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- Unreported Judgment
INDUSTRIAL COURT OF QUEENSLAND
EY v The Store  ICQ 6
16 April 2021
13 April 2021
Davis J, President
INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – DISMISSALS – UNFAIR DISMISSAL – where the appellant was employed by the respondent – where the appellant was observed on closed-circuit television (CCTV) by other employees of the respondent to be seated in an open area of the respondent’s business premises with his hand inside his shorts – where a still image of the appellant in this position was taken from the CCTV – where the respondent submits that the appellant was masturbating at the time he was observed on CCTV – where the appellant submits that he was scratching a rash caused by a medical condition at the time he was observed on CCTV – where the appellant was confronted by Mr JL and Mr NB, who were also employed by the respondent at the relevant time, about the still image of the appellant taken from the CCTV – where the respondent terminated the appellant’s employment on three grounds – where the appellant submits that the termination of his employment constitutes discrimination on the basis of the rash caused by his medical condition – where the appellant applied to the Industrial Relations Commission in relation to the alleged discrimination – where the Industrial Commissioner dismissed the appellant’s application on the basis that the rash caused by the medical condition did not constitute an impairment for the purposes of the relevant provisions of the Anti-Discrimination Act 1991 and therefore, the termination of the appellant’s employment on the basis of the rash did not constitute discrimination – where the appellant appealed the decision of the Industrial Commissioner on various grounds, including apprehended bias – whether the judgment of the Industrial Commissioner evidences an apprehension of bias, an error of law, or an excess or want of jurisdiction
Anti-Discrimination Act 1991, s 7, s 8, s 10, s 15, s 164A
Industrial Relations Act 2016, s 448, s 557
Australian Securities and Investments Commission v Anderson (2019) 134 ACSR 105, followed
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194, followed
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, followed
Expectation Pty Ltd v PRD Realty Pty Ltd & anor (2004) 140 FCR 17, followed
Fox v Percy (2003) 214 CLR 118, cited
Lee v Lee (2019) 266 CLR 129, cited
Ondrich v Kookaburra Park Eco-Village  FMCA 260, cited
Purvis v New South Wales (2003) 217 CLR 92, cited
Queensland v Forest (2008) 168 FCR 532, cited
Re JRL; Ex parte CJL (1986) 161 CLR 342, followed
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, cited
Turnbull v New South Wales Medical Board  2 NSWLR 281, cited
The appellant appeared self-represented
C Gaynor (Solicitor) for the respondent
- Closed-circuit television (CCTV) cameras operate in the Townsville warehouse so that activities therein can be monitored by The Store employees in Sydney.
- On 2 and 3 October 2018, Mr EY was observed by the CCTV cameras to place his hands down the front of his shorts. A view was formed by those in Sydney (rightly or wrongly) that the video showed that Mr EY was masturbating. The CCTV footage is not in evidence, but a still from the footage was tendered as exhibit 2. That shows Mr EY sitting on a chair with his shorts pulled down sufficiently to show the top of his left thigh. His left hand can be seen reaching into the front of his shorts. In Mr EY’s right hand is a mobile telephone.
- Mr EY accepts that he put his hands down the front of his shorts. He says that he was not masturbating but was scratching his skin as a result of irritation caused by a medical condition which results in a rash. His evidence was that he had suffered from this rash for many years. Exhibit 2 shows clearly enough Mr EY with his hand down the front of his shorts but does not resolve the matter of contention: what was Mr EY doing with his hand?
- On or about 8 October, Mr JL and Mr NB (another employee of The Store) attended at the Townsville warehouse and confronted Mr EY with the photograph taken from the CCTV footage.
- Mr EY’s employment was terminated. Mr JL says that the reasons for the termination were threefold:
- Mr EY’s alleged poor work performance;
- Mr EY assaulted Mr JL at the 8 October meeting. That allegation was a matter very much in contention;
- Mr EY masturbated in the warehouse. Again, that was a matter of contention.
- Mr EY’s case was that he was discriminated against by The Store and Mr JL on the basis that he was suffering an impairment, namely the rash which caused him to scratch. He said that his employment was terminated as he was discriminated against in relation to the skin condition.
The Queensland Industrial Relations Commission’s decision
- The Industrial Commissioner then posed herself the following questions:
Question 1: Did Mr EY suffer from an impairment?
Question 2: If so, was he discriminated against?
Question 3: If so, was there a causal connection between the discrimination and the attribute, namely the impairment? In other words, was Mr EY treated less favourably “on the basis of [the] attribute”?
- Mr EY gave evidence in support of his own case and he called three witnesses, Dr Miguelito Mercado, Ms SY and Mr NB.
- Dr Mercado gave evidence that Mr EY had consulted him on 18 May 2017, about 17 months before the confrontation with Mr JL. He observed a rash on Mr EY’ abdomen and prescribed a corticosteroid ointment. He said that the rash would be “itchy” but he had no note, and it seems, no recollection of Mr EY complaining that the rash was itchy.
- Mr NB gave short evidence about the confrontation between Mr EY and Mr JL. He said that Mr JL dismissed Mr EY who asserted that he had a rash and that he was scratching, not masturbating. Mr NB said that Mr EY said that he should hit Mr JL. It was not put to Mr NB by Mr JL that Mr EY struck Mr JL.
