I am applying to reduce the fraction of my appointment in accordance with the provisions of Clause 35 of the Monash University Enterprise Agreement (Academic and general Staff) 2000.

Subject to my application being approved I acknowledge and agree that:

(i) my fraction of appointment will be reduced to the proposed fraction specified in Section 2 of this form; and

(ii) it is a requirement that I transfer to a fixed contract of employment and that I will receive a letter of offer specifying the conditions of the fixed term appointment.

1. The letter of offer dated 4 November 2005 was duly despatched. Its terms are set out below:

I am pleased to advise that your application to participate in the 'Fractional Appointment Scheme for Retirement Planning Purposes' has been approved. In accordance with Clause 35.5 of the Monash University Enterprise Agreement you will transfer to a fractional fixed-term appointment prior to retirement, in the position of Senior Lecturer.

Your salary will be [details deleted].This salary includes the administrative salary increases granted by the University with the most recent increase effective from 3 September 2005. These administrative increases will be incorporated into the University's next certified enterprise bargaining agreement.

The duties will be undertaken and the working arrangement for the weekly 21.75 hours of duty will be as directed by your supervisor.

The University will maintain employer and employee superannuation contributions through a subsidy payment, to ensure the retention of superannuation benefits appropriate to your former substantive continuing appointment.

Notwithstanding any representation to the contrary, it is understood that you agree that the University is not under any obligation express or implied to renew your contract or offer you any employment after the expiry of the contract term.

I have enclosed a copy of Clause 35 of the Monash University Enterprise Agreement (Academic and general Staff) which sets out the conditions applicable to your transfer from full-time employment to a fractional appointment.

Remaining conditions will be the same as for your present appointment.

You are requested to signify your acceptance of thus arrangement by completing and returning the duplicate copy of this letter.

1. Mr Richardson signed and dated the duplicate letter on 11 June 2006.
2. The next step in the matter (according to the complaint) seems to have occurred on 17 April 2008 when Mr Richardson sent an email to Professor Eklund, the Head of School, seeking an extension of his employment contract.
3. On 1 June 2009, various colleagues contacted the applicant requesting he teach a particular unit of study. What authority they had is not before the Tribunal
4. On 1 June 2009, Mr Richardson emailed Professor Eklund 'requesting an extension of his employment with a view to coordinating and teaching [that unit].' Further he 'requested that his contract be extended for one year on a part-time basis to enable the applicant to continue in his role as Director of the Bionics and Cognitive Science Centre and continue the work on the Rio Tinto funded project'
5. On 17 June 2009 Professor Eklund responded advising no extension would be granted. Mr Richardson sought reasons.
6. By email on 9 July 2009 Professor Eklund wrote 'I do not think it is appropriate that colleagues who have recently retired take up sessional appointments especially in a co-ordinator role'.
7. On 9 July 2009 Mr Richardson's employment came to an end. After September 2009 the applicant held an unpaid adjunct appointment at the university's Gippsland campus, an honorary position.
8. Due to the 9 July email, the applicant contends that the reference to 'recently retired' amounts to evidence that the comment was tainted by, or carried a connotation of unlawful discrimination on the basis of age.
9. The Particulars of Complaint state that Monash is an employer for the purposes of the prohibition against unlawful discrimination under the Equal Opportunity 2010 and that the period of the claim is from 9 July 2009 to 12 July 2012 and ongoing. And therein lies the first dilemma. The legislation in force at the time of these events was the Equal Opportunity Act 1995. That Act was repealed on 1 August 2011 by s 191 of the Equal Opportunity Act 2010, that being the date when the bulk of the 2010 Act came into operation. The particulars of complaint do not support a conclusion that the allegations continue into the time of the new Act save for the fact that Mr Richardson continues to be unemployed to this day, or at least up to 12 July 2012. The Tribunal does not understand the significance of that date.
10. The difficulties faced by the respondent university in understanding the case brought against it are exemplified by the following examples.
11. Paragraph 5 of the Particulars of Claim state that -

The respondent is liable for the discriminatory conduct if its employees, including Professor Eklund under sections 105 and 106 of the Act

1. That is clearly a reference to the 'authorising and assisting' sections of the 2010 Act.
2. Paragraph 10 of the Particulars of Claim re direct discrimination reads as follows:

The Respondent discriminated against the Applicant within the terms of subsection 8(1) in relation to 6(a) of the Act in that the respondent or its employees treated him unfavourably because of his age or status as a retiree than the respondent treated someone without his attributes or with a different attribute

1. This does seem to be pleaded under the old Act. (Both Acts deal with 'direct discrimination' in sections 8 and 'attributes' are to found in s 6 of both Acts. The comparative versions are as follows:

S.8 Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same of similar circumstances

S.8 Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute

1. Conversely paragraph 11 of the particulars is as follows:

The respondent breached subsections 16(a) and (c) of the Act in that the respondent directly discriminated against the Applicant in the determination of who should be offered employment and by refusing to offer employment to the Applicant because of his age or status as a retiree.

S.13 An employer must not discriminate against a person -

(a) in determining who should be offered employment;

(b) in the terms on which employment is offered to the person;

(c) by refusing or deliberately omitting to offer employment to the person;

(d) by denying the person access to a guidance program, an apprenticeship training program or other occupational training or retraining program

S.16 An employer must not discriminate against a person-

(a) in determining who should be offered employment; or

(b) in the terms on which employment is offered to that person; or

(c) by refusing or deliberately omitting to offer employment to that person; or

(d) by denying the person access to a guidance program, an apprenticeship training program or other occupational training or retraining program.

