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Queensland Judgments
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  • Unreported Judgment

Phillips v Baptist Union of Queensland

 

[2019] QIRC 124

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Phillips v Baptist Union of Queensland [2019] QIRC 124

PARTIES: 

Phillips, Allan

(Applicant)

v

Baptist Union of Queensland

(Respondent)

CASE NO:

AD/2018/99

PROCEEDING:

Referral of Complaint

DELIVERED ON:

3 September 2019

HEARING DATES:

4 July 2019

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Black

ORDER:

Application dismissed

CATCHWORDS:

ANTI–DISCRIMINATION LAW – complaint of victimisation – casual employee whose hours of work had been reduced – detriment alleged because of involvement in marriage equality petition.

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) ss 129, 130, 204

CASES:

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

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

Workpac Pty Ltd v Skene [2018] FCAFC 131

APPEARANCES:

Mr A Phillips, the applicant in person

Mr S Grant of Counsel instructed by Thynne Macartney for the respondent.

Decision

Introduction

  1. [1]
    The applicant lodged a complaint in the Anti-Discrimination Commission Queensland on 27 September 2018. On 23 October 2018, the complaint was accepted pursuant to ss 136 and 141 of the Anti-Discrimination Act 1991 (the Act). The complaint has been referred to the Queensland Industrial Relations Commission (the Commission) pursuant to s 166(1)(a) of the Act.
  1. [2]
    The Referral Notice filed with the Commission on 19 December 2018 relevantly states that the "complaint related to or includes work or the work-related area" and was treated as indicating "Victimisation – Section 129".
  1. [3]
    The applicant commenced work with the Baptist Union of Queensland - Carinity as a casual Youth Worker on 7 August 2017. Between 7 August 2017 and 12 October 2017, the applicant worked 8 shifts. All of the applicant's shifts were worked at Carinity's Orana Youth Shelter at Bald Hills.
  1. [4]
    The Youth Shelter provides crisis accommodation and emergency housing for young people aged 16-18 years who have become, or are at risk of becoming, homeless. The shelter offers emotional and practical support and facilitates access to education, specialist services and recreational activities.
  1. [5]
    On 29 September 2017, the applicant received what I understand to be an "all staff" email from Mr Jon Campbell, Carinity's CEO, in which Mr Campbell encouraged staff to vote "no" in the marriage equality plebiscite.
  1. [6]
    A short time after the CEO's email was distributed, the applicant was invited to include his name in a group response or petition which in effect communicated a rejection of the views articulated by Mr Campbell.
  1. [7]
    After checking with his supervisor, Mr McNair, to ensure that he would not place his employment at risk, the applicant added his name to the group email. While the applicant made known his intention to include his name on the petition at or around 11 October 2017, the petition was not ultimately despatched until 25 October 2017.
  1. [8]
    While the applicant worked on 12 October 2017, he did not receive any offers of work after this date. Despite this, no action has been taken to terminate the applicant's employment, and he remains part of the respondent's casual pool.
  1. [9]
    The applicant contends that he was not offered work after 12 October 2017 because he had added his name to the petition. The respondent, on the other hand, denied that any decision to not offer the applicant shifts was in any way related to the applicant's support for the petition. 

Witnesses

  1. [10]
    Witnesses for the applicant were as follows:
  • Mr Allan Phillips (applicant).
  1. [11]
    Witnesses for the respondents were as follows:
  • Mr David McNair (Program Manager and applicant's supervisor);
  • Ms Tracey Jones (Full-Time Youth Worker);
  • Ms Chantelle Brooks (HR Business Partner).

Legislative Scheme

  1. [12]
    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. [13]
    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.

