Wilson v Bridgeport Tyre Service Pty Ltd

[2012] QCAT 155

CITATION: Wilson v Bridgeport Tyre Service Pty Ltd and Ors [2012] QCAT 155

PARTIES:	Edward Wilson (Applicant)
v
Bridgeport Tyre Service Pty Ltd Ian Warry Greg Turner (Respondents)

APPLICATION NUMBER: ADL055-11

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 2 April 2012

DELIVERED AT: Brisbane

ORDERS MADE: Application to dismiss complaint is refused.

CATCHWORDS: ANTI-DISCRIMINATION – complaint of contravention of Anti-Discrimination Act 1991 – complaint based on attribute of family responsibilities – applicant’s employment terminated – respondent contended QCAT lacks jurisdiction

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Edward Wilson contends that he had been employed by Bridgeport Tyre Service Pty Ltd from 24 June 2010 until 27 August 2010 when his employment was terminated.  Mr Wilson contends that his employment was terminated in response to his request that he have some time off work because his wife was pregnant and due to give birth.  These contentions are disputed by the respondents. 

2. The respondents applied to QCAT on 5 December 2011 for an order to dismiss the complaint on the grounds that QCAT has no jurisdiction to consider this complaint as the issue of the termination of employment must be dealt with under the relevant employment legislation and not by QCAT.  The application by the respondents is misconceived.

3. The complaint by Mr Wilson is about the actions of the respondents which he alleges were in breach of the Anti-Discrimination Act 1991.  QCAT has jurisdiction to determine whether a person in the workplace has contravened the Anti-Discrimination Act 1991. If it is determined that the actions were in breach of that Act, QCAT can provide relief set out in section 209 of the Anti-Discrimination Act 1991. That relief includes ordering payment of compensation and ordering that an employer reinstate or re-employ a person. 

4. The legislative scheme for referral of employment related matters for the sole determination of Fair Work Australia specifically excludes matters dealt with in the Anti-Discrimination Act 1991.[1]  As a consequence, industrial matters referred to the Commonwealth by the State of Queensland did not include matters dealt with in the Anti-Discrimination Act 1991. The submission made by the respondents that QCAT has no jurisdiction to consider a complaint made about conduct in a workplace and which involved termination of employment is not correct.      

   [1]        Fair Work (Commonwealth Powers) and Other Provisions Act 2009.

5. Complaints about alleged discriminatory conduct in a workplace can be made under the Queensland Act or under the Australian Human Rights Commission Act 1986 (Cth). Mr Wilson has exercised his right to make a complaint under the Queensland Act and as his complaint was not successfully conciliated at the Anti-Discrimination Commission Queensland, the complaint was referred to QCAT.  This tribunal will continue to deal with his complaint until the complaint is finalised by hearing or lapses as a result of a settlement being reached by the parties. 

6. It is a very serious matter for a tribunal to dismiss a complaint about the contravention of a person’s human rights without allowing a hearing of that complaint to take place.  Dismissal before a hearing deprives the applicant of the opportunity to have a just determination of his complaint.  The application to dismiss the complaint is refused.  Mr Wilson should have the opportunity to have his complaint determined by QCAT.