| CITATION: | Gordon v State of Queensland & Ors [2013] QCAT 564 |
| PARTIES: | Campbell Gordon (Complainant) |
| v | |
| State of Queensland (First Respondent) Craig Gehrke (Second Respondent) Evelyn Holmes (Third Respondent) |
| APPLICATION NUMBER: | ADL068-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 26, 27 and 30 April 2012; 30 and 31 July 2012; 31 August 2012, 26 October 2012, various other dates by filed written of submissions heard on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | P Roney SC, Member |
| DELIVERED ON: | 14 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Complaints are dismissed. |
| CATCHWORDS: | ANTI – DISCRIMINATION MATTERS - Employment as a Prison officer – family responsibilities - parental status – Work rostering to facilitate family responsibilities – dismissal - work – motive - belief as to less favourable treatment - distinction between direct and indirect discrimination - circumstantial evidence - inferences - compulsory psychiatric assessment pursuant to a statutory power as discrimination- Victimisation-exemplary damages - aggravated damages Anti-Discrimination Act 1991 ss 8, 9, 10, 11, 15, 129, 130, 204 and 209 Department of Health v Arumugan[1988] VR 319, 331; |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr L S Reidy of Counsel, instructed by Susan Moriarty & Associates |
| RESPONDENTS: | Mr C J Murdoch of Counsel, instructed by Crown Law |
REASONS FOR DECISION
INDEX ..................................................................................................................... Page
Introduction
Summary of the claims
Inferences and problems of proof in a circumstantial case
The work roster issue
The claim relating to the medical assessment referral
The victimisation claim
Remedies sought and assessment of compensation
Introduction
Mr Campbell Gordon, the Complainant, is a longstanding employee of the State of Queensland, principally serving as a prison officer. In that world they are called Custodial Corrections Officers. Mr Gordon had one son, Curtis, who was born with autism. The Gordon family had migrated from Canada in 1994 and in 1998 Mr Gordon was first given employment as a prison officer at a prison which has since ceased to exist, known as the Sir David Longland Correctional Centre (“Sir David Longlands”). There were other prisons which play a part in the narrative which is at the heart of this case. These include Wolston Correctional Centre (“Wolston Prison”), and the Brisbane Women’s Correctional Centre (“the Women’s Prison”).
The history of the events which is relevant here commenced in 2001, a year after Mr Gordon and his wife, Curtis’ mother, divorced. In 2001 they reached a shared care agreement for their son which meant that they were each to share responsibility for decisions affecting Curtis, and that Curtis would, in effect, live with his father for periods of nine specified weekends over an eighteen week period. That eighteen week period was based upon the parents’ perception that Mr Gordon’s work roster was based on an eighteen week roster cycle. The arrangement was such that Mr Gordon knew on which particular weekends in each eighteen week period he would have his son. There were other times which the agreement contemplated he would have contact, and there was a level of flexibility in it, for example if there was public holiday on which Mr Gordon had a rostered day off.
Moving forward, those arrangements started to result in difficulties for Mr Gordon after a decision was made in 2005 to close Sir David Longlands where he had hitherto been assigned. It therefore became necessary for him to be provided with work in some other prison operated by the State where his skills could be used. Until that time, Mr Gordon’s workplace and residence had been in relative close proximity to where Curtis lived, and went to school. This, together with what was said to be his stable work roster, facilitated Mr Gordon’s continued contact with his son. It was the closure of Sir David Longlands that sits at the root of the current complaints.
Summary of the claims
There are three areas of dispute raised in the current complaint. The first (which I shall refer to as the “work roster issue”) is whether in making decisions which were required to be made to reallocate staff to different prisons or different tasks after the closure of Sir David Longlands, the way in which Mr Gordon was reassigned, transferred, rostered or otherwise allocated work and dealt with in that process amounted to discrimination against him on the basis of his having had family responsibilities, within the meaning of that term in the Anti-Discrimination Act 1991 (“the Act”).
The second (which I shall refer to as the “psychiatric assessment issue”) concerns whether employees of the State, namely the Second Respondent Craig Gehrke in his capacity as the Manager of Workplace Support and strategy, and the Third Respondent Evelyn Holmes, who was the acting manager of the relief pool, collaborated with a view to having Mr Gordon be directed to undergo a compulsory psychiatric assessment pursuant to a statutory power in the Public Service Act 1996, since repealed, to compel State employees to do so. A similar provision exists in the current legislation. The case here is that they conspired to direct him to undergo that assessment and in doing so he was discriminated against on the basis of a presumed or actual impairment suffered by Mr Gordon, namely some level of mental illness. One aspect of the argument about this claim was that in some way another his attribute, namely that of his being a person with family responsibilities, was also relevant to the decision being made to refer him for that health assessment because, it is alleged, it was Mr Gordon’s advocacy about his family responsibilities which had led to the perception of his having a mental disorder which accounted for the complaint about access to his son, and the work rosters he was being given.
The third aspect of the case is based upon the contention that he was the subject of victimisation (the “victimisation claim”). It is said to arise because a decision was made to discipline him, as a result of alleged carelessness in supervising a prisoner who then attempted suicide, when the real reason to target him was not because of any general belief or understanding that he had acted carelessly. Rather, it is said, it was because it was an attempt to target him because he had consistently sought variations to his roster which might have allowed him access to his son and in insisting upon his legal rights not to be the victim of discrimination on the basis of his family responsibilities.
Hiding behind those deceptively simple descriptions of the three areas which arise for determination are a multiplicity of other factual issues, and an extensive history of conflict of multilayered complexity.
Inferences and problems of proof in a circumstantial case
It may fairly be said that in relation to each of the three complaints, there is little if any evidence which pointed directly to the conduct of the Respondents having been unequivocally or directly made on the basis of the attribute or attributes which were said to exist here, and in respect of which there was protection from discrimination under the Act. In the course of final submissions, Counsel for Mr Gordon freely conceded, at least in relation to two of the three claims being made, that the Complainant’s case was a circumstantial one, or depended upon the Tribunal drawing inferences from the evidence with a view to establishing the requisite level of connection between the bases of relevant decisions, and there being some discriminatory basis for it. Counsel for both sides were also in furious agreement that this was a “documents” case, with each insisting that the contemporaneous documents proved the case they each advanced.
The concession for the Complainant that his case depended upon inference, or absent direct evidence, upon proof of what might be described as a circumstantial case, was one properly made, because there was no “smoking gun” in this case which pointed directly to a discriminatory basis for the conduct of the Respondents in any of the relevant contexts.
It is well established both in this and other jurisdictions in Australia where discrimination is alleged, that the Complainant bears the onus of proof of direct discrimination. In Queensland, unlike most other States, there is an exception where the claim is one of indirect discrimination. In a direct discrimination case, the onus falls to the Respondent to show that the condition being imposed which is potentially discriminatory is reasonable. Similarly, a Respondent would bear the onus of showing that it may rely upon an exemption or exception which attaches to its conduct[1].
[1]See Anti-Discrimination Act 1991 (Qld) s.204; O’Callaghan v Loder (1994) EOC 92-024 at 75,511; Qantas Airways Ltd v Gama (2008) 167 FRC 537 at [132].
The difficulties which present themselves to a complaint of discrimination, particularly of racial discrimination, have been well recognised.[2] Discussion on that topic can be traced to the frequently referenced decision of Fullagar J in Department of Health v Arumugan [1988] VR 319 where the Court overturned a finding of unlawful discrimination based on inference. The case was one in which there was an allegation of racial discrimination because the Complainant had not been successfully appointed to a professional position within a Government Department. Inferences were drawn as to the reason why the candidate was not successful and it was concluded that those were racially based. Fullagar J held as follows:
"If the facts before explanation contain no direct proof of discrimination of the kind charged (be it political, sexual, racial, or impairment-grounded), the industrial tribunal may still be able to draw an inference of discrimination of the kind charged; if the proper inference in the absence of explanation is discrimination of the kind charged, and there is either no explanation or an unacceptable explanation, then the inference of discrimination of the kind charged will mean the complaint succeeds."
[2]See Hunyor J “Skin-Deep – Proof and Inferences of Racial Discrimination (2003) 25(4) Sydney Law Review 535.
A body of other judicial authority has had cause to consider and apply the approach of Fullagar J in Arumugan including Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QSC 62, Cocks Macnish & Anor v Blundo [2004] QCA 194 and Gama v Qantas Airways Limited (No. 2) (2006) FMCA767 and Kapoor v Monash University [2001] VR 483.
The approach to the drawing of inferences in discrimination cases was the subject of further careful analysis by Kiefel J in Sharma v Legal Aid Queensland (2002) EOC 93-191 and in that matter on Appeal by the Full Federal Court [2002] FCA 1699; Sharma v Legal Aid (Queensland) (2002) EOC 93-231. This too was a case involving alleged discrimination in employment on the basis of national origin. Kiefel J at the trial level accepted that statistical evidence “may be able to convey something about the likelihood of being not being advanced because of factors such as race or gender”. She cited the decision in West Midlands Passenger Transport Executive v Singh [1988] 2 ALLER 873 and noted that ultimately it was “a question of fact in each case” from the proposition that the evidence there established that a small number of the workforce of the Respondent came from a non-English speaking background, Kiefel J found that there was no evidence of discrimination. She held that the decision had been made on the basis of an evaluation of the selection criteria.
