Kimberly Stallard v Alsun Aluminium Pty Ltd, Stephen Martin Lee
[2011] QCAT 490
•12 October 2011
| CITATION: | Stallard v Alsun Aluminium Pty Ltd and Anor [2011] QCAT 490 |
| PARTIES: | Kimberley Stallard |
| v | |
| Alsun Aluminium Pty Ltd Stephen Martin Lee |
| APPLICATION NUMBER: | ADL139-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 9 September 2011 |
| HEARD AT: | Maroochydore |
| DECISION OF: | R M Clifford, Member |
| DELIVERED ON: | 12 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Alsun Aluminium Pty Ltd pay Kimberley Stallard the sum of $5,000.00 within 60 days from the date of this Order. 2. Kimberley Stallard supply Alsun Aluminium Pty Ltd his banking details within 21 days from the date of this Order. |
| CATCHWORDS: | Impairment discrimination – termination from employment – substantial reason Anti-Discrimination Act 1991, ss 7, 10, 25, 204, 205, 206 Briginshaw v Briginshaw (1938) 60 CLR 336 Walsh v St Vincent de Paul Society (No 2) [2008] QADT 31 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self represented |
| RESPONDENT: | Self represented |
REASONS FOR DECISION
Background
Kimberley Stallard was employed as a truck driver by Alsun Aluminium Pty Ltd, an aluminium distribution business, on 18 January 2005.
Alsun is a small family company owned by Stephen and Denise Lee. Alsun has around thirteen employees between its two business locations. There is one truck driver for each of the two depots. The truck driver performs an integral role in the business.
Mr Stallard’s sister, who ran a business near Alsun, approached the owners to employ her brother who was unemployed and experiencing financial and personal difficulties at the time.
The job required Mr Stallard to deliver aluminium sheets and extrusions to customers of the business. This entailed loading the truck each morning with various orders and delivering the order to the customers. When required the customer was enlisted to assist with unloading the order. A manifest was completed by the driver. Initially the position required a ‘C’ Class driver’s licence, but later when the size of the truck was upgraded, the driver was required to hold a ‘MR’ Class licence.
Alsun became aware Mr Stallard had a ‘back problem’ shortly after he started work for the business. A formal medical assessment was not undertaken at this time. Any assistance Mr Stallard required with his job was made on a relatively informal basis through the assistance of other Alsun employees with loading, or assistance at point of delivery with unloading by the customer. Stephen Lee also provided Mr Stallard a back brace.
The informal management of Mr Stallard’s ‘back problem’ featured throughout his employment along with his not infrequent absences from work for various ailments including back pain. Not all absences were accompanied by medical certificates.
On 23 November 2009 Mr Stallard was advised by Stephen Lee his employment was to be terminated. He was given three (3) weeks notice but ultimately worked out only two of the three weeks.
Mr Stallard claims his employment was terminated because of his impairment, a back injury, for which he had made a WorkCover claim.
Alsun denies it terminated Mr Stallard’s employment because of any impairment but claims Mr Stallard was terminated from his position because of his history of unreliability and specifically his non-contact on 20 November 2009 to advise of his absence.
[10] Mr Stallard made a complaint to the Anti-Discrimination Commission Queensland in July 2010 and the matter was referred to this Tribunal in December 2010.
[11] Although the parties obtained some legal assistance both parties were unrepresented and self-represented at the hearing. The parties filed various statements and documents with the Tribunal. Each party and attending witness had the opportunity to be speak briefly to their statements and to answer questions put to them by the opposite party and the Tribunal. Statements filed by any non-attending witness were not tendered into evidence. Both parties had an opportunity to read WorkCover documents obtained late through the Tribunal just prior to the hearing.
[12] In the documents filed by Mr Stallard and Alsun there was in the Tribunal’s view a misdirected emphasis on who, where or what had caused Mr Stallard’s back problem rather than the elements of alleged unlawful discrimination based on impairment. The Tribunal redirected the parties to those elements during the hearing.
Evidence
[13] Mr Stallard provided a statement[1] and gave testimony.
[1] Exhibit 1. Statement of Kimberley Stallard, 5 August 2011, with attachments A-K.
