Craig v Ravenshoe Community Centre Inc
[2012] QCAT 315
| CITATION: | Craig v Ravenshoe Community Centre Inc and Ors [2012] QCAT 315 |
| PARTIES: | Gordon Craig (Applicant) |
| v | |
| Ravenshoe Community Centre Inc (First Respondent) State Of Queensland (Second Respondent) Barbara Treers (Third Respondent) Trevor Granger (Fourth Respondent) |
| APPLICATION NUMBER: | ADL056-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 22 June 2012 |
| HEARD AT: | Cairns |
| DECISION OF: | Catherine Benson, Member |
| DELIVERED ON: | 23 July 2012 |
| DELIVERED AT: | Gladstone |
| ORDERS MADE: | 1. That the Application be dismissed. |
| CATCHWORDS: | Discrimination – age – in the provision of services |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Gordon Craig appearing in person |
| RESPONDENT: | Ms M Zerner,Counsel for the second and fourth respondents Ms S Growden for the first and third respondents |
REASONS FOR DECISION
Proceedings
The Applicant, Mr Craig alleges he was discriminated against by reason of his age, in the provision of services, by the third Respondent, Mrs Treers and also by the fourth Respondent, Mr Granger.
Mrs Treers, was, at all relevant times, the co-ordinator for Ravenshoe Community Centre Inc (Ravenshoe), the first Respondent.
Mr Granger, was, at all relevant times, the area manager for the second Respondent, Home and Community Care (HACC) programme within the Peninsular region.
The first and second Respondents are alleged to be vicariously liable for the actions of Mrs Treers and Mr Granger, respectively.
Mr Craig alleges Ms Treers directly discriminated against him by telling him the service provided by Ravenshoe and by HACC was for “old people” and threatening, or implying that his funding would be cut and the services stopped, as a result.
Mr Craig further alleges that Mr Granger encouraged or supported Ms Treers in her actions and comments.
Agreed Issues
Agreed issues:
a.In this case is one of age, and specifically, that Mr Craig was not an “old person”;
b.Mr Craig suffers an acquired brain injury;
c.Mr Craig was, at all relevant times, receiving transportation services funded through HACC and arranged through Ravenshoe, as a result of his injury;
d.Ravenshoe is externally funded to provide particular HACC services, which specifically do not include transportation services;
e.Mr Craig was, as at April 2010, receiving a transportation service from Ravenshoe, by way of Mossman Taxis Service as an external provider;
f.Ravenshoe was not directly funded to provide the transportation service made available to Mr Craig, which was subject to ministerial permission and an annual review;
g.Mr Craig was comfortable with this service and wanted it to continue;
h.Mr Craig, Ms Treers and Mr Granger attended a meeting on 9 April 2010 at the Mossman Post Office Hotel, regarding the provision of services to Mr Craig;
i.Mr Craig was accompanied by another person, Mrs Brischetto;
j.At the meeting Mr Granger told Mr Craig that he was required to undergo a further assessment by a HACC nurse as to his suitability and/or ongoing requirement for the service beyond June 2010;
k.In June of 2010 Mr Craig underwent a further assessment which confirmed his need for an ongoing transport service;
l.On or about 14 July 2012 Mr Craig was informed a new service provider, being, Goobidi Bamanga would take over the financial provision of his transport service;
m.Goobidi Bamanga did take over this service;
n.Mr Craig’s service was not, at any time, cut off;
o.Ravenshoe continued to provide the service until the alternative service provider was appointed;
p.HACC has at all material times remained the financial provider for Mr Craig’s transport service.
Mr Craig sought to raise other issues during the hearing including about events that occurred between himself and Ravenshoe and allegations of ongoing difficulties between he and Ravenshoe and he and HACC.
It is noted this matter came before Member Clifford for Directions in February 2012.[1]
[1] 21 February 2012 decision.
In her reasons, Member Clifford identified the issues for determination in this hearing as:
a.“Mr Craig claims that at a meeting with Ms Treers, and others, Ms Treers suggested he would no longer receive services because of his age”; and
b.“Mr Craig was advised that the services were for old people only and that Mr Granger threatened to find a HACC assessment officer to reassess Mr Craig as ‘no longer eligible to access HACC services period’”.