In the Full Court, the decision of Kiefel J was upheld, and the following comment was made in the joint judgement of the Court; at [40] – [41]:
“It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1998] 2 All ER 953, 958. There may be cases in which the motivation is subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336, 361–362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugan[1988] VicRp 42; [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature. In a case depending on circumstantial evidence, it is well established that the trier of fact must consider ‘the weight which is to be given to the united force of all the circumstances put together’. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen [No.2] (1983–1984) [1984] HCA 7; 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important, provided, of course, that the circumstances relied upon are established as facts.”
In New South Wales v Amery & Ors [2006] 226 ALR 196 a number of female temporary teaches alleged indirect discrimination on the basis of sex because they were subjected to certain pay scales and that this failed to reflect the true value or benefit of the work which they were called upon to perform. In the minority decision, which otherwise overturned the New South Wales Court of Appeal decision in concluding that no discriminatory act had occurred, Justice Kirby noted that that particular case joined a series, unbroken in the previous decade, in which the Court had decided Appeals unfavourably to Claimants for relief under anti-discrimination and equal opportunity legislation. He said:
“It was not always so. In the early days of State and Federal anti-discrimination legislation, this Court, by its approach to questions on validity and application, upheld those laws and gave them a meaning that rendered them effective...the wheel has turned. In no decision of this Court in the past decade concerned with anti-discrimination laws, Federal or State, has a party claiming relief on a ground of discrimination succeeded. If the decision in the Court below was unfavourable to the Claimants, it was affirmed. If it was favourable, it was reversed”.
In many such cases there are real issues of proving causation or drawing inferences from proven facts. In a carefully written article entitled “Reducing the Burden of Proving Discrimination in Australia” (2009) 31 Sydney Law Review page 579-605, the author, Dominique Allen, explained as follows:
“The first obstacle the complainant faces is attempting to access relevant evidence. The respondent has what Laurence Lustgarten terms a ‘monopoly of knowledge’ about the process of decision-making that led to the complainant’s treatment. Lustgarten describes it this way because the respondent controls the information that the complainant needs to establish their complaint. Furthermore, the respondent is not under any obligation to explain their decision. If there are witnesses, Lustgarten says they are usually what he terms ‘interested parties’, such as employees of the respondent, so they may not be interested in testifying against the respondent and jeopardising their own situation. The second obstacle for the complainant is that direct evidence may not exist. Discrimination is often unconscious, so the respondent may not have articulated a reason for their decision. Alternatively, the evidence may not be available. For instance, in regard to establishing proportionality in an indirect discrimination complaint, the necessary statistical data may not have been collected.
Without a ‘smoking gun’ or access to sufficient information, the complainant must rely on circumstantial evidence and ask the court to consider the ‘cumulative effect’ of the evidence. The court will be asked to draw an inference of discrimination based on the evidence adduced, even if, when viewed on its own, none of the evidence would have supported the inference. However, particularly with regard to race discrimination complaints, courts are reluctant to infer discrimination without sound evidence....The respondent is not required to tender any evidence to refute the complaint or offer an explanation for their behaviour. In Arumugan, the Victorian Supreme Court said that an inference cannot be drawn from the respondent’s failure to explain a decision.26 Therefore, the respondent can remain silent, forcing the complainant to discharge their burden and, if they do not, the respondent can make a ‘no case’ submission. (References omitted)
As per the issue of drawing inferences from the facts, according to oft approved dicta of Street CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 at [264]:
… the plaintiff must prove his case; and although he may establish a state of facts which lead one to think that his version is quite a possible version of what took place, he must do something more than show a state of facts which is consistent with one view or with another view … A guess is a mere opinion or judgment formed at random and based on slight or uncertain grounds. In contradistinction to such a conjectural opinion, an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts. It must be something which follows from given premises as certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect.
Where an applicant claims an inference should be drawn:
“There must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture … the existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability — a mere scintilla of probability such as would not warrant a finding in a civil action … to such practical certainty as would justify a conviction in a criminal prosecution.”
per Jordan CJ in Carr v Baker (1936) 36 SR (NSW) 301 at pp 306–307.
In Jones v Dunkel (1959) 101 CLR 298, Kitto J stated at [305]:
“One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.....”
In G v H(1994) 124 ALR 353 Brennan and McHugh JJ defined an inference in the context of judicial decision-making as.
“a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference: Martin v Osborne (1936) 55 CLR 367. But the drawing of an inference is part of the process of fact finding: it has to do with the minor premise in the syllogism of judgment, not with the major premise of legal principle”.
An inference is not to be drawn and will be a ‘matter of conjecture’ where the circumstances give rise to “conflicting inferences of equal probability”: Richards Evans & Co Ltd v Astley [1911] AC 674 at 687 per Lord Robson. See also recent authority in Greater Taree City Council v Craig Michael Peck[2002] NSWCA 331 and Squillacioti v Roads & Traffic Authority of New South Wales & Anor[2002] NSWCA 133.
The case which I am compelled to determine here is not one where it might be said that the Respondents have left the Complainant in the position of not offering an explanation for their behaviour, and therefore seeking to win the case on the basis that the evidence was insufficient as it stood otherwise unexplained, to prove that the relevant conduct was on the basis of some discriminatory factor. Having said that, the practical reality here for Mr Gordon has been that in practical terms he has never been privy to precisely what thinking was being undertaken by those who were making decisions which were affecting him, and in large part he seeks to draw inferences from contemporaneous documents which concern the basis for those decisions, and to seek to disprove directly sworn testimony from the Respondent and other witnesses by reference to those documents and other circumstantial evidence. Unfortunately, as it shall be seen shortly, most of that contemporaneous documentation does not actually directly support the claims which he makes that the relevant conduct in question was on the basis of some protected attribute.
The work roster issue
This claim raises allegations of direct and indirect discrimination on the part of the State of Queensland, and its officers, on the basis of what is said to have been Mr Gordon’s protected attribute, namely his family responsibilities. The essence of the complaint is that direct discrimination occurred because the Respondent, through its officers, ignored or rejected a request on his part for temporary reassignment to “an appropriate location and stable roster” after the closure of Sir David Longlands, and arising out of the necessity for the reassignment of staff who had previously been employed in that prison. The corollary to that allegation is that he was the victim of indirect discrimination on the part of the State and its relevant officers in three relevant respects. First, in allegedly adopting a practice whilst in the course of consulting with stakeholders, and in deciding to make reassignments of staff such as the Complainant, to require those staff to manage their family responsibilities irrespective of where they were reassigned and pursuant to what roster they were to work. Secondly, it is alleged that there was a practice adopted of transferring those working at Sir David Longlands, particularly the Complainant, without giving proper consideration to the effects that such a transfer would have on him, with his family responsibilities. Thirdly it is alleged that the State adopted a “practice” where as a result of computer or other administrative malfunction Mr Gordon was paid no, or insufficient wages, of requiring employees at Sir David Longlands to access other mechanisms to fund their ordinary expenses, including private credit or loan facilities, or making other loan arrangements, for the purpose of meeting their financial obligations.
Each of these issues is set out in summary form in paragraphs 66 to 78 (inclusive) of Mr Gordon’s points of claim. I shall return to the manner in which the indirect discrimination under this head is characterised but, suffice it to say for present purposes, that it is conceptually difficult in that, having identified those three so called practices as relevant practices of the State in its administration of prison officer roles, the ultimate conclusion concerning that which is said to found the claim in indirect discrimination is that:
“The Complainant was unable to comply with the practice imposed by the first respondent without breaching his ‘share care’ obligations. The Complainant often breached the ‘share care’ plan obligations, resulting in the Child Support Agency garnisheeing his wages. The Complainant in complying with the practice lost contact with his son and failed to support him financially.”
On the face of it, this argument sits at a level of abstraction from the notion that by unlawful conduct, he was discriminated against on the basis of his family responsibilities.
Section 11 of the Act provides as follows:
“11 Meaning of indirect discrimination
(1) 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.
(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
(a) the consequences of failure to comply with the term; and
(b) the cost of alternative terms; and
(c) the financial circumstances of the person who imposes, or proposes to impose, the term.
(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4) In this section—
term includes condition, requirement or practice, whether or not written.
Example 1—
An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.Example 2—
An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.”
Having regard to the way in which the issue has been articulated in the Complainant’s points of claim, it is almost impossible to tease out some proposition from that claim which involves the identification of some “term” with which it is said that Mr Gordon was unable to comply, and “with which a higher proportion of people without the attribute comply or are able to comply” in the sense contemplated by s.11, and which has been the subject of the caveat mentioned in the decision referenced above. Indeed, there was a complete absence of evidence which went to the issue of the ability of others to comply with the relevant terms or “practices”, as the Complainant’s case described them.
The Complainant’s case appeared to take on a somewhat different character by the time it came to be addressed in final submissions. In those submissions the complaint of direct discrimination was articulated as being that, against a background where he had sought to be transferred to the Women’s Prison on the closure of Sir David Longlands, he “could not secure a transfer in the period of the decommissioning (July to end November 2005) and spent the period from January 2006 to November 2007 in a ‘relief pool’ without securing the stable and certain roster that would allow him to carry out his family responsibilities. He raised the matter incessantly but no, or no proper, account was taken of his status as a person having family responsibilities for his son. He lost contact with his son, breached the share care plan agreed to by his son’s mother concerning contact with and support of his child and suffered emotional distress which impacted on his workplace behaviour and required psychological counselling”.
