Barney v State of Queensland and Anor
[2012] QCAT 695
| CITATION: | Barney v State Of Queensland and Anor [2012] QCAT 695 |
| PARTIES: | George Fleetwood Barney (Applicant) |
| v | |
| State Of Queensland (First Respondent) Wendy Petersen (Second Respondent) |
| APPLICATION NUMBER: | ADL015-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 22 and 23 February, 21 and 22 June and 23 October 2012 |
| HEARD AT: | Hervey Bay |
| DECISION OF: | Aaron Suthers, Member |
| DELIVERED ON: | 1 November 2012 |
| DELIVERED AT: | Hervey Bay |
ORDERS MADE: | 1. That the Respondents pay to the Applicant the sum of $76,704.81within twenty-eight (28) days. |
| CATCHWORDS: | Anti-Discrimination – Racial Discrimination – – Vicarious liability of employer for contravention by employee – Where applicant claims contravention of Anti-Discrimination Act 1991 in the workplace – Where applicant claims damages for pain and suffering in addition to economic loss Anti-Discrimination Act 1991, ss 10, 15, 133, 208(1)(a) Joldic v Adams & Luca [2005] QADT 36 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Mr Barney
RESPONDENT: Mr Hamlyn-Harris of counsel instructed by the Crown Solicitor for both Respondents
REASONS FOR DECISION
Mr Barney is a Residential Care Officer (support worker) who assists people with a disability as part of his employment with the Accommodation Support and Respite Service (“AS&RS”), part of the Department of Communities, Child Safety and Disability Services. Ms Petersen is a co-worker of Mr Barney's. The State of Queensland is responsible for the Department, which is the employer of both Mr Barney and Ms Petersen.
Mr Barney is of indigenous heritage and a descendant of the Butchulla tribe from the area surrounding Hervey Bay. He is actively involved in the indigenous community. His indigenous heritage is apparently well known to his co-workers, some of whom have spoken with him about indigenous issues from time to time.
Mr Barney alleges that he was subjected to racial discrimination in the course of his work, by Ms Petersen specifically and that the State of Queensland is liable through the direct actions of other employees of the AS&RS team and also vicariously for the alleged acts of Ms Petersen by operation of the Anti-Discrimination Act 1991 (“the Act”).
Mr Barney represented himself at the hearing. Both of the Respondents were represented by Mr Hamlyn-Harris of Counsel.
The complaints made by Mr Barney were extensive. They were not presented in a clear and orderly manner. There appears to be two major reasons for this. The first is that Mr Barney lacks legal training. Despite the Tribunal's best efforts over the five days of the hearing to ensure Mr Barney had proper understanding of the nature of the assertions he was making in the Tribunal, and their legal implications,[1] it was apparent that Mr Barney had difficulty differentiating his complaints between those that related to issues of discrimination on the basis of his race and those that related to what he perceived as poor management action in general. Secondly, a large number of the complaints Mr Barney brings to the Tribunal relate to issues he became aware of only through other people, rather than being present when the matters he complains of occurred.
[1] Section 29 of the Queensland Civil and Administrative Tribunal Act 2009.
As a result of this, the Tribunal was presented with voluminous material regarding Mr Barney's complaints. The evidence was not presented in a chronological fashion, largely, it seems, because Mr Barney did not receive it in that way. Some of the evidence was only available to Mr Barney after he took steps to investigate those initial matters of concern which were reported to him.
Certainly the clarity of the evidence was affected by it having been passed on from various sources over an extended period of time, such that the exact nature of what was said, by whom and when was far from clear by the time of the hearing.
Notwithstanding this, the Tribunal's role is to examine the evidence which is available to it, to see whether it can be reasonably satisfied on the balance of probabilities, given the seriousness of such allegations, that the complaints made by Mr Barney are made out on acceptable and cogent evidence. The Tribunal must have regard to the reasons for the enactment of the Act in evaluating the evidence.[2]
[2] Section 208(1)(a) Anti-Discrimination Act 1991.
To assist in this process, at the outset of the hearing, the Tribunal clarified with the parties the exact nature of the complaints which were referred by the Commission, and to be dealt with.
The complaints made by Mr Barney which fall to be determined by the Tribunal are as follows:
a. That on a date unknown probably in 2007, Ms Petersen told a co-worker Ruth Braam that she had previously told another work colleague that she had refused to swap a shift because it would result in her working with Mr Barney, and that in that conversation with Ms Braam, she referred to Mr Barney as a "black thing" or "black fella";
b. That on dates unknown in about 2007 Ms Petersen made racial comments about Mr Barney and that at least one of those comments was made to a co-worker Jane Wild;
c. That on 9 September 2007, during a telephone conversation, apparently initiated by Ms Petersen to apologise, she said to Mr Barney words to the effect of "you're black, just get over it" and "you won't change it, just accept it, you're black, black, black";
d. In relation to the State of Queensland, it was alleged firstly that it was vicariously liable for the actions of Ms Petersen;
e. Secondly, it was alleged that it discriminated against Mr Barney by rostering him to work shifts with Ms Petersen after he had made complaints about her;
f. Thirdly, that despite his complaints, he was required to attend training sessions with Ms Petersen;
g. Fourthly, that Mr Barney’s manager, a Ms Chaplin's response to his complaints about Ms Petersen was inappropriate; and
h. Lastly that he was directly discriminated against by being treated less favourably in a re-deployment process whereby he was moved from one house where support to service users was provided to another.
Legislation
The Anti-Discrimination Act 1991 (the “Act”) prohibits the unfavourable treatment[3] of a person in the workplace[4] on the basis of their race[5].
[3] See section 10 for the meaning of direct discrimination.
[4] See Part 4, Division 2, Subdivision 1 for prohibitions in work and work-related areas.
[5] See section 7 for the list of attributes based on which discrimination is prohibited.
Section 133 of the Act makes an employer vicariously liable for a contravention by its workers or agents, if a defence cannot be successfully argued.
It is convenient, as a result of the way in which the hearing was conducted, to deal with the issues, not in chronological order, but in the order in which they were presented or came to Mr Barney’s attention.
The comment by Ms Petersen about Mr Barney which was later repeated to Ms Braam
The evidence on this issue was, at least in some respects, not significantly in dispute.
Ms Petersen acknowledges that in or about July 2007 she was asked by a staff member to swap a shift with her and work at a supported accommodation unit at La Franz Drive, where Mr Barney was also rostered on duty. Her evidence about what she actually said changed over time but she acknowledged, and the Tribunal finds, that she said words to the effect of "I don't want to go there because the black fella is going to be on there" or something similar.[6]
[6] Para 10 Statement 16 November 2011 Exhibit 19.
