Casino Canberra Limited v Kidman
[2022] ACAT 22
•18 March 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CASINO CANBERRA LIMITED ACN 051 204 114 v KIDMAN (Appeal) [2022] ACAT 22
AA 25/2020 (DT 32/2019)
Catchwords: APPEAL – discrimination – Original Tribunal found that employer discriminated against an employee – whether Original Tribunal erred in deciding that employee was engaged in industrial activity, and the employer treated the employee unfavourably because of the industrial activity – whether Original Tribunal erred in ordering employer to pay employee a sum of general damages – whether the sum ordered was appropriate – whether the Original Tribunal erred in ordering the employer to pay the employee’s legal costs for the second day of hearing – whether the amount of costs ordered was appropriate – appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 8, 26, 30, 48, 82
Disability Discrimination Act 1992 (Cth) ss 5, 10
Discrimination Act 1991 ss 4A, 7, 8, 10, Dictionary
Equality Act 2010 (UK) s 15
Fair Work Act 2009 (Cth) ss 346, 360
Human Rights Commission Act 2005 s 53E
Legal Profession Act 2006 ss 7, 16
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2020 r 45
ACT Civil and Administrative Tribunal Directions 2009 (repealed) pt 4, r 8
Legal Profession Regulation 2007 r 8
Legal Profession (Solicitors) Conduct Rules 2015 r 27
Cases cited:Abraham v Thomas [2020] ACAT 41
Alexander v Home Office [1988] 1 WLR 968
Applicant 202053 v Employers Mutual Limited [2022] ACAT 9Australian Capital Territory v Wang [2019] ACAT 65
Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395
Birkett Investments Pty v Streatfield Investments Pty Ltd [2016] ACTSC 323
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [2012] HCA 32
Brown v Guss (No 2) [2015] VSC 57
Campbell v Blackshaw & Evans [2017] ACAT 64
CFMEU v BHP Coal Pty Ltd [2014] HCA 41
CIC Australia Ltd v Australian Capital Territory Planning and Land Authority [2013] ACTSC 96
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Complainant 201823 v Insurance Australia Group Ltd trading as NRMA [2019] ACAT 64
Complainant 201922 v Barac [2020] ACAT 37
Cooley v Australian National University [2007] ACTDT 2
Council of the Law Society of the Australian Capital Territory v LP 201920 [2021] ACAT 16
Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Harada v Barnes & Anor [2021] ACAT 66
Harrison v P & T Tube MillsPty Ltd [2009] FCA 220
He v Qin & Ors [2021] ACAT 129
House v The King [1936] HCA 40
In the Estate of Shirley Eileen Kendall [2020] ACTSC 42
Kallinicos v Hunt [2005] NSWSC 1181
Kidman v Canberra Casino Ltd ACN 051 204 114 [2020] ACAT 50
Koehler v Cerebos (Australia) Ltd [2005] HCA 15
Kovac v The Australian Croatian Club Limited (No. 2) [2016] ACAT 4
Kwesius and ACT Health [2008] ACTDT 3
McManus v Scott-Charlton [1996] FCA 904
Mitchell v Burrell [2008] NSWSC 772
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377
Nester v ACT Fire Brigade [2004] ACTDT 2
O’Brien v Dunsdon (1965) 39 ALJR 78
Oliver v Registrar, of Domestic Animals Act 2000 [2021] ACAT 93Phillipsv Australian Capital Territory [2021] ACAT 22
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Purvis v New South Wales [2003] HCA 62
QE Family Pty Ltd ACN 138 123 154 v QBE Insurance Limited ACN 000 000 948 & Anor [2021] ACAT 117
Rep v Clinch [2021] ACAT 106
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Rose v Telstra Corporation Limited [1998] AIRC 1592Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84
Tam v Du [2019] ACAT 94
The Australian Capital Territory v Phillips [2021] ACAT 122
The Queen, on the application of Davey v Silverstein and Ors [2020] VSCA 233
Whiting and ACT Health and Calvary Health Care (ACT) Ltd [2008] ACTDT 1
Williams v The Trustees of Swansea University Pension & Assurance Scheme [2018] UKSC 65
V v Elringtons Pty Ltd [2018] ACAT 23
List of
Texts/Papers cited: Macquarie Dictionary (7th ed, 2017)
David Ipp, “Lawyers’ Duties to the Court” (1998) 114 Law Quarterly Review 63
Tribunal: President G Neate AM
Member L McGlynn
Date of Orders: 18 March 2022
Date of Reasons for Decision: 18 March 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 25/2020
BETWEEN:
CASINO CANBERRA LIMITED ACN 051 204 114
AppellantAND:
BRYAN BRADFORD KIDMAN
RespondentAPPEAL TRIBUNAL: President G Neate AM
Member L McGlynn
DATE:18 March 2022
ORDER
The Tribunal orders that:
1.The appeal is dismissed.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
Contents
Introduction
Background
Issues and conduct of appeal hearing
Issue 1: Was Mr Kidman engaged in ‘industrial activity’?
What the Original Tribunal decided
Appellant’s submissions
Respondent’s submissions
Consideration and conclusion
Issue 2: Did Casino Canberra treat Mr Kidman ‘unfavourably’?
What the Original Tribunal decided
Appellant’s submissions
Respondent’s submissions
Consideration and conclusion
Issue 3: Did Casino Canberra treat Mr Kidman unfavourably ‘because’ of his industrial activity?
What the Original Tribunal decided
Appellant’s submissions
Respondent’s submissions
Consideration and conclusion
Issue 4: Should Mr Kidman be awarded monetary compensation?
What the Original Tribunal decided
Appellant’s submissions
Respondent’s submissions
Consideration and conclusion
Issue 5: Should Casino Canberra be ordered to pay Mr Kidman’s costs of the second day of the hearing?
What the Original Tribunal decided
Appellant’s submissions
Respondent’s submissions
Consideration and conclusion
Conclusion and orders
Attachment A: Canberra Times article, 6 August 2019
Attachment B: Letter from Casino to Mr Kidman, 8 August 2019
REASONS FOR DECISION
Introduction
1.This appeal raises issues about whether an employer discriminated against an employee because of industrial activity undertaken by the employee and if so, what orders should be made in relation to the employer.
2.Bryan Kidman (the respondent) is employed fulltime by Casino Canberra Ltd (Casino Canberra or the appellant) as an inspector. He is also a delegate of the United Workers Union[1] (the Union). In 2019, the Union was engaged in communications with Casino Canberra about the proposed acquisition by Blue Whale Entertainment Pty Ltd (Blue Whale) of a majority shareholding in Aquis Entertainment Ltd (Aquis) which owns the Canberra casino. Those communications concerned the possible implications of the proposed sale of shares for the negotiation of an enterprise agreement and other aspects of job security, wages, or conditions of employees of Casino Canberra.
[1] Formerly United Voice Union
3.In August 2019, Mr Kidman was interviewed by The Canberra Times. An article published on 6 August 2019 reported him as saying that employees were in the dark about staffing levels, wages, and conditions ahead of the looming shift in the ownership structure of the casino. Some statements attributed to him appeared as quotes.
