Ruddell v DHS [2001] VCAT 1510

Victorian Civil and Administrative Tribunal|2001-06-20

Anti -Discrimination - whether claims should be struck out/dismissed - test to be applied - relationship of Workplace Relations Act 1996 (Cth) and Equal Opportunity Act 1995 - meaning of physical features - whether loud voice can be a characteristic of gender - Equal Opportunity Act Act 1995 ss.4 and 7; Victorian Civil and Administrative Tribunal Act 1998 s.75; Workplace Relations Act 1996 (Cth) ss.170HA and 170HB.

FIRST RESPONDENT: State of Victoria (Department of Human Services)

Medium Neutral Citation [2001] VCAT 1510

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

1. That the complaint is dismissed except for the following claims-

(a) the claims described as claims (1)(a),(c),(d) and (e) in the Reasons for Decision, to the extent that they are claims of discrimination on the basis of sex or parental or marital status;

(b) the claim described as claim (1)(f), in the Reasons for Decision, to the extent that it claims that the Complainant was criticised in relation to gender issues and only to the extent that it is a claim of discrimination on the basis of sex.

2. That on or before 4 July 2001, the Complainant must file with the Tribunal and serve on the Respondents amended Particulars of Complaint.

3. If the Tribunal considers that the amended particulars are inadequate in whole or in part, it will list the matter for a Directions Hearing at which the parties may make submissions as to whether or not the surviving claims, or any of them, should be struck or dismissed.

1. I reserve my decision on this matter. I am now in a position to hand it down. The orders are of some complexity but their effect basically is that a substantial part of the complaint is dismissed. In respect of those parts of the complaints that survive, I have made orders for amended particulars of complaint and I have provided in the order that if the Tribunal considers that the amended particulars are in whole or in part inadequate, the Tribunal will convene a directions hearing at which the parties will make submissions as to whether or not any of the surviving claims or all of them should be dismissed.

2. As far as the question of costs is concerned, I will deal with that at the end of the decision and if the decision is that costs ought to be reserved and submissions made as to who should bear the costs then I will make further directions. As far as particulars of defence are concerned I have made no direction in relation to that because that really will be dictated by whether the Tribunal considers the directions hearing is called for concerning the amended particulars of complaint. I have no set a further timetable for the proceeding including not re-listing the adjourned mediation, because of the directions I have made in relation to amended particulars.

3. I now give my reasons for decision for these orders. I should add perhaps before I do that my associate can now give you a copy of the orders I have made. These are my reasons for the decision.

4. This complaint was lodged on the 6 September 2000 with the Equal Opportunity Commission which in these reasons I call the Commission. The Commission declined to entertain it under s.108(a) of the Equal Opportunity Act 1995, which in these reasons I call the Equal Opportunity Act. Under that provision the Commission may decline complaints which considers are frivolous, vexatious, misconceived or lacking in substance. At Mr Ruddell's request, the Commission then referred the complaint to VCAT in December 2000. Particulars of complaint in defence have now been filed and served. The respondents who are the State in its capacity of Department of Human Services, which I call the Department and Miss Lord now apply under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 which I call the VCAT Act, to have the complaint struck out or dismissed on all the grounds mentioned in that section. Those grounds are that the complaint is frivolous, vexatious, misconceived, lacking in substance or is an abusive process.

5. The relevant principles to apply when considering applications of this kind, were discussed by VCAT in Norman v Australian Red Cross Society, a decision dated 27 November 1998. The Tribunal there applied principles set out by the Victorian Court of Appeal in relation to a similar but now repealed section of the Equal Opportunity Act 1984 in Rabel v State Electricity Commission [1998] 1VR at 102. Relevantly those principles are that the Tribunal should be cautious before summarily terminated a proceeding under s.75 of the VCAT Act and so depriving the litigant of the chance to have the case heard in the ordinary course. It should only do so where the respondent satisfies it that the case is manifestly hopeless or untenable in fact or law, or on no reasonable ground could justify relief. The Tribunal should be careful in this context to distinguish between the complaint and the evidence which supports it.