Legislative elements to be satisfied

  1. [14]
    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. [15]
    Member Roney also noted that a body of authority supported 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]
  2. [16]
    In this matter, it is for the applicant to prove firstly that the respondent has performed an act or done something which has caused detriment to the applicant. If this is 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. [17]
    In terms of detriment, the applicant identified the following conduct:
  1. (i)
    The respondent's failure to pay the applicant for all work performed;
  2. (ii)
    The respondent's decision not to allocate the applicant work after 12 October 2017; and
  3. (iii)
    The conduct of the respondent in jeopardising the applicant's future employment prospects as a youth worker with other potential employers.
  1. [18]
    If the applicant can establish that the detriment alleged to have occurred in any one of these instances has in fact occurred, the applicant must then establish that there is a causal nexus between any detriment suffered and the matters stated in s 130 of the Act.
  1. [19]
    Except in one instance, the respondent did not accept that any of the elements of the Act that needed to be satisfied, had been satisfied.  The respondent said that the only element that had been satisfied was that the respondent took action to not offer the applicant shifts after 12 October 2017. In every other respect, the respondent said the applicant had failed to satisfy the statutory elements.
  1. [20]
    The respondent did not accept that any action taken had caused the applicant a detriment. It did not accept that the reduction in shifts constituted a detriment, that the applicant had been wrongly paid, nor that the applicant's future employment prospects had been jeopardised.
  1. [21]
    It was the respondent's submission that, if contrary to this position, the first and second elements were able to be made out, the applicant's case would nevertheless fail because he would be unable to satisfy the causal nexus between any of the claimed detriment and the matters stated in s 130(a) and (b) of the Act.

Detriment

Other employment

  1. [22]
    While the applicant said that he suspected that Mr McNair had been making disparaging comments about him to other employers in the industry, he was unable to provide any evidence to support this allegation. 
  1. [23]
    The effect of the respondent's submission, which I accept, was that the evidence did not establish that any action had been taken by the respondent to hinder the applicant's efforts to find work with other employers.
  1. [24]
    In circumstances where there was no evidence of any act on the part of the respondent to harm or hinder the applicant's prospects of other employment, all the elements of the Act cannot be satisfied, and this part of the applicant's claim must fail.    

Underpayment of wages

  1. [25]
    The applicant argued that he had not been paid correctly and that his requests to the respondent to make good the errors had fallen on deaf ears. He saw the failure to pay as evidence of victimisation.
  1. [26]
    The respondent denied that it had failed to pay the applicant correctly or that underpayments had occurred. It was the respondent's submission that, unless evidence to the contrary was accepted, there could be no detriment and all the elements of the Act could not be satisfied.  
  1. [27]
    In an email to Chantelle Brooks on 12 July 2018 (Exhibit 5), the applicant claimed that he had not been paid for three and a half hours that he had spent at hospital on the instructions of his manager; that he had not been paid for one and a half hours spent in completing an internet based induction, which he said he had completed on a computer at the university; that he had not been paid for 45 minutes work as part of his first shift on 7 August 2017; and that he had been underpaid by one half an hour on two occasions.
  1. [28]
    While the applicant asserted that he was not paid for the shifts specified, he did not provide any corroborating evidence such as copies of time sheets or pay slips which may have disclosed some discrepancy. In his evidence, Mr McNair did not address all the claims but he did say that the applicant had been paid for the time he spent at the hospital, but that he had not been paid for the time that he spent completing the on-line induction. Whether or not the applicant was entitled to payment for completing his on-line induction was not a question discussed in the evidence. While the applicant said that he completed the training after he was employed, he also said that the induction was completed around the start of August 2017. Hence, he may not have been employed at the time that the training was completed.
  1. [29]
    From Ms Brooks' perspective, the applicant had been paid everything that he had been entitled to. Ms Brooks said in her evidence that she had reviewed the Kronos time and attendance systems to try to identify if the applicant had not been paid for time not worked, but that she did not find anything to suggest that the applicant had not been correctly paid.
  1. [30]
    On balance, I prefer the respondent's evidence around this issue. The applicant has not done enough to establish that he has not been paid correctly. On the evidence of Ms Brooks, the applicant's complaints had been investigated and she was unable to find anything in the time and attendance system which corroborated the applicant's claims.
  1. [31]
    Even if the applicant had not received some payment that he was otherwise entitled to, the evidence does not support a finding that the respondent, in the event that s 130(a) conduct had occurred, had underpaid the applicant because of his support for the petition. 

