Austin Health v Tsikos - [2023] VSCA 82

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0044

AUSTIN HEALTH	Applicant
v
CHRISTINA TSIKOS	Respondent

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JUDGES:	EMERTON P, WALKER JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2023
DATE OF JUDGMENT:	17 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 82
JUDGMENT APPEALED FROM:	[2022] VSC 174 (Richards J)

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DISCRIMINATION – Claim of direct sex and age discrimination in employment – Claim that applicant deprived respondent of opportunity to negotiate and receive salary above enterprise agreement – Requests to negotiate salary above enterprise agreement ‘blocked’ – Male colleagues paid salaries above enterprise agreement – Male colleague under respondent’s management paid significantly higher salary than her – Claim dismissed by Victorian Civil and Administrative Tribunal – Trial judge allowed appeal from Tribunal and remitted proceeding to Tribunal – Whether judge erred in finding Tribunal applied wrong test for direct discrimination – Whether judge failed to consider relevant matters – Whether judge erred in characterising claim as one of systemic discrimination – Whether judge erred in remitting proceeding – Whether judge erred in invoking Jones v Dunkel principle – Leave to appeal granted – Appeal dismissed.

Equal Opportunity Act 2010 ss 8, 10, 18; Victorian Civil and Administrative Tribunal Act 1998 s 148.

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235, distinguished.

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Counsel
Applicant:		Mr N A T Harrington with Ms S Fitzgerald
Respondent:		Ms L De Ferrari SC with Mr S Burt and Ms N Stojanova
Solicitors
Applicant:	K&L Gates
Respondent:	Kelly Workplace Lawyers

EMERTON P
WALKER JA
J FORREST AJA:

In January 2009, the respondent, Christina Tsikos, was employed by the applicant, Austin Health, in a clinical role as an orthotist/prosthetist. She was allocated the grade specified in the relevant enterprise agreement[1] and paid accordingly.
[1]Allied Health Professionals (Victorian Public Sector) Single Interest Enterprise Agreement 2016–2020 and its predecessor agreements.
On 12 July 2010, when she was 31 years old, Ms Tsikos was promoted to the role of manager of the Orthotic/Prosthetics Department (‘Department’). She was given a higher classification under the relevant enterprise agreement and paid in accordance with the rates specified therein.
Throughout her employment with Austin Health, Ms Tsikos was paid at, but not above, the rate provided in the relevant industrial agreement.
In her role as manager of the Department, Ms Tsikos managed 14 employees, 10 of whom were male. Of the 10 male employees, six were paid above the rates specified in the enterprise agreement (‘above-agreement remuneration’) and all were classified at a level higher than their role actually attracted.
One of the employees managed by Ms Tsikos was Sam Spalding, who was recruited in 2009. Mr Spalding, although he reported to Ms Tsikos, was paid significantly more than Ms Tsikos and at a rate that was well above the rate specified in the enterprise agreement. Mr Spalding was paid above-agreement remuneration because…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSCA 82
Decision Date: 17 April 2023

CaseChat Overview and Summary

The matter before the court was an appeal brought by Ms Tsikos against a decision of the Victorian Civil and Administrative Tribunal, which dismissed her claims of sex and age discrimination in employment against Austin Health. Ms Tsikos alleged that she was deprived of the opportunity to negotiate and receive a salary above the enterprise agreement because of her sex and age. The Tribunal found that Ms Tsikos had not established direct discrimination and dismissed her claims. Ms Tsikos appealed the Tribunal’s decision to the Supreme Court, which allowed the appeal and remitted the proceeding to the Tribunal. Austin Health then sought leave to appeal the Supreme Court’s decision to the Court of Appeal.

The court had to decide whether the Supreme Court judge erred in finding that the Tribunal applied the wrong test for direct discrimination, whether the judge failed to consider relevant matters, whether the judge erred in characterising the claim as one of systemic discrimination, whether the judge erred in remitting the proceeding to the Tribunal, and whether the judge erred in invoking the Jones v Dunkel principle. The court also had to determine whether the judge erred in allowing the appeal and remitting the proceeding to the Tribunal.

