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  • Unreported Judgment

Lunn v Roman Catholic Trust Corporation for the Diocese of Townsville

 

[2019] QIRC 122

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lunn v Roman Catholic Trust Corporation for the Diocese of Townsville & Anor [2019] QIRC 122

PARTIES:

Lunn, Tiana

(Applicant)

v

Roman Catholic Trust Corporation for the Diocese of Townsville

(First Respondent)

&

Stott-Whiting, Nicole

(Second Respondent)

CASE NO:

AD/2018/62

AD/2018/63

PROCEEDING:

Referral of Complaint

DELIVERED ON:

2 September 2019

HEARING DATES:

29 April 2019

30 April 2019

HEARD AT:

Townsville

MEMBER:

Industrial Commissioner Black

ORDER:

Application dismissed

CATCHWORDS:

ANTI–DISCRIMINATION LAW – complaint of direct discrimination and victimisation – attributes of pregnancy and family responsibilities – casual employee whose hours of work were reduced

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) ss 7, 9, 10, 15, 130, 204

CASES:

TT and Ors v Lutheran Church of Australia Queensland District and Ors [2013] QCAT 48, 109;

Wadsworth v Akers and Woolworths Ltd trading as Big W Discount Stores [2007] QADT 17.

APPEARANCES:

Ms T Lunn, the applicant, in person

Ms S Clive of Crosby Brosnan & Creen Lawyers for the respondents

Decision

Introduction

  1. [1]
    The applicant lodged a complaint in the Anti-Discrimination Commission Queensland (ADCQ) on 14 February 2018 alleging direct discrimination. A subsequent complaint was lodged on 30 April 2018 alleging victimisation.
  1. [2]
    The complaints were accepted pursuant to ss 136 and 141 of the Anti-Discrimination Act 1991 (the Act) and subsequently referred to the Queensland Industrial Relations Commission (the Commission) pursuant to s 166(1)(a) of the Act.
  1. [3]
    The Referral Notices were filed with the Commission on 2 August 2018. The Notices relevantly state that each complaint "related to or includes work or the work-related area" and were treated as indicating:
  1. (i)
    "Pregnancy Discrimination and Family Responsibilities Discrimination in the work and pre-work areas – Sections 7(c), 7(o), 10, 11, 14 and 15"; and
  2. (ii)
    "Victimisation in the area of work – Section 129".

Joinder

  1. [4]
    AD/2018/62 (victimisation complaint) and AD/2018/63 (discrimination complaint) were joined with the parties' consent on 5 October 2018 and the matters were heard concurrently.  

Legislative Scheme

  1. [5]
    Part 2 of Chapter 2 of the Act identifies "Prohibited grounds of discrimination". Section 7 prohibits discrimination on the basis of various defined "attributes" including the attributes, in s 7(c), of "pregnancy", and in s 7(o) of "family responsibilities". Section 8 of the Act refers to the meaning of discrimination on the basis of an attribute.
  1. [6]
    Part 3 of Chapter 2 of the Act identifies "Prohibited types of discrimination". Section 9 prohibits "direct" and "indirect" discrimination. Section 10 defines the meaning of direct discrimination:

10  Meaning of direct discrimination

  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.
  1. [7]
    Section 10(4) provides that in the event of the less favourable treatment being attributed to more than one reason, the substantial reason for the treatment is to be identified:
  1. 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.
  1. [8]
    Part 4 of Chapter 2 of the Act identifies "Areas of activity in which discrimination is prohibited". The areas of activity are set out in Division 2 through to Division 11.
  1. [9]
    Division 2 of Part 4 deals with "Work and work related areas". Section 15 identifies types of discrimination in the area of work. Section 15(f) provides that a person must not discriminate by treating a worker unfavourably in any way in connection with work, while s 15(b) provides that a person must not discriminate by "denying or limiting access to opportunities for promotion, transfer, training or other  benefit to a worker".
  1. [10]
    The effect of the legislative scheme is that, for the applicant to establish direct discrimination, she needs to show that she was treated less favourably than another person without the protected attribute, in circumstances that are the same or not materially different.
  1. [11]
    Part 4 of Chapter 5 of the Act prohibits "victimisation". The meaning of "victimisation" is set out in s 130 of the Act:

130  Meaning of victimisation

  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)—
  1. because the complainant, or a person associated with, or related to, the complainant—
  1. refused to do an act that would amount to a contravention of the Act; or
  2. in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
  3. is, has been, or intends to be, involved in a proceeding under the Act against any person; or
  1. 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).
  1. In this section, a reference to involvement in a proceeding under the Act includes—
  1. making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
  2. involvement in a prosecution for an offence against the Act; and
  3. supplying information and producing documents to a person who is performing a function under the Act; and
  4. appearing as a witness in a proceeding under the Act.
  1. [12]
    The legislative elements that need to be satisfied by a complainant were identified by Member Roney SC in the matter of TT and Ors v Lutheran Church of Australia Queensland District and Ors:[1]

[109] 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 s 130 of the Act.

  1. [13]
    Member Roney also noted that a body of authority 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 s 130, was a substantial or operative factor or reason for the detrimental conduct".[2]
  1. [14]
    For the applicant to establish that she has been victimised, it is for the applicant to prove firstly that the respondents have performed an act or done something which has caused detriment to the applicant. If these two elements are proven, the applicant must then prove that the detriment suffered was causally connected with the matters stated in s 130(1)(a) or (b) of the Act.
  1. [15]
    The acts of detriment complained of by the applicant are:
  1. (i)
    The respondents did not afford her a reasonable opportunity to compete for a full- time position; and
  2. (ii)
    The respondents did not allocate her any work after she returned from maternity leave.
  1. [16]
    It is for the applicant to identify what it was that she did that is mentioned in s 130(1)(a)(i), (ii) or (iii) of the Act. The applicant must explain how she refused to do something which involved a contravention of the Act, what allegation she had made to the effect that someone had contravened the Act, or what proceeding under the Act she intended to commence or be involved in.
  1. [17]
    The effect of section 204 of the Act is that it is for the applicant to prove, on the balance of probabilities, that the respondent contravened the Act.

Witnesses

  1. [18]
    Witnesses for the applicant were as follows:
  • Ms Tiana Lunn (applicant);
  • Ms Luisa Malo (supervisor);
  • Ms Nancy Sandford (co-worker);
  • Ms Melissa Feather (co-worker).
  1. [19]
    Witnesses for the respondents were as follows:
  • Ms Nicole Stott-Whiting (second respondent);
  • Mr Brett Girgenti (student);
  • Mr Luke McCarthy (student);
  • Ms Gina Alfia Lamara (office administrator).

Short chronology

  1. [20]
    The applicant commenced work with the first respondent on 17 March 2017 as a casual cleaner at Saints Catholic College which is a residential college for students attending James Cook University. Up to 286 students can be accommodated at the college.
  1. [21]
    In or around June or July 2017, the applicant advised the then-principal of the college, Mr Tom Tarttelin, that she was pregnant. At some point, Mr Tarttelin asked her to provide a medical certificate relevant to her fitness for work, and in October 2017 he told the applicant to give Ms Malo two weeks notice of her intention to return to work. The applicant subsequently commenced her maternity leave on 21 October 2017 and gave birth to her child on 14 November 2017.
  2. [22]
    On 13 November 2017, the applicant was invited to attend a complimentary retirement dinner in honour of Mr Tartellin. Following Mr Tartellin's retirement, the second respondent was appointed principal of the college.
  1. [23]
    On 18 December 2017, the applicant was notified that she would be required to attend staff training and development from 8.30 am to 4.00 pm on 23 and 24 January 2018.  The applicant attended the on-site staff training, and on 23 January 2018 she advised the second respondent that she wanted to return to work on 19 February 2018.
  1. [24]
    During the staff meeting on 23 January 2018, the applicant was informed by the second respondent that cleaning labour costs had significantly exceeded budget; that two employees who were members of the casual cleaning pool had been appointed as full time employees; that the remaining members of the casual pool would only be offered hours if full time staff were on leave or if extra help were required; and that there was no guarantee that casuals would get any work.
  1. [25]
    Not long after the staff meeting, the applicant formed the view that she had been discriminated against because of her pregnancy and family responsibilities, and on 14 February 2018, she filed a complaint with the ADCQ.  
  1. [26]
    The applicant was not allocated any shifts after her return date of 19 February 2018. This arrangement was not sustainable for economic reasons and the applicant effectively ended her employment relationship with the first respondent on 26 March 2018.
  1. [27]
    On 14 April 2018, the applicant filed a complaint of victimisation against the first and second respondents. A complaint form was completed on 30 April 2018 and an email from the applicant dated 30 May 2018 added some particulars. In the complaint form, the applicant said that she thought that she had been victimised because she had made a complaint about discrimination. In her email dated 30 May 2018, the applicant identified her detriment by alleging that, because of her complaint of discrimination, while other casuals had been allocated work, she had not been rostered for any work.

