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- Unreported Judgment
Bond v State of Queensland (Department of Justice and Attorney-General) QIRC 44
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Bond v State of Queensland (Department of Justice and Attorney-General)  QIRC 044
State of Queensland (Department of Justice and Attorney-General)
Referral of Complaint - Victimisation
20 March 2020
6 March 2019
27 March 2019
8 May 2019 (Complainant's Submissions)
5 June 2019 (Respondent's Submissions)
19 June 2019 (Complainant's Submissions in reply)
Industrial Commissioner Knight
ANTI-DISCRIMINATION LAW – complaint of victimisation - where complainant applied for a role in his former workplace – where a Deed of Settlement prevented contact with former colleagues without express permission – where a complaint of discrimination was made prior to signing the Deed - where the Department refused to progress his job application – where the Department relied on the contents of the Deed in support of refusal - where a detriment exists - whether the Deed is a binding agreement –- whether the decision not to progress the job application was because of prior discrimination complaint – whether decision not to provide permission to contact former colleagues was because of prior discrimination complaint – causal nexus between detriment suffered and discrimination complaint
Anti-Discrimination Act 1991 (Qld) ss 129, 130, 204
Bero v Willmar Sugar Pty Ltd & Ors  QCAT 371
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd  HCA 41
Wadsworth v Akers and Woolworth Limited t/a Big W Discount Stores  QADT 17
Mr K Bond, the Complainant in person
Mr S Hamyln-Harris of Counsel, instructed by Crown Law for the Respondent.
- The complainant, Mr Kirk Bond, alleges he was victimised by the Respondent, the State of Queensland, in contravention of s 129 of the Anti-Discrimination Act 1991 (the AD Act), when, in February 2018, it determined not to progress his application for a Resource Officer role in his former workplace.
- Mr Bond had resigned three years earlier from the same workplace, having held the role of Youth Justice Conferencing Convenor for approximately six years.
- Mr Bond’s resignation formed part of an agreement reached between himself and the State of Queensland to settle, among other issues, two anti-discrimination complaints with the Anti-Discrimination Commission (ADCQ) and an unfair dismissal application arising out of his employment.
- In addition to resigning, by execution of a Deed of Settlement (the Deed) on 9 October 2015, Mr Bond also agreed to discontinue all proceedings he had commenced against the State of Queensland. He also agreed to a clause in the Deed which prevented him from contacting, in any way, his former or current colleagues, without the express permission of the Regional Director, Ms Pamela Phillips.
- After being forwarded a copy of Mr Bond’s application for the Resource Officer position in February 2018, the (then) Director of Youth Justice, Ms Pamela Phillips, gave instructions to the Crown Solicitor to correspond with Mr Bond and advise his application for the position would not be progressed.
- The correspondence confirmed the reason for not progressing the application was because Mr Bond was applying for a role that would have resulted in direct and indirect contact with employees of the North Coast Youth Justice Conferencing Team, of which he was formerly a member.
- Mr Bond maintains the decision by Ms Phillips not to progress his application; and/or not to provide permission to allow him to have contact with his former colleagues, was made because he previously made a complaint of discrimination against his supervisor, Ms Thomas, and later initiated proceedings in the ADCQ.
- Section 129 of the AD Act provides that a person must not victimise another person. Section 130 sets out the meaning of victimisation, namely:
130 Meaning of victimisation
- (1)Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)—
- (a)because the complainant, or a person associated with, or related to, the complainant—
- (iii)is, has been, or intends to be, involved in a proceeding under the Act against any person; or
- (2)In this section, a reference to involvement in a proceeding under the Act includes—
- (a)making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and…
- Helpfully, QCAT Member Pennell in Bero v Wilmar Sugar Pty Ltd has set out three elements that must be shown for the provisions of victimisation to operate:
Firstly, the First Respondent did something or threatened to do something. Secondly, that what the First Respondent did was to the detriment of the Applicant. Thirdly, there is a causal nexus between any detriment suffered by the Applicant and the matters stated in section 130 of the Anti-Discrimination Act. (my emphasis)
- Mr Bond must prove, firstly, that the State of Queensland has performed an act or done something which has caused detriment to him. If proven, he must then prove the detriment suffered was causally connected to his complaints of discrimination.
- In terms of detriment, Mr Bond has identified the following conduct:
- (i)The refusal by the State of Queensland to progress his application for the Resource Officer role; and
- (ii)Further, or in the alternative, the refusal to grant him permission to have contact with his former co-workers.
- The State of Queensland does not deny that there was a refusal to progress Mr Bond’s application and that permission was not granted for him to contact his former co-workers. However, it argues that although a connection between a complaint of discrimination and the Deed of Settlement exists, it does not follow, nor is there any evidence, that the decision not to process Mr Bond’s job application was because of the discrimination complaint.
