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- Unreported Judgment
Oataway v Keith Van Den Heever Pty Ltd and Anor QIRC 99
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Oataway v Keith Van Den Heever Pty Ltd and Anor  QIRC 099
Keith Van Den Heever Pty Ltd
Keith van den Heever
Referral of Complaint
02 July 2019
7 March 2019
Industrial Commissioner Black
ANTI-DISCRIMINATION LAW – Direct discrimination – Protected attributes of sex, parental status, and family responsibilities – Unnecessary information – Whether less favourable treatment – Whether applicant's employment ended at the initiative of the employer.
Anti-Discrimination Act 1991, s 10, s 124
Mr M Heffernan and Mr C van Oeveren of Worker Law for the applicant
Ms S D Anderson of Counsel instructed by McKay Solicitors for the respondents
- The applicant lodged a complaint in the Anti-Discrimination Commission Queensland on 26 February 2018. The complaint was accepted pursuant to ss 136 and 141 of the Anti-Discrimination Act 1991 (the Act) on 26 March 2018. The respondents to the complaint were identified as the incorporated company, Keith Van Den Heever Pty Ltd (first respondent), and the natural person and sole director of the company, Keith Ian van den Heever (second respondent). The respondents denied that Mr van den Heever was an employee of the first respondent, but admitted that Mr van den Heever was an agent of the first respondent.
- On 30 May 2018, the complaint was referred to the Queensland Industrial Relations Commission (the Commission) pursuant to s 166(1)(a) of the Act. The referral notice relevantly stated that the "complaint related to or includes work or the work-related area" and was treated as indicating "Sex, Relationship Status, Parental Status & Family Responsibilities discrimination – sections 7(a), (b), (o), 10, 11, 15. Unlawful requests for information – section 124".
- The first respondent traded as CQ Skin Cancer Clinic in Mackay. The second respondent was the medical practitioner in the clinic and he was supported by two full-time administration staff members and one full time nursing staff member. The applicant was one of the administrative staff and she worked as a medical receptionist.
- Part 2 of Chapter 2 of the Act identifies "Prohibited grounds of discrimination". Section 7 prohibits discrimination on the basis of various defined "attributes" including the attributes, in s 7(a) of the Act, of "sex", s 7(b) of "relationship status", s 7(d) of "parental status", and in s 7(o) of "family responsibilities". Section 8 of the Act refers to the meaning of discrimination on the basis of an attribute.
- Part 3 of Chapter 2 of the Act identifies "Prohibited types of discrimination". Section 9 prohibits "direct" and "indirect" discrimination, while sections 10 and 11 define the meaning of direct and indirect discrimination.
- Part 4 of Chapter 2 of the Act identifies "Areas of activity in which discrimination is prohibited". Division 2 of Part 4 deals with "Work and work related areas". Section 15 identifies types of discrimination in the area of work. Section 15(c) provides that a person must not discriminate in dismissing a worker, while s 15(f) provides that a person must not discriminate by treating a worker unfavourably in any way in connection with work.
- Section 10 of the Act defines direct discrimination in the following terms:
10 Meaning of direct discrimination
- (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.
- The effect of the legislative scheme is that for the applicant to establish direct discrimination, she needs to show that she was treated less favourably than another person without the protected attribute in circumstances that are the same or not materially different.
- Section 124 of the Act prohibits the respondent from asking the applicant to supply information on which unlawful discrimination might be based. It will not be an unlawful request for information if the respondent proves, on a balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.
- The effect of section 204 of the Act is that it is for the applicant to prove, on the balance of probabilities, that the respondents contravened s 10 and s 124 of the Act.
- Witnesses for the applicant were as follows:
- Ms Asheigh Oataway (applicant);
- Ms Kimberly Shelton (applicant's partner).
- The witness for the respondents was Dr Keith van den Heever (second respondent).
Matters in contention
- The applicant was employed by the first respondent from Friday 19 January 2018 to Thursday 1 February 2018. It was during this period that the applicant said that she was treated less favourably than a hypothetical comparator who was a male employee, or an employee without children or without family responsibilities. The applicant said that the less favourable treatment was related to the protected attributes of sex, relationship status, parental status and family responsibilities.