6. This complaint claims discrimination against the respondents on the grounds of sex, race, physical features and marital or parental status. These are all attributes listed in s.6 of the Equal Opportunity Act. The specific attributes on which the complainant relies are these. Under the attribute of race, the complaint claims that he is an Anglo Australian. Under the attribute of physical features, Mr Ruddell makes claims in relation to his loud voice, solid build and tall stature. Under the attribute of marital status, his claims relate to the fact that he is single. Under the attribute of parental status, his claims relate to the fact that he has no children. Under the attribute of sex, his claims relate to the fact that he is male and has a loud voice which he says is a characteristic of being male, since males have generally louder voices that females.

7. The respondents argued that Mr Ruddell's claims only relate to termination of employment. I do not agree. On a proper reading of the complaint and taking into account the clarification of that complaint provided by particulars of complaint and the submissions made on this application, Mr Ruddell's claims are these. He claims that the respondents directly discriminated against him on the basis of the attributes that I have mentioned by engaging in the following conduct.

(1) During his employment in the Department in its Loddon Valley Region, between December 96 and 28 April 2000 which is the date of the termination of his employment,

(a) in team management meetings the contribution of male child protection workers was down played and they were subject to derogatory comments from female staff and management.

(b) Management told Mr Ruddell on more than one occasion that his playing of football was an inappropriate past time for a child protection worker.

(c) Mr Ruddell was subject to greater supervisory intervention that other departmental staff. This took the form of memoranda and meetings where Mr Ruddell's behaviour was criticised. His explanations for this behaviour were not adequately taken into account.

(d) In 1998 Mr Ruddell was denied a salary increase under the department's performance recognition and development program or PDRP.

(e) Mr Ruddell was expected to do more after hours work than other employees.

(f) Mr Ruddell was criticised by departmental management for the volume or carrying capacity of his voice. His height was also mentioned and he was criticised in relation to gender issues.

8. This part of the claims seems to refer to statements in notes made by departmental management of meetings with Mr Ruddell in June 1999, concerning the refusal to grant him a salary increase under the PDRP in 1998. The carrying capacity of his voice and his behaviour which is said to indicate power and gender were also mentioned. There is also memoranda mentioning these issues dated 8 September 1999.

(g) Mr Ruddell was subject to disciplinary action in relation to what the department alleged was a dangerous driving issue occurring on 2 November 1999.

(2) That the termination of Mr Ruddell's employment on 28 April 2000 was a discriminatory and was in contravention of the Act.

9. The respondents deny discrimination and have put before the Tribunal memoranda and notes of meetings which refer to aspects of Mr Ruddell's performance at work. The respondents say that this performance was unsatisfactory to such an extent that it led to Mr Ruddell being counselled, disciplined, warned that he was at risk of termination of employment and eventually dismissed. In brief, the aspects of performance which were relied on are, inappropriate relationship with a client, an aggressive or dismissive attitude to clients, swearing at colleagues, describing a client's mother as a nut in an open office area, being verbally aggressive to other staff, particularly young female staff, advising a client to tell a team leader to "fuck off", entering, making certain entries in relation to leave which it is alleged were made without departmental approval and various other deficiencies in risk assessment and administrative procedures.

10. Mr Ruddell says in relation to the respondents' work performance allegations, that while other staff performance deficiencies which were the same or greater than his, did not receive the treatment he did. He was the only one who was singled out for treatment of that kind.

11. The respondents make some general submissions on the complaint as a whole and then makes submissions as to a number of the attribute based claims. I deal first with the general submissions and then with the submissions on specific claims.

12. The respondents have, correctly in my view, and despite the fact that they deny the claims, made their submissions on the complaint's case, taken at its highest - that is, assuming that he will be able to prove the facts he alleges.

13. I first then deal with one general matter. The respondents argue that in determining this application, I could only look at the complaint and not at any of the other material put forward by the complainant. In making this submission, they relied on Nestle v Equal Opportunity Board, [1990] VR at 805 and CPS Management and Others v Equal Opportunity Board and Others, [1991], 2VR at107. Certainly these Supreme Court decisions make it clear, that if the Tribunal is considering whether a complaint falls under the Equal Opportunity Act at all or is capable of so falling, only the complaint itself is relevant. This would be the case where for example, a complaint names a ground of discrimination which is not an attribute listed under s.6 of the Equal Opportunity Act.

