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  4. Ogden v Wantima Country Club & Ors - [2020] QIRC 83

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Ogden v Wantima Country Club & Ors[2020] QIRC 83

Ogden v Wantima Country Club & Ors[2020] QIRC 83

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ogden v Wantima Country Club and Ors [2020] QIRC 083

PARTIES:

Ogden, Barry

(Complainant)

v

Wantima Country Club 

(First Respondent)

and

Lowen, Andy

(Second Respondent)

and 

Miller, Andrew

(Third Respondent)

CASE NO:

AD/2019/5

PROCEEDING:

Referral of Complaint

DELIVERED ON:

11 June 2020

HEARING DATES:

4 September 2019 (Mention)

24 and 25 February 2020 (Hearing)

30 March 2020 (Complainant written closing submissions)

14 April 2020 (Respondent written closing submissions)

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

  1. The complaint is dismissed.
  2. Each party is to bear their own costs.

CATCHWORDS:

ANTI-DISCRIMINATION – REFERRAL OF COMPLAINT – discrimination on the basis of age – discrimination on the basis of impairment – where complainant was made redundant – whether less favourable treatment occurred – whether a real or hypothetical comparator should be used – where no less favourable treatment occurred – whether to award costs.

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) s 7, s 9, s 10, s 15, s 133, s 136, s 141, s 166, s 204, sch – Dictionary

Fair Work Act 2009 (Cth) s 97, s 358, s 389

Industrial Relations Act 2016 (Qld) sch 2

CASES:

Briginshaw v Briginshaw (1938) 60 CLR 336

Carlton v Blackwood [2017] ICQ 001

Commonwealth v Humphries (1998) 86 FCR 324

Construction, Forestry, Mining and Energy Union and others v BHP Coal Pty Ltd (2012) 220 IR 287

Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Pty (1998) 88 IR 202

Curran v yourtown & Anor [2019] QIRC 059

Haines v Leves (1987) 8 NSWLR 442

Maswan v Escada Textilvertrieb t/as Escada [2011] FWA 4239

APPEARANCES:

Mr C. Watters of Workers First Pty Ltd as agent for the Complainant

Ms N. Milevskiy of Clubs Queensland for the First, Second and Third Respondents

Reasons for Decision

  1. [1]
    Mr Barry Ogden worked for Wantima Country Club (‘the Club’) for 26 years.  
  1. [2]
    His duties included cleaning, groundskeeping and general maintenance functions.
  1. [3]
    With an unblemished employment record over decades of service, Mr Ogden was well-regarded as a reliable and obliging employee.
  1. [4]
    He was injured in the course of performing his cleaning duties just after Christmas 2017.  As a result, Mr Ogden was on light duties as part of a graduated ‘Return to Work’ plan.
  1. [5]
    Only a short time after resuming duties at the Club, Mr Ogden contracted a severe virus.  He was bedridden and convalescing at home for a lengthy recovery period.
  1. [6]
    On 17 July 2018, Mr Ogden received two separate letters from the Club.  The first letter stated that the Club was considering outsourcing the work currently performed by Mr Ogden to external contract cleaners and invited him to a meeting to discuss it.  The second letter noted he did not attend the scheduled meeting and invited him to provide written feedback on the outsourcing proposal by the following day.
  1. [7]
    After contacting Mr Lowen later that day, Mr Ogden was granted an extension until 20 July 2018 to provide any written feedback. 
  1. [8]
    With an unseemly short period of just three days within which to furnish the Club with written reasons as to why his position should not be made redundant, and whilst he was on leave due to illness, Mr Ogden was unable to make that deadline and save his job.  
  1. [9]
    On 21 July 2018, Mr Lowen wrote to formally terminate Mr Ogden’s employment.
  1. [10]
    At age 66, Mr Ogden believed that the Club had contrived the restructure as a way to get rid of him following his workplace injury.  He alleged that Mr Miller had repeatedly suggested that he “should go on the pension” (or words to that effect). 
  1. [11]
    He then commenced proceedings against his former employer.
  1. [12]
    For their part, the Respondents asserted that Mr Ogden’s longstanding employment ceased due to the Club’s constrained financial circumstances arising from a land purchase.  Mr Lowen’s evidence was that a decision to outsource was taken by the Board as a cost saving measure, arguing that this constituted a genuine redundancy.