- The less favourable treatment involved unreasonable and inappropriate conduct on the part of the second respondent and the dismissal of the applicant from her employment. The pivotal incidents occurred between 7.00 am and 9.00 am on 1 February 2018.
- The association between the protected attributes and the less favourable treatment was said to be established by reference to text messages exchanged between the second respondent and a co-worker of the applicant, and by reference to particular remarks allegedly made to the applicant by the second respondent during the 1 February 2018 incidents.
- The alleged mistreatment of the applicant arose from a series of interactions in the workplace on 1 February 2018. The root cause of the contentious interactions was the presentation at the clinic of a patient with infected surgical wounds. The patient had completed a surgical procedure a week earlier and the infected wounds were evident during the patient's consultation with the second respondent on 1 February 2018. The infection had occurred because the patient had not taken antibiotics after the surgery. When the second respondent asked the patient why he did not take the antibiotics, the patient said that he was never given a prescription. The second respondent blamed the applicant for the omission and asked the applicant to explain to the patient how the omission had occurred.
- The applicant was upset by the second respondent's conduct and complained to the second respondent about his treatment of her. During the course of these interactions, the second respondent allegedly referred to the applicant as a girl and mentioned her single parent status. Within a short period of time the applicant decided that she was going home and she never returned to work. A matter in dispute is whether her employment ended at her initiative, or the initiative of the second respondent.
- It is within this workplace narrative that the applicant has concluded that she had been treated differently to a male employee or an employee without children. The applicant believes that if she were a male or did not have children, the second respondent would not have berated her and would not have terminated her employment. While this type of differential treatment was not self evident, the applicant relied on the content of text exchanges that took place between a co-worker of the applicant and the second respondent to demonstrate the second respondent's aversion to employees with family responsibilities and to single parents.
- The applicant also alleged that the second respondent breached s 124 of the Act by asking her whether she could perform in her job as a single mother. Whether this question was asked, or a question to a similar effect, was a matter in dispute. On the applicant's version of events, the effect of the unnecessary question was to cast doubt on her capacity to perform her work because of her family responsibilities. In questioning her ability to perform her job the second respondent caused the applicant distress and contributed to a set of circumstances which motivated the second respondent to end her employment. This chain of events linked the termination with the applicant's gender and parental status.
- The respondents saw the matter differently. The second respondent did not seek unnecessary information and denied that he asked the applicant if she could perform the job as a single mother and stated that he did not know that the applicant was a single mother. This proposition was put on the basis that the applicant had a "partner" and was not therefore single. The second respondent had become aware that the applicant had a partner after viewing pages from her Facebook account on 18 January 2018.
- The applicant said that she disclosed her single parent status when she made her application for employment with the first respondent on 15 January 2018. Exhibit 1 is evidence that the applicant did disclose in her cover letter that she was a "single parent" of two girls. In response to her application the applicant was interviewed by the first respondent.
- The applicant said that the second respondent did not conduct the interview but that he did introduce himself during the interview and that he asked inter alia who would look after her children if she was working full-time. As it transpired, the applicant was successful in the interview process and commenced work with the first respondent on 19 January 2018. It is apparent, on the applicant's version, that the second respondent knew that the applicant was female and knew that the applicant was a single parent before she was offered the job.
- The respondents said that the applicant's employment ended on 1 February 2018 and that her employment ended at the initiative of the applicant. The respondents denied that the applicant had been treated less favourably on the basis of any of the attributes identified in the applicant's statement of facts and contentions. The view was that a person without the attributes specified would have been treated the same way in circumstances that were the same or not materially different. Any comments made by Dr van den Heever were not made on the basis of any of the attributes possessed or allegedly possessed by the applicant.
- The applicant sought to bolster her version of events by reference to a handwritten note (Exhibit 9) which she said that she wrote after she arrived home on 1 February 2018. She suggested that the note may have been written between 10.17 am and 11.35 am on 1 February 2018. The original note was not provided and the note was undated. The applicant relied on the note as contemporaneous evidence supporting her claims that the second respondent had made the alleged discriminatory remarks.