Allocation of work

  1. [32]
    Mr McNair said that the youth shelter was staffed by three full time youth workers and a casual pool of six youth workers who perform relief work. He said that casual staff normally worked on the evening shift which ran from 5.00 pm to 11.00 pm, and also involved a sleep-over until 7.00 am the following morning.
  2. [33]
    It was the applicant's evidence that when he was interviewed for the position of casual youth worker, he was told by Mr McNair that he would get regular shifts and at least one shift per week. Mr McNair said that he informed the applicant during the interview that shifts only became available if a full-time youth worker takes sick leave, annual leave or long service leave. Ms Jones also participated in the interview. She said that the applicant was informed that casuals were not rostered and that work is only available if a full-time worker takes leave. She said that Mr McNair is responsible for the allocation of work to casuals if a shift becomes available.
  1. [34]
    The applicant's letter of offer (Exhibit 21) dated 29 August 2017 stated that the applicant would initially be employed on a casual basis in the position of Youth Worker. The letter also stated that the number of hours that the applicant would be required to work each fortnight would "depend on the needs of the business and will be as set out in a roster as per the Award".
  1. [35]
    On commencement with Carinity, the applicant worked intermittently. During the ten week period between 7 August 2017 and 12 October 2017, he only worked eight shifts. He worked on 7 August, 10 August, 2 September, 13 September, 29 September, 5 October, 6 October, and 12 October 2017.
  1. [36]
    The respondent did not accept that the decision not to allocate the applicant work shifts after 12 October 2017 could constitute an act of detriment because of the applicant's casual status.  The respondent submitted that the applicant is to be correctly identified as a casual worker[3] for the following reasons:
  1. (i)
    the applicant was employed and paid specifically as a casual employee in the contract of employment;
  2. (ii)
    the applicant admitted he was employed as a casual and this was told to him in the interview;
  3. (iii)
    the shifts worked by the applicant were sporadic, as identified in the Schedule to the respondent's submissions;
  4. (iv)
    there was no commitment from the respondent in relation to the amount of hours of work that might be offered, with the applicant one of a pool of casual staff available.
  1. [37]
    The respondent submitted that there could be no loss suffered by the applicant in circumstances where the respondent was not under any obligation to offer the applicant any work, and where the applicant had no reasonable basis to expect that work would be offered on any particular basis or with any particular frequency. The uncertainty associated with the prospect of future work was demonstrated by the sporadic basis upon which the applicant had been given shifts prior to 12 October 2017.
  1. [38]
    Significantly, the practice of allocating shifts sporadically, preceded the applicant's involvement in the group email. A review of the evidence discloses that the applicant's concern about a lack of work had been consistently referenced in email correspondence between himself and Mr McNair.
  1. [39]
    On 21 August 2017, the applicant emailed Mr McNair and said "I am wondering if I am going to get a shift soon". On 29 August 2017 the applicant again emailed Mr McNair (Exhibit 8) and asked if he was going to get a shift soon as he had not worked for over two weeks and he wanted to work. When he did not get a positive response, the applicant return-emailed Mr McNair and said that he was feeling disheartened by the lack of work and pointed out that he had not worked for almost three weeks. On 7 September 2017, Mr McNair emailed (Exhibit 7) the applicant about the Kronos pay system and in the course of the email mentioned that, for casual/relief youth workers, work shifts were very sporadic and not regular as a general rule. When the applicant asked Mr McNair on 24 October 2017 (Exhibit 9) if any shifts were likely in the near future, Mr McNair told him that he did not have any more shifts coming up at the moment.
  1. [40]
    Given this history, it is open to argument whether the applicant could reasonably have any firm expectation that he would be allocated anything other than an occasional shift after 12 October 2017. Notwithstanding this discussion, the applicant had during the course of his employment prior to 12 October 2017 received, on average, one shift every week and a half. After 12 October 2017, notwithstanding that he remained a member of the casual pool, the applicant did not receive any shifts.
  1. [41]
    On balance, notwithstanding the applicant's casual basis, there is a basis to conclude that the applicant had suffered a detriment and I do not accept the respondent's submission that the applicant's casual status meant that such a conclusion was not possible.