4.Two days after the article was published, Casino Canberra wrote to Mr Kidman setting out its concerns about particular statements attributed to him in the article. The letter set out specific questions in relation to some statements and requested answers to those questions. The letter stated that, having regard to any response he might provide, the author of the letter might determine on a preliminary basis that Mr Kidman had not met the Casino Canberra’s required standards of behaviour and that it might be appropriate that the matter proceed to formal performance counselling.
5.Mr Kidman contended that the action taken by Casino Canberra in writing to him in those terms constituted discrimination by treating him unfavourably because of his industrial activity.
6.A senior member of the ACT Civil and Administrative Tribunal (the Original Tribunal) heard the claim of discrimination under the Discrimination Act 1991 (Discrimination Act).
7.On 6 July 2020, the Original Tribunal made the following orders in relation to Casino Canberra (the respondent to the proceedings):
1. The respondent has contravened section 10(2) of the Discrimination Act 1991 by subjecting the applicant to unfavourable treatment in his employment because of his industrial activity.
2. The respondent shall display a copy of these orders on all of the employee notice boards located within the Casino premises, for a period of 14 days from receipt of these orders.
3. The respondent shall pay to the applicant general damages in the amount of $4,000, on or before 14 days from the date of these orders.
4. The respondent shall pay to the applicant legal costs in the amount of $4,620, on or before 14 days from the date of these orders.
8.Casino Canberra complied with Order 2,[2] but appealed against the other orders. In its application for appeal, Casino Canberra did not specify what orders it was seeking. Nor did it identify such orders at the hearing of the appeal.[3] However, it is clear from the detailed submissions made by Casino Canberra that, in essence, it wanted the appeal to be allowed and Orders 1, 3 and 4 made by the Original Tribunal to be set aside.
Background
[2] Transcript of appeal proceedings 18 November 2020 page 3
[3] The President invited each party to provide a particular form of order or orders they were seeking if that extended beyond that the appeal be upheld or dismissed: transcript of appeal proceedings 18 November 2020 page 3
9.The circumstances surrounding the proposed purchase of shares in Aquis, the communications between the Union and Casino Canberra, and the communications between Casino Canberra and Mr Kidman which gave rise to the proceedings before the Original Tribunal are set out in some detail in the reasons for decision of the Original Tribunal.[4] It is not necessary to repeat all of that information. For the purpose of the appeal, it is appropriate to note the following salient facts drawn from those reasons for decision, and the evidence.
[4] Kidman v Canberra Casino Ltd ACN 051 204 114 [2020] ACAT 50 at [1]-[18]
10.Mr Kidman has been employed by Casino Canberra since March 2003, and fulltime as an inspector since 10 November 2008. His contract of employment with Casino Canberra requires him to comply with Casino Canberra’s workplace policies and procedures, which include the Casino Canberra – Employee Handbook and the Aquis Entertainment Limited – Code of Conduct.
11.On or about 21 December 2018, Casino Canberra informed its employees that a transaction had been entered into by which Blue Whale had agreed to acquire a majority shareholding in Aquis. Blue Whale had a business association with the investment manager of the SB & G Hotel Group (Australia) Fund, the owner of the Crowne Plaza Hotel located adjacent to Casino Canberra. In correspondence between Casino Canberra and the Union, the share transfer transaction was generally referred to as the sale of the casino.[5]
[5] See for example, correspondence from the Union to Casino Canberra dated 4 July 2019 and 6 July 2019 and the emails from Mr Maundrell to the Union on 5 July 2019 (which made three references to the ‘Sale of Casino Canberra’) and 15 July 2019.
12.On 4 July 2019, the Union wrote to Casino Canberra on behalf of the workers and made a formal request to commence bargaining to negotiate an enterprise agreement under the Fair Work Act 2009 (Cth). On 4 July 2019, the Union wrote a second letter to Casino Canberra stating:
We have read reports that Blue Whale are considering outsourcing the management of the casino to an external manager with the intention that both the Casino and Plaza come under a single management structure.[6]
[6] Exhibit A1, annexure BK 03
The Union requested a meeting to discuss the impact of the proposed (post sale) restructure on its members employed at both Casino Canberra and Crowne Plaza.
13.On 5 July 2019, Casino Canberra replied:
While the sale of Casino Canberra Ltd is pending, we have not determined a position in relation to the commencement of bargaining (and presently, we do not anticipate doing so).
Our preference is that any bargaining process not be initiated until after the sale transaction is completed (and the new ownership is in place)…
The reply also stated:
As things stand, comments in the press regarding what Blue Whale may be planning (after completion of the transaction):
· is, in essence, speculative at this time; and
· is, in no sense, a “definite decision” by Casino Canberra Ltd in the terms contemplated by clause 3.1.1 of the Enterprise Agreement.[7]
[7] Exhibit A1 annexure BK 02, email to United Voice from Shane Maundrell dated 5 July 2019
14.On 8 July 2019, the Union wrote to Casino Canberra stating that its members remained “concerned given the reports of a looming restructure which have appeared in the media”. The Union asked Casino Canberra to relay to Blue Whale the following request:
United Voice is seeking an undertaking from Blue Whale that following the finalisation of the sale it will:
1. Remain bound by the existing enterprise agreement … and specifically, not reduce wages or existing penalty rates for Casino Canberra employees.
2. Not contract out any work currently performed in house at the Casino (cleaning, security, food and beverage).
3. Not implement forced redundancies or disadvantage existing employees.
4. Not implement changes to hours or rosters and / or reduce the hours of casuals.[8]
[8] Exhibit A1 annexure BK 04, letter to Shane Maundrell from United Voice dated 8 July 2019
15.On 15 July 2019, Casino Canberra wrote to the Union and conveyed the following reply from Blue Whale:
· Blue Whale is currently undertaking a probity review with the ACT Government, which is a condition precedent to the completion of the purchase of shares in Aquis Entertainment Limited.
· It is premature for Blue Whale to enter into any discussions regarding detailed staffing plans, or indeed to provide any form of undertaking in relation to any of the points in your letter.
· Blue Whale can, however, confirm that it is purchasing the shares in Aquis Entertainment Limited as owner of Casino Canberra, with the intention to grow the casino business, which would in turn increase employment, hours and opportunities for all employees, including existing employees of Casino Canberra.
· In the meantime (and beyond Blue Whale’s purchase of the shares), Aquis Entertainment Limited is an entity in its own right, which will continue to operate the casino business on a ‘business as usual’ basis, making decisions as required in determined by the needs of the business at any point in time, as it has done so to date.[9]
[9] Exhibit A1 annexure BK 05, email to Lyndal Ryan from Shane Maundrell dated 15 July 2019 at 11:25
16.By that time neither Casino Canberra nor Blue Whale had given the Union any undertaking about maintaining staff job security, wages or conditions after the sale of the shares. Although the Union had reminded Ms Gallaugher by letter dated 4 July 2019 that the Casino Canberra Enterprise Agreement 2016-2019 (Enterprise Agreement) “reached its nominal expiry date on 30 June 2019”, the parties understood that the Enterprise Agreement continued to operate until it was replaced by a new agreement or terminated.[10]
[10] See, for example, witness statement of Shane Robert Maundrell dated 23 December 2019 at paragraph [18], transcript of original proceedings 10 February 2020 page 27, transcript of appeal proceedings 18 November 2020 pages 21-22
17.In early August 2019, Mr Kidman participated in an interview with a journalist from The Canberra Times about the proposed sale and its implications for employees at the Casino.
