1 Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 this complaint is struck out.

2 The Respondent's costs in relation to this application to strike out the complaint are reserved. The Respondent has liberty to apply for those costs. That application must be filed with the Tribunal and served on the Complainant on or before 5 December 2006.

1 This complaint is struck out. In my order, I have reserved the Respondent's costs and given the Respondent liberty to apply.

2 On 21 October 2006, Mr Tewoldebrhan lodged with the Equal Opportunity Commission (the Commission) a complaint under the Equal Opportunity Act 1995 (the EO Act). The complaint is against the Respondent, which I call 'Safeway'.

3 In December 2005, the Commission declined to entertain the complaint under s108(1) of the EO Act. This permits the Commission to decline a complaint which it considers frivolous, vexatious, misconceived or lacking in substance. Mr Tewoldebrhan, as is his right under the EO Act, required the Commission to refer the complaint to VCAT. It did so in February 2006.

4 According to the Commission and as stated in the complaint, Mr Tewoldebrhan claims that he was sexually harassed and discriminated against on the ground of his race in breach of the EO Act.

5 VCAT directed Mr Tewoldebrhan to file and serve particulars of complaint. He did so. Safeway has now applied under s75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) to have the matter struck out. It does so on all the grounds mentioned in s75(1). These are that a proceeding is frivolous, vexatious, misconceived, lacking in substance, or otherwise an abuse of process.

6 The principles which the Tribunal applies when dealing with applications under s75 of the VCAT Act were first set out by the Victorian Court of Appeal in Rabel v State Electricity Commission[1]. They have been followed in many VCAT cases. Relevantly to this case, they are these.

7 Section 75 permits the summary termination of a proceeding - here, a complaint. The Tribunal is cautious before doing this and so depriving the litigant of the chance to have the matter heard in the ordinary course. It will only do so where, for a reason set out in the section, it is satisfied that the case is manifestly hopeless, undoubtedly untenable, doomed to fail, or on no reasonable ground can justify relief. If a Respondent only alleges that there is a dispute as to certain issues, this is not enough to strike out the proceeding. Rather, the matter should go to a full hearing where evidence can be given and tested by cross-examination. On these applications, the Tribunal takes the Complainant's case at its highest and assumes that the Complainant will be able to prove what he or she asserts.

8 I first consider the material before me. I then discuss the parties' submissions and state my conclusion.

9 I have before me the complaint, the particulars of complaint, and written and oral submissions from the parties on the strike out application. At the commencement of the hearing of oral submissions, I referred Mr Tewoldebrhan (who is not legally represented) to the Legal Aid duty lawyer located on the same premises as VCAT. After consulting that lawyer, Mr Tewoldebrhan presented a further written submission at the hearing. Safeway's written submissions included an affidavit from Ms Steele, one of its regional human resources managers.

10 I now set out Mr Tewoldebrhan's claims, as clarified by his particulars of complaint and written and oral submissions. Mr Tewoldebrhan arrived in Australia from Eritrea in 1994. He became a permanent employee of Safeway in 1996. In 1999 he was working at Safeway's store in Acland Street, St Kilda. His claims are these.

a

In January 1999, on five occasions, and once in February 1999, Mr Comans, an assistant store manager at the St Kilda Store, made sexual advances to Mr Tewoldebrhan. Mr Tewoldebrhan refused these. Mr Tewoldebrhan claims that this constitutes prohibited sexual harassment under the EO Act.

b

In breach of s14 of the EO Act, Safeway directly discriminated against Mr Tewoldebrhan on the ground of his race in these ways -

i

On 15 February 1999, after Mr Tewoldebrhan had rejected a sexual advance from Mr Comans, Mr Comans pushed a supermarket trolley in Mr Tewoldebrhan's knee, injuring his knee.

ii

When Mr Tewoldebrhan asked Mr Comans why he had done what I have just described, Mr Comans called him a 'dumb cunt black'. There are different versions of this comment in the complaint and the particulars of complaint, with a slightly altered word order.

iii

In October 1999, Mr Comans attempted to terminate Mr Tewoldebrhan's employment with Safeway while Mr Tewoldebrhan was on annual leave. Misconduct was given as the reason for termination. Mr Comans told Mr Tewoldebrhan that the company did not like him.

iv

Employees of Safeway working in the dairy department of each store were entitled to a 'cold' or 'freezer' allowance. Mr Tewoldebrhan worked in the dairy department of the St Kilda store for two years before receiving this allowance, although requesting it many times.

v

It was Safeway's practice to give employees an award after five years' service. A Safeway employee (unnamed in the particulars of complaint) was presented with the five year service award in the staff tearoom, in front of other staff, and was also given a carton of beer. Mr Tewoldebrhan was presented with his five year service award at a service desk and was not given a carton of beer.

