Leggett v BHP Coal Pty Ltd
[2017] QCAT 77
•13 March 2017
| 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 Gardener v Norcott [2004] QADT 39 |
APPEARANCES:
| APPLICANT: | Scott Leggett |
| RESPONDENT: | BHP Coal Pty Ltd Garry Hughes |
REPRESENTATIVES:
| APPLICANT: | Mr B.G. Docking of Counsel instructed by J. Virine of Hall Payne Lawyers |
| RESPONDENT: | Mr C. Murdoch of Counsel instructed by Ms Caitlyn Ryan of Ashurst Australia |
REASONS FOR DECISION
Mr Leggett claims that Mr Hughes and BHP Coal Pty Ltd (BHP) at various and numerous times discriminated against him because of his trade union activities and his parental status or family responsibilities. He also claims he was victimised and BHP breached section 124 of the Anti Discrimination Act 1991 (Qld).
During periods from October 2012 to 15 September 2015 Mr Leggett was employed at the Peak Downs mine by BHP as a continuous shift operator in the dragline department and had been so employed since 2003.
Peak Downs mine is and was an open cut coal mine located in the Bowen Basin in Queensland which used dragline and truck/shovel fleets.
An important part of the mine is the use of draglines. Each costs up to $300 million. They are able to move large volumes of material quickly at a comparatively low cost. Each is required to complete specific work in accordance with the production schedule prepared twelve months in advance and supplemented by a 12 week plan which is reviewed weekly. Continuance of operation of the draglines is very important. The potential cost of having a dragline out of operation for one hour is approximately $19,424.[1] If a dragline is not operating there is an effect on production, coordination of draglines, composition of coal blends and other departments in the mine. The mine will only cease operating draglines due to maintenance, unforeseen or exceptional circumstances and operator absence as a result of unforeseen, unexpected operator absences which cannot otherwise be covered.[2]
[1]Exhibit 19 at [61].
[2]Exhibit 20 at [54].
The position of dragline operator is an important one which carries with it a high degree of trust. It requires specialist skills and 18 months of training and years of practice.[3] Efficiency gained from knowledge of crew members, other operators near the dragline and the particular pit is important to operation of the mine and the second respondent preferred to avoid to the maximum extent possible, changing the composition of the crews and to avoid placing new people in the dragline department wherever possible.[4]
[3]Exhibit 19 at [45] to [49]; Transcript Page 1-73 line 40.
[4]Exhibit 19 at [44].
In 2014 there was an organisation restructure which covered the Peak Downs Mine and introduced zero based manning which meant that there were be no spare operators to cover labour shortages caused by absences. Such absences would be covered by operators in the Mines Services Department[5] or labour hire.[6]
[5]Statement Daniel Iliffe at [74].
[6]Exhibit 19 at [68].
The BMA Enterprise Agreement 2012 (the enterprise agreement) operative from 2 November 2012 covered and applied to Mr Leggett and BHP as a national system employer at the mine within the meaning of section 14 of the Fair Work Act 2009 (Cth).
Mr Leggett was an employee representative for the Construction, Forestry, Mining and Energy Union (CFMEU) pursuant to clause 38 of the BMA Enterprise Agreement 2012 since 2003 and was the secretary/treasurer of the Peak Downs Lodge of the CFMEU from 2010. He was elected to the central council of the Queensland District Branch of the Mining and Energy Division of the CFMEU on 1 July 2012.
To the end of 2013 Mr Leggett’s shift pattern was two day shifts, two night shifts, two days off, two day shifts, two night shifts and six days off. After December 2013 his shift pattern was three day shifts, three night shifts and six days off.
There were over 1000 people engaged in work at the mine. Many of them had the attribute of trade union activity.
There were two shifts per day that ran from 6.30am to 7pm (day) and 6.30 pm to 7am (night).
There were four crews on each shift (A, B, C and D) and only one crew works at a time on each dayshift and nightshift.
Mr Leggett was in C crew and reported to the Supervisor for Draglines, C Crew.[7] The Supervisor is usually the person who conducted the pre-start meeting for each shift but on occasions a step-up supervisor did so when the Supervisor was absent. He did not report directly to the Dragline Superintendent.[8]
[7]Transcript Page 1-70 Line 10.
[8]Transcript Page 1-70 line 5.
Mr Leggett gave evidence that the Supervisor was responsible for approving leave requests such as annual and long service leave[9]. Requests for parental and trade union leave were made to HR. He also accepted that the supervisor was responsible for assigning crew members to machines, managing requests for employees to attend training such as mines rescue training, necessary shift changes and monitoring the performance of the crew and relevant production targets.[10]
[9]Transcript Page 1-70 line 40.
[10]Transcript Page 1-71 line 10-15.
The various supervisors for C crew were Hector Heumiller, Mark Farrell and John Maher.
Mr Hughes was employed at the mine as a Dragline Superintendent and from late 2012 was responsible for Open Cut Examiners (OCEs) engaged at the mine. He gave evidence that he was responsible for the safety of all the operators in the Dragline Department at the mine and for ensuring that that department was on budget and meeting the safety, volume and cost objectives of the mine.[11] He was not responsible for the personal or individual career development of employees.[12]
[11]Transcript Page 3-57 line 15-20.
