Lidis v Top Dog Minders Pty Ltd
[2011] QCAT 232
•28 March 2011
| CITATION: | Lidis v Top Dog Minders Pty Ltd [2011] QCAT 232 | |
| PARTIES: | Mr Nicolas Lidis | |
| v | ||
| Top Dog Minders Pty Ltd | ||
| APPLICATION NUMBER: | ADL025-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 18 November 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Bridget Cullen Mandikos, Member |
| DELIVERED ON: | 28 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Application is dismissed. 2. The parties to bear their own costs of and incidental to the Application. |
| CATCHWORDS: | Discrimination – Allegations of direct and indirect discrimination – attributes of age and impairment – area of work – claims dismissed Area of work – entry into management agreement not “work” for purposes of the Anti-Discrimination Act 1991 (Qld) |
APPEARANCES and REPRESENTATION (if any):
The parties were self-represented.
REASONS FOR DECISION
Facts
The Applicant, Mr Nicolas Lidis (“Mr Lidis”), lodged a complaint with the Anti-Discrimination Commission Queensland (“ADCQ”), under the Anti-Discrimination Act 1991 (“the Act”), against the Respondent, Top Dog Minders Pty Ltd (“Top Dog”), on 12 November 2009. The complaint was accepted by the ADCQ on 30 November 2009. Mr Lidis alleges discrimination on the basis of age and impairment in the area of work.
Mr Lidis’s complaint arises from his home-based employment with Top Dog. According to Top Dog’s website[1], Top Dog is “an exclusive alternative to dog kennels” for dogs that “prefer only human company”. The business matches customers with “minders” who are vetted by Top Dog, essentially operating as a dating agency for vacationers with pets and dogless humans who enjoy the occasional company of dogs without the commitment of pet ownership.
[1] type="1">
Mr Lidis and his partner, Mr David Wheatley (“Mr Wheatley”) became approved “minders” for Top Dog in late 2005, at a point in time when they were living in Melbourne. In late 2007, Mr Lidis and Mr Wheatley moved to the Gold Coast, and commenced operation of a new Top Dog branch there, following negotiations with Top Dog. In so far as the job sharing arrangements were concerned, I accept the evidence of Ms Wendy Thomson (“Ms Thomson”), the Managing Director of Top Dog, that she employed Mr Lidis and Mr Wheatley on a job share basis, with Mr Lidis working 3-days per week and Mr Wheatley working 2-days per week, but allowed them to be flexible between themselves with respect to the actual hours they worked, so long as the needs of the business were met.
Nature of the work
There were 2 primary components to the work performed by Mr Lidis and Mr Wheatley during the duration of their job sharing arrangement:
- Taking bookings and appointments via telephone; and
- Interviewing potential minders in accordance with Top Dog guidelines.
There was considerable evidence given at the hearing of this matter as to the nature of the “minder interviews”. The “minders” were the persons engaged by Top Dog to take care of the dogs within the minder’s home, while the owner’s were on holiday. In order to make certain that the “minders” were of the right temperament and had suitable premises (for example, boundary fencing), a Top Dog employee would conduct what sounded to be a fairly thorough interview.
Mr Lidis’ health concerns
Around the time of his relocation in late 2007, Mr Lidis received the distressing news that he had a brain tumour requiring surgery. Mr Lidis had the surgery performed in Melbourne in April of 2007. Though he had initially arranged to take 3-weeks of unpaid leave for recovery time, following the surgery he realised that his recovery would take somewhat longer. Mr Lidis returned to his employment with Top Dog in July 2008, this time on a full-time basis.
Returning to work on a full-time basis, during his recovery from surgery, was problematic. Mr Lidis gave evidence, which I accept, that he had difficulty with headaches, and difficulty driving. In particular, he had difficulty driving between his office on the Gold Coast and Brisbane for the purpose of conducting minder interviews. Mr Lidis says that:
“Ms Thomson was aware that, due to persistent and severe headaches, a result of my recent brain tumor and the consequent surgery, driving over lengthy periods was presenting difficulty for me.”[2]
[2] Statement of Nicolas Lidis, filed in QCAT on 27 August 2010, paragraph 17.
Ms Thomson gave evidence that Mr Lidis did not advise her of the nature of his surgery, nor of the impact it had upon his ability to work. Ms Thomson alleges that Mr Lidis told her he was having a benign lump removed from his inner ear, and that he was concerned about having a slight speech impediment and had the occasional headache. She asserts that she would have recalled being told Mr Lidis had a brain tumour, for the reason that her mother died of brain cancer.[3]
[3]Statement of Ms Wendy Thomson, filed in QCAT on 16 September 2010, paragraphs 11-13.
