Leggett v BHP Coal Pty Ltd

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CITATION: Leggett v BHP Coal Pty Ltd & Anor [2017] QCAT 77
PARTIES: Scott Leggett
(Applicant)
v
BHP Coal Pty Ltd
Garry Hughes
(Respondents)
APPLICATION NUMBER: ADL042-15
MATTER TYPE: Anti-discrimination matters
HEARING DATE: 18-21 April 2016
22-23 June 2016
26-27 July 2016
HEARD AT: Brisbane
DECISION OF: Member Favell
DELIVERED ON: 13 March 2017
DELIVERED AT: Brisbane
ORDERS MADE: 1.    The application is dismissed.
CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – GENERALLY – DIRECT DISCRIMINATION – GROUNDS OF DISCRIMINATION – where applicant was engaged in Trade Union Activity – Where applicant employed by BHP Coal Pty Ltd – where vicarious liability - whether discrimination on the basis of the attribute of Trade Union Activity

HUMAN RIGHTS – DISCRIMINATION – GENERALLY – DIRECT DISCRIMINATION – GROUNDS OF DISCRIMINATION – where applicant was a parent – whether discrimination on the basis of the attribute of parental status

HUMAN RIGHTS – DISCRIMINATION – DIRECT DISCRIMINATION – GROUNDS OF DISCRIMINATION – where applicant had family responsibilities – whether discrimination on the basis of the attribute of family responsibilities

HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – whether the applicant was victimised

Anti-Discrimination Act 1991 (Qld) s 7, s 8, s 10, s 15, s 129, s 130, s 132, s 133, s 204, s 205, s 206, s 209
BMA Enterprise Agreement 2012
Fair Work Act 2009 (Cth) s 14, 361
Coal Mining Health and Safety regulation 2001 (Qld) s 59, s 94, s 103, s 108, s 141
Coal Mining Safety and Health Act 2009 (Qld) s 55

Gardener v Norcott [2004] QADT 39
Blair v Goldpath Pty Ltd & Callinan [2010] QCAT 483
Willmott v Woolworths Ltd [2014] QCAT 601
Myatt v State of Queensland (Queensland Police Service) [2016] FCA 133
Sharma v Legal Aid (Qld) (2002) 225 IR; [2002] FCAFC 196
G v H [1994] HCA 48; (1994) 181 CLR 387
Qantas Airways v Gama [2008] FCAFC 69; (2008) 167 FCR 537
Ewin v Vergana (No 3) (2013) 238 IR 118; [2013] FCA 1311
Chen v Monash University [2015] FCA 130
Kiefel v State of Victoria (Department of Education and Early Childhood Development) [2013] FCA 1398
Henderson v Queensland (2014) 315 ALR 188; [2014] HCA 52
Jones v Dunkel [959] HCA 8; (1959) 101 CLR 298 at 304
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR
Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278
Department of Health v Arumugam [1988] VR 319
McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4
State of Victoria v McKenna [1999] VSC 310
McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243
KLK Investments Pty Ltd v Riley (1993) 10 WAR 523
Everett v Copperart Pty Ltd [1977] QDAT 11
Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QSC 518
Edwards v The Queen (1993) 178 CLR 193
Du Bois-Hammond v Raging Thunder Pty Ltd and Others [2004] QADT 27
Chivers v State of Queensland [2011] QCAT 357
Kong…

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Details
Case
[2017] QCAT 77
Decision Date

CaseChat Overview and Summary

The case of Leggett v BHP Coal Pty Ltd involves a claim of discrimination brought by the applicant against BHP Coal Pty Ltd. The applicant alleged that he was subjected to direct discrimination on several grounds including trade union activity, parental status, and family responsibilities. The dispute was heard in the Queensland Civil and Administrative Tribunal (QCAT). The central legal issues before the tribunal were whether the applicant had been subjected to direct discrimination based on his trade union activity, parental status, family responsibilities, and if so, whether these amounted to victimisation.

The tribunal carefully examined the evidence presented to determine if the applicant had been discriminated against. It considered the applicant's involvement in trade union activities and whether this had led to adverse treatment. The tribunal also assessed if the applicant's parental status and family responsibilities played a role in the decision-making process that led to the alleged discrimination. Furthermore, the tribunal evaluated whether the applicant had been victimised, which would strengthen the claim of discrimination.

In reaching its decision, the tribunal noted that discrimination claims often rely on circumstantial evidence, and the lack of a satisfactory explanation from the respondent could lead to an inference of discrimination. The tribunal concluded that while there was some evidence to suggest discrimination, the applicant had not sufficiently proven that discrimination was a more probable explanation than other possible reasons for the adverse employment outcomes. The tribunal found that the respondent's explanations were not necessarily dishonest but were plausible and sufficiently justified the actions taken. Consequently, the tribunal dismissed the application, finding that the applicant had not established his claims of discrimination on the required balance of probabilities.