The parties agreed during the hearing that this was the scope of the issues for determination.
Issues in Dispute
Issues in dispute:
a.The purpose for which the meeting on 9 April 2010 (the meeting) was arranged and specifically, whether the purpose of the meeting was to review Mr Craig’s ongoing services;
b.Whether at the meeting Mr Craig was told by Ms Treers, Mr Granger or both, that his taxi service would be stopped due to funding or whether such was implied;
c.Whether Ms Treer said words to the effect that “HACC services are for old people”;
d.Whether Mr Granger supported and/or encouraged Ms Treer in making that or a similar comment.
The Law
Section 7 Anti Discrimination Act 1991 (the Act) prohibits discrimination on the attribute of age and section 9 of the Act prohibits discrimination which is either direct or indirect.
Section 8 of the Act defines the meaning of discrimination on the basis of an attribute to include both direct and indirect discrimination on the basis of an attribute a person has or is imputed to have or is assumed to have.
Section 10 of the Act describes direct discrimination occurring where a person treats, or proposes to treat, a person less favourably, on the basis of an attribute, or substantially on the basis of an attribute, than they treat or would treat another person without the attribute in circumstances that are the same or not materially different.
Section 11 of the Act describes indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term (a) with which a person with an attribute does not or is not able to comply; and (b) with which a higher proportion of people without the attribute comply or are able to comply; and (c) that is not reasonable.
Evidence of and for Applicant
Mr Craig sought to rely upon a written statement of Mrs Brischetto, which statement had been apparently signed by her.
a.Mr Craig advised at the commencement of the hearing that Mrs Brischetto would not be attending the hearing and was not available for cross examination. He advised she knew of the hearing and he had asked her to attend but she had “refused”; “she chooses not to come”;
b.While none of the Respondents objected to my receiving the statement into evidence, I was urged by each of the Respondents to place no weight upon Mrs Brischetto’s statement given she was unavailable for cross examination;
c.It was explained to Mr Craig that witnesses ordinarily are required to be available for cross examination and, if they are not, that is an issue which is likely to affect how much, if any, weight is given to the contents of the statement;
d.Mr Craig gave further evidence about the manner in which Mrs Brischetto’s statement was created, which is set out in these Reasons;[2]
e.Given Mr Craig’s evidence about this issue, the Tribunal is concerned that Mrs Brischetto’s statement may not contain objective evidence that can be relied upon as to its truth;
f.Given that those issues were unable to be tested under cross examination, no weight is placed upon the contents of the statement of Mrs Brischetto.
[2] Para 21.
Mr Craig himself, gave evidence in the form of written statements.
a.The submission of the Respondents that Mr Craig did not comply with directions for the filing of his evidence is noted. However, an abundance of written material prepared by Mr Craig, which material had been provided to the Respondents was relied upon, and accepted by the Tribunal as the evidence upon which he sought to rely; and
b.Mr Craig was cross examined on this documentation.
Mr Craig also made written submissions after the conclusion of the hearing, and in response to written submissions received from the Respondents.
Mr Craig also gave oral evidence and was cross examined.
In cross examination on the issue of Mrs Brischetto’s statement, Mr Craig stated:
a.He and Mrs Brischetto had discussed the meeting “endlessly”;
b.He had “helped her re-phrase” the statement in many respects in order to “put the right emphasis in” regarding the events of the meeting, because:
i) She is a person of Italian heritage;
ii) She has a lack of education, and “a 1950’s education”;
iii) She is “just a housewife”;
c.There were several drafts of the statement before the one she signed, which he helped to prepare;
d.The signed statement was not prepared until about 9 months after the meeting;
e.He had recently had a falling out with Mrs Brischetto after voicing issues to her about the appropriateness of her husband continuing to drive taxis, and this is why she had refused to attend Court to give evidence.