[12]Transcript Pahe 3-57 line 15-20.
Mr Hughes had been an official of the CFMEU. Members of his family who work at the mine are members of the Union.
He was not responsible for approving leave requests, assigning work for dragline operators or making decisions about releasing operators for training.[13]
[13]Transcript Page 5-42 line 35, Page 5-43 line 20 and Page 5-47 line 10.
Mr Iliffe gave evidence that apart from safety the most important priority of the mine was to ensure continuity of production in accordance with the Production Schedule[14] and that since late 2012 because of an emphasis on increasing productivity and reducing costs due to a decline in market conditions the training and career development of employees were secondary to the Mine’s production requirements.[15]
[14]Exhibit 20 at [72].
[15]Exhibit 20 at [68] –[71] and [72].
An OCE is a person who has the role of ensuring the safety and health of workers at the mine. An OCE is a statutory position appointed under section 59 of the Coal Mining Health and Safety Regulation 2001 (Qld) and has responsibilities and duties under sections 94, 103 through to 108 and 141 of that regulation. An OCE utilises skill and training specific to the position being the Certificate IV in Surface Coal Mining (Open Cut Examiner, Open Cut Examiner’s Certificate of Competency and S1, S2, S3 and G2 training. The position is deemed as a supervisory position for the purposes of section 55 of the Coal Mining Safety and Health Act 2009 (Qld) (CMSH Act).
The OCE on duty has the responsibility of ensuring the safety at the mine under the CMSH Act.[16] One of the responsibilities of an OCE is to investigate accidents and incidents at a mine. An OCE must act without fear or favour of the consequences in respect of personal relationships and must be independent of the personal views of the workers.[17] The OCE must be able to rise above the fray and make decisions about safety independently, regardless of the workplace consequences for any individual coal mine worker.[18]
[16]Exhibit 20 at [92], Exhibit 19 at [74].
[17]Transcript Page 1-99 line 5 -15.
[18]Transcript Page1-99 line 20.
In 2011 the majority of the OCE duties at the mine were performed by contractors and then there were only two OCEs employed by BHP.[19] Because of a shortage of OCEs BHP offered ten employees OCE training in 2012. Those employees were identified after expressions of interest were submitted and an informal assessment carried out along with an interview. Mr Leggett was one of the employees offered training.
[19]Statement David Mayne at [13] –[14]; Statement Jodie Dubois at [17].
Although ten persons were trained there were not 10 vacant OCE positions at the mine at that time.
Effective from about 27 February 2012 Mr Leggett was offered and accepted a place in the OCE program for the mine. He was one of the first five participants in the program.
When it was determined that Mr Leggett should be one of first five trainees the crew numbers within the Dragline Department were such to allow him to be released from his substantive position to attend the course without adversely impacting on the mine’s production requirements.[20]
[20]Statement Jodie Dubois at [30].
The program consisted of a written exam and an oral examination. Mr Leggett said he obtained a 99.64% result in the written exam and an 89% pass rate in the oral exam.
On 28 September 2012 Mr Leggett obtained his OCE Certificate of Competency.
In September or October 2012 a further OCE program was commenced with a further five participants.
In early 2012 the coal market began to decline and the focus of BHP shifted to cost reductions.
From 2013 the OCEs reported to the Dragline Superintendent[21]. Prior to that they reported to the Process Control Superintendent.[22]
[21]Exhibit 19 at [83].
[22]Exhibit 45 at [11].
The Site Senior Executive (SSE) at the Mine has an obligation under the Coal Mining Safety and Health Act to appoint OCEs to carry out particular responsibilities prescribed in the Regulations.
The SSE also had to ensure that there was at least one OCE present at the mine when mining activities were carried out[23] [24]. If there was no OCE present mining activities and production ceased.
[23]Exhibit 20 at [91] and exhibit 19 at [77] and Transcript Page 1-96.
[24]Exhibit 20 at [91].
At the beginning of 2013 there were three OCE positions available to be filled at the mine. In October 2012 Mr David Mayne decided to interview those persons who had completed the first training course.
There was an application and merit based selection process conducted for those three positions.[25]
[25]Statement David Mayne at [10].
The interview panel was made up of Mr Mayne, Ms Chantel Jones from the HR Department and Mr Tim Bird operator from the Post-Strip Department.
Interviews were conducted on 22 September 2012. A template interview document entitled “Assessment Centre Screening Guide: Mine Employee – Operator (OCE) was used.[26]
[26]Statement David Mayne at [34]; Statement of Chantel Jones at [27].
It was agreed that the development of employees was provided for in clause 8.1 of the Enterprise Agreement so as to ensure that all employees had equitable access to training and development opportunities in order to provide job security, job satisfaction, workplace flexibility and increased productivity.
The Anti-Discrimination Act 1991 (Qld) (ADA) prohibits discrimination on the basis of the following attributes— (d) parental status; (k) trade union activity; (o) family responsibilities.[27]
[27]Section 7.
The Dictionary in the ADA defines family responsibilities, of a person, to mean the person’s responsibilities to care for or support a dependent child of the person; or any other member of the person’s immediate family who is in need of care or support and parental status to mean whether or not a person is a parent.
