Lemeki v State of Queensland
[2014] QCAT 424
•29 August 2014
| CITATION: | Lemeki v State of Queensland [2014] QCAT 424 |
| PARTIES: | Rebecca Lemeki (Applicant) |
| v | |
| State of Queensland David Hall |
| APPLICATION NUMBER: | ADL017-13 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 19,20 and 21 February 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Fitzpatrick |
| DELIVERED ON: | 29 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application be dismissed. 2. The Respondents to file and serve any submissions in relation to costs by 12 September 2014. 3. The Applicant to file and serve any submissions in relation to costs by 26 September 2014. |
| CATCHWORDS: | Anti-discrimination matters - Direct discrimination – attribute of pregnancy – inference. Anti-Discrimination Act 1991 (Qld) ss 10, 15 Gordon v State of Queensland [2013] QCAT 564; |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Rebecca Lemeki represented by Mr Eric White of Counsel, instructed by Adams Wilson, Lawyers |
| RESPONDENTS: | State of Queensland and David Hall represented by Ms Kay Philipson of Counsel, instructed by Ms Kate Pike, Solicitor of Crown Law |
REASONS FOR DECISION
Background
On 9 March 2009, Ms Lemeki commenced employment with Queensland Health in the position of Operational Officer, Metropolitan Linen Services at the Princess Alexandra Hospital, with the classification of 002.1. Her employment was on a temporary full time basis until 29 October, 2009 when she became permanent full time. This position remained her substantive position, despite undertaking a number of temporary engagements in other roles.
On 22 March, 2010 Ms Lemeki commenced a temporary contract, as a Rehabilitation Coordinator Assistant (A03) in Workforce Services, Occupational Health and Safety Unit. She continued in that role until the incumbent employee returned to the role in August, 2011.
Thereafter Ms Lemeki accepted a temporary A03 contract in the Workforce Relations, Industrial Relations Unit from August, 2011 to November, 2011 when the role was classified at A04 level and an employee at that level was appointed.
Ms Lemeki then accepted a temporary contract as an Assistant Occupational Health and Safety Practitioner (A03), Workforce Services, Occupational Health and Safety for the period November, 2011 to June, 2012. Ms Lemeki reported to the Second Respondent Mr Hall in this role.
On 2 or 22 March, 2012, Mr Hall conducted a performance appraisal of Ms Lemeki. The date of the meeting is in dispute. The matters discussed in the meeting are in dispute. Mr Hall contends that he raised unsatisfactory performance issues with Ms Lemeki. Ms Lemeki denies that any criticism of her performance was made.
On 19 April, 2012 Mr Hall advised Lyn Jones (General Manager, Metropolitan Linen Services) that Ms Lemeki’s contract was nearing an end and was unlikely to be extended due to continuing performance issues.
Ms Lemeki fell pregnant. It is a matter of dispute as to when she told Mr Hall of her pregnancy. Ms Lemeki contends that she told Mr Hall of her pregnancy on 22 March, 2012. Mr Hall contends that she told him of her pregnancy on 25 or 26 April, 2012.
A new employee Megan Vernon commenced in the Department at the start of April, 2012. Ms Lemeki was asked to train her in relation to the duties performed by Ms Lemeki.
It is disputed as to whether a further Performance and Development meeting was held on 20 April, 2012 as asserted by Mr Hall.
On 4 May, 2012, Mr Hall advised Ms Lemeki that her temporary contract would not be renewed due to performance issues.
Ms Lemeki applied unsuccessfully for an Injury Management Administration Officer role.
Ms Lemeki took sick leave from 14 June, 2012 until the expected date of expiration of her contract position on 30 June, 2012. She remained on sick leave until October, 2012, when she commenced maternity leave. On 8 November, 2012 Ms Lemeki’s daughter was born.
Ms Lemeki resigned from her substantive position with Queensland Health on 3 June, 2012.
