Victorian Civil and Administrative Tribunal|2010-03-03

Tan v McArdle & Anor (Anti-Discrimination) [2010] VCAT 248 (3 March 2010)

Anti-discrimination - does the Equal Opportunity Act operate extra-territorially? - elements of a victimisation claim - relevant employment decision made in Tasmania while complainant living and working in New South Wales, where complainant alleged victimisation based on Victorian complaint - insufficient connection with Victoria - complaint dismissed - Equal Opportunity Act 1995 ss96 and 97; Victorian Civil and Administrative Tribunal Act 1998 s75

Pursuant to s75 of the Victorian Civil and Administrative Tribunal Act 1998 these complaints are dismissed.
Paragraph 1 of these orders does not prevent the complainant from lodging a complaint, or instituting a proceeding, in respect of the subject matter of these complaints under the law of the Commonwealth, or of any state or territory other than Victoria.

I dismiss these complaints as misconceived. The dismissal does not prevent Dr Tan from lodging a complaint relating to the same subject matter under the law of the Commonwealth or of any other state or territory (such as Tasmania or New South Wales).

On 10 February 2009, Dr Tan lodged with the Victorian Equal Opportunity and Human Rights Commission (the Commission) a complaint against Dr McArdle under the Equal Opportunity Act 1995 (Vic) (the EO Act). The Commission referred this complaint to conciliation. Conciliation did not resolve the matter. At Dr Tan's request, the Commission then referred the complaint to VCAT by letter dated 23 September 2009. I call this the first complaint.
On 3 September 2009, Dr Tan lodged with the Commission a complaint against the Royal Hobart Hospital in Tasmania (RHH). The Commission notified Dr Tan that it did not consider it reasonably possible that the complaint would be successfully conciliated. Dr Tan then requested the Commission to refer the complaint to VCAT. The Commission did this by letter dated 14 October 2009. I call this the second complaint.
In brief, the two complaints allege that Dr Tan has been victimised in breach of s96 of the EO Act. In summary, the first complaint alleges this. In 2007, Dr Tan complained to the Commission about Dr Xenos, alleging sexual harassment. VCAT heard the case in 2008. It found the complaint proven and ordered compensation. Dr Tan alleges that, during the hearing, the Chair of the Board of Neurosurgeons (who gave evidence) was hostile to her, questioned her professional competence, suggested that her complaint was concocted, and gave evidence of a number of meetings of the Board at which Dr Tan had been criticised.
Dr Tan alleges that, in September 2008, she applied for a locum position as a neurosurgeon at RHH. The contact person for this application was Dr McArdle, then the director of medical services at RHH. Dr McArdle was at that time a member of the Board of Neurosurgeons. Dr Tan's application was unsuccessful. Dr Tan alleges that the failure to offer her the locum position was brought about by Dr McArdle, who failed to give proper consideration to her application because of Dr Tan's sexual harassment complaint and the VCAT proceeding that followed it, and negative comments made about that complaint at meetings of the neurosurgeons' Board.
The second complaint claims that RHH was vicariously liable for Dr McArdle's conduct, and so has also victimised Dr Tan in breach of s96.
Dr McArdle has now applied to strike out or dismiss the first complaint under s75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). RHH has made a similar application to strike out or dismiss the second complaint. Both respondents argue that the complaints are misconceived because VCAT has no jurisdiction to entertain them. VCAT has no jurisdiction because the victimisation provisions of the EO Act do not apply to the conduct alleged. Those provisions do not apply because, taken at their broadest, they only apply to matters with a real or sufficient connection to Victoria. The conduct alleged in these complaints does not have that real or sufficient connection.
RHH has a second basis for its application to strike out or dismiss the second complaint. It argues that it is not a juristic or legal person. It says that the entity which operates RHH is the Crown in right of the State of Tasmania (in its capacity of the Department of Health and Human Services). RHH is not the correct respondent.
I have before me the complaints and written and oral submissions from the parties.

