CITATION: Leggett v BHP Coal Pty Ltd & Anor [2017] QCAT 77

PARTIES: Scott Leggett

(Applicant) v BHP Coal Pty Ltd

Garry Hughes (Respondents)

APPLICATION NUMBER: ADL042-15

MATTER TYPE: Anti-discrimination matters

HEARING DATE: 18-21 April 2016 22-23 June 2016 26-27 July 2016

HEARD AT: Brisbane

DECISION OF: Member Favell

DELIVERED ON: 13 March 2017

DELIVERED AT: Brisbane

ORDERS MADE: 1. The application is dismissed.

CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION – GENERALLY – DIRECT DISCRIMINATION – GROUNDS OF DISCRIMINATION – where applicant was engaged in Trade Union Activity – Where applicant employed by BHP Coal Pty Ltd – where vicarious liability - whether discrimination on the basis of the attribute of Trade Union Activity HUMAN RIGHTS – DISCRIMINATION – GENERALLY – DIRECT DISCRIMINATION – GROUNDS OF DISCRIMINATION – where applicant was a parent – whether discrimination on the basis of the attribute of parental status HUMAN RIGHTS – DISCRIMINATION – DIRECT DISCRIMINATION – GROUNDS OF DISCRIMINATION – where applicant had family responsibilities – whether discrimination on the basis of the attribute of family

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responsibilities HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – whether the applicant was victimised Anti-Discrimination Act 1991 (Qld) s 7, s 8, s 10, s 15, s 129, s 130, s 132, s 133, s 204, s 205, s 206, s 209 BMA Enterprise Agreement 2012 Fair Work Act 2009 (Cth) s 14, 361 Coal Mining Health and Safety regulation 2001 (Qld) s 59, s 94, s 103, s 108, s 141 Coal Mining Safety and Health Act 2009 (Qld) s 55 Gardener v Norcott [2004] QADT 39 Blair v Goldpath Pty Ltd & Callinan [2010] QCAT 483 Willmott v Woolworths Ltd [2014] QCAT 601 Myatt v State of Queensland (Queensland Police Service) [2016] FCA 133 Sharma v Legal Aid (Qld) (2002) 225 IR; [2002] FCAFC 196 G v H [1994] HCA 48; (1994) 181 CLR 387 Qantas Airways v Gama [2008] FCAFC 69; (2008) 167 FCR 537 Ewin v Vergana (No 3) (2013) 238 IR 118; [2013] FCA 1311 Chen v Monash University [2015] FCA 130 Kiefel v State of Victoria (Department of Education and Early Childhood Development) [2013] FCA 1398 Henderson v Queensland (2014) 315 ALR 188; [2014] HCA 52 Jones v Dunkel [959] HCA 8; (1959) 101 CLR 298 at 304 Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278 Department of Health v Arumugam [1988] VR 319 McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4 State of Victoria v McKenna [1999] VSC 310 McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 KLK Investments Pty Ltd v Riley (1993) 10 WAR 523

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Everett v Copperart Pty Ltd [1977] QDAT 11 Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QSC 518 Edwards v The Queen (1993) 178 CLR 193 Du Bois-Hammond v Raging Thunder Pty Ltd and Others [2004] QADT 27 Chivers v State of Queensland [2011] QCAT 357 Kong v Commonwealth (Australia Post) [1997] AusHRC 3 Copeman v Derbarl Yerrigan Health Science [2007] AusHRC 37 Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Ministry of Defence v Jeremiah [1980] 1 QB 87 Clay v Cross (Quarry Services) Limited v Fletcher [1987] 1 WLR 1429 Cockin v P & N Beverages Australia Pty Ltd & Ors [2006] QADT 42 Purvis v New South Wales 217 CLR 92 Webb v Sunshine Coast Hospital and Health Service and Anor [2015] QCAT 31 Bishop v Gedge & Rudd [2008] QADT 17 National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 45 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited [2015] FCA 1041 TT and Ors v Lutheran Church of Australia Queensland District and Ors [2013] QCAT 48 Dickie v Newman [1998] QADT 11 Porter v Matson & Locomotive International Pty Ltd [1997] QADT 2 Skellern v Colonial Gardens Resort Townsville & Attlee [1996] QADT 4 Johnson v Gloria Marshall Figure Salons of Australia [1999] QADT 6

APPEARANCES:

APPLICANT: Scott Leggett

RESPONDENT: BHP Coal Pty Ltd Garry Hughes

REPRESENTATIVES:

APPLICANT: Mr B.G. Docking of Counsel instructed by J.

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Virine of Hall Payne Lawyers

RESPONDENT: Mr C. Murdoch of Counsel instructed by Ms Caitlyn Ryan of Ashurst Australia

REASONS FOR DECISION [1] Mr Leggett claims that Mr Hughes and BHP Coal Pty Ltd (BHP) at various

and numerous times discriminated against him because of his trade union activities and his parental status or family responsibilities. He also claims he was victimised and BHP breached section 124 of the Anti Discrimination Act 1991 (Qld).

[2] During periods from October 2012 to 15 September 2015 Mr Leggett was employed at the Peak Downs mine by BHP as a continuous shift operator in the dragline department and had been so employed since 2003.

[3] Peak Downs mine is and was an open cut coal mine located in the Bowen Basin in Queensland which used dragline and truck/shovel fleets.

[4] An important part of the mine is the use of draglines. Each costs up to $300 million. They are able to move large volumes of material quickly at a comparatively low cost. Each is required to complete specific work in accordance with the production schedule prepared twelve months in advance and supplemented by a 12 week plan which is reviewed weekly. Continuance of operation of the draglines is very important. The potential cost of having a dragline out of operation for one hour is approximately $19,424.1 If a dragline is not operating there is an effect on production, coordination of draglines, composition of coal blends and other departments in the mine. The mine will only cease operating draglines due to maintenance, unforeseen or exceptional circumstances and operator absence as a result of unforeseen, unexpected operator absences which cannot otherwise be covered.2

[5] The position of dragline operator is an important one which carries with it a high degree of trust. It requires specialist skills and 18 months of training and years of practice.3 Efficiency gained from knowledge of crew members, other operators near the dragline and the particular pit is important to operation of the mine and the second respondent preferred to avoid to the maximum extent possible, changing the composition of the crews and to avoid placing new people in the dragline department wherever possible.4

[6] In 2014 there was an organisation restructure which covered the Peak Downs Mine and introduced zero based manning which meant that there were be no spare operators to cover labour shortages caused by

1 Exhibit 19 at [61]. 2 Exhibit 20 at [54]. 3 Exhibit 19 at [45] to [49]; Transcript Page 1-73 line 40. 4 Exhibit 19 at [44].

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absences. Such absences would be covered by operators in the Mines Services Department5 or labour hire.6

[7] The BMA Enterprise Agreement 2012 (the enterprise agreement) operative from 2 November 2012 covered and applied to Mr Leggett and BHP as a national system employer at the mine within the meaning of section 14 of the Fair Work Act 2009 (Cth).

[8] Mr Leggett was an employee representative for the Construction, Forestry, Mining and Energy Union (CFMEU) pursuant to clause 38 of the BMA Enterprise Agreement 2012 since 2003 and was the secretary/treasurer of the Peak Downs Lodge of the CFMEU from 2010. He was elected to the central council of the Queensland District Branch of the Mining and Energy Division of the CFMEU on 1 July 2012.

[9] To the end of 2013 Mr Leggett’s shift pattern was two day shifts, two night shifts, two days off, two day shifts, two night shifts and six days off. After December 2013 his shift pattern was three day shifts, three night shifts and six days off.

[10] There were over 1000 people engaged in work at the mine. Many of them had the attribute of trade union activity.

[11] There were two shifts per day that ran from 6.30am to 7pm (day) and 6.30 pm to 7am (night).

[12] There were four crews on each shift (A, B, C and D) and only one crew works at a time on each dayshift and nightshift.

[13] Mr Leggett was in C crew and reported to the Supervisor for Draglines, C Crew.7 The Supervisor is usually the person who conducted the pre-start meeting for each shift but on occasions a step-up supervisor did so when the Supervisor was absent. He did not report directly to the Dragline Superintendent.8

[14] Mr Leggett gave evidence that the Supervisor was responsible for approving leave requests such as annual and long service leave9. Requests for parental and trade union leave were made to HR. He also accepted that the supervisor was responsible for assigning crew members to machines, managing requests for employees to attend training such as mines rescue training, necessary shift changes and monitoring the performance of the crew and relevant production targets.10

[15] The various supervisors for C crew were Hector Heumiller, Mark Farrell and John Maher.

5 Statement Daniel Iliffe at [74]. 6 Exhibit 19 at [68]. 7 Transcript Page 1-70 Line 10. 8 Transcript Page 1-70 line 5. 9 Transcript Page 1-70 line 40. 10 Transcript Page 1-71 line 10-15.

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[16] Mr Hughes was employed at the mine as a Dragline Superintendent and from late 2012 was responsible for Open Cut Examiners (OCEs) engaged at the mine. He gave evidence that he was responsible for the safety of all the operators in the Dragline Department at the mine and for ensuring that that department was on budget and meeting the safety, volume and cost objectives of the mine.11 He was not responsible for the personal or individual career development of employees.12

[17] Mr Hughes had been an official of the CFMEU. Members of his family who work at the mine are members of the Union.

[18] He was not responsible for approving leave requests, assigning work for dragline operators or making decisions about releasing operators for training.13

[19] Mr Iliffe gave evidence that apart from safety the most important priority of the mine was to ensure continuity of production in accordance with the Production Schedule14 and that since late 2012 because of an emphasis on increasing productivity and reducing costs due to a decline in market conditions the training and career development of employees were secondary to the Mine’s production requirements.15

[20] An OCE is a person who has the role of ensuring the safety and health of workers at the mine. An OCE is a statutory position appointed under section 59 of the Coal Mining Health and Safety Regulation 2001 (Qld) and has responsibilities and duties under sections 94, 103 through to 108 and 141 of that regulation. An OCE utilises skill and training specific to the position being the Certificate IV in Surface Coal Mining (Open Cut Examiner, Open Cut Examiner’s Certificate of Competency and S1, S2, S3 and G2 training. The position is deemed as a supervisory position for the purposes of section 55 of the Coal Mining Safety and Health Act 2009 (Qld) (CMSH Act).

[21] The OCE on duty has the responsibility of ensuring the safety at the mine under the CMSH Act.16 One of the responsibilities of an OCE is to investigate accidents and incidents at a mine. An OCE must act without fear or favour of the consequences in respect of personal relationships and must be independent of the personal views of the workers.17 The OCE must be able to rise above the fray and make decisions about safety independently, regardless of the workplace consequences for any individual coal mine worker.18

11 Transcript Page 3-57 line 15-20. 12 Transcript Pahe 3-57 line 15-20. 13 Transcript Page 5-42 line 35, Page 5-43 line 20 and Page 5-47 line 10. 14 Exhibit 20 at [72]. 15 Exhibit 20 at [68] –[71] and [72]. 16 Exhibit 20 at [92], Exhibit 19 at [74]. 17 Transcript Page 1-99 line 5 -15. 18 Transcript Page1-99 line 20.

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[22] In 2011 the majority of the OCE duties at the mine were performed by contractors and then there were only two OCEs employed by BHP.19 Because of a shortage of OCEs BHP offered ten employees OCE training in 2012. Those employees were identified after expressions of interest were submitted and an informal assessment carried out along with an interview. Mr Leggett was one of the employees offered training.

[23] Although ten persons were trained there were not 10 vacant OCE positions at the mine at that time.

[24] Effective from about 27 February 2012 Mr Leggett was offered and accepted a place in the OCE program for the mine. He was one of the first five participants in the program.

[25] When it was determined that Mr Leggett should be one of first five trainees the crew numbers within the Dragline Department were such to allow him to be released from his substantive position to attend the course without adversely impacting on the mine’s production requirements.20

[26] The program consisted of a written exam and an oral examination. Mr Leggett said he obtained a 99.64% result in the written exam and an 89% pass rate in the oral exam.

[27] On 28 September 2012 Mr Leggett obtained his OCE Certificate of Competency.

[28] In September or October 2012 a further OCE program was commenced with a further five participants.

[29] In early 2012 the coal market began to decline and the focus of BHP shifted to cost reductions.

[30] From 2013 the OCEs reported to the Dragline Superintendent21. Prior to that they reported to the Process Control Superintendent.22

[31] The Site Senior Executive (SSE) at the Mine has an obligation under the Coal Mining Safety and Health Act to appoint OCEs to carry out particular responsibilities prescribed in the Regulations.

