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  4. Yu Ping Xi v WorkCover Queensland - [2017] QCAT 195

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Yu Ping Xi v WorkCover Queensland[2017] QCAT 195

Yu Ping Xi v WorkCover Queensland[2017] QCAT 195

CITATION:

Yu Ping Xi v WorkCover Queensland [2017] QCAT 195

PARTIES:

Yu Ping Xi

(Applicant)

v

WorkCover Queensland

(Respondent)

APPLICATION NUMBER:

ADL057-13

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner, Presiding Member Member Paratz

DELIVERED ON:

8 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The complaint made by Yu Ping Xi to the Anti Discrimination Commission Queensland on 28 September 2012 of discrimination by WorkCover Qld pursuant to the Anti-Discrimination Act 1991 (Qld) is dismissed.

CATCHWORDS:

ANTI-DISCRIMINATION – provision of services – where discrimination was alleged on the basis of race – whether the alleged term was proven

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REPRESENTATIVES:

APPLICANT:

The applicant represented herself.

RESPONDENT:

Mr D. Van Brunschot of Kaden Boriss Solicitors

REASONS FOR DECISION

  1. [1]
    A reference from the Anti-Discrimination Commission as to a complaint by Yu Ping Xi as to discrimination was heard by the Tribunal on 8 April 2014. A decision was delivered on 28 May 2014 dismissing the complaint.
  2. [2]
    An appeal against the decision was heard by the Appeal Tribunal by an On the Papers hearing on 23 May 2016. The decision of the Appeal Tribunal was as follows:
  1. The appeal is allowed on a question of law only. Leave to appeal on grounds (2), (4) and (5) is refused.
  2. The decision of 28 May 2014 is set aside and the matter is returned to the tribunal for reconsideration in accordance with this decision on appeal.
  3. By 1 August 2016 Yu Ping Xi must send to the Tribunal and to WorkCover Queensland:

All the dates on which she alleges she was required by WorkCover to communicate with WorkCover in English, and the circumstances in which this requirement was imposed upon her by WorkCover.

  1. The file will then be referred to the members of the Tribunal to decide whether a further hearing is required or whether the complaint can be dealt with on the papers, and whether further  evidence or submissions are necessary
  1. [3]
    Ms Xi filed a 9 page document on 4 July 2016 (dated 3 July 2016). On the same day she also filed a 19 page document related to her WorkCover claim.
  2. [4]
    In her document dated 3 July 2016 Ms Xi noted:[1]:

Because of my health conditions and lack of financial support for the expense of lawyers and trials, I really wanted the tribunal to accepts (stet) this complaint and to be dealt with on the papers.

  1. [5]
    The Tribunal then made further Directions, pursuant to the orders of the Appeal Tribunal, on 29 September 2016 as follows:
  1. WorkCover Queensland must file in the Tribunal two (2) copies and send to Yu Ping Xi one (1) copy of any response to the submissions of the applicant filed on 4 July 2016 by: 4pm on 7 November 2016.
  2. Yu Ping Xi must file in the Tribunal two (2) copies and send to WorkCover Queensland one (1) copy of any submissions in reply by: 4pm on 28 November 2016.
  3. The matter will be determined by the Tribunal on the papers and without an oral hearing, not before 4pm on 28 November 2016.
  1. [6]
    WorkCover filed a 23 page submission on 4 November 2016 in response to the submissions of Ms Xi.
  2. [7]
    Further directions were made by the Tribunal, on 10 November 2016, (which varied the Tribunal directions dated 29 September 2016) as follows:
  1. WorkCover Queensland must send to Yu Ping Xi one (1) copy of a Mandarin translation of their response filed on 4 November 2016 by: 4pm on 15 December 2016
  2. Yu Ping Xi must file in the Tribunal two (2) copies and send to WorkCover Queensland one (1) copy of an English translation of any submissions in reply by: 4pm on 12 January 2017.
  3. Any further documents sent to Yu Ping Xi by WorkCover Queensland in compliance with tribunal directions in this matter must be accompanied by an English translation of the said documents.
  4. This matter will be determined by the Tribunal on the papers and without an oral hearing, not before 4pm on 12 January 2017.
  1. [8]
    WorkCover then filed on 28 November 2016 a Mandarin translation of their submissions of 4 November 2016.
  2. [9]
    Ms Xi then filed on 12 January 2017 a 13  page Response to the submission of WorkCover (which she noted as submitted on 5 December 2016)
  3. [10]
    This is the decision On the Papers as to the reconsideration of the referral.

