Lightfoot v Webb
[2012] QCATA 222
•19 October 2012
| CITATION: | Lightfoot v Webb [2012] QCATA 222 |
| PARTIES: | Malcolm Lightfoot (Applicant/Appellant) |
| v | |
| James Dean Webb (Respondent) |
| APPLICATION NUMBER: | APL220-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Dr Bridget Cullen, Member |
| DELIVERED ON: | 19 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The decision of the tribunal dated 30 May 2011 is set aside and the following decision is substituted: (i) Application ADL057-10 is dismissed. |
| CATCHWORDS: | APPEAL – ANTI-DISCRIMINATION – Impairment – employment – redundancy – workers compensation and financial difficulties in business – one or more reasons for discrimination Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142(3)(b) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Council of the City of Wollongong v Cowan (1955) 93 CLR 435 Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr James Webb made a complaint that Mr Malcolm Lightfoot had discriminated against him in the workplace on the grounds of impairment, by making him redundant at a time when he had injured his back at work, and was receiving workers compensation. The complaint was referred by the Anti-Discrimination Commission (Qld) to the Tribunal for determination. Following a two-day hearing, the Tribunal was satisfied that Mr Lightfoot had discriminated against Mr Webb by treating him less favourably because of his impairment. It made orders that Mr Lightfoot pay damages of $16,000.00 to Mr Webb.
In making its decision, the Tribunal compared Mr Webb’s treatment with the treatment of Mr David Lightfoot. Like Mr Webb, he was on a section 457 visa and sponsored and employed by the business operated by Mr Malcolm Lightfoot.
Mr Lightfoot has filed an application for leave to appeal or appeal.
His grounds of appeal are specified as being ‘the facts’, stating that Mr Webb was made redundant at a time when the business was in financial stress, and that the employment of all three supervisory staff (of which Mr Webb was one) ended. The other two supervisory staff resigned and did not receive the redundancy payment received by Mr Webb. In this way, he says that Mr Webb was treated more favourably than his co-workers. Further, he says that the supervisory duties that were being performed by these staff members have been taken on by himself as the business owner.
Both parties have filed written submissions in relation to the application. Mr Lightfoot reiterates his arguments and provides copies of some documents which he says support his argument. Mr Webb submits that the evidence now provided with the submission should have been provided to the Tribunal at the hearing of the proceeding and can not now be relied upon on appeal.
The matter has been listed for hearing on the papers.
Legal framework for leave to appeal
An appeal on a question of fact or a question of mixed fact and law may proceed only if the Appeal Tribunal grants leave to appeal.[1]
[1] QCAT Act, s 142(3)(b).
The question whether or not leave to appeal should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
An appeal is not another opportunity for a party to argue their case. It is for correcting errors made by the tribunal which decided the proceeding. Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[6]
[6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
New evidence may not be presented on appeal without leave of the Appeal Tribunal. Leave may be granted where the evidence was not reasonably available at the hearing; had it been, an opposite result was likely and the new evidence is credible.[7]
[7] Council of the City of Wollongong v Cowan (1955) 93 CLR 435.
Discrimination on grounds of impairment
Mr Webb complains of direct discrimination in the area of employment on the ground of impairment. Under the Anti-Discrimination Act 1991, broadly speaking Mr Webb was entitled to succeed on his complaint if he satisfied the Tribunal on the balance of probabilities that he was treated less favourably, by his employer. Here the assertion was that Mr Webb’s employment was made redundant because of his impairment[8] rather than the financial difficulties being faced by his employer.
[8]Anti-Discrimination Act 1991, ss 7, 10, 15, 204 unless any of the exemptions in ss 24-36 applied.
Because this appeal is about a conclusion of fact, leave will only be granted if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[9] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[10]
[9] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[10] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Decision of the learned Member below
One of Mr Lightfoot’s submissions is that Mr David Lightfoot was not a co-worker of Mr Webb because Mr Webb had a supervisory role. Therefore, he argues that in considering whether Mr Webb was treated less favourably, he cannot be compared to Mr David Lightfoot. He says that his treatment must be compared to other staff at the same level. He says that the other two middle managers resigned at about the same time as Mr Lightfoot was made redundant and that he, Mr Lightfoot restructured the business in this way and took on the functions of the three middle managers the business had previously employed.
He says that he had to restructure the business, and correspondingly decrease business expenditure because of the financial difficulties that the business was experiencing.
In her reasons for the decision, the learned Member accepted the following facts concerning Mr Lightfoot’s business:
(a)The business was under financial pressure and it needed to be restructured to reduce costs.