- The applicant also relied on evidence given by her partner, Ms Shelton, to support her version of events in relation to what was said on 1 February 2018. Ms Shelton said that the applicant phoned her on the morning of 1 February 2018 (T1-54):
Now, can you please talk the Commission through your recollection of that morning?‑‑‑So I was at work, and I received a phone call from Ashleigh, saying that she was – she was very upset. It was actually quite hard to understand what she was saying. But I did get her to calm down, and she just spoke about the way she was getting treated. There was just certain comments and stuff made that really, really, upset her. Like, that, “Can you even handle this job because you’re a single mother.” And saying that she was “crying just because she was a girl.” It was just – it was – it was stuff that really got to her and really upset and she wasn’t – she wasn’t really able to cope with – with being treated like that and being spoken to like that. So she was – she was very upset, yeah.
- I decline to attach significant weight to Ms Shelton's evidence. Her evidence about the cause of the applicant's distress is conveniently focused on the two allegedly discriminatory statements and overlooks other more probable causes of the applicant's distress including the loss of a new job after being out of work for over six months, questions raised about her competency, and the humiliation experienced in being required to explain to the patient how his prescription was lost.
- Further, the applicant's evidence about the phone call did not disclose the same areas of emphasis. While the applicant said that she was upset, hurt and humiliated, she made particular reference to her employment status. She said that she was not certain that she had lost her job and that she was not certain if she was still employed.
1 February 2018 events
- The applicant commenced work at 7.00 am on 1 February 2018. She was the only receptionist or administrative staff member on duty until 9.00 am when her co-worker arrived for work. It was the applicant's evidence that soon after commencing work on 1 February 2018, the second respondent approached her at the reception desk and admonished her for failing to provide a prescription to a patient. The applicant said that (T1-9):
There was a prescription that was either shredded or done incorrectly. I’d said, “I’m sorry but I don’t know anything about this prescription.” I’d tried to call the person, I know that much, to come and collect the prescription last week, but Keith’s like, “No, you know what’s wrong. You’ve done this.” I said, “I’m so sorry, but I’m not certain about what has happened.”
- The patient had undergone a surgical procedure a week earlier and was required to take antibiotics to prevent infection. This was particularly important because he was a diabetic. On my understanding of the clinic procedure, the patient returned to the reception area after surgery while the second respondent prepared the patient's documents including pathology requests and prescriptions. It was the receptionist's duty to retrieve the prescription and any other relevant documentation from the second respondent's office, and provide the documents to the patient before the patient left the clinic.
- On 1 February 2018, when the second respondent confirmed that he had prepared and printed the prescription and had identified that it was the applicant's responsibility to provide the prescription to the patient, the second respondent approached the applicant and asked her to explain how the omission had occurred. When the applicant provided the explanation, the second respondent asked her come into the surgery and inform the patient what had happened.
- It was the second respondent's evidence that the applicant had failed to provide the prescription to the patient, and had shredded the prescription. The applicant denied that she had shredded the prescription. Her evidence was that she told the second respondent that the prescription was in the department's outbox and that it may have been shredded. She maintained that she did not know what had happened with the prescription and pointed out that she was not the only receptionist. The second respondent however said in his evidence that the applicant was the only receptionist in the building at the time and that it would have been her job to hand the prescription to the patient. The second respondent also said that when he next saw the patient after the 1 February 2018 consultation, the patient told him that the prescription had turned up in the mail about three weeks after the relevant appointment.
- It was the second respondent's evidence that the patient suffered from serious skin cancers and that he had operated on the patient about thirty times. When the patient presented for a consultation on 1 February 2018, the second respondent observed that wounds caused by the previous week's surgery had become severely infected. When the patient was asked why he did not take his antibiotics, the patient said that he had not been provided with a prescription.
