O'Brien v Pink Peppercorn (Aust) Pty Ltd
[2015] QCAT 427
•19 October 2015
| CITATION: | O’Brien v Pink Peppercorn (Aust) Pty Ltd & Ors [2015] QCAT 427 |
| PARTIES: | Taylor O’Brien (Applicant) |
| v | |
| Pink Peppercorn (Aust) Pty Ltd Nicole Allom Lyndell Mary Loy (Respondent) |
| APPLICATION NUMBER: | ADL079-14 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 28 May 2015; 31 July 2015 |
| HEARD AT: | Toowoomba |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 19 October 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Complaint is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – EMPLOYMENT – Where a Trainee was employed in a coffee shop – where the trainee suffered a head injury in a car accident – whether the trainee was discriminated against at the workplace due to an impairment Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 10, s 15, s 205 |
APPEARANCES:
| APPLICANT: | Taylor O’Brien, assisted by her mother Louise O’Brien |
| RESPONDENTS: | Nathan Allom, Nicole Allom and Lyndell May Loy |
REASONS FOR DECISION
A complaint made by Taylor O’Brien (‘Taylor’) to the Anti-Discrimination Commission Queensland was referred to the Tribunal on 5 November 2014.
Taylor had been engaged as a Trainee at the Pink Peppercorn cafe (‘the café’) located at Toowoomba.
The café business was conducted by Pink Peppercorn (Aust) Pty Ltd. The Members of the company were Nathan Allom, Nicole Allom and Lyndell Loy.
The complaint was that Taylor O’Brien was discriminated against because of her impairment, being a head injury, and was treated unfairly at work. As Taylor was a minor at the time, the complaint was made by Louise O’Brien, (‘her mother’) on her behalf.
She filed Contentions on 11 February 2015. She contended that discrimination arose on the following bases:
39 The Respondent’s conduct detailed above amounted to direct discrimination as defined in section 10 of the Anti-Discrimination Act 2010 (Qld) on the basis of my temporary impairment.
40. After I received medical clearance to return to work on a full time basis the Respondents discriminated against me on the basis of the temporary impairment I previously had. The respondents presumed I continued to have an impairment and was unable to work on a full time basis. I did not have an impairment after I received medical clearance.
She claimed that she had lost income and unpaid wages in a total of $8,664.23 which comprised:[1]
a)Income and wages and the opportunity to earn wages in the amount of $6,528.61
b)Payment for training hours in the amount of $791.12
c)Holiday hour accrual in the amount of $559.40
d)10 hours work in the weeks beginning 15 April 2014 and 21 April 2014 of $89.90
e)Superannuation contributions in the amount of $695.20
f)Interest (not included in this sum)
[1]Contentions of claimant, para [47].
She sought the following orders:[2]
a) An order for the First Respondent to pay me compensation for lost income and unpaid wages of $8,664.23 under section 209(1)(b) of the Act and interest under section 209(1)(g) of the Act.
b) An order requiring the Second and Third Respondents to provide a private apology under section 209(1)(d) of the Act.
c) An order requiring the First Respondent to implement programs to eliminate unlawful discrimination under section 209(1)(f) of the Act.
d) An order requiring the First Respondent to provide a favourable detailed written reference summarising my work experience, performance and abilities under section 209(1)(c) of the Act.
[2]Contentions of claimant, para [53].
The hearing was conducted over two days. Oral evidence was called by 3 witnesses by Taylor, and by 7 witnesses by the café.
Legislative Provisions
Section 7 of the Anti-Discrimination Act 1991(‘the Act’) provides that discrimination on the basis of certain attributes is prohibited, and relevantly provides:
The Act prohibits discrimination on the basis of the following attributes:
(h) impairment
Section 8 of the Act provides that the meaning of discrimination on the basis of an attribute is as follows:
Discrimination on the basis of an attribute includes 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 a person is presumed to have, or to have had at any time, 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.
Section 10(1) of the Act provides as to 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.
Section 15 of the Act provides as to discrimination in the work area:
15 Discrimination in work area
(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.
(2)In this section –
Dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.
History of the matter
Taylor was initially engaged as a school-based Trainee, and commenced on 1 October 2013. She left school, and her training contract was amended to full-time on 5 December 2013.