Section 75 of the VCAT Act permits the Tribunal to strike out or dismiss all or part of a proceeding if satisfied (among other things) that it is misconceived. The relevant principles to apply when dealing with a strike out application are these[1].
It is a serious matter to summarily terminate a complaint as this section permits, particularly before evidence has been heard and tested by cross examination. The Tribunal should be cautious before doing this and so depriving the litigant of the chance to have the matter heard in the ordinary course. It should only do this where, for a reason mentioned in the section, it is satisfied that the proceeding is manifestly hopeless, undoubtedly untenable, doomed to fail or on no reasonable ground can justify relief.

Counsel for both respondents submits, and counsel for Dr Tan concedes, that the respondent to the second complaint is incorrectly named. That respondent should be the Crown in right of the State of Tasmania.
In my view, this does not justify the striking out or dismissal of the complaint. It is a technical matter which can be rectified by simply amending the respondent's name.
Counsel for the respondent to second complaint also submitted that I should take into account two kinds of prejudice which he says the State had suffered because of the incorrect naming of that respondent. The first was that the Commission, having unsuccessfully attempted to conciliate the first complaint, appeared to have treated the second complaint as being effectively the same claim, but against the hospital. Because of this similarity, the Commission considered the second complaint unlikely to be successfully conciliated. No opportunity had therefore been given at the Commission stage to attempt conciliation of the second complaint. I do not consider that this matter is relevant to whether or not the proceeding should be struck out (in the sense of the complaint being manifestly hopeless). What it is really asking for is a review of the Commission's conduct, something which VCAT has no power to do. This is conduct which has nothing to do with the complainant.
The second kind of prejudice is this. It is said that staff of the Hospital received documents from the Commission concerning the second complaint. But they thought that those documents concerned the first complaint. The result was that the State did not become aware of the second complaint until shortly after that complaint was referred to VCAT. Again, I do not consider this relevant to whether or not this complaint is manifestly hopeless. This issue concerns conduct of the respondent's staff, and has nothing to do with the complainant.

I first set this issue in context. The parties are agreed as to this context. When Dr Tan applied for the locum position at RHH, she was living and working in New South Wales. She also had a flat in Melbourne where she lived from time to time. The locum position for which she applied was located in Hobart, and the application was made to a Hobart hospital, and was decided by Dr McArdle in Hobart. Dr Tan alleges that the reason (or a substantial reason) for Dr McArdle's decision on the application concerned Dr Tan's complaint of sexual harassment made under the Victorian EO Act, and what happened at the VCAT hearing of that complaint.
The parties are agreed as to what the relevant law is. They disagree as to its application. The law is this.[2]
The Victorian parliament has legislative competence to make laws for the peace, order and government of the state which have extra-territorial effect.[3] But there is still a presumption that a state law does not operate extra-territorially unless a contrary intention appears (either expressly or by necessary implication). One reason for this presumption is that parliament is not presumed to legislate where it does not have effective control. Even if parliament intends to legislate with extra-territorial effect, the law, to the extent to which it operates extra-territorially, must have real connection with the state, although that connection can be general or even remote.
The objectives of the EO Act (under s3) include to promote acceptance and recognition of everyone's right to equality of opportunity, to eliminate (as far as possible) sexual harassment, and to provide redress for people who have been sexually harassed.
Sections 96 and 97(1) provide -

(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-

(b) has brought any other proceedings under this Act against any person;

(d) has attended a compulsory conference at the Tribunal;

(e) has otherwise done anything in accordance with this Act in relation to any person;

