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Yu Ping Xi v WorkCover Queensland QCATA 134
Yu Ping Xi v WorkCover Queensland  QCATA 134
Yu Ping Xi
Anti-Discrimination Commissioner Queensland
On the papers
Senior Member Endicott
10 May 2016
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.
Anti-discrimination – applicant of Chinese origin needed interpreter when on the telephone with WorkCover – WorkCover did not always provide one – complaint of direct or indirect discrimination – Tribunal did not consider that language difficulties could be a characteristic of race – error of law
Anti-Discrimination Act 1991 (Qld) ss 7, 8, 10, 11, 46, 204
Waters v Public Transport Corporation (1991) 173 CLR 349 at 392
APPEARANCES and REPRESENTATION (if any):
This appeal was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
Self-represented, but with assistance from Queensland Public Interest Law Clearing House in this appeal
Kaden Boriss, Solicitors
Kevin Cocks, Anti-Discrimination Commissioner, Queensland
REASONS FOR DECISION
- In this appeal Yu Ping Xi says that the Tribunal erred in dealing with her direct and indirect discrimination complaint against WorkCover.
- After the appeal was lodged with the Tribunal, the Anti-Discrimination Commissioner sought to intervene in the proceedings and has made submissions in the appeal.
The substance of the complaint
- Ms Xi is of Chinese origin. She came to Australia permanently in 2007. Arising from matters at work, she made a WorkCover claim. This entailed communicating with WorkCover in writing and on the telephone. This was difficult for Ms Xi because her oral English was not good. Chinese was her first language and her education and practice in English was limited. Her written English skills were worse.
- Ms Xi made a complaint to the Anti-Discrimination Commission Queensland about her treatment by WorkCover. Although the complaint was out of time, on 14 February 2013 the Commission decided to accept the complaint. It was not resolved, and was referred to the Tribunal on 24 June 2013.
- Ms Xi filed contentions in the Tribunal on 22 August 2013. Ms Xi appears to have had some help to create these. She said that what happened amounted to direct and indirect discrimination.
- In the direct discrimination she said that she had received less favourable treatment on the basis of race because:-
- (a)she was not provided with an opportunity to comment to WorkCover on the accuracy of the information provided by her previous employer to WorkCover in the course of her statutory claims;
- (b)she was not properly informed of her rights to seek review of WorkCover decisions;
- (c)not properly informed of the WorkCover’s reasons for its decisions about her claim;
- (d)failing to apply the applicable language policy to accommodate her attribute.
- With respect to the indirect discrimination claim, she identified terms which were imposed on her as being:-
- (a)the practice of failing to provide an interpreter/translator;
- (b)failing to apply the applicable language policy to accommodate her attribute.
- The particulars attached gave descriptions of telephone calls between 6 July 2011 and 14 October 2011 where Ms Xi found it difficult to deal with the call because of her language difficulties and where WorkCover had failed to call her back with an interpreter. She also referred to a medical examination on 12 September 2012 when WorkCover failed to provide her with an interpreter. She also said that her letters and emails sent to WorkCover during her claim were not translated into English.
Discrimination of the type alleged: the law
- It is convenient here to set out the law which applies to the two types of discrimination claimed in this case – direct and indirect discrimination.
- The law governing discrimination justiciable by making a complaint to the Anti-Discrimination Commission Queensland and by referral from the Commission to the Tribunal is in the Anti-Discrimination Act 1991.
- Section 134 of the Act permits complaints about an alleged contravention of the Act to be made to the Anti-Discrimination Commission. If the matter is not resolved, the Commission may refer the complaint to the Tribunal. By section 209 of the Act the Tribunal can make various types of orders if it decides that the respondent has contravened the Act.
- The contravention of the Act in the context of this case relates to the prohibition of discrimination in the “goods and services area”. The provision relied on is in section 46:-
46 Discrimination in goods and services area
- A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person—
- by failing to supply the goods or services; or
- in the terms on which goods or services are supplied; or
- in the way in which goods or services are supplied; or
- by treating the other person unfavourably in any way in connection with the supply of goods and services.
- In this section, a reference to a person who supplies goods and services does not include an association that—
- is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes; and
- does not carry out its purposes for the purpose of making a profit.
- It can be seen that the relevant provision for this claim is in section 46(1)(c) and (d).
- Section 46 prohibits a person from discriminating against another person. Section 9 sets out the types of discrimination prohibited by the Act.
9 Discrimination of certain types prohibited
The Act prohibits the following types of discrimination—
- direct discrimination;
- indirect discrimination.
- Looking at direct discrimination first, this is defined in section 10.
10 Meaning of direct discrimination
- 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.
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.
- It is not necessary that the person who discriminates considers the treatment is less favourable.
