Tsikos v Austin Health

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

---

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

---

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.

---

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 well in excess of her own. She also found out that four technicians had been incorrectly classified as clinicians, and so were being paid above the correct rate for their roles. All of these technicians were men. The two who remained in the Department when the 2016 Agreement was implemented were reclassified as technicians, but continued to receive salaries above the prescribed minimum for their classification.

Between 2011 and 2015, Ms Tsikos made a number of approaches to her managers in an attempt to negotiate an over-agreement salary for herself, without success. In June 2018, she wrote a letter to Austin Health, ‘to request the opportunity to engage in discussions regarding uplifting [her] classification and remuneration’. The letter identified three men under her management who had been given that opportunity, and who were paid salaries above the prescribed minimum for their classifications in the 2016 Agreement. These included Mr Spalding, who was by then paid $41,000 more than Ms Tsikos, despite having a lower classification under the 2016 Agreement. Austin Health’s response did not include any offer to discuss Ms Tsikos’ salary.

In September 2019, Ms Tsikos made an application to the Victorian Civil and Administrative Tribunal under the Equal Opportunity Act 2010 (Vic) (EO Act). She alleged that Austin Health had discriminated against her in her employment because of her sex and her age, contrary to ss 18(a) and (d) of the EO Act. She claimed that Austin Health had denied or limited her access to benefits connected with her employment, namely the opportunity to negotiate her remuneration, the opportunity to be paid above the remuneration provided for in the 2011 Agreement and the 2016 Agreement, and the opportunity to be paid at or above the remuneration paid to Mr Spalding. She further claimed that Austin Health had subjected her to the detriments of refusing to negotiate her remuneration with her, refusing to pay her at above the minimum level provided for in the Agreements, and paying her less than Mr Spalding. She sought compensation and an order requiring Austin Health to stop refusing to negotiate over-agreement remuneration.

Austin Health denied that it had discriminated against Ms Tsikos because of her sex or her age. It denied that it had refused or limited her access to benefits connected with her employment, and denied that it had subjected her to the alleged detriments.

The Tribunal, constituted by Senior Member Burdon-Smith, heard the application over three days in March 2020. On 9 December 2020, the Tribunal made an order dismissing the application, and published reasons for its decision (Reasons).[1] The Tribunal found that Ms Tsikos had failed to prove on the balance of probabilities that she was denied or limited from negotiating her salary and receiving payment for her work equivalent to Mr Spalding, or any other male. The Tribunal also found that, even if that unfavourable treatment occurred, Ms Tsikos had not shown that it was on the basis of her age or her sex.
[1]Tsikos v Austin Health (Human Rights) [2020] VCAT 1387 (Reasons).

In this proceeding, Ms Tsikos seeks leave to appeal from the Tribunal’s order dismissing her application. Her application is made under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), which provides for an appeal on a question of law from an order of the Tribunal. The notice of appeal identifies two questions of law, each supported by a number of grounds. The first question of law relates to the test for direct discrimination in s 8(1) of the EO Act, where the discrimination is said to be constituted by unfavourable treatment over a number of years. The second question of law concerns the Tribunal’s approach to determining whether Ms Tsikos was treated unfavourably because of her age and sex, in light of expert evidence about the existence and effect of unconscious bias in the workplace.

For the reasons that follow, I have concluded that the Tribunal made several errors in relation to the first question of law identified in the notice of appeal. The primary error concerned the Tribunal’s application of the test for direct discrimination under s 8(1) of the EO Act — instead of considering whether Austin Health had treated Ms Tsikos unfavourably in the ways she alleged, the Tribunal asked whether she had been treated less favourably than Mr Spalding. I have also concluded that it would have been open on the evidence for the Tribunal to find that Austin Health had treated Ms Tsikos unfavourably because of her sex, contrary to ss 18(a) and (d) of the EO Act. I will grant leave to appeal, allow the appeal, set aside the Tribunal’s order, and remit the proceeding to the Tribunal to be heard and decided again.

Equal Opportunity Act 2010 (Vic)

The EO Act was enacted in 2010 with the purposes of re-enacting and extending the law relating to equal opportunity and protection against discrimination, sexual harassment and victimisation.[2] It repealed and replaced the former Equal Opportunity Act 1995 (Vic) (1995 Act).
[2]Equal Opportunity Act 2010 (Vic), s 1(a) (EO Act).

In his second reading speech for the Equal Opportunity Bill 2010, the Attorney-General acknowledged that previous equal opportunity legislation had not succeeded in eliminating systemic discrimination:[3]

Pay inequity between men and women; persistent indigenous disadvantage; facilities that are physically accessible to some but not to others — these inequalities endure because they are systemic, rather than isolated; because they cannot be redressed by an individual complaint. As a result, discrimination can disadvantage entire groups in a variety of ways.
Recent ANU research cites employment as one such area. According to the research, 21st century employers are still more likely to grant interviews to candidates with Anglo-Celtic names, on otherwise identical job applications in a supposedly open field. Further, a 2004 report of the Productivity Commission found that only 53.2 per cent of people with disabilities were in work compared to 80.6 per cent of those without a disability.
If such basic forms of discrimination are still entrenched, then we need to acknowledge that some opportunities remain more equal than others — that Victorians are competing on uneven ground and that we need to level the playing field. We need a legal framework and commission that is properly equipped to tackle all forms of discrimination — individual or systemic — to dismantle it where it does exist, and nurture and encourage a future in which it does not.

[3]Victoria, Parliamentary Debates, Legislative Assembly, 10 March 2010, 783 (Rob Hulls, Attorney-General).

The Attorney-General went on to say that the Bill would introduce ‘key reforms to respond to the limitations of the current act’, including removing ‘legal and technical barriers to the elimination of discrimination’.[4]
[4]Victoria, Parliamentary Debates, Legislative Assembly, 10 March 2010, 784 (Rob Hulls, Attorney-General).

The objectives of the EO Act are set out in s 3, relevantly:

(a) to eliminate discrimination, sexual harassment and victimisation, to the greatest possible extent;
(b) to further promote and protect the right to equality set out in the Charter of Human Rights and Responsibilities;
(c) to encourage the identification and elimination of systemic causes of discrimination, sexual harassment and victimisation;
(d) to promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that—
(i) discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society;
(ii) equal application of a rule to different groups can have unequal results or outcomes;
(iii) the achievement of substantive equality may require the making of reasonable adjustments and reasonable accommodation and the taking of special measures;
…

Discrimination has the meaning given in Pt 2.[5] Relevantly here, it means direct or indirect discrimination on the basis of an attribute.[6] The attributes on the basis of which discrimination is prohibited by the EO Act are listed in s 6, and include age and sex.
[5]EO Act, s 4 (definition of ‘discrimination’).
[6]EO Act, s 7(1)(a).

Direct discrimination is defined in s 8:

(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.
Examples
1 An employer advises an employee that she will not be trained to work on new machinery because she is too old to learn new skills. The employer has discriminated against the employee by denying her training in her employment on the basis of her age.
2 A real estate agent refuses an African man's application for a lease. The real estate agent tells the man that the landlord would prefer an Australian tenant. The real estate agent has discriminated against the man by denying him accommodation on the basis of his race.

(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 to be unfavourable;
(b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

The differences between this definition of direct discrimination and the definition of that term in the 1995 Act were explained in the explanatory memorandum for the Bill:

Clause 8 differs from section 8 of the Equal Opportunity Act 1995 as it removes the requirement to prove that the treatment was less favourable than the person would treat someone without the attribute or with a different attribute, in the same or similar circumstances and replaces that “comparator test” with a new test based on unfavourable treatment. The intention of the new definition is to overcome the unnecessary technicalities associated with identifying an appropriate comparator when assessing whether direct discrimination has occurred.

Section 10 provides:

Motive is irrelevant to discrimination
In determining whether or not a person discriminates, the person’s motive is irrelevant.

The explanatory memorandum provided an example of the application of this section:

For example, an employer who refuses to employ a person because of their race, not because the employer dislikes people of that race, but because the employer believes that the person would be mistreated by other staff, some of whom are prejudiced against people of that race, still discriminates against the person.

Employment is one of the areas in which discrimination is prohibited by the EO Act. Section 18 provides:

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; or
(b) by dismissing the employee or otherwise terminating his or her employment; or
(c) by denying the employee access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
(d) by subjecting the employee to any other detriment.

Part 8 of the EO Act provides for the resolution of disputes. Section 122 enables a person to make an application to the Tribunal in respect of an alleged contravention of Pts 4, 6 or 7 of the Act. Section 125 sets out the powers of the Tribunal:

What may the Tribunal decide?
After hearing the evidence and representations that the parties to an application desire to adduce or make, the Tribunal may—
(a) find that a person has contravened a provision of Part 4, 6 or 7 and make any one or more of the following orders—
(i) an order that the person refrain from committing any further contravention of this Act;
(ii) an order that the person pay to the applicant, within a specified period, an amount the Tribunal thinks fit to compensate the applicant for loss, damage or injury suffered in consequence of the contravention;
(iii) an order that the person do anything specified in the order with a view to redressing any loss, damage or injury suffered by the applicant as a result of the contravention; or

(b) find that a person has contravened a provision of Part 4, 6 or 7 but decline to take any further action; or
(c) find that a person has not contravened a provision of Part 4, 6 or 7 and make an order that the application or part of the application be dismissed.