In summary, the tribunal dismissed the application, finding insufficient evidence to support the applicant's claims of discrimination on the grounds of trade union activity, parental status, family responsibilities, and victimisation.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

In McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 the following was said (emphasis by counsel for the applicant):[35] It is clear that the quality of the respondent’s explanation if proffered can be considered by the decision maker. As Fullagar J said in the above passage in Arumugam, if an explanation is proffered but found to be dishonest, then this might allow an inference to be reached from the primary facts with greater certainty. In McRostie, State of Victoria v McKenna [1999] VSC 310 the following was said (emphasis by counsel for the applicant):76… I note that it was also open to the Tribunal to find that Crossley and Haldane had lied in their explanation and that the reason for that was that to tell the truth would reveal their discriminatory reasons… In Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QSC 62 the following was said (emphasis by counsel for the applicant):6… it should also be noted that Fullagar J was not dealing with a case where rejection of a defendant’s explanation involved a finding that the defendant had lied or otherwise conducted himself in such a manner as to indicate a consciousness of guilt. In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 the following was said (emphasis by counsel for the applicant):11… The Tribunal rejected Mr Greenfield’s explanation, on behalf of Lightning Bolt, of why he did not offer the respondents their jobs back, finding his evidence in relation to Mr Skinner “completely untrue”. Mr O’Neil acknowledged that the “philosophy” of getting young and ambitious storemen who would be easier to train and who could later go out on the road as sales representatives, urged on him by one of Lightning Bolt’s salesmen a few weeks before he dismissed the respondents, was in fact applied in the appointment of the respondents’ replacements, but said that this was “by chance”. Once Lighting Bolt’s dishonest explanations were rejected, the Tribunal could draw the available inferences with greater certainty. In Du Bois-Hammond v Raging Thunder Pty Ltd and Others [2004] QADT 27 the following was said (emphasis by counsel for the applicant):128. Unlike the redundancy and Call Centre Manager issues where there was ample and compelling evidence from the respondents as to why decisions were made, there was a paucity of evidence as to why the respondents failed to appoint the complainant to the 2IC position. What evidence there was, from the respondents, was disputed and, in the end, unpersuasive. For the reasons set out above, I prefer the complainant’s evidence on this issue. In McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 the following was said (emphasis by counsel for the applicant):[36] Where no reasonable respondent would have acted in the way which is said to be discriminatory, then it would be open to the Tribunal to infer there was discrimination in the absence of a proven innocent explanation.…[38] It is also clear that a respondent does not call a witness (without good reason) who would appear to be able to provide an explanation for events which if not explained might lead to the view that discrimination had occurred, this could result in a adverse inference being made. This accords with the High Court case of Jones v Dunkel [1959] HCA 8; [1959] 101 CLR 298 relied on by Mr Taylor on Ms McCauley’s behalf.[39] There are other ways, other than not calling an important witness, in which a respondent might fail to provide an explanation for events which if unexplained, might result in a finding that here has been discrimination. It may be that a witness who should be able to give such explanation is called to give evidence, but does not give an explanation in evidence in chief. A further possibility which quite often occurs, is that the respondent does not provide disclosure of documents which might demonstrate an explanation for events which have occurred.…[40] A respondent takes a risk in failing to provide an explanation. But the intention of the Act is achieved by applying the test in Comcare so that the court or tribunal is unable to make a finding of discrimination unless satisfied by rational deduction and more than mere speculation, guesswork or assumption, that discrimination has occurred.

Evidence

Evidence Before The Court

For those propositions he provided the following with emphasis added:a) In State of Victoria v McKenna at [42] and cited with approval in McCauley;…Bearing these points in mind, it might be properly argued, for example, having regard to the existence of racism in the community, that where a choice was made between two individual, one of whom was black and one of whom was white, and the white (or the black) person was selected, a number of possible inferences arise for consideration, one of them being that race was a factor in the choice because of the existence of racism and the fact that a choice was being made between people of different races. An analysis of the full facts of the case may reveal that the inference should not be drawn. Arumugam was such a case; for while the complainant had better qualifications he was “less articulate and less aggressive” and for that reason less suitable. An innocent explanation existed and was accepted. But if, after an analysis of the proven facts, the initial inference of racial discrimination remains open and the innocent explanations offered are rejected, it is not clear to me why the inference should not normally be drawn (c.f. Fullagar, J. in Arumugam at 330, and Anderson, J., in KLK Investments Pty Ltd v Riley (1993) 10 WAR 523 at 528) even though there is no additional positive evidence to support the drawing of the inference. It seems to me that the same points may be made in relation to sexism and complaints of sexual discrimination.b) McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4:In discrimination cases, including cases alleging unlawful discrimination in the employment area, a complainant is forced to rely on circumstantial evidence. This frequently concerns human resources decisions involving the complainant which in some way depart from what one might normally expect and, therefore, call for some sort of explanation. Depending on the nature of the decision, and the persuasive nature or otherwise of the explanation proffered by a respondent, the incident may constitute circumstantial evidence of the alleged discrimination. The Tribunal may, in certain circumstances, be able to draw an inference from the particular evidence that the alleged discrimination has occurred. I accept the validity of the propositions set out. The applicant submits that this case is not one where unlawful discrimination is alleged and there is a paucity of direct evidence. He submits that there does exist significant direct evidence to be relied on in establishing that some of the complaints are more probable than not. He submits that this case is like Everett v Copperart Pty Ltd [1977] QDAT 14 in which it was reasoned that if one broadly accepts the complainant as a credible witness there were three major pieces of evidence which either constitute direct evidence of discrimination on the grounds of parental status or at least assist in the drawing of an inference that the issue of the complainant’s parental status was one of the reasons why the complainant was not given the job. In my view that matter was decided on its own facts.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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