Finch v The Heat Group Pty Ltd

[2010] VSCA 256

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0100

JO-ANNE FINCH	Applicant
	v
THE HEAT GROUP PTY LTD	First Respondent
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GILLIAN FRANKLIN	Second Respondent
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PETER KADLECIK	Third Respondent
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ADAM WHITE	Fourth Respondent
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JOHN SIMCOCKS	Fifth Respondent

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JUDGES	WARREN CJ, MANDIE JA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 September 2010
DATE OF JUDGMENT	5 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 256
JUDGMENT APPEALED FROM	Finch v The Heat Group Pty Ltd [2010] VCAT 802

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EQUAL OPPORTUNITY – Victimisation claim dismissed by VCAT – Application for leave to appeal on a question of law – Whether any questions of law identified – Leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr G R McCormick	Frank Sanna & Associates
For the Respondents	Ms D Mortimer SC with Ms D A Siemensma	Minter Ellison

WARREN CJ
MANDIE JA:

1. The applicant (Ms Finch) seeks leave to appeal on questions of law against the orders of the Victorian Civil and Administrative Tribunal (‘VCAT’) constituted by a Vice President thereof.  The matter heard by VCAT involved a series of claims brought by Ms Finch against her former employer, the first respondent the Heat Group Pty Ltd, under the Equal Opportunity Act 1995 (Vic) (‘the Act’). The claims were also brought against the other respondents who were officers or employees of the first respondent. Ms Finch had alleged, inter alia, that she had been discriminated against on the basis of her sex and her pregnancy and she also alleged that she had been victimised as a result of making complaints under the Act.

1. The VCAT hearing took place over some 20 days and in a 142 page decision the Tribunal dismissed all of Ms Finch’s claims[1] and, in the course of doing so, the Tribunal substantially rejected Ms Finch’s evidence saying, among other things:[2]

In my view the cross-examination revealed [Ms Finch] as a witness of little credibility.  She forcefully claimed that she had been subjected to unlawful discrimination.  Yet she was prepared to change her evidence as to crucial events when confronted by emails which did not support the accuracy of her expressed views.

There are many occasions in which she was caught out in what appeared to me to be a significant stretching of the truth [and] … on which it seemed to me that she was evasive in answering questions and attempting to fashion what she thought was the best answer to fit the way in which she had pleaded her case.

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

[2][2010] VCAT 802, [78]-[79] – the Tribunal went on to list numerous specific examples said to support these conclusions.

1. The reasons of the Tribunal were careful and comprehensive.  The Tribunal was painstaking in identifying and particularising each of the allegations made by Ms Finch in a context in which there was a plethora of such allegations and a lack of clarity in delineating each of them.  The Tribunal then dealt with each of the complaints, so identified, and considered the evidence in relation to each of them. 

1. The application for leave to appeal is expressly limited to the dismissal of Ms Finch’s victimisation claim, as against the first, second and fourth respondents, brought pursuant to ss 96 and 97 of the Act. The specific act of alleged victimisation that is the subject of the application for leave to appeal is the sending of a warning letter to Ms Finch by the first respondent dated 4 January 2007. It is convenient to quote directly from the first written outline of argument filed on behalf of Ms Finch.

[Ms Finch] does not seek to appeal against all of the findings made against her by the trial judge. She instead only seeks leave to appeal against the dismissal of her victimisation claim, brought pursuant to sections 96 and 97 of the Equal Opportunity Act 1995 (Vic), in respect of the letter dated 4 January 2007 purporting to be sent by reason of [Ms Finch’s] failure to perform in her employment with the first respondent. Further insofar as she also, in her victimisation claim, alleged victimisation from other acts or omissions of the respondents, she does not seek to appeal against her Honour’s dismissal of those claims except so far as the allegation that the respondent was seeking to ‘manage her out’ forms part of the allegation made of victimisation arising from the 4 January letter.

1. It can be seen from the above extract from the outline of argument that the only act of alleged victimisation with which this application is concerned is the sending of the letter dated 4 January 2007. 

1. Sections 96 and 97 of the Act, so far as relevant, provide:

96       A person must not victimise another person.

97(1)A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person … -

(a)has made a complaint against any person;

…

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

…

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

(2)It is sufficient for subsection (1)(f) 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 as long as it is a substantial reason …

1. Ms Finch submits that it was not open to the Tribunal to hold (as it did) that there was ‘no evidence at all’ that pointed to Ms Finch intending to allege any contravention.  This submission relies upon an email from Ms Finch to the CEO of the first respondent (the second respondent) dated 12 October 2006 in which she apologised for not being able to attend a meeting that day and expressed her concern about this meeting and ‘previous events that have caused this unfortunate situation of me becoming unwell again, due to this incident and others that to date, remain unaddressed’.  The email then refers to a discussion between her and the fourth respondent concerning an earlier request that week for a meeting to address her performance ‘again’.  The email then recounts a meeting two weeks earlier with the fourth respondent in which her performance had been addressed and she gives details of what was said at that meeting.  Most of the matters set out in relation to that earlier meeting relate to her sales performance, leadership, management and the like but included the following passage:

[The fourth respondent] then started questioning me about maternity leave, how it works, how long I expected to be off work etc.  I tried to clarify, but felt uncomfortable that he wasn’t aware of government and [first respondent] policies and the support as an employer of choice that you offer, in regards to support for pregnancy and women in the workplace.