- Mr JL gave evidence that he became aware that Mr EY had been seen on CCTV cameras in the warehouse with his hands down the front of his shorts. In the company of Mr NB, he confronted Mr EY on 8 October 2018. Mr JL’s evidence was that, when confronted, Mr EY did not mention the rash, but assaulted Mr JL by pushing him twice. Mr JL said that the termination of Mr EY’ employment was unrelated to any rash, of which he had no knowledge until later.
- To the extent it is necessary to analyse the evidence further, I do so when considering the grounds of appeal.
- The Industrial Commissioner answered Question 1 in the negative, finding:
- (b)had Mr EY been suffering from the rash as he alleged, it was not, as a matter of law an “impairment” as it was not “… a disorder, illness or disease that affects [his] thought process, perception of reality, emotions, judgment or that results in disturbing behaviour”;
- As Mr EY failed on Question 1, it followed that his complaint should be dismissed. However, the Industrial Commissioner proceeded to consider Question 2 and Question 3 and determine those against Mr EY. She found that Mr EY’s employment was terminated as a result of factors not concerning the rash. Her conclusions are stated at paragraph 73 and following;
“ I find on the evidence before me, that at some point during the conversation on 8 October 2018, Mr EY advised Mr JL that he had a medical condition, including that he had a rash. However, on the evidence, no details were provided by Mr EY as to where the rash was located or why he was engaged in the conduct depicted in the photograph. Mr EY provided some further details of the condition when he sent the text message to Mr JL at 7.29pm on 8 October 2018. By that time, Mr EY’s employment had already been terminated. …
 Mr EY has led no evidence demonstrating that the comparator would have been treated differently by the Respondents. Relevantly, Mr JL submitted:
‘…As a company, as – and we have a lot of staffs. For us, that is totally – it’s not a behaviour we condone, and it’s something that – you know, I just can’t justify that a person is allowed to do that in a public area where there’s – forget about the TV camera. It’s a public area. Anybody could walk in. I could have walked in. One of my customers could have walked in and seen him in that position. It would have been embarrassing not just for him but for us as a company.’
 I am unable to accept that the Respondents’ conduct in requesting Mr EY to resign and/or by terminating the employment, amounted to direct discrimination against Mr EY on the basis of his impairment. There is no evidence to suggest that the Respondents would not have engaged in similar conduct with the comparator and accordingly, I am not satisfied that Mr EY was treated less favourably.”
The grounds of appeal
- Mr EY filed an application to appeal. There was a mention of the matter and Mr EY was directed to file a submission. He did so. It is the submission which identifies the grounds of appeal. Mr Gaynor, Solicitor, who appeared for The Store, accepted that I should approach the appeal on the basis that the grounds of appeal appear in Mr EY’s written submissions.
- Mr EY’s submissions are as follows:
“1. The decision made by commissioner Hartigan needs to be overturned in the appeal as it was done in error. I have listed below some of the many reasons why
- it clear that commissioner Hartigan was not honest, ethical or just in the dealing of this case. Some of the many reasons are listed below:-
- (i)The FACT that commissioner Hartigan had taken the words of Mrs SY and twisted them to try and say she meant something she did not. This needs to be immediately addressed by any person involved in the appeal
- (ii)The fact that Commissioner Hartigan not only allowed to be presented but put weight in a alleged doctors report that never came from a doctor and was not proven by any testimony from any one of authority or claiming to publish it. Also something that needs to be immediately addressed by any person involved in the appeal
- (iii)The fact that commissioner Hartigan tried to claim that Mr JL did not fire me as a result of my disability when it was clear from both Mr NB testimony and Mr JL’s testimony that the reason he was even in the office was video footage of Mr. EY scratching due to his disability. Also something that needs to be immediately addressed by any person involved in the appeal
- (iv)The fact that she tries to claim despite evidence of a rash that had been on Mr. EY for over 20 years that it was allegedly not there on the day Mr. EY happened to be scratching it. Where is her medical degree or even slightest knowledge on the subject to make wild accusations of such This is not her job description.
- (v)Then there’s the very serious fact that she said there would be a decision in 4 weeks (which in reality is way too long anyway) yet it took her over 6 months to come up with a decision. I believe her procrastinating is probably half the reason she erred and erred seriously wrong on what people said. The fact that commissioner hartigan cant remember who said what and meant what has resulted in a majour error on her part and in such the qirc. Causing further distress to the respondent and also slander in newspapers
- Another reason to do a appeal is the fact that the respondent often didnt do paper work that was ordered and in fact they never had given list of documents as was required by them on many occasions and the fact they just had and still continue to have a blatant disregard to the qirc and the legal process.”
- The paragraphs as they appear in the submission were not numbered as they appear above. I have numbered them for ease of reference.
The nature of the present appeal
- An appeal from the QIRC to this Court is made pursuant to s 557 of the Industrial Relations Act 2016. That is in these terms:
“557 Appeal from commission
- (1)The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
- (a)error of law; or
- (b)excess, or want, of jurisdiction.
- (2)Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
- (a)error of law; or
- (b)excess, or want, of jurisdiction.
- (3)However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.
- (4)If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).
