Bero v Wilmar Sugar Pty Ltd & Ors

CITATION:

Bero v Wilmar Sugar Pty Ltd & Ors [2016] QCAT 371

PARTIES:

Peter Christopher Bero

(Applicant)
v

Wilmar Sugar Pty Ltd
(First Respondent)

Graham Powell
(Second Respondent)

Gregory James Chatfield
(Third Respondent)

Stephen Luke
(Fourth Respondent)

Salvatore Russo
(Fifth Respondent)

APPLICATION NUMBER:

ADL008-15

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

7 August 2015
17 March 2016
18 March 2016

HEARD AT:

Townsville

DECISION OF:

Member Pennell

DELIVERED ON:

12 October 2016

DELIVERED AT:

Townsville

DECISION MADE:

1.  The Applicant’s application is dismissed.

2.  The Respondents’ application for a             non-publication order is dismissed.

3.  That the Respondents’ application for a costs order against the Applicant for the adjournment on 7 August 2015 is dismissed.

4.  That there be no further order as to costs on the hearing.

DISCRIMINATION – direct discrimination – comments of a racial connotation – whether treatment of employee is less favourable or not materially different – whether statements were capable of amounting to discrimination – whether insensitive and bad mannered comments are capable of being discriminatory – whether offensive comments are discriminatory in nature

VICARIOUS LIABILITY – legal relationship between employer and employee – liability imposed upon employer for actions of an employee

VICTIMISATION – whether victimisation undertaken by an employer – invitation for employment – threats – physical altercation within workplace – refusal to re-employ because of breach of discipline policy – remedies sought – whether nexus established between discrimination complaint and employer terminating employment – onus of proof 

RACIAL VILIFICATION – whether comments of objectionable nature within private employment amounts to a public act – whether comments of racial connotation are capable of being vilification if not communicated to the public

JOINDER OF PARTIES – directions to allow amendment of complaints by the Tribunal – discretion to allow amendment to complaint

EVIDENCE – onus of proof – Tribunal not bound by rules of evidence – every attempt to be made to administer substantial justice – Tribunal to act fairly – witness altering evidence – untruthfulness of witness – weight placed upon contemporaneous notes later altered – similar fact events – substantial justice  

NON-PUBLICATION ORDER – broad discretionary power on decision maker – principle of open justice – openness and transparency – fair and accurate reporting – proceedings exposed to public scrutiny and criticism – interests of justice – embarrassment to litigants – requirement for special circumstances – onus rests with party seeking order     

COSTS – LEGAL REPRESENTATIVE – whether conduct unnecessarily disadvantaged a party – whether adjournment of proceedings caused by withdrawal of legal representation – presumption of each party bears its own costs – whether rebuttal of presumption made out

Anti-Discrimination Act 1991 (Qld), s 4A, s 6(1), s 7(g), s 9, s 10, s 10(1), s 10(3), s 15, s 124A (1), s 129, s 130, s 133, s 133(1), s 178, s 191, s 191(1),
s 191(3) s 204 and s 209.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2), s 28(3)(b), s 28(3)(c), s 48(1)(a), s 48(1)(b), s 48(1)(c),…