Michalakellis v LMM Holdings Pty Ltd (No. 4)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Michalakellis v LMM Holdings Pty Ltd & Ors (No. 4) [2023] QIRC 248
PARTIES:	Michalakellis, Dimitri (Complainant) v LMM Holdings Pty Ltd (First Respondent) & Reesby, Grant (Second Respondent) & Gibson, Sam (Third Respondent)
CASE NO:	AD/2018/83
PROCEEDING:	Referral of a complaint
DELIVERED ON:	30 August 2023
HEARING DATES:	30 and 31 August 2022 1, 2 and 3 September 2022
MEMBER:	Power IC
HEARD AT:	Brisbane
ORDERS:	1. That the complaint be dismissed. 2. I will hear the parties on the question of costs.
CATCHWORDS:	HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – where the complainant worked as a contractor for the first respondent – where the second respondent and the third respondent worked for the first respondent – where the complainant alleges discrimination on the basis of certain attributes – attribute of sex, race and presumed sexuality pursuant to the Anti-Discrimination Act 1991 (Qld) section 7 – 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 – whether the respondents engaged in victimisation – where the complainant failed to discharge the onus of establishing that the treatment amounts to unlawful direct discrimination – where the complainant failed to discharge the onus of establishing the respondents engaged in victimisation – complaint dismissed
LEGISLATION:	Anti-Discrimination Act 1991 (Qld) ss 7, 8, 9, 10, 15, 129, 130
CASES:	Bero v Wilmar Sugar Pty Ltd & Ors [2018] QCATA 104 Bero v Wilmar Sugar Pty Ltd [2016] QCAT 371 Briginshaw v Briginshaw (1938) 60 CLR 336 Carlton v Simon Blackwood (Workers’ Compensation Regulator) [2017] ICQ 001 Carr v Baker (1936) 36 SR (NSW) 301 Cassady v Hardings N.Q. Pty Ltd and Anor [2021] QCAT 353 Curran v yourtown & Anor [2019] QIRC 059 Golding Sippel and The Laundry Chute Pty Ltd [2021] QIRC 74 Gordon v State of Queensland & Ors [2013] QCAT 564 Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 Haines v Leves (1987) 8 NSWLR 442 Jenkins v State of Queensland & Ors [2018] QCAT 154 Jones v Dunkel (1959) 101 CLR 298 LLM Holdings Pty Ltd & Ors v Michalakellis [2019] QIRC 75 McIntyre v Tully [2000] QCA 115 Michalakellis v LMM Holdings Pty Ltd (No 2) [2020] QIRC 24 Michalakellis v LMM Holdings Pty Ltd (No. 3) [2021] QIRC 289 Moffatt on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd [1998] QADT 16 Park v State of Queensland & Anor [2013] QCAT 183 Perera v Warehouse Solutions Pty Ltd (Human Rights) [2017] VCAT 1267 Purvis v State of New South Wales (Department of Education and Training) & Anor (2003) 217 CLR 92 Qantas Airways Ltd v Gama [2008] FCAFC 69 Rintoul v State of Queensland & Ors [2016] QCAT 211 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 Smith v Aussie Waste Management Pty Ltd [2015] FWC 1044 Tafao v State of Queensland [2020] QCATA 76
APPEARANCES:	Mr D. Michalakellis, the Complainant himself. Ms R. Taylor of Counsel, instructed by Franklin Athanasellis Cullen Lawyers.

Reasons for Decision

Mr Dimitri Michalakellis ('the Complainant') filed a complaint in the then Anti‑Discrimination Commission Queensland ('ADCQ')[1] against LMM Holdings Pty Ltd, trading as Brisbane BMW ('the First Respondent'), Mr Grant Reesby ('the Second Respondent') and Mr Sam Gibson ('the Third Respondent') (together, 'the Respondents') alleging contraventions of the Anti‑Discrimination Act 1991 (Qld) ('the AD Act').
[1] Now the Queensland Human Rights Commission.
The Complainant and the Respondents participated in a conciliation conference before the ADCQ prior to the matter being referred to the Queensland Industrial Relations Commission ('the Commission') pursuant to s 166(1)(a) of the AD Act.
Following a conciliation conference at the Commission and a number of interlocutory determinations,[2] the matter proceeded to hearing.
[2] LLM Holdings Pty Ltd & Ors v Michalakellis [2019] QIRC 75; Michalakellis v LMM Holdings Pty Ltd (No 2) [2020] QIRC 24; Michalakellis v LMM Holdings Pty Ltd (No. 3) [2021] QIRC 289 ('Michalakellis No. 3').
Background
The Second Respondent was the Pre-Delivery Manager with the First Respondent. The Third Respondent was the Direct Manager of the Second Respondent and the First Respondent's General Manager for After Sales.
The Complainant was engaged as a contractor with the First Respondent after taking over from the previous contractor, 'True Colours Duco Repairs' ('True Colours').
Prior to the Complainant taking over as a contractor for the First Respondent, Mr Paul Tom operated True Colours and performed spray-painting and small repairs for the First Respondent.
In late 2015, Mr Tom, the Complainant, and the Second Respondent had a discussion about the Complainant taking over from True Colours as contractor for the First Respondent. In December 2015, the Complainant commenced his own contracting arrangement with the First Respondent providing minor paint repair and spray-painting services through his company, Mic Industries Pty Ltd.
The Complainant's work was completed in the pre-delivery yard of the First Respondent along with other employees and contractors.
Between January 2016 and 13 April 2018, the Complainant was the only person providing spray-painting and touch-up services at pre-delivery with the exception of when the Complainant was on holidays, during which the First Respondent engaged a different contractor to complete this work.
On 13 January 2018, the First Respondent's Managing Director, Mr Martin Roller, received an anonymous complaint from the Complainant's wife, Ms Lucy Michalakellis, alleging the Second Respondent was engaging in bullying behaviour towards the Complainant and other workers. Ms Michalakellis did not identify herself or the Complainant in the email.
On 14 January 2018, Mr Martin Roller, the First Respondent's Managing Director, replied to Ms Michalakellis and enquired if the Complainant would be prepared to have a confidential discussion with the First Respondent's Human Resources Manager, Mr Joshua McGee, to provide further details of the allegations. Mr Roller then notified Mr McGee of the complaint.
Mr McGee and the Third Respondent subsequently approached the Second Respondent to discuss the allegations made in the anonymous complaint. On 16 January 2018, Mr Roller wrote a further email to Ms Michalakellis to advise that the complaint was discussed with the Second Respondent.
On 21 January 2018, Ms Michalakellis emailed Mr Roller to advise that she had noticed an improvement in the situation with the Complainant and that he was still unaware that she had made the anonymous complaint.
In February 2018, Ms Michalakellis, again, emailed Mr Roller anonymously advising that the Second Respondent's alleged bullying behaviour towards the Complainant was occurring again. Mr McGee responded to this email on 28 February 2018, encouraging the Complainant to come forward to discuss the issues raised so they could be addressed. The Complainant replied on 7 March 2018 agreeing to have a discussion with Mr McGee to discuss the complaint on 9 March 2018.
On 9 March 2018, Mr McGee returned the Complainant's call. The Complainant confirmed his identity and outlined the details of his concerns, including that the Second Respondent:
(a)had called his shoes and the music he listened to 'gay';
(b)pointed to a dead cockroach and said 'there's one of your kind';
(c)would deliberately tell the Complainant there was no further work only to call him back to pre-delivery shortly after; and
(d)would unreasonably scrutinise his work.
The Complainant further detailed complaints that the Second Respondent was unapproachable, unreasonable or brusque and that he was not the only person that had these grievances with the Second Respondent. The Complainant gave examples of the Second Respondent 'blasting' or 'laying into the mechanics'.[3]
[3] Exhibit 7: Transcript of phone recording between the Complainant and Mr Joshua McGee (9 March 2018) [83], [117].
Mr McGee advised the Complainant that he would need to put the allegations to the Second Respondent.[4] The Complainant asked if there was 'any way we can put it in writing that I have the contract to work there for the next two years …'.[5] Mr McGee responded that he did not generally get involved with 'that sort of stuff' but that he would raise it with the people who make those decisions.[6]
[4] Ibid [198].
[5] Ibid [199].
[6] Exhibit 6: Voice recording of conversation between Complainant and Mr Joshua McGee, the Complainant, Mrs Michalakellis and Mrs Michalakellis's family members (9 March 2018); Exhibit 7.
This conversation was recorded by the Complainant.
Mr McGee and the Third Respondent met with the Second Respondent and discussed the complaints raised by the Complainant.[7]
[7] T 5-20, l 23; Exhibit 8: Email from 'Anonymous' to Mr Martin Roller, 13 January 2023, 8-9.
The Second Respondent denied some of the allegations, however, conceded others, including calling the Complainant's shoes 'gay' and the music that he listened to 'girly'.[8] The Second Respondent stated that there was banter at times which the Complainant engaged in and indicated that he would joke with the Complainant, and the Complainant would laugh. The Second Respondent stated that he was not aware he had caused any offence to the Complainant.
[8] T 5-21, ll 1-2.
On 3 April 2018, the Complainant and Ms Michalakellis met with Mr McGee and the Third Respondent to discuss the complaints and to confirm that the allegations against the Second Respondent had been adequately addressed.[9]
[9] T 5-22, ll 26-45.
The recollection of what occurred at the meeting differed between the participants, however, it is apparent that there was mention of the Complainant's Greek heritage, including that he had recently been to Greece and that 'Mr Gibson said something about Greek people being tough or resilient (or words to that effect)'.[10]
[10] T 4-57, ll 1-15 ; T 2-61, ll 1-4; T 2-35, ll 1-9.

The day following the meeting, the Complainant approached the Second Respondent with a carton of beer to apologise and to discuss the complaint. The accounts of the meeting provided by the witnesses differ. The Second Respondent did not accept the carton of beer and asked the Complainant why he did not just come and talk to him about his concerns rather than wasting other people's time and being a 'keyboard warrior'.