It was agreed that for the purposes of section 7(k) of the ADA Mr Leggett had the attribute of trade union activity.
It was admitted that from 7 June 2013 Mr Leggett had the attribute of parental status (section 7(d)) because he was a parent and in respect of the respective periods of parental leave taken by Mr Leggett he had the attribute of family responsibilities (section 7(o)).
Section 8 of the ADA provides:
Discrimination on the basis of an attribute includes direct
and indirect discrimination on the basis of—
(a)a characteristic that a person with any of the attributes generally has; or
(b)a characteristic that is often imputed to a person with any of the attributes; or
(c)an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
(d)an attribute that a person had, even if the person did not have it at the time of the discrimination.
Example of paragraph (c)—
If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.
The ADA by section 9 prohibits direct and indirect discrimination.
Section 10 of the ADA provides for the Meaning of direct discrimination as:
(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.
Section 15 (b) and (f) of the ADA provides that a person must not discriminate in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or by treating a worker unfavourably in any way in connection with work.
Mr Leggett complains of numerous instances of direct discrimination by Mr Hughes and BHP.
Section 132 of the ADA states the Act’s vicarious liability purpose and how it is to be achieved as:
(1)One of the purposes of the Act is to promote equality of opportunity for everyone by making a person liable for certain acts of the person’s workers or agents.
(2)This purpose is achieved by making a person civilly liable for a contravention of the Act by the person’s workers or agents.
Section 133 of the ADA provides for Vicarious liability as follows:
(1)If any of a person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
(2)It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.
It was agreed that BHP was vicariously liable for Mr Hughes for the purposes of section 133 of the Anti-Discrimination Act 1991 (Qld). (ADA).
Mr Leggett also complains that he was the subject of victimisation by BHP because he was not appointed to a permanent OCE role.
Section 129 of the ADA provides that one person must not victimise another person.
Section130 of the ADA provides the meaning of victimisation as:
(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 –
refused to do an act that would amount to a contravention of the Act; or
in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
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.
Section 204 of the ADA provides that for the Burden of proof the general principle is that It is for the complainant to prove, on the balance of probabilities, that the respondent contravened the Act, subject to the requirements in sections 205 and 206.
Section 205 provides that in a case involving an allegation of indirect discrimination, the respondent must prove, on the balance of probabilities, that a term complained of is reasonable.
Section 206 provides that if the respondent wishes to rely on an exemption, the respondent must raise the issue and prove, on the balance of probabilities, that it applies.
Section 209 provides for the orders the tribunal may make if a complaint is proven: (1) If the tribunal decides that the respondent contravened the Act, the tribunal may make 1 or more of the following orders—
(a)an order requiring the respondent not to commit a further contravention of the Act against the complainant or another person specified in the order;
(b) an order requiring the respondent to pay to the complainant or another person, within a specified period, an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention;
(c)an order requiring the respondent to do specified things to redress loss or damage suffered by the complainant and another person because of the contravention;
(d)an order requiring the respondent to make a private apology or retraction;
(e)an order requiring the respondent to make a public apology or retraction by publishing the apology or retraction in the way, and in the form, stated in the order;
(f)an order requiring the respondent to implement programs to eliminate unlawful discrimination;
(g)an order requiring a party to pay interest on an amount of compensation;
(h)an order declaring void all or part of an agreement made in connection with a contravention of this Act, either from the time the agreement was made or subsequently.
(3)An order may be made under subsection (1)(b) in favour of a person on whose behalf a representative complaint was made, without the necessity for the person to make an individual complaint, if on the evidence before it the tribunal is able to assess the loss or damage of the person.
If, in respect of a representative complaint—
(a) the tribunal decides that the respondent contravened the Act; but the tribunal is unable, on the evidence before it at the hearing of the representative complaint, to assess the loss or damage of a person on whose behalf the complaint was made; the person may subsequently make a request for the tribunal to assess the person’s loss or damage.
(4)In this section, the specified things a respondent may be required to do, include, but are not limited to—
(a) employing, reinstating or re-employing a person; or
(b) promoting a person; or
(c) moving a person to a specified position within a specified time.
(5)In this section— damage, in relation to a person, includes the offence, embarrassment, humiliation, and intimidation suffered by the person.
Counsel for Mr Leggett has in his outline of submissions categorised the complaints into 15 categories. I will deal with each category separately. He has urged me, in oral submissions, to have particular regard to exhibits 1, 2, 42, 5, 40, 6, and 20, in order to “understand the nature of the claims and responses”.[28]
[28]Transcript Day 8 Page 52 Line 9.
Counsel for Mr Leggett relies on various case law for various propositions. It is appropriate to consider those propositions under each category in which they are advanced.
CATEGORY 1: Mr Leggett was asked orally to supply information on which unlawful discrimination might be based, namely, unnecessary information in relation to his trade union activities during the selection process for a permanent OCE role.
The applicant contended that BHP in breach of section 124(1) of the ADA sought unnecessary information.
Section 124 provides:
(1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.
(2)Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by—
(a) an existing provision of another Act; or
(b) an order of a court; or
(c) an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or
(d) an existing provision of an industrial agreement; or (e) an order of the tribunal.
