He v Envelopments Pty Ltd
[2004] VSC 457
•11 November 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9398 of 2003
| DAMING HE | Appellant |
| v | |
| ENVELOPMENTS PTY LTD, FERGUS RAMSAY, TAMAS HUME AND JOHN WILSON | Respondents |
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JUDGE: | Williams J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 May, 29 July, 2 and 9 September 2004 | |
DATE OF JUDGMENT: | 11 November 2004 | |
CASE MAY BE CITED AS: | He v Envelopments Pty Ltd & ors | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 457 | First Revision: 22/11/04 |
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TRIBUNALS – Appeal from Master – Whether leave to appeal should be granted - Whether error of law established – Whether real or significant argument justifying leave – Leave refused – s 148 Victorian Civil and Administrative Tribunal Act 1998 – s 3, s 6, s 7, s 8, s 9, s 10, s 14, s 96, s 97, s 98, s 99, s 102 Equal Opportunity Act 1995 – s 170HB Workplace Relations Act 1996 (Cth).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Appellant in Person | |
| For the Respondent | Mr A. McNab | Middletons |
HER HONOUR:
This is an appeal from a decision of Master Wheeler on 5 May 2004 dismissing an application for leave to appeal brought under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) from the decision on 28 November 2003 of the Victorian Civil and Administrative Tribunal (“VCAT”) constituted by Mr Walker sitting in its Anti-Discrimination List (“the Tribunal”).
The appellant’s claim
The appellant (“Mr He”) is and was at all relevant times a mechanical engineer. His claim at VCAT related to his employment by the first respondent engineering company (“Envelopments”) and its termination. Mr He had originally brought his claim in the Equal Opportunity Commission which had declined to hear it. The complaint had been referred to the Tribunal at Mr He’s request. Whilst s 108 of the Equal Opportunity Act 1995 (“the Equal Opportunity Act”) provides for such a referral after the Equal Opportunity Commission has declined to entertain a complaint, it is not clear from the material before the Court under which provision the referral was made. S 134 of the Equal Opportunity Act provides that VCAT may hear a complaint referred to it by the Equal Opportunity Commission.
Mr He represented himself before the Tribunal and had drawn his own documents. His claim was set out in a document entitled “Particulars of Complaint”. The Tribunal described his complaint in relation to alleged breaches by the respondents of s 6, s 7, s 8, s 9, s 14, s 96, s 97, s 98, s 99 and s 102 of the Equal Opportunity Act as being one made “on the basis of race … that he was paid less than he should have been paid and that he was subject to unfair warnings …”.
On 28 November 2003 the Tribunal dismissed his complaint and gave written reasons for the decision (“the Reasons”).
The claim relating to the termination of Mr He’s employment
The Tribunal declined to entertain a claim by Mr He in relation to the termination of his employment, on the basis that it had already been determined by the Australian Industrial Relations Commission (“the AIRC”). The Reasons referred, in this regard, to the operation of s 170HA and s170HB of the Workplace Relations Act 1996 (Cth) (“the Workplace Relations Act”) and to VCAT decisions in Ruddell v DHS[1] and Mondio v Toyota Motor Corporation[2].
[1][2001] VCAT 1510 (20 June 2001).
[2]VCAT (unreported- March 1999).
Commissioner Lewin had made orders in the AIRC under s 170CE of the Workplace Relations Act in relation to the termination of Mr He’s employment by Envelopments. Commissioner Lewin had found that the termination was “harsh unjust and unreasonable” and had ordered that Mr He be paid the amount of $13,000, in lieu of the reinstatement which he declined to order. Despite his success, Mr He had sought a further $13,000 in lieu of reinstatement in an appeal to a Full Bench of the AIRC. On 23 December 2002 the Full Bench had refused him leave to appeal from the AIRC decision. Mr He had then sought relief from the High Court by way of mandamus and certiorari “or constitutional relief” against Commissioner Lewin and the Full Bench. On 28 March 2003 Hayne J had remitted the application to the Full Court of the Federal Court. The Tribunal’s decision was given later, on 28 November 2003.
I note for completion that, on 21 June 2004, after the Master’s 5 May 2004 dismissal of Mr He’s appeal from the decision of the Tribunal, the Full Federal Court granted his application for an order nisi in relation to the AIRC proceedings[3]. The Full Court ordered, however, that if Envelopments paid Mr He the sum of $13,000 within 21 days of 21 June 2004, the orders sought in the application would be refused. If the payment was not made in compliance with the order, then the orders of Commissioner Lewin and the Full Bench would be quashed and Mr He’s application would be remitted to Commissioner Lewin for rehearing.
[3]He, in the matter of an application for Writs of Mandamus and Certiorari or Constitutional Relief against Lewin [2004] FCAFC 161.
The material before the Court
Mr He relied upon his affidavit sworn on 18 December 2003 in support of his application before the Master and before the Court. The affidavit sought initially to state what was described as the “Factual Backgrounds of Discrimination” to the application. It then exhibited the Reasons which Mr He sought to summarise in the affidavit. The affidavit set out “The Appeal Grounds” in paragraphs 24 to 48 and it also exhibited a document dated 18 December 2003 described as “a proposed notice of appeal”.
A further notice of appeal relied upon before the Master was dated 21 April 2004. A different notice of appeal dated 21 May 2004 (“the Notice of Appeal”) was relied upon in the appeal to the Court. No point was taken by the respondents in relation to differences between the various notices.
I note in relation to the Notice of Appeal that there appear to be a number of grammatical and spelling errors in the statements of the grounds of appeal and the particulars given under each ground (“the Particulars”). However, when the contents of the document are quoted they will be set out verbatim in this judgment, without the specific identification of apparent errors which might be distracting, given their number.
Factual background
There was dispute between the parties as to the facts, but certain matters were apparently uncontentious.
It was common ground that Mr He was a Chinese man who had been educated in China as a mechanical engineer. He had later been admitted to the degree of Master of Engineering at the Royal Melbourne Institute of Technology. The second respondent (“Mr Ramsay”) controlled an engineering company, AMS Polycraft Pty Ltd, which had been working on the development of a folding machine to produce a continuous stationery product. Mr He had been employed in 1994 by AMS Polycraft Pty Ltd, to work on the development of the machine. The fourth respondent (“Mr Wilson”) controlled Envelopments which had held the patent in relation to the continuous stationery product. Eventually, in about 1997, Envelopments had taken over the engineering business of AMS Polycraft Pty Ltd and Mr He had become its employee.
The third respondent (“Mr Hume”) was a work colleague of Mr He who had been engaged by AMS Polycraft Pty Ltd as a consultant. Mr Hume had obtained a diploma of industrial design from the institution which had become Swinburne University by November 2003. In 1998 Mr He became aware that Mr Hume was paid considerably more than he and Mr He complained to Mr Wilson who was at all relevant times a director of Envelopments.
