Victorian Civil and Administrative Tribunal|2010-12-22|Before: Mr J

Sleigh v State of Victoria (Department of Education & Early Childhood Development) (Anti-Discrimination) [2010] VCAT 2057 (22 December 2010)

Anti-discrimination - whether complaint should be dismissed under s75 of the VCAT Act - delay in lodging complaint and relevant factors - what issues are beyond scope of complaint? - Equal Opportunity Act 1995 s108(1)(c); Victorian Civil and Administrative Tribunal Act 1998 s75; Limitation of Actions Act 1958 s5

State of Victoria (Department of Education and Early Childhood Development)

Sleigh v State of Victoria (Department of Education & Early Childhood Development) (Anti-Discrimination) [2010] VCAT 2057

The correct name of the Respondent is State of Victoria (Department of Education and Early Childhood Development).
Pursuant to s75 of the Victorian Civil and Administrative Tribunal Act 1998 this proceeding is dismissed.

By letter dated 3 September 2010, the Commissioner under the Equal Opportunity Act 1995 (the EO Act) referred to VCAT, at Mr Sleigh's request, a complaint dated 24 June 2010. According to the Commissioner, the complaint claimed impairment discrimination in employment. I am satisfied that the Commissioner correctly characterised what is in the complaint.
The Commissioner declined to entertain the complaint under s108(1)(c) of the EO Act. This gives the Commissioner discretion to decline a complaint if the alleged breach of the EO Act occurred more than 12 months before the complaint was lodged.
Mr Sleigh, as is his right under the EO Act, required the Commissioner to refer the complaint to VCAT.
The Respondent (the State of Victoria in its capacity of the Department of Education and Early Childhood Development (the Department)) now applies to dismiss the complaint under s75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). It does so on the grounds that the complaint is misconceived, lacks substance or is an abuse of process. These are all grounds on which VCAT, under s75, may strike out or dismiss a proceeding (here, a complaint).
I have before me the complaint, further documents filed by Mr Sleigh, and two affidavits from Ms Gay (the Department's solicitor and also a qualified teacher). I have written and oral submissions from the Department and oral submissions from Mr Sleigh.
I first say something about applications under s75 of the VCAT Act. I then summarise the material before me. I then deal with each of the issues in turn, considering the parties' submissions and stating my conclusions.

Striking-out or dismissing a complaint - s75 of the VCAT Act

The cases say this about s75.[1] The section gives the Tribunal a discretion to terminate a proceeding summarily. That discretion may be exercised at any stage in the proceeding. Here, the Department applies before the full hearing. The Tribunal should be cautious before terminating a proceeding under s75 and so depriving the litigant of the chance to have the case heard in the ordinary course. It should only do so where, on a ground mentioned in the section, it is satisfied that the case is obviously hopeless, manifestly untenable, is doomed to fail, or on no reasonable ground could it justify relief.
The Department is not here applying to have the complaint dismissed because it is unmeritorious. It applies because it says that such a long time has passed between the conduct alleged in the complaint and the lodging of the complaint that it is unlikely that the complaint could receive a fair hearing. Alternatively, the Department says that the complaint is statute-barred. In my view, this last ground falls within the description 'misconceived' in s75, and the first ground falls within the description 'abuse of process' in that section.
The matters which VCAT may take into account in determining whether delay between the conduct complained of and the making of the complaint will make the complaint an abuse of process can be summarised as the interests of justice. The matters include whether the delay is inordinate, whether there is a reasonable excuse for the delay, who was responsible for the delay, whether the delay affects the quality of justice (for example, whether the ability to conduct a fair hearing, or whether the evidence will be significantly compromised because of such matters as the loss or destruction of significant documents, the death of an important witness, or because the recollection of important witnesses is so significantly impaired because of the delay as to compromise the quality of the evidence). Another factor that must be taken into account is that a litigant should not be unfairly deprived of the opportunity to have a hearing on the merits of the matter. All these factors must be balanced and weighed against each other.[2]