- (5)In this section—
commission means the commission, other than the full bench constituted by the president and 2 or more other members.”
- Therefore, the present appeal is restricted to errors of law or excess or want of jurisdiction unless leave is given to argue other grounds. Leave has not been sought. An appeal on an error of law or want of jurisdiction differs from an appeal by way of rehearing where the function of the Court is to assess the evidence and draw its own conclusions, although even then the Court must recognise the advantage enjoyed by the Court below in hearing the witnesses. Factual determinations can only be reviewed in an appeal like the present where an error of law or jurisdiction attends the factual finding. As already observed, wider grounds can be raised by leave.
- On 23 February 2021, the Registrar issued directions for the exchange of written submissions. Mr EY complied with the directions and The Store ignored them. It failed to file and deliver its submissions by the due date namely, 25 March 2021. A submission was filed on the eve of the hearing of the appeal. No affidavit explaining the delay was filed. No apology was offered by Mr Gaynor until he was asked why one was not forthcoming.
- The written submissions, when they finally arrived, were not particularly helpful. Although apparently prepared by a lawyer, they evidenced no proper analysis of either the law or the evidence. Astonishingly, it became apparent during the hearing that Mr Gaynor (who appeared by telephone) did not have a copy of the Industrial Commissioner’s judgment at the ready.
- I heard oral submissions on behalf of The Store, but reserved the question as to the extent (if any) that I would take any submissions into account given its disregard of the directions. I have only considered the shallow submissions advanced by The Store to the extent that I mention and deal with them in these reasons.
Consideration of the grounds of appeal
- Mr EY had not turned his mind to the legal nature of the appeal. Many of his complaints dispute factual findings. However, most of these factual findings are challenged in support of a ground alleging bias. If bias, or apprehended bias, is made out, then the decision is one made beyond jurisdiction.
- I have approached the consideration of the appeal on the basis that the individual complaints in paragraphs 2(i)-(v) of Mr EY’s written submissions form particulars of the broader allegation in paragraph 2 (bias) but that each also are independent grounds some of which require leave. Mr Gaynor accepted that this approach was appropriate.
- I have, for convenience, adopted the numbering of the paragraphs in the submissions as they appear in paragraph  of these reasons.
- Paragraph 1 does not contain any ground of complaint other than the decision below was “in error”. The paragraph then introduces the complaints that follow as “some of the many reasons” why the decision was in error. There is no warrant, in an appeal of this nature, to engage in a broad assessment of the Industrial Commissioner’s decision. Mr EY must identify and demonstrate error whether in law or excess of jurisdiction or, with leave, an error of fact. I shall not be looking beyond the particularised complaints.
- Paragraph 2 alleges bias. In Australia, a decision is vitiated if apprehended bias is proved. Mason J (as his Honour then was) in Re JRL; Ex parte CJL, observed:
“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.”
- Paragraph 2 is similar to paragraph 1 in that the complaints listed in paragraphs 2(i) to (v) and 3 are not meant to be an exhaustive list. For the reasons already explained, I will not be looking beyond the particularised complaints.
- The findings made by the Industrial Commissioner concerning Ms SY, and other mentions of her, can be found at paragraphs , , , , ,  and  of the judgment. They are as follows:
“ Mr and Ms SY were married for approximately 20 years and separated in or about April 2016.
 Ms SY gave evidence that during the course of their relationship, Mr EY, had a rash between his belly button and pubic bone area.
 Under questioning, Ms SY also indicated that the rash was also on Mr EY’s ‘behind as well’. Ms SY’s evidence was that during the course of their relationship, Mr EY attended several medical practitioners together with ‘herbalists’ and naturopaths to try to resolve the rash. Her evidence was that Mr EY resorted to medication, over the counter remedies and natural remedies.
 Ms SY’s evidence was that Mr EY would try and rub the rash on the outside of his shorts, if they were in public. She says that Mr EY would ultimately have to excuse himself to go to the bathroom or a private area to scratch his rash properly. Ms SY described the nature of the rash as follows:
‘…It used to just sit there all the time. It didn’t matter if, like, it was cold or hot or, like, clothes on and off. It didn’t matter. It just used to always be there and always itchy and [indistinct] and disgusting. And then I do remember him going to a doctor and the doctor did give him some – like, a – a cream and an oral medication. And after him taking that for about a week, I do remember the rash going away. But then shortly after that, we separated. So I couldn’t even tell you if it worked or not.
 Ms SY’s evidence is that following her separation from Mr EY, she recalled him saying in conversation that his rash had returned.
 I accept on the evidence that Mr EY has had a history whereby he suffered from a rash in the area between his abdominal wall and pubic bone. The difficulty for Mr EY is that there is no evidence, of probative value, that establishes that he was suffering from the rash on 2 and 3 October 2018. The evidence of Ms SY is that Mr EY’s rash went away after a cream and taking oral medical, although, she recalls Mr EY stating that the rash returned at some later stage. The evidence of Dr Mercado was that on 18 May 2017, Mr EY complained of the rash, yet there is no record of any complaint about the rash taken in the consultation on 3 July 2017. The evidence contained in the pre-employment medical assessment, suggests that the rash was not present at the time of the examination. There is no evidence that the rash then later returned. Relevantly, Mr EY did not adduce any additional evidence beyond his own evidence that supports that the rash was present on 2 and 3 October 2018. I am not satisfied that Mr EY has established, to the requisite standard, that the rash was present at the time of the alleged discriminatory conduct.