(3)It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.
(4)In this section—
existing provision means a provision in existence at the commencement of this section.
Example—
An employer would contravene the Act by asking applicants for all jobs whether they have any impairment, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.
In the applicant’s further amended contentions[29] the applicant particularised the allegation as: “BHP Coal sought the provision of unnecessary information from Mr Leggett in relation to his trade union activity during the selection process for a permanent OCE role - During the interview on 9 June 2015 Mr Iliffe asked Mr Leggett questions to the effect: if you are the OCE on shift and there is an incident or accident and a person involved asked you to be an employee representative what would you do? And how would you manage your role as OCE around enterprise agreement time?”
[29]Exhibit 1 paragraph 71M.
BHP objected to the contention because it was vague, imprecise and embarrassing and denied that questions to the effect as particularised were asked and denied acting in contravention of section 124(1) of the ADA.
Counsel for Mr Leggett submitted that three cases “demonstrate that Mr Leggett has a very strong case” and he submitted that he had an insurmountable case in respect of Category 1.
In part he relied on Gardener v Norcott [2004] QADT 39 and in particular the following passages:
13. The complainant said he called the number provided and it was answered by a female person who identified herself as Bronwyn. It is not in dispute that this was the first respondent. He told her he was ringing about the job that was advertised in the newspaper and apparently pointed out to her the misprint of the word “chef”. He said that he told her that he was an experienced, qualified chef and liked the fact that the job was offering day shifts. His evidence was that the first respondent then asked him “how old are you?” to which he replied, “I am over 21”, somewhat troubled by the question having felt he missed employment opportunities in the past due to his age. The complainant said further that the first respondent then told him they were looking for someone to fit into their team. His evidence was that the first respondent then asked him if he could drop off a copy of his resume to her at the café. He said he agreed to that and asked for her name and address of the café, which the first respondent then gave him.
14. His evidence was that he then went straight down to the café and met with the first respondent. He said that he asked her if she had the time to talk to him about the job as there were no customers in the café, and that she then accommodated this request.
15. The complainant’s evidence was that during the course of the discussion with the first respondent she raised the fact that he had said he was over 21 when she asked him his age. He replied that he was over 21 and said that the first respondent then asked him again how old he was. He said that this time he told her his age, that being 46. His evidence was that the first respondent then said that she only had a young team. He said he replied that he was happy to work with young people. He said he was introduced to the chef who was working there that day and was shown around the kitchen. He said that the first respondent then told him that she would call him in the subsequent few days to set up a trial with a view to starting work the next week. His evidence was that he did not hear from the first respondent again and that this greatly disappointed him. He believed that he had not been given the job because he was 46 years old. He said that this hurt and humiliated him. He said that he continued to apply for jobs as a chef and ultimately got one at a city hotel about two months later.
…
33. As I have already noted, I found that the first respondent asked the complainant his age once during the telephone conversation and, more importantly at this point, again during the meeting that I have found did take place at the café. Whilst the question asked once during the phone conversation could, objectively reviewed, have been linked to matters pertaining to the particular rate of pay to be paid to the successful applicant, asked again at a face to face meeting after the complainant has already stated he is a qualified chef over 21 years of age (a fact that would have been obvious upon meeting him) it clearly did constitute a request for information on which unlawful discrimination might be based. The first respondent by denying that the meeting even took place has not even proffered a defence that the information was reasonably required for a purpose that did not involve discrimination, Accordingly, I find that the first respondent contravened section 124 of the Act as well.
(the emphasis is that of Counsel for the applicant)
He also relied upon Bair v Goldpath Pty Ltd & Callinan [2010] QCAT 483 and in particular the following passages with emphasis on the bold:
[5] The Respondents admit to having asked Mr Bair about his age, parental status, and general health (i.e. number of sick days taken by Mr Bair in his previous employment). However, the Respondents claim that the information they obtained did not inform their decision about which candidate to ultimately offer the position to. Instead, the Respondents claim these questions were asked for the following reasons: …
[10] I agree with Mr Bair that the Respondents’ questions relating to his age and parental status contravened s124 of the Act. The Respondents have openly admitted that the questions were asked. There was no justifiable basis upon which these questions could reasonably be required for a purpose that did not involve discrimination.
[11] The Respondents have explained, and I accept their explanation, that the questions were asked due to lack of awareness about the Act in this regard. Mrs Callinan, who was the main interviewer for the Respondent, had not (at that stage) undertaken any formal or informal human resources training. She gave evidence at the hearing that she was working from a list of suggested interview questions that the Respondent had obtained from industry sources. The reason that she wanted a list of suggested questions is that she was nervous about her own inexperience in conducting the interview and did not want to be taken off-track.
He also relied upon Willmott v Woolworths Ltd [2014] QCAT 601 and in particular the following passages with emphasis on the bold:
[1] In December 2013, Woolworths Ltd advertised for a console operator’s position at its petrol outlet at Beerwah (Qld). Mr Willmott, who was unemployed at the time and lives in Beerwah, saw the advertisement on Woolworths’ website and decided to apply for the position utilising Woolworths’ online application system. In completing the online application, Mr Willmott was required to provide answers to certain mandatory fields, which included his gender, date of birth and was also required to provide documentary proof of his right to work in Australia.