Ms Lemeki’s contentions and evidence
Ms Lemeki asserts that she has suffered direct discrimination in the workplace on the basis of the attribute of pregnancy. She says that her employer breached section 15 of the Anti-Discrimination Act 1991 (Qld) (the Act), because she was discriminated against:
(a)by variation in the terms of her work (s15(a));
(b)by denying her the opportunity for a benefit, namely the extension of her contract (s15(b));
(c)as a result of her resignation, which it is asserted amounted to a constructive dismissal or forced retirement (s15(c));
(d)by denial of access to occupational training (s15(d));
(e)by unfavourable treatment in connection with her work (s15(f)).
In essence, Ms Lemeki’s evidence is that she told Mr Hall she was pregnant on 22 March, 2012, at the conclusion of a Performance and Development meeting on that day. She asserts that after that time:
(a)her contract was varied because she was directed to hand over several of her duties to Ms Vernon, leaving her with little work to perform; she was excluded in the workplace in relation to duties which were taken from her and general meetings which she was no longer invited to attend;
(b)she was denied the opportunity to have her contract extended as she was replaced by Ms Vernon;
(c)Ms Vernon was given occupational training in relation to the role, which was not offered to Ms Lemeki;
(d)she was treated unfavourably in that she was denied the opportunity to properly address the performance issues that Mr Hall now raises, but which she says were never put to her. Further she was denied appointment to the Injury Management Administration role because of an alleged lack of human resources experience, which she says she could demonstrate.
At the conclusion of the hearing it was orally submitted that Ms Lemeki relies upon an inference arising from the alleged conduct, that her pregnancy was the reason for her unfavourable treatment. It was submitted that Ms Vernon did not have the attribute of pregnancy and that she received the treatment Ms Lemeki would have received had she not been pregnant.
In written submissions delivered at the conclusion of the hearing, Ms Lemeki says that Mr Hall cannot say that his actions were not influenced by the knowledge that she was pregnant. She says that he had that knowledge since 22 March, 2012, and his actions were discriminatory as defined under section 10 of the Act in that he preferred and/or favoured Megan Vernon more favourably than Ms Lemeki.
In relation to the contention put by the respondents that Ms Lemeki’s contract was not renewed because of poor performance, Ms Lemeki’s evidence is that she was never issued with any notification either verbally or in writing about adverse performance issues. It is submitted that it cannot be shown that Ms Lemeki was presented with items of poor performance now relied upon by the respondents. It is submitted that no performance and development documentation was signed by her as an acknowledgement of any discussion about its alleged contents. It is submitted that Mr Hall fabricated the performance appraisal documents on which he relies. Finally, it is submitted that no performance improvement plan was initiated by Mr Hall to address any adverse performance issues.
Respondents’ contentions and evidence
The respondents contentions on referral filed in the Tribunal contain the following admissions. Accordingly, I find that:
(a)Mr Hall told Ms Lemeki that he did not require her to do statistics or minutes. As she was no longer taking minutes her attendance at meetings was not required;
(b)Ms Lemeki was asked to do a handover to Ms Vernon once it was apparent that she would not be continuing in her role;
(c)Ms Lemeki was told at a meeting on 4 May, 2012, that her temporary contract would not be renewed due to performance issues.
The respondents contend that:
(a)Ms Lemeki was not treated less favourably than any other employee with continuing performance issues;
(b)Mr Hall had no knowledge of Ms Lemeki’s pregnancy at the time of conducting performance appraisals.
(c)Ms Lemeki was not treated less favourably than any other employee who was on a temporary contract and who was not performing at a satisfactory level;
(d)Ms Lemeki’s contract was not terminated, it expired by the effluxion of time. Renewal of the contract was reliant upon Ms Lemeki’s ability to perform the role at a satisfactory level. There was no obligation to offer her a further temporary contract; and
(e)there was no causal nexus between the failure to renew Ms Lemeki’s contract and her pregnancy.
Mr Sorensen, Principal Consultant for Workforce Services, worked as Ms Lemeki’s supervisor for a period. I accept his evidence and find that in March, April and May 2011 he held weekly meetings with Ms Lemeki at which attendance and performance matters were discussed. A diary note of a meeting conducted on 3 May, 2011 supports the evidence and sets out concerns in relation to late attendance at work, “stacks” of files awaiting filing, and being on facebook during work hours. The memorandum records - “actions needed and already taken” – “admin. duties..reduced/reviewed”; “less file creation tasks”; “no statistics”.