The court found that the Supreme Court judge did not err in finding that the Tribunal applied the wrong test for direct discrimination. The judge correctly identified that the Tribunal had applied a subjective test, rather than an objective test, for direct discrimination. The judge also correctly found that the Tribunal had failed to consider relevant matters, such as the evidence of male colleagues who were paid salaries above the enterprise agreement. The court found that the judge did not err in characterising the claim as one of systemic discrimination, as the claim involved a pattern of discriminatory conduct rather than a single act of discrimination. The court found that the judge did not err in remitting the proceeding to the Tribunal, as the Tribunal was in the best position to consider the evidence and make findings of fact. The court found that the judge did not err in invoking the Jones v Dunkel principle, which allows an appellate court to substitute its own findings of fact for those of the primary decision-maker if it is satisfied that the primary decision-maker’s findings were wrong. The court found that the judge had properly considered the evidence and made findings of fact that were open on the evidence.

The court found that the appeal should be dismissed, as the Supreme Court judge did not err in allowing the appeal and remitting the proceeding to the Tribunal. The court held that the Tribunal was in the best position to consider the evidence and make findings of fact, and that the judge had properly exercised his discretion in remitting the proceeding to the Tribunal. The court held that the appeal did not raise any question of law of general public importance that ought to be resolved by the Court of Appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

These attempts culminated in a sixth and final attempt by Ms Tsikos to negotiate her remuneration with Austin Health. On 26 June 2018,[16] Ms Tsikos wrote to Austin Health in the following terms:[16]The letter is dated 26 July 2018, but was sent on 26 June 2018 (the day prior to Ms Tsikos commencing a period of leave): Reasons, [63] n 39. Remuneration and Classification concern. As a committed, long term, engaged manager of the Orthotic and Prosthetic Department at Austin Health, I write to you as I would like to request the opportunity to engage in discussions regarding uplifting my classification and remuneration. A precedent has already been set for above award salaries at Austin Health with examples specifically within the O&P department. These are based on higher education, experience, qualifications, outcomes and skill sets. Three employees within O&P have had the opportunity to discuss uplifting their classification and/or remuneration. The three individuals are: 1. Mr Sam Spalding – Orthotist/Prosthetist 2. Mr Martin French – Technician 3. Mr John Paras – Technician This concern is not new. It has been a protracted process to get to this point with significant personal struggles with the conversations and responses received on behalf of Austin Health. The letter then recounted the series of occasions on which Ms Tsikos had questioned Austin Health’s management of her classification and remuneration. It concluded as follows:As a result of these numerous, long running, multifaceted and compounding instances, I would like the opportunity to resolve this in a structured, transparent and expeditious manner.I would like a written acknowledgement with next steps detailed on how we are going to progress this matter to resolution by Wednesday 11th July 2018. I would also like Austin Health to advise me on what measures can be put in place to address the past, current and future widening pay gap associated with my direct report Mr. Sam Spalding who will once again be performing my role during my upcoming planned leave. He is classified at a lower grade than me and has a difference in remuneration per annum of $41,000. As I embark on my next period of leave (June 29–Oct 29), I am once again reminded of the inequality in pay for performing the same role. …Thank you in advance for the opportunity to bring this to your attention. I look forward to reviewing your resolution proposal. On 17 August 2018, Ms Tsikos received a letter in response from Brit Gordon, the Divisional Director of Allied Health, on behalf of Austin Health, which stated as follows: In your letter you raise a number of points regarding both your pay and the pay of individuals in your team. On receipt of your letter, I requested Employee Relations review these points and provide me a response on the matters you have raised. Employee Relations have confirmed the following —1. On commencement with Austin Health you were incorrectly graded, however this error was rectified and the appropriate backpay was provided when your grade was amended.2. The change to your Grade title in September 2017 as a result of changes to the new [enterprise agreement] which no longer included the term/grade Chief. This change impacted all Health Professionals who previously had a job grade with the term chief. I acknowledge that communication may have been improved around this change, particular[ly] in light of the fact that you were on leave when this occurred.3. The over award payments that Martin French and John Paras currently receive are due to transitioning them to a more appropriate [enterprise agreement] and grandfathering their salary. The decision to move these staff was made by Employee Relations and the salaries for both staff were unchanged in this process.4. The salary of Sam Spalding is recognised as being an anomaly. I am continuing to pursue what can be done with respect to this situation.In response to the concerns you raised regarding your conversations with JoAnne Moorfoot, I am sincerely sorry that this was your experience but as you know, I am unable to comment on these conversations as I was not involved in them at the time.