Long running depression case getting longer

27 September 2017

A Victorian appeals court has finally found the Victorian Civil Administration Tribunal (“VCAT”) decision in dismissing a worker’s equal opportunity claim to be erroneous, and has granted the depressed worker a right to argue for a new recourse at a full hearing.

The worker; an academic from Deakin University, argued that in late 2013 the university and 11 individuals victimised and discriminated against him due to his depression and industrial activities, and thus breached the Victorian Equal Opportunity Act 2010.

Despite the worker providing VCAT with a 156 page witness statement, the tribunal held that the worker’s claims lacked substance and accordingly dismissed them. This being that they found no evidence the university had failed to make reasonable adjustments for the worker’s depression, and the depression was not a substantial reason for any unfavourable treatment he received.

The worker then went through a series of appeals. He first appealed to the Supreme Court of Victoria, and then lodged a discrimination claim in the Magistrate’s court under the Victorian Accident Compensation Act 1985. As both were unsuccessful, the worker went to the trial division of the Supreme Court. Again, the appeal did not stand.

In one last attempt, the worker appealed to the Victorian Court of Appeal. The worker argued; amongst other things, that VCAT failed to make a determination that his Equal Opportunity claim was ‘frivolous or [caused] vexation”.

To everyone’s surprise, the Court of Appeal agreed that this was “arguable” as there was evidence to suggest that rather than dismissing this claim due to a lack of substance, VCAT did so by reference to the threshold of ‘balance of probabilities’ and “s 75 [Of the Victorian Civil and Administrative Tribunal Act 1998 – Summary dismissal of unjustified proceedings] [does] not permit this course of action”.

Accordingly, Justices Simon Whelan and Hartley Hansen granted the worker leave to argue at a full hearing, something the worker had been waiting for, for over four years.