[14] Mr Stallard acknowledged that Stephen and Denise Lee had been good friends and bosses and have helped him out in tight spots.
[15] Mr Stallard claims he never had a back problem prior to work at Alsun and that he suffered various back injuries over the course of his employment with Alsun for which he required medical treatment and took sick leave.
[16] Mr Stallard states Alsun had no formal incident reporting system and that any issues or incidents were dealt with by word of mouth. Mr Stallard claims that he regularly raised concerns about health and safety issues relating to his work with Alsun.
[17] Mr Stallard claims when he first raised the issue of making a WorkCover claim with Stephen Lee he got a negative response and things changed.
[18] Mr Stallard claims in the week commencing 12 October 2009 he suffered acute back pain requiring an injection to relieve the swelling. Mr Stallard claims his doctor recommended he see a neurologist for a MRI Scan and lodge an application for WorkCover to cover the costs. Mr Stallard claims when he gave Stephen Lee his medical certificate he told him of the doctor’s suggestion regarding WorkCover. Mr Stallard claims Mr Lee told him the process was extensive and a claim would raise their premiums. Mr Stallard decided not to make a WorkCover application but continued working for Alsun.
[19] Mr Stallard claims he suffered a further injury to his back on 16 November 2009 when unloading his truck at a residential address in Buderim. Mr Stallard claims he was upset and told Kerry Rapley, the warehouse manager, about the injury and complained to him about lack of assistance with delivering large size material on his own[2]. Mr Stallard claims he rang his doctor from the office but the earliest he could get to see him was on 20 November 2009. Mr Stallard claims he told Mr Rapley this information.
[2]Exhibit 2. WorkCover document (email dated 3 December 2009 from Denise Lee) Folio 23.
[20] Mr Stallard continued to work but on the morning of Thursday 19 November 2009 he rang in sick as he was in too much pain to work until his doctor’s appointment the following day. Mr Stallard spoke with Mr Rapley.
[21] Mr Stallard attended his doctor’s surgery the following morning and again he was advised see a neurologist, have an MRI Scan and to lodge a WorkCover claim to cover the costs. Mr Stallard was issued a medical certificate covering absences for 19 and 20 November 2009 stating that Mr Stallard would be fit for restricted duties 21 November until 6 December 2009.
[22] Mr Stallard claims when he returned to work on Monday 23 November 2009 he was directed to Stephen Lee’s office by Mr Rapley.
[23] Mr Stallard claims he gave Mr Lee the medical certificate and informed him he had no choice but to lodge a WorkCover claim. Mr Stallard claims Mr Lee responded that he was letting him go, giving him 3 weeks notice and that he wanted Mr Stallard to train a new man starting that day.
[24] Mr Stallard claims he inquired about an office job that had been previously offered to him by Mr Lee but was advised that the offer was no longer available.
[25] Mr Stallard claims he worked with the new man for two weeks but on Monday 7 December Mr Rapley came to him and told him he didn’t have to work any longer, that he didn’t want him hurting himself anymore and that he could go home and would be paid for the rest of the week.
[26] Mr Stallard states WorkCover accepted his claim and he was paid his medical expenses and wages until he took a lump sum payment for future medical expenses on 10 April 2010.
[27] Mr Stallard states he required a Separation Certificate from Alsun before he could claim a disability support pension. Mr Stallard states the Separation Certificate dated 12 April 2010 states he was ‘unsuitable’ for this type of work.
[28] Stephen Lee provided a statement[3] and gave testimony. Mr Lee confirmed Mr Stallard’s employment, position and described his duties. Mr Lee states once he became aware of Mr Stallard’s back problems he ensured he had any necessary assistance when required. Mr Lee states he also provided Mr Stallard with a back brace to assist him.
[3]Exhibit 3. Statement of Stephen Lee dated 2 September 2011 with attachments SL 1-3.
[29] Mr Lee states he and his wife Denise were generous to Mr Stallard, acknowledging his difficult financial circumstances, giving him gifts of cash, offering him a rental property at reduced rental rates with another employee and at times paid for repairs of his personal vehicle.
[30] Mr Lee claims there was a decline in Mr Stallard’s work ethic and hygiene some 18 months into his employment. Mr Lee states Mr Stallard had regular absences and he spoke with Mr Stallard about the negative impacts his absences were having on the business.