Causal nexus

  1. [42]
    The applicant has to prove that conduct of the nature described in s 130(1)(a) has occurred, and that such conduct is causally connected to the decision to not allocate work to the applicant. It is for the applicant to identify what it was that he did that is mentioned in s 130(1)(a)(i), (ii) or (iii) of the Act. The applicant must explain how he refused to do something which involved a contravention of the Act, what allegation he had made to the effect that someone had contravened the Act, or what proceeding under the Act he intended to commence or be involved in.
  1. [43]
    I proceed on the basis that the applicant believed that his decision to include his name in an email petition amounted to protected conduct as prescribed in s 130(1)(a) of the Act.  However the applicant's support for the petition can only be protected conduct if it is proven that the petition submission included an allegation or an intended allegation to the effect that the CEO's email amounted to a contravention of the Act, or communicated an intention to be involved in a proceeding under the Act as defined in s 130(2) of the Act.
  1. [44]
    The applicant only briefly addressed these factors in his evidence, and it was the respondent's submission that what limited evidence was given by the applicant did not fall within the parameters set by s 130(1)(a) or (b) of the Act. The respondent said that there was no evidence that any protected conduct had been engaged in. In particular terms, it was submitted that the applicant did not adduce evidence of:
  1. any "refusal" by the applicant falling within s130(1)(a)(i);
  2. any "allegation" by the applicant falling within s130(1)(a)(ii);
  3. any "proceeding" falling within s130(1)(a)(iii).
  1. [45]
    There is no evidence that the applicant, or anyone, had refused to do something that might involve a contravention of the Act. Nor was there any evidence that the respondent believed that the applicant had refused to do something that would involve a contravention of the Act. It follows that there cannot be any causal connection between any action taken by the respondent and conduct mentioned in s130(1)(a)(i) of the Act.
  1. [46]
    Further, no evidence was adduced in support of a proposition that the respondent believed that the applicant intended to make an allegation that the Act had been contravened or intended to be involved in a proceeding under the Act. 
  1. [47]
    In these circumstances, if the applicant has an arguable case, it is confined to a proposition that the respondent acted to not allocate him shifts after 12 October 2017; that the non-allocation of shifts constituted a detriment to the applicant; and that the respondent acted to not allocate shifts because the applicant had alleged in the petition submission that a contravention of the Act had occurred or had foreshadowed in the submission an  involvement in a proceeding under the Act.

