Jones v Queensland Health - [2012] QCAT 167

CITATION:

Jones v Queensland Health [2012] QCAT 167

PARTIES:	Tamara Cecile Jones (Applicant)
v
Queensland Health (Respondent)

APPLICATION NUMBER:

ADL127-10 / ADL049-11

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

3 April 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application to strike out paragraphs in the Applicant’s contentions as to allegations of discrimination on the basis of sex and relationship status is refused.

2. Application to strike out paragraphs in the Applicant’s contentions as to allegations of victimisation arising from any basis other than impairment discrimination is refused.

3. Paragraphs 222 to 240 of the Applicant’s contentions are struck out.

CATCHWORDS:

ANTI-DISCRIMINATION – where complaint categorised by Anti-Discrimination Commission as based on impairment – where contentions filed alleging discrimination on basis of impairment, sex and relationship status and victimisation – where entire complaint found to have been based on allegations wider than impairment – where leave not required to amend complaint – where early termination of part of complaint sought – where applicant should have opportunity for a hearing of her complaint – where allegations made of discrimination arising from events post lodgement of complaint – where fresh complaint not accepted or referred to QCAT

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Tamara Cecile Jones represented by Susan Moriarty & Associates, Lawyers

RESPONDENT:

Queensland Health represented by Minter Ellison, Lawyers

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Tamara Jones complains that she was assaulted on 17 March 2007. From that assault, a series of consequences have flowed right up to the present day. She contends that she was treated less favourably in her workplace, she developed serious ill health, her employment status is under threat and she has become involved in a series of legal claims and litigation.
Ms Jones has lodged 4 complaints in the Anti-Discrimination Commission based on conduct that is alleged to be part of the consequences of the assault. Only 2 of her complaints are relevant to this decision and set of reasons: the complaint commenced on 6 July 2009 and the complaint commenced on 6 November 2009. These complaints are being dealt with together at this stage in QCAT.
In the complaint commenced on 6 July 2009, and which is now ADL127-10, Ms Jones alleged, among other things, that her employer, through identified officers,
·had refused her request for leave from work to undergo therapy on the basis that it was a personal matter and not work related;
·had not offered her support to complain about the assault;
·had refused to remove her from frontline counselling work in sexual assault shifts;
·had declined to investigate her complaints about ongoing harassing conduct of the man who had assaulted her;
·had extended her probationary period;
·had wrongly refused to allow her to return to work after she had ceased work due to ill health;
·had unfairly made allegations about her unsatisfactory work performance.
The formal complaint document lodged with the Commission on 6 July 2009 does not comprise the entire complaint. Other documents lodged by Ms Jones with the Commission were taken also to comprise the complaint including her letter to the Commission dated 3 September 2009 and her submissions received on 8 October 2009 as to the out of time aspects of her complaint.
In those lengthy submissions, Ms Jones confirms the matters set out in the document lodged on 6 July 2009 but in doing so, she also expands on and clarifies some aspects of her complaint. She recites and repeats a litany of events from 2007 to 2009, emanating from the actions or inaction of her employer, which are said to have placed her in the position of being a victim of adverse consequences impacting on her employment. According to her account, the source of the allegations of victimisation can be traced back to the time immediately following the assault and have accumulated since then.
In addition, at page 12 of her submissions she referred to the attitude adopted by her employer regarding the assault and subsequent harassing conduct as not being the responsibility of the workplace. She complained that she has been poorly treated by her employer over the assault and subsequent harassment while the man who had assaulted her was treated with concern by the same employer by being transferred to another area. She appeared to imply that differential treatment she had received amounted to sex discrimination and she referred to, and enclosed, a copy of a case in which similar differential treatment was found to have constituted sex discrimination.
The Commission later accepted the entire complaint which is now identified as complaint ADL127-10 at QCAT. The Commission in its letter dated 2 June 2010 described the complaint as being a complaint of impairment discrimination in work. I consider that the Commission has not, in using those words, properly or fully categorised the complaint made by Ms Jones as the accepted complaint was clearly based on issues wider than impairment discrimination. I note that no part of the complaint had been expressly rejected by the Commission.
While QCAT can only entertain the referred complaint, QCAT is not bound by the categorisation of the complaint made by the Commission.[1] QCAT can categorise the complaint in terms which the tribunal considers are relevant and appropriate. I am satisfied that a proper reading of the documents lodged with the Commission and which comprised the entire complaint (ADL127-10) must lead to the finding that the complaint is based on discrimination on the grounds of impairment and sex and also alleges victimisation by the employer.
[1] McKenzie v Mackay & State of Queensland [2005] QADT 24.
In view of that finding, there is no need to give leave to Ms Jones to amend the complaint ADL127-10 to include discrimination on the attribute of sex or to include victimisation as those matters were in the referred complaint.