Claim details

  1. [13]
    Mr Ogden filed a complaint in the Anti-Discrimination Commission Queensland (ADCQ) on 11 September 2018 alleging direct discrimination on the basis of age. 
  1. [14]
    The complaint was accepted pursuant to ss 136 and 141 of the Anti-Discrimination Act 1991 (the Act).
  1. [15]
    An unsuccessful conciliation before the ADCQ resulted in this matter being referred to the Queensland Industrial Relations Commission (the Commission) on 30 January 2019, pursuant to s 166(1)(a) of the Act.
  1. [16]
    The Referral Notice from the ADCQ relevantly states that the complaint "relates to or includes work or the work-related area" and were treated as alleging:
  1. i.
    Age Discrimination in the area of work – Sections 7(f), 10, and 15; and
  2. ii.
    Impairment Discrimination in the area of work – Sections 7(h), 10, and 15.
  1. [17]
    Mr Ogden’s complaint names three Respondents: Wantima Country Club (his former employer), Mr Andy Lowen (Secretary Manager at the Club) and Mr Andrew Miller (Office Administrator at the Club).
  1. [18]
    It is not disputed between the parties that the Commission has jurisdiction to hear and decide Mr Ogden’s complaint.

What legal tests must be satisfied for Mr Ogden’s claim to succeed?

  1. [19]
    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(f) of "age" and in s 7(h) of "impairment".  Section 8 of the Act refers to the meaning of discrimination on the basis of an attribute.
  1. [20]
    Part 3 of Chapter 2 of the Act identifies "Prohibited types of discrimination".  Section 9 prohibits "direct" and "indirect" discrimination.  Section 10 defines the meaning of direct discrimination: 

10 Meaning of direct discrimination

  1. (1)
    Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
  1. [21]
    Section 10(4) of the Act provides:

If there are 2 or more reasons why a person treats, or proposes to treat, another person with an  attribute less favourably, the person treats the other person less favourably on the basis of the  attribute if the attribute is a substantial reason for the treatment.

  1. [22]
    Part 4 of Chapter 2 of the Act identifies "Areas of activity in which discrimination is prohibited".  The areas of activity are set out in Division 2 through to Division 11. 
  1. [23]
    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(1)(c) provides that a person must not discriminate “in dismissing a worker”.  Section 15(2) elaborates that “dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.”
  1. [24]
    The effect of the legislative scheme is that, for Mr Ogden to establish direct discrimination, he needs to show that has protected attributes, and was treated less favourably than another person without the protected attributes, in circumstances that are the same or not materially different, because of the protected attributes that he possesses.
  1. [25]
    Pursuant to section 133 of the Act, Wantima Country Club agrees that it is vicariously liable for the acts of Mr Andy Lowen and Mr Andrew Miller.[1]
  1. [26]
    The effect of section 204 of the Act is that it is for Mr Ogden to prove, on the balance of probabilities, that the Respondents contravened the Act. 
  1. [27]
    The standard of evidence is summarised in Briginshaw v Briginshaw, where the High Court stated that:[2]

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

What are the key questions to be determined?

  1. [28]
    This case turns on the following five questions.
  1. [29]
    There are three questions to be decided relating to the attribute of ‘impairment’:
  1. i.
    Does Mr Ogden have the attribute of ‘impairment’?
  2. ii.
    Was Mr Ogden treated, or proposed to be treated, less favourably than another person without the attribute of ‘impairment’, in circumstances that are the same or not materially different?
  3. iii.
    If it is decided that a ‘less favourable’ treatment occurred, was a substantial reason for that treatment Mr Ogden’s attribute of ‘impairment’?
  1. [30]
    At the Mention held on 19 February 2020, the Respondents confirmed to me their agreement that Mr Ogden has the attribute of ‘age’.  
  1. [31]
    There are two questions to be decided relating to the attribute of ‘age’.  On the basis that attribute is not disputed, the same two questions follow:
  1. iv.
    Was Mr Ogden treated, or proposed to be treated, less favourably than another person without the attribute of ‘age’, in circumstances that are the same or not materially different?
  2. v.
    If it is decided that a ‘less favourable’ treatment occurred, was a substantial reason for that treatment Mr Ogden’s attribute of ‘age’?