[32] The SSE also had to ensure that there was at least one OCE present at the mine when mining activities were carried out23 24. If there was no OCE present mining activities and production ceased.

[33] At the beginning of 2013 there were three OCE positions available to be filled at the mine. In October 2012 Mr David Mayne decided to interview those persons who had completed the first training course.

19 Statement David Mayne at [13] –[14]; Statement Jodie Dubois at [17]. 20 Statement Jodie Dubois at [30]. 21 Exhibit 19 at [83]. 22 Exhibit 45 at [11]. 23 Exhibit 20 at [91] and exhibit 19 at [77] and Transcript Page 1-96. 24 Exhibit 20 at [91].

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[34] There was an application and merit based selection process conducted for those three positions.25

[35] The interview panel was made up of Mr Mayne, Ms Chantel Jones from the HR Department and Mr Tim Bird operator from the Post-Strip Department.

[36] Interviews were conducted on 22 September 2012. A template interview document entitled “Assessment Centre Screening Guide: Mine Employee – Operator (OCE) was used.26

[37] It was agreed that the development of employees was provided for in clause 8.1 of the Enterprise Agreement so as to ensure that all employees had equitable access to training and development opportunities in order to provide job security, job satisfaction, workplace flexibility and increased productivity.

[38] The Anti-Discrimination Act 1991 (Qld) (ADA) prohibits discrimination on the basis of the following attributes— (d) parental status; (k) trade union activity; (o) family responsibilities.27

[39] The Dictionary in the ADA defines family responsibilities, of a person, to mean the person’s responsibilities to care for or support a dependent child of the person; or any other member of the person’s immediate family who is in need of care or support and parental status to mean whether or not a person is a parent.

[40] It was agreed that for the purposes of section 7(k) of the ADA Mr Leggett had the attribute of trade union activity.

[41] It was admitted that from 7 June 2013 Mr Leggett had the attribute of parental status (section 7(d)) because he was a parent and in respect of the respective periods of parental leave taken by Mr Leggett he had the attribute of family responsibilities (section 7(o)).

[42] Section 8 of the ADA provides:

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.

25 Statement David Mayne at [10]. 26 Statement David Mayne at [34]; Statement of Chantel Jones at [27]. 27 Section 7.

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Example of paragraph (c)— If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.

[43] The ADA by section 9 prohibits direct and indirect discrimination.

[44] Section 10 of the ADA provides for the Meaning of direct discrimination as:

(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.

Example— R refuses to rent a flat to C because—

C is English and R doesn’t like English people

C’s friend, B, is English and R doesn’t like English people

R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct.

(2) It is not necessary that the person who discriminates considers

the treatment is less favourable

.

(3) The person’s motive for discriminating is irrelevant.

Example— R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.

(4) If there are 2 or more reasons why a person treats, or proposes

to treat, another person with an attribute less favourably, the

person treats the other person less favourably on the basis of

the attribute if the attribute is a substantial reason for the

treatment.

(5) In determining whether a person treats, or proposes to treat a

person with an impairment less favourably than another person

is or would be treated in circumstances that are the same or

not materially different, the fact that the person with the

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impairment may require special services or facilities is

irrelevant.

[45] Section 15 (b) and (f) of the ADA provides that a person must not

discriminate in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or by treating a worker unfavourably in any way in connection with work.

[46] Mr Leggett complains of numerous instances of direct discrimination by Mr Hughes and BHP.

[47] Section 132 of the ADA states the Act’s vicarious liability purpose and how it is to be achieved as:

(1) One of the purposes of the Act is to promote equality of opportunity for everyone by making a person liable for certain acts of the person’s workers or agents.

(2) This purpose is achieved by making a person civilly liable for a contravention of the Act by the person’s workers or agents.

[48] Section 133 of the ADA provides for Vicarious liability as follows:

(1) If any of a person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.

(2) It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.

[49] It was agreed that BHP was vicariously liable for Mr Hughes for the purposes of section 133 of the Anti-Discrimination Act 1991 (Qld). (ADA).

[50] Mr Leggett also complains that he was the subject of victimisation by BHP because he was not appointed to a permanent OCE role.

[51] Section 129 of the ADA provides that one person must not victimise another person.

[52] Section130 of the ADA provides the meaning of victimisation as:

(1) Victimisation happens if a person (the respondent) does an act, or

threatens to do an act, to the detriment of another person (the

complainant) –

(a) because the complainant, or a person associated with, or

related to, the complainant –

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refused to do an act that would amount to a contravention of

the Act; or

in good faith, alleged, or intends to allege that a person

committed an act that would amount to a contravention of the

Act; or

is, has been, or intends to be, involved in a proceeding under

the Act against any person; or

(b) because the respondent believes that the complainant, or a

person associated with, or related to, the complainant is doing,

has done, or intends to do one of the things mentioned in

paragraph (a)(i), (ii) or (iii).

(2) In this section, a reference to involvement in a proceeding under the

Act includes –

(a) making a complaint under the Act and continuing with the

complaint, whether by investigation, conciliation, hearing or

otherwise; and

(b) involvement in a prosecution for an offence against the Act;

and

(c) supplying information and producing documents to a person

who is performing a function under the Act; and

(d) appearing as a witness in a proceeding under the Act.

[53] Section 204 of the ADA provides that for the Burden of proof the general principle is that It is for the complainant to prove, on the balance of probabilities, that the respondent contravened the Act, subject to the requirements in sections 205 and 206.

[54] Section 205 provides that in a case involving an allegation of indirect discrimination, the respondent must prove, on the balance of probabilities, that a term complained of is reasonable.

[55] Section 206 provides that if the respondent wishes to rely on an exemption, the respondent must raise the issue and prove, on the balance of probabilities, that it applies.

[56] Section 209 provides for the orders the tribunal may make if a complaint is proven: (1) If the tribunal decides that the respondent contravened the Act, the tribunal may make 1 or more of the following orders—

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(a) an order requiring the respondent not to commit a further contravention of the Act against the complainant or another person specified in the order;

(b) an order requiring the respondent to pay to the complainant or another person, within a specified period, an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention;

(c) an order requiring the respondent to do specified things to redress loss or damage suffered by the complainant and another person because of the contravention;

(d) an order requiring the respondent to make a private apology or retraction;

(e) an order requiring the respondent to make a public apology or retraction by publishing the apology or retraction in the way, and in the form, stated in the order;

(f) an order requiring the respondent to implement programs to eliminate unlawful discrimination;

(g) an order requiring a party to pay interest on an amount of compensation;

(h) an order declaring void all or part of an agreement made in connection with a contravention of this Act, either from the time the agreement was made or subsequently.

(3) An order may be made under subsection (1)(b) in favour of a person on whose behalf a representative complaint was made, without the necessity for the person to make an individual complaint, if on the evidence before it the tribunal is able to assess the loss or damage of the person.

If, in respect of a representative complaint—

(a) the tribunal decides that the respondent contravened the Act; but the tribunal is unable, on the evidence before it at the hearing of the representative complaint, to assess the loss or damage of a person on whose behalf the complaint was made; the person may subsequently make a request for the tribunal to assess the person’s loss or damage.

(4) In this section, the specified things a respondent may be required to do, include, but are not limited to—

(a) employing, reinstating or re-employing a person; or

(b) promoting a person; or

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(c) moving a person to a specified position within a specified time.

(5) In this section— damage, in relation to a person, includes the offence, embarrassment, humiliation, and intimidation suffered by the person.

[57] Counsel for Mr Leggett has in his outline of submissions categorised the complaints into 15 categories. I will deal with each category separately. He has urged me, in oral submissions, to have particular regard to exhibits 1, 2, 42, 5, 40, 6, and 20, in order to “understand the nature of the claims and responses”.28

[58] Counsel for Mr Leggett relies on various case law for various propositions. It is appropriate to consider those propositions under each category in which they are advanced.

[59] CATEGORY 1: Mr Leggett was asked orally to supply information on which unlawful discrimination might be based, namely, unnecessary information in relation to his trade union activities during the selection process for a permanent OCE role.

[60] The applicant contended that BHP in breach of section 124(1) of the ADA sought unnecessary information.

[61] Section 124 provides:

(1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.

(2) Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by—

(a) an existing provision of another Act; or (b) an order of a court; or (c) an existing provision of an order or award of a court or tribunal

having power to fix minimum wages and other terms of employment; or

(d) an existing provision of an industrial agreement; or (e) an order of the tribunal.

(3) It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.

(4) In this section—

28 Transcript Day 8 Page 52 Line 9.

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existing provision means a provision in existence at the commencement of this section. Example— An employer would contravene the Act by asking applicants for all jobs whether they have any impairment, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.

[62] In the applicant’s further amended contentions29 the applicant

particularised the allegation as: “BHP Coal sought the provision of unnecessary information from Mr Leggett in relation to his trade union activity during the selection process for a permanent OCE role - During the interview on 9 June 2015 Mr Iliffe asked Mr Leggett questions to the effect: if you are the OCE on shift and there is an incident or accident and a person involved asked you to be an employee representative what would you do? And how would you manage your role as OCE around enterprise agreement time?”

[63] BHP objected to the contention because it was vague, imprecise and embarrassing and denied that questions to the effect as particularised were asked and denied acting in contravention of section 124(1) of the ADA.

[64] Counsel for Mr Leggett submitted that three cases “demonstrate that Mr Leggett has a very strong case” and he submitted that he had an insurmountable case in respect of Category 1.

[65] In part he relied on Gardener v Norcott [2004] QADT 39 and in particular the following passages:

13. The complainant said he called the number provided and it was answered by a female person who identified herself as Bronwyn. It is not in dispute that this was the first respondent. He told her he was ringing about the job that was advertised in the newspaper and apparently pointed out to her the misprint of the word “chef”. He said that he told her that he was an experienced, qualified chef and liked the fact that the job was offering day shifts. His evidence was that the first respondent then asked him “how old are you?” to which he replied, “I am over 21”, somewhat troubled by the question having felt he missed employment opportunities in the past due to his age. The complainant said further that the first respondent then told him they were looking for someone to fit into their team. His evidence was that the first respondent then asked him if he could drop off a copy of his resume to her at the café. He said he agreed to that and asked for her name and address of the café, which the first respondent then gave him.

29 Exhibit 1 paragraph 71M.

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14. His evidence was that he then went straight down to the café and met with the first respondent. He said that he asked her if she had the time to talk to him about the job as there were no customers in the café, and that she then accommodated this request.

15. The complainant’s evidence was that during the course of the discussion with the first respondent she raised the fact that he had said he was over 21 when she asked him his age. He replied that he was over 21 and said that the first respondent then asked him again how old he was. He said that this time he told her his age, that being 46. His evidence was that the first respondent then said that she only had a young team. He said he replied that he was happy to work with young people. He said he was introduced to the chef who was working there that day and was shown around the kitchen. He said that the first respondent then told him that she would call him in the subsequent few days to set up a trial with a view to starting work the next week. His evidence was that he did not hear from the first respondent again and that this greatly disappointed him. He believed that he had not been given the job because he was 46 years old. He said that this hurt and humiliated him. He said that he continued to apply for jobs as a chef and ultimately got one at a city hotel about two months later.

…

33. As I have already noted, I found that the first respondent asked the complainant his age once during the telephone conversation and, more importantly at this point, again during the meeting that I have found did take place at the café. Whilst the question asked once during the phone conversation could, objectively reviewed, have been linked to matters pertaining to the particular rate of pay to be paid to the successful applicant, asked again at a face to face meeting after the complainant has already stated he is a qualified chef over 21 years of age (a fact that would have been obvious upon meeting him) it clearly did constitute a request for information on which unlawful discrimination might be based. The first respondent by denying that the meeting even took place has not even proffered a defence that the information was reasonably required for a purpose that did not involve discrimination, Accordingly, I find that the first respondent contravened section 124 of the Act as well.

(the emphasis is that of Counsel for the applicant)

[66] He also relied upon Bair v Goldpath Pty Ltd & Callinan [2010] QCAT 483 and in particular the following passages with emphasis on the bold:

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[5] The Respondents admit to having asked Mr Bair about his age, parental status, and general health (i.e. number of sick days taken by Mr Bair in his previous employment). However, the Respondents claim that the information they obtained did not inform their decision about which candidate to ultimately offer the position to. Instead, the Respondents claim these questions were asked for the following reasons: …

[10] I agree with Mr Bair that the Respondents’ questions relating to his age and parental status contravened s124 of the Act. The Respondents have openly admitted that the questions were asked. There was no justifiable basis upon which these questions could reasonably be required for a purpose that did not involve discrimination.

