1. This case involves allegations about decisions made by the respondent's (the Club) Board of Management (the Board).
2. In essence, it alleged that the Board refused to grant SPM and her son affiliated membership of the Club and that in doing so they have discriminated against her and her son and have engaged in victimisation.
3. The brief history of this matter is that SPM and her son had been full members of the Club since 2015. This membership entitled them to play social and competitive bowls. In November 2017 SPM and her son transferred to a club in Essendon. They then sought to transfer back to the Club. Their social membership was accepted, but not the affiliated membership (this entitles a member to play competitive bowls).
4. After the Club refused their membership, SPM made a complaint to the Victorian Equal Opportunity and Human Rights Commission (the Commission) in December 2017. Conciliation was attempted but was unsuccessful.
5. SPM then lodged an application with the Tribunal on 17 August 2018. In her application SPM states that she wants "...a decision made by the Flemington and Kensington Bowling Club overturned so that my son and I can play competition bowls at this club".
6. A hearing was held on 18 September 2018 where the Tribunal decided not to grant an interim injunction. Directions were also given on this occasion about lodgement and exchange of submissions and affidavits. These were complied with by the parties.
7. I heard the matter on 11 December 2018.
8. After hearing evidence and submissions from both parties, I reserved my decision.
9. These are the reasons for my decision.

1. I pointed out at the start of the hearing that the claim appeared to relate to SPM and her son, but that her son was not named as an applicant.
2. Counsel for the Club had no objection to me joining SPM's son, so I made him a joint applicant under s. 123 (1)(c) of the Equal Opportunity Act 2010 (the EO Act). As he is a child, SPM is named on his behalf.
3. I also granted leave for Counsel to appear on behalf of the Club. A considerable amount of written material had been provided by both parties and there were issues of law that were not clear from the application and supporting documents, and these would need to be addressed. I did not believe that SPM would be disadvantaged.
4. In addition, SPM sent additional information to the Tribunal (marked to my attention) after the hearing in an email dated 4 January 2019. The hearing was completed and no request had been made for lodging further material. I therefore did not consider this material in reaching my decision.

1. The following documentary evidence was lodged with the Tribunal and exchanged by the parties and considered by me:
   • Affidavits of SPM dated 24 October 2018 and 6 December 2018.
   • Submission of SPM dated 24 August 2018.
   • Affidavits of Oliver Barry dated 23 November 2018 and 16 September 2018.
   • Affidavit of Marcelle Davis dated 23 November 2018.
   • Respondent's Outline of Submissions dated 23 November 2018.

1. SPM gave evidence at the hearing, including the following:
2. Her claim is in relation to victimisation and discrimination. The attribute that she is relying on for the claim of discrimination is employment activity.
3. She believes that the Club discriminated against her because of various issues that she raised in relation to her employment with the Club. These issues were ultimately resolved by order of the Federal Circuit Court.
4. The claim in relation to victimisation is made because the Club refused her and her son's affiliated membership because she had made an earlier complaint to the Commission.
5. She first joined the Club in 2015. She transferred to Essendon after the Club failed to resolve a range of issues in August 2017. She later decided to transfer back to the Club in June/July 2018. In order for her transfer with affiliated membership to be successful it was necessary for both clubs to sign a form. She gave the Club this form on 10 August 2018. She handed it to the President.
6. Two days later she received an email indicating that her transfer had been refused. She requested the reason. Mr Warren emailed her and explained that that the Club was relying on paragraph 6.3 (c) of the constitution as the Board had decided it was in the best interests of the Club to refuse her application.
7. However, the Club did not consider whether she met the criteria set out in 6.3 (a).
8. It was in August when the decisions were activated. The decision to refuse her transfer was made on 8 April 2018, and the decision to refuse her son's transfer was made on 17 June 2018.
9. No one met with her after she handed over the transfer form, and Mr Warren simply acted on the earlier decisions of the Board.
10. There were a number of matters that she complained to the Club about during the period when she was a member. These issues should have been handled better.
11. At no time was she served with any notices alleging poor behaviour, or in fact that there was any problem with her behaviour. This lack of notices confirms that there was no problem with her behaviour and therefore the only reason why the Club would have refused her affiliated membership must have been because of the legal action she took in relation to employment and the complaint she lodged with the Commission. No other reason has been provided.