 Firstly, the weight of the evidence is that Mr EY was able to exercise some control over his urge to scratch. Ms SY’s evidence was that Mr EY would initially scratch his rash through his clothes and, if necessary, would excuse himself and go to a public toilet or other private area if he felt an urge to scratch. This supports a conclusion that when the rash was present, Mr EY was able to exercise control over when and how he scratched the itch.”
- The finding at paragraph  of the judgment is non-contentious.
- The findings at paragraphs  and  of the judgment are supported by Ms SY’s evidence as follows:
“COMMISSIONER: What was the medical condition, Mrs SY?---He had a rash between his belly button and his pelvic - pubic bone.
APPLICANT: So where - where - where was it?---The rash -you have - you had a rash that I know of between your - like, your - below your belly button and towards your pubic bone area.
And my backside as well?---And the - - -
COMMISSIONER: Please don’t lead the witness.
APPLICANT: Sorry. All right. Yes. All right. All right
COMMISSIONER: Would you like to ask if it was anywhere else?
APPLICANT: Was it - and where else did it - the rash continue?---Well, you did have it on your - on your behind as well.
Yes. All right. And over the years, had we seen doctors about this rash?---Yes. You’ve seen many doctors to - at one stage there it became so bad that we ended up going to a herb - herbalist. So not only did we end up going to doctors with a medical degree, we also went and seen herbalists and naturopaths and anything and everything else that we could possibly think of.
And when would you say this basically started?---Well - well, I do remember it when we were younger, so I do remember you having it when we were - when I was around 17.
COMMISSIONER: And approximately how long ago was that?---Over 20 years ago.
APPLICANT: And what practices did we do to try and fix this problem?---From my - from what I can remember, I do remember that we tried different steroid creams. I think we tried different over the counter creams. At one stage there, you - I tried getting, like, fresh soaps - so MooGoo soaps. I also remember trying to get anything, really, and everything to try and get rid of it. We spent heaps of stuff lavend - aloe vera, all sorts of different things to try and remove it.”
- The findings at paragraph  of the judgment are supported by Ms SY’s evidence as follows:
“APPLICANT: Yes?---Yeah. It was disgusting at some points. We’d be walking down the shops and you’d trying and be scratching it because it was just being a nuisance to you and it was just -yeah, it was embarrassing.
COMMISSIONER: And how would he scratch the rash when you were in public?---He - he would try at the start to be polite about it and, you know, try and rub it on the outside between his - like, on his shorts and sort of do that rub over your shorts and on your T-shirt. And then - then from there he’d end up having to excuse himself to go to the bathroom for - like, public toilet or a public - private area so then he could scratch it properly. But, yeah, it used to be embarrassing.”
“Just one question. Did - so did Mr EY - whenever he had the itch, he went and scratched that in - in - in public or did he do it in public where - if he was out and about?---Sorry, I’m unable to hear you properly.
I said when Mr EY was in the public area and he had the itch, did he do it in the public area or did he go to a private place, like a toilet or bathroom or something?---Well, he had the itch - when he was in public and he would have the itch, he would rub it on the outside of his clothing because you could see him doing it, like, rubbing on the outside of his clothes. And then after a while of him doing it, I’d be, like, ‘EY, you need to go to the - like, to the public - private toilet and, sort of, you know, scratch it in private.’
So is it okay to say that he should be doing that sort of scratching in a private area, not in a public area; is that correct?---Sorry, I couldn’t understand you. Sorry.
So what I’m saying is - is so it’s - that sort of scratching should be done in a private area, right not - not - not in a public place?---He would scratch - he would scratch his rash on the outside of his clothes in a public area - - -
Did he ever put his hand - - -?--- - - - and then when it was getting too - when it used to get too bad, I use to tell him to go to, like, the private - to the private toilets or, like, the public toilets but in a private cubicle to scratch it so he can put his hands down there and scratch the crap out of it because it used to get really, really itchy to a point that it used to, like, bleed and be all - all, like, watery and stuff.
Did he - did he ever scratch with his hands inside his pants in - in a public area when - when you were with him?---God, no, not around me.”
- The passage of Ms SY’s evidence directly quoted by the Industrial Commissioner at paragraph  of the judgment was an answer given by Ms SY to a question from the Industrial Commissioner. The Industrial Commissioner has accurately recorded the evidence.
- The evidence referred to at paragraph  of the judgment is as follows:
“COMMISSIONER: When was that?---We’ve been separated for nearly three years, so I think - I think it did went away just before we separated and then I think it came back again. But - - -
How do you know that?---I remember him saying to me when we were talking about our daughter one day, saying that his rash had came back. But, also, too, I think there was going to be one doctor - I don’t know if it was years ago or - or if it was before we separated. The other option that the doctor came up with was to take scrapings of it and send it to - send it away to find out exactly what it was.”
- The findings concerning Ms SY’s evidence are at paragraphs  and  of the Industrial Commissioner’s judgment. Those findings are set out at paragraph  of this judgment.