Petition

  1. [48]
    The petition acted as a response on the part of some Carinity employees to the email despatched by Carinity's CEO which encouraged staff to vote "no" in the marriage equality plebiscite. A copy of the group response or petition email is in the evidence as Exhibit 22. The petition comprised a submission and was "signed" by eleven Carinity employees, including the applicant and Mr McNair. It was forwarded to the Carinity Board care of the Human Resources Department on 25 October 2017.
  1. [49]
    It was Mr McNair's evidence that a little while after the CEO's email had been distributed on 29 September 2017, he received an email from an Assistant Manager of Carinity who worked at a different facility, and who was asking co-workers to support a petition protesting against the CEO's views.
  1. [50]
    Mr McNair said that when he received the petition email he decided to circulate the email to both full-time and casual staff members who fell under his supervision. Soon after this, the applicant foreshadowed his desire to support the petition and asked Mr McNair whether his support for the petition could jeopardise his employment.
  1. [51]
    In his evidence, Mr McNair confirmed the applicant's evidence that he told the applicant that his job would not be at risk if he supported the petition. Upon receiving this advice, the applicant emailed the petition organiser on 11 October 2017 and asked her to include his name on the petition.
  1. [52]
    The applicant said in his submissions that he did not know who signed the petition letter. He said that when he was asked to sign the petition, he took the precaution of checking that his employment would not be prejudiced. When he was assured that there would be no prejudice, he signed the petition. He was not aware at the time how many co-workers signed the petition.
  1. [53]
    Mr McNair said that he and three of his subordinates, including the applicant, signed the petition. Mr McNair said that, other than the applicant, one of the subordinates remained employed by Carinity while the other subordinate only recently resigned after twelve years' service. The effect of this evidence was that neither Mr McNair nor other employees who had signed the petition had suffered any adverse action as a consequence.
  1. [54]
    On 20 November 2017 (Exhibit 23), the applicant emailed the petition organiser and told her that, since putting his name to the petition six weeks earlier, he had not received a single shift. He then said that he felt that he had been victimised and said that he intended to take legal action against Carinity. In her reply to the applicant, the petition organiser informed him that the petition had only been sent four weeks earlier, told him that Mr McNair had been offended by the CEO's email and that he had also signed the petition, and encouraged him to talk to Mr McNair prior to taking any action. It can be inferred that the petition organiser, at least at that point in time, had suffered no adverse consequence arising from her role in the petition.
  1. [55]
    The submission included with the petition commenced by saying that the signatories "make this submission in response to the email" sent out by the Carinity CEO. The submission identified and raised argument in support of three propositions which were expressed in the following form:
  1. (i)
    We consider that Mr Campbell misused his position of authority to influence the personal views and voting behaviours of employees on the Marriage Equality vote.
  2. (ii)
    We believe the email violates both Carinity Values and the Carinity Code of Conduct, particularly around compassion, respect and engaging positively.
  3. (iii)
    Jon Campbell's email is experienced as offensive, unwelcome and hurtful and is a clear breach of the Workplace Harassment and Bullying Procedure.
  1. [56]
    Whether the submission included an allegation that the Act had been contravened, or in any way communicated an intent on the part of the signatories to be involved in a proceeding under the Act, is a matter for consideration.
  1. [57]
    The submission includes allegations that, either in the distribution of the email or in the content of the email, various policies of Carinity had been breached. The submission alleged that:
  • Carinity Values and the Carinity Code of Conduct had been violated;
  • Carinity's Workplace Harassment and Bullying Procedure had been breached; and
  • The Carinity Employee Handbook had been breached.
  1. [58]
    None of the documents identified in the CEO's letter were tendered into the evidence, and the precise nature of some the breaches complained about could have been particularised with better clarity in the petition submission. However, I discern from the language used that the petitioners relied on:
  • Parts of the Code of Conduct which advocated against discrimination on the grounds of various attributes including sexual orientation;
  • Section 4.4 of the Workplace Harassment and Bullying Procedure which warned against behaviour that is offensive or unwelcome; and
  • A provision in the Employee Handbook which said that workplace harassment included "when colleagues are made to feel insulted because of their sexual preferences".
  1. [59]
    While the drafters of the submission appear to have completed a forensic review of Carinity policies and procedures, they have avoided, either deliberately or inadvertently,  including any allegation of a contravention of discrimination laws.
  1. [60]
    In submissions, the respondent argued that the petition did not include any specific allegation of a breach of the Act, nor did the submission include an indication that proceedings under the Act were contemplated or proposed. It was also submitted that the CEO's conduct did not amount to a contravention of the Act. The submission in this regard was that:

… no threat of action against any employee or any other person is made within the document, nor can it be implied. Further, there is no request that recipients undertake any conduct that would breach the Act. Mr Campbell’s e-mail specifically stated in its second paragraph that it expressed Mr Campbell’s views (using the words "I am sharing my views") and his reason for sending the e-mail (using the words "As other CEO’s have made their position clear through the media"). The content speaks of Mr Campbell’s beliefs, and the basis for those. In closing, it “encouraged” recipients to vote "no" to the plebiscite, and to "exercise your democratic right". It is submitted that none of the content enlivens s130(1).