18.An article published in The Canberra Times on 6 August 2019 attributed certain statements to Mr Kidman, some of them in quotation marks. A copy of that article was in evidence before the Original Tribunal and is Attachment A to these reasons for decision.
19.On 8 August 2019, Casino Canberra wrote to Mr Kidman. The letter, which is Attachment B to these reasons for decision (the 8 August letter), was signed by Shane Maundrell, Compliance Manager and In-house Legal Counsel for Casino Canberra. It set out Casino Canberra’s concerns about particular statements attributed to Mr Kidman in the article. In particular, the letter stated:
(a)That the statement, “If they won’t give us an undertaking about the conditions, then there must be a reason for that,” may be in breach of the “Your Behaviour” section of the Casino Canberra’s Employee Handbook where it is stated that “As a Casino Canberra team member you must always adhere to the following standards: … Do not spread or support rumours/gossip”;
(b)that the statement, “We are not being told anything, we’ve had no information.” misrepresents the communications that have passed between management and staff in relation to the sale process.
20.The 8 August letter set out some specific questions in relation to the comments and asked Mr Kidman to answer those questions. The letter offered him “an opportunity to explain all relevant circumstances, as you see them, pertaining to the comments attributed to you in the Article.” Enclosed with the letter was a copy of Casino Canberra’s Staff Performance Counselling and Discipline Policy.
21.Under the heading “Way forward”, the 8 August letter concluded:
Having regard to any response you provide to me, I may determine:
Ø on a preliminary basis that you have not met the Casino’s required standards of behaviour. (Please note that if you do not provide a written response or attend an interview with me, I will proceed based on the information available to me.); and
Ø in the circumstances, it is appropriate that the matter proceed to formal performance counselling - in the terms contemplated by paragraphs 2.3 – 2.7 of the Casino’s Staff Performance Counselling and Discipline Policy.
22.Casino Canberra’s Employee Handbook: Playing by the Rules: workplace conduct, policies and procedures, under the heading “Your Conduct in The Workplace,” notes that all staff of Casino Canberra are required to comply with the Aquis Entertainment Limited – Code of Conduct. The Handbook sets out detailed rules relating to the conduct of employees of the Casino Canberra in the workplace.
23.Under the heading “Your Behaviour” the Handbook includes:
As a Casino Canberra team member you must always adhere to the following standards:
…
· … Do not spread or support rumours/gossip.
24.A copy of the Aquis Entertainment Limited – Code of Conduct provides at clause 18:
Adherence to this Code and Aquis Entertainment’s policies is a condition of employment at Aquis Entertainment. Breaches of the Code may be subject to disciplinary action including termination of employment, if appropriate.
25.The Casino Canberra Staff Performance Counselling and Discipline Policy states:
Canberra Casino aims to ensure that concerns or issues regarding work performance or conduct, are properly addressed with staff members and that any consequent formal performance counselling and/or disciplinary action, is handled appropriately, fairly and consistently, and is in line with principles of natural justice.[11]
[11] Staff Performance Counselling and Discipline Policy at [1.2]
It provides in clause 2.2 that it may be appropriate for formal performance counselling be provided to a staff member before other disciplinary action is taken.
26.On 14 August 2019, Mr Kidman wrote to Casino Canberra with replies to the questions asked by Casino Canberra in the 8 August letter.
27.On 16 August 2019, Casino Canberra replied by letter which included:
Having regard to your response, I have concluded:
Ø it is not necessary to take the matter to performance counselling; and
Ø there are, however, certain matters that it is appropriate to clarify with you – which I have sought to do below.[12] [emphasis in original]
[12] Exhibit A1 annexure BK 11, letter to Bryan Kidman from Shane Maundrell dated 16 August 2019
28.On 15 August 2019, Ms Erryn Cresshull (an organiser for the Union) lodged a complaint on behalf of Mr Kidman with the ACT Human Rights Commission. The complaint alleged that Mr Kidman was “threatened” by Casino Canberra “as a result of industrial activity.” According to the complaint, the action caused Mr Kidman “an enormous amount of stress” particularly as he is a “long standing employee and a union delegate responsible for representing and speaking up for others.” It also stated that Mr Kidman believed his position “is threatened” and he was “being forced into a situation” where he could “no longer participate in industrial activity.”
29.By letters dated 23 September 2019, the Discrimination Commissioner advised Ms Cresshull and Mr Maundrell that she had decided that conciliation was unlikely to be successful as a means of resolving the complaint and she was therefore finalising the complaint.
30.At the request of Ms Cresshull, the Discrimination Commissioner referred the complaint to the tribunal.
31.After hearing the matter, the Original Tribunal released its written reasons for decision on 6 July 2020, found in favour of Mr Kidman and made the orders set out at paragraph [7] above.
Issues and conduct of appeal hearing
32.Casino Canberra’s amended application to appeal sets out numerous grounds in relation to Orders 1, 3 and 4. Casino Canberra made detailed written and oral submissions in relation to those grounds.
33.It became apparent, however, that the issues raised by the appeal are, in essence, whether the Original Tribunal erred in deciding that:
(a)Mr Kidman was engaged in “industrial activity” when he participated in the interview with The Canberra Times;
(b)Casino Canberra treated Mr Kidman unfavourably;
(c)Casino Canberra treated Mr Kidman unfavourably because of that industrial activity;
(d)Casino Canberra should pay Mr Kidman a sum money as compensation for the detriment he suffered; and
(e)Casino Canberra should pay legal costs incurred by Mr Kidman in relation to the second day of the hearing before the Original Tribunal.
34.The first three issues have to be resolved by reference to relevant sections of the Discrimination Act. Sections 7 and 8 are found in Part 2 of the Discrimination Act – “Discrimination to which the Act applies”.
35.Section 8 of the Discrimination Act includes the following definition:
Meaning of discrimination
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
36.Section 7 of the Discrimination Act provides:
Protected attributes
(1) This Act applies to discrimination on the ground of any of the following attributes (a protected attribute):
…
(j)industrial activity;[13]
…
[13] ‘Industrial activity’ is defined in the dictionary to the Discrimination Act – quoted at paragraph [55]
37.Section 10 of the Discrimination Act is found in Part 3 of the Act “Unlawful Discrimination”, Division 3.1 “Discrimination at work”. The heading to section 10 is “Applicants and employees”. Section 10(2) provides:
(2) It is unlawful for an employer to discriminate against an employee—
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training or to any other benefit associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
38.The fourth and fifth issues fall to be decided respectively by references to section 53E of the Human Rights Commission Act 2005 and section 48 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), which are quoted later in these reasons for decision (at paragraphs [168], [229] and [230]).
39.The hearing proceeded under section 82(b) of the ACAT Act as a review of the decision of the Original Tribunal. The parties and the Appeal Tribunal referred to the written and oral evidence and submissions made to the Original Tribunal. No additional or fresh evidence was provided to the Appeal Tribunal.