- Paragraphs  and  of the judgment accurately record the evidence which Ms SY gave. Mr EY complains of the drawing of the inference in paragraph  that Mr EY “was able to exercise control over when and how he scratched the itch”. Mr EY says that is inconsistent with Ms SY’s evidence that Mr EY would seemingly have to scratch in public. In context, the Industrial Commissioner was drawing an inference that Mr EY could control whether he scratched himself under his shorts. That inference is logical and clearly open to the Industrial Commissioner. There is nothing which gives rise to an apprehension of bias. There is no error of law or excess of jurisdiction which is apparent. As the findings appear to be properly made, I would not give leave to raise this ground as an attack upon the findings of fact of the Industrial Commissioner.
- This complaint concerns the report of Dr Wilke. Dr Wilke conducted a pre-employment medical examination of Mr EY. A report which Dr Wilke prepared became exhibit 4.
- Mr EY objected to the admission of the report into evidence. The exchange which resulted in the report being accepted is as follows:
“COMMISSIONER: Now, is it - - -
APPLICANT: Has this been submitted, or - - -
COMMISSIONER: Mr - Mr JL hasn’t asked for that report to be admitted into evidence.
MR JL: That is the medical report, your Honour.
COMMISSIONER: Of Dr Mercado or the Kinnect report?
MR JL: The Kinnect report.
COMMISSIONER: All right. Is that objected to?
APPLICANT: I - I think I should object to it because it’s no -there’s nobody to verify that report.
COMMISSIONER: What’s the - what - to what extent are you relying on that in your evidence today?
MR JL: So all our employees when we employ them, they -we send them to Kinnect.
COMMISSIONER: No, no. What - what basis are you seeking to tender that?
MR JL: That there is - there is no evidence in there that Mr EY did not at any - any time advise the medical people that did the test that he had any type of medical condition where he needed to scratch or he had a rash in any part of his body.
COMMISSIONER: All right. To the extent that it provides answers that Mr EY gave to questions, I’ll admit it for that narrow ba - on that narrow basis, not with respect to any medical opinion that may be expressed in it, given the author of the document is here, but Mr EY has been given an opportunity to respond to questions in relation to what his responses reportedly were to that report. So on that basis, I’ll admit it and mark it as exhibit 4.” (emphasis added)
- The transcript must be inaccurate. It must be that the Industrial Commissioner said “given the author of the document is not here”.
- The reference to the “answers that Mr EY gave to questions” is a reference to the cross-examination of Mr EY by Mr JL:
“We sent you to Kinnect, a company paid for the medical to be done by - by Kinnect; is that - is that correct?---I was sent to a company where - yeah, where I - see, I was given an iPad to fill out quickly and I seen a person. I don’t know if they had a medical degree or not. I was under the impression that they sort of didn’t.
In - in that - in that medical when it was done - your Honour, I have evidence here.
COMMISSIONER: Thank you.
MR JL: I mean, the report, sorry. Mr EY already has a copy. We emailed everything to him.
COMMISSIONER: Thank you.
MR JL: Yeah.
COMMISSIONER: But are you going to ask Mr EY questions as to the - - -
MR JL: Yes.
COMMISSIONER: Well, I might have it in front of him.
MR JL: Sure. And in - on that medical report - - -?---Before we do that, with regards to this report, your Honour, that’s - this report is basically hearsay, without anybody to back it up as to what was actually asked at the time and what was put in the report at the time.
COMMISSIONER: All right. Well, I - are you - are you denying that you had any role to play in the provision of information for this - for this report?---I - I - I - I was there for the report, but I know what Mr JL’s going to do. He’s going to try and twist the report - - -
No, no, no. I’m not going to allow you to say that. What’s the basis of your - of your objection?---Well, there’s nobody here to say what was actually said at the meeting or - or done at the meeting. It’s - - -
Well, it’s being put to you. Mr JL is entitled to put to you certain things?---Okay.
I don’t have the report in front of me at the moment, but he’s entitled to put to you certain things in relation to these matters?---All right. Yep. Okay.
Okay. You can sit down. Thank you?---Do you want - - -
No, no. Mr JL’s going to ask you questions with respect to the report?---Okay.
MR JL: So, Mr EY, in the - in the medical, as we do for - to all our employees before we employ them, we send them to a medical organisation, which is government approved, and in the report, is there anywhere you stated during all the questions there that you had any sort of rash or anything?---No, because it was not relevant as far as I was concerned. Okay.
But in the report, there’s no - nothing. So in the - when you met the medical people, you did not advise them that you had a rash. Also, when we did the employment letter for you - - -
COMMISSIONER: Well, Mr JL - - -
MR JL: Sorry.
COMMISSIONER: Is that a question?
MR JL: Yes. So - - -
COMMISSIONER: All right. Allow Mr EY to answer it, okay?
MR JL: So you did not put in the report that you had a rash?‑‑‑No, I did not.
Okay. Fine. Also during the interview when I interviewed you for the position, did you ever advise me that you had a - a rash, or you had any health/medical condition?---I didn’t - didn’t advise you because I didn’t think it was relevant.
No, but that’s - I’m just asking you, did you advise me at all?---No, I didn’t believe it was relevant.