The memorandum also records supportive measures taken to assist Ms Lemeki. It may be that Mr Sorensen attempted to draw Ms Lemeki’s attention to problems with her performance in such a constructive and supportive way that she now cannot reconcile the allegations of poor performance made by her employer with her experience at the time. Under cross examination Ms Lemeki was only prepared to acknowledge a limited number of issues raised with her. She otherwise denied the matters put to her or expressed no recall. I prefer the evidence of Mr Sorensen given his clear recall and his contemporaneous file record.
Mr Sorensen also addressed the issue of why, given the performance issues, Ms Lemeki went on to fill other temporary contracts in the Workforce Services area.
Mr Sorensen said that the employee whose role was being filled by Ms Lemeki as Rehabilitation Co-ordinator Assistant, was not expected to return for some time. At that time Ms Lemeki had experienced some difficult personal issues and was being supported by the team’s management. It was agreed, given her circumstances to extend the temporary contract to December, 2011. Subsequently the substantive position holder requested a return to her role. Given the extension which had been granted, and rather than terminate her contract the decision was taken to offer Ms Lemeki work in the Human Resources Team under the supervision of Ms Carius. I accept Mr Sorensen’s evidence.
Ms Carius, Manager Workforce Services, Princess Alexandra Hospital, gave evidence that her team then known as Workforce Relations urgently required some administrative support and general case management, similar to Ms Lemeki’s previous role. The actual role that needed filling was an A04 role, which was beyond Ms Lemeki’s competence. Ms Carius gave evidence of observations of a lack of comprehension on the part of Ms Lemeki in relation to some tasks, lack of attention to detail, failure to pick up on corrections to her work and difficulty completing a spreadsheet of industrial action. She said that she raised these matters informally with Ms Lemeki.
Under cross examination Ms Carius admitted that the role performed by Ms Lemeki had no job description and that it was an ad hoc collection of duties at varying levels. She accepted that Ms Lemeki did not understand she had adverse statements made about her performance and that she was at a disadvantage because there were no supporting documents, but there were allegations made about her. She also conceded that her perception that Ms Lemeki was frequently absent from work on Mondays and Fridays was not correct.
In circumstances of increasing industrial action Ms Carius sought an employee at A04 level and arrangements were made for Mr Watson to transfer from Mr Hall’s Safety Team into the A04 role and for Ms Lemeki to take a role in Mr Hall’s team.
Ms Lemeki largely denied any problems with her performance in Ms Carius’ team.
Ms Carius’ evidence is supported by Ms Karen Leighton, who at the time worked with and to some extent supervised Ms Lemeki for the period August, 2011 to November, 2011. She described particular issues with an industrial action spreadsheet which was addressed by offering Ms Lemeki an Excel training course. Otherwise she noted a failure to grasp the concept of drafting Human Resources correspondence for review and endorsement by Ms Carius.
Given the consistent evidence of Ms Carius and Ms Leighton, I find that Ms Lemeki’s work performance was unsatisfactory in relation to lack of understanding of some tasks, lack of attention to detail and failure to correct mistakes. I prefer their evidence to that of Ms Lemeki. I accept Ms Carius’ evidence and find that she raised these matters informally with Ms Lemeki. I acknowledge the point made on behalf of Ms Lemeki that such judgments of unsatisfactory work performance may have been unfair given the nature of the job. I also acknowledge the tenor of Ms Lemeki’s evidence that she did not think her performance was being criticised as she thought she was being supported. However, I do not think that because it may be unfair to criticise Ms Lemeki, she was not exhibiting the problems raised by Ms Carius and Ms Leighton.
Mr Hall, Principal Consultant, Workforce Services, Princess Alexandra Hospital, gave evidence that from December, 2008 to June 2012, he was employed as the Team Leader (Safety) of the Occupational Health and Safety (OHS) Unit, Workforce Services. During the period June, 2011 to June 2012, he supervised Rebecca Lemeki. He described her role as performing general administrative duties and more complicated tasks including data entry and statistical analysis.