40.Each party was legally represented. Each party provided written submissions and their legal representative made oral submissions to the Appeal Tribunal. Casino Canberra provided a particularly detailed critique of the Original Tribunal’s reasons for decision. It included specific instances of what Casino Canberra described as “multiple factual errors, frequent misrepresentation or misunderstanding of evidence and irrelevancy.”[14] Although that part of the submission is referred to specifically later (see paragraphs [119] and [120]), the Appeal Tribunal had regard to it in preparing other parts of these reasons for decision.
[14] Appellant’s submissions on appeal at paragraph [50], with specific items listed and described at paragraphs [51]-[123]
41.We have done so bearing in mind the statements made in decisions and judgments in relation to:
(a)what constitute adequate reasons for decision; and
(b)the role of an appeal tribunal when considering the reasons of an original tribunal.
42.Those authorities have been collated and analysed in two recent decisions of differently constituted appeal tribunals.[15] Without quoting complete passages from those decisions it is sufficient to note that they include the following propositions (citations omitted).
[15] Campbell v Blackshaw & Evans [2017] ACAT 64 at [57]-[60]; The Australian Capital Territory v Phillips [2021] ACAT 122 at [125]-[126]
43.As to (a), it is unnecessary for a judge to refer to all evidence led in proceedings or to indicate which of it is accepted or rejected. Nor is it necessary for reasons to be lengthy or elaborate. No mechanical formula can be given in determining what reasons are required. These authorities are increasingly applied in a tribunal context, where some decisions historically made by courts are now made. While the public interest in the provision of reasons remains the starting point, the objectives of timeliness and efficiency mandated by the ACAT Act oblige the Tribunal to approach the preparation of written or oral reasons in a proportionate manner.[16] The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker. It is not necessary to refer to every piece of evidence. When considering the adequacy of the reasons the decision must be read as a whole.
[16] See ACAT Act section 7
44.As to (b), the cautions expressed in Collector of Customs v Pozzolanic[17] as to overzealous scrutiny of reasons for administrative decisions also resonate in the quasi-judicial tribunal context. It is not the role of an appeal tribunal to pore over written or transcribed oral reasons searching for possible inadequacies but rather to consider whether, taken as a whole, the reasons disclose that the original tribunal fell into error. A tribunal at first instance should not feel obliged to slavishly record every detail of the evidence given by every witness, or to set out fine nuances or points of distinction, in order to demonstrate to a hypothetical appeal tribunal or court that due consideration and weight has been given. The primary audience for reasons remains the parties, and reasons which set out the necessary elements in a manner proportionate to the context of the matter will ordinarily be sufficient.
[17] (1993) 43 FCR 280
45.The role of an appeal tribunal in appeals by way of review (or rehearing) under section 82(b) of the ACAT Act has been described by differently constituted appeal tribunals in a series of recent decisions. It is not necessary to repeat what was written there. We simply note that it is clear from those decisions and the judgments of courts cited in them that, in summary:
(a)An appeal court (or an appeal tribunal) must determine whether the decision appealed against is wrong because the court at first instance (or an original tribunal) fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.
(b)Ordinarily, if there has been no further evidence admitted or no relevant change in law, a court in entertaining an appeal by way of rehearing (or an appeal tribunal) can exercise its appellate powers only if satisfied that there was an error on the part of the court below (or an original tribunal).
(c)The appellate court (or an appeal tribunal) will give proper allowance to the advantage of the court of first instance (or an original tribunal) who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
(d)The appellate court (or an appeal tribunal) is obliged to conduct a real review of the trial and the reasons of the court of first instance (or an original tribunal).
(e)In an appeal by way of rehearing, once error below has been found (after making proper allowance for the advantages of the trial judge or original tribunal), the appellate court (or appeal tribunal) can substitute its own decision based on the facts and the law as they now stand.[18]
[18] See for example, V v Elringtons Pty Ltd [2018] ACAT 23 at [23]; Harada v Barnes [2021] ACAT 66 at [8], [10]; Oliver v Registrar, of Domestic Animals Act 2000 [2021] ACAT 93 at [10]-[17]; Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116 at [10]; QE Family Pty Ltd ACN 138 123 154 v QBE Insurance Limited ACN 000 000 948 & Anor [2021] ACAT 117 at [5]; The Australian Capital Territory v Phillips [2021] ACAT 122 at [34]; He v Qin & Ors [2021] ACAT 129 at [43]
46.In short, an appellant must show that the original tribunal committed an error of fact or law that was material to the result.[19]
[19] Tam v Du [2019] ACAT 94 at [22], citing Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [29]-[39] (per Refshauge J); Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46]-[55]
47.The following reasons for decision address each of the issues listed at paragraph [33] above having regard to the written and oral submissions made by the parties in light of those principles.
Issue 1: Was Mr Kidman engaged in ‘industrial activity’?
What the Original Tribunal decided
48.Having considered the submissions by the parties and the evidence, the Original Tribunal concluded that:
(a)Mr Kidman was a Union delegate who was authorised to attend the interview with The Canberra Times.[20]
(b)The workers at the casino were concerned about what might happen to their jobs in terms of employment once the sale of the casino had been completed, the Union had raised concerns with the current management and the prospective buyer and they were not satisfied with the information they had received.[21]
(c)Exerting public pressure on an employer is a commonplace and legitimate industrial activity, and obtaining publicity by participating in interviews with a local newspaper is lawful activity often used by industrial unions to advance the views and interests of their members.[22]
(d)Mr Kidman was engaged in a lawful activity on behalf of the Union and was representing or advancing the views and interests of members of the Union and therefore his activities fall within the definition of ‘industrial activity’ in the dictionary to the Discrimination Act.[23]
Appellant’s submissions
[20] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [37]
[21] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [39]
[22] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [39]
[23] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [40] citing paragraphs (c) and (f) of the definition of ‘industrial activity’.
49.Casino Canberra conceded that the United Workers Union is an ‘industrial organisation’ within the meaning of the Discrimination Act, and that Mr Kidman’s participation in the interview with The Canberra Times was, or amounted to, a lawful activity.
50.However, Casino Canberra took issue with aspects of the Original Tribunal’s reasoning and whether relevant questions of fact were answered.
51.First, Casino Canberra submitted that the Original Tribunal made no finding about whether Mr Kidman’s participation in the interview was organised or promoted by the Union, and that no evidence was received from any officer or employee of the Union or from the journalist named as the author of the article. In Casino Canberra’s submission, although the Original Tribunal:
(a)quoted from Mr Kidman’s written statement that he was a delegate of the Union and involved in promoting Union campaigns;
(b)referred to Mr Kidman’s oral evidence about his role as a Union delegate, but noted that he was not questioned as to his actual authority to speak to The Canberra Times as a representative of the Union;
(c)quoted from a letter to Casino Canberra from the Union on 12 August 2019 which stated that Mr Kidman is a Union delegate “and has a legitimate entitlement to represent and advance the views, claims and interests of United Voice members”; and
(d)concluded on the evidence that Mr Kidman was a Union delegate who is authorised to attend the interview with The Canberra Times,
none of that establishes that the interview participation was organised or promoted by the Union.
