Victorian Consolidated Legislation

Occupational Health and Safety Act 2004 - SECT 78E

Procedure for actions for discriminatory conduct

78E. Procedure for actions for discriminatory conduct



(1) A proceeding brought for contravention of section 78A or 78C must be
commenced not more than 1 year after the date on which the plaintiff knew or
ought to have known that the cause of action accrued.



(2) In a proceeding for a contravention of section 78A or 78C, if all the
facts constituting the alleged discriminatory conduct other than the reason
for the defendant's conduct are proved, the defendant bears the onus of
proving that the reason alleged in the complaint was not a substantial reason
for the conduct.

(3) It is a defence to a proceeding for a contravention of section 78A or 78C
if the defendant proves that-

   (a)  the conduct was reasonable in the circumstances; and

   (b)  a substantial reason for the conduct was to comply with the
        requirements of this Act or with the Accident Compensation Act 1985.

(4) The making of an order in a proceeding for a contravention of section 78A
does not prevent the bringing of a proceeding for an offence against section
76 in respect of the same conduct.

(5) If the Industrial Division of the Magistrates' Court makes an order under
section 78D in a proceeding for a contravention of section 78A, the court
cannot make an order under section 78 in a proceeding for an offence against
section 76 in respect of the same conduct.

(6) If the court makes an order under section 78 in a proceeding for an
offence against section 76, the Industrial Division of the Magistrates' Court
cannot make an order under section 78D in a proceeding for a contravention of
section 78A in respect of the same conduct.

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