Mr Hall’s evidence is that from February, 2012, he was aware that Ms Lemeki was not performing the role at an appropriate level.
He gave evidence that he observed:
(a)an inability to follow simple instructions, such as not using social media during work time;
(b)completing minutes of meetings to a poor standard;
(c)problems with detail and quality in data entry;
(d)a weekly report produced by Ms Lemeki regularly contained inaccuracies. Old data from a precedent document continued to appear in the current document;
(e)failure to check names rather than numbers to ensure quality; and
(f)written work contained sentences which made no sense.
Mr Hall’s evidence is that he had a number of discussions with Ms Lemeki about her errors following the 2011 Christmas period. He said that he asked her to come to his office on a number of occasions to explain how or why she could not follow simple instructions, but received no satisfactory response.
Mr Hall’s evidence of having discussions with Ms Lemeki is supported by the evidence of Ms Leighton. Her evidence is that Ms Lemeki sat outside her office and she spoke to her daily. She recalled discussions with Ms Lemeki about her meetings with Mr Hall and that she was upset after a Performance and Development meeting.
Mr Owens also gives support to Mr Hall’s evidence. He trained Ms Lemeki in the role. He was responsible for weekly overview of the data entry for the team. He said that when he identified issues he would advise Ms Lemeki how to fix the problems, by email and verbally, however she failed to rectify the identified issues. He recalled that there were times the same error would continue to come up three, four or five weeks after he identified the original issue.
Mr Owens reported these issues to Mr Hall, including an incident where he suspected Ms Lemeki of trying to hide her mistakes by entering incorrect data.
Ms Lemeki generally denied the allegations or could not recall the complaints being put to her.
Mr Hall held a Performance and Development meeting with Ms Lemeki. He says the meeting occurred on 2 March, 2012. Ms Lemeki asserts it occurred on 22 March, 2012. Both agree a meeting occurred. I find that the meeting occurred on 22 March, 2012. I prefer the evidence of Ms Lemeki as she was very clear on the point at the hearing. One would have expected Mr Hall as a Manager to have kept a good record of the date of the meeting, however the document discussed at that meeting is undated.
Both agree Ms Lemeki’s job description formed the basis of the discussion and that during the course of the meeting Mr Hall typed comments in red onto the job description document which was displayed on his computer screen. The document in question is exhibited to Mr Hall’s affidavit. A colour version was tendered by Ms Lemeki as exhibit 7. Both agree that at the conclusion of the meeting they agreed to meet again. Mr Hall also exhibited to his affidavit a completed Performance Appraisal template which set out some details of a conversation between himself and Ms Lemeki and fleshed out in the “Evidence and Expectations” section of the template his response to the criteria of Ms Lemeki’s technical knowledge, quality focus, organisation and planning, work values and customer focus. He says that this document was completed in the weeks following the first meeting.
There are a number of unsatisfactory aspects of Mr Hall’s evidence and record keeping. First, the question of the date of the meeting. Second Exhibit 7 bears not only the typewritten annotations, but also some handwritten notes. Mr Hall gave changing evidence as to when the handwritten notes were made. In any event the document was not signed by Ms Lemeki as an accurate record of the meeting. Nor was the more fulsome Performance Appraisal document signed.
It was suggested to Mr Hall that he has exaggerated any performance issues, that he did not put the matters he now relies on as evidence of poor performance to Ms Lemeki in the Performance and Development meeting and that he is trying to bolster his assertion that he has not discriminated against Ms Lemeki. He denied that was the case. It was suggested that if Mr Hall held such serious concerns about Ms Lemeki’s performance that he should have implemented a Performance Improvement Plan. He indicated that would not ordinarily occur until a second Performance and Development meeting had occurred and in any event as Ms Lemeki’s contract was soon due to expire such a plan was futile.
The limited documents presented in evidence by Mr Owens and Mr Hall as evidence of poor performance were criticised as not revealing problems to the extent claimed by them. This was largely acknowledged by them.
Despite these shortcomings, I accept Mr Hall’s evidence that there were problems with Ms Lemeki’s performance.