Applicant's contract of employment

  1. [28]
    The applicant's contract of employment is in the evidence as Exhibit 6. The contract stipulated inter alia that the applicant was employed on a casual and "as required" basis, and that there was "no guarantee of ongoing or regular work". Employment was regulated by the Educational Services (Schools) General Staff Award 2010.
  1. [29]
    I accept that pursuant to the contract of employment, the applicant was not guaranteed regular hours and it was at the discretion of the first respondent whether casual hours were offered to the applicant. Save and except for any adverse finding relating to discriminatory conduct, it was not unlawful for the first respondent to decline to offer the applicant work or to vary the working hours arrangement at any time.
  1. [30]
    It the circumstances, to establish direct discrimination, it is for the applicant to prove that the change to her working arrangements and the consequential reduction in her hours of work in February 2018, were changes that were made by the respondents because of her pregnancy and/or because of her family responsibilities.

Applicant's claims

  1. [31]
    The applicant alleged that she had been discriminated against in the course of her employment, and that she had been victimised because she brought a complaint under the Act. In more particular terms, it is alleged that the respondents breached the Act by: 
  1. (a)
    Not considering the applicant for full-time employment or by not giving the applicant the opportunity to apply for a full-time position (direct discrimination);
  2. (b)
    Failing to provide shifts from the date she had nominated as her return to work date (direct discrimination);
  3. (c)
    Not providing shifts to the applicant after she made a complaint to the ADCQ despite hiring a casual employee to work full-time hours in the building assigned to the applicant during the time of her employment (victimisation).
  1. [32]
    The applicant also argued that in not providing shifts to her after the birth of her child, the respondents had breached the parental leave provisions of the Fair Work Act 2009. However, entitlements to parental leave under the Fair Work Act 2009 are not available to employees who have completed less than twelve months continuous service prior to the birth of the child. In the applicant's case, she had only completed approximately nine months service, and therefore she was not eligible to claim the benefit of the statutory provisions.

Protected attribute of pregnancy

  1. [33]
    The applicant informed her employer in June or July 2017 that she was pregnant, and she stopped work as planned on 20 October 2017. She gave birth to her child on 14 November 2017.
  1. [34]
    It is difficult to sustain the applicant's argument that she had been treated less favourably because of her pregnancy. When she informed the principal of her pregnancy, she said that the principal was "very supportive" and described her interactions with the principal in the following terms (T1-86):

Was there any process within the college of applying for maternity leave or anything like that?---No. No, Tom just stated to me that contact him if I ever needed anything. And he contacted me sporadically to find out if I was okay. He’d come and see me or pull me aside to see if I was okay. And he said to let Luisa know two weeks prior to my coming back that I wanted to come back. And he was very supportive the whole pregnancy. 

  1. [35]
    During her pregnancy, there was no significant change to the applicant's hours of work and she continued to work for as long as she wanted to. When she stopped work, she stopped at a time of her choosing. After she stopped work, she remained employed as part of the casual cleaning pool and was treated as an ongoing employee by the respondents. While she was on maternity leave she received an invitation to the principal's retirement dinner and she was asked to attend the staff training days in January 2018.
  1. [36]
    There is no evidence that the applicant was treated less favourably, or that her employment status had altered to her detriment as a result of her pregnancy. The applicant has not made out her claim of direct discrimination by reference to her pregnancy.

