By Greg Romeo, Kelly Workplace Lawyers
While we wait to have the matter redetermined on remitter, now is a good time to look back on the matter of Austin Health v Tsikos [2023] VSCA 82, a matter that Kelly Workplace Lawyers ran to the Supreme Court of Appeal.
The decision provides an important reminder that Victorian anti-discrimination legislation is designed to meet and stamp out systemic discrimination where it exists, and provides valuable guidance on how unconscious bias is to be considered in that context.
FACTS
Ms Tsikos was employed by Austin Health from 2009. Whilst she was initially employed in a clinical role, she was promoted to become the manager of the Orthotic/Prosthetics Department. Importantly:
- Ms Tsikos managed 14 employees, 10 of which were men;
- Was paid at the minimum rates set out in the relevant enterprise agreement whereas 6 of the men she managed were paid above the minimum rates required; and
- One man (Mr Spalding) that Ms Tsikos managed was paid $41,000 more than her.
Ms Tsikos made several attempts to negotiate her pay over the course of her employment. Her attempts to negotiate were refused for reasons which included that:
- Ms Tsikos was “still so green”;
- Ms Tsikos was “motivated by money”;
- Mr Spalding was from the private market and so required a competitive salary to entice him into employment; and
- Austin Health pays at the minimum rates but that those men receiving above the minimum were an ‘anomalies’ in the system.
These reasons were delivered to Ms Tsikos by various women employed by Austin Health over the years.
Ms Tsikos lodged a claim at VCAT alleging that she had been directly discriminated against, in that she was denied the opportunity to increase her salary by not being paid above minimum rates, in breach of the Equal Opportunity Act 2010 (Vic)(EOA).
DECISION
At trial, Ms Tsikos introduced a psychologist to give expert evidence on the gender pay gap in Australia, unconscious bias, and the penalties that are often applied to women in the workplace when they apply for promotion or pay increases.
VCAT dismissed Ms Tsikos’ application.
FIRST APPEAL
Ms Tsikos successfully appealed to the Supreme Court, with Justice Richards finding that VCAT had incorrectly applied the old legal test for discrimination. Previously, a person claiming to be discriminated against would have to prove it was the case by comparing their situation to someone else’s situation in the workplace. This could be difficult to do because a respondent will generally have cogent and lawful reasons to explain why one person in the workplace was treated differently to another. However, this approach did not adequately address the way discrimination realistically presents in a workplace – not overtly (after all, most people do not recognise, even in their own mind, that they hold prejudices) but instead through entrenched and unconscious biases.
Justice Richards noted that the 2010 version of the EOA has broad and aspirational objectives (s.3) – including eliminating systemic discrimination and progressively achieving equality. The EOA also makes it clear that the motive behind direct discrimination is irrelevant, as is whether the person is aware that they are discriminating or considers the treatment unfavourable. For these reasons, the cause of the alleged unfavourable treatment was not to be determined by considering only what motivated the responses of some of the managers with whom Ms Tsikos attempted to negotiate her salary. Other, broader contextual factors could also be considered, including:
- The gender pay gap in the Australian workforce;
- Research showing women are often rated lower than equally capable men;
- The fact that male colleagues in the same department were paid above minimum rates, while Ms Tsikos was not; and
- That Ms Tsikos was denied the opportunity to negotiate her salary at all.
Taken together, these factors meant that it was open to VCAT to find that the unfavourable treatment was because of Ms Tsikos’ sex. As a result, the Supreme Court ordered the matter be sent back to VCAT for redetermination.
SECOND APPEAL
Austin Health appealed on 8 grounds, none of which were successful. Instead, their Honours (Emerton P, Walker JA, J Forrest AJA) agreed with Justice Richards and went further, that not only would it have been open to the Tribunal to find that the composite picture of how Ms Tsikos was treated was one of unfavourable treatment, but that it was difficult to see how the Tribunal could reasonably have concluded otherwise.
Ms Tsikos now awaits VCAT to redetermine her matter in light of these two decisions from the Supreme Court.
If you wish to discuss the above further, then please contact Greg Romeo on (03) 9639 6003.