[31] In 2009 Mr Lee states Mr Stallard was absent for work on 15 days but received medical certificates for only 5 days.
[32] Mr Lee states he offered Mr Stallard an office position in mid-2009 which Mr Stallard refused as he preferred the work in the truck.
[33] Mr Lee states that in July 2009 he became aware Mr Stallard had been driving the work truck without a licence for around 5 months.
[34] Mr Lee states he had no discussion with Mr Stallard about a WorkCover claim in October 2009 and never received any notice of a work place injury.
[35] Mr Lee claims there was no delivery to Buderim on 16 November 2009 but there was a delivery on 10 November 2009.
[36] Mr Lee reports Mr Stallard contacted the business on 19 November 2009 stating he was in pain and that he would not be in for work. Mr Lee claims the manager instructed him to call and advise if he would be in the next day.
[37] Mr Lee states when he was advised Mr Stallard had not called on 20 November 2009 after discussion with Mr Rapley and Mrs Lee he decided he could not go on with the situation any longer and that he would terminate Mr Stallard’s employment when he returned to work.
[38] Mr Lee states on Monday 23 November 2009 Mr Stallard attended his office and although he cannot recollect the absolute sequence of events Mr Lee claims he initiated a conversation about Mr Stallard’s unreliability and the effect it was having on the business. Mr Lee says they discussed the office job that had been previously offered but given the unreliability he advised Mr Stallard that position no longer available. Mr Lee advised Mr Stallard he was terminating his services and gave him 3 weeks notice. Mr Lee requested Mr Stallard assist training a new driver .
[39] Mr Lee rejects that he or the Company terminated Mr Stallard because of an impairment. He states the reason for termination was unreliability and specifically non-contact on 20 November 2009.
[40] Mr Lee notes that it appeared Mr Stallard was of the view he could no longer fulfil the inherent requirements of the job because of his back pain[4] and that this pain was from a pre-existing injury[5].
[4]Exhibit 4. WorkCover documents (Letter dated 1 March 2010 to Dr Tony Keays) Folio 21.
[5]Exhibit 5. WorkCover documents (facsimile dated 29 January 2010 to Dr Martin Wood) Folios 95,96.
[41] Denise Lee provided a statement[6] and gave oral testimony. Mrs Lee confirmed she is a company director of Alsun and works on a day to day basis for the business in administrative matters.
[6]Exhibit 8. Statement of Denise Lee dated 2 September 2011 with attachments DL 1-2.
[42] Mrs Lee confirms she was aware Mr Stallard was experiencing personal and financial difficulties when they employed him and states that the business was very generous towards him giving him pay advances and offering him a rental property they owned at reduced rent.
[43] Mrs Lee claims around mid-2006 Mr Stallard’s work attendance and appearance deteriorated.
[44] Mrs Lee confirms she was aware Mr Stallard experienced back pain and that he was provided assistance by the business.
[45] Mrs Lee states that Mr Stallard took 56 days of absence during his nearly 5 year employment with Alsun. Medical certificates were provided for 30 days.
[46] Mrs Lee states around June 2009, following continuing reports of back pain, Mr Stallard was offered an office sales job which he rejected because he preferred the truck driving work.
[47] Mrs Lee confirms she became aware Mr Stallard had been driving without a licence between February and July 2009 after he regained his licence.
[48] Mrs Lee further states around October 2009 she had a discussion with Mr Stallard, initiated by him, about his long term future as a truck driver given his back pain. Mrs Lee states following this conversation the business decided to initiate some preliminary training for another driver.
[49] Mrs Lee states she recalls a conversation with Mr Rapley on 19 November 2009. Mrs Lee states Mr Rapley had advised her Mr Stallard was off sick and that he had asked Mr Stallard to ring him about work the following day.
[50] Mrs Lee states when Mr Stallard did not call on 20 November 2009 a decision was made to terminate his employment.
[51] Mrs Lee expressed her strong disappointment with this discrimination claim and reiterated that the business had bent over backwards for Mr Stallard and he never repaid them in respect. Mrs Lee opined Mr Stallard was in shock when he was eventually laid off because he had got away with things for so long.
