Fleming v Reid - [2022] QIRC 122

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Fleming v Reid & Anor [2022] QIRC 122
PARTIES:	Fleming, Frances (Complainant) v Reid, Michele (First Respondent) & MZG Investments Pty Ltd as trustee for MZG Unit Trust (t/a Harcourts Harvey Bay) (Second Respondent)
CASE NO.:	AD/2020/96
PROCEEDING:	Referral of Complaint
DELIVERED ON:	1 April 2022
HEARING DATE:	24-25 November 2021 14 February 2022
MEMBER:	Pidgeon IC
HEARD AT:	Hervey Bay, Brisbane
ORDERS:	The complaints are dismissed.
CATCHWORDS:	HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY - complainant was employed by the respondents - complaint made with Queensland Human Rights Commission alleging complainant had been subject of unlawful discrimination in contravention of the Anti-Discrimination Act 1991 - complaint referred to Queensland Industrial Relations Commission for determination - whether the complainant was subject of direct and/or indirect discrimination - whether there was a term imposed on the complainant by the respondents - whether the respondents treated or proposed to treat the complainant less favourably than another person without the complainant's protected attribute
LEGISLATION:	Anti-Discrimination Act 1991, ss 7, 8, 10, 11, 15, and 205
CASES:	Curran v yourtown & Anor [2019] QIRC 059 Marsden v State of Queensland & Ors [2019] QCAT 183 Petrak v Griffith University & Ors [2020] QCAT 351 Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; 217 CLR 92; 202 ALR 133; 78 ALJR 1 (November 2003) Woodforth v State of Queensland [2017] QCA 100
APPEARANCES:	Mr C Van Oeveren of Human Rights Claims for the Complainant Mr D Lang of Lewis & McNamara Solicitors for the Respondents

Reasons for Decision

Background

Ms Frances Fleming worked on a full-time basis at Harcourts Hervey Bay, commencing work on 1 February 2016 as an Office/Sales Administrator and subsequently promoted to the role of Office Manager/Administrator.

Ms Fleming was employed by the Second Respondent, MZG Investments Pty Ltd.[1] The First Respondent, Ms Michele Reid, was the Principal and Director of the Second Respondent.
[1] ABN 60 836 617 947.
As will be set out in detail below, Ms Fleming had cause to take leave from her role twice in 2019. The first was when her father, who lived in Western Australia, had a stroke. The second was when she took a period of leave to receive surgery on her hand and to recover from the operation.
During this period of time, Ms Fleming's employer, Ms Reid, made a series of decisions ultimately culminating in a restructure of staff roles and a proposal to vary Ms Fleming's role by reducing her duties and hours of work.
Ms Fleming contends that she suffered direct and indirect discrimination on the basis of her attributes of family responsibility and impairment and the related characteristic of requiring time off work at short notice.
The Respondents say they have not discriminated against Ms Fleming, either directly or indirectly.
While the evidence before the Commission provided a comprehensive picture of the events that occurred during the relevant period of time. I have also been…

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.

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Details

Case: [2022] QIRC 122
Decision Date: 1 April 2022

CaseChat Overview and Summary

Frances Fleming, the complainant, filed a complaint with the Queensland Human Rights Commission alleging she had been subjected to unlawful discrimination in contravention of the Anti-Discrimination Act 1991 (AD Act). The complaint was referred to the Queensland Industrial Relations Commission for determination. The primary issue before the court was whether Ms Fleming had been subject to direct or indirect discrimination by the respondents, Michele Reid and the second respondent. Additionally, the court needed to determine if there was a term imposed on Ms Fleming by the respondents and whether she was treated less favourably than another person without her protected attribute.

The court found that Ms Fleming had not been subjected to either direct or indirect discrimination. The evidence did not support the claim that the respondents imposed a term on Ms Fleming that she could not comply with. Ms Fleming was granted leave on two occasions and the respondents took steps to ensure her duties were covered in her absence. The decision to train another employee to cover Ms Fleming's duties was reasonable and did not cause her any detriment. The court concluded that the variation to Ms Fleming's role was motivated by operational efficiencies rather than her family responsibilities or impairments.

The court ultimately dismissed the complaints, finding no evidence of discrimination. The reasoning was based on the factual matrix provided, including the approval of Ms Fleming's leave requests and the reasonable steps taken by the respondents to manage her absence. The court did not find that the correspondence sent to Ms Fleming amounted to a dismissal or constituted a discriminatory action. Consequently, the complaints were dismissed, and no further consideration of damages was required.

Orders

Orders of the court

The complaints are dismissed.