  1. [61]
    I accept the respondent's submission that there is nothing discriminatory to be found in the CEO's email. The more complex question is whether the employee submission could be said to include an allegation, albeit erroneous or otherwise, that the Act had been breached or that the signatories to the submission contemplated being involved in a proceeding under the Act.
  1. [62]
    In his evidence in chief (T3-12), the applicant said that he had been victimised because he made a complaint. He said that the complaint constituted the group reply or the petition, but he did not identify where in the petition submission an allegation of an Act breach was included. When he was asked the question during cross-examination (T3-45) he was unable to effectively answer the question. Nor did he effectively answer when he was asked to explain whether the petition foreshadowed a proceeding under the Act (T3-37):

Now, in that group response, you don’t support something which says that, “We’re going to start an action under the Anti-Discrimination Act,” do you?I don’t believe I have, but it was very obvious by talking with David McNair and talking with Jessica Sutherland that I was in the opposite camp to the CEO, and I – I was on board with whatever actions they were taking.  I was checking out to make sure there was no vilification or victimisation which I would suffer.

  1. [63]
    In my view, the respondent is correct in submitting that the submission does not include any specific allegation of a breach of the Act. Nor does the submission foreshadow the making of a complaint or involvement in a proceeding under the Act. Notwithstanding this, it would not be unexpected for a reader to presume that an allegation of a contravention of the Act might be found somewhere within the commentary complaining about the CEO's letter. In this context, the submission could not be said to exclude the possibility that a breach of the Act was being alleged. 
  1. [64]
    However, in the end result, it is for the applicant to satisfy the statutory elements, and in a context where his own evidence on the subject was inadequate or insufficient, a balance of probabilities finding is not justified by the presence of possibilities. Something more substantive is required to achieve satisfaction of the relevant element.  