[52] Mr Rapley provided a statement[7] and gave oral testimony. Mr Rapley is employed by Alsun as a warehouse manager.
[7] Exhibit 6. Statement of Kerry Rapley dated 2 September 2011.
[53] Mr Rapley confirmed Mr Stallard advised him he had a sore back when he first started with Alsun. Mr Rapley states Mr Stallard indicated he had left his previous employer because his back was sore. Mr Rapley confirmed various assistance was given to Mr Stallard in his duties so not to exacerbate the back pain.
[54] Mr Rapley opines Mr Stallard was an unreliable employee particularly at the latter part of his employment.
[55] Mr Rapley claims when he became aware Mr Stallard had been driving without a licence for 5 months he told the owners it was his view Mr Stallard should be instantly dismissed.
[56] Mr Rapley states Mr Stallard never reported a back injury to him but he did complain of back pain which became more prevalent towards the latter part of his employment. Mr Rapley confirmed Mr Stallard told him, late one afternoon at the loading bay, that his back was sore after a delivery to Buderim.
[57] Mr Rapley states on the morning of 19 November 2009 Mr Stallard called him stating he was in too much pain to come to work. Mr Rapley claims he advised Mr Stallard to call him to let him know when he would be back at work as he needed to make arrangements for work.
[58] Mr Rapley confirms Mr Stallard did not call back on 20 November 2009 and so a decision was made to terminate his employment.
[59] Mr Rapley states when Mr Stallard arrived at work on 23 November 2009 he directed him to Mr Lee’s office where he was given three weeks notice.
[60] Mr Rapley states following the meeting with Mr Lee, Mr Stallard then proceeded to undertake training of the new driver.
[61] Mr Rapley states on 7 December 2009, after discussion with Mr Lee that the new driver had progressed sufficiently, he advised Mr Stallard that he could leave work and that he would be paid out in lieu the one week left in the notice.
[62] Craig Dallinger provided a statement[8] and gave oral testimony. Mr Dallinger was a previous employee of Alsun having left before Mr Stallard’s employment was terminated.
[8] Exhibit 7. Statement of Craig Dallinger dated 1 September 2011.
[63] Mr Dallinger shared the Unit, owned by Stephen and Denise Lee, with Mr Stallard for a period of time in the first half of 2007. Mr Dallinger describes Mr Stallard as unmotivated and an untidy flatmate.
[64] Mr Dallinger states Mr Stallard told him about not having his driving licence. Mr Dallinger claims Mr Stallard was unreliable at work and that he drank heavily and witnessed him taking illegal drugs. Mr Dallinger testified he advised the employers of these concerns.
[65] Mr Dallinger describes Stephen and Denise Lee as great employers and states they treated all of the employees like a family. Mr Dallinger opines Mr Stallard was treated better than other employees and he took advantage of their generosity.
[66] Kevin Visser gave a statement[9] and oral testimony via telephone. Mr Visser was a customer of Alsun and states that he took delivery of a sheet of Aluminium in November 2009 although he was not exactly aware of the date or day of the week. Mr Visser states he assisted the driver remove the sheet from the truck. Mr Visser states he does not recall any complaint from the driver about pain or injury. Mr Visser states he does not recollect any noise or sounds during the lift from the driver.
[9] Exhibit 9. Statement of Kevin Visser dated 7 September 2011.
[67] Trevor Rentoul made a statement[10] and gave oral testimony via telephone. Mr Rentoul is a current employee of Alsun. Mr Rentoul states Mr Stallard was given assistance to lift or manoeuvre heavy objects.
[10] Exhibit 10. Statement of Trevor Rintoul dated 2 September 2011.
[68] Mr Rentoul describes an event when he observed Mr Stallard weighing a heavy length of tube. Mr Rentoul states he thought this was unusual as the tube wasn’t related to a delivery and furthermore he regarded Mr Stallard as on light duties. Mr Rentoul states after weighing the tube Mr Stallard walked away with a limp. Mr Rentoul thought Mr Stallard was faking the limp however, testified Mr Stallard had been limping previously.
Legislation
[69] The anti-discrimination law of Queensland prohibits discrimination on the basis of impairment[11]. Impairment is broadly defined and includes injuries that may or may not have been caused or exacerbated in the workplace. The impairment may be permanent or temporary.