[11] The Respondents have explained, and I accept their explanation, that the questions were asked due to lack of awareness about the Act in this regard. Mrs Callinan, who was the main interviewer for the Respondent, had not (at that stage) undertaken any formal or informal human resources training. She gave evidence at the hearing that she was working from a list of suggested interview questions that the Respondent had obtained from industry sources. The reason that she wanted a list of suggested questions is that she was nervous about her own inexperience in conducting the interview and did not want to be taken off-track.

[67] He also relied upon Willmott v Woolworths Ltd [2014] QCAT 601 and in particular the following passages with emphasis on the bold:

[1] In December 2013, Woolworths Ltd advertised for a console operator’s position at its petrol outlet at Beerwah (Qld). Mr Willmott, who was unemployed at the time and lives in Beerwah, saw the advertisement on Woolworths’ website and decided to apply for the position utilising Woolworths’ online application system. In completing the online application, Mr Willmott was required to provide answers to certain mandatory fields, which included his gender, date of birth and was also required to provide documentary proof of his right to work in Australia.

…

[62] I am satisfied that Woolworths’ conduct in requiring an applicant to provide a date of birth and gender on the online application form, is a contravention of s 9 of the Anti-Discrimination Act. In addition, I have come to the conclusion that the mandatory requirement to upload proof of work documents, containing private information is also a contravention of the Act.

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[68] Those three cases are, to my mind, examples of instances where it has been found that there was a contravention of the legislation.

[69] In March 2015, after a meeting with union officials it was agreed that four labour hire OCEs would be replaced with employees at the mine who were qualified as OCEs30 and the mine would then seek to fill two rostered OCE positions internally by conducting interviews with existing employees who had been appointed OCEs31. Two positions were abolished because the operational requirements of the mine did not require them.32

[70] There were interviews for OCE positions on 9 June 2015. They were conducted by three panel members made up of a representative from operations, a human resources representative and an employee representative.33

[71] Mr Iliffe was involved in the interview process because he believed that there would be a perception of bias if Mr Hughes, the superintendent for the particular work area and who would normally be on the panel, was on the panel. That was because the applicant had made a complaint about Mr Hughes. He also believed that it was appropriate for a senior manager to be involved due to the significant position of trust and responsibility occupied by the OCEs.34

[72] The panel used an interview guide compiled by HR representatives at the Mine with some input by Mr Iliffe.35

[73] Mr Leggett was one of six applicants interviewed.36

[74] Each interview lasted approximately 45 minutes37 and the applicants were asked the same questions38. Each panel member read out a question. Mr Iliffe read out the final questions contained in the interview guide39 as they were specifically relevant to the OCE role and the questions which were of significance to him from an operational perspective40.

[75] The final interview questions were41:

(a) A situation may arise where you are acting as the OCE in a particular incident/concern and a co-worker who was involved in that incident/concern may ask you to act as their representative. How do you manage the situation if you were subsequently nominated as a

30 Statement of Daniel John Iliffe at [152]. 31 Statement of Daniel John Iliffe at [153]. 32 Statement of Daniel John Iliffe at [87-9] and [153]. 33 Statement of Daniel John Iliffe at [155], Statement of Brooke Leigh Driscoll at [21]. 34 Statement Daniel John Iliffe at [159], Transcript 6-58 35 Statement of Daniel John Iliffe at [161-2], Statement of Brooke Leigh Driscoll at [17]. 36 Statement of Daniel John Iliffe at [163], Statement of Brooke Leigh Driscoll at [23]. 37 Statement of Daniel John Iliffe at [164], Statement of Brooke Leigh Driscoll at [24]. 38 Statement of Daniel John Iliffe at [165], Statement of Brooke Leigh Driscoll at [25]. 39 Statement of Brooke Leigh Driscoll at [25]. 40 Statement of Daniel John Iliffe at [166]. 41 Statement of Daniel John Iliffe at [167].

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co-worker’s representative in relation to an incident or concern you were investigating?

(b) We recognise there will be legitimate reasons which may impact an employee’s ability to be available 100% of the time when on roster e.g. Approved/authorised leave, performing functions as an ERT member, acting as employee representative. How would you manage competing demands on your time due to other responsibilities to ensure you are able to meet the role requirements and discharge your statutory responsibilities?

[76] I accept that those questions set out above were asked of Mr Leggett by Mr Iliffe and I accept his evidence. It is supported by the evidence given by Ms Driscoll and the interview guide.

[77] Those questions were included in the Technical/General Aptitude section of the interview guide and related to the interviewee’s general aptitude for the OCE position42 because Mr Iliffee considered they were relevant to the interviewee’s ability to perform the OCE role. That was because it was necessary to ensure the applicant’s could identify possible conflicts of interest between their OCE role and their responsibilities as employee representatives and prioritise their statutory responsibilities. He considered that the question was relevant because any of the internal applicants could choose to act as an employee representative43 and the successful applicants would need to be available as much as possible for operational reasons.

[78] Each member of the panel made notes of responses from each applicant and after an open discussion about the responses scored each applicant at the end of the interview.44

[79] Mr Leggett scored 21 out of a possible 35 and had the fourth highest score.45 Following the interview process the two available positions were awarded to the two highest scorers.

[80] In my view the questions were not about the trade union activities of Mr Leggett. They were legitimate questions about time management and the management of possible conflicts of interest.

[81] I do not accept the submission that the evidence of Mr Iliffe’s explanation for the questions was dishonest. In my view the explanation was logical and persuasive.

[82] Counsel for the applicant in part relied upon the comments by Rangiah J in Myatt v State of Queensland (Queensland Police Service) [2016] FCA 133 which are set out below with counsel’s emphasis:

42 Statement of Daniel John Iliffe at [155], Statement of Brooke Leigh Driscoll at [21]. 43 Statement of Daniel John Iliffe at [168], Transcript 6-41 and 6-44. 44 Transcript Brooke Leigh Driscoll at 5-87. 45 Transcript Daniel John Iliffe at 6-40, Transcript Brooke Leigh Driscoll at 5-72.

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76. There is no direct evidence that if the so-called “complaint” had been made by a woman or person without a psychiatric impairment, S/S King would have recorded it in the CRISP database. As is commonly the case in proceedings involving allegations of unlawful discrimination, the success of the case depends upon the trial judge drawing an inference that person without the relevant attribute would have been treated more favourably: see Sharma v Legal Aid (Qld) (2002) 225 IR 92; [2002] FCAFC 196 at [40]-[41] (Heerey, Mansfield and Hely JJ). In G v H [1994] HCA 48; (1994) 181 CLR 387, Brennan and McHugh JJ said at 390:

An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law.

77. The onus of proof is on Mr Myatt: see Qantas Airways v Gama [2008] FCAFC 69; (2008) 167 FCR 537 at [65] (French and Jacobsen JJ), [132] (Branson J), Ewin v Vergana (No 3) (2013) 238 IR 118; [2013] FCA 1311 at [90] (Bromberg J), Chen v Monash University [2015] FCA 130 at [16] (Tracey J), Kiefel v State of Victoria (Department of Education and Early Childhood Development) [2013] FCA 1398 at [58] (Tracey J).

78. In Henderson v Queensland (2014) 315 ALR 188; [2014] HCA 52, Gageler J said at [89]:

Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. The threshold requirement for the party bearing the burden of proof to adduce evidence at least to establish some fact which provides the basis for such a further inference was explained in Jones v Dunkel:

One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.

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79. The facts proved must give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture: Jones v Dunkel [959] HCA 8; (1959) 101 CLR 298 at 304 (Dixon J), Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161-162 (Stephen J), Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278 at [34] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

[83] Mr Docking submits that to the extent that Mr Leggett needs to rely on inferences to discharge his burden on the balance of probabilities to make out one or more complaint, reliance is placed on propositions in Department of health v Arumugam [1988] VicRp 42; McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4; State of Victoria v McKenna [1999] VSC 310 and McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243.

[84] For those propositions he provided the following with emphasis added:

a) In State of Victoria v McKenna at [42] and cited with approval in McCauley;…Bearing these points in mind, it might be properly argued, for example, having regard to the existence of racism in the community, that where a choice was made between two individual, one of whom was black and one of whom was white, and the white (or the black) person was selected, a number of possible inferences arise for consideration, one of them being that race was a factor in the choice because of the existence of racism and the fact that a choice was being made between people of different races. An analysis of the full facts of the case may reveal that the inference should not be drawn. Arumugam was such a case; for while the complainant had better qualifications he was “less articulate and less aggressive” and for that reason less suitable. An innocent explanation existed and was accepted. But if, after an analysis of the proven facts, the initial inference of racial discrimination remains open and the innocent explanations offered are rejected, it is not clear to me why the inference should not normally be drawn (c.f. Fullagar, J. in Arumugam at 330, and Anderson, J., in KLK Investments Pty Ltd v Riley (1993) 10 WAR 523 at 528) even though there is no additional positive evidence to support the drawing of the inference. It seems to me that the same points may be made in relation to sexism and complaints of sexual discrimination.

b) McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4:

In discrimination cases, including cases alleging unlawful discrimination in the employment area, a complainant is forced to rely on circumstantial evidence. This frequently concerns

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human resources decisions involving the complainant which in some way depart from what one might normally expect and, therefore, call for some sort of explanation. Depending on the nature of the decision, and the persuasive nature or otherwise of the explanation proffered by a respondent, the incident may constitute circumstantial evidence of the alleged discrimination. The Tribunal may, in certain circumstances, be able to draw an inference from the particular evidence that the alleged discrimination has occurred.

[85] I accept the validity of the propositions set out.

[86] The applicant submits that this case is not one where unlawful discrimination is alleged and there is a paucity of direct evidence. He submits that there does exist significant direct evidence to be relied on in establishing that some of the complaints are more probable than not. He submits that this case is like Everett v Copperart Pty Ltd [1977] QDAT 14 in which it was reasoned that if one broadly accepts the complainant as a credible witness there were three major pieces of evidence which either constitute direct evidence of discrimination on the grounds of parental status or at least assist in the drawing of an inference that the issue of the complainant’s parental status was one of the reasons why the complainant was not given the job. In my view that matter was decided on its own facts.

[87] The applicant set out examples of what he submits as direct evidence.46 Essentially they consist of statements made by an acting manager of the respondent and an officer in the head office, Ms Down and Mr Hughes. None of those persons had a role to play in making the relevant decisions.

[88] In McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4 the following was said:

In addition, the Tribunal must carefully consider explanations put forward by a respondent. Those explanations must be considered carefully with the initial circumstances and the Tribunal must be satisfied, before any finding of unlawful discrimination can be made, that, in all the circumstances, it is more probable than not that less favourable treatment on the basis of the alleged attribute did occur.

[89] In Department of Health v Arumugam the following was said (emphasis added by Counsel for the applicant) :

If the Equal Opportunity Board in the present a case had found (assuming it was open on the evidence) that the facts without explanation raised the inference of racial discrimination as the most probable explanation, then, of course, the non-acceptance of the attempt at explanation would have left the Board with the conclusion of racial discrimination (although ,as I have indicated ,

46 Applicant’s Written Outline of Submissions Pages 11 to 14.

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I think such a conclusion was not justified on the evidence). But as the Board only found that the facts without explanation raised the inference of some kind of discrimination then the non- acceptance of the attempt at explanation could lawfully leave it at the end with no more than some kind of discrimination, and not with sufficient proof that it was racial.

In Khanna’s Case the Appeal Tribunal was laying down a guideline for cases of all kinds of prohibited discrimination, and the critical words in that case, in my opinion, mean no more than as follows: -

“If the facts before explanation contain no direct proof of discrimination of the kind charged (be it political, sexual, racial or impairment-grounded), the industrial tribunal may still be able to draw an inference of discrimination of the kind charged; if the proper inference in the absence of explanation is discrimination of the kind charged, and there is either no explanation or an unacceptable explanation, then the inference of discrimination of the kind charged will mean the complaint succeeds.”

