Gough v State of Queensland - [2013] QCAT 320

CITATION:

Rosenlund v Jia Ning International Pty Ltd Morgan Chen [2013] QCAT 320

PARTIES:	Karlee Patricia Rosenlund (Applicant)
v
Jia Ning International Pty Ltd Morgan Chen (Respondent)

APPLICATION NUMBER:

ADL092-12

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

26 April 2013

HEARD AT:

Brisbane

DECISION OF:

Paul Favell, Member

DELIVERED ON:

20 June 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The application is dismissed.

CATCHWORDS:

ANTI-DISCRIMINATION – whether victimisation – whether unfair dismissal.

Anti-Discrimination Act 1991 ss 7, 9, 10, 15, 130 and 166.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Karlee Rosenlund

RESPONDENT:

Amy Zhu on behalf of the respondent

REASONS FOR DECISION

The applicant was an employee of the IGA Convenience Store at Caboolture from 14 February 2012 until 9 May 2012. The applicant’s claim is that she was unfairly dismissed on the basis of her pregnancy and victimised as a result.
The applicant complained to the Queensland Anti-Discrimination Commission on 18 May 2012 as follows:
On the 14^th of February 2012 I was employed by Morgan Chen and Amy Zhu as a Night Manager/Supervisor at the IGA Convenience Store Caboolture Lear Jet Drv to Manage Junior Staff be in charge of the Store and it’s [sic] closing at the end of Night Shifts. I started the next day, 15^th February, everything was going well, it was all smiles and I was given 50 Hours plus over a fortnight to work. I found out in the beginning and know that this job was a permanent one as towards the end of my trial period within my first couple of weeks I was offered another job that I had applied for and I had to find out if my IGA Position was on going/permanent otherwise I would have taken the other job and I needed to know if they were Happy with my work. I mentioned it to Amy and Morgan and spoke to them about this, Amy said Yes they wanted me to work there, my own set of store keys, I was given my own personal store alarm code and SAFE access for store money handling duties.
Then on March 26^th I found out the news that I was Pregnant so on my next shift with Morgan within the next couple of days of OH&S reasons and to be a responsible Employee I told Morgan my news, with this I got a very blunt response of “so you can’t do your Job”, I told Morgan Yes I can as I worked through my last Pregnancy as a Cleaner for the Caboolture Crt House right up until 7-8 months, I am very capable and able to do my Job no worries. From then on, starting with my next work roster on the 29^th of March my work hours were cut to around 30 hours a fortnight and I was constantly given an unreasonable hard time at work by Morgan. Employees who witnessed this made comments to me about his behaviour towards me and said he cuts peoples shifts to try and make them leave because they’re not getting any work, these Employees had worked here longer than me and said he has done this to previous Employees, he was being unfair and no one else seemed to be getting treated this way. Morgan had called me at home one day and yelled at me over the phone blaming me for the shop register being “under” and said he was going to take the Money from my Wage because he didn’t think it was fair he has to pay it??? I told him everyone uses the Registers and by Law he is unable to do that to any Employee, he asked me what he should od then, I told him Sorry but maybe he should speak to his Store Rep, someone who’s delt [sic] with this problem and he then hung up on me. On the first fortnight in April Morgan asked to have a chat with me in his office where he asked me “Do I enjoy my job”? I told him yes I do but I do feel like he has been treating me unfairly ever since I told him about my Pregnancy and asked if he could please try not to stress me as it will affect my Pregnancy and it is not good for the Baby. Morgan then said maybe I can’t do my job if I can’t handle the stress, I said yes I can and that he seemed to be the only one stressing me, he then started yelling at me and telling me I need to do a better job or I will lose my job etc. which I did not understand, he was blaming me for other peoples work mistakes and I had not done anything wrong as far as I was concerned, I then told him if he’s trying to make me leave he can’t Fire me for being Pregnant as it is against the Law, he then um’ed and ah’ed, continued on blaming me and then left it at that. He still continued to give me a hard time, on the 16^th of April before my Shift while I was waiting to start work, I got in trouble for sitting down waiting to begin my Shift when he said I should be talking to other staff about what is in the “Hot Box” (I would not get paid for this as I had not started yet). It seemed like Morgan was just abusing me for no good reason. Then last Wednesday night, 9^th of May, at the end of my shift running the Store both Morgan and Amy said, once again, we need to have a Chat. He then proceeded to tell me that due to the Economy (Apparently) he can’t afford to give me any work for the next fortnight, he had to cut my Shifts all together because the business was not doing well (though he had just Employed Two new Employees in the previous week), he said he will call me if any work comes up but until then he does not know, I said I need work so I can pay my Bills, I have a Baby coming and then he said he and Amy have bills too and I should/can start to look for a New Job as of tomorrow, Thursday, he will give me a reference then said I have been the Best Supervisor they’ve had and I have done a really good job for them. Amy was in the room but was ignoring the conversation with her back turned looking at some papers. After this he said “Here is your Last Pay Slip” and can they have my Store Keys back, I then left, drove home and have not heard from them again.