A meeting took place in about October 1998 at which Mr He’s complaint was discussed. What was agreed at the meeting was a matter of contention in subsequent legal proceedings between the parties. However it was common ground that Mr He’s salary was increased in November of 1998. In mid 1999 Mr Hume was promoted to the role of chief executive officer of Envelopments and became Mr He’s superior. As can be seen from the challenges made to the Tribunal’s factual findings in the grounds in the Notice of Appeal, there is little common ground as to what then transpired. However it is not in dispute that Mr He’s employment was subsequently terminated on or about 29 January 2002 and that he had brought the claim in the AIRC under s 170CE of the Workplace Relations Act in relation to the termination.
Leave to appeal
S 148(1) of the VCAT Act provides that a party to a proceeding before VCAT may appeal on a question of law from an order of the Tribunal, if the Court gives leave to appeal.
In Secretary to the Department of Premier & Cabinet v Hulls; Secretary to the Department of Treasury & Finance v Hulls[4] Phillips JA said:
“When leave is sought to appeal under s.148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent; that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will be more readily discernible.”[5]
[4][1999] 3 VR 313.
[5][1999] 3 VR 313 at 337.
It is proposed to consider each of the grounds in the Notice of Appeal in order to determine whether Mr He should be granted leave to appeal.
Alleged errors of fact
The Notice of Appeal contained 28 statements of what I have described as grounds of appeal and two paragraphs under the heading “conclusions”. The Particulars set out under the statement of each ground referred inter alia to evidence at the Tribunal hearing which might arguably have supported different findings and conclusions from those made and arrived at by the Tribunal. The Particulars were too lengthy for them to be set out in this judgment, but specific reference will be made to some of the material included in them.
The first 18 grounds of appeal set out in the Notice of Appeal alleged that the Tribunal had “erred in fact”.
An error of fact will give rise to an error of law only if the challenged finding of fact was not reasonably open on the evidence: see Spurling v Development Underwriting (Vic) Pty Ltd[6]; S v Crimes Compensation Tribunal[7] and Lockwood Dell Pty Ltd v Valastro[8]. Phillips JA explained the distinction between questions of fact and law in S v Crimes Compensation Tribunal[9] where his Honour said:
“It cannot be said as a matter of legal principle that a determination of fact can never give rise to an error of law, but ordinarily it will not do so unless it is shown that the fact-finding Tribunal arrived at a finding that simply was not open to it.”
[6][1973] VR 1 at 11 per Stephen J.
[7][1998] 1 VR 83 at 91 per Phillips JA.
[8][2004] VSC 197 at [6] – [8].
[9][1998] 1 VR 83 at 89.
Mr He made oral submissions on the appeal. He represented himself. He appeared to accept the point that no appeal from a factual decision of the Tribunal was available under s 148 of the VCAT Act. He did not argue that any question of law was raised in the first 18 grounds. Nor did he contend that any of the alleged factual errors referred to in grounds 1 to 18 were not open on the evidence. Nevertheless, I propose to consider each of the grounds in the Notice of Appeal.
Ground 1:
“The Tribunal erred in fact that I practiced as an engineer in China for about 6 years (par 1)”.
In my view, there was evidence before the Tribunal which might be reasonably regarded as supporting such a finding. The Tribunal transcript recorded the appellant’s own evidence that he had worked in China as a mechanical engineer for three years[10]. However I note that handwritten annotations in the transcript altered the word “three” to “seven”. Mr Ramsay, director of Envelopments, agreed under cross-examination by Mr He with the proposition put to him that Mr He had had seven years of experience as an engineer[11].
[10]T 28 l 15.
[11]T 476 l 1.
Accordingly, I am not satisfied that the challenged finding was not reasonably open on the evidence.
Ground 2:
“The Tribunal erred in fact that the Company was involved in research and development (pars 2 and 4).”
AMS Polycraft Pty Ltd was the company in question. The evidence referred to in the Particulars to this ground itself indicates that the finding was reasonably open. The Particulars referred to evidence of an advertisement for Mr He’s position which described the company as “a small research and development organisation” and to Mr Wilson’s evidence that the company was a small research and development company. There was also evidence in Mr Wilson’s witness statement that Mr He was employed by the engineering company AMS Polycraft Pty Ltd “to do research and development”.
Once again, I am not satisfied that the challenged finding was not reasonably open on the evidence.
Ground 3:
“The Tribunal erred in fact that: ‘On his own evidence it is not uncommon for an engineering graduate to begin his career operating a machine in a factory on fairly low wages’ (par 5)”.
This ground is difficult to understand. However, in so far as any finding of fact can be discerned from the quoted extract from the Reasons, it might reasonably be regarded as being supported by Mr He’s own evidence referred to in the Particulars to the effect that “a lot” of graduate students were employed by the company before they found professional work[12]. Mr He also gave evidence that as a machine operator he earned approximately $26,000 per annum.
[12]T 492 ll 7-12.
I am not persuaded that that finding was not reasonably open on the evidence.
Ground 4:
“The Tribunal erred in fact that: ‘At the time he was interviewed for the job, Mr He was working as a machine operator on a wage of $26,000 per annum’ (par 5)”.
In paragraph 5 of Mr He’s witness statement in the Tribunal hearing dated 17 September 2003 he referred to a starting salary of $26,000 when he commenced working with AMS Polycraft Pty Ltd. Mr Ramsay’s witness statement included the allegation in paragraph 5 that Mr He had stated during his interview for the job at AMS Polycraft Pty Ltd that he was currently working as a machine operator. Further, Mr He prefaced a question in cross-examination to Mr Ramsay by referring to himself as a machine operator and to an hourly rate of $13 being “roughly $26,000.00 a year”[13].
[13]T492 ll 6-8.
Accordingly, I am not persuaded that the Tribunal’s finding of fact was not reasonably open on the evidence.
Ground 5:
“The Tribunal erred in fact that: ‘Mr Ramsay offered to pay him the same amount for a trial period of three months’ (par 5)”.
Paragraph 7 of Mr Ramsay’s witness statement supported the challenged finding. The Particulars under ground 5 relied upon some corrections having been made by Mr Ramsay to parts of his witness statement, under cross-examination by the appellant. However, the evidence as to Mr Ramsay’s concessions did not necessarily discredit the balance of his witness statement.
Mr He gave evidence to the Tribunal that he could not recall that a trial period had been agreed upon[14] and that he did not agree that Mr Ramsay had mentioned a trial period of three months during his interview, on the basis of his memory[15]. Nevertheless, he did not persuade me that the challenged finding was not reasonably open on the evidence.
Ground 6:
“The Tribunal erred in fact that ‘Mr Hume took Mr He sailing’ (par 10)”.
[14]T 28 l 8.
[15]T30 ll 24-25.
Taking into account the evidence referred to in the Particulars and Mr Hume’s evidence that he had a little catamaran and that he took Mr He out sailing[16], Mr He has not persuaded me that the conclusion was not reasonably open on the evidence.
Ground 7:
“The Tribunal erred in fact that Mr Wilson’s, a director of the company, note ‘reflect the agreement reached’ in the meeting, which I sought with Mr Wilson (par 10)”.