Protected attribute of family responsibilities

  1. [37]
    The applicant's claim of direct discrimination turns on whether she has been subject to discrimination by reference to her family responsibilities in that she was treated less favourably in not being considered for full-time employment, and in having her allocated of hours of work reduced to zero.
  1. [38]
    It follows that the applicant must establish that she was treated less favourably than another person without family responsibilities in circumstances that are the same or not materially different. The applicant did not identify whether the comparator was a hypothetical comparator or a casual co-worker who did not have family responsibilities.
  1. [39]
    It is not known how many members of the casual cleaning pool had family responsibilities. It is known that Ms Feather, who also had school aged children and family responsibilities, was a casual who, like the applicant, was not offered work at the start of the 2018 university year. However, it is not known whether the three members of the casual pool who were offered full time employment, or the other members of the casual pool who were offered hours in 2018, had family responsibilities. It is also relevant that, in the terms of the attribute in question, the applicant's status had not changed. That is, when she was first employed by the second respondent, she had family responsibilities. The arrival of her third child does not alter her status.
  1. [40]
    The applicant did not provide any direct evidence of discriminatory practice and, as is not unusual in these types of proceedings, the applicant needed to construct a circumstantial case to the effect that, because of the timing of events, the decision of the respondents to treat her less favourably and to not offer her casual hours, must have been related to the fact that she had her third child, and had family responsibilities.

Full-time employment

  1. [41]
    The applicant claimed that she was treated less favourably than other casual cleaners in that she did not have the same opportunity to apply for a full-time position or be considered for a full-time position.
  1. [42]
    There are a number of difficulties with the applicant's position. Firstly, the applicant did not identify whether the casual employees who were offered full-time positions had family responsibilities.  If they did have family responsibilities, the applicant could not have been treated less favourably by reference to the protected attribute of family responsibilities.
  1. [43]
    Secondly, on the second respondent's evidence which I accept, no one was invited to apply for the full-time positions. In her evidence, Ms Feather, who was also a casual employee at the time, confirmed that she was not given an opportunity to apply for a full-time position. She said that she may have been interested in applying for full-time work but she did not have the opportunity to apply and she did not know that full time positions were created until the middle of 2018. It follows that the applicant was not treated differently than anyone else in terms of being denied an opportunity to apply for a full-time position.
  1. [44]
    Thirdly, again on the second respondent's evidence which I accept, all members of the casual pool were considered by the second respondent before making her final determination of who should be offered full-time jobs. In this regard the applicant had not been treated differently and was considered for a full-time position along with other members of the casual pool.
  1. [45]
    The second respondent appointed two casual employees to full-time positions on 13 January 2018. The effect of the second respondent's evidence was that she evaluated the performance of all six casual cleaners, including the applicant, when she considered who should be offered full-time positions. As a result of her evaluation, the second respondent preferred three casuals because the second respondent considered that the standard of their work was higher than the standard of the work of the other cleaners, including the applicant.
  1. [46]
    I accept that the respondents were not obliged to implement a recruitment and selection process. They were not obliged to advertise vacancies or to give all casual cleaners an opportunity to apply for, and to be interviewed for, the permanent positions. The respondents were entitled to offer the permanent positions to those persons who it considered were the superior performers. There is nothing unlawful or discriminatory about the approach adopted. The applicant has not proven, on the balance of probabilities, that the conversion of two casuals to full-time employment was motivated, not by performance considerations, but by a process in which the applicant was excluded from consideration because she had family responsibilities.

Reduction in hours

  1. [47]
    It was the respondents' case that the change in the applicant's hours of work was caused by a restructure of housekeeping staffing arrangements and was not motivated by discriminatory reasons. The second respondent provided an extensive explanation for why it was necessary to change the staffing arrangements. The precipitating event was a cleaning labour cost overrun in the 2017 calendar year. The effect of the second respondent's evidence was that around November 2017 it became evident that cleaning expenditure would significantly exceed budget. At the time, the indications were that the budget would be exceeded by approximately $11,000, but ultimately the excess reached $20,000.
  1. [48]
    In order to determine the cause of the budget overrun, the second respondent conducted an audit of the number of actual cleaning hours required for each building, and reviewed cleaning schedules and staffing arrangements across previous years. Following the review, she identified two causes of the cost overrun. The first cause was a practice in 2017 of replacing full-time cleaners with casual cleaners. The second cause was an increase in the aggregate cleaning hours. The effect of the first change was that during 2017, casual employment which was considered the more expensive mode of employment, accounted for a higher proportion of total cleaning hours.
  1. [49]
    As a result of her review, the second respondent determined to revert to the staffing model in place prior to 2017 which meant that the great majority of the scheduled cleaning would be completed by full-time cleaners, and that casual cleaners would only be used in limited circumstances where full time cleaners took leave or where operational circumstances required an additional cleaning contingent.  The second respondent's evidence was set out in paragraph 47 of her affidavit:

It was therefore clearly evident to me that upon commencement in my role as Principal I had a duty to immediately take steps to reduce the reliance on casual staff thereby reducing the overall expenditure on cleaning and the only way this could be done in my view, was to revert to the arrangements of the College in the years prior to 2017 where the College had successfully worked within the budgetary constraints to deliver a high standard of cleaning for its occupants where the cleaning work was predominately carried out by permanent full-time staff with casual cleaning staff being utilised only in circumstances where there was additional demand on cleaning services for when the full-time staff were on sick or annual leave.

  1. [50]
    The actual effect of reducing casual employment and increasing full time employment was demonstrated by data showing the number of casual hours worked between 19 February 2018 and 26 March 2018. On average, for each week within this period, 25 casual hours were available. If these hours were distributed evenly among the pre-existing casual pool, each casual would have received only 6.25 hours each week. It was clear therefore, in notional terms, that had all casual pool members received the same work allocation in 2018, the applicant would still have experienced a substantial reduction in hours by reference to what she was accustomed to receiving in 2017. It is also relevant that while the applicant did not receive hours in the five week period between 19 February 2018 and 26 March 2018, it did not necessarily follow that she would not receive hours across other parts of the year.  
  1. [51]
    Ms Feather had joined the casual pool in September 2017. Her evidence was that she did not work according to a roster and that she usually worked in circumstances where she was called in to work.  She said that towards the end of 2017, six casual cleaners, including Ms Roberts, were employed. She said that there were "too many workers at the time" and that if "people were away" she would fill in when she could. The effect of her evidence was that in early 2018 she did not receive any shifts and she elected to seek work elsewhere.

