Ferris v Vic

[2018] VSCA 240

Victorian Court of Appeal

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Interrogate

Catchwords

1. Discrimination
2. › Direct discrimination
3. › Employment
4. › Dismissal
5. › Disability discrimination
6. › Causal connection between disability and unfavourable treatment
7. › Whether employer's knowledge of disability required
8. › Whether disciplinary reasons were a sham to conceal discrimination
9. › Equal Opportunity Act 2010 (Vic), ss 4, 6, 7, 8, 10, 18
1. Discrimination
2. › Direct discrimination
3. › Inferential case
4. › Whether tribunal obliged to consider circumstantial case for discrimination
5. › Whether tribunal's reasons addressed all submissions
6. › Burden of proof on applicant to establish causal connection
1. Administrative Law
2. › Judicial review of tribunal decisions
3. › Appeal on question of law only
4. › Standard of review of tribunal reasons
5. › Whether tribunal's reasons should be construed broadly and practically
6. › Whether loose language constitutes error of law
7. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148
1. Administrative Law
2. › Natural justice
3. › Fair hearing
4. › Whether failure to address submissions constitutes denial of procedural fairness

Quick Take

In direct disability discrimination claims under the Equal Opportunity Act 2010 (Vic), the burden remains on the applicant to prove the causal connection between the disability and the unfavourable treatment. Where the respondent has knowledge of the disability and no innocent explanation is accepted, it may be possible to infer discrimination, but the onus is not reversed. A tribunal's use of loose language such as 'absolutely no evidence' does not constitute an error of law where the reasons as a whole demonstrate that the tribunal considered and addressed the applicant's inferential case.