While the EO Act does not set any limitation period for applications to the Tribunal, cl 18 of Sch 1 to the VCAT Act provides:

Summary dismissal of application more than 12 months old
The Tribunal may make an order under section 76 summarily dismissing an application under the Equal Opportunity Act 2010 in respect of an alleged contravention of Part 4, 6 or 7 of that Act if the alleged contravention occurred more than 12 months before the application was made.

Section 76 of the VCAT Act empowers the Tribunal to make an order summarily dismissing or striking out all or part of a proceeding for want of prosecution.

Tribunal’s Reasons

The Reasons commenced with a brief introduction:[7]

Christine Tsikos (the applicant) claims that she has been treated unfavourably by Austin Health (the respondent). The unfavourable treatment complained of is that she was denied or limited access to be able to negotiate her salary in comparison with a colleague who reports to her and is paid a significantly higher salary than her. The claim is that a significant reason for this treatment is her age and gender.

After referring to Ms Tsikos’ employment history and classification, the senior member noted that Ms Tsikos’ claims extended from 2011 to the present time, and that the substance of her claim related to events more than 12 months before her application to the Tribunal.[8]

[7]Reasons, [2].

[8]Reasons, [3]-[5].

The Tribunal then turned to Austin Health’s objection to the inclusion in the application of any alleged contraventions occurring before that 12 month period. The senior member determined that Ms Tsikos’ claim in 2018 could proceed, and that the antecedent events were so connected with it that the application should proceed as a whole.[9]
[9]Reasons, [6]-[13].

The Reasons set out the relevant provisions of the EO Act, including ss 8 and 18. There followed a statement of the issues for determination:[10]

To succeed the applicant must satisfy the Tribunal that the circumstances described by her fall within the categories of discrimination in section 18 of the EO Act and are prohibited. That is, that if discrimination occurred it was because of the applicant’s gender or age.
The conduct complained of is the denial of the opportunity to negotiate. Her claim is that from 2011 she sought to negotiate an equitable financial arrangement for herself in comparison to her colleague Mr Spalding but was blocked from doing so. As a consequence, she claims that she was denied or limited access to a benefit connected with her employment. It is this conduct by the respondent the applicant claims to be the discrimination - the unfavourable treatment. She claims that a substantial reason for the discrimination occurring was her age and gender, and it is therefore prohibited under the EO Act. The resultant detriment is claimed to be the loss of remuneration which she would have received if treated on an equal footing to Mr Spalding.

[10]Reasons, [22]-[23].

Agreed facts were then set out, as follows:[11]
[11]Reasons, [24]-[34].

The applicant was employed as a Grade 3 Clinician in the respondent’s Orthotics and Prosthetics Department (the Department) in 2009. On 12 July 2011, she was appointed as manager of that Department at the age of 31.
During her employment the applicant has been paid according to the Enterprise Bargaining Agreement (EBA) relevant to her sector. There was a period during which this did not occur, but it was rectified.
During the period covered by the complaint, there were a number of clinicians in the Department managed by the applicant who received salaries which exceed the EBA. One, Mr Spalding, consistently received a higher salary than the applicant for the entire period of her employment. Each of these clinicians is male. The applicant is a female.
Mr Spalding was employed by the respondent as a Senior Clinician prior to the appointment of the applicant. He was employed on a six-month probationary basis initially and converted to full time on 1 September 2010.

At the time of his employment, Mr Spalding’s remuneration was agreed on the basis that he would raise revenue of $220,000.00 for the Orthotics and Prosthetics Private Service entity of the respondent. His subsequent full-time appointment was on the same basis.
In 2015 when the private arm of the clinic was discontinued, Mr Spalding continued as a Senior Clinician on the same terms and conditions as when originally engaged. There was no longer any separate reporting attached to his revenue contribution.
Mr Spalding was paid in excess of the EBA for his position description. Both parties agree that this was and is considered reasonable in light of his particular expertise and his ability to attract a similar or higher salary in the private sector. The applicant does not and has not suggested that Mr Spalding should not receive his current salary.
Mr Spalding’s duties as a Senior Clinician in the Department are predominantly to see clients - the clinical function. There is an associated administrative load, and teaching and mentoring. He has on occasion acted in the position of Manager of the Department in the absence of the applicant.
The applicant has managed 14 employees during her period as Manager. Of those 14, 10 were male. No less than four of them were paid above the EBA or at a classification higher than their role for the term of their employment. Each of those four were male. (The applicant claims that there were six.)
When the applicant was on leave, Mr Spalding acted in her position. He was paid at his salary which was higher than the applicant’s when acting in her role.
All employees in the Department report directly to the applicant, including Mr Spalding.

The next section of the Reasons is headed ‘Evidence in Relation to Attempts to Negotiate’. The evidence given by Ms Tsikos and witnesses called by Austin Health was described by reference to six separate attempts by Ms Tsikos to negotiate in relation to her salary:

(a) the first attempt was on 12 August 2011, when Ms Tsikos sent an email to Jo-Anne Moorfoot, the Director of the Sub Acute Clinical Service Unit, who had recently become Ms Tsikos’ manager, following which Ms Tsikos and Ms Moorfoot had a meeting;[12]
[12]Reasons, [35]-[43].

(b) the second to fourth attempts were interactions between Ms Tsikos and Ms Moorfoot between 2011 and 2014;[13]

(c) the fifth attempt was a meeting in May 2015 between Ms Tsikos, Ms Moorfoot, and Ms Tsikos’ then direct line manager Debbie Munro;[14] and

(d) the sixth attempt was a letter dated 26 June 2018 from Ms Tsikos to Austin Health.[15]

[13]Reasons, [44]-[51].

[14]Reasons, [52]-[68].

[15]Reasons, [69]-[73].

Under the heading ‘Unconscious Bias’, the senior member referred to expert evidence called by Ms Tsikos on that topic:[16]
[16]Reasons, [74]-[76].

The applicant invited evidence from Dr Wheelan, a private Psychologist. Dr Wheelan has a practical and academic interest in the area of unconscious bias. Her written statement was tendered to support the applicant’s contention that the respondent may not have discriminated at a conscious level.
Dr Wheelan wrote that –
people prefer women to behave like stereotypical women, and men to behave like stereotypical men. When women display traits or behaviours that are more stereotypically masculine, they are likely to be penalized and evaluated more negatively.

In addition, she said that when applying the principles to the current case it could be suggested that when the applicant attempted to negotiate her classification she was accused of being “motivated by money” and “that the same claim would be less likely to be levelled at a male employee.”

The senior member then discussed the evidence and set out her findings in relation to the first to fifth attempts:[17]
[17]Reasons, [77]-[92].

The evidence in relation to the applicant’s remuneration is not disputed. She has been paid significantly less than Mr Spalding for the duration of her appointment.
I accept that the evidence of the applicant that she and Mr Spalding have some equivalent qualifications and experience and at times share duties and roles. I find that the applicant’s role has a management and administrative component greater than Mr Spalding’s and that there is a clinical component to each.
I make no finding as to the respective clinical skills of the applicant and the respondent other than that they have similar qualifications.
I accept the evidence provided by the applicant and the respondent that Mr Spalding was first appointed on a revenue raising basis. I find that he was retained at the same level of remuneration when the requirement to raise revenue was no longer relevant. The importance of Mr Spalding’s contribution to the work of the Department in both skills and revenue raising is not contested. I accept the evidence of both parties that Mr Spalding receives a remuneration in excess of the EBA for his classification.
Whilst invited to make a finding in relation to the appropriateness of the applicant’s remuneration, I make no finding other than that it is as agreed by the parties to be consistent with the EBA for her classification, role and skills. The task of the Tribunal is not to determine whether the applicant should be paid above the EBA to match Mr Spalding. The task is to determine whether the applicant was denied access to the opportunity to negotiate this benefit for reasons prohibited by the EO Act.
I accept the evidence of the applicant that there were no less than four employees who received remuneration above the relevant EBA or who were classified at a level above the relevant EBA.
The first attempt
I accept the evidence of the applicant that she raised the issue of the disparity between her salary and that of Mr Stirling with Ms Moorfoot in 2014 and that Ms Moorfoot responded as provided in paragraph 35 of her witness statement.
It is my view that standing alone this transaction was not complete. Ms Moorfoot said that in her view a favorable response would be unlikely, but she did not stop, limit or prevent the applicant from pursuing her concerns further. None of the stated reasons indicate the consideration of age or sex which would give rise to the claim of prohibited discrimination.
The second to fifth attempts
I accept the applicant’s evidence that she raised the issue of pay disparity with Mr Spalding with Ms Moorfoot on several occasions between 2011 and 2015 and that the discussions did not progress.
The meeting with Ms Moorfoot and Ms Munro is recalled by all participants. Both Ms Moorfoot and Ms Munro confirm that the applicant raised the topic of her salary in comparison with Mr Spalding’s in the meeting. I accept their evidence that it was raised in a meeting which was scheduled to discuss the Department budget, and that they felt and displayed irritation with the applicant.
Ms Moorfoot’s evidence that she had had discussions with the applicant about measures to regularize Mr Spalding’s salary is accepted although her recollection of it occurring in the meeting with Ms Munro and the applicant is not consistent with the applicant and Ms Munro’s evidence.
I find that it is likely that Ms Moorfoot used the words “young manager” at some point in conversation with the applicant but not necessarily in discussions about the wage disparity with Mr Spalding.
Ms Moorfoot’s evidence demonstrated that she had been dismissive when the applicant asked about her pay, and had suggested that the applicant should seek employment in the private sector to get a higher salary.
I accept Ms Munro’s evidence of the meeting that she was not aware of any further attempts to negotiate or overtures from the applicant after that meeting.
I accept the evidence of the applicant that she felt her efforts to attain a benefit which had been bestowed on an older male who performs a similar job with attributes close to her own were not given proper consideration and that her efforts had been stifled and that she did not raise the issue again until 2018 for that reason.
I accept the evidence of the respondent’s witnesses that they were never aware or made aware of any claim or concern that the wage disparity issue was perceived to be related to age or gender.