The words “Your Fired” [sic] were not actually said and I have not been given a Dismissal Notice but from the chain of events that has happened and what I was put through at work ever since I told Morgan about my Pregnancy, being told at the last Chat “Here is your last Pay Slip” and asked for my Keys back I honestly don’t think I will be offered any work from them again and other than my Pregnancy they really have had no reason to treat me this way or take my work from me, even if this was a Part Time Casual Position I was told in the beginning and was under the impression that this was a permanent one. Now this has put me in a very unfair and difficult position in my life, I will have trouble or not be able to gain another job at this time due to my Pregnancy, I have so much worry about my finances, I am stressing about what is going to happen and I keep getting pains across my Stomach when I worry as I did every time Morgan yelled at me or gave me a hard time. I did really enjoy this job, it was close to home, the pay was ok and IU got on well with other Staff and Customers. I do not however feel right or safe, especially for the sake of my growing Baby, returning to this work at all as I feel any friendly work relationship with my Employers has been broken and I feel that this treatment would continue again. I believe I was verbally abused at work and honestly given an Unfair Dismissal due to my Pregnancy.
That complaint was referred to QCAT pursuant to section 166 of the Anti-Discrimination Act 1991.
The applicant now complains that the respondents discriminated against her on the basis of pregnancy.
The applicant contends that her employment was on the basis of an ongoing/permanent role. She was given managerial job responsibilities, including working over 50 hours per fortnight, possessing her own set of store keys and an alarm code, having access to the store safe and store closing responsibility.
On this basis the applicant contends the respondent was in breach of ss 7, 10, 15 and 130 of the Anti-Discrimination Act 1991 (the Act). The applicant claims for:
a) Lost income up until four weeks prior to birth, averaged on 52.5 hours per fortnight: $13,280
b) Compensation for hurt and humiliation: $5,000.
The respondent contends that the applicant was employed as a casual, which means she was employed on an irregular basis and not guaranteed any set hours of work.
The male respondent states that he is from a non-English speaking background and interpreted the applicant’s complaint as meaning that she would have difficulties performing her role. The respondent contends that once this statement was clarified, he ensured that the applicant was working safely and not doing any heavy lifting.
The respondent contends that the applicant’s employment was terminated within the first three months of employment and therefore did not require a reason to terminate as it was within the qualifying period. The respondent had assessed the applicant’s performance and decided she was not suitable for his business. The respondent contends that the applicant had issues dealing with other staff members and was occasionally forgetful.
The anti-discrimination purpose of the Act is set out in Part 1 of Chapter 2 of the Act. One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation. That purpose is to be achieved by prohibiting discrimination that is on a ground set out in part 2 and of a type set out in part 3 and in an area of activity set out in part 4 of the Act unless an exemption set out in out 4 or 5 of the Act applies; and allowing a complaint to be made under chapter 7 against the person who has unlawfully discriminated; and using the agencies and procedures established under chapter 7 to deal with the complaint.
Part 2 of the Act by s 7 relevantly prohibits discrimination as follows:
7 Discrimination on the basis of certain attributes prohibited
The Act prohibits discrimination on the basis of the following attributes—
(c) pregnancy;
(p) association with, or relation to, a person identified on the basis of any of the above attributes.
Part 3 of the Act by s 9 prohibits direct and indirect discrimination as follows:
9 Discrimination of certain types prohibited
The Act prohibits the following types of discrimination—
(a) direct discrimination;
(b) indirect discrimination.
Relevantly, direct discrimination on the basis of an attribute happens if a person treats a person with an attribute less favourably than another person without the attribute (s 10). Section 10 reads as follows:
10 Meaning of direct discrimination
(1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
Example—
R refuses to rent a flat to C because—
• C is English and R doesn’t like English people
• C’s friend, B, is English and R doesn’t like English people
• R believes that English people are unreliable tenants.