…
[62] I am satisfied that Woolworths’ conduct in requiring an applicant to provide a date of birth and gender on the online application form, is a contravention of s 9 of the Anti-Discrimination Act. In addition, I have come to the conclusion that the mandatory requirement to upload proof of work documents, containing private information is also a contravention of the Act.
Those three cases are, to my mind, examples of instances where it has been found that there was a contravention of the legislation.
In March 2015, after a meeting with union officials it was agreed that four labour hire OCEs would be replaced with employees at the mine who were qualified as OCEs[30] and the mine would then seek to fill two rostered OCE positions internally by conducting interviews with existing employees who had been appointed OCEs[31]. Two positions were abolished because the operational requirements of the mine did not require them.[32]
[30]Statement of Daniel John Iliffe at [152].
[31]Statement of Daniel John Iliffe at [153].
[32]Statement of Daniel John Iliffe at [87-9] and [153].
There were interviews for OCE positions on 9 June 2015. They were conducted by three panel members made up of a representative from operations, a human resources representative and an employee representative.[33]
[33]Statement of Daniel John Iliffe at [155], Statement of Brooke Leigh Driscoll at [21].
Mr Iliffe was involved in the interview process because he believed that there would be a perception of bias if Mr Hughes, the superintendent for the particular work area and who would normally be on the panel, was on the panel. That was because the applicant had made a complaint about Mr Hughes. He also believed that it was appropriate for a senior manager to be involved due to the significant position of trust and responsibility occupied by the OCEs.[34]
[34]Statement Daniel John Iliffe at [159], Transcript 6-58
The panel used an interview guide compiled by HR representatives at the Mine with some input by Mr Iliffe.[35]
[35]Statement of Daniel John Iliffe at [161-2], Statement of Brooke Leigh Driscoll at [17].
Mr Leggett was one of six applicants interviewed.[36]
[36]Statement of Daniel John Iliffe at [163], Statement of Brooke Leigh Driscoll at [23].
Each interview lasted approximately 45 minutes[37] and the applicants were asked the same questions[38]. Each panel member read out a question. Mr Iliffe read out the final questions contained in the interview guide[39] as they were specifically relevant to the OCE role and the questions which were of significance to him from an operational perspective[40].
[37]Statement of Daniel John Iliffe at [164], Statement of Brooke Leigh Driscoll at [24].
[38]Statement of Daniel John Iliffe at [165], Statement of Brooke Leigh Driscoll at [25].
[39]Statement of Brooke Leigh Driscoll at [25].
[40]Statement of Daniel John Iliffe at [166].
The final interview questions were[41]:
(a)A situation may arise where you are acting as the OCE in a particular incident/concern and a co-worker who was involved in that incident/concern may ask you to act as their representative. How do you manage the situation if you were subsequently nominated as a co-worker’s representative in relation to an incident or concern you were investigating?
(b)We recognise there will be legitimate reasons which may impact an employee’s ability to be available 100% of the time when on roster e.g. Approved/authorised leave, performing functions as an ERT member, acting as employee representative. How would you manage competing demands on your time due to other responsibilities to ensure you are able to meet the role requirements and discharge your statutory responsibilities?
[41]Statement of Daniel John Iliffe at [167].
I accept that those questions set out above were asked of Mr Leggett by Mr Iliffe and I accept his evidence. It is supported by the evidence given by Ms Driscoll and the interview guide.
Those questions were included in the Technical/General Aptitude section of the interview guide and related to the interviewee’s general aptitude for the OCE position[42] because Mr Iliffee considered they were relevant to the interviewee’s ability to perform the OCE role. That was because it was necessary to ensure the applicant’s could identify possible conflicts of interest between their OCE role and their responsibilities as employee representatives and prioritise their statutory responsibilities. He considered that the question was relevant because any of the internal applicants could choose to act as an employee representative[43] and the successful applicants would need to be available as much as possible for operational reasons.
[42]Statement of Daniel John Iliffe at [155], Statement of Brooke Leigh Driscoll at [21].
[43]Statement of Daniel John Iliffe at [168], Transcript 6-41 and 6-44.
Each member of the panel made notes of responses from each applicant and after an open discussion about the responses scored each applicant at the end of the interview.[44]
[44]Transcript Brooke Leigh Driscoll at 5-87.
Mr Leggett scored 21 out of a possible 35 and had the fourth highest score.[45] Following the interview process the two available positions were awarded to the two highest scorers.
[45]Transcript Daniel John Iliffe at 6-40, Transcript Brooke Leigh Driscoll at 5-72.
In my view the questions were not about the trade union activities of Mr Leggett. They were legitimate questions about time management and the management of possible conflicts of interest.
I do not accept the submission that the evidence of Mr Iliffe’s explanation for the questions was dishonest. In my view the explanation was logical and persuasive.