There followed a general discussion of the evidence:[18]
[18]Reasons, [93]-[107].

To succeed in this claim, the applicant must satisfy the Tribunal that she has received unfavourable treatment. She relies on what she characterises as Mr Spalding’s favorable treatment.
From the evidence, I am satisfied that Mr Spalding receives an above EBA salary. I find that its basis is in part due to an historical formula based on revenue raising and the most particular skills brought to the Department by Mr Spalding. The respondent and the applicant have had opportunities to review this and have elected to maintain the salary.
To claim that she was unfavourably denied the opportunity to negotiate her salary, the applicant might be expected to show that Mr Spalding or others in her Department have had the opportunity to negotiate salaries above the EBA.
The applicant provided evidence of only one employee who negotiated a salary higher than the EBA – Mr Young. Mr Young was recruited by the applicant. He resigned before his salary increase was implemented.
It is open to me to conclude that at the time Mr Spalding was employed, he had some engagement in the salary setting process. No evidence was led in relation to any post-engagement negotiations. Indeed, the evidence submitted by Ms Munro and the applicant indicated that the salary discussions occurred at the level of the applicant and her managers to the exclusion of the affected employees.
Therefore, it has been established that Mr Spalding has a salary higher than the applicant, but there is insufficient evidence to demonstrate that he has had an opportunity to negotiate it or its retention. The consequence is that the applicant’s claim that she has been denied or limited in her ability to negotiate her salary is barely made out. She has not demonstrated that she has received unfavourable treatment in regard to the treatment received by Mr Spalding. Her claim may remain in relation to Mr Young.
Should that not be correct, the applicant is then required to satisfy the Tribunal that she has in fact been refused or limited in accessing the benefit of negotiating her salary.
The applicant was discouraged from making further attempts to negotiate her salary by her manager’s dismissal of her attempts to negotiate. Of that I am satisfied. It is not enough. It is necessary to show that the acts of the respondent amounted to denial or limitation of her access to negotiating her salary.
Ms Moorfoot’s evidence is that she felt the applicant’s requests were inappropriate in the existing climate of budget reform, not timely, nor raised through the appropriate process and in her opinion would not be successful because the applicant could not substantiate her claim of equal standing with Mr Spalding. She conceded that she did not encourage or support the attempted discussions.
Ms Munro’s evidence is that there was a climate of budget constraints and that the applicant was a part of that process. In her view, there was little capacity to increase salaries in that climate. The applicant was given the opportunity to reconfigure the Department funding over time through attrition or through reclassification of positions.
The applicant did not raise the issue with any degree of formality until her complaint in 2018 on which this application is based. The applicant did not put the respondent to the test – and therefore has little evidence of the nature of the rejection of her attempts to negotiate, nor the reason for the rejection.
Were I to accept the applicant’s evidence at its highest and find that that the alleged conduct by Ms Moorfoot and Ms Munro on behalf of the respondent amounts to a denial or limitation of access to a benefit, or the subjection of the applicant to a detriment – then the issue of a reason becomes relevant.
What evidence has the applicant provided to demonstrate that the conduct of the respondent related substantially to her age or sex? Firstly, the comments reported to have been made by Ms Moorfoot – that the applicant was a “young” manager, and then the evidence of Dr Wheelan.
Firstly, Ms Moorfoot may have made comments in relation to the applicant’s youth. However, that on its own it is not sufficient to satisfy the burden of proof here – that it is more likely than not that the respondent breached section 18 of the EO Act because the applicant was “young”.
Dr Wheelan’s evidence was about general matters. She was not in a position to comment on the effect of unconscious bias in this case. The applicant submits that she was subjected to unconscious bias by the respondent who favoured the men in her department over herself when it came to negotiating salary parity or over award payments. The applicant says that unconscious bias directed the unfavourable treatment. The evidence did not support this conclusion.

The Tribunal found that Ms Tsikos had failed to prove on the balance of probabilities that she was denied or limited from negotiating her salary and receiving payment for her work equivalent to Mr Spalding, or any other male. The Tribunal also found that, even if that occurred, Ms Tsikos had not shown that it was on the basis of her age or sex.[19] The Tribunal concluded that Ms Tsikos had not demonstrated:[20]

a.That being unable to negotiate her salary was “unfavourable treatment”. She raised this in the context of being denied the opportunity but not providing adequate evidence of the opportunity existing amongst the other employees.
b.That she was denied or limited from negotiating her salary. The applicant was able to demonstrate that the respondent did not encourage and informally disregarded the attempts to negotiate. She did not demonstrate with sufficient strength or particularity a denial or limitation of the attempts.
c.That any treatment which might be considered unfavourable was on the basis of her protected attributes of age or sex.

[19]Reasons, [108].

[20]Reasons, [109].

For those reasons, the application was dismissed by the Tribunal.

Question 1 – Unfavourable treatment

The first question of law identified in Ms Tsikos’ notice of appeal to this Court is:

What is the test for direct discrimination in s 8(1) of the Equal Opportunity Act 2010 (Vic) (the 2010 Act)?
Is there a role for a comparator, other than – in an appropriate case – as evidence capable of inferentially proving that person A has treated, or proposes to treat, person B who has a s 6 attribute, unfavourably because of that attribute?
Given the objectives of the 2010 Act, in particular those at pars (a), (b), (c) and d(i), (cf the objectives of the Equal Opportunity Act 1995 (Vic) (the 1995 Act)), does the test require, otherwise permit, when the unfavourable treatment has occurred over a number of years, to consider only, and separately, individual events occurring during that period?

The grounds set out in the notice of appeal elaborated on this question — or, more accurately, these questions.

Ms Tsikos’ submissions

The essence of Ms Tsikos’ argument was that the Tribunal was required by s 8(1) of the EO Act to determine whether she had been treated unfavourably because of the attributes of age and sex by reference to the whole of the evidence, over the entire period from 2011 onwards, and had not done so. Instead, the Tribunal had narrowed its focus to the comparison between the treatment of Ms Tsikos and that of Mr Spalding, and to five of the six pleaded occasions on which Ms Tsikos attempted to negotiate an over-agreement salary for herself.

Ms Tsikos submitted that the threshold for finding direct discrimination under s 8(1) of the EO Act is, as a practical matter and reflecting Parliament’s intention, lower than the threshold for that finding under the repealed s 8(1) of the 1995 Act. It is no longer necessary to make a comparison between the treatment of the applicant and that of a person without the relevant attribute in the same or similar circumstances. The tribunal of fact may be assisted by evidence of how the respondent treated others without the attribute, but as a matter of evidence, not as a legal element of the definition of direct discrimination.

In Ms Tsikos’ submission, Mr Spalding was a comparator ‘of sorts’. She said that his situation was not directly comparable to hers because he did not ever have to negotiate with Austin Health to receive an over-agreement salary, and because the specific revenue raising targets that informed his historically preferential treatment had ceased in 2012.

Ms Tsikos argued that, having determined that her application could ‘proceed as a whole’, the Tribunal erred by approaching its task as requiring a separate evaluation of each of her six attempts to negotiate her salary, rather than an evaluation of the whole period of employment during which those attempts were made. The EO Act did not support an itemised approach, but rather obliged the Tribunal to consider the attempts (in particular the sixth and final attempt) in the context of everything that had occurred previously.