- It was these circumstances which motivated the second respondent to make enquiries about what had happened to the prescription that he had prepared for the patient in the earlier consultation (T1-72):
I then thought well, you know, nothing’s impossible, and I went back to make sure that I had in fact printed the script and I had, because our software’s indelible and there was proof that I had prescribed it. I then went to see Ms Oataway at the front desk and I said, “What happened to the (patient's) script?” and she actually remembered quite clearly, and she said, to quote her, “I spoke to Sharon, and then I shredded it.” Okay. I said, “Well, please come with me and explain this to the patient.” Because if I’d just gone to the patient and said the staff had – you’d probably think that I was just being defensive and that I’m – I’m just trying to cover myself. But I was sitting there with the patient shaking with rage and – and thinking that I was obviously a terrible doctor and I had slipped up. I wanted Ms Oataway to explain that it was her fault and not my fault that this had actually happened. But in no way did I berate her or anything. I just wanted her to explain – to tell him, you know, what had happened.
Did she go with you to the surgery?‑‑‑Yes, she followed me into the surgery.
- The applicant confirmed that the second respondent was not happy and that he told her that she needed to explain what had happened to the patient. The applicant's evidence was that (T1-9):
He’s then pulled me from the reception into the surgical room in front of a patient. He’s told me to explain what I’ve done wrong. I’ve told him – I said, “I’m sorry but I don’t know what has gone wrong with this prescription. I don’t know where it’s gone and I haven’t – I have not done this.” He’s then said, “No, this is your fault.” I felt absolutely embarrassed in front of the patient. I walked out. I was extremely upset.
- In the surgery, the second respondent said that he asked the applicant to explain to the patient what happened to the script. He said that he could not recall what the applicant had said and that he left the surgery and returned to his office for the purpose of issuing a new prescription for the patient.
- The applicant did not dispute the proposition that there could have been significant adverse consequences for the patient arising from the failure to provide him with the prescription and that the second respondent would be very concerned by any such failure (T1-27):
Isn’t that right? And so you have a patient who wasn’t given a script for antibiotics. He was diabetic, who then gets an infection. That’s really important to the patient, isn’t it?‑‑‑Yes.
And you can see it would be really important to his doctor as well, couldn’t you?‑‑‑Yes. I do.
- While the second respondent was in his office, the applicant approached him and complained about the way that he had treated her. The second respondent said that the applicant said that she felt that she was going to cry all day and that she was going home to cry all day. The applicant's evidence about the discussion in the office was as follows (T1-9):
He’s then gone into his office in which I’ve gone through and I’ve told him that this is – humiliated me, this – “I can’t work with this; this is not okay. Can we talk about it?” I’ve then obviously become very emotional. I began to cry and he’s then said, "Oh, can you handle this because you’re a single parent" and then, "Can you – you’re just crying because you’re a girl."
- The applicant then went to the toilet to compose herself and remained in the toilet for what the applicant said in her evidence was a "considerable period of time" (T1-9):
Then I’ve just – I’ve continued to cry even more – sorry. I’ve then gone into the toilet to try and compose myself. Gone in and tried to calm myself down, put some water on my face. He’s then come into the bathroom. He’s banged on the door, telling me to get out of the bathroom and do my job. I’ve tried to tell him, "No, I don’t think it’s professional of me to be in this state while at work in front of patients." I’ve then gone back into the bathroom to compose myself again. He’s told me, as I’ve come out of the bathroom that, if I leave, then that’s my choice. I just said, "I just do not think it’s professional of me to stay today. I think I should go home." He then just left. He went into the surgical room.
- I do not accept this part of the applicant's evidence to the extent that she claimed that the second respondent said to her as she was coming out of the bathroom that if she left, "then that's my choice". The second respondent's motivation while the applicant was in the bathroom was to get her back to work. It was during the subsequent discussion in the surgery, in response to the applicant's announcement that she was leaving, that the second respondent told her that it was her choice.
- It was not unreasonable for the second respondent to direct the applicant to leave the bathroom and return to her work station. The applicant was a receptionist, and she played an important role in greeting patients and managing their appointments. The second respondent emphasised the dislocation caused by the applicant's absence in his evidence.
- The effect of the second respondent's evidence was that the applicant had stayed in the toilet for at least twenty minutes and that this was causing substantial dislocation to the operations. Because the reception was not staffed, the second respondent said that the situation operationally was "just a disaster". The second respondent said that at the relevant times, the applicant was the only receptionist on duty.