The Appeal Tribunal findings

  1. [11]
    The Appeal Tribunal found that errors of law had been made in relation to grounds of Appeal (1) and (2). Leave to appeal was not granted as to Grounds (3), (4) and (5). The successful grounds of appeal were as follows:
  1. In the indirect discrimination claim, the Tribunal did not find the correct term imposed on Ms Xi. The Tribunal should have found that WorkCover imposed this term on Ms Xi:-

Requiring or expecting Ms Xi to communicate with WorkCover in English in communications initiated by WorkCover.

  1. When considering less favourable treatment in the direct discrimination claim, the Tribunal erred in using a non-Chinese person as a comparator; instead the Tribunal should have taken judicial notice of the fact that a higher proportion of non-Chinese persons in Australia are able to communicate in English (than Chinese).
  1. [12]
    The Appeal Tribunal described the correct test for direct discrimination, and how it should be applied as follows:[2]
  1. [30]
    The correct test for direct discrimination in this case therefore is whether Ms Xi suffered discrimination on the basis that she may need assistance because of poor English skills (being a characteristic imputed to the attribute of race), by being treated less favourably than a person who would not need such assistance (for example an Australian with English as their first language).
  2. [31]
    In applying this test, it is necessary to see whether there was any different treatment of Ms Xi. This is because the treatment must be less favourable treatment. That this is the correct approach to the meaning of ‘less favourable treatment’ appears from Waters v Public transport Corporation where Dawson and Toohey JJ said:-

direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration.

  1. [32]
    Ms Xi says that she was treated the same way as other WorkCover claimants because everybody was required to use English. She says that she should have been treated differently and complains that she was not treated differently. The Tribunal reconsidering this matter will need to consider whether in these circumstances, section 10 is engaged at all.
  1. [13]
    The Appeal Tribunal found that an error of law had been made on Appeal Ground (1) (the term imposed by WorkCover).
  2. [14]
    The Appeal Tribunal noted that Ms Xi was asking the Tribunal to find in the hearing as a fact that a term had been imposed on her by WorkCover of:[3]

the practice of failing to provide an interpreter/translator and/or failing to apply the applicable language policy to accommodate her attribute

  1. [15]
    The Appeal Tribunal found that the failure to provide an interpreter/translator and/or failed to apply the applicable language policy, could not be a viable term under Section 11 of the Act because it did not describe a term imposed on Ms Xi by WorkCover with which she was expected to comply, but instead described a failure by WorkCover to do something which it is alleged it should have done.[4]
  2. [16]
    The Appeal Tribunal noted that in ground 1 of the Appeal that Ms Xi was proposing a term which had not been relied upon by her in the initial hearing:[5]
  1. [51]
    It is not a ground of appeal that the Tribunal should have understood from Ashworth lawyer’s submissions that there was a new contention, which was missed, that the emails of 15 and 29 July 2011 imposed a section 11 (term) by requiring her to reply in English.
  2. [52]
    Instead, the ground of appeal is that the Tribunal should have found the following as a term Requiring or expecting Ms Xi to communicate with WorkCover in English in communications initiated by WorkCover

This seems to be a suggestion that the Tribunal should have been more active in identifying this term, despite it not being the term that was being relied on by Ms Xi at all in the hearing.