In the context of describing the indirect discrimination in this context, it was submitted that “Mr Gordon was assigned to the relief pool without his consent. The terms he enjoyed as a result of the grievance procedure in 2000/2001, namely, a stable and certain roster as Unit 5B Manager was replaced with an uncertain Relief Pool roster which destroyed his ability to exercise his family responsibilities to his son. Other persons occupying the same position as Mr Gordon but who did not have the attribute secured the “Brisbane Women’s Prison”.
The nub of the complaint under both heads is the notion, perhaps faintly articulated, that it amounted to direct discrimination of a parent with family responsibilities to adopt a practice in the allocation of duties by an employer, not to secure to that employee a roster which would allow him to carry out his family responsibilities in the manner he had decided or agreed with his former spouse that he would. Secondly, in the context of indirect discrimination, that unless an employee with those same responsibilities was given a stable and certain roster, but was in fact provided with an “uncertain” or variable roster, then he was the victim of indirect discrimination because other persons who did not have family responsibilities were given employment in circumstances where they had a stable and certain roster. These propositions, which were developed largely without reference to the notions of discrimination as they are defined in the Act itself, have been discussed in this jurisprudence or discussed in the case law, relied upon extensive reference to a large body of evidence reflecting the interactions between Mr Gordon, and his employer at a detailed level for a period since 2001, and certainly in considerable detail from the date of closure of Sir David Longlands in or about 2005.
The history of, and the consequences of the decision to close Sir David Longlands were largely not in dispute. It is the interpretation of some of those events that is problematic. The shared care agreement between Mr Gordon and his former wife had been in place for approximately four years prior to when consideration was being given to the closure of Sir David Longlands. That agreement was based on an 18 week roster. It appears to be common ground and the evidence of Mr Gordon accepted that although the roster was a rotating roster which had some predictability, it was not regular in the sense that he worked different days in different weeks, and there were different patterns that applied over each 18 week period. This necessarily meant that even prior to the closure of Sir David Longlands he was required to regularly consider and adjust the arrangements he had in place to ensure he had the ability to care for his son under the shared care plan. That meant that from time to time he was required to seek changes to his rostered days under that roster.
In 2005, the Government made a decision to close Sir David Longlands for major reconstruction work and a project management team was established to decommission the prison. This also had obvious staffing consequences, with a wide range of staff in various positions in the prison required to be reallocated. The evidence is that there were some 250 permanent staff at the prison, including Mr Gordon, and for whom there would be required to be a decision made to employ them at some other location. The team which was behind the management of the decommissioning was headed by Mr Alan Farrell, in his role as project manager. Mr Gehrke, the First Respondent, was one of those on the project team who provided human resources support. He held a critical role in that team for the period up until when the prison was finally closed in December 2005. One of Mr Gehrke’s responsibilities was to maintain information concerning individual employees and have a role in the use of that information in the placement of those employees elsewhere. In the process of redeploying staff a large number of people were involved, and these included trade union officials and other employee groups.
Initially, employees were asked to fill out an expression of interest form asking if they could indicate some of the preferences that they might have in the event of their redeployment. Staff were encouraged to participate in decisions with others in the human resource management staff and the team, and interviews with those staff were conducted and encouraged. I accept that the process adopted was in part designed to ensure that fully informed decisions were made concerning redeployment and transfers. The project team members were meant to be provided with copies of individual employee’s statements of preference, along with notes from the interviews which were conducted with them. Some staff were offered career change packages and a range of other decisions were made as part of the overall redeployment process. The members of the project team commenced their work in or about July 2005, and about that time the so called “relief pool” was opened. For the period from approximately May 2005 til October 2006, Mr Stevens was the relief pool manager. After that, in January 2007, Ms Holmes became the relief pool manager.
In Mr Gordon’s case, he contends that the events which affected him and which constituted discrimination against him on the basis of his family responsibilities occurred in three stages. The first was a period of approximately six months until the closure of Sir David Longlands in December 2005. It is argued that in that period he sought persistently that he be provided with a permanent placement at the Women’s Prison because of his childcare responsibilities, but that despite this advocacy, he was overlooked for placement there while others were in fact so placed. It is argued that this was “marked by discrimination for the attribute of family responsibilities”.
The second part of the narrative in which he is said to have been exposed to this discriminatory conduct was in the period from January 2006 until approximately the beginning of 2007. It is said that in this period he was, against his will and without his consent, put into the relief pool of staff. In this period he was brought into contact with, or was affected by decisions made by Mr Stevens, Ms Holmes (the Third Respondent) and their support officer, Ms Bosgra. It is submitted that discrimination against him on the basis of family responsibilities continued during that period, although it was also during this period that it is alleged he was subject to discrimination on the basis of the attempt to refer him for a medical examination. Without specifically referencing the multiplicity of ways in which it is contended that Mr Gordon’s family situation could have been, but was not taken into account, it is sufficient to say that the Complainant’s case is that when one examines the process of decision making about the administration of the relief pool, opportunities to place him at different prisons or in different positions or to allow variations to his rosters or working conditions, he was deprived of these because of, or perhaps more accurately, instead of, by addressing his needs based on his obligations to care for his son.
There were policies which the administrators of prisons were to take into account, inter alia in seeking to address family responsibility issues with staff. One of those, effective from March 2007 recognised that managers should treat staff individually to try to understand their different needs and find ways of balancing their work and family needs, and to ensure employees understood their responsibility to suggest solutions. A level of flexibility was encouraged in resolving work/family issues. In the guidelines for rostering shift work, there was a policy which encouraged a lessening of unwanted effects on the physical and psychological wellbeing of staff. There were other broadly relevant policy documents which for example, affected the administration of sick leave and the like. It is submitted that the evidence in this case showed that there was a “failure to either know of or apply policies, and that this was ‘an endemic corporate malaise”. It was further submitted that the existence of these policies meant that if it could be shown that they had been ignored, then the decision to ignore them ought lead to the inference being drawn that this had occurred for a discriminatory reason. In my view the evidence neither establishes that the nature and substance of those policies was either unknown, nor that it was ignored. Nor does it seem to me to be an inference open to be drawn on the evidence that even if they were “ignored”, that this was for a discriminatory reason.
The nub of Mr Gordon’s submission is that if one examines his treatment from approximately mid 2005, it is evident that the Second Respondent, and therefore the State, did not facilitate his family responsibilities by providing him with an appropriate roster, and that Mr Gehrke had acted in a arbitrary and capricious manner in making decisions having regard to what was said to be Mr Gordon’s expressed preferences.
It was in May 2005 that staff at Sir David Longlands were told that the prison would close temporarily, and thereafter a State wide roster review process commenced. It was shortly thereafter that Mr Gordon was having some problems with the Department, and wrote on the 10th June 2005 to Ms Smith complaining about the Department having withheld wages to which he was entitled.
By June 2005 staff were being briefed, and transfer preference forms distributed for staff to complete. It is common ground that Mr Gordon did not himself complete one of the standard form expressions of preference documents. By July 2005 a relief pool had been established. The relief pool was designed to supply a staffing procedure for the allocation of prison officer labour and various ways to manage unpredicted staff unavailability or changes to staff leave, and to satisfy other long term and short term staffing needs.
The interview process for staff was underway by July 2005, and on the 11th July Mr Gordon was interviewed as part of that process by Mr Klein. This had come about because Mr Klein had received an email from Mr Gordon that same day. Mr Gordon’s evidence was that he realised that this was an opportunity to give Mr Klein relevant information to be taken into consideration in the decisions made about his redeployment. The record of that interview makes clear that Mr Gordon said that he had shared custody of his son, and that his child had autism. The interview notes do not record anything to suggest that anything was said to imply that this was relevant to staffing decisions, or rostering decisions which affected him or might in the future affect him. Mr Klein was clearly informed by Mr Gordon that he only wanted to work in the Wacol precinct, which was where Sir David Longlands was. I accept that the key points made in the interview by Mr Gordon were accurately recorded by Mr Klein. It was Mr Gordon’s evidence that he “would have” asked Mr Klein in the course of that interview for a roster which was stable, however, that does not appear in any of the notes made in the course of that interview, and the evidence given about this was ambiguous and had the sense of speculation with the inclusion of the word “would have” suggest. His evidence in chief did not involve an assertion to that effect. Mr Gordon also attempted to suggest that he had provided or may have attempted to provide Mr Klein with a copy of his child share care plan in the course of that interview, however, I do not regard that evidence as reliable and it is not corroborated by the contemporaneous record. I accept that neither Mr Klein nor Mr Gehrke were ever provided with a copy of that plan, nor made aware of any of the specific arrangements which had been provided for under it.
Interviews with individual staff with a view to their transfer to other prisons commenced approximately one week later, on the 18th July 2005. As I have already mentioned, it is common ground that Mr Gordon did not himself complete one of the standard form expressions of preference documents. After the closing date for expressions of preference by staff, on 3rd August 2005 the Complainant wrote to Mr Farrell in an email in which he indicated that his “only preference” for transfer would be to the Women’s Prison. He set out his reasons for that, they including the fact that it was in the same precinct as he had hitherto worked, out at Wacol, that he had shared care of his child and that the child’s mother lived locally, that relocation would be difficult for him having regard to his history. He also mentioned that he believed he had not been cleared to work with protection prisoners, and that this restricted his capacity to be transferred and work at other prisons where protection prisoners were present. The evidence of Mr Farrell concerning the way in which he treated the 3rd August 2005 email made clear that he was probably somewhat perplexed by its terms, or what if any, consequence it should have for the Complainant.
