EY v The Store

[2021] QIRC 16

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

PARTIES:

EY v The Store [2021] QIRC 016

EY
(Applicant)

v

The Store
(Respondent)

CASE NO:

AD/2019/29

PROCEEDING:

Referral of complaint

DELIVERED ON:

15 January 2021

HEARD AT:

HEARING DATE: 

Townsville

4 June 2020

MEMBER:

Hartigan IC

ORDER:

CATCHWORDS:

1.    The complaint is dismissed.

2.    I will hear the parties as to costs.

ANTI-DISCRIMINATION – INDUSTRIAL LAW – Direct discrimination – embarrassment – whether applicant impaired at the relevant time – whether applicant less favourably treated. 

LEGISLATION:

Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 10, s 11, s, 136, s 141, s 166, s 204, s 205, s 206, s 276

CASES:

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498

Briginshaw v Briginshaw [1938] 60 CLR 336

Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5

Curren v yourtown & Anor [2019] QIRC 059

Edoo v Minister for Health [2010] WASAT 74

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd  (1992) 110 ALR 449; [1992] HCA 66

Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; 217 CLR 92; 78 ALJR 1; 202 ALR 133

Woodforth v State of Queensland [2017] QCA 100

Wright v Callvm Vacheron Wallace Bishop & Anor [2018] QIRC 007

APPEARANCES: 

Mr EY, applicant in the matter

Mr JL, agent for the respondent

Reasons for the Decision

Introduction 

1. Mr EY filed a complaint with the Anti-Discrimination Commission Queensland ("ADCQ") on 16 October 2018, alleging that he had been discriminated against on the basis of an impairment by his then employer, the Store ("First Respondent") and Mr JL.

2. On 13 November 2018, the complaint was accepted pursuant to ss 136 and 141 of the Anti-Discrimination Act 1991 (Qld) ("ADA"). The complaint was then referred to the Queensland Industrial Relations Commission ("the Tribunal") pursuant to s 166(1)(a) and s 276(2)(a) of the ADA. The referral notice,[1] relevantly states that the "complaint related to or includes work or the work-related area" and was treated as alleging "impairment discrimination in the area of work."

   [1] Filed with the Tribunal on 8 April 2019.

3. Mr EY commenced employment with the First Respondent on 30 July 2018 and was employed at a warehouse in Townsville. He was the only employee permanently situated at the warehouse in Townsville, however, he was in communication with Mr JL, whose position included managing the First Respondent's Townsville warehouse, on a regular basis.

4. The warehouse in Townsville was able to be observed by staff of the First Respondent, located in its Sydney premises, by the use of CCTV cameras.

5. On 2 and 3 October 2018, whilst Mr EY was in the office area of the warehouse, it was alleged by the Respondents that Mr EY was observed on CCTV footage by staff members of the First Respondent, located in Sydney. Those staff members reported that they saw Mr EY put his hand down the front of his shorts and appeared to masturbate.[2]

   [2] Respondents' Response…