- In its written submissions, the State of Queensland argues Mr Bond’s case fails because he is unable to demonstrate a causal nexus between any of the claimed detriment and the making of his discrimination complaint.
- It is conceded by the State of Queensland that Ms Phillips gave instructions to Crown Law to advise Mr Bond that his job application would not be progressed, resulting in an outcome where he was unable to be considered for the Resource Officer position during the recruitment process. Therefore, the remaining issues I must decide are:
- (a)Is the evidence of Ms Phillips credible?
- (b)Did Ms Phillips and/or the State of Queensland refuse to accept Mr Bond’s application substantially because he previously alleged his supervisor and employer had committed an act that would amount to a contravention of the AD Act?
- (c)Did Ms Phillips and/or the State of Queensland refuse to grant Mr Bond permission to have contact with his former colleagues, so that he could apply for the role, substantially because he previously alleged his supervisor and employer had committed an act that would amount to a contravention of the AD Act?
- (d)Was Mr Bond victimised?
- (e)If yes, what amount of compensation should be awarded?
Is Ms Phillips' evidence credible?
- I had the opportunity to observe the witnesses as they each gave their evidence.
- Aside from Mr Bond and to a lesser extent Ms Melody Arnold-Nagus, the witness most relevant to the issue of victimisation and the questions I am required to decide is Ms Pamela Phillips.
- Counsel for the State of Queensland submits Ms Phillips’ evidence in relation to her decision not to progress Mr Bond’s application was forthright and clear. In contrast, Mr Bond describes Ms Phillips as “a recalcitrant witness whose testimony was all over the board”. In his submissions, Mr Bond referred to Ms Phillips’ evidence as “… dubious testimony”.
- Until her retirement, Ms Phillips held the position of Director of Youth Justice in the Moreton region. In that role, she was responsible for instructing Crown Law to correspond with Mr Bond and advise him his application for the Resource Officer position would not be progressed.
- At the time Mr Bond applied for the role, Ms Phillips was also the most relevant contact person in the event he sought permission, as provided for in the Deed, to engage with any current or former employees within (what was previously) the North Coast Youth Justice Conferencing Team.
- There were occasions in the proceedings where Ms Phillips took her time responding to questions asked by Mr Bond, particularly in so far as they related to her understanding of the finer details of the Deed. However, her recollection of the circumstances that led to the decision not to progress Mr Bond’s job application was, in my view, generally clear. Likewise, the reasons Ms Phillips provided for not progressing the application were largely consistent.
- Although there were moments where she appeared nervous and at times, struggled to understand and respond to some of Mr Bond’s questions, on balance, I consider Ms Phillips was generally a credible witness. She attempted to answer the questions asked of her as best she could, in circumstances where she had retired by the time of the hearing and where the events leading to the preparation of the settlement Deed and the resignation of Mr Bond had taken place four years earlier.
- I found Ms Melody Arnold-Nagus to be a credible witness and accept her evidence.
- Although I do not consider Mr Bond intentionally attempted to mislead the Commission or was an overtly dishonest witness, I have found him a witness whose evidence lacked a degree of objectivity. For example, he alleges his employer went to extreme lengths to protect his supervisor after he formally complained about her in May 2014, which extended to ensuring that he did not return to his role after he took extended leave, having lodged a Workers' Compensation Claim.
- In his complaint to the ADCQ, which he provided to the Commission Mr Bond also alleged the Department of Justice and Attorney-General endorsed discrimination, bullying and harassment against he and his wife, by refusing their pleas to investigate their allegations. He maintains the Department’s lawyers blindly accepted his supervisor and managers’ denials of discrimination, bullying and harassment to avoid liability for a Workers' Compensation claim.
- Separately, in a file note provided to the Commission by the Department, he is recorded as acknowledging in April 2014 that because he “felt that they had been discriminated against by Christine previously, that now he feels like this impacts on every decision.”
- It is not uncommon for some employees who make a complaint or multiple complaints about a supervisor or other colleagues to consider themselves a whistleblower. Of those employees, a number will likely view any subsequent action or decisions taken by an employer or their representative as retribution.
- This was also the impression I gained after observing Mr Bond giving evidence.
Did the State of Queensland refuse to accept Mr Bond’s job application; or withhold permission for him to have contact with his former colleagues, substantially because he previously alleged his supervisor and employer had committed an act that would amount to a contravention of the AD Act?
- Mr Bond must demonstrate that his allegations against his employer are the substantial and operative factor behind the allegedly victimising conduct of which he complains.
- In order to determine whether his allegations were the substantial and operative factor behind the decision not to progress his application or provide permission to contact his former colleagues, it is essential to consider the reasoning employed by the decision-maker, when determining not to progress the application.
