Park v State of Queensland & Anor - [2013] QCAT 183

CITATION:

Park v State of Queensland & Anor [2013] QCAT 183

PARTIES:	Mr Harry Park
v
State of Queensland and Mr Keith McGabe

APPLICATION NUMBER:

ADL036-12

MATTER TYPE:	Anti-discrimination matters
HEARING DATE:	25, 26 February 2013

HEARD AT:

Brisbane

DECISION OF:

Paul Favell, Member

DELIVERED ON:

4 March 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The referral is dismissed.

CATCHWORDS:

Anti-Discrimination – whether statements made – whether statements were capable of amounting to discrimination

Anti-Discrimination Act1991 ss 4A, 7, 8, 9, 10, 11, 124A, 131A, 166.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Harry Park

RESPONDENT:

M. Spry of Counsel instructed by Crown Law (Kate Pike)

REASONS FOR DECISION

Harry Park is and was in September 2010, February and March 2011 employed by Bremer Tafe as a Facilities officer.
He alleges that on 27 and 29 September 2010, Keith McCabe, an acting Security Co-ordinator at Bremer Tafe said to him, “you are as old as my father” and “Korean people are sub-standard.” Mr McCabe denies saying those words and contends that such complaints by Mr Park were only made after Mr McCabe approached his superior and Mr Park about a complaint made about Mr Park by another.
He also alleges that in February 2011 and March 2011 Mark Bye, an instructor at Tafe said to him on three occasions, “get out of my sight”; and on 8 April 2011 Mr Bye said to him “get out of my sight” while in the presence of students. Mr Bye says he said to Mr Park, “you can’t be in here” when he saw he was not wearing the required safety clothing and eyewear in the workshop.
Mr Park complained to the Queensland Anti-Discrimination Commission on 1 July 2011 as follows:
08/04/2011 I was on B2 welding area doing a head count of the students that is part of my duty. When I entered Welding area B218 and went nearly 1 metre inside, Mark Bye (welding tutor) started to yell at me “get out of my site” in a very aggressive manner and he moved towards me. He then said “get out of my site” again and again in a loud voice in front of his students. He became very aggressive and I felt for my safety so I ran out of the room and came across Steve my supervisor and reported the incident of verbal abuse to him.
Mark Bye has abused me 4 times prior to this incident, all the while I was trying to count students, doing my job. I returned to the my security office as was suffering from a headache and irregular beating of my heart. I told work mate Garry that I had chest pains. Garry checked my pulse and called the ambulance.
RESULT: NO FURTHER ACTION TAKEN
27/09/2010 I was on C2 Admin Area doing a lock up and patrol facilities.
Keith McGabe (Acting Supervisor) told me: “You are old and Asian people are sub-standard.” I told him not to say again (first warning)
29/09/2010 I was on B2 Welding area Keith approached me and told: you are old and Asian people are sub-standard. I reported the incident to Brad (Manager) and H.R.
RESULT: NO FURTHER ACTION TAKEN.
I am very frustrated of decision at BREMER TAFE.
That complaint was referred to QCAT pursuant to Section 166 of the Anti-Discrimination Act 1991.
Mr Park now complains that Mr McCabe discriminated against him on the basis of age and race and Mr Bye discriminated against him on the basis of race.
Further, he alleges the words said by Mr McCabe and Mr Bye amount to vilification on the grounds of race and serious vilification on the grounds of race.
The first matter to be determined is whether Mr McCabe said the words as alleged. I find that they were not said.
I accept the evidence of Mr McCabe. I found his evidence credible and in some respects supported by uncontested circumstances. I find that Mr Park made the initial complaint to the Facilities Manager, Mr Fisher, after Mr McCabe had contacted Mr Fisher and Mr Park about a complaint made about the standard of cleaning done by Mr Park. I accept that Mr Park was agitated when he saw Mr Fisher and then made the complaint about Mr McCabe and told Mr Fisher that he was “going to kill Keith”. I also accept that Mr Park was unnecessarily aggressive during a subsequent meeting with Mr Fisher, Mr McCabe and Ms McGovern wherein he said he was going to “call the police and the Korean Embassy”. The conduct of Mr Park as described above, his evidence and his demeanour whilst giving evidence gave me some concern. I prefer the evidence of Mr McCabe, which in material respects was supported by the evidence of Mr Fisher and emails sent or received by him.
I find that Mr McCabe had asked Mr Park about aspects of the performance of his duty and had questioned Mr Park about complaints made by others about the performance of his duties. I find that Mr Park then became angry and told Mr McCabe that he “can trust no one here” and told Mr McCabe “don’t speak to me like that” or words to that effect. He also accused Mr McCabe of “being racial towards Asian people” and saying that “Asian people were lower than me”.
In any event, even if the words alleged to have been said by Mr McCabe were said, there is no evidence that they were said to anyone other than Mr Park. There is no evidence that there was any conduct by Mr McCabe which would amount to vilification.
Further, even if the words alleged to have been said by Mr McCabe were said, in my view they do not amount to discrimination under the Anti-Discrimination Act 1991.
The anti-discrimination purpose of the Act is set out in Part 1 of Chapter 2 of the Act. One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation. That purpose is to be achieved by prohibiting discrimination that is on a ground set out in part 2 and of a type set out in part 3 and in an area of activity set out in part 4 of the Act unless an exemption set out in part 4 or 5 of the Act applies; and allowing a complaint to be made under chapter 7 against the person who has unlawfully discriminated; and using the agencies and procedures established under chapter 7 to deal with the complaint.
Part 2 of the Act by s 7 relevantly prohibits discrimination on the basis of age or race.
Part 3 of the Act by s 9 prohibits direct and indirect discrimination.