Background

Background to the litigation

For the reasons which follow, I find that Ms Fleming has been unable to establish that she suffered indirect discrimination or direct discrimination. Preliminary matters: agreed facts Restructured Staffing Arrangements The parties provide the following agreed facts regarding the restructured staffing arrangementsa. During the Applicant's absence in June-July 2019 Ms Reid contacted the Applicant regarding work matters that were required to be dealt with during the end of the financial year.b. After the Applicant returned from her absence in June and July 2019 Ms Reid spoke to the Applicant about the difficulties the Respondent experienced in the Applicant's absence. c. Ms Reid expressed concerns to the Applicant that the Applicant was the only person with knowledge of the financial aspects of the business necessary to complete end of year financial obligations.d. In or around late August 2019 the Respondents employed a junior receptionist, Ms Maddison Newman. e. In or around early November 2019, the Applicant trained Ms Vanessa Rosario, Receptionist, in the performance of the Applicant's role in advance of the Applicant's absence.f. In or around early November 2019, the Respondents engaged Paula Cheeseman as a bookkeeper to assist with financial aspects of the Applicant's role during the Applicant's absence.[2] [2] Joint statement of agreed and contested facts filed in the Industrial Registry 18 November 2021, [7]. I note throughout the submissions of the parties, Ms Fleming is identified as an Applicant rather than Complainant. Role Restructure The parties provide the following agreed facts regarding the role restructurea. On 17 December 2019, the Respondents sent an email to the Applicant in relation to the variation of the Applicant's terms of employment.i.The email enclosed a letter dated 16 December 2019 and a letter dated 18 December 2019.b. The same documents were subsequently communicated to the Applicant by express post.c. The Applicant responded to the letters of 16 and 18 December 2021 via correspondence dated 19 December 2021.d. On 20 December 2019, the Respondent sent further correspondence to the Applicant regarding the variation of the Applicant's terms of employment.The evidence before the Commission The Commission heard from the following witnesses:·Ms Frances Fleming, Complainant;·Ms Michele Reid, named Respondent, Owner of Second Respondent and Principal of Harcourts Hervey Bay;·Mr Gregory Prange, previous business partner of Ms Reid, now retired;·Ms Paula Cheeseman, contract bookkeeper; and ·Dr Ashwani Garg Ms Fleming told the Commission that her role involved 'General administration, accounting, receipting, relief switchboard covering lunchbreak'.[3] When asked what her day typically looked like, Ms Fleming said:So it would consist of the banking receipting in the morning, any sales contracts or anything that needed reviewing, contacting solicitors with regards to sales contracts and conditions that were due, making sure that staff, in general, were okay, anything that was required – any assistance required – short on staff, help with the property management side of it, make sure that the office and everything was well kept and – and looking neat, general office – general office duties. Wednesday was – was generally a payday, so there was all the MYOB and the payroll to be done. The accounts were done during the course of the – the day, the week, depending on – on how much was coming in. Yep.[4] [3] T1-6, ll35-36.[4] T1-7, ll9-18.

Evidence

Evidence Before The Court

The parties provide the following agreed facts regarding the role restructurea. On 17 December 2019, the Respondents sent an email to the Applicant in relation to the variation of the Applicant's terms of employment.i.The email enclosed a letter dated 16 December 2019 and a letter dated 18 December 2019.b. The same documents were subsequently communicated to the Applicant by express post.c. The Applicant responded to the letters of 16 and 18 December 2021 via correspondence dated 19 December 2021.d. On 20 December 2019, the Respondent sent further correspondence to the Applicant regarding the variation of the Applicant's terms of employment.The evidence before the Commission The Commission heard from the following witnesses:·Ms Frances Fleming, Complainant;·Ms Michele Reid, named Respondent, Owner of Second Respondent and Principal of Harcourts Hervey Bay;·Mr Gregory Prange, previous business partner of Ms Reid, now retired;·Ms Paula Cheeseman, contract bookkeeper; and ·Dr Ashwani Garg Ms Fleming told the Commission that her role involved 'General administration, accounting, receipting, relief switchboard covering lunchbreak'.[3] When asked what her day typically looked like, Ms Fleming said:So it would consist of the banking receipting in the morning, any sales contracts or anything that needed reviewing, contacting solicitors with regards to sales contracts and conditions that were due, making sure that staff, in general, were okay, anything that was required – any assistance required – short on staff, help with the property management side of it, make sure that the office and everything was well kept and – and looking neat, general office – general office duties. Wednesday was – was generally a payday, so there was all the MYOB and the payroll to be done. The accounts were done during the course of the – the day, the week, depending on – on how much was coming in. Yep.[4] [3] T1-6, ll35-36.[4] T1-7, ll9-18. Ms Fleming described her role as 'generalist' rather than 'specialist'. Ms Fleming said that when she started in the role, she received quite intensive training from Mr Greg Prange. Ms Fleming said that the training covered the use of the accounting software MYOB to 'do' the accounts, payroll, superannuation, Goods and Services Tax and getting figures and accounts ready to do the Business Activity Statements. Ms Fleming's evidence was that her job was not 'hugely difficult' and that anybody with 'any previous accounting experience could do it'.[5][5] T1-7 - T1-8. Ms Reid described the nature of work Ms Fleming had initially been employed to undertake:basic admin work, sales contracts and things like that, also to do pays, do our invoicing and things like that. So – but then her role grew in our business. … she was very good at her job.[6][6] T1-77, ll14-21. Ms Reid said that when she initially bought the business, she had two partners but that as she bought those partners out, she was very busy doing sales and she needed assistance with administrative tasks:So I needed somebody that would be my right arm that I could trust to do a lot of the admin roles, office management, while I was out of the office, there was somebody there in charge of the office.[7][7] T1-77, ll23-27.