- The onus is on Mr Bond to prove the decision not to progress his application and/or not to provide permission to him to engage with his former colleagues was because of his prior complaints of discrimination.
- Mr Bond was quite robust in his oral and verbal submissions, that for the Commission to reach a conclusion that he was victimised in 2018, it was essential that I understand the lengths his previous employer went to, to prevent him from returning to the workplace in 2015.
What were the circumstances leading to Mr Bond’s resignation in October 2015?
- I consider that there is value in understanding the events that led to Mr Bond’s resignation from his former workplace, particularly in so far as they may also be relevant to Ms Phillips’ decision in 2018 not to progress his application for the Resource Officer position.
- Mr Bond commenced in his role as a Youth Justice Conferencing Convenor in September 2009. Approximately three years later he married another Convenor within his team.
- According to Mr Bond, his supervisor, Ms Thomas was supportive of co-convening arrangements within the team but was reluctant to allow Mr Bond and his wife to co-convene, expressing concerns around a conflict of interest, given they were married.
- Mr Bond escalated his concerns about his supervisor’s position to the manager of the team, Ms Melody Arnold-Nagus on or around 17 March 2014. He expressed the view that he and his wife were being denied the opportunity to co-convene, due to their marital status. Mr Bond considered this to be discrimination.
- Ms Arnold-Nagus undertook to raise Mr Bond’s complaint with the Ethical Standards Unit, which in turn sought feedback from Crown Law. Crown Law determined there was no conflict of interest or legal reason which prevented Mr Bond and his wife from co-convening. This position was communicated to Mr Bond and his wife on 11 April 2014.
- In the same period, Mr Bond and his wife raised other concerns with Ms Arnold-Nagus about the conduct of their team supervisor, Ms Thomas. A management strategy was put in place to oversee the interaction between Mr Bond, his wife and their supervisor, Ms Thomas.
- Things appear to have come to a head between Mr Bond, his supervisor and another Manager, Mr Geoff Wells on or around 8 May 2014, after Mr Bond’s supervisor, Ms Thomas expressed her disappointment via email that he had failed to complete several new templates in the required format and on time.
- Ms Phillips, the Regional Director at the time, explained to the Commission that the request for the new templates had come about because she wanted to get a better understanding of the extent of work being undertaken by the group. At the time she held concerns that the workflow or throughput in the Mooloolaba office had declined.
- Mr Bond complained that Mr Wells, after possibly overhearing Mr Bond discussing his concerns about Ms Thomas with another colleague, had spoken to him with a raised voice, allegedly telling him to fill in the template and pay attention to his supervisor, in front of other staff.
- Following that interaction, Mr Bond obtained a medical certificate certifying he was unfit for work from 9 May 2014 to and including 16 May 2014. Mr Bond then complained to his supervisor in an email on 12 May 2014, advising he intended to make a formal complaint of bullying and discrimination, noting:
…Geoff’s bullying and harassment ensured that I would not get done what I intended…I made a doctor’s appointment and now I am on stress leave. And I blame you, Chris. You have seen how Geoff bullies employees. It was entirely predictable that he would respond exactly as he did with me. At this point I wouldn’t even discount the notion that such was your plan.
- The bulk of Mr Bond’s complaint to his supervisor focused on the unfairness of her email and various events (including Ms Thomas’ alleged procrastination and her request for information at the last minute) which in his view, had led to challenges associated with the timely completion of the templates in the new format. He also noted:
You have already bullied Robyn [Bond] to the point that I can’t imagine her ever being able to return to a workplace in which you have any sort of power over her. And I am getting to the same point.
- Mr Bond formally complained to his manager, Ms Arnold-Nagus on 12 May 2014, requesting his supervisor, Ms Thomas, be placed on administrative leave and to have no further communication with him, while an investigation was undertaken by his employer into her conduct. He also complained about the behaviour of Mr Wells.
- In the same email, Mr Bond advised he could not continue in a role where Ms Thomas continued to be his supervisor. He confirmed he would have no choice but to file a stress-related WorkCover claim in the event he was required to continue to work with his supervisor. He also flagged other remedies available to him in terms of unfair dismissal and anti-discrimination claims.
- Mr Bond obtained a further medical certificate certifying he had no capability for any type of work from 12 May 2014 up to and including 12 July 2014.
- On 16 May 2014 Ms Arnold-Nagus emailed Mr Bond advising she was in the process of investigating his complaint about Ms Thomas and the manner in which the request for the completion of the templates had been handled. She also confirmed Ms Phillips was exploring the concerns he had raised about Mr Wells. In the same email Ms Arnold-Nagus confirmed it was not feasible to remove Ms Thomas from the workplace given the majority of her team, including administration staff, worked from the Mooloolaba office.