During the course of giving his evidence Mr Craig indicated that he wished to call evidence from his medical GP, Dr Salleras, to confirm his medical condition and that “I have not had any bogus symptoms” and also to “say that I am not prone to lie”.
a.The Respondents each confirmed they agreed with Mr Craig’s medical diagnosis such that medical evidence was not required on that issue; Mr Craig was cross examined about his medical condition and agreed with many of the issues put to him about it;
b.The Tribunal explained to Mr Craig that an opinion, even from a medical practitioner, that he was not “prone to lying” would not likely assist the Tribunal to determine what did or did not happen at the meeting, if the person was not present at the meeting;
c.Mr Craig was invited to consider over the luncheon adjournment, whether he still wished to call evidence from Dr Salleras;
d.Following the luncheon adjournment Mr Craig advised he did not wish to call further evidence from Dr Salleras.
During his own evidence Mr Craig made reference to a number of factual disputes between him and each of the Respondents, and requested, at times, to call evidence from other persons to confirm various issues and for the Tribunal to subpoena such evidence.[3]
[3]Including Phil Smart who no longer worked with the Respondent in 2010, and Bronwyn Morgan who could give evidence about issues after the meeting.
The Tribunal advised Mr Craig that no such further evidence would be permitted because:
a.It was too late to raise such issues during the course of his evidence particularly given Mr Craig was invited at the commencement of the hearing to indicate what witnesses he wished to rely upon;
b.Issuing subpoenas to witnesses would require an adjournment of the hearing and the Tribunal was not prepared to consider doing so in all of the circumstances;
c.The Tribunal was considering a limited issue, being, what occurred and was said in a meeting between the parties on 9 April 2010 and the other issues raised by Mr Craig did not go to that issue.
Mr Craig gave evidence generally, to the effect that:
a.As a result of his acquired brain injury he has difficulties with:
i) concentration, if there is a lot of noise or a heated conversation; and
ii) short term memory; and
iii) poor attention, with difficulty following conversation; but that if he knows he has to focus on something he is “pretty much on the job” and if he feels he is not, will excuse himself; and
iv) polite social behaviour, when he feels stressed; and
v) change, “I don’t do change very well”; and
vi) stress, “I don’t handle stress very well”; and
vii) anger management;
b.He is nevertheless able to focus when dealing with issues that are matters “of life and death” to which the Tribunal understood he meant, being of particular importance to him, such as these proceedings;
c.A meeting was arranged between Mr Craig, Mrs Treers and Mr Granger at the request of Mrs Treers;
d.Mr Craig chose the date and place of the meeting, being for Friday 9 April 2010, at Mossman Post Office Hotel;
e.Mr Craig chose to bring a support person, Mrs Brischetto, who was also the driver of the taxi being the service he received;
f.He knew and understood that the ongoing provision of the taxi service was subject to funding, but otherwise expected it to continue past June 2010;
g.Prior to the meeting he had received a care plan, which he had amended to reflect that the service would “automatically roll over” after June 2010, if he still required it;
h.He considered the amendment to form part of a binding contract between he and the third and fourth Respondents;
i.He understood that the meeting in April 2010 was to review the services provided to him;
j.He did not accept there was a need to review his needs;
k.He attended the meeting anxious about its intentions but he was not angry;
l.Denied that he:
i) displayed any anger during the meeting;
ii) that he got up and paced during the meeting, or got up at all;
iii) that he shook his finger at Mr Granger during the meeting or raised his voice;
m.Agreed that the tone of the meeting changed when it was suggested that the transportation service would not automatically continue after June 2010, and was subject to a further review;
n.During the meeting Mrs Treer stated that the taxi service would come to an end because HACC which is the funding body for the service “is for old people”;
o.Ms Treer told him there were several “old and frail” people needing the service, suggesting that he was not entitled because he was not old or frail;
p.That Mr Treer and/or Mr Granger told him or “heavily implied” his services would need to be cut as it was costing three times what other clients received;
q.Mr Granger then became aggressive and abusive to him;
r.He did tell Mr Granger words to the effect of “sit over there and don’t participate because you’re just a bureaucrat and what would you know”;
s.He did talk over Mr Granger but in a “quite normal” way;
t.Mr Granger told him would find an officer who would assess him as no longer eligible to receive HACC services;
u.Admitted that he sometimes spoke over the top of other people while they were talking, stating in relation to this meeting “there may have been occasions where there was overlap – I do tend to get ahead of the game and cut to the chase. Occasionally this may have happened in normal, animated conversation”, but “no louder than here today”(meaning the hearing);
v.Agreed that Ravenshoe Community Centre was simply the service provider through which funding was obtained to provide the external transportation service, and that their role was taken over by Goobidi Bamanga;
w.An earlier meeting had taken place in 2008 at which decisions were made regarding his provision of services, and to which, he was not privy and he was upset that he had not been included;
x.He had had a “big blow out” with Ravenshoe Community Centre as a result of that earlier meeting, which issue he remained angry about, agreeing that “I have never let the matter rest”.