Mr Gordon wrote to Mr Farrell again on 10th August 2005 wanting some information about where he would be working in the future. It mentioned the fact that he was at that time homeless, and was looking to establish a residence and therefore requested that he be told “in the near future, of future employment location, other than that which has already been requested”.
Specifically, his letter said that he was formally requesting the Department to be forthcoming as to his immediate future so that he could look at a potential residential location. He made complaint about his eviction having been a consequence of withholding of wages to which he had been entitled. There is no evidence to suggest that that wages incident actually occurred in circumstances which resulted from any identifiable discriminatory conduct. It occurred through administrative error and not intentionally done, and had nothing whatsoever to do with any practice or term to do with the fact that he had family responsibilities.
Mr Farrell responded the next day and notified Mr Gordon that he had perused his human resource file and the notes of his interview and noted that Mr Gordon had not expressed any transfer preferences. He was advised that the only places with options available at that time were in Maryborough or Woodford Prisons, well outside of Brisbane. It indicated that placement at any other centres would not be offered until mid-September, which was in conformity with the previously published timelines. He was asked to indicate whether he wished to be transferred to either of those centres.
Mr Farrell explained in his evidence that that timeline took into account the large number of people who were required to be redeployed, and the large number of interviews that were required to be conducted. It was a time consuming process. Weeks later, on the 22nd August 2005, Mr Gordon wrote to Mr Farrell asking him for some clarification because he was having difficulty finding a rental property that was short term, and he was worried about being transferred away from the current community. He wanted some assistance financially or otherwise. I pause to observe that this correspondence was not insistent that he be located at any particular place in the redeployment process. He was told the next day that no financial assistance would be available.
On 31st August he wrote to Mr Farrell again observing that he was concerned that he had not expressed any transfer preference, and wanting a copy of his human resources file as it pertained to the closure of Sir David Longlands. He wanted to be sure that the decision that was made about his transfer was based on factual information. This was sent through to Mr Gehrke and Mr Flint to action. On the 6th September Mr Gehrke made a handwritten note which was addressed to Mr Gordon indicating that his preference for the Women’s Prison had been noted. Mr Farrell swore and I accept that after the initial interviews with Sir David Longlands permanent officers in July and prior to the initiation of the career change program which was to occur in October, he wrote to all officers who at that point had not been placed elsewhere. He swore that there were a number particularly in the Custodial area which included the Complainant, who had not been redeployed. Officers were told that they had been transferred to a particular prison, were told that they had not at that time able to be placed.
In his oral testimony Mr Farrell could not recall why it was that he had not placed the Complainant at his preferred choice at the Women’s Prison. He explained that there were a number of officers with varying needs, each of them he was trying to accommodate. Essentially the problem was that there was a large number, indeed too many former Sir David Longlands officers who wanted to go to the Women’s Prison, or Wolston Prison, both of which were in the Wacol precinct where Sir David Longlands was.
On the 15th September 2005, Mr Gordon again wrote to Mr Farrell, this time putting forward further arguments as to why he should be given his preferential placement at the Women’s Prison. In the course of that letter he pointed out that “access to my son has been determined to be in accordance to my roster. Specifically, my former wife is obligated to accommodate my rostered days off as the time that I have with my son. This arrangement cost me dearly financially to obtain. To necessitate any adjustments in any future roster changes, will cost a minimum of $5,000 just to get to Court. I am therefore, again, seeking a long term arrangement....”. He also pointed out that both his wife and son were located in the Wacol precinct, that he had an unroadworthy vehicle, that he needed shift allowances because of his financial position and he has already been disadvantaged by having been evicted from his residence as a result of the management errors. Notably, the reference to the rationale which related to his circumstances as a carer for his son appeared mostly to do with the fact that any future roster changes would cost money to accommodate. It does not, as I read the letter, specifically point out that he must have a roster which was in every way fixed or predetermined and was not subject to change. It does not suggest that a variable roster for example one in the relief pool could not stand with the arrangements he had for care of his son.
In fact, Mr Gordon appeared to concede in the course of cross-examination that he had not placed particular focus on his child’s needs, and the need for a roster which was stable and predictable. When it was suggested that what he was in effect asking management to do was in some way “join the dots” he appeared to explain his unwillingness to make his point clearly as being concerned not to have it widely known that his son had relevant disabilities or was, as he put it, a “handicapped child”.
Mr Farrell swore that by the 27th September 2005 his understanding of the Complainant’s issues was that they were concerned with problems associated with his accommodation, and complaints about monies the Department had not paid. He did not understand from the matters set out on in the 15th September letter that there was a direct relationship between the Complainant’s need for access to his son, and his preference for being allocated to the Women’s Prison. His view was that if rosters were a problem, adjustments could be made irrespective of such prison centre an officer was allocated.
The evidence which I accept is that by the end of October 2005, there were still 66 ex Sir David Longlands prison officers, including Mr Gordon who had yet to be allocated to any particular centre. Mr Gehrke was in the process of giving consideration to the circumstances of each of them, and some or all of them were interviewed a second time for that purpose. The Complainant himself was not interviewed a second time, and apparently did not request such an interview.
Sir David Longlands was then closed sometime before the end of 2005. It is common ground that as a result of the closure of Sir David Longlands, he would no longer be able to work a shift which was in identical terms to that which he had had when working there. His roster would thenceforth depend upon the availability of shifts in the particular prison area and location where he would be placed. Mr Gordon also understood that once Sir David Longlands closed, the circumstances change such that he might need to renegotiate his care arrangements with his former spouse.
Mr Farrell again met with the Complainant some time in early December and they discussed his being placed within the prison system. Mr Farrell swore, and I accept, that at that meeting Mr Gordon was distressed about his roster situation, and in particular continuity with work, until he was placed in the relief pool and new arrangements would apply. Mr Farrell too held the view that once he was placed in the relief pool, the Complainant would be in a position to try to fit a roster around his circumstances. He therefore drafted a letter, which came to be dated 16th December 2005, which was addressed to the Family Court. This was based upon what Mr Farrell came to understand was because the roster Mr Gordon was given, would determine how he would have access to his son. The Complainant would suggest that the inverse of that position was the true position, namely that his access was pre-determinative of what roster he could take. I do not accept that argument.
The letter identified the fact that Sir David Longlands had closed, that he would need to be placed elsewhere, and that no decision had at that stage been made as to his new location or as to a long term roster. It made reference to a roster for the period from mid December until early January and mentioned that after his placement was finalised his shifts would be rotational and be predictable in the long term. This is capable of being understood as consistent with Mr Farrell’s understanding of the relationship between the roster and the access periods.
In February 2006 Mr Gordon was offered and accepted a position as a permanent transferee into the relief pool. As I have mentioned, that was meant to provide back filling of staff in effect to fill gaps within the system brought about from various causes. Those working in the relief pool would be able to work in or about the same area as Sir David Longlands. He fulfilled those duties. Certainly the Complainant had expressed the view that he was not happy about being placed in the relief pool on a permanent basis, but nevertheless accepted the appointment. He expressed this opinion to Mr Gehrke, the Second Respondent. For practical purposes, this was the first direct communication between the Complainant and Mr Gehrke on any relevant issue.
Mr Gordon was one of almost 50 officers who had previously been at Sir David Longlands who were not sent to any particular centre, and we were put in the relief pool. Once there Mr Gordon was placed on a 48 week rotating roster and he continued to work in the relief pool throughout 2006.
There is some controversy on the evidence as to precisely why, and whether it was justified for, the Complainant to reject the offer to work at the Wolston Prison. It is not necessary for me to decide whether his rejection of that was valid. But certainly I accept that he genuinely believed he was not able to work there because it would involve him working with protection prisoners, and he believed himself unable to do so because of previous incidents. The evidence is not such that it enables me to conclude whether there had in fact been some such incident, but certainly there is no suggestion that the offer was made on behalf of the prison authorities in the knowledge that it would be inevitably rejected. I accept that it was a bona fide offer. It reflected, in my view, the authorities’ willingness, at least to some degree, to accommodate the expressed needs of the Complainant. Certainly it was inconsistent with any decision to not accommodate his expressed preferences or needs on the basis of his family responsibilities.
I accept the evidence of Mr Farrell and others, that there was indeed some ongoing level of flexibility open for roster changes should they be necessary. It would depend on the precise circumstances as to whether that could be accommodated. A problem developed in March 2007 when Mr Gordon applied for leave for three days which he hoped would allow him some additional time to spend with his son. This was refused, ostensibly on the basis that it was not requested early enough. When this was refused, Mr Gordon failed to attend work and made a claim saying he was entitled to take to take the time as sick leave. This led to further problems in that in April 2007 he was called to attend a meeting to discuss the absence of sick leave forms for those days, however Mr Gordon did not attend the meeting. He was directed to attend other meetings in April 2007, which inter alia, were intended to deal with this issue. It is obvious that by this time, Ms Holmes, the Third Respondent, was suspicious, perhaps sceptical, of whether he had in truth been sick for those days when he claimed that leave.