She submitted that the Tribunal failed to consider her treatment in its entirety, when the true picture could only be derived from an accumulation of detail, and the overall effect of that detail could only be appreciated by standing back and viewing it from a distance.[21] Rather, the Tribunal erroneously made findings about five of the six pleaded instances of unfavourable treatment, and failed to consider all six instances collectively.
[21]Referring to Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 141 (Tadgell JA, Winneke P and Phillips JA agreeing).

Ms Tsikos also relied on some specific errors in the Reasons, which she said bore upon its wrong conclusion that she had not been unfavourably treated because of her age and sex. These were:

(a) the finding that separate reporting of Mr Spalding’s revenue contribution ceased in 2015,[22] when the evidence was that this occurred in 2012;

(b) the Tribunal’s failure to make any finding about her sixth attempt to negotiate an over-agreement salary in June 2018, either on its own or as part of a course of direct discrimination extending over many years; and

(c) the Tribunal’s failure to consider the evidence, supportive of Ms Tsikos’ case, that there were two other employees who had sought to negotiate an over-agreement wage — a female employee who was refused, and a male employee who was successful.

[22]Reasons, [29].

Austin Health’s submissions

Austin Health contended that the Tribunal did not err in its construction or application of s 8 of the EO Act. Rather, it addressed the case presented by Ms Tsikos at the hearing, which focused on Mr Spalding as the comparator against whom her claim of unfavourable treatment was to be assessed. It relied on the written outline of submissions filed on behalf of Ms Tsikos before the Tribunal hearing, which expressly identified Mr Spalding as a comparator and invited the Tribunal to ‘Compare the Pair’. Austin Health referred me in detail to evidence that supported its position that Mr Spalding’s over-agreement salary was unrelated to Ms Tsikos’ age and sex, and to its submission that Mr Spalding was not a proper comparator.

In the submission of Austin Health, Ms Tsikos was bound by the way her case had been put before the Tribunal.[23] It characterised her case, as put in her written outline, and her written and oral closing submissions, as having involved a clear forensic decision to make a comparison between the treatment of Ms Tsikos and Mr Spalding.
[23]Referring to Gombac Group Pty Ltd v Vero Insurance Ltd (2005) 23 VAR 460, [59]; Higgins Nine Group Pty Ltd v Ladro Greville St Pty Ltd [2016] VSC 244, [10]; Clubb v Edwards [2020] VSC 49, [32].

Austin Health noted that in Aitken v State of Victoria,[24] the Court of Appeal had left open the question of whether a comparator might be relevant in assessing ‘unfavourable treatment’ under the EO Act. It submitted that a comparison between the applicant’s treatment and the treatment of others in the same situation might be a relevant factor in considering a claim of unfavourable treatment, but that it was no longer a necessary consideration.[25] It argued that the Tribunal had not required Ms Tsikos to demonstrate unfavourable treatment by reference to a comparator; it had simply adjudicated upon the case advanced by Ms Tsikos at the hearing.
[24](2013) 46 VR 676, [50].
[25]Referring to Slattery v Manningham City Council [2013] VCAT 1869, [51].

Austin Health refuted the submission that the Tribunal did not examine the entire period between 2011 and 2018. It said that the Tribunal had received evidence pertaining to that whole period, and had examined and determined the six instances of alleged discrimination. The claimed errors of fact, set out at [39] above, were dismissed as minor errors, not amounting to errors of law. Austin Health argued that the sixth attempt to negotiate was considered by the Tribunal and featured in its process of reasoning.[26]
[26]Referring to Reasons, [103].

Consideration

There are two distinct issues raised by the first question of law set out in the notice of appeal. The first is whether there is a role for a comparator in determining whether a person has been treated unfavourably because of an attribute, for the purposes of the definition of ‘direct discrimination’ in s 8(1) of the EO Act. The second is whether the Tribunal was required to determine the complaint of direct discrimination over a number of years by reference to the whole of the evidence over the relevant period.

Is there a role for a comparator?

As to the first issue, comparison is no longer an essential component of direct discrimination, as that concept is now defined in the EO Act. Under the 1995 Act, and earlier anti-discrimination legislation in Victoria, it was necessary to make a comparison between the treatment of the person with the relevant attribute, and treatment of ‘someone without that attribute, or with a different attribute, in the same or similar circumstances’.[27] The current definition of direct discrimination requires only unfavourable treatment of a person with an attribute, because of that attribute.
[27]Equal Opportunity Act 1995 (Vic) (repealed), s 8(1). See also Equal Opportunity Act 1984 (Vic) (repealed), s 17 and Equal Opportunity Act 1977 (Vic) (repealed), s 16.

The legislative choice to dispense with the need for a comparator is clear from the plain words of the definition in s 8(1), and is reinforced by the extrinsic materials for the EO Act. In the second reading speech for the Bill, the Attorney-General explained the rationale for a simpler definition of direct discrimination:[28]

The bill clarifies the meaning of discrimination so that it is easier to understand for both duty-holders and complainants, and so that a complaint will no longer fail on unnecessary technicalities.
The bill provides that direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute unfavourably because the other person has the attribute. This definition removes the technical difficulties associated with the current requirement to compare the treatment of the person with a person in the same or similar circumstances.

[28]Victoria, Parliamentary Debates, Legislative Assembly, 10 March 2010, 786 (Rob Hulls, Attorney-General). See also the extract from the explanatory memorandum at [17] above.

However, in many cases a comparison will provide evidence that is probative of whether a person was treated unfavourably, and whether the treatment was because of a particular attribute. Considering the treatment of other people in similar circumstances may be of assistance in determining whether an applicant has been treated unfavourably, and why, but the Tribunal is no longer required to make a comparison. I agree with the Tribunal’s careful analysis of the changed definition of direct discrimination in the EO Act in Slattery v Manningham City Council,[29] in particular these conclusions:[30]

I accept that considering the treatment afforded to other people in the same situation may be of assistance in undertaking the task of assessing whether or not someone had been treated unfavourably, but I do not consider that the section requires me to do so. Unlike the previous provision, that in the EO Act 1995, which specifically required comparison, this provision does not. The Explanatory Memorandum indicates that the shift away from the previously clearly expressed requirement to compare relative treatment was purposeful.
…
Taking into account the wording of s 8 of the EO Act 2010 on its face, the extrinsic materials, the available authority and s 32 of the Charter, it is my view that the definition of direct discrimination in the EO Act 2010 does not require a comparator. What it requires is an analysis of the impact of treatment on the person complaining of it. This analysis may be informed by consideration of the treatment afforded to relevant others, particularly in circumstances where it is not clear whether the treatment is unfavourable.

[29]Slattery, [35]-[53].

[30] Slattery, [51], [53] (emphasis in original).

In this case, a comparison between Austin Health’s treatment of Ms Tsikos with its treatment of Mr Spalding was a significant component of the case put by Ms Tsikos before the Tribunal. Ms Tsikos’ complaint is not that the Tribunal made the comparison, but that it focused on the comparison to the exclusion of other aspects of her case. Austin Health’s position is that the Tribunal simply determined the case that was put by Ms Tsikos. It is therefore necessary to examine the case that was presented to the Tribunal.

Ms Tsikos filed particulars of claim with the Tribunal on 18 September 2019, which set out in pleading form her allegations of fact and the basis on which she said they amounted to age and sex discrimination. Paragraph 3 of the particulars identified Mr Spalding and five other employees who reported to Ms Tsikos in her management role. Paragraph 4 continued:

The employees named in the above paragraph:
a.are male;
b.receive or have received remuneration above that provided for the classifications of their roles [in] the Enterprise Agreements pertaining to their roles;
…
c.were afforded the opportunity by the Respondent to negotiate their remuneration above that provided for the classifications of their roles in the Enterprise Agreements pertaining to their roles;
d.are the only employees in the Department whilst the Applicant has been employed in the Management role … who have received the benefits referred to in subparagraphs 4(b) and 4(c) herein.

After pleading that Ms Tsikos had at all times during her employment been paid at the rate provided in the applicable enterprise agreement, her central allegation of fact was set out in paragraph 6:

The Applicant sought to negotiate remuneration at a rate above that provided for in the Health Professionals Agreements as follows …

What followed in sub-paragraphs 6(a) to (g) were six alleged attempts to negotiate over-agreement remuneration between 2011 and 2018, culminating with Ms Tsikos’ letter to Austin Health dated 26 June 2018.

Paragraphs 7 to 11 of the particulars set out the basis on which Ms Tsikos claimed age discrimination, which centred on alleged comments by Ms Moorfoot to the effect that Ms Tsikos was young to be in the role of manager. Paragraphs 12 to 16 set out Ms Tsikos’ claim of sex discrimination:

12.During the period of the Applicant’s employment in the Manager role the Respondent has only negotiated with and paid remuneration above that provided for under enterprise agreements to males working in the Department (the sex attribute).
Particulars

The Applicant refers to the male employees listed in paragraph 3 herein. The Department is composed of about 14 employees with about half being male and half being female. Further particulars of the number of employees of each sex in the Department will be provided after discovery by the Respondent of such details.

