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Assaulted teacher wins fight in tribunal

A TAFE teacher has been awarded $25,000 compensation for discrimination.
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Assaulted teacher wins fight in tribunal

Assaulted teacher wins fight in tribunal

29 September 2020

By Mike Toten

A TAFE teacher who complained about being assaulted by a work colleague has been awarded $25,000 compensation for discrimination that occurred after he reported the assault. The TAFE college that employed him was held liable for the conduct of the teacher’s supervisor.

The teacher has been absent from work on WorkCover since January 2018, diagnosed with a major depressive disorder.


Facts of case

The teacher had been co-teaching a five-day course to apprentices with his supervisor. Teaching rules at the time prevented teachers from having to teach five days per week, so the two of them divided the days between them. He asked the supervisor to help him with marking students’ assignments. They were returned unmarked, and when he went to ask the supervisor about this, the supervisor allegedly grabbed and shook him, ripped his jacket open, thrust the assignments against him, pushed him out of his office and swore at him, saying that he had to mark all of them.

When the teacher reported it to the head of the TAFE college department, the latter refused to believe him, even though the supervisor largely corroborated his account. The teacher sent a follow-up email recommending that the supervisor be reprimanded, expressing concern that he might repeat similar conduct against someone else, and suggesting that perhaps the supervisor was “in a bad spot at the moment”.

The department head did not report the matter to TAFE’s HR function. However, timetables were changed so that the teacher had to teach all five days of the course and the supervisor was no longer involved in teaching it. The changes forced him to teach for longer hours. There was also evidence that the supervisor continued to mistreat the teacher. He developed a depressive disorder which his psychiatrist attributed to a combination of the assault, failure to act on his complaint, and ongoing mistreatment by the supervisor. His medical diagnosis was that he would be unable to work again for many years, if at all.

The teacher claimed he had been discriminated against on the ground of employment activity as defined by the Victorian Equal Opportunity Act 2010.


Decision

The Victorian Civil and Administrative Tribunal (VCAT) held that the assault and TAFE’s failure to investigate his complaints were not discrimination on the ground of employment activity. Therefore, his depression was not caused by discrimination by TAFE and compensation for it for that reason could not be awarded. The complaints he made, however, were “protected employment activity” and TAFE was liable for the direct discrimination and other mistreatment he later suffered from having made them.


The latter included:

  • the unfavourable timetable changes, made without consulting him
  • the supervisor publicly ridiculed his taking of sick leave (therefore questioning his honesty), excluded or cut him off at staff meetings, and ignored his requests for another teacher to help deliver his courses

Eventually he ceased teaching the course, although this was his voluntary decision and not found to be discrimination.

VCAT ruled that compensation should be awarded for breaches of the Equal Opportunity Act to the extent that they contributed towards his injury. It awarded $25,000 for non-economic losses only, although his original claim had been for $455,000. VCAT added that if he had made his claim against his supervisor instead of against TAFE, it would have ordered the supervisor to pay the compensation. TAFE was vicariously liable for the supervisor’s conduct, even though it had not been reported to HR.

The bottom line: The definition of “employment activity” in the Victorian Equal Opportunity Act 2010 includes making requests or complaints about employment conditions and entitlements. Making a complaint about being assaulted by a co-worker came within that definition because it resulted in the employee being subjected to a detriment.

The employee did not have a right to have his complaint investigated, nor to dictate how it should be investigated. His right was not to be subjected to detriment because he had made a complaint, and he was awarded compensation because the employer breached that right.


Read the judgment

Edmonds v Holmesglen Institute (Human Rights) [2020] VCAT 860, 11 August 2020

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