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Ruiz v Credit Corp Group Limited[2015] QCAT 342

Ruiz v Credit Corp Group Limited[2015] QCAT 342

CITATION:

Ruiz v Credit Corp Group Limited & Ors [2015] QCAT 342

PARTIES:

Raymond Ruiz

(Applicant)

 

v

 

Credit Corp Group Limited ABN 33 092 697 151

(First Respondent)

Adam Carpenter

(Second Respondent)

Sarah Caskey

(Third Respondent)

APPLICATION NUMBER:

ADL040-14

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

5 December 2014

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

DELIVERED ON:

2 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

The order of the Tribunal is as follows:

The application is dismissed.

CATCHWORDS:

Alleged discrimination on the basis of an impairment (major depression); Applicant unable to work full-time whilst subject to a relevant medical restriction. Applicant given a temporary part-time position to facilitate a graduated return to work program; Applicant’s employment terminated whilst still the subject of medical restriction; Circumstances where First Respondent contends that the ability to work on a full-time basis was a “genuine occupational requirement” of the applicant’s employment, pursuant to exemption in s.25 of the Anti-Discrimination Act 1991; Whether Applicant has been subject to either direct (s.10) or indirect (s.11) discrimination; whether claimed requirement of ability for full-time employment a genuine occupational requirement for purposes of s.25; Onus of proof as regards exemption.

Anti-Discrimination Act 1991 (Qld) ss 7(h), 10, 11, 15, 25, 205 and 206 considered.

State of Queensland (Queensland Health) v Chivers [2013] QCATA 256 applied.

Qantas Airways Limited v Christie (1998) 193 CLR 280; X v The Commonwealth (1999) 200 CLR 177; Cosma v Qantas Airways Ltd [2002] FCAFC 425 ([2002] FCA 640) considered.

APPEARANCES and REPRESENTATION (If any):

The Applicant, in person

Mr A James (of Counsel), instructed by Piper Alderman, Lawyers for the Respondents.

Reasons for Decision:

 