It is difficult to reconcile these 2 diametrically opposed accounts of what Mr Lidis told Ms Thomson about the nature of his impairment. Ultimately, I have come to accept the view proffered by Mr Lidis for the twofold reason that it is not in dispute that (1) Mr Lidis was in hospital, and (2) had a recovery period of approximately 3-months in total. In the circumstances, I think it is likely that Mr Lidis would have explained his condition to Ms Thomson, and also think it likely that an employer would ask for particulars. This is particularly so given the unfortunate coinciding of Mr Lidis’s health crisis with the time that the Gold Coast office of Top Dog was being established. For these reasons, I am satisfied that, minimally, Ms Thomson would have understood Mr Lidis to have undergone a serious operation. Further, as she was certainly aware that Mr Lidis could not fly following surgery, I prefer Mr Lidis’s evidence that he also disclosed he was having difficulty driving in the post-surgical period. Ultimately, nothing particularly turns on this point, as Top Dog would not need to be aware that it is discriminating, in order for QCAT to find that there has been discrimination in contravention of the Anti-Discrimination Act 1991 (Qld) (“the Act”).
Termination of job sharing arrangement with Mr Wheatley & requirement for Mr Lidis to work full-time
[10] During Mr Lidis’s recovery period, Mr Wheatley’s employment with Top Dog ceased. The circumstances of Mr Wheatley’s departure from Top Dog are somewhat in dispute. Top Dog’s evidence was that Mr Wheatley’s employment was terminated for the reason that his hours of work had been gradually decreasing, with Mr Lidis doing the majority of the work. Mr Lidis and Mr Wheatley gave evidence that Mr Wheatley was advised in June 2008 that his employment would be terminated retrospectively, with his last day of employment being 1 April 2008. Whatever the reason for Mr Wheatley’s departure from Top Dog, the end result was that Mr Lidis was then required to work full-time[4], at the very point in time he was recovering from major surgery.
[4]Hearing Exhibit 1 was a copy of an unsigned, undated Employment Contract, purportedly applicable to Mr Lidis.
[11] For the reason that Mr Wheatley is Mr Lidis’s life partner, he says that he continued to assist Mr Lidis with performing work for Top Dog, despite his no longer being employed, in the way that partners do. Sometime in December of 2008, Ms Thomson, alleged that she received a phone call from Mr Wheatley, requesting that Top Dog find an employee to assist Mr Lidis with his work. Mr Lidis and Mr Wheatley both gave evidence that there was no specific phone call made requesting a job share arrangement, but agreeing that Mr Lidis’s health, and the difficulties he had working full-time as a consequence, were discussed.
[12] The parties are in disagreement about the discussions that happened in December of 2008, with respect to Mr Lidis reverting from full-time employment back to part-time employment. When Top Dog made the decision that Mr Lidis would again become a part-time employee at this point in time, part of the rationale was that Ms Thomson believed Mr Lidis “was finding it difficult to get to Brisbane to do minder interviews.”[5] She also thought that offering Mr Lidis the opportunity to do the “minder interviews” would give him more flexibility with his hours.[6] Ms Thomson alleges that Mr Lidis agreed to return to part-time employment.
[5] Statement of Ms Wendy Thomson, filed in QCAT on 16 September 2010, paragraph 18.
[6] Statement of Ms Wendy Thomson, filed in QCAT on 16 September 2010, paragraph 20.
[13] Mr Lidis was most upset about being made part-time, and says that his again becoming a part-time employee was never discussed, but was imposed upon him. His evidence was that he believed that being asked to return to part-time employment was part of an agenda by Top Dog to eventually terminate his employment. Whatever the correct view is as to whether Mr Lidis agreed to become part-time, or was forced to, at this juncture, it is clear that his initially having been made a full-time employee following his recovery from brain surgery was problematic.
Legal Framework
Mr Lidis complains of discrimination on the attributes of impairment (s 7(1)(h) of the Act) and age (s 7(1)(f) of the Act) in the area of work (s 15 of the Act). I am satisfied that Mr Lidis’s condition falls within the parameters of the definition of “impairment” contained in the Act.
[15] Mr Lidis was self-represented at the hearing of this matter, as was Top Dog. The allegations of discrimination, and Top Dog’s response, were broadly made within the framework of the Act. Section 9 of the Act prohibits both direct and indirect discrimination. I understand Mr Lidis to complain of both Direct Discrimination and Indirect Discrimination.
Direct discrimination – age and impairment
[16] With respect to his complaint of direct discrimination, Mr Lidis believed that Top Tog treated him less favourably because of an attribute (his age and/or impairment) than another person (real or hypothetical) without that attribute would have been in the same or similar circumstances. Section 10 of the Act defines “direct discrimination” by providing, relevantly:-
Meaning of direct discrimination
(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.
(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.
[17] Mr Lidis complains, in particular about a comment made by Mr Peter Meyer (“Mr Meyer”) (a Top Dog Director, employee, and the partner of Ms Thomson), and placed on Top Dog’s internet communication system, which was utilised by Top Dog employees across Australia. The comment was that it was, “Time to get rid of the dead wood.” Mr Lidis took this comment to refer to himself, and believed it meant that he was considered unproductive due to his age and/or impairment. Mr Meyer gave evidence that the comment did not refer to Mr Lidis, but instead was calling upon Top Dog employees to remove outdated records from Top Dog’s databases. I accept Mr Meyer’s evidence on this point, but think the timing of the comment (shortly after Top Dog declined to offer a management agreement to Mr Lidis) to be most unfortunate. Lewis Carroll wrote in Through the Looking Glass:
“'The question is ,' said Alice, 'whether you can make words mean so many different things.’”