If I thought that the Appeal Tribunal in England meant anything more than that, I would certainly hold that what they meant is not the law and should not be followed in this state. If all that is proved, by inference or otherwise, in the absence of explanation, is less than all the elements of proof required for the complaint to succeed, neither a total absence of explanation nor a non-acceptance of an explanation can be itself provide an element of proof required. It can enable already available inferences to be drawn against dishonest explainers with greater certainty, but that is all. In the present case, the element of “on the ground of race” was, in the absence of explanation, clearly lacking, and the non-acceptance of the proffered explanation could not provide the missing element. The fact that the occurrence of racial discrimination may often be difficult to prove cannot justify “convicting” on something less than proof. All that Khanna said was that it must often be proved by inference from direct evidence, just like the intent to kill in a murder case, although the standard of proof is there higher.

[90] In McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 the following was said (emphasis by counsel for the applicant):

[35] It is clear that the quality of the respondent’s explanation if proffered can be considered by the decision maker. As Fullagar J said in the above passage in Arumugam, if an explanation is proffered but found to be dishonest, then this might allow an inference to be reached from the primary facts with greater certainty.

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[91] In McRostie, State of Victoria v McKenna [1999] VSC 310 the following was said (emphasis by counsel for the applicant):

76… I note that it was also open to the Tribunal to find that Crossley and Haldane had lied in their explanation and that the reason for that was that to tell the truth would reveal their discriminatory reasons…

[92] In Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QSC 62 the following was said (emphasis by counsel for the applicant):

6… it should also be noted that Fullagar J was not dealing with a case where rejection of a defendant’s explanation involved a finding that the defendant had lied or otherwise conducted himself in such a manner as to indicate a consciousness of guilt.

[93] In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 the following was said (emphasis by counsel for the applicant):

11… The Tribunal rejected Mr Greenfield’s explanation, on behalf of Lightning Bolt, of why he did not offer the respondents their jobs back, finding his evidence in relation to Mr Skinner “completely untrue”. Mr O’Neil acknowledged that the “philosophy” of getting young and ambitious storemen who would be easier to train and who could later go out on the road as sales representatives, urged on him by one of Lightning Bolt’s salesmen a few weeks before he dismissed the respondents, was in fact applied in the appointment of the respondents’ replacements, but said that this was “by chance”. Once Lighting Bolt’s dishonest explanations were rejected, the Tribunal could draw the available inferences with greater certainty.

[94] In Du Bois-Hammond v Raging Thunder Pty Ltd and Others [2004] QADT 27 the following was said (emphasis by counsel for the applicant):

128. Unlike the redundancy and Call Centre Manager issues where there was ample and compelling evidence from the respondents as to why decisions were made, there was a paucity of evidence as to why the respondents failed to appoint the complainant to the 2IC position. What evidence there was, from the respondents, was disputed and, in the end, unpersuasive. For the reasons set out above, I prefer the complainant’s evidence on this issue.

[95] In McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 the following was said (emphasis by counsel for the applicant):

[36] Where no reasonable respondent would have acted in the way which is said to be discriminatory, then it would be open to the

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Tribunal to infer there was discrimination in the absence of a proven innocent explanation.

…

[38] It is also clear that a respondent does not call a witness (without good reason) who would appear to be able to provide an explanation for events which if not explained might lead to the view that discrimination had occurred, this could result in a adverse inference being made. This accords with the High Court case of Jones v Dunkel [1959] HCA 8; [1959] 101 CLR 298 relied on by Mr Taylor on Ms McCauley’s behalf.

[39] There are other ways, other than not calling an important witness, in which a respondent might fail to provide an explanation for events which if unexplained, might result in a finding that here has been discrimination. It may be that a witness who should be able to give such explanation is called to give evidence, but does not give an explanation in evidence in chief. A further possibility which quite often occurs, is that the respondent does not provide disclosure of documents which might demonstrate an explanation for events which have occurred.

…

[40] A respondent takes a risk in failing to provide an explanation. But the intention of the Act is achieved by applying the test in Comcare so that the court or tribunal is unable to make a finding of discrimination unless satisfied by rational deduction and more than mere speculation, guesswork or assumption, that discrimination has occurred.

[96] In Chivers v State of Queensland [2011] QCAT 357 the following was said:

[30] It is essential for the delivery of justice that parties provide all relevant information to the tribunal that is needed for the tribunal to decide the proceeding. It is the role of the tribunal to decide what information is necessary to achieve that outcome.

[97] In State of Victoria v McKenna [1999] VSC 310 it was said:

I am also of the view that the TQM incident is a circumstance which is capable of assisting the consideration of other circumstances involving Mr Stone. For example, the conclusion arrived with regard to the issue of Ms. McRostie not being preferred to relieve Mr Stone is made more comfortable by the evidence concerning the TQM incident. The extent to which the TQM matter is of assistance is, however, necessarily limited and I certainly do not find it of

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assistance in matters where Mr Stone is not the principal decision-maker.

…

97…It must be borne in mind that the Tribunal had decided the complaint concerning the basketball incident and the document adversely to Crossely and in doing so had come to certain conclusions about Crossley’s attitude…

[98] In Du Bois-Hammond v Raging Thunder Pty Ltd and Others [2004] QADT 27 it was said:

125.…With respect, the respondents’ motives were irrelevant (s.10(3)). What was in the mind of the respondents was not determinative. The test is: did the respondents treat the complainant less favourably than another person who was not pregnant or was not a parent (or who did not have a characteristic that a person with those attributes generally has or did not have a characteristic which is often imputed to them), would be treated in the same or similar circumstances?

[99] Section 10(4) of the ADA provides:

(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

[100] In State of Victoria v McKenna [1999] VSC 310 it was said (emphasis by counsel for the applicant):

The reasoning process is complicated by the provision is s. 10(4) of the Act (set out earlier in these reasons) that there may be two or more reasons for a particular course of action and that, provided the relevant attribute constitutes one of these numerous reasons and a substantial reason at that, the elements of the contravention may be established. Thus, a set of circumstances may be such as to raise an inference that the complainant’s status as a woman was causally related to certain unfavourable treatment of the complaint. An explanation attributing another factor as the cause may be accepted without totally displacing the inference in that the Tribunal may be satisfied at the end of the day that it is more probable than not that the innocent (that is in terms of the Act) explanation given by the respondent and the attribute of the complainant’s sex were both operative and both constituted substantial reasons for the less favourable treatment.

Ultimately, there can be no magic formula. The Tribunal must carefully consider the circumstances established by the evidence

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and not proceed to draw inferences therefrom unless the circumstances properly give rise to such inferences.

[101] The finding in Kong v Commonwealth (Australia Post) [1997] AusHRC 3 was:

3. Assessment of Ms Kong’s application

The evidence presented to the Commission ultimately turns not on different versions of what was said but on the proper interpretation to be placed upon it. Australia Post contends that Ms Kong was unsuccessful because of her poor work performance. Its representatives pointed to the alleged deficiencies in leadership skills. In written statement Mr Ferros and Mr Lamendola indicate that Ms Kong was unsuccessful because she “needs to display a higher commitment to leadership to one of the main tasks of a SMO – specifically leadership skills”.

Although Ms Kong was rated poorly on the “leadership skills” criterion (8 out of 20) it was not her lowest score. In fact she was rated lower on “problem solving – judgment” (5.7 out of 15) and on technical knowledge (3.5 out of 10). Yet nothing was made of these deficiencies in the conversations Ms Kong, Me Leneghen and Mr Zelesco had with Mr Ferros and Mr Lamendola, in the written statements to the Commission or in oral evidence and submissions to the Commission. The decision makers appear to have been pre-occupied throughout with Ms Kong performance, including her performance of her functions as women’s liaison officer, and to have attached little importance to her perceived unsuitability on other grounds.

4. Finding

Clearly some staff at the International Mail Centre had difficulty working with Ms Kong. The evidence establishes that there were personality clashes, disputes as to complaints raised by Ms Kong as Women’s Liaison Officer and tension with her supervisors about the ways in which she performed her role. However, the evidence also established that these issues were not brought out explicitly in the conversations after the selection process was completed but rather that the focus was on Ms Kong having to choose between promotion and continuing in her liaison role.

Having heard the evidence and submissions and considered written submissions I am satisfied that members of the selection panel were pre-occupied by Ms Kong’s work as women’s liaison officer in assessing her application for higher duty as a senior mail officer. I find therefore that their decision was affected at least in part by improper consideration of her trade union activity.

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[102] In Copeman v Derbarl Yerrigan Health Science [2007] AusHRC 37 it was said (emphasis by counsel for the applicant):

The historic and continuing role of trade unions (conducted through their representatives) is to protect, support and work for the improvement of the rights and conditions of employees and to challenge perceived injustice or unfairness towards employees. Trade union representatives are often a critical voice for employees, questioning and objecting to actions of management which impact adversely on the way in which employees are treated. The activities engaged in by Dr Copeman involved supporting and being an advocate for fellow employee doctors on issues relating to performance, potential disciplinary action, redundancy issues affecting professional practice and policies affecting the working environment. Mr Levitt, in his submissions for Dr Copeman, characterised her activities as standing up against a culture of bullying and harassment of employees and an abuse of power. These are activities in which trade union representatives are typically engaged.

The ‘trade union’ nature of the activity may be determined by reference to objective or subjective factors, or a combination of both. In this case, there is the objective fact of Dr Copeman’s trade union affiliation, namely that she was in fact the AMA(WA) representatives at DYHS. There is the fact that the activities in question are typical activities of trade union representatives. It is also clear that Dr Copeman’s activities and her altercation with Ms Davies and Ms Tobin was as a result of what she perceived to be her role as a trade union representative. This all gives those activities their trade union character.

Ms Davies and Ms Tobin say that they decided to terminate Dr Copeman’s employment for a range of reasons. I have traversed these reasons in section 6.3.2 and found that they are either not supported by the evidence or are inconsistent with other evidence before me. The perceived casual nature of Dr Copeman’s employment and the perceived need to divert resources to the East Perth clinic may have been reasons why it was thought that the discontinuance of Dr Copeman’s employment could be more easily justified than the dismissal of another doctor but I find that the key reason was the dislike of Dr Copeman’s trade union activities and a desire to end them. Even if there were a number of reasons contributing to the decision to terminate Dr Copeman’s employment, and if the matters raised by Ms Davies and Ms Tobin were taken into account, I consider that Dr Copeman’s trade union activities were clearly a basis for their decision to terminate her employment.

Ms Davies and Ms Tobin attended the meetings constituting the relevant trade union activity and witnessed Dr Copeman’s conduct at them. Dr Copeman was not expressly invited to any of the

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meetings by Ms Davis and Ms Tobin attended the meetings constituting the relevant trade union activity and witnessed Dr Copeman’s conduct at them. Dr Copeman was not expressly invited to any of the meetings by Ms Davies or Ms Tobin. They failed to inquire as to the reason for her presence at the 5 February 2004 meetings with Dr Rybak. I do not consider that their understanding that Dr Copeman attended the meeting on 18 February 2004 with Dr Faulkner-Hill as a ‘peer support’ or as a friend to be inconsistent with her attendance as a trade union representative. It was admitted that a redundancy would be an issue that a trade union representative would be interested in. The meeting on 19 March was acrimonious and raised issues typically of interest to trade unions and in which trade union representatives typically participate.

Ms Davies and Ms Tobin both stated that they had limited other contact with Dr Copeman during which they might have observed her and formed an opinion about her. Indeed, the only specific instance of ‘attitude’ which they say formed a reason for their decision to terminate Dr Copeman’s employment and which is not contradicted by other evidence was observed at those meetings. Further, the decision to terminate Dr Copeman’s employment was made soon after those meetings. The timing of the events, and lack of any other cogent explanation, all lead me to conclude that the main reason for the termination related to Dr Copeman’s activities at these meetings. There was obviously some sense of urgency on the part of Ms Tobin and Ms Davies for Dr Copeman’s services to be terminated because, if the real concerns were to reduce casual costs or concerns about an excess of doctors at Mirrabooka, the far more logical approach would be to at least continue her employment while there was a medical staff shortage at all clinics instead of looking for locums.

Mr James for DYHS submitted after the hearing that the basis for the termination may have been to remove long term DYHS doctors, because those who had been there a long time were perceived to be opposed to change and did not share a common philosophy with the new managers. He submitted that this perception about the long-term employees did not have to be correct but that Dr Copeman was not singled out because she engaged in trade union activities. However DYHS did not lead evidence of any such plan to remove long-term employees and this would be inconsistent with the evidence of its own witnesses. I find it unlikely that if Dr Copeman had kept her profile low and just kept performing as a respected and high revenue-producing doctor at DYHS, her employment would not have been terminated.

I infer from my findings that there was a ‘sufficient connection’ between Dr Copeman’s trade union activities and Ms Davies and Ms Tobin’s decision to terminate her employment.