Mr Barney became aware of the issue as result of a subsequent conversation Ms Petersen had with another co-worker Ruth Braam. Ms Braam's recollection was that at a change of shift she was walking to her car with Ms Petersen and Ms Petersen said "I've got to go and work with that black one.[7]” Ms Braam says that she clarified that Ms Petersen was speaking about Mr Barney. Ms Braam found the comment particularly offensive because she has two grandchildren with indigenous heritage. She informed Mr Barney of what had been said and, although it was in the context of pointing out that Ms Petersen should have been more careful because she did not know the background of Ms Braam’s family[8], Mr Barney did not consider the comment to be a mere faux pas, as Ms Braam apparently had.
[7]Mr Barney’s recollection was that Ms Braam informed him that Ms Petersen referred to him as the “black thing”.
[8] Transcript of Statement to the Misconduct prevention unit 6 April 2009 page 5.
The apparent inconsistency between Ms Petersen’s admission that she made a comment about Mr Barney in the course of refusing to swap a shift which would lead to her working with him, and Ms Braam’s recollection that the comment was made in the context of having to go and work with Mr Barney is problematic for a number of reasons.
Firstly it raises the issue of whether there were in fact two incidents, one where Ms Petersen refused to work with Mr Barney and used a racial epithet, and another where she used a racial epithet about going to work with Mr Barney, or whether Ms Braam’s recollection is confused and it was in fact the same incident.
The Tribunal is not satisfied that there were two separate incidents evidenced by this disparity. In Mr Barney’s grievance letter date stamped 23 August 2007 he refers to having been told by Ms Braam that during the conversation complained of, Ms Petersen told Ms Braam that Ms Petersen had said that she refused to swap a shift when making the comment about Mr Barney. He can only have received this information from Ms Braam at the time, when her recollection of events would have been clearest.
It is also relevant in the determination of whether Mr Barney was treated less favourably by Ms Petersen in relation to this incident.
The Tribunal was not assisted in this regard by the fact that by the time of the hearing Ms Petersen did not always clearly recall whether she in fact refused to swap a shift which would lead to her working with Mr Barney.
The Tribunal, however, is satisfied that she did. She acknowledged having done so in her statement to the Tribunal and in evidence[9]. Indeed, the Respondents’ contentions specifically acknowledge that Ms Petersen refused to swap a shift which would see her working with Mr Barney in the context of this incident,[10] and it is consistent with the findings about what Ms Braam told Mr Barney above.
[9] Transcript page 60 line 29.
[10] Exhibit 18 Paragraph 14.
Exactly what was said by Ms Petersen to Ms Braam is unclear. In 2011 Ms Petersen maintained "I did not call Mr Barney a “black thing”", but agreed that she had called him a “black fella”[11]. By the date of hearing Ms Petersen was confident that she had never called Mr Barney "black fella" but in fact had only ever referred to him as "black one".[12]
[11] Transcript of Statement to the Misconduct prevention unit page 13.
[12] Transcript page 48 line 9.
The Tribunal finds that, irrespective of the exact phrase used by Ms Petersen when speaking to Ms Braam, it contained an inappropriate racial epithet.
Having determined that issue the Tribunal needs to consider whether Ms Petersen's conduct was in fact a breach of the Act.
Section 10 of the Act provides that “Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.” The relevant attribute in the present case is Mr Barney’s race.
In Joldic v Adams and Luca as proprietor of Sunnybank Solicitors[13] the Queensland Anti-Discrimination Tribunal succinctly described section 10 of the Act as requiring: “A comparison between the treatment by the discriminator of the person with the attribute and the likely treatment by the discriminator of a person without the attribute. If the applicant has been treated differently because of her/his race, was that treatment less favourable? If the treatment was less favourable, would the alleged discriminator have treated another person without that attribute in the same way given the circumstances?”
[13] [2005] QADT 36 at 58.
Section 15 of the Act, in addition to prohibiting “treating a worker unfavourably in any way in connection with work[14]”, also prohibits discrimination “by denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker[15]”.
[14] Section 15(1)(f).
[15] Section 15(1)(b).
The Respondents sought to rely upon two separate arguments in submitting that Ms Petersen's conduct did not amount to discrimination.
The first argument
The Respondents say that Ms Petersen using a racial epithet about Mr Barney cannot constitute less favourable treatment, because he was not present to hear it and she did not intend it to be repeated to him.
The Tribunal is not satisfied that this is a correct statement of the law. Whilst the Tribunal is not required to determine this issue for the reasons set out below, there does not seem to a reason why speaking about a co-worker at work, in a racially demeaning way cannot constitute less favourable treatment because they did not hear it.
The use of racial epithets, without more, to a person has been found to be capable of constituting discrimination[16]. That the person was not there to hear the comments may be less likely to be causative of damage, but is unlikely to constitute an absolute bar to a claim that someone has been less favourably treated[17]. Were this to be the case, the result would be that employers could, conceivably, avoid liability under s 133 of the Act by instituting and enforcing a policy that allowed employees to make racially offensive comments about co-workers, as long as they were not present[18]. Such a construction would be inconsistent with the purpose of the Act. Further, by way of comparable example, a person could be less favourably treated because of their race but be unaware of it, by being rostered to specific, more difficult, shifts or work tasks on the basis of race. The fact that the person is unaware they have been less favourably treated because of their race does not alter the fact that they have been so treated.
[16] Chesson v Buxton (1990) EOC 92-295.
[17] Malone v Pullen & Hungry Jacks Pty Ltd [2004] QATD 2004 at para 17 considered.
[18]The Tribunal acknowledges that this would nonetheless be likely to constitute a breach of an implied term of the contract of employment.
In any event the Tribunal finds that it was not the use of the racial epithet on its own which constitutes the less favourable treatment in relation to this issue.
The less favourable treatment of Mr Barney also encompasses the refusal by Ms Petersen to swap a shift with another co-worker because it would lead to her working with Mr Barney.
At the relevant time it was commonplace for support workers to swap shifts.[19] It assisted staff members in managing their personal life and various matters which might arise.[20] The Tribunal is satisfied that it was of “benefit” in the role Mr Barney undertook with AS&RS that there be a redistribution of support workers from time to time[21].
[19] Transcript page 192 line 7.
[20] Transcript page 192 line 27.
[21] See the re-deployment policy of the First Respondent.
The reasons for this are clear, it gives each support worker the opportunity to interact with, and potentially learn from other support workers. It prevents them becoming stale in their daily work environment[22] and it provides them with the opportunity to swap shifts with each other and be part of a collegiate group of employees, for whom flexibility in working arrangements must undoubtedly relieve some of the pressure occasioned by undertaking their role as support workers.