52.Second, Casino Canberra submitted it was not clear from The Canberra Times article whether, in participating in the interview, Mr Kidman was “advancing the views, claims or interests” of the members of the Union. Indeed, it submitted, it was entirely unclear what he was doing by participating in the interview. In particular:
(a)in specified statements attributed to Mr Kidman in the article (“If they won’t give us an undertaking about the conditions, then there must be a reason for that,” and “We are not being told anything, we’ve had no information.”) it is entirely uncertain who are the “us” and “we”, noting merely that Mr Kidman appears to be generally referring to employees and workers of Casino Canberra not merely those who may be members of the Union;
(b)there was no evidence that Mr Kidman was representing the views of any member of the Union other than himself; and
(c)the Original Tribunal made no finding as to whether, over and above Mr Kidman, any members of the Union were employed by Casino Canberra.
Respondent’s submissions
53.In Mr Kidman’s submission, his participation in The Canberra Times interview fell squarely within the definition of ‘industrial activity’ in the Discrimination Act because he was both participating in a lawful activity organised by a union and was representing the views of his fellow Union members. Contrary to Casino Canberra’s submissions:
(a)there was evidence from Mr Kidman that the Union contacted The Canberra Times and that he was interviewed in his capacity as a Union delegate – and there was no other reason why The Canberra Times would have spoken to him;
(b)there was evidence from Mr Kidman about the existence of other Union members at the casino, his role in representing them as a delegate, his knowledge of their concerns about the sale and, in particular, the absence of guarantees in respect of job security, and the fact that he participated in the interview “to support the Union’s campaign and to represent the views of members … to put pressure on the companies, to get them to come to the table.”[24]
[24] Statement of Bryan Kidman dated 2 December 2019 at paragraph [25]
54.Mr Kidman submitted that the comments attributed to him in the article reflected those concerns and that intention. Casino Canberra had advanced no basis to challenge the Original Tribunal’s findings to this effect at paragraph [39] of the reasons for decision.
Consideration and conclusion
55.The dictionary to the Discrimination Act provides that:
industrial activity means any of the following:
(a) being or not being a member of, or joining, not joining or refusing to join, an industrial organisation or industrial association;
(b) establishing or being involved in establishing an industrial organisation or forming or being involved in forming an industrial association;
(c) organising or promoting or proposing to organise or promote a lawful activity on behalf of an industrial organisation or industrial association;
(d) encouraging, assisting, participating in or proposing to encourage, assist or participate in a lawful activity organised or promoted by an industrial organisation or industrial association;
(e) not participating in or refusing to participate in a lawful activity organised or promoted by an industrial organisation or industrial association;
(f) representing or advancing the views, claims or interests of members of an industrial organisation or industrial association.
56.The action taken by Mr Kidman in participating in an interview by The Canberra Times about the concerns in relation to the possible consequences of the proposed sale of shares did not fall within those parts of the definition found in paragraphs (a), (b), and (e). The question is whether his action came within any or all of paragraphs (c), (d) and (f).
57.In particular, the issue for the Appeal Tribunal is whether Mr Kidman was:
(a)organising or promoting a lawful activity on behalf of the Union;
(b)participating in a lawful activity organised or promoted by the Union;
(c)representing or advancing the views, claims or interests of members of the Union who were employed by Casino Canberra.
58.According to Mr Kidman’s witness statement dated 2 December 2019 (Exhibit A1):
(a)as a delegate of the Union, Mr Kidman is “involved in promoting union campaigns”;
(b)Mr Kidman was involved in a process by which the Union collected petitions from workers saying that they wanted to bargain with Casino Canberra;[25]
(c)over 90 of around 180 workers signed the petition which was provided to Casino Canberra on 30 August 2019;
(d)on or around 8 July 2019, he was informed that the Union had asked both Casino Canberra and Blue Whale by letter dated 8 July 2019 for “undertakings that staff would not lose any pay or conditions, and in respect of job security;”[26]
(e)Casino Canberra and Blue Whale refused to give the undertaking;[27]
(f)in early August 2019, the Union’s media team contacted The Canberra Times about Casino Canberra’s refusal to provide the undertaking requested on 8 July 2019;
(g)The Canberra Times arranged an interview between Mr Kidman and journalist Dan Jervis-Bardy;
(h)Mr Kidman attended the interview; and
(i)Mr Kidman understood that he was participating as the Union delegate “to support the Union’s campaign and to represent the views of members. I considered it important to put pressure on the companies, to get them to come to the table.”
[25] See also transcript of original proceedings 10 February 2020 pages 29-30, 33
[26] The letter was addressed to Casino Canberra and asked Casino Canberra to pass on to Blue Whale the Union’s request for an undertaking in relation to four specified matters. The Union also stated, in relation to bargaining, that it appreciated Casino Canberra’s preference not to enter bargaining until the sale transaction is complete. The Union would consider its position and respond in time.
[27] The letter from Casino Canberra dated 15 July 2019 set out Blue Whale’s replies to the request for undertakings which included the statement “It is premature for Blue Whale to enter into any discussions regarding detailed staffing plans, or indeed to provide any form of undertaking in relation to any of the points in your letter.” Casino Canberra noted the Union’s stated position in relation to bargaining.
59.We acknowledge that Casino Canberra disputed aspects of that evidence or submitted that there was no independent evidence to support it. However, it might be thought that it is part of the role of a Union delegate to participate in activities such as media interviews that provide a forum to represent and advance the views, claims or interests of Union members who were employees of Casino Canberra. It is also reasonable to infer in the circumstances that The Canberra Times would not have interviewed Mr Kidman other than in his role as a Union delegate.
60.In The Canberra Times article, the journalist referred to Mr Kidman as “a delegate for the hospitality workers’ union, United Voice,” as well as someone who had “worked on the casino’s gaming floor for more than 16 years.”
61.In his letter dated 14 August 2019 to Mr Maundrell in reply to the 8 August letter, Mr Kidman stated:
I spoke to the Canberra Times as the union delegate at Canberra Casino, and my comments were to represent the views and concerns that I understood United Voice members at our workplace had about the upcoming sale.
62.In addition, the National Secretary of the Union wrote a letter dated 12 August 2019 to Casino Canberra in response to the letter of 8 August in which she stated:
The comments Mr Kidman made to the Canberra Times were in his capacity as a union delegate, and intended to represent the views and concerns of United Voice members at Casino Canberra.
63.The Appeal Tribunal understands that Casino Canberra does not necessarily dispute those statements about Mr Kidman but submits that he did not provide any or enough independent evidence of his status as a Union delegate, that his participation in the interview was organised or promoted by the Union, that he spoke with The Canberra Times in his role as Union delegate, that there were employees of Casino Canberra who were members of the Union and that he was advancing their views, claims and interests.
64.We make two observations in relation to that submission. First, at every stage of the process leading to the present proceedings, the Union acted for Mr Kidman, on the basis that he is its delegate and he had spoken with The Canberra Times in that role. In particular:
(a)on 12 August 2019, the Union’s National Secretary wrote to Ms Gallaugher as Acting CEO of Casino Canberra, in response to the 8 August letter describing Mr Kidman in the terms quoted earlier and requested Ms Gallaugher to, among other things, acknowledge the rights of the Union’s delegate to represent and advance the views, claims and interests of members;
(b)a Union organiser lodged the complaint to the Human Rights Commission on behalf of Mr Kidman and later requested that the unresolved complaint be referred to the Tribunal; and
(c)the Union provided representation for Mr Kidman at the hearing before the Original Tribunal.
