Webb v Lightfoot
[2011] QCAT 233
•30 May 2011
| CITATION: | Webb v Lightfoot [2011] QCAT 233 |
| PARTIES: | James Dean Webb |
| v | |
| Malcolm Lightfoot |
| APPLICATION NUMBER: | ADL057-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 17 and 18 May 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | R M Clifford, Member |
| DELIVERED ON: | 30 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Malcolm Lightfoot pay James Dean Webb the total amount of $16,000.00 for unlawful discrimination within 60 days from the date of this Order. 2. James Dean Webb supply Malcolm Lightfoot his banking details within 21 days from the date of this Order. |
| CATCHWORDS: | Impairment – employment – workers compensation – one or more reasons for discrimination Anti-Discrimination Act 1991 Irvine & Porter v Mermaids Café & Bar Pty Ltd & Ingall (No2) [2010] QCAT 482 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | James Dean Webb – self representation |
| RESPONDENT: | Malcolm Lightfoot – self representation |
REASONS FOR DECISION
Background
Mr James Webb moved his family from the United Kingdom to work in Australia as a scaffolding supervisor for Malcolm Lightfoot, owner of a scaffolding business, in September 2008. Mr Webb was on temporary ‘457 visa’. This visa allowed him to work for four years anywhere in Australia for his supervisory employer, Mr Lightfoot, or another employer if he worked in exactly the same role. At the end of the four year period Mr Webb would have the opportunity to apply for permanent residency with support from a nominee employer.
From commencement of employment until around August 2009 Mr Webb and Mr Lightfoot had a cordial working relationship. However from that time the relationship quickly and severely deteriorated culminating in the cessation of Mr Webb’s employment on 13 October 2009.
Mr Webb and his family returned to the United Kingdom on 5 February 2010.
Mr Webb claims he was discriminated against in his employment because of his impairment, a back injury.
Mr Lightfoot claims Mr Webb was made redundant because of the financial difficulties of the business.
Circumstances and evidence
The dispute between Mr Webb and Mr Lightfoot firstly concerned conditions of work. Mr Webb describes an incident that arose out of the blue on 24 August 2009. Mr Webb claims Mr Lightfoot screeched up in his car, slamming on the brakes to a work location where Mr Webb and a co-worker, a first cousin of Mr Lightfoot also working on a 457 visa, were working. Mr Webb claims, and corroborated by the co-worker[1], Mr Lightfoot hurled abuse at them and threatened their employment and that they would be sent home to England.
[1] Exhibit 5.
On 11 September 2009 Mr Webb and his co-worker met with Mr Lightfoot to ascertain whether their working relationship was okay. The meeting concluded with the employment relationship intact and Mr Webb feeling confident of his position as Mr Lightfoot had told Mr Webb he would be his nominee employer for a permanent visa in the future.
On 14 September 2009 Mr Webb claims he hurt his back at work. He was unable to attend work the following day. Mr Webb obtained a medical certificate that recommended time off work until 24 September 2009 when he could return to work on light duties.
During this time off work Mr Webb made contact with WorkCover Queensland to initiate a claim. Mr Webb claims when he notified Mr Lightfoot of his claim Mr Lightfoot expressed concern about a rise in his insurance premiums and terminated the call.
[10] The WorkCover Communications Report[2] indicates when a case officer first contacted Mr Lightfoot he raised issues about whether the injury was work based.
[2] Exhibit 2.
[11] On 24 September 2009 Mr Webb returned to work. Mr Lightfoot told Mr Webb there were no light duties and declined to complete a form that would confirm the availability or unavailability of ‘light duties’. Mr Lightfoot sent Mr Webb out to supervise a job.
[12] Over the next week Mr Webb attended work and attempted to do what he could. He continued to try and discuss with Mr Lightfoot what work he could and couldn’t undertake because of his back injury but Mr Lightfoot refused to engage with him on the subject.
[13] On the morning of 5 October 2009 Mr Lightfoot complained to Mr Webb about work that he had not completed. In an angry and abusive manner, Mr Lightfoot told Mr Webb he was suspended for a week for insubordination. When Mr Webb inquired if he would be advised of this in writing, Mr Lightfoot wrote ‘F… OFF’ on a whiteboard in the office. The suspension was confirmed by letter dated 5 October 2009[3]. Mr Webb was paid during this week.