Summary of Findings

  1. [32]
    I find that Mr Ogden has the attribute of ‘impairment’.
  1. [33]
    I find that Mr Ogden has not demonstrated that, on the balance of probabilities, he was treated less favourably than another person without the attribute of ‘impairment’ would have been, in circumstances that are the same or not materially different.
  1. [34]
    As there is no finding that ‘less favourable’ treatment occurred as a result of the attribute of ‘impairment’, there is no subsequent requirement to go on to determine if a substantial reason was discriminatory.
  1. [35]
    There is no dispute between the parties that Mr Ogden has the attribute of ‘age’.
  1. [36]
    I find that Mr Ogden has not demonstrated that, on the balance of probabilities, he was treated less favourably than another person without the attribute of ‘age’ would have been, in circumstances that are the same or not materially different.
  1. [37]
    As there is no finding that ‘less favourable’ treatment occurred as a result of the attribute of ‘age’, there is no subsequent requirement to go on to determine if a substantial reason was discriminatory.
  1. [38]
    My reasons follow.

Witnesses

  1. [39]
    Mr Barry Ogden was the sole witness called to make the Complainant’s case.
  1. [40]
    While Mr Ogden did not call the medical experts as witnesses in this Hearing, neither did the Respondents seek to cross-examine them.  This point is further addressed in the section below.
  1. [41]
    There were two witnesses for the Respondents:
  1. i.
    Mr Andy Lowen (Second Respondent and the Club Secretary Manager); and
  2. ii.
    Mr Andrew Miller (Third Respondent and the Club Office Administrator).

Evidence and submissions

  1. [42]
    In a Directions Order dated 26 February 2020, written closing submissions were directed in the order Complainant – Respondents – Complainant (in reply, on issues of law only).
  1. [43]
    The Complainant’s written closing submissions were filed on 30 March 2020.
  1. [44]
    The Respondents’ written closing submissions were filed on 14 April 2020.
  1. [45]
    No further submissions were received from the Complainant in response.
  1. [46]
    The evidence of the three witnesses and 15 Exhibits tendered at the Hearing, together with the written closing submissions of each Party, were considered in this Decision.

Does Mr Ogden have the attribute of ‘impairment’?  

  1. [47]
    The Act defines ‘impairment’ as including “the total or partial loss of the person’s bodily functions including the loss of part of the person’s bodily functions” and “the malfunction, malformation or disfigurement of a part of a person’s body”.[3]
  1. [48]
    Mr Ogden testified that he injured both his knees and shoulder in the course of performing his cleaning duties at the Club on 30 December 2017.  
  1. [49]
    Whilst the injury to his knees was initially Mr Ogden’s main concern, it was his shoulder injury that has persisted.  
  1. [50]
    The shoulder injury is the claimed ‘impairment’ for the purposes of this Decision.
  1. [51]
    Neither Mr Ogden’s condition as a diabetic and his resultant insulin dependence,[4] nor his period of incapacity with a severe virus at the time the Club decided to outsource his work,[5] were claimed as ‘impairments’ when making his case.
  1. [52]
    In Curran v yourtown & Anor [2019] QIRC 059, Vice President O'Connor stated:

As the complainant’s contention is a contention pertaining to her medical diagnosis, it follows that the complainant is required to produce expert opinion evidence from a person duly qualified to do so.