1. Mr Warren gave evidence at the hearing, including the following:
2. He is the Secretary to the Club and his role includes taking minutes and other administrative tasks. He's been a member since 2015 and while there were no issues involving SPM in the first few years of her membership, a number of issues have arisen more recently including complaints about selection and lack of support by the coach.
3. To address these and other issues, a meeting with the Board was arranged in August 2017. All issues were discussed at the meeting, including allegations of bullying and issues in relation to potential employment. A letter was produced by the Club with the agreed outcomes from the meeting and the Club believed that all issues had been resolved satisfactorily. After the meeting SPM was offered a formal role as the Barefoot Bowls coordinator subject to terms of engagement. These terms were not finalised. SPM was provided a contract but she didn't sign this and didn't take this role.
4. At a meeting of the Board on 8 April 2018 the Club had become aware that SPM was interested in returning to the Club. It was decided that affiliated membership would not be accepted as she would continue to question the Board's decisions and would be a distraction from running the Club. During the period of her earlier membership she had regularly sent emails in relation to her concerns and members of the Board had met with her on a number of occasions. The Board decided that they didn't want the additional administrative burden of her membership. Her complaint at the Commission was discussed at the meeting and they were hopeful to reach a settlement. Her complaint to the Commission did not impact his decision.
5. On 3 June 2018, following the AGM, SPM sent an email stating that she had been ignored at this meeting by the President in relation to an incident involving her son. This was denied, but raised the concern with the Board that if her son was granted affiliated membership then in all likelihood, SPM would continue her constant complaints.
6. At the meeting on 17 June 2018 the Board discussed her and her son's membership and the risk of further disruption if her son was allowed to become an affiliated member. The Board believed that SPM's focus had shifted from herself to her son and it was unanimously decided that her son should not be granted affiliated membership. There was some discussion about the Federal Circuit Court action as documents had recently been received but this discussion was not in relation to membership by SPM or her son.
7. Under cross examination, Mr Warren said that he had made an assumption that a number of Facebook posts were about the Club. There was nothing to substantiate this other than his assumption.
8. He also said that it was in the best interests of the Club if SPM and son were not granted affiliated membership as there was a real possibility that the Board would be distracted from running the Club and that SPM would question decisions of the Club.
9. He said that he had no formal complaints about either SPM or her son.

1. Mr Clifford gave evidence at the hearing, including the following:
2. He has been a member for 12 months and personally witnessed constant abuse in relation to selection and coaching from SPM. This could be as regular as once a week. He was not on the Board at this time.
3. He is unable to recall all the discussions of SPM's potential request for affiliated membership at the 8 April 2018 meeting of the Board.
4. He voted to refuse her membership. He recalls that the Club was involved in starting new programs to increase its community contact and involvement. He felt that the constant criticism by SPM would be detrimental. He said that other members of the Club complain but not with the same frequency. He did not know about the Commission complaint and was not influenced by this. He was also not aware of the employment issues.
5. In relation to the second meeting where a decision was made about SPM's son, his recollection is that he was concerned that if her son was granted affiliated membership then she and her son would be attending the club on a more regular basis and this would increase the likelihood of further complaints.
6. In cross-examination, he denied that there had been any conversation between himself and SPM in relation to these issues.