65.Second, although the Original Tribunal had to make findings based on evidence, the Original Tribunal:
(a)did not need to comply with the rules of evidence applying in the ACT;[28] and
(b)could inform itself in any way it considered appropriate in the circumstances,[29]
[28] ACAT Act section 8
[29] ACAT Act section 26
while ensuring that the Original Tribunal observed natural justice and procedural fairness.[30]
[30] ACAT Act section 7(b)
66.The Appeal Tribunal is satisfied that there was sufficient information before the Original Tribunal to provide a factual basis for the finding made by the Original Tribunal that Mr Kidman’s actions fell within the definition of ‘industrial activity’ in the dictionary to the Discrimination Act, because he was participating in a lawful activity organising the Union and was representing or advancing the views, claims or interests of members of the Union who are employed by Casino Canberra.
67.We also note that, although Mr Maundrell did not cross-examine Mr Kidman in relation to that evidence, the following questions suggest (or are premised on) Mr Kidman being involved in industrial activity in the interview with The Canberra Times:
Did the casino say to you it was concerned you had spoken to the Canberra Times?
Since 16 August have you engaged in industrial activity at Casino Canberra?
…
Have you continued to – since 16 August have you continued to represent the views and interests of fellow members?
Have you continued to participate in lawful activity organised by the union?
Have you promoted lawful activity on behalf of the union?
In pursuit of enterprise bargaining?
Has the casino taken any issue with any of that?[31] [replies omitted]
[31] Transcript of original proceedings 10 February 2020 page 54
68.Those questions do not determine the issue before the Original Tribunal or the Appeal Tribunal, but their premise that Mr Kidman was involved in industrial activity at the casino in August 2019 is consistent with the conclusion reached by the Original Tribunal.
69.The Appeal Tribunal is satisfied that the Original Tribunal did not err in concluding that Mr Kidman’s participation in The Canberra Times interview came within the definition of ‘industrial activity’. This aspect of the appeal has not been made out and so is dismissed.
Issue 2: Did Casino Canberra treat Mr Kidman ‘unfavourably’?
What the Original Tribunal decided
70.The Original Tribunal described the question whether Casino Canberra had treated Mr Kidman unfavourably as a question of fact involving an objective test. More specifically, the question is whether the writing of the 8 August letter to Mr Kidman was unfavourable treatment of him. In other words, did Casino Canberra treat Mr Kidman unfavourably?[32] The Original Tribunal stated that, in determining this matter, it must have regard to the contents of the letter and the context in which it was written and sent to Mr Kidman. The Original Tribunal also noted that lawful action can be unfavourable treatment,[33] and that the fact that the letter was the first step in a process of disciplinary action, and that it was properly neutral in its terms, cannot prevent the writing of the letter from being unfavourable.[34]
[32] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [22]
[33] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [30]
[34] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [27]
71.The Original Tribunal agreed that it was plainly adverse to Mr Kidman’s interest to commence and carry on investigations of the nature set out in the letter. The imposition of requirements to respond and the potential negative impact on his employment status was a clear detriment to him as an employee. The Original Tribunal was satisfied on the evidence that Casino Canberra had treated Mr Kidman unfavourably, or had subjected him to unfavourable treatment.[35]
Appellant’s submissions
[35] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [31], [32]
72.In summary, there were two limbs to Casino Canberra’s submissions. The first raised evidentiary issues. Casino Canberra submitted that there was no evidence before the Original Tribunal:
(a)to suggest that any “process had been initiated by writing the letter” dated 8 August 2019;
(b)that sending the letter “was the first step in a process of disciplinary action” or amounted to “instigating an investigation”; or
(c)that there was any “imposition of requirements to respond” to the letter.[36]
[36] Appellant’s submissions on appeal dated 21 September 2020 at [20]-[23]
73.Rather, Casino Canberra submitted:
(a)its conduct in writing the letter was no more than an exercise in seeking clarification from Mr Kidman;
(b)the letter was plainly not the first step in a process of disciplinary action; and
(c)at its highest, the letter merely requested a response from Mr Kidman.
74.In its submission, the key passages of the 8 August letter recited facts about the interview, outlined concerns on the part of Casino Canberra, put questions to Mr Kidman and offered him an opportunity to explain all relevant circumstances as he saw them. The 8 August letter was the exercise of an employer’s right to ask questions of an employee arising from statements that the employee has been reported to have made in the media that are about their employment. In Casino Canberra’s submission, it matters not that the employee may have some association with an industrial organisation or even, in doing so, happens to be participating in activity “organised or promoted by an industrial organisation or industrial association” or “advancing the views, claims or interests of members of an industrial organisation or industrial association.” In support of that submission, Casino Canberra cited: McManus v Scott-Charlton (1996) 70 FCR 16 at 28-29 (McManus); Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, 53 at [19]; Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, 478 at [23]-[27]; Harrison v P & T Tube MillsPty Ltd (2009) 181 IR 162, 232 at [282]; Rose v Telstra (1998) 45 AILR 3-966 at [20]; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500 at 523 (Barclay); CFMEU v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 (BHP Coal).
75.Casino Canberra also submitted that the part of the 8 August letter dealing with the “Way forward” simply amounted to a request. It was not a requirement that Mr Kidman respond. He was entirely free not to respond. Had he not responded, that lack of response may have led to Mr Maundrell to determine to do things referred to later in the letter. But Mr Maundrell may not have done so. At the time of the 8 August letter, it was mere speculation how Mr Maundrell might act. Hence, at that point there was no detriment (in the dictionary sense of loss, damage, or injury) occasioned to Mr Kidman. Nor had there been any declaration of an intention or determination to inflict punishment on him. The letter expressly stated that Mr Maundrell had not reached any view (even a preliminary view) about whether Mr Kidman had met Casino Canberra’s required standards of behaviour. The letter concluded with a contingent possibility. There was no loss, damage, or injury to Mr Kidman, nor any threat of such.
76.Second and more fundamentally, Casino Canberra submitted that the Original Tribunal did not explore the sense of ‘unfavourable treatment’ required to establish a breach of the Discrimination Act in the context of employment or (to use the heading to Division 3.1 of Part 3 of the Act) “Discrimination in work.” The applicable section of the Discrimination Act is section 10(2)(d) which provides that “It is unlawful for an employer to discriminate against an employee – … by subjecting the employee to any other detriment.” The reference to “other” detriment is a reference to the types of detriment set out in the preceding paragraphs (a), (b) and (c) which are not relevant to this case. The word ‘detriment’ is not defined in the Discrimination Act, although it is used 13 times in the Act, including 10 times in the phrase “any other detriment.” Its dictionary meaning is “loss, damage, or injury” or “a cause of loss or damage.”[37]
[37] Macquarie Dictionary (7th ed, 2017) ‘detriment’ (def 1, 2)
77.In Casino Canberra’s submission, the question for resolution by the Original Tribunal was not merely whether Mr Kidman was treated unfavourably by Casino Canberra or whether Casino Canberra proposed to treat Mr Kidman unfavourably. Rather, the question is whether Casino Canberra, in writing to Mr Kidman in the terms of the 8 August letter, subjected him to any detriment or threatened to do something detrimental to him.