14. But a complaint need do no more than claim a contravention of the Equal Opportunity Act and give details of that claim to contravention. (See s.104 and s.105). This complaint has done that. There is nothing to indicate that the complaint has not been properly referred by the Commission to VCAT. That being so, the Tribunal has jurisdiction to deal with it. Part of VCAT's jurisdiction is its jurisdiction to deal with applications made by respondents under s.75 of the VCAT Act. Section 75 in my view permits the Tribunal to look at all the material before it, including, in this case, particulars of complaint and submissions made on this application to determine whether the Complainant's case is manifestly hopeless or untenable. (As to jurisdictional matters compare Schwerin v City of Sale [1997] 2VR at 219 and Rabel's case cited earlier).

15. I now deal with the respondents' general submissions.

16. The respondents first submit that the complainant is prevented by s.170HB of the Workplace Relations Act 1996,( which I call the Workplace Relations Act) from lodging this complaint. They say that the complaint relates solely to termination of employment. I have already said that in my view the complaint makes claims both during employment and in relation to termination of employment. The respondents then say that, even if this is so s.170HB will still prevent the making of the complaint because the complaint includes a claim relating to termination of employment. In other words it will still cover the complaint even if it includes other claims.

17. They say that because s.170HB applies to this case there is an inconsistency between that provision and the operation of the Equal Opportunity Act in relation to this case and to that extent the Equal Opportunity Act is inoperative because of the operation of s.109 of the Commonwealth Constitution. Relevantly that section renders invalid in the sense of inoperative, a state law which is inconsistent with the provision of a Commonwealth Law such as this. The inconsistency here is a direct inconsistency. This is a direct collision between the two pieces of legislation as they apply to this claim. Section 170H(b) disentitles the complainant from bringing a proceeding which the Equal Opportunity Act would otherwise entitle him to bring. In that sense there is a direct inconsistency.

18. VCAT has considered a similar question in relation to s.170HC of the Workplace Relations Act, in Porter v Multigroup Distribution Services Pty Ltd, a decision dated 11 December 2000. In that case the Tribunal said that informing an opinion as to the limits of jurisdiction, the Tribunal could consider the question of inconsistency under s.109 of the Commonwealth Constitution and could where it was clearly of the view that an inconsistency clearly existed which would render a claim hopeless, strike out or dismiss the claim under s.175 of the VCAT Act. I follow the same approach here. I agree however with the respondents that the rest of the reasoning in that case should not be applied to this case.

19. Although s.170HB and s.170HC are similar, there are crucial differences in their wording which make it in appropriate simply to follow the reasoning in Porter. Does then s.170HB apply to this proceeding? Before determining this I must briefly set out the history of the proceeding between the State and Mr Ruddell before AIRC. The State terminated Mr Ruddell's employment on 28 April 2000. On 16 May 2000, Mr Ruddell applied to the Australian Industrial Relations Commission (which I call AIRC) under s.170CE of the Workplace Relations Act for relief in respect of the termination of his employment. It is not clear from the application form which is before me, what were the grounds on which relief was sought. Among other things s.170CE permits an employee whose employment has been terminated by the employer to apply for relief in respect of the termination on the ground that the termination was harsh, unjust or unreasonable, or among other things, that it contravenes s.170CK of that Act. Section 170CK prohibits termination of employment for various reasons.

20. The reasons for termination are similar although not identical to many of the attributes listed in the Equal Opportunity Act. Under s.170CF the Commission must then attempt to settle the matter by conciliation and if for any of the grounds in the application, it considers that conciliation is or isn't likely to be unsuccessful, it must give a certificate to that effect. The Commission may also in its certificate recommend that the applicant not pursue any of the grounds it so identifies. Under s.170CFA the applicant must then elect what to do next.

21. So far as is relevant to this case, the effect of that section is briefly this. As far as any ground of harsh, unjust or unreasonable termination is concerned, if that ground is identified in the Commission certificate, the applicant may elect either to have the matter arbitrated by the Commission or not to pursue it. So far as breech of s.170CK is concerned, if that ground is identified in the Commission's certificate, the applicant may elect either to pursue only the harsh, unjust or unreasonable termination claim at arbitration before the Commission, or only to begin proceedings before the Federal Court claiming breech of s.170CK or to pursue neither claim. (See in particular ss.170CFA (1) and (3).