- On 3 June 2014, Ms Arnold-Nagus emailed Mr Bond confirming Ms Phillips had investigated his complaint about Mr Geoff Wells and advising his allegations were not able to be substantiated.
- In the same email, Ms Arnold-Nagus advised she had also considered Mr Bond’s complaint (of 12 May 2014) about his Supervisor, Ms Thomas. She referred to the steps she had taken to investigate the issue, which included speaking to other team members, but confirmed she considered the directions given to Mr Bond by Ms Thomas in respect of the template completion were reasonable management action. She concluded her email by noting:
I look forward to us collectively working to resolve any issues within the team and am seeking the assistance of a professional to assist us to do this.
- Mr Bond shortly thereafter filed a Workers' Compensation claim, on or around 20 May 2014. As best I understand it, the claim was initially accepted, but then overturned and returned to WorkCover following a review by the Regulator. Mr Bond lodged an application for judicial review of the Regulator’s decision on 13 January 2015.
- On 4 February 2015, Mr Bond filed a joint complaint from he and his wife with the ADCQ. In support of the claim, Mr Bond attached a statement he had attached to his original Workers' Compensation claim. The statement set out a series of concerns he held in respect of his supervisor and other employees including:
- His supervisor, Ms Thomas and another Manager engaging in suspect pay practices, which he considered to be a violation of industrial laws and the Code of Conduct;
- Mr Bond losing respect for his supervisor;
- Ms Thomas sending Mr Bond flirtatious emails;
- Ms Thomas making inappropriate comments about Mrs Bond;
- Ms Thomas becoming annoyed on seeing Mrs Bond apply cream to Mr Bond’s back and shoulders in the workplace;
- Ms Thomas not allowing Mrs Bond to co-convene conferences with Mr Bond;
- Ms Thomas sending Mr Bond terse and disrespectful emails;
- The Department blindly accepting Ms Thomas’ version of events; and undertaking investigations geared towards discrediting Mr Bond’s allegations.
- As best I understand it, Mr Bond repeatedly raised concerns about Ms Thomas, highlighting his preference that she no longer supervise him.
- According to the Departmental correspondence sent to Dr Leong, Mr Bond sent an email to WorkCover on 18 November 2015 where he noted:
…Christine Thomas, discriminated against and bullied me for 3 years and that she lied and fabricated evidence during both Robyn’s and my claims processes, it is difficult to imagine that I would ever feel safe working with Christine having any real authority over me.
- As best I understand it, Ms Thomas has consistently denied Mr Bond’s claims of bullying and harassment.
- Mr Bond continued to provide medical certificates to his employer certifying he had no capability for any type of work up until 11 February 2015. Thereafter, he provided medical certificates certifying he was fit for suitable duties under a restricted return to work program until 1 September 2015.
- Although Mr Bond was certified as being able to work, albeit on suitable duties, he did not return to his workplace. As best I understand it, part of the reason for this is because he continued to hold reservations about returning to the same workplace as, and being supervised by, Ms Thomas.
- On 1 August 2015, Mr Bond emailed the Department to confirm WorkCover had suspended his benefits. Although he advised he would be contesting the decision, according to Departmental correspondence, he noted that he believed he had no choice but to return to the workplace on regular duties.
- By letter dated 14 August 2015, Mr Bond was directed to attend an Independent Medical Examination (IME) on 24 August 2015. Mr Bond subsequently provided to the respondent a certificate clearing him for duties from his general practitioner on 21 August. However, he was still required to attend the IME.
- On 3 September 2015, Mr Bond’s application for judicial review of the Regulator’s decision was dismissed.
- On 11 September 2015, Ms Melody Arnold-Nagus provided Mr Bond with a copy of a finalised IME report. The specialist who undertook the examination, Dr Leong, expressed the opinion that Mr Bond did not suffer from a mental illness and could perform his duties as a convenor.
- According to Dr Leong, Mr Bond indicated he would return to his pre-injury duties and report to his supervisor, Ms Thomas, even though he was unhappy with the arrangement.
- Ms Arnold-Nagus forwarded the report to Mr Bond and requested he meet with herself and Mr Lee Fairbank to discuss his return to work arrangements. During those dicussions, Ms Arnold-Nagus and Mr Fairbank raised concerns about Mr Bond returning to the workplace and the potential impact on both Mr Bond and other team members, including Ms Thomas.
- As best I understand it, Mr Bond subsequently raised the prospect of a mutual separation with Mr Fairbank whereby he would consider applying for a Voluntary Medical Retirement subject to the payment of various statutory and other amounts.
