Grimsey v Laketrend Pty Ltd - [2022] QIRC 32

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Grimsey v Laketrend Pty Ltd & Ors [2022] QIRC 32
PARTIES:	Grimsey, Marian (Complainant) v Laketrend Pty Ltd (First Respondent) & Paul Flynn Property Group Pty Ltd (Second Respondent) & Flynn, Paul (Third Respondent)
CASE NO.:	AD/2019/51
PROCEEDING:	Referral of Complaint
DELIVERED ON:	9 February 2022
HEARING DATE:	16 March 2021
MEMBER:	Power IC
HEARD AT:	Brisbane
ORDERS:	1. The complaint is dismissed. 2. I make no order as to costs.
CATCHWORDS:	HUMAN RIGHTS – DISCRIMINATION LEGISLATION – allegations of direct and indirect discrimination on the basis of age and sex in the pre-work area – whether complainant was treated less favourably in the pre-work area on the basis of age and sex – whether job existed at the time complainant and respondent met – whether respondent made an unlawful request for information to the complainant
LEGISLATION:	Anti-Discrimination Act 1991 (Qld), ss 7, 8, 10, 11, 14, 124, 133, 136, 141, 166, 204 and 205 Anti-Discrimination Act 1977 (NSW) Disability Discrimination Act 1992 (Cth) Discrimination Act 1991 (ACT) Industrial Relations Act 2016 (Qld), s 539, sch 2 s 2 and sch 2 s 4
CASES:	Bair v Goldpath Pty Ltd & Callinan [2010] QCAT 483 Bloomfield v Westco Jeans Pty Ltd (2001) EOC 93-161 Eyden v Commonwealth (1999) EOC 93-000 Holdaway v Qantas Airways Limited (1992) EOC 92-395 Hopper & Ors v Virgin Blue Airlines Pty Ltd [2006] QADT 9 Ogden v Wantima Country Club and Ors [2020] QIRC 083 Tully v McIntyre [2000] QCA 115 Willmott v Woolworths Ltd [2014] QCAT 601 Y v Human Rights & Equal Opportunity Commission [2004] FCA 184
APPEARANCES:	Ms P. Morreau of Counsel instructed by Ms M. Alexander of Legal Aid Queensland for the Complainant. Mr P. Flynn for the Respondents.

Reasons for Decision

Ms Marian Grimsey ('the Complainant') filed a complaint against Laketrend Pty Ltd ('the First Respondent'), Paul Flynn Property Group Pty Ltd ('the Second Respondent') and Mr Paul Flynn ('the Third Respondent') (together, 'the Respondents') alleging contraventions against the Anti-Discrimination Act 1991 (Qld) ('the AD Act'). The Third Respondent is the sole director for the First and Second Respondents and operates the Second Respondent.

The alleged contraventions relate to direct and indirect discrimination on the basis of age and sex and an unlawful request for information. The burden of proof lies with the Complainant to satisfy the Queensland Industrial Relations Commission ('the Commission'), on the balance of probabilities, that the Respondents contravened the provisions of the AD Act.[1] In the case of indirect discrimination, the Respondents must prove on the balance of probabilities that a term complained of is unreasonable.[2]
[1] Anti-Discrimination Act 1991 (Qld) s 204 ('AD Act').
[2] Ibid s 205.

Background

The Complainant is a licenced real estate agent with many years' experience working in the real estate industry. The Third Respondent is a real estate agent who operates the Second Respondent. The Complainant and the Third Respondent ('the parties') were known to each other for up to ten years and, although…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grimsey v Laketrend Pty Ltd

Details

AGLC: Grimsey v Laketrend Pty Ltd [2022] QIRC 32
Case: [2022] QIRC 32
Decision Date: 9 February 2022

CaseChat Overview and Summary

In the case of Grimsey v Laketrend Pty Ltd, the applicant brought a complaint to the Queensland Human Rights Commission alleging discrimination on the basis of age and sex, as well as an unlawful request for information. The complaint was about the conduct of the respondents in the pre-work area, where it was claimed that the applicant was treated less favourably due to their age and sex. The applicant argued that the respondents had discriminated against them by asking for their age, taking their photo, and responding to them via email in a manner that indicated a preference for someone younger and more tech-savvy. The applicant also claimed that the respondents had made an unlawful request for information.

The legal issues that the Commission had to decide included whether the conduct alleged by the applicant constituted direct or indirect discrimination under the Anti-Discrimination Act 1991 (Qld) and whether the conduct occurred in the pre-work area as defined in the Act. The Commission also had to consider whether the applicant was treated less favourably on the basis of age and sex and whether the respondents had made an unlawful request for information.