In the end, not much turns upon precisely what occurred at those meetings in the context of the discussion on this topic, although it has some relevance to the second aspect of the claim and I shall return to it in that context. Certainly in the early part of 2007, Mr Gordon made clear that he wanted a permanent placement at the Women’s Prison, and that the Third Respondent had taken the view that this either would not or could not be accommodated. As she put it, his pressing demands were “over the top and excessive”. She explained this as being because he was just one of many employees who were parents, and who had responsibility to care for their children. And further, that he was not the only one where because of the marital arrangements, child care had to be shared. By the 6th March 2007 Mr Gordon was compelled to write that until he was appointed to a correctional centre, as distinct from the relief pool, it was futile to attempt any access to his child through the Family Court. He was in effect insisting that somehow he be appointed to a location where the same roster he had previously had at Sir David Longlands would apply.
There has been both considerable controversy both in the evidence, and based upon the submissions made to me, as to whether some other officers who were placed at the Women’s Prison ought to have been placed there, or whether it would have been more appropriate to have placed Mr Gordon there having regard to his circumstances. It is both unnecessary, and in fact not open on the evidence before me, to conclude that those who were offered those positions were not offered them on some bona fide and seeming justifiable basis. I am satisfied that those placements were bona fide, and that the refusal or failure to place Mr Gordon into any of those positions was not on the basis of his family responsibilities, or on any other basis which amounted to discrimination.
In the context of the detailed submission which sought to draw together the evidence concerned with this issue, Counsel for Mr Gordon identified a series of what he described as “unfavourable events” which occurred to Mr Gordon, and which essentially demonstrated a lack of concern on the part of management for his family responsibilities. Most of these events I have already described in broad terms, but they include the fact that he was overlooked for transfer to the Women’s Prison, that he was transferred to the relief pool, that he was not moved out of the relief pool once transferred there, that he was permanently transferred to the relief pool against that background, that he was offered a transfer to Wolston Prison which he could not accept. There was also reference to an ongoing series of problems associated with pay and long service leave to which he was entitled.
Those submissions do not specifically deal with how this evidence in fact demonstrates that either direct or indirect discrimination occurred in this case, but by reference to the case as pleaded, and articulated in other documents filed in the Tribunal, is implicit in the case for Mr Gordon that it constituted discrimination not to accommodate his needs for what he regarded as a stable roster, by placing him in a particular prison. In other words, the submission is not that he was the subject of discrimination or disadvantage caused by the conduct of the Respondents, but rather he was disadvantaged by reason of his own matrimonial and other circumstances, and it was in some way discriminatory not to accommodate him in a way that meant that disadvantage was overcome.
Whilst the failure or refusal or provide him with a position at the Women’s Prison may have resulted in disadvantage to him, in the sense that he would have had there a more predictable or stable roster which may have more easily accommodated his parenting arrangements, I find that the failure to provide him with a position at that prison was not on the basis of the attribute in question, in the sense that it was not a substantial reason for his treatment in that regard, in the sense referenced in section 10 of the Act. Similarly I find that the failure to provide him with a position other than in the relief pool, or the allocation of him to work in the relief pool at that prison was not on the basis of the attribute in question, in the sense that it was not a substantial reason for his treatment in that regard, in the sense referenced in section 10 of the Act.
Section 10(1) of the Act sets out the meaning of direct discrimination on the basis of an attribute. Essentially that requires in this case the Complainant to establish that the Respondents, or any of them, have treated him or proposed to treat him on the basis of the attribute “less favourably than another person without the attribute is, or would be treated in circumstances that are the same or not materially different”.
The question that must be answered affirmatively if such a claim is to succeed is whether particular conduct has been shown to be “on the basis of an attribute” within the meaning of sections 8 and 10 of the Act.
The Court of Appeal in JM v QFG and GK [1998] QCA 228 gave careful consideration to the approach to taken to ascertaining whether something occurred “on the basis of an attribute”. That case involved an appeal from a decision of the Anti-Discrimination Tribunal concerning whether a refusal of treatment at an infertility clinic on the claimed basis that a patient’s lawful sexual choice of lesbianism amounted to direct discrimination. The approach of the Court was to carefully identify precisely what was the reason for the refusal of the treatment. If it could not have been said to have been her exclusive lesbianism, but rather the fact that she failed to comply with the Respondent’s definition of what constituted infertility, that she was refused the relevant treatment.
Reference should also be made to the decision of the High Court in Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165 at 176-7. That case concerned allegations of direct discrimination on the basis of gender. It was alleged that workers were retrenched because they had not been employed before a particular date. It was said that this amounted to discrimination on the basis of gender because the waiting period for employment with that employer was for a longer period for women than it was for men. Hence female workers were being retrenched because the male workers had in effect been employed longer, and before the relevant cut off date. In the joint judgment of Justices Deane and Gaudron JJ it was held that:
“... in the ascertainment of the true basis of an Act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that Act or decision. In certain situations that common factor may well be seen to be the true basis of the Act or the decision. And that may also be the case were some factors identified as common to a specific proportion of those adversely affected”.
“Even if it could be said that a factor common to all or a significant proportion of those who are adversely affected by the decision of AIS to retrench by the “last on, first off” method was that they were women, a further finding that that was the true basis of the decision would be necessary to render [the equivalent to section 10] applicable .... there is no finding to that effect made by the Tribunal”.
Hence the Court in Banovic concluded since the reason for retrenchment was the time at which employees were employed, and even though women were more affected by those retrenchments because they were more likely to have been employed later, there was no direct discrimination. The Court went on to consider the alternative case of whether it was a case of indirect discrimination.
I accept that in this case Mr Gordon was one of a large number of former Sir David Longlands staff who were required to be redeployed, or placed elsewhere within the system or otherwise retired from it, and that that requirement arose because of the closure of Sir David Longlands. Similarly, he was one of the number both with and without the relevant attribute who did not necessary achieve their stated preference for placement. There is no evidence that he was treated less favourably than any other in his position, or without the relevant attribute in his having not been accommodated by placement at the Women’s Prison. The same may be said of his admittedly reluctant acceptance of appointment to the relief pool. Obviously he was keen to remain as working as a correctional officer and the practical realities were that that was the only position that he was prepared to take that was on offer.
I have already mentioned that an offer to work at another prison was rejected by him for reasons which may or may not have had any substance in the sense that he may in fact have been capable of working with protection prisoners, but he perceived himself to be unable to do so. It was an unfortunate reality of the situation in which the First and Second Respondents found themselves, that as a result of the closure of Sir David Longlands, an administrative process was necessary to determine which officers could be placed in the limited number of positions which were in fact available for placement at the Women’s Prison. The evidence which I accept is that there were indeed limited positions available at the Women’s Prison, and a substantial number of his fellow officers had applied for placement there.
Applying the principles which I have elucidated earlier as to the drawing of inferences and the problems of proof in a circumstantial case, is seems to me that there is just no, or no sufficient evidence from which I am able to conclude on the balance of probabilities, that the decisions to allocate others to that prison, and not the Complainant occurred on the basis of the Complainant’s attribute of having responsibilities to care for or support his son. Indeed I find that the decisions to allocate others to that prison, and not the Complainant did not occur on the basis of the Complainant attribute of having responsibilities to care for or support his son, and nor was that a substantial reason for his treatment.
Mr Gordon also contends that he was the victim of direct discrimination by the First and Third Respondents because, it is alleged, he was challenged in a meeting in 2007 about whether he had been sick, or perhaps entitled to take sick leave in the period of 7th to 9th February. The evidence is to precisely what was said in the course of that meeting is not clear. Mr Gordon suggested that what was said to him was that he was “not really, or not actually sick”. Further that he was told he had been taking excessive sick leave and further that he was treated abruptly and rudely in that meeting, and was refused a right of reply in essence. But it is only the accusation of making false claims which is the subject of this aspect of the Claim.
I accept that in the course of that meeting the Third Respondent said words, or words to the effect, that she was not accepting that he was in truth sick when he made his claim for leave in respect of that period. Further I accept that she had expressed her reservations as to whether he was in fact doing something else, or using that leave for another purpose. That said, the notion that this encounter constituted direct discrimination of him on the basis of his impairment is conceptually difficult to grasp. The comments in question, whether or not they implied that he was lying, were concerned with a legitimate or at least genuinely held belief or concern on behalf of the Third Respondent that Mr Gordon was not sick when he had claimed to be sick and applied for leave in that regard. She was entitled to that view, whether or not it was correct. In fact, no part of what she did or said in that meeting involved treating the Complainant less favourably on the basis of his attribute of having family responsibilities than another person. There is only a peripheral association between those circumstances and the Complainant’s family responsibilities, that relationship being that whether sick or not, if you feel it necessary to make a claim for sick leave one must substantiate the basis for leave taken and which was associated with the discharge of his family responsibilities. Therefore this part of the discrimination case fails.
I have dealt elsewhere with was required to establish indirect discrimination. The pleaded case set out earlier in these reasons is that in the redeployment process, prison authorities “adopted a practice when carrying out its consultations and reassignments of its (Sir David Longlands) employees to manage their family responsibilities irrespective of where they were reassigned and to what roster they were allocated. Additionally, that the First Respondent and its officers adopted a practice of transferring (Sir David Longlands) employees without considering the effects of their transfer decision of employees with family responsibilities. The family responsibilities in this case are said to have been the shared care plan which Mr Gordon had with his former spouse. It is contended that the Complainant was unable to comply with those practices without breaching his shared care obligations, and “the Complainant in complying with the practice, lost contact with his son and failed to support him financially”.