[3] Exhibit 3.
[14] Mr Lightfoot confirmed he was very angry about Mr Webb’s persistence about light duties.
[15] On 8 October 2009 Mr Webb attended a medical specialist. On his way home a WorkCover officer contacted him advising the specialist recommended he take further time off and undertake a back injury programme. Mr Webb advised WorkCover of his current work status.
[16] On 9 October 2009 WorkCover contacted Mr Lightfoot. The WorkCover Communication Record notes Mr Lightfoot advised Mr Webb was not at work because he was suspended due to “gross insubordination and stupidity”. He indicated to the case officer Mr Webb’s employment would be terminated. The Communication Record indicates the date was unknown because Mr Lightfoot had to do the relevant paperwork with the Department of Immigration. The Communication Record notes Mr Lightfoot demanded to know why Mr Webb would continue to receive payment if he was terminated. The Communication Record notes the officer advised Mr Webb would be paid until he left the country. The Communication Record reflects Mr Lightfoot lost his temper, disputed the claim, the injury and became highly abusive to the officer that escalated to the point of being unintelligible when he terminated the call.
[17] Mr Lightfoot confirmed he was very angry with WorkCover because they did not listen to him.
[18] On 13 October 2009 the Communication Record indicates Mrs Lightfoot contacted WorkCover to ascertain who was paying Mr Webb and from what date. The Communication Record notes it confirmed WorkCover was making payments to Mr Webb from 8 October 2009.
[19] A couple of days later Mr Webb received a letter from Mr Lightfoot, dated 13 October 2009[4], advising Mr Webb his position had been made redundant from that date.
[4] Exhibit 4.
[20] Mr Webb claims that his employment came to end because of his impairment, a back injury, he claims was sustained in the workplace. Mr Webb claims he had no knowledge of the business finances and had no discussion with Mr Lightfoot or anyone about potential redundancy. Mr Webb claims Mr Lightfoot used the word redundancy in the letter to meet the requirements of the Department of Immigration and that the true reason his employment came to an end was because he was a thorn in the side of Mr Lightfoot and incapable of doing the work he was employed to do because of his impairment. Mr Webb states he was given no support in regard to his injury and he was the only person who was made redundant. Mr Webb claims as a result of the actions of Mr Lightfoot he was humiliated in front of friends and family, suffered stress, and had to bear the costs of returning to England because he could no longer work.
[21] Mr Lightfoot states Mr Webb was made redundant because the business was under financial stress and it was a genuine redundancy.
[22] Mr Lightfoot provided a BOQ account statement[5], and a Westpac[6] and Citibank[7] credit card statement for periods between August and October 2009. These financial documents indicated a large overdraft and the use of credit cards for work related payments. Mr Lightfoot also provided a Statutory Declaration[8] from his accounts manager which noted in 2009 there was a distinct slow down in income and workload, that it was difficult to pay bills, that several staff left or were made redundant in 2009 and not replaced and that the business was left with a huge debtors list after dissolving a partnership. No other documents were provided to show the business’s profit or loss margins or balance sheet.
[5] Exhibit 6.
[6] Exhibit 7.
[7] Exhibit 8.
[8] Exhibit 9.
[23] Mr Lightfoot stated that he purchased the Queensland portion of the stock and name of the business he previously was in partnership with in July 2009 because it was the source from which most of his business arose. Around August 2009 he received a debtors list from that purchase for the sum of about $750,000.00. Mr Lightfoot stated it was around this time he decided he needed to take steps to restructure his business including making some of the six permanent positions the business consisted of redundant.
[24] Mr Lightfoot claims that all the staff, including Mr Webb, were aware of the financial difficulties of the business through general office conversation.
[25] Mr Webb was advised his position had been made redundant by letter dated 13 October 2009. Mr Lightfoot advised there were no other redundancies because three staff decided to resign around the same period. Mr Lightfoot advised that he currently has two permanent staff, the accounts manager and his cousin David Lightfoot who remains employed under a 457 visa. Other staff are employed casually or on contracts.