- Discussions with Mr Lee Fairbank (Manager Workforce Safety) continued. By email on 21 September 2015, Mr Bond wrote:
I understand Steve Harvey only returned to work today from leave and that my status with the Department is not the only thing he has to deal with. However, as we discussed during our meeting last week, I am without income and my savings account is quickly dwindling. I need to either get back to work without delay or have my employment status promptly resolved pursuant to the terms that we discussed under the Voluntary Medical Retirement Directive.
Will you kindly let me know as soon as possible as to how the Department proposes to proceed?
- The negotiations between Mr Bond and the Department began to break down, and on 28 September 2015 Mr Bond wrote in a letter to Mr Fairbank:
It is clear to me that, so long as the Department remains unwilling to settle my discrimination complaint independent of the complaint lodged by Robyn Bond, we will never reach a negotiated settlement.
I acknowledge your concerns that I am at risk of suffering another psychological injury and that Christine Thomas is at risk of suffering a psychological injury herself when I return to work. However, your concerns are purely speculative. …And, at least two professionals have cleared me to return to my job. If Christine Thomas does not feel that she can safely supervise me, the Department can place her in a different position.
Also, if by Wednesday 28 September 2015, the Department does not (1) begin paying me at my full wage rate or (2) allow me to return to my substantive position or another position that I am agreeable to perform, I will file an action in the Industrial Relations Commission in which I will seek an order forcing the Department to reinstate me to my substantive position.
- On 2 October 2015, Mr Bond filed an Application for reinstatement in the Commission, in which he alleged the respondent had refused to allow him to return to his substantive position. He also filed a further complaint in the ADCQ on 2 October 2015.
- Eventually, negotiations resulted in the full and final settlement of the ADCQ complaints and the Application for reinstatement by way of a Deed of Settlement, executed by Mr Bond on 9 October 2015. The Deed does not contain a 'no re-employment' clause. However, central to the proceedings, is clause 2.1.5:
2.1.5. With the exception of Mrs Robyn Bond, the applicant agrees not to have any direct or indirect contact whatsoever, whether verbally or in writing, with any current or former employee/s of the North Coast Youth Justice Conferencing Team, Mooloolaba Office, without being granted the prior express written permission of the Regional Director, Youth Justice Brisbane North and Gold Coast.
- Mr Bond told the Commission he received a monetary payment as part of the settlement. He took the funds and travelled to America where he looked after his mother for a period. Eventually he returned to Australia and commenced searching for a new job.
Is the Deed of Settlement a binding agreement?
- One must keep in mind that a Deed of Settlement is reached by agreement.
- There is no doubt that Mr Bond willingly agreed to the terms of the Deed, including Clause 2.1.5, which prevented him from contacting former or current members of the conferencing team, without permission from the relevant Director.
- Having regard to the discussions and negotiations that occurred before Mr Bond signed the Deed in early October 2015 and in the absence of any other evidence suggesting otherwise, I am satisfied the Deed of Settlement was a binding agreement between Mr Bond and the State of Queensland.
Who decided not to progress Mr Bond’s application?
- In February 2018, two and a half years later, in a letter addressed to Ms Arnold-Nagus, Mr Bond requested she consider his application for an advertised Resource Officer position which was located in the Restorative Justice Team in Mooloolaba.
- The successful candidate would be required to interact and work with conference convenors within the office.
- Ms Arnold-Nagus was the manager of the conferencing team at the time Mr Bond resigned. She was aware of the circumstances leading to his resignation in October 2015. She also witnessed Mr Bond’s signature on the Deed of Settlement prior to his resignation.
- In July 2016, nine months after Mr Bond resigned, the North Coast Youth Justice Conferencing Team had been split into two separate teams. The team based in Mooloolaba, from which Mr Bond had resigned, was renamed the Restorative Justice Team, Sunshine Coast Youth Justice Centre.
- Ms Arnold-Nagus told the Commission that three of the members of the current Restorative Justice team including the existing Supervisor, Ms Thomas, were formerly members of the conferencing team in which Mr Bond had previously been employed. Ms Arnold-Nagus continued to be the Manager of the team.
- Ms Arnold-Nagus explained that on receiving Mr Bond’s application for the Resource Officer position, she held concerns he may have breached the Deed. She recalled Mr Bond was prevented from making contact, directly or indirectly, with any members of the team, as part of the settlement.
- She also recalled the challenging relationships that existed between Mr Bond and other members of the conferencing team, including Ms Thomas, prior to his resignation, and explained she was concerned about the potential impact and well-being of the team, should he return.
- Ms Arnold-Nagus contacted Ms Phillips to advise she had received Mr Bond’s application and sought guidance on what to do. She recalled Ms Phillips confirmed during the call that she had not provided permission for Mr Bond to interact with members of the conferencing team.
- Ms Phillips requested Ms Arnold-Nagus forward a copy of the application.