[16]T 333 ll 19-21.
As noted above, there was dispute between the parties as to what was agreed at a meeting held in or about mid 2000 at which Mr He’s complaints about his remuneration were discussed. Mr Wilson’s evidence was to the effect that he had made a note recording the agreement reached at the meeting in relation to Mr He’s remuneration. The Tribunal was satisfied that Mr Wilson’s note reflected that agreement.
Accordingly, despite the reference in the Particulars to Mr He’s evidence to the effect that a different agreement had been reached at the meeting, he did not persuade me that the challenged conclusion of the Tribunal was not reasonably open on the evidence.
Ground 8:
“The Tribunal erred in fact that Mr Wilson forgot the negotiation of the pay increase in January 1999 (par 11)”.
The alleged finding was not made. Rather, the Tribunal stated a supposition in paragraph 11 of the Reasons:
“In his evidence Mr Wilson suggested that any pay increase would have been dependent upon Mr He’s performance and in particular, on the development of a new folding machine, but I think it is more likely that he forgot about the matter.”
Ground 9:
“The Tribunal erred in fact by stated that my salary review had been promised (par 13 and 15). In fact Mr Wilson promised pay increase.”
The Tribunal found that there had been a meeting between Mr He and Mr Wilson in about October 1998 at which Mr He’s remuneration had been discussed. The Tribunal found in paragraph 10 of the Reasons that a note made by Mr Wilson, and subsequently given to Mr He, reflected the agreement reached at the meeting. The note did record agreement to increase Mr He’s salary. It also recorded an agreement that between 1 and 4 January 1999 Mr He and Mr Wilson would negotiate a further pay increase.
Given the evidence of the contents of the note, I am not persuaded that the Tribunal’s finding was not reasonably open on the evidence.
Ground 10:
“The Tribunal erred in fact that when Mr Hume was appointed Chief Executive Officer (the ‘CEO’) of the Company the relationship between Mr Hume and I had deteriorated (par 12).”
In paragraph 12 of the Reasons the Tribunal referred to the evidence of criticism by Mr He of Mr Hume and vice versa.
Having taken into account those matters and the evidence as a whole, I am not persuaded that the finding that the relationship between the two had deteriorated was not reasonably open on the evidence.
Ground 11:
“The Tribunal erred in fact that Mr Hume’s Diploma equivalent of a Bachelor’s Degree (par 13).”
Mr Hume gave evidence that he had completed a four year industrial design course at what, by the time of the hearing, was Swinburne University, but had previously been Prahran College which could not confer a degree. His evidence was that his diploma course had (by the time he gave his evidence) become a degree course[17]. This unchallenged evidence was given under cross-examination by Mr He. The Tribunal accepted that Mr Hume’s diploma “would now be the equivalent of a Bachelor degree”.
[17]T356 ll 4-17.
I am not persuaded that the conclusion was not reasonably open on the evidence.
Ground 12:
“The Tribunal erred in fact that I was already resentful and the promotion of Mr Hume aggravated the strong resentment (paras 13 and 14).”
In my view, the evidence as a whole, including some of that referred to in the Particulars, indicates that it was clearly reasonably open to the Tribunal to reach the stated conclusion. Indeed, Mr He’s own witness statement included the following:
“24One day in 1998 I found a budget paper of the Company was left on my desk. It indicated that Mr Hume was getting paid more than $80,000 ($40 on an hourly rate), whereas my salary had remained unchanged at $35,000 ($17 on an hourly rate) since 1994 despite my high achievements.
25.I brought the Company’s budget to Mr Wilson, the managing director of the Company and said to Mr Wilson that Mr Hume earned more than double what I earned; I could not bear it.”.
Ground 13:
“The Tribunal erred in fact that in June 2000 when Mr Ramsay asked me to design new machine, I ‘responded by saying that if he was only to be paid as a machinist that is all he would do’ (par 15). And the Respondents made a decision that I would not actively involve the development of the machine (par 16).”
The Particulars contain allegations that Mr Ramsay did not give evidence of any such conversation in June 2000. However, there was evidence in Mr Hume’s witness statement that Mr He had said that he was entitled to a pay rise before performing any design or development work on the new machine and that he would only work as a machine operator and not as a development engineer[18]. The witness statements of Mr Wilson and Mr Ramsay also addressed the appellant’s refusal to perform certain work.[19] There was evidence from Mr Ramsay in response to a question from the Tribunal to the effect that in mid 2000 it was not one of Mr He’s duties to be involved in research and development[20]. Further there was evidence from him under cross-examination by Mr He that, after he returned from Germany in mid 2000, Mr He had informed him that he couldn’t develop the new machinery because the “mental balance” was wrong[21].
[18]Notice of Appeal at paragraph 7.
[19]Witness statement of Wilson at paragraph 8; Witness statement of Ramsay at paragraphs 11-12.
[20]T530 ll 12-21.
[21]T538 l 31-539 l 21.
Paragraph 16 of the Reasons refers to the decision by the directors that the company “would not actively involve its only qualified engineer in their development [of two machines]”. This conclusion was criticised as “[making] little sense” by the Tribunal.
There was evidence from Mr Ramsay, under cross-examination by Mr He, to the effect that the company had no choice but to make the development of the new machine the responsibility of Mr Hume and Mr Ramsay, because Mr He had informed Mr Ramsay that “the balance was not right, that the sort of general demeanour of [his] employment wasn’t right and [he] couldn’t go into developing new machinery”[22].
[22]T540 ll 5-8.
I am not persuaded that the findings made by the Tribunal were not reasonably open on the evidence.
Ground 14:
The Tribunal erred in fact that I limited my contribution to the company and if I had really wanted to design a new side plate for a new machine I could have done so without knowing what the machine was to do (par 20) and that was a reasonable direction of the Respondents (par 40).
This ground does not in my view accurately state the findings of the Tribunal in paragraphs 20 and 40 of the Reasons. In paragraph 20 the Tribunal expressed the opinion that “if Mr He really wanted to design a plate for the machine, he could have done so, given his knowledge and experience.”
There was evidence from Mr Hume[23], referred to in the Particulars, as to the request being made that Mr He design side plates. The paragraph referred to in the Particulars went on to state that the request had been refused. The Tribunal had heard all the evidence, including that relating to Mr He’s qualifications, experience and work for Envelopments.
[23]Witness statement of Hume at paragraph 7.
I am not persuaded that it was not reasonably open to the Tribunal on the evidence to state in paragraph 20 that Mr He had “determined that he would limit his contribution to the company” and then to express the opinion that he could have designed the side plates as requested.
Similarly, I am not satisfied that the conclusion expressed in paragraph 40 that “as an employee of Envelopments he ought to have complied with a reasonable direction” to design the new folding machine was a conclusion which was not reasonably open on the evidence as a whole.
Ground 15:
The Tribunal erred in fact that the AIRC made an award ‘apparently on the ground that ‘my employment was terminated without notice’ (par 23).