Ms Lemeki confirmed under cross examination that she felt comfortable about the matters entered in the Job Description document in red. Under cross examination Ms Lemeki admitted that in the Performance and Development meeting, Mr Hall said that he had issues with mistakes she was making. She also says that now, when she reads Exhibit 7, she sees that it suggests performance issues, but that was not what she felt the environment to be on the day. Again, it appears to be a case of Ms Lemeki feeling fully supported in her work environment and not recognising the significance of the problems being raised with her.
I accept as credible the evidence of Mr Hall and Mr Owen that Ms Lemeki had problems with understanding certain tasks, attention to detail and errors, because these problems are similar to the problems noted by Ms Lemeki’s other supervisors in other roles. I accept the evidence of Mr Hall that he raised these matters informally with Ms Lemeki and that he attempted to do so in the Performance and Development meeting. I accept Ms Lemeki’s evidence that she had no real understanding that serious criticisms were being made about her performance and that she had no opportunity to challenge the matters set out in the Performance Appraisal template document. For this reason, I have accorded no weight to the unsigned Performance Appraisal document prepared by Mr Hall after his meeting with Ms Lemeki. However, I consider there is sufficient other evidence, supported by other witnesses of problems with Ms Lemeki’s performance to find that there were unsatisfactory aspects of her work performance.
Mr Hall asserted that a second meeting occurred on 20 April, 2012 and relied on a time sheet showing Ms Lemeki was at work on that day. Ms Lemeki categorically denied that such a meeting occurred and produced evidence that she was in fact absent on sick leave on that day. She denies that any second meeting occurred at all. There is no document to evidence the contents of any meeting. In the absence of any supporting documents which one would expect Mr Hall to prepare, I prefer the evidence of Ms Lemeki and find that no Performance and Development meeting occurred on 20 April, 2012.
In relation to the contention that Mr Hall knew of Ms Lemeki’s pregnancy on 22 March, 2012, before the engagement of Ms Vernon and the consequent effects upon Ms Lemeki’s employment, I find that Ms Lemeki told Mr Hall she was pregnant on 22 March, 2012. Taking into account Ms Lemeki’s absolute certainty when giving evidence of the date she informed Mr Hall of her pregnancy, I prefer her evidence on this point. Mr Hall’s general evidence was vexed by uncertainty about dates in a number of respects. He made no diary note of the conversation to establish the date on which he says he was informed.
I also consider it credible that Mr Hall was informed of the pregnancy on 22 March, 2012, because Ms Lemeki had told others in the workplace of her pregnancy on 13 March, 2012, the day after she found out she was pregnant. Among those she told was Ms Carius. It is reasonable to conclude she was not disposed to wait for a longer period to tell people of her pregnancy. Also, I accept Ms Lemeki’s evidence that she had a scan on 22 March, 2012 which informed her she was 7 weeks pregnant. That meant she had meaningful information to provide to her employer at a time when she was scheduled to meet with Mr Hall.
The other matter raised by Ms Lemeki as evidence of unfavourable treatment is her failure to be appointed to the role of Assistant Practitioner within the Injury Management Team. Relevant to the complaint is the allegation that Mr Sorensen commented in the context of a discussion about her application that it was hard for an employer to hire a pregnant woman because they have to think of costs. Mr Sorensen categorically denied making that statement and said that it is a matter he has given advice on, he himself has taken paternity leave and that it is not a difficulty for an employer to manage a situation involving a pregnant employee. I accept Mr Sorensen’s evidence and find that he did not make the statement attributed to him. Mr Sorensen’s evidence is that a person with human resources experience and tertiary qualifications was selected as part of a merit selection process. I find that Ms Lemeki was part of a merit selection process and that she was not treated less favourably than other unsuccessful applicants.
Legal Framework
To succeed in her claim, Ms Lemeki must establish the elements of section 10 of the Act; namely:
(a)because of her pregnancy;
(b)Mr Hall treated her less favourably than another person was treated, who was not pregnant;
(c)in circumstances that are the same or not materially different; and
(d)if there are two or more reasons why she was treated less favourably, her pregnancy is the substantial reason for the treatment.