vi

In October 2001, Safeway attempted to change Mr Tewoldebrhan's roster from night shift to day shift, to remove his rostered days off, and to re-classify him as a cleaner.

vii

In January 2002, during a review of Mr Tewoldebrhan's position as a night-fill employee, a manager made false allegations about Mr Tewoldebrhan's competence, and Safeway then attempted to transfer him to a day shift position at the St Kilda store. This would have resulted in loss of penalty rates.

viii

Safeway did not comply with terms of settlement agreed between it and Mr Tewoldebrhan's union on his behalf. That union is the Shop Distributors and Allied Employees Association (SDA). The terms concerned rosters and rostered days off. They were signed in May 2002.

ix

In September 2003, after Mr Tewoldebrhan (who had always hitherto been punctual arriving at work) arrived ten minutes late for work because of his wife's illness, Safeway management attempted to have him sign a counselling form and, when he refused, sent him home from work. It is unclear how long he remained off work.

x

In October 2003, a Safeway employee, Mr Marshall, through a milk crate at Mr Tewoldebrhan.

xi

In November 2003, Safeway falsely alleged that Mr Tewoldebrhan had threatened Mr Marshall with a bladed carton opener. It suspended Mr Tewoldebrhan for three weeks while the incident was investigated.

xii

While working with Mr Marshall as his team leader, Mr Tewoldebrhan was isolated from other workers. Other workers were sent for meal breaks together, while he was sent for his meal breaks alone.

11 Mr Tewoldebrhan resigned with effect from 24 May 2005. He had not worked with Safeway since February 2004. He claims that, because Safeway made his working conditions unbearable, he had no effective choice but to resign, and in this way that Safeway constructively dismissed him. He also seeks compensation for various medical conditions which he alleged resulted from Safeway's treatment of him.

12 As clarified in his submissions, Mr Tewoldebrhan claims of race discrimination are based on his black colour. He says that he was the only black man working at the Safeway stores in which he worked from 1999 to 2004. When, during his oral submissions, I asked him why he thought Safeway had treated him in the way he alleged, he said that he wondered why, and that perhaps it was because they thought he was an idiot, or because Mr Comans had put bad things on his record, or perhaps because the company hated him, or perhaps because he was black.

13 Safeway denies all claims.

14 There are a number of statements in Ms Steele's affidavit and in the documents attached to that affidavit and to Mr Tewoldebrhan's submissions that are not in dispute. They are these.

15 During Mr Tewoldebrhan's employment with Safeway, there have been a number of disputes between him and Safeway. In many of these, the SDA has acted on his behalf. Some of these have reached the Australian Industrial Relations Commission (AIRC).

16 In 1999, through the SDA, Mr Tewoldebrhan claimed unfair or unlawful termination of employment. The matter settled and was discontinued in January 2000. The terms of settlement are in Mr Tewoldebrhan's submissions. They are between the SDA and Woolworths (Vic) P/L, which was the company then operating Safeway stores. The terms of settlement finalise the claim, provide for Mr Tewoldebrhan's reinstatement in employment with the company and for continuity of entitlements, and that the company agrees to investigate Mr Tewoldebrhan's allegations of race discrimination and sexual harassment against Mr Comans upon receiving from Mr Tewoldebrhan a detailed written statement of those allegations. There is nothing in the material before me to indicate that this detailed statement was provided.

17 In October 2001, the SDA (on Mr Tewoldebrhan's behalf) invoked the grievance procedure under the relevant enterprise agreement. The issues in dispute included alleged race discrimination by Mr Comans, loss of penalty rates by Mr Tewoldebrhan, change of his rosters and removal of his rostered days off, and failure to pay him the 'cold' or 'freezer' allowance. The company refuted the race discrimination claim, and the other issues were resolved by negotiation.

18 In April 2002, when Safeway attempted to transfer Mr Tewoldebrhan to its St Kilda store, the SDA (on his behalf) lodged notice of a dispute with the AIRC. This dispute was resolved in May 2002. The terms of settlement included the transfer of Mr Tewoldebrhan to Safeway's Camberwell store.

19 In November and December 2002, a dispute arose between the SDA (on Mr Tewoldebrhan's behalf) and Woolworths, in which the SDA claimed that the company had breached the terms of settlement of May 2002 concerning rosters and rostered days off. In May 2003, the SDA asked for the matter to be re-listed before the AIRC. After correspondence between the parties, that hearing was cancelled in July 2003.

20 More correspondence occurred between SDA and Safeway in November and December 2003. This concerned the carton-opener incident (see 10(b)(xi) above) and other matters. The carton-opener incident was resolved on the basis that it was minor, there was no proof that threats were made, and counselling was withdrawn. In this correspondence, the SDA raises the five year service award incident (10(b)(v)), the issue of isolation at meal breaks (10(b)(xii)), the milk crate incident (10(b)(x)), the lateness for work incident (10(b)(ix)) and the attempted termination of employment in 1999 (10(b)(iii)). The correspondence refers to race discrimination. Woolworths refuted the claims of race discrimination. There is nothing in the material to indicate that Mr Tewoldebrhan or SDA pursued the race discrimination claims at that time.

