Pilai, Jay V --- "Victimisation under the Equal Opportunity Act 1995" [1997] LawIJV 46; (1997) 71(2) The Law Institute Journal 42

• Victimisation under the Equal Opportunity Act 1995
• THE OLD LAW
• THE NEW LAW
• CONCLUSION
• Notes

Victimisation under the Equal Opportunity Act 1995

by JAY V PILAI

There is a welcome breath of fresh air in the stale atmosphere of equal opportunity law.

n 19 June 1995 the Equal Opportunity Act 1995 (Vic) (the 1995 Act) received royal assent, bringing into operation Part 1 of the Act: s2(1). The remaining provisions of the Act became operative on " ... a day or days" to be pro-claimed (s2(3)) or " ... 12 months beginning on, and including, the day on which this Act receives the Royal Assent ... ": s2(4).

This Act has brought many changes. It abolishes the Equal Opportunity Act 1984 (the 1984 Act) and other amendments introduced in 1985, 1987 and 1993: s214. It expands the "attributes" categories under the 1984 Act by introducing age, personal association and other categories as new grounds for discrimination. It also abolishes the requirement of "motive" in determining whether or not a person discriminates: slO.

Changes to the concept of "victimisation" have also been made. The aim of this article is not to consider all the changes brought about by the 1995 Act, but to concentrate on the change to the concept of "victimisation" and its ramifications.

THE OLD LAW

There was no separate provision dealing with victimisation under the 1984 Act. However, s18 of that Act stated:

"(1)A person discriminates against another person in any circumstances relevant for the purposes of a provision of this Act if the first-mentioned person treats the other person less favourably than in those circumstances the first-mentioned person treats or would treat other persons and does so by reason that the other person -

(a) has brought proceedings against the first-mentioned person under this Act;
(b) has given evidence or information in connexion with proceedings brought
by any person against the first-mentioned person under this Act;
(c) has otherwise done anything under or by reference to this Act in relation to the first-mentioned person or any other person; or
(d) has alleged that the first-mentioned person or any other person has committed an act which (whether or not the allegation states) would amount to a contravention of this Act..."

It is quite evident that s18 did not create victimisation as a separate actionable wrong. It merely provided that the pro-scribed actions, i.e. treating people less favourably, amount to (for reasons stated in s18(a) to (d)) discrimination and not victimisation. Unlike sexual harassment under s19, victimisation was not a separate actionable wrong.

THE NEW LAW

The 1995 Act prohibits victimisation by stating in s96: "A person must not victimise another person".

Section 97 is headed "What is victimisation" and states:

(1)A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person -

(a) has made a complaint against any
person;
(b)has brought any other proceedings
under this Act against any person;
(c}has given evidence or information, or produced a document, in connection with any proceedings under this Act;
(d)has attended a preliminary conference under Part 7;
(e) has otherwise done anything in accordance with this Act in relation to any person:
(f) has alleged that any person has contravened a provision of Part 3, 5 or 6, unless the allegation is false and was not made in good faith;
(g)has refused to do anything that would contravene a provision of Part 3,5or6..."
Unlike under the 1984 Act, it is clear that victimisation is actionable separately and not as discrimination. In my opinion it is an advancement in the right direction.

There are, however, certain ambiguities created by the wording of s97(1)(a). Sub-sections (b) to (g) quite clearly show that the action of the victimised person must be connected with the Equal Opportunity Act. For example, if A victimises B, B's actions that made A victimise B must be any one of the acts stated in s97(1)(b) to (g).

Sub-section (a), however, does not limit the complaint brought by the victim to any matter under the 1995 Act. Since it does not contain the words "under this Act", it is clearly left open to apply to any complaints, actions or proceedings brought by the victim, under any law of the land. An example may illustrate the point.

An employee gets into the bad books of his or her employer. The employer issues fictitious warnings and threatens to dismiss. The employee brings an application

against the employer in the Employee Relations Commission (Victoria). An order to prevent the employer from terminating the employee's services is sought. At the hearing the employer realises his or her error, withdraws the warnings and the parties continue their employer-employee relationship. The employer, however, unhappy with the action taken by the employee in the Employee Relations Commission, begins to victimise the employee again. Can the employee bring an action under s97(1)(a)? In my opinion, as this sub-section is not limited like the other sub-sections, the employee should be able to bring an action for victimisation under the 1995 Act.

I believe that the Victorian Equal Opportunity Commission's view that, inspite of the wording in sub-sec (a), a complaint will only be entertained by the Commission if the action of the victim was related to the Act is wrong for the following reasons:

If the making of a complaint under sub-sec (a) was to apply only to a complaint brought under the Act, then the very words "under this Act" would not be missing. All the other sub-sections have those words. The repealed 1984 Act also contains those words. The legislature, therefore, must have intended it to apply widely and left those words out.

The recent decision of the Victorian Equal Opportunity Commission in Jacobs v Towergrange Pty Ltd (T/A Kinross Nursing Home) & Ors' sup-ports this contention. In this case, the Commission concluded that s18(1) under the 1984 Act was wide enough not to limit the complaint by the victim to the Equal Opportunity Act. Holding that s18(1)(d) was wider than (a), (b) and (c) it was further held that:

"It covers an allegation even where contravention of the Act is not specifically alleged. The Board considers that it is not limited to the allegations made within the system set up by the Act - for example, allegations made to the Equal Opportunity Commission ... "2

The Commission arrived at that conclusion in spite of the words "under this Act" being used in the section. The case is therefore stronger when the legislation has specifically left out those words in the 1995 Act.

CONCLUSION

The 1995 Act brings a breath of fresh air to the stale 1984 Act. There is a clear opportunity given by the new Act to make victimisation actionable separately from direct or indirect discrimination. A narrow interpretation of sub-sec (1)(a), limiting it to apply only to complaints brought by the victim under the Equal Opportunity Act, would be a lost opportunity to provide redress to many victims of employers who suffer victimisation but cannot bring an action for discrimination, as they cannot link it to an attribute. It is hoped that the judiciary will take this opportunity and apply the wider interpretation to mete out justice. 

Notes

1. (1994) E0C 92-656 p77,452.

2. ibid p77,453. It was held that s18(1) not only applies to proceedings, actions or allegations of the past "... but also to intended proceedings, actions and allegations, if the person accused of discrimination knows or suspects the intention".