[22] Exhibit 21 paragraph 10.
Ms Petersen’s actions denied Mr Barney the opportunity to be treated in the way another worker would have been treated in the circumstances and to derive the benefits thereof. Her decision, whilst ostensibly only affecting the other co-worker, had a direct impact on Mr Barney and the Tribunal finds that this is capable, in the circumstances, of constituting treatment of Mr Barney.
Such conduct could also make other workers at the residence Mr Barney worked at resentful of him, if they perceived that he was the cause of them being unable to swap shifts as freely as people who did not work with him. This would have the capacity to limit Mr Barney’s access to those benefits in the future.
Having determined that Mr Barney was treated less favourably (and lost the benefit referred to above) in the course of his work by Ms Petersen in this instance, the Tribunal needs to determine whether Ms Petersen would have treated another worker without the attribute of Mr Barney’s race in the same way, given the circumstances.
The second argument
In her contentions filed in the Tribunal and in her evidence at the hearing, Ms Petersen sought to have the Tribunal accept that her refusal to swap a shift and work with Mr Barney had nothing to do with issues of race but was solely due to differences in personality and work practices.
The Tribunal does not accept that position. It is inconsistent with Ms Petersen's statement to misconduct prevention unit investigators and her evidence that she had spent very little time working with Mr Barney.
In cross-examination she sought to rely on having been told by others that there that there were problems in Mr Barney's work practices[23], that he was “lazy”[24] and that he was “touchy-feely”.[25]
[23] Transcript page 29 line 17.
[24] Transcript page 28 line 34.
[25] Transcript page 39 line 42.
When asked by the Tribunal about her responses to the misconduct prevention unit, Ms Petersen acknowledged that in 2009 when given the opportunity to raise any difficulties with Mr Barney's past work practices she raised no complaint[26]
[26] Transcript page 39 line 27.
In response to a question by an investigator from the misconduct prevention unit about her relationship with Mr Barney, Ms Petersen said it was "all right, we, I used to work with him at Snapper Street, it was fine. As I said I never really had any problems with him or anything so."[27]
[27] Transcript of Statement to the Misconduct prevention unit 7 April 2009 page 12.
When asked about working with Mr Barney prior to the incident and whether she had any problem working with Mr Barney Ms Petersen said "no, not really. As I said I mainly sort of missed working with him because I sort of rostered on with someone else. But there were a couple of changeovers and that but no I don't."[28]
[28] Transcript of Statement to the Misconduct prevention unit 7 April 2009 page 13.
In this context Ms Petersen's subsequent attempts to justify her actions on the basis of Mr Barney's work practices were disingenuous. Had any of these issues been her legitimate concern, the Tribunal is satisfied that she would have referred to Mr Barney as "lazy", or "touchy-feely". In fact she chose to refer to him as "black"[29].
[29] Transcript page lines 32 to 35.
The Tribunal infers that, prima facie, this indicates the reason for Ms Petersen's decision. Taken with the other evidence referred to above, the Tribunal is satisfied that Ms Petersen's less favourable treatment of Mr Barney was as a result of his race, and that she would not have treated another co-worker without that attribute in the same way.
The telephone "apology" on 9 September 2007
Ms Petersen rang Mr Barney on 9 September 2007 having been directed by Ms Chaplin to apologise for her earlier comments. This conversation was instigated by Ms Chaplin as part of her investigation into Mr Barney's complaints. Ms Petersen contends that the telephone conversation with Mr Barney was relatively uneventful. She says that he accepted her apology, and that "yeah I just rang and apologised and just said to him that I wasn't racist and it was just something in conversation that I just said and I was sorry. Yeah and he just said if I would have called him anything else it wouldn't of mattered but because I called him a black fella it was horrible and I thought, oh you know. So yeah and then that was all, he, he agreed that you know, that he took my apologies and that was it."[30] She went on to say "yeah. He just said if I would have called him anything else but a black fella he wouldn't have worried about it. If I would have called him a black bastard or a black nigger or anything else but a black fella. And I just said, I said so what's the difference in any of the names, you know. I said well, he didn't say, he said well, fella’s racist. And I said well I think that's a kind, kinder word than anything else, you know. I said if I was a racist I would have called you something else. But I'm not racist, I grew up with a lot of dark people at the Bay and he knows all those people and I’m not a racist. It's just what he carries on that, you know sort of thing. But yeah so I just said well yeah, I apologised to him."[31]
[30] Transcript of Statement to the Misconduct prevention unit 7 April 2009 page 6.
[31] Transcript of Statement to the Misconduct prevention unit 7 April 2009 page 13.
By the time of Ms Petersen statement filed in the Tribunal dated 16 November 2011 Ms Petersen also recalled that Mr Barney had said that it would have been all right if she had called him a "black cunt."[32]
[32] Exhibit 19 Paragraph 27.
She says that the telephone conversation lasted for less than the 40 minutes alleged by Mr Barney.
Mr Barney, conversely, says that the telephone conversation was confrontational and led by Ms Petersen.[33] Mr Barney says that not in any way did Ms Petersen appropriately apologise, and that she made a series of claims that it was common practice at the Maryborough Service Centre to say “the black thing” or “black so-and-so”.[34] He says the discussion became heated and led to Ms Petersen saying to him "you're black, black, black. Accept that you are not going to change it" or words to that effect.[35] He denies the comment attributed to him by Ms Petersen that he said that it would have been all right if Ms Petersen had called him a “black bastard” or “black nigger”.
[33] Transcript Page 34 line 18.
[34] Transcript Page 34 line 36.
[35] Transcript Page 34 line 45.
He took a note of the conversation at the time it took place. That note[36] is consistent with his evidence to the Tribunal of what took place, despite containing much less detail than is now alleged by Mr Barney. It must be acknowledged that Mr Barney has at no stage indicated that it was a verbatim transcript of the conversation. It could not be, given that occupies approximately 11 lines of a notebook and is said to be a record of a conversation which took approximately 40 minutes.
[36] Exhibit 3.
As a result of the telephone conversation Ms Petersen advised Ms Chaplin that she had apologised to Mr Barney and that he had accepted her apology. Mr Barney later advised Ms Chaplin that Ms Petersen had not satisfactorily apologised and requested that the matter be taken further.
Determination of this issue relies entirely on an assessment of the relative credit of Mr Barney and Ms Petersen in relation to their evidence on this issue (and to some extent in general).
In that regard, Mr Barney had a propensity to fixate and be far from nuanced in his appearance before the Tribunal. It must also be acknowledged that he has a tendency to rewrite some of his notes and even his copies of correspondence already sent, as and when further recollection occurred to him, but there was no indication when giving evidence about this issue that Mr Barney was being less than frank. There was no suggestion that his note of this conversation was not contemporaneous, or was embellished over time.
