Austin Health v Tsikos [2023] VSCA 82

Austin Health v Tsikos [2023] VSCA 82
Court of Appeal of Victoria
Emerton P, Walker JA, & J Forrest AJA
Discrimination – the applicant employed the respondent in a clinical role as an orthotist/prosthetist – she was allocated to grade specified in the relevant enterprise agreement and paid accordingly – she was later promoted to manager in the orthotic/prosthetics department – she was given a higher classification under the relevant enterprise agreement and continued to be paid accordingly – she managed fourteen employees, ten of whom were male – six of the male employees were paid above the rates specified in the enterprise agreement – one of the male employees was paid significantly more than the rate specified in the enterprise agreement because he was originally employed in a special revenue raising role that had since been discontinued – the respondent asked to be paid at above the a enterprise agreement rate at least six times – she commenced a proceeding in the Victorian Civil and Administration Tribunal under the Equal Opportunity Act 2010 (Vic), claiming she had been directly discriminated against in her employment on the basis of her age and sex, and that she had been denied the opportunity to negotiate and receive above-agreement remuneration – the Tribunal dismissed the complaint – on appeal under s148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), a single judge of the Supreme Court found the Tribunal had applied the wrong test for direct discrimination, and remitted the complaint to the Tribunal to be determined according to law – the applicant sought leave to appeal to the Court of Appeal – held: the Tribunal had misapplied s81 of the Equal Opportunity Act – there was no barrier to using a comparator to establish the existence of and reason for unfavourable treatment – the Tribunal had incorrectly narrowed its focus and limited the inquiry to whether the comparator was a “true comparator” in the sense that the comparator’s circumstances were on all fours with the complainant’s circumstances – this had led the Tribunal to incorrectly dismiss the complaint on the sole ground the complainant had not provided evidence that the other employee had been allowed to negotiate his salary – the primary judge had correctly identified errors made by the Tribunal and found that, had the Tribunal not made these errors, it would have been open to find that the employer had treated the complainant unfavourably – appeal dismissed.
Austin Health