1. SPM said that in relation to the claim of victimisation the only reason for the refusal of membership must be her complaint to the Commission because no other reason has been provided.
2. She said she had spoken to over 40 members and no one has complained about her. When she is on the field her conduct has always been 100%.
3. She believes that the Club doesn't want her there because she asks "the difficult questions".
4. SPM had provided documents outlining a range of remedies, some (for example, defamation) not being within the jurisdiction of the Tribunal. I asked SPM exactly what remedy she was seeking. She said the sole remedy she was seeking was that the transfer for her and her son's membership be granted so that they could both be affiliated members.
5. Counsel for the Club made the following submissions:
6. Two Board members had given evidence and examples of SPM's conduct in relation to her complaints and interruption with the effective management of the Club. While it is clear that the Board was aware of the complaint to the Commission, evidence has been given that the decision to refuse membership was driven by the resources involved in dealing with her regular complaints. There is no allegation that her behaviour was "bad".
7. SPM disagrees with the fairness of the decision, but victimisation does not require a justified decision, simply that the decision has not been based on her complaint to the Commission. In this case, there is insufficient evidence to show that the claim for victimisation has been made out.
8. In relation to the claim of discrimination, this is based on a presumption that the Board had made its decision because of her demand for wages. Evidence has been given that it was not in the mind of two Board members and there is no other evidence in relation to the other Board members. There is no independent evidence and SPM relies on the Tribunal drawing an inference to support her claim. However, the evidence that has been given is inconsistent with the inference being drawn.
9. The employment issue arose when SPM worked at the Club as a volunteer and was subsequently given funds. The Club did not realise that this gave rise to an employment arrangement.
10. If the Tribunal found that a claim had been made out then it should decline to take further action. The relationship has broken down between the parties and reinstating the membership would simply result in ongoing conflict. It should be noted that there is no significant disadvantage to SPM and her son not being able to bowl competitively at the Club.

1. SPM alleges that she and her son have been discriminated against by the Club. Section 8 of the EO Act[1] defines direct discrimination.
2. The elements that she must prove are:
   • That she and her son have an attribute (as defined in the EO Act).
   • That they were treated unfavourably by the Club.
   • That any unfavourable treatment was because of the attribute.
3. SPM need not prove that her and her son's attributes are the sole reason for any unfavourable treatment, it is enough to show that it was a substantial reason. Motive is also irrelevant.[2]
4. SPM also alleges victimisation.
5. Victimisation is prohibited by s. 103 of the EO Act and is defined in s. 104.[3]
6. The remedies available if there is a breach of the EO Act are set out in s. 125 of the EO Act.[4]

57 There is a burden of proof that applies in these cases. In this application, the burden rests with SPM as the applicant[5]. In lay terms this means that she must provide sufficiently detailed allegations and evidence to show that the alleged incidents occurred and that there has been a breach of the EO Act.

58 In this area of law, it is uncommon for a respondent to accept that the conduct complained of is discriminatory. The Tribunal is therefore called upon to make a judgement about whether the evidence supports an inference being drawn that the conduct is discriminatory. In this case the Tribunal must be satisfied that any inference it does make is reasonable.[6]

59 Where there are serious allegations of misconduct the Tribunal should also take into account the common law principles established in the case of Briginshaw v Briginshaw [1938] HCA 34.[7]

1. SPM alleged that she and her son were the subject of victimisation as a result of her complaints to the Commission.
2. SPM must therefore prove that the decisions to refuse her and her son's affiliated membership was because she lodged a complaint with the Commission.
3. So, the question to be addressed is whether there is a causal link between the actions of the Club and this complaint.
4. It is useful to consider the time lines. It is not disputed that SPM lodged her complaint with the Commission in December 2017. The minutes of the April 2018 meeting refer to this complaint. Indeed it was only four days after the conciliation that the meeting was held. Clearly the Board members were aware of the complaint.
5. It would be reasonable to assume that this complaint may have influenced the Board member's decision.
6. However, the sworn evidence given at the hearing suggests that this is not the case. The consistent rational provided in the affidavits and sworn evidence was that SPM was seen as a person who complained a lot - with evidence pointing to complaints about issues such as coaching and team selection, alleged bullying etc. Mr Warren emphasised that dealing with the range of issues raised took a considerable amount of time and that time was limited as, in his case he worked full time, and consequently dealing with the issues meant that he had less time do deal with issues that in his eyes were more productive for the Club. The Club is entitled to refuse an application for affiliated membership under cl. 6.3 of the Constitution and this is what it did. It did not have to give any reasons.
7. The submission of the Club's Counsel acknowledges that while the Board members were obviously aware of the Commission complaint, they deny that this was a motivating force. Counsel puts it in terms of a subconscious element. Whether this is true or not, it is in the hands of SPM to prove her case and so she must show that Commission complaint was a "substantial reason" for the majority of Board members.
8. The Board members were certainly aware of the Commission proceedings when they made their decision in April and June 2018. But awareness does not mean that this issue was a "substantial reason"[8] for the decision.
9. Substantial does not mean dominant, provided that it is a substantial reason i.e. a reason of substance.[9] SPM must show a causal link between the Board's decision and the Commission complaint.
10. In G v Victoria Legal Aid, the Tribunal said: [10]

The complainant must prove a clear causal link between subjecting a person to a detriment, and that person's having earlier taken action of the kind set out in section 97(1)(a) to (g). Clear evidence of a causal link has not been adduced, nor is there evidence from which it would be safe to draw an inference of a causal link. In these circumstances, the complainant's case of victimisation fails.

