Broader than before: "Employment activity" and "employment entitlements" under the Equal Opportunity Act 2010 (Vic)

It has long been clear that communications regarding "basic entitlements" of employment (such as pay rates, leave entitlements, claims for overtime, etc.) constitute "employment entitlements" and are therefore within the scope of protection from discrimination on the basis of "employment activity" under the Equal Opportunity Act 2010 (Vic) (EO Act). However, there has been no clear line of authority as to whether this protection extends to communications regarding health and safety concerns.

A recent decision of the Victorian Civil and Administrative Tribunal (Tribunal) in Edmonds v Holmesglen Institute (Decision) [1] has provided important clarification regarding the scope of the prohibition against discrimination based on an employee's "employment activity" and the meaning of "employment entitlements".

Key concepts: "Employment activity" and "employment entitlements"

Section 7 of the EO Act prohibits direct or indirect discrimination on the basis of a specified attribute. The attributes protected under section 6 of the EO Act include the more "traditional" attributes protected by anti-discrimination law (such as race, disability or religious belief), but also include the attribute of "employment activity".

"Employment activity" is defined to mean (our emphasis):

"an employee in his or her individual capacity: (a) making a reasonable request to his or her employer, orally or in writing, for information regarding his or her employment entitlements; or (b) communicating with his or her employer, orally or in writing, the employee's concerns, that he or she has not been, is not being or will not be, given some or all of his or her employment entitlements." [2]

"Employment entitlements" are defined to mean "the employee's rights and entitlements under an applicable: (a) contract of service; ... (e) Act or enactment; or (f) law of the Commonwealth". [3]

Protection from discrimination based on an employee's "employment activity" was introduced via the Equal Opportunity Amendment Act 2007 (Vic) as a direct response to the Federal Government's WorkChoices legislation, with a view to alleviating fears that employees might be subjected to detriment for making inquiries about conditions of employment thought to be at risk by the making of Australian Workplace Agreements and the limitation of rights to bring unfair dismissal claims. With the advent of the protection against adverse action in section 340 of the Fair Work Act 2009 (Cth) because of an employee's "workplace rights", which expressly include an employee's "complaint or inquiry" in relation to their employment, [4] the provisions prohibiting "employment activity" discrimination have been used relatively infrequently.

It had been clearly established that the types of rights and entitlements contemplated by the expression "employment entitlements" included "basic entitlements" of employment, such as pay rates, leave entitlements, claims for allowances, overtime penalties, superannuation entitlements, etc.

However, it was uncertain whether this extended to capture an employee's complaints regarding other statutory rights and entitlements, for example, whether complaints of bullying or an unsafe working environment (which would be in breach of occupational health and safety legislation), or complaints of discriminatory treatment (which would be in breach of the EO Act) would constitute an employee engaging in "employment activity" by communicating their concern that they were not being given their "employment entitlement" to a workplace free from risks to health and safety or unlawful discrimination.

Conflicting authorities existed as to whether such communications were about "employment entitlements", [5] and these authorities provided limited reasoning for the approach ultimately adopted. While the context leading to the introduction of "employment activity" as a protected attribute could be seen to lend support for a narrow interpretation of the concept of "employment entitlements", a broader interpretation would arguably be more consistent with the beneficial and remedy purpose of the EO Act.

The Decision provides clear authority regarding this issue.

Background to the Decision

Andrew Edmonds was employed by Holmesglen Institute (Holmesglen) as a teacher in plumbing and mechanical services from 2006.

On 22 September 2015, Mr Edmonds had an altercation with his supervisor, Phillip Skinner, who assaulted him. Mr Edmonds reported the incident to the head of his department, Dominic Hibbert. On learning of the incident, Mr Hibbert expressed disbelief that Mr Skinner acted in the way alleged. Out of concern that Mr Hibbert would not investigate the incident, Mr Edmonds sent an email to Mr Hibbert reiterating his concerns about Mr Skinner's behaviour.

At trial, Mr Edmonds argued that his report to Mr Hibbert was “employment activity” within the meaning of the EO Act, on the basis that he was communicating his concern that he had not been, or would not be, given his "employment entitlements".

Mr Hibbert did not report the incident to Holmesglen's HR department, but removed Mr Skinner from co-delivering Mr Edmonds' classes.

Mr Edmonds claimed that after making the report to Mr Hibbert, he was treated unfavourably by both Mr Skinner and Mr Hibbert from September 2015 to February 2018.

Mr Edmonds brought a claim in VCAT alleging that the unfavourable treatment [6] he had received constituted unlawful discrimination based on his protected attribute of having engaged in "employment activity" in reporting Mr Skinner's conduct to Mr Hibbert. Mr Edmonds alleged that Holmesglen was vicariously liable for the conduct of Mr Skinner and Mr Hibbert as its employees.

What were Mr Edmonds' "employment entitlements"?

Mr Edmonds argued that he had "employment entitlements" arising from the following terms allegedly implied in his employment contract:

• that Holmesglen would take reasonable care to avoid exposing him to the risk of injury in the course of his employment in accordance with section 21 of the Occupational Health and Safety Act 2004 (Vic) (OHS Right);
• that Holmesglen had a common law duty to take reasonable care for his safety by ensuring that any report of assault was properly investigated and responded to, in order to prevent Mr Edmonds from suffering any further or repeat injury (Common Law Right); and
• that Holmesglen would take all action necessary in accordance with its own Code of Conduct if a complaint of assault was made (Code of Conduct Right).