22. The Commission certificate is not before me but it is clear from the transcript of the Arbitration hearing held before Commissioner Blair from 30 October to 1 November 2000, which is before me, that the hearing proceeded on the basis of the harsh, unjust or unreasonable termination claim. If there were any other claim the applicant must have elected not to pursue it and certainly it would appear that the Commission identified this grant in its certificate and the relevant election was made.

23. The Commission's power to arbitrate a claim of this kind is contained in s.170CG. The provision requires the Commission to have regard, among other things in making its determination, to whether there is a valid reason for termination related to the capacity or conduct of the employee; whether the employee was notified of that reason; whether the employee was given an opportunity to respond, and if the termination related to unsatisfactory performance, whether the employee was warned beforehand about that unsatisfactory performance and any other matters the Commission considers relevant. (See in particular s.170CG(3)).

24. Under s.170CH the Commission, if it is satisfied that the determination was harsh, unjust or unreasonable, may order various remedies including reinstatement, and if reinstatement is inappropriate, compensation. Sub-sections (2) and (7) set out the matters to which the Commission must have regard in determining what kind of orders to make. Those matters include a number of specific matters such as the effect of the order on the viability of the employer's undertaking and also any other matters the Commission considers relevant.

25. Section 170CI provides that subject to any right of appeal to the Full Bench, orders made on arbitration by the Commission are final and binding between the parties.

26. As I said, the transcript of the Arbitration hearing is before me. The respondents argued that at that hearing the Commission considered all the matters which were the subject of claims made under the Equal Opportunity Act. It is argued for Mr Ruddell that the Commission only considered termination of employment itself and the dangerous driving incident of 2 November 1999, which I call the driving incident, and that is all - no other matters during employment.

27. After looking carefully at the transcript, I agree with the complainant's submission. At the Arbitration hearing, Mr Ruddell was only cross-examined extensively on the driving incident. Other performance issues were indeed raised but in general terms, and there was no detailed cross-examination on the specifics of that performance and no evidence led by the respondents in any extensive way in relation to that.

28. In his decision, Commissioner Blair indicated that taking into account Mr Ruddell's employment history, the employer's decision to terminate his employment after the driving incident was not harsh, unjust or unreasonable. There is an indication in the decision that if it had not been for that history the driving incident would have warranted a warning rather than termination.

29. In my view it is not possible to infer from this decision which parts of the employment history the Commissioner had in mind or what weight he gave to different aspects of that history. The question of discrimination, detailed employment history or breaches of s.170CK of the Workplace Relations Act, were not raised by the parties at the Arbitration hearing.

30. In this context then I must answer the question does s.170 apply? Section 170HA provides-

"subject only to the operation of ss.170HB and 170HC, the provisions of this division are not intended to limit any rights which a person or trade union may have to appeal against termination of employment or to secure the making of awards or orders relating to termination of employment".

"(1) An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the "prior proceedings" ) for a remedy in respect of that termination have been commenced by or on behalf of that employee:

(d) harsh, unjust or unreasonable (however described); or

for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.

(2) Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceeding s:

(a) have been discontinued by the party who began the proceedings; or

(4) If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application:

32. It is clear from s.170HB itself, and this is reinforced by the explanatory memorandum for the bill which eventually became the Workplace Relations Act and by cases - (for example, Hiskey v Minister for Employment Workplace Relations and Small Business, a decision of the Federal Court handed down in December 1999), that s.170HB is designed to permit only one set of proceedings in the circumstances where it applies. However, s.170HA indicates that where s.170HB does not apply, the Workplace Relations Act is not intended to limit the right to bring proceedings with respect to termination of employment under State law. The exceptions in which s.170HB does not apply, are not relevant here. There has not been a discontinuance of the application or proceeding and neither has failed for want of jurisdiction.

