Brown v City Venue Management Pty Ltd - [2018] QCAT 168

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Brown v City Venue Management Pty Ltd & Anor
[2018] QCAT 168

PARTIES:

ALEX BROWN
(applicant)

v

CITY VENUE MANAGEMENT PTY LTD

(first respondent)

MELISSA TAVELLA

(second respondent)

APPLICATION NO/S:

ADL019-16

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

4 June 2018

HEARING DATE:

30 April 2018

HEARD AT:

Brisbane

DECISION OF:

Member Roney QC

ORDERS:

The complaints are dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – GENERALLY – where alleged impairment discrimination in Sports Administration – belief as to less-favourable treatment – direct discrimination – circumstantial evidence – inferences to be drawn

Anti-Discrimination Act 1991 (Qld), s 7, s 10

Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165
Dharmalingham v Western NSW Local Health District [2015] NSWCATAD 74
JM v QFG and GK [1998] QCA 228
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; (2003) 77 ALD 570; (2003) 202 ALR 133; [2003] HCA 62

Waters & Ors v Public Transport Corporation (1991) 173 CLR 349; (1991) 103 ALR 513; [1991] HCA 49

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

G Radcliffe, solicitor of Radcliffe Taylor Lawyers

REASONS FOR DECISION

Introduction

Discrimination against a person on the basis of the person's impairment

Relevant legal principles – the standard of proof

Treatment ‘on the basis of’ a protected attribute – the causal element for direct discrimination

Circumstantial evidence and the drawing of inferences

The events of June to September 2015

The status of the Applicant’s employment

What was the extent of the individual Respondents’ knowledge of the Applicant’s impairment?

The Respondents’ case as to the reasons for not offering work

The evidence of the Second Respondent

The evidence of Mr Speechley, the General Manager for the First Respondent

Cross-examination, submissions and findings open

General and special compensation and other relief

Introduction

The Applicant was a male swimming instructor and lifeguard, who, for a period of over 10 years before 2012, had worked in those roles and was very experienced in that field.
In early 2012 he commenced working at the Centenary Pool in Spring Hill, Brisbane, as a swimming instructor. This pool closed for renovations late in 2012 and he was moved to Chermside Pool where he then worked. Both the Centenary and Chermside Pools were and still are operated by the First Respondent, City Venue Management Pty Ltd. The Second Respondent, Melissa Tavella, was the swimming school coordinator at the Chermside Pool which was operated by the First Respondent during the latter part of 2013 and during 2015. She was responsible for organising the staff and the swimming lesson schedules at the Chermside Pool. She no longer works for the First Respondent.
In his complaint to the Queensland Anti-Discrimination Commission on 23 November 2015, the Applicant complained that the Respondents had subjected him to direct discrimination on the basis that he had, or was perceived to have had, or continued to have meningitis, and…

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: [2018] QCAT 168
Decision Date: 4 June 2018

CaseChat Overview and Summary

In Brown v City Venue Management Pty Ltd, the applicant alleged discrimination based on disability by the first respondent, City Venue Management Pty Ltd, and the second respondent, his direct supervisor, after he fell ill with meningitis. The case was heard by the Civil and Administrative Tribunal of New South Wales. The applicant claimed that he was treated less favourably by his employer after he took sick leave due to his illness, which constituted direct discrimination on the grounds of disability. The court was required to determine whether the applicant had been treated less favourably and if such treatment was based on his disability. The court needed to consider the nature of the evidence, particularly the reliance on circumstantial evidence and the drawing of inferences to establish the applicant's case.

The court examined the evidence provided and noted that the applicant had no direct evidence of discriminatory intent. Instead, he relied on circumstantial evidence and the drawing of inferences to establish his case. The court highlighted that in cases where there is no direct evidence, an applicant must rely on inference, as noted in previous cases such as Dutt and Edwards. The court outlined the considerations in respect of drawing inferences, including the necessity of a causal link, the need for a reasonable and logical inference, and the absence of more probable and innocent explanations. The court accepted the applicant's evidence that he had worked for the first respondent for several years without issue and that he had informed his supervisor of his illness and provided a medical certificate. However, the court found that the applicant had not proven that his treatment was based on his disability.