Causation

  1. [65]
    In the event that the element of detriment was made out in respect to the decision of the respondent not to allocate shifts to the applicant after 12 October 2017, the respondent denied that the decision not to allocate shifts was in any way related to the inclusion by the applicant of his name on the email petition.
  1. [66]
    Mr McNair denied that he elected not to allocate shifts to the applicant because the applicant had signed the petition. In her evidence, Ms Brooks said that the applicant had raised with her his lack of shifts and had told her he was concerned that his failure to get shifts was related to his decision to sign the petition. Ms Brooks said that she assured the applicant that this would not be so. Rather she said that his lack of shifts was attributable to his casual status.
  1. [67]
    Ms Brooks also said in her evidence that when Mr McNair expressed concern to her about the applicant's conduct, she informed Mr McNair that the applicant was a casual employee and that as a casual employee he was "employed by the engagement and there was no promise of ongoing or regular shifts". The respondent believed that it had no obligation to offer the applicant further shifts.
  1. [68]
    It was the respondent's case that Mr McNair exercised a discretion not to allocate shifts to the applicant because of particular concerns that had been communicated to him by his full-time staff members about the applicant's conduct and behaviour. Except for Ms Jones, these staff members did not give evidence and the concerns were not explicitly articulated during Mr McNair's evidence. It appeared on the evidence that the concerns generally related to the applicant's failure to fit in with the rest of the team, a breach by the applicant of policies and procedures in relation to case notes, and a concern that the applicant may have condoned or failed to prevent a resident or residents accessing inappropriate internet sites.
  1. [69]
    The effect of Ms Jones' evidence was that she had limited contact with the applicant during the course of his employment. She confirmed however that she had expressed concern at how the applicant described his interaction with someone who may have been the milkman and who the applicant thought was an intruder on the premises.
  1. [70]
    Ms Brooks said in her evidence that Mr McNair had sought her advice in respect to the applicant's employment, and that he had raised some "red flags". She could not however recall the specifics of the issues raised.
  1. [71]
    The applicant questioned the evidentiary value of much of what was alleged in Mr McNair's evidence. The applicant characterised much of the adverse evidence as unsubstantiated hearsay or gossip.
  1. [72]
    The applicant denied all the allegations made against him and he vigorously defended any claims made by the respondent about his conduct and behaviour while performing his duties of employment. He said that he did the job that he was employed to do. He said that he did his job well and with pride and that he had a positive influence and effect on the young people that he interacted with.
  1. [73]
    The appellant questioned why any of the allegations had never been put to him during the course of his employment with the respondent. He said that no one had ever spoken to him about the matters in question; that there had been no counselling or performance management; and that no formal complaints had been made, nor any investigations commenced.
  1. [74]
    The applicant said that he had not threatened the milkman. He said that he simply questioned the milkman about why he was on the premises, and maintained that he was acting consistent with procedures. He also denied that he condoned or permitted the accessing by a resident or residents of inappropriate internet sites. 
  1. [75]
    No particulars at all were provided in relation to the claim that the applicant did not fit in. The applicant said that he worked alone on the evening and sleep-over shift, and that he had little interaction with co-workers during hand-overs. In terms of his relationship with co-workers, he said that if he experienced any difficulty, it arose from the fact that he was a new employee, that he only worked intermittently, and that he was working with other employees who had worked at the shelter for many years, and who may have perceived him as an outsider.
  1. [76]
    While the respondent has not prosecuted a positive case in which it has conclusively established that the decision not to allocate shifts to the applicant could not have been made for prohibited reasons, there is no reverse onus, and it is for the applicant to prove that all the statutory elements have been satisfied and that he was victimised pursuant to s 130 of the Act.
  1. [77]
    In this regard, the applicant has fallen short, and he has not been able to persuade me that the respondent acted to his detriment because of his support for the petition. 
  1. [78]
    In my view, it is more probable than not, that the respondent believed that it had no legal obligation to offer the applicant shifts, and elected not to do so. While the reasons for so acting were not fully developed, it is unlikely that the respondent stopped offering shifts because the applicant had signed the petition.
  1. [79]
    I accept that it was Mr McNair's responsibility to allocate shifts to casual employees under his supervision and that it was Mr McNair who decided to stop allocating shifts to the applicant. There is no evidence that any other person was involved in this process, and the various emails sent by the applicant to Mr McNair asking for shifts demonstrates this arrangement.
  1. [80]
    It would seem incongruous that Mr McNair would stop allocating shifts because the applicant signed the petition. It was Mr McNair who passed on the petition to the applicant, who also had reservations about the CEO's communication, who signed the petition email himself, and who assured the applicant that no detriment would be associated with his decision to add his name to the petition. I accept the evidence of Mr McNair around these matters.
  1. [81]
    Additionally, on Mr McNair's evidence two other employees who worked with the applicant signed the email, and neither Mr McNair, nor the two other employees suffered any detriment arising from the inclusion of their names on the petition. In these circumstances, it is improbable that Mr McNair, who was responsible for shift allocation, would have declined to offer the applicant shifts because the applicant had supported the petition.

Decision

  1. [82]
    The applicant has failed to satisfy all of the statutory elements that must be satisfied for the applicant to succeed in his application. His claim of victimisation therefore cannot succeed.
  1. [83]
    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.

[3] Workpac Pty Ltd v Skene [2018] FCAFC 131, 173.

Close

Editorial Notes

  • Published Case Name:

    Allan Phillips v Baptist Union of Queensland

  • Shortened Case Name:

    Phillips v Baptist Union of Queensland

  • MNC:

    [2019] QIRC 124

  • Court:

    QIRC

  • Judge(s):

    Black IC

  • Date:

    03 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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