On the evidence, I do not accept that the First Respondent and its officers adopted a practice carte blanche of requiring their staff to manage their family responsibilities irrespective of where they were reassigned or to what roster they were allocated. I accept that there was a degree of flexibility within the administration of prison staff, and that if it became necessary to re-roster, give leave or otherwise accommodate staff, there were mechanisms by which that might be achieved. It would not necessarily result in some reassignment or reallocation, but it is not true to say that in general terms an employee’s family responsibilities were ignored or treated as irrelevant. Nor do I accept that the First Respondent and its officers adopted the practice of transferring or redeploying former Sir David Longlands staff without considering the effects of their transfer decision on them and their family responsibilities. I have already referenced the evidence that supports this conclusion.
As has been often recognised in this context, it is important that the term which it is alleged was imposed be formulated with some precision; Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165 at 185. It has also been recognised that the language of section 11 and its analogues are somewhat difficult to apply, not only as to section 11 itself, but also in conjunction with other sections of the Act; Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165 at 177 and 195; I on behalf of BI v State of Queensland [2005] QADT 37.
The Respondent submits that if there were such terms, the onus upon the First Respondent to demonstrate that those terms were reasonable has been met. In view of the finding that those terms were neither imposed nor proposed to be imposed in the sense referenced in section 11, it is unnecessary to determine this issue. I accept that the First Respondent and its staff made attempts to accommodate the expressed or ascertainable preferences and needs of a large number of prison staff that were required to be redeployed. There necessarily were conflicting needs to be dealt with, and discretionary considerations applied to that process. I do not accept that there was indirect discrimination in the sense contended by the Complainant in the course of that redeployment.
I therefore find that this aspect of the complaint fails.
The claim relating to the medical assessment referral
The next issue which is the subject matter of complaint involves an allegation that the Second and Third Respondents “collaborated” to have Mr Gordon be directed to undergo a compulsory psychiatric assessment notwithstanding that he was not absent from work without excuse or had failed to perform his duties competently. In this context, it is again said to be the foundation for the claim that he was a person with family responsibilities and that in “conspiring” to direct him to undergo such assessment, the Respondents discriminated against him not on the basis of that attribute, but rather on the basis of a “presumed attribute”, namely impairment. It is contended that the decision made to require him to undergo a compulsory psychiatric assessment amount in itself to subjecting him to “less favourable treatment”, by presuming that only a mentally ill person would persist in agitating for a temporary reassignment to a particular prison, and to be provided with a particular roster which was suitable to accommodate his family responsibilities. So the case so articulated moves forward on the basis that in fact the Complainant did not suffer a disability in the nature of a psychiatric illness, and that in fact the alleged discriminatory conduct was on the basis of a fallacy, namely that he was or might be a mentally ill person, and that this was evidenced by other conduct which was relevant to other aspects of the case.
At the relevant time there was power pursuant to section 85 of the Public Service Act 1996 (Repealed) which stated:
85 Mental or physical incapacity
(1) This section applies to a person who is a public service employee if—(a)the person is absent from duty or the person’s employing authority is reasonably satisfied that the person is not performing his or her duties satisfactorily; and
(b)the employing authority reasonably suspects that the person’s absence or unsatisfactory performance is caused by mental or physical illness or disability.
(2) The employing authority may—
(a)appoint a doctor to examine the person and give the authority a written report on the examination; and
(b) require the person to submit to the medical examination.
(3)If, after considering the report of the medical examination, the employing authority is reasonably satisfied that the person’s absence or unsatisfactory performance is caused by mental or physical illness or disability, the employing authority may—
(a) transfer or redeploy the person; or
(b)if it is not reasonably practicable to transfer or redeploy the person—retire the person from the public service.
(4) Subsection (3) does not limit the action that may be taken in relation to the person.
When this matter first came to a hearing, there was some concern by the parties that the result of the Psychiatric Assessment issue might hinge upon the outcome of an appeal from this Tribunal concerning whether a similar provision of the Public Service Act 2008 must operate to have impliedly repealed the prohibitions in s.15 of the Anti-Discrimination Act. That issue was resolved by the judgement of the Court of Appeal in State of Queensland v Attrill and Anor [2012] QCA 299, where the Court unanimously held that it did. In the result that is not a matter that I am required to consider.
At an early time, in or about April 2006, an issue arose concerning Mr Gordon’s state of mental health. This involved the suggestion Mr Gordon himself made that he was going to see a psychiatrist. But nothing particularly came of that from the point of view of the Respondents. The evidence is that from time to time staff within the prisons might be referred for medical assessment on psychiatric grounds, and that it was not uncommon for such referrals to occur. The first time there were expressions by administrative staff about the Complainant’s emotional or mental state arose in August 2006. The concern of Mr Stevens, was to do with the Complainant’s emotional state, and whether its level of fluctuation might affect his ability to perform his duties, or affect the safety of others. But nothing was decided and no action taken on behalf of the First Respondent at that time.
By February 2007 the Third Respondent had taken over the position previously held by Mr Stevens. On the 2nd February 2007, the Third Respondent wrote to the Second Respondent which attached earlier correspondence from August 2006 which raised the possibility of Mr Gordon being “assessed to evaluate his suitability to be at work.” Also extracted was a copy of the Second Respondent’s reply, which mentioned having “submitted to Gerard for an opinion about drawing stakeholders together (you), Sharon, Steve Simmons, about mounting the case for an independent medical”. The Second Respondent again wrote to the Third Respondent on the 5th February asking whether Mr Gordon fitted “the section 85 criteria for referral for an independent medical assessment”. There was an exchange of emails on the 5th February on this topic. By the 19th March 2007 the Second Respondent wrote to the Third Respondent mentioning the fact that he had spoken with another staff member and suggested they “move toward a medical model first and then a performance model”. On the 27th March another staff member, Kelly Camden, wrote to the Third Respondent concerning the possibility of sending Mr Gordon to a doctor, with a report from the doctor to be used to approve the “independent medical”. It said “the results of the medical will determine our next action...it is likely to be a couple of weeks before we are ready to send Campbell off to the doctor”.
The Third Respondent denied conspiring with anyone with a view to having Mr Gordon examined under section 85. She conceded that what she thought to be his irrational conduct was a matter of concern, and although not the initiator of the idea of a section 85 examination, she was certainly involved in investigating the prospects of that occurring.
The fact remains that despite some investigation into the prospects of that occurring, no such referral ever in fact occurred. He was never medically examined and, insofar as the evidence is concerned he was not treated less favourably than another person without the alleged attribute. It does not seem to me that on the evidence here anything more is established than that in various communications, inter alia between the Second and Third Respondents, consideration was being given to whether the requirements under section 85 might be met, and further as to whether Mr Gordon might be suffering some mental or physical incapacity. This might be seen as legitimate concern as to the conduct of a staff member for whom the Second and Third Respondents were responsible.
I do not accept that this process was some façade or ruse set up with a view to effectively removing him from a position as prison officer. Nor was it in any way related to his having family responsibilities. I accept that both Ms Holmes and Mr Gehrke had concerns about Mr Gordon’s mental state. I do not accept that they reached the view that he had a mental illness or was in fact someone whose conduct met the criteria for a referral under section 85. In fact the conclusion reached, and which resulted in his not being referred, was that he did not. Therefore, the conduct in question should be seen as no more than two persons, with responsibility to oversee the performance of staff in the prisons, and to ensure the safety of others within the workplace, investigating the relevant incidents, conducting an examination or investigation into some of the Complainant’s conduct to see whether a referral under section 85 should occur. The conclusion was, after that investigation was conducted, that no such referral was justified. That conduct does not in my view constitute an act of direct discrimination within the meaning of that expression in section 10. Even if it was discriminatory, Mr Gordon’s case was that he did not in fact have the attribute of mental impairment. I was referred to no authority to support the proposition that one may be unlawfully discriminated against on the basis of a protected attribute one may be thought to have, but do not in fact have. It follows that this aspect of the complaint fails.
The victimisation claim
Section 129 of the Act makes it an offence to victimise another person. Victimisation is defined in section 130 of the Act as follows –
“130 Meaning of victimisation
(1) Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)—
(a) because the complainant, or a person associated with, or related to, the complainant—
(i) refused to do an act that would amount to a contravention of the Act; or
(ii) in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
(iii) is, has been, or intends to be, involved in a proceeding under the Act against any person; or
(b) because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).
(2) In this section, a reference to involvement in a proceeding under the Act includes—
(a) making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
(b) involvement in a prosecution for an offence against the Act; and
(c) supplying information and producing documents to a person who is performing a function under the Act; and
(d) appearing as a witness in a proceeding under the Act. ”
It is well accepted that to establish the relevant causal nexus, it is sufficient if the relevant Act which would amount to victimisation within the meaning of section 130, was a substantial or operative factor or reason for the detrimental conduct. See Morrison-Liddy v The Director of the Department of Technical and Further Education (1999) EOC 92-246; Bogie v The University of Western Sydney (1990) EOC 92-313; Cockin v P and N Beverages Pty Ltd [2006] QADT 42; Damianoand Another v Wilkinson and Another [2004] FMCA 891 at par 22; Narda Tapia v Lagoon Seafood Restaurant [2003] NSW IR Comm 341 at 108-113; Wadsoworth v Akers and Woolworths Ltd trading as Big W Discounts Stores [2007] QADT 17.
