On 16 December 2011, the Victorian Civil and Administrative Tribunal (Tribunal) made its decision in Hakki Suleyman v The Speaker of the Legislative Assembly and the President of the Legislative Council of the Parliament of the State of Victoria  VCAT 2305. The Tribunal dismissed the complaint made by Mr Hakki Suleyman (Suleyman), a former Electorate Officer, and held that his employers, the Speaker of the Legislative Assembly and the President of the Legislative Council of the Parliament of the State of Victoria (Respondents), had not breached the Equal Opportunity Act 1995 (Vic) (EO Act) in terminating Suleyman's employment.
Rather than expand the law in the area of discrimination on the grounds of political activity, the Tribunal's decision highlights the difficulties that complainants will face in pursuing this type of claim under the EO Act jurisdiction. Norton Rose Australia acted for the Respondents in this matter.
Suleyman was one of the individuals named in the well publicised report in May 2009 by the Victorian Ombudsman into allegations of misconduct at Brimbank City Council, in Melbourne's western suburbs (Ombudsman's Report).
The allegations attracted significant adverse media attention for Suleyman and then Government Minister, Justin Madden MP, the Member of Parliament for whom Suleyman worked. While an external investigation conducted on behalf of the Department of Parliamentary Services (as delegate for the respondents) determined that Suleyman had not engaged in misconduct, it found that he could no longer perform the inherent requirements of his electorate officer position for Mr Madden because of the significant adverse media attention and the fact that the relationship between Mr Madden and Suleyman had broken down. The respondents terminated Suleyman's employment on 5 August 2009.
Suleyman brought a complaint in the Victorian Human Rights and Equal Opportunity Commission, which was then referred to the Tribunal, claiming that that the respondents had discriminated against him (by terminating his employment) because he had engaged in 'lawful political activity', a protected attribute under section 4(1) of the EO Act (complaint).
Suleyman alleged that his lawful political activities included his involvement with matters associated with Brimbank City Council, notwithstanding that he was not an elected official, and that he had denied to the ombudsman that he had in fact engaged in such conduct. this alleged conduct included that suleyman had "exerted significant influence over council business" and had been "fighting for control of the council".
Following a part-heard strike-out application brought by the respondents in August 2010, Suleyman amended his complaint to plead that the respondents 'presumed' that he engaged in lawful political activity, based on matters raised in the Ombudsman's Report and in the media articles where it was reported, rather than relying on the truth of the matters raised in the Ombudsman's Report, (section 7(2)(d) of the EO Act provides that discrimination on the basis of an attribute includes discrimination on the basis "that a person is presumed to have that attribute or to have had it at any time"). Suleyman also amended his complaint to allege that his participation in the ombudsman's investigation constituted lawful political activity under the EO Act.
The Tribunal's Decision
In dismissing the complaint, Tribunal Vice-President Judge Kings held that neither of the respondents presumed or assumed the allegations about Suleyman, in the Ombudsman's Report or in the media articles, were true. Suleyman had no direct evidence that such a presumption was held or existed.
Given that the Tribunal found that there was no evidence that the respondents presumed that Suleyman engaged in political activity, it did not make a specific finding as to whether the matters in the Ombudsman's Report or in the various media articles were capable of constituting political activity.
The only finding the Tribunal made in relation to political activity was that Suleyman's participation in the Ombudsman's investigation did not constitute political activity, as the participation was required by law. The Tribunal did not further consider whether the test for direct discrimination had been made out by Suleyman, including the respondents' arguments with regard to the comparator test and whether an employee with political activity in Suleyman's situation would be treated less favourably than an employee without political activity.
In relation to the complaint of indirect discrimination, the Tribunal held that the respondents did not impose a requirement on Suleyman that he not attract media attention or adverse media attention.
As the Tribunal's decision turned almost entirely on the evidence, it did not provide any significant new law on the attribute of political activity or discrimination under the EO Act.
In some respects, this demonstrates a missed opportunity for the tribunal to provide guidance as to what conduct, particularly in the public sector, will constitute political activity.
Similarly, the Tribunal did not specifically address the submission by Suleyman's Counsel that the Tribunal should follow the recent decision of the Full Federal Court in Barclay v The Board of Bendigo Regional Institute of Technical and Further Education  FCAFC 14 (Barclays) in determining what was the 'real reason' for the respondents' conduct in terminating Suleyman's employment. Vice President Judge Kings did not comment in the decision as to whether this was the appropriate approach under the EO Act (the decision in Barclays is in relation to the General Protection provisions under part 3-1 of the Fair Work Act 2009 (CTH) (FWA)), but found that, based on the evidence, the 'true reasons' for the respondents' conduct was 'genuine' and not based on a presumption that Suleyman had engaged in the matters alleged in the Ombudsman's Report.
The decision demonstrates the stark difference between discrimination claims under the EO Act as compared with general protection claims (including discrimination claims) under the FWA. While it may appear that the EO Act provides complainants with greater scope by being able to claim a 'presumption' of a protected attribute, it appears that, in most cases, there will be an inherent difficulty for complainants to establish whether a respondent did in fact presume that a complainant has a protected attribute, as the onus is on the complainant to prove this, as compared with general protection claims, where a reverse onus applies and the principles in Barclays are currently good law (the decision of the Full Court in Barclays is the subject of a pending appeal to the High Court of Australia).
Given these difficulties, it may be that complainants who allege discrimination on the grounds of political activity will be reluctant to proceed under the EO Act, and will instead reshape their complaint under legislation such as the FWA, if an appropriate attribute can be established.
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