Cairns Regional Council v Carey - [2012] QCATA 150

CITATION:

Cairns Regional Council v Carey [2012] QCATA 150

PARTIES:	Cairns Regional Council (Applicant/Appellant)
v
David George Carey (Respondent)

APPLICATION NUMBER:

APL087-11

MATTER TYPE:

Appeals

HEARING DATE:

18 July 2012

HEARD AT:

Brisbane

DECISION OF:

Hon James Thomas AM QC, Member
Clare Endicott, Senior Member

DELIVERED ON:

21 August 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The appeal is allowed to the extent that the amount which the Cairns Regional Council is ordered to pay to the complainant, David Carey is reduced to $322,033.06[1];

2. The order of the tribunal in ADC032-09 dated 21 January 2011 is in all other respects confirmed;

All questions of costs of and incidental to this appeal are reserved for consideration by this appeal tribunal in APL294-11.3.

[1] Decision amended by order of the Tribunal on 22 November 2012.

CATCHWORDS:

Anti-discrimination – claim on basis of political activity (s 7(j)) – claim on basis of association with another person identified on basis of political belief (s 7(p)) - Shire manager dismissed – whether basis was personal animosity or political animosity – when several reasons why manager was dismissed – whether substantial reason for dismissal was manager’s political activity – meaning of discrimination on the basis of political belief or activity

Anti-Discrimination Act 1991, ss 7(j), 7(p), 8, 10(1), 10(4)
Queensland Civil and Administrative Tribunal Act2009, s 147

APPEARANCES and REPRESENTATION

APPLICANT:	Cairns Regional Council was represented by Mr R Perry SC and Mr T Bradley of counsel
RESPONDENT:	David George Carey was represented by Mr D Rangiah SC

REASONS FOR DECISION

Proceedings

This is an appeal to the Appeal Tribunal of QCAT against a decision by a primary Tribunal exercising jurisdiction under the Anti-Discrimination Act 1991 (“the ADA”).

The original proceeding was brought by the respondent, Mr Carey, against the Cairns Regional Council on the basis that he had been unlawfully discriminated against by the Douglas Shire Council in March 2008, shortly before the amalgamation which constituted the Cairns Regional Council as its successor.

Mr Carey succeeded in his claim in the primary Tribunal. The learned Member found that the termination of his employment was made on the basis of his political belief or activity in contravention of section 7(j) and/or his association with another person under 7(p) of the ADA. He ordered the appellant Council to pay Mr Carey $368,033.06 as compensation for the contravention.

Mr Carey’s original proceedings were against both the appellant Council and the four Councillors of the former Douglas Shire Council who had voted in favour of the termination of his contract of employment. The learned Tribunal Member declined to hold the individual Councillors liable, essentially on the basis that section 240 of the Local Government Act 2009 exempted them from liability for acts or omissions done honestly and without negligence, and on the further basis that section 102 of the Anti-Discrimination Act 1991 exempts local government “members” from liability for political discrimination. The Council however was not similarly protected.

A separate…

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: [2012] QCATA 150
Decision Date: 21 August 2012

CaseChat Overview and Summary

In the case of Cairns Regional Council v Carey, the dispute involved a claim of discrimination based on political activity and association with another person identified on the basis of political belief. The matter was heard and determined in the Queensland Civil and Administrative Tribunal, and subsequently appealed to the Queensland Court of Appeal. The primary issue the court had to address was whether the substantial reason for the dismissal of David Carey, the Shire manager, was his political activity, and if so, whether this constituted discrimination on the basis of political belief or activity as defined by the relevant legislation.

The court examined the evidence presented regarding the reasons for Mr. Carey's dismissal, which included several factors. The tribunal found that the substantial reason for his dismissal was his political activity, which they considered to be discriminatory. The Council argued that the tribunal had misinterpreted the legislative provisions concerning discrimination based on political belief or activity. The court of appeal had to determine if the tribunal's interpretation was correct and if the substantial reason for the dismissal was indeed Mr. Carey's political activity.

The court of appeal found that the tribunal's interpretation of the legislation was flawed and that the dismissal was not substantially due to Mr. Carey's political activity. However, the court determined that the amount awarded to Mr. Carey was excessive. Therefore, the appeal was allowed to the extent that the amount ordered to be paid to Mr. Carey was reduced. The court confirmed the rest of the tribunal's order and reserved the questions of costs for later consideration.

Orders

Orders of the court

1. The appeal is allowed to the extent that the amount which the Cairns Regional Council is ordered to pay to the complainant, David Carey is reduced to $322,033.06[1];

2. The order of the tribunal in ADC032-09 dated 21 January 2011 is in all other respects confirmed;

All questions of costs of and incidental to this appeal are reserved for consideration by this appeal tribunal in APL294-11.3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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