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[103] In Du Bois-Hammond v Raging Thunder Pty Ltd and Others [2004] QADT 27 the following was said (emphasis by counsel for the applicant):

136. From Thomson and Cahill I conclude that the taking of a period of maternity leave before and shortly after the birth of a child is a characteristic of the attribute of pregnancy, but not of the attribute of parental status. Contrast this with the taking by a man or a woman of up to 52 weeks unpaid parental leave, the purpose of which is in part or whole for child care. It may be going too far to say that this is a characteristic that a person who is a parent “generally has” (s.8(a)), but it could certainly be said that this is a characteristic that is “often imputed” (s.8(b)) in today’s society to a person who is a parent. I conclude that the taking by a man or a woman of up to 52 weeks unpaid parental leave is a characteristic of the attribute of parental status. I note, although it is not relevant to this complaint, that it may also be a characteristic of the attribute of family responsibilities, if it involves that person’s responsibilities to care for or support a dependent child of that person (Schedule of the Act). The taking of up to 52 weeks of unpaid parental leave is not a characteristic confined to pregnancy.

[104] In Haines v Leves (1987) 8 NSWLR 442 the following was said:

The words ‘less favourably’ and ‘on the ground of’ permit wide scope to the Tribunal in applying its judgment on the facts provided in each case. Both involve imprecise phrases with necessitate judgment and the characterisation of conduct which is impugned. The first requires a comparison of the treatment in the actual and in an hypothesised case: see Mahoney JA, Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13. As was pointed out in that case, a ‘detriment’ concept of discrimination has hitherto been adopted: cf. Ministry of Defence v Jeremiah [1980] 1 QB 87. The motive, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment which results in detriment to the person affected: see Clay v Cross (Quarry Services) Limited v Fletcher [1987] 1 WLR 1429.

Likewise, the words of connection ‘on the ground of’ require judgment and the characterisation of conduct in terms of its causation. Most activities of life have multiple causes. The assignment of the ‘ground’ of the less favourable treatment requires of the Tribunal the characterisation of the relevant causative factor resulting in the less favourable treatment. In some cases, where multiple causes for discrimination are presented, the task of characterising the ‘grounds’ is a difficult one which calls for judgment and discernment…

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The phrases ‘les favourable’ and ‘on the grounds of’ require a classification of conduct. They are evaluative. They necessitate judgment.”

5. The words of connection in the Act are “on the basis of”. However, the comments of Kirby P are equally apposite when assessing the connection under the Act,

[105] In McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 the following was said:

[16] Direct discrimination is defined in section 10 of the Act. It occurs when, on the basis of an attribute (in this case sex or age) a person treats another less favourably than another person is or would be treated without the attribute in circumstances that are the same or not materially different. The test is therefore comparative. The Tribunal is comparing different treatment of two individuals in substantially the same circumstances – where one individual has the attribute and the other does not. The words “would be treated” indicate that the comparison can be between the complainant and a hypothetical person.

[106] In Du Bois-Hammond v Raging Thunder Pty Ltd and Others [2004] QADT 27 the following was said:

116. In order to succeed in her allegation of direct discrimination, the complainant must prove that the respondents treated her less favourably than another person without the attribute of pregnancy or parental status (or a characteristic that a person with those attributes generally has or a characteristic which is often imputed to them) was or would be treated in circumstances that were the same or not materially different (s. 10(1), s 8(a), s 8(b)).

117. The complainant must also prove that the reason or a substantial reason for the conduct complained of was her pregnancy or parental status or a characteristic that a person with those attributes generally has or a characteristic which is often impacted to them (s. 10 (4)).

[107] The applicant refers to Cockin v P & N Beverages Australia Pty Ltd & Ors [2006] QADT 42 as to the need for a comparator (emphasis added by counsel for the applicant):

67. I should add that a comparison between Mr Cockin and another worker who chooses to only work day shifts of not more than 10 hours is not appropriate. The circumstances would be materially different because Mr Cockin did not work fewer hours by choice. Rather, he was only able to work day shifts of not more than 10 hours a week because of his impairment.

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68. In my view, therefore, the appropriate comparison is between the way in which Mr Cockin was treated and the way in which another employee of P & N Beverages without an impairment was or would have been treated as to the amount of work offered. The circumstances that are the same or not materially different for the purposes of s. 10(1) are merely that the comparative employee was employed by P & N Beverages as a cleaner and machine operator, as Mr Cockin was.

69. It is clear, in my view, that another employee of P & N Beverages without Mr Cockin’s visual impairment and the restrictions arising from that impairment would have been offered more work than Mr Cockin was offered in the period between about 5 March 2002 (when Dr Edwards prepared his report) and 18 June 2003 (when Mr Cockin’s employment at P & N Beverages was terminated). I conclude, therefore, that during this period and in this way P & N Beverages directly discriminated against Mr Cockin.

[108] In Gardener v Norcott [2004] QADT 39 the following was said:

31. I find that by pressing the issue of his age the first respondent did treat the complainant less favourably in that process than if he had been a younger person in exactly the same circumstances. I do not go as far as finding that the complainant was not offered the employment he was seeking because of his age as the evidence does not support such a finding. It is not necessary to show that the first respondent considered that she was treating the complainant less favourably. Her motive for discriminating is irrelevant. It is sufficient that she has treated the complainant less favourably than a younger person would have been treated in the process of deciding who should be offered the job as a chef at the café. This amounts to direct discrimination and, as such, was a contravention of the Act.

[109] I accept the propositions advanced.

[110] Generally I do not find that there was an absence of explanation for that which required an explanation and I do not find the explanations given were dishonest.

[111] In my view explanations given were credible and were persuasive.

[112] Counsel for Mr Leggett submitted that the respondents failed to call a witness without good reason to provide an explanation for events which if not explained might lead to the view that discrimination has occurred and an adverse interest should be drawn. The submission was that the failure to provide relevant information from business records to show whether or not Mr Leggett could have been released from the Dragline to work as an

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OCE and because records of Mr Leggett’s employment as an OCE after the second complaint period were not produced and because Ms Down was not called by the respondents then an adverse inference should be drawn.

[113] In my view, the evidence is such that there no credible suggestion that there is an event which requires an explanation because if not explained it might lead to the view that discrimination had occurred. According I decline to draw an adverse inference.

[114] Counsel for the applicant also seeks to rely on the contents of exhibit 10 referred to on page 1 of his Supplementary Note which is before the tribunal on the basis that its content has not been proved.47

[115] In my view there are a number of reasons why the material should not be admitted “as to the truth and for all purposes”. The source of the statements in the material and the identity of the reporter remain unknown. There is no ability for the material to be tested.

[116] Mr Leggett made much of statements said to have been made by Mr Hughes and submitted to be concessions which are available against the corporate respondent and Mr Hughes. I accept that Mr Hughes did make concessions and did make statements which show that he knew of Mr Leggett’s union activity and parental status. However, I cannot connect such knowledge with any instances of discrimination. Mr Hughes was not a person who made the decisions complained off.

[117] In so far as Mr Hughes had a need to have an OCE in relief roles do a full shift48 I find that such a need is an appropriate need and giving preference to a person who could do a full shift was not discrimination. If Mr Leggett was not able to do a full shift because of union activities or otherwise any choice of someone who could do a full shift was not because of Mr Leggett’s union activities but because of his inability to do a full shift.

[118] Dealing with the questions asked in the interview, as I have said, in my view, the questions asked were not such that they were asking for information on which unlawful discrimination might be based. They were not, as many of the examples relied upon were, a request for information about age. They were not questioning whether Mr Leggett was a member of a union. They were not seeking information in relation to his trade union activities or his parental status. The questions assume a fact set out in the body of the question and then ask a question about how the interviewee would manage the situation assuming that fact.

[119] In my view the questions were questioning how the person being questioned would deal with competing demands on their time when employed as an OCE or about how the person would deal with a possible conflict in the role and duties of an OCE and in acting as an employees

47 Transcript Page 1-42 to 1-43. 48 Transcript Page 4-21 Line 27.

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representative. An examination of the role and duties of an OCE and the role and duties of an employees representative illustrates the possibility of conflict.

[120] Counsel for the applicant, amongst other submissions, argues that because there were concessions that some experienced human resources specialists had never seen similar questions the tribunal should find that the questions were in breach of section 124. I accept the effect of the evidence given in that regard but I reject the contention that there is a breach of the section for the reasons below. In my view the concessions made by Ms Jones in that regard do not stand scrutiny and examination of the role and duties of an OCE compared with competing conflicts and demands.

[121] Despite the evidence of Mr Hughes that he had no concerns with Mr Leggett as an OCE being an employee representative I am of the view that the questions were legitimate questions concerning operational matters and the ability of the person being interviewed to understand the requirements of the position and the importance of meeting those requirements.

[122] Further, in my view the method of dealing with time demands and possible conflict is information that was reasonably required for a purpose that did not involve discrimination. The purpose was to ensure that the person being considered for an OCE position could appropriately deal with competing demands. Mr Iliffe considered that the questions were relevant to whether the person who was being interviewed had the ability to perform the OCE role. I accept that evidence and the explanation given and on the balance of probabilities I find that BHP has proved that the information which the questions required was reasonably required for a purpose as identified above that did not involve discrimination. I note that all the persons interviewed were asked the same questions. None of the other people interviewed were or had been employee representatives apart from Mr Leggett and Mr Earl.49 That is not to say they could not be. The evidence is that an employee representative can be anyone and not just a union delegate.50 Nor is there any suggestion that any of the interviewees were not parents or capable of becoming parents and utilising leave entitlements. In my view the evidence does not support any contention that the questions were directed to Mr Leggett alone or were asked because of Mr Leggett’s role as a union representative, employee representative or parent.

[123] When Mr Leggett gave evidence and from his supporting material it was apparent that Mr Leggett feels aggrieved by what he perceives as objectionable behaviour. He has the benefit of having notes done soon after particular conversations or instances. They are not completely verbatim but I accept they are Mr Leggett’s version of what occurred. On occasions there was some conflict with other evidence but often the effect

49 Transcript Page 6-41 Line 43. 50 Trabscript Page 4-23 Line 13.

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of the notes was accepted. However, I find that some of Mr Leggett’s evidence is coloured by his perception of objectionable behaviour. I have balanced all of the evidence both oral and documentary with all of the contentions and responses and the necessary elements of the contentions. I do not find that any of the witnesses were untruthful but in some instances the likelihood of an instance having occurred needed to be assessed. Generally, where there was a difference I did not regard the difference as determinative of my findings.

[124] Counsel for the respondents submitted to the effect that the mine is about producing coal and not to help further Mr Leggett’s career. Counsel for Mr Leggett submits that BHP has statutory obligations contained in the enterprise agreement 2012. I accept that BHP does have obligations under the agreement but I am not concerned with whether BHP has breached an obligation rather I am concerned with determining whether there has been discrimination. That is not to say such obligations are not relevant in considering whether there has been discrimination. It is part of the mix of matters to be considered.

[125] Counsel for Mr Leggett accepts that it is not necessary to find a motive in determining if there has been discrimination but submits that if one is established in the evidence it can assist the applicant. I accept that submission but I do not find any motive for discrimination. I find that the respondents had knowledge of Mr Leggett’s trade union activities and parental status but that does not mean the existence of such knowledge equates to a motivation to discriminate. If such knowledge alone was to be a motivation it would require an assumption that union membership or parental status of themselves was bad and had to be dealt with. Clearly such an assumption would be absurd.

[126] Counsel for the respondents submits that for the applicant to succeed on the complaint of direct discrimination he must prove that he was treated less favourably than another person without his attribute would be treated in circumstances that are the same or not materially different and such treatment was on the basis of a relevant attribute namely trade union activities, family responsibilities or parental status.

[127] As I said above, the meaning of “direct discrimination” is provided by section 10 and contains the phrase “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.”

[128] The term “on the basis of” an attribute has been considered analogous to whether an act has been done “because” the person has an attribute51

51 Sinden v State of Queensland [2012] QCAT 284 at [60]-[64]; GL v Legal Aid

Queensland [2006] QADT 25 at [46].

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being the language used by the High Court in Purvis v New South Wales.52

[129] Counsel submitted on the basis of Webb v Sunshine Coast Hospital and Health Service and Anor53 that if it is accepted that the applicant was treated less favourably than another person without his attribute would be treated in circumstances that are the same or not materially different the applicant must prove that a substantial basis was one of the attributes he relies upon. He submitted that in respect of the two decisions of the selection panels in 2012 and 2015 the applicant must prove the decision makers, the panel members, acted on the basis of one of the relevant attributes that he alleges and the tribunal must be satisfied on the evidence that a relevant attribute on which he relies was the basis for the relevant panel not selecting him.