His note of the conversation is clear, and his version of Ms Petersen's reaction during the conversation was consistent with her behaviour in cross-examination.
In cross-examination by Mr Barney, Ms Petersen was clearly and understandably in an uncomfortable position. The Tribunal finds that her reaction in that difficult circumstance is likely to be consistent with her reaction to the difficult issue of ringing Mr Barney to make an apology.
When it was put to Ms Petersen that she did not want to go to La Franz Drive because "the black fellow was going to be on there", Ms Petersen made the following comment to Mr Barney "that was my personal reason, and that’s – are you white, or are you black? I'm white. What are you?"[37] and "I'm not saying that, because you're just black. It was a personal thing. You just can't get that, can you, Fleetwood?"[38]
[37] Transcript page 56 line 7.
[38] Transcript page 56 line 18.
When asked whether it was common in Maryborough Disability Services for people to use labels when describing others, Ms Petersen responded "everybody has got a label, Fleetwood. I had a label through school, everywhere. Everybody has got a label. You've just got to get over."[39]
[39] Transcript page 56 line 32.
Later in cross-examination Ms Petersen went on "and if you're going to go around with a big chip on your shoulder because of your skin, you're going to have a problem. And this is what you’re doing, because someone just called you a black person or a black one, but no one else has got problems. I don't have a problem. I don't have a problem with you. It's just a working personal thing, like I told you. It's personal."[40]
[40] Transcript page 56 line 42.
Nothing in Mr Barney's behaviour during the course of his employment with AS&RS or his prosecution of this or previous complaints about discrimination are consistent with Ms Petersen's allegation that Mr Barney said it would be all right for her to have called him a "black bastard", “black nigger" or "black cunt".
These factors, combined with Ms Petersen’s reaction and demeanour in cross-examination and her apparent difficulty in responding to pressure from Mr Barney without resorting to making further comments related to his race leads the Tribunal to prefer Mr Barney's version of what occurred.
The Tribunal accepts that Ms Petersen may not have used the exact words “you are black, black, black just accept it.” As was submitted by Mr Hamlyn-Harris, Mr Barney, even when attempting to repeat comments made by Ms Petersen during the hearing, had a propensity to exaggerate what was said through emphasising what he heard by repetition.[41]
[41] Transcript page 56 line 18.
The Tribunal is however satisfied that Ms Petersen failed to apologise appropriately, and that she referred to Mr Barney's race (by reference to colour) during the telephone conversation in the context of suggesting that he needed to move on from his complaint, rather than obtaining appropriate redress for it.
The Tribunal must determine whether, in doing so, Mr Barney was treated less favourably than someone without the relevant attribute would have been in the circumstances.
Ms Petersen's telephone call to Mr Barney was instigated by management as a result of other inappropriate racial comments. For him to have to listen to Ms Petersen making further inappropriate comments referable to colour, in an attempt to justify her behaviour, must constitute less favourable treatment than someone without the attribute would have received from Ms Petersen in the circumstances.[42]
[42] Chesson v Buxton above.
The racial comments made by Ms Petersen to others, including Jane Wild
Mr Barney was later informed when making enquiries about Ms Petersen after the issues dealt with above that Ms Petersen had made racially inappropriate comments about him on other occasions. He was told this independently by both Ms Braam and another co-worker, Ms Donna Souvan.
Ms Braam, when asked by the misconduct prevention unit whether she was aware of other inappropriate racial comments Ms Petersen made to other people, indicated that she was aware that Ms Petersen did say something to another worker who had also put in a complaint about a racial comment. The person who Ms Braam said made the complaint was co-worker Jane Wild. She said Ms Wild told her she had put in a complaint to management, that Ms Wild had a daughter who was “half indigenous” but she was otherwise unable to elaborate on what was said or when.
Ms Braam confirmed that she made Mr Barney aware of this incident.[43]
[43] Transcript of Statement to the Misconduct prevention unit 7 April 2009 pages 12 to 14.
When asked by the misconduct prevention unit investigators about other instances of making racial comments and in particular using the term "black fella" Ms Petersen was asked "we've got other information Wendy about the types of things that you've said. You’ve allegedly said more than one comment. And the time that you said you were talking in general discussion you said “the black fella”. Can you remember what context that was in? What was said before that to make you say the black fella?"
Ms Petersen's response was "well someone was just talking about him and I just, just said it.” The investigator went on "all these people that you're talking about, the other staff that were there, they all know Fleetwood?" Ms Petersen responded "yeah." The investigator asked "and they would, would they need, need him to be described as the black fella for them to know who you meant?" Ms Petersen replied "no not really."[44]
[44] Transcript of Statement to the Misconduct prevention unit 7 April 2009 page 15.
This comment alone, which cannot refer to the separate incident between Ms Petersen and Ms Braam is sufficient for the Tribunal to conclude that Ms Petersen made inappropriate, racial comments about Mr Barney on at least one other occasion. Ms Petersen’s ongoing confusion as to whether she called Mr Barney the “black one” or “black fella”, being certain at various times that it was one, but not the other, allows the Tribunal to draw an inference in support of this conclusion.
Whilst much of the hearing was consumed by evidence and cross-examination about other occasions upon which Ms Petersen may have made inappropriate racial comments, the Tribunal, having regard to its obligation to be accessible, informal and quick[45] is not satisfied that there is a need to traverse all of that evidence and make findings about each of the allegations and counter allegations.
[45] Section 3 Queensland Civil and Administrative Tribunal Act 2009.
There is no suggestion that any of the other comments were made to Mr Barney. On each occasion he only learnt of them through others. The Tribunal is satisfied that Ms Petersen did make other inappropriate comments, using racial epithets, about Mr Barney. The Tribunal finds that Mr Barney became aware of the comments to Ms Braam on the 19th July 2007[46]. For reasons set out below in relation to the issue of the appropriate damages there is no need for the Tribunal to specifically make findings about how many times Ms Petersen made other inappropriate comments, to whom, or exactly what was said.
[46] The date Ms Braam telephoned Mr Barney.
In the event that the Tribunal is found to be wrong in this however, the Tribunal makes some limited and general findings about the state of the other evidence.
Comments heard by Jane Wild
Ms Wild made a statement to the misconduct prevention unit and gave evidence at the Tribunal pursuant to a notice requiring her to attend. At the hearing Ms Wild’s evidence was evasive and unhelpful. She had formed resentment toward Mr Barney[47], perhaps for taking this action, no doubt reinforced by what she saw as his attempts to manipulate her in relation to these issues, relying upon her shared family connections[48].
[47] Transcript Page 90 Line 35.