  1. [17]
    The Appeal Tribunal said that it did not try to answer whether the Tribunal should have actively sought to find a viable section 11 term where the complainant herself had not identified one, but said:
  1. [54]
    Instead, we are concerned here that the Tribunal did not approach the complaint on the basis that having poor English skills was a characteristic of the attribute of race and that it was possible indirectly to discriminate against a person on the basis of that characteristic. This means that in the indirect discrimination claim the Tribunal was unable properly to consider whether Ms Xi had demonstrated that there was a term imposed on her by WorkCover which by reason of the characteristic of poor English skills had the effect given in section 11.
  2. [55]
    For this reason, the Tribunal’s finding of fact that there was no such term cannot be relied on. Since the wrong approach was taken to this issue, this is an error of law and we must allow this ground of appeal.
  1. [18]
    The Appeal Tribunal found as to Appeal Ground 2 (wrong comparator in direct discrimination claim) that an incorrect comparator had been used:
  1. [59]
    Here there can be no criticism of the Tribunal’s comparator being a non-Chinese person. But we do think it was incorrect to add that the comparator is someone with a limited command of English because this was the characteristic of race that section 8 protects. We would allow this appeal on this ground on this basis.
  1. [19]
    The Appeal Tribunal concluded that the matter would have to be reconsidered in light of the new term being contended for by Ms Xi:
  1. [67]
    We do not know whether the manner in which this term was imposed on Ms Xi is said to be the requirement to her to answer the emails of 15 and 29 July 2011 in English, as submitted by Ashworth Lawyers, or whether she is saying this term was imposed in other ways. It is clear that until this new case is sufficiently particularised so that the Tribunal knows exactly what is alleged in this new contention, it would be unfair to try to deal with the complaint as now recast. This is particularly so because the question of reasonableness of any such term imposed needs to be addressed by both sides.
  1. [20]
    The Appeal Tribunal returned the matter to this Tribunal for that purpose:
  1. [69]
    We have given directions for Ms Xi to provide details of how she is saying the term now contended for was imposed on her by WorkCover and when this happened. Then the Tribunal will need to decide whether sufficient evidence has already been given and submissions made for the matter fairly to be dealt with on the papers, or whether further directions are required or whether a further hearing is required.

Ms Xi’s submissions as to the term

  1. [21]
    In her submissions dated 3 July 2016, made in accordance with the direction of the Appeal Tribunal, Ms Xi refers to a number of occasions when she says it was expected that she would understand questions put to her in English by WorkCover.
  2. [22]
    The instances alleged by Ms Xi are described by her as:
  1. On 15 July 2011 WorkCover sent her an email of 3 pages in English, and asked her to ‘please read over and confirm (the factors) that they can be sent to your employer for them to respond to”.
  2. On 27 July 2011, Ms Kwasniewski of Work Cover, called her without a translator, and said that she would need to ‘OK’ her response relating to the factors, before it was sent to her employer.
  3. On 29 July 2011 she was advised by email that if she did not agree with the information that she would need to document the information herself and send it through.
  4. On 29 July 2011 she replied in simple English after Ms Kwasniewski hurried her multiple times.
  5. On 6 July 2011 WorkCover phoned her without a translator. She said they told her that if she wanted to talk to them on the phone that she would have to hire a translator on her own.
  6. On 14 July 2011 WorkCover phoned her doctor ’telling me to get my own translator, which means they never wanted to provide me a translator in the first time’.
  7. On 15 July 2017 she called Work Cover with a request for a translator and Ms Kwasniewski said ‘No’, and she could not understand things said afterwards as she was crying.
  8. On 22 July 2011 WorkCover called her, and there is no reference to the use of a translator for the call.
  9. On 27 July 2011 a conversation was held without a translator.
  10. On 16 August 2011 she called WorkCover herself and had a conversation ‘because WorkCover refused to pick up my translators call’.
  11. On 18 August 2011 WorkCover called her without a translator saying they had organised a specialist.
  12. On 12 September 2011 WorkCover did not arrange a translator for her to see the specialist.
  13. On 10 October 2011 WorkCover called her without a translator and she couldn’t understand what they said.
  14. On 27 July 2011 WorkCover called her without a translator and lied and led her to confirm what WorkCover sent to her on 15 July 2017.
  15. On 14 October WorkCover called her without a translator, and she did not understand the details, and did not know what a ‘warning’ to discuss her claim or it would be suspended, meant.
  16. On 29 July 2011 she submitted information in Chinese, and WorkCover did not want to use it.
  17. On 4 October 2011 WorkCover did not notify her, or use a translator to notify her, about Mr Swiderek’s statement.
  1. [23]
    These instances are said by Ms Xi to support her submission that WorkCover imposed a term that communications were only to be in English.
  2. [24]
    Ms Xi identifies the failure to treat her specially, and to require her to understand and communicate in English, and to not provide her with an interpreter:[6]

I have received the fair treatment just like any other claimers, because all of them was expected to use English as if their first language is English, I was like what final decision letter said on 23rd of May 2016, because of my English disability the same ‘fair treatment’ for me is unacceptable, according to multiple evidences WorkCover refused to provide me an interpreter.