Exercise of discretion

  1. [52]
    Once the second respondent decided to revert to the staffing model that applied before 2017, and that the primary mode of employment was to be full-time employment, then it was a matter for the discretion of the second respondent who was converted to full-time employment, and how many hours, if any, were to be allocated to the casual pool members.
  1. [53]
    The effect of the second respondent's evidence was that in making her decision about who to offer a full time position, she took into account "the standard of work and attitudes of all the cleaners" who formed the casual pool, including the applicant. The second respondent said that "the first obvious step was to decide which two cleaners had performed their work to the highest standard compared to their colleagues and were accordingly deserving to be offered the positions". In forming her opinion, the second respondent relied on her own evaluation of the performance of cleaners and she also took into account feedback from students who had expressed opinions about the standard of cleaning and the interpersonal skills of cleaners.
  1. [54]
    Significantly, on the second respondent's evidence, she was well placed to complete an assessment of the casual cleaners work performance. The second respondent said that during 2017 she lived on campus at the college and that it was part of her role to perform work in the various buildings that were cleaned by the cleaners. She said that she worked in each of the wings and blocks of the relevant buildings at least once per week on average. In these circumstances she said that she became very familiar with the state of cleanliness of the buildings in the college. This familiarity included direct observation of the "efforts, efficiency and effectiveness of each of the cleaners in the casual cleaning pool".
  1. [55]
    Relying on her own observations and the input from others, the second respondent developed a ranking of the casual cleaners and made her decisions about full-time appointments and the allocation of work among casual pool members based on these rankings. In short, the second respondent ranked the two full-time appointees, and two other members of the casual pool, higher than the applicant.
  1. [56]
    It was this ranking of the applicant that attracted a significant contest in the proceedings with conflicting views being expressed about the applicant's standard of work. Any proposition that the applicant's work was inferior to other cleaners was challenged by Ms Malo, Ms Sandford and Ms Feather who all spoke highly of the applicant's work performance.
  1. [57]
    Ms Feather had worked with the applicant for about one month in the second half of 2017. Ms Feather spoke positively of the applicant and said that she did not have any problems in working with the applicant.
  1. [58]
    Ms Malo also spoke positively of the work performance of the applicant. She provided the applicant with a reference dated 29 June 2018 in which said that the applicant was a highly valued and respected member of the housekeeping team.
  1. [59]
    Ms Sandford also wrote a supporting reference for the applicant on 3 May 2018 in which she spoke very highly of the applicant. While Ms Sandford did not usually work in B Block where the applicant cleaned, she said that she had been asked to perform an end of year clean in B Block, and that she had walked through the block from time to time. In her opinion, in terms of the standard of cleaning, B Block had been well looked after by the applicant, and that the applicant was doing her job very well.
  1. [60]
    While neither Ms Malo nor Ms Feather expressed an opinion about how the applicant's work compared to the work of other cleaners, Ms Sandford expressed the opinion that the applicant was a better worker than one of the casual employees who had been allocated hours after 19 February 2018, and one of the casual employees who had been converted to permanent on 13 January 2018.   
  1. [61]
    Different views were expressed however in the affidavits prepared by two students who were residents of B Block. These students were of the opinion that the standard of cleaning in B Block in 2018 was higher than what it was in 2017. Similar views were expressed by a number of students who had emailed feedback to the second respondent or Ms Lamari about the standard of cleaning in B Block.
  1. [62]
    I accept that once the second respondent decided to change the staffing model and substantially reduce the reliance on casual employees, it was largely a matter for her discretion as to how casual hours were allocated. At its core, this approach does not require absolute determinations about the standard of work of individual cleaners. What it requires are relative determinations in relation to the identified attributes of the position. The question then is not whether the applicant was an average competent employee, but rather who were the strongest performers in the casual pool.
  1. [63]
    It is only necessary to reconcile conflicts in the evidence about the relative contributions of cleaning staff. I proceed on the basis that, in the absence of evidence of performance management, the applicant should be regarded as an average competent worker. The issue is whether, on the evidence, the respondents' claim of superior performance on the part of the promoted casual employees, or the casual employee that was allocated hours after 18 February 2018, was unsustainable.
  1. [64]
    In the resolution of this question, it is relevant that the respondents questioned the credit of Ms Malo and Ms Sandford on the basis that they may be disaffected former employees of the college, and that they may have been motivated to follow a course of action inimical to the respondents' interests. More significantly however, while Ms Malo was very supportive of the applicant, she did not give evidence to the effect that the applicant was a superior performer than other casual employees. Ms Sandford did venture an opinion to this effect, but her capacity to make an informed comparison was limited in that she did not work in B Block and her assessment of relative performance may not have been reliable. Ms Feather did not advance any comparison between cleaners in her evidence, and it would have been difficult for her to do so, given that she had only worked with the applicant for about four weeks.  
  1. [65]
    The operative part of the second respondent's evidence was that, faced with a predicament of determining which casual pool members should be offered the available work, she rated the work of two of the casual employees higher than the applicant's work.
  1. [66]
    The second respondent said that in the relevant period from 19 February 2018 to 26 March 2018, the total casual cleaning requirement was the equivalent of 25 hours per week. She said that she elected to distribute this to her best cleaners with one cleaner receiving 6.4 hours per week on average and another cleaner receiving 18.6 hours per week on average.
  1. [67]
    Her approach to the exercise of this discretion was, in my view, not discriminatory, but was consistent with her desire to effect operational efficiencies and to improve the standard of cleanliness across the college.

Victimisation

  1. [68]
    While the applicant had filed her discrimination claim on 14 February 2018, she was not available for work prior to 19 February 2018, hence she could not have been victimised in relation to work hours allocated before 19 February 2018. The respondents also argued that the period after 26 March 2018 must be excluded because it was on this date that the applicant requested a separation certificate and effectively ended her employment with the first respondent.
  1. [69]
    The applicant had emailed the first respondent on 26 March 2018 and had requested a copy of her separation certificate "for Centrelink purposes". The effect of the applicant's evidence was that she accepted that the provision of a separation certificate would mean that her employment relationship with the first respondent had ended (T2-13): 

Are you – is it your evidence that you were waiting for a phone call after 26 March when you requested - - -?---No.

