EY v The Store

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INDUSTRIAL COURT OF QUEENSLAND

CITATION:

EY v The Store [2021] ICQ 6

PARTIES:

EY

(appellant)

v
THE STORE

(respondent)

FILE NO/S:

C/2021/3

PROCEEDING:

Appeal

DELIVERED ON:

16 April 2021

HEARING DATE:

13 April 2021

MEMBER:

Davis J, President

ORDER/S:

1.   The appeal is dismissed.

2.   There is no order as to costs.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – DISMISSALS – UNFAIR DISMISSAL – where the appellant was employed by the respondent – where the appellant was observed on closed-circuit television (CCTV) by other employees of the respondent to be seated in an open area of the respondent’s business premises with his hand inside his shorts – where a still image of the appellant in this position was taken from the CCTV - where the respondent submits that the appellant was masturbating at the time he was observed on CCTV – where the appellant submits that he was scratching a rash caused by a medical condition at the time he was observed on CCTV – where the appellant was confronted by Mr JL and Mr NB, who were also employed by the respondent at the relevant time, about the still image of the appellant taken from the CCTV – where the respondent terminated the appellant’s employment on three grounds – where the appellant submits that the termination of his employment constitutes discrimination on the basis of the rash caused by his medical condition – where the appellant applied to the Industrial Relations Commission in relation to the alleged discrimination – where the Industrial Commissioner dismissed the appellant’s application on the basis that the rash caused by the medical condition did not constitute an impairment for the purposes of the relevant provisions of the Anti-Discrimination Act 1991 and therefore, the termination of the appellant’s employment on the basis of the rash did not constitute discrimination – where the appellant appealed the decision of the Industrial Commissioner on various grounds, including apprehended bias – whether the judgment of the Industrial Commissioner evidences an apprehension of bias, an error of law, or an excess or want of jurisdiction

Anti-Discrimination Act 1991, s 7, s 8, s 10, s 15, s 164A
Industrial Relations Act 2016, s 448, s 557

CASES:

Australian Securities and Investments Commission v Anderson (2019) 134 ACSR 105, followed
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194, followed
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, followed
Expectation Pty Ltd v PRD Realty Pty Ltd & anor (2004) 140 FCR 17, followed
Fox v Percy (2003) 214 CLR 118, cited
Lee v Lee (2019) 266 CLR 129, cited
Ondrich v Kookaburra Park Eco-Village [2009] FMCA 260, cited
Purvis v New South Wales (2003) 217 CLR 92, cited
Queensland v Forest (2008) 168 FCR 532, cited
Re JRL; Ex parte CJL (1986) 161 CLR 342, followed
Robinson Helicopter Co Inc v…

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Details
Case
[2021] ICQ 6
Decision Date

CaseChat Overview and Summary

In this appeal, Mr EY contests a decision of the Queensland Industrial Relations Commission (QIRC) that dismissed his complaint against his employer, The Store, for impairment discrimination. The QIRC found that Mr EY had not established that he suffered from an impairment, and therefore, his termination did not constitute discrimination. Mr EY argues that the QIRC's decision was flawed due to apprehended bias, error of law, and excess of jurisdiction.

The key legal issues for the court were whether the QIRC's decision evidenced an apprehension of bias, an error of law, or an excess or want of jurisdiction. The court considered Mr EY's various grounds of appeal, including bias, error of law, and excess of jurisdiction. The court found that the QIRC did not err in her decision, as Mr EY had not proved on the balance of probabilities that he was suffering from the rash at the time of the incident. The court also found that the QIRC's reliance on the pre-employment medical report for limited purposes and then using it for a wider purpose constituted an error of law. However, this error did not affect the outcome of the case.

The court concluded that the QIRC's decision was not vitiated by apprehended bias, error of law, or excess of jurisdiction. The court found that the QIRC had correctly applied the relevant provisions of the Anti-Discrimination Act 1991 and had made no error in her decision. The court dismissed Mr EY's appeal and upheld the QIRC's decision.

No orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Mr EY appeals against a decision of Industrial Commissioner Hartigan dismissing his complaint against his employer[1] for impairment discrimination which had been referred to the Queensland Industrial Relations Commission (the QIRC) by the Anti-Discrimination Commissioner.[2][1]The Store.[2]Anti-Discrimination Act 1991, s 164A.Background Mr EY was employed by The Store[3] from 30 July 2018 at its warehouse in Townsville. Mr JL was employed by The Store as its manager for Cairns and Townsville.[4][3]A pseudonym. [4]Transcript 1-41 and 1-42. Closed-circuit television (CCTV) cameras operate in the Townsville warehouse so that activities therein can be monitored by The Store employees in Sydney. On 2 and 3 October 2018, Mr EY was observed by the CCTV cameras to place his hands down the front of his shorts. A view was formed by those in Sydney (rightly or wrongly) that the video showed that Mr EY was masturbating. The CCTV footage is not in evidence, but a still from the footage was tendered as exhibit 2. That shows Mr EY sitting on a chair with his shorts pulled down sufficiently to show the top of his left thigh. His left hand can be seen reaching into the front of his shorts. In Mr EY’s right hand is a mobile telephone. Mr EY accepts that he put his hands down the front of his shorts. He says that he was not masturbating but was scratching his skin as a result of irritation caused by a medical condition which results in a rash. His evidence was that he had suffered from this rash for many years. Exhibit 2 shows clearly enough Mr EY with his hand down the front of his shorts but does not resolve the matter of contention: what was Mr EY doing with his hand? On or about 8 October, Mr JL and Mr NB (another employee of The Store) attended at the Townsville warehouse and confronted Mr EY with the photograph taken from the CCTV footage. Mr EY’s employment was terminated. Mr JL says that the reasons for the termination were threefold:1.Mr EY’s alleged poor work performance;2.Mr EY assaulted Mr JL at the 8 October meeting. That allegation was a matter very much in contention;3.Mr EY masturbated in the warehouse. Again, that was a matter of contention. Mr EY’s case was that he was discriminated against by The Store and Mr JL on the basis that he was suffering an impairment, namely the rash which caused him to scratch. He said that his employment was terminated as he was discriminated against in relation to the skin condition.The Queensland Industrial Relations Commission’s decision The Industrial Commissioner directed herself to the relevant provisions of the Anti-Discrimination Act 1991 (the ADA)[5] and in the process identified Mr EY’s case as one of direct discrimination[6] in the work area[7] on the basis of an attribute.[8][5]In particular, ss 7, 8, 10 and 15.[6]Section 10.[7]Section 15.[8]Section 7(a) and (h). The Industrial Commissioner then posed herself the following questions:Question 1:Did Mr EY suffer from an impairment?[9]Question 2:If so, was he discriminated against?[10]Question 3:If so, was there a causal connection between the discrimination and the attribute, namely the impairment? In other words, was Mr EY treated less favourably “on the basis of [the] attribute”?[11][9]Primary judgment commencing at [26].[10]Commencing at [57].[11]Section 10.

Evidence

Evidence Before The Court

The ultimate conclusions made by the Industrial Commissioner appear at paragraph [46] of the judgment. I have set this out earlier.[32] I set it out again so as to highlight particular parts which concern Dr Wilke’s evidence:“[46] I accept on the evidence that Mr EY has had a history whereby he suffered from a rash in the area between his abdominal wall and pubic bone. The difficulty for Mr EY is that there is no evidence, of probative value, that establishes that he was suffering from the rash on 2 and 3 October 2018. The evidence of Ms SY is that Mr EY’ rash went away after a cream and taking oral medical, although, she recalls Mr EY stating that the rash returned at some later stage. The evidence of Dr Mercado was that on 18 May 2017, Mr EY complained of the rash, yet there is no record of any complaint about the rash taken in the consultation on 3 July 2017. The evidence contained in the pre-employment medical assessment, suggests that the rash was not present at the time of the examination. There is no evidence that the rash then later returned. Relevantly, Mr EY did not adduce any additional evidence beyond his own evidence that supports that the rash was present on 2 and 3 October 2018. I am not satisfied that Mr EY has established, to the requisite standard, that the rash was present at the time of the alleged discriminatory conduct.” (emphasis added)[32]Paragraph [33] of this judgment. In paragraph [42] of the Industrial Commissioner’s judgment, there is reference to The Store’s reliance on the pre-employment medical examination.[33] This report is described as consisting of two parts being the questionnaire completed by Mr EY and the medical examination conducted by Dr Wilkie. That is factually correct although if the reference to the medical examination is a reference to the results of that examination then those results were not in evidence. The document was admitted into evidence for the limited basis of recording the answers which Mr EY gave to the questionnaire.[33]Exhibit 4. In paragraph [44] of the Industrial Commissioner’s judgment she records Dr Wilkie’s findings. Further findings of Dr Wilkie are referred to at paragraph [45]. The result of Dr Wilke’s examination was not in evidence, consistently with the ruling made to admit the report as exhibit 4. In paragraph [46] of the judgment when recording the conclusions that she has drawn the Industrial Commissioner said “The evidence contained in the pre-employment medical assessment, suggests that the rash was not present at the time of the examination”. Any fair reading of paragraphs [42]-[46] of the judgment leads to the conclusion that the reference to “the evidence contained in the pre-employment medical assessment” is a reference to both parts of exhibit 4 as identified in paragraph [42] namely the questionnaire and the medical examination conducted by Dr Wilkie. Mr Gaynor’s submission to the contrary is rejected. It follows then that the Industrial Commissioner has admitted the pre-employment medical report on a limited basis (to record Mr EY’s answers given to Dr Wilkie) but specifically not for the purpose of introducing Dr Wilkie’s opinions, and then used the evidence of Dr Wilkie’s observations (recorded in the report) that there were no skin irregularities observed on Mr EY. Introducing exhibit 4 for a limited purpose and then using it for a wider purpose constitutes an error of law.