33. The application of s.170HB(4) can be set out as a series of questions:

(1) Is there an application of the kind referred to in s.170HB(1)? To determine whether there is such an application, we must ask:

(b) does that application relate to the termination of the employee's employment on the grounds that it is harsh, unjust or unreasonable, or on grounds that include that ground?

(2) Are there proceedings under the State law for a remedy that, if applied for before the application would, because of s.170HB(1), have prevented the application being made? This question resolves itself into the following subsidiary questions:

(a) are the proceedings under the State law, proceedings for a remedy in respect of the termination?

(b) do those proceedings allege that the termination was harsh, unjust or unreasonable, or unlawful for a reason other than a failure by the employer to provide a benefit to which the employer was entitled on termination?

34. In my view, the answer to all these questions is "Yes". Mr Ruddell's application to the commission is an application of a kind referred to in s.170HB(1). The proceedings under the Equal Opportunity Act are proceedings for a remedy that if applied for before the application to the AIRC, would have prevented that application being made.

35. Although the complaint need only claim contravention of the Equal Opportunity Act and need not indicate the remedy sought, the purpose of complaint lodgment as the objectors of the Equal Opportunity Act indicate, is to obtain redress for contravention of the Act. Those proceedings then are for a remedy in respect of termination. They are for a remedy in respect of termination because they claim termination of employment in contravention of the Equal Opportunity Act, and that is an essential ingredient of the claim. This is so even though there is another essential ingredient of the claim - that is, either direct or indirect discrimination on the basis of an attribute listed in the Equal Opportunity Act.

36. The complaint alleges termination in contravention of that Act and this means that it is alleging that the termination was unlawful for a reason other than failure to provide entitlement on termination. The complaint was lodged by Mr Ruddell. To the extent then that s.170HB applies, and it is inconsistent with the Equal Opportunity Act, s.109 of the Commonwealth Constitution makes it prevail, and Mr Ruddell is not entitled to lodge that part of his claim under the Equal Opportunity Act. The Tribunal therefore has no jurisdiction to entertain that claim, and to that extent the claim is misconceived.

37. The respondents argued that irrespective of whether the termination claim is the only claim in the complaint, the whole complaint cannot be lodged under the Equal Opportunity Act because S.170Hb prevents this. I do not agree with this submission. Although s.170HB speaks of an application made on the ground - or on grounds that include the ground of termination of employment being harsh, unjust or unreasonable, it does not use the same broad language when referring to the proceedings under the State law. When it refers to those proceedings it speaks only of proceedings under State law for a remedy in respect of termination, which make certain specified allegations about that termination.

38. It is not intended, in my view, to touch claims not related to termination of employment. My view is supported by the fact that the section does not cover proceedings where the earlier AIRC application has failed for want of jurisdiction. Similarly, it does not cover AIRC applications where an earlier proceeding under State law has failed for want of jurisdiction.

39. It is not suggested that the AIRC would have had jurisdiction to entertain Mr Ruddell's claims to the extent that they related to periods during his employment rather than his termination. It was not, in my view, the intent of this section to preclude proceedings under State law where there would have been no jurisdiction to bring similar claims under the Workplace Relations Act. A similar conclusion was reached by VCAT in the case of Mondeo v Toyota Motor Corporation, a decision of VCAT handed down in March 1999.

40. The respondents argued that all other issues in the complaint had been determined by the Commission on the application under s.170CE and that this Tribunal was estopped from litigating those issues. I do not agree with this submission. In broad terms, the requirements for estoppel are these:

(1) The issue must have finally been determined by a body, whether a court or Tribunal, with power to make judicial decisions.

(2) The determination of the issue must have been a necessary or indispensable part of that decision.

(3) The same issue must again arise in subsequent proceedings between the same parties or their privies.

(4) Estoppel will also apply to stop the litigation of an issue in later proceedings between the same parties or their privies, if the issue was relevant and a necessary part of the issues raised in earlier proceedings between the same parties, and could have been raised then but was not raised, and where it was unreasonable not to have raised it at that time. (As to this, see generally Blair v Curren, [1939] 62 CLR. at 464).

41. I reject the respondents' submission for the following reasons. First, the respondents have not satisfied me that the doctrine of issue estoppel necessarily applies to arbitrations by the Industrial Relations Commission under the Workplace Relations Act. The matter has not been fully argued before me. I have not had full submissions on the nature of the Commission's functions under that Act and no authorities have been cited to me on this point.