  1. [1]
    This is an application under the Anti-Discrimination Act 1991 (Qld) after the referral of a matter to QCAT by the Anti-Discrimination Commission of Queensland.
  2. [2]
    The Complainant/Applicant, Mr Raymond Ruiz, is a former employee of Credit Corp Group Limited (‘CCGL’, the First Respondent).  CCGL is an Australian receivables management company that purchases and then attempts to recover consumer debts, including credit card debts and personal loans.
  3. [3]
    Mr Ruiz commenced his employment with CCGL on 31 October 2006, initially as a Customer Relationship Manager (‘CRM’).  In early 2011, and by then already promoted to Senior Customer Relationship Manager (‘SCRM’), Mr Ruiz was approached by his then Operations Manager and asked to take on an even more senior role, as a Team Performance Manager (‘TPM’).  This he did, commencing on 1 April 2011.
  4. [4]
    Mr Ruiz contends that he had expressed reservations about his preparedness for the TPM role, because he felt that he lacked the necessary computer skills for this more senior position.  Yet, Mr Ruiz says that he was assured that he would be taught all the necessary additional skills, on the job.  Despite those assurances, Mr Ruiz says that he was never provided with any additional computer training, and, in consequence, that he floundered.
  5. [5]
    In about October 2012 - by now having been a TPM for approximately 20 months - Mr Ruiz underwent a performance appraisal.  The results of that appraisal were exceedingly below what Mr Ruiz had expected.  Prior to having taken up the TPM position Mr Ruiz had been a stellar CRM, and SCRM, having achieved a monthly bonus on 41 occasions.  Yet, by October 2012, the applicant’s performance had fallen by some 41%, when measured over the preceding 3 months.  Mr Ruiz challenged the October 2012 performance review.  That challenge gained little traction with senior management. 
  6. [6]
    On 20 December 2012 Mr Ruiz went on sick leave, suffering from a psychiatric condition in consequence of his interactions with his employer in relation to the October 2012 performance review, and his perception that his employer had inadequately supported him.  However, Mr Ruiz elected not to lodge a workers’ compensation claim, instead choosing to draw on the income protection component of his superannuation.
  7. [7]
    While on sick leave Mr Ruiz obtained psychiatric treatment from a Dr Mark Whittington.  Dr Whittington was not called to give any evidence before QCAT, yet a number of Dr Whittington’s reports have been included in the materials filed before the Tribunal.  These paint a clear picture of the Applicant having developed major depression in consequence of events arising during the course of his employment.
  8. [8]
    On 17 May 2013, Dr Whittington provided written advice to CCGL, advising that Mr Ruiz was ready to commence a graduated return to the workplace, commencing on 24 June 2013.  Initially, Dr Whittington recommended that his patient should commence on the basis of 2 days per week, for a fortnight, with the number of days increasing each fortnight thereafter. 
  9. [9]
    CCGL contends that the role of a TPM is necessarily a full-time position, and the ability to engage in full-time employment comprises a ‘genuine occupational requirement’[1] of the TPM role.[2] 
  10. [10]
    Because of the inability of Mr Ruiz to work full-time, CCGL resolved that it would create a temporary part-time role, specifically for Mr Ruiz, and at least for the envisaged period in which he was to be subject to medical restriction.  The temporary role was one in which Mr Ruiz would “shadow” other TPMs, as well as undertaking revisionary reading of the various regulatory requirements imposed on this aspect of the credit industry.
  11. [11]
    On 17th June 2013, Dr Whittington advised CCGL in a report that Mr Ruiz was expected to be ready to return to full-time work by mid-July 2013. Despite that advice, in the later half of 2013 Mr Ruiz was still only capable of working part-time, and was still subject to medical certification from Dr Whittington indicating that to be so.  In a letter dated 18 October 2013 Dr Whittington bleakly informed CCGL that he did not think that Mr Ruiz was adequately coping with three days per week, and that “a time-line for a full time return to work [was] yet to be determined”. 
  12. [12]
    In November 2013, CCGL determined that because Mr Ruiz was unable to cope with full-time work he was unlikely to be able to fulfil a genuine occupational requirement of his position.  Further advice sought from Dr Whittington on 21 November 2013 did not cause CCGL to feel any more confident that the situation was likely to improve in the future.    On 25 November 2013, Mr Ruiz was jointly informed by the Second Respondent, Mr Adam Carpenter (the Australian Operations Manager), and the Third Respondent, Ms Sarah Caskey (who is a representative from the human resources department) that his employment was to be terminated.

The Applicant’s Contentions

  1. [13]
    Mr Ruiz contends before QCAT that when his employment was terminated he was suffering from an “impairment” for the purposes of s. 7(h) of the Act, and that prior to termination he had been discriminated against in his employment because of an impairment.

Legislative Scheme

  1. [14]
    Section 7 of the Anti-Discrimination Act provides:

7  Discrimination on the basis of certain attributes prohibited

The Act prohibits discrimination on the basis of the following attributes—

…/

  1. (h)
    impairment;

…/

  1. [15]
    Section 15 of the Act provides:

15  Discrimination in work area

  1. (1)
    A person must not discriminate—
  1. (a)
    in any variation of the terms of work; or
  1. (b)
    in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
  1. (c)
    in dismissing a worker; or
  1. (d)
    by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
  1. (e)
    in developing the scope or range of such a program; or
  1. (f)
    by treating a worker unfavourably in any way in connection with work.
  1. (1)
    In this section—