- Ms Arnold-Nagus said she had no further involvement in communicating with Ms Phillips or Mr Bond about the recruitment process, after she forwarded the application. Her email to Ms Phillips noted:
As discussed on the telephone, Kirk Bond has applied for the permanent Resource Officer position within the sunshine coast. My details were on Smart Jobs as the contact person and his cover letter is addressed to me. I am hoping to shortlist next week but will await your direction.
- Mr Bond argues Ms Arnold-Nagus refused to consider his application because he made a complaint under the AD Act.
- The difficulty I have with this submission is that there is no evidence before the Commission that Ms Arnold-Nagus actually made the decision not to progress the application.
- The evidence before the Commission supports the conclusion that her involvement in the processing of Mr Bond’s application, came to an end at the point she forwarded the application to Ms Phillips.
- During the proceedings and in his submissions, Mr Bond repeatedly returned to what he considered to be the deficient processes that were followed by Departmental representatives, including Ms Arnold-Nagus, in response to the various complaints he raised. Mr Bond submitted she:
…refused to investigate any of his complaints. She spoke to no-one who might corroborate his allegations – not even Mrs Bond. She sought no documentary evidence. Rather, she did nothing more than raise the allegations with Ms Thomas, who, surprise, surprise, denied ever having bullied or discriminated against Mr Bond or anyone else.
- Likewise, a significant portion of Mr Bond’s written submissions continue to revisit his concerns about the deficient and unfair way he (and to a lesser extent his wife) were treated by Ms Thomas, Ms Arnold-Nagus and later, the Department.
- Mr Bond is clearly still very upset about the way in which the Department responded to his claim for Workers' Compensation and the way many of his other complaints were received, investigated and concluded, despite signing a Deed which brought them to an end in October 2015.
- Part of the difficulty I have with Mr Bond's submissions is that it is not the Commission’s role, in this matter, to go back in time and determine whether the investigations undertaken by Ms Arnold-Nagus or the Department at the time were adequate and/or whether the conduct of the Department, in so far as it related to his complaints, at that time was reasonable.
- Instead, my role is to consider whether there is evidence to satisfy the Commission, on the balance of probabilities, that Mr Bond was victimised when he lodged his application for the Resource Officer role in February 2018.
- This process includes a consideration of the decision maker’s reasons for not progressing the application or not granting permission for Mr Bond to engage with his prior colleagues.
- In his submissions, Mr Bond argues Ms Arnold-Nagus “unabashedly admitted that the State of Queensland victimised Mr Bond by refusing to consider his employment application because his discrimination and bullying complaint triggered enquiries into his allegations that his co-workers found distressing".
- In the case of Ms Arnold-Nagus, I am not persuaded she was the decision-maker in relation to determining whether Mr Bond’s application was able to be considered. It was also not within her authority to grant or refuse permission, and nor did she, for Mr Bond to interact with or contact his former colleagues.
- Even if I was found to be wrong in respect of my finding that Ms Arnold-Nagus was not involved in the decision not to progress Mr Bond’s application, there is insufficient evidence to support Mr Bond’s submissions that any concerns she did hold or may have expressed, in relation to the progression of Mr Bond’s job application, were substantially due to his previous anti-discrimination complaint.
- Ms Arnold-Nagus confirmed she was aware Mr Bond eventually made a formal discrimination complaint, along with several other complaints including a Workers’ Compensation claim and a Public Interest Disclosure.
- It is clear she also held the view that the working relationship between Mr Bond and Ms Thomas had deteriorated to the point where Mr Bond returning to work would have been very difficult. She was also genuinely concerned about the impact of Mr Bond’s presence on the remaining members of the team and in particular, Ms Thomas.
- There is no question she considered the processes that unfolded in the wake of various complaints made by Mr Bond had impacted the conferencing team.
- I accept Ms Arnold-Nagus held concerns about the impact on individual team members, however, having observed her give evidence, I am not persuaded that it was Mr Bond’s anti-discrimination complaint that was the substantial and operative factor behind any views she may have held or expressed about whether to progress Mr Bond’s application.
- Instead, the evidence supports a finding that Ms Arnold-Nagus recalled that the Deed that Mr Bond signed in October 2015 prevented him from having contact with any former or current members of the Sunshine Coast Youth Justice Conferencing team, which was why she then forwarded the application to Ms Phillips for her consideration.
Why did Ms Phillips decide not to progress Mr Bonds’ application for the Resource Officer Role?
- Ms Phillips said she sought legal advice from Crown Law after she received Mr Bond's application from Ms Arnold-Nagus. The result of that advice was the letter sent to Mr Bond, advising his application would not be progressed.