[130] Counsel for the applicant submits that an appropriate comparator is as he highlighted in Cockin v P & N beverages Australia Pty Ltd & Ors54.

[131] He relies on each of the persons identified in paragraph (b) (i-ix) on page 25 under category 2 of his written outline of submissions as appointments.55

[132] In my view an appropriate comparator is an employee of BHP who had the same qualifications as Mr Leggett but none of the attributes on which he relies and sought to be employed as an OCE.

[133] CATEGORY 2: Direct discrimination by reason of trade union activities – not appointed at the Mine as an OCE pursuant to s 59 of the CMHS Act or as supervisor pursuant to s 55 of the CMHS Act, or both.

[134] Section 15 of the ADA provides(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.

52 (2003) 217 CLR 92. 53 [2015] QCAT 31 at [16] and [17]. 54 [2006] QADT 42. 55 Statement Hughes annexure GEH3 and GEH4.

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(2) In this section—

dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.

[135] Counsel for the applicant urged me to consider this topic on the basis of when various employees got their section 59 OCE appointments by looking at the dates in Annexures GEH3 and GEH4 to Mr Leggett’s statement and the request dates. Mr Leggett provided his request form to Mr Hughes in April 2013 but the respondents say it was not processed. In the meantime, Mr Tongue, Mr Ferraro, Mr Davidson, Mr Earl, Mr Pyziakos, Mr Marteene, Mr Cochrane and Mr Wheeler were appointed. Mr Leggett was appointed on 30 September after a request dated 23 September 2013. Mr Heumiller was appointed on 7 January 2014 and Mr Rice on 3 March 2014.

[136] Mr Hughes gave evidence that Mr Leggett could not be appointed as an OCE under the request form without Mr Hughes making the request to the GM or SSE.56 He could not recall Mr Leggett handing him an appointment form on or about 16 April 2013. Mr Leggett contended that he had supplied an appointment form on or about 16 April 2013 and Mr Hughes did nothing about it because he discriminated against Mr Leggett because of the attributes identified. Mr Hughes when cross examined about the issue said that it was possible that because he signed a lot of forms it could have been lost.57

[137] In my view the possibility of the form being lost is credible. I do not find that Mr Hughes was dishonest in his evidence.

[138] On this point Counsel for the applicant placed emphasis on the content of exhibit 10 as evidence of what anonymous complainant had stated. Mr Hughes denied that he said what is said to be the content of the anonymous complaint, but says that he asked Mr Leggett whether he thought he had enough on his plate.58 He was vigorously cross examined and answered all of the matters put to him in a manner which was forthright and credible.

[139] I had some concerns about the content of exhibit 10 and even though I am not bound by the strict rules for evidence the nature of the source led me to decide that the content could not be said to reliable or credible.

[140] CATEGORY 3: Direct discrimination by reason of parental status or family responsibilities – not appointed at the Mine as an OCE pursuant to s 59 of the CMHS Act or as Supervisor pursuant to s 55 of the CMHS Act, or both.

[141] Much of the basis for this item relies upon the version of the 2 May 2013 conversation said to be between Mr Hughes and Mr Leggett in the context

56 Transcript T3-65 Lines 35-46. 57 Transcript T3-67 Line 25-30. 58 Transcript T3-77 Lines 40-45.

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of Mr Leggett’s daughter being born on 7 June 2013 and Mr Leggett taking two weeks of parental leave. There is an overlapping of issue two and three but the relevant attribute here is parental status and family responsibilities. (Section 7(d) and (o)).

[142] In Du Bois-Hammond v Raging Thunder Pty Ltd and Others [2004] QADT 27 it was said:

140. By analogy, the question is: did the first respondent treat the complainant less favourably than he would have treated someone who took a similar period of leave with the same right to return to work (ie, equivalent to that set out in s 32 of the IRA) but who was not pregnant or was not a parent?

141. There was no evidence given of any comparator of how the respondents would have treated him or her. Critically, there was no evidence that the respondents would treat a person in a similar position and with similar experience who, with the respondents’ consent, took 7 months leave and has a right to return to work on a similar basis as the complainant, contrary, the respondents asserted that they had excellent retention rates with staff as a result of how well they treated them.

142. In the circumstances, I find that the reason or a substantial reason for Mr Ariel’s failure to appoint the complainant to the 2IC position was her taking of maternity leave and that this was less favourable treatment than would have been afforded the relevant comparator. It follows that this claim of direct discrimination on the attributes of pregnancy and parental status must succeed against the first respondent (whose conduct it was) and, as a consequence, also against the third respondent (s. 133).

[143] In Bishop v Gedge & Rudd [2008] QADT 17 the following was said (the emphasis is by counsel for the applicant):

27. I am satisfied and I find that the complainant was treated unfavourably at work by being denied carer’s leave that he was lawfully entitled to and by then being given a choice that he reasonably understood was a choice between staying at work and keeping his job or leaving his post to go home to his daughter and losing his job. I also find that this unfavourable treatment at work did amount to direct discrimination against the complainant on the basis of the attribute of “family responsibilities” because the complainant was treated less favourably than a person who did not have the same “family responsibilities” would be treated in circumstances that are the same or not materially different.

28. That the complainant was treated less favourably than a person without the same “family responsibilities” would have been

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treated in the same or materially similar circumstances became absolutely clear when the first respondent conceded in cross-examination that any other staff member who had come and asked for emergency time off that morning to go home to help a partner who had rung complaining of concerns of strange things happening at home would have been allowed to go. I also have no doubt that had any other employee presented to the first or second respondents that morning as ill and needing urgently to take personal sick leave to get medical attention that he or she would not have been treated in the same way as the complainant was that morning when he asked for urgent leave to take his sick daughter to get necessary medical attention. The complainant was, as such, directly discriminated against because of his responsibility to care for or support his dependent child, that is, his family responsibilities.

…

41. I accept that submission. I find that the first respondent’s concessions amounted to admission that the complainant’s access to training for a more senior position was at least limited, if not denied, for reason that he had been taking some short notice leave for family responsibilities. If, notwithstanding the fact that the complainant was a bit more reserved and quieter than he had been before he started having to take the short notice leave for family responsibility related matters in early 2005, his work performance was not affected, delaying his training because of the short notice leave amounted to limiting access to training activities substantially because of his family responsibilities. In that way, the complainant was being directly discriminated against substantially because of the attribute of family responsibilities.

42. I find it more probable than not that an employee who had not taken short notice leave related to family responsibilities would not have been treated in the same way as the complainant in respect of this training. Indeed, I consider that an employee who had taken short notice leave for matters not related to family responsibilities would more likely than not have been treated more favourably in respect of the continuation of the training. The first respondent clearly formed the view, apparently without sound basis, that somehow the stressful, emotional nature of the family matters impacted upon the complainant’s capacity to appropriately continue the training. The reality is that the complainant’s work performance was otherwise commended. Accordingly, I find that the complainant was treated less favourably when his training was stopped because of the attribute of family responsibilities than a person who did not have that

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attribute would have been treated and as such I find that the complainant was the subject of unlawful discrimination. It is important that I disregard the person’s motive for discriminating as it is irrelevant. That the first respondent might very well have believed that he was acting in the complainant’s best interests does not therefore overcome or excuse the discrimination the complainant was subject to.

[144] Because of the overlap and the reliance of the conversation on 2 May 2013 and the May request for appointment my comments and findings in issue two are apposite.

[145] CATEGORY 4: Direct discrimination by reason or trade union activities – not successful in his application to BHP Coal for an OCE position at the Mine.

[146] Mr Leggett claims BHP engaged in direct discrimination in or about October/November 2012 “because Mr Leggett was not successful in his application to BHP Coal for an OCE position at the mine”.59

[147] Counsel for the applicant submitted60 that “the basis upon which the applicant’s case is presented is that it suffices if one of the decision makers was affected or infected by a proscribed reason”.

[148] He identified Mr Mayne as a person who was affected of infected. That submission was based on exhibit 25 which was a statement by Ms Virine61 the solicitor instructing counsel and who took note of a conversation with Mr Mayne.

[149] Mr Mayne 62 was a supervisor of prestrip at Peak Downs Mine and was a member of an interview panel for OCE positions on 22 September 2012 along with Ms Jones and Mr Bird. He was telephoned by Ms Virine an asked questions. Notes were taken of the answers. The notes were not verbatim.

[150] Mr Mayne gave evidence he said “if all things were equal and the scores were the same, I said if I had to split hairs, Scott’s time commitment would probably be a disadvantage”63 In answer to the question “Did you take into account what you referred to as Scott’s time commitment in providing in providing any of the scores to Mr Leggett that you gave him during the course of the interview?” he answered “no, no64”. He said he did not in the course of the telephone conversation with Ms Virine on 28 August 2015

59 Applicants Further Amended Contentions Paragraph 36(a). 60 Transcript T8-68 Line 38. 61 Statement Ms Virine Exhibit 25 Annexure JEV2. 62 Exhibit 45. 63 T4-46 Line 15 and Line 35-45; T4-47 Line 1-7. 64 T4-46 Line 20.

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make any comment to the effect that Mr Leggett was a rescue member as well as union delegate.65

[151] He gave evidence that after the interviews he was asked by Mr Leggett “what can I do different next time to have a chance of getting an OCE role” he replied “Nothing that I can see, Scott. Keep doing what you’re doing and apply for the next group that come through.”66 Mr Tongue scored .5 of a mark better than Mr Leggett. Mr Mayne thought that it was not hard to choose a successful candidate after the OCE interview selection process. He said “it was black and white, the scores. You can’t dispute that.”67 He said “the interviews were decided by the scores on that interview process.”68

[152] He gave evidence that Mr Leggett’s position as a rescue member and as a union member was not a consideration at the interview time.69

[153] I accept the evidence of Mr Mayne despite the cross examination based on the notes made by Ms Virine. I am not saying that Ms Virine did not honestly make notes of what she understood to be the effect of the conversation with Mr Mayne. It seemed to be that there may have been some confusion about the effect or nature of the questions and hence the effect of the answers. I see no reason to treat the evidence of Mr Mayne as other than honest and credible.

[154] Further, even if the ability of Mr Leggett to be at the job full time was a consideration in the selection process I do not consider that to be discrimination on the basis of the attributes argued.

[155] Counsel for the applicant relied on two cases to support his contention that it suffices if one of the decision makers was affected or infected by a proscribed reason.

[156] In National Tertiary Education Union v Royal Melbourne Institute of Technology70 the Federal Court found in an Industrial dispute matter that for an employer to discharge the onus placed upon it in adverse action cases by the s 361(1) of the Fair Work Act (Commonwealth) FWA it is necessary for evidence to be given that the proscribed reasons alleged were not reasons that operated on the mind of the decision-maker in making the decision. The evidence led by the respondents, whilst not inconsistent with the possibility that their reasons were purely financial as asserted, contained no element of exclusivity in that focus. Rather, it was consistent with the possibility that there were other reasons behind the decision to make the applicant respondent redundant. What the evidence as a whole showed was that the respondent Vice-Chancellor’s approach to the redundancy processes suggested that she set out to achieve a pre-

65 T4-46 Line 25. 66 T4-49 Line 28. 67 T4-53 Line 12. 68 T4-54 Line 15 -20. 69 T4-54 Line 1-5. 70 [2013] FCA 451.

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determined result and would not allow herself to be diverted by anything that might prevent that result from being achieved. There was no clear articulation of the connection between the financial deficit to be cured and the choice of the applicant professor as the person to be made redundant. Rather, the evidence that she gave indicated that she had reasons other than those to which she referred explicitly. With regard to what reasons the other participants in the process held, the respondent Vice-Chancellor made no effort to investigate them; nor were they investigated at trial as the relevant personnel were not called. Therefore, it could not be said that their reasoning was free of any consideration of the workplace rights of the applicant professor as operative reasons for the decision. Thus, the respondents failed to discharge the onus imposed under s 361(1).

[157] In my view that decision does not stand for the proposition advanced in the context of relevant Anti Discrimination legislation here.