Respondent’s submissions
78.The conduct relied on as unfavourable treatment is the process commenced by Casino Canberra’s 8 August letter. In Mr Kidman’s submission the letter was the first step in a disciplinary investigation. He was being asked to show cause as to why such a process should not commence. The letter went beyond an “opportunity to clarify”, which is evident by the express reference to the disciplinary policy which was annexed to the letter. Casino Canberra’s attempt to suggest otherwise is disingenuous. In addition, Mr Kidman gave evidence that the letter caused him personal distress. That was, in itself, the imposition of a detriment.[38]
[38] See Cooley and Australian National University [2007] ACTDT 2 at [45]
79.Further, the letter could not be characterised as “neutral treatment.” It involved only unfavourable consequences to Mr Kidman and, in that sense, is unfavourable treatment.[39] No error is apparent in the Original Tribunal’s conclusion to that effect.
[39] Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
80.In Mr Kidman’s submission, the legal question is whether, viewed objectively, the consequence of the relevant treatment was unfavourable to him. The test is universal. It does not change in the employment context. Nor does it require the treatment to be unlawful or unusual. Indeed, the Original Tribunal accepted Casino Canberra’s evidence that letters of this kind were an ordinary part of its human resources processes when it needed to investigate concerns about employees potentially leading to disciplinary action.
Consideration and conclusion
81.For the purposes of the present case, the relevant components of section 8(2) and 10(2) of the Discrimination Act (quoted at paragraphs [35] and [37]) provide that a person directly discriminates against an employee if the person treats the employee unfavourably because the person has one or more protected attributes by subjecting the employee to detriment. A careful reading of these sections, as interpreted and applied in other cases discussed below, identifies the following aspects of this part of the scheme:
(a)The tribunal must be satisfied that the person was treated ‘unfavourably’ by being subjected to some detriment.
(b)Whether a person was treated unfavourably can be ascertained by reference to the consequences of that treatment for, or the effect of the treatment on, the person.
(c)Whether a person was treated unfavourably is determined by reference to the effect of the treatment on that person, not by a comparison of the treatment of the person with the treatment of others.
(d)The treatment is direct discrimination if the person was treated unfavourably ‘because’ the person has one or more of the protected attributes.
82.Unfavourable treatment is fundamental to a successful claim for direct discrimination. The Discrimination Act does not include any definition of ‘unfavourably’, ‘unfavourable’ or ‘unfavourable treatment’. The Macquarie Dictionary defines ‘unfavourable’ to mean “not favourable; not propitious; disadvantageous; adverse.”
83.A body of case law has developed which gives meaning to the term. In Prezzi, Patricia Anne and Discrimination Commissioner[40] (Prezzi) President Curtis said:
If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.[41]
[40] [1996] ACTAAT 132
[41] Prezzi at [22], affirmed in Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379; Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84
84.In Cooley and Australian National University,[42] a claim brought in the then ACT Discrimination Tribunal, Deputy President Peedom said:
A detriment involves some loss, damage or injury (see Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 and Sivananthan v Commissioner of Police [2001] NSW ADT 44 at 41) and is broad enough to cover any disadvantage, as long as it is real and not illusory. Whether a detriment has been suffered is to be determined objectively and not by the subjective perceptions of either the complainant or the respondent. (see Ellis v Mount Scorpus Memorial College [1996] VADT 16 (29 March 1996)).
[42] [2007] ACTDT 2 at [44]
85.In summary, for the purpose of this case, ‘unfavourable treatment’ is treatment that is disadvantageous or detrimental to the complainant. ‘Unfavourable treatment’ may encompass acts or omissions which result in some detriment, being loss, damage or injury to the complainant.[43] Although detriment is encompassed by that term, it is also identified separately in section 10(2) where there is discrimination in relation to an employee.
[43] Cooley v Australian National University [2007] ACTDT 2 at [44]; See also Prezzi at [22], affirmed by the Federal Court in Edgelyv Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [54]-[57]
86.The third aspect was dealt with in Prezzi where President Curtis stated:
The ACT Discrimination Act … does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with.[44]
[44] Prezzi at [22]
87.In Australian Capital Territory v Wang,[45] an appeal tribunal adopted the meaning of ‘disadvantage’ discussed in Prezzi:[46]
[22] …While the term “disadvantage” might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison; the same dictionary gives it as “any state, circumstance, opportunity” as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines “disadvantage” as “absence or deprivation of advantage; any unfavourable circumstance or condition”. The primary meaning of “advantage” does not import comparison; the same dictionary gives it as “any, state, circumstance, opportunity or means specially favourable to success, interest or any desired end” …
[24] It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant’s interests or are adverse to the complainant’s interests, and whether the dealing has occurred because of a relevant attribute of the complainant. The same inquiry must be made where what is in issue is a condition or proposed condition of dealing with the complainant by the person who is the subject of a complaint. … [47]
[45] [2019] ACAT 65
[46] [1996] ACTAAT 132 at [22], [24], and later approved by Beaumont ACJ (with whom Higgins and Gyles JJ agreed) in Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
(a)Mr Kidman was engaged in ‘industrial activity’ when he participated in the interview with The Canberra Times;
(b)Casino Canberra treated Mr Kidman ‘unfavourably’ when it sent him the 8 August letter;
(c)Casino Canberra treated Mr Kidman unfavourably ‘because of’ that industrial activity;
(d)Casino Canberra should pay Mr Kidman the sum of $4,000 as compensation for the detriment he suffered; and
(e)Casino Canberra should pay $4,620 for legal costs incurred by Mr Kidman in relation to the second day of the hearing before the Original Tribunal.
285.Consequently, the appeal is dismissed.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
Date(s) of hearing 18 November 2020 Solicitors for the Appellant: Mr J Wilson, Bradley Allen Love Lawyers Counsel for the Respondent: Ms L Saunders
Attachment A: Canberra Times article, 6 August 2019[192]
[192] This is the version of the article downloaded and enclosed with Casino Canberra’s letter to Mr Kidman dated 8 August 2019. This version differs in some respects from the version in the printed edition of The Canberra Times.
Casino Canberra workers in limbo as sale looms – by Dan Jervis-Bardy
Casino Canberra workers say they are in limbo as the venue prepares to change hands.
Bryan Kidman, who has worked on the casino’s gaming floor for more than 16 years, said employees were in the dark about staffing levels, wages and conditions ahead of a looming shift in the ownership structure of the city casino.
Blue Whale Entertainment is awaiting ACT government approval on a complex deal which will see it become the majority shareholder in the companies which own and operate the casino, Aquis Entertainment Limited and Casino Canberra Limited.
The government is completing a probity review of the deal, which marks the final step in the approval process. The company’s board and shareholders have already green-lighted the proposal, which was announced in December.
A government spokesman could not put a time frame on the completion of the review.
Mr Kidman, who is a delegate for the hospitality workers’ union, United Voices, said neither Aquis or Blue Whale had provided workers with written assurances about their employment conditions once the deal was complete.