[11] Anti-Discrimination Act Queensland 1991, s 7.
[70] Direct discrimination on the basis of impairment happens if a person treats, a person with an impairment less favourably, than they would treat another person without the impairment in circumstances that are the same or not materially different[12]. The person’s motive for discriminating is irrelevant.
[12] Anti-Discrimination Act Queensland 1991, s 10 (1).
[71] If there are two or more reasons why a person treats, another person with an impairment less favourably, it is taken that the person treats the other person less favourably on the basis of the impairment if the impairment is a substantial reason for the treatment[13]. The fact that the person with the impairment may require special services or facilities is irrelevant.
[13] Anti-Discrimination Act Queensland 1991, s 10 (4).
[72] The question the Tribunal therefore directs itself to is whether Mr Stallard was treated less favourably in his employment by Alsun because of his impairment compared to others without an impairment in circumstances that are the same or not materially different. Furthermore if there was more than one reason for his treatment was his impairment a substantial reason for the actions.
[73] The standard of proof required to support a claim of discrimination is the ‘civil standard’. This requires the complainant to prove that on the ‘balance of probabilities’ the respondent contravened the Act.[14]
[14] Anti-Discrimination Act Queensland 1991, s 204.
[74] The High Court case of Briginshaw is the leading case concerning the ‘civil standard of proof’. In that matter the judges variously said, on hearing the evidence and in consideration of the seriousness and gravity of the case the decision-maker must be ‘reasonably satisfied’, or ‘feel an actual persuasion’ or feel ‘comfortably satisfied’ they have reached a correct and just conclusion.[15]
[15] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361.
Findings and conclusions
[75] Mr Stallard was employed as a truck driver for Alsun between January 2005 and December 2009.
[76] It became known early in his employment Mr Stallard experienced back pain. Mr Stallard regularly complained of back pain and these complaints worsened over time.
[77] The original cause of the back pain is disputed in regards to whether Mr Stallard originally injured himself in his workplace at Alsun or whether it originated outside Alsun. As previously noted the issue of causation of an impairment is not directly relevant under anti-discrimination law. However the Tribunal makes the following observation. The General Practice Medical Summary’s first reference to any back pain or problem raised by Mr Stallard with his General Practitioner was made on 5 January 2006 with a entry note ‘back pain problem 12/12 – delivers aluminium for a job – awkward and somewhat heavy;[16] whilst some of the documents prepared for the Work Cover claim[17] are inconsistent with that first notation and report back pain for 12 months from January 2005.
[16] Exhibit 1. Attachment ‘B’ page 4.
[17] Exhibits 4 and 5.
[78] Mr Stallard was regularly absent during his employment. The specific reasons for the absences were not always advised or recorded but the Tribunal is satisfied a significant number of absences related to Mr Stallard’s back problems.
[79] Mr Stallard developed a reputation for his absences that continued throughout his nearly 5 year employment with Alsun.
[80] Although Stephen and Denise Lee may have spoken with Mr Stallard about the disruption the absences had on the business they in reality accepted these absences without a lot of questioning. They understood Mr Stallard had a back pain problem with which they were prepared to work around and also because they had a personal philosophy of helping Mr Stallard because of his personal circumstances known to them. This personal philosophy was a way they conducted their business.
[81] In June 2009 Alsun offered Mr Stallard alternate employment because of his on-going back problem. Mr Stallard rejected this offer.
[82] In October 2009 when Mr Stallard’s back pain appeared to worsen, Stephen and Denise Lee planned to recruit and train someone new in the event Mr Stallard could no longer do the job. No steps were taken in formally assessing whether Mr Stallard could still fulfil the requirements of the job but it is clear there was considerable doubt about Mr Stallard’s future as a truck driver.
[83] In November 2009 Mr Stallard experienced further back pain.