[48] Transcript Page 137 Line 10.
In her evidence and cross-examination Ms Wild uniformly retreated into uncertainty or an apparent lack of recollection, but was prepared to accept that what she told the misconduct prevention unit investigators in 2009 would have been correct.
The Tribunal was satisfied that Ms Wild had previously heard and complained to Karen Chaplin of an inappropriate racially based comment made by Ms Petersen about Mr Barney. This finding relies upon Ms Braam's statement to the misconduct prevention unit that Ms Wild had told her that this had occurred, and upon a proper construction of Ms Wild's own statement to the misconduct prevention unit.[49]
[49] At pages 3 and 4.
Comments reported by Donna Souvan
Of all of the witnesses who gave evidence to the Tribunal about contentious issues of what was said, Ms Souvan was the most reliably credible. She made appropriate concessions in cross-examination, was not prone to exaggeration or reluctant to answer any appropriate question. She showed no apparent bias either toward or against Mr Barney.
Her evidence was that she acted in the role of unit manager from 23 November 2005 until 30 March 2007. There were then periods where she was on and off leave, ending in her ceasing work for the Department on 11 June 2007.
She says that on two occasions when she was unit manager she had cause to speak to Ms Petersen at the request of Ms Chaplin about alleged racist comments made by Ms Petersen about Mr Barney. Whilst she had given a number of earlier statements, she conceded in cross-examination that her recollection at this time was "vague"[50].
[50] Transcript page 288 lines 20-25.
She outlined what occurred to the misconduct prevention unit investigators on 7 April 2009. She recalled that one of the allegations was that Ms Petersen had called Mr Barney a "black bastard" but that she could not recall the other allegations.
She says that when she spoke to Ms Petersen, Ms Petersen acknowledged that her comments were racist but would not acknowledge that it was wrong and said Ms Petersen didn't feel it was inappropriate. She said that Ms Petersen remained amicable during the discussions, and agreed to make an apology to Mr Barney for the comments.[51] She says that she made handwritten notes which she attached to a typed probationary report about Ms Petersen, and provided those to Ms Chaplin at her request[52].
[51] Transcript page 171 lines 28-31.
[52] Transcript page 168 line 24.
She said that Ms Chaplin assured her that the matter had been "followed up" and an apology was made.[53]
[53] Transcript page 168 line 13-21.
In short all of these allegations are denied by, or said to be unknown to, the Respondents' witnesses, Ms Braam and Ms Wild.
Ms Chaplin was not available to give any evidence about the matter or to contradict Ms Souvan's evidence. That she did not give evidence leads the Tribunal to give little weight to the contents of her notes and recorded account, where it conflicts with the evidence of witnesses the Tribunal otherwise finds as credible.
The Respondents challenged Ms Souvan’s evidence on a number of bases.
They point out that she did not mention speaking to Ms Petersen when making a statement to a WorkCover investigator dated 3 October 2007. The Tribunal does not accept that this reduces the credibility of Ms Souvan’s evidence. There was no evidence to suggest that the WorkCover investigator gave her a full opportunity to raise any issues which she felt were appropriate, as opposed to conducting the preparation of the statement on a question-and-answer basis.
The Tribunal finds that it is likely that this statement was prepared for the limited purpose of investigating a WorkCover claim made by Mr Barney by an investigator who would have directed the nature of the interview and the preparation of the statement.
The Respondents say that Ms Petersen's probationary reports were produced to the Tribunal and that they are not consistent with Ms Souvan’s evidence. The documents produced to the Tribunal which purport to be Ms Petersen's probationary reports are not unimpeachable. Their provenance was uncertain and the author of the entries on the first two pages of the probationary reports is unknown[54]. Those pages do not appear to have been completed in the same way as subsequent entries. That the authenticity of those two pages was in doubt was known to the Respondents by day two of the hearing. They failed to identify and make available for cross-examination the apparent author of or signatory to the pages, or lead any evidence that attempts were made to do so, during the four month adjournment before the hearing resumed. The information was solely within the State of Queensland’s power or control. This failure attracts the inference that evidence from that person would not have assisted the Respondent’s case.[55] Further, Mr Robinson's evidence leads the Tribunal to the conclusion that it is possible that there may be other files[56] held in relation to the issue by the Department which were not able to be located or produced when Mr Robinson went searching for them in November 2011[57], some four years after the incidents in question.
[54] Transcript pages 211 and 212.
[55] Jones v Dunkel [1959] 101 CLR 298.
[56] Transcript page 79 line 15.
[57] Transcript page 170 line 22.
The Respondents submit that for the Tribunal to accept that the probationary reports submitted were not in fact the true and correct documents would require an acceptance that there was "an implausible conspiracy theory, under which any record of these incidents have been deliberately left out of or removed from Ms Peterson's probationary reports."[58]
[58] The final written submissions of the Respondents, paragraph 45.
With respect to them, that is not borne out by the evidence.
The Tribunal was led to believe at the outset of the hearing, by evidence filed by the Respondents, that personnel files were kept in secure locked storage. The fact, it transpired, was that personnel files were kept in a locked filing cabinet in the AS&RS office, with the key to the cabinet left in it throughout the day. Ms Petersen acknowledged having accessed her personnel file on at least one occasion.[59] Ms Hayes, who gave evidence for the Respondents, acknowledged that other unrelated files from the office had gone missing during earlier industrial action[60].
[59] Transcript page 51 lines 20-42.
[60] Transcript page 170 line 20.
In addition, only excerpts from Ms Petersen’s file were ever produced and the entire file was never disclosed to Mr Barney, or the Tribunal, which would have assisted in a proper examination of the credibility of the documents in question.
The most substantial challenge to Ms Souvan's evidence was the proposition by the Respondents that the dates of her alleged conversations with Ms Petersen were inconsistent with the dates of her employment with the Department, her periods of leave and Ms Petersen's probationary period.
The evidence about these issues was not, however, entirely clear and was not enough to satisfy the Tribunal that Ms Souvan did not speak to Ms Petersen as she alleges. It may be the case that one of the issues Ms Souvan says she spoke to Ms Petersen about, at the request of Ms Chaplin, was the incident complained of by Mr Barney as a result of the report to him by Ms Braam, but, as outlined above, there is no need for the Tribunal to make definitive findings about this issue in order to resolve the dispute between the parties.
The State of Queensland’s Liability
Vicarious liability for the actions of Ms Petersen
During the course of the hearing Mr Hamlyn-Harris accepted that the State of Queensland was vicariously liable for any discrimination found to have been engaged in by Ms Petersen. It would have been a defence for the State of Queensland to show that, on the balance of probabilities, it took reasonable steps to prevent Ms Petersen contravening the Act[61]. The State of Queensland made no such allegation. Whilst the concession was no doubt appropriately made, it is relevant to the issue of costs and dealt with later in these reasons.