No ascertainable error of law or fact is in my view set out in this ground. The Tribunal appears to have been describing its own perception as to the basis of the award in paragraph 23, when it said:
“23.He brought an application to the Industrial Relations Commission and, following a contested hearing, was awarded $13,000 compensation, apparently on the ground that his employment was terminated without notice.”
Ground 16:
“The Tribunal erred in fact that my complaint on the basis of race is that I was paid less than I should have been paid. (par 29).”
In paragraph 29 of the Reasons the Tribunal was analysing the “statement of complaint and points of claim” which it noted had been prepared by Mr He. The Tribunal stated that “a beneficial interpretation” should be given to his documents when determining the nature of his complaint.
Mr He’s document entitled “Particulars of Claim” included the following amongst the particulars of breaches of the Act:
“(a)The Complainant’s salaries were significantly lower compared to other employees who were not of Asian descent.”
I am not persuaded that the ground discloses any error, in so far as it can be understood.
Ground 17:
“The Tribunal erred in fact that Mr Hume was doing a different job (par 38)”
In so far as this ground is intelligible, it misstates what appears in paragraph 38 of the Reasons, namely, that it was Mr Ramsay’s evidence that Mr He was doing a different job from that performed by Mr Hume.
I will not further consider the ground or the Particulars, which are also difficult to follow, but appear to relate, in part, to evidence which might militate against a conclusion to the same effect being reached by the Tribunal.
Ground 18:
“The Tribunal erred in fact that there was a ‘stand off which existed between Mr He and Mr Hume’(par 44).”
There is material throughout the witness statements referring to the relationship between Mr He and Mr Hume. In paragraph 18 of his witness statement Mr Wilson said that he was “surprised at how uncooperative [Mr He] was to [Mr Hume]”. Mr Hume said, in paragraph 29 of his witness statement, that after becoming chief executive officer of Envelopments in July 1999, he had found trying to work with Mr He “extremely frustrating and difficult”. He went on to say that Mr He refused to work with him “in any meaningful way”. Even Mr He’s own witness statement describes differences between them.
I am not persuaded that it was not open to the Tribunal to characterise the situation between them as a “stand off”.
Alleged errors of law
In grounds 19 to 28 Mr He alleged that errors of law were made by the Tribunal. As a number of them relate to provisions of the Equal Opportunity Act, I will include the relevant provisions:
The Equal Opportunity Act 1995
3. Objectives
The objectives of this Act are—
(a)to promote recognition and acceptance of everyone's right to equality of opportunity;
(b)to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes;
(c) to eliminate, as far as possible, sexual harassment;
(d)to provide redress for people who have been discriminated against or sexually harassed.
…
Part 2—What is Prohibited Discrimination?
6. Attributes
The following are the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 3—
…
(i) race;
7. Meaning of discrimination
(1)Discrimination means direct or indirect discrimination on the basis of an attribute.
…
8. Direct discrimination
(1)Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.
(2)In determining whether a person directly discriminates it is irrelevant—
(a)whether or not that person is aware of the discrimination or considers the treatment less favourable;
(b)whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.
9. Indirect discrimination
(1)Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice—
(a)that someone with an attribute does not or cannot comply with; and
(b)that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and
(c) that is not reasonable.
(2)Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including—
(a)the consequences of failing to comply with the requirement, condition or practice;
(b) the cost of alternative requirements, conditions or practices;
(c)the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.
(3)In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.
10. Motive is irrelevant to discrimination
In determining whether or not a person discriminates, the person's motive is irrelevant.
Part 3—When is Discrimination Prohibited?
Division 1—Discrimination in employment
…
14. Discrimination against employees
An employer must not discriminate against an employee—
(a)by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment;
(b)by dismissing the employee or otherwise terminating his or her employment;
(c)by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retraining program;
(d) by subjecting the employee to any other detriment.
…
96. Prohibition of victimisation
A person must not victimise another person.
97. 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—
(a) has made a complaint against any person;
(b)has brought any other proceedings under this Act against any person;
(c)has given evidence or information, or produced a document, in connection with any proceedings under this Act;
(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 Part 3, 5 or 6—
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 sub-section (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 sub-section (1) is the only or dominant reason for the treatment or threatened treatment as long as it is a substantial reason;
(b)whether the person acts alone or in association with any other person.
Division 2—Authorising or assisting discrimination
98. Prohibition of authorising or assisting discrimination
A person must not request, instruct, induce, encourage, authorise or assist another person to contravene a provision of Part 3, 5 or 6.
99. Liability of person who authorises or assists
If, as a result of a person doing any of the things specified in section 98, the other person contravenes a provision of Part 3, 5 or 6, both persons must be taken to have contravened the provision and a complaint about the contravention may be lodged against either or both of them.
…
Division 4—Vicarious liability
102. Vicarious liability of employers and principals
If a person in the course of employment or while acting as an agent—
(a) contravenes a provision of Part 3, 5 or 6; or
(b)engages in any conduct that would, if engaged in by the person's employer or principal, contravene a provision of Part 3, 5 or 6—
both the person and the employer or principal must be taken to have contravened the provision, and a complaint about the contravention may be lodged against either or both of them.”
Ground 19:
“Did the Tribunal erred in law that after having found that Mr Ramsay ‘was able to engage Mr He at a lower salary and therefore did so’ ‘compared to Mr Hume, who is not of Chinese origin’, ‘less qualified’ ‘and less experienced was paid’ at ‘an appropriate rate’ and ‘substantially more than Mr He’ (para 38), he held that Mr Ramsay had not contravened s 8 and s 14 of the Equal Opportunity Act 1995 (the ‘Act’)?”
In my view, Mr He misstated paragraph 38 of the Reasons in which the Tribunal noted Mr Ramsay’s evidence that what was paid to Mr Hume was paid at an appropriate rate. The Tribunal said that there was nothing to contradict that evidence and that it was not so improbable that it should be disregarded, but the Tribunal did not expressly state a finding in the terms alleged.
S 14 of the Equal Opportunity Act prohibits discrimination against employees. S 7 defines discrimination as “direct” or “indirect” discrimination on the basis of an attribute. S 8 describes the “direct discrimination” which is prohibited under s 14. Mr He alleged discrimination on the basis of the attribute of race. The Tribunal did not make the factual finding that Mr He was paid any less on the basis of his race, necessary to establish a contravention of s 14. Ground 19 amounted to a complaint about the failure of Mr He to make any such factual finding and to conclude that Mr Ramsay had contravened s 14.
In the Particulars Mr He referred to evidence and made assertions apparently to justify a contrary finding (including the allegation that there had been a contravention of s 3 of the Act which set out its objectives). I am not persuaded that the Tribunal erred in law because it was compelled to make a finding of discrimination on the grounds of race by Mr Ramsay as “the only possible decision that the evidence on any reasonable view could support”; see: Young v Paddle Bros Pty Ltd[24].
[24](1956) VLR 38 at 41 per Herring CJ.