The statements allegedly made
- The statements complained about were statements allegedly made by the second respondent on 1 February 2018:
Can you even handle this job cause youre a single parent;
You're crying cause you're a girl.
- In the applicant's statement of facts and contentions, the applicant also relied on a remark allegedly made by the second respondent that he would have "more respect for you if you stayed".
- In the proceedings, however, the applicant did not rely on this statement to support her claim of discrimination, and, for my part, I am unable to ascertain how it assists the applicant's case.
- The applicant considered that the question "can you even handle this job cause you’re a single parent?" was both directly discriminatory and was also an unnecessary question because it was a question which might provide an answer on which discrimination could be based. As the applicant perceived it, the second respondent was attributing her emotional distress to her status as a single mother.
- The applicant's construction on the words "can you even handle this job cause you're a single parent" was that the words involved a question such as "whether a single mother was capable of performing the job". The emphasis was on perceived limitations arising from the applicant's status as a single mother.
- The second respondent denied making the statement and, in my view, it is more probable than not that the second respondent did not say what the applicant claimed that he said. Firstly, the words recalled by the applicant are grammatically imperfect and it is unlikely that the second respondent would have used these exact words. If I am right in this regard, it is likely that that the applicant has used her own words to convey what it was she believed that the second respondent had said and, in these circumstances, there was scope for misunderstanding.
- The contextual circumstances make it unlikely that the second respondent would blame a workplace error on the applicant's single parent status. He knew the applicant was a single parent before he employed her and he said that he also had been a single parent. It is more likely that if the second respondent had made a similar statement, he would have said something to the effect that because the applicant was a single parent, he would have thought that she could handle a difficult workplace situation. Rather than speaking in a derogatory way about a single parent, such a statement acknowledges the difficulties and demands imposed on single parents and speculates that these adversities should well equip a person who is a single parent to handle difficult situations.
- There is no evidence that the second respondent had a derogatory view of the worth of single female parents. It was the norm for the clinic to employ women with children and there was no evidence of males being employed by the clinic. Further, this was not a case where there was a direct association between an employee's parental status and the unsatisfactory workplace conduct. Such an association might exist if a late arrival for work was caused by a difficulty in accessing child care or by an illness in the family. How a single parent might be more prone to make a workplace error was not explained.
- Finally, my reservation about the accuracy of the applicant's recall of what was allegedly said is not diminished by Ms Shelton's evidence which I have not found to be persuasive, nor by the applicant's handwritten note to which I am reluctant to assign significant weight. It is also a concern that, on the applicant's evidence, she was in a very distressed or hysterical state when the relevant exchanges with the second respondent took place, and this condition may have hindered her ability to recall with precision what was said.
Crying like a girl
- This statement was allegedly made by the second respondent in circumstances where his receptionist had remained in the toilet for over twenty minutes, was crying, was saying that she was going to cry all day, and would not return to her workstation. It would not be unexpected that the second respondent might have considered the applicant's behavior to be childish and not proportionate to the circumstances that she found herself in.
- In order to establish direct discrimination, the applicant must establish that she had been treated less favourably and that the less favourable treatment had a causal connection with the applicant's female gender. The questions which must be asked are firstly, did less favourable treatment occur, and if so, was the less favourable treatment taken because the applicant was a female.
- While I accept that the second respondent may have said words to the effect that the applicant was crying like a girl, I do not accept that the statement had any discriminatory effect. The statement was a reflection on the applicant's immature behavior, it did not foreshadow conduct in which the second respondent treated the applicant less favourably because of her gender.
- There was no less favourable treatment. Any other employee, male or female, would have been admonished for making the prescription error and any other employee, given the professional practice considerations, would have been asked to explain to the patient what had happened. Any other employee who said that he or she was going to cry all day and "locked" himself or herself in the toilet for at least twenty minutes, would have been directed to return to work.
The text messages
- The applicant relied on text exchanges in which the second respondent made particular observations about family responsibilities and single parent status to demonstrate the second respondent's predisposition toward discriminatory conduct.
