McIntyre v Hastings Deering (Australia) Ltd and Anor
[2012] QCAT 438
•14 September 2012
| CITATION: | McIntyre v Hastings Deering (Australia) Ltd and Anor [2012] QCAT 438 |
| PARTIES: | Nicole Lynette McIntyre (Applicant) |
| v | |
| Hastings Deering (Australia) Ltd (First Respondent) Dean Hiskens (Second Respondent) |
| APPLICATION NUMBER: | ADL078-12 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 29 August 2012; further written submissions received from both parties 12 September 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 14 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondents are prohibited from altering the Applicant’s present hours of work in the manner set out in Exhibit NM4 to the affidavit of the Applicant filed 3 August 2012 until further order. 2. Costs are reserved. |
| CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION – INDIRECT DISCRIMINATION – application for orders protecting applicant’s interests under s 144 Anti-Discrimination Act 1991 – test under s 144 – applicability of usual tests for interim orders – whether arguable case for relief Anti-Discrimination Act 1991, ss 11, 144, 209, Pt 1 Divisions 2 & 3 Anderson and Anor v Australian Meat Holdings Pty Ltd [1997] QADT 25 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Kelly Thomas, Solicitor of Maurice Blackburn Lawyers |
| RESPONDENT: | Mr Jamie Wells, Solicitor of Allens Linklaters |
REASONS FOR DECISION
Ms McIntyre is a qualified nurse who works for Hastings Deering at Mackay as a Health and Safety Advisor. Mr Hiskens is one of Hastings Deering’s managers.
She says her employer and Mr Hiskens have been guilty of unlawful, indirect discrimination against her through their attempts to change her working hours because of the adverse effects that would have on her family responsibilities, and seeks an injunction restraining them from doing so until her complaint about the alleged discrimination is resolved or determined either by the Anti-Discrimination Commissioner or this Tribunal.
Her employment with Hastings Deering since November 2011 has been under the terms of a contract which sets her hours of work as Monday to Friday, 38 hours per week. It also provides that the employer may ‘alter your roster and work hours in line with operational requirements after giving appropriate notice of this advice’. She says she was assured, despite this term, that Hastings Deering was a ‘family friendly’ employer and, by inference, her hours would suit the demands of her personal circumstances.
She says that, on taking up the position, she made it clear that as the single mother of two very young children (18 months, and 4) she required ‘family friendly’ hours. She has generally worked from either 7.00am or 9.00am to 3.00pm or 5.00pm on weekdays.
In May 2012 Mr Hiskens told her of plans to have two persons working in her position on a rostered shift basis. This, as an affidavit from Mr Hiskens explains, was to meet the demands of increased business and staff numbers, and to ensure a qualified nurse was on duty for longer periods. Discussions ensued about Ms McIntyre’s circumstances and her reluctance to work hours that would interfere with her parenting responsibilities and child-care arrangements.
At the end of May she was presented with a contract which would require her to work eight shifts of 9.5hrs, followed by six shifts off. Some shifts would, under this proposed arrangement, be 6.00am – 3.30pm, and others 8.30am – 6.00pm, and include weekends and public holidays. She protested. More discussions took place in June and July but, eventually, she was told she must agree to the change by 27 July. (Subsequently the employer has said it proposes implementing the new arrangements from 10 September.)
She then lodged a complaint with the Anti-Discrimination Commission of Queensland, which has been accepted but not, yet, referred to this Tribunal. She also applied to QCAT for injunctive relief seeking an order that the status quo be maintained until her complaint is resolved. That application was heard on 29 August, with both parties legally represented.
Ms McIntyre alleges discrimination under s 11 of the Anti-Discrimination Act 1991 (‘ADA’). Specifically, she says her employer’s attempts to alter her working hours are indirect discrimination, which s 11 relevantly defines as an attempt to impose a term of employment with which she, as a person with particular family responsibilities, is not able to comply; with which a high proportion of people who do not have her family responsibilities could comply; and, which is not reasonable.
