By

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

The doctor claimed he was discriminated against because he was male, sexually harassed, and then victimised after he complained.

He made the following allegations:

  • A female registrar physically assaulted him, including slapping him, jabbing him with her finger, and dragging him out of a room.
  • The ER manager fixated on his gender because she felt threatened by men.
  • Other employees discriminated against him because they were jealous about being outperformed by him.
  • The ER manager made false allegations against him because she disliked men. She took action against him because he showed no physical interest in her. She refused to accept a complaint he made about another employee.
  • After he complained about sexual harassment, he was victimised.

The judgment noted that he also made many other allegations not directly related to joining the other parties to his claim.

After the doctor complained about his alleged treatment, the employer conducted an investigation, conducted by a male consultant. The doctor claimed that the investigator simply accepted the other parties’ version of events, which discriminated against him.

The doctor had made some similar complaints to Victoria Police, which found them to be unsubstantiated.

The ER manager then applied to the Victorian Magistrates Court for a Personal Safety Intervention Order, which led the doctor to claim she did it to try to stop him from disclosing the alleged discrimination against him. He then applied to join the ER manager and four other current and former employees as parties to his discrimination claim.

Decision

The Victorian Civil and Administrative Tribunal (VCAT) rejected his application, giving the following reasons:

  • The ER manager’s order would not result in any duplicate litigation.
  • It would be unfair to involve the five extra people in the costs of litigation, and would also increase the costs likely to be incurred by the doctor if his claim of discrimination ultimately failed.

The next step in this case is a compulsory conference, with the employer yet to file its defence. Therefore, whether discrimination actually occurred is yet to be determined.

What this means for employers

The decision provides some insight into the factors tribunals and courts will take into account when deciding whether to join other parties to discrimination cases. The tribunal/court has the discretion to make that decision. An important factor is that the complaint must at least identify the possibility that discrimination may have occurred, and not be frivolous or vexatious.

Read the judgment

Woodburn v Austin Health (Human Rights) [2023] VCAT 507 (12 May 2023)

Mike Toten

Freelance Writer

Mike Toten is a freelance writer, editor and media commentator who specialises in research and writing about HR best practices, industrial relations, equal employment opportunity and related areas. Mike has over 30 years' writing experience, including writing and editing Human Resources Management