The Complainant contends that the Second Respondent instructed staff to socially isolate him. The Second Respondent denied this allegation, however, accepted he had told other staff to only engage with the Complainant on a professional basis.[11] The Second Respondent stated that this was not because a complaint had been made, but rather because the Complainant did not like banter. The Complainant reported this interaction with the Second Respondent to Mr McGee on the same day.
[11] T 3-26, ll 41-46.
Mr McGee and the Third Respondent spoke to the Second Respondent in the following days regarding his interaction with the Complainant on 4 April 2018 during which 'they outlined the First Respondent's expectations regarding [the Second Respondent's] behaviour and informed the Second Respondent that he would be receiving a letter (regarding the outcome of the Complainant's complaint) and would need to undertake some further training around workplace conduct'.[12]
[12] T 5-26, ll 20-33.
The Complainant was called into work by the Second Respondent on 5 and 6 April 2018 before the Second Respondent took leave from 9 to 20 April 2018. The Complainant continued to perform work for the First Respondent on 10, 11, 12 and 13 April 2018.
After working on 13 April 2018, the Complainant went to see his doctor who advised him to stop working. The Complainant emailed Mr McGee on 17 April 2018 advising that he had been advised by his doctor to stop working for a period of time and had lodged a claim with WorkCover Queensland.

The Complainant did not return to work for the First Respondent.
The Complainant's application for workers' compensation to WorkCover was not accepted. The Complainant subsequently commenced an application for an order to stop bullying and a separate general protections application in the Fair Work Commission ('the FWC').
On 15 June 2018, the Complainant discontinued both FWC applications and filed a complaint with the ADCQ alleging that the Respondents had discriminated against him and engaged in victimisation.
Additional complaints
The Complainant filed a Statement of Facts and Contentions on 8 October 2018 followed by further and better particulars on 10 March 2019 following an order by Knight IC.
The Complainant filed and served an affidavit with an Amended Statement of Facts and Contentions on 16 June 2021. In this document, the Complainant included a new complaint of sex discrimination and pleaded new claims alleged to have occurred before 15 June 2017, which was the commencement of the limitation period to the complaint. Following an interim hearing regarding these issues, the Commission accepted the new complaint and the new and out-of-time allegations.[13]
[13] Michalakellis No. 3 (n 2).

Following a five-day hearing, the Complainant filed his closing submissions some two months later which raised a new complaint against the Second Respondent of sexual harassment. The closing submissions also raise a new allegation of direct discrimination by the First Respondent and a new complaint of victimisation by Mr McGee personally. The Respondents object to the introduction of each of these new complaints.

The Complainant was given leave to amend his Statement of Facts and Contentions in the period prior to the hearing following the interlocutory decision referred to at [32].[14] Acknowledging that the addition of a further attribute was to occur a short time prior to the commencement of the hearing, the decision clearly stated that the Complainant's Amended Statement of Facts and Contentions was to then encompass the entirety of the Complainant's case.[15]
[14] Ibid.
[15] Ibid [44].
In Carlton v Simon Blackwood (Workers’ Compensation Regulator),[16] Martin J stated:
[18] … An appellant's case has to be known before the hearing starts. The Commission cannot allow a case to "evolve" and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment.

…
[48] … Nevertheless, the matters for determination are confined by the Amended Statement of Events or the Statement of Stressors. Cases like this are not to be run as if they are a mini Royal Commission into all aspects of the conduct of both the employer and the employee.
[16] [2017] ICQ 001, [18], [48].

Each of the new grounds of complaints raised by the Complainant in his closing submissions are addressed below.
Sexual harassment
In the Complainant's closing submissions, the Complainant claims that he was sexually harassed by the Second Respondent's conduct, in contravention of s 118 of the AD Act. This allegation was not put forward in the material before the hearing, nor was it raised during the hearing. The Complainant had not previously complained of sexual harassment in any of the jurisdictions in which the Complainant has filed proceedings.
The attempt to raise new grounds after the hearing has concluded and both parties have closed their cases raises the potential of significant prejudice against the Respondents.
The Complainant submits that the additional complaint should be accepted because the facts relied upon in support of his sexual harassment claim were alleged in his complaint to the ADCQ and in his Statement of Facts and Contentions. This is not entirely correct, with only some of the facts raised appearing in the Complainant's Further and Better Particulars and others not raised at all in the documents filed prior to hearing.
As outlined at [34], the Complainant had the opportunity to amend his case in the week prior to the hearing to include a further ground of complaint. The Complainant refers to comments in the interlocutory decision[17] that 'the QIRC is not bound by the characterisation of the ADCQ and is empowered by s 178 to amend a complaint'.[18] However, I note in that decision, I proceeded to make the point that 'The case to be answered will not be allowed to ''evolve'' at hearing without leave of the Commission, with the Complainant's Amended SOFC now encompassing his case'.[19]
[17] Michalakellis No. 3 (n 2).
[18] Ibid [44].
[19] Ibid.

If the Complainant was of the view that sexual harassment had occurred, he had the opportunity to include the allegation in his case at that late stage. No reasonable explanation was given as to why this claim was not included when the Complainant's Amended Statement of Facts and Contentions was filed.
The legal test to establish sexual harassment is different to that of direct discrimination. I accept the Respondents' submission that, had it been on notice of this complaint at the hearing, different lines of cross-examination would have been advanced to test the Complainant’s case and different evidence may have been called by the Respondents to address the issues in dispute.
The concessions made by the Second Respondent during the hearing do not, on their own, satisfy the meaning of sexual harassment within the meaning of s 119 of the Act.
Leave may be sought at any stage to amend a Statement of Facts and Contentions, however whether leave is given is a question of fairness between the parties. In the absence of compelling circumstances, allowing a complaint to be added within the Complainant's closing submissions that has not been included in documents filed prior to hearing or ventilated and tested in open court, would result in considerable unfairness. Permitting this course of action in the circumstances of this matter would unreasonably infringe on the Respondents' right to procedural fairness. Accordingly, this additional complaint will not be considered.
Direct discrimination by the First Respondent
The involvement of the First Respondent as outlined in the material filed prior to the hearing and ventilated during the hearing was limited to vicarious liability for the alleged conduct of the Second Respondent and the Third Respondent.
In the Complainant's closing submissions, he raises an argument that the First Respondent has engaged in conduct amounting to direct discrimination. The Complainant had not requested that the complaint be amended to include this complaint.
As outlined above, it would be prejudicial to allow an additional complaint to be pursued at the point of closing submissions in circumstances where the Respondents had not been put on notice of such a complaint. Doing so would be unfair as the First Respondent did not have the opportunity to provide evidence addressing the complaint.
It would contravene the principles of procedural fairness to allow this complaint to proceed having only been raised in closing submissions. Accordingly, this complaint will not be considered.
Victimisation by Mr McGee
The Complainant contends in his closing submissions that Mr McGee victimised him by failing to protect the Complainant from the Second Respondent's conduct and by revealing his identity to the Second Respondent.
This claim relates to a phone call between the Complainant and Mr McGee. This phone call was not a new fact that emerged during the hearing and was not a surprise to the Complainant. The appropriate time to bring a claim against Mr McGee was when his original complaint was filed or by seeking leave to amend the complaint.

It is also noted that Mr McGee is not a party to the proceeding, was not the subject of a complaint in the documents filed and was not legally represented at the hearing. Mr McGee gave evidence as a representative of the First Respondent due to his involvement in the complaint investigation.
The Complainant did not seek to amend his complaint to include this claim. This claim was not included in the Amended Statement of Facts and Contentions and was not specifically raised at the hearing. It would be unfair to allow this claim to be made in these circumstances. Accordingly, I will not consider this complaint.

Statutory framework

The onus lies with the Complainant to demonstrate, on the balance of probabilities, that the Respondents contravened the AD Act pursuant to s 204.
The requisite standard to which the contraventions must be proven is the Briginshaw test.[20] This is particularly relevant given the seriousness of the allegations.
[20] Jenkins v State of Queensland & Ors [2018] QCAT 154, [58]; Briginshaw v Briginshaw (1938) 60 CLR 336 ('Briginshaw').
Part 2 of Chapter 2 of the AD Act identifies 'Prohibited grounds of discrimination'. Section 7 prohibits discrimination on the basis of various defined 'attributes':

7 Discrimination on the basis of certain attributes prohibited

The Act prohibits discrimination on the basis of the following attributes—
(a)sex;
(b)relationship status;
(c)pregnancy;
(d)parental status;
(e)breastfeeding;
(f)age;
(g)race;
(h)impairment;
(i)religious belief or religious activity;
(j)political belief or activity;
(k)trade union activity;
(l)lawful sexual activity;
(m)gender identity;
(n)sexuality;
(o)family responsibilities;
(p)association with, or relation to, a person identified on the basis of any of the above attributes.

Section 8 of the AD Act provides the meaning of discrimination:

Discrimination on the basis of an attribute include direct and indirect discrimination on the basis of—
(a)      a characteristic that a person with any of the attributes generally has; or
(b)      a characteristic that is often imputed to a person with any of the attributes; or
(c)      an attribute that person is presumed to have, or to have had at anytime, by the person discriminating; or
(d)      an attribute that a person had, even if the person did not have it at the time of the discrimination.

Part 3 of Chapter 2 of the AD Act identifies 'Prohibited types of discrimination'. Section 9 prohibits 'direct' and 'indirect' discrimination, while s 10 defines the meaning of direct discrimination:
10 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.
Example—
R refuses to rent a flat to C because—

• C is English and R doesn't like English people
•C's friend, B, is English and R doesn't like English people
• R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.

(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.

Example—
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.

(4) 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.
(5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

Part 4 of Chapter 2 of the AD Act identifies 'Areas of activity in which discrimination is prohibited'. Division 2 of Part 4 deals with 'Work and work-related areas'. Section 15 identifies types of discrimination in the area of 'work':

(1) A person must not discriminate—
(a)in any variation of the terms of work; or
(b)in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
(c)in dismissing a worker; or
(d)by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
(e)in developing the scope or range of such a program; or
(f)by treating a worker unfavourably in any way in connection with work.

Victimisation is prohibited pursuant to s 129 of the AD Act. Victimisation is defined in section 130 as follows:
(1) "Victimisation" happens if a person (the "respondent") does an act, or threatens to do an act, to the detriment of another person (the "complainant")—

(a)because the complainant, or a person associated with, or related to, the complainant—
(i)refused to do an act that would amount to a contravention of the Act; or
(ii)in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
(iii)is, has been, or intends to be, involved in a proceeding under the Act against any person; or

(b)because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a) (i) , (ii) or (iii).