[84] During the hearing there was considerable time discussing whether Mr Stallard injured his back on either 10 or 16 November 2009 during a delivery to Buderim. It is clear from the documentation[18] a delivery was made to Buderim on 10 November 2009. The Tribunal notes however Mr Stallard freely testified he may have been mistaken with the date and then later suggested that he may have made a separate delivery to Buderim because the documentation also noted the full order had not been delivered on 10 November 2009. Although this issue is not resolved it is not critical to the Tribunal’s deliberations. What is clear is that following a delivery to Buderim Mr Stallard complained to Mr Rapley about the awkwardness of doing the delivery on his own.
[18] Exhibit 3. attachment ‘SL3’.
[85] On Thursday 19 November 2009 Mr Stallard was again experiencing back pain. He contacted Mr Rapley and advised he would not be able to come into work and that he was going to see a doctor. Mr Stallard testified he was in severe pain.
[86] On return to wok on Monday 23 November 2009 Mr Stallard was given 3 weeks notice. Alsun claims the decision was based on unreliability and specifically non-contact on 20 November 2009. Mr Stallard thought he was terminated because he gave Stephen Lee a WorkCover certificate and because he couldn’t work properly because of his back.
[87] The Tribunal is satisfied that the decision to terminate Mr Stallard’s employment was made on 20 November 2009.
[88] As previously noted, discrimination happens if a person treats a person less favourably than they would treat another person, without a specific attribute such as impairment, in circumstances that are the same or not materially different. The law states if there are two or more reasons why a person treats, another person with an impairment less favourably, it is taken that the person treats the other person less favourably on the basis of the impairment if the impairment is a substantial reason for the treatment. The person’s motive for discriminating is irrelevant.
[89] Stephen and Denise Lee state the reason for the termination was based on Mr Stallard’s unreliability and non-contact on 20 October 2009. The Tribunal accepts these concerns formed, in part, the basis for the termination. However, given a substantial number of Mr Stallard’s absences were related to back pain, and importantly was the reason for his absence on the days immediately preceding the termination, the Tribunal is satisfied the characterisation of absences as ‘unreliablity’ is somewhat misplaced as the absences are clearly and directly attributable to Mr Stallard’s back impairment of which Stephen and Denise Lee had considerable knowledge. Furthermore, Stephen and Denise Lee on their own account disclosed that in October 2009 they started planning to recruit and train another person because of the impact Mr Stallard’s back problem was having on the business. When they made the decision to terminate Mr Stallard’s employment they contacted this same person to start with them on 23 November 2009 to be trained by Mr Stallard.
[90] In contrast, the Tribunal notes no action was taken against Mr Stallard when Alsun became aware he had been driving unlicenced for 5 months against a history of stated decline in work ethic and hygiene.
[91] Paradoxically, the Tribunal is satisfied Mr Stallard himself can be considered a ‘comparator’ in this case particularly when no other material was led comparing how another employee without the impairment had been treated for unreliability.
[92] In all the circumstances the Tribunal is reasonably satisfied that a substantial reason for terminating Mr Stallard’s employment was based on his impairment. Furthermore, the Tribunal is also reasonably satisfied Alsun treated Mr Stallard less favourably than they would have treated someone without the impairment in the same or similar circumstances.
[93] The Tribunal also notes that whilst Alsun relied on the reason of unreliability to defend the complaint Alsun did make suggestions Mr Stallard could not fulfil the ‘inherent requirements’ of the job.
[94] The issue of ‘inherent’ or ‘genuine occupational’ requirements, or like terms, has been given significant consideration by the Courts[19]. Alsun however did not contend in any substantive way any defence or exemption[20] they may have been open to them under the law. If they had done so the onus of proof would rest with them[21].
[19]Qantas Airways Ltd v Christie (1998) 193 CLR 280; X v Commonwealth (1999) 200 CLR 177; Walsh v St Vincent de Paul Society (No2) [2008] QADT 31.
[20] Anti-Discrimination Act 1991, section 25 for example.
[21] Anti-Discrimination Act 1991, ss 205, 206.
[95] Alsun in raising such a defence would need to demonstrate how it reached such a conclusion. The types of issues the Tribunal would consider relevant in determining if a defence was made out include; consideration of the circumstances in which the job was performed, identifying the requirements, assessing any medical evidence, examining whether the job could be done without the requirement or whether the job could be done with reasonable adjustment, and considering whether any adjustments might cause unjustifiable hardship. Alsun did not press any such defence or exemption and even if it had it is the Tribunal’s view based on the information provided by Alsun it would have faced a difficult task.