So you did not expect to be called after 26 March for work?---No.

Becau – is that because you had on 26 March sent a request for a Separation Certificate and then you subsequently received one?---Yes.

  1. [70]
    In these circumstances, I accept the respondents' position that the employment period relevant to the applicant's complaint of victimisation is the period between 19 February 2018 and 26 March 2018. The applicant's complaint therefore is that she was victimised by not being rostered for work between 19 February 2018 and 26 March 2018.
  1. [71]
    The applicant described the victimisation as the action of the respondents in not allocating her any hours of work after she had filed her discrimination claim. The applicant said that the reduction in her hours had occurred in circumstances where the second respondent had increased the casual pool by one person, and had allocated that person systematic hours from 8.00 am to 4.00 pm from Mondays to Fridays. Significantly for the applicant, this same casual had been assigned to work in the same building (B Block) where she had worked prior to going on maternity leave. 
  1. [72]
    It is more probable than not, that the applicant's allegations were not correct. The applicant was correct in saying that the casual pool had been increased by one. This decision was made by the former principal and the second respondent in December 2017. However, copies of time sheets produced by the second respondent (Exhibit 22) disclosed that for the period 19 February 2018 to 26 March 2018, the new casual employee did not work from 8.00 am to 4.00 pm, and only worked an average of 19.6 hours a week. Further a work schedule (Exhibit 16) produced by Ms Lamari in her evidence showed that B Block had been cleaned by a full-time employee, not a casual employee, during the relevant period. 
  1. [73]
    The principal difficulty however with the applicant's claim of victimisation is that the decisions taken to restructure the employment arrangements of the cleaning team, to appoint new full-time staff and to reduce the applicant's working hours or guarantee of working hours, were all taken before the applicant filed her claim for discrimination on 14 February 2018. The detriment claimed to exist therefore could not have been caused because the applicant filed a complaint of discrimination.
  1. [74]
    The second respondent said in her affidavit that in the meeting with housekeeping staff on 23 January 2018, she told the staff that the wages budget for cleaning had blown out and that the budget had to be brought back into line; that the college would return to a staffing arrangement of five permanent full-time cleaners; that she had appointed two additional permanent cleaners; and that casuals would only be used to cover absences for annual leave and sick leave and where there was extra demand.
  1. [75]
    In her evidence (T2-10), the applicant agreed that in the housekeeping meeting on 23 January 2018, she was told that there had been a budget overrun, that two casual employees had been appointed a permanent full-time cleaners, and that casual staff would only be offered hours if full-time staff were sick, on leave, or in the event that extra help was required.
  1. [76]
    The applicant also said that the second respondent said in this meeting that there would be no guarantee that the applicant would get any work (T2-11). The applicant said that after the second respondent informed the cleaning staff of the changes, she approached the second respondent and asked her "if there were going to be any available hours for me" (T1-88). The applicant said that the second respondent replied by saying that it will "just be the full-timers on and calling in the casuals when needed". The second respondent also told the applicant that she would contact her within the next couple of weeks to let her know "if there were going to be any hours" for her.
  1. [77]
    The second respondent said that the applicant approached her after the staff meeting and asked her how many hours per week she would get in 2018. The second respondent said that she responded to the question by saying words to the effect that "I don't know the amount of hours that the College can offer you because I have not yet worked out the needs for the coming year. You just need to keep in mind that your contract is on a casual basis and there is no guaranteed amount of work per week".
  1. [78]
    Subsequently a telephone conversation took place between the applicant and the second respondent in early February 2018. The applicant said that in this conversation the second respondent told her that she was a casual, and that there was no requirement that she be given any hours at all (T1-89):  

… and she said that I was just a casual. There was no requirement for her to give me any hours and I said, "Yeah I was a casual but I was working fulltime hours", and she said, "But you’re on – you’re a casual. In the book it’s got that you’re work may be – you – work may not be need – required the next day".

