Denis O'Callaghan, Principal Lawyer, Gordon Legal
An ANMF (Vic Branch) Job Representative recently had a major win in an anti-discrimination case in the Victorian Civil and Administrative Tribunal (VCAT). The claim was brought by Gordon Legal on behalf of the member with the backing of the ANMF (Vic Branch). The member was awarded $40,000 in compensation after VCAT found that her employer had ‘directly discriminated against her on the ground of industrial activity’.
At the time of the incident in 2021, the member had been working as a registered nurse on a part-time permanent basis at Monash Health. As an ANMF Job Rep, she had been active in advocating for colleagues on matters such as ratios and COVID-19 protocols.
When she applied to vary her employment and enter the casual bank, Monash Health Bureau, she was required to resign from her permanent position. After several weeks, however, she was informed her application for a position on the casual bank had not been approved. ANMF (Vic Branch) referred the member to Gordon Legal for advice and representation.
The member’s case hinged on the fact that her lack of success in gaining bank employment related to ‘a written reference … [which] included a negative statement that related to her communication, as a Job Representative, with the ANMF about a workplace issue.’[1]
Gordon Legal filed an application in VCAT claiming the member had suffered discrimination under the Equal Opportunity Act 2010 (Vic).
The Equal Opportunity Act prohibits discrimination by an employer against a person representing or advancing the views, claims or interests of members of an industrial organisation such as ANMF. Discrimination occurs when, because of the industrial activity, an employer refuses or deliberately omits to offer employment, and denies or limits access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment.
In making the finding against Monash Health, VCAT Senior Member Anita Smith held that, ‘Taking into account all of the evidence and submissions, I am satisfied that when the Applicant was refused a transfer to the casual bank, a substantial reason (but not the dominant or sole reason) for the refusal was her industrial activity … I find that [Monash Health] directly discriminated against the Applicant in refusing her application for casual employment with the Monash Health Bureau.’
Senior Member Smith also held that delays in provision of a professional reference to the member, ‘denied or limited’ the ANMF member’s opportunities to transfer her employment. Effectively, the member’s manager didn’t supply the reference until three weeks after the member’s resignation took effect, leaving her without access to Monash employee rights while she waited for her anticipated but ultimately unsuccessful transfer to the casual bank.
VCAT’s decision notes that while it is not likely that the manager had an in-depth understanding of, or intended, these legal consequences, ‘the delay was prejudicial to [the member] and thereby denied her a benefit connected with employment.’
It also further states that ‘a delay in providing a reference would not be discrimination in ordinary circumstances, but because of the evidence it becomes discrimination.’ That evidence being related to the manager holding ‘a negative view about’ the member related, in part, to the member’s industrial activity.
In effect, VCAT found that regardless of the intentions of the manager who wrote the reference, ‘the association with the ANMF was made in that reference and its effect was prejudicial.’
[1] Victorian Civil and Administrative Tribunal senior member Anita Smith [Cubitt v Monash Health [2024] VCAT 656]