Grounds 20-23
Grounds 20 to 23 may conveniently be dealt with together. Each apparently seeks to pose a hypothetical question as to whether the Tribunal could have reached a conclusion that the Act had been contravened by a respondent. In each case, the Tribunal did not reach the particular conclusion to which reference is made. Even if the questions could be construed so as to raise the issue as to whether there was no other conclusion of fact or law open to the Tribunal, each faces the more significant problem that I have found both it and many of the Particulars provided to be unintelligible. None of the oral submissions made by Mr He have assisted me to better understand grounds 20 to 23.
Ground 20:
“Could the Tribunal conclude that the Respondents had discriminated against or victimised me in terms of not paying up all of my holiday pay by reference to all of the evidences before him and allowing me to call the evidence, which Mr Wilson had promised to provide and I called before and during the hearing in the Tribunal (par 41)?”
Paragraph 41 was in the following form:
“Non-payment of holiday pay
41Finally, Mr He claims that he has still not been paid all of his holiday pay. I am unable on the evidence to determine whether this is the case or not but even if it was, there is nothing in the evidence upon which I could infer that such treatment would have been due to his race. As such, it is not a matter that I can deal with.”
Ground 21:
“Could the Tribunal conclude that Mr Wilson contravened s.8, s.14, s.96 and s.98 of the Act by running tests, which are required by s.8, s.14, s.96, s.98, s.99 and s.102 of the Act, and by reference to all of the evidences before him and allowing me to call the evidences, the pay out of my holiday pay and a complete task list (par 44 and 46)?”
Paragraphs 44 and 46 of the Reasons were in the following terms:
“44.There is nothing in the evidence from which I can infer that any of the actions of the directors were due at all to Mr He’s race. Rather their attitude seems to have been one of frustration. They appear to have been unable to deal with the stand-off which existed between Mr He and Mr Hume and left it to them to sort out between themselves. The result was that the machines were not ultimately developed successfully and, it appears, have now been overtaken by new technology.
…
Conclusion
46.For the foregoing reasons the complaint will be dismissed. The question of costs will be reserved although the parties should be aware that orders for costs in this jurisdiction are not given as a matter of course and are often considered to be inappropriate.”
66 Once again I was not assisted by the Particulars which referred to such matters as statutory provisions, evidence and findings of the Tribunal as well as to the alleged failure by Mr Wilson to produce records in accordance with alleged undertakings to Mr He.
Ground 22:
“Could the Tribunal conclude that Mr Ramsay contravened s.8, s.14, s.96 and s.98 of the Act by running tests, which are required by s.8, s.14, s.96, s.98, s.99 and s.102 of the Act and by reference to all the evidences before him and allowing me to complete the cross-exam of Mr Ramsay (par 44 and 46)?”
The Particulars referred to findings of the Tribunal and evidence given at the Tribunal hearing and contained submissions by Mr He, apparently directed at the appropriateness of a positive response to the question posed. They did not clarify any issue which Mr He sought to raise.
Ground 23 :
“Could the Tribunal conclude that Mr Hume contravened s.8, s.14, s.96 and s.98 of the Act by running tests, which are required by s.8, s.14, s.96 and s.98 of the Act, and by reference to all of the evidences before him and allowing me to call the reasonable evidences, the payout of my holiday pay and a complete task list (par 44 and 46)?”
This question is in very similar terms to that in ground 21. It is unclear and my understanding was not assisted by the Particulars provided or any of the appellant’s oral submissions.
Ground 24.
“Could the Tribunal strike out the Respondent’s submission in term of striking out one part of my claim, in relation to the termination of my employment, by following normal procedures and hearing my arguments in the light of the Full Court’s opinion ?”
This ground appears to attempt to challenge the Tribunal’s decision not to entertain the appellant’s complaint in so far as it concerned his dismissal from his employment.
The Particulars first set out s 170HA and s 170HB of the Workplace Relations Act which provided:
“170HA Division not to limit other rights
Subject only to the operation of sections 170HB and 170HC, the provisions of this Division are not intended to limit any rights that a person or trade union may have to appeal against termination of employment or to secure the making of awards or orders relating to termination of employment.
170HBApplications alleging harsh, unjust or unreasonable termination
(1)An application must not be made under section 170CE in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, if proceedings (the prior proceedings ) for a remedy in respect of that termination have been commenced by or on behalf of that employee:
(a)under another provision of this Act; or
(b)under another law of the Commonwealth; or
(c)under a law of a State or Territory;
alleging that the termination was:
(d)harsh, unjust or unreasonable (however described); or
(e)unlawful;
for a reason other than a failure by the employer to provide a benefit to which the employee was entitled on the termination.
(2)Subsection (1) does not prevent an application of the kind referred to in that subsection if the prior proceedings:
(a)have been discontinued by the party who began the proceedings; or
(b)have failed for want of jurisdiction.
(3)For the avoidance of doubt, a proceeding under this Act or any other law of the Commonwealth or under a law of a State or Territory seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation:
(a)to give adequate notice of the termination; or
(b)to provide a severance payment as a result of the termination; or
(c)to provide any other entitlement payable as a result of the termination;
is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination.
(4)If an application of the kind referred to in subsection (1) has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before the application would, because of the operation of subsection (1), have prevented the application unless the application:
(a)is discontinued by the applicant; or
(b)fails for want of jurisdiction.”
The Particulars continued:
“(2)s.170HA of the Workplace Relations Act clearly indicates that the whole division is for ‘not to limit other rights’.
(3)Further s.170HB of the Workplace Relations Act is for ‘applications alleging harsh, unjust or unreasonable’ termination; and it is ‘because of the operation of sub-section (1), have prevented the application’, which were ‘applications alleging harsh, unjust or unreasonable’. It is nothing like what the Respondent’s suggestion that because of the operation of s.109 of the Commonwealth Constitution any application has been prevented (p.10, 1.14). If it is anything like what the Respondent’s suggestion it will contradict s.170HB, s.170HBA and s.170HC, and it will contradict s.178, s.179, s.179A, s.413 and s.413A as a Full Court of the Federal Court found (par 45 of Miller v University of New South Wales [2003], FCAFC 180).
(4)The Full Court of the Federal Court stated: ‘Put another way, the question as to whether the termination was harsh, unjust or unreasonable will not be litigated in this proceeding in determining any of the pleaded remedies’. (par 75 of Miller v University of New South Wales [2003], FCAFC 180). The Full Court of the Federal Court further explained: ‘Subject to the express provisions of the Act, an employee is free to choose which remedy to pursue first. If that does not prove successful, then the alternative remedy may be pursued. If the remedies cannot be pursued together, then they must be pursued successively’. (par 83 of Miller v University of New South Wales [2003], FCAFC 180).
(5)The Respondents did not follow the directions of Deputy President of the Tribunal, which issued on 14th July 2003 and stated: ‘The parties are to exchange and file all the material on which they intend to rely at hearing’ ‘on or before 6th October 2003’. In the hearing the Respondents filed and served three cases they would refer to in relation to strike out the part of my claims in relation to the termination of my employment (p.3, l.3). The Tribunal refused my request to have a chance to read the cases, which were just served to me by the Respondents (p.12, l.17; p.13, l.17; p.17, l.6; p.18, l.17), and struck out the part of my claims in relation to the termination of my employment without hearing any my argument about the Respondent’s application (p.18, l.20). Therefore the Tribunal contravened s.97 and s.98 of the VCAT Act. s.97 and s.98 are set out in full in paragraphs 25 and 26 below.
