Outcome of investigation into referral about Member Lucas

The Judicial Commission of Victoria (the Commission) received a referral (the Referral) from the President of the Victorian Civil and Administrative Tribunal (VCAT) about the conduct of Member Lucas (the Officer) towards a junior VCAT employee, the affected person (AP).

The Commission found that the Officer’s conduct, in having electronic communications with AP that repeatedly overstepped professional boundaries and were harassing in nature, infringed the standards of conduct generally expected of non-judicial members of VCAT.

The Referral alleged that the Officer sent unusual and inappropriate messages to AP. It noted that the conduct came to light when AP raised it with her manager who, with her consent, raised the issue with People Services and ultimately the Head of Jurisdiction.

There was a significant disparity in age and position between the Officer and AP.

In accordance with the Judicial Commission of Victoria Act 2016 (Vic) (the Act) as a part of its investigation, the Commission:

  a. requested further information about the Referral;

  b. met with and received a statement from AP; and

  c. gave the Officer an opportunity to respond to the Referral.

The Officer provided a written response to the Referral.

Officer’s response

The Officer acknowledged that his conduct fell short of the professional standards expected of him. The Officer said that he took full responsibility for his behaviour and regretted any distress caused to AP.

Findings and assessment

The Officer’s electronic communications with AP spanned three months and were initially responded to by AP. The Officer ceased any attempts at communication when the President of VCAT informed the Officer about the Referral and directed him not to contact AP.

While the Officer’s messages initially revolved around listing arrangements and administrative issues, they subsequently veered away from work and towards personal matters. The Officer later contacted AP outside of business hours (including on the weekend), his messages shifting ambiguously between work- and non-work-related topics.

The Commission was satisfied that the Officer’s messages included material that was overly familiar (towards AP), gendered, suggestive, culturally insensitive, racially offensive, gratuitous, and disparaging of another member. 

The Commission found that, at the time of the conduct, the Officer failed to demonstrate the level of awareness expected of a non-judicial VCAT member regarding the impact of hierarchy and disparities of power on women.

The Commission found that the Officer’s communications with AP:

  a. repeatedly overstepped the boundary between the personal and professional; and

  b. [later] following no response from AP, became so persistent that they were harassing.¹

The Commission was satisfied, however, that while aspects of the Officer’s communications with AP were inappropriate, as set out above, and were consistent with behaviours that precede sexual harassment, overall, the Officer’s behaviour did not amount to sexual harassment of AP.

The Commission referred the matter to the President of VCAT (as head of jurisdiction) with the following recommendations as to the Officer’s future conduct:

a. That the Officer, as soon as practicable, engage in a tailored coaching program with a nominated provider:

i. conducted in person, over a minimum of six sessions;

ii. tailored to address specific issues relating to appropriate workplace conduct, particularly in respect of maintaining professional boundaries with junior staff;

iii. on terms and conditions as determined by the head of jurisdiction, including:

• provision to the nominated provider of copies of all relevant materials;
  and
• at the conclusion of the program, delivery of a written report to the head of jurisdiction, containing a summary of the work undertaken by the Officer and his overall progress.

b. That the Officer attend a relevant Judicial College of Victoria event.

c. That the Officer read and refamiliarise himself with relevant resources, in particular:

i. the Commission’s Judicial Conduct Guideline on Sexual Harassment;

ii. Preventing and Addressing Sexual Harassment in Victorian Courts and VCAT (Report and Recommendations, 2021) by Dr Helen Szoke; and

iii. Power & Consent (2021) by Rachel Doyle.

d. That the Officer be otherwise directed to undertake necessary coaching and mentoring as the head of jurisdiction considers appropriate.