Mr Craig took offence to the service being referred to as a “transportation” or “taxi” service, stating it should simply be called a “community access support service”. However he acknowledged when challenged, that transportation service was specifically a service that was not included in the funding provided to Ravenshoe Community Centre by HACC.
The Tribunal does not consider that the term “transportation service” or “taxi service” when used to describe the service provided to Mr Craig was used in a derogatory way or in a way which implied it was not an important service to his needs.
Evidence of First and Third Respondents
Mrs Treers gave evidence by way of written statement, and orally. She was cross examined by Mr Craig and answered questions from the Tribunal.
Mrs Treers gave evidence that:
a.She contacted Mr Craig via letter dated 22 Feb 2010 and by telephone in or about March 2012 to arrange a meeting;
b.The purpose of the meeting was to set the agenda for the review which was to take place before June 2010 by a HACC nurse;
c.The purpose of a review, is to assess a client’s need for ongoing services;
d.All clients must have an annual review;
e.In April 2010, she had 130 clients to manage with part time staff;
f.There were 16 people “on her books” at the time of the April meeting and all were elderly, or older than Mr Craig;
g.At the meeting Mr Craig and/or his support person suggested meeting half the costs of the taxi service, and this was followed up in a phone conversation with the case manager but not able to be followed through with;
h.In a letter dated 21 June 2012 it was suggested to Mr Craig that given they had struggled for 3 years to accommodate his needs and it was difficult to have a positive working relationship with him it was considered better he have another service provider appointed;
i.Her service had ongoing financial difficulties in meeting Mr Craig’s needs as they were not funded for that category (transport);
j.The use of Mossman Taxi Service to assist Mr Craig had required ministerial agreement;
k.Agreed her service had received “3 hikes” in funding since 2008. Mr Craig stated this was a direct result of his “shedding light” on the issue but that there was no clear evidence what this funding was for;
l.Prior to attending the meeting in April 2010 no decision had been made to discontinue Mr Craig’s service;
m.Mr Granger “certainly did not” become aggressive and stand over Mr Craig during the meeting;
n.During the meeting, Mr Craig:
i) was told by Colleen (Mrs Brischetto) a “couple of times”, to settle;
ii) stood up at least once;
iii) was “quite rude” to Mr Granger;
iv) became “really stressed” when told his service would not automatically roll over and that there was a need for a further assessment but that he “tried really hard to keep it together”;
v) was “behaving like he did in Court today”;
o.Has “never said in my life” that HACC services were for old people;
p.Denied the comments attributed to Mr Granger, namely that he would find someone to do an assessment to say Mr Craig not longer was entitled to the service;
q.There was no suggestion the transport service would cease but rather, that she would let HACC know to contact another service provider.
Evidence of Second and Fourth Respondents
Mr Granger gave evidence by way of written statement and orally. He was cross examined by Mr Craig and answered questions from the Tribunal. He gave evidence that:
a.Ravenshoe is externally funded to provide HACC services and is only funded with regard to specific services, not including transportation services;[4]
[4] Statement of Evidence Mr Granger par 10 and annexure TG-3.