- The person’s motive for discriminating is irrelevant.
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.
- 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.
- 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.
- Section 10 necessarily requires a comparison to be made between the treatment which the complainant has received and the treatment that another person has received. That other person is called the comparator. The comparator’s circumstances must be the same as those of the complainant or not materially different from those of the complainant. If there is no other person who can be considered an appropriate comparator, then it is possible to construct a hypothetical comparator. This is an imaginary person whose circumstances are the same as those of the complainant or not materially different from those of the complainant.
- It is important for the direct discrimination test to work, that the comparator does not have the “attribute” that applies to the complainant.
- Section 7 of the Act lists “attributes”.
7 Discrimination on the basis of certain attributes prohibited
The Act prohibits discrimination on the basis of the following attributes—
- relationship status;
- parental status;
- religious belief or religious activity;
- political belief or activity;
- trade union activity;
- lawful sexual activity;
- gender identity;
- family responsibilities;
- association with, or relation to, a person identified on the basis of any of the above attributes.
- The attribute that Ms Xi relies on is that of “race”. It is provided in the schedule to the Act that “race” includes colour, descent or ethnic origin and nationality or national origin.
- Looking at section 10 more closely, the words of section 10(4) shows that the reason for the treatment is relevant if there are 2 or more reasons for the treatment. For consistency with this provision, if there is only one reason for the treatment this must also be relevant. From this, it can be seen that the words in section 10(1) which follow “on the basis of an attribute” do not define the expression “on the basis of an attribute” but instead describe what must be proved before direct discrimination on the basis of an attribute can be found. It follows that direct discrimination does not happen by accident. The treatment must be on the basis of the attribute in the sense that it was not, or would not be, meted upon someone without the attribute [10(1) and 10(4)]. The attribute must be the reason for the treatment or at least the substantial reason for it [10(4)]. It does not matter if the perpetrator does not realise that the treatment is less favourable treatment [10(2)]. And it does not matter that discrimination was not intended [10(3)].
- Section 8 enlarges the meaning of the expression “on the basis of an attribute” used in section 10.
8Meaning of discrimination on the basis of an attribute
Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of—
- a characteristic that a person with any of the attributes generally has; or
- a characteristic that is often imputed to a person with any of the attributes; or
- an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
- an attribute that a person had, even if the person did not have it at the time of the discrimination.
Example of paragraph (c)—
If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.
- Section 8 is central to issues raised on this appeal.
- The parties’ submissions raise the question whether section 8 should be applied generally or specifically to the complainant’s own circumstances. It might be said for example, that subsection (a) should be read as really meaning “a characteristic that a person with the same attribute as the complainant generally has”, and subsection (b) as really meaning “a characteristic that is often imputed to a person with the same attribute as the complainant has”. This would enable us to consider what characteristics might be held by people of Chinese origin. It might even enable us to consider what characteristics might be held by people of Chinese origin who had permanently moved to Australia seven years before. Being even more specific, it might enable us to consider what characteristics might be held by people of Chinese origin who had permanently moved to Australia seven years before and who (as in Ms Xi’s case) had not had much training or practice in English.
- We do not think this is what is intended by section 8. We think it should be applied in general terms, rather than specifically to Ms Xi own circumstances as the complainant. We say this because none of the sub-paragraphs (a) to (d) work semantically if “the complainant” is substituted for “a person”.
- Applying section 8 generally to a person with an attribute in this way, means that section 8 is capable of extending protection from direct discrimination to those (for example) who receive less favourable treatment on the basis that they may need to work part-time (a characteristic of the attribute of family responsibilities), or on the basis that they may need to take certain days of the year off work (a characteristic of religious belief), or on the basis that they may need to take maternity leave (a characteristic of pregnancy), or on the basis that they may need to time off for medical reasons (a characteristic of impairment).
- In this appeal, the question arises whether section 8 extends protection from direct discrimination to those who have the attribute of race and may need assistance because they have poor English skills. In other words, is it a characteristic of race within the meaning of section 8, that a person with the attribute of race may need assistance because they have poor English skills? To answer this, we refer to section 8(b). There is no doubt that not having English as a first language and therefore having poor spoken and written English skills, and therefore possibly needing assistance with English are characteristics that are often imputed to a person with the attribute of race. We therefore answer the question affirmatively.
- Section 10 requires a comparison between the treatment of the complainant with the treatment of a person in the same or not materially different circumstances from the complainant but who does not have the complainant’s attribute. It is only if the complainant has been treated less favourably than the comparator that direct discrimination on the basis of the attribute can be found.