Decision

Reasons for decision

Mr EY’s case was that he was discriminated against by The Store and Mr JL on the basis that he was suffering an impairment, namely the rash which caused him to scratch. He said that his employment was terminated as he was discriminated against in relation to the skin condition.The Queensland Industrial Relations Commission’s decision The Industrial Commissioner directed herself to the relevant provisions of the Anti-Discrimination Act 1991 (the ADA)[5] and in the process identified Mr EY’s case as one of direct discrimination[6] in the work area[7] on the basis of an attribute.[8][5]In particular, ss 7, 8, 10 and 15.[6]Section 10.[7]Section 15.[8]Section 7(a) and (h). The Industrial Commissioner then posed herself the following questions:Question 1:Did Mr EY suffer from an impairment?[9]Question 2:If so, was he discriminated against?[10]Question 3:If so, was there a causal connection between the discrimination and the attribute, namely the impairment? In other words, was Mr EY treated less favourably “on the basis of [the] attribute”?[11][9]Primary judgment commencing at [26].[10]Commencing at [57].[11]Section 10. Mr EY gave evidence in support of his own case and he called three witnesses, Dr Miguelito Mercado, Ms SY and Mr NB. Dr Mercado gave evidence that Mr EY had consulted him on 18 May 2017, about 17 months before the confrontation with Mr JL. He observed a rash on Mr EY’ abdomen and prescribed a corticosteroid ointment. He said that the rash would be “itchy” but he had no note, and it seems, no recollection of Mr EY complaining that the rash was itchy.[12][12]T 1-16. Ms SY is Mr EY’s former wife. They were married for some time but separated about three years before the hearing in the QIRC; so about late 2017.[13] Ms SY confirmed that Mr EY suffered from a skin condition.[14][13]T 1-33.[14]Her evidence is referred to in more detail later. Mr NB gave short evidence about the confrontation between Mr EY and Mr JL. He said that Mr JL dismissed Mr EY who asserted that he had a rash and that he was scratching, not masturbating. Mr NB said that Mr EY said that he should hit Mr JL. It was not put to Mr NB by Mr JL that Mr EY struck Mr JL.[15][15]T 1-38 to 1-41. Mr JL gave evidence that he became aware that Mr EY had been seen on CCTV cameras in the warehouse with his hands down the front of his shorts. In the company of Mr NB, he confronted Mr EY on 8 October 2018. Mr JL’s evidence was that, when confronted, Mr EY did not mention the rash, but assaulted Mr JL by pushing him twice.[16] Mr JL said that the termination of Mr EY’ employment was unrelated to any rash, of which he had no knowledge until later.[17][16]T 1-44 to 1-46[17]T 1-46. To the extent it is necessary to analyse the evidence further, I do so when considering the grounds of appeal. The Industrial Commissioner answered Question 1 in the negative, finding:(a)that Mr EY had not proved on the balance of probabilities that he was suffering from the rash[18] at the time of the incident on 8 October 2018;[19](b)had Mr EY been suffering from the rash as he alleged, it was not, as a matter of law an “impairment” as it was not “… a disorder, illness or disease that affects [his] thought process, perception of reality, emotions, judgment or that results in disturbing behaviour”;[20][18]The relevant impairment. [19]Reasons, paragraph [46].[20]See definition of “impairment” in Schedule 1, paragraph (d) of the Anti-Discrimination Act 1991. Reasons at [47]-[54].

