QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | McKay v Steggles Pty Ltd [2023] QIRC 328 |
PARTIES: | McKay, Prudence v Steggles Pty Ltd |
CASE NO: | AD/2021/9 |
PROCEEDING: | Referral of a complaint |
DELIVERED ON: | 16 November 2023 |
HEARING DATES: | 2 and 3 February 2022 |
| MEMBER: | Power IC |
| HEARD AT: | Brisbane |
| ORDERS: | 1. That the complaint be dismissed. 2. Each party to bear their own costs. |
| CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – where the complainant worked as an employee for the respondent – where the complainant alleges discrimination on the basis of impairment pursuant to section 7 of the Anti-Discrimination Act 1991 (Qld) – whether a person with an attribute was treated less favourably than another person without the attribute – consideration of a hypothetical comparator – whether discrimination in the workplace occurred – where the complainant discharged the onus of establishing that the treatment amounted to unlawful direct discrimination – application of workplace health and safety exemption – exemption applied pursuant to section 103 – conduct not unlawful complaint dismissed |
| LEGISLATION: | Anti-Discrimination Act 1991 (Qld) ss 7, 8, 9, 10, 15, 103, 108 and 204 Industrial Relations Act 2016 (Qld) ss 2 and 4 |
| CASES: | Australian Securities and Investments Commission v Hellicar [2012] HCA 17 Briginshaw v Briginshaw (1938) 60 CLR 336 Carlton v Blackwood [2017] ICQ 001 Curran v yourtown & Anor [2019] QIRC 059 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Edoo v Minister for Health [2010] WASAT 74 Haines v Leves (1987) 8 NSWLR 442 Hodkinson v Commonwealth 2011 FMCA 171 Jenkins v State of Queensland & Ors [2018] QCAT 154 Jones v Dunkel (1959) 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd [2022] HCA 11 Purvis v State of New South Wales (Department of Education and Training) & Anor (2003) HCA 62; 217 CLR 92 Qantas Airways Ltd v Gama [2008] FCAFC 69;167 FCR 537 Stevenson v Murdoch Community Services Inc [2010] FCA 648 |
| APPEARANCES: | Mr T. O'Brien of Counsel, instructed by the Australian Meat Industry Employees Union. Ms G. Hampson of Counsel, instructed by AFE1 Legal Pty Ltd. |
Reasons for Decision
Ms Prudence McKay ('the Complainant') filed a complaint against Steggles Pty Ltd, ('the Respondents') alleging contraventions of the Anti‑Discrimination Act 1991 (Qld) ('the AD Act').
The Complainant submits that she was initially misdiagnosed with schizophrenia and subsequently diagnosed with Post-Traumatic Stress Disorder (PTSD) ('the mental illness') during her employment with the Respondent.[1] The Complainant submits that her mental illness is an 'impairment' within the meaning of s 7(h) of the AD Act[2] and the Respondent was aware of the Complainant's mental illness.
[1] T 1-13, ll 13; 39-47.
The Complainant claims that the Respondent contravened s 15 of the AD Act by the following actions[3]:
· Suspending the employment of the Complainant on…
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- AGLC
- McKay v Steggles Pty Ltd [2023] QIRC 328
- Case
- [2023] QIRC 328
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the complainant had established that she was treated less favourably than a hypothetical comparator and whether the workplace health and safety exemption under section 103 of the Anti-Discrimination Act applied to the respondent's conduct. The court considered the evidence provided by the complainant and two witnesses, evaluating the complainant's claim of direct discrimination. It was necessary to determine if the complainant had discharged the onus of proving that the treatment amounted to unlawful direct discrimination and whether the exemption applied.
The tribunal found that the complainant had not established that she was treated less favourably than a hypothetical comparator, which was defined as a female employee of similar age, tenure, and disciplinary history without a mental health impairment. The tribunal noted that the complainant had not provided sufficient evidence to support her claim of direct discrimination. Furthermore, the tribunal applied the workplace health and safety exemption under section 103, concluding that the respondent's conduct did not constitute unlawful discrimination. Consequently, the tribunal dismissed the complaint, and each party was ordered to bear their own costs.
Orders
Orders of the court
1. That the complaint be dismissed.
2. Each party to bear their own costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In my view an appropriate hypothetical comparator is a female employee of similar age, tenure and disciplinary history as the Complainant who the Respondent did not presume to have a mental health impairment.Consideration The meaning of direct discrimination is outlined in s 10 of the AD Act: Section 8 of the AD Act defines discrimination on the basis of an attribute to include direct and indirect discrimination on the basis of: The Complainant is required to prove, on the balance of probabilities, that the Respondent has contravened the Act pursuant to s 204. The allegation made by the Complainant is that the Respondent advised the Complainant that she could not return to work without a medical clearance and then refused to accept the medical clearances leaving her with no alternative but to resign. The relevant test applied to a claim of direct discrimination was summarised by O'Connor VP in Curran: The question in this matter is whether the Respondent treated the Complainant less favourably than another person without the presumed impairment, or a characteristic of the presumed impairment, because of her presumed impairment or a characteristic of her presumed impairment in circumstances which were the same or not materially different. Prior to an assessment of whether the Complainant's treatment was less favourable, it is necessary to establish the relevant treatment through consideration of the evidence. Evidence was given at hearing by the Complainant, Mr Hereora Luke, and Ms Sonia Takla. In written closing submissions, the Complainant submitted that the evidence given by Mr Luke and Ms Takla was 'less than forthcoming', citing evidence given as to the number of times the witnesses had seen a document in evidence.[21] I do not accept that the evidence given by either witness was not forthcoming. It seemed to me that their evidence reflected a genuine attempt to recall the number of times they had seen the particular document, which may not have been immediately recalled given the passage of time.[21] Exhibit 1, Document 2 - Email, Sonia Takla , National IR Relations Manager, for Baiada/Steggles Pty Ltd, 20 January 2020. In summary, the Complainant gave the following evidence:· The Complainant was initially working for the Respondent in the chicken tray pack section. This was a 'fairly close environment' and sometimes people would not be able to get past. An employee named 'Craig' would bump the Complainant on the buttocks.[22] The Complainant said to Craig in the lunchroom' 'If you touch me again, I'll kick you in the balls''.[23] The Complainant received a written formal warning for this conduct;[24][22] T 1-8, ll 8-9. [23] T 1-9, l 4.[24] Exhibit 1, Document 6 – Warning issued to Prudence McKay, 22 November 2018; T 1-9, ll 6-27. · The Respondent later moved the Complainant to the marinade section, which was a similar environment to the tray pack section involving close contact but included a lot more people[25];[25] T 1-9, ll 21-22. Mr Luke was employed as the Industrial Relations Co-ordinator at the Mareeba plant for the Respondent during the relevant period.