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

  1. [16]
    “Impairment”, as that term is used in s. 7(h), is defined in a dictionary, which appears as a Schedule to the Act.  It provides that:

impairment, in relation to a person, means—

  1. (a)
    the total or partial loss of the person’s bodily functions, including the loss of a part of the person’s body; or
  1. (b)
    the malfunction, malformation or disfigurement of a part of the person’s body; or
  1. (c)
    a condition or malfunction that results in the person learning more slowly than a person without the condition or malfunction; or
  1. (d)
    a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; or
  1. (e)
    the presence in the body of organisms capable of causing illness or disease; or
  1. (f)
    reliance on a guide, hearing or assistance dog, wheelchair or other remedial device;

whether or not arising from an illness, disease or injury or from a condition subsisting at birth, and includes an impairment that—

  1. (g)
    presently exists; or
  1. (h)
    previously existed but no longer exists.
  1. [17]
    Mr Ruiz was self-represented in these QCAT proceedings, and is not legally qualified.  Beyond having identified sections 7(h) and 15(1)(c) of the Act, Mr Ruiz has not precisely articulated the nature of his claim under the Anti-Discrimination Act.   In these circumstances it really falls to the Tribunal to discern the basis for Mr Ruiz’s contentions.

‘Direct’ and ‘Indirect’ Discrimination

  1. [18]
    The scheme of the Act is one wherein section 7 of the Act prohibits discrimination on the basis of various defined “attributes”.  These include, in s. 7(h), the attribute of “impairment”.  Next, section 8 of the Act refers to the meaning of discrimination on the basis of an attribute.  Section 9 then prohibits “direct” and “indirect” discrimination.  In order to understand the distinction between these two, regard must then be had to sections 10 and 11.   Direct discrimination is defined in s. 10:

10  Meaning of direct discrimination

  1. (1)
    Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Example—

R refuses to rent a flat to C because—

C is English and R doesn’t like English people

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

   R believes that English people are unreliable tenants.

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

  1. (2)
    It is not necessary that the person who discriminates considers the treatment is less favourable.
  1. (3)
    The person’s motive for discriminating is irrelevant.

Example—

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

  1. (4)
    If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
  1. (5)
    In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
  1. [19]
    Indirect discrimination is defined in s. 11, which provides:

11  Meaning of indirect discrimination

  1. (1)
    Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
  1. (a)
    with which a person with an attribute does not or is not able to comply; and
  1. (b)
    with which a higher proportion of people without the attribute comply or are able to comply; and
  1. (c)
    that is not reasonable.
  1. (2)
    Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
  1. (a)
    the consequences of failure to comply with the term; and
  1. (b)
    the cost of alternative terms; and
  1. (c)
    the financial circumstances of the person who imposes, or proposes to impose, the term.
  1. (3)
    It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
  1. (4)
    In this section—

term includes condition, requirement or practice, whether or not written.

Example 1—

An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work.

This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2—

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.

  1. [20]
    In order to demonstrate direct discrimination (s. 10), Mr Ruiz would need to show that he was treated less favourably than another person (without the attribute of impairment suffered by him) in circumstances that are the same (or at least not materially different), to those of Mr Ruiz.
  2. [21]
    In order to show indirect discrimination (s. 11), Mr Ruiz needs to show that an employment term was imposed on him that is a term with which
  1. (a)
    a person with the attribute of impairment does not comply with, or was unable to comply with;
  1. (b)
    with which a higher proportion of people without a similar impairment are able to comply; and
  1. (c)
    that it was not reasonable.[3] 

Matters Conceded

  1. [22]
    For the purposes of section 11, the Respondents concede[4] the fact of Mr Ruiz’s diagnosis of major depression constitutes an “impairment” within the meaning of s. 7(h); and also concede that a higher proportion of persons who do not suffer from major depression are able to comply with a requirement for full-time employment.  In that light, the only issue that warrants further analysis is the question whether imposition of the requirement that TPMs work on a full-time basis was reasonable.[5]
  2. [23]
    In relation to this aspect of the inquiry, the effect of s. 205 of the Act is that it is for the Respondent(s) to prove that a term complained of is reasonable.[6]  Equally, s. 206 of the Act provides that should a Respondent wish to rely on an exemption from the legislative scheme, then it is for the Respondents to raise - and prove - the availability of that exemption.  In this latter regard, the Respondents do seek to rely on the exemption found in s. 25(1) of the Act, when asserting that the requirement that TPMs work full-time is a ‘genuine occupational requirement’.  Relevantly, section 25(1) provides:

25 Genuine occupational requirements

  1. (1)
    A person may impose genuine occupational requirements for a position.