(2) In this section, a reference to involvement in a proceeding under the Act includes—
(a)making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
(b)involvement in a prosecution for an offence against the Act; and
(c)supplying information and producing documents to a person who is performing a function under the Act; and
(d)appearing as a witness in a proceeding under the Act.[21]

[21] Anti-Discrimination Act 1991 (Qld), ss 130(1)-(2) (emphasis added).

Vicarious liability

It is not in dispute that a relevant work relationship existed between the Complainant and the Respondents such that s 15 of the AD Act is engaged. The Respondents concede the Complainant was a contractor to the First Respondent and s 133(1) of the AD Act applies in these circumstances.[22]
[22] Ibid s 15(f).
It is not in dispute that if the Complainant establishes any contraventions of the AD Act by the Second Respondent or Third Respondent, the First Respondent would be vicariously liable for those contraventions.

Attributes

The Complainant's allegations are that he was discriminated against on the basis of sex, race, and presumed sexuality.[23] The allegations are that the Complainant was discriminated against on the basis that he was male, Greek, and presumed to be homosexual.
[23] Ibid ss 7(a), (g), (n).

The Respondents deny that they treated the Complainant less favourably and to the extent any actions are admitted, contend those actions were not made on the basis of the Complainant's sex, presumed sexuality or race.

There is no dispute that the Complainant is male and of Greek heritage.

The Complainant claims that characteristics that are often imputed to males are 'masculinity', 'not taking offence to insults directed at them' and 'being able to give as good as they get in relation to insults in the workplace'.[24]
[24] Complainant's closing submissions filed 4 November 2021, [11],

The Complainant claims that the Second Respondent discriminated against him on the basis that he presumed the Complainant to have the attribute of homosexuality. The Complainant contends that the Second Respondent called him derogatory names related to homosexuality and treated him less favourably than other employees and contractors whom he did not perceive as being homosexual.
The Second Respondent gave evidence that he knew the Complainant was married and did not believe the Complainant was homosexual.[25] The Complainant submits that an objective determination must be made of whether an ordinary, reasonable person who heard the Second Respondent making the alleged remarks to the Complainant would consider the Second Respondent believed him to be a homosexual, referring to Purvis v State of New South Wales (Department of Education and Training) & Anor,[26] in which the majority stated:

[236] For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed 'because of' disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'.

[25] T 3-15, l 43.

[26] (2003) 217 CLR 92, 163 ('Purvis').

I note the following consideration of attributes in Rintoul v State of Queensland & Ors:[27]
[10] It is important to note in section 8(c) that the attribute that a person is presumed to have must be a presumption by the person discriminating. For that section to apply here there the applicant will need to prove that the respondents or one of them had a presumption that the applicant was of Aboriginal descent or associated with, or relation to, a person identified on the basis of aboriginality.
[27] [2016] QCAT 211, [10].

In circumstances where the context of the admitted conduct does not indicate that the Second Respondent engaged in the conduct 'because of' a presumption that the Complainant was homosexual, this cannot be taken to be a presumed attribute of the Complainant. It is clear from the Second Respondent's testimony that he did not presume the Complainant to be homosexual and accordingly, any claim that he was treated less favourably pursuant to s 8(c) cannot be accepted.

Having determined that the Second Respondent did not presume the Complainant to be homosexual, it is not necessary to consider allegations relating to this attribute further in this matter.

Comparator

The Complainant claims that, in the course of his work with the First Respondent, he was treated less favourably than a person without his relevant attributes in circumstances that are the same or not materially different.

An analysis of 'circumstances that are the same or not materially different' involves consideration of a comparison with a person without the relevant attributes but otherwise in the same position as the Complainant.⁷

The task of identifying an appropriate comparator was considered by O'Connor VP in Curran v yourtown & Anor:[28]
[28] [2019] QIRC 059.

[84] In Woodforth v State of Queensland, a comparison was required between the Complainant's treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic. McMurdo JA wrote:
Section 10 of the ADA requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be ''in circumstances that are the same or not materially different'' from those that constituted the context for the treatment of the impaired person. In that respect s 10 of the ADA is no different from s 5(1) of the DDA. But beyond that likeness, there are differences between the two statutes. The DDA contained no equivalent of s 8 of the ADA, the effect of which, in combination with s 10 of the ADA, is to proscribe discrimination on the basis of a ''characteristic''. In the present case it proscribed discrimination on the basis of the applicant’s inability to communicate by speech. That proscription would be ineffective if the characteristic of a disability was also to be treated as a ''circumstance'' in the comparison for the purposes of s 10. It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic. The Appeal Tribunal, whilst adverting to s 8, overlooked its effect upon the operation of s 10.
Further, the Appeal Tribunal incorrectly likened this characteristic of the applicant's impairment with the occurrences of violent behaviour that constituted the relevant circumstances in Purvis. They were occurrences which formed part of the factual context in which the student was treated. He was treated, by suspension and expulsion, in response to those occurrences. The required comparison was between the treatment of this student and the hypothetical treatment of another student. That hypothesis required the consideration of what would have been the treatment of another in response to occurrences of the same kind. The complication in Purvis, caused by the student's behaviour also being an incident of his disability, did not exist in the present case. In the present case the relevant ''treatment'' was the response of police to a complaint of criminal conduct.
…

The Appeal Tribunal misunderstood the relevance of the reasoning in Purvis and thereby erred in law in identifying the relevant comparator. The applicant's case required a comparison between her treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic. This error affected the Appeal Tribunal’s conclusions on relevant factual issues….

…

[88] In my view the appropriate comparator is another employer of yourtown, working in the position of a Production Administrator, who does not have anxiety or any characteristics of it. The circumstances that are "the same or not materially different", are that the person has taken extended periods of personal leave and wishes to return to work.[29]

[29] Ibid [84], [88] (emphasis added) (citations omitted).

In relation to the claim of discrimination on the basis of race, the Complainant submits that a real comparator may be used and identified his predecessor Mr Tom as the appropriate comparator.[30] The difficulty with using Mr Tom as a comparator is that he was significantly more experienced in the role than the Complainant and had worked with the Second Respondent for a much longer period of time. A comparison between a contractor with over twenty years' experience, in the case of Mr Tom, with a contractor of less than three years' experience in the case of the Complainant, would not be appropriate as the circumstances are materially different.
[30] Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [6].
For the complaint of less favourable treatment on the basis of race, the hypothetical comparator is a contractor to the First Respondent in the pre-delivery yard who is of non-Greek heritage and who has had similar work experience to the Complainant.

Regarding the complaint of less favourable treatment on the basis of sex, the Complainant submits that Ms Scott or Ms Fleming could be used as comparators however this is unsuitable. Ms Scott was a direct employee of the First Respondent rather than a contractor and so was in a situation that was materially different to that of the Complainant. While Ms Fleming was a contractor, there is no evidence before the Commission of the type of contracting work undertaken, her skill level or length of experience. In these circumstances, a hypothetical comparator is appropriate. The appropriate hypothetical comparator for the claim of discrimination on the basis of sex is a woman working as a contractor for the First Respondent in the pre-delivery yard.

Evidence

The evidence before the Commission included substantial documentary evidence and the oral testimony of a number of witnesses. I have considered all of the evidence, however have examined the evidence of the Complainant and the Second Respondent most carefully on the basis that those parties were central to the majority of allegations.
In assessing the credit of the Complainant and the Second Respondent, I have considered Rush v Nationwide News Pty Ltd (No 7)[31], where Wigney J made the following observations regarding credibility and the reliability of witness evidence:
[309] Aside from demeanour, there are other factors or considerations which may assist a judge in determining the credibility of a witness and the reliability of his or her evidence. Those considerations include: whether the witness has previously given an account of the events in question and, if so, whether that previous account is consistent or inconsistent with the evidence given by the witness; the plausibility and apparent logic of the events described by the witness; and the consistency of the account of the events described as compared with other objectively established events. (emphasis added)
[31] [2019] FCA 496.

Dimitri Michalakellis (the Complainant)

The Complainant gave oral evidence at the hearing. As I observed the Complainant give evidence, it was clear that he felt strongly that he had been treated poorly by the Respondents. Whilst I did not consider the Complainant to be dishonest in his evidence, it became apparent throughout his testimony that he was at pains to paint a picture of the Second Respondent's actions as being discriminatory even when the facts did not support this conclusion. This led on occasion to the Complainant embellishing or overstating incidents involving the Second Respondent.

The Complainant's combative demeanour in cross-examination and refusal to countenance innocent motives for any conduct reflected an entrenched view that all incidents involving the Second Respondent were motivated by malice or spite. It appeared that the Complainant had never considered that some actions in the workplace that may have inconvenienced or annoyed him were just a consequence of a busy workplace and not because of a deliberate intention to treat him in any particular way.

I note the contents of Schedule B to the Respondents' submissions which outline the extent to which the Complainant had embellished his complaints over time or changed his version of events depending on the purpose of the legal proceedings. Some of these changes were minor and of limited consequence, however others were significant. For example, the allegation of discrimination on the basis of sex was not raised until the Complainant filed his Statement of Facts and Contentions on 16 June 2021 and the allegations of sexual harassment, and direct discrimination and victimisation by the First Respondent were not raised until the Complainant filed closing submissions. Whilst some of these changes are minor, consideration of the totality of the changes over time demonstrates a claim that has not been pleaded in a consistent manner and has evolved over time.

I note that the original allegations made on 9 March 2018 and then 3 April 2018, can be distinguished from how the complaints were framed before the Fair Work Commission, which is different to how the complaints were framed before the ADCQ and then this Commission. I accept the Respondents' submission that the matter has evolved from a complaint that may have amounted to an allegation of unreasonable behaviour, to one which became a discrimination claim only after the Complainant failed to obtain successful outcomes in the other jurisdictions.

The Complainant was entitled to pursue actions in any available forum and no adverse finding is made about that conduct. The difficulty for the Complainant, however, is that his claims have not remained consistent throughout. The original discrimination claim filed in the ADCQ did not include allegations of homophobic slurs, allegations of sex discrimination and much less detailed complaints about the Respondents’ alleged conduct. Following the hearing, the Complainant has included additional claims relating to sexual harassment, direct discrimination and victimisation.