She says that the proposed shift hours would require her to employ a carer, at a cost prohibitive to her, and severely impinge upon her time with her children and activities she enjoys with them on weekends and public holidays, and some afternoons and evenings. She is, she says, simply unable to comply with the proposed new roster and meet her family responsibilities.
Section 144 of the ADA allows a complainant to the Commission to apply to QCAT, even before the complaint has been referred to the Tribunal, for an order prohibiting an employer from doing an act which might prejudice either the investigation or conciliation of the complaint, or an order the Tribunal might make after a hearing of it. Ms McIntyre’s application is brought under that section.
Her complaint to the Commission is the subject of a conciliation conference there on 7 September 2012. If that fails and her employment is terminated when she does not accept the new shift roster to be implemented on 10 September, any subsequent remedy will, she submits, be ‘of little value’. In particular, it is argued that remedies like reinstatement or re-employment (which can be ordered under s 209 of the ADA) are rarely ordered and, in reality, she will have lost a good job which suits her parental responsibilities solely because of her employer’s wrongful discrimination.
Section 144 Anti-Discrimination Act 1991
This Tribunal and its predecessor (the Queensland Anti-Discrimination Tribunal) have generally approached the exercise of the discretion arising under s 144 in a way similar to that used in the courts in applications for injunctions – that is, by considering whether the applicant has established an arguable case for relief and, also, the balance of convenience.[1]
[1]Anderson and Anor v Australian Meat Holdings Pty Ltd [1997] QADT 25; Jones v Queensland Health [2010] QCAT 700.
That is not to say, however, that an applicant who establishes a prima facie case, and also persuades the Tribunal that the balance of convenience lies in her favour, can avoid meeting the obligation to also establish what s 144 specifically requires[2]: that, here, Ms McIntyre satisfy the Tribunal that the introduction of the roster on 10 September might prejudice the investigation or conciliation of her complaint, or any order the Tribunal might ultimately make.
[2] Jones v Queensland Health (supra) at [12] and [13].
The consideration of those questions occurs within the ambit of a provision which, on its face, involves the exercise of a wide discretionary power to make orders directed to the maintenance of the status quo for the purpose of enabling the processes provided under the ADA to be effectively pursued, and to maximise the opportunity for its objectives to be achieved.[3] Those objectives include protection from unfair discrimination[4]; the investigation of complaints in which discrimination is alleged[5]; and, if the commissioner believes resolution by conciliation is possible, attempts to do so[6].
[3] Proust v Equal Opportunity Board of Victoria [1990] VR 738, per Vincent J.
[4] ADA, Preamble.
[5] ADA, Part 1 Division 2.
[6] ADA, Part 1 Division 3.
The discretion to make an order under s 144 is also to be exercised in a way which recognises that it is intended, primarily, to protect the interests of the complainant before reference of the complaint to this Tribunal.
The employer has mounted a careful and thoughtful argument that Ms McIntyre has failed to surmount the tests under s 144 because, in short, she has not adduced reasonably precise evidence to show that the investigation or conciliation of her complaint, or any ultimate remedy in the Tribunal, might be prejudiced.
Against that, Ms McIntyre points to the imminent risk of unemployment, the effects that would have upon her financial position (and, hence, her ability to pursue her complaint[7]) and the uncertainty surrounding her prospects of obtaining a remedy like reinstatement if she is forced to argue for it in the Tribunal.
[7] Affidavit sworn 3 August 2012, at [46].
In proceedings like this the nature of any possible prejudice is likely, at this early stage, to lack precision. The provision implicitly recognises this, with its use of the word ‘might’. The discretion to be exercised under it is, in light of its own wording and the statutory context discussed above, one that imposes an obligation upon an applicant to show that a possibility of prejudice exists that is tangible or, at least, perceptible and plausible, and not too remote or unlikely.