1. I note also the case of Parr v Steamrail Victoria,[11] which involved allegations of victimisation. In this case one of the issues that arose was the reason for a decision by members to vote against Mr Parr's membership.
2. Senior Member McKenzie stated:

The only evidence about the reasoning of the members is general and is that Mr Parr's abusive behaviour was a factor in the decision. There is no evidence about how many of the members voting at that meeting had that reason in mind. There is no evidence at all that they had in mind any other reason, such as the allegation made. It would need to be a matter of inference. I am not prepared to draw that inference because there is insufficient evidence to do so. Moreover, it would need to be established that a majority of the members voting at the meeting had that reason as a substantial reason for voting in a particular way. There is no evidence on which I could base such a finding.[12]

1. SPM was unable to obtain any direct evidence about the intentions of the various members of the Board in reaching their decisions in April and June 2018. Her argument was that she had done nothing wrong at the Club and, if she had, the Club had not taken any action to discipline her. Therefore, by implication the only reason the Board could have reached their decision is because of her complaint to the Commission.
2. As previously stated, the burden of proof in relation to these matters rests with SPM. Consistent with Senior Member McKenzie's approach, there is insufficient evidence in this case for me to impute the required reasoning into the Board's decisions.
3. I am therefore unable to conclude that the decision to refuse transfer of membership gives rise to the victimisation of SPM and her son.
4. I will dismiss the claim in relation to victimisation.

1. As previously stated, three elements must be satisfied.
2. SPM must prove that:
   • They have an attribute; and
   • Were treated unfavourably by the Club; and
   • That any unfavourable treatment was because of the attribute.

1. The EO Act only deals with certain attributes.
2. SPM claims that her attribute is "employment activity". This is defined in the EO Act and refers to an employee (including a person) who communicates to his or her employer concerns and employment entitlements.
3. SPM claims that her son's attribute is "personal association" with herself, i.e. a person with an attribute.
4. SPM supports her claim with the assertion that she had made earlier claims for fees for services pursuant to an agreement. It is not contested that this ultimately resulted in an order of the Federal Circuit Court dated 7 September 2018 that the Club pay her the amount of $2,480.
5. I therefore accept that SPM has the attribute of "employment activity" and that accordingly her son also has an attribute because of his "personal association" with her. This was not disputed by the Club's Counsel.

1. This term is not defined in the EO Act. Its ordinary meaning, as defined in the Macquarie Dictionary, is "not favourable, not propitious, disadvantageous, adverse"[13]. It could therefore include harassment or bullying, being subjected to humiliation, being denied a benefit which is offered to others etc.
2. SPM claims that the Board's decision to refuse her "affiliated membership" is unfavourable treatment. This is not denied by the Club.

Was SPM treated unfavourably because of an attribute?

1. The real area of contention in this case relates to this issue. SPM must prove that the decisions to refuse her and her son's affiliated membership was because of her employment related claim.
2. The question is whether there is a causal link between the actions of the Club and the attributes.
3. It is not disputed that SPM raised the employment issues with the Club in 2017.
4. It is also not disputed that the Board made decisions in April and June 2018 refusing SPM and her son's potential transfer such that they could not become affiliated members of the Club. This decision was not acted on until August 2018. The Federal Circuit Court action was initiated firstly by a complaint to the Fair Work Ombudsman in November 2017.
5. The Board members were certainly aware of SPM's concerns about her "entitlements" when they made their decisions in April and June 2018. But awareness does not mean that this issue was a "substantial reason" for the decision.
6. Two Board members gave evidence. Both were clear that this employment related issue did not impact on their decision making. Mr Clifford said that he was a recent appointment to the Board and that while the issue of the pending Federal Circuit Court action was raised at the June 2018 meeting he did not pay it a lot of attention. He said that the main reason for his decision was that he had witnessed SPM complaining about various issues and that he thought it best for the Club that they not use their limited resources dealing with the issues that she raised.
7. Mr Warren gave similar evidence. As Secretary he had a more active role in the Club and told the Tribunal that while he was aware of SPM's employment concerns, these did not impact his decision at all. His concerns were the amount of time and resources that were spent dealing with the various and numerous issues she had raised at the Club.