The Complainant submits that his evidence should be preferred to that of the Respondents because he has been consistent with his complaint from the moment it was made in March 2018. The evidence simply does not support this assertion. The Complainant has consistently claimed the Second Respondent behaved unreasonably, however the claims relating to conduct that could be considered contraventions of the AD Act have emerged over time. The Complainant's failure to provide reasonable explanations regarding the changes to his claims over time reflected poorly on his credibility.

The Complainant's credibility was also damaged by his persistent refusal to make reasonable concessions. Examples include his refusal to accept that as a luxury car dealership, the First Respondent had a very high standard of work on the jobs done at pre-delivery;[32] denying that swearing was a regular part of the workshop environment before claiming the following day he had said swear words were used in general language but just not aggressively;[33] maintaining that it was not his responsibility to clean the compound from the boot of the car on 7 March 2018[34] despite telling Mr McGee on 9 March 2018 that he had forgotten to do the inside of the boot when re-cleaning the car.[35] The Complainant did not make reasonable concessions over minor details. For example, the Complainant refused to concede that 3 July 2017 was not 'late 2017'[36] and claimed that 'more than one occasion is a lot of occasions'[37] with reference to a paperwork mistake that only occurred on two occasions.
[32] T 2-37, l 44; T 2-58, l 4.
[33] T 2-19, l 23.
[34] T 2-25, l 40.
[35] T 2-26, l 10.
[36] T 2-10, l 1.
[37] T 2-30, l 43.

The Respondent submits that the Complainant's complaint was motivated by a desire to obtain security from Brisbane BMW and/or a payout through litigation. The evidence supports an inference that the Complainant was worried about the potential impact of his relationship with the Second Respondent on his business, as demonstrated by his references to the 'power' the Second Respondent had over his livelihood during his phone call with Mr McGee[38]. The Complainant also requested a two-year contract from Mr McGee,[39] confirming that he had sought legal advice which indicated that he had a case, stating, 'But I don’t want to threaten you with any sort of legal action if the correct things are done moving forward.' It seems that the Complainant had become distressed at what he perceived to be a difficult relationship with the Second Respondent and attempted to obtain greater job security by securing a two-year contract. There was nothing inherently unreasonable in the Complainant's conduct in making the request. It does, however, lend weight to the proposition that the Complainant was primarily concerned with his job security in an environment in which the Second Respondent had raised performance concerns and their relationship had deteriorated.
[38] Exhibit 7 [37], [163], [175].
[39] Exhibit 7 [99].

The Complainant contends the Second Respondent's testimony was different from how he responded to the Third Respondent and Mr McGee during the investigation of his complaint, from how he instructed his lawyer in the FWC proceedings, from how he instructed his lawyers in relation to letters that they sent to the Complainant, and from the responses that his lawyers filed on his behalf in these proceedings. I find that the examples outlined by the Complainant in closing submissions do not fairly reflect the Second Respondent's testimony and consequently, I am not persuaded that the Second Respondent's testimony was materially different to the instructions given to his legal representatives.

On the basis that the Complainant's claim appears to have evolved over time, his failure to acknowledge or explain this evolution and his reluctance to make reasonable concessions generally, I consider the Complainant's evidence to be somewhat unreliable.

Grant Reesby (Second Respondent)

The Second Respondent presented as a witness who gave straightforward evidence, albeit in limited scope. The Second Respondent's demeanor could reasonably be described as gruff or brusque, however I found him to give direct and straightforward evidence. I found the Second Respondent to be an honest witness who made reasonable concessions throughout his evidence. For example, the Second Respondent conceded that he made the comment that the Complainants shoes 'look gay', that he called the music the Complainant listened to 'girly', and that he said, 'you'd better have your work boots on tomorrow' and 'no, fuck off. Don't bother coming back'.

The Complainant contends that the Second Respondent gave inconsistent evidence. One example included the Second Respondent's testimony that he was told by Mr Aaron Jackson from the dealership that he was not engaging the Complainant any longer due to the poor quality of his work. The Complainant points to evidence in the form of an invoice dated 27 February 2018 as evidence that he had in fact performed work for the dealership after this date. There is no evidence that the Second Respondent would have been aware of every time that the Complainant was engaged by the dealership, and his testimony of the conversation with Mr Jackson was not evidence that the dealership ceased using the Complainant from that date. It was simply his recollection of a conversation with Mr Jackson. Evidence of occasional work from the dealership did not render the Second Respondent's evidence untrue.

I do not accept the Complainant's submission that the Second Respondent 'lied' on the Form 18 filed by the Respondents in the Fair Work Commission in which he denied telling the Complainant that he had instructed staff to only speak to the Complainant about work matters. The Second Respondent’s evidence was that he had not ordered, or 'instructed', the staff but had told them that the Complainant did not like banter and after that, it was up to them what they did.

The Complainant submits the testimony regarding his grandfather reflects dishonesty on the part of the Second Respondent. The Second Respondent gave evidence of his recollection that the Complainant wanted to visit Greece because his grandfather had died. The Complainant states that he did not say that his grandfather had died, but that he wanted to visit him in Greece. It was clear from hearing the Second Respondent's evidence that he thought the Complainant had made the statement regarding his grandfather's death as the reason for his trip to Greece. In circumstances where there was no benefit to the Second Respondent for stating that the Complainant's grandfather had died, it is most likely that the Second Respondent simply misunderstood the Complainant's comment. Consequently, I am not persuaded that an adverse inference can be drawn regarding the Second Respondent's honesty on this basis. This does, however, reflect the Complainant's tendency to attribute a malicious motive to every action taken by the Respondents.

Allegations

The Respondent summarised the following incidents which the Complainant alleges amount to discriminatory conduct by the Second Respondent. Although the Complainant has alleged that particular conduct occurred because of a presumption that he was homosexual, I have found that the Second Respondent did not hold this presumption. Accordingly, claims relating to this attirbuted will not be considered.
Allegation One – The Second Respondent called the Complainant 'fairy features', 'poof', 'homo', 'faggot', 'paint poof' and 'poofter'.[40]
[40] Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [33].

The Complainant alleges that from January 2016 to April 2018, the Second Respondent 'regularly and repeatedly' referred to him by these names. The Complainant did not provide evidence of any particular circumstances in which the Second Respondent used these names.

In his oral evidence, the Second Respondent denied calling the Complainant 'fairy features', 'poof', 'homo', 'faggot', 'paint poof' and 'poofter'.

In the anonymous emails sent from the Complainant's wife, Lucy Michalakellis, no mention was made of the Second Respondent calling the Complainant by these terms.

The reference to 'paint poof' was included in the Complainant's Amended Statement of Facts and Contentions, however the reference to 'poofter' was not included in this document. If the term 'poofter' had been used by the Second Respondent, one would expect that it would have been included in this document.

On 9 March 2018, the Complainant discussed his complaint about the Second Respondent during a phone call with Mr McGee.[41] As outlined above, I attribute considerable weight to this phone conversation on the basis that the phone call had been pre-arranged as an opportunity for the Complainant to discuss his complaint. I also note that the Complainant had recorded the conversation, indicating it was considered by him at least to be a serious discussion. Despite the conversation taking place over the period of an hour (approximately), the Complainant did not mention to Mr McGee that the Second Respondent had called him 'fairy features', 'poof', 'homo', 'faggot', 'paint poof' and 'poofter'.[42]
[41] T 1-25, l 23.
[42] Exhibit 8.

The first time the Complainant alleged that the Second Respondent called him some of these names was in the Complainant's FWC Applications[43]. In this document, the Complainant alleges that the Second Respondent regularly referred to the Complainant as 'poofter' and 'faggot' to other staff and contractors working at the pre-delivery yard. The Complainant does not state that he witnessed this conduct himself.
[43] Exhibit 11: Material filed in the Fair Work Commission. Form F72 – Application for an order to stop bullying dated 11 May 2018, 6.

The first assertion by the Complainant that the Second Respondent called him 'poof' and 'paint poof' occurred on 7 December 2018 in the outline of evidence to be provided by Mr Cameron Helbig.[44] Mr Helbig gave evidence at the hearing that the Second Respondent regularly referred to the Complainant as 'the paint poof'.[45] I approach the evidence of Mr Helbig with some caution on the basis that he had been the subject of a reprimand by the Second Respondent whilst working at Brisbane BMW and had received a number of warnings before being dismissed. Mr Helbig's evidence was brief and did not provide particulars as to the circumstances in which he heard the Second Respondent refer to the Complainant as 'the paint poof'. Neither Mr Helbig nor the Complainant stated that they witnessed the Second Respondent directly calling the Complainant 'paint poof' and no evidence was given about the way in which the Complainant became aware that the term was used.
[44] Exhibit 19: Complainant's Outline of Evidence, 1.
[45] T 2-68, l 4.

The first time the allegation that Second Respondent called the Complainant 'homo' and 'fairy features' was raised was in the Complainant's further and better particulars document dated 10 March 2019. If these slurs had in fact been used by Second Respondent, one would anticipate that the Complainant would have included them in his documents at an earlier stage. The inclusion of these additional names suggests embellishment of the claim. I am not persuaded that these terms were included only because of the Respondents' request for further and better particulars.

In his oral evidence, the Second Respondent denied ever calling the Complainant 'paint poof' and gave evidence that this was in fact the nickname given to the Complainant's predecessor, Mr Paul Tom.
The Second Respondent gave evidence that he had known Mr Tom for approximately 20 years.[46] It is plausible that when Mr Helbig heard the Second Respondent referring to someone as 'paint poof' he was referring to Mr Tom.[47]
[46] T 3-8, l 22.
[47] Jones v Dunkel (1959) 101 CLR 298 ('Jones v Dunkel').
In circumstances where the Complainant did not give evidence that he heard the Second Respondent use the alleged terms and where the Second Respondent denies ever calling the Complainant these terms, I am not persuaded that this allegation is made out. As noted at [89], I have broadly accepted the Second Respondent's evidence as truthful and note that he has conceded using other language against his interest but not these terms. In those circumstances, the allegation that the Second Respondent called the Complainant 'fairy features', 'poof', 'homo', 'faggot', 'paint poof' and 'poofter' has not been substantiated on the balance of probabilities.