[26] David Lightfoot’s testimony at hearing confirmed that he and Mr Webb had been threatened with sacking and return home to England by Mr Lightfoot in August 2009; that he had heard from another employee that Mr Webb had been sacked; that he had heard no rumours about redundancy and was also of the view following the 11 September meeting with Mr Lightfoot that some problems had been sorted and that Mr Lightfoot had agreed there would be no problems with being a nominee employer for the purpose of his and Mr Webb’s visa.
[27] David Lightfoot also testified he would like to get out of his employment with Mr Lightfoot but could not because he is on a 457 visa and wants to settle in Australia. He also stated he has since had a work injury and required seven weeks off work as there were no light duties.
Legislation and issues
[28] The anti-discrimination law of Queensland prohibits discrimination on the basis of impairment[9]. Impairment is broadly defined and includes injuries that may or may not have been caused in the workplace. The impairment may be permanent or temporary.
[9] Anti-Discrimination Act 1991, s 7.
[29] Direct discrimination on the basis of impairment happens if a person treats a person with an impairment less favourably, than they would treat another person without the impairment in circumstances that are the same or not materially different[10]. The person’s motive for discriminating is irrelevant.
[10] Anti-Discrimination Act 1991, s 10(1).
[30] If there are 2 or more reasons why a person treats another person with an impairment less favourably, it is taken that the person treats the other person less favourably on the basis of the impairment if the impairment is a substantial reason for the treatment[11]. The fact that the person with the impairment may require special services or facilities is irrelevant.
[11] Anti-Discrimination Act 1991, s 10(4)
[31] Was Mr Webb treated less favourably in his employment because of his impairment compared to others without an impairment in circumstances that are the same or not materially different.
[32] If there was more than one reason for his treatment was his impairment a substantial reason for the actions.
Findings and conclusion
[33] Mr Webb was employed by Mr Lightfoot under a 457 Visa as a Supervisor Scaffolder. The relationship between Mr Webb and Mr Lightfoot was a cordial work one for the best part of Mr Webb’s first year of employment.
[34] Around August 2009 Mr Lightfoot’s business came under financial strain and particularly so following receipt of a large debtor’s list.
[35] Around the same time Mr Webb experienced for the first time abusive behaviour from Mr Lightfoot and threats of being sacked and sent back home to England. Mr Lightfoot gave no explanation for his outburst.
[36] Following the meeting on 11 September 2009 Mr Webb, along with his co-worker David Lightfoot, formed the view that the relationship was preserved as Mr Lightfoot had agreed to be his nominee employer for a permanent visa when required. Mr Lightfoot did not take the opportunity to raise the financial situation of the business nor the possibility of redundancy during the meeting.
[37] Mr Webb injured his back a few days later. He was unable to work so obtained a medical certificate and contacted WorkCover to make a claim. Mr Lightfoot voiced concerns about his insurance premiums rising and disputed whether the injury was caused through work.
[38] On return to work Mr Webb was unable to undertake all his work without causing severe pain or potentially causing further injury. Mr Lightfoot refused to engage in any meaningful discussion with Mr Webb about the way forward in light of his back injury and the associated limitations. Mr Lightfoot was too angry with Mr Webb for raising the possibility of working light duties.
[39] Mr Lightfoot gave Mr Webb no assistance in regards to his back injury and recovery and his anger culminated to a point that, in a belittling and abusive manner, Mr Webb was suspended for ‘insubordination’ for a week.
[40] Mr Lightfoot did not take the opportunity to discuss with Mr Webb any issues concerning the financial difficulties of the business nor his thoughts about any potential redundancy.
[41] Mr Lightfoot’s anger increased further when he was contacted by WorkCover. In an abusive and demanding manner he disputed the claim and questioned why WorkCover payments would continue if Mr Webb’s employment was terminated. WorkCover confirmed payments would cease when Mr Webb left the country.
[42] Mr Lightfoot did not raise the issue of redundancy with WorkCover. He realised he had to liaise with the Department of Immigration.
[43] Mr Lightfoot felt under significant financial pressure from his business and from that pressure gave consideration as to how his business could be restructured.
[44] Employees who became aware of the financial position of the business gained this information through general office conversation.
[45] Three employees, none of them on 457 visas, resigned around the time.
[46] Redundancy was not discussed with David Lightfoot who remains employed by Mr Lightfoot on a 457 visa.
[47] Mr Lightfoot did not discuss or advise Mr Webb formally or informally his thoughts around restructuring the business or how and when it would be implemented.
[48] Mr Webb was the only employee who was off work with an impairment when his employed came to an end by a purported redundancy.
[49] Mr Lightfoot abused Mr Webb because of his impairment and concurrent WorkCover claim.
[50] Mr Lightfoot denied Mr Webb an opportunity to reasonably discuss a return to work programme or light duties with him.
[51] Mr Lightfoot denied Mr Webb an opportunity to reasonably discuss the financial position of the business and the impact any redundancy or any other reason for the cessation of his employment would have on him given his impairment and the status of his working conditions in Australia.
[52] Mr Webb’s employment came to an abrupt end without adequate planning or explanation.
[53] Mr Lightfoot treated Mr Webb less favourably because of his impairment.
Damages / loss
[54] Mr Webb is entitled to be compensated for a contravention of the law.
[55] Mr Webb did not seek damages for economic loss. Mr Webb recognised that he received some payments through WorkCover and Mr Lightfoot when his employment came to an end. Mr Webb is pursuing other action in regard to loss of earnings based on the alleged workplace injury.
[56] Mr Webb made claim for the following losses:
a)$3,700.00 for return flights to the United Kingdom;
b)$2,300.00 for shipping personal effects;
c)$3,000.00 loss on the sale of his car;
d)$3,800.00 loss on the sale of new furniture;
e)$1,200.00 homeopathic treatment for stress for him and family;
f)$600.00 for telephone calls during the proceeding/hearing;
g)Pain and suffering, quantum at Tribunal’s discretion.
[57] Mr Lightfoot in summary stated: Mr Webb was paid; disputed the losses; noted no receipts had been provided; believed Mr Webb had time to sell things as it wasn’t a fire sale; and that he was bearing his own costs for attending.
[58] Mr Lightfoot stated he was given the wrong information by the Department of Immigration about the requisite time period before he was obligated to pay for Mr Webb’s return flights back to the United Kingdom.
[59] In regard to pain and suffering, Mr Lightfoot was of the view people are made redundant on a daily basis and thus didn’t see how Mr Webb had suffered any loss.
Conclusions
[60] I am satisfied Mr Webb incurred losses following the unlawful discrimination. Mr Webb and his family returned to the United Kingdom. They clearly incurred costs for flights and shipping. Although Mr Webb did not provide receipts the claims he has made are not unrealistic and I have no reason to doubt the accuracy. I Order Mr Lightfoot pay Mr Webb $3,700.00 and $2,300.00 for flights and shipping.
[61] Mr Webb and his family did not leave Australia until some five months after his employment came to an end, and although they would have been using the car and furniture close to the time of their departure, there was adequate time to lessen significant loss from their ultimate sale. I make no Order in regards to these losses.
[62] Mr Webb did not provide any receipts or other evidence in regards to the treatment and costs for homeopathic medicines for him and his family. I make no Order in regard to these costs.
[63] In relation to compensation for pain and suffering, I have considered a recent case of this Tribunal[12] that has some similar circumstances. The case concerns a different basis (pregnancy) for the unlawful discrimination to this one but nonetheless involved a very hasty cessation of the applicant’s employment whilst she was employed on a 457 visa. The Tribunal awarded that applicant $15,000.00 for pain and suffering. Mr Webb’s matter however differs a little because he has not provided further evidence as the Tribunal indicated the applicant had in that matter. I do however accept Mr Webb’s oral testimony that he was hurt and humiliated in front of his co-workers and suffered embarrassment in front of friends and family when he returned home to England when he had previously left hoping to settle permanently in Australia. I Order Mr Lightfoot pay Mr Webb $10,000.00 for the pain and suffering he experienced from the unlawful discrimination.
[12] Irvine & Porter v Mermaids Café & Bar Pty Ltd & Ingall (No2) [2010] QCAT 482.
[64] In relation to the telephone costs for the proceeding, I make no Order. Each party was self-represented and should bear their own costs.
[65] Finally, I Order that Malcolm Lightfoot pay James Dean Webb the total amount of $16,000.00 for unlawful discrimination within 60 days from the date of this Order.
[66] I Direct James Dean Webb supply Malcolm Lightfoot his banking details within 21 days from the date of this Order.
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