The analysis involves consideration of a comparator. Ms Lemeki submits that the comparator is Ms Vernon. The respondents did not make any submissions in relation to the appropriate comparator other than to submit that no person on a temporary contract could have any expectation of ongoing employment at the expiry of the contract’s term.
In my view the comparator is a person employed on a temporary contract who is not pregnant and whose supervisor holds concerns in relation to their performance.
Analysis
I intend to consider the issues in two steps. First, was Ms Lemeki treated less favourably than the hypothetical comparator? Second was any unfavourable treatment because of her pregnancy?
In relation to the comparator, I consider that person would be subject to the obligations and benefits of the employer’s performance management policies and its policy in relation to temporary employment.
I find that Ms Lemeki was treated less favourably than the hypothetical comparator because it is not possible to say on the evidence that she was accorded a fair performance management process. I accept her evidence that she was confounded by Mr Hall stating on 4 May, 2012 that her contract would not be extended because of performance issues. I can only conclude that the significance of any performance issues was not successfully conveyed to Ms Lemeki during the course of her contract. Mr Hall has not helped himself by the poor state of his records in relation to performance management of Ms Lemeki.
That finding colours other matters of which Ms Lemeki complains. I find that because Ms Lemeki was not aware that her contract would not be extended because of performance issues, steps taken to vary her duties and the requirement that she hand over her role to Ms Vernon, were unfavourable treatment. One could reasonably expect another employee, properly managed would have known why those steps were being taken.
In relation to the allegation that Ms Lemke was denied training which was offered to Ms Vernon, I find that she was offered a range of training during the course of her contract. However, properly performance managed as a hypothetical comparator employee would have been, I find that she would have been offered training specific to the areas of weakness in her performance. I find that is a further area of unfavourable treatment.
Ms Lemeki complains that she was denied the opportunity for an extension of the temporary contract. I note the evidence of Mr Hall that Ms Vernon now fills the role on a permanent basis. Plainly there was an ongoing operational need for the role. Any employee working under a temporary contract in these circumstances could reasonably expect an extension of their contract or an opportunity to apply for the role on a permanent basis, provided their performance was satisfactory. It is on this point that I am unable to find that Ms Lemeki was treated less favourably than another person on a temporary contract, in circumstances where their supervisor had genuine concerns in relation to unsatisfactory performance. On the basis of common sense, I find that an employer dissatisfied with the performance of an employee would be highly unlikely to extend a temporary contract which would otherwise come to an end by effluxion of time. I find that is the case even if the employer’s dissatisfaction had not been properly communicated.
As to the other complaint that Ms Lemeki suffered unfavourable treatment because she was not appointed to the role in Mr Sorensen’s group, I have found that she was not treated less favourably than other unsuccessful candidates participating in a merit selection process.
There is no direct evidence that Ms Lemeki’s unfavourable treatment was because of her pregnancy. Her evidence is that she felt that to be the case. I am asked to draw an inference that the attribute of pregnancy was the cause of less favourable treatment than the comparator’s treatment.
Member Roney, SC discussed “inferences and problems of proof in a circumstantial case” in the decision of Gordon v State of Queensland & Ors [1]. He usefully cites Fullagar J in Department of Health v Arumugan [1988] VR 319:
“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.”
[1][2013] QCAT 564 at [8] – [22].
On the findings of fact I have made, I consider that there is a reasonable explanation for Ms Lemeki’s treatment other than her pregnancy. I have found that Mr Hall experienced problems with Ms Lemeki’s work performance, consistent with problems experienced by her other supervisors. That is the reason cited by him for failure to extend Ms Lemeki’s contract. I find that was the substantial reason for the unfavourable treatment of Ms Lemeki. The issue has been clouded by poor performance management of Ms Lemeki. However, that is a different matter which does not infect the reasonable explanation given for failure to extend her temporary contract.
I am unable to find that Ms Lemeki was discriminated against on basis of her pregnancy.
Ms Lemeki’s claim is dismissed.
If the parties wish to make submissions in relation to costs, the Respondents should file and serve submissions by 12 September, 2014. The Applicant should file and serve any submissions in reply by 26 September, 2014.
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