In final submissions on behalf of the Complainant, it was submitted that he had been subjected to victimisation, in contravention of the prohibition in section 129 of the Act in two respects which were put in the alternative, as follows:
“[159] The claim is put against the Department of two alternative bases:
(a)First, the collective adverse views in the Department arrayed against Mr Gordon because he had alleged discrimination and because he signalled an intention to commence proceedings for discrimination caused exclusive concentration on his potential culpability rather than the actions of his two colleagues, notwithstanding that the Director-General’s authorisation of the investigation approved the scope and terms recommended by the Department’s Chief Inspector, Mr Peter Bottomley.
(b)Second, when Mr Gehrke suspended Mr Gordon on 1 November 2007, he did so knowing that it would set in train a course of events that most likely would culminate in the termination of Mr Gordon’s employment. He did this because Mr Gordon had made allegations of contraventions of the Act and because Mr Gordon intended to be involved in a proceeding under the Act or he believed that Mr Gordon was going to continue to allege contraventions or be involved in a proceeding under the Act.”
The investigation which is referenced in those submissions is a reference to an investigation initiated into an incident which occurred in a section of the prison in which the Complainant was working on 17th August 2007. The incident in question involved the near death by suicide of a female prisoner who was under Mr Gordon’s supervision. After the conduct of an investigation by the Ethical Standards Branch, on the 1st November 2007, Mr Gordon was suspended with immediate effect and there were then initiated official misconduct disciplinary proceedings arising out of the incident. He was made to leave the workplace, and eventually on 21st February 2008 he was found guilty of misconduct in performing his duties carelessly and incompetently, and was dismissed from the employment of the First Respondent.
After he brought proceedings in the Queensland Industrial Relations Commission, it was ordered that he be reinstated. The findings of the Commission are before me. In large part the decision which founded disciplinary action, and ultimately the decision to terminate was made by Mr Christensen. I am satisfied that Mr Christensen properly reviewed the evidence which was available concerning the incident, and that he wrote a report which set out what he regarded as the relevant evidence, and his recommendations based upon it. I am satisfied that his decisions to make a recommendation on the basis of those adverse findings was one genuinely held, and not one which was in any way based upon any actuality or potentiality for allegations being made by Mr Gordon of contraventions of the Act, or of any proceedings relating to that conduct.
The decision to suspend Mr Gordon was made by the Second Respondent, but he was not the only person who was involved in any form of decision making associated with the relevant incident. It was alleged that the decision to target him, to the exclusion of two other officers who were on duty that day victimised him for:
(a)continually asserting and requesting a stable location/roster so that he might see his child; or
(b)continuing to refuse to accept temporary contract work because of its deleterious effects on his contact with his child; or
(c)continually agitating for roster variations so that he might have access to his child; and
(d)failing to negotiate the termination of his employment so that his employer might be relieved of its obligation to accommodate his family responsibilities by providing him with an appropriate location and stable roster in accordance with his family responsibilities to his child.
In that regard it was suggested that the conduct of Mr Gehrke, the Second Respondent, Mr Christiansen and Mr Rooney was relevant.
During the course of the hearing, Counsel for Mr Gordon abandoned any suggestion that it was Mr Gehrke who had in fact engaged in the relevant act of victimisation. But later in the course of a hearing it was suggested that it at least “started” with Mr Gehrke, although it did not go so far as to suggest that in fact he engaged in that conduct. It was not put to Mr Gehrke in cross-examination that he had acted in any way, insofar as he was involved, in a way which amounted to victimisation of Mr Gordon nor that anything that he did was because of any matter which would or could amount to a contravention of the Act. In truth the only conduct that could be pointed to in this respect was the issuance of Show Cause letter as to why the Complainant should not be suspended without pay. That letter was sent based upon advice from Mr Christiansen, who had investigated the relevant incident. I accept that no part of Mr Gehrke’s motive in so acting had anything to do other than with a genuine belief that that was an appropriate course to take based upon the advice he had received as to Mr Gordon’s involvement in the 17th August 2007 incident.
Insofar as it is alleged that Mr Christiansen was the person, or one of the persons who engaged in that victimisation, likewise there was no cross-examination of Mr Christiansen in an attempt to show that he was motivated by any matter which went to any issue concerning contravention of the Act. Mr Christiansen was the director of the Ethical Standards Branch. He had decided from his own investigations that the appropriate course was to counsel Mr Gordon. But after that decision was made, the matter was referred back to the Ethical Standards Branch and an investigation conducted by that Branch. Eventually, an investigation report was produced which contained the evidence that Mr Christiansen took into account in reaching a conclusion that Mr Gordon had engaged in conduct which amounted to carelessness, incompetence or inefficiency and that disciplinary action was to result. He swore, and I accept, that his decision had nothing to do with any potential or actual claim of discrimination by Mr Gordon. He was not challenged about the evidence to which I have just referred. I accept that he made his genuine findings based upon what he regarded as the relevant evidence upon that issue, and that in no part was his state of mind, or the recommendations that followed from it, the result of any act amounting to victimisation under the Act.
It is also suggested that the conduct of Mr Rooney amounted to victimisation. The facts are that Mr Rooney had no direct or even relevantly indirect role in the making of the findings, or the conduct of an investigation into Mr Gordon’s conduct. The Complainant is unable to point to any specific conduct on the part of Mr Rooney which would demonstrate that he engaged in acts of victimisation. I note that in the written submissions filed on behalf of the Complainant, there is no criticism of, nor any allegation of Mr Rooney to the effect that he engaged in victimisation.
Applying the principles which I have elucidated earlier as to the drawing of inferences and the problems of proof in a circumstantial case, is seems to me that there is just no, or no sufficient evidence from which I am able to conclude on the balance of probabilities, that any of the conduct of the First Respondent in relation to the suspension or dismissal of the complainant was motivated by any matter which went to any issue concerning contravention of the Act.
It follows that this aspect of the complaint also fails.
Remedies sought and assessment of compensation
In his pleaded case the Complainant had sought compensation for hurt and humiliation in the amount of $50,000 in total for all of the claimed categories of general compensation, for economic loss, and a written apology from the First Respondent. There are other consequential orders sought.
In the Complainant’s final submissions a written table of the compensation sought was provided. In the table the claims made for general compensation again treated each of the claims in effect as one compensable claim, and what was described as “a continuum” was said to have justified a submission that compensation in total be awarded in the range of $50,000 to $70,000. As a separate head, aggravated damages of $20,000 to $25,000 were claimed. Elsewhere in that summary, again referencing this “continuum of overlapping considerations”, it was submitted that a global figure for general compensation was the preferred approach. In the alternative it was suggested that damages for the victimisation claim should be assessed separately from the other two claims. Those submissions did not address either what the approach to quantification of compensation ought be if not treated globally.
In terms of the claim for aggravated damages, it was submitted that these ought be awarded to reflect what was submitted was the highhanded and contumelious manner in which the Respondents inflicted the damage. In that regard the relevant conduct was said to be:
(a)the sustained refusal to entertain the Complainant’s legitimate requests;
(b)the failure to follow the First Respondent’s own processes;
(c)the dismissal of those requests and treatment of him as a disgruntled person with psychiatric issues;
(d)the failure to meet with him to investigate his claim;
(e)keeping him in the relief pool without good reason; and
(f)opportunistically terminating his employment.
It is noted that no part of the grounds said to justify an award for aggravated damages referenced the manner in which this proceeding, or the hearing itself was conducted.
There remains some doubt as to whether and in what circumstances aggravated damages may be awarded in this jurisdiction. In that regard, I note that President Dalton SC, as she then was, in Edwards v Hillier and Educang Ltd trading as Forest Lake College [2006] QATD 34 accepted that there was no power under section 209 of the Act to award exemplary damages. In her analysis on this subject she said at paragraph 136:
“The complainant asked for aggravated or exemplary damages. I do not have power to award the later – see s.209(1) of the Act - I have power to compensate, not punish. Even if I had power, I do not regard the circumstances of this case as justifying an award of exemplary damages. Aggravated damages are in theory regarded as compensatory damages, but I am not persuaded that the circumstances here warrant any award. I think it would be a rare case in which the Tribunal would award aggravated damages in circumstances where it compensated for feelings of hurt and humiliation. At general law – for example in a tort claim – feelings of hurt and humiliation which do not amount to a recognisable psychiatric injury are not compensable. There may be more scope in such an action to award aggravated damages. In the Tribunal, complainants recover for hurt feelings which fall short of psychiatric injury, and if an award is made which compensates a complainant in that regard it is difficult to see how an award of aggravated damages could be anything but punitive in fact, whatever the position in legal theory”.
Before me it was submitted on behalf of the Respondents that Edwards v Hillier & Educang Ltd is authority for the proposition that aggravated damages may not be awarded in this jurisdiction where general damages are sought for hurt and humiliation. Of course that decision says no such thing.
In the United Kingdom, it has been recognised that in this jurisdiction aggravated damages can be awarded. The President of the Employment Appeal Tribunal, Mr Justice Underhill, in Commissioner of Police of the Metropolis v. Mr H Shaw [2012] IRLR 291 (EAT)[3] conducted an authoritative review of the relevant authorities in relation to aggravated damages in the context of discrimination law and held:-
[3] starting point is that the only purpose of aggravated damages is compensatory. They should not be awarded in order to punish the Respondent for his conduct, however heinous: that is the province (known in a very limited class of case) of exemplary damages, which are a wholly different creature… This point needs to be made because the facts in cases which attract an award of aggravated damages will be likely to be such that the Tribunal is likely to be indignant, if not positively outraged, at the way the employer has behaved: but (save in a case properly attracting exemplary damages) the right vehicle for such indignation is in what it chooses to say about the employer’s conduct rather than in a punitive award.”