She sustained injuries in an accident on 8 March 2014 and was flown to Brisbane, where she remained in hospital for a week. She returned to work on adjusted hours on 15 April 2014.
Her work hours varied during the duration of her employment after that, but she was not placed on full-time work.
She remained employed with the café until 6 August 2014 when she resigned from her employment.
Central to the matters in question is the amount of work offered to Taylor in the period after she returned to work after the accident, and whether that should have been on a full-time basis. Her hours of employment varied, but generally Taylor was only rostered on for 10 to 15 hours per week after the accident, in contrast to the 38 hours per week she was working before the accident.
The general proposition of Taylor and her mother is that she was capable of full-time work after the accident, but that she was then not offered sufficient work or given proper training, and was bullied and harassed, and treated as not competent to work by the management and staff of the cafe.
The general proposition put forward by the management of the café is that Taylor was offered appropriate work and training after the accident, but that she did not then display a good work ethic or interest in engaging in further work and training, and was not able to cope with full-time work.
The letter of resignation from Taylor was as follows:[3]
As of the date of this letter, I hereby notify you I will not be returning to work at the Pink Peppercorn due to your refusal to employ me under the conditions of my training contract.
Your lack of support for my working hours, working conditions and in general the nature in which I have been treated in recent months in relation to my accident and abilities as an employee, has had a negative effect on my confidence and has caused anxiety surrounding my employment with you.
As you requested us to sign a cancellation form Monday of last week, I am assuming you will not be requiring a period of notice.
[3]Letter Taylor O’Brien to Lyn Loy, 6 August 2014.
She subsequently was employed at another café in Toowoomba called ‘Jamaica Blue’ for about four months, and then ceased that employment when she relocated to Glen Innes.
The Evidence of Taylor and her mother
Louise O’Brien, Taylor’s mother gave evidence.
Her mother displayed a very protective stance in relation to her daughter, and had taken an active role in discussions with the café at times during Taylor’s employment. She also took a very active role in these proceedings. The demeanour of Louise O’Brien during the proceedings was assertive and determined.
Louise O’Brien moved from Toowoomba to Glen Innes in 4 October 2014, and then subsequently moved to Pottsville, in northern New South Wales, at the end of 2014, where she now lives.
She was asked in cross-examination whether she was aware that Taylor had been warned about being late for work. She replied that Taylor had not told her that, but that ‘Taylor tells me everything, I am her mother, why wouldn’t she tell me?’
She related her understanding of what had transpired in relation to Taylor’s employment. Much of that evidence was based upon things that Taylor had told her, and conclusions that she had formed as to the behaviour and actions of the café as a result. Her evidence was generally confirmatory of Taylor’s evidence, to the extent that she was involved.
Taylor said that she currently worked part-time at a café in Pottsville.
She said that she had suffered effects of the accident between 15 April 2014 and 26 May 2014, in the form of mild fatigue and infrequent mild headaches. She said that the mild headaches decreased rapidly after that.
She said that she enjoyed the work at first, until after the accident. She was asked when her comfort in being at work changed. She said that after the break from work she started getting snide comments from Lyn Allom about her family and her younger sister.
She said that after the accident she was treated like a child, then her recovery improved and when she asked for full-time hours, comments were made about her family and her health.
She said that she had no idea why she was not offered full-time work after the accident, until Lyn Allom had said that they had hired a girl called Sharni, and that they did not think it would be fair to give her those hours. She said that Sharni was there from when she had her accident, until she left. She said no other reason was given as to why she was not offered full time work after the accident.
She said that she would have been able to work in the same way after the accident, as before.
She said that she did not enjoy school, and personally did not have a good time there.
She said that was late for work twice, once because of a traffic accident, and once because of parking problems. She said she was not ever warned about being late.
She said that she was as efficient and capable after the accident, as before. She said that felt uncomfortable towards the end of her employment, that her mental state was ‘all over the place,’ and that she could not cope with it. She said did not want to be there at work, and that it was too much.
She said that she didn’t feel like she was wanted or accepted at the café any more after the accident. She said that had a lot of time left to think, and ‘it all eroded’, that she couldn’t sleep and couldn’t eat. She felt she had ruined her life by leaving school, and ‘had destroyed everything for myself’.