[158] In Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited 71 the Federal Court in an industrial matter concerning redundancy carried out close examination of the reasoning process employed by the three persons (separate decision makers) persons to ascertain whether Clermont Coal has discharged its onus to show, on the balance of probabilities, that the decision to dismiss Mr Scott was not substantially and operatively affected by the particular reasons identified. That requires it to establish that the reasoning process employed by all of these three men was not so affected. While the court was satisfied that Clermont Coal had discharged its onus insofar as two of the reasoning processes were concerned, it was not persuaded on the balance of probabilities that the third assessment was not substantially and operatively affected by one or more of the alleged particular reasons, or what it broadly described above as Mr Scott’s union activities at the Clermont Mine. Since the third person’s reasoning process had a material effect on the decision to dismiss Mr Scott, it followed that Clermont Coal had not discharged its onus under section 361 of the FWA to show that one or more of the alleged particular reasons was not a substantial and operative reason for that accepted adverse action.

[159] Again, in my view that decision does not stand for the proposition advanced in the context of the relevant Anti Discrimination legislation here and in circumstances when a panel made unanimous decisions in the selection process.

[160] I find that there is not credible evidence to support the submission that any of the decisions complained of were influenced by Mr Leggett having the attributes identified by him.

[161] Even if there was one of the panel was influenced by the attributes or one of them possessed by Mr Leggett I am of the view that that would not be sufficient to find discrimination unless the possession of the attribute was such that it was the cause of the decision adverse to Mr Leggett.

71 [2015] FCA 1014.

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[162] CATEGORY 5: Direct discrimination by reason of trade union activities – no or limited OCE opportunities or shifts.

[163] The applicant on this issue generally relied on summaries or other details of other production workers getting OCE work. The argument advanced was because Mr Leggett as a dragline operator was not released to act as an OCE and on occasions others were that Mr Leggett was the subject of discrimination.

[164] Counsel for the applicant submitted that it was reasonably practicable to appoint Mr Leggett and engage him as a relief OCE post complaint period.

[165] I was again urged to find Mr Hughes and Mr Iliffe dishonest or not persuasive. I do not so find for reasons given elsewhere in this decision. I did not find the contention and reasoning on the part of the applicant persuasive. I found the reasoning on behalf of the respondents persuasive.

[166] In McRostie v Boral Resources (Qld) Pty Ltd it was said ( the emphasis by counsel for the applicant):

The opportunity “to act up” in any large organisation is an important form of training. The individual who relieves in the higher position has an opportunity to acquire skills which prepares that person for future promotion. It also gives the employee an opportunity to display his or her ability to take on more responsibility. This may convince those higher in the organisation of the appropriateness of promoting this individual at some not too distant time…

I am of the view that the failure to allow Mr McRostie to relieve at any time when Mr Stone was away is sufficiently out of kilter with what one would expect of a Manager with Mr Stone’s experience as to raise, in the first instance, an inference that factors other than legitimate managerial criteria were intruding upon the decision. The explanation given by Mr Stone at paragraph 15.9 of exhibit 16 is based almost entirely on Mr Stone’s subjective opinions. To the extent that it relies upon objective matters, he is partially wrong in the sense that the job description and Hay points allocations were identical.

In the circumstances, the explanation is inadequate. This is another incident where I have considered the whole of the evidence very carefully and taken into account the seriousness of the alleged contravention. I have come to the view that the failure to grant Ms. McRostie the opportunity to relieve, over a longer period of time, goes beyond a mere failure to apply proper managerial criteria. I am satisfied that it is more probable than not that the decisions under question had, at least to a substantial degree, as their basis, the sex of the complainant.

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As in the previous decision considered (deletion from the list of attendees), my findings do not rule out other possible causal factors in the decision of Mr Stone. In terms of quantification, however, I think it is fairly unlikely that Ms. McRostie would have been refused any opportunity to relieve had not the factor of her sex intruded into the decision-making process.

[167] In Cockin v P & N Beverages Australia Pty Ltd & Ors [2006] QADT 42 the following was said:

61. Section 15 prohibits discrimination by, inter alia, “treating a worker unfavourably in any way in connection with work”. This provision is wide enough to encompass reducing the number of hours of work made available to a worker. I accept that Mr Cockin was treated unfavourably in connection with work by being offered fewer shifts after 5 March 2002 than before (with the exception of May 2002).

[168] I have had regard to those decisions and accept them as examples of findings of discrimination because the applicants were not given opportunities to “act up” because of an attribute. I do not find that the applicant here was prevented from acting as an OCE because of an attribute for reasons I have already articulated.

[169] CATEGORY 6: Direct discrimination by reason of parental status or family responsibilities – no or limited OCE opportunities or shifts.

[170] This issue involves consideration of much the same issues as above except the attribute is parental or family responsibilities.

[171] I note that Mr Leggett from 30 January 2014 to 11 June 2014 applied for and took parental leave to be the primary care giver of his daughter and two weeks of long service leave.

[172] As above if Mr Leggett was not given the opportunity to act as a OCE because of an attribute that would be direct discrimination however I am not satisfied that he was denied such an opportunity by Mr Hughes because of an attribute.

[173] CATEGORY 7: Direct discrimination by reason of trade union activities – not permitted to participate in training.

[174] This complaint concerns Mr Leggett not being permitted to participate in scheduled Mine Rescue Training. An example relied upon was on 17 July 2014. Mr Leggett made a diary note.72 Mr Leggett said that when he spoke to Mr Hughes he said “You’re not going. Got PPL any way. I make the decisions”. Mr Leggett says that dragline seven at the relevant time was down for two shifts. The respondents say that even when there is a dragline down there is work to be done.

72 Exhibit 5 SL17.

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[175] Mr Leggett says that Mr Hughes was the person who stopped him being able to attend training and Mr Hughes says it was the supervisor.

[176] The respondents contend that Mr Leggett was not released because of operational requirements. The applicant contends that I should reject evidence supporting that contention because the evidence is dishonest or not persuasive or should be rejected. I decline to reject that evidence because it is persuasive and logical. I note that Mr Leggett did not overall lose any qualification or certification. I am not satisfied that Mr Leggett was not permitted to attend training because of any attribute.

[177] CATEGORY 8: BHP direct discrimination by reason of trade union activities – failing to investigate or otherwise deal with Mr Leggett’s complaints to Mr Iliffe.

[178] The applicant contends that BHP discriminated against him by not investigating or otherwise dealing with a complaint made by him based on his trade union activities.

[179] He made a complaint to Mr Iliffe on 31 July 2015. He says that he was told by Mr Iliffe that Mr Iliffe would put the allegations to Mr Hughes. There are documents which were produced by BHP which notes some decisions made concerning the complaint “based on findings from the investigation”. There are interview notes and a summary of response. There is evidence that by 29 October 2014 a decision had been made to continue the investigation of Mr Leggett’s complaint73 and on 4 November 2014 Mr Iliffe and Mr Hughes were interviewed concerning the complaint by Ms Down.

[180] I have noted the evidence to the effect that Mr Leggett did not want to make a formal complaint or was not prepared to participate.74

[181] In my view it is not correct to say there was no investigation about the complaint. In my view there was an investigation. It may be that Mr Leggett was not satisfied with the methodology used in the investigation but the evidence in my view does not disclose that there was not an investigation because of an attribute.

[182] CATEGORY 9: Direct discrimination by reason of parental status or family responsibilities – failing to investigate or otherwise deal with Mr Leggett’s complaints to Mr Iliffe.

[183] This category is much the same as the category above except that the attribute alleged is parental status or family responsibilities.

[184] The finding above applies under this category.

[185] CATEGORY 10: Direct discrimination by reason of trade union activities – requiring Mr Leggett to attend upon a medical practitioner other than his own medical practitioner for his Mine Rescue medical.

73 Statement Mr Leggett SL23-28. 74 Transcript T4-89 to T4-90.

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[186] This category was not pressed.

[187] CATEGORY 11: Direct discrimination by reason of parental status or family responsibilities – requiring Mr Leggett to attend upon a medical practitioner other than his own medical practitioner for his Mine Rescue medical.

[188] This category was not pressed.

[189] CATEGORY 12: Direct discrimination by reason of trade union activities – not appointing Mr Leggett to a permanent OCE role.

[190] This category concerns the failure to appoint Mr Leggett to a permanent OCE role after the 9 June 2015 interviews. It is an allegation against BHP for 30 July 2015. It is in part a reliance on matters raised in category 1. I will not repeat my reasoning in that regard.

[191] Counsel submits that the applicant only needs to establish one of the decision makers on the panel was infected or affected by discriminatory reasons. He submits that Mr Iliffe was the infected or infected person.

[192] The basis of that submission was that he was the person who insisted on the last two questions of the interview guide which counsel said “made express reference to attributes held by Mr Leggett, namely, he was an employee representative, he was a member of the emergency response team, which the evidence establishes was also known as the mines rescue team and Mr Leggett had taken the approved leave in the form of parental leave. He relies on exhibit 10 which I have considered above. (See [114][115])

[193] In State of Victoria v McKenna it was said:

41. It seems to me that one must be careful not to read too much into the decision of Fullagar, J. in Arumugam. It is a very detailed and closely reasoned judgment. In the passages relied upon by the appellants, his Honour chose his words carefully. A particular passage relied upon by counsel for the appellants was the following (at 325):

“…the mere fact that the appointment did not go to the man who the Board considered to be clearly the better qualified candidate, did not of itself ‘indicate discrimination of some kind’, and therefore I consider that the Board in this case misdirected itself in law.” (my italics)

“If all that is proved, by inference or otherwise, in the absence of explanation, is less than all the elements of proof required for the complaint to succeed, neither a total absence of explanation nor a non-acceptance of an explanation can by itself provide an element of proof required. It can enable already available inferences to be drawn against dishonest explainers with greater certainty, but that is all. In the present

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case, the element of ‘on the ground of race’ was, in the absence of explanation clearly lacking, and the non acceptance of the proffered explanation could not provide the missing elements.” (at 330).

It has been argued that in this passage his Honour was in effect requiring

“the complainant to carry the entire evidentiary burden. The absence of a legitimate reason or any reason on the employers part can only strengthen inferences already available, not provide a basis for inferring, for example, that the discrimination was based on an unlawful ground. So this does nothing about the problem of proof of direct discrimination. It is contrary to the approach taken in most other jurisdictions, and renders the Victorian provisions on direct discrimination on the ground of status (race, sex, impairment etc.) close to unenforceable.” (Beth Gaze, “Problems of Proof in Equal Opportunity Cases,” 1989 Law Institute Journal 731 at 733).

If in the last passage of Fullagar, J’s reasons cited about, his Honour was in fact arguing what is attributed to him by the learned author, I would with respect disagree with his Honour’s analysis. It seems to me, however, that his Honour was not going that far. His Honour was postulating a situation in which a necessary element was not supported by evidence or inference and stating that in that situation absence of an explanation or rejection of an explanation could not fill the evidentiary or inferential gap.

Read strictly, the above propositions of Fullagar, J may be accepted but it needs to be borne in mind that what his Honour relied upon principally in allowing the appeal was a conclusion that the finding of discrimination by the Board was not open because the Board had accepted that the Panel had found Dr Arumugam to be less articulate and less aggressive that Dr Doherty and that it was seen as essential that the Psychiatrist Superintendent of the hospital be dynamic and articulate (what his Honour called step (2) of the Board’s reasoning). This led his Honour to state, inter alia,

“It is to be observed that the Board did not state any finding that the complainant’s superiority over Dr Doherty as a candidate for the job was so great, and so plainly evident, that no reasonable selection board, acting reasonably, could have arrived at the conclusion that Dr Doherty was the man for the job… In the absence of such a finding it was impossible for the Board in the present case having made its finding in numbered step (2) [i.e. the complainant was less articulate and less aggressive], to hold that an inference of discrimination arose

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from numbered step (1) [that the complainant was substantially better qualified].” (at 327).

A little later, his Honour stated that:

“In my opinion, upon evidence accepted by the Board, other explanations that utter unreasonableness or actual racism, for the conclusions of the members of the Panel, were clearly more probable.” (At 327) (See also P.326).

