Crust v Flour & Chocolate Pty Ltd - [2024] QIRC 288

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Crust v Flour & Chocolate Pty Ltd & Anor [2024] QIRC 288
PARTIES:	Crust, Simon (Complainant) v Flour & Chocolate Pty Ltd (First Respondent) & Scott, Lachlan (Second Respondent)
CASE NO:	AD/2022/71
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	6 December 2024
MEMBER: HEARD AT:	Dwyer IC On the papers
ORDER:	The Orders contained in paragraph [95] of these Reasons for Decision
CATCHWORDS:	ANTI-DISCRIMINATION ¾ QUEENSLAND – PRACTICE AND PROCEDURE – PLEADINGS – STRIKING OUT – application in existing proceedings to strike out specified paragraphs of the complainant’s amended statement of facts and contentions – impugned pleadings technically incorrect – impugned pleadings rely on definition of direct discrimination per section 5 of Disability Discrimination Act 1992 (Cth) – source of Commission’s power to strike out pleadings – principles concerning striking out pleadings – facts reveal conventional discrimination complaint – proper remedy for case inadequately pleaded – application to strike out pleadings dismissed – order to amend pleadings
LEGISLATION:	Anti-Discrimination Act 1991 (Qld) s 5, s 10, s 35, s 166 Disability Discrimination Act 1992 (Cth) s 5 Industrial Relations Act 2016 (Qld) s 447, s 451, s 539, s 541
CASES:	Agar v Hyde (2000) 201 CLR 552 Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82 Bond v State of Queensland (No.2) [2020] QIRC 078 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 Equititrust Ltd v Tucker (No 2) [2019] QSC 248 Queensland Police Union of Employees v HS First Inc. [2023] QIRC 030 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 Together Queensland Industrial Union of Employees vScales & Anor (No 3) [2022] QIRC 024

Reasons for Decision

Background

On 13 October 2021, Mr Simon Crust (‘the complainant’) complained to the Queensland Human Rights Commission (‘QHRC’) that Flour & Chocolate Pty Ltd and Lachlan Scott (‘the respondents’) discriminated against him on the basis of impairment in contravention of the Anti-Discrimination Act 1991 (Qld) (‘AD Act’).
It is useful to briefly summarise the salient facts of the substantive complaint. The complainant is hearing impaired. He applied for employment and was employed by the respondent in January 2021. The respondent is an industrial bakery and has strict policies against staff smoking at any time during their shift. It is a matter of contention between the parties as to whether the complainant was made aware of or understood the no smoking policy.
Within weeks of commencing his employment the complainant left the premises during an authorised break to smoke in the carpark. Upon being observed, he admitted smoking and was subsequently dismissed in February 2021. In broad terms the complainant contends that the termination of his employment amounts to discrimination on the basis of the attribute of impairment. Additionally, the complainant alleges he was denied certain opportunities or treated unfavourably within the meaning of s 15 of the AD Act.
On 15 August 2022, the parties participated in a conciliation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Crust v Flour & Chocolate Pty Ltd

Details

AGLC: Crust v Flour & Chocolate Pty Ltd [2024] QIRC 288
Case: [2024] QIRC 288
Decision Date: 6 December 2024

CaseChat Overview and Summary

Crust initiated proceedings against Flour & Chocolate Pty Ltd in the Australian court, alleging discrimination based on disability under the Disability Discrimination Act 1992 (Cth) and the Anti-Discrimination Act 1991 (Qld). Crust claimed that Flour & Chocolate Pty Ltd failed to provide reasonable adjustments for his disability, failed to inform him about a smoking policy, and discriminated against him by not offering procedural fairness. The respondents sought to strike out certain paragraphs of Crust's amended statement of facts and contentions, arguing they were technically incorrect and inadequately pleaded. The court had to determine whether the impugned pleadings were sufficiently clear and comprehensive, and if not, whether they could be amended or if the proceedings should be dismissed.

