Byrne v Spotless Facility Services Pty Ltd - [2016] QCAT 420

CITATION:	Byrne v Spotless Facility Services Pty Ltd [2016] QCAT 420
PARTIES:	Terri Byrne (Applicant)
v
Spotless Facility Services Pty Ltd (Respondent)
APPLICATION NUMBER:	ADL091-15
MATTER TYPE:	Anti-discrimination matters
HEARING DATE:	13 and 14 July 2016
HEARD AT:	Mackay
DECISION OF:	Member Beckinsale
DELIVERED ON:	4 November 2016
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The complaint is dismissed. 2. Spotless Facility Services Pty Ltd must file written submissions (if any) on costs in the tribunal and send a copy to Terri Byrne by 4:00pm on 25 November 2016. 3. Terri Byrne must file written submissions in response (if any) on costs in the tribunal and send a copy to Spotless Facility services Pty Ltd by 4:00pm on 16 December 2016.
CATCHWORDS:	ANTI-DISCRIMINATION – where complaint of unlawful workplace discrimination based on impairment – where impairment of lung cancer – where complaint of less favourable treatment – whether inference of discrimination to be drawn from facts Anti-Discrimination Act 1991 (Qld), ss 7,10(2)-(5), 15(1)(a)(c)(f), 15(2), 24-36, 103-113, 204, 206 Queensland Civil and Administrative Act 2009 (Qld), s 102(1)
APPEARANCES:	Boehringer Ingelheim Pty Ltd v Reddorp [1984] 2 NSWLR 3 Carey v Cairns Regional Council [2011] QCAT 26 Glasgow City Council v Zafar [1998] 2 All ER 953 Nagarajan v London Regional Transport [1999] WLR 425 Quinn v Overland [2010] FCA 799 Richardson v Oracle Australia Pty Ltd [2014] FCAFC 86 Sharma v Legal Aid Office (Qld) [2002] FCAFC 196
APPLICANT:	Terri Byrne
RESPONDENT:	Spotless Facility Services Pty Ltd
REPRESENTATIVES:
APPLICANT:	represented by Mr Scott McLennan of Counsel
RESPONDENT:	represented by Mr Angus Galbraith of Counsel instructed by the respondent

REASONS FOR DECISION

Background

This matter was referred from the Anti-Discrimination Commission of Queensland. Terri Byrne lodged a complaint in the Commission against her employer Spotless Facility Services Pty Ltd claiming that she was discriminated against on the basis of an impairment.
Spotless is contracted to a multinational mining company, Anglo American Metallurgical Coal, to provide services such as labour, accommodation and catering, across mining sites in Queensland and New South Wales.
Ms Byrne initially worked for Spotless on a six month fixed term contract as Safety and Training Coordinator at Middlemount commencing 8 October 2013.[1] She was however employed on a permanent basis as Safety and Training Manager, although with a three month probationary period, from 10 January 2014.[2] The position was located at Middlemount although her contract of employment provided:[3]
Spotless has a policy in which it reserves the right to reassign employees geographically or to other responsibilities from time to time. Such reassignment will occur after consultation and agreement with you.
[1]Document No.1 in Applicant’s Bundle of Documents.
[2]Document No.2 in Applicant’s Bundle of Documents.
[3]Ibid at page 5.
Ms Byrne was diagnosed with lung cancer in January 2007. She underwent surgery and subsequently chemotherapy and radiation and was required to undergo regular reviews.
Spotless was aware that Ms Byrne had undergone treatment for lung cancer at the commencement of her initial fixed term of employment. Prior to commencing employment,…

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.

Keep reading for free

Create a free CaseChat account to read Byrne v Spotless Facility Services Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] QCAT 420
Decision Date: 4 November 2016

CaseChat Overview and Summary

The case of Byrne v Spotless Facility Services Pty Ltd involved a complaint of unlawful workplace discrimination based on impairment, specifically lung cancer, by Terri Byrne against her employer, Spotless Facility Services Pty Ltd. The matter was heard by the Fair Work Commission. Byrne alleged that she was treated less favourably because of her impairment, while her employer argued that her dismissal was due to her failure to provide a medical clearance after a non-work related incident.