(6)The transcript was tampered with. As detailed in paragraph 27 below, many parts were omitted and the Tribunal’s word was quoted as a part of the Workplace Relations Act 1995 (the ‘Workplace Relations Act’) (p.7, l.18 and 22) “
Was a constitutional issue raised by ground 24?
At the outset, because of the Tribunal’s reliance upon the VCAT decisions in Ruddel v DHS[25] and Mondio v Toyota Motor Corporation Australia Ltd[26] in which it had been held that the provisions of s 170HB prevailed over those of the Equal Opportunity Act to the extent of any inconsistency by virtue of s 109 of the Commonwealth of Australia Constitution Act 1900 (“the Constitution”), it appeared that Mr He may have been raising a constitutional issue by ground 24 and that relevant notice might have been required to be given under s 78B of the Judiciary Act 1903 (Cth).
[25][2001] VCAT 1510 (20 June 2001).
[26]VCAT (unreported, March 1999).
I sought further submissions from the parties and the Court reconvened on 2 September and again on 9 September 2004. Mr He stated that he had raised the issue of the applicability of s 170HB(4) to his claim. However, he went on to contend that the respondents had raised a constitutional issue by arguing that the section did apply to the claim before the Tribunal and that the Commonwealth legislation prevailed over inconsistent state legislation by reason of the operation of s 109 of the Constitution.
As the challenge on the appeal was only as to the question whether s 170HB applied to the complaint, I did not consider that a constitutional issue was raised relating to the validity of any section of the Equal Opportunity Act.
The applicability of s 170HB(4)
In his oral submissions challenging the applicability of s 170HB Mr He relied upon the decision in Miller v University of New South Wales[27].
[27](2003) 200 ALR 565.
In Miller[28] the issue for determination by the Full Federal Court was as to whether the appellant was entitled to bring and maintain a proceeding for declaratory and other relief relating to alleged breaches of a certified agreement between the appellant and his employer, the respondent. The appellant had applied to the AIRC for relief in relation to the termination of his employment under s.170CE(1) of the Workplace Relations Act, on the grounds that the termination was harsh, unjust or unreasonable and constituted an alleged contravention of s.170CK (relating to discrimination). The application had been dismissed and the appellant had failed to obtain leave to appeal from a Full Bench of the Commission.
[28]Miller v University of New South Wales (2003) 200 ALR 565.
After successfully seeking certiorari and mandamus from the Full Federal Court, the application was referred back to the Full Bench of the AIRC. The Full Bench concluded that leave to appeal should be granted but dismissed the appeal, concluding that the appellant’s termination of employment was not harsh, just or unreasonable in all the circumstances in which he had been dismissed for serious misconduct.
The appellant had meanwhile applied to the Federal Court under s 413 and s 413A of the Workplace Relations Act for an interpretation of the certified agreement and for declaratory and other relief in relation to the breach of the certified agreement by the termination of his employment. The Federal Court proceeding had been permanently stayed by the judge at first instance on the bases of issue estoppel and abuse of process, in so far as the relief sought in the Federal Court raised issues previously determined in the AIRC, and that the causes of action had consequently merged in the decision of the Full Bench of the AIRC.
The Full Court allowed an appeal, holding that the AIRC did not exercise the judicial power of the Commonwealth and its decision could not give rise to issue estoppel. The Court also held that the AIRC proceeding for relief on the ground that the termination of the appellant’s employment was harsh, unjust or unreasonable was quite different from the jurisdiction the Federal Court was asked to exercise in determining the legal rights of the parties under the agreement[29].
[29](2003) 200 ALR 565 at 571-2 per Gray J.
Significantly, Ryan and Gyles JJ in their joint judgment noted that there had been no appeal from the judge’s finding that s.170HB(4) affected part of the claim, but did not catch the common law claim. Their Honours summarised the findings as follows:
“The effect of this conclusion as to the interplay between remedies in these circumstances is that the appellant is not expressly prevented by the [Workplace Relations] Act from pursuing compensation and the imposition of a penalty in relation to the alleged failure of the respondent to give adequate notice of termination or breach of related obligations. The primary judge also correctly held that the Act says nothing as to common law remedies.”[30]
[30](2003) 200 ALR 565 at 578 per Ryan and Gyles JJ.
Gray J relevantly said:
“In s.170HB of the [Workplace Relations] Act, Parliament has expressed the circumstances in which a cause of action is barred as a result of a proceeding of the kind brought by the appellant in the Commission. To the extent to which s.170HB is inapplicable in the present case, the appellant is entitled to proceed. No issue estoppel prevents him from doing so. The causes of action on which he relies in the Court have not been the subject of any determination such as to cause the proceeding to be an abuse of process.”[31]
[31](2003) 200 ALR 565 at 572.
In my view, Mr He’s reliance upon Miller was misplaced. In so far as his case before the Tribunal challenged the legality of the termination of his employment under the Equal Opportunity Act, it fell within the description in s 170HB(1) of the Workplace Relations Act of the proceedings which could not be maintained under s 170HB(4). The Full Federal Court in Miller proceeded upon the basis that s 170HB did not apply to the proceeding for statutory or common law relief in relation to alleged breaches of a certified agreement. Its decision related to the different issues as to the operation of the principles relating to issue estoppel and abuse of process in relation to the appellant’s claims.
Grounds 25 - 28
I have adopted a beneficial construction of the grounds 25 to 28 in order to discern any question of law sought to be raised. It would appear that Mr He has alleged in grounds 25, 26, 27 and 28 that the Tribunal erred in law in denying him procedural fairness or natural justice and by contravening its obligations under s 97 of the VCAT Act to act fairly, and under s 102 of the VCAT Act to allow him to call evidence, to examine witnesses and to make submissions.
The VCAT Act relevantly provided:
Division 7—Hearings
97. Tribunal must act fairly
The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
98. General procedure
(1) The Tribunal—
(a) is bound by the rules of natural justice;
(b)is not bound by the rules of evidence or any practices or procedures applicable to courts
of record, except to the extent that it adopts those rules, practices or procedures;
(c) may inform itself on any matter as it sees fit;
(d)must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
(2)Without limiting sub-section (1)(b), the Tribunal may admit into evidence the contents of any document despite the non-compliance with any time limit or other requirement specified in the rules in relation to that document or service of it.
(3)Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.
(4)Sub-section (1)(a) does not apply to the extent that this Act or an enabling enactment authorises, whether expressly or by implication, a departure from the rules of natural justice.
…
102. Evidence
(1) The Tribunal must allow a party a reasonable opportunity—
(a) to call or give evidence; and
(b) to examine, cross-examine or re-examine witnesses; and
(c) to make submissions to the Tribunal.