Examples of genuine requirements for a position—Example 1—

selecting an actor for a dramatic performance on the basis of age, race or sex for reasons of authenticity

Example 2—

using membership of a particular political party as a criterion for a position as an adviser to a political party or a worker in the office of a member of Parliament

Example 3—

considering only women applicants for a position involving body searches of women

Example 4—

employing persons of a particular religion to teach in a school established for students of the particular religion.

Applicant’s factual complaints

  1. [24]
    In a factual sense, Mr Ruiz complains about: (a) treatment by his employer during the period of his attempted graduated return to full time work; and (b) the termination of his employment. 

(a) The graduated return to work program: 

  1. [25]
    In relation to the graduated return to work, Mr Ruiz complains, in broad terms, that:
  1. There was no proper plan or structure for how his proposed shadowing of other TPMs was meant to work, in practice;
  2. He was required to revise legislative compliance issues;
  3. He was not provided with an opportunity to sit with a colleague and watch how they work and then take turns performing their duties;
  4. Unlike any other TPM he was given a quantifiable performance target; and
  5. He was excluded from management meetings and did not receive inter-office e-mails.
  1. [26]
    The Respondents submit,[7] (correctly, in my view), that when assessing the conduct complained of, and whether this now amounts to direct discrimination, the treatment of the Applicant needs to be compared against that of another person, without major depression, also undertaking a temporary part-time TPM position, that being “circumstances that are the same or not materially different”[8] to those of Mr Ruiz, at the time of the conduct now complained about. 
  1. [27]
    Although Mr Ruiz was unique in being the only employee to have performed the TPM role on a part-time basis, it is not difficult to conceive another employee (for example one returning to work after a prolonged period of absence) who would be similarly required to perform the TPM role on a part-time basis, in order to work their way back into familiarity with the position. Tellingly, no evidence was led by the Applicant to suggest that another person without his impairment in those circumstances would then have been treated any differently.
  1. [28]
    Ultimately, the list of things that the Applicant has complained about in relation to the return to work program are not really categorisable as instances of discrimination. Although the Respondents have conceded that, with hindsight, the implementation of the return to work program could have been handled better,[9] the very informality of the return to work program created for Mr Ruiz arose in consequence of the initial medical advice from Dr Whittington, wherein these arrangements were only expected to be required from 24 June 2013 until about mid-July 2013; and in circumstances where the intent had always been for the arrangements to remain open and flexible.[10]             
  1. [29]
    As for the specific complaint about his being required to engage in refresher training regarding regulatory matters, Mr Ruiz himself conceded under cross examination that, having regard to the fact that he had not performed the role of a TPM for several months, it became both important and sensible to ensure that he was up to date with any regulatory changes;[11] and that the requirement was not specifically one that arose in consequence of his suffering from an impairment.[12]
  1. [30]
    Although Mr Ruiz also complained at some length about the creation of an individual target for him in the collections system.[13] Other evidence explained that there was never any expectation that Mr Ruiz had to achieve that target,[14] as it was only notional, in order to create a re-training opportunity for him.[15] A number of reasons were then given for assigning the Applicant this target, including:
  1. To have the applicant appear in the system;[16]
  2. To enable workflow processes and account allocations to operate;[17]
  3. To allow the applicant to re-assimilate into the role of a TPM;[18]
  4. To allow the applicant to re-familiarise himself with collections, it being hard to lead a team without being good at collecting, and knowing the operation of the systems properly;[19] and
  5. To enable the applicant to subsequently train CRMs in the new system.[20]
  1. [31]
    As to the purported exclusion of the applicant from receipt of e-mail, it was further conceded[21] by Mr Ruiz during his cross-examination that the e-mail system is an automated one, wherein group emails are sent to a `tree'. The applicant did not dispute that, as a consequence of his undertaking a unique role that had been created specifically for him, he was not part of any existing ‘tree',[22] and Mr Adam Carpenter then went on to explain in his own evidence before the Tribunal that leaving the applicant off group e-mail lists had been an administrative oversight, in consequence of the system administrators not being aware of the need to re-add Mr Ruiz back onto the group e-mail system.[23]
  1. [32]
    When pressed for specific instances of the e-mails he says he was left off, Mr Ruiz was unable to provide any clear examples, other than to instance one e-mail sent to staff in relation to a forthcoming social club Melbourne Cup function.[24] I do not regard this is sufficient evidence of discrimination.
  1. [33]
    As to the management meetings, CCGL disputes that Mr Ruiz was not invited to attend those meetings. [25] Adam Carpenter also gave evidence that it was not necessary for the applicant to attend all of the meetings, due to the content of the meetings not being relevant to the applicant's position, and hence said that Mr Ruiz chose not to attend.[26]
  1. [34]
    Ultimately, I form the view that the applicant has failed to demonstrate that the matters complained of and now summarized in paragraph 25 herein amount to instances of direct discrimination for purposes of s. 10 of the Act.