The application by Queensland Health to strike out any part of the filed contentions in ADL127-10 based on an allegation of sex discrimination or on victimisation is refused. Ms Jones should be given the opportunity to endeavour to substantiate her complaint including her allegation of sex discrimination and victimisation via a hearing by the tribunal. The proper course is for QCAT to consider the cogency of those allegations after a hearing and not to forestall attempts by Ms Jones to argue her case in relation to those allegations.
Ms Jones also seeks leave to amend her complaint to include a claim of discrimination based on relationship status. Queensland Health opposes such an amendment submitting that a claim based on relationship status would amount to a fresh claim that should not properly be incorporated into the referred complaint. That submission is not correct. An examination of the complaint documents reveals that Ms Jones had described in general terms what may be found to be a relationship with the man (she was dating him and he was her boyfriend) and she complained that certain unfavourable treatment had occurred in her employment because of her former relationship with the man who had assaulted her.[2]
[2]See front page of attachment to complaint form lodged 6 July 2009 and page 3 of letter from Ms Jones to the Commission dated 3 September 2009.
Ms Jones had phrased these allegations of unfavourable treatment in terms of her employer refusing to support her because the assault was her own personal business, had nothing to do with work, was her fault, not their business, her private affair, not a work related matter.
Ms Jones had not expressly nominated in her complaint documents that she wanted to base a complaint on her relationship status. The absence in the complaint documents of an express reliance on the attribute of relationship status does not lead to an inevitable conclusion that a complaint on that attribute had not been made. QCAT can categorise a complaint as including reliance of a particular attribute if there is sufficient basis for such reliance in the complaint documents regardless of how the complainant sought to categorise the complaint.
I consider that the factual matrix in the complaint documents supports the raising of an allegation by Ms Jones that the employer had formed the opinion that the assault was her private affair due to the fact that the parties to the assault were in a relationship. It may eventuate that this allegation is not able to be substantiated at hearing but Ms Jones should have the opportunity to argue her case based on an allegation of discrimination arising from her relationship status.
I am satisfied that the complaint made by Ms Jones in ADL127-10 can be properly categorised as based on her relationship status as well as on sex and impairment discrimination and victimisation.
In making this finding, I acknowledge the arguments of Queensland Health that such a complaint based on relationship status is misconceived as the allegations by Ms Jones of discriminatory conduct are based on who the de facto relationship was with rather than on the fact that Ms Jones was in a de facto relationship at the relevant time. Queensland Health rely on case law authorities which have determined that provisions prohibiting discrimination on relationship status do not extend to prohibiting discrimination based on the identity of a person’s spouse. It is a person’s marital status that is relevant not the choice of partner.[3]
[3]Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 and Sherman & Anor v Grady & Anor [2008] QADT 7.
An argument for striking out a claim must be very clear to justify QCAT’s intervention to prevent a party from submitting its case for determination.[4] It is a very serious matter for QCAT to dismiss a claim without allowing a hearing of that claim to take place. Dismissal would deprive Ms Jones of the opportunity to have a just determination made of her claim.
[4] Dey v Victorian Railways Commissioners (1949) 78 CLR 62.
The arguments raised by Queensland Health and the response of Ms Jones to those arguments about a claim based on relationship status are properly an issue that should be decided after a hearing of all the evidence in the case and in conjunction with the entire complaint made by Ms Jones. I am not satisfied that the claim should be dismissed prior to hearing.
Lastly, Queensland Health seeks an order from QCAT to strike paragraphs 222 to 240 of the filed contentions of Ms Jones. The basis of that request is that the paragraphs contain fresh complaints that could not have formed part of the accepted and referred complaint in ADL127-10 or ADL049-11. It is correct that the events in those paragraphs post date the commencement of those complaints.
It was submitted by Queensland Health that QCAT may exercise its power to hear and determine matters not in a complaint as it was originally made and accepted by the Commission if the new matters are part of a continuum of discrimination.[5] Queensland Health submitted that the matters are not part of a continuum but are factually distinct from the referred allegations of discrimination. The events in paragraphs 222 to 240 took place from February 2010, well after the events in the accepted complaints and after the lodgement of the complaints which are now called in the tribunal ADL127-10 and ADL049-11.
[5] Yousefpour v State of Queensland and other [2001] QADT 15.
I accept those submissions. I am satisfied that events in this case which had occurred after November 2009, when the complaint now ADL049-11 was lodged, cannot be properly part of that complaint or of the earlier complaint ADL127-10 which had been lodged in July 2009. The events complained of in paragraphs 222 to 240 do not form part of a continuum of repeated examples of discriminatory behaviour that had occurred before November 2009 but are distinct events. Those post February 2012 events can be the subject of a fresh complaint that must be made to the Commission, accepted and then referred to QCAT under the legislative scheme set out in the Anti-Discrimination Act 1991.
Paragraphs 222 to 240 of the filed contentions of Ms Jones are struck out.