- She explained her reasons for not progressing Mr Bond's application were twofold. Firstly, that the Deed Mr Bond had signed operated to finalise his employment relationship with the Department. Secondly, and to a lesser extent, that Mr Bond had agreed to not contact his former colleagues in clause 2.1.5. She denied that Mr Bond's complaint of discrimination against the respondent had any bearing on her decision.
- During cross-examination, Ms Phillips confirmed she was not prepared to allow Mr Bond to return to work in the conferencing team with his former colleagues. She was concerned about the potential impact on the mental health of both Mr Bond and the other staff who continued to work in the team. Ms Phillips held the view that prior to his resignation there existed a high level of hostility between Mr Bond and the Department that likely precluded his return to his substantive role.
No Contact Clause
- Ms Phillips' evidence was that she was aware of the negotiations of the Deed at the time they were being conducted but did not participate in them personally. She said she was aware of the terms of the Deed including:
- clause 2.1.5;
- that upon execution, Mr Bond tendered his resignation from his employment with the respondent with immediate effect;
- that the Deed would resolve the ADCQ and QIRC matters.
- Her evidence was that while she had requested that a 'no contact' clause be inserted into the Deed, she did not request the insertion of the part of the clause that allows for permission. Her evidence regarding why the 'no contact' clause was inserted was:
APPLICANT: Okay. Did you have input into anything in relation to that clause?
WITNESS: Yes, the non-contact clause…The non-contact part. I didn’t have any input into without my approval.
APPLICANT: Okay. And the reason that you requested that no contact clause was what?---
WITNESS: To members of staff who had expressed concerns.
APPLICANT: Concerns about?---
WITNESS: Contact from you.
WITNESS: Anything really.
I said two people had requested – or two people had expressed to me that they were fearful of being contacted by you.
- Mr Bond’s evidence was that he believed the clause was inserted as a means of ensuring that he would not be rehired. In cross-examination, he said that he did not consider his job application conflicted with the clause, as the meaning of the clause had been settled in negotiations, that is, that it did not preclude him from seeking re-employment.
- He maintains that during the negotiation of the Deed, he refused to agree to a 'no re-employment' clause. He said that Mr Fairbank, a Manager within the Department, stated that it would not be insisted upon.
- As a result, he submits that the refusal to grant him contact with his former colleagues could have only stemmed from victimisation. When prompted by counsel during cross-examination as to what evidence Mr Bond had to indicate the refusal to allow him contact with his former employees was due to victimisation, he said:
The only thing that happened in the interim – between when I left work, and when I signed the settlement deed, was I had filed a complaint of discrimination against the department and Christine Thomas.
- Although Mr Bond’s evidence was that he left work on good terms and had never been the subject of a complaint, the events that unfolded in the workplace, particularly those that followed the request from Ms Thomas to complete the new templates, reveal his relationship with his supervisor and Mr Wells had deteriorated before he sent his complaint to Ms Arnold-Nagus on 12 May 2014.
- Over time, Mr Bond’s complaints about Ms Thomas and the Department extended well beyond discrimination. He accused his supervisor and another Manager of engaging in suspect pay practices. As best I can tell, he also made a Public Interest Disclosure about his supervisor’s conduct. He alleged his supervisor was a bully and openly considered she was a liar. Mr Bond also held the view the Department had actively engaged in practices to discredit his version of events.
- Mr Bond was absent from work for approximately seventeen months. As far as I can tell, it was not until he was advised his Workers' Compensation benefits would be suspended in August 2015, that he received a full clearance to return to his normal duties. Prior to that time, he had resisted returning to a position where he would be required to work closely with or report to Ms Thomas.
- Although he eventually received a full clearance to return to his role, the IME report noted Mr Bond continued to be unhappy about working in the same environment as his supervisor.
- It is not difficult to comprehend the challenges this situation presented not just for Mr Bond, but also his colleagues and the Department. It is also not surprising, given the situation, that eventually Mr Bond entered into a Deed of Settlement and binding agreement with the State of Queensland, that resulted, among other things, in his resignation and a no-contact clause with his former colleagues.
- I have been unable to identify any measures within the Deed that could be considered unlawful in so far as they may be relevant to this application. I agree that the State of Queensland is entitled to rely on the matters that were included in the Deed.
- Mr Bond did not actively approach Ms Phillips and seek permission to have contact with his former colleagues, as contemplated in the Deed. However, in determining not to progress his application, it follows that he was also not provided permission to have any contact with his former colleagues.
- Having observed Ms Phillips give her evidence, I am not persuaded she decided not to progress Mr Bond’s application or not provide permission for him to contact his former colleagues, due to his prior complaints of discrimination.
- Instead, it is clear she considered the employment relationship had come to an end in 2015 as a result of a negotiated outcome. Ms Phillips determined she was able to rely on the Deed when deciding not to progress Mr Bond's job application.