The court examined the pleadings and found them to be technically incorrect but noted that they did not warrant dismissal of the entire proceeding. The court emphasised that while procedural fairness required each party to describe their case comprehensively, it did not impose an onerous requirement of technical precision. The court held that the pleadings contained sufficient allegations of discrimination based on disability, though they could have been more clearly articulated. The court dismissed the application to strike out the pleadings but ordered Crust to file a further amended statement of facts and contentions addressing the deficiencies. The court found that the pleadings could be amended to meet the required standard of clarity and comprehensiveness, and that dismissing the proceeding would not be in the public interest.

In its decision, the court referred to section 539(d) of the Industrial Relations Act 1991 (Qld) as the primary source of power to allow amendment of claims, rather than section 541 which pertains to dismissing or refraining from hearing an entire cause. The court noted that the impugned pleadings, while flawed, did not warrant dismissal of the entire proceeding. Instead, the court ordered Crust to amend the pleadings to address the identified deficiencies. The court also highlighted the importance of distinguishing between parties genuinely seeking to ascertain the issues to be tried and those engaging in strategic delay and cost-building.

The court's final orders included dismissing the application to strike out the impugned pleadings, ordering Crust to file a further amended statement of facts and contentions, and listing the matter for mention to make further directions. The court emphasized the need for the parties to resolve their differences either through settlement or by reaching an agreed position on the pleadings to avoid unnecessary costs and delays.

Orders

Orders of the court

The Orders contained in paragraph [95] of these Reasons for Decision

Background

Background to the litigation

For all of the foregoing reasons, pursuant to s 451 of the IR Act, it is the order of the Commission that:1.The Application to strike out paragraphs 12, 13, 17, 18, 28, 30, 31, 32 and 33(a) of the complainant’s Amended Statement of Facts and Contentions (filed 25 November 2022) is refused;2.The complainant is to file and serve a Further Amended Statement of Facts and Contentions addressing (but not limited to) the deficiencies identified in these reasons at paragraphs 12, 13, 17, 18, 28, 30, 31, 32 and 33(a) of his Amended Statement of Facts and Contentions (filed 25 November 2022); 3.The matter will be listed for mention in the week commencing 27 January 2025 to make directions regarding Order 2 above and any other directions as required or requested; The Second Respondenta. failed to consider whether or not the Complainant required reasonable adjustments in order to understand that the two-step process constituted his induction;b. in the absence of considering or providing reasonable adjustments consistent with the Complainant's impairment, failed to take reasonable steps to ensure the Complainant understood the two-step process constituted his induction;c. in the absence of considering or providing reasonable adjustments consistent with the Complainant's impairment, failed to take reasonable steps to ensure the Complainant could comprehend the two-step process constituting his induction;d. failed to advise, make aware or notify the complainant that the two-step process constituted his induction. In failing to consider what reasonable adjustments were necessary and to take steps to implement those temporary adjustments to enable the Complainant to understand the First Respondent's policies the Second Respondent discriminated against the Complainant. In failing to provide the Complainant with a copy of the 'Smoking Policy', or comply with its terms, the First Respondent discriminated against the Applicant. The Second Respondent failed to ensure the 'Smoking Policy' was properly disseminated to a worker with an impairment and failed to comply with the Policy when he failed to consider or implement the recommendations, namely In summarily dismissing the Complainant the Second Respondent breached the Smoking Policy preferred response in the event that an employee is non-compliant with the Policy when he failed or refused to –a. explain the details and importance of The Policy to the Complainant;b. provide individual education to the Complainant;c. make further attempts to assist the Complainant in understanding and adhering to The Policy; and The First and Second Respondent discriminated against the Complainant by failing to provide the Complainant with procedural fairness by neglecting to:a. notify the Complainant that the 'Smoking Policy' existed;b. provide the Complainant with a copy of The Policy in a language the Complainant could understand;c. adequately explain the 'Smoking Policy' in a language the Complainant could understand;d. educate the Complainant on the implementation of the 'Smoking Policy';e. assist the Complainant in understanding and adhering to the 'Smoking Policy';f. provide the Complainant with a warning or preliminary direction by management when he inadvertently breached the 'Smoking Policy' in circumstances where he had no actual or constructive knowledge of the Policy;g. provide reasonable adjustments to facilitate the Complainant's ongoing employment.