Okay. So my question is then if l had no idea you have a rash and you - when we gave you the opportunity to do a medical, given at the medical you did not put - state anywhere that you had a medical condition that we should be aware as a company or me as an individual, how am I supposed to know that you have a medical condition?---Well, like - like I’ve said before, I’ve had this rash for 20 years. I’ve never said it to any employer in - in those 20 years that I have a rash. It’s not an employer’s business [indistinct] I have a rash, as far as I’m concerned.
COMMISSIONER: Well, the question was was there any way for Mr JL to be aware that you had a rash?---Well, it - that- yeah. Well, if that’s your question, yes, there is a way that you were aware. You were advised as soon as you showed me the photograph.
MR JL: No, but prior to that, did you advise me or during the medical that you had a medical condition?---Well, it’s not - no, I did not advise you, because it’s not a work-related medical condition.”
“COMMISSIONER: All right. Okay. Are there any matters that you would like to raise in reply whilst you’re still in the stand and [indistinct] give evidence?
WITNESS: In respect to this Kinnect report, the report - there’s -there is one spot in the report where there was a question did I have skin cancers. Well, I don’t have skin cancer so I ticked no. And then I was asked if there was a skin disease and I was asked if I had eczema, and I said no, because I didn’t believe I had eczema, and that report has got no because of the fact that I was asked if I had eczema. It was not put to me as did I have a skin disease; it was put to me did I have eczema, and I responded with no. Mr JL has in the past case and - and is submitting in court, and I believe he’s submitting-he’s trying to say that because I’ve ticked no to that, that is - that I’m trying to say I never had a rash in my groin. Now, that rash has been there for a long - - -
COMMISSIONER: Mr JL, Mr EY has raised matters that go beyond the questions you asked him. Is there anything else that you would like to ask him in relation to those matters now that he has raised additional matters?
MR JL: Yes.
MR JL: Now, Mr EY, again, you never advised me about the rash.
COMMISSIONER: No, no. Mr - Mr JL, you’re going to have to put a question to [indistinct].
MR JL: Okay. Mr EY, how am I supposed to know that you have a medical condition if you do not advise - if you have not advised me or put in the - in the medical report?---Well, you were advised it when you showed me the photograph.
Yeah, but even that time you did not tell me on the spot that you had a rash. You went away and then you sent me a text?---No, I told you instantly when you showed me the photograph.
No, you did not. You sent me a text after you left?---I sent you a text as well.
No?---I told you several times.
No, Mr EY, you did not.”
- The findings made by the Industrial Commissioner concerning Dr Wilke are made at paragraphs , ,  and  as follows:
“ The Respondents contend that at the time that Mr EY was employed by the First Respondent, he was not suffering from the rash. In this regard, the Respondents rely on a pre-employment medical examination which consisted of a questionnaire completed by Mr EY and a medical examination conducted on 31 July 2018. The pre-employment medical examination was conducted by Dr David Wilkie, at Kinnect. Dr Wilkie was not called as a witness in the proceeding but his report was tendered into evidence.
 The pre-employment medical examination required Mr EY to complete a form by providing information in relation to his health. Under the heading ‘medical history – applicant to complete’, Mr EY indicated on the form that he did not have any skin conditions including skin cancers and/or skin diseases (e.g. psoriasis, dermatitis, eczema) when he applied for the position. Mr EY accepted under cross-examination that he did not state that he had the rash when he completed the form.
 Further, Dr Wilkie conducted a physical examination including an abdomen assessment, which required an assessment as to whether there were any abdominal scars, abdominal masses or hernias present. Dr Wilkie indicated an absence of these matters arising during his examination of Mr EY. Further, Dr Wilkie was required to undertake a skin assessment of Mr EY, including determining the presence of any eczema, dermatitis or allergy; scars; skin legions; psoriasis or any other abnormalities.
 Dr Wilkie indicated, that, but for the presence of moles or other abnormalities, each of those skin conditions were absent. In the examiner’s comments, Dr Wilkie noted ‘moles and freckles present on body, no irregularities seen, skin fair, sun damaged to exposed areas, especially back of neck.’” (emphasis added)
- The ultimate conclusions made by the Industrial Commissioner appear at paragraph  of the judgment. I have set this out earlier. I set it out again so as to highlight particular parts which concern Dr Wilke’s evidence:
“ I accept on the evidence that Mr EY has had a history whereby he suffered from a rash in the area between his abdominal wall and pubic bone. The difficulty for Mr EY is that there is no evidence, of probative value, that establishes that he was suffering from the rash on 2 and 3 October 2018. The evidence of Ms SY is that Mr EY’ rash went away after a cream and taking oral medical, although, she recalls Mr EY stating that the rash returned at some later stage. The evidence of Dr Mercado was that on 18 May 2017, Mr EY complained of the rash, yet there is no record of any complaint about the rash taken in the consultation on 3 July 2017. The evidence contained in the pre-employment medical assessment, suggests that the rash was not present at the time of the examination. There is no evidence that the rash then later returned. Relevantly, Mr EY did not adduce any additional evidence beyond his own evidence that supports that the rash was present on 2 and 3 October 2018. I am not satisfied that Mr EY has established, to the requisite standard, that the rash was present at the time of the alleged discriminatory conduct.” (emphasis added)
- In paragraph  of the Industrial Commissioner’s judgment, there is reference to The Store’s reliance on the pre-employment medical examination. This report is described as consisting of two parts being the questionnaire completed by Mr EY and the medical examination conducted by Dr Wilkie. That is factually correct although if the reference to the medical examination is a reference to the results of that examination then those results were not in evidence. The document was admitted into evidence for the limited basis of recording the answers which Mr EY gave to the questionnaire.