Counsel for the applicant in part relied upon the comments by Rangiah J in Myatt v State of Queensland (Queensland Police Service) [2016] FCA 133 which are set out below with counsel’s emphasis:
76. There is no direct evidence that if the so-called “complaint” had been made by a woman or person without a psychiatric impairment, S/S King would have recorded it in the CRISP database. As is commonly the case in proceedings involving allegations of unlawful discrimination, the success of the case depends upon the trial judge drawing an inference that person without the relevant attribute would have been treated more favourably: see Sharma v Legal Aid (Qld) (2002) 225 IR 92; [2002] FCAFC 196 at [40]-[41] (Heerey, Mansfield and Hely JJ). In G v H [1994] HCA 48; (1994) 181 CLR 387, Brennan and McHugh JJ said at 390:
An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law.
77. The onus of proof is on Mr Myatt: see Qantas Airways v Gama [2008] FCAFC 69; (2008) 167 FCR 537 at [65] (French and Jacobsen JJ), [132] (Branson J), Ewin v Vergana (No 3) (2013) 238 IR 118; [2013] FCA 1311 at [90] (Bromberg J), Chen v Monash University [2015] FCA 130 at [16] (Tracey J), Kiefel v State of Victoria (Department of Education and Early Childhood Development) [2013] FCA 1398 at [58] (Tracey J).
78. In Henderson v Queensland (2014) 315 ALR 188; [2014] HCA 52, Gageler J said at [89]:
Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. The threshold requirement for the party bearing the burden of proof to adduce evidence at least to establish some fact which provides the basis for such a further inference was explained in Jones v Dunkel:
One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.
79. The facts proved must give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture: Jones v Dunkel [959] HCA 8; (1959) 101 CLR 298 at 304 (Dixon J), Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161-162 (Stephen J), Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278 at [34] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
Mr Docking submits that to the extent that Mr Leggett needs to rely on inferences to discharge his burden on the balance of probabilities to make out one or more complaint, reliance is placed on propositions in Department of health v Arumugam [1988] VicRp 42; McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4; State of Victoria v McKenna [1999] VSC 310 and McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243.
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.
The applicant set out examples of what he submits as direct evidence.[46] Essentially they consist of statements made by an acting manager of the respondent and an officer in the head office, Ms Down and Mr Hughes. None of those persons had a role to play in making the relevant decisions.
[46]Applicant’s Written Outline of Submissions Pages 11 to 14.
In McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4 the following was said:
In addition, the Tribunal must carefully consider explanations put forward by a respondent. Those explanations must be considered carefully with the initial circumstances and the Tribunal must be satisfied, before any finding of unlawful discrimination can be made, that, in all the circumstances, it is more probable than not that less favourable treatment on the basis of the alleged attribute did occur.
In Department of Health v Arumugam the following was said (emphasis added by Counsel for the applicant) :
If the Equal Opportunity Board in the present a case had found (assuming it was open on the evidence) that the facts without explanation raised the inference of racial discrimination as the most probable explanation, then, of course, the non-acceptance of the attempt at explanation would have left the Board with the conclusion of racial discrimination (although ,as I have indicated , I think such a conclusion was not justified on the evidence). But as the Board only found that the facts without explanation raised the inference of some kind of discrimination then the non- acceptance of the attempt at explanation could lawfully leave it at the end with no more than some kind of discrimination, and not with sufficient proof that it was racial.
In Khanna’s Case the Appeal Tribunal was laying down a guideline for cases of all kinds of prohibited discrimination, and the critical words in that case, in my opinion, mean no more than as follows: -
“If the facts before explanation contain no direct proof of discrimination of the kind charged (be it political, sexual, racial or impairment-grounded), the industrial tribunal may still be able to draw an inference of discrimination of the kind charged; if the proper inference in the absence of explanation is discrimination of the kind charged, and there is either no explanation or an unacceptable explanation, then the inference of discrimination of the kind charged will mean the complaint succeeds.”
If I thought that the Appeal Tribunal in England meant anything more than that, I would certainly hold that what they meant is not the law and should not be followed in this state. If all that is proved, by inference or otherwise, in the absence of explanation, is less than all the elements of proof required for the complaint to succeed, neither a total absence of explanation nor a non-acceptance of an explanation can be itself provide an element of proof required. It can enable already available inferences to be drawn against dishonest explainers with greater certainty, but that is all. In the present case, the element of “on the ground of race” was, in the absence of explanation, clearly lacking, and the non-acceptance of the proffered explanation could not provide the missing element. The fact that the occurrence of racial discrimination may often be difficult to prove cannot justify “convicting” on something less than proof. All that Khanna said was that it must often be proved by inference from direct evidence, just like the intent to kill in a murder case, although the standard of proof is there higher.
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.
In Chivers v State of Queensland [2011] QCAT 357 the following was said:
[30] It is essential for the delivery of justice that parties provide all relevant information to the tribunal that is needed for the tribunal to decide the proceeding. It is the role of the tribunal to decide what information is necessary to achieve that outcome.
In State of Victoria v McKenna [1999] VSC 310 it was said:
I am also of the view that the TQM incident is a circumstance which is capable of assisting the consideration of other circumstances involving Mr Stone. For example, the conclusion arrived with regard to the issue of Ms. McRostie not being preferred to relieve Mr Stone is made more comfortable by the evidence concerning the TQM incident. The extent to which the TQM matter is of assistance is, however, necessarily limited and I certainly do not find it of assistance in matters where Mr Stone is not the principal decision-maker.