21 Further disagreement between the SDA and Woolworths about issues related to Mr Tewoldebrhan's employment continued into January 2004. In February 2004, Mr Tewoldebrhan left work on sick leave. A WorkCover claim was settled on 24 May 2005, at the time when he resigned.

The race claims - delay and of connection between race and treatment

22 Mr Tewoldebrhan claims prohibited direct discrimination on the ground of his black colour. Colour is included in the definition of 'race' in s4 of the EO Act. In the context of this case, the effect of s8 of that Act is this. Safeway will have directly discriminated against Mr Tewoldebrhan if it treated him (a black person) less favourably than, in the same or similar circumstances, it treated employees who were not black. Mr Tewoldebrhan's colour must have been a substantial reason for the treatment although it need not be the sole or dominant reason.

23 Safeway argues that these claims are manifestly hopeless, because of the lack of any material which expressly or by inference can be used to connect Safeway's treatment of Mr Tewoldebrhan with his black colour. Combined with this, there has been substantial or inordinate and unexplained delay in lodging the complaint.

24 I agree with Safeway's submission. Apart from one comment in February 1999 where, according to Mr Tewoldebrhan, Mr Comans referred to him as 'black' there are no express references to Mr Tewoldebrhan's colour in any of the material which he provides. I am not prepared to say that it would be open to a reasonable Tribunal, at hearing, to infer from the primary facts as alleged by Mr Tewoldebrhan that Safeway's treatment of him was based on his colour. On that material, there are, in my view, other explanations which are equally probable or more probable than this. Taking his case at its highest, and assuming that he can prove that Mr Comans made sexual advances at him which he rejected, this rejection is, in my view, a more probable reason for what he alleges to have been his treatment by Mr Comans. Again, assuming that he can prove that Safeway treated him less favourably than its other employees, a more probable reason for this treatment may be the long history of disputes between him, his union and Safeway. Mr Tewoldebrhan himself was uncertain why he was treated in the way he alleges. He offered several possible explanations which I have mentioned.

25 I combine these considerations with the delay in bringing the complaint. Read broadly, this is, in my view, a complaint of a pattern of race discrimination. The pattern starts with an allegation of conduct occurring in January and February 1999. It ends with an allegation of conduct occurring in November 2003. Race discrimination is mentioned many times in the correspondence between the SDA and Safeway. It is clear from that correspondence that Safeway refutes the claims of race discrimination. Although in a written submission Mr Tewoldebrhan says that the SDA did not advise him that he could complain under the EO Act, he did not give this as a reason for delay in his oral submissions. In these, he said that he had not lodged a complaint because the union and the company were having discussions and he was waiting on the outcome of those. On the material, he has clearly not been afraid to complain about his employment conditions, and has not been afraid to go to his union. I do not consider that there is a reasonable explanation for this delay. I consider that the delay is so substantial that to permit this complaint to continue would constitute an abuse of process. The pattern of discrimination began some six and a half years before the lodgement of the complaint, and ended some two years before its lodgement.

26 I also agree with Safeway's submission that, to the extent that these claims cover matters brought before the AIRC and then resolved between the parties, it would be an abuse of process to allow Mr Tewoldebrhan to re-agitate these claims after such a long period has elapsed. Safeway ought, by this time, to be allowed to proceed on the basis that the matters have been finally resolved or are not to be pursued.

27 This claim is not manifestly without substance. But I agree with Safeway that in the circumstances, the delay in bringing it is so substantial that it would be an abuse of process to allow the complaint to proceed given that there is no reasonable explanation for the delay. It is some six and a half years between the incidents alleged and the lodging of the complaint. I also take into account that the sexual harassment claim is mentioned specifically in the terms of settlement of January 2000 and that there is nothing in the material to indicate that, at that time, Mr Tewoldebrhan detailed his allegation as the terms of settlement contemplated.

28 I should add that I consider that Safeway's submission about the prejudice which it would suffer in defending itself against these claims, had they survived, to be somewhat exaggerated. From Ms Steele's affidavit, it seems that, although there might be some difficulty in locating certain documents, many of them have been retained. It also seems from that affidavit that, although some of the people who were Mr Tewoldebrhan's managers while he worked at Safeway have now left Safeway's employment, some have not. After all, these claims are specific in there nature. A Respondent wishing to defend them need not produce every document which existed at the relevant time, or call every employee as a witness. However, this does not alter my conclusion that the complaint should be struck out.

[1] [1998] 1 VR 102