Mr Kidman said the union approached Aquis earlier this year seeking to negotiate a new pay deal, as the existing agreement was due to expire on June 30.
The union was told that talks would not start until the sale was complete, prompting it to ask for a “letter of intent” stating that existing working conditions would be retained under the new owners.
It also sought guarantees that, following the sale, there would be no forced redundancies, changes to hours or rosters or any outsourcing of work.
The old agreement has since expired, although the conditions will remain in force until a new deal is struck.
“If they won’t give us an undertaking about the conditions, then there must be a reason for that,” Mr Kidman said.
“There is just the uncertainty of not knowing what our conditions are going to be. People are a bit worried in the hospitality industry because of what has happened in the past.
“We are not being told anything, we’ve had no information.”
The acting chief executive of Casino Canberra and Aquis, Allison Gallaugher, said it was premature to start negotiations with the union before the government’s probity review was finalised, and the sale approved.
However, Ms Gallaugher said Blue Whale had intentions to grow the business, which she said could “only be a good thing for all our employees”.
She rejected Mr Kidman’s claims that employees had been left in the dark.
“Our employees are regularly updated in staff meetings on the status of the transaction and have also been reassured directly regarding their job security and the potential opportunities which will exist for all of them and the business, on completion of probity,” she said.
A government spokesman said while it could not force Blue Whale to retain staffing levels or conditions, it hoped it would “consider the wellbeing of their existing employees during the transition”.
The Canberra Times reported in March that Blue Whale would consider outsourcing the management of the venue if the deal was approved.
The company has also forecast updates at the casino, including new restaurants and upgrades to gaming facilities.
Casino management also recently re-stated talks with the ACT government about its $330 million expansion proposal, after the bid was knocked back last year.
Attachment B: Letter from Casino to Mr Kidman, 8 August 2019
CASINO CANBERRA
Private and confidential
Mr Bryan Kidman
C/- Casino Canberra
By email
Dear Bryan,
Article in the Canberra Times dated 6 August 2019
I refer you to the article which appeared in the Canberra Times on 6 August 2019 – under the heading “Casino Canberra workers in limbo as sale looms” – the terms of which are set out in Attachment to this letter (“Article”).
Comments attributed to you in Article
The Article attributes a number of comments to you in connection with Casino Canberra, including:
“If they won’t give us an undertaking about the conditions, then there must be a reasons for that,” Mr Kidman said.
“There is just uncertainty of not knowing what our conditions are going to be. People are a bit worried in the hospitality industry because of what has happened in the past.
“We are not being told anything, we’ve had no information.”
Our concerns and seeking clarification
We are concerned that the comment:
(1)as described in the first sentence quoted above from the Article, may have been made by you in breach of the “Your Behaviour” section of the Casino’s Employee Handbook, Relevantly, at page 25, it is stated that:
As a Casino Canberra team member you must always adhere to the following standards:
· …Do not spread or support rumours/gossip
(2)as described in the third sentence quoted above from the Article, misrepresents the communications that have passed between management and staff in relation to the sale process. In this regard, under the Aquis Entertainment – Code of Conduct[193] it is stated that:
[193] Refer also to the Casino’s Employee Handbook (at page 25) under the heading “Aquis Entertainment – Code of Conduct”.
2. Employee’s responsibilities
(a) Each Aquis Entertainment employee is responsible for complying with this Code both in detail and in spirit. Everyone must:
(I)Act in the best interests of Aquis Entertainment;
(II)Act with integrity – being honest, ethical, fair and trustworthy in all business dealings and relationships;
…
In the circumstances, we would like to:
·ask you some specific questions in relation to the comments (which are set out below[194]), and request that you answer these questions; and
[194] Please note that our questions assume you were accurately quoted.
·offer you an opportunity to explain all relevant circumstances, as you see them, pertaining to the comments attributed to you in the Article.
Questions:
1.In relation to the comment, described in the first sentence quoted above from the Article:
(a) We note that on 15 July 2019, the Casino sent an email to United Voice, stating:
We have referred to your queries [in relation to the Casino sale] to Blue Whale who have replied in the following terms:
·Blue Whale is currently undertaking a probity review with the ACT Government, which is a condition precedent to the completion of the purchase of shares in Aquis Entertainment Limited.
·It is premature for Blue Whale to enter into any discussion regarding detailed staffing plans, or indeed to provide any form of undertaking in relation to any of the points in your letter.
·Blue Whale can, however, confirm that it is purchasing the shares in Aauis Entertainment Limited as owner of Casino Canberra, with the intention to grow the casino business, which would in turn increase employment, hours, and opportunities for all employees, including existing employees of Casino Canberra.
·In the meantime (and beyond Blue Whale’s purchase of the shares), Aquis Entertainment Limited is an entity in its own right, which will continue to operate the casino business on a ‘business as usual’ basis, making decisions as required and determined by the needs of the business at any point in time, as it has done so to date.
(b)were you intending to suggest (or infer) that there must be some ulterior reason(s) to those which had been put by the Casino to United Voice (as described in paragraph 1(a) above)?
(c)if your answer to paragraph 1(b) is “yes”, are you able to:
a. clarify the basis you had for making this suggestion?
b. explain your view as to whether the comment is consistent with the following requirement:
As a Casino Canberra team member you must always adhere to the following standards:
·…Do not spread rumors[195]/gossip
[195] As used in the Employee Handbook, we consider “rumour” to have its ordinary meaning. For instance: A story or piece of information that may or may not be true, but that people are talking about
2.In relation to the comment, described in the third sentence quoted above from the Article, can you please clarify:
(a)were you intending to convey that the Casino has provided no information to Casino staff in relation to the sale process?
(b)If the answer to paragraph 2(a) is “no”, can you please explain what you were intending to convey by your comment?
Way forward
In the first instance, and with a view to me forming a preliminary view as to whether or not you have met the Casino’s required standards of behaviour, I request that:
Øyou provide a written response to this correspondence on or before 5pm on 15 August 2019. If you could direct any written response to:
Øif you would prefer to address this correspondence in person (rather than in writing), attend an interview with me. At an interview, you would be able to responded to this correspondence (and you would be able to bring a support person to the interview if you wish). If you could please let me know, as soon as practicable, whether this is your preferred course.
Having regard to any response you provide to me, I may determine:
Øon a preliminary basis, that you have not met the Casino’s required standards of behaviour. (Please note that if you do not provide a written response or attend an interview with me, I will proceed based on the information available to me.); and
Øin the circumstances, it is appropriate that the matter proceed to a formal performance counselling – in the terms contemplated by paragraphs 2.3 – 2.7 of the Casino’s Staff Performance Counselling and Discipline Policy – copy enclosed.
To ensure that this process can be conducted as fairly as possible, please treat this matter as strictly confidential. Any breach of confidentiality may be considered to be a disciplinary matter. However, in saying that, we do recognise that you may seek advice from your union and/or other representatives.
Should you have any other queries relating to this matter, please contact me on 02 6243 3704.
Yours Sincerely,
[Signed]
Shane Maundrell
Compliance Manager and In-house Legal Counsel
Date: 8 August 2019
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