Ms McIntyre’s case is that she cannot work under that roster and meet her family responsibilities.[8] If the employer introduces the new system then reinstatement may, as a possible remedy for her, be futile. Once that is appreciated, and because the introduction of the new system is imminent, prospects of conciliation are at least likely to be adversely affected because she will have lost or be about to lose her capacity to perform the job under it. Similarly, the nature of the remedies she may be able to seek in the Tribunal may be diminished because reinstatement to a position under the new system which the employer is bent upon introducing is not something she can, she says, practically seek in the face of those responsibilities.
[8] Affidavit sworn 3 August 2012, at [33].
In my view these risks are sufficient to satisfy the statutory test under s 144(1). Any uncertainty attached to them is not, on the evidence and submissions, of a degree that makes them too remote or unlikely.
The usual tests
It remains necessary and appropriate to also consider the application in light of the tests usually applied in applications for interim or interlocutory injunctions, discussed earlier at [12]; but, as Vincent J observed in Proust v President, Equal Opportunity Board[9], some care must be taken not to extend this approach too far. These applications are brought within a discrete statutory framework, not the common law jurisdiction.
[9] Proust v Equal Opportunity Board of Victoria [1990] VR 738.
These tests have been accepted, at the highest levels of our justice system[10], as safeguards in instances where a party seeks to prevent another from acting in a way affecting the status quo, adversely to the applicant, pending final adjudication.
[10]Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 82.
Their efficacy, in proceedings of this type, is obvious: when some disadvantage may flow to the respondent if the order is made, fairness and justice dictate that the adjudicative process should filter applications that are hopeless or ill-conceived, or in which the disadvantage or harm which might be caused to a respondent if an order is made far outweighs the potential detriment to the applicant if interim relief is refused.
A prima facie case?
Indirect discrimination under s 11 of the ADA, discussed earlier, can include conduct that impinges upon family responsibilities. What is likely to be the primary issue in this matter is, as the submissions for Hastings Deering acknowledge, the reasonableness of the new ‘term’ (condition) the employer proposes to install into Ms McIntyre’s employment contract, a question to which various provisions of the ADA are addressed[11].
[11] ADA, ss 11(2), 205.
At the hearing the respondent fairly and properly conceded that Ms McIntyre’s case, set out in her affidavits, met this test. Certainly, the facts and matters alleged in them are enough for it to be said that she has a sufficient likelihood of success to justify the preservation of the status quo.[12] That is some distance, of course, from concluding that she will succeed but enough for present purposes.
[12] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.
Balance of convenience
The inconvenience to which Ms McIntyre may be subjected is, at worst, the loss of her employment and her income from it. The employer says that it would be put to inconvenience and cost if it must tailor its plans to roster more staff in the position around Ms McIntyre’s existing working hours, rather than the new shift roster it wishes to introduce; and, that there may be difficulties with ‘handovers’ and, potentially, periods when its employees do not have the benefit of an on-duty nurse, available to treat workers who might suffer injury.
There is no reason to doubt either contention. The exercise of balancing convenience reflects the inherent tension often thrown up in cases under the ADA, and the conduct it seeks to discourage: between, intending no disrespect, the microcosm of the personal detriment Ms McIntyre might suffer and the macrocosm of a large employer’s expressed wish to adequately meet the needs of its workforce.
I was not overly burdened with authority on this aspect of the matter. Ms McIntyre points, unsurprisingly, to Hastings Deering’s size and resources and, by implication, its ability to fashion (if necessary) a solution which would allow her to continue with her present hours pending final determination of her claim. The employer says that to do so would, however, be ‘problematic’, involving additional costs and the difficulties with weekend cover and handovers mentioned earlier.
In light of both party’s reliance upon the financial impact of interim relief, it is appropriate to focus upon that issue. It is also relevant, as the employer contends, to look at the relief Ms McIntyre might ultimately obtain if she succeeds, including reinstatement or damages. For Ms McIntyre it was argued that reinstatement is not a commonly imposed remedy (based upon statistical material from the Commission, and Fair Work Australia) and, in light of her personal circumstances, may be of little utility to her if she loses her current position; and, similarly, an eventual award of damages will not alleviate her immediate disadvantage.