- As the applicant saw it, the text message on 22 January 2018 disclosed a state of mind which was antagonistic toward staff with family responsibilities. That this state of mind persisted was demonstrated by the text message on 8 February 2018 which disclosed a continuing antagonism towards staff with children.
- In the first text exchange (Exhibit 7), a co-worker and the second respondent discussed a notification by the clinic nurse at 7.24 pm on Sunday night (21 January 2018) to the effect that she could not come to work the following day because her child was sick.
- In the first instance the second respondent responded by saying that he was on his own on 22 January 2018 "with brand new staff" and enquired whether the co-workers husband might be able to care for the sick child. When the co-worker said that the husband was not available, the second respondent observed "Ok. I just don't know how to keep the practice going like this". He then referred to a past practice wherein, if a child were sick, the mother would bring the child to the clinic and look after the child in one of the rooms. After this reference, the second respondent said "you're welcome to do that if you wish". When the co-worker explained why she could not take up this suggestion, the second respondent replied "Ok". There was no evidence of any vindictive or retaliatory conduct.
- In a second text exchange with the nurse on Tuesday 6 February 2018 at 6.44 pm, the second respondent was advised that the co-worker would not be coming to the surgery for the rest of the week "due to family reasons". This was to be the nurse's last week of work at the second respondent's clinic and she was no longer attending for work on the remaining three days of the week. The second respondent indicated that he had been placed in an extremely difficult situation, that he was not impressed, and that he was disappointed that the co-worker had "pulled the family card". The co-worker was not called to give evidence and there is no way of knowing whether the explanation provided for the failure to attend work for three days was truthful or a fabrication.
- The second respondent was candid and direct in his evidence in explaining the operational difficulties caused by staff absences from work with limited or no notice (T1-87):
So how does the family card make you feel morally awkward, sir?‑‑‑If you look prior to that, Kendall had cancelled – told me at about 20 past 7 in the evening – on the Sunday evening that she wasn’t able to get a babysitter for her children and she wouldn’t be able to come to work the next day. That involved me having to cancel surgical patients starting at 7 in the morning. Tried to get hold of them of course. Some of them travel long distances. The inconvenience to their employers and their families and the ‑ ‑ ‑
MR HEFFERNAN: So you’re saying that your staff with children manipulate their family responsibilities; that’s what you call using as a card?‑‑‑I’ve said it in the last years fifty years that I’ve been in private practice and I’ve employed people, it has been used against me at various times.
- I do not accept, on balance, that a tendency to act in a discriminatory manner can be inferred from what the second respondent said in these text messages. In terms of the first text message, while the second respondent explored other options with the nurse that might have allowed her to come to work, in the end result he accepted the situation and there was no evidence that the nurse was in some way victimised for her absence from work. In the second exchange, the second respondent was reasonably upset that the nurse had failed to work out her notice, and in circumstances where the nurse offered no forensic explanation for her inability to come to work, it was not unreasonable of him to be cynical of the validity of the excuse advanced.
- An earlier text exchange between the same co-worker and the second respondent had taken place on 18 January 2018 when the second respondent had noticed certain information on the applicant's Facebook page (Exhibit 7):
Uh oh! Just had a look on fb and saw that new junior is in a relationship with another women
Did she mention a partner
No. She has 2 kids. Awkward.
Check Ashleigh Oataway.
- The applicant suggested that the exchange reflected a view on the part of the second respondent that the employment relationship would be complicated if the applicant had children. The second respondent denied the suggestion and said that the use of the word "awkward" was a general reflection on the applicant's circumstances, not an adverse reflection on her status as a mother of two children.
- The second respondent disputed any suggestion that he did not want to employ women with children or held or exhibited a tendency to discriminate against women with children, either at the time of employment, or during employment. Further, in terms of ordinary workplace arrangements, there was no evidence that discrimination was in play.
- In this regard, the applicant accepted in her evidence that the other receptionist at the clinic was a woman with children. She agreed that she and the other receptionist coordinated working times and day care times so that they were both able to drop off and pick up their children from day care. She also agreed in her evidence that her hours of work could be flexible and be adjusted to suit her child care arrangements.