(b)Generally the employees, all six of them, were aware of the financial difficulties because of the close environment in which they worked in a small office.
(c)Three employees resigned at or about the time of Mr Webb’s termination before they were made redundant.
(d)The financial position of the business was in a precarious position as a result of the non-recovery of a debt owing to the business of about $750,000.
The learned Member specifically found that Mr Lightfoot did not discuss the parlous state of the business with Mr Webb. This would not necessarily be unusual, particularly if Mr Lightfoot assumed it was common knowledge amongst the employees. The learned Member seemed to place significant weight on the failure of Mr Lightfoot to engage in a consultative process with Mr Webb about the prospect of redundancy.
Having heard the parties’ evidence, the Member found that the relationship between them was hostile, and that Mr Lightfoot was often aggressive. This anger and aggression was also evident in Mr Lightfoot’s discussions with WorkCover about Mr Webb’s injury. Naturally, this did not engender open communication.
Having read the transcript of the evidence given at the hearing, it is clear that the relationship between Mr Lightfoot and Mr Webb was toxic. It is also reasonable to assume that Mr Lightfoot would have gone to some lengths to terminate Mr Webb’s employment because of his deep suspicions about the genuineness of Mr Webb’s injury, his exposure to increased WorkCover premiums and the inconvenience occasioned as a result of his having to assist WorkCover with Mr Webb’s statutory and common law claims.
No obligation to consult about this redundancy in advance
Regardless, we do not consider that there existed any obligation on the part of Mr Lightfoot to discuss his personal or financial affairs with Mr Webb. With this in mind, we have concern about the learned Member’s handling of the redundancy issue below.
The learned Member did not make any finding that the redundancy was not genuine, having regard to the financial position of the business. This is, in our view, critical. The learned Member appears to have rejected Mr Lightfoot’s argument that the redundancy was a genuine basis for termination, on the basis that Mr Lightfoot did not engage Mr Webb in discussions about the prospect of redundancy, provide him with details relating to the financial position of the company, nor did he share with Mr Webb any thoughts about a potential restructuring of the business. Further, the learned Member appeared to be influenced by Mr Lightfoot’s apparent failure to consider the manner in which a redundancy would impact upon Mr Webb.
In an ideal world, the benefits of preparing an employee for redundancy are readily apparent. Such actions are usually taken by larger businesses with internal or externally engaged human relations personnel. In such a context, a business might elect to offer employees redundancy packages, or career counselling. Here, however, Mr Lightfoot’s business is small with a limited number of employees. Mr Lightfoot believed, it seems genuinely, that all staff knew there were financial pressures, but perhaps not the detail of those pressures.
It is entirely unrealistic to think that a small business operator like Mr Lightfoot would open his books to the staff, or even signal to them that there was trouble, as that may have exacerbated his difficulties. It is open for business owners to have such discussions where they feel morally bound, but certainly is not an expectation that this Tribunal can impose this requirement upon them. The extent to which an employer has to engage staff in the provision of information about the business will depend on the circumstances, but given the size of this sole trader would be limited.
It seems on the basis of this criticism, the learned Member rejected redundancy as a genuine reason for termination and concluded that the reason for termination was Mr Webb’s impairment.
Impact of s 10(4) of the Anti-Discrimination Act 1991
That reasoning does not sit comfortably with the conclusions she found about the state of the business, which we consider leads to a conclusion that although Mr Webb did have an impairment, the financial stress that the business was under was the reason for the actual termination.
Mr Webb complains of direct discrimination under the Anti-Discrimination Act 1991. We note that s 10(4) of the Act provides that:
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.
The learned Member, in her decision, did not go far enough in her considerations to determine whether Mr Webb’s impairment was a substantial reason for his redundancy. This is, in relation to s 10(4) of the Act a necessary consideration and the absence of this consideration amounts to a legal error. The Appeal Tribunal may substitute its decision on this legal point for that made, but not fully considered, by the learned Member below.
Once we put aside the learned Member’s criticism of Mr Lightfoot’s failure to consult with Mr Webb about the financial state of the business, and accept that the business was in trouble, it is then difficult for Mr Webb to establish on the balance of probabilities that his impairment was a substantial reason for his being made redundant, as opposed to the financial circumstances of the business.
On this basis, and in the absence of any specific finding about how the learned Member reached this conclusion below, we do not consider that the Tribunal could be comfortably satisfied that Mr Webb’s impairment was a substantial reason for his redundancy. In these circumstances, we consider that the learned Member has fallen into error, and that this should be corrected on appeal.
We therefore grant leave to appeal, set aside the decision of the Tribunal below, and dismiss the Application in ADL057-10.
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