- The Deed settled two anti-discrimination complaints, however I agree with the State of Queensland’s submissions that it does not automatically follow that the decision ‘not’ to progress the application or provide permission to contact former colleagues was because of the discrimination complaint (my emphasis).
- I accept Ms Phillips' evidence that she had specifically requested a no contact clause in the Deed in October 2015, because she held genuine concerns about any interaction between Mr Bond and at least two of his former colleagues. In my view, Ms Phillips was entitled to rely on the no-contact clause.
- During the proceedings it became very clear that Mr Bond held Ms Thomas in very low regard.
- I accept Ms Phillips' evidence that the reason for the no contact clause was because she held genuine concerns about any hostility that existed and the potential consequences for the broader workplace in the event he returned in October 2015. Those concerns were still present when he applied for the role in February 2018.
- Ms Phillips was genuinely concerned about the impact of any interaction between Mr Bond and his former colleagues. She was particularly concerned about the psychological health of both Mr Bond and Ms Thomas as well as the impact on workplace culture and safety should he return, in circumstances where he would be reporting to Ms Thomas.
- It is not the Commission’s role in this matter to determine whether this was a reasonable position to take. Instead, I have to determine whether the reasons Ms Phillips chose not to progress the application and/or not provide permission for contact, were because he previously filed a discrimination complaint.
- Having considered all the materials before the Commission, I am not satisfied the substantial and operative factor behind Ms Phillips’ decision not to progress Mr Bond's application was because he had previously made a discrimination complaint about his supervisor. Nor am I satisfied the decision to not progress the application and therefore not provide permission to Mr Bond to contact his former colleagues, was substantially driven due his prior discrimination complaint.
- Although I have no reason to question that Mr Bond genuinely believes that his application was refused because he had previously made a discrimination complaint, the difficulty I have with his submissions is that there is insufficient evidence before the Commission to support such a claim.
- Instead, I am satisfied Ms Phillips’ predominant reasons for not progressing the application were because she considered Mr Bond had signed a Deed which operated to finalise his employment relationship with the Department, and secondly, that he had agreed to not contact his former colleagues as part of the Deed, without her express permission.
- Mr Bond argues that the Commission should infer from State’s failure to call Mr Lee Fairbank as a witness, that his evidence would not have assisted the State of Queensland.
- The bulk of Mr Bond’s evidence during the proceedings in so far as Mr Fairbank was concerned, centred on Mr Fairbank’s agreement to not include a ‘no re-employment’ in the Deed. As best I understand it, the discussions did not focus on Mr Bond being able to secure employment in his former workplace at some later stage.
- The State of Queensland concedes the Deed does not prevent re-employment in another role with the State, provided any such employment does not put Mr Bond in contravention of clause 2.1.5.
- I largely agree with the State’s submissions that Mr Fairbank’s evidence was unlikely to have any bearing on the outcome of this decision. In the end it was Ms Phillips, not Mr Fairbank, who made the determination not to progress the application, for the reasons set out above. There is no evidence before the Commission that any discussions that were held between Mr Bond and Mr Fairbanks in October 2015, had any bearing on Ms Phillips decision in 2018.
Was Mr Bond victimised?
- For the reasons set out above, I am not satisfied Mr Bond’s application for the Resource Officer position was not progressed as a result of his prior complaints of discrimination.
- Likewise, I am not satisfied Mr Bond was not provided with the express approval to have contact with his former colleagues from Ms Phillips, as a result of his prior complaints of discrimination.
- Mr Bond has not been able to satisfy the statutory elements that must be addressed to succeed in his application.
- Accordingly, I dismiss the complaint of victimisation.
- The application is dismissed.
- Should the parties wish to make submissions concerning costs to the Commission, they may do so in writing within 21 days of receipt of these reasons.
 Bero v Willmar Sugar Pty Ltd & Ors  QCAT 371.
 Ibid, 150 – 153.
 Exhibit 3.
 Exhibit 24.
 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd  HCA 41; Wadsworth v Akers and Woolworth Limited t/a Big W Discount Stores  QADT 17.
 Exhibit 18.
 Exhibit 1.
 Exhibit 21.
 Submissions of the Complainant, filed 8 May 2019, 3.
 T2-57, 1-5.
 T2-59, 1-5.
 T2-63, 25-30.
 T2-61, 1-3.
 T2-64, 5-15.
 T2-54, 30-45.
 T2-85, 5-15.
 T1-25, 5-10.
 T1-63, 28-30.
- Published Case Name:
Bond v State of Queensland (Department of Justice and Attorney-General)
- Shortened Case Name:
Bond v State of Queensland (Department of Justice and Attorney-General)
 QIRC 44
20 Mar 2020