  1. [25]
    In her conclusion, Ms Xi does not identify a requirement that WorkCover required all communication to be in English, but rather goes on to revert back to the very term that the Appeal Tribunal described as not viable, being that WorkCover failed to provide her with translators, or to follow the language policies:[7]

Everything and every evidences I provided is enough to show that WorkCover gave me indirect and direct discrimination. I strongly agree the decisions made on 23rd of May 2016 and the decisions from anti-discrimination commission 21st September 2015, because all their decisions were made based on my valid evidences, they failed to provide me with any translators nor did they follow the language policies.

Submissions by WorkCover

  1. [26]
    WorkCover submit that the incidents chosen by Ms Xi indicate a series of incidents in which she more than adequately complied and conveyed information, and that:[8]

33. As raised in 8 April 2014 hearing, it is apparent from the evidence that Ms Xi, was in all instances, able to communicate with WorkCover to the extent required.

And

49. We consider that the evidence bears out that Mrs Xi was capable of engaging in such communications in English as were required of her.

50. It must be readily apparent on any construction of the evidence that Mrs Xi was not required to make all communications herself, directly to WorkCover, in English.

51. She had the assistance of legal advocates and translators, and that assistance was welcome.

52. Communications in that form were accepted. To that extent, Mrs Xi cannot have been required to communicate all her information personally, in English. Such a term is not borne out by the established facts.

  1. [27]
    WorkCover submit that the circumstances referred to by Mrs Xi do not indicate that she had any serious disadvantage in doing what was required of her; and that the communications that took place in English at WorkCover’s initiative were minor and procedural, and in so far as she was required to communicate in those circumstances, she was able to do so.[9]

Further submissions of Ms Xi

  1. [28]
    In her submissions in response, Ms Xi raises that her English language capacity in 2011 was low, and that she has studied English for two years at TAFE since then.[10]
  2. [29]
    Ms Xi reiterates that she was required to use English, and alleges that WorkCover deliberately chose not to use interpreters:

66. every evidence provided on 4th of July 2016 proves that WorkCover forcefully expected me to use English to converse with them. One example is that they always called me without an interpreter to force me to use English to converse with them even though they know that my English was broken. Just because they speak English they expect me to understand they way they do too. The same way they communicate with me using emails. They don’t expect me to understand everything but they try to trick me into confirming false information that I didn’t say or mean. They are trying to force me to meet their unreasonable expectations even though they had the choice of providing me with an interpreter.

  1. [30]
    She alleges that WorkCover had an improper motive in not providing an interpreter:

71. From this conversation we can see that the respondent called me not only do they didn’t use an interpreter that discriminates me they also tried to mislead me and lie by taking advantage of my vulnerability as an English second learner, the respondents motive was to make my work injury claim unsuccessful. As an injured worker I have already suffered many pains and aggrievances I really wanted to talk to the respondents about what my conditions were so that they can take care of this claim in a fair way, but not only do they chooses not to make the claim easier by using an interpreter, they don’t give me chances at all to say what I wanted to say.