13.Because of or for reasons including the sex attribute the Respondent denied or limited the Applicant’s access to benefits connected with her employment including:
a.the opportunity to negotiate her remuneration;
b.the opportunity to be paid above the remuneration provided for by the Health Professionals Agreements for her role;
c.the opportunity to be paid at or above the remuneration paid to Mr Spalding.

14.The conduct in the above paragraph constitutes discrimination in breach of s 18(a) of the EO Act.
15.Because of or for reasons including the sex attribute the Respondent subjected the Applicant to detriment including:
a.refusing to negotiate the Applicant’s remuneration with her;
b.refusing to pay the Applicant at above the minimum level provided for by the Health Professionals Agreements for her role as classified by the Respondent;
c.paying the Applicant remuneration less than that paid to Mr Spalding.

16.The conduct in the above paragraph constitutes discrimination in breach of s 18(d) of the EO Act.

Austin Health’s defence filed 9 October 2019:

(a) made a threshold objection that the application included alleged contraventions occurring more than 12 months before the application was made, and sought summary dismissal of those allegations under s 76 of the VCAT Act;

(b) admitted the employment of Mr Spalding and the five other employees named in paragraph 3 of the particulars of claim, and admitted that they were all male, but denied that they received or had been afforded the opportunity to negotiate over-award remuneration;

(c) responded to paragraph 6 by admitting, not admitting or denying each of the allegations in sub-paragraphs (a) to (g) regarding the six alleged attempts to negotiate over-agreement remuneration between 2011 and 2018;

(d) denied the allegations of age discrimination in paragraphs 7 to 11; and

(e) denied the allegations of sex discrimination in paragraphs 12 to 16.

The written submissions filed on behalf of Ms Tsikos before the Tribunal hearing placed much emphasis on Mr Spalding’s over-agreement remuneration, and invited a direct comparison between the treatment of Ms Tsikos and Mr Spalding. There is no doubt that the comparison between the two was a central plank of her case. However, the submissions also relied on the over-agreement remuneration of other men in the Department.[31] A significant component of the case outlined in the written submissions was that Ms Tsikos had repeatedly attempted, without success, to negotiate over-agreement remuneration while Mr Spalding and five other men under her management were all paid at over-agreement rates.
[31]Applicant’s outline of submissions dated 6 March 2020, [3], [35], [54], [58], [68].

The evidence called for Ms Tsikos at the Tribunal hearing reflected that approach. She gave evidence in which she adopted her witness statements dated 23 October 2019, 27 November 2019 and 6 December 2019. Those statements referred to Mr Spalding’s situation, and compared it with her own. They also referred to Ms Tsikos’ understanding that five other men in the Department were paid over the applicable agreement rates.[32] In addition, Ms Tsikos gave evidence that in March 2012 she had requested an increase in the salary to be offered to a female clinician with similar experience to Mr Spalding, and that her request had been refused by Ms Moorfoot.[33] The only other witness called for Ms Tsikos was Dr Jennifer Whelan, a social psychologist, whose expert report is discussed below in relation to the second question of law.
[32]Witness statement of Christina Tsikos dated 23 October 2019, [7], [13], [16], [21]-[22], [24](d), [25]-[30]; Witness statement of Christina Tsikos in reply dated 27 November 2019, [4], [9]-[10]; Further witness statement of Christina Tsikos in reply filed in the Tribunal proceeding dated 6 December 2019, [15].
[33]Witness statement of Christina Tsikos dated 23 October 2019, [13].

The statements of Austin Health’s witnesses addressed the reasons for the over-agreement remuneration of all six men identified by Ms Tsikos in her particulars of claim and witness statement, not only Mr Spalding.[34]
[34]Witness statement of Jo-Anne Moorfoot dated 12 November 2019, [10]; Witness statement of Debbie Munro dated 14 November 2019, [14], [17], [19]; Witness statement of Jess O’Donnell dated 13 November 2019, [13]-[16], [20].

Counsel for Ms Tsikos provided the Tribunal with written closing submissions, in addition to his oral submissions. Again, a centrepiece of those submissions was the comparison between Ms Tsikos and Mr Spalding. There were also references to the other men within her team who received salaries above the enterprise agreement.[35] Her case in closing remained that she had been blocked by her managers from negotiating, and receiving, an over-agreement salary for many years, in contrast to a number of men in her team, most notably Mr Spalding.
[35]Applicant’s closing submissions provided to the Tribunal on 12 March 2020, [3], [18]-[20]; Tribunal transcript, 12 March 2020, 301:40-42, 303:45-304:6.

The Tribunal was invited to compare Austin Health’s treatment of Ms Tsikos, in her attempts to negotiate her salary, with Mr Spalding’s situation. There was no error in simply comparing their treatment. As discussed, the definition of direct discrimination in the EO Act does not require a comparison to be made, or a comparator to be identified. However, in an appropriate case, it is permissible to examine a claim of unfavourable treatment because of an attribute by comparing the treatment of people with different attributes in like circumstances.

However, in undertaking the comparison, the Tribunal took an unnecessary step. Instead of determining whether the responses to Ms Tsikos’ attempts to negotiate a higher salary were ‘unfavourable treatment’ of Ms Tsikos, the Tribunal asked whether she had been treated less favourably than Mr Spalding. This is most apparent at [95] of the Reasons, where the Tribunal framed the issue for determination in this way:

To claim that she was unfavourably denied the opportunity to negotiate her salary, the applicant might be expected to show that Mr Spalding or others in her Department have had the opportunity to negotiate salaries above the EBA.

The Tribunal then found that, while it had been established that Mr Spalding had a higher salary than Ms Tsikos, ‘there is insufficient evidence to demonstrate that he has had an opportunity to negotiate it or its retention’.[36] For that reason, the Tribunal found that Ms Tsikos had ‘not demonstrated that she has received unfavourable treatment in regard to the treatment received by Mr Spalding’.[37]

[36]Reasons, [98].

[37]Reasons, [98].

This was not what was required by s 8(1) of the EO Act. The question for determination was whether Ms Tsikos had been treated unfavourably, not whether she had been treated less favourably than Mr Spalding or anyone else. The Tribunal’s approach unfortunately reintroduced an ‘unnecessary technicality’ associated with the former definition of direct discrimination.[38]

Did the Tribunal consider the whole of the evidence of the alleged unfavourable treatment?

[38]See [17] and [46] above.

This brings me to the second issue raised by the first question of law — whether the Tribunal was required to determine whether Austin Health had treated Ms Tsikos unfavourably by reference to the whole of the evidence over the period between 2011 and 2018. It is apparent from the particulars of claim, the evidence, and the opening and closing submissions that Ms Tsikos’ claim was that Austin Health had:

(a) refused, between 2011 and 2018, to negotiate her remuneration with her;

(b) not paid her over the minimum provided for in the 2011 Agreement and the 2016 Agreement; and

(c) paid her less than Mr Spalding.

Ms Tsikos’ central complaint was that, over seven years, her attempts to negotiate and receive a benefit enjoyed by six men in the Department had been rebuffed by her employer. The separate interactions with her managers in which she tried to raise the issue of pay disparity, and the way she was treated during those interactions, were parts of her overall complaint of unfavourable treatment by Austin Health.

The Tribunal simply did not consider whether, viewed as a whole, Austin Health’s treatment of Ms Tsikos in relation to her remuneration amounted to direct discrimination because of her age and sex, contrary to ss 18(a) and (d) of the EO Act. Instead, it considered the pleaded attempts to negotiate a higher salary in isolation, and made findings about only five of the six attempts.

The Reasons do not include any finding about Ms Tsikos’ sixth attempt to negotiate her salary. This was a significant omission, given that it was the culmination of her attempts to resolve her grievance with her employer. On 26 June 2018, Ms Tsikos wrote to Austin Health as follows:[39]
[39]Although the letter is dated 26 July 2018, Ms Tsikos said in her witness statement dated 23 October 2019 that she sent it on 26 June 2018, the day before she was to commence a period of leave.

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 a series of instances where Ms Tsikos questioned the management of her classification and remuneration, between 2011 and 2017, and continued:

As a result of these numerous long running and multifaceted 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 Tuesday 10^th 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.

Austin Health’s response did not contain any proposal for resolution, nor an offer to discuss Ms Tsikos’ classification or remuneration. On 17 August 2018, Brit Gordon, the Divisional Director Allied Health replied:

I write in response to your letter dated 26 June 2018, regarding concerns with your remuneration and classification.
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 EBA 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 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 EBA 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.

