Employee seeks joinder application for five persons 'included in the incidents'
The Victorian Civil and Administrative Tribunal (VCAt) recently dealt with a case involving a worker who contended he was discriminated against based on sex, employment activity, and industrial activity.
The worker, who was a resident doctor, also claimed that he had been subjected to sexual harassment and sought a joinder application for the five individuals who were responsible for the alleged discrimination and sexual harassment.
What led to the claims of discrimination and harassment?
While the worker’s complaints related to several employees in the hospital, the worker alleged that the suspected harassments and discriminations should be joined as parties.
First, the worker argued that between February and April 2021, a nurse allegedly massaged his neck and shoulders without his consent—hence, the worker alleged that this was sexual harassment.
Second, the worker contended that an employee relations manager suspectedly authorized and assisted discrimination by refusing to accept a formal complaint that the worker made about another staff member.
He also argued that the relations manager told him that his actions in making a Facebook post about a consultant who allegedly bullied him were not the action “of a reasonable man.”
Meanwhile, while the worker was under the supervision of a registrar, he alleged that the latter was displaying abusive and controlling behaviors towards male junior doctors and mainly towards the worker.
The fourth person the worker alleged had acted against him was another registrar employed in the same hospital.
He claimed the registrar walked up to him from behind in the common room and smacked him on the back of his neck.
“He alleged that this was victimisation and discrimination, because she had done this to punish him for making a complaint about a female staff member,” the Tribunal said.
Lastly, the worker alleged that around September 2021, a consultant, during their discussion about the previous “unfavorable” incidents against the worker, discriminated against the worker on the basis of sex.
He argued that the consultant had accepted another doctor’s version of events and that this amounted to discrimination according to sex because the doctor was a female.
Despite such claims, four of the five individuals denied the worker’s allegations, as the employee relations manager was not represented and did not attend the hearing.
Moreover, the employer opposed the joinder application on behalf of four out of five individuals of the proposed joined parties.
Tribunal’s decision
After examining the case, the Tribunal said the applicant had not articulated “what proportion of the alleged harmful effects on him is to be compensated by each proposed joined respondent, or what actual orders he is seeking with respect to each proposed joined respondent.
“If the orders sought are sought against the current respondent, there is no clear basis on which those who were all employees at the time ought to be joined separately as respondents.”
The tribunal also said there was “little to no risk of duplication of litigation” if the proposed parties are not joined and each of the proposed parties is likely to be called as a witness, so they will have an opportunity to give their version of events, and the applicant will have an opportunity to cross examine them.
As a result, it was unfair to the parties to include the proposed joined respondents in engaging legal representation.
“Joinder will add to the costs for them or the current respondent and potentially to any costs order made against the applicant should his claim be unsuccessful and a costs order sought,” the VCAT stated.
The Tribunal further noted that it was too early to irrefutably state whether the worker’s case against each individual was open and arguable.