…
97…It must be borne in mind that the Tribunal had decided the complaint concerning the basketball incident and the document adversely to Crossely and in doing so had come to certain conclusions about Crossley’s attitude…
In Du Bois-Hammond v Raging Thunder Pty Ltd and Others [2004] QADT 27 it was said:
125.…With respect, the respondents’ motives were irrelevant (s.10(3)). What was in the mind of the respondents was not determinative. The test is: did the respondents treat the complainant less favourably than another person who was not pregnant or was not a parent (or who did not have a characteristic that a person with those attributes generally has or did not have a characteristic which is often imputed to them), would be treated in the same or similar circumstances?
Section 10(4) of the ADA provides:
(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.
In State of Victoria v McKenna [1999] VSC 310 it was said (emphasis by counsel for the applicant):
The reasoning process is complicated by the provision is s. 10(4) of the Act (set out earlier in these reasons) that there may be two or more reasons for a particular course of action and that, provided the relevant attribute constitutes one of these numerous reasons and a substantial reason at that, the elements of the contravention may be established. Thus, a set of circumstances may be such as to raise an inference that the complainant’s status as a woman was causally related to certain unfavourable treatment of the complaint. An explanation attributing another factor as the cause may be accepted without totally displacing the inference in that the Tribunal may be satisfied at the end of the day that it is more probable than not that the innocent (that is in terms of the Act) explanation given by the respondent and the attribute of the complainant’s sex were both operative and both constituted substantial reasons for the less favourable treatment.
Ultimately, there can be no magic formula. The Tribunal must carefully consider the circumstances established by the evidence and not proceed to draw inferences therefrom unless the circumstances properly give rise to such inferences.
The finding in Kong v Commonwealth (Australia Post) [1997] AusHRC 3 was:
3. Assessment of Ms Kong’s application
The evidence presented to the Commission ultimately turns not on different versions of what was said but on the proper interpretation to be placed upon it. Australia Post contends that Ms Kong was unsuccessful because of her poor work performance. Its representatives pointed to the alleged deficiencies in leadership skills. In written statement Mr Ferros and Mr Lamendola indicate that Ms Kong was unsuccessful because she “needs to display a higher commitment to leadership to one of the main tasks of a SMO – specifically leadership skills”.
Although Ms Kong was rated poorly on the “leadership skills” criterion (8 out of 20) it was not her lowest score. In fact she was rated lower on “problem solving – judgment” (5.7 out of 15) and on technical knowledge (3.5 out of 10). Yet nothing was made of these deficiencies in the conversations Ms Kong, Me Leneghen and Mr Zelesco had with Mr Ferros and Mr Lamendola, in the written statements to the Commission or in oral evidence and submissions to the Commission. The decision makers appear to have been pre-occupied throughout with Ms Kong performance, including her performance of her functions as women’s liaison officer, and to have attached little importance to her perceived unsuitability on other grounds.
4. Finding
Clearly some staff at the International Mail Centre had difficulty working with Ms Kong. The evidence establishes that there were personality clashes, disputes as to complaints raised by Ms Kong as Women’s Liaison Officer and tension with her supervisors about the ways in which she performed her role. However, the evidence also established that these issues were not brought out explicitly in the conversations after the selection process was completed but rather that the focus was on Ms Kong having to choose between promotion and continuing in her liaison role.
Having heard the evidence and submissions and considered written submissions I am satisfied that members of the selection panel were pre-occupied by Ms Kong’s work as women’s liaison officer in assessing her application for higher duty as a senior mail officer. I find therefore that their decision was affected at least in part by improper consideration of her trade union activity.
In Copeman v Derbarl Yerrigan Health Science [2007] AusHRC 37 it was said (emphasis by counsel for the applicant):
The historic and continuing role of trade unions (conducted through their representatives) is to protect, support and work for the improvement of the rights and conditions of employees and to challenge perceived injustice or unfairness towards employees. Trade union representatives are often a critical voice for employees, questioning and objecting to actions of management which impact adversely on the way in which employees are treated. The activities engaged in by Dr Copeman involved supporting and being an advocate for fellow employee doctors on issues relating to performance, potential disciplinary action, redundancy issues affecting professional practice and policies affecting the working environment. Mr Levitt, in his submissions for Dr Copeman, characterised her activities as standing up against a culture of bullying and harassment of employees and an abuse of power. These are activities in which trade union representatives are typically engaged.
The ‘trade union’ nature of the activity may be determined by reference to objective or subjective factors, or a combination of both. In this case, there is the objective fact of Dr Copeman’s trade union affiliation, namely that she was in fact the AMA(WA) representatives at DYHS. There is the fact that the activities in question are typical activities of trade union representatives. It is also clear that Dr Copeman’s activities and her altercation with Ms Davies and Ms Tobin was as a result of what she perceived to be her role as a trade union representative. This all gives those activities their trade union character.