As Austin Health pointed out, the Tribunal did refer to the sixth attempt towards the end of its Reasons. At [103], the Tribunal said that Ms Tsikos had not formally raised the issue ‘until her complaint in 2018 on which this application is based’.[40] The senior member went on to say that the applicant had not put the respondent to the test and therefore had ‘little evidence of the nature of the rejection of her attempts to negotiate’. However, there was no reference to Austin Health’s response in that paragraph, or anywhere else in the Reasons.[41] Nor was there any finding whether the response amounted to a rejection of Ms Tsikos’ express request for an ‘opportunity to engage in discussions regarding uplifting [her] classification and remuneration’.
[40]Reasons, [103].
[41]See in particular Reasons, [69]-[73], under the heading ‘Sixth attempt’.

These omissions indicate that the Tribunal failed to consider critically relevant material that was an essential feature of the Tribunal’s statutory function.[42] The Tribunal’s statutory function under s 125 of the EO Act was to hear and determine the application made by Ms Tsikos under s 122. That application alleged that Austin Health had contravened ss 18(a) and (d) of the EO Act in the way described at [60] above. For the reasons discussed, I have concluded that the Tribunal did not address the alleged contraventions, and failed to perform its statutory function in this instance.
[42]Chang v Neill (2019) 62 VR 174, [92].

Ms Tsikos has established three separate errors in relation to the first question of law identified in her notice of appeal.

(a) Instead of determining whether the responses to Ms Tsikos’ attempts to negotiate a higher salary were ‘unfavourable treatment’ of Ms Tsikos, the Tribunal asked whether she had been treated less favourably than Mr Spalding, which is not the test for direct discrimination under s 8(1) of the EO Act.

(b) The Tribunal did not determine whether the contravention alleged by Ms Tsikos in her application had been proved — that is, whether Austin Health treated Ms Tsikos unfavourably in relation to her remuneration over the entire period between 2011 and 2018, because of her age and sex, contrary to ss 18(a) and (d) of the EO Act.

(c) In addition, the Tribunal failed to consider and make findings about Austin Health’s response to Ms Tsikos’ sixth attempt to negotiate her remuneration, in June 2018.

In my view, had the Tribunal not made those errors, it would have been open to the Tribunal to find that Austin Health had treated Ms Tsikos unfavourably between 2011 and 2018. Subject to what follows about the cause of that treatment, it would also have been open to the Tribunal to find that Austin Health had contravened s 18 of the EO Act, by:

(a) denying or limiting her access to benefits connected with her employment, namely the opportunity to negotiate and receive over-agreement remuneration, contrary to s 18(a); and

(b) subjecting her to the detriment of refusing to negotiate her remuneration and to pay her over-agreement remuneration, contrary to s 18(d).

Conversely, it is difficult to see how the Tribunal could reasonably have concluded that Austin Health had not denied or limited Ms Tsikos access to the benefit of negotiating her salary[43] if it had considered Austin Health’s response to Ms Tsikos’ sixth attempt to negotiate her salary. Her letter of 26 June 2018 put Austin Health ‘to the test’, in the clearest of terms.
[43]Reasons, [100]-[103].

Austin Health argued that, even if error was made out in relation to the first question of law, the error would not be material given the Tribunal’s separate conclusion that Ms Tsikos had not demonstrated that any treatment that might be considered unfavourable was on the basis of her age or sex. I do not accept that argument. The Tribunal’s findings about the cause of Austin Health’s conduct were limited to Ms Tsikos’ first five attempts to negotiate her salary, in isolation. The Tribunal did not make findings about the sixth attempt, or the alleged unfavourable treatment as a whole, and so it did not make findings about the cause of that treatment.

Austin Health also contended that it was not open to the Tribunal to find that Ms Tsikos was treated unfavourably because of her age or sex. If that contention is correct, there would be no utility in remitting the proceeding to the Tribunal. It is therefore necessary to consider the questions raised in the appeal about the proper approach to causation under s 8(1) of the EO Act.

Question 2 – Because of an attribute

The second question of law set out in the notice of appeal was:

At all times S had an above award pay, and greater than the Appellant’s pay, even though she was his manager and at a higher grade. The benefit of an above award pay continued for S, without him having to negotiate it, even when the role’s requirement that had initially led to S having a contract of employment with a higher than award pay had long ceased to apply.
Given that unconscious bias exists in Australia, including in the workplace (there being uncontradicted expert evidence to this effect), when considering the Appellant’s claim of denial or limitation of benefits connected with employment by reason of sex (female), and also age, how is the evidence that S (the comparator without the attribute) had never been in the position of having to ask for that benefit, to be evaluated?

Grounds 6 and 7 in the notice of appeal identified the claimed error more directly, as follows:

6.The Tribunal erred (at [107]) in considering that the expert evidence had to be directed to the provable effect of unconscious bias in the particular case, and this error led the Tribunal to wrongly fail to take into account, as relevant, that expert evidence.
7.The Tribunal erred in failing to find (cf at [108], finding to the contrary) that the evidence, including the expert evidence, and including inferences to be reasonably drawn, proved, on the balance of probabilities, that the (past and continuing foreseeably into the future) unfavourable treatment by the Respondent of the Appellant was because of the Appellant’s sex and, at least historically, also her age.

Ms Tsikos also relied on the specific factual errors identified at [39] above, which she said had contributed to the Tribunal’s wrong dismissal of the expert evidence.

The expert evidence

Before outlining the parties’ arguments on the question of causation, it is necessary to say something about the expert evidence relied on by Ms Tsikos.

Dr Jennifer Whelan is a social psychologist who specialises in ‘intergroup social processes including conscious and unconscious bias, stereotyping, discrimination, prejudice, particularly in relation to organisational gender diversity and equity’. She has a PhD in experimental social psychology and social cognition, and worked between 2003 and 2012 as a research fellow, first at the University of Melbourne and then at Melbourne Business School. Since 2012, she has been the principal of the consultancy firm Psynapse Psychometrics Pty Ltd, which specialises in diversity and inclusion advice for organisations.

Dr Whelan prepared a statement dated 20 February 2020, based on a review of peer-reviewed academic and industry research relevant to Ms Tsikos’ claims that six men reporting to her were paid over-agreement remuneration, and that multiple attempts by her to negotiate over-agreement remuneration for herself had been unsuccessful. Dr Whelan introduced her findings as follows:

The national gender pay gap in 2019 was 14% (WGEA 2019) and while like-for-like pay discrepancies (women being paid less than a man for equal work) are addressed by equal pay and anti-discrimination legislation, gender gaps in remuneration persist. Key reasons for this include:
•Women’s over-representation in lower paid occupations.
•Women’s over-representation in part-time employment/parental leave.
•Women’s under-representation in senior (higher paid) roles.

However, like-for-like gaps are still also evident and more likely to arise in circumstances where all or part of a remuneration package are negotiable, or paid as bonuses for meeting or exceeding performance indicators, and where there is ambiguity around the classification or roles.
In this matter there appears to be two potential sources of potential bias – firstly in terms of classification, and secondly in terms of discretionary remuneration (for which there is no clear procedure or criteria, according to the Respondent):
•A number of male direct reports were paid higher than the Enterprise Agreement rate, where Christina was paid at the Enterprise Agreement rate; and
•One male direct report was paid both higher than the Enterprise Agreement rate and higher than Christina, despite her being his manager.

While the [Respondent] states that roughly equal numbers of men and women are paid salaries above the agreement for their classification, a far greater proportion of employees overall are women. In effect this means that a greater proportion of employees who are paid more than the classification for their role are men. This dynamic is well-evidenced in research.

She then referred to relevant research in relation to gender bias in perceptions of performance and value. According to Dr Whelan, research from both the United States and Australia shows gender pay gaps at the graduate recruitment level, and in other hiring and remuneration contexts where male and female candidates are equally qualified. In all contexts, men are more likely to be paid more than women with the same objective merit — men tend to be offered higher starting salaries and be awarded higher discretionary bonus payments than women with similar qualifications and performance ratings.

Dr Whelan then identified two other well-documented effects that further contribute to gender bias in the workplace. The first was research indicating that men are more likely than women to be rated as higher performing in leadership roles, which Dr Whelan considered relevant to Austin Health’s assessment of Ms Tsikos’ performance as a manager as ‘adequate’. The second was research showing that people are more likely to react negatively to those who do not fit gender stereotypical expectations. In other words, women who display traits or behaviours that are more stereotypically masculine may incur a backlash. This ‘pushy penalty’ can deter women in negotiation settings. Dr Whelan noted that when Ms Tsikos attempted to negotiate her remuneration she was accused of being ‘motivated by money’, a claim she considered was less likely to have been levelled at a male employee.