[61] Section 133(2).
Rostering Mr Barney to work shifts with Ms Petersen after his complaint was made to management
There was very little evidence proffered by Mr Barney about the allegation that he was rostered to work shifts with Ms Petersen after making complaints about her acts of discrimination against him. What evidence there was is contained in an email exchange between Mr Barney and Mr Ken Gall, the Executive Director Accommodation Support and Respite Services on 18 and 19 November 2011. It is clear from this course of correspondence that Mr Barney was rostered to work with Ms Petersen, and that this occurred after he had made a complaint to management about her discriminatory behaviour. It is also apparent that upon Mr Barney raising this issue, Mr Gall responded promptly to ensure that Mr Barney did not have to work with Ms Petersen. The evidence shows that it is common practice for employees of AS&RS to move from site to site. It is unsurprising in the circumstances that Mr Barney may have been rostered to work with Ms Petersen. That this occurred despite his complaints about Ms Petersen is not, in and of itself evidence of discrimination. Had Mr Barney been forced to work with Ms Petersen the case may be different but that is not what occurred. In the absence of any evidence that the rostering of Mr Barney to work with Ms Petersen was motivated either by his race or to place him in a position of disadvantage having regard to his earlier complaint about Ms Petersen, the Tribunal cannot be satisfied that this involved discrimination in accordance with the Act. It may have been insensitive management practice. Certainly, it would seem less than ideal in the circumstances, but those are not the tests.
Requiring Mr Barney to attend Training Sessions with Ms Petersen
Again, in this regard, Mr Barney felt that his employers actions in rostering him to attend training sessions which Ms Petersen was also attending was an act of discrimination. Mr Barney felt that it was discriminatory because of the history between him and Ms Petersen and the unresolved nature of his complaints which centred on issues of discrimination. Mr Barney led no evidence which would allow an inference that being nominated to attend training which Ms Petersen also attended was referrable to his race, let alone treating him less favourably. Similarly there was no evidence that there was a viable alternative for his employer, who is undoubtedly under a positive obligation to train its staff on an ongoing basis. It may have been insensitive management practice but there is no evidence that it was discrimination.
Ms Chaplin’s Response to the Complaints
[100]Mr Barney complains about the way his complaint to management was handled. In particular, he says that Ms Chaplin accepted advice from Ms Petersen that she had apologised by telephone to Mr Barney and that the apology had been accepted. Mr Barney was of the view that it was appropriate for Ms Chaplin to confirm the issue with him. The Tribunal accepts that it would have been preferable for Ms Chaplin to speak to Mr Barney and ensure that the matter had been appropriately resolved. This would have allowed her to determine whether the complaint needed to be escalated further.
[101]There was no evidence, however, from which the Tribunal could draw the inference that Ms Chaplin's response involved treating Mr Barney differently or less favourably, than any other person who found themselves making a complaint to her about a co-worker. There was no evidence that her decision not to confirm the matter with Mr Barney was racially motivated. The Tribunal cannot be satisfied that this involves a breach of the Act.
[102]When Mr Barney made it clear that he was not satisfied with Ms Petersen's purported apology Ms Chaplin provided him with information about the complaint process, and ensured that he was aware that he could take the matter further. The evidence, and particularly the evidence of Mr David Robinson, who is now the manager of AS&RS for the district was that Ms Chaplin's actions were appropriate and in accordance with proper management practice. Irrespective of whether this is correct or not, there was no evidence that the way in which Ms Chaplin dealt with Mr Barney’s complaint had any relevance to any issue of race, or that he was treated differently or less favourably than even a notional employee would have been in the same circumstances.
The Re-Deployment Process
[103]There was no evidence that the Tribunal could rely upon to draw a conclusion that the process of redeployment of Mr Barney from the supported accommodation unit at Snapper Street to the supported accommodation unit at La Franz Drive was influenced by his race.
[104]Mr Barney thought it was unfair. He thought it was a bad decision given the specific dementia training he had received and the needs of a resident at Snapper Street, and he said that it sent him from one stressful situation to another.
[105]When he was specifically asked however, Mr Barney conceded that he was not claiming that the implementation of the deployment process was because of his race[62].
[62] Transcript page 64 lines 4-7.
[106]Whilst Ms Souvan gave evidence that negative comments were made about Mr Barney by people in management positions during the redeployment process, there was no suggestion that those comments were related to issues of race. Rather, it seems that Mr Barney may have been generally perceived by some people in a management role at AS&RS as “a troublemaker”[63], and that negative comments were made about a number of employees.[64]
[63] Transcript page 26 line 13.
[64] Transcript page 163 line 13.
Summary of the Allegations about the State of Queensland’s liability other than through s 133 of the Act relating to Ms Petersen
[107]Mr Barney was at great pains to point out to the Tribunal what he said was the generally unsatisfactory nature of Ms Chaplin's management. Mr Barney’s position was that there were many complaints made about the management of the service at about the time these issues arose, and that almost 80% of AS&RS staff were willing to take industrial action because of Ms Chaplin's management practices.[65] He considered Ms Chaplin's management to be absolutely disgraceful. He said Disability Services Queensland, AS&RS and the Maryborough Service Centre became a dysfunctional mess, basically, under Ms Chaplin's management.[66]
[65] Transcript page 71 lines 6-9.
[66] Transcript page 70 lines 40-45.
[108]There was no evidence to show, and the Tribunal is unable to infer that these complaints were based on issues regarding breaches of the Act. In fact it seems that a significant number of the staff were dissatisfied with management action in general at this time. In the absence of any evidence that management action was influenced by Mr Barney's race in any way the Tribunal cannot reach the conclusion that Ms Chaplin or any other managers breached the Act and that consequently the State of Queensland is liable for her, or any other management actions.
Mr Barney’s Credit
[109]The Respondents submit that Mr Barney is generally very dissatisfied with the Department and that he has a demonstrated tendency to be obsessive about pursuing perceived grievances.
[110]They point out that he still maintains complaints about a reference to racist comments made, allegedly, by another co-worker some 10 years ago. They say that there is evidence that he is still complaining about management's response to those allegations even though he had personally resolved matters between himself and that person.
[111]They say that Mr Barney has a tendency to interpret anything that management does in relation to him that he does not agree with, as race-based and as racial discrimination.
[112]As can be seen from the findings above, these submissions carry some force. The fact remains however that the findings of the Tribunal in relation to most of the allegations do not rely on Mr Barney's credit. The only exception is the issue of the telephone conversation, which has been dealt with, and findings made above.
