Tsikos v Austin Health - [2022] VSC 174

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2021 00157

CHRISTINA TSIKOS	Appellant
v
AUSTIN HEALTH	Respondent

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2021
DATE OF JUDGMENT:	11 April 2022
CASE MAY BE CITED AS:	Tsikos v Austin Health
MEDIUM NEUTRAL CITATION:	[2022] VSC 174

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ADMINISTRATIVE LAW – Appeal from Victorian Civil and Administrative Tribunal – Claim of direct discrimination in employment because of sex and age, contrary to Equal Opportunity Act 2010 (Vic), ss 18(a) and (d) – Appellant claimed that respondent denied opportunity to negotiate and receive salary above enterprise agreement – Male colleagues paid salaries above enterprise agreement – Male colleague under appellant’s management paid significantly higher salary – Test for direct discrimination under Equal Opportunity Act 2010 (Vic), s 8(1) – Role of comparator – Tribunal erred in application of test for direct discrimination – Proper approach to determining whether treatment unfavourable – Open to Tribunal to find that respondent treated appellant unfavourably because of sex – Appeal allowed – Tribunal order set aside – Remitted to Tribunal to be heard and decided again – Equal Opportunity Act 2010 (Vic), ss 8(1), 18.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms L De Ferrari SC with Mr S Burt and Ms N Stojanova	Kelly Workplace Lawyers
For the Respondent	Mr N Harrington	K&L Gates

HER HONOUR:

Christina Tsikos is employed by Austin Health as the manager of its Orthotic and Prosthetic Department. She was first employed by Austin Health in January 2009 in a clinical role, and was appointed to the role of manager in July 2010. She manages a team of about 16 people, comprising clinicians, technicians and administrative staff, who deliver prosthetic and orthotic services across acute, rehabilitation and outpatient settings.

Austin Health generally pays its allied health professionals in accordance with an enterprise agreement. From 1 January 2012, their rates of pay were set by the Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers and Administrative Officers) Multiple Enterprise Agreement 2011-2015 (2011 Agreement). The 2011 Agreement was replaced in May 2017 by the Allied Health Professionals (Victorian Public Health Sector) Single Interest Enterprise Agreement 2016-2020 (2016 Agreement).

In her role as manager, Ms Tsikos was entitled to be classified and paid as CQ6 — Grade 3 Chief Orthotist/Prosthetist. Initially, she was classified and paid at the lower CQ4 level. This was rectified in November 2011, with back pay, but only after Ms Tsikos had made three separate requests for the error to be corrected. Following the commencement of the 2016 Agreement, Ms Tsikos was classified as Orthotist/Prosthetist Grade 4 Year 4 (CP59), which did not affect her remuneration.

After becoming the manager of the Department, Ms Tsikos discovered that one of the senior clinicians under her management, Sam Spalding, was being paid significantly above the rate for his classification, and in fact was receiving an annual salary…

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: [2022] VSC 174
Decision Date: 11 April 2022

CaseChat Overview and Summary

In the matter of Tsikos v Austin Health, the respondent, Austin Health, appealed a decision of the Victorian Civil and Administrative Tribunal (VCAT) concerning the appellant's claim of direct discrimination in employment on the basis of sex and age, in contravention of the Equal Opportunity Act 2010 (Vic). The appellant, Tsikos, alleged that Austin Health had denied her the opportunity to negotiate and receive a salary above the enterprise agreement, despite male colleagues in similar positions being paid above the enterprise agreement. This included a male colleague who was under Tsikos's management and was paid significantly more. The primary issue before the court was whether the VCAT had correctly applied the legal test for direct discrimination under the Equal Opportunity Act 2010 (Vic), specifically whether the tribunal had correctly determined that the treatment Tsikos received was unfavourable because of her sex.

The court found that the VCAT had erred in its application of the test for direct discrimination, particularly in its approach to determining whether the treatment Tsikos received was unfavourable. The tribunal's reliance on the comparator, the male colleague who was under Tsikos's management, was not sufficient to conclude that Tsikos was not treated unfavourably because of her sex. The court held that it was open to the VCAT to find that Austin Health had treated Tsikos unfavourably because of her sex, given the circumstances of the case. The tribunal's failure to correctly apply the legal test led to an error in its decision-making process, warranting the setting aside of the VCAT's order.

The court allowed the appeal, setting aside the VCAT's order and remitting the matter back to the tribunal to be heard and decided again. The tribunal was directed to reconsider Tsikos's claim of direct discrimination, applying the correct legal test and making findings on the evidence presented. The court's decision underscored the importance of correctly applying the legal test for direct discrimination under the Equal Opportunity Act 2010 (Vic) and the need for tribunals to carefully consider the evidence and circumstances of each case. The final orders of the court ensured that Tsikos's claim would be reconsidered with the appropriate legal framework in mind, providing her with the opportunity for a fair and just resolution of her discrimination claim.

Orders