She said that she was never given direction as to what to do, and was not aware that it was her responsibility to fill in the training book. She said that she got more information about training when she was school-based. She said she was shown less supervision after her accident. She said that she was only shown how to use the coffee machine on one occasion.
She said that she resigned because she ‘was pushed in a corner’. She said that she did not want to resign, but the matter was ‘way too uncomfortable’.
She said that she was ‘not that confident any more’, and has to second-guess herself.
She said that she is now the Head Barista at an independent café at Pottsville, and opens and closes the café, and helps the chef with preparations.
The documents filed in this proceeding[4] show Taylor’s current address as being at Pottsville, where her mother now lives.
[4]Application to extend Time dated 28 January 2015.
The evidence of Brett Parminter.
Evidence was called by Taylor from Mr Parminter. He is a Field Officer with the Department of Education and Training, and was the responsible officer for Taylor’s placement with the café. He had a reference to a large departmental file which had been produced in response to a Notice from the Tribunal, and which was tendered as an exhibit.
He referred to discussions he had with the management of the café about Taylor’s traineeship, and discussed the general procedures of a traineeship.
He was asked as to the training book not having been filled in, and he commented that just because a training book is not filled it does not mean that the training did not take place. He said it is the trainee’s role to have the record book signed.
The evidence of the management of the cafe
Nathan Allom said that he was rarely at the café, and heard from his wife and mother-in-law as to what happened at the café.
He said that Taylor’s traineeship was terminated by mutual consent.
Nicole Allom was one of the proprietors of the café. She said that Taylor was given many warnings for being late, and was warned for wearing inappropriate attire.
She said that after the accident, that Taylor ‘played the victim’ and would not fulfil her role, and was struggling. She said they had never made so many exceptions for a staff member, that they ‘handled her with kid gloves,’ and that she let Taylor get away with not doing her job because Taylor activated her sympathetic nature.
She said that Taylor would outright ignore the senior staff at times when they requested her to do work, and would go about doing what she wanted.
She said that Taylor did not want to work on a full-time basis. She said that they could not re-employ Taylor on a full-time basis after the accident because all Taylor wanted to do was to wash up, and she would not do her job. She said that before the accident that Taylor did come to work late, but did do her job.
She said that they did not ‘pick on’ Taylor because of her head injury, that they treated her with compassion and sympathy, but that Taylor refused to do her job. She said that they never reduced Taylor’s opportunities, and Taylor could have done any role she wanted, but that Taylor did the minimum.
She said that Taylor’s mother would contact her by Facebook and email, and that Taylor’s mother was ‘beating the drum’ and expected her to march to it.
Lyndell Loy was also a part-owner of the café. She said that she showed Taylor compassion, and looked after her like a mother, giving her food when she was hungry and would get her a chair when she needed one. She said that every attempt was made to accommodate Taylor after the accident.
She was asked why Taylor was not put back on full-time hours after the accident. She responded that Taylor was not able to go back to full-time work, and that Taylor did not want to be on the till, and was not capable of doing her job.
She said that Taylor told her that she did not like living in Toowoomba, and wanted to go back to Glen Innes.
She said that she did not feel that Taylor wanted to return to full-time work.
The evidence of staff of the cafe
Cath Hodgen is the sweets cook with the café, and has been employed there since 2010.
She said that never witnessed anyone bullying or humiliating Taylor at the café.
When asked how well Taylor performed her duties, Ms Hodgen said that she performed poorly, was inefficient, was not a team player, and lacked concentration and could not be expected to multi-task. She said Taylor would become disoriented and vague, and would look blankly, and the colour would drain from her face. In her opinion, Taylor did the bare minimum at work.
Taylor asked Ms Hodgen how she was treated after her accident, and Ms Hodgen replied that Taylor was treated with compassion, and that ‘we picked up the slack.’ Ms Hodgen said that the staff at the café were decent staff.
Natasha McPartland is a staff member at the café, and has worked there since late 2010. She was the front of house manager, and was responsible for training Taylor. She said that Taylor was given extensive training, made coffee, operated the till, and ‘ran dishes.’
She said that Taylor spent a lot of time at the back of the shop on her own accord.
She did not feel that Taylor was discriminated against or bullied at all, and that every attempt was made to accommodate her condition.
She said that Taylor told her she wanted to move to Glen Innes.