The Commission found that the conduct alleged by the applicant did not occur in the pre-work area as defined in the Anti-Discrimination Act 1991 (Qld) and therefore did not constitute prohibited discrimination. The Commission noted that the applicant's evidence regarding the impact of the respondents' email on their mental health was compelling, but held that the use of hurtful words was not proscribed by the Act unless it amounted to discrimination. The Commission also found that there was no unlawful request for information made by the respondents.

The Commission dismissed the complaint and made no order as to costs. Each party was ordered to bear their own costs of the proceeding.

Orders

Orders of the court

1. The complaint is dismissed.

2. I make no order as to costs.

Background

Background to the litigation

The Complainant filed a complaint in the then Anti-Discrimination Commission of Queensland ('ADCQ')[4] alleging direct and indirect discrimination on the basis of age and an unlawful request for information. The complaint was accepted pursuant to ss 136 and 141 of the AD Act. Following an unsuccessful conciliation at the ADCQ, the matter was referred to the Commission pursuant to s 166(1)(a) of the AD Act. [4] Now the Queensland Human Rights Commission.Complainant's Statement of Facts and Contentions The Complainant submits that the Third Respondent unlawfully discriminated against the Complainant in the area of pre-work, under ss 14(a) and (b) and/or (d) of the AD Act. It is contended by the Complainant that only the last basis, under s 14(d), is dependent upon proof that the Respondents had work available to offer, and then failed to do so. The Complainant contends that the Respondents discriminated against the Complainant on the basis of the attribute of age, pursuant to s 7 of the AD Act by the following conduct:(a)asking the Complainant her age and taking her photo, during the course of the 'chat' about possible work, or interview; and(b)responding by email to her in the terms:Even if we did we feel we would want to goneith (sic) someone younger and more tech savey (sic). The Complainant notes that s 8 of the AD Act permits reference also to characteristics that older persons generally have and characteristics that are imputed or presumed, submitting that an older appearance is a characteristic that older persons generally have and a lack of technological knowledge is a presumed characteristic of age. The Complainant submits that the Third Respondent, as agent for the First and Second Respondents, has discriminated against the Complainant:(a)in the arrangements made for deciding who should be offered work; or(b)in deciding who should be offered work. The conduct alleged is submitted to be both direct and indirect discrimination pursuant to ss 10 and 11 of the AD Act. The Complainant's contentions regarding direct discrimination are as follows:(a)The Respondents treated the Complainant, being a woman of older age (over 50), less favourably than a younger woman would be treated in circumstances that were the same or not materially different;(b)this is particularly apt in respect of the arrangements made by the Respondents for deciding who should be offered work and/or deciding who should be offered work, but also applies in respect of any failure to offer her work;(c)if there was more than one reason for taking any of the steps mentioned in the pre-work area, then it is contended that her age was 'a substantial reason for' that treatment, within the meaning of s 10(4) of the AD Act;(d)the Respondents treated the Complainant less favourably in the area of pre-work than they would treat another, younger woman (less than 50), in circumstances where that younger woman had approached the Respondents looking for work where no job had been advertised; and(e)a hypothetical younger female job seeker would not be:

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the absence of a finding that the AD Act has been contravened, it is not necessary to address the grounds relating to the assessment of compensation or the issue of joinder. Conclusion I have carefully considered all of the evidence in this matter and determined that the Third Respondent did not contravene ss 6 or 124 of the AD Act as the relevant conduct did not occur in the pre-work area. I note the Complainant's compelling evidence regarding the impact of the Third Respondent's email on her mental health. I accept that the Complainant felt upset, humiliated and distressed by the Third Respondent's email. However, as noted by the Court in Tully, it is not the use of hurtful words that is proscribed by the AD Act,[34] but rather the act of discrimination. The conduct, although in my view entirely inappropriate, did not occur in the pre-work area in accordance with s 14 and therefore cannot be considered prohibited discrimination in accordance with s 6. As discussed above, it follows that there has been no contravention of s 124 on the basis that there was no unlawful discrimination. [34] With the exception of particular forms of objectionable conduct set out in ch4 pt 4, ch 5 and ch 5A of the AD Act. No submissions were made with respect to costs and I do not consider the interests of justice require the making of a costs order in this matter.[35] Accordingly, pursuant to s 2 of sch 2 of the IR Act, each party are to bear their own costs of the proceeding.[35] Industrial Relations Act 2016 (Qld) sch 2 s 4.Order I make the following orders:

Ratio Decidendi

Legal Principle Established

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