What his Honour said in that case has to be read in the context of the facts of that case. His Honour saw finding number (2) as preventing a finding or racial discrimination. If his Honour’s reasons are used, however, to suggest that the relevant evidence could not include the fact that the complainant was black (or in this case female), that would seem to be to be going further than his Honour intended. In cases like Arumugam, or the present case, a given fact to be considered in considering all the evidence is the race or gender of the complainant which is to be compared with the race or gender of the complainant which is to be compared with the race or gender of the other persons involved. Another relevant fact would be the existence of racism or sexism in the community. His Honour in fact referred to the presence in the community of the phenomenon of racism, a phenomenon that is known to affect decision making by people (at 327). That phenomenon is a matter of background fact which courts can be drawn on or judicially notice (See P.V. Carter, “Judicial Notice: Related and Unrelated Matters” in “Well and Truly Tried”, ed. by Campbell and Waller, 1982). Bearing these points in mind, It might be properly argued for example, having regard to the existence of racism in the community, that where a choice was made between two individuals, one of whom was black and one of whom was white, and the white (or the black) person was selected, a number of possible inferences arise for consideration, one of them being that race was a factor in the choice because of the existence of racism and the fact that a choice was being made may reveal that the inference should not be drawn. Arumugam was such a case; for while the complainant had better qualifications he was “less articulate and less aggressive” and for that reason less suitable. An innocent explanation existed and was accepted. But if, after an analysis of the proven facts, the initial inference of racial discrimination remains open and the innocent explanations offered are rejected, it is not clear to me why the inference should not normally be drawn (c.f. Fullagar, J. in Arumugam at 330, and Anderson, J., in KLK Investments Pty Ltd v Riley (1993) 10 WAR 523 at 528) even though there is no additional positive evidence to support the drawing or the inference. It

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seems to me that the same points may be made in relation to sexism and complaints of sexual discrimination.

[194] I have read and had regard to the above case and paragraphs cited by counsel for the applicant. The circumstances here, is, in my view, different to what was being considered above.

[195] For reasons I have already given about the effect and content of the questions I do not accept that the questions were an indication that they were included to discriminate against Mr Leggett. I accept the reasons given for their inclusion and as I have said note that the format included a statement and then a question directed at how an applicant would deal with a situation or possible conflict. Because Mr Iliffe was instrumental in having the questions included does not lead to a conclusion that he was likely to discriminate against Mr Leggett. In my opinion the inclusion of the questions was legitimate to ascertain information about matters which were relevant to the carrying out the duties of an OCE. I note that Mr Earl was also actively involved in the union as delegate.

[196] I accept the evidence of Mr Iliffe and find that he did not discriminate against Mr Leggett.

[197] CATEGORY 13: Direct discrimination by reason of parental status or family responsibilities – not appointing Mr Leggett to a permanent OCE role.

[198] This category is much the same as the above category except the attribute relied on is parental status or family responsibilities.

[199] The reasoning above is applicable to this category.

[200] VICTIMISATION

[201] The above topic was contained in category 13 but it is developed in category 14.

[202] Victimisation is defined in section 130 of the Anti Discrimination Act and is set out in [52] above.

[203] In McCauley v Club Resort Holdings Pty Ltd (No 2) it was said:

[17] Victimisation is defined in section 130 of the Act. It occurs (relevant to these proceedings) when somebody treats another detrimentally because that person has made a complaint of discrimination.

[204] In TT and Ors v Lutheran Church of Australia Queensland District and Ors [2013] QCAT 48 it was said:

[109] In simple terms, in this case the first complaint of victimisation specifically alleges that it was either the fact of, or the suggestion or likelihood of a complaint being made concerning either the

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Googa Camp incidents or the ‘detention room’ issue, that led to the decision to direct staff not to communicate with her. For ss 129 and 130 to operate, there must be three elements shown; first that a person has done an act or has threatened to do an act, secondly that that act is to the detriment of another, and finally that there is a causal nexus between any detriment suffered and the matters stated in s130 of the Act. It seems to me at least strongly arguable that a direction that College staff who might be the teachers of a parent’s pupil at a school who are directed not to communicate with that parent is detriment sufficient to invoke the definition in s130. It is on the issue of causal nexus that the complaint of victimisation stumbles.

[110] There is a body of authority which supports the view that to establish the relevant causal nexus, it is sufficient if the relevant Act which would amount to victimisation within the meaning of s130, was as substantial or operative factor or reason for the detrimental conduct.

[205] I accept the need for the elements set out above and what is needed to establish the relevant causal nexus.

[206] CATEGORY 14: By reason of the complaints: On 2 May 2013, Mr Leggett made verbal complaints to Mr Hughes; After or about 15 May 2013 Mr Leggett made verbal complaints to Mr Graham Phillips, EEO Officer; On 24 May 2013 Mr Leggett lodged a complaint with the BHP Business Code of Conduct Hotline

[207] Mr Leggett contends that he was victimised because of the matters set out in [207].

[208] He says that because of those matters BHP and Mr Hughes from 2 May 2013 up to and including 27/29 January 2014, only gave Mr Leggett eight OCE relief shifts, on 11 June 2014 he was not permitted to participate in scheduled Mine Rescue Training, on 17 July 2014 he was not permitted to participate in scheduled Mine Rescue Training and on and from 31 August 2014 he was not permitted to participate in scheduled G2 Training.

[209] Much off the consideration of this matter involve the consideration of factual matters considered in the context of the above discrimination claims. The findings made above are relevant in the context of this claim.

[210] I do not find a person has done an act or threatened to do an act to the detriment to Mr Leggett which has any causal nexus between any detriment suffered by Mr Leggett and the matters stated in section 130 of the Act.

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[211] Mr Hughes contends that he was not aware of the complaints of 15 May 2013 or 24 May 2013 at any material time. He considered the conversation of 2 may 2013 to be a brief discussion and not a complaint.75

[212] He submits that the discussion had none of the features required to satisfy section 130(1) of the Anti Discrimination Act.

[213] I have examined each of the points set out in pages 57 to and including 59 and the evidence referred to and although I accept that from 2 May 2013 Mr Leggett was given only eight OCE relief shifts, on 11 June 2014 and 17 July 2014 was not permitted to participate in scheduled Mine Rescue training and on and from 31 August 2014 was not permitted to participate in scheduled Mine Rescue Training I do not find any nexus between those matters and to the complaints made by Mr Leggett.

[214] I accept that there is persuasive, credible explanation other than action being taken because of the complaints relied upon by the applicant.

[215] CATEGORY 15: By reason of the complaints:

On 2 May 2013, Mr Leggett made verbal complaints to Mr Hughes

After or about 15 May 2013, Mr Leggett made verbal complaints to Mr Graham Phillips, EEO Officer

On 24 May 2013, Mr Leggett lodged a complaint with the BHP Business Code of Conduct Hotline

On 31 July 2014, Mr Leggett confirmed to Mr Iliffe Mr Leggett’s complaints

On 25 August 2014, Mr Leggett confirmed again to Mr Ilffe Mr Leggett’s complaints

[216] Mr Leggett contends that because of the complaints set out above BHP and Mr Hughes from 11 June 2014 up to and including 14 September 2014 only gave him limited OCE shifts, from 25 September 2014 and continuing (until 24 September 2015) and he was given no OCE shifts.

[217] He also contends that because of those complaints BHP from 25 September 2014 and continuing (until 24 September 2015) failed to investigate to otherwise deal with Mr Leggett’s complaints to Mr Iliffe of 31 July 2014 and 25 August 2014 and BHP on 30 July 2015 did not appoint him to a permanent OCE role.

[218] Much of this category is covered by category 14. The same considerations apply.

75 Exhibit 19 at [167] to [178].

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[219] Mr Hughes says that he did not become aware of the complaints of 31 July 2014 and 25 August 2014 until he was verbally informed of the complaints in September 2014 and was provided with a copy of the 25 August 2014 complaint at that time. I accept that evidence.

[220] Again I have examined all of the matters raised on pages 59 to 61 of the applicants written submission together with the evidence referred to and although I accept that the outcomes sought by the applicant did not occur I do not find the necessary nexus between the complaints and the failure of the applicant to get the outcomes he contended he should have been given.

RELIEF SOUGHT

[221] Section 209 of the Anti Discrimination Act provides for the types of orders the tribunal can make if the complaints are proved.

[222] Mr Leggett sought orders that all discriminatory behaviour cease and that he be treated the same as any other employees. (Section 209(1)(a) ADA)

[223] He wanted a written apology from the respondents pursuant to section 209(1)(d) of the ADA Act and damages pursuant to section 209(1)(d) of the ADA plus interest (pursuant to section 209(1)(d) of the ADA)

[224] He also wanted the respondents to undergo training pursuant to section 209(1)(b) of the ADA.

[225] He wanted Mr Hughes to have no future involvement in any decision making concerning Mr Leggett, an agreed process to give Mr Leggett OCE work opportunities and finalisation of the investigation of his complaints.

[226] He made no claim for economic loss.

[227] In Du Bois-Hammond v Raging Thunder Pty Ltd and Others [2004] QADT 27 it was said:

156. There are no other decisions of this Tribunal squarely on point. Decisions concerning pregnancy and parental status have awarded general damages in the range of $3,000 to $10,000 (Everett v Copperart Pty Ltd [1997] QADT 14, Dickie v Newman [1998] QADT 11, Porter v Matson & Locomotive International Pty Ltd [1997] QADT 2, Skellern v Colonial Gardens Resort Townsville & Attlee [1996] QADT 4 and Johnson v Gloria Marshall Figure Salons of Australia [1999] QADT 6. In the decision of Rispoli , Federal Magistrate Driver awarded general damages of $10,000.

157. I accept the complainant’s evidence about the effect of the respondents’ conduct on her. The grounds upon which her claim succeeds are those which led to the severing of the employment relationship with the third respondent. It was the

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termination of her relationship which was the main source of her hurt, humiliation and stress. On the basis of the complainant’s evidence and after considering the cases referred to above, I award general damages in the sum of $10,000.

[228] Mr Leggett gave evidence of how he and his wife were effected by what he claimed was discrimination and victimisation.

[229] Gardener v Norcott [2004] QADT 39 said:

39. The complainant gave evidence that he was troubled by being asked his age. He gave evidence of the hurt and humiliation that he experienced and the disappointment that he felt when he did not get the job. The first respondent showed absolutely no remorse for the actions which I have found amounted to a contravention of the Act and effectively made a submission to the Tribunal that the complainant’s hurt and humiliation showed weakness in his character. The first respondent ran her case on the basis that the complainant was making up much of his story for his own gain. It was obvious during the hearing that this further troubled the complainant. As such, the hurt and humiliation suffered by the complainant as a result of the contravention of the Act was exacerbated; but I am conscious of the fact that the vindication my finding in his favour will provide the complainant along with the damages I order him to be paid should provide him with suitable redress, going a long way towards alleviating any ongoing feelings of hurt and humiliation.

40. In the circumstances, I find that it is appropriate that the respondents pay the complainant the sum of $2,500 for the hurt and humiliation that the contravention for the Act has caused him.

[230] McRostie, State of Victoria v McKenna [1999] VSC 310:

However, a very large proportion of the distress suffered by the complainant was attributable to events in respect of which I have not made a finding in the complainant’s favour.

On the other hand, each of the matters where I have made a finding in the complainant’s favour are quite significant events which would have been quite distressing at the time. It also seems to me that each of those matters involved decisions which had an impact on Ms McRostie’s status within the respondent organisation and they are likely to have had negative impact on her prospects with regard to subsequent human resources decisions. Indeed, it seems to me that there is a probability (albeit significantly less than 50% but more than speculative) that the decision whether or not to advertise might have been different if Ms McRostie had been given the opportunities to

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impress superiors, including Mr Stone, and also others influential in the organisation by relieving Mr Stone from time to time.

In the circumstances, I am of the view that I should order by way of compensation in the nature of general damages the sum of $7,500 to compensate the complainant for the loss or damage caused by the contravention of the Act.

[231] Cockin v P & N Beverages Australia Pty Ltd & Ors [2006] QADT 42:

109. It is impossible to make any precise calculation of Mr Cockin’s economic loss due to the acts of unlawful discrimination that I have found to have taken place. In my view, this loss can best be estimated by taking one quarter of the figure representing the total decline in Mr Cockin’s net wages in the period from March 2002 to May 2003 of $17,955. That gives $4,485, which I will round up to $4,500.

110. I propose to make a modest award of compensation to Mr Cockin for his hurt feelings as a result of the unlawful discrimination. I will award him $3,500.

111. I intend to award only a small amount to Mr Cockin for the conduct of P & N Beverages in victimising him by refusing to allow him to work as a security guard at P & N Beverages’ site. Mr Cockin must have expected when he sought work with Mr Sabatino that he would not be permitted to work at the P & N Beverages’ site. I am not satisfied that he has demonstrated economic loss as a result of the victimisation. In these circumstances, an award of $500 is sufficient.

[232] For the reasons I have given I find that discrimination or victimisation by either of the respondents has not been proved and the sought orders will not be made.

[233] If discrimination was proved in my view the appropriate award for general damages would be $10,000.

[234] In those circumstances the application is dismissed.