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

(g) has refused to do anything that would contravene a provision of

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

Under s97(3), a factor in s97(1) does not have to be the sole or dominant reason for the conduct, but must be a substantial reason for it. I have no doubt that the purpose of these provisions is to protect potential complainants from being deterred from asserting their rights under the EO Act or seeking redress for prohibited conduct because they fear that either the perpetrators of the conduct or others might harm or disadvantage them for doing so. If potential complainants are deterred from accessing the rights given by the Act, the protections which the Act gives will be undermined or even made useless.
Section 102 provides (among other things) that, where an employee or a person while acting as agent breaches s96, both the employer and employee and the principal and agent are taken to have committed the breach and a complaint may be made against either or both of them. This is how the second complaint is made against RHH.
It is submitted for the respondents that these complaints have too remote a connection with Victoria for the EO Act to apply. A contrary submission is made for Dr Tan.
In Ristevska, I said that, on its proper interpretation, the EO Act would apply where all or some of the elements of the relevant prohibition were within Victoria, but would not apply where none of those elements were within Victoria. I said this having regard to the Act's objectives, particularly that objective which seeks to provide redress to the victims of victimisation and discrimination, and also taking into account the Act's structure. In Ristevska, I was dealing with a complaint of discrimination. This case is different. It relates to victimisation under s96, which is quite differently defined.
To determine whether the EO Act applies, it is necessary to analyse the elements of a claim of prohibited victimisation under s96. Victimisation is defined in s97. In my view, the elements of victimisation are these.
The first is the perpetrator of the conduct (the victimiser). The victimiser must to do something which subjects another person (the victim) to a detriment.
The second is the victim. The conduct must be directed at and affect the victim by way of detriment.
The third is the reason for the conduct. The victimiser must engage in the conduct for one of the reasons listed in s97(1) (although there may well be other reasons). So, the fact that a complaint of discrimination or sexual harassment has been made is not in itself relevant, unless that complaint is a reason for that victimiser's conduct. The complaint must be an actuating factor in the victimiser's mind when he or she engaged in the conduct. If the complaint was not such a factor, the fact that the complaint was made and heard are irrelevant to victimisation.
Here, and taking Dr Tan's case at its highest, the decision not to offer her the locum position and the communication of that decision to her occurred in Tasmania. She received that communication in New South Wales. The detriment to her occurred either in Tasmania or in New South Wales. The Victorian complaint is relevant, not because it occurred or was lodged in Victoria, but only because it is alleged to have been a reason for Dr McArdle's conduct. It is a factor having to do with her, and the decision she made in Tasmania - not a factor having to do with Victoria. One must ask: what are the elements of victimisation, and where was each element located? Here, none of the elements of victimisation (as I have expressed them) occurred in Victoria. It follows that the EO Act cannot apply to these complaints. The Tribunal has no jurisdiction to entertain them. This lack of jurisdiction cannot be cured by amendment. The complaints must therefore be dismissed.
It was submitted for Dr Tan that such a conclusion was contrary to s35 of the Interpretation of Legislation Act 1984 (Vic) which requires a statute to be interpreted in a way that will promote (and not defeat) its underlying purpose or objects. I do not agree. My decision still leaves much work for the EO Act to do, in relation to matters within or partly within Victoria. But the reach of the EO Act is not unlimited. The Act does not apply where none of the elements of the relevant prohibition are within Victoria. For similar reasons, I do not agree with the submission for Dr Tan that my conclusion would defeat the objectives of the EO Act.
One must also remember that the EO Act does not operate in a vacuum. Outside Victoria, other anti-discrimination legislation operates - for example, in Tasmania, New South Wales and in the Commonwealth. It may well be that remedies are available to Dr Tan under that legislation.

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

[2] See for example Ristevska v Australian Olympic Committee Inc. [1996] VADT 34, and the cases cited in that decision; compare cases such as Brannigan v Commonwealth of Australia [2000] FCA 1591; (2003) 110 FCR 566, Vijayakumar v Qantas Airways Limited [2009] FMCA 736, where various Commonwealth anti-discrimination legislation was clear about where it applied

[3] See also Australia Act 1986 (Cth) s2(1)

Civil and Administrative Tribunal Act 1998

Opportunity Act 1995

Legislation Act 1984

Tan v McArdle & Anor

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Tan v McArdle & Anor (Anti-Discrimination) [2010] VCAT 248 (3 March 2010)

Parties

Legislation Cited (3)

Cases Cited (1)