Decision

Reasons for decision

In the alternative, if Ms Fleming was treated less favourably than another person without the attribute, I am not persuaded that for the purposes of s 10(4) of the AD Act that the attribute was the substantial reason for the treatment. I do not find that the proposed variation to the role was for the substantial reason of Ms Fleming's family responsibilities, impairment or absences on short notice. I find that the proposed variation to the role was for the substantial reason of the operational efficiencies Ms Reid was seeking to achieve.Conclusion Having found that there has been no direct or indirect discrimination, it is not necessary for me to consider the evidence of Dr Garg or Ms Fleming's submissions regarding economic and psychological damage she says she has incurred. Order The complaints are dismissed.

Ratio Decidendi

Legal Principle Established

The Respondents deny that a term was imposed on Ms Fleming because the Respondents did not dismiss Ms Fleming.Consideration – there has been no indirect discrimination For the reasons which follow, I have found that there has been no indirect discrimination. The evidence does not demonstrate that the First or Second Respondent 'imposed a term with which the person with the attribute/s could not comply'. The evidence demonstrates that the employer approved Ms Fleming's leave on the two relevant occasions and took steps to ensure that Ms Fleming's duties were undertaken in her absence. I am unable to find that the Respondents imposed a term on Ms Fleming that she either not be absent from the workplace or that she otherwise be reliable. The evidence before the Commission indicates that Ms Fleming was granted leave on short notice by the Respondents in June 2019. Ms Reid acted reasonably in seeking to make alternative arrangements for Ms Fleming's duties to be undertaken in her absence. Further, I cannot find that the decision following Ms Fleming's leave to ensure that someone else in the workplace (additional to Ms Fleming) receive training caused any detriment to Ms Fleming. The evidence also demonstrates that when Ms Fleming applied for leave to undergo surgery in December 2019 that this was also approved. It was entirely reasonable for Ms Reid to make alternative arrangements for Ms Fleming's work to be undertaken during her absence. It appears that despite her contention that she had been dismissed, Ms Fleming continued to be paid her sick leave entitlements pending her expected return to work, at which point, according to the correspondence provided to Ms Fleming on 20 December 2019 (though not responded to), a variation to her role would be discussed. I note Ms Fleming's submission that the correspondence of 16 December 2019 amounts to a repudiation and that 'where that determination…the horse had already bolted; a discriminatory decision had been made and had been manifested'. Dr Garg's evidence was that Ms Fleming had genuinely believed that she had been dismissed, however I note that Dr Garg examined Ms Fleming on 31 August 2021 some 20 months after the events. Dr Garg could not recall Ms Fleming speaking to him about the letter she received on 20 December 2019 which included a statement to disregard the correspondence of 17 December 2019. [80] Dr Garg confirmed that for the purposes of his report, 'it is not relevant what the actual situation was. But what is relevant is how she interpreted the situation. And she might have completely misinterpreted the situation.'[81] Dr Garg said that 'fact finding is not really important. So it is really the patient's interpretation – or – person's interpretation of the event'.[82][80] T2-37, ll28-30.[81] T2-38, ll27-30.[82] T2-41, ll28-30. While a consideration of the impact of the events on Ms Fleming would be relevant in considering any amount of damages to be awarded. In determining whether there was discrimination, I am required to take into account the factual matrix and determine what actions were taken and what occurred. The evidence demonstrates that Ms Fleming actively chose to ignore that correspondence because of her view that some action regarding her role would eventually happen when she returned to work. Ms Fleming also gave evidence that she did not seek further advice about what impact the correspondence of 20 December 2019 may have had on her employment situation.