I first summarise the complaint. From 25 March 1996 to 20 December 2000, Mr Sleigh was a teacher and student welfare coordinator at the Koori Open Door Education (KODE) campus (the Campus) of Box Forest Secondary College (the College). Box Forest Secondary College is a secondary college operated by the Department.
In March 1999, while at work at the Campus, Mr Sleigh injured his back, elbow, wrist, knee and finger. He alleges that the Department, through its agents at the Campus and the College, subjected him to the following detriments because of his injuries/impairments -
- He was required to return to work the day after the injury, although he had a WorkCover medical certificate stating that he should not do so.
- Contrary to his medical certificates and the agreement under which he returned to work on light duties, and although his working days were reduced to three per week, he was required to perform a full time five day week workload within that reduced number of hours.
- Negative comments were made about his need to attend medical and hydrotherapy appointments during working hours, including that he was neglecting his duties and that his pay would be garnisheed.
- Neither the College nor the Campus provided him with an ergonomic chair until approximately eight months after his injury.
- He was provided with only minimal and occasional assistance to move his ergonomic chair from classroom to classroom, to carry heavy books from classroom to classroom, and to lift his ergonomic chair into classrooms which had a flight of stairs leading to their entrance.
- His medical restrictions required him to work in warm surroundings, but a heater was only rarely provided for him by the Campus / College.
- On 20 December 2000, his employment was terminated, and a significant factor in the termination was his injury and his inability to comply with what he says were the unreasonable requirements of the Campus / College.
In his complaint, Mr Sleigh explains that the reason for his delay in making the complaint was that he had lost his home and lost documentation, and had recently found that documentation.
I now say something about the additional material put before me by Mr Sleigh. In it, Mr Sleigh amplifies his claims of impairment discrimination, but additionally claims sex discrimination, sexual harassment, age discrimination and religious vilification in respect of himself, and various forms of discrimination to which he says the Department subjected his wife. A major focus of the additional material is what Mr Sleigh says was the Department's unjust or discriminatory failure to recognise his entitlement to an ongoing position with the Department. He alleges that, before he signed his first fixed-term contract with the Department on 25 March 1996, he was told by Mr Rose (the then principal of the KODE campus) that Mr Rose had been told by Ms Harris (the then principal of Box Forest Secondary College) that Mr Sleigh's initial short-term contracts were a precursor to an ongoing position. He alleges that Ms Turner, Mr Rose's successor, also told him that Ms Harris had used similar words to her about Mr Sleigh's position. He makes various claims about what he says are his long service leave entitlements.
Mr Sleigh lodged a grievance in respect of the termination of his employment with the Merit Protection Board. On 23 January 2001, that Board dismissed the grievance review on the ground that Mr Sleigh did not have the status of an ongoing employee, and that his WorkCover issues were not taken into account by the selection panel which determined not to appoint him to a further position at the Campus / College. Mr Sleigh did not appeal that decision to the Supreme Court.
Mr Sleigh's material contains correspondence between him and various officials in the Department, and Mr Sleigh says (and the Department does not dispute) that between 2001 and 2010 there had been significant correspondence between him and the Department. In this correspondence, he attempted to settle the dispute.