[18] The words unfortunately selected by Mr Meyer provide an excellent illustration of this phenomenon. This has been exacerbated by the impersonal nature of electronic communication, where it is not possible to use social cues in order to bring further meaning to words that simply hang on a computer screen, inviting persons such as Mr Lidis to understandably draw an assumption and take offence.
The Management Agreement
[19] Mr Lidis complains that he was discriminated against on the attributes of age and impairment when Top Dog declined to offer him a Management Agreement, at the point in time when Top Dog changed its operating structure. Top Dog had made a business decision in late 2008 to outsource the day-to-day running of the business, in exchange for a percentage of the revenue as a management fee.
[20] Mr Lidis was not offered the opportunity to accept the Management Agreement applicable to Queensland. Ultimately, the opportunity was given to Bella Lee Pty Ltd, a company that is now being wound up.[7] When Bella Lee took over management of the day-to-day operations, Mr Lidis’s employment with Top Dog was terminated. His employment with Top Dog ceased on 30 September 2009, and he was then re-employed by Bella Lee on 1 October 2009.
[7] As revealed in a search of the ASIC register.
[21] Top Dog argues that declining to make an offer to conduct business under a “management agreement” does not fall within the areas of activity covered within Part 4 of the Act. I agree that this is the case, insofar as entry into a “management agreement” of this nature does not fall within the parameters of the definition of “work” contained in the Schedule to the Act. Rather, this offer was a commercial business opportunity, and could not be classed as “work”.
[22] There is no evidence capable of supporting a finding of direct discrimination on the basis of either the attribute of age or impairment in the evidence before QCAT.
Indirect Discrimination on grounds of impairment
[23] With respect to his complaint of indirect discrimination, Mr Lidis complains that Top Dog imposed terms upon him with which he was unable or less able to comply with, and that he was therefore disadvantaged. I understand Mr Lidis to complain that the requirement to work full-time following his surgery when he was previously a part-time employee was not reasonable. If this term is considered to be 'not reasonable', the imposition of it may amount to indirect discrimination, defined by the Act as follows.
11 Meaning of indirect discrimination
(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
(a) with which a person with an attribute does not or is not able to comply; and
(b) with which a higher proportion of people without the attribute comply or are able to comply; and
(c) that is not reasonable.
(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example--
(a) the consequences of failure to comply with the term; and
(b) the cost of alternative terms; and
(c) the financial circumstances of the person who imposes, or proposes to impose, the term.
(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4) In this section--
term includes condition, requirement or practice, whether or not written.
[24] Mr Lidis complains that, following his significant health concerns, Top Dog caused his work to become more onerous, both by requiring him to work full-time upon his return from surgery. Section 205 of the Act requires that in a case involving allegations of indirect discrimination, the respondent (Top Dog) must prove, on the balance of probabilities, that the terms complained of are reasonable. Whether such terms are reasonable depends upon a consideration of all the relevant circumstances, including those contained in s 11(2)(a)-(c) of the Act, including the consequences of failure to comply with the term, the cost of alternative terms and the financial circumstances of the person who imposes the term.
[25] In the ordinary course of events, I would think that imposing a requirement to work full-time on an employee who had just returned from major surgery, was in recovery, and was previously part-time, is a patently unreasonable term. The decision to terminate Mr Wheatley, and to then require Mr Lidis to work full-time, strikes me as a bad one on many levels. Common sense, in my view, would have required that if Top Dog wanted to terminate the job-share arrangement with Mr Wheatley, that they either (1) found a replacement for Mr Wheatley other than Mr Lidis; or (2) operated the Gold Coast Top Dog office on a 3-day basis until Mr Lidis had sufficiently recovered in order to return to work on a full-time basis.
[26] What prevents me from making a determination that the requirement to work full-time amounts to indirect discrimination is that Mr Lidis was eventually again made a part-time employee (in December 2008), and at that juncture vigorously argued that he wanted to continue working full-time. During the hearing of this matter, I endeavoured to obtain clarification from Mr Lidis about this incongruous argument, repeatedly asking Mr Lidis for clarification. Ultimately, Mr Lidis was not able to provide any clarification about this, and did not give any evidence that would have permitted me to determine that his medical condition had improved, such that although he initially could not work full-time, somewhere along the way he had improved and could now work full-time.
[27] In other words, Mr Lidis eventually argues that he could comply with the term to work full-time, and applying the reasoning of the former Anti-Discrimination Tribunal in Malaxetxebarria v State of Queensland [2007] QCA 132 (20 April 2007), this in itself disposes of Mr Lidis’s claim of indirect discrimination, with respect to the requirement to work full-time. It is simply not possible to have a crack at the argument both ways (that you don’t want to work full-time, but then subsequently do want to work full-time) and support a finding of indirect discrimination.
[28] In the circumstances, Mr Lidis’s complaint of indirect discrimination must also fail.
Orders
[29] The Application is dismissed.
[30] The parties to bear their own costs of and incidental to the Application.
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