Ratio Decidendi

Legal Principle Established

I heard oral submissions on behalf of The Store, but reserved the question as to the extent (if any) that I would take any submissions into account given its disregard of the directions. I have only considered the shallow submissions advanced by The Store to the extent that I mention and deal with them in these reasons.Consideration of the grounds of appeal Mr EY had not turned his mind to the legal nature of the appeal. Many of his complaints dispute factual findings. However, most of these factual findings are challenged in support of a ground alleging bias. If bias, or apprehended bias, is made out, then the decision is one made beyond jurisdiction. I have approached the consideration of the appeal on the basis that the individual complaints in paragraphs 2(i)-(v) of Mr EY’s written submissions form particulars of the broader allegation in paragraph 2 (bias) but that each also are independent grounds some of which require leave. Mr Gaynor accepted that this approach was appropriate. I have, for convenience, adopted the numbering of the paragraphs in the submissions as they appear in paragraph [20] of these reasons.Paragraph 1 Paragraph 1 does not contain any ground of complaint other than the decision below was “in error”. The paragraph then introduces the complaints that follow as “some of the many reasons” why the decision was in error. There is no warrant, in an appeal of this nature, to engage in a broad assessment of the Industrial Commissioner’s decision. Mr EY must identify and demonstrate error[26] whether in law or excess of jurisdiction or, with leave, an error of fact. I shall not be looking beyond the particularised complaints.[26]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194 at [12] and [14].Paragraph 2 Paragraph 2 alleges bias. In Australia, a decision is vitiated if apprehended bias is proved. Mason J (as his Honour then was) in Re JRL; Ex parte CJL,[27] observed:“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.”[28][27](1986) 161 CLR 342.[28]At 352 and see also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345. Paragraph 2 is similar to paragraph 1 in that the complaints listed in paragraphs 2(i) to (v) and 3 are not meant to be an exhaustive list. For the reasons already explained, I will not be looking beyond the particularised complaints.Paragraph 2(i) The findings made by the Industrial Commissioner concerning Ms SY, and other mentions of her, can be found at paragraphs [31], [32], [33], [34], [35], [46] and [49] of the judgment. They are as follows:“[31] Mr and Ms SY were married for approximately 20 years and separated in or about April 2016. [32]Ms SY gave evidence that during the course of their relationship, Mr EY, had a rash between his belly button and pubic bone area. [33]Under questioning, Ms SY also indicated that the rash was also on Mr EY’s ‘behind as well’. Ms SY’s evidence was that during the course of their relationship, Mr EY attended several medical practitioners together with ‘herbalists’ and naturopaths to try to resolve the rash. Her evidence was that Mr EY resorted to medication, over the counter remedies and natural remedies.[34]Ms SY’s evidence was that Mr EY would try and rub the rash on the outside of his shorts, if they were in public. She says that Mr EY would ultimately have to excuse himself to go to the bathroom or a private area to scratch his rash properly. Ms SY described the nature of the rash as follows:‘…It used to just sit there all the time. It didn’t matter if, like, it was cold or hot or, like, clothes on and off. It didn’t matter. It just used to always be there and always itchy and [indistinct] and disgusting. And then I do remember him going to a doctor and the doctor did give him some – like, a – a cream and an oral medication. And after him taking that for about a week, I do remember the rash going away. But then shortly after that, we separated. So I couldn’t even tell you if it worked or not.[35]Ms SY’s evidence is that following her separation from Mr EY, she recalled him saying in conversation that his rash had returned. …[46]I accept on the evidence that Mr EY has had a history whereby he suffered from a rash in the area between his abdominal wall and pubic bone. The difficulty for Mr EY is that there is no evidence, of probative value, that establishes that he was suffering from the rash on 2 and 3 October 2018. The evidence of Ms SY is that Mr EY’s rash went away after a cream and taking oral medical,[29] although, she recalls Mr EY stating that the rash returned at some later stage. The evidence of Dr Mercado was that on 18 May 2017, Mr EY complained of the rash, yet there is no record of any complaint about the rash taken in the consultation on 3 July 2017.[30] The evidence contained in the pre-employment medical assessment, suggests that the rash was not present at the time of the examination. There is no evidence that the rash then later returned. Relevantly, Mr EY did not adduce any additional evidence beyond his own evidence that supports that the rash was present on 2 and 3 October 2018. I am not satisfied that Mr EY has established, to the requisite standard, that the rash was present at the time of the alleged discriminatory conduct. [49]Firstly, the weight of the evidence is that Mr EY was able to exercise some control over his urge to scratch. Ms SY’s evidence was that Mr EY would initially scratch his rash through his clothes and, if necessary, would excuse himself and go to a public toilet or other private area if he felt an urge to scratch. This supports a conclusion that when the rash was present, Mr EY was able to exercise control over when and how he scratched the itch.”[29]Should read “medicine”.[30]See also primary judgment [41].