The parties do not dispute that various WorkCover payments were made to Mr Sleigh from 21 December 2000 to 30 May 2002. The parties do not dispute that, in October 2001, the WorkCover conciliation service issued a Certificate of Outcome of a conciliation conference between the parties. At the hearing, Mr Sleigh initially said that he thought he had complained to the Victorian Equal Opportunity Commission at some time in 2001, but then expressed uncertainty about whether it was that Commission or some Commission relating to his WorkCover entitlements. The material before me contains no complaint to the Victorian Equal Opportunity Commission and the Department says that it has received no such complaint. I am not satisfied on the material before me that such a complaint was made at that time.
Mr Sleigh's material also contains a letter to him from the Human Rights and Equal Opportunity Commission (HREOC) written in June 2007. That letter refers to an email from Mr Sleigh dated 28 May 2007. From HREOC's letter, it appears that Mr Sleigh had complained to HREOC about disability discrimination by the Department in respect of compensation for his injuries and the termination of his employment. HREOC declined to investigate the complaint on the ground that the lengthy delay in making the complaint would impact on its ability to inquire into it and because (although Mr Sleigh may have been unhappy with the outcome) the grievance review process before the Merit Protection Board appeared to have been an appropriate remedy for the issues.
I now say something about the material put before me by the Department in the form of the two affidavits by Ms Gay. She exhibits the Merit Protection Board's decision on Mr Sleigh's grievance review, and the material placed by him before the Board on that review. That material covers the ongoing employment status issue, and the impairment issues mentioned in the complaint.
Ms Gay's affidavits also set out the searches which have been conducted for documents relating to the matters in Mr Sleigh's complaint. I accept that the searches have been at the central departmental level and at the college and campus level. They have revealed very little contemporaneous documentation. I accept Ms Gay's affidavit evidence that, based on her experience as a teacher, individual teachers may well have kept individual diaries about events at the time of the conduct complained of, but that those diaries remain with the individual teachers and are generally not retained for a lengthy period such as this. In 2010, Mr Sleigh lodged a request under the Freedom of Information Act 1982, also seeking documents relevant to the issues in his complaint and relating to his ongoing employment status. Again, very few documents were forthcoming in the response to the request. That response suggests that one of the reasons for the lack of documents might have been the Department's practice of retaining documents for only seven years after their creation.
The Campus's principal, Ms Harris, died in May 1999. There is a suggestion from Mr Sleigh's material that she may have retired in 1998. There is no suggestion in the material that she had anything to do with what happened to Mr Sleigh after his injuries. I accept Ms Gay's affidavit evidence that two of the other principals at the College and Campus at the time to which the complaint relates have retired from the College / Campus, and no longer work with the Department.
The KODE campus closed at the end of 2008. The College closed at the end of 2009. They were replaced with a new school and a new campus. It is not clear how many (if any) of the former Campus and College teachers who worked at the Campus or College in 1999 or 2000 still work at the new school or the new campus.
There is no dispute that Mr Sleigh's injuries in 1999 made him unable to work for a considerable period. However, departmental employment records in the material put before me by the Respondent show that he worked at the Sunbury College from 12 July to 18 December 2004, and again from 6 April to 21 December 2005, and for some short period in 2007 and 2008.