- In paragraph  of the Industrial Commissioner’s judgment she records Dr Wilkie’s findings. Further findings of Dr Wilkie are referred to at paragraph . The result of Dr Wilke’s examination was not in evidence, consistently with the ruling made to admit the report as exhibit 4.
- In paragraph  of the judgment when recording the conclusions that she has drawn the Industrial Commissioner said “The evidence contained in the pre-employment medical assessment, suggests that the rash was not present at the time of the examination”. Any fair reading of paragraphs - of the judgment leads to the conclusion that the reference to “the evidence contained in the pre-employment medical assessment” is a reference to both parts of exhibit 4 as identified in paragraph  namely the questionnaire and the medical examination conducted by Dr Wilkie. Mr Gaynor’s submission to the contrary is rejected.
- It follows then that the Industrial Commissioner has admitted the pre-employment medical report on a limited basis (to record Mr EY’s answers given to Dr Wilkie) but specifically not for the purpose of introducing Dr Wilkie’s opinions, and then used the evidence of Dr Wilkie’s observations (recorded in the report) that there were no skin irregularities observed on Mr EY. Introducing exhibit 4 for a limited purpose and then using it for a wider purpose constitutes an error of law.
- I will later deal with the consequences, if any, of that error.
- This ground shows that Mr EY has misunderstood the reasons of the Industrial Commissioner.
- The Industrial Commissioner well appreciated that Mr JL and Mr NB attended at the warehouse so that Mr JL could challenge Mr EY about what was caught on the CCTV footage. She also appreciated that the actions caught on the CCTV footage were at least part of the reason Mr JL terminated Mr EY’s employment. Mr JL expressly said that.
- The real issue is whether Mr EY was scratching himself or was masturbating.
- Upon finding that there was no rash, it followed that there was no impairment and it followed that Mr JL did not terminate Mr EY’s employment as a result of the disability said to be the rash.
- Mr EY’s real complaint is that the Industrial Commissioner ought to have found that he was suffering from a rash at relevant times. In relation to that finding Mr EY has, as I have explained, identified an error of law.
- By this ground Mr EY challenges the Industrial Commissioner’s failure to find that he was suffering a rash at the relevant times. He points to the evidence that he had been suffering a rash for a lengthy period and then challenges the Industrial Commissioner’s expertise to reject his evidence that he was suffering a rash at the time relevant to the current dispute.
- The Industrial Commissioner was obliged “to hear and determine” the dispute which was referred to the QIRC by the Anti-Discrimination Commissioner. She was obliged to undertake that task on the evidence put before her. Part of that task was to assess any expert opinion such as Dr Mercado’s evidence. Expert evidence, that is evidence beyond the knowledge of a judge or commissioner hearing the case, is often admitted. It may be accepted or rejected in the process of hearing and determining the dispute. The Industrial Commissioner heard all the evidence and drew conclusions from it. That she does not hold any medical expertise is irrelevant.
- Mr EY’s best basis for attacking the findings is that identified in paragraph 2(ii) of his written submissions namely that in making the finding the Industrial Commissioner took into account evidence which was not properly before her namely Dr Wilkie’s observations of what he saw during the pre-employment medical examination of Mr EY.
- Here Mr EY complains as to the delay between the hearing of the case in the QIRC and the delivery of judgment. Mr EY alleges “Commissioner Hartigan can’t remember who said what and meant what”. The upshot of his submission is that this explains why the Industrial Commissioner made findings against him.
- The matter was heard in the QIRC on 4 June 2020 and judgment was delivered on 15 January 2021, a period of about six and a half months with the Christmas holiday period intervening.
- Mr EY’s view expressed in his submission that the judgment ought to have been delivered within four weeks misunderstands the demands upon the resources of the QIRC. Cases must be prioritised, and it is neither unusual nor unreasonable for there to be a delay in cases where the only issue is monetary compensation.
- Delay between the hearing and judgment does not found a proper ground of appeal unless there is some reason for an appellate court to believe that the delay has affected the quality of the judgment.
- The Industrial Commissioner had the benefit of a transcript of the hearing before her. In reality there were few factual issues in dispute. The central factual issues were whether Mr EY was suffering a rash at relevant times and whether he was scratching that rash when he was shown on CCTV with his hand down the front of his shorts.
- Detailed reasons were given by the Industrial Commissioner as to why she concluded those issues against Mr EY. There is nothing to suggest that delay has had any impact on the quality of the Industrial Commissioner’s decision. The delay does not give rise to an apprehension of bias.
- Here Mr EY complains as to the behaviour of The Store and Mr JL in the proceedings. He does not assert that he was prejudiced in any specific way that could have affected the outcome before the QIRC. He does not assert that the Industrial Commissioner failed in any way to ensure that the proceedings were fairly conducted. There is nothing in this complaint.
- None of the grounds considered individually or together suggest an apprehension of bias or any misbehaviour by the Industrial Commissioner.