It is also material to consider the duration of the effect of any order preserving the status quo[13]. It is not improbable that the ultimate resolution of Ms McIntyre’s claim in the Commission, and QCAT, may take some months, or longer.
[13] Harcourt v BHP Billiton Iron Ore Pty Ltd & Ors [2008] FMCA 1100.
That particular aspect of the case was touched upon in Harcourt and, also, Mifsud v Skye Children’s Co-Operative Limited[14] in which applicants were seeking reinstatement after actual termination of their employment, in circumstances where (in Harcourt) that decision reflected real questions about the employee’s ability to perform his work because of medical problems. There is no question, here, about Ms McIntyre’s ability to perform her role; only, rather, one which touches the times she ought to be obliged to do so.
[14] (2007) 164 IR 218 at 219.
Ultimately, I am persuaded that Ms McIntyre makes the stronger case that the financial impact of denying her interim relief should prevail over the effects the employer could suffer if it is granted. She has consciously and deliberately taken employment in circumstances which enable her to meet her family responsibilities, but a planned act of the employer puts that in jeopardy. The financial consequences will involve hardship for her. That is true, also, for the employer if she is allowed to continue on her present roster but it is plainly in a better position to meet that cost. It is material that because she is not an Australian citizen she would not be able to fall back upon Centrelink benefits if she loses employment.
In light of the conclusions reached earlier about the meaning and effect of s 144 and the relevance of the traditional tests, if the determination reached in respect of the statutory provision is plainly in the applicant’s favour then the latter ought not be determinative unless they plainly resolve in the employer’s favour. That cannot be said here: I accept that if Ms McIntyre loses her position, prejudice in terms of s 144 will likely flow against her, and the traditional tests are not aligned against her in a way that would warrant allowing them to override the statutory intent of the section.
It is also common, in the courts, for an applicant to proffer (or be ordered to provide) an undertaking of a kind that gives the respondent some protection if the application fails and the latter suffers damage; but, as observed in Jones v Queensland Health[15] the ADA imposes no such condition to a grant of relief under s 144 and each case will turn upon its own circumstances. The effect of an order here is unlikely, the evidence shows, to force the employer to pay wages for no product – ie, Ms McIntyre can continue to perform work of value to Hastings Deering. Granted, it may expend additional money in wages to ‘work around’ her hours and provide additional cover for its employees in terms of nursing staff but that is the result of findings under the ADA, which does not impose any requirement for an undertaking. I am not persuaded it is necessary or appropriate to require one as a condition of the relief Ms McIntyre seeks.
[15] [2010] QCAT 700.
Finally, the employer also pointed to delay as a factor telling against giving her the order she seeks. The evidence shows that she engaged in discussions with her employer over some months in, it appears, a genuine attempt to resolve the dilemma before commencing proceedings in the Commission and it was not until 26 July that she received final word that the employer would, despite her representations, proceed to introduce the new roster. In those circumstances she ought not be criticised, and delay does not tell against her.
There is one other matter. After the hearing on 29 August the respondents discovered an email from Ms McIntyre to the Commission in which she complains of victimisation at her work and makes specific allegations against Mr Hiskens. She also asked the Commission to ‘include victimisation in her complaint’. The respondents seek to have that email, dated 21 August, admitted in this application. I invited, and received, further written submissions from both parties.
It is appropriate to allow the email to be admitted in evidence. It touches upon Ms McIntyre’s work circumstances and, in particular, her claim in an affidavit that she enjoyed her work, and gets along with her colleagues and management. That done, I do not think the email alters the conclusions set out earlier: it would be unsurprising if the chain of events described in the evidence had not created some tension in the work place, including between Ms McIntyre and Mr Hiskens. That does not contradict or negate her claim that she likes her job, and her colleagues, and wishes to stay.
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