(b) The Applicant’s Termination

  1. [35]
    Mr Ruiz does not assert before the Tribunal that the requirement that he be able to perform the role of a TPM on a full-time basis arises out of less favourable treatment of him in consequence of his suffering from major depression.[27] Indeed, to argue that would be difficult, given that the full-time requirement was an existing one, pre-dating the onset of Mr Ruiz’s depressive illness. Accordingly, the imposition of the requirement that Mr Ruiz be able to perform his TPM role on a full-time basis cannot constitute direct discrimination within the meaning in s. 10 of the Act.
  1. [36]
    Whilst not specifically articulated in the contentions made against the Respondents, it was open for Mr Ruiz to allege that the imposition of the requirement that he perform his TPM role on a full-time basis was the imposition of a term which he, in consequence of his impairment, was not able to comply with, and which was not reasonable, such that it amounts to a form of indirect discrimination, pursuant to s. 11 of the Act. The fact that Mr Ruiz now complains that he was terminated from his employment for not being able to work full time whilst he was subject to a relevant medical certificate stating that he was still incapable of working full-time is now treated by QCAT as being, in substance, a complaint of indirect discrimination.
  1. [37]
    Because of the concessions already made by the Respondents,[28] the only issue for determination is whether the term of employment that TPMs be able to work full-time was a reasonable requirement.  Sarah Comarmond (the CCGL human resources manager) specifies, in paragraph 8 of her statement before the Tribunal, what are claimed to be the inherent requirements of the role of a TPM.  This evidence was not challenged by the Applicant.  When cross-examined, Mr Ruiz confirmed that a TPM:
  1. has the supervision of a team of up to 10 CRMs and one SCRM:[29]
  2. is responsible for ensuring the team has adequate training to comply with legislative requirements:[30]
  3. is required to ensure that team members are aware of legislative changes;[31]
  4. is required to intervene and assume responsibility for the management of difficult (‘escalated’) accounts;[32]
  5. can exercise some discretion over the approach to be adopted in relation to files and how these were to be managed;[33]
  6. is required to monitor team members, including listening into telephone calls they are making, and assisting with difficult customers;[34]
  7. is responsible for ensuring budgets and performance targets are met;[35]
  8. is responsible for maintaining a harmonious atmosphere within the team, so as to aid in the goal of staff retention.[36]
  1. [38]
    In his evidence, Mr Adam Carpenter explained that each customer account requires a lot of day-to-day and historical knowledge.[37] Accordingly, full-time TPM's are required to have what he termed to be ‘tacit understanding’ of the accounts, something that he then claimed could not occur effectively where the role of TPM is shared.[38] Again, that evidence was not actually challenged, by the Applicant.
  1. [39]
    Although the evidence of Ms Comarmond and Mr Carpenter was not challenged, I do express some reservations about it.  The net effect of it is that CCGL employees are forever precluded from employment as a TPM in anything other than a full-time capacity, no matter that parental or family responsibilities, or an impairment, might preclude them from working full-time; and in circumstances where a number of equivalent employment sectors (for example, insurance and workers’ compensation claims management) are able to facilitate workplace flexibility, (even for team leaders), by recourse to compendious computer-based file notes.  
  1. [40]
    Although I express that clear reservation, I hasten to add that in the instant case there is no evidence regarding such matters that is actually before me, such that I feel compelled towards no alternative other than to accept the unchallenged evidence regarding the need for TPMs to work full time.
  1. [41]
    To compound matters, during his cross examination, Mr Ruiz also made a number of concessions, including that in order to identify the strengths and weaknesses of team members for the award of bonus payments a high level of day-to-day supervision is required by the TPM,[39] and such is best achieved by having only one TPM supervise each team.[40]  Mr Ruiz also accepted that there was a potential for conflict in management approaches should there be more than one TPM appointed to a team, and that this was undesirable.[41]
  1. [42]
    The Respondents also submit that a number of practical difficulties would arise from an attempt to share supervision, training, and management of one collections team between two part-time TPMs; and that the imposition of a requirement upon the employer to offer the applicant the opportunity to work on a part-time basis would mean that CCGL would then have to employ a further person to make up the full-time role, and this would impose an unacceptable financial burden on the company.  Given the state of the evidence, I accept the weight of those observations.