- Section 8 provides that discrimination on the basis of the attribute can also be found if there is discrimination on the basis of a characteristic of the attribute. It follows that the comparison required by section 10 is between the treatment of the complainant with the treatment of a person in the same or not materially different circumstances from the complainant but who does not have the complainant’s attribute and therefore (if relevant) does not have a characteristic imputed to the attribute by section 8.
- Therefore the correct hypothetical comparator when considering the test for direct discrimination in the context of this case, is a person in the same or not materially different circumstances as Ms Xi, but without the attribute that she relies on namely race, and without the relevant characteristic imputed to that attribute namely the possible need for assistance because of poor English skills.
- 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).
- 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
- 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.
- Section 11 defines indirect discrimination.
11 Meaning of indirect discrimination
- Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
- with which a person with an attribute does not or is not able to comply; and
- with which a higher proportion of people without the attribute comply or are able to comply; and
- that is not reasonable.
- Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
- the consequences of failure to comply with the term; and
- the cost of alternative terms; and
- the financial circumstances of the person who imposes, or proposes to impose, the term.
- It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
- In this section—
term includes condition, requirement or practice, whether or not written.
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.
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.
- It is clear that section 11 does not require a difference in treatment as does section 10. Instead, under section 11 the treatment is the same, but it has a different effect. This is because it has a disparate effect on those persons who have the attribute.
- It is crucial under section 11 to identify the “term” which is said to be imposed on the complainant and has the disparate effect referred to above. “Term” is widely defined as including condition, requirement or practice, whether or not written.
- Section 8 also applies to indirect discrimination and so it can be seen that the disparate effect can arise also because of a characteristic of the attribute. This is an important protection for the categories of people in the examples given earlier.
- It means in the context of this case that Ms Xi can rely on a term imposed on her by WorkCover:-
- (a)with which she, as a person with the characteristic of possibly needing assistance because of poor English skills (being a characteristic of the attribute of race), did not comply or was unable to comply; and
- (b)with which a higher proportion of people without that characteristic of the attribute of race comply or are able to comply; and
- (c)which is not reasonable.
Evidential burden of proof
- By sction 204 of the Act the complainant has the burden of proof on the balance of probabilities, but can call upon the Tribunal’s ability to make a finding by inference. In the case of indirect discrimination, a respondent has the burden to show that a particular term complained of is reasonable.
Grounds of appeal
- To help to identify the grounds of appeal, we have summarised them as follows (whilst keeping their numbering):-
- (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
(and such a term was unreasonable in the circumstances).
- (2)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).
- (3)and (4) The Tribunal was wrong to accept the evidence of the customer relations officer that she informed Ms Xi about the procedure to follow if she wanted an interpreter, and was wrong to find that Ms Xi understood this procedure.
- (5)The Tribunal should have found that on 16 August 2011 WorkCover contacted Ms Xi without an interpreter.
- The appeal application was accompanied by a statement from Ms Xi which gave detailed information about continuing discrimination by WorkCover, why she disagreed with the Tribunal’s decision and how WorkCover failed to comply with its Language Policy.
- Having received professional help in the appeal, Ms Xi filed submissions in the appeal and it is clear from these that the appeal is limited to the five grounds set out above, with grounds (1) and (2) fully argued. In so far as the appeal is on a question of fact Ms Xi applies for leave to appeal.
Appeal ground (1): the term imposed by WorkCover
- This ground of appeal concerns the indirect discrimination claim. It is said that the Tribunal found a term imposed by WorkCover on Ms Xi which was incorrect. Instead it should have found the following term (within section 11 of the Act) was imposed by WorkCover on Ms Xi:-
requiring or expecting Ms Xi to communicate with WorkCover in English in communications initiated by WorkCover
- WorkCover have submitted that contrary to the suggestion in this ground of appeal, the Tribunal did not find any term (using the meaning of that word in section 11) imposed by WorkCover on Ms Xi. We tend to agree with this having regard to paragraph  of the reasons for decision. We don’t think it can be read in any other way.
- At all times, and including at the hearing itself, Ms Xi was asking the Tribunal to find as a fact that the following term under section 11 had been imposed on her by WorkCover (this was the one put forward by her in her original contentions and maintained as her case up to and including the hearing). It was recited by the Tribunal in paragraph  of its reasons for decision:-
the practice of failing to provide an interpreter/translator and/or failing to apply the applicable language policy to accommodate her attribute
- That could not be a viable term under section 11 of the Act. This is because it does not describe a term (including a “condition requirement or practice whether or not written”) imposed on Ms Xi by WorkCover with which she was expected to comply. Instead it describes a failure by WorkCover to do something which it is alleged it should have done.
- The term now contended for in this appeal certainly could be a viable one in the context of this case, within section 11 of the Act.
