Court finds that complainant was subject to systemic discrimination on the basis of her age and sex, acknowledging the role of unconscious bias.
Austin Health v Tsikos [2023] VSCA 82
Summary
On 17 April 2023, the Victorian Court of Appeal overruled the decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) in favour of the respondent, Ms Tsikos, and dismissed the appeal by Austin Health. Although the Court of Appeal granted leave to appeal, none of the grounds were successful, instead agreeing with the single instance judgment and finding that VCAT had erred in its original decision.
Facts
Ms Tsikos was employed by Austin Health between 2009 and 2018. She was initially employed in a clinical role as an orthotist/prosthetist, before being promoted to manager of the Orthotic/Prosthetics Department (‘Department’). Ms Tsikos was always paid at the rate set out in the applicable enterprise agreement, but never above it.
As manager of the Department, Ms Tsikos managed 14 employees, including 10 male employees. Six of these male employees were paid above the rates set out in the enterprise agreement, and were all classified at a higher level than their roles attracted. One of these employees, who commenced employment at Austin Health in the same year as Ms Tsikos and who reported to her, was paid $41,000 more per annum than Ms Tsikos.
Ms Tsikos requested the opportunity to negotiate her pay six times over the course of her employment. Austin Health never agreed to engage in negotiations.
Around June 2018, Ms Tsikos wrote to Austin Health, summarising her previous requests to negotiate her wage. She noted that some of the men she managed were paid above-agreement remuneration, including in some cases when they reported to her and were classified at a lower grade under the enterprise agreement.
Austin Health responded to Ms Tsikos in a letter dated 17 August 2018. Austin Health stated that some of the men she managed were paid in this manner as they had been moved to a ”more appropriate” agreement, and noted the male employee who reported to her and was paid substantially more as an ”anomaly”. Ms Tsikos’ requests to negotiate her remuneration were not acknowledged in the letter.
On 8 November 2018, Ms Tsikos commenced proceedings in the VCAT under the Equal Opportunity Act 2010 (Vic) (‘EO Act’). She claimed that she had been directly discriminated against in her employment on the basis of her age and sex, in that she was denied the opportunity to negotiate and receive above-agreement remuneration.
VCAT dismissed the complaint, but Ms Tsikos successfully appealed the decision to the Victorian Supreme Court under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The Court found that the Tribunal had applied the wrong test for direct discrimination under the law and had failed to consider the evidence holistically, among other issues, and remitted the matter back to VCAT.
Austin Health appealed the Court’s decision to remit the matter back on nine grounds, including that the judge erred in determining the wrong test was applied for direct discrimination, determining VCAT failed to consider and adjudicate upon the ”entire evidence and characterising Ms Tsikos” claim as one of systemic discrimination.
Leave to appeal was granted, however none of the grounds were successful. The Court of Appeal upheld the decision of the Supreme Court.
Decision
The EO Act defines discrimination in section 7(1)(a) as meaning ”direct or indirect discrimination on the basis of an attribute”. Such attributes include age and sex.
The EO Act further defines direct discrimination, in section 8, as when “a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.”
The same section sets out that, in determining whether a person directly discriminates, it is irrelevant whether:
That person is aware if the discrimination or considers the treatment to be unfavourable; or
The attribute is the only or dominant reason for the treatment, provided that it is a substantial reason
A person’s motive is also considered to be irrelevant in determining discrimination.
Part 4 of the EO Act prohibits discrimination. Within this part, it is provided that an employer must not discriminate against an employee:
(a) By denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment; or
(b) By subjecting the employee to any other detriment.
Ms Tsikos, in her application to the Tribunal, alleged that Austin Health’s actions constituted discrimination in the course of her employment, contrary to ss18(a) and (d) of the EO Act. Ms Tsikos claimed that Austin Health denied or limited access to benefits connected to her employment, in particular the opportunity to negotiate her wage or receive above-agreement remuneration.
Austin Health denied that it discriminated against Ms Tsikos on the basis of her sex or age, and further denied that it had denied or limited her access to the alleged benefits. They further pleaded that, although they had listened to Ms Tsikos’ requests for increased remuneration, they had determined not to provide an increase, a decision which they alleged was unrelated to her age.
The Tribunal was not satisfied that discrimination had occurred, on the basis that Ms Tsikos failed to show:
That being unable to negotiate her salary constituted unfavourable treatment as there was not sufficient evidence of this opportunity being available for other employees;
That she was denied or limited from negotiating her salary as this denial or limitation of was not demonstrated with sufficient particularity; and
That any unfavourable treatment was on the basis of Ms Tsikos’ age or sex.
After the Tribunal dismissed Ms Tsikos’ complaint, she successfully appealed to the Supreme Court of Victoria, which found that Austin health had engaged in systemic discrimination by a large organisation. The Court found that the original VCAT decision contained several errors, including that VCAT failed to:
Consider whether Ms Tsikos was treated less favourably in the ways which she alleged;
Determine whether the alleged contravention was proved; and
Consider and make findings about Ms Tsikos’ sixth attempt to negotiate, which was of importance due to its formal nature.
Reference was also made to expert evidence which Ms Tsikos provided in relation to structural inequality and unconscious bias in the workplace. The expert stated that Austin Health may not have been conscious of their discrimination. The expert wrote that “when women display traits or behaviours that are more stereotypically masculine, they are likely to be penalized and evaluated more negatively”. The expert further suggested, in relation to Tsikos’ attempts to negotiate her wage, that she was accused of being “motivated by money”, a claim which would be “less likely to be levelled at a male employee.” Although the Court was not required to address unconscious bias as its own issue, the evidence contributed to the overall picture of Austin Health giving unfavourable treatment to Ms Tsikos.
The Supreme Court made orders remitting the complaint to the Tribunal for determination. Austin Health then appealed the Supreme Court decision on nine grounds. Whilst leave to appeal was granted, all nine grounds were dismissed and the Court of Appeal upheld the Supreme Court’s finding that ”unintentional discrimination or unconscious bias” meant that Austin Health had unlawfully discriminated against Ms Tsikos.
The Court of Appeal held that the Tribunal failed to have sufficient regard to the ”complex picture of unfavourable treatment” which Ms Tsikos established. This treatment included:
Her repeated attempts to negotiate her remuneration which were continuously denied or avoided;
Several men in the Department being paid above enterprise rate; and
Structural inequality and ‘unconscious bias’ in the workplace, manifested by evidence that the Department had an overrepresentation of employees on salaries above agreement, and that all of those employees were male.
The Court of Appeal dismissed all nine of Austin Health’s grounds for appeal, finding that it had engaged in systemic discrimination on the basis of Ms Tsikos’ sex.
Commentary
This case is an important reminder of how unconscious bias and unintentional discrimination can contravene anti-discrimination legislation. It is essential for employers to consider their employment structures and policies, and to ensure that they do not allow for discrimination, whether intentional or otherwise.
The full case can be read here
Credit: This summary was prepared by Ellie Flintoff and Catherine O’Keefe of Wotton + Kearney.