42. In other contexts, it has been held that there is to be made a distinction between judicial and arbitral functions, particularly where the arbitral functions are exercised in connection with the award-making process. (Compare Cram Ex Parte v Newcastle Wallsend Coal Company Pty Ltd & Others [1987] 163 CLR at 140, and Mercedes Benz Australia Pty Ltd v Edwards, a decision of the Equal Opportunity Board of Victoria dated 14 June 1994).

43. There is also a question of the kind of discretion which the Commission is here exercising. The Commission is here taking into account very broad matters in its decision-making and again takes into account very broad matters when it makes orders. The concept of harsh, unjust or unreasonable termination of employment is also very broad. It may be that the Commission is not, when making these determinations, deciding pre-existing rights according to pre-existing criteria.

44. I am not satisfied that the Commission clearly is making a judicial determination here.

45. Second, even if the Commission is making a judicial determination, I do not consider that the Commission has made findings on the during employment issues raised by the complaint except in relation to the driving incident. Nor is there any basis on which those findings can be implied. I have commented about this in the earlier part of my decision and said what, in my view, the Commission did decide at the Arbitration hearing.

46. Third, while the State and Mr Ruddell were parties to the AIRC decision and the Equal Opportunity claims, Ms Lord was not a party to the AIRC proceedings. There can be no issue estoppel arising in relation to Ms Lord.

47. Fourth, there is no identity of issues, in my view. As I said, the Commission did not consider in any substantial way any issue of discrimination. The Commission simply considered whether the driving incident would entitle the employer to terminate employment.

48. Fifth, I am not satisfied that it was unreasonable not to raise the discrimination issue on the AIRC proceedings except in relation to the driving incident. Other performance issues were not considered in specific or detailed terms. The Commission was, in any event, looking only or primarily at termination of employment and not issues during employment. However, I do consider that it was unreasonable not to raise the discrimination matter in relation to the driving incident. To do so might have led the Commissioner to view the termination in a different light.

49. The respondents next argue that to allow this complaint to proceed would amount to an abuse of process. They say it would amount to duplication of litigation with consequent waste of judicial resources and the possibility of inconsistent findings as to facts and credit.

50. Except in relation to the driving incident I reject this submission. The driving incident has been, in my view, fully explored during the AIRC hearing. The discrimination aspects of it could have been but were not raised and it was unreasonable not to have raised them. In these circumstances it would, in my view, be an abuse of process to re-litigate that issue before VCAT. That part of the claim as well as the termination claim should also be dismissed. As I said, the other issues in relation to employment were not in any real sense litigated before the AIRC.

51. I now come to the respondents submissions concerning specific claims in the complaint. The respondents first say that the claim in relation to race discrimination is misconceived or lacks substance. In my view this claim is manifestly hopeless and should be dismissed. It is by no means clear how it is that Mr Ruddell is saying that he is Anglo Australian. If he means that he is a person of Australian nationality or national origin or is of Anglo Saxon descent or ancestry then these are matters included in the definition of race in s.4 of the Equal Opportunity Act.

52. If the respondents treat him less favourably substantially on that basis (or since under s.7 of that Act discrimination can occur on the basis of a presumed attribute) or substantially because they presume him to be of Australian nationality or national origin or of Anglo Saxon descent or ancestry, that treatment will be regarded by the Act as being substantially being based on race. If this is what, in fact, is being said then it is possible to say that this is a claim that at least to some extent would be capable of being covered by the Act. As to the question of presumed attributes see Miller v. Mieson [1991] EOC 92-341.

53. Even on this basis there is nothing in the material before me that could found an inference that any part of this attribute of race was a substantial basis for the respondents treatment of Mr Ruddell. There are other explanations which are as or more probable, for example, Mr Ruddell's work performance. This part of the claim then must be dismissed.