Ending of Employment
- When the applicant returned to her workstation after her exchanges with the second respondent and after spending time in the toilet, she remained there until the other receptionist arrived for work. She then approached the second respondent while he was in the surgery and told him that she was leaving (T1-9):
I’d gone into the surgical room and said, "Hey, Keith, I just think I should let you know that I’m leaving. Just let me know what you want to do." He’s like, "That’s your choice. If that’s your choice," then, "I’d have a lot of respect for you if you stayed, but if you don’t, that’s your choice." So I’ve left.
- The second respondent's evidence was similar. He said that he was operating on a patient when the applicant entered the surgery (T1-74):
… I was then operating on a patient and – and she walked into the procedure room, she didn’t stick her head around there, she actually walked in, possibly a metre into the room, and I had my back to her and she started saying that she was leaving now. And I had to stop what I was doing, apologise to the patient, turn around, and remembered that you’re dealing with sharp instruments, put those all back on the tray to make sure you don’t injure somebody. And I said, “This is very embarrassing.” In so many words I said, "You shouldn’t be doing this because you are compromising your own privacy and it’s not really the time and place." And she could have waited another 10 or 15 minutes, but I think she felt she had to make – I can’t say what she thought. So she said she was leaving. So I said to her, "Look this is entirely your decision, it’s not – or your choice, it’s not my choice." I actually said it to her three times assertively to make sure she got the message that I was certainly not firing her, but she was walking out. And the – she then left, and I carried on.
- The effect of the second respondent's evidence was that he did not terminate the applicant's employment on the morning of 1 February 2018. He suggested in effect that if the applicant had asked him to take her back, or if she had simply presented for work the next day, that he would have allowed her to continue in employment. It was the second respondent's evidence that the applicant's employment was ended by resignation, not by dismissal (T1-93):
So you’re saying that you gave her an ultimatum, that if she walked out the door, that would be a resignation?‑‑‑Well, I think that’s a fair assessment of the situation.
I put it to you, that’s not what a resignation is, sir. That’s called a dismissal?‑‑‑I put to you that just walking – abandoning your job is effectively – you – you walk – walking away from your job. You – you ‑ ‑ ‑
- There was no evidence to the effect that when the applicant walked into the surgery she was crying or was in a hysterical state. It seems to me to be more probable than not that the applicant had sufficient time on reception to compose herself and to process her course of action. It was not in dispute that, whatever were her choices, she elected to go to the surgery and tell the second respondent that she was leaving.
- I don’t think that, in saying that she was leaving at 9.00 am in the morning, there was any doubt in either the applicant's mind or the second respondent's mind that she was ending the employment relationship. On her own evidence, even when the second respondent encouraged her to stay by intimating an increased respect, the applicant did not deviate from her intended course.
- A conclusion that the employment was not ended at the initiative of the second respondent is also supported by communications sent by the applicant after the event.
- The applicant said in her evidence that when she left the clinic she did not know whether she had been dismissed or was still employed and she elected to text the second respondent at 9.17 am (Exhibit 5):
It wouldn't of been professional if I had stayed today.
But I do hope that some of my concerns were understood, I just felt like they weren't.
If you would like me to stay employed and come in tomorrow morning please let me know.
If not, thank you for the opportunity.
- At 10.17 am the applicant applied for a position with another employer. She attached a copy of her resume and asked the employer to contact her on her mobile. At 11.41 am, the applicant placed a phone call to her lawyers.
- The applicant sent a follow-up text message to the second respondent at 12.21 pm in the following terms (Exhibit 5):
I would like to know my status of employment.
Alex is still in contact with me and I don’t wish to provide her with anymore guidance if I'm not an employee of your practice.
- Not long after sending this message, and at 1.58 pm, the applicant sent another text (Exhibit 6) to a former co-worker in which she sought information about the Fair Work Commission claims process:
It's Ashleigh from CQ Cancer clinic well not anymore
I was just wondering, I ended up walking out today. So I was just wondering if you put in a fairworks claim?
- It is reasonably clear to me that the applicant made a conscious decision to end the employment relationship when she told the second respondent that she was leaving and declined to alter her course of action notwithstanding that the second respondent made clear to her that it was her choice to leave and not his, and notwithstanding the second respondent telling her that he would have more respect for her if she stayed.