[113]The mere fact that Mr Barney may have a tendency to interpret anything he does not agree with as being related to his race does not mean he was not discriminated against, and may, at least in part, be related to the effect of the depression and anxiety caused by Ms Petersen's actions[67].
[67] See the comments of Dr McKeon Transcript page 110 lines 15-35.
Mr Barney's Damage
[114]Shortly after Mr Barney received the information about what Ms Petersen had said to Ms Braam, he was diagnosed with depression and had a considerable period off work. He remains, though, in the employment of the Department as a residential care officer and has returned to normal duties.
[115]The Tribunal has the power to make various orders consequent upon the findings above. One option for the Tribunal is to order an apology but given what has already transpired in this matter there is nothing to be gained by doing so.
[116]The only effective orders the Tribunal may make then in this case are for monetary damages.
[117]In that regard Mr Barney claims damages for both his economic and non-economic loss. He calculates his economic loss in relation to the leave taken by him due to the work stress caused by the racial discrimination to be $30,844.00. The Respondents say correctly, that this is the gross figure, and calculate Mr Barney’s total economic loss on a net basis to be $21,089.00. They submit, though, that they are not liable for causing this loss.
[118]It is well established that it is the net figure which must be used as the basis for any calculation.
[119]Mr Barney asks that a further, unspecified amount be allowed for hurt and humiliation. The Respondents say that if they are found to be liable, the award for non-economic loss for the hurt, humiliation and distress (pain and suffering or general damages) suffered by Mr Barney should be a modest award of up to $1,000.00. They rely on what they describe as the limited nature of Ms Peterson's comments and that they were not said in Mr Barney's presence or intended for him to hear.
[120]Evidence of the sequelae of these events, and the effect they had on Mr Barney's mental health was given by both Mr Barney's general practitioner Dr McKeon and in a report from a consultant psychiatrist Dr Mungomery dated 13 February 2008. Dr Mungomery’s evidence went entirely unchallenged by the Respondents. Dr McKeon was not seriously challenged.
[121]Dr Mungomery’s findings, in summary, were that Mr Barney developed a major depressive episode of moderate severity from about June 2006 due to exposure to a number of reported workplace stressors involving bullying, harassment and racial abuse. He says that this, in combination with a long-standing heavy workload in his role as a residential care officer resulted in Mr Barney developing a range of depressive and anxiety symptoms for which he began to receive treatment on 31 July 2007 when he was issued with a sickness certificate certifying him unfit for work.
[122]The doctor found in February 2008, that since commencing leave from AS&RS Mr Barney's depressive symptoms had only partially responded to treatment. He continued to have problems with excessive alcohol intake which appeared to be a form of self-medication as his depressive and anxiety symptoms had worsened over the past 12 to 18 months. In the last 1 to 3 months before the report, with Mr Barney making a decision at that time not to return to Disability Services Queensland and increasing his medication, he had a partial improvement in the severity of his depressive illness and alcohol abuse but continued to present with features of a major depressive episode of moderate severity and alcohol abuse of mild severity.
[123]The doctor noted that Mr Barney first had a depressive episode in 2001 but that this was treated with a short course of Zoloft and 4 to 6 sessions of psychological counselling, with the depressive episode appearing to have reached a state of remission within 6 to 12 months.
[124]The diagnosis of Mr Barney's major depressive episode occurred on 31 July 2007 (which the Tribunal notes is proximate in time to, but after he found out about Ms Petersen's actions as reported by Ms Braam). The doctor went on to express a view that Mr Barney was at the time deprived of his capacity to return to his previous work role as a residential care officer due to the ongoing severity of his major depressive episode and alcohol abuse, and amongst other things, the unresolved nature of the grievance about his workplace treatment and racial abuse.
[125]The doctor felt that Mr Barney’s possible consideration of involvement in action before the Anti-Discrimination Commission at that time was likely acting as an additional perpetuating stressor, impacting upon Mr Barney's capacity to return to his previous work role. The doctor felt that Mr Barney could be considered to be totally impaired in his capacity to return to his previous work as a residential care officer for the foreseeable future due to the enduring psychological impact of the nature of his work in combination with his unresolved anger regarding his workplace treatment and racial abuse.
[126]The evidence of Mr Barney's general practitioner Dr McKeon was that Mr Barney presented with suicidal ideations between 2007 and 2011[68] with at least one attempt being made. It was not suggested to Mr Barney that this was untrue or as a result of anything other than the effect of all of the work related issues he saw as imposing upon him at the time.
[68] Transcript page 110 line 44 to page 111 line 12.
[127]It is appropriate that the Tribunal firstly consider the appropriate award for non-economic loss on the basis that it could be satisfied that it was entirely caused by the Respondents, and then consider what figure is appropriate for non-economic loss, and whether a discount should be applied to the economic loss figure, having regard to any issues of causation.
[128]The difficulty in assessing general damages where depressive illness is a serious element of the sequelae of relatively few and isolated episodes of discriminatory conduct are well reported.[69]
[69]Qantas Airways Limited v Gama [2008] FCAFC 69 at 99.
[129]In Alexander v Home Office[70] it was found that “As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referrable to this can be readily calculated. For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained.”
[70][1988] 1 WLR 968 at 975: adopted by Wilcox J in Hall v Sheiban(1989) 20 FCR 217 at 256.
[130]In attempting to assess a reasonable figure for non-economic loss, the Tribunal is not significantly assisted by its earlier decisions. There are comparatively few decisions given each year and as a result there is the risk that a slavish following of precedent in this regard will result in the Tribunal losing sight of what is appropriate in any particular matter.
[131]The view that the Tribunal should be guided by awards in other matters also sits uncomfortably with the decision of the High Court in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62 where their Honours, Barwick CJ, Kitto, J and Menzies J, rejected the submission that "in deciding whether or not an award of general damages was excessive, we should ‘seek out a norm or standard in the decisions of this Court for the assessment of general damages, by comparison’". It was found that “It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases.”
[132]When considering the basis of an award for damages the Tribunal must first consider the wording of the Act[71]. It has, however, been found in a number of cases that the principles in anti-discrimination matters are similar to those for assessment of damages in tort[72].
[71]See s 209.
[72]See for example Qantas Airways Limited v Gama above.
[133]The Tribunal is of the view that an appropriate award, where Mr Barney developed a moderate depressive illness of long duration with associated alcohol abuse and suicidal ideations, where the symptoms largely abated over a period of about 20 months to the extent that he returned to work but still affect him after 5 years[73] would, in the absence of issues of causation, be $55,000.00.
[73] Dr McKeon, Transcript page 109 line 42.