Evidence

Evidence Before The Court

In any event, the current (and repealed) version of s 208 of the AD Act, while differently worded, both deal with principles for the Commission’s evaluation of evidence in proceedings under the AD Act. It is not clear why the complainant relies on s 208 of the (repealed) AD Act to address asserted deficiencies in his pleadings. If the purpose for the submission is to assert that the pleadings contained in a SOFC are less than important in the context of the (historically) ‘non-technical’ approach prescribed for hearings by the (repealed) AD Act, such a submission is misconceived. Procedural fairness requires that each party to such proceedings must plainly but comprehensively describe the case they intend to advance in their respective SOFCs. Further, the pleaded case ought to be clear well before any hearing of the matter. That is not to say that the Commission imposes an onerous requirement of technical precision on parties. Clarity and comprehensiveness are all that is required. However, where a party is legally represented it would not be unreasonable to expect they would (at very least) be able to furnish a SOFC that clearly pleads their case within the statutory framework within which it is made. The complainant has not done that in this matter. If it were the intention of the complainant to contend discrimination within the meaning of s 10 of the AD Act on the basis of his impairment, it is beyond trite to observe that his SOFC should (at least) contain a reference to ‘less favourable treatment’ ‘on the basis of his impairment’ and accompanying particulars.[16][16] NB: there is a distinctly different meaning to the terms ‘less favourable treatment’ as it appears in section 10 of the AD act and ‘treating a worker unfavourably’ as it appears in section 15 of the AD Act. The remainder of the complainant’s submissions simply reject the criticism of the impugned pleadings in very general terms and seek to invoke inter alia the use of the term ‘reasonable adjustments’ on the QHRC website as a legitimate basis for the pleading. It would be a novel approach to litigation indeed where causes of action were able to be drawn from text extracted from explanatory text on the website of a given court or tribunal. Suffice to say this submission is as perplexing as it is misconceived. Having regard to the complainant’s submissions in response to this application, it appears he is prepared to argue all manner of misconceived arguments rather than concede an obvious (but not fatal) flaw in his pleadings. But, in fairness to the complainant, the desperate strategies to defend his flawed pleadings are likely in no small way due to the somewhat inconsistent approach of the respondents in this matter. The primary remedy sought in the interlocutory application is that ‘proceeding AD/2022/71 be dismissed’.[17] Much of the complainant’s effort in his submission is therefore (understandably) devoted to defending his entire proceeding, without specific reference to the impugned pleadings. Unhelpfully, the respondents’ submissions supporting the interlocutory application do not elaborate on this proposed order. But they do not resile from it either. [17] The striking out of the impugned pleadings appears second on the list of ‘orders sought’ in the Form 4. It is not expressed as an alternative outcome sought by the respondents.