In her written statement of evidence, she said that:[5]
7. I expressed concerns to Lyn about Taylor’s work performance and the unfairness on the rest of the staff. She would not come out of the kitchen, electing to wash up every shift. I made many exemptions due to Taylor constantly complaining about her ailments. Lyn spoke to all staff members about being accommodating and understanding as Taylor had suffered a serious injury.
8. I or any other staff member never directed Taylor to wash up, I was constantly calling out to Taylor to come and assist us in the front of house, she would come out, complete what was minimally required and then return to the kitchen. The role of the Junior is to assist the Senior as needed. Taylor refused to perform these duties and I would go so far as to say she outright ignored my and other senior staff directives.
[5]Statement Natasha McPartland, 10 May 2015, Exhibit 9.
Lesa Theuerkauf was employed as a senior front of house staff member from July 2012 to January 2015.
She said that Taylor would quite often not respond when spoken to and seemed ‘far away.’ She said ‘all of us have children of similar age,’ and they were all concerned about her, and did not think she was quite ready to return to work.
The evidence of Peta Buttfield
Ms Buttfield was called to give evidence by the café. She is the proprietor of a café called ‘Jamaica Blue Grand Central’ in Toowoomba. She employed Taylor from the week beginning 3 August 2014 until 19 December 2014.
In her statement of evidence she said that Taylor’s reliability was not satisfactory, that she could not rely on her to finish her shift, or to call her in if another staff member was sick, or to work on weekends. She concluded that:[6]
Taylor’s unreliability, lack of enthusiasm and unavailability did not make her a valuable asset to my business.
[6]Statement Peta Buttfield, Exhibit 11.
In her evidence she said that Taylor was punctual, but went home sick (with migraines and headaches) more than other staff, and showed ‘no love for the job.’
She said that Taylor would go to Glen Innes or the Coast every week-end, and that Taylor’s father worked at Glen Innes and she would visit there.
She said that she kept Taylor on for four months because Taylor’s father had done quite a few favours for her, and she felt she owed something to them.
She said she was upset that Taylor did not tell her that Taylor’s parents had put their house on the market and that Taylor would be leaving town. She said that Taylor only told her one week before Christmas, on 17 December 2014, that it would be her last week, which was the busiest period of the year, and that Taylor’s absence impacted on her business during the following week.
Discussion
This matter has created a great deal of unhappiness for all parties. It is unfortunate that the matter was not resolved, and that the parties have had to go through a traumatic and upsetting hearing.
There was clearly a discord that arose between Taylor and the management and staff at the café. Her mother has taken strident positions during her employment, and in these proceedings.
There has been much interchange variously between Taylor, her mother, Ms Allom and Ms Loy. I do not consider that any of those people were being untruthful in their own recollections, but there are marked differences between their different versions and viewpoints. There is obvious conflict between those people, and a deep sense of hurt displayed by each of them. That conflict and hurt has made them all defensive of their own positions, and fixed in their recollections.
There are clear differences in the evidence of those people as to Taylor’s work attitude, and as to how she was treated. As much as is necessary, I would prefer the evidence of Ms Allom and Ms Loy, to the evidence of Taylor and her mother.
However, I was most struck by the evidence of the café staff, and the proprietor of the subsequent café where Taylor worked, who were all mature and responsible women, and rely most heavily upon that evidence. Those women all impressed me as honest genuine witnesses telling the truth to the best of their ability, and they all displayed a compassion for, but also frustration with, Taylor.
The evidence of the employees at the café, and of Ms Buttfield, was consistent. The descriptions they gave of Taylor’s behaviour, and of the behaviour of the staff of the café, was consistent. I do not consider that there was any element of collusion, or of glossing over of issues. I accept their evidence.
I am satisfied that the staff of the café in particular did all they could to assist and train Taylor, and generally acted in a maternal way towards her, but that they were frustrated by her lack of motivation at the time.
I accept that after she returned to work after the accident, that Taylor did show a lack of motivation and interest in her work, and did not perform required tasks asked of her, such as ‘front of house’ activities, in a co-operative and sufficient manner.
I am satisfied that in not giving full-time work to Taylor after she returned to work after the accident, that the café was not acting in a discriminatory way by treating her differently because of any real or presumed impairment, but was responding to Taylor’s unsatisfactory work performance and demeanour, in the same way that they would respond to any trainee or employee displaying such behaviour.