[134]The Tribunal acknowledges that this award is higher than might be anticipated, if one sought to infer a notional tariff for awards under this heading, from past awards of the Tribunal. The Tribunal is, however, satisfied that this amount is assessed on the same principles as an award for a comparable psychiatric injury in tort. The Tribunal is of the view that there is no reason why compensation under the Act should be considered differently, in the absence of any statutory imprimatur to that effect. The Tribunal has considered its recent decision in the matter of Carey v Cairns Regional Council[74]. Whilst the process behind the assessment of the award for general damages was not required to be exposed by the learned Member in that matter, the Tribunal there appears to have followed the same course proposed here.
[74] [2011] QCAT 26.
[135]The Tribunal must then consider the appropriate award to allow for the fact that Mr Barney's depressive illness may not have been entirely caused by the acts of discrimination which have been found to have occurred.
[136]It is submitted by the Respondents that if the comments made by Ms Peterson were found to constitute unlawful discrimination that their contribution to the economic loss suffered by Mr Barney by being off work would be minimal, and at best in the order of perhaps 5%. They say in relation to Mr Barney's economic loss that the evidence presented to the Tribunal does not support the conclusion that a 20 month absence from the workplace could be attributed to remarks by Ms Peterson outside Mr Barney's presence.
[137]The difficulty for the Tribunal is that the Respondents chose not to lead any evidence from a medical practitioner on this issue. Similarly, they failed to have Dr McKeon or Dr Mungomery attempt to differentiate between Mr Barney's incapacity in so far as it related to the actions of Ms Peterson which the Tribunal accepts were discrimination, and the other actions complained of by Mr Barney.
[138]Obviously, it would have been extremely difficult for the Respondents to put every permutation and combination of the potential findings of the Tribunal to the doctors for comment.
[139]It must always have been the case though, that the Respondents were aware that the Tribunal could find that Ms Peterson had made inappropriate racial comments on at least two occasions that were reported to Mr Barney, even if only relying upon her own statements. They always denied any management action by the State of Queensland was discriminatory. It would not have posed a significant difficulty to the Respondents to have put this potential finding, which is largely consistent with the findings of the Tribunal, to the doctors and asked them to comment about issues of causation.
[140]The Respondents elected not to do so. They ask the Tribunal to apply a significant, and almost total discount to the amount that might otherwise be allowed, due to the impact of the matters the Tribunal has found not to be discriminatory, Mr Barney's previous history of depression and any predisposition due to other factors, on his condition.
[141]On the state of the medical evidence, the Tribunal is unable to. It is undoubtedly the case that Mr Barney's mental state was impacted upon by his perception of his treatment by management, which the Tribunal has found not to be discriminatory. It is also the case that Mr Barney had some history of depression prior to June 2007, and worked in a stressful environment.
[142]There is no evidence, however, of a significant history of extended periods off work as a result of depression until Mr Barney became aware of at least some of the comments made by Ms Petersen. As the Respondents point out this postdates the issues of his redeployment to La Franz Drive, and so the Tribunal does not accept that this was the significant cause. His diagnosis with a depressive illness and commencing leave, on 31 July 2007 also predates his concerns about Ms Chaplin's handling of his complaint.
[143]On that basis, the Tribunal cannot be satisfied that it is appropriate to apply any discount to Mr Barney's economic loss. The Tribunal is satisfied that the cause of Mr Barney ceasing work was the effect of becoming aware of the incident reported by Ms Braam regarding Ms Peterson and that her subsequent purported apology was a major contributing factor in him remaining off work. Whilst the other factors would undoubtedly have impacted upon Mr Barney, there is insufficient evidence for the Tribunal to find that he would have ceased work when he did in the absence of the matters the Tribunal has found to be discriminatory, or that he would have been in a position to return to work any earlier, having not been also affected by the other issues which the Tribunal finds were not discriminatory.
[144]In relation to Mr Barney’s general damages the Tribunal accepts that the issues it has found not to be discriminatory play some part in the causation and seriousness of his depressive illness. In the absence of any assistance from a qualified medical practitioner however, it is difficult for the Tribunal to make allowance for the contribution made by those factors.
[145]In exercising the Tribunal’s discretion on this issue and assessing the evidence the Tribunal is guided by the need to best promote the purposes of the Act. The Tribunal also recognises that Mr Barney made no claim for any other special damages, which he must have incurred to some extent. The Tribunal will not, in the circumstances and in the absence of reliable medical assistance, err on the side of an assessment of the impact of issues found not discriminatory in the higher end of the possible spectrum of its discretion. Doing the best it can the Tribunal assesses Mr Barney's general damages caused by those matters found to be discrimination at $40,000.00. As stated earlier the exact number of comments made by, or the exact words used by Ms Petersen, has no bearing on this assessment. Mr Barney’s depression and anxiety was significantly caused by learning of Ms Petersen’s discrimination against him, and then contributed to by Ms Petersen’s “apology”.
[146]Mr Barney’s damages are assessed as follows:
General Damages $ 40,000.00
Interest thereon[75] $ 8,416.00
[75] Allowed at 4% from the 31st July 2007.
Past economic loss $ 21,089.00
Past Superannuation[76] $ 2,779.56
[76]Allowed at 9% on the gross loss. The Tribunal acknowledges that this may not be the rate paid by the employer at the relevant time, but no evidence was produced and the Tribunal finds that this allowance is reasonable as compensation.
Interest on past economic loss $ 4,420.25
-----------------
Total $ 76,704.81
[147]The Tribunal has no power to apportion those damages between the Respondents.
Costs
[148]The Tribunal does not intend to relist the matter to hearing applications for costs. Mr Barney had no legal representation and has in the past advised the Tribunal that he was unable to afford legal advice.
[149]The Tribunal asked the Respondents to consider, on the final day of evidence, whether, on any of the possible findings of the Tribunal, they may wish to make application for costs once the Tribunal's decision was known. The Respondents, through Mr Hamlyn-Harris, acknowledged that the starting point for consideration of costs in this jurisdiction is that they are not ordinarily awarded. The Respondents were given the opportunity to consider their position and raise the potential need for an argument as to costs in their written submissions. They elected not to do so.
[150]Whilst the Tribunal is unaware of the exact nature of any offers which may have been made, given those matters above the Tribunal is satisfied that the parties have had an appropriate opportunity to consider whether an application for costs would need to be considered.
[151]Certainly the State of Queensland has been successful in the action other than in relation to its vicarious liability for the acts of Ms Petersen, which it admitted at the outset of the hearing. Given the matters raised in paragraph 97, though, the Tribunal would be reluctant to award costs to the State of Queensland on that basis, in any event.
ORDERS
[152]That the Respondents pay to the Applicant the sum of $76,704.81 within twenty-eight (28) days.
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