Bond v Multicap Limited - [2020] QIRC 51

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Bond v Multicap Limited [2020] QIRC 051
PARTIES:	Coralie Bond (Applicant) v Multicap Limited (Respondent)
CASE NO:	AD/2020/22
PROCEEDING:	Anti-discrimination – Application for Orders
DELIVERED ON:	6 April 2020
HEARING DATE:	30 March 2020
MEMBER: HEARD AT:	Power IC Brisbane
ORDER:	1. The Respondent is prohibited from terminating the employment of Ms Bond pending the resolution of the complaint currently before the QHRC or further order of the QIRC.
CATCHWORDS:	ANTI-DISCRIMINATION – APPLICATION FOR ORDERS PROTECTING COMPLAINANT'S INTERESTS UNDER S 144 OF THE ANTI-DISCRIMINATION ACT – TEST UNDER S 144 – APPLICABILITY OF USUAL TESTS FOR INTERIM ORDERS – WHETHER ARGUABLE CASE FOR RELIEF
LEGISLATION: CASES:	Anti-Discrimination Act 1991 (Qld), ss 136, 144, 174B Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. Brackenreg v Queensland University of Technology [1999] QADT 11. Connor v Evans & Salvation Army [1998] QADT 14. Coop v State of Queensland [2014] QCATA 205. Jones v Queensland Health [2010] QCAT 700. McAllister v Anti-Discrimination Commission Queensland [2018] QIRC 120. McIntyre v Hastings Deering (Australia) Ltd and Anor [2012] QCAT 438. Mount Isa Mines Ltd v Hopper (1998) QSC 287. Navaratnam v State of Queensland [2013] QCAT 131. Simpson v Welch [2002] QADT 17. Toodayan & Anor v Anti-Discrimination Commissioner Queensland [2018] QCA 349. Transport Workers' Union, Boss and Wood v Boral Resources [2006] QADT 10.
APPEARANCES:	Discrimination Claims & Worker Law for the Applicant by telephone. Nikki A-Khavari, of counsel, instructed by McCullough Robertson, for the Respondent by telephone.

Reasons for Decision

This matter concerns an application for an order pursuant to s 144(1) of the Anti-Discrimination Act 1991 (Qld) (‘Act’) pending determination of a complaint filed in the Queensland Human Rights Commission (QHRC).
The Applicant lodged a complaint with the QHRC on 3 January 2020 alleging direct discrimination on the basis of impairment (breast cancer), indirect discrimination on the basis of impairment (breast cancer), unlawful request to supply unnecessary information, and victimisation.

The Applicant received a ‘show cause’ letter from the Respondent dated 11 March 2020 advising that consideration was being given to the termination of her employment due to her ongoing inability to perform the inherent requirements of her role. The letter requested that the Applicant provide a response by 17 March 2020.

The Applicant filed an application for an order protecting complainant's interests (Form 84) on 12 March 2020 and a mention was held on 16 March 2020 at the Queensland Industrial Relations Commission (QIRC). The QIRC issued an interim order to stay the ‘show cause’ process pending the hearing of this application on 30 March 2020.

Written submissions were filed by both parties prior to a hearing on 30 March 2020. Affidavits were filed by Kate Johnson, Chief Employee Experience Officer, Multicap Ltd and Zaccaria Alexander Casagrande, Solicitor at Supportah Ops.

Legislative framework

The Act confers a range of functions on the Queensland Industrial Relations Commission (QIRC) as outlined in s 174B. Of particular relevance in this matter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QIRC 51
Decision Date: 6 April 2020

CaseChat Overview and Summary

In the matter of Bond v Multicap Limited, the applicant, Ms Bond, sought interim orders from the Queensland Industrial Relations Commission (QIRC) to protect her interests under section 144 of the Anti-Discrimination Act 1991 (Qld). The primary dispute was whether Ms Bond could rely on the interim relief provisions of the Act to prevent her employer, Multicap Limited, from terminating her employment pending the resolution of her complaint with the Queensland Human Rights Commission (QHRC). The legal issues before the court were whether the complaint lodged with the QHRC was valid and if the QIRC had jurisdiction to make orders under section 144 of the Act. Additionally, the court had to determine if the balance of convenience favoured the applicant and if there was an arguable case for relief.

The court found that the complaint as lodged in the QHRC was valid pursuant to section 136 of the Act. It also held that the QIRC had jurisdiction under section 174B(a)(i) to make orders under section 144 of the Act. The court considered the requirements of section 144, guided by the common law approach to injunctions, and was persuaded that a prima facie case existed based on the affidavit material alleging contraventions of the Act. The court was also satisfied that the balance of convenience favoured the applicant, specifically in the terms set out by section 144(1)(b). Based on these reasons, the court was persuaded to grant appropriate interim relief in this matter.

The court ordered that the respondent, Multicap Limited, was prohibited from terminating the employment of Ms Bond pending the resolution of the complaint currently before the QHRC or further order of the QIRC. This interim relief was intended to protect Ms Bond's interests and prevent any potential prejudice to the investigation or conciliation process. The court's decision in this matter highlights the importance of protecting the rights of individuals who allege discrimination and the role of the QIRC in providing interim relief under the Anti-Discrimination Act.

Orders

Orders of the court

1. The Respondent is prohibited from terminating the employment of Ms Bond pending the resolution of the complaint currently before the QHRC or further order of the QIRC.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although brief submissions were made by the Applicant suggesting the investigation or conciliation process would be prejudiced pursuant to s 144(1)(a), these submissions did not extend beyond a view that the grounds to be argued by the Appellant would increase if reinstatement was to be included in the complaint resulting in an additional onus to be discharged at hearing. Whilst this may require additional work, I do not consider it to be significantly prejudicial so as to satisfy s 144(1)(a).Conclusion As outlined above, the complaint as lodged in the QHRC is valid pursuant to s 136. Consequently, the QIRC has jurisdiction pursuant to s 174B(a)(i) to make orders under s 144 of the Act. The requirements of s 144 have been considered above, guided by the common law approach to injunctions. I am persuaded that a prima facie case exists based on the affidavit material alleging contraventions of the Act. I am also satisfied that the balance of convenience favours the Applicant, specifically in the terms set out by s 144(1)(b). Based on the reasons outlined above, I am persuaded to grant appropriate interim relief in this matter. I order as follows:Order1.The Respondent is prohibited from terminating the employment of Ms Bond pending the resolution of the complaint currently before the QHRC or further order of the QIRC.

Ratio Decidendi

Legal Principle Established

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