In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct.
(2) It is not necessary that the person who discriminates considers the treatment is less favourable.
(3) The person’s motive for discriminating is irrelevant.
Example—
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.
(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
(5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
Relevantly, indirect discrimination on the basis of an attribute happens if a person imposes a term with which a person with an attribute cannot comply and which a higher proportion of people without the attribute are able to comply and that is not unreasonable (s11).
Discrimination on the basis of an attribute is defined in s 8, to include direct and indirect discrimination on the basis of a characteristic that a person with any of the attributes generally has; or a characteristic that is often imputed to a person with any of the attributes; or an attribute that a person is presumed to have, or to have had at any time by the person discriminating; or an attribute that a person had, even if the person did not have at the time of the discrimination.
The applicant also relies on section 130 of the Act which reads 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.
The applicant gave evidence and was cross-examined by Mr Chen. She said that Mr Chen was mean to her, not very nice and upset her constantly. She said he yelled at her and asked her “do you enjoy your job.” She complained that Mr Chen “called me out and got up me about drinks not being aligned.” She said she was treated unfairly.
Mr Chen gave evidence that he did not care that the applicant was pregnant except to ensure she did not do heavy lifting. He said she was not told she had a permanent job, nor was she guaranteed any particular hours of work.
John Cullen, a former co-worker of the applicant, was called by the applicant to give evidence. He said that he had been asked by Mr Chen if he liked his job. He said after being asked by the applicant that he did not think the applicant was dismissed because she was pregnant. He did not notice the applicant being treated any differently to any other employee. He said that Mr Chen took over the IGA shop in December of 2011 and two months later he took over the actual management. Mr Chen hired a lot of staff, many of whom worked only 1 to 2 months before they left. He said there were no permanent employees. After he had given evidence the applicant said to Mr Cullen before he has excused, “thank you, you have told the truth.”
Morgan Chen in his evidence said that the applicant was always a part time/casual employee and the payroll system only allowed part time/casual employees. He said that the applicant in his view was more suitable for the afternoon shift which involved a lot of cleaning for which she had experience. He said that when the applicant was employed he and his partner had no experience in the business. At the interview with the applicant, they thought she would be good for the position. He says that when he was told by the applicant of her pregnancy, he asked “are you trying to tell me you are pregnant and cannot do the job?” He says he was trying to clarify why he was being told of the pregnancy because he did not understand why he was being so informed. He said he asked “if there was anything (you) could not do and is there anything (we) could do?”
Mr Chen said that in 2012 sales dropped and he had to reduce expenses. The applicant was dismissed as part of the expense reduction.
I accept that the applicant was employed as a casual employee and that there was no representation that she would be employed as a permanent employee. The rates of pay and the General Retail Industry award along with the pay rates in my view corroborate such a finding of fact. Further, the nature of the business supports such a finding.
I accept the evidence of Mr Chen about the work history of the applicant. That evidence was not really challenged.
The applicant sought to advance the argument that because she was pregnant and Mr Chen knew she was pregnant, that her dismissal was a breach of the Act.
I cannot find any evidence to support such a conclusion and in fact the available evidence suggests a contrary conclusion. I accept the evidence of Mr Chen concerning the necessity to vary working hours because of holiday periods and turnover factors. I accept that the business was under financial strain at all relevant times. I also accept the need for the employment of juniors in those economic times.
Ms Yuzie (Amy) Hu gave evidence. She is the partner of Mr Chen. I accept her evidence that the applicant’s hours were not reduced. The documentary evidence produced supports such a conclusion. Generally I accept her evidence that the pregnancy of the applicant did not affect her job.
Bradley Pultz, a co-worker of the applicant, gave evidence about the suitability of the applicant to fill a position of Morning Cook. In my view, that evidence did not support the applicant’s contention.
In my view, the assessment of Mr Chen concerning the assessment of the applicant’s continuing suitability for the job in the financial circumstances was not because of her pregnancy and I find that the allegation of breach of the Act has not been made out and accordingly the claim is dismissed.