Relevantly, direct discrimination on the basis of an attribute happens if a person treats a person with an attribute less favourably than another person without the attribute (s 10).
Relevantly, indirect discrimination on the basis of an attribute happens if a person imposes a term with which a person with an attribute cannot comply and which a higher proportion of people without the attribute are able to comply and that is not unreasonable (s11).
Discrimination on the basis of an attribute is defined in s 8, to include direct and indirect discrimination on the basis of a characteristic that a person with any of the attributes generally has; or a characteristic that is often imputed to a person with any of the attributes; or an attribute that a person is presumed to have, or to have had at any time by the person discriminating; or an attribute that a person had, even if the person did not have at the time of the discrimination.
For there to be a prohibited discrimination on the basis of attributes of age or race under the Act there must be a direct or indirect discrimination.
There is no allegation that Mr McCabe treated or proposed to treat Mr Park less favourably than a person not of the age or race of Mr Park. In my view, statements alleged to have been said by Mr McCabe do not amount to a less favourable treatment of Mr Park in any material way. If the words were said, they may be insulting or such as to cause offence but do not constitute a treating of Mr Park in any particular way. In my view, the words alleged to have been used do not amount to any particular treatment of Mr Park and accordingly there cannot be any direct discrimination under the act.
There is no allegation that Mr McCabe sought to impose any term (condition, requirement or practice) on Mr Park. Accordingly, there cannot be any indirect discrimination in the circumstances alleged by Mr Park.
The next matter to be determined is whether Mr Bye said to Mr Park the words “get out of my sight”. The complaint made to the Commission was that the words said were “get out of my site”. In my view, this being a referral under section 166, the complaint I must deal with is that made to the commission. However, the fact that the allegation of the actual words used has changed at the hearing must mean that the evidence given at the hearing does not necessarily support the words alleged in the complaint to the commission.
Mr Bye denies saying the words “get out of my sight” but says that he said “you can’t be in here”. Mr Bye was an instructor at Tafe, teaching welding, and engineering tasks and trades. The instruction area was a dangerous area. Those in the area were required to wear safety gear. It is not disputed that Mr Park attended that area when Mr Bye was instructing a number of students. He was not wearing the appropriate safety gear. It is not surprising therefore, that Mr Bye, as the person in charge of Work Place Health and Safety would express concern about the presence of any person not wearing the necessary safety gear in the work place. A statement such as “you can’t be here” or “get out of my site” would be appropriate”. Even use of a statement such as “get out of my sight” may be appropriate.
I accept the evidence of Mr Bye. His evidence was credible and likely. The words he says he used are more likely to have been said in the circumstances. In my view, the inconsistency in the versions of the words said by Mr Park to have been said by Mr Bye is telling and demonstrates an uncertainty about what was actually said. In my view, Mr Park may have been unduly influenced by his anger and his perception about treatment of him in reconstructing what was actually said by Mr Bye.
Even if Mr Bye said either of the differing statements alleged by Mr Park to have been said or the statement “you can’t be here”, in my view, none of those statements amount to discrimination.
In my view, none of the statements are capable of being a direct or indirect discrimination.
None of the statements are based on an attribute as set out in section 7.
None of the statements treats or proposes to treat Mr Park less favourably than any other person.
None of the statements imposed or sought to impose a term on Mr Park with which he did not or could not comply.
As to the allegation that there was racial vilification, in my view there is no basis shown for such a finding.
Section 124A relevantly prohibits a person from inciting hatred towards, serious contempt for or severe ridicule of a person, by a public act on the ground of race.
In my view, the statements I have found to have been said by Mr McCabe were not capable of inciting hatred towards, serious contempt for or severe ridicule of Mr Park. If said, they were said to him alone. His conduct was not a public act.
In my view, whatever Mr Bye said was not capable of inciting hatred towards, serious contempt for or severe ridicule of Mr Park.
Further, whatever Mr Bye said it was not a public act as defined by section 4A of the Act. Whatever it was it was not a communication to the public. There was no evidence that whatever was said was heard by any one else other than Mr Park.
As to the allegation that there was serious racial vilification, in my view there is no basis shown for such a finding.
Section 131A relevantly prohibits serious racial vilification. It has many of the same elements as section 124A but also requires that the public act includes threatening physical harm to a person or property or inciting others to so threaten.
I have already found that the actions of Mr McCabe and Mr Bye did not constitute racial vilification and thus cannot for those reasons constitute serious racial vilification. I also find that the acts by Mr McCabe and Mr Bye were not conduct that threaten or incited others to threaten harm to any person or property and accordingly there is no basis for any finding of serous racial vilification.
Because of my findings there is no need to consider the liability of The State of Queensland or Tafe. There is no basis for awarding any compensation. Even, if there was the compensation claimed in my view was not sufficiently proved.
For the reasons given above the applications are dismissed.