Allegation Two – The Second Respondent whistled at the Complainant to get his attention.[48]

[48] Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [11].

The Complainant alleges that the Second Respondent would whistle at him to get his attention, rather than speak to the Complainant. The Complainant says that Second Respondent did this because the Second Respondent perceived the Complainant to be homosexual.

The Complainant stated the following to Mr McGee during his phone call on 9 March 2018:[49]
[49] Exhibit 7 [145].

Complainant: And then, uhh, I’d get to work, and he'd whistle at me like I’m a dog, you know? Like, I'll be sitting down painting a wheel and I’ll just hear this whistling, so I turned around to look around because, you know, it's odd to hear a whistle out the back of the factory – back of the warehouse. And there he is, whistling and waving at me, like I’m a dog. Like, oh, you know?

Mr McGee: Yeah.

Complainant: I don’t want to be treated like that, you know?

The Complainant did not state to Mr McGee that he thought the Second Respondent whistled at him because the Second Respondent thought he was homosexual.
In the Second Respondent's evidence, he denied whistling at the Complainant and stated, 'I don’t whistle at anybody because I don’t like it being done to me, so I do not do it back to other people'.[50]
[50] T 3-58, l 32.
I am not persuaded that the Second Respondent whistled at the Complainant to get his attention. Even if it was the case that the Second Respondent whistled at the Complainant, the evidence before the Commission does not establish that such conduct would not also have occurred with a hypothetical comparator, nor that such conduct would have occurred 'because' of the Complainant’s protected attributes.

Allegation Three – The Second Respondent made a comment to the Complainant to the effect of 'he could marry his own kind once Australia legalised same sex marriage'.

The Complainant alleges in his closing submissions that the Second Respondent made the same sex marriage comment because the Second Respondent presumed the Complainant to be homosexual.

I note this allegation was not raised by the Complainant during his telephone discussion with Mr McGee,[51] his FWC Applications,[52] ADCQ Complaint, his original Statement of Facts and Contentions, his Further and Better Particulars, or his Amended Statement of Facts and Contentions.
[51] Exhibit 7.
[52] Exhibit 11.

This allegation was put to the Second Respondent in cross-examination at the hearing. The Second Respondent denied the allegation.[53]
[53] T 3-35, l 35.

On the balance of probabilities, I am not persuaded that the Second Respondent made this comment. Even if it was accepted that this comment was made, in circumstances where the Second Respondent did not presume the Complainant to be homosexual, it could not satisfy the legislative criteria that the conduct occur 'because' of the Complainant's protected attributes.

Allegation Four – The Second Respondent repeatedly referred to the Complainant as 'wog' and 'lazy Greek to other staff and contractors of the first Respondent.[54]

[54] Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [12].

The Complainant alleges that the Second Respondent repeatedly made derogatory remarks about the Complainant to other staff and contractors based on the Complainant's Greek ethnicity, including referring to the Complainant as a 'wog' and 'lazy Greek'.

The Complainant did not raise this allegation during the 9 March 2018 phone call with Mr McGee. The Complainant first made the allegation of being referred to as a 'lazy Greek' in his FWC Applications but did not allege that he had been referred to as a 'wog' until Further and Better Particulars was filed on 10 March 2019.

The Complainant did not give any evidence as to the basis upon which he believed the Second Respondent referred to him by derogatory racial names to other staff and contractors. No witnesses were called to give evidence to support this allegation.

The Second Respondent denied[55] calling the Complainant a 'wog', 'lazy Greek', 'lazy wog' or making comments that the Complainant was being a 'typical Greek who was 'lazy'.[56]
[55] T 3-35, l 31.
[56] T 3-16, l 5.

The Second Respondent gave evidence that the Complainant 'preferred to do just wheels because he could get in and make quick money on them and […] get out'[57] and that he 'tried to get out of painting bumpers, because [he] didn’t like doing it'.[58]
[57] T 3-13, l 10.
[58] T 4-24, l 4.

Whilst it may be the case that the Second Respondent thought the Complainant was lazy, I am not persuaded that the terms 'wog' or 'lazy Greek' were used.

The Complainant's allegation was that the Second Respondent referred to the Complainant as 'wog' and 'lazy Greek' to people other than the Complainant. There is insufficient evidence that this occurred, particularly in circumstances where the person who allegedly heard the references was not called to give evidence. In these circumstances, the allegation cannot be substantiated.

Allegation Five – The Second Respondent ceased eating lunch outside with the Complainant and would not say 'good morning' or 'goodbye' to the Complainant upon beginning and finalising work; 'avoided conversations' with the Complainant, often 'ignored' the Complainant's questions and would not reply to the Complainant's text messages regarding the availability of work.[59]
[59] Complainant's Statement of Facts and Contentions filed 8 October 2018, [13].

The Complainant alleges that beginning in approximately February 2016, the Second Respondent ceased eating lunch outside with him as he had when the Complainant was contracting with Mr Tom's company and started eating lunch inside the break room instead. The Complainant alleges that the Second Respondent would not say 'good morning' or 'goodbye' to the Complainant upon beginning and finishing work as he did with other employees and contractors.

The Complainant contends that this conduct, including avoiding conversations with the Complainant and ignoring his questions, did not occur with employees that the Second Respondent did not perceive as being homosexual and who were not of a Greek ethnicity. The Complainant points to evidence from text messages where the Second Respondent would not reply to the Complainant’s questions regarding the availability of work.[60]

[60] Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [13].

The Second Respondent gave the following evidence regarding this matter:[61]

After Paul Tom left I would sometimes go out there, yes, but sometimes I would just keep working and it wasn’t really nice to sit there eating your lunch while spray-paint is getting sprayed around and thinners are being sprayed so – yeah, in the end I didn’t bother. I just went and sat in the lunchroom.

[61] T 3-14, ll 22-26.

The Second Respondent gave evidence that he had known Mr Tom for 20 years,[62] over which time they had developed a friendship.[63] The Second Respondent's decision to eat his lunch with Mr Tom was based upon a long-standing friendship. The Second Respondent did not have this relationship with the Complainant as he had only known him for approximately four months as of February 2016.
[62] T 3-15, ll 43-44.
[63] T 3-70, ll 38-39.

The appropriate hypothetical comparator is a contractor who was not Greek or who was female and who the Second Respondent had known for approximately four months. Even if the Second Respondent's evidence that the Complainant would often continue spray-painting when the Second Respondent went outside to eat lunch is put aside, no reasonable inference can be made on the evidence that the Second Respondent would have treated a hypothetical comparator differently. The most plausible explanation for the Second Respondent not continuing to eat lunch with the Complainant is that he simply chose to sit away from the spray paint given that he did not have the same relationship with the Complainant as he had with his predecessor Mr Tom. I do not accept that the Second Respondent's conduct in having lunch separately would have been different in circumstances involving a hypothetical comparator who was not Greek or who was female.

The Second Respondent gave evidence that his carpark was about 2 metres from his office[64] and that he did not ordinarily walk around the pre-delivery yard saying 'good morning' or 'goodbye' to anyone upon arriving and leaving work.[65] The Second Respondent gave evidence that the Complainant had usually left work for the day before the Second Respondent finished.[66]
[64] T 3-14, ll 31-34.
[65] T 3-14, ll 28-32.
[66] T 3-68, ll 13-14.

The appropriate hypothetical comparator is a female contractor working in the pre-delivery yard who was not Greek and who usually left work before Second Respondent. I accept the Second Respondent's evidence that he did not usually say 'good morning' or 'goodbye' to anyone, including the Complainant, and that he simply went from his carpark to his office. Given that the Second Respondent did not go out of his way to make these greetings with others, it can reasonably be inferred that the Complainant was not treated differently to how a hypothetical comparator would have been treated.
This complaint includes allegations that the Second Respondent avoided conversations with the Complainant and would not answer his questions. The Complainant refers to text messages where it is alleged that the Second Respondent did not reply to the Complainant's questions regarding the availability of work.[67] The text messages between the Complainant and the Second Respondent indicates that in the period between 27 January 2016 and 6 April 2018, the Second Respondent did not reply promptly to the Complainant's text messages regarding available work on three occasions.[68] The Second Respondent replied the following morning on one occasion[69] and on another occasion the Second Respondent gave evidence that after receiving the message while driving to work, he spoke to the Complainant upon arriving at work.[70]
[67] Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [13].
[68] Exhibit 3: Text messages between the Complainant and Mr Reesby, 27 January 2016 to 6 April 2018, pp 8, 10, 19.
[69] 19 February 2018.
[70] T 3-72, l 33; Exhibit 3.

The documentary evidence simply does not support the claim that Second Respondent often ignored the Complainant’s questions or messages. The documentary evidence indicates that there were only three text messages that were not answered promptly, and this occurred in 2016. The evidence indicates that Second Respondent replied promptly to the vast majority of the Complainant's text messages.[71] The content of the text messages indicate that the Complainant was informed regularly about the availability of upcoming work.
[71] Exhibit 3.

The Complainant alleges that the Second Respondent avoided conversations with him in the workplace. The Second Respondent gave evidence that his role was demanding and described working in a 'pressure cooker environment'.[72] The Second Respondent's evidence was that he did not have casual chats with the Complainant during the day because he did not have the time,[73] and said that at times, he would 'go around the other door of the workshop' to avoid having conversations with Mr Tom, because 'Mr Tom liked to chat'.
[72] T 3-6, l 28.
[73] T 3-68, l 16.

On the evidence, there is clearly an innocent explanation for the Second Respondent not regularly having casual conversations with the Complainant at work. The evidence shows that the Second Respondent failed to respond promptly to text messages on three occasions over the course of two years. No reasonable inference can be made that the Second Respondent would not have behaved in exactly the same way in circumstances involving a hypothetical comparator who was female or not Greek.
Allegation Six – The Second Respondent repeatedly called the Complainant 'gay' for the music that he listened to while working.[74]
[74] Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [13].

The Complainant alleges that the Second Respondent repeatedly called the Complainant 'gay' for the music that he listened to while working. The Second Respondent's evidence[75] was that he referred to the Complainant’s music as 'girly'.
[75] T 3-33, ll 18-19.