(2)Despite sub-section (1), the Tribunal may refuse to allow a party to call evidence on a matter if the Tribunal considers that there is already sufficient evidence of that matter before the Tribunal.
(3) Evidence in a proceeding—
(a) may be given orally or in writing; and
(b) if the Tribunal requires, must be given on oath or by affidavit.
(4) A member of the Tribunal may administer or
cause to be administered an oath or take or cause to be taken an affirmation for the purpose of taking and receiving evidence at a hearing.
In Collection House Limited v Taylor[32] Nettle held that VCAT was bound by the rules of natural justice under s 98(1) of the VCAT Act to afford each party a reasonable opportunity to present his or her case. A failure to do so is an error of law[33].
Ground 25:
“In the circumstances, which confronted me in the Tribunal, was I denied procedural fairness or natural justice by virtue of the facts that the Tribunal refused my repeated request for reasonable evidences (par 17 and 41)?”
[32][2004] VSC 49.
[33][2004] VSC 49 at [20].
Paragraphs 17 and 41 of the Reasons were in the following terms:
“17.At about this time, a system was instituted whereby the tasks to be performed by Mr He and others were to be set out on a running list, which was kept on a computer disk passed back and forth between the parties. A print out of this disk was produced in evidence but it is far from complete, covering only parts of the period that followed. Nevertheless, it gives sufficient indication that Mr He did more than simply operate the old folding machines. Numerous entries on the task list show work that could fairly be described as developmental in nature, albeit on the old machine.”
“Non-payment of holiday pay
41.Finally, Mr He claims that he has still not been paid all of his holiday pay. I am unable on the evidence to determine whether this is the case or not but even if it was, there is nothing in the evidence upon which I could infer that such treatment would have been due to his race. As such this is not a matter I can deal with.”
The Particulars first set out s 97 and s 102 of the VCAT Act.
Holiday pay
The Particulars continued by referring to the Tribunal’s alleged refusal to allow Mr He to call evidence in relation to what he described as “the payout” of his holiday pay.
The Particulars refer to requests for relevant documents at directions hearings followed by references to his relevant questioning of the respondents at the hearing. The Particulars also included reference to the alleged erasure of the tape recording of the hearing by the Tribunal and the Tribunal’s statement that there was insufficient material upon which the issue of outstanding holiday pay could be determined.
The Tribunal found no evidence that any relevant treatment of Mr He was due to his race and it was not suggested that the evidence sought would have in any way touched upon that issue.
In all the circumstances, I was not persuaded that any unfairness or breach of the rules of natural justice was disclosed.
Task list
The Particulars then recited a history of requests by Mr He, both before and at the hearing, for a complete list of the tasks he performed during a period in which he alleged that he had performed developmental and research work. The Particulars refer to calls made for its production at directions hearings and questions asked about it at the hearing in electronic form. They refer to the Tribunal’s statement at the hearing that the list document was “highly relevant”[34] and to the reference in paragraph 17 of the Reasons to the task list being “far from complete”.
[34]T377 l 26.
After having been informed that the matter had been ventilated before another member of VCAT and dealt with, the Tribunal refused to stand the hearing down whilst the electronic version of the document was produced. Senior Member Walker made it clear that the form of the list was not a matter with which he was concerned. He told Mr He that he was concerned only with what the list represented, in terms of the work Mr He had been required to perform and when he was required to do so. He told Mr He that the issue with which he was concerned was as to whether Mr He had been discriminated against on the grounds of race[35]. Mr Walker urged Mr He to adduce from Mr Hume evidence that he was doing everything he was required to do in his job and not to waste time as to whether the list was in order or not[36].
[35]T 380 ll1-3.
[36]T379 l 26- T 380 l18.
The Tribunal was nevertheless satisfied that the incomplete printout of the list showed that Mr He had been engaged in what could properly be characterised as “developmental” (as opposed to merely operational) work on the relevant machine. Nevertheless it was ultimately not persuaded that Mr He was discriminated against on the basis of his race.
I am not persuaded in all the circumstances that any unfairness or denial of natural justice occurred or that any error of law has been disclosed.
Ground 26
“In the circumstances, which confronted me in the Tribunal, was I denied procedural fairness or natural justice by virtue of the fact that the Tribunal has replaced one of my grounds, victimisation, with impairment (par 32 and 33)?”
Paragraphs 32 and 33 of the Reasons were as follows:
“Impairment
32.The impairment sought to be relied upon by Mr He is that he was concerned that the use of a crane to lift rolls of paper from the ground floor to the first floor of the company’s premises, was dangerous and unlawful. He was concerned as to the capacity of the crane and, from the material tendered, it would appear that his concerns were justified. Although the crane itself was quite capable of lifting the weight of the rolls of paper, the mechanism at the end of the crane to which the paper rolls were attached was not. It was rated only for lifting 125 kilograms. Mr He says that he was ‘under enormous stress and anxiety’, expecting that the items hoisted would fall on either him or other employees and that someone would be hit by broken parts.
33.I accept that Mr He did have concerns as to the safety of the crane and that he made these known to the company. I would imagine that he would have been very frustrated and upset that his warnings, which were appropriate and well grounded, were ignored by less qualified persons in the company’s employ. However his worry and concern in this regard falls well short of being an impairment under the Act. This leaves his race as the sole attribute upon which to ground his claim.”
The Particulars asserted that Mr He had not mentioned “impairment” in all of the material filed by him or during the hearing.
The Particulars went on to state:
“(3)On the opposite the Tribunal ignored my ground of victimisation (par 19 and 20 of the particulars of complaints, and par 126 of my witness statement). I was victimised by complaining unequal salary compared with other employees in the company, hazardous work practice and underpaid superannuation to the respondents as detailed in paragraphs 12, 14, 21, 22, and 23 above (sic).”
The claim of victimisation in paragraphs 19 and 20 of the Particulars of Complaint was in the following terms:
“19.By reasons of the conducts described in paragraphs 11 to 17 the respondents have breached sections 14, 96 to 99 and 102 of the Act.
Particulars
(a)the respondents’ conducts constituted a constructive dismissal of the complainant.
(b)the substantial reasons for those conducts were that the Complainant had complained to the Respondents about the hazardous work practice. The termination of the Complainant was an act of victimisation.
(c)the respondents’ conducts therefore constitutes a breach of sections 14 and 96 of the Act.
20.Because of the respondents’ discrimination and victimisation against the Complainant the respondents refused to give the complainant a service certification. Therefore the Complainant has been unable to obtain an alternative employment.”
Victimisation under s 97 of the Equal Opportunity Act occurs when a person is subjected to detriment because the person has taken defined action related to the Equal Opportunity Act, including the making of a complaint[37]. The complaint to the respondents about any of the matters referred to in the Particulars did not constitute a “complaint” as defined in s 4, namely “a complaint lodged under section 105” (to the Equal Opportunity Commission). Even though there is no reference in the Reasons to the alleged contravention of s 96 which prohibits victimisation, any such claim as particularised would have been doomed to fail.
