Austin Health v. Christina Tsikos [2023] VSCA 82
Case No. [2023] VSCA 82
Date of Judgement: 17th April 2023
Holding employers accountable for their actions and creating a workplace culture that values diversity and inclusivity is important. Unconscious bias is a workplace prejudice that can lead employers to court for their actions and even inactions. The case of the respondent, Miss Tiskos, who experienced sex-based and aged based discrimination in the workplace, highlights the issue of unconscious bias by the employer, Austin Health, the appellant in the present case. It also sets a precedent and a reminder that employers can be held liable for discrimination based on sex or age resulting in pay-gap and denial of employment benefits to employees, at least in Australia.
Facts: Cause of Action, when arose:
Appointed in 2009 by Austin Health, Ms Tiskos was promoted to the position of manager in 2010 and managed 14 employees under her. As per the standard Company policy, Ms Tiskos was paid according to the set rate in the enterprise agreement with the updated job role. However, the Company policy was clear, that none of the employees would be paid beyond the monies set out in the agreement. Ms Tisko’s team consisted of 10 male employees out of which 6 of her male subordinates were paid salaries exceeding the rate set in their enterprise agreement and were paid more than Ms Tisko’s. Over a period spanning over 3 years, from 2011-2014 Ms Tiskos requested to negotiate her salary six times but was blocked from doing so. In 2018, pointing out various failed negotiation requests and higher salaries of her direct subordinates, Ms Tisko wrote to Austin Health. In reply to her mail, Austin Health failed to address her request for an opportunity to negotiate her salary and noted the anomaly in higher salaries from the agreed enterprise agreement given to her subordinates.
Complaint- Victorian Civil & Administrative Tribunal (VCAT):
Following this, Ms Tsikos filed a complaint in the Victorian Civil and Administrative Tribunal under the Equal Opportunity Act 2010 alleging direct discrimination on the basis of her sex and age against Austin Health. She also alleged that Austin Health had denied her access to employment benefits including the opportunity to negotiate her salary and receive salary above the enterprise agreement and above or at the level of her male subordinates. The tribunal dismissed the complaint on the basis of whether Ms Tsikos had been treated unfavourably and did not base its reasoning on whether she had been treated less favourably than her male subordinates. Thus, an appeal was filed with the Supreme Court of Victoria.
Supreme Court:
The Supreme Court of Victoria found that Austin Health had engaged in systemic discrimination and as such allowed the appeal and remitted to VCAT to be heard and decided again. Presiding Justice held, that the VCAT judgement was flawed and did not consider the less favourable treatment of Ms Tisko in the way she alleged. Additionally, VCAT failed to determine whether the alleged contravention had been proved and did not consider or make findings about Ms Tsikos’ sixth attempt to negotiate, which was significant due to its formal nature. As a result of the appeal being allowed, the case was remitted to VCAT to be heard and decided again.
Court of Appeals:
Austin Health appealed the decision on nine grounds to the Court of Appeal, the Supreme Court of Victoria. Amongst the nine grounds for appeal, several grounds were that the Judge erred in determining ‘direct discrimination’ by applying the wrong application of the test as required and that the Briginshaw principles of evidence did not and would not apply to the claim of unlawful direct discrimination on the grounds of ‘sex’.
Briginshaw Principles:
The recognized standard for ascertaining proof, where civil claims must be proved on the “balance of probabilities” and criminal charges must be proved to the higher standard of “beyond a reasonable doubt”. Wherein, the Briginshaw principle introduced some flexibility into the civil standard where the strength of the evidence necessary to establish a fact may vary on a case-to-case basis.
Final Verdict- Court of Appeal:
However, the Court of Appeal upheld the Supreme Court’s decision. While deciding Court noted that direct discrimination can occur through an employer’s unconscious bias towards an employee in the workplace and none of the nine grounds were successful. The reasoning behind this decision relied on the repeated ignorance of Ms Tisko’s requests for negotiations., the evidence presented, and the conduct was found to be in contravention of the Equal Opportunity Act 2010.
– Isha Khorana