The Complainant refers to the Second Respondent's evidence that he referred to the Complainant's music as 'girly', noting that the Second Respondent gave evidence that he did not think it was appropriate to mock a woman for the music she listens to:[76]

Complainant: Do you think it's appropriate workplace conduct to mock a woman for the music that she listens to?
Second Respondent: No

[76] T 3-38, ll 30-31.

The Complainant submits that the Second Respondent's evidence confirms that he treated the Complainant less favourably than he would have treated a female. The difficulty for the Complainant is that there is no evidence that the Second Respondent considered his comment about the Complainant's music to be mocking. Rather, the Second Respondent's evidence was that the females at pre-delivery engaged in 'banter' and that they were treated the same as the men.[77]
[77] T 3-7, l 42; T 3-39, ll 12-14; T 3-8, ll 12-13.

I accept the Respondents' submission that 'mocking' someone is an entirely different concept from engaging in 'banter' with someone, with the former considered mean-spirited whilst the latter is good-humoured.

The Second Respondent gave evidence that the Complainant had engaged in banter with him, describing him as a 'sheep shagger'[78] because the Second Respondent was thought to be from New Zealand. Although the Complainant accepted that he did engage in banter, he denied using this term.[79] Ms Michalakellis confirmed in evidence that this issue had been raised at the meeting as an example of something the Complainant has previously said to the Second Respondent.[80] It is unlikely that this matter would have been raised in that meeting had it not occurred. I accept that the Complainant used the term 'sheep shagger' in a manner that was part of the usual banter in the workplace.
[78] T 3-26, ll 25-26.
[79] T 1-51, l 15.
[80] T 2-61, l 14.

The Second Respondent gave evidence that he previously had referred to Mr Tom's talkback radio station as 'morbid'.[81] I am satisfied that the environment in which the Second Respondent worked included 'banter' between the workers and this banter included opinion on taste in music or radio station preference.
[81] T 3-15, ll 24-25.
I accept that the Second Respondent referred to the Complainant's music as 'girly' however am not persuaded that the same or similar comment would not have been made to a hypothetical comparator who was a female contractor or a non-Greek contractor in these circumstances.
Allegation Seven – For a couple of weeks after 3 July 2017, the Second Respondent repeatedly called the Complainant 'gay' because of the shoes he was wearing.[82]
[82] Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [24].

The Complainant alleges that on 3 July 2017 and for a couple of weeks after, the Second Respondent repeatedly called the Complainant 'gay' because of the shoes he was wearing. The Complainant contends that this was less favourable treatment because the Second Respondent presumed the Complainant was homosexual or in the alternative because the Complainant was male.

The Second Respondent rejected the assertion that he called the Complainant 'gay' however conceded that on one occasion he said that the Complainant's shoes looked 'gay'.[83] The evidence of Cameron Helbig supported the Second Respondent's evidence that he referred to the shoes as gay. Mr Helbig stated in evidence:
And on another instance you wore a pair of brightly coloured trainers or sneakers to work and he referred to them as 'gay'.[84]
[83] T 3-15, l 31.
[84] T 2-68, l 6.

The Second Respondent gave evidence that he recalled saying to the Complainant, 'Geez, they look gay' followed by, 'Geez, you could hang around, we could turn the lights out and we could save on electricity with the brightness of those shoes'.[85]
[85] T 2-70, l 45.

As noted above at [69], the Second Respondent did not believe the Complainant to be homosexual.

The Second Respondent's evidence was that people at pre-delivery would often joke around and 'banter'[86] with another person, Mr Michael Studley, whom they called 'Fatty' even though he was not fat[87] and Mr Tom called 'paint poof' even though he was not homosexual. The Second Respondent's evidence was that this banter included the female and homosexual members of the workplace and that the Second Respondent would make jokes with Ms Scott and Ms Fleming who would 'joke back'.[88]
[86] T 2-71, l 16.
[87] T 2-74, l 36.
[88] T 3-8, l 1.

The appropriate hypothetical comparator is a woman who wore brightly coloured shoes. Given the evidence of the Second Respondent that he also 'bantered' with the females in pre-delivery, I am not persuaded that the Second Respondent would have treated a hypothetical comparator differently. The simple fact that the Second Respondent had not previously commented on a woman's shoes does not mean that his comment to the Complainant was because of his attribute of being male.

The Second Respondent's honest concession that he used this term reflects well upon his credibility. Notwithstanding this concession, the use of this term in this context is objectionable. I am not convinced by the Respondents' submission that because the dictionary definition of the term 'gay' also means 'brightly coloured' or 'brilliant', it was not intended to be a reference to homosexuality. Whilst the Second Respondent's pejorative use of the term may breach workplace policies or industrial instruments, it does not follow that it is direct discrimination in circumstances where the Second Respondent did not presume that the Complainant was homosexual.

The Complainant did not provide particulars about the circumstances in which the Second Respondent 'repeatedly' called the Complainant 'gay' because of the shoes he was wearing. Accordingly, I accept the Second Respondent's evidence that he called the Complainant's shoes 'gay' on a single occasion. I am not persuaded that the Second Respondent would not have commented to a female hypothetical comparator wearing similar shoes that her shoes were 'gay'. Even if it could be determined that the Second Respondent treated the Complainant less favourably to a hypothetical comparator, it could not be determined that such treatment was because of the Complainant's presumed sexuality as the Second Respondent did not believe the Complainant was homosexual.

Allegation Eight – From on or about 10 March 2016, the Second Respondent would not allow the Complainant to charge for 'touch-ups' and the Second Respondent forced the Complainant to reduce the price he charged for 'euro holes'.[89]

[89] Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [16].

The Complainant alleges that the Second Respondent told the Complainant that he was no longer permitted to charge for repair of 'euro holes' and 'touch ups'. The Complainant gave evidence that from 16 March 2016 the Second Respondent did not allow the Complainant to charge the First Respondent for touch-ups and that the Complainant was forced to provide them for free.[90]
[90] T 2-16, l 36.

The Second Respondent's evidence was that he could not recall this conversation.[91]
[91] T 3-78, ll 21-23.

The documentary evidence supports a conclusion that the Second Respondent did not prevent the Complainant from charging for 'touch ups'. On 30 August 2016, the Complainant's company issued an invoice to the First Respondent for a service described as 'touch up rear bar'[92] which was approved by the Second Respondent.[93] On 26 June 2017, the Complainant's company issued an invoice to the First Respondent which included a line item named 'touch ups' which was approved by the Second Respondent.[94]
[92] Exhibit 18: Invoices from Mr Michalakellis (Volume 2, Tab 85 of Respondents' Court Book) 24.
[93] T 3-19, l 39.
[94] T 3-77, l 34.

The Second Respondent's evidence was that that the Complainant was allowed to charge for touch-ups 'on occasions'. The Second Respondent stated that 'Quite often touch ups would come out when the detailers buffed the car and it would spit the touch up out so yeah, we just stopped doing them'.[95] The Second Respondent also stated that following pressure from the Sales Manager to cut costs, the Second Respondent identified touch-ups as an area that he could save costs by purchasing a 'touch-up stick for $50 from BMW' instead of having to pay a sub-contractor to perform the work.[96]
[95] T 3-19, ll 18-20.
[96] Ibid.

There may well have been a conversation about minimising the use of touch-ups in the context of cutting costs, however the evidence suggests that the Second Respondent was still authorising touch-ups on occasions when the Complainant included them in an invoice.

There was also evidence of occasions where the Complainant did not charge for touch-ups and included the service as part of a larger invoice.[97]
[97] T 3-78, l 32.

To the extent that the Complainant felt that there was pressure to reduce charging for touch-ups, the logical reason for such pressure was to minimise costs. No reasonable inference can be made that the Second Respondent would have treated a hypothetical comparator of a female contractor or a contractor who was not Greek differently in these circumstances.

Even if it is accepted that the Second Respondent treated the Complainant less favourably than Mr Tom on the basis that Mr Tom was paid for touch-up jobs, there is no evidence that this difference is because of the Complainant’s attributes of being of Greek origin.

The Complainant claims that he was told by the Second Respondent that he was no longer able to charge for 'euro holes'. Second Respondent's evidence for this was:
We stopped repairing euro holes as we had the manager come through and he deemed that, 'Most people put euro plates [sic] back on their cars, so don’t fill in the holes'.[98]
[98] T 3-56, ll 15-18.

The evidence supports a conclusion that the Complainant was asked to stop performing the service, not that he was to perform the service and not be paid accordingly.

The Complainant submits that invoices documenting his performance of the service demonstrates that he was able to continue after the Second Respondent's direction to cease, however the date upon which the Second Respondent gave the direction is not clear on the evidence.

In circumstances where an operational decision was made by a manager to cease repairing euro holes, it cannot be the case that the Second Respondent's relaying of that decision can be considered as treating the Complainant less favourably than the hypothetical comparator who is not female or Greek. This is not discriminatory conduct.

Allegation Nine – The Second Respondent informed the Complainant that he was not entitled to take a day off work on 15 April 2016 to go on a family holiday which the Complainant perceived was a threat to his 'status as a contractor'.[99]

[99] Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [17].

The Complainant alleges that on 14 April 2016, the Second Respondent told him that he was not entitled to take a day off work on 15 April 2016 after he informed the Second Respondent that he had booked a family holiday for a weekend on the Gold Coast. The Complainant perceived this to be a threat to his status as a contractor.[100]
[100] T 1-20, ll 44-46.

The Second Respondent's evidence was that he could not recall telling the Complainant that he was expected to work on 15 April 2016. The Second Respondent's testimony was that 'if there was no work there, I wouldn’t expect you to sit around home while your family was off having a holiday' and that the Complainant was 'entitled to a day off. You own your own business'.[101]
[101] T 4-18, ll 20-21.

The Second Respondent previously noted that he did not control the timing of when work came in for the Complainant to complete.[102] The Second Respondent's evidence was that he did not control when the work needed to be done and would simply send a message to the Complainant when his services were required. The Respondents submit that during periods where the Complainant was unavailable, as was the case when the Complainant took holidays,[103] he would engage someone else to complete the work.
The text message evidence indicated that unless a job was urgent, the Second Respondent was indifferent as to whether the Complainant came in the following day or not.[104]
[102] T 3-21, l 5.
[103] T 3-18, ll 46-47.
[104] T 3-21, l 4.