[96] The Tribunal finds that Alsun therefore contravened the Anti-Discrimination Act 1991 by unlawfully discriminating against Mr Stallard on the basis of his impairment by terminating his employment.
Damages and loss
[97] In his statement Mr Stallard sought;
a)a written apology,
b)payment of $20,000.00, with interest, for hurt and humiliation,
c)payment for loss of income from 11 April 2010, with interest,
d)payment of 9% superannuation for loss of income,
e)payment of costs for proceedings.
[98] At hearing Mr Stallard testified; he felt betrayed, that he thought Stephen and Denise Lee were brilliant, that he didn’t need an apology and that he will never be able to hold that type of manual job again.
[99] Mr Stallard confirmed he was seeking payment for loss of income, superannuation and interest, along with $20,000.00 for hurt and humiliation. Mr Stallard states his anxiety condition has been exacerbated and he hasn’t played golf for 2-3 years.
Mr Lee stated he was not accustomed to these types of proceedings and that it was a first for them. Mr Lee submitted that Mr Stallard was not entitled to any payment for loss of income because he was not owed any wages, he was paid out his entitlements, was paid his wages by WorkCover until 10 April 2010 and then took a lump sum payment. Mr Lee submits Mr Stallard hasn’t provided any information about his hurt and humiliation and although he thinks that Alsun should seek costs it understands Mr Stallard’s financial position.
Conclusion
Mr Stallard is seeking payment for loss of income from the cessation of the Work Cover payments in April 2010. The Tribunal is not convinced Mr Stallard is entitled to any such payment. Mr Stallard has received income through the Disability Support Pension since April 2010. Furthermore Mr Stallard has not provided any information to the Tribunal as to whether he is able to undertake or has sought any alternate work to mitigate any losses. Mr Stallard testified he worked in retail for many years prior to his employment with Alsun but has given no indication that he has attempted to look for or undertake any other work. In the circumstances the Tribunal makes no Order.
In relation to compensation for pain and suffering Mr Stallard seeks payment of $20,000.00. This is a significant claim. Mr Stallard states he felt betrayed by Alsun and that his anxiety has been exacerbated. The Tribunal is not convinced Mr Stallard has provided sufficient information to satisfy it that he entitled to such level of payment. Although Mr Stallard provided the Tribunal with a Medical Report[22] from his general practitioner, stating amongst other things that he is a psychological wreck, the Tribunal notes Mr Stallard has had long standing anxiety and depression for which he has taken medication. The Medical Report also states Mr Stallard continues to suffer pain and depression from his back injury and his inability to work, and that some of his anxiety relates to the actual conduct of the proceedings. There is no information which apportions the level of pain and suffering that is directly related to the unlawful discrimination, the termination of employment.
[22] Exhibit 1. Attachment ‘J’.
The Tribunal does however accept Mr Stallard is entitled to some compensation and has considered other Tribunal cases in reaching its decision.[23]. The Tribunal notes in those matters one of the applicants had been summarily dismissed, both cases of dismissal were closely intertwined with the applicants ability to stay working in Australia and neither received the type of financial support and benefit, such a pay advances or reduced rental payments, Mr Stallard received throughout his employment with Alsun and neither applicants in those cases had taken a payout from WorkCover for on-going medical costs associated with work related exacerbation of back pain.
[23]Webb v Lightfoot [2011] QCAT 233; Irvine & Porter v Mermaid Café & Bar Pty Ltd & Ingall (No 2) [2010] QCAT 482.
In all the circumstances the Tribunal Orders Alsun Aluminium Pty Ltd pay Kimberley Stallard the sum of $5,000.00 for any pain and suffering he experienced from the unlawful discrimination within sixty days of the date of this Order.
The Tribunal Directs Kimberley Stallard to supply his banking details to Alsun within 21 days of the date of this Order.
Finally, in relation to the payment of costs for the proceedings, the Tribunal notes each party was self-represented and it received no information from Mr Stallard that would convince it to depart from the position that each party should bear its own costs[24]. The Tribunal makes no Order.
[24] Queensland Civil and Administrative Act 2009, s 100.
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