  1. [79]
    It was the second respondent's evidence that the phone conversation took place in the week beginning 5 February 2018 and that the applicant said to her that she needed to know what work hours would be available to her during the year. When the second respondent told her that she would only receive work if permanent staff were on leave or sick or in the event of additional requirements, the applicant accused her of discrimination and said that the only reason for this outcome was because she was pregnant and had a baby. This exchange represents the first occasion that the applicant had foreshadowed an intention to file a complaint in the Anti-Discrimination Commission. The applicant gave consistent evidence (T1-89):

So was there anything more to that conversation that you can recall?---I said to her, "If I would have known that there were full-time positions available I would have applied. I would have moved and heaven and earth to try and get one of them".

[indistinct] and did you get a response to that?---No, and I said, “It feels like just because I had a baby I don’t have a job to come back to”.

And, in essence, that’s your discrimination claim? That it was because you had a child and – and – and your family and responsibilities that this decision’s been taken to, in effect, reduce your hours or bring your employment to the end. That – that’s your - - -?---Yes.

  1. [80]
    The applicant said that, after this conversation, there was no further communication between her and the second respondent and that she "waited another couple of weeks approximately" and then lodged her complaint with the Anti-Discrimination Commission.
  1. [81]
    It is clear therefore that the respondents had determined prior to the applicant foreshadowing a complaint, and prior to the filing of the complaint, that the applicant's working hours would be reduced and that she would only be offered work in limited circumstances. In these circumstances, there could be no causal connection between the applicant's protected conduct and the detriment imposed by the respondents.

Decision

  1. [82]
    The applicant was understandably distressed that upon a return to work from maternity leave, and with increased responsibilities, her working hours had been altered to the effect that she had no guarantee of any work at all. While as a matter of law, her working hours were never guaranteed, she had nevertheless, prior to going on maternity leave, regularly received up to thirty hours per week of work.
  1. [83]
    It was in this context that the applicant concluded that it was the birth of her child and her family responsibilities which motivated the respondents to reduce her working hours. The applicant had no direct evidence of any such motivation, but she did not consider that the timing of the reduction in her hours and her return to work with increased family responsibilities, were a coincidence. Consequently, she believed that the respondents had contravened s 10 of the Act.
  1. [84]
    There had however been other significant developments that might explain the alteration to the applicant's employment status. Firstly, cleaning operations had come under close scrutiny because labour costs for the 2017 calendar year had significantly exceeded budget and changes had to be made to bring labour costs under control. Secondly, there had been a change of principal and the incoming principal (second respondent) had good levels of familiarity with the cleaning operations and was well placed to identify areas for operational improvement. Thirdly, the head housekeeper had resigned her position and the second respondent took control of the labour cost administration and the employment arrangement for cleaners. Fourthly, the head housekeeper who had resigned was a strong supporter of the applicant and the applicant had been a beneficiary of the housekeeper's preference to allocate work to casual housekeepers.
  1. [85]
    The key change in terms of employment arrangements was that the second respondent had concluded that it was more labour cost efficient to perform the bulk of the cleaning function using full-time cleaners with a very limited reliance on casual labour. The inevitable consequence of this change was that the hours to be allocated among the casual pool were substantially reduced and it became likely, given the size of the pool, that not all pool members would receive regular hours, or any hours at all.
  1. [86]
    In these circumstances, it was inevitable that decisions had to be made about which pool members were to be given first refusal of an offer of work. In my view, the evidence does not support a conclusion that when the second respondent made the decision to prefer casuals other than the applicant, that she was treating the applicant less favourably than other members of the casual pool, because the applicant had family responsibilities.
  1. [87]
    The application is dismissed.

Footnotes

[1] TT and Ors v Lutheran Church of Australia Queensland District and Ors [2013] QCAT 48, 109.

[2] Citing, inter alia, Wadsworth v Akers and Woolworths Ltd trading as Big W Discount Stores [2007] QADT 17.

Close

Editorial Notes

  • Published Case Name:

    Tiana Lunn v Roman Catholic Trust Corporation for the Diocese of Townsville and Nicole Stott-Whiting

  • Shortened Case Name:

    Lunn v Roman Catholic Trust Corporation for the Diocese of Townsville

  • MNC:

    [2019] QIRC 122

  • Court:

    QIRC

  • Judge(s):

    Black IC

  • Date:

    02 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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