b.Mr Craig received transportation service from Mossman Taxis prior to Mr Granger commencing in his role as Area Home and Community Care Manager for Peninsular region;
c.Funding for this service only applied until 30 June 2010, and was subject to an annual review, as is required with any HACC service;
d.Discussions took place between his office and the Minister’s office prior to April 2010 regarding ongoing funding for Mr Craig’s service;
e.A formal submission for such funding was made after the review assessment had been done confirming Mr Craig’s ongoing need in June 2010;
f.The meeting on 9 April 2010 commenced in a cordial manner;
g.In the meeting, Mrs Treers explained that:
i) it was not an official assessment but a meeting to inform him (Mr Craig) about the procedure as a new assessment would be required;
ii) despite Mr Craig’s amendment of the Care Plan, it could not automatically roll over without an annual assessment being undertaken as to his ongoing needs;
h.at some point in the meeting, he (Mr Granger) interjected to explain the assessment process was required of all HACC clients to ensure they were still eligible to receive services at which point Mr Craig became verbally aggressive to him;
i.when Mrs Treers advised the extension of his service to June 2011 as written by Mr Craig in the care plan had never been agreed to, and could not be, Mr Craig became agitated and aggressive, raising his voice;
j.while not physically threatening, Mr Craig would stand up and sit down again, in the meeting, and at times would speak over the top of himself or Mrs Treers;
k.Mrs Bruschetto was supportive in the meeting, trying to calm Mr Craig down;
l.Eventually Mr Craig agreed to attend an assessment with a HACC nurse and asked that it occur as soon as possible.
Presentation of the parties
It is accepted that each of the parties attempted to tell the truth.
It was clear from the presentation of all parties that Mr Craig holds a level of disrespect and mistrust towards each of the first and second Respondents.
Mr Craig acknowledged that he becomes angry when he perceives himself to be under threat or where he is in stark disagreement with another. This was obvious at times during the giving of his evidence, where he:
a.raised his voice;
b.became argumentative;
c.became sarcastic;
d.talked over the top of others;
e.appeared to “get ahead” of himself in anticipating the nature of a question before it was asked; and
f.appeared agitated.
However it is accepted that Mr Craig attempted to keep his anger in check, and to remain courteous, and quickly calmed down when asked to do so.
During the hearing, at times, Mr Craig misinterpreted questions being put to him, and comments that he agreed had been made to him. Examples of this are:
a.On one occasion Mr Craig was asked by Counsel for the second Respondent whether, during the meeting on 9 April 2010 he “had raised (his) voice” and whether he repeatedly “stood and sat in an agitated fashion”. Mr Craig responded by, immediately raising his voice, pointing his finger at Mr Granger and stating, in an angry manner, words to the effect that “I have just been accused of assaulting someone in the meeting”. It was quietly pointed out to Mr Craig that no such allegation had been made against him to which he responded matter of factly “well that’s how I interpreted it!”;
b.It was put to him by Counsel for the first Respondent that the purpose of the meeting on 9 April 2010 was “to discuss having a review” to which Mr Craig did not disagree but stated “it’s the same as a review”.
Factual Findings
Mrs Treers gave evidence in an open and forthright manner.
a.She was not overly critical of Mr Craig, acknowledging that he has difficulty remaining calm at times but that he tries to do so; and
b.She pointed out that due to difficulties that had existed as between he and her service for some time, she considered it not in his best interests that her service remain as his service provider after June 2010;
c.She appeared genuinely offended at the suggestion she and made the comment that “HACC services are for old people”.
Mr Granger’s evidence corroborated that of Mrs Treers. There was nothing about his evidence that would cause the Tribunal not to accept it.
It is likely that the dispute between the parties as to what was said on 9 April 2009 was an issue of perceptions and misunderstanding.
The description of Mr Craig’s behaviour in the meeting of 9 April 2010 given by Mrs Treers was similar to behaviour witnessed of him during the hearing.[5]
[5] As referred to at paras 33-35 of these Reasons.
Mr Craig made the comment that he considered he was talking normally during his evidence and he was not prepared to accept that he was at all angry or agitated, other than in one instance referred to at para 35(a) herein. This is either:
a.A refusal by Mr Craig to acknowledge his behaviour to others where such is obvious even to him; or
b.An indication that Mr Craig’s perception of his own presentation and behaviour at times is not the way he presents to others.
As a result of his presentation during the hearing, and his own evidence on the issue, the Tribunal formed the impression that it was more likely than not that when Mr Craig becomes frustrated:
a.He will respond defensively and in anger including raising his voice and talking over the top of other people, and
b.He is likely, at those times, to misinterpret or not fully hear comments or questions put to him.
Given Mr Craig’s own admissions that he behaved in a similar fashion at the meeting of 9 April 2010 as he did in the hearing, the Tribunal finds that it is more likely than not, that during the meeting he:
a.became agitated, and angry; and
b.he behaved by raising his voice, being defensive and argumentative; and
c.talked over the top of others at the meeting; and
d.was verbally aggressive;
e.jumped to conclusions about comments made without properly considering what was said.