“We are very doubtful whether the practice of awarding “aggravated damages” as a separate head of compensation is a good thing.”
He goes on to suggest that if the Tribunal was starting from scratch they would abolish that concept. He concluded that it would not be appropriate at the Tribunal level to seek to abolish such an established concept.
He went on in Paragraph 25 to say:-
“… it would be a healthy reminder of the real nature of aggravated damages if any such awards were in future formulated as a sub-heading of “injury to feelings” – i.e. “injury to feelings in the sum of £X, incorporating aggravated damages in the sum of £Y” – rather than as a wholly distinct head: this may reduce the risk of the tribunal being seduced into introducing a punitive element by the back door. More generally, tribunals should pay careful attention to the principles which we have endeavoured to set out above. Ultimately the most important thing is that they identify the main considerations which have led them to make the overall award for injury to feelings, specifying any aggravating or mitigating features to which they attach particular weight. As long as this is done they should not lose sleep over exactly where the dividing line falls between the award for (“ordinary”) injury to feelings and the award of aggravated damages (and the award for psychiatric injury where one is made). What matters is whether the total award for non-pecuniary loss is fair and proportionate.”
The Tribunal said that an award for aggravated damages fell into three categories, as helpfully identified by a Law Commission Report on Aggravated, Exemplary and Restitutionary Damages, namely:
(a)the manner in which the wrong was committed; the distress caused by an act of discrimination may be made worse by it being done in an exceptionally upsetting way. In this context the phrase “high-handed, malicious, insulting or oppressive” is often referred to;
(b)motive; for example conduct which is based on prejudice or animosity or which is spiteful or vindictive or intended to wound; and
(c)subsequent conduct; for example, where the defendant conducted his case at trial in an unnecessarily offensive manner or where the employer “rubs salt in the wound” by plainly showing that it does not take the claimant’s complaint of discrimination seriously. A failure to apologise may also come into this category, but will depend on the circumstances of the particular case.
In Australia it has been recognised that aggravated damages may be awarded in discrimination cases. That was first recognised in Hall v Sheiban (1989) 20 FCR 217. There, Justice Lockhart cited with approval authority to the effect that aggravated damages may be awarded where a defendant behaved “high handedly, maliciously, insultingly or oppressively in committing the act of discrimination”. His Honour also considered that the circumstances in which the relevant contact occurred may also give rise to an element of aggravation, such as that of employee and employer. Lockhart J held that:
“it is fundamental that an award of a larger amount of damages by way of aggravated damages serves to compensate the victim for damage occasioned by the Defendant’s conduct where an element of aggravation is involved in that conduct and not to punish the Defendant”.
A number of other authorities have discussed this concept in this context. They include Elliott v Nanda (2001) 111 FCR 240, Font v Paspaley Pearls Pty Ltd (2002) FMCA 142 and Hughes v Car Buyers Pty Ltd (2004) 210 ALR 645.
For present purposes I am content to proceed on the basis that in an appropriate case aggravated damages might be awarded in the circumstances recognised by Justice Lockhart in Hall v Sheiban. However in my view the circumstances to which submissions were directed as enlivening an entitlement to such damages are not of themselves elements of aggravation, rather than conduct which was part of the narrative involved in the alleged discriminatory conduct itself. Indeed, in large part they repeat the factual matters which are relied upon as establishing the fact of discriminatory conduct. I do not regard this as a case in which any award of aggravated damages should be made, even had I upheld any or all of the three claims.
In terms of general compensation, it seems to me that notwithstanding the Complainant’s submissions, each of the claims needs to be the subject of a specific assessment because there are different considerations which apply to each, and it does not seem to me to be either reasonable or ultimately convenient to treat them as a “continuum”, or as effectively one claim.
The Complainant set out in his statement of the 27th June 2011 the ways in which he contended the relevant conduct had affected him. Clearly he was most affected by the way he was treated in relation to the work roster issue. Essentially he pointed to lost opportunities to enjoy a close relationship with his son for a period of 2 years and having lost opportunities to enjoy contact with him. I accept that he would have been faced with that consequence. Reference was made to the humiliation he suffered because the Complainant was evicted from his home, however, I do not regard that eviction as a consequence of any discriminatory conduct in question. It resulted from the administrative errors leading to his being underpaid. He also described a breakdown of his relationship with his former spouse and the effects of this upon his relationship with his girlfriend who was under stress because of the necessity for her to provide emotional and financial support to him. They postponed arrangements to marry after his dismissal. He contends that he could not get a “decent job” because of the circumstances of his dismissal. He had planned positions in commissioned sales and merchandising. I accept that he probably was disadvantaged in that way.
He refers to having incurred significant legal costs to defend himself during the disciplinary process in which he sought reinstatement in the QIRC. He was forced to borrow money to finance this. I do not regard these expenses as consequential upon the work roster issue which was the subject of the claims here. The statement does not deal separately with the consequences for him resulting from his being considered for referral for psychiatric assessment, or the victimisation claim.
The outline of submissions filed for the Complainant does deal in some broad detail with the consequences for him arising out of the work roster issue, the psychiatric assessment issue, and the victimisation claim. The Respondents take issue with whether there is evidence to demonstrate a factual basis for a significant number of these matters relied upon.
I have no doubt that the Complainant’s belief or understanding that he had not achieved a stable roster, and indeed the way in which he perceived his employer to be handling that issue caused him significant stress, anxiety and interruption to his relationship with his son. The voluminous history of correspondence between him and his employer bears out that level of distress, frustration and irritation. Taking all of those matters into consideration and having regard to comparable awards in other cases, it seems to me that an award of general compensation in respect of the work roster issue would be an award of $25,000.
In respect of the psychiatric assessment issue, it is submitted for the Complainant that he was denied the opportunity to transfer, was treated dismissively, and rendered his employment more precarious, damaged his reputation because, as the submissions put it ,he was seen as “a nutter” and had the indignity of being placed under covert surveillance. Unfortunately, none of these matters was specifically referenced in any, or any relevant statement of detail in the Complainant’s evidence. To a large degree the activity that was going on behind the scenes when consideration was being given to whether he ought be referred for psychiatric assessment were not known to him contemporaneously. In large part his knowledge of what was occurring with a view to that referral came to light only once the present complaint was commenced, and there was an exchange of relevant documentation about that issue. Had I upheld this aspect of the claim, in my view a reasonable award of compensation for the effects upon him of that discriminatory conduct would have been an amount of $4,000.00.
In respect of the victimisation claim, the Complainant submitted that the relevant factors were primarily concerned with his having been dismissed from employment, having to take his complaint to the Industrial Relations Commission, the fact of the accusations involving the vulnerable prisoner, and that his conduct was the subject of investigation. It is difficult to tease out of the evidence, minimal though it be, any distinct effect upon him of the conduct amounting to victimisation as distinct from the consequences of a dismissal which was said to have been on the basis of misconduct on his part as an employee. No doubt there was considerable distress, expense and anxiety associated with having to bring a proceeding in the Commission to obtain his reinstatement. But his reinstatement there did not occur without his having been criticised for his role in the incident involving the suicidal prisoner. Doing the best I can on the evidence and having regard to comparable awards in victimisation cases, in my view a reasonable allowance for events surrounding the claimed victimisation would be $15,000.
In the final submissions a claim is made for the Complainant’s legal fees associated with the disciplinary process and in prosecuting his application for reinstatement. This amount might only have been recovered had the victimisation case been upheld. Had I upheld the argument that he was not in fact bona fide dismissed for the reasons advanced on behalf of the Complainant, it would be reasonable to have allowed some proportion of the totality of his legal fees incurred in obtaining his reinstatement on the basis that they were incurred because he was dismissed in the first place as part of the victimisation to which he was being exposed. The evidence as to what precisely those fees related to, and how they related to the disciplinary process and prosecuting the application for reinstatement is almost entirely absent. Indeed, in the Complainant’s written outline in which this claim is made, it is asserted that tax invoices to support the claim are “available for verification”. Again, doing the best I can on meagre evidence, I would have been prepared to allow half of that sum by way of compensation for outgoings related to the alleged victimisation.
There are also claims for economic loss or the loss of chance to earn income by way of overtime. This is put forward on the basis that he was denied overtime opportunities from December 2006 until February 2008. Additionally, there are claims that he had to pay a higher tax rate in consequence of his dismissal. There was no evidence put forward to support these claims, or at least none that established the basis for the claims as set out in the Complainant’s submissions. I therefore would have made no allowance in respect of the claimed economic loss.
There are claims for out of pocket expenses totalling slightly in excess of $500. Again, there is no direct evidence of why it was that these were incurred. They are said to relate primarily to treatment by a psychologist, however, only one invoice for May 2006 is in evidence. On the evidence before me, I am unable to be satisfied that these expenses were probably incurred as a result of any one or more of the three categories of claim, or as to which claim specifically.
Had I upheld any of these claims, I would have allowed interest as recoverable at the rate of 10% from the date on which the complaints were lodged.
The formal orders that I therefore make are that the complaint be dismissed.
- AGLC
- Gordon v State of Queensland & Ors [2013] QCAT 564
- Case
- [2013] QCAT 564
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.