There is a suggestion by Taylor that she was deprived of full-time work after she returned to work after the accident, because her hours had been given to a new employee, Sharni, in her absence. The situation has not been shown to be one where both Sharni and Taylor displayed an equal aptitude and attitude to work, but that Sharni was preferred because Taylor was seen to be unable to work properly because of a real or assumed impairment.
I accept that Sharni was kept on in a full-time position because she displayed an appropriate attitude to work. I accept that Taylor did not demonstrate an equal attitude to work, and it was for that reason that Sharni was given greater hours in preference to Taylor.
Taylor had previously been living in Glen Innes with her family. When she moved to Toowoomba, her siblings appear to have remained in Glen Innes where her father worked. She was not happy at school in Toowoomba, and left school to undertake the trainee position. As events unfolded, interrupted by her accident, she became unhappy in her work at the café. She left that café, and then went to work for another café in Toowoomba where she remained for about four months before she returned to Glen Innes. She now lives in, and has a position at a café in Pottsville, and is apparently happy there and working well there.
It seems that Taylor was simply unhappy in Toowoomba. This affected her attitude and performance both at school, and subsequently at work. She wanted to leave Toowoomba, and returned to Glen Innes, and then to Pottsville, and has been happy there.
I note that in questioning Ms McPartland, that her mother commented that ‘Taylor encouraged us as a family to move to Glen Innes.’ That statement from her mother reinforces my view that Taylor was unhappy in Toowoomba and wanted to move.
No expert evidence was adduced as to the effect of the accident upon Taylor’s mental health. She said that she recovered quickly and was unaffected. There is no evidence as to whether her mental state, and her attitude to life in general, was affected by the accident. It would not be unexpected for the victim of a serious accident to experience some psychological effect after a major trauma.
In the absence of any evidence one way or the other, however, I cannot form a view as to this aspect, or take it into consideration - but a question mark must remain as to whether she did suffer some undiagnosed and unrecognised psychological trauma that affected her behaviour and mood in the period when she was employed at the café after the accident, but which was not identified, or taken into consideration, by either her family or her employer.
As her employer was not aware of any psychological situation as an attribute, they would not be expected to have been able to, and did not, treat Taylor differently from others because of it, if such an attribute existed.
Her mother has sought to stand by Taylor unreservedly, but by seeking to lay blame on the café for Taylor’s unhappiness, has not perceived what was apparent to the staff of the café as to Taylor’s work attitude and application after the accident.
The observations of Mr Parminter provide a confirmatory backdrop to the events in relation to the traineeship, but are not of significant impact in relation to the issues at hand. However, where relevant and required, I would accept the evidence of Mr Parminter.
The cumulative effect of the evidence of Ms Hodgen, Ms McPartland, Ms Theuerkauf, and of Ms Buttfield, in particular, as seen in the context of Mr Parminter’s evidence, which I accept, and of the evidence of Ms Allom and Ms Loy, is that no discrimination against Taylor due to any actual or presumed impairment has been shown.
I am not satisfied that the management of the café, or its staff, treated Taylor less favourably due to any actual or presumed impairment after the accident, than they would treat a person without an actual or presumed impairment in the same or not materially different circumstances, within the provisions of section 10 of the Act.
The actions of the management of the café and its staff to Taylor after her accident were in response to Taylor’s actions and attitudes, and not resulting from any different treatment of her, due to her having any actual or presumed impairment.
Section 205 of the Act provides that it is for the complainant to prove, on the balance of probabilities, that the respondent contravened the Act. I am not satisfied that Taylor has proved to the required standard that the company and its management contravened the Act.
I do not find that Taylor was discriminated against within the provisions of the Act. The complaint is not made out.
The company and the management seek costs of the proceedings. Neither party was legally represented. I am not satisfied that a basis has been shown to depart from the basic rule in s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that each party to a proceeding must bear their own costs for the proceeding. I make no order as to costs.
Taylor has made claims as to unpaid wages and other financial claims. She may have alternative industrial venues in which to pursue those claims, but as I have not found any breach of the Act, no basis exists to make any order in relation to those claims in these proceedings.
Accordingly, the only order that I make is that the complaint is dismissed.
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