1. With minor exceptions the sections are identical but clearly the matter is pleaded under the 2010 Act.
2. Paragraph 12 of the Points of Claim states -

The Respondent breached subsections 18(a) and(c) of the Act in that the respondent directly discriminated against the Applicant by denying him a benefit of employment and subjecting him to detriment

1. The comparative versions are identical except for the section numbers. The equivalent of s 18 of the 2010 Act is found in s 14 of the 1995 Act. 'The Act' referred to in this Point of Claim is clearly the 2010 Act. Counsel for the applicant did point out that the claim should have referred to s 18(a) and (d), not (c). This was said to be a typographical error.
2. A similar problem arises in relation to the claim of indirect discrimination said to be brought as a breach of s 9(1), presumably of the 2010 Act if brought in conformity with the balance of the Particulars. The comparative sections read as follows:

S.9 Indirect discrimination occurs if a person imposes or proposes to impose, a requirement, condition or practice-

(a) that someone with an attribute does not or cannot comply with; and

(b) that higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

S.9(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

1. It is true that the transitional provisions in the 2010 Act give the applicant a basis for bringing his claim. Relevantly s 194(2) provides-

(2) A person may make an application to the Tribunal under Division 2 of Part 8 about an alleged contravention of a provision of Part 3, 5 or 6 of the old Act that occurred before the commencement day if -

(a) the person did not lodge a complaint under section 105 of the old Act about the alleged contravention before the commencement day; and

(b) the alleged contravention, if proven, would have also been a contravention of a provision of Part 4, 6 or 7 of this Act, if this Act had been in force when the alleged contravention occurred.

1. Leaving aside the differences that result from the amending legislation it is fairly clear that the applicant can bring his complaint to this Tribunal as one might well conclude that the alleged contraventions, if properly pleaded and sustained by acceptable evidence, would be a contravention of the 2010 Act. What the legislation does not do is make a breach of the old Act a breach of the new. Whilst it is true that this Tribunal is not a court of pleadings, it is also true that the respondent must be able to understand the case brought against it. Counsel for the applicant made light of the deficiency in the particulars but they require changes.
2. The respondent brings its application under section 75 and 76 of the VCAT Act.
3. The VCAT Act was amended as from 1 August 2011 by the inclusion of the following clause in the Schedule to that Act. Clause 18.1 provides:

The tribunal may make an order under section 76 summarily dismissing an application under the Equal Opportunity Act 2010 in respect of an alleged contravention of Part 4, 6 or 7 of that Act if the alleged contravention occurred more than 12 months before the application was made.

1. This application was first made on 27 October 2012; the contents of that application and other accompanying papers were the subject of orders and placed in a sealed envelope on the Tribunal file. In accordance with Tribunal directions an amended application was made on 1 January 2013.
2. Section 76 of the VCAT Act provides as follows:
   • (1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding for want of prosecution.
3. It is clear that there has been a drafting mishap in relation to the amendment in the Schedule to the Act. I think it most unlikely that this was meant to alter the meaning of what constitutes 'want of prosecution' to mean a delay in bringing an action as opposed to commencing one and failing to continue to prosecute it. The matter is of course complicated by the fact that Clause 18.1 is part of the substantive legislation and there does not seem to be any reason why the discretionary power reposed in it should be read down. In any event it requires contraventions of the 2010 Act and properly pleaded, this case concerns alleged contraventions of the 1995 Act. Furthermore, the delay is not inordinate. The application pursuant to s 76 fails.
4. The respondent also brings its application pursuant to section 75. There is no need for me to spell out the relevant case law about the serious effect of a strike-out which is to deny an applicant his or her day in court. It does however bear repeating that if an applicant indicates to a Tribunal that there is other evidence that he or she can call in support of his or her claim, the Tribunal cannot determine the matter on the basis that the applicant's material contains the whole of the case.
5. The first unequivocal submission made by the University is that there are no contested facts in issue and certainly, in relation to the matters pleaded in the Particulars (leaving aside the faults already referred to) there is no real argument about the chronological facts. The applicant entered into a pre-retirement agreement, he agreed to its terms, the University refused to extend his contract beyond 2009 and Mr Richardson is no longer in the paid employ of the University.
6. The respondent, naturally enough, points out that the 'status of retiree' is not an attribute contemplated by the legislation. The relevant attribute is 'age'. Counsel for the applicant informed the Tribunal that her client intended to call evidence from colleagues, including but not restricted to Drs Van Doorn and Symmons and Mr Higgins, such that the Tribunal might be persuaded that their evidence would provide an inescapable inference that the real reason for the Monash refusal was the applicant's age. It is on that basis, and on that basis alone that I decline to strike out the claim.
7. I propose to give the following directions:

No later than 27 September 2013 the applicant is to file and serve his amended Points of Claim. This is not an opportunity to re-frame or add to the claim but rather to correct the anomalies referred to in these reasons.

No later than 11 October 2013 the respondent University is to file and serve its Points of Defence.

No later than 25 October 2013 both parties are to file and serve statements from all witnesses on whom they intend to rely at the hearing.

No later than 8 November 2013 both parties are to file and serve any statements by way if reply if necessary.

The matter is set down for hearing on 12 November 2013 at William Cooper Justice Centre, 223 William Street Melbourne at 10.00 am (allow 2-3 days)