Decision

Reasons for decision

Section 541 of the IR Act relevantly provides:541 Decisions generallyThe court or commission may, in an industrial cause do any of the following—…(b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—(i) the cause is trivial; or(ii) further proceedings by the court or commission are not necessary or desirable in the public interest;(Emphasis added) I do not consider that s 541 of the IR Act is the most appropriate source of the Commission’s power to strike out pleadings. The opening portion of s 541 of the IR Act refers to an ‘industrial cause’. An industrial cause is defined at Sch 5 of the IR Act to include:· An industrial matter· An industrial dispute· A work-related matter under the AD Act· Another matter within the jurisdiction of the commission.(Underlining added) The term ‘cause’ used throughout s 541 of the IR Act appears to be a reference to the term ‘industrial cause’ as it appears at the commencement of the section. Further, in my view, both ‘cause’ or ‘industrial cause’ carry a connotation of totality, particularly when read in conjunction with Sch 5 of the IR Act and the consistent use of the terms ‘matter’ and ‘dispute’. In my view the language of s 541 of the IR Act arguably limits the discretion granted to circumstances where consideration is being invited or given to dismissing or refraining from hearing ‘the cause’ i.e. the entire cause. I do not consider that the language of the section comfortably extends to a construction that expands the power granted by the section to include a power to e.g. ‘dismiss the cause or part of the cause’. It may be the case that a ‘cause’ may contain divisible parts which, while interrelated, are each an individual cause in their own right. There may ultimately be some circumstances where those portions of such a claim are sufficiently distinct such that s 541 of the IR Act could be utilised to dismiss or refrain from further hearing them, but that is not the case here. For the reasons that immediately follow, I consider there are other sources of power contained in the IR Act that more appropriately apply to an application of this nature. In the circumstances I do not intend to further consider the submissions of the respondents on matters of public interest pursuant to s 541 of the IR Act. Express powers to allow amendment The Commission’s express powers to allow amendment of claims is primarily derived from s 539(d) of the IR Act, [2] which relevantly provides:[2] There is arguably also some power to allow amendment inferentially derived from s 536(d) of the IR Act and Rule 41(2)(e) of the Industrial Relations (Tribunals) Rules 2011 (Qld). See also Bond v State of Queensland (No.2) [2020] QIRC 078. The term ‘claims’ is not defined in the IR Act. The ordinary meaning of the term is broad. Section 539(d) of the IR Act incorporates the term ‘claims’ with ‘in the proceedings’ which contemplates all parts of an application or proceeding that contain ‘claims’. Further, it sufficiently broad to incorporate claims of both factual and legal nature. The term ‘claim’ would therefore include claims made by or within a SOFC.

Ratio Decidendi

Legal Principle Established

Importantly, in considering applications impugning pleadings, there is a need to draw a clear distinction between the party who is genuinely interested in ascertaining what issues are to be tried and the case that must be met, and the party engaged in sophistry who is interested in strategic advantage of delay and cost building, and who feigns ignorance of the substantive issues contained in the pleadings and the case required to be met.[11] [11] Ibid [10], [12]. Consideration The controversy between the parties in these interlocutory proceedings is narrow and simple. It is a controversy that reasonably minded opponents ought to have been able to resolve between themselves. Regrettably there was no such accord and, it seems to me, that the combative posturing of both parties has produced additional expense and delay in the progress of the substantive matter. Following earlier challenges to the pleadings the parties participated in a conciliation conference. Without identifying positions adopted by each party, the final portion of the transcript of that conference reflects that the parties had properly embraced the conference as an opportunity to explore a resolution of the matter. Discussions were to be ongoing beyond the conference.[12] [12] T 1-10, ll 15-36. For completeness it is proper to note generally that resolution at conferences of this type invariably occur without any admission of liability or formal concessions of any kind. The same portion of transcript further reflects that if resolution was not able to be achieved from further discussions, then an application of the type now being dealt with was foreshadowed by the respondents. Settlement was not reached, and the interlocutory proceedings began. While there may be facts not currently before the Commission that place a different complexion on the deterioration of settlement discussions in this matter, it is an outcome that seemed only remotely likely at the close of the conference. In those circumstances I cannot help but lament the failure of the parties in this instance to either resolve the substantive matter or alternatively, to reach an agreed position on the impugned pleadings without additional cost and delay associated with this interlocutory conflict. The impugned pleadings The complaint in this matter is brought pursuant to the AD Act and, more particularly, Ss 10 and 15 of that Act. The impugned pleadings plainly contemplate a case that, in large part, relies on the relevant provisions of s 5 of the DD Act, an Act of the Commonwealth that has no application in these proceedings. For this reason, the criticism of the impugned pleadings by the respondent is entirely (technically) correct. For completeness, and to be fair to the complainant, there are parts of the pleadings that plainly draw on the elements of s 15 of the AD Act. But these sit within the context of the flawed pleadings that the respondent had a positive obligation to make reasonable adjustments. The glaring distinction between s 5 of the DD Act and s 10 of the AD Act is that the DD Act incorporates a failure to make ‘reasonable adjustments’ into its definition of ‘direct disability discrimination’ whereas, the definition at s 10 of the AD Act proscribes ‘less favourable treatment’ on the basis of the protected attribute.The dispute about the impugned pleadings