Genuine Occupational Requirement?

  1. [43]
    In light of the evidence I must determine whether the requirement for TPMs to work full time is a “genuine occupational requirement”.  Section 24 of the Act prescribes that it is not unlawful to discriminate in a work or work-related area, ‘if an exemption in sections 25 to 36 of Part 5 of the Act applies’.  The Respondents seek to rely on s. 25, when stating that full time employment is a genuine occupational requirement of the TPM position. 
  1. [44]
    In the context of s. 25, what might constitute a ‘genuine occupational requirement’ was considered by Justice Thomas in the Appeal Division of this Tribunal in State of Queensland (Queensland Health) v Chivers.[42]
  1. [45]
    The appeal decision in Chivers was subsequently upheld in the Court of Appeal,[43] and is also obviously binding on me.  Chivers usefully draws together a number of passages from comparable decisions in the High Court and Federal Court, dealing with analogues of s. 25, as found in the Commonwealth anti-discrimination legislation.   In Chivers, Justice Thomas said, in part:

“[84] As Gummow and Hayne JJ (with whom Gleeson CJ and Callinan J agreed) indicated in X v The Commonwealth[44]:

‘[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.’

[85] McHugh J in that case observed:

‘The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking, and in regarding this or that requirement as essential to the particular employment. Thus, in Christie, Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christi.’[45]”

  1. [46]
    Then, at paragraphs [100] – [101], when discussing the decision of the Full Federal Court in Cosma v Qantas Airways Ltd,[46] Justice Thomas further observed:

“[100] On appeal the Court (Black CJ, Finn and Dowsett JJ) referred to the fact that the claimant was retained in his position while disabled whilst he received the benefit of rehabilitation training and treatment. This, in the Court's view, did not change his duties, or the requirement:

[I]t was accepted that he could not perform the duties of a porter in ramp services. In other words the respondent waived its right to demand performance of them whilst the parties examined possible alternative duties.[47]

[101] The employer's temporary waiver of a requirement was regarded as irrelevant.”