The primary legal issue before the court was whether the facts of the case allowed an inference of discrimination based on impairment. Byrne argued that she was treated less favourably than another employee who tested positive for amphetamines, suggesting that her lung cancer diagnosis played a role in her dismissal. Spotless Facility Services Pty Ltd contended that Byrne was dismissed due to her failure to comply with the company's return-to-work policy, which required a medical clearance.

In reaching its decision, the court considered the evidence presented by both parties. Byrne's employer provided evidence that the dismissal was due to her non-compliance with the return-to-work policy, and not because of her medical condition. The employer's witness, Mr van Rooyen, denied that the dismissal was due to discrimination. Additionally, Mr Madigan, the Eastern Operations Manager, testified that he was unaware of Byrne's medical condition and that her duties could be altered based on operational needs. The court found that the employer's decision to dismiss Byrne was based on her failure to comply with the company's policy, rather than her medical condition.

The Fair Work Commission dismissed the complaint, concluding that the employer had not discriminated against Byrne on the basis of her impairment. The court ordered Spotless Facility Services Pty Ltd to file written submissions on costs by a specified date, with a subsequent response from Byrne also required.

Orders

Orders of the court

1. The complaint is dismissed.

2. Spotless Facility Services Pty Ltd must file written submissions (if any) on costs in the tribunal and send a copy to Terri Byrne by 4:00pm on 25 November 2016.

3. Terri Byrne must file written submissions in response (if any) on costs in the tribunal and send a copy to Spotless Facility services Pty Ltd by 4:00pm on 16 December 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr van Rooyen vehemently denied the suggestion that he stood down Ms Byrne because she had lung cancer. When it was suggested to him that Ms Byrne had been treated worse than an employee who tested positive for amphetamine because she was stood down by him without pay, he reiterated that he had sought advice about that decision and had been corrected. Evidence of Mr Madigan Mr Madigan commenced employment with Spotless in December 2013. In July he took up the position based in Brisbane of Eastern Operations Manager, responsible for the operations of Spotless’ business across Queensland, New South Wales and South Australia. Anglo American and BMA are among nine contract clients in his portfolio of responsibility. He is responsible for the safe and profitable delivery of contracted services to mining and gas clients, including Anglo and BMA. He described his role as a point of escalation for the Contract Managers and a conduit for the remote teams to Head Office support functions and Spotless’ client relationship holder in the regions.[113][113]Statement of Mr Madigan dated 27 May 2016 at paragraphs [3]-[6], [10] and [11]. Mr Madigan said there was one client funded Safety and Training Manager at each of the Anglo sites in Middlemount, Moranbah and Moura with no additional budget for additional Training and Safety Managers at the sites.[114] [114]Ibid at paragraph [17]. Mr Madigan said the Safety and Training manager was responsible for assisting each of the work groups on site with Hazard Analysis, Risk Assessments and completing safety interactions with the workforce and inspections. He said as with other employees, it was a term of Ms Byrne’s employment that she may be required to undertake other duties and responsibilities from time to time meaning her position, title, duties and responsibilities from time to time could be altered based on operational requirements. He said it was not uncommon for him to change an employee’s duties or location to meet the needs of the various clients in his portfolio based on operational and service requirements.[115][115] Ibid at paragraphs [18] and [19]. Mr Madigan said he was only aware of Ms Byrne’s medical history when she offered information on her condition and treatment during casual discussions when he was visiting Moranbah. He said he did not personally review the results of her pre-employment medical assessment as that was something he would only do if a candidate was flagged as ‘high risk’. He said there were no working restrictions on her.[116] [116]Ibid at paragraphs [24] and [25]. Mr Madigan said Mr Bezuidenhout informed him on 5 February 2015 that Ms Byrne had been airlifted to Mackay due to a non-work related incident. He said that was standard procedure when an employee requires a medical practitioner on site.[117] [117]Ibid at paragraph [33]. Mr Madigan said a manager is required to request a medical certificate or clearance from an employee’s treating doctor prior to return to work and arrange a Functional Capacity Assessment. He said Mr van Rooyen followed that process but Ms Byrne did not provide the requested information.[118][118]Ibid at paragraph [39].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.