- But the difficulty is that it was suggested for the first time in the application for leave to appeal and appeal filed on 8 July 2014. Usually an appellant would not be permitted to complain that a Tribunal had failed to reach a particular conclusion if that Tribunal at the hearing was not being asked to reach such a conclusion.
- There are two reasons why it is not possible to deal with this ground of appeal in that way, however.
- The first is that after the hearing, there was what could be regarded as a new case in written submissions on Ms Xi’s behalf prepared by Ashworth Lawyers and filed on 12 May 2014. They were in reply to WorkCover’s final submissions of 5 May 2014.
- In Ashworth Lawyer’s submissions, for the first time a possibly viable term under section 11 was identified. It was said that Ms Xi had received emails on 15 and 29 July 2011 which required her to reply in English. Ashworth Lawyers maintained in the same submission however, that the term under section 11 was the “failure to provide an interpreter/translator and/or failed to applicable language policy” which was the term contended for at the hearing. The submissions failed to make it clear therefore whether or not these emails were being relied on as imposing the section 11 term. Possibly for this reason the Tribunal in its decision did not specifically decide whether the emails of 15 July 2011 and 29 July 2011 imposed the term now contended for.
- 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 by requiring her to reply in English.
- 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.
- We do not propose in this appeal, to try to answer the question whether a Tribunal should, in a hearing, actively seek to find a viable section 11 term from the available evidence and documents where a complainant has not herself identified one.
- 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.
- 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.
Appeal ground (2): wrong comparator in direct discrimination claim
- The Tribunal found that the comparator in this case was a non-Chinese person with a limited command of English.
- As we have said above, in our view, the correct comparator was a person in the same or not materially different circumstances as Ms Xi, but without the attribute that she relies on namely race, and without the relevant characteristic imputed to that attribute namely the possible need for assistance because of poor English skills.
- The precise construction of a hypothetical comparator can be difficult in many cases. However it is important that the test is applied properly so that the comparator which is used, is capable of properly testing whether there has been direct discrimination on the basis of an attribute or a characteristic imputed to that attribute by section 8.
- 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.
Appeal grounds (3), (4) and (5)
- WorkCover’s submissions on grounds (3) and (4) demonstrate that for each of these findings of fact there was clearly sufficient evidence for the Tribunal to make them.
- As for ground (5), the Tribunal dealt with two telephone calls on 16 August 2011 and found that WorkCover called Ms Xi back without using an interpreter after she had initiated a call about an hour before without an interpreter. It is difficult to see therefore that any error of the Tribunal is alleged. In any case it can be seen from WorkCover’s submissions on this issue that there was clearly sufficient evidence for the Tribunal to make the findings it did.
- None of the findings of fact in grounds (3), (4) and (5) are affected by any error of law.
- For those reasons we do not grant leave to appeal for these grounds.
Disposing of the appeal
- Under section 146 of the QCAT Act, in deciding an appeal on a question of law only which we have done, it is open to us to amend the decision or substitute our own decision or we can return it to the Tribunal for a reconsideration with directions that we consider appropriate.
- Whilst we are very mindful of the unfortunate delays which have arisen in this particular case, we find ourselves in this appeal unable to resolve the complaint by amending the decision or substituting a new one.
- One of the reasons for this is the lack of particularity of the new contention raised on appeal that the term imposed on Ms Xi was:-
- 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, and WorkCover is given an opportunity to deal with the 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.
- We think in this particular case it is appropriate to return the matter to the Tribunal which dealt with it in the first instance. Neither side has asked that, if returned, the matter should be dealt with by a differently constituted Tribunal. The most efficient way to deal with the case will be for the same members of the Tribunal to rehear the matter on the basis of this Appeal decision.
- 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.
- Since this appeal decision and our directions need to be translated we are giving a date some weeks ahead for compliance with our directions. If more time is necessary Ms Xi can apply for an enlargement of time.
 Exhibit 1.
 This is from the use of the words “or would be” in subsection (1).
 (1991) 173 CLR 349 at 392.
 As required by section 142(3)(b) of the QCAT Act.
 Paragraph 21 of WorkCover’s submissions on appeal.
 Page 10 of the submissions filed on 12 May 2014.
 But did find that Ms Xi had called WorkCover those days with the use of an interpreting service – paragraphs ,  and ,  of the reasons for decision.
 Paragraph  of the reasons for decision.
 Pages 21 to 25 of WorkCover’s submissions on appeal.
 Paragraphs  to  of the reasons for decision.
 Pages 25, 26 of WorkCover’s submissions on appeal.
- Published Case Name:
Yu Ping Xi v WorkCover Queensland
- Shortened Case Name:
Yu Ping Xi v WorkCover Queensland
 QCATA 134
Senior Member Endicott, Member Gordon
10 May 2016