[37]s 97(1)(a) Equal Opportunity Act 1995.
Further, in any event, to the extent that the alleged victimisation was said to have resulted in the termination of the appellant’s employment, it formed part of the claim which the Tribunal was prevented from entertaining under s 170HB(4) of the Workplace Relations Act. In my view, Mr He has not made out a denial of procedural fairness or natural justice in relation to any claim in respect of victimisation.
I note with regard to the Tribunal’s discussion under the heading of “Impairment” that it followed an earlier description of the approach taken by the Tribunal generally to his claim and might be thought to be the result of its application. The Tribunal stated in paragraph 29 of the Reasons:
“29.Mr He prepared his own statement of complaint and points of claim and in determining what his complaint is, I should give these documents a beneficial interpretation. The complaint on the basis of race is that he was paid less than he should have been paid and that he was subjected to unfair warnings by Mr Hume. Many more complaints appeared in his points of claim and further complaints arose during the course of the hearing. …”.
Ground 27
“In the circumstances, which recordings and transcript have been tampered with, was I denied procedural fairness or natural justice in the processes of appealing the Tribunal’s decision?”
The copy of the transcript of proceedings at the Tribunal provided to the Court by Mr He contains many handwritten additions made by him. There was no challenge to the inclusion of the alterations. Mr He’s prospects of success on appeal could not have been adversely affected as a result of the unchallenged inclusion of what he maintained should have formed part of the transcript.
The Particulars refer to the deletion of “many main parts of quotations”. This is an apparent reference to the omission of parts of passages read and the inclusion of the word “reads”. In my opinion, no injustice would result from this not unusual method of transcription. The document itself may always be consulted.
The Particulars contain allegations that the Tribunal had erased two sections of the recording of the hearing, at pages 428 and 489, where the transcript records breaks in the recording. Mr He’s handwritten annotations assert that the breaks were each of some ten minute duration. Mr He’s heavily accented English might have been difficult for those transcribing the recording of the hearing to understand. The detailed references in the Particulars to the annotated transcript and to gaps in it do not persuade me that the Tribunal has tampered with the recording or with the transcript. Nor has Mr He persuaded me that any injustice occurred as a result of the state of the transcript.
Mr He has not established any denial of natural justice or unfairness by the Tribunal.
Ground 28:
“In the circumstances, which confronted me in the Tribunal, was I denied procedural fairness or natural justice by virtue of the fact that the Tribune limited me reasonable opportunity to fully cross-examine Mr Ramsay?”
The Particulars referred to what was said in paragraph 26 of the Reasons in this regard:
“26. Despite extensive witness statements by all four witnesses, the case did not finish in the two days allotted and was adjourned part heard. The hearing proceeded for another three days commencing on 10 November 2003. On the second of these days I told Mr He that, in order to bring the case to a conclusion, I would have to limit his cross-examination of the remaining witnesses to the end of the following day. The case had been so lengthy because of the time taken by Mr He to cross-examine the three witnesses called for the respondent. He took two days to cross-examine Mr Wilson, over a day to cross-examine Mr Hume and most of the last day to cross-examine Mr Ramsay. There can be no objection to time taken for necessary cross-examination, but most of the time Mr He took was not used profitably and I had to remind him on several occasions what the case was about. In the end, although I had to limit cross-examination, by the time the case finished at 4.35 pm on 12 November 2003, it appeared that the evidence of Mr Ramsay, the final witness had been thoroughly tested and all of the facts in the case had come to light. It was agreed that I should read the transcript of the hearing before the Commission, where counsel for Mr He had cross-examined the same witnesses and treat that as evidence in this proceeding.”
The Particulars appear to contain submissions in justification of Mr He’s conduct of the hearing at the Tribunal and the length of time he took to cross-examine witnesses. They also refer to allegedly different treatment of counsel for the respondents. Finally the Particulars cited the length of two other cases in the Tribunal[38] by way of comparison.
[38]Mondio v Toyota Motor Corporation Australia Ltd (1999) VCT 653; Uma Tiwari Kapoor v Monash University & Anor (1997) VCAT 3.
Counsel for the respondents argued that Mr He had not been denied natural justice by having his “repetitive and overly long” cross-examination limited by the Tribunal. He noted that even at the end of the transcript Mr He did not complain that he had been stopped in his cross-examination of Mr Ramsay. He told the Tribunal that he did not wish to make written submissions.
Counsel for the respondents generally submitted that there had been no denial of natural justice. He submitted that the Tribunal had a discretion as to the conduct of its proceeding and there was no error disclosed in the procedures adopted. He argued that the obligation of the Tribunal was that a fair hearing be conducted in which the parties were able to present their case “as fully as necessary and within the limits of the law.” He relied upon the recent statement of the applicable principles in Collection House Limited v Taylor[39] and the authorities referred to therein.
[39][2004] VSC 49 at [23].
Nettle J in Collection House[40] quoted what was said by Byrne J in Winn v Blueprint Instant Printing Pty Ltd[41] in relation to the obligations of the Tribunal:
“It (is) accepted that the Tribunal must act fairly and that it (is) bound by the rules of natural justice. But this does not require that its procedures be that of a formal cause. Indeed, the Victorian Civil Administrative Tribunal Act 1998 (“the Act”) makes it clear that the Tribunal is to act in an informal way and that its procedures must be moulded to accommodate the fact that, in most cases, the parties will not be represented by a professional advocate. This necessarily involves the Tribunal taking a more active role and identifying the real issues between the parties and directing them as to the evidence which legally and logically bears upon those issues. It may be, too, that in a given case, the Tribunal will itself interrogate witnesses in a manner and to an extent which would not be expected in a Court. This said, s 102(1) expressly obliges the Tribunal to afford to the parties a reasonable opportunity to call evidence and to cross-examine witnesses and make submissions … “.
[40][2004] VSC 49.
[41][2002] VSC 295 at [9].
Having read the transcript of hearing before the Tribunal, I am satisfied that it complied with the obligations to act fairly and to provide natural justice to Mr He. This view is reinforced by the contents of paragraph 26 of the Reasons.
I am not persuaded that there was any denial of natural justice or contravention of the obligations of the Tribunal under s 97 or s 98 of the VCAT Act as alleged.
Paragraphs numbered 29 and 30 found under the heading “Conclusions” in the Notice of Appeal argued for the grant of leave as follows:
“29. There is a public interest in this appeal in the principles that:
(a)the Tribunal is bound to exercise his powers in accordance with the provisions of the Act and the VCAT Act.
(b)the Tribunal is bound to make factually accurate assessments based on the evidences and exercise his discretion reasonably.
30.According to the above grounds a leave to appeal should be granted.”
Conclusion
In my opinion, leave to appeal should be refused. If Mr He identified any question of law in his grounds of appeal, he did not show that there was a real or significant argument to be put on that question of law to the extent that there was sufficient doubt justifying leave. His submissions as to the public interest do not dissuade me from reaching this conclusion.
The appeal from the Master will be dismissed.
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