Discussion

  1. [31]
    Her submissions outline that Ms Xi’s case remains based upon a presumed duty by WorkCover to supply her with, and conduct all conversations through, translators. The instances she gives all essentially relate to a failure to having had translation available. She has not demonstrated that WorkCover would only correspond in English, or without the use of an interpreter.
  2. [32]
    Ms Xi does allege that WorkCover ‘refused to pick up my translators call’ on 16 August 2011 – but that submission does not make any evident sense, as WorkCover could not know that it was a translator making the call. Perhaps Ms Xi is suggesting that WorkCover looked at the telephone number being shown as initiating the call, and refused to answer that number deliberately, but no evidence appears for this allegation, or that the translators number would in fact appear on the WorkCover telephone system.
  3. [33]
    WorkCover did in fact engage in direct discussion with Ms Xi in Mandarin on several occasions, through one of their staff who was a native Mandarin speaker. If WorkCover had imposed a term that all communication was to be in English, then this would not have occurred.
  4. [34]
    WorkCover also participated in several discussions with Ms Xi with the use of translators in Mandarin, demonstrating that they did not impose any term that communication was to be only, and directly, in English.
  5. [35]
    What occurred in this matter is that some difficulties and misunderstandings were experienced by both parties in the arranging of translators. We are satisfied that WorkCover was however at all time co-operative with the use of translators.
  6. [36]
    Ms Xi’s basic complaint appears to be that WorkCover were not organised to provide a translator to her at every interaction which they initiated, not that they refused to have an interpreter participate in interaction which they initiated.
  7. [37]
    If Ms Xi had indicated that she did not understand what was being asked well enough to proceed without a translator, then there is no evidence that WorkCover would have insisted that the conversation continue in English, and would not have ceased to pursue the conversation, and would not have rescheduled it to a time when an interpreter could be arranged.
  8. [38]
    Although Ms Xi says in her submissions that her English was poor at the time of her discussions with WorkCover, she clearly did have some working English language capacity, sufficient to make her feel confident enough to ring WorkCover directly on several occasions.
  9. [39]
    When Ms Xi rang WorkCover directly in a call which she initiated, she would have known, and should have expected, that she would be answered in English which is the primary language of WorkCover and of any similar public organisation in Australia. WorkCover would have had no awareness that Ms Xi was about to call, and could not be expected to answer in Mandarin, or to have a Mandarin speaking translator instantaneously available. If Ms Xi was not confident in her basic English ability, she would have arranged for an interpreter to participate in a conference call when she made each call to WorkCover which she initiated.
  10. [40]
    There is no evidence that, and we are not satisfied that, WorkCover were motivated by any ill will towards Ms Xi, or that that they were deliberately seeking to make her workers compensation claim difficult or unsuccessful.
  11. [41]
    The term that Ms Xi raised as her successful Appeal Ground (1), ‘Requiring or expecting Ms Xi to communicate with WorkCover in English in communications initiated by WorkCover’ is not supported by her further submissions, and is not made out on the facts.
  12. [42]
    The identification of the comparator as being a non-Chinese person, does not enliven the direct discrimination claim, as no less favourable treatment is shown on the basis of an attribute.
  13. [43]
    WorkCover did not directly discriminate against Ms Xi because it did not treat her less favourably as a person with an attribute under Section 10 of the Act.
  14. [44]
    WorkCover did not indirectly discriminate against Ms Xi because it did not impose a term with which she did not, or was unable to comply with, under Section 11 of the Act.
  15. [45]
    The complaint of discrimination made by Ms Xi to the Commission is not established, and the complaint is dismissed.

Footnotes

[1]Submissions Yu Ping Xi, 3 July 2016, p 9.

[2][2016] QCATA 134 at [30] – [32].

[3][2016] QCATA 134 at [44].

[4][2016] QCATA 134 at [45].

[5][2016] QCATA 134 at [51] and [52].

[6]Submissions Ms Xi, 4 July 2016, p 8.

[7]Submissions Ms Xi, 4 July 2016, p 8.

[8]Submissions WorkCover filed 4 November 2016, paras 32 and 33; 49 – 52.

[9]Submissions WorkCover filed 4 November 2016, para 131.

[10]Submissions in Response, Ms Xi, filed 12 January 2017, para 33.

Close

Editorial Notes

  • Published Case Name:

    Yu Ping Xi v WorkCover Queensland

  • Shortened Case Name:

    Yu Ping Xi v WorkCover Queensland

  • MNC:

    [2017] QCAT 195

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner, Presiding Member Paratz

  • Date:

    08 May 2017

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
Yu Ping Xi v WorkCover Queensland [2016] QCATA 134
4 citations
Jump To
Cite 1 - [2016] QCATA 134
Cite 2 - [2016] QCATA 134
Cite 3 - [2016] QCATA 134
Cite 4 - [2016] QCATA 134

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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