Considerations
The allegation by Mr Craig is that he was directly discriminated against, by reason of his age, namely that he was not “an old person” and that his service was to be cut because of that attribute.
The onus is upon Mr Craig to show:
a.That he was treated less favourably by Mrs Treers, with such treatment being supported and/or encouraged by Mr Granger;
b.That another “old person” wanting the same service as he was seeking was, or would have been treated;
c.In same or similar circumstances;
d.Either because of his attribute or substantially because of his attribute.
The question in this case is whether Mrs Treers and/or Mr Granger stated or insinuated that Mr Craig’s transportation service would cease because Ravenshoe Community Centre and/or HACC were not prepared to fund him as he was not an “old person”.
In considering this issue, the fact that Mr Craig required special services is irrelevant and any motive of the Respondents for discriminating is irrelevant.
The Tribunal was, helpfully referred, by Counsel for the first and third Respondents to the comments of Member Mullins, in the matter of Joldic v Adams & Luca as proprietor of Sunnybank Solicitors & Adams wherein he discussed the requirements of s 10 thus:
“A comparison between the treatment of the (alleged) discriminator of the person with the attribute and the likely treatment of the discriminator (alleged) of a person without the attribute. If the person has been treated differently, ... was that treatment less favourable? If the treatment was less favourable, would the alleged discriminator have treated another person without the attribute in the same way given the circumstances?...”[6]
[6][2005] QADT 36 at para 58 – as in submission of Counsel for First and Third Respondents.
There was no evidence given by any of the parties as to what was meant by the term “old person” other than that it is someone older than Mr Craig.
Conclusions
Mr Craig went to the meeting on 9 April 2010 considering it to be an assessment of his ongoing need for transportation services, notwithstanding receipt of a letter beforehand, which set out clearly the purpose of the meeting.
Mr Craig was frustrated and annoyed at having to attend a further review, considering that the service should automatically continue, subject to funding.
The meeting commenced cordially.
When Mrs Trees raised the fact that his service was subject to a further annual HACC review regarding his ongoing need for the service, which would need to take place after this meeting, Mr Craig became angry and verbally aggressive.
The ensuing conversation contained a discussion about funding problems for Mr Craig’s particular service.
Mrs Treers mentioned that she had a number of other clients in need of services who were “frail, and elderly”.
As a result of Mr Craig’s anger, he became defensive, and misinterpreted those words spoken by Mrs Treers.
Neither Mrs Treers nor Mr Granger told or insinuated that Mr Craig’s service was to be cut.
Mrs Treers did not tell Mr Craig he was not entitled to the ongoing service because “HACCS is for old people”.
Any comments made in the 9 April 2010 meeting about “elderly” or “old” clients were made in the course of discussing the services available through Ravenshoe, and their funding difficulties generally, and did not suggest that Mr Craig was not entitled to the service because he was not “old”.
Mr Craig did not experience a cut in his services.
Mr Craig was told by Mrs Treers and/or by Mr Granger that the provision of his future transport service was subject to a further assessment being undertaken by a HACC nurse as to his need and ongoing requirement for such service.
The HACC assessment, was a normal annual assessment of any HACC client, and Mr Craig knew that to be the case.
Mr Craig reluctantly agreed, at the 9 April 2010 meeting, to undertake a further HACC assessment.
Following the assessment, further special funding was sought and obtained for Mr Craig’s service and arrangements were made for the service to continue, through a different service provider.
An alternative service provider was sourced because Mrs Treers was of the view the relationship between Ravenshoe and Mr Craig had broken down such that it was in his best interests for an alternative service provider to be appointed.
An annual HACC assessment is required for every HACC client such that any client, whether “an old person” or not (whatever the definition) would have been required to undertake the same course.
Mr Craig has not shown that he was treated less favourably than a person requiring his service would have been if they had been an “old person”.
Mr Craig does not assert that any particular term was imposed upon him. Nor does the evidence suggest such. As such there is no evidence to support a claim of indirect discrimination pursuant to s 11 of the Act.
The Application will be dismissed.
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