54. I reach a similar conclusion concerning the claim of physical features discrimination. There is nothing in the material before me on which it would be open for the Tribunal to infer that Mr Ruddell's height or build was a substantial reason for his treatment by the respondents. While, as far as his voice is concerned, there are memoranda from the department mentioning Mr Ruddell's loud voice, there is nothing in the material put before the Tribunal by the complainant on which it would be open to the Tribunal to conclude that a loud voice is a bodily characteristic of Mr Ruddell - that is, that it is something which distinguishes Mr Ruddell's voice from the voices of others. This is to be distinguished from a voice whose loudness can be controlled at will. That is not what is being looked at in the definition of physical features in the Act.

55. For present purposes I assume, although the matter is not beyond doubt, that the words "bodily characteristics" in that definition include not only visible bodily characteristics like height or weight but any other bodily characteristics with an external manifestation such as voice which is audible. On the basis I have just mentioned I conclude also that the claim in relation to Mr Ruddell's voice should also be dismissed.

56. I now come to the sex discrimination claim. To the extent that this claim alleges that loud voices are a characteristic of the male sex and that Mr Ruddell was therefore less favourably treated by the respondents based on the attribute of sex. The claim should, in my view, be dismissed as manifestly hopeless.

57. There is nothing in the material before me that would permit the Tribunal to infer that it is a characteristic of males generally or a characteristic generally imputed to males that they have louder voices. This would be what is necessary for the purpose of s.7(2)(b) and (c) of the Act.

58. The rest of the sex discrimination claim and the claims of marital and parental status discrimination should not, in my view, be struck out or dismissed. In the material Mr Ruddell alleges that comments were made to him as to gender issues and as to his status as a single man without children. Although the respondents deny that he was treated on the basis of these attributes and put forward other explanations for that treatment such as unsatisfactory work performance, it must be remembered that the attribute need only be a substantial reason, not the sole or dominant reason for the treatment.

59. I am not prepared to say that it would not be open to the Tribunal to infer that Mr Ruddell's sex or marital or parental status was a substantial reason for this treatment. Whether the treatment was, in fact, based on any of these attributes should be for a final hearing to determine where evidence can be called and tested by cross-examination. I am not satisfied that the case is manifestly hopeless on these grounds.

60. The respondents argue that Mr Ruddell did not properly identify the relevant comparator for the purposes of his direct discrimination claim. I do not agree. On a broad reading of the material before me I consider that Mr Ruddell is saying that the respondents would not have targeted or singled out a female or someone who was married or had children for the treatment which Mr Ruddell alleges he received.

61. Mr Ruddell's material also claims that there was a perception in the department that males were not as well suited for child protection work as women and he also says that there was a statistical dominance of women in both staff and management in the department. Mr Ruddell does not make any claims of discrimination against himself in respect of these matters and I do not treat them as part of his claims.

62. Finally, I deal with claim 1(b) as I have described it - the criticism of Mr Ruddell because football was not an appropriate pastime for child protection workers. It is not clear how this claim is put. If the allegation is that the comments are meant to constitute a detriment then I consider the matter to be so insubstantial as not to be capable of amounting to a detriment within the meaning of s.14 of the Equal Opportunity Act.

63. If the comment is meant to evidence sex discrimination in the sense that the claim is somehow that the playing of football is a characteristic which males generally have or is generally imputed to males, then the claim seems to me also to be without foundation. In any event, the claim should be dismissed.

64. I conclude then that the following claims survive. Claims, which I have described in my reasons for decision, as 1(a), (c), (d) and (e). As I have set out in my order claim 1F survives but only in a limited form. The rest of the claims in the complaint should be dismissed.

65. In my view the particulars of complaint in respect of the surviving claims are clearly inadequate both as to factual detail and to characterisation under the Equal Opportunity Act. The complainant must also clarify which claims relate to which respondents. My order provides for the filing and service of further particulars of complaint. It also provides that if the Tribunal considers any of these inadequate it will hold a directions hearing to consider whether any or all of the surviving claims should be dismissed or struck out. The mediation will continue adjourned until these matters have been resolved.

Opportunity Act 1995

Opportunity Act](/cgi-bin/viewdoc/au/legis/vic/hist_act/eoa1995250/) Act 1995

Opportunity Act 1984

Civil and Administrative Tribunal Act 1998

At a glance

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Judgment (99 paragraphs)

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