Navaratnam v State of Queensland

[2013] QCAT 131

CITATION: Navaratnam v State of Queensland [2013] QCAT 131

PARTIES:	Kathiravelu Navaratnam (Applicant)
v
State of Queensland (Respondent)

APPLICATION NUMBER: ADL077-12

MATTER TYPE: Anti-discrimination matters

HEARING DATE: 27 March 2013

HEARD AT: Brisbane

DECISION OF: Clare Endicott, Senior Member

DELIVERED ON: 2 April 2013

DELIVERED AT: Brisbane

ORDERS MADE: The application for injunctive relief is refused

CATCHWORDS:

ANTI-DISCRIMINATION – where complaint of decision to terminate employment based on attributes of race and age – where employment was not terminated – where uncertainty as to whether new process for selection of redundancy may take place – where referred complaint limited to rescinded decision – where no need established to restrain actions to ensure effectiveness of order that Tribunal may make on determining complaint

Anti-Discrimination Act 1991 (Qld), s 144, s 178

Mount Isa Mines Limited & Ors v Hopper [1998] QSC 287

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Dr K Navaratnam appearing on his own behalf

RESPONDENT: State of Queensland represented by Dr M Spry of Counsel instructed by Crown Law Office

REASONS FOR DECISION

1. Dr Navaratnam is employed by the Department of Education, Training and Employment as a Senior Internal Auditor at the AO6 level within the Internal Audit Unit. On 16 July 2012 it was determined that there were five full time permanent positions within the Unit that were surplus, including one AO6 Senior Internal Auditor position. Dr Navaratnam complains that he was told by his supervisor on 18 July 2012 that he was to be made redundant based on his English skills and on his age.

2. Dr Navaratnam lodged a complaint with the Anti-Discrimination Commission Queensland about the actions of his supervisor in selecting him on discriminatory grounds for redundancy. On 23 July 2013 Dr Navaratnam applied to QCAT for an order to restrain the redundancy process until his complaint had been heard. On 27 July 2013 Dr Navaratnam was told that no decision had in fact been made about a redundancy and that no decision would be made until a closed merit review had been completed of the AO6 Senior Internal Auditor positions within the Internal Audit Office. The application for injunctive relief was adjourned to a date to be fixed.

3. Subsequently Dr Navaratnam asked for his application at QCAT to proceed. A hearing took place on 27 March 2013.

4. At the hearing, the Tribunal was told that a new Head of Internal Audit, Ms Lesley Lally, had commenced on 4 October 2012. Ms Lally had informed staff within the Unit that she intended to conduct a review of the structure and skill-set of the Audit Branch. Ms Lally told staff that she would arrange a strategic business review of the Internal Audit Branch to be conducted by an external provider. The closed merit review process for the AO6 Senior Internal Auditor positions was consequently cancelled.

5. The Tribunal was told that on 22 March 2013 Ms Lally had sent an email to staff within the Audit Branch advising them that the strategic review had been completed and had been endorsed by the Department’s Audit and Risk Management Committee. The review had revealed that there was no need for any further reductions from the current establishment of 31 full time equivalent positions within the Unit. However Ms Lally noted that there were six AO6 auditors when the budget only allowed for five such positions.

6. In her email Ms Lally stated that there is an AO7 auditor position to be filled and if that position were to be filled by one of the current AO6 auditors, there would be no need for a redundancy from within the AO6 auditors. If an external candidate filled the AO7 position, then a closed merit selection process would be undertaken to select five AO6 auditors from the current cohort.

7. Dr Navaratnam asked the Tribunal to make an order to restrain his employer from undertaking a closed merit selection process until his complaint of discriminatory behaviour had been determined by QCAT. This application was opposed by his employer.

8. Under s 144 of the Anti-Discrimination Act 1991, QCAT has the power to make an order prohibiting a person from doing an act that might prejudice the investigation or conciliation of the complaint or which might prejudice an order that the Tribunal might make after a hearing. The complaint by Dr Navaratnam was not able to be conciliated at the Commission and has been referred to QCAT for determination.

9. Before QCAT can restrain Dr Navaratnam’s employer from proceeding with the closed merit selection process, the Tribunal must be satisfied that this injunctive relief is necessary to stop unwarranted interference with the range of orders that the Tribunal could make at the end of a hearing of Dr Navaratnam’s complaint. There are two problems that stand in the way of the Tribunal granting Dr Navaratnam the injunctive relief that he seeks.

10. First, the evidence provided by the employer establishes that there is currently no closed merit selection process for the AO6 auditor positions underway. That process is a possibility but at the moment it is only a hypothetical course that may arise if the AO7 auditor position is filled later this year by an external candidate and not by one of the current AO6 auditors. There is simply no relevant conduct of the employer that I could properly restrain at the current time.

11. Second, the injunctive process under s 144 must arise from the context of the actual complaint lodged by Dr Navaratnam of discriminatory conduct. That complaint is limited to the actions of his supervisor on 16 July 2012 selecting Dr Navaratnam for redundancy on the basis of his English skills and age. According to the evidence filed in the Tribunal, those actions are no longer relevant to a possible future decision to select Dr Navaratnam for a redundancy as any such redundancy of the AO6 auditor position will be determined after a closed merit selection process.

12. It was submitted by the employer that the Tribunal could only order the payment of compensation to Dr Navaratnam for hurt and humiliation if his complaint of unlawful discriminatory conduct occurring on 16 July 2012 were to be upheld after a hearing by the Tribunal. The employer submitted that as the actions of the supervisor on 16 July 2012 would not be causative of any decision that might yet be made by a different process and by a different person in 2013 to make Dr Navaratnam redundant, the Tribunal would not be able to set aside a decision made in 2013 based on the current complaint.

13. I find that the submissions of the employer have been persuasive. The system set up under the Anti-Discrimination Act 1991 is based on complaints made to the Commission and then referred to QCAT. Complaints cannot be made directly to QCAT. The Tribunal’s jurisdiction is only enlivened to consider and determine a referred complaint. There is power in the Tribunal to amend a complaint even if that results in matters being added to the complaint that were not matters considered by the Commission. However the power is not unlimited and the amendment power cannot provide jurisdiction when there is no jurisdiction for QCAT to entertain a complaint that has not been through the Commission process.[1]

    [1]        Mount Isa Mines Limited & Ors v Hopper [1998] QSC 287.

14. The current complaint referred to QCAT is limited to its facts and cannot give rise to a finding that a closed merit selection process in 2013 could be tainted with unlawful discriminatory behaviour in 2012 of an individual not involved in that closed merit selection process. Dr Navaratnam has not sought to amend his complaint to include actions that had occurred after July 2012 although he had to rely on post July 2012 actions in seeking an injunction against his employer.

15. I am satisfied that the range of orders that could properly be made if Dr Navaratnam’s complaint were to be upheld after a hearing would not include an order that his employment as an AO6 auditor should continue. The likely orders would be for the payment of compensation for the effects of the conduct in July 2012. I find that granting an injunction would not be necessary, given those findings, to ensure that the orders that the Tribunal might make on the 2012 complaint are effective.

16. Dr Navaratnam can of course lodge a fresh complaint to the Anti-Discrimination Commission based on actions in 2013 that he may allege are breaches of the Anti-Discrimination Act 1991. He can also make a fresh application for injunctive relief, arising out of a fresh complaint. What he cannot do is seek an injunction to restrain actions that might result from a process yet to be conducted in 2103 based on the current referred complaint.

17. His application for injunctive relief is accordingly refused.