  1. [53]
    Mr Ogden did not note the injury to his shoulder in the Incident Report completed at the time of the workplace injury. [6]
  1. [54]
    Notwithstanding that omission, I accept that a medical certificate,[7] the Workers’ Compensation documentation[8] and the examination report of Dr Philip Allen, Orthopaedic Surgeon[9] were all tendered as evidence.  
  1. [55]
    Further, the ‘Return to Work’ plan dated 2 May 2018 notes an “injury diagnosis” of “R shoulder - pain.”[10]
  1. [56]
    Mr Ogden asserts that these documents support the existence of a shoulder injury that is consistent with his account of the workplace injury.[11]  These materials were tendered as Exhibits at Hearing, ultimately without objection from the Respondents.[12]
  1. [57]
    Still more medical certificates were contained within the ‘Agreed Bundle of Documents’ settled between the parties.  As these were not ultimately tendered as Exhibits in the making of Mr Ogden’s case they have not been considered here.[13]  However, both Parties were asked by me more than once whether medical experts would be called as witnesses – or whether the Respondents would seek to cross-examine them on their written evidence – and each indicated that they elected not do so.[14]
  1. [58]
    In light of the reasons above, I accept the documentary evidence adduced with respect to Mr Ogden’s shoulder injury.  
  1. [59]
    With respect to the parties’ opposing claims on the application of the principles of Curran in this case,[15] Mr Ogden has discharged his obligation to produce expert opinion evidence from a person duly qualified to do so – Dr Philip Allen, Orthopaedic Surgeon.  To be clear, it is not Mr Ogden’s testimony alone that persuades me to make the finding on this question.
  1. [60]
    My impression of Mr Ogden was that he generally recounted events, as he saw them.  The medical evidence tendered at Hearing, taken together with Mr Ogden’s testimony of the contemporaneous verbal report of the workplace injury made to Mr Lowen, the notation that he had done so on the Incident Report and his attendance at a doctor’s appointment shortly afterwards on 2 January 2018, all combine to support his claim of a shoulder injury ‘impairment’ at the time of the Club’s decision to terminate his employment. [16]
  1. [61]
    I note the Respondents’ arguments that the medical evidence of Mr Ogden’s shoulder injury ‘impairment’ tendered is dated prior to the time period within which the claimed discrimination occurred.[17]  However, this does not impede Mr Ogden’s successful proof of the shoulder injury ‘impairment’.  Section 8 of the Act states (emphasis added):

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of –  ---

  1. (c)
    an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
  1. (d)
    an attribute that a person had, even if the person did not have it at the time of the discrimination.
  1. [62]
    The Act goes on to provide that ‘impairment’ includes an:[18]

…impairment that – 

  1. (g)
    presently exists; or
  1. (h)
    previously existed but no longer exists.
  1. [63]
    On the basis of the entirety of the explanation above, I find that Mr Ogden has the attribute of ‘impairment’.

Does Mr Ogden have the attribute of ‘age’?  

  1. [64]
    It is not in dispute between the parties that Mr Ogden has the attribute of ‘age’.

Was Mr Ogden treated, or proposed to be treated, less favourably than another person without the attribute(s) of ‘impairment’ and ‘age’, in circumstances that are the same or not materially different?

  1. [65]
    I have found that Mr Ogden has the attributes of both ‘impairment’ and ‘age’.  
  1. [66]
    Under s 10 of the Act, Mr Ogden is next required to identify an appropriate real or hypothetical comparator without the attribute(s) that he was treated ‘less favourably than’ in circumstances that are ‘the same or not materially different’.
  1. [67]
    There are three aspects inherent in this mandatory requirement: 
  • Consideration of circumstances that are ‘the same or not materially different’; 
  • The matter of an appropriate comparator; and
  • The ‘less favourable treatment’ that is alleged.

Consideration of the circumstances 

  1. [68]
    In considering ‘circumstances that are the same or not materially different’, it has been said that: [19]

…the test for direct discrimination requires a comparison with a person without the particular disability (or ‘attribute’ more broadly in this case) but otherwise in the same position in all material respects as the complainant.

  1. [69]
    Either a real or hypothetical comparator may be used in judging whether or not the ‘less favourable’ treatment has occurred.

Identification of an appropriate comparator

  1. [70]
    Mr Ogden asserts that “other employees in not materially different circumstances were treated more favourably than the Complainant.”[20] In saying this, two real comparators were proffered.
  1. Complainant asserts that Ms Denise Masiecