Wright v Callvm Vacheron Wallace Bishop - [2018] QIRC 7

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Wright v Callvm Vacheron Wallace Bishop and Anor [2018] QIRC 007
PARTIES:	Nicole Maree Wright (Applicant) AND Callvm Vacheron Wallace Bishop (First Respondent) And Constantin Cross Pty Ltd as Trustee of the Constantin Cross Trust (Second Respondent)
CASE NO:	AD/2017/20
PROCEEDING:	Referral of Complaint
DELIVERED ON:	23 January 2018
HEARING:	13 November 2017 (Brisbane) 1 December 2017 Applicant's submissions 11 December 2017 Respondents' submissions 15 December 2017 Applicant's submissions in reply
MEMBER:	Deputy President Swan
ORDERS:	1. The Complaint is Dismissed.
CATCHWORDS:	ANTI-DISCRIMINATION - DISCRIMINATION ON THE BASIS OF SEX - Applicant's complaint relates to discrimination on the basis of "sex" in the workplace - threshold issue relates to attribute of "sex" and matters identified by the Applicant i.e. domestic violence - domestic violence cannot properly be described as characteristics as an attribute of "sex" under the Act - the complaint is dismissed.
CASES:	Anti-Discrimination Act 1991 - ss 6, 7, 8, 10, 11, 15, 16, 136, 141, 166, 204 and 276 Domestic and Family Violence Protection Act2012 (Qld) - s 13 Lyons v The State of Queensland [2016] HCA 38 Woodforth v State of Queensland [2017] QCA 100 Four yearly review of modern awards - Family & Domestic Violence Leave Clause [2017] FWCFB 3494
APPEARANCES:	Ms S. Robb of Counsel, instructed by Ms M. Alexander of Legal Aid for the Applicant. Ms C. Hartigan of Counsel, instructed by Mr S. Miotti of Romans & Romans Lawyers, for the First and Second Respondents.

DECISION

INTRODUCTION

The Applicant viz., Ms Nicole Wright, lodged a complaint in the Anti‑Discrimination Commission Queensland on 18 April 2017. On 10 May 2017, the complaint was accepted pursuant to ss 136 and 141 of the Anti-Discrimination Act 1991 (the ADA). The complaint has been referred to the Queensland Industrial Relations Commission (the Commission) pursuant to s 166(1)(a) and s 276(2)(a) of the ADA.

The Referral Notice filed with the Commission on 2 August 2017, relevantly states that the "complaint related to or includes work or the work-related area" and was treated as indicating "discrimination on the grounds of sex in the work area as per s 7(a), s 7(h), s 10, s 11 and s 16" of the ADA".

It should be noted however, that the Applicant did not subsequently pursue the issue of "impairment" as per s 7(h) of the ADA. The Applicant's written submissions of 1 December 2017 (paragraph 2) stated as follows:
"The complainant does not press her allegation that she was dismissed because of depression or anxiety constituting unlawful discrimination."
The First Respondent viz., Mr Callvm Vacheron Wallace Bishop and Second Respondent viz., Constantin Cross Pty Ltd as Trustee of the Constantin Cross Trust (the Respondents), have identified a threshold issue which requires determination.
WITNESSES

Witness for the Applicant were as follows:
· Ms Nicole Wright, the Applicant; and
· Ms Melinda Walton, Acting Senior Consultant, Employment and Training, Help Disability Support Services.
Witnesses for the Respondents were:
· Mr Callvm Vacheron Wallace Bishop, the First…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wright v Callvm Vacheron Wallace Bishop

Details

AGLC: Wright v Callvm Vacheron Wallace Bishop [2018] QIRC 7
Case: [2018] QIRC 7
Decision Date: 23 January 2018

CaseChat Overview and Summary

The applicant in this case, Wright, filed a complaint with the Australian Human Rights Commission alleging discrimination on the grounds of sex. Wright claimed that she faced discrimination in the workplace due to her experience of domestic violence, which she argued was a characteristic associated with being female. The respondent, Callvm Vacheron Wallace Bishop, contested the claim on the basis that domestic violence could not be classified as an attribute of sex under the relevant legislation. The Australian Human Rights Commission was tasked with determining whether Wright's complaint met the threshold requirements for discrimination on the grounds of sex.

The central legal issue in this case was whether domestic violence could be considered an attribute of sex under the relevant anti-discrimination laws. Wright argued that domestic violence disproportionately affected women and that the negative assumptions associated with women's experience of domestic violence did not apply to victims of other types of violence in the same way. However, the Commission found that while domestic violence did disproportionately affect women, it was not a characteristic that women generally have or that served to identify a person as being female. Additionally, the Commission determined that Wright's inability to keep personal issues out of the workplace and prevent them from impacting on her work was not a characteristic of being female.

The Commission dismissed Wright's complaint, finding that domestic violence could not be classified as an attribute of sex under the relevant legislation. The Commission accepted the respondent's argument that domestic violence was a gendered phenomenon that disproportionately affected women, but did not accept that it was a characteristic that women generally have or that served to identify a person as being female. The Commission also found that Wright's inability to keep personal issues out of the workplace and prevent them from impacting on her work was not a characteristic of being female.

The Commission dismissed Wright's complaint and found that the respondent's threshold issue was accepted. The Commission ordered that the complaint be dismissed.

Orders

Orders of the court

1. The Complaint is Dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In supporting its construction of the term "domestic violence", the Applicant referred to statements made by Judicial Officers in the "National Domestic and Family Violence Bench Book"[7] (the Bench Book), demonstrating that the effects of domestic violence are well known and that women are disproportionately the victims of such violence.[7] National Domestic and Family Violence Bench Book, type="1">The Applicant has submitted various commentary from the Bench Book, including the following at section 4.4.1 Women: [footnotes omitted]"Prompted by growing academic, government and community attention to the range of complex issues associated with domestic and family violence, Australian researchers have considered the gendered nature of this form of violence. Claims that domestic and family violence is gender-equal or gender-neutral are consistently refuted by empirical research demonstrating that, while sometimes women are violent in their intimate relationships, overwhelmingly it is men who are more likely than women to be violent towards their partners.…Further research explains that the gendered framing of domestic and family violence recognises that this form of violence occurs within the wider context of social and economic disadvantage and inequality experienced by women in relation to men, which may mean that for some women multiple factors may intersect so as to heighten their vulnerability."Similar commentary had been made in the Queensland Government Report "Not Now, Not Ever"[8] which states, inter alia, that:"The majority of people who experience domestic and family violence in Queensland are women… the most common pattern of domestic and family violence is that it is committed by men against women." [8] Department of Communities, Not Now, Not Ever, 2015, <https: gateway/campaigns/end-violence/about/special-taskforce/dfv-report-vol-one.pdf>In a working paper titled "Domestic Violence Victims at Work - the Role of Anti-Discrimination Law"[9] published by the University of Sydney, it is stated:"The harm inflicted by the violence can often be compounded by discrimination experiences in the workplace. The types of workplace harm include (a) hostility, assumptions and stereotyping based on negative attitudes about victims of domestic violence; and (b) inflexibility in policies and practices that impacts particularly harshly on workers who experience domestic violence. Anti-discrimination laws are designed to address these kinds of workplace harms by promoting normative and behavioural change so as to enable the equal participation and dignity of members of identified marginalised groups". [9] Smith, Belinda and Orchiston, Tashina, Domestic Violence Victims at Work: A Role for Anti-Discrimination Law? (July 13, 2012). Australian Journal of Labour Law, Vol. 25, No. 3, pp. 209-236, 2012; Sydney Law School Research Paper No. 12/46 Also, commentary has been made by a Full Bench of Fair Work Australia in its four yearly review of modern awards Family & Domestic Violence Leave Clause[10]. The Full Bench stated that:"We further accept that whilst men can experience family and domestic violence, family and domestic violence is a gendered phenomenon which means it disproportionally affects women.…We do not accept the submission that the impact on those employees who experience family and domestic violence is no different to impact on employees who experience other forms of violence. While it may be true that a person who experiences a physical assault has the same physical injuries irrespective of the identity of the assailant we are satisfied that the relationship that the employee has to the assailant when the assailant is an intimate partner or was a former intimate partner adds an extra complexity not found in other assaults."[10] 4 yearly review of modern awards - Family & Domestic Violence Leave Clause [2017] FWCFB 3494 (3 July 2017) at [49] and [50]In summary, the Applicant stated that not only did domestic violence disproportionally affect women, but that there are negative assumptions associated with women's experience of domestic violence that do not attach to victims of other types of violence in the same way.CONCLUSIONI have accepted the Respondents' submissions concerning ss 8(a) and 8(b) of the ADA.Section 8(a) "a characteristic that a person with any of the attributes generally has"While it is accepted that the proportion of domestic violence victims are female, it is clear that women are not the only victims of domestic violence or that the majority of women are victims of domestic violence. The statistical data provided by the Respondents is unchallenged and supports its propositions. It is not accepted that being a victim of domestic violence is a characteristic that women generally have. There is nothing in the Applicant's submissions that supports this proposition. It is also not accepted that being a victim of domestic violence is a feature or quality of being a woman that serves to identify a person as being a woman.The Applicant's complaint pursuant to s 8(a) of the ADA is dismissed.Section 8(b) "a characteristic that is often imputed to a person with any of the attributes"Similarly, the assertions made by the Applicant concerning s 8(b) of the ADA are dismissed. There is nothing in the case as submitted by the Applicant to support the proposition that the Applicant was discriminated against on the basis of the alleged characteristic of having an inability to reasonably keep personal issues out of the workplace and to reasonably prevent personal issues from impacting on work being performed.The Respondents claim in their final submissions on s 8(b) as follows:"The Applicant has not made submissions with respect to this argument in the outline of submissions. There is no evidence or analysis relied on by the Applicant to support that proposition. … This was not put to Mr Bishop under Cross Examination". This view is accepted by the Commission as accurately reflecting the Applicant's case.It is determined that the Applicant's claim that being a victim of domestic violence and/or an inability to reasonably keep personal issues out of the workplace and to reasonably prevent personal issues from impacting on work as being a characteristic of being female, is not accepted.The Respondent's threshold issue is accepted and the Applicant's complaint is dismissed.

Ratio Decidendi

Legal Principle Established

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