What issues does VCAT have jurisdiction to determine under the EO Act?

VCAT's jurisdiction to deal with this complaint comes from s134(1)(a) of the EO Act. Among other things, that provides that VCAT may hear a complaint referred to it by the Commissioner under s108 - the section under which this complaint was referred. VCAT does not have jurisdiction to hear something not in the complaint referred to it. A complaint must be read in a broad and non-technical way.
I agree with the Department that Mr Sleigh's material raises a number of matters which are not part of the complaint referred to VCAT. These matters are his allegations in respect of his wife, and his allegations against the Department claiming age discrimination, sex discrimination, sexual harassment and religious vilification. The complaint also does not deal with his ongoing employment status claim. Mr Sleigh's material indicates that this claim is based on what he says were assurances given to him in 1996 - three years before his injury and before the time when he alleges detriments to him based on those injuries. The complaint relates only to those injuries and those detriments. The ongoing employment status claim is therefore not part of the complaint. VCAT has no jurisdiction to deal with any of the issues I have identified as not being part of the complaint.

The Department argues that it is now so long since the alleged conduct which is the subject of the complaint, that the complaint has been made so late, that a fair hearing of the matter would not be possible. I agree. VCAT's obligation is to hear a case fairly and on its merits. That obligation applies to all parties - not just the complainant or respondent, but both.
On the material before me, it seems that there are very few contemporaneous documents relating to the matters raised in the complaint, and that diligent searches for more documents have been unsuccessful. The passage of time means that memories of witnesses will have faded, or they may not be able to recall in any detail the conduct complained of. In my view, the quality of evidence at hearing is likely to be significantly compromised, and the lack of documents and the possibility that memories will have faded will make it difficult for the Department to defend itself at hearing. The Tribunal's ability to do justice between the parties will be significantly diminished.
It is now some 11 years since the beginning of the conduct alleged to have occurred in the complaint. During that 11 years, Mr Sleigh has been able to lodge a grievance against the Department with the Merit Protection Board, to attempt to conciliate a dispute concerning his WorkCover entitlements, and to lodge a complaint with HREOC. At least in 2004 and 2005, it appears that he has been able to work for significant periods. In these circumstances, and although I do not doubt that he lost his home and lost certain documents, and has carer responsibilities for his wife, I am not satisfied that he has provided a complete and reasonable explanation of the 11 year delay. For example, if he were able to complain to HREOC in 2007, it is not unreasonable to assume that he could also have complained to the then Victorian Equal Opportunity Commission.
I conclude that the delay is inordinate, and the explanation for it (when the delay is viewed as a whole) is neither adequate nor reasonable. In my view, the continuation of this complaint proceeding is an abuse of process. The complaint should be dismissed under s75 of the VCAT Act.

I make some concluding comments. First, in deciding whether or not this proceeding is an abuse of process, I have given little weight to what the Department said was previous 'litigation' of the ongoing employment status issue through the Merit Protection Board grievance process. That Board's decision clearly does not create any estoppel. It also appears from the Board's reasons that its main focus was Mr Sleigh's ongoing employment status issue, and his failure to be selected for a further position at the College / Campus. I have said that these were matters beyond the scope of the complaint. However, I accept that in Mr Sleigh's material before the Board, there are a number of references to his injuries and the way in which he alleges he was treated by the Campus / College.
Second, I have given little weight to what the Department argued was difficulties caused by the death of an important witness (Ms Harris) and the retirement of two other KODE principals who may have had knowledge of the issues raised in the complaint. Ms Harris seems only to have been involved in the ongoing employment status issue - an issue beyond the scope of the complaint. The two other principals are still alive and could, if the Department chose, be summoned by the Department to give evidence.
Third, I make brief comment on the Department's submission that the complaint is statute-barred by the Limitation of Actions Act 1958 (Vic). The scheme, objectives, and provisions of the EO Act as a whole need to be considered to determine whether, for example, the EO Act provides for an 'action for damages' for breach of statutory duty in the terms of s5(1)(a) of the Limitation of Actions Act, or provides for a 'sum recoverable' in terms of s5(1)(d). Such an exercise would doubtless need to look at other remedies for which the EO Act provides (such as requiring action to be taken or refrained from), as well as the Act's other provisions (which include complaint-handling and educative functions of the Commission) and the Act's objectives (which cover far more than statutory duties and actions for damages). One would have to determine whether the mechanism of referral from the Commissioner (the mechanism by which complaints come to VCAT) can fairly be described as an 'action for damages' by a complainant. A number of cases from the Commonwealth anti-discrimination legislation jurisdiction were cited to me. It must be remembered that, in that jurisdiction, after a complaint has been terminated, the complainant must apply for a remedy to a court. This would seem to be very different from the case with the Victorian EO Act.
It is unnecessary for me to consider this matter further. My conclusion is based on other grounds.

[1] See generally Norman v Australian Red Cross Society [1998] 14 VAR 243; Rabel v State Electricity Commission [1998] 1 VR 102

[2] See for example Burrows v State of Victoria [2002] VCAT 1655 [38] and following

Civil and Administrative Tribunal Act 1998

Sleigh v State of Victoria

At a glance

Court

Decision date

Before

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Judgment (15 paragraphs)

Sleigh v State of Victoria (Department of Education & Early Childhood Development) (Anti-Discrimination) [2010] VCAT 2057 (22 December 2010)

Parties

Legislation Cited (1)