The Second Respondent's evidence that he was generally accommodating of the Complainant's schedule is supported by the history of text messages between the Complainant and the Second Respondent:
14 June 2016
Second Respondent at 9.55am:     I have one here. I can wait till tomorrow if you want.
Complainant at 9.56am:               Ok, thank you. If anything urgent comes up let me know and I’ll head in.
15 June 2017
Second Respondent at 11.18am:     Come
Complainant at 11.20am:             Hey mate, just working on a bar at zupps. Need me now    or is tomorrow alright?
Second Respondent at 11.32am:     Tomorrow
10 August 2017
Second Respondent at 9.58am:     Hey, the a180 is here now
Complainant at 10.01am:             thanks mate, I've got a few things to do at Ford, I’ll be back in the morning for you
Second Respondent at 10.01am:     Ok
17 August 2017
Second Respondent at 10.19am:     Hey, I have cars to do
Complainant at 10.23am:             Hey mate, just pulled up to another job. I'll be there tomorrow for you. Cheers
Second Respondent at 10.24am:     Ok

The Complainant may have felt pressure to remain available for work on 15 April 2016, however I am not persuaded that this was due to any specific direction from the Second Respondent. The Complainant's angst was not dissimilar to that of many sole operators who feel pressure to be available at all times in order to maintain their client base. The Second Respondent made it clear in evidence that he believed the Complainant was entitled to take time off as he owned his own business. The Second Respondent did not contact the Complainant on 15 April 2016 as there was no work for him to do.

I am not persuaded that the Second Respondent told the Complainant that he was not entitled to take the day off work to go on holidays with this family. Even if this allegation was substantiated, no reasonable inference can be made from the surrounding circumstances that a hypothetical comparator of a female contractor or a non-Greek contractor would not have been treated in the same way.

Documentary evidence

In considering this complaint, I have given significant weight to the evidence of the phone conversation between the Complainant and Mr McGee on 9 March 2018.[262] Mr McGee was not aware that the phone conversation was being recorded by the Complainant.
[262] Exhibit 7.
The fact that the phone call had been pre-arranged and the Complainant knew the conversation was being recorded gives further weight to the presumption that he intended this conversation to be a reliable account of his complaint. This evidence in my view best reflects the truth of the complaint.

The Complainant submits that he only revealed some of his complaints during the phone call because he was driving, distracted, and that Mr McGee cut him off as he was outlining some of the Second Respondent's actions.[263] I accept that the Complainant may have been distracted whilst driving, however I am not persuaded that he was not permitted to raise all of his concerns to Mr McGee during the lengthy call. The Complainant had made the phone call to Mr McGee on that day as previously arranged and Mr McGee had returned the missed call. The Complainant was not caught off guard, rather he had time when he first made the call to gather his thoughts and consider how he was going to present his complaint to Mr McGee.
[263] T 1-25, ll 25-28.

The Complainant submits that it was entirely reasonable for him to not include every aspect of his complaint during the phone call on the basis that he expected a fulsome investigation would take place. This is plausible to some extent, and one could not quibble with minor facts not making their way into the conversation. I do note, however, there was considerable build-up to this conversation, with a number of emails sent between the Complainant and Mr McGee to arrange a time and date for the phone conversation to take place. The Complainant was aware from Thursday 8 March 2018 that he would likely be having the conversation with Mr McGee after 5:00pm Friday 9 March 2018. Accordingly, one would reasonably expect him to have given some thought to detailing his complaint. Even if the Complainant was distracted during the phone call, such distraction does not explain the entirely different complexion of the complaint. It was not the case that a few claims were not raised, rather the entire premise of the claim that was placed before this Commission was different.

The phone conversation was contemporaneous with the relevant events, making it a reliable account of the incidents raised by the Complainant. In this phone conversation, the Complainant does not mention that he was called names such as 'faggot', 'poof', 'paint poof' or 'fairy', nor that he was called a 'lazy wog'. The Complainant does not mention any reference to his Greek ethnicity. The Complainant mentions that the Second Respondent called him a 'cockroach' but stated that it was a joke.[264] Importantly, the Complainant states that the Second Respondent treated other workers in pre-delivery in a similar way.[265]
[264] Exhibit 7 [71].
[265] Ibid [83], [117].

The Complainant told Mr McGee that the Second Respondent had 'abused' him[266] and when asked what the Second Respondent had said to the Complainant, the Complainant stated the following:

He said, 'Oh, it's because you couldn't be bothered to come in yesterday', umm, 'Now it's raining, you’re making excuses so you don't have to paint this car'. It’s like, well, no, that's not the case. I was there yesterday morning. How didn't you know about this?

[266] Ibid [92]-[95].

The example given above was presumably one of the most compelling examples of the Second Respondent's alleged abuse. I accept the Respondents' submission that, had the Complainant experienced more egregious abuse, he would undoubtedly have raised it during this conversation with Mr McGee.

The clear impression from the phone conversation is that the Complainant is of the view that the Second Respondent behaves unreasonably, not only to him, but to others in the workplace. In the phone call in which the Complainant explained his allegations to Mr McGee, he stated:[267]

…I'm not the only person that has these grievances with [Second Respondent], but I seem to be the only person that’s coming forward…
… So I was a bit nervous about coming forward and, uh, there was a time about a year ago when someone came up to me and asked if we wanted to do a mass walk out. He just said everyone should just walk outa here cos [the Second Respondent]'s just being so unreasonable. So we were about to just stop work for – for – until [the Second Respondent] pulled his head in, but we decided against it obviously.

[267] Ibid [35], [45].

In the phone conversation, the Complainant told Mr McGee what he had heard about previous employees who have complained about the Second Respondent, explaining that a technician had recently left saying 'that’s just the way [the Second Respondent] is, that's how he's always been, and I've just learned to live with it'.

The Complainant gives examples of other workers having to wait outside the Second Respondent's office before keys could be returned and of a time when the Second Respondent 'laid into' a mechanic for not noticing damage to a car. The Complainant explained that after bringing some damage to the Second Respondent's attention he would call them 'idiots' for not noticing the damage.[268]
[268] Ibid [99], [113].
During the phone call the Complainant states that, 'he is not the only person who has these grievances with [the Second Respondent]' and spoke about the Second Respondent 'absolutely blasting' and 'laying into' the mechanics.[269]
[269] Ibid [35], [83], [117].

It is clear that the Complainant held a view that he and others were not being treated appropriately by the Second Respondent. The theme of the Complainant's concerns related to the Second Respondent's general treatment of the Complainant and others, not that he was treated less favourably because of his attributes.

The Complainant spent considerable time during the phone call explaining to Mr McGee that he could not expand his business to other dealers as the Second Respondent demands that he return to do work for him. He explained that he can go 'three, four days without getting a phone call from the Second Respondent. And then as soon as something happens, as soon as he gets one where to fix on the car, he’ll call me and demand that I come in straight away'.[270] The Complainant does not suggest in any way that he believed that this occurred because he was male or Greek, or because the Second Respondent believed that he was homosexual.
[270] Ibid [121].

The Complainant then stated to Mr McGee:
So, umm, I have been on a – on the Maurice Blackburn website I sent you the link to. Umm, literally I can tick off like nine out of ten of those things that constitute bullying. I can tick off and say that's what [the Second Respondent] does to me.[271]
[271] Ibid [123].
It is clear that the Complainant views the conduct of the Second Respondent as bullying in nature. The entire description of the Complaint during the phone call is one of being bullied and treated unreasonably along with his co-workers.

In the phone call to Mr McGee, the Complainant stated the following:[272]
Umm, yeah, but like I said before they were gonna train me to be a Dealer Principal and then I'll walk into [the Second Respondent] sometimes and he'll say how stupid I am and dumb I am. And, you know, it's exactly not the case. I'm, umm, not stupid in any regard. He thinks I'm stupid for some of the stuff I do, but I can be clever in other ways. Maybe, you know, I’m just not his type of clever like, umm. That just annoys me because I’m not dumb… I’m not stupid. But that's what he thinks of me and that's how he treats me.
[272] Ibid [149].
When Mr McGee asked the Complainant during the phone call why he thought the Second Respondent was different with the previous owner, Mr Tom, the Complainant replied:[273]

I don't know. I think age. I'm a very young guy, I’m 27. Half [the Second Respondent's] age at least. Yeah, I just don't think he respects my generation. I am a very hard worker. I'll sit there from 5.30 in the morning until 5.30 at night if the work is there, but he expects me to sit around and do nothing for hours in between while stuff gets sorted on his end. I don't think that's reasonable either.

[273] Ibid [185].

The Complainant's answer reflects his confusion as to the reason the Second Respondent treated him in the way alleged. When pressed the only reason the Complainant could suggest related to his age. No mention was made of his sex, ethnicity or presumed homosexuality.
In my view, the phone conversation is the best evidence of the actual grievance held by the Complainant. I accept the Respondents' submissions that the Complainant's allegations at hearing bear little resemblance to the complaints he made during his recorded phone call with Mr McGee.

Other documentary evidence put before the Commission does not support the Complainant's allegations. I place substantial weight on the documentary evidence on the basis that they are contemporaneous and hence more reliable than the memory of the witnesses. The text messages between the Second Respondent and the Complainant do not support the allegations that the Second Respondent regularly failed to reply to the Complainant by text and threatened his position if he refused to drop work for other car companies and return to Brisbane BMW when ordered.

The Complainant's allegation that he was not permitted to charge for touch-ups from March 2016 is not supported by the documentary evidence in the form of invoices which indicate that the Complainant continued to charge for touch-ups after March 2016.

I have considered all of the Appellant's submissions but note that rather than emphasising the evidence that supports his complaint, the submissions were in many areas not reflective of the evidence given. For example, the submission that the Second Respondent conceded that he forced the Complainant to paint vehicles in the rain was simply incorrect. The Second Respondent's lawyers had admitted in a Notice to Admit Facts that the Second Respondent had forced the Complainant to paint vehicles 'while it was raining' to maintain deadlines for having vehicles prepared for sale or delivery. The Second Respondent's evidence was that he made room inside the workshop for the work to be completed inside, and not 'in the rain' as submitted. The Complainant submits that the Second Respondent gave inconsistent evidence about the number of times he told the Complainant to 'fuck off', rendering his evidence unbelievable. The reality of the Second Respondent's evidence was that he admitted to using this term on two occasions, and that he had used the term aggressively once.