Under the heading ‘Gender Bias in Negotiation’, Dr Whelan said:

A common claim in relation to the gender pay gap is that women don’t negotiate as much, or as hard as men do. For example, Babcock shows that while over 50% of men negotiate salary offers, only 7% of women do. This has led to the defence that if women negotiated more, they would win the same outcomes – the issue isn’t gender bias.
However, research on pay negotiations shows that firstly, backlash (see above) deters women from negotiating as hard as men; and that secondly, even when women do negotiate, they are less likely to win the same outcomes as men when they do, as evidenced by research that “when women ask as often as men, they just don’t get” (Artz et al).
Bowles also found that when women negotiated for higher remuneration, they were more likely to be penalised for doing so, compared to men who negotiated. The penalties in question included that: women negotiators were rated as less competent, and less desirable as bosses, co-workers, or subordinates. That the Applicant was accused of being motivated by money when she attempted to negotiate a reclassification (or above agreement remuneration) is aligned with these findings. In my opinion, the same accusation is less likely to have been made of a male peer, or indeed the male subordinate being paid above the enterprise bargaining [agreements] in the case of this matter.

Dr Whelan added that she did not see the consciousness or unconsciousness of the biases she had identified as particularly relevant to Ms Tsikos’ matter, beyond noting that most stereotype effects have been documented to occur both consciously and unconsciously. She said that the distinction is usually an academic one of the minutiae of cognitive processes rather than the outcomes or impacts of decision-making processes. In Dr Whelan’s view, the only relevance to this matter was that ‘stereotype effects such as those evidenced above can and do occur unintentionally and outside conscious awareness, even where decision-makers are well-intentioned and not overtly biased’.

The conclusion to Dr Whelan’s report was:

Gender bias in work settings constitutes a large and robust body of research, and while not all effects hold across all contexts, the weight of research is such that, in my opinion, most of the effects are consistent and defensible. I obviously cannot say that they are proven in the specific case of the Applicant’s matter. However, I can say that in my opinion, the Applicant’s claims may be considered as examples of the research findings detailed in my statement in at least two respects; firstly that the applicant is paid less than a number of her male subordinates both in terms of her classification, and in terms of not being offered remuneration above the enterprise agreement rate. Secondly, in terms of the Respondent’s reaction to the applicant initiating salary negotiation (that she is motivated by money and performing only adequately).

Cross-examination of Dr Whelan focused on the difficulty of disentangling unconscious and conscious thinking processes and their effects on everyday decision-making. Dr Whelan readily agreed that she could not comment on the nature or existence of any unconscious bias on the particular facts of this case. What she could say was that it is frequent, it happens, and it is very well documented.

Ms Tsikos’ submissions

Ms Tsikos submitted that the expert evidence bore on the Tribunal’s evaluation of the evidence given by employees of Austin Health regarding the reason why Ms Tsikos had been treated unfavourably in relation to her attempts to negotiate, and receive, over-agreement remuneration. I understood her submission to be that the Tribunal was wrong to dismiss Dr Whelan’s evidence on the basis that she was not in a position to comment on the effect of unconscious bias in this case. Rather, the Tribunal should have determined whether Austin Health treated Ms Tsikos unfavourably because of her sex and age on the basis of all of the relevant evidence, which included Dr Whelan’s evidence about the reasons for gender pay inequity.

In relation to causation, Ms Tsikos referred to the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1),[44] which involved a claim of adverse action contrary to s 346 of the Fair Work Act 2009 (Cth). She relied on a passage in the judgment of French CJ and Crennan J that recognised that an employer might have an unconscious reason for taking adverse action, and that direct evidence of a decision-maker’s reasons ‘may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence’.[45] She submitted that causation is a question of fact, to be determined having regard to the entirety of the evidence.
[44](2012) 248 CLR 500 (Barclay).
[45]Barclay, [44]-[45] French CJ and Crennan J) (citations omitted).

Ms Tsikos also relied on the reasoning of the Supreme Court of Queensland in Virgin Blue Airlines Pty Ltd v Hopper,[46] in an appeal against a decision of the Queensland Anti-Discrimination Tribunal (QADT). The QADT found that Virgin Blue had directly discriminated against a number of applicants for flight attendant positions on the basis of their age.[47] Among other things, the QADT found that the assessors applying an otherwise age neutral system were unconsciously discriminating on the basis of age.[48] Justice Moynihan rejected Virgin Blue’s submission that the QADT had erred in holding that direct discrimination could be unintentional or unconscious.[49]
[46][2007] QSC 75 (Virgin Blue QSC).
[47]Hopper v Virgin Blue Airlines Pty Ltd [2005] QADT 28 (Virgin Blue QADT).
[48]Virgin Blue QADT, [48].
[49]Virgin Blue QSC, [133]-[146].

Austin Health’s submissions

Austin Health submitted that there was no error in the Tribunal’s finding of fact on actuation, and that it stood in the way of a conclusion that any refusal to negotiate over-agreement remuneration constituted direct discrimination in breach of the EO Act. It characterised the Tribunal’s finding as being about ‘an act of will and a true justification for a positive act’. It argued that Ms Tsikos bore the evidentiary onus of proving, to the Briginshaw standard, that her sex consciously or unconsciously actuated the mind of each of her female managers, and was the ‘true basis’ of the alleged unfavourable treatment. There was, in Austin Health’s submission, no error in the Tribunal’s refusal to draw an inference of unconscious gender bias.

As to Dr Whelan’s evidence, Austin Health argued that the Tribunal did not err in its understanding and application of her evidence. Her evidence was accepted by the Tribunal, as far as it went. Properly understood, her opinion went only to the existence of the phenomenon of unconscious gender bias; it was not an expert opinion on causation or actuation on the facts of this particular case.

Austin Health said that the direct evidence was all one way, in its favour. Both Ms Moorfoot and Ms Munro gave evidence explaining why they did not engage further with Ms Tsikos in relation to her requests for a salary increase at particular times. Their explanations were rational and credible, and were accepted by the Tribunal.

In Austin Health’s submission, Ms Tsikos could only succeed in establishing that she was treated unfavourably because of her sex and age by inviting the Tribunal to draw inferences from the established facts. Austin Health referred me to a number of authorities on the drawing of inferences, including this passage from Henderson v Queensland:[50]

Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists.

[50](2014) 255 CLR 1, [89] (Gageler J). Austin Health also referred to G v H (1994) 181 CLR 387, 390 (Brennan and McHugh JJ); Chapman v Cole (2006) 15 VR 150, [14] (Callaway JA, Warren CJ agreeing at [1] and Ashley JA agreeing at [19]); Jones v Dunkel (1959) 101 CLR 298, 304 (Dixon CJ); Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155, 161-2 (Stephen J); Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278, [34]; and Prins v News Corp Australia Pty Ltd [2019] FCA 2002, [104]-[108].

Austin Health submitted that, in order for the Tribunal to have drawn an inference of unfavourable treatment because of sex or age, the inference had to be the more probable one.[51] The Tribunal had to be satisfied that there was no equally or more probable innocent explanation of the conduct.[52] It argued that, in relation to circumstantial evidence, the Tribunal had to consider ‘the weight which is to be given to the united force of all the circumstances put together’.[53] In Austin Health’s submission, there was no safe or stable foundation of facts from which the Tribunal could have drawn an inference of actuation by reason of unconscious gender bias.
[51]Referring to Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (2017) 372 ALR 440, [101]-[102].
[52]Referring to Department of Health v Arumugam [1988] VR 319, 327.
[53]Referring to Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 535 (Gibbs CJ and Mason J).

In the course of oral argument, counsel for Austin Health referred in some detail to the decision of the High Court in Barclay.[54] Based on that authority, Austin Health cautioned against any attempt to peer into the unconscious reasoning of the persons who have engaged in the relevant conduct. It submitted that the Tribunal was correct not to do so in this case.
[54]Barclay, in particular [54], [60]-[63] (French CJ and Crennan J), [121]-[128] (Gummow and Hayne JJ), [146]-[147] (Heydon J).

Consideration

As I have found, the Tribunal erred in its approach to determining whether Austin Health had treated Ms Tsikos unfavourably in relation to her attempts to negotiate her remuneration over the period 2011 to 2018, including her sixth attempt to do so in June 2018.[55] That error also affected the Tribunal’s findings that Ms Tsikos had not shown that any unfavourable treatment was on the basis of her age or sex. In order to determine whether the proceeding should be remitted to the Tribunal for further consideration, it is necessary to address Austin Health’s submission that it was not open to the Tribunal on the evidence to find that Austin Health treated Ms Tsikos unfavourably because of her sex or age.
[55]See [67] above.

In Barclay, French CJ and Crennan J observed:[56]

The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.

[56]Barclay, [41] (citations omitted).

In this case, the questions of why Austin Health did not negotiate Ms Tsikos’ remuneration with her, or pay her at over-agreement rates, are questions of fact arising from the operation of interdependent provisions of the EO Act. The text, context and purpose of the relevant provisions of the EO Act differ from the adverse action provisions of the Fair Work Act considered in Barclay.

There are specific provisions in the EO Act that indicate that ‘direct discrimination’ under the EO Act may include discrimination that is unintentional or unconscious. Section 8(2)(a) of the EO Act states that, in determining whether a person directly discriminates, it is irrelevant whether or not that person is aware of the discrimination or considers the treatment to be unfavourable. Section 10 provides that a person’s motive is irrelevant in determining whether that person discriminates. There is no equivalent of these provisions in Pt 3-1 of the Fair Work Act.