Ms Davies and Ms Tobin say that they decided to terminate Dr Copeman’s employment for a range of reasons. I have traversed these reasons in section 6.3.2 and found that they are either not supported by the evidence or are inconsistent with other evidence before me. The perceived casual nature of Dr Copeman’s employment and the perceived need to divert resources to the East Perth clinic may have been reasons why it was thought that the discontinuance of Dr Copeman’s employment could be more easily justified than the dismissal of another doctor but I find that the key reason was the dislike of Dr Copeman’s trade union activities and a desire to end them. Even if there were a number of reasons contributing to the decision to terminate Dr Copeman’s employment, and if the matters raised by Ms Davies and Ms Tobin were taken into account, I consider that Dr Copeman’s trade union activities were clearly a basis for their decision to terminate her employment.
Ms Davies and Ms Tobin attended the meetings constituting the relevant trade union activity and witnessed Dr Copeman’s conduct at them. Dr Copeman was not expressly invited to any of the meetings by Ms Davis and Ms Tobin attended the meetings constituting the relevant trade union activity and witnessed Dr Copeman’s conduct at them. Dr Copeman was not expressly invited to any of the meetings by Ms Davies or Ms Tobin. They failed to inquire as to the reason for her presence at the 5 February 2004 meetings with Dr Rybak. I do not consider that their understanding that Dr Copeman attended the meeting on 18 February 2004 with Dr Faulkner-Hill as a ‘peer support’ or as a friend to be inconsistent with her attendance as a trade union representative. It was admitted that a redundancy would be an issue that a trade union representative would be interested in. The meeting on 19 March was acrimonious and raised issues typically of interest to trade unions and in which trade union representatives typically participate.
Ms Davies and Ms Tobin both stated that they had limited other contact with Dr Copeman during which they might have observed her and formed an opinion about her. Indeed, the only specific instance of ‘attitude’ which they say formed a reason for their decision to terminate Dr Copeman’s employment and which is not contradicted by other evidence was observed at those meetings. Further, the decision to terminate Dr Copeman’s employment was made soon after those meetings. The timing of the events, and lack of any other cogent explanation, all lead me to conclude that the main reason for the termination related to Dr Copeman’s activities at these meetings. There was obviously some sense of urgency on the part of Ms Tobin and Ms Davies for Dr Copeman’s services to be terminated because, if the real concerns were to reduce casual costs or concerns about an excess of doctors at Mirrabooka, the far more logical approach would be to at least continue her employment while there was a medical staff shortage at all clinics instead of looking for locums.
Mr James for DYHS submitted after the hearing that the basis for the termination may have been to remove long term DYHS doctors, because those who had been there a long time were perceived to be opposed to change and did not share a common philosophy with the new managers. He submitted that this perception about the long-term employees did not have to be correct but that Dr Copeman was not singled out because she engaged in trade union activities. However DYHS did not lead evidence of any such plan to remove long-term employees and this would be inconsistent with the evidence of its own witnesses. I find it unlikely that if Dr Copeman had kept her profile low and just kept performing as a respected and high revenue-producing doctor at DYHS, her employment would not have been terminated.
I infer from my findings that there was a ‘sufficient connection’ between Dr Copeman’s trade union activities and Ms Davies and Ms Tobin’s decision to terminate her employment.
McRostie, State of Victoria v McKenna [1999] VSC 310:
However, a very large proportion of the distress suffered by the complainant was attributable to events in respect of which I have not made a finding in the complainant’s favour.
On the other hand, each of the matters where I have made a finding in the complainant’s favour are quite significant events which would have been quite distressing at the time. It also seems to me that each of those matters involved decisions which had an impact on Ms McRostie’s status within the respondent organisation and they are likely to have had negative impact on her prospects with regard to subsequent human resources decisions. Indeed, it seems to me that there is a probability (albeit significantly less than 50% but more than speculative) that the decision whether or not to advertise might have been different if Ms McRostie had been given the opportunities to impress superiors, including Mr Stone, and also others influential in the organisation by relieving Mr Stone from time to time.
In the circumstances, I am of the view that I should order by way of compensation in the nature of general damages the sum of $7,500 to compensate the complainant for the loss or damage caused by the contravention of the Act.
Cockin v P & N Beverages Australia Pty Ltd & Ors [2006] QADT 42:
109. It is impossible to make any precise calculation of Mr Cockin’s economic loss due to the acts of unlawful discrimination that I have found to have taken place. In my view, this loss can best be estimated by taking one quarter of the figure representing the total decline in Mr Cockin’s net wages in the period from March 2002 to May 2003 of $17,955. That gives $4,485, which I will round up to $4,500.
110. I propose to make a modest award of compensation to Mr Cockin for his hurt feelings as a result of the unlawful discrimination. I will award him $3,500.
111. I intend to award only a small amount to Mr Cockin for the conduct of P & N Beverages in victimising him by refusing to allow him to work as a security guard at P & N Beverages’ site. Mr Cockin must have expected when he sought work with Mr Sabatino that he would not be permitted to work at the P & N Beverages’ site. I am not satisfied that he has demonstrated economic loss as a result of the victimisation. In these circumstances, an award of $500 is sufficient.
For the reasons I have given I find that discrimination or victimisation by either of the respondents has not been proved and the sought orders will not be made.
If discrimination was proved in my view the appropriate award for general damages would be $10,000.
In those circumstances the application is dismissed.
0
19
1