- The applicant's claimed uncertainty around the status of her employment may reflect a doubt on her part about whether she had made the right decision, but it cannot be construed as evidence that her employment had, in some way or other, been ended at the initiative of the employer.
- The applicant's conduct immediately after the event in telling a former co-worker that she had "walked out" on her employment, in making an application for employment with another employer, and in seeking legal advice all serve as confirmation that the applicant understood that her employment relationship with the second respondent was over.
- In circumstances where the ending of the employment has not given rise to less favourable treatment, the applicant's case of direct discrimination rests on the proposition that the second respondent's conduct on the morning of 1 February 2018 constituted less favourable treatment taken because of the applicant's gender, parental status or family responsibilities.
- I do not accept that the second respondent treated the applicant less favourably on 1 February 2018. His conduct may have been blemished and his approach could have been softer or more circumspect, but I do not form the view that in any of his reactions, the second respondent was treating the applicant less favourably than any other comparator employee.
- The second respondent treated the applicant in the way that he did because she had made a mistake that was a cause of significant embarrassment to his professional practice, and could have had serious consequence for a long standing patient of the clinic. It was more likely than not, that if confronted with the same, or a materially similar situation, in which the applicant were a male, or was a female without children, the second respondent would have responded in the same manner.
- The second respondent was within his rights to seek an explanation about the prescription error from the applicant and to admonish the applicant. It was more likely than not, despite the denials, that the applicant had made the mistake and had failed to provide the patient with the prescription. The second respondent confirmed that he had prepared the prescription and that it had been printed. While the applicant suggested that the other receptionist may have been at fault, the second respondent said that the other receptionist was not working at the time.
- The second respondent was entitled to encourage or direct the applicant to get out of the toilet and return to reception. The applicant had been in the toilet for twenty minutes, she was the only receptionist on duty and arriving patients were left unattended. Despite their differences, the second respondent was entitled to expect a level of maturity on the part of the applicant in dealing with the workplace incidents.
- There was no obvious basis for the second respondent to treat the applicant less favourably because she was female or because she had children. The second respondent knew that the applicant was a single mother before he employed her, and all the staff employed by the second respondent as at 1 February 2018 were women with children. Finally, the events of 1 February 2018 had no association at all with the applicant's single parent status, but were entirely focused on the error that the applicant had made in the performance of her duties.
- The application is dismissed.
- The respondent has made an application for costs thrown away resulting from the adjournment of the hearing scheduled for 29 and 30 October 2018. The proceedings were adjourned at the request of the applicant's representatives in compassionate circumstances.
- It is not uncommon for trials to be deferred because of circumstances beyond of the control of the parties or the Commission. Included in these circumstances is the unavailability of Counsel or an advocate or representative because of an unexpected illness. It is very difficult in these circumstances to arrange, at short notice, a replacement representative who is able to be fully apprised of all the relevant facts and circumstances, and to complete preparations for trial without putting at risk their clients prospects of success.
- It is not my practice in such circumstances to entertain an application for costs. This approach is consistent with the relevant legislative provisions. Section 2 of Schedule 2 of the Industrial Relations Act 2016 (the IR Act) provides that, for proceedings brought under the Anti-Discrimination Act 1991, the usual practice is for each party to bear its own costs. The exception to this practice is in circumstances where the interests of justice require that an order for costs be made.
- In this regard, section 4 of Schedule 2 of the IR Act identifies factors which may be considered by the Commission in deciding whether to make an order for costs. In my view none of these factors support an award of costs. While I accept that the respondents have been disadvantaged by the adjournment of proceedings, the disadvantage is not the product of unfair, unreasonable or capricious behavior on the part of the applicant's representative.
- The application for costs is dismissed.
- Published Case Name:
Ashleigh Oataway v Keith Van Den Heever Pty Ltd and Keith Van Den Heever
- Shortened Case Name:
Oataway v Keith Van Den Heever Pty Ltd and Anor
 QIRC 99
Member Black IC
02 Jul 2019