  1. [47]
    In light of Chivers and the passages that I have just excerpted, the First Respondent was not obliged to change the nature of the applicant's role as a TPM from a full-time position to a part-time one.  That is, CCGL had no obligation to create a different or special position for the applicant, despite it having chosen to do so.  In my view, s. 25 of the Act has been raised legitimately. 
  1. [48]
    No aspect of the conduct of any of the First, Second or Third Respondent offends any aspect of the Anti-Discrimination Act (1991).
  1. [49]
    The Application is dismissed.

Footnotes

[1] Anti-Discrimination Act 1991 (Qld) s 25.

[2]  Statement of Sarah Comarmond at paragraph 8(a).  See also Transcript, p. 95 at lines 10-12.

[3]Anti-Discrimination Act 1991 (Qld) s 11(1).

[4]   First Respondents written submissions, at paragraph [39].

[5] Anti-Discrimination Act 1991 (Qld) s 11(1)(c).

[6]    See also: State of Queensland (Queensland Health) v Chivers [2013] QCATA 256 at [129].

[7]    Respondents final submissions, paragraph 18.

[8]    Act, s 10(1).

[9]  T1-80:44 and T.1-96:28.

[10]  T1-79:44.

[11]  T1-28;6 and T1-28:20.

[12]  T1-28:29.

[13]  T1-33:4.

[14]  T1-68:29; T1-83:45, T1-89:33.

[15]  T1-69:34.

[16]  T1-62:34.

[17]  T1-83:20.

[18]  T1-84:26.

[19]  T1-57:16.

[20]  T1-68:29-42; T1-34:11.

[21]  T1-37:36.

[22]  T1-38:4.

[23]  T1-87:23.

[24]  T1-38:35 – T1-39:4.

[25]  T1-87:39.

[26]  Ibid.

[27]  In other words Mr Ruiz has not sought to assert that he is being treated differently than any other person performing the role of a TPM.

[28]  Paragraph [22], above.

[29]  T1-20:8.

[30]  T1-20:18.

[31]  T1-23:15.

[32]  T1-20:22.

[33]  T1-20:44 & T1-21:1.

[34]  T1-21:24.

[35]  T1-21:36.

[36]  T1-22:38.

[37]  T1-88:28.

[38]  Ibid.

[39]  T1-23:21.

[40]  Ibid.

[41]  T1-22:19.

[42]   [2013] QCATA 256.

[43] Chivers v State of Queensland (Queensland Health) [2014] QCA 141.

[44]  (1999) 200 CLR 177.

[45]   Ibid, at 190.

[46]   [2002] FCAFC 425.

[47] Cosma, ibid, at 512.

Close

Editorial Notes

  • Published Case Name:

    Ruiz v Credit Corp Group Limited & Ors

  • Shortened Case Name:

    Ruiz v Credit Corp Group Limited

  • MNC:

    [2015] QCAT 342

  • Court:

    QCAT

  • Judge(s):

    Member McLean Williams

  • Date:

    02 Sep 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Chivers v State of Queensland[2014] 2 Qd R 561; [2014] QCA 141
1 citation
Jump To
Cite 1 - [2014] QCA 141
Cosma v Qantas Airways Limited (2002) FCAFC 425
3 citations
Jump To
Cite 1 - (2002) FCAFC 425
Cite 2 - (2002) FCAFC 425
Cite 3 - (2002) FCAFC 425
Cosma v Qantas Airways Ltd [2002] FCA 640
1 citation
Jump To
Cite 1 - [2002] FCA 640
Qantas Airways Ltd v Christie (1998) 193 CLR 280
1 citation
Jump To
Cite 1 - (1998) 193 CLR 280
State of Queensland (Queensland Health) v Chivers [2013] QCATA 256
3 citations
Jump To
Cite 1 - [2013] QCATA 256
Cite 2 - [2013] QCATA 256
Cite 3 - [2013] QCATA 256
X v Commonwealth (1999) 200 CLR 177
3 citations
Jump To
Cite 1 - (1999) 200 CLR 177
Cite 2 - (1999) 200 CLR 177
Cite 3 - (1999) 200 CLR 177

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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