The OHS Right: An "employment entitlement" to a safe workplace

In considering the OHS Right, the Tribunal noted that an employer's failure under the OHS Act to provide, so far as is reasonably practicable, a working environment without risks to health and safety, is an indictable offence. While the OHS Act does not provide employees with direct rights of enforcement, the Tribunal was satisfied that a direct corollary of the employer's obligation under section 21 is an entitlement of employees, so far as is reasonably practicable, to a safe and healthy working environment. On that basis, the Tribunal accepted Mr Edmonds' argument that the entitlement to a safe working environment under the OHS Act falls within the definition of "employment entitlement" under the EO Act. [7]

The Common Law Duty: No "employment entitlement" to an investigation

With respect to the Common Law Duty, the Tribunal noted that whether an employer conducts an investigation into an employee's complaint must be determined based on the nature and circumstances of the risk, having regard to the employer's obligation to provide a safe workplace.

The Tribunal was unable to conclude that Mr Edmonds had an employment entitlement to have his complaint investigated or to dictate the nature of investigation that should be carried out.

The Code of Conduct Duty: An "employment entitlement" to a safe work environment and to be treated with dignity, courtesy and respect

Holmesglen conceded that its Code of Conduct formed part of the terms and conditions of Mr Edmonds' employment with Holmesglen.

The Tribunal found that the Code of Conduct provided Mr Edmonds with an "employment entitlement" to a safe, encouraging and supportive work environment, and to be treated with dignity, courtesy and respect.

Did Mr Edmonds engage in "employment activity"?

The Tribunal considered whether, for the purposes of the definition of "employment activity", it was necessary for Mr Edmonds' communication to have been explicitly framed as a concern about whether he had not received or would not receive his "employment entitlements". The Tribunal ultimately determined that it is sufficient that the issue raised is capable of being characterised as a concern relating to employment entitlements, having regard to the beneficial and remedial nature of the EO Act.

The Tribunal considered that the better view is that "any communication that is in the nature of a complaint about genuine workplace entitlements, whether arising directly under the terms of the contract of employment, or the employer’s applicable policies, or indirectly through the application of the common law, is employment activity for the purposes of the EO Act." [8]

Accordingly, it was satisfied that Mr Edmonds' complaints that Mr Skinner had behaved contrary to Holmesglen's policies – where those policies formed part of the terms of Mr Edmonds' employment – were communications by Mr Edmonds that he had not been or would not be accorded his "employment entitlements".

On this basis, the Tribunal found that from the time of Mr Edmonds' complaints to Mr Hibbert, Mr Edmonds had the protected attribute of "employment activity" and went on to consider whether Mr Edmonds had been subjected to detriment because of that attribute.

Outcome: Unlawful discrimination

The Tribunal was satisfied that Mr Edmonds had been subjected to a range of unfavourable treatment because of his "employment activity", including changing his timetable without consultation, excluding him from a staff meeting and failing to respond to requests for additional resources to help deliver the course.

Mr Edmonds was awarded $25,000 in compensation for the "loss damage or injury" suffered by Mr Edmonds as a result of Holmesglen's breach of the EO Act.

Bottom line for employers

• To engage in "employment activity" within the meaning of the EO Act, it is unnecessary for an employee's communication or request to specifically or generically refer to their "employment entitlements". Rather, the communication can be in the nature of a complaint about genuine workplace entitlements.
• "Employment entitlements" under the EO Act are not limited to traditional concepts such as minimum rates of pay, overtime and penalty rates, but include an employee's right under occupational health and safety legislation to a safe workplace, which arises as a corollary of the employer's statutory obligation to provide and maintain a safe workplace (despite there being no mechanism for an employee to take direct enforcement action for a breach of this obligation).
• Equally, where such rights and obligations exist under policy which is incorporated into the employee's terms and conditions of employment, this will constitute an "employment entitlement". To that end, the decision serves as a reminder to employers to ensure that their policies, procedures and/or organisational values are not incorporated as terms and conditions of employment.
• Whether an employer conducts an investigation into an employee's complaint must be determined based on the nature and circumstances of the risk, having regard to the employer's obligation to provide a safe workplace. However (subject to any specific industrial obligations), employees do not have an "employment entitlement" to have complaints investigated or an entitlement to dictate the nature of any investigation carried out.
• The Decision provides important clarification of the scope of the prohibition against discrimination against an employee because of their "employment activity". However, despite the broadening of the scope of the protection under the EO Act, employees remain likely to favour adverse action claims based on the exercise (proposed exercise, or to prevent the exercise) of a "workplace right", where employees have the benefit of the reverse onus. [9] By contrast, in order to succeed in a claim under the EO Act, an employee must not only prove that, at the relevant time, they had the protected attribute of "employment activity", they must also prove, on the balance of probabilities, that they were subjected to detriment or unfavourable treatment because of or for reasons that include their "employment activity".

[1] [2020] VCAT 860

[2] EO Act, section 4

[3] EO Act, section 4

[4] Fair Work Act 2009 (Cth), section 341(1)(c)(ii)

[5] Dyke v IPM [2014] VCAT 954 and Sirdesai v Eastern Health [2015] VCAT 2018

[6] Section 8 of the EO Act prohibits treating a person "unfavourably" because they have a protected attribute. Unfavourable treatment has been held to include adverse treatment and humiliation: Aitken & Ors v State of Victoria (Department of Education & Early Childhood Development) [2012] VCAT 1547. Section 18(d) of the EO Act also prohibits an employer from discriminating against an employee by subjecting them to "detriment".

[7] EO Act, section 4(e)

[8] Decision at [53]

[9] FW Act, section 361