The court dismissed the applicant's complaints, finding that the applicant had not established that he was treated less favourably on the ground of his disability. The court held that the applicant had not provided sufficient evidence to support the necessary causal link between his disability and the treatment he received. The court concluded that the applicant's evidence was not enough to prove that his supervisor's actions were based on his disability. The court dismissed the complaints, finding that the applicant had not met the burden of proof required to establish direct discrimination based on disability.

Orders

Orders of the court

The complaints are dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As Justice McHugh said in Waters v Public Transport Corporation ‘on the ground of’ and ‘by reason of’ require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of ‘the victim’. The protected attribute, to use the language of the Queensland Act, must be at least one of the factors which moved the discriminator to act as he or she did. And as his Honour said, of course, in determining whether a person has been treated differently ‘on the ground of’ that matter, this Tribunal is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then ‘the ground of’ the act of the discriminator was the status or private life of the victim.Circumstantial evidence and the drawing of inferences In the present case, as is the case in many discrimination cases, there are real issues concerned with what inferences may be drawn from proven facts. In Dharmalingham v Western NSW Local Health District,[12] the New South Wales Civil and Administrative Tribunal the summarised the relevant approach:[157] There was no direct evidence that the comment was made on the ground of the applicant’s race. The issue of what happens when there is no direct evidence has been discussed in decisions including Dutt, Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 (Edwards) and Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. Where there is no direct evidence, an applicant must rely upon inference. In Dutt the Tribunal noted that the authorities identify the flowing considerations in respect of drawing inferences to prove less favourable treatment:· a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from the primary facts;· an inference must be reasonably drawn on the basis of primary facts;· an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;· a fact relied upon as the basis of an inference need not be proved to the requisite standard of proof;· it is not enough that the inference is a mere possibility: it must be one of "probable connection";· the inference must be a logical one, and not supposition;· an inference cannot be made where more probable and innocent explanations are available on the evidence.[12][2015] NSWCATAD 74, [157].The events of June to September 2015 The Applicant contends, and I accept, that he had worked for the First Respondent for a few years before 2015 and that there had been no issues raised about his performance, work ethic or attitude in that time. In November 2014 he unexpectedly became ill with meningitis. He claims that he informed his direct supervisor, the Second Respondent, that he was ill and was unable to come to work. He contends that when she asked him for a medical certificate, he provided that from the hospital. The documentary evidence suggests that was so.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Brown v City Venue Management Pty Ltd & Anor [2018] QCAT 168
PARTIES:	ALEX BROWN (applicant)
v
CITY VENUE MANAGEMENT PTY LTD (first respondent) MELISSA TAVELLA (second respondent)
APPLICATION NO/S:	ADL019-16
MATTER TYPE:	Anti-discrimination matters
DELIVERED ON:	4 June 2018
HEARING DATE:	30 April 2018
HEARD AT:	Brisbane
DECISION OF:	Member Roney QC
ORDERS:	The complaints are dismissed.
CATCHWORDS:	HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – GENERALLY – where alleged impairment discrimination in Sports Administration – belief as to less-favourable treatment – direct discrimination – circumstantial evidence – inferences to be drawn Anti-Discrimination Act 1991 (Qld), s 7, s 10 Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165 Dharmalingham v Western NSW Local Health District [2015] NSWCATAD 74 JM v QFG and GK [1998] QCA 228 Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; (2003) 77 ALD 570; (2003) 202 ALR 133; [2003] HCA 62 Waters & Ors v Public Transport Corporation (1991) 173 CLR 349; (1991) 103 ALR 513; [1991] HCA 49
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	G Radcliffe, solicitor of Radcliffe Taylor Lawyers