1. In the email dated 12 October 2006, Ms Finch goes on to defend her work performance in detail.  She then goes on to refer to her pregnancy and says that she is concerned that she has now had to sit through three meetings (whilst pregnant), ‘the one today being the fourth over the last few months’ and that during those meetings ‘I have been dealt with in an inappropriate manner’.  The lengthy email goes on to refer to the ‘undue stress’ caused to her by the meetings and her ‘not being treated appropriately’.  Finally the email says:

I feel that I am being bullied and intimidated against, which unfortunately has then and continues to, lead to undue stress, anxiety and upset for me.  This affects my health and possibly, the wellbeing of my unborn child.  I would also like to note, that on numerous occasions, executives/senior management have commented how well I perform and should be promoted within your company.  My dedication and performance have not changed suddenly in four years Gillian.

This should be the happiest time of my life and a reason to be joyous.  I just wish to be treated equally, as are others and to continue to perform my role, without being caused undue stress … I am unsure as to why I have been treated in this matter and am looking for resolution so I can move forward. (emphasis added)

1. Ms Finch submits that a fair reading of the email is that it contains allegations of contraventions of the Act or statements that show an intention to make such allegations. Ms Finch submits that her pregnancy, (and by inference, her sex) are identified in the email as attributes in respect of which she was alleging discrimination or intending to allege discrimination. Ms Finch submits that the Tribunal therefore erred in law in holding that there was ‘no evidence at all’ that Ms Finch alleged or intended to allege acts or omissions that would constitute a contravention of the Act.

1. We consider that it is faintly arguable that, on a fair reading, this email contains allegations of acts or omissions constituting contraventions of the Act. That is to say, it could perhaps be argued that Ms Finch was alleging that she had been discriminated against by reason of her pregnancy. On balance, however, we do not think that is a reasonable construction of the email read as a whole. It is more strongly arguable, perhaps, that the contents of the email are capable of suggesting an intention to allege such contraventions in the future.  However, for reasons which follow, even if this email were regarded as containing an allegation or allegations of a contravention or contraventions or as evincing an intention to make such an allegation or allegations, other fact findings made by the Tribunal preclude reliance upon the contents of the email as grounds for leave to appeal.

1. In an amended outline of argument, Ms Finch argued that the following question of law was raised by the Tribunal’s decision:

Do ss 97(1)(f) and 97(2) require that an allegation of contravention of Part 3 of the Act be an allegation that has some merit, or does it instead suffice for the purposes of the provision that there by an allegation simpliciter (not being an allegation that was false or not made in good faith)?

1. Ms Finch submitted that the correct answer to the question was that it was sufficient for the purposes of ss 97(1)(f) and 97(2) that there be ‘an allegation simpliciter (not being an allegation that was false or not made in good faith) but that the allegation did not have to have ‘some merit’. The problem with this submission is that the Tribunal did not take a contrary view. In paras [792] to [793] of the Tribunal’s reasons, the Tribunal emphasised the importance of the victimisation provisions and then said that, as a result of such importance:

This principle is so important that, as I have pointed out, a claim for victimisation can succeed … even if the allegation of discrimination is not itself made out. 

1. Counsel for Ms Finch accepted that this passage was correct but submitted that the Tribunal subsequently had misdirected itself by departing from this principle.  We do not think that a careful reading of the reasons for decision bears out that analysis.  The Tribunal did not stray from the principle as expressed above. 

1. The first outline of argument on behalf of Ms Finch listed seven proposed grounds of appeal but the amended outline listed only three as follows:

(a)Her Honour’s finding that there was no evidence at all that [Ms Finch] was alleging that there was a contravention of [the Act] was a finding not open to her having regard to the fact that [Ms Finch’s] email to the second respondent of 12 October 2006 expressly mentioned her pregnancy and accordingly constituted an error of law;

(b) Her Honour erred in law in holding that it was necessary in terms of section 97(2) of [the Act] that any allegation of contravention identify the attribute relied upon;

(c)Her Honour erred in law in holding that the email of 12 October 2006 did not meet the requirements of ss 97(1)(f) and 97(2).

1. Although, as we have said, we do not think that the question of law set out in para [11] above is raised by the Tribunal’s decision, it is necessary to consider whether any of these three proposed grounds of appeal in themselves identify questions of law that are raised by the decision.

1. As regards proposed ground (a), we have already indicated that it is of insufficient substance but that for other reasons it cannot in any event assist in raising grounds for overturning the Tribunal’s decision in relation to victimisation.  The reason for that is as follows.

1. At the time that the letter of 4 January 2007 was sent, Ms Finch had already filed a complaint with the Equal Opportunity Commission. If one reason for the sending of the letter dated 4 January 2007 was the fact that Ms Finch had alleged a contravention of the Act, then it was irrelevant to rely upon the October 2006 email when a formal complaint to the Equal Opportunity Commission had subsequently been made. In that regard, the Tribunal found that the making of the complaint to the Commission was not a reason for the sending of the letter. That factual finding is not challenged by the proposed grounds of appeal and necessarily precludes the contention that the sending of the letter was actuated by an email some months earlier.

1. As regards proposed ground (b), we do not think that it is arguable that the Tribunal erred in law by holding that it was necessary that any allegation of contravention identify the attribute relied upon.  As we read the Tribunal’s decision, that requirement simply meant that it was not possible to state the acts and omissions said to constitute an alleged contravention without in some way identifying the attribute in respect of which the discrimination had occurred, and that must be right.

1. As regards proposed ground (c), this ground is simply a repetition of proposed ground (a).

1. In our opinion, the three proposed grounds of appeal do not identify any question or questions of law that are raised by the Tribunal’s decision.  We do not think that the Tribunal’s decision is attended by sufficient doubt as would justify a grant of leave to appeal.

1. For the foregoing reasons, leave to appeal is refused.

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