Sections 8(2) and 10 of the EO Act are in similar terms to ss 10(2), 10(3) and 10(4) of the Anti-Discrimination Act 1991 (Qld). Those provisions were considered by Moynihan J in Virgin Blue to weigh heavily against the contention that the QADT erred in law to the extent that it held that direct discrimination could be unintentional or unconscious.[57] I agree with his Honour’s reasoning. I consider ss 8(2) and 10 of the EO Act to be a strong indication that the legislature did not intend to preclude the tribunal of fact from making a finding of unintentional discrimination or unconscious bias, if such a finding is open on the evidence in a particular case.
[57]Virgin Blue QSC, [144]-[146].

This view is reinforced by the objectives of the EO Act, as set out in s 3, which include eliminating discrimination to the greatest possible extent, encouraging the identification and elimination of systemic causes of discrimination, and promoting and facilitating the progressive realisation of equality.[58] It would be contrary to these objectives to interpret s 8(1) of the EO Act in a way that confines questions of causation to the subjective reasons of individual decision-makers. In some cases, the cause of unfavourable treatment will turn on what actuated a particular person to act as they did. In those cases, direct evidence from that person may be decisive. That is less likely to be so in cases involving a complaint of systemic discrimination, where the unfavourable treatment is an accumulation of acts and omissions by many individuals over a long period. In those cases, evidence of other matters is also likely to be relevant.
[58]These objectives may be contrasted with the policy and purpose that underpin s 346 of the Fair Work Act 2009 (Cth), of promoting stable industrial relations and the settlement of industrial disputes through a system of collective bargaining between employees and employers: Barclay, [47] (French CJ and Crennan J).

In this case, Ms Tsikos complained of direct discrimination in relation to her remuneration over a period of seven years. Her complaint was made directly against Austin Health, as her employer, and not against individual managers for whom Austin Health was said to be vicariously liable. It was a complaint of systemic discrimination by a large organisation, and could not be reduced to a few isolated interactions with specific individuals. Hence, the cause of the alleged unfavourable treatment was not to be determined by considering only what actuated the responses of some of the managers with whom Ms Tsikos attempted to negotiate her salary. Other matters were also relevant. These other matters included:

(a) the evidence that Mr Spalding was paid far in excess of the minimum rate prescribed by the relevant enterprise agreement for his classification, and in fact far more than Ms Tsikos, although he had not been required to meet specific revenue targets since 2012;

(b) the evidence that several other men within the Department had been paid by Austin Health at over-agreement rates;

(c) the evidence that Austin Health had refused the attempts by Ms Tsikos and another woman in the Department to negotiate over-agreement remuneration;

(d) Dr Whelan’s evidence that there was a 14% gender pay gap across the Australian workforce in 2019, which persisted in part because of ambiguity around classification of roles and discretionary remuneration;

(e) Dr Whelan’s opinion that both of these factors were present within the Department;

(f) Dr Whelan’s observation that a greater proportion of Austin Health’s male employees than female employees are paid over-agreement remuneration;

(g) Dr Whelan’s opinion that two other well-documented effects that contribute to gender bias in the workplace were present in this case. The first was that men are more likely than women of equal merit to be rated as higher performing in leadership roles, which was reflected in Austin Health’s assessment of Ms Tsikos’ performance as a manager as merely ‘adequate’. The second was the ‘pushy penalty’, which was observable in the negative reactions by Ms Moorfoot to Ms Tsikos’ attempts to negotiate her remuneration; and

(h) Austin Health’s failure to call evidence from Ms Gordon, the Divisional Director Allied Health, who responded to Ms Tsikos’ letter of 26 June 2018 without any proposal for resolution or offer to negotiate her remuneration. In the absence of any explanation from Ms Gordon, or any other person, for this negative response, the Tribunal could more readily have inferred that it was because of Ms Tsikos’ sex.[59]

[59]Jones v Dunkel, 304 (Dixon CJ).

Taking all of these matters together, I consider that it would have been open for the Tribunal to find that Ms Tsikos’ sex was a substantial reason why Austin Health had, between 2011 and 2018, failed or refused to negotiate over-agreement remuneration with her, and had not paid her at over-agreement rates. That inference could have been drawn from findings that were open on the evidence, including the uncontested opinion evidence about the presence in the Department of factors known to contribute to entrenched gender pay inequality in the broader workforce. On that basis, the proceeding should be remitted to the Tribunal to be heard and decided again.

There are three other matters to mention in conclusion.

First, the Tribunal mischaracterised Dr Whelan’s evidence as an opinion about unconscious bias. Dr Whelan did not opine that unconscious gender bias was the true reason why Ms Tsikos had been unable to negotiate an over-agreement remuneration package. Indeed, she was at pains not to express an opinion about the thought processes of individual decision-makers. Her opinion was to the effect that several of the recognised reasons for the persistent gender pay gap that exists in the Australian workforce were apparent in the Department at an organisational level.

Second, I consider that in this case there was limited, if any, scope for the application of the ‘Briginshaw standard’, relied on by Austin Health before the Tribunal and on appeal. It is worth setting out what that standard is, and when it should be applied. According to Dixon J in Briginshaw v Briginshaw:[60]

[R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

[60](1938) 60 CLR 336, 362-3. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449-50 (Mason CJ, Brennan, Deane and Gaudron JJ); Evidence Act 2008 (Vic), s 140(2).

It is well established that these principles apply to fact finding in discrimination cases involving allegations of criminal conduct, for example sexual harassment in the form of an indecent assault.[61] They have also been applied in cases involving allegations of deliberate discrimination by people in senior or trusted positions, where a finding of discrimination is likely to have serious consequences for the ‘accused’ person.[62] However, there is no rule that more exact proofs are required in cases brought under anti-discrimination legislation than in other civil claims, and submissions to that effect ‘have a tendency to lead a trier of facts into error’.[63] The standard of proof in a civil proceeding is the balance of probabilities. The strength of the evidence needed to establish a fact in issue to that standard will vary according to the nature and gravity of the matters to be proved; there is no special rule for discrimination cases.[64]
[61]See, eg, State of Victoria v McKenna (1999) 140 IR 256, [35]-[38].
[62]See, eg, Arumugam, 331; McKenna, [39]-[44].
[63]Qantas Airways Ltd v Gama (2008) 167 FCR 537, [139] (Branson J, French and Jacobson JJ agreeing at [110]).
[64]Gama, [139] (Branson J, French and Jacobson JJ agreeing at [110]).

In this case, no individual was accused of a crime or any other particularly egregious conduct. There was no need to give weight to the presumption of innocence, or to consider the gravity of the consequences for any person that might flow from a finding of sex discrimination. Ms Tsikos complained of gender pay inequity by a large organisation over many years. Her allegation that she was treated unfavourably in relation to her remuneration because of her sex was not especially improbable, in light of the evidence about the entrenched gender pay gap in the Australian workforce. The Tribunal was correct to note no more than that Ms Tsikos bore the burden of proving her claim of direct discrimination because of her sex on the balance of probabilities.[65]
[65]Reasons, [19].

Third and finally, Austin Health’s defensive response to Ms Tsikos’ letter of 26 June 2018 sits uncomfortably with its positive duty, in s 15 of the EO Act, to take reasonable and proportionate measures to eliminate discrimination as far as is possible. There was at least cause for Austin Health to be concerned that it was paying over-agreement remuneration to several men (and no women) in a single, relatively small department. One might have expected a public sector employer to be more curious about how this situation had arisen, and whether it formed part of the gender pay gap that exists in the broader workforce.

Of course, Austin Health is now also obliged, as a ‘defined entity’ under the Gender Equality Act 2020 (Vic), to undertake a workplace gender audit and prepare a gender equality action plan.[66] The audit must assess the state and nature of gender inequality in the workplace having regard to the specified workplace gender equality indicators, which include equal remuneration for work of equal or comparable value across all levels of the workforce.[67] This work may already have been done, with defined entities’ first gender equality action plans due to be submitted to the Public Sector Gender Equality Commissioner on 31 March 2022.[68]
[66]Gender Equality Act 2020 (Vic), ss 10, 11.
[67]Gender Equality Act, ss 3 (definition of ‘workplace gender equality indicators’), 11(2).
[68]Gender Equality Act, s 12(1). Due to the COVID-19 pandemic, the submission date was extended from 31 October 2021 to 31 March 2022.

Disposition

There will be orders granting leave to appeal, allowing the appeal, setting aside the Tribunal’s order of 9 December 2020, and remitting the proceeding to the Tribunal to be heard and decided again. I will hear the parties as to whether I should make any other direction for the further hearing of the proceeding by the Tribunal, including whether the Tribunal should be differently constituted. I will also hear the parties on the question of costs.

---

[2022] VSC 174

11 April 2022