which counsel for Mr Reid submitted that I should follow but similar to the reasoning of the Human Rights and Equal Opportunity Commission in relation to the Commonwealth Sex Discrimination Act and Race Discrimination Act in Brannigan v. The Commonwealth [2000] EOC 93-082.

But this means only that the circumstances on which the Equal Opportunity Act operates must be within Victoria. It does not, in my view, mean that every element of a claim must be within Victoria. The test is then on what circumstances does the legislation operate? In respect of a particular claim are those circumstances within Victoria?

As J Winneke P, pointed out in Spencer v. Dowling [1996] VSC 51; [1997] 2 V.R. 127, Victorian Equal Opportunity Legislation prohibits discrimination within various relationships. Examples of these relationships are that of employer/employee, educational authority and student, service provide and recipient. (See for example ss.14, 37 and 42).

Within these relationships the Equal Opportunity Act prohibits discrimination constituted by certain kinds of specified conduct. Examples of this conduct are denial of access to a benefit or to promotion in respect of an employee, dismissal of an employee by an employer, expulsion of a student in an educational institution or refusal of a service to a potential recipient or subjecting that recipient to a detriment in connection with service provision. (See ss.14(a) and (b), 37(2)(e) and 42(1)(a) and (c)).

Discrimination includes direct and indirect discrimination. Properly characterised this claim relates only to direct discrimination I therefore only deal with direct discrimination. By s.8 of the Equal Opportunity Act direct discrimination occurs if for the substantial reason of a person's attribute, for example impairment, age, sex and so on, one person treats another less favourably than in the same or similar circumstances the person treats or would treat someone without that attribute or with a different attribute.

Certainly this concept involves two people - the person to whom the treatment is directed and who has the attribute and the person who engages in the treatment. But in my view, although the existence of the person with an attribute and who is a victim of the treatment is a necessary precondition to bring treatment within the prohibitions of the Act or at least within the concept of direct discrimination, it is the treating, for example the dismissal, subjecting to a detriment, the refusal of a service which is the circumstance on which the legislation operates.

Here I have adopted a somewhat different approach than the approach in Ristevska's case which again, Mr Reid's counsel submitted I should follow. However I note the various elements of the treatment of

Ms Ristevska by the Australian Olympic Committee and the relevant relationship in that case would, on the principles I now have mentioned, have brought Ms Ristevska's case within the coverage of the Equal Opportunity Act.

The circumstances on which the Equal Opportunity Act operates are then the relationship specified in the particular provision of the Act and the conduct or treatment which is prohibited. In my view if the relevant relationship is formed in Victoria or if the prohibited contact occurs in Victoria the Equal Opportunity Act will apply and it is then irrelevant to the application of that Act whether the complainant or respondents lives in or outside Victoria, whether the respondent, if a company, was incorporated in or carries on business within Victoria or whether the complainant suffers loss or damage in or outside Victoria.

I come then to the third question. Is this claim covered by the Equal Opportunity Act? In my view it is not. In this claim the relationship between Mr Reid and Jet Aviation Business was that of employer and employee. The offer of employment occurred, in my view, when Jet Aviation Business sent the signed fourth contract to Mr Reid. The terms of the phone conversation were not, in my view, definite enough to constitute a clear offer of employment on definite terms and conditions. At the most there was indication of an intention to make an offer or to form an agreement, the terms of which would be later reduced to writing and then agreed.

The offer was accepted when Jet Aviation Business received, in Switzerland, the signed document faxed to it by Mr Reid. As this was a supplement to the third contract and incorporated the conditions of the third contract and did not make provision about the governing law of the contract, clause 11 of the third contract was part of that fourth contract and applied. The governing law of the fourth contract was Bermuda law.

The Equal Opportunity Act contains no provision permitting parties to contract out of its operation. Parties cannot, by contract, apply the Equal Opportunity Act to a situation which it does not, by its terms, cover. Nor can they, by contract, exclude the application of the Equal Opportunity Act where it clearly applies. Ristevska's case expresses a similar conclusion.

However, the location of the offer and acceptance and the terms of the contract concerning the governing law are relevant in determining where the employer/employee relationship was formed. On the material I conclude that it was not formed in Victoria.

Did then the company's dismissal of Mr Reid occur in Victoria? In my view it did not and I do not accept the contrary submissions made on behalf of Mr Reid.

On the material it appears to me that the decision to dismiss Mr Reid was taken in Switzerland although it was communicated to him at his Melbourne address. Under the contract the notice of dismissal was deemed to have been given when it was dispatched because it was sent by fax. On this basis, the claim does not fall within the circumstances on which the relevant provisions of the Equal Opportunity Act operate and the claim is therefore outside the scope of the coverage of that Act.

It is therefore misconceived. It is not curable by amendment and in my view should be dismissed under s.75 of the VCAT Act.

I briefly answer the fourth question concerning whether the Tribunal is a clearly inappropriate forum although it is strictly not necessary for me to do so because of the answers I have given to question 3. Even if I had concluded that the Equal Opportunity Act applied, it may well be that this Tribunal is a clearly inappropriate forum to determine this matter.

Even though any final orders that the Tribunal might make on this claim may ultimately be enforceable through Swiss courts or by registration of the orders as orders of the Victorian Supreme Court this is not, by any means, clear. There are, in any event, major difficulties in pursuing this litigation through this Tribunal. It appears from the material before me that there is no convention in force providing for the service of process of this kind in Switzerland. It also appears that the respondent, Jet Aviation Business, does not carry on business in and is not incorporated in and has no presence in Victoria.

However, as I have said, given my decision it is unnecessary to discuss this matter further.

Before concluding I make brief reference to the case of Nolan v. Yokosuka reported in [1994] EOC 92-571. In that case the New South Wales Equal Opportunity Tribunal found, as a preliminary matter, that the Tribunal was not a clearly inappropriate forum to hear a claim of discriminatory dismissal brought by a New South Wales resident against a Japanese company.

The case is distinguishable from this because, there, the Tribunal was satisfied that the employment relationship was formed in New South Wales although the dismissal occurred in Japan. There seems to have been no difficulty in serving the Japanese company with process and the Japanese company had representatives in New South Wales.