The Complainant has submitted that the intention of the person engaging in discrimination is not relevant. Whilst this is accurate, it is still necessary to establish that the conduct was less favourable because of the attributes.
The Complainant was of the view that the Second Respondent's failure to text him back about work on an occasion was discriminatory, submitting that 'It doesn’t matter his intention. The fact that it did upset me is the problem'. The fact that the Complainant was upset by the failure of the Second Respondent to text him back immediately does not demonstrate that the Second Respondent's conduct was discriminatory. Simply being upset does not establish that the conduct is less favourable treatment. A causal link must be established between the ground of discrimination alleged and the relevant decision or action. The discrimination must have been on the basis of the relevant attribute.

The Complainant submits that the Second Respondent admitted that he treated the Complainant less favourably than the female contractor named Ms Fleming. The transcript of evidence does not support this submission. The Second Respondent confirmed that he would not mock a woman, but neither did he accept that he had mocked the Complainant.

The Complainant submits that the First Respondent touted its 'Sime Darby Discrimination, Harassment and Bullying-Free Workplace Policy' ('the Sime Darby Policy') as having a zero-tolerance approach to discrimination, sexual harassment and bullying, however in practice this did not occur. The Complainant spend a significant amount of time cross-examining witnesses as to their knowledge of this policy and its use in practice.

I note the decision in Smith v Aussie Waste Management Pty Ltd,[274] where an employee was reinstated following a determination that the context in which offensive language was used was relevant in determining if it was serious misconduct. This is not relevant to a claim of discrimination but should be noted in the context of the Complainant's submissions that the work environment was 'tolerant of discriminatory, harassing and bullying behaviour'. An awareness that staff may use offensive language on occasions cannot reasonably be considered evidence that discriminatory behaviour was ignored or condoned.
[274] [2015] FWC 1044.

Even if the Complainant's submission that the Respondents breached their obligations under parts of the Sime Darby Policy is correct, this is not the test in a claim made pursuant to the AD Act. The role of the Commission is not to assess whether the workplace policy has been breached. The test is whether there have been contraventions of the AD Act. The Complainant’s fixation on this policy goes to the inherent difficulty with his case, which is that the Complainant felt that he was treated poorly by the Respondents and attempted to fit those facts into an application seeking redress through some forum. The Complainant's evidence and submissions give the impression of a narrative developed to fit the jurisdiction. The Complainant's submission that the Respondents would view any complaint as indicating that 'he wasn’t one of the guys – that he couldn't hack the workplace culture of making fun of each other'[275] is not supported by evidence. This was simply not the tone of the Complainant's concerns when his concerns were first raised in the phone call with Mr McGee.
[275] Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [20].
The Complainant's comments to Mr McGee indicate that he was in fact one of many 'guys' who together had spoken about their concerns about the Second Respondent's conduct. This led the Complainant to seek relief through a number of applications in other jurisdictions including workers' compensation and the Fair Work Commission. There is nothing improper about the Complainant pursuing a course of action in these jurisdictions, however it lends weight to the contention that this was a disagreement about how the Complainant was treated as a contractor and not a genuine claim about discrimination.

As previously stated, the onus of proof lies with the Complainant to demonstrate that the alleged conduct occurred and that the alleged conduct was less favourable treatment because of his protected attributes. To establish victimisation, the onus also lies with the Complainant to demonstrate that the Respondents engaged in conduct that was to his detriment because he made the complaint.
In determining whether the Complainant has discharged this onus, I note the reference in the decision of Member Roney in Gordon v State of Queensland & Ors[276] to Gurnett v Macquarie Stevedoring Co Pty Ltd ('Gurnett'):[277]
… the plaintiff must prove his case; and although he may establish a state of facts which lead one to think that his version is quite a possible version of what took place, he must do something more than show a state of facts which is consistent with one view or with another view… A guess is a mere opinion or judgment formed at random and based on slight or uncertain grounds. In contradistinction to such a conjectural opinion, an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed acts. It must be something which follows from given premises as certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect.
[276] [2013] QCAT 564.
[277] (1955) 72 WN (NSW) 261, [264].
Member Roney proceeds to consider circumstances in which an Applicant contends that an inference should be drawn, as discussed by the court in Carr v Baker:[278]
There must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture… The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture.
[278] (1936) 36 SR (NSW) 301, 306.
After carefully considering the evidence, I formed the impression that the Complainant found the Second Respondent's conduct to be demanding and unreasonable rather than discriminatory.
I accept the Respondents' submission that the core of the Complainant's complaint is that the Second Respondent is unapproachable,[279] unreasonable,[280] made his life difficult,[281] set him up to fail.[282] The Complainant was of the view that the Second Respondent did not respect him or his generation[283] and had power over his livelihood.[284]
[279] Exhibit 7 [65], [105].
[280] Ibid [45], [183], [187].
[281] Ibid [57], [131], [149].
[282] Ibid [73], [77].
[283] Ibid [163], [185].
[284] Ibid [37], [163], [175].

This evidence supports a conclusion that the complaint was about a work superior who the Complainant viewed as demanding and unreasonable. The veneer of discrimination based on the Complainant's attributes and victimisation appears to have been added at a later date, potentially when it became apparent that the other legal avenues to ventilate this grievance were not available.

I note the decision of Perera v Warehouse Solutions Pty Ltd (Human Rights),[285] in which the tribunal made the following comments:

[56] In my experience it is not uncommon for lay people to use terms such as 'discrimination' and 'harassment' in ways which do not align with the legal meaning of the words. That is not a reason to discount the evidence entirely. It is not uncommon for people who feel they have been unfairly treated to see everything that happens through that prism.

[285] [2017] VCAT 1267, [56].

It was apparent from the Complainant's evidence that he perceived every action by the Second Respondent as malicious. One example was his evidence regarding the paperwork error, in which he gave the following evidence:

[The Second Respondent] knew that I would have to drive all the way to work, across the toll bridge, go there, set up, wake up early. It’s an inconvenience to me…

The proposition that the Second Respondent intentionally orchestrated a scenario that would cause the Complainant maximum inconvenience is, on the balance of probabilities, unlikely. It is even less likely that the paperwork error was the result of the Second Respondent treating the Complainant less favourably because of his sex, ethnicity or presumed sexuality.
The Complainant was upset that he was told that his work standard was, on occasion, not up to standard and was annoyed that the Respondents had expectations of his availability that he felt were unreasonable. This was undoubtedly disappointing for the Complainant, but it was not discrimination.

It is clear that the Complainant felt that his predecessor, Mr Tom, was treated better than he had been. As noted above, Mr Tom is not an appropriate comparator, however I note that having a close relationship with a contractor over many years who has significantly more experience will likely lead to a familiarity that is not immediately present with a change in business owner. The Complainant may have wanted to have the same relationship with the Second Respondent as he had with Mr Tom, however relationships like this are not transferrable and usually take time to develop. The Complainant's contention that he was treated differently because of his sex, race, or presumed sexuality is simply not supported by the weight of the evidence. A far more plausible explanation for the Complainant's experience is that it was a usual adjustment between a new contractor and principal. Any familiarity between the Second Respondent and Mr Tom was a consequence of a long-standing relationship and many years of experience. I am not of the view that the Complainant was treated less favourably, however to the extent that he may have felt less 'warmth' from the Second Respondent, no reasonable inference can be made that this was due to his attributes.

The Complainant submits that the Commission should be satisfied that 'the conduct of the Second Respondent towards him was not banter and that it instead can be characterised as bullying and harassment, leading to discrimination and victimisation'.[286] Even if it was the case that the conduct alleged by the Complainant was not considered 'banter', it was not conducted because of the Complainant's attributes. In such circumstances, the conduct may be considered unreasonable behaviour, however it cannot be molded into a claim that it occurred in contravention of the AD Act.

[286] Complainant's closing submissions in reply filed 24 February 2022, [144].

I note the comment in McIntyre v Tully ('Tully'),[287] in which the Queensland Court of Appeal stated:

[14] It is clear enough that the offering of an insult or the making of inappropriate statements is not per se prohibited by the Act, except in specific instances such as incitement to racial hatred, discriminatory advertising, and other particular forms of objectionable conduct set out in parts 4 and 5 of the Act. So far as Chapter 2 (prohibited discrimination) is concerned the Act does not penalise freedom of expression unless all the requirements of prohibited discrimination are present. The Act does not per se render a person liable to pay damages for making politically incorrect statements. It is not the use of hurtful words that is proscribed, but rather the act of discrimination.[288]

[287] [2000] QCA 115, [14].

[288] Ibid (emphasis added) (citations omitted).

I accept that the Complainant was offended when the Second Respondent acted in a way that he considered unreasonable, such as swearing at the Complainant in anger or telling him to 'go to Specsavers'. However as noted above in Tully, the offering of an insult alone, except in specific circumstances, is not prohibited by the Act.
Even if the conduct of the Second and Third Respondent was to be considered unreasonable, it does not amount to discrimination as the evidence does not demonstrate that the Complainant was treated less favourably. Even if the Complainant had been able to demonstrate less favourable treatment, no reasonably inference could have been drawn that the alleged treatment occurred because of his attributes.

The evidence also does not support a finding that the Complainant was subject to victimisation by the Respondents.

Conclusion

Consistent with the Briginshaw principles, the Commission must feel an actual persuasion of the occurrence of the allegations, which cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.[289]
[289] Briginshaw (n 20).
After carefully considering all of the evidence in this matter, I am not persuaded that the Complainant was treated less favourably because he was male or because he was of Greek ethnicity. I am not persuaded that the Respondents presumed the Complainant to be homosexual. I am also not persuaded that the Complainant was subject to victimisation by the Respondents.

The Complainant has failed to discharge the onus of establishing that the treatment amounts to unlawful discrimination or victimisation under the AD Act. Accordingly, the complaint is dismissed.
Orders

I make the following orders:

1. That the complaint be dismissed.
2. I will hear the parties on the question of costs.

[2023] QIRC 248

30 August 2023