The effect of the legal error
- The Industrial Commissioner’s refusal to find that Mr EY was suffering the rash at relevant times cannot stand. The inadmissible evidence of Dr Wilkie’s findings on the pre-employment examination is inextricably bound up with the other evidence upon which the Industrial Commissioner relied to draw the conclusions she did.
- I am not confident that I can draw the same conclusions based on the evidence below. I did not enjoy the benefit of seeing and hearing the witnesses especially Mr EY.
- However there were two parts to the Industrial Commissioner’s determination that there was no impairment. There was the factual determination as to whether Mr EY was suffering from the rash at relevant times. There was also the finding that the rash was not an “impairment” for the purposes of the ADA. If that second finding stands then Mr EY’s appeal must fail.
Was any rash an “impairment”?
- In concluding that any rash was not an impairment the Industrial Commissioner asked herself the correct question namely whether the rash was “a disorder … that results in disturbing behaviour”. She then identified the “disturbing behaviour” resulting from the rash as Mr EY “unconsciously starts scratching at [the] rash”. That is how Mr EY himself identified his case. Relevantly here that must mean unconsciously scratching his bare skin with his clothing partly removed. That must be the right context in which the question is asked as that is the “disturbing behaviour” which was said to justify the termination of Mr EY’s employment which in turn is alleged to be the discriminatory behaviour.
- Dr Mercado gave evidence that the rash he saw would be itchy. He gave no evidence that the scratching was involuntary or unconsciously done. Further, as Ms SY said, Mr EY would scratch on the outside of his clothing and if more aggressive scratching was required he would retreat to a public place.
- The Industrial Commissioner was entitled to accept Ms SY’s evidence and find that the rash did not result in “disturbing behaviour”. At worst it resulted in the necessity to scratch over the clothing or retreat to a private place where Mr EY could scratch his bare skin.
- It was therefore open to the Industrial Commissioner to find that there was no relevant “impairment”. There was no error of law or excess of jurisdiction in so finding. There is nothing to suggest that the finding was attended by apprehended bias.
- Once that finding is upheld, Mr EY has no relief under the ADA. It may be that he was scratching a rash. It may be that he was not masturbating as Mr JL thought he was. It may be that Mr JL was mistaken and, subject to the evidence of Mr EY assaulting Mr JL (which issue I need not resolve), he was unfairly dismissed. None of that matters to Mr EY’s claim which is made under the ADA and which is dependant upon him proving as a very first step that he had a “impairment” as defined by that Act.
- The Industrial Commissioner was correct on one of the two bases upon which she held that Mr EY had not proved an impairment. Mr EY’s claim therefore rightly failed in the QIRC. His appeal should also fail.
- Question 2 and Question 3 as I have identified them need not be considered. They only arise if Mr EY was found, at relevant times, to be suffering from an impairment as defined under the ADA.
- The appeal should be dismissed.
- The Store seeks costs against Mr EY.
- As already observed, The Store did not properly participate in the appeal. After ignoring the Court’s directions, it filed an unhelpful written submission at the last minute and then sought to make oral submissions.
- The Store should not have the benefit of a costs order.
- The appeal is dismissed.
- There is no order as to costs.
 The Store.
 Anti-Discrimination Act 1991, s 164A.
 A pseudonym.
 Transcript 1-41 and 1-42.
 In particular, ss 7, 8, 10 and 15.
 Section 10.
 Section 15.
 Section 7(a) and (h).
 Primary judgment commencing at .
 Commencing at .
 Section 10.
 T 1-16.
 T 1-33.
 Her evidence is referred to in more detail later.
 T 1-38 to 1-41.
 T 1-44 to 1-46
 T 1-46.
 The relevant impairment.
 Reasons, paragraph .
 See definition of “impairment” in Schedule 1, paragraph (d) of the Anti-Discrimination Act 1991. Reasons at -.
 The hypothetical person not suffering the impairment.
 Reproduced faithfully including grammatical and typographic errors.
 Lee v Lee (2019) 266 CLR 129 at .
 Fox v Percy (2003) 214 CLR 118, Lee v Lee (2019) 266 CLR 129 and Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679.
 Turnbull v New South Wales Medical Board  2 NSWLR 281.
 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194 at  and .
 (1986) 161 CLR 342.
 At 352 and see also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345.
 Should read “medicine”.
 See also primary judgment .
 Dr Wilke is the author of the Kinnect report.
 Paragraph  of this judgment.
 Exhibit 4.
 Industrial Relations Act 2016 s 448.
 Expectation Pty Ltd v PRD Realty Pty Ltd & anor (2004) 140 FCR 17 at - and the analysis of the authorities in Australian Securities and Investments Commission v Anderson (2019) 134 ACSR 105 at  and following.
 Anti-Discrimination Act 1991; definition of “impairment”, paragraph (d).
 T1-66 ll12-14.
 Purvis v New South Wales (2003) 217 CLR 92.
 Ondrich v Kookaburra Eco-Village  FMA 260 at , Queensland v Forrest (2008) 168 FCR 532.
- Published Case Name:
EY v The Store
- Shortened Case Name:
EY v The Store
 ICQ 6
Member Davis J, P
16 Apr 2021