1. Based on the evidence above and the lack of direct evidence provided by SPM, I am not satisfied that the decision to refuse transfer of membership is discriminatory in the terms claimed by SPM.
2. She had relied on an assertion that without evidence of poor behaviour then there can be no other reason for refusing affiliated membership. But in this case there is a reason - rather than relating to "poor behaviour" it has been presented as being based on behaviour that takes the time and resources of the Club such that it is distracted from its other activities.
3. The Constitution allows the Board to refuse membership in circumstances such as these and it would appear from the evidence provided that this is what has occurred.

[1] s. 8 Direct discrimination

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

[2] s. 10 Motive is irrelevant to discrimination

In determining whether or not a person discriminates, the person's motive is irrelevant.

[3] s. 104 What is victimisation?

(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person -

s. 104(1)(a) amended by No. 26/2011 s. 34 (Sch. item 5.1).

(a) has brought a dispute to the Commission for dispute resolution; or

(b) has made a complaint against any person under the old Act; or

(c) has brought any other proceedings under this Act or the old Act against any person; or

(d) has given evidence or information, or produced a document, in connection with -

(i) any proceedings under this Act or the old Act; or

s. 104(1)(d)(ii) amended by No. 26/2011 s. 20.

(ii) any investigation conducted by the Commission; or

(e) has attended a compulsory conference or mediation at the Tribunal in any proceedings under this Act or the old Act; or

(f) has otherwise done anything in accordance with this Act or the old Act in relation to any person; or

(g) has alleged that any person has contravened a provision of Part 4 or 6 or this Part, or Part 3, 5 or 6 of the old Act, unless the allegation is false and was not made in good faith; or

(i) would contravene a provision of Part 4 or 6 or this Part; or

(iii) would have contravened a provision of Part 3, 5 or 6 of the old Act -

or because the person believes that the other person or the associate has done or intends to do any of those things.

(2) It is sufficient for subsection (1)(g) that the allegation states the act or omission that would constitute the contravention without actually stating that this Act, or a provision of this Act, has been contravened.

(3) In determining whether a person victimises another person it is irrelevant -

(a) whether or not a factor in subsection (1) is the only or dominant reason for the treatment or threatened treatment provided that it is a substantial reason;

(b) whether the person acts alone or in association with any other person.

(4) In this section, "old Act "means the Equal Opportunity Act 1995, as in force before its repeal.

[4] s. 125 What may the Tribunal decide?

After hearing the evidence and representations that the parties to an application desire to adduce or make, the Tribunal may -

(a) find that a person has contravened a provision of Part 4, 6 or 7 and make any one or more of the following orders -

(i) an order that the person refrain from committing any further contravention of this Act;

(ii) an order that the person pay to the applicant, within a specified period, an amount the Tribunal thinks fit to compensate the applicant for loss, damage or injury suffered in consequence of the contravention;

(iii) an order that the person do anything specified in the order with a view to redressing any loss, damage or injury suffered by the applicant as a result of the contravention; or

(b) find that a person has contravened a provision of Part 4, 6 or 7 but decline to take any further action; or

(c) find that a person has not contravened a provision of Part 4, 6 or 7 and make an order that the application or part of the application be dismissed.

[5] Finch v The Heat Group Pty Ltd (Anti-Discrimination) [2010] VCAT 802.

[6] Drew v Whitehorse City Council (Anti-Discrimination) [2010] VCAT 372, relying on Morgan v Austin Health & Anor [2007] VCAT 2229, per Harbison J.

[7] Kyriackou v Law Institute of Victoria Limited [2014] VSCA 322 at para 24.

[9] Stern v Depilation & Skincare Pty Ltd [2009] VCAT 2725.

[10] 565 (2000) EOC 93-060.

[13] Macquarie Dictionary (5th ed, 2009).