Austin Health v Tsikos

(2023) 324 IR 1; [2023] VSCA 82

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Discrimination
2. › Direct discrimination
3. › Employment
4. › Test for unfavourable treatment under Equal Opportunity Act 2010 (Vic)
5. › Whether comparator required
6. › Whether treatment must be shown to be 'less favourable' than treatment of comparator or simply 'unfavourable'
7. › Equal Opportunity Act 2010 (Vic), ss 8, 10, 18
1. Discrimination
2. › Direct discrimination
3. › Employment
4. › Causation
5. › Whether unfavourable treatment 'because of' protected attribute
6. › Whether cause confined to subjective reasons of individual decision-makers
7. › Role of unconscious bias and systemic factors
8. › Equal Opportunity Act 2010 (Vic), ss 3, 8(1), 8(2), 10
1. Discrimination
2. › Direct discrimination
3. › Employment
4. › Gender pay gap
5. › Denial of opportunity to negotiate above-agreement remuneration
6. › Whether pattern of conduct over seven years constituted unfavourable treatment
7. › Equal Opportunity Act 2010 (Vic), ss 8, 18
1. Administrative Law
2. › Tribunals
3. › Appeal on question of law
4. › Error in applying wrong legal test
5. › Whether finding of fact made under wrong legal test survives appeal
6. › Whether remittal of entire complaint appropriate
7. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148

Quick Take

The test for direct discrimination under s 8(1) of the Equal Opportunity Act 2010 (Vic) requires determination of whether the complainant was treated 'unfavourably', not 'less favourably' than a comparator; while comparison may assist, it is not required and must not be the sole basis for dismissal. The cause of unfavourable treatment is not confined to the conscious subjective reasons of individual decision-makers; evidence of systemic factors and unconscious bias is relevant to the 'because of' inquiry. The term 'actuated', derived from industrial law, is inappropriate and should be avoided when applying the EO Act. Authorities on the Conciliation and Arbitration Act 1904 (Cth) and Fair Work Act 2009 (Cth) concerning 'actuation' do not govern the interpretation of the EO Act, which has different objectives and operative provisions.