McKay v Steggles Pty Ltd

Case [2023] QIRC 328


QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

McKay v Steggles Pty Ltd [2023] QIRC 328

PARTIES:

McKay, Prudence
(Complainant)

v

Steggles Pty Ltd
(Respondent)

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

Wecker v University of Technology, Sydney [2007] NSWSC 927

Whipps v Battery Store Australia Pty Ltd [2021] QIRC 016

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

  1. 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').

  2. 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.

  3. 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…

Continue reading McKay v Steggles Pty Ltd

Sign in free to access the full text

Details
AGLC
McKay v Steggles Pty Ltd [2023] QIRC 328
Case
[2023] QIRC 328
Decision Date

CaseChat Overview and Summary

In McKay v Steggles Pty Ltd, the complainant alleged discrimination on the basis of her mental health impairment pursuant to section 7 of the Anti-Discrimination Act 1991 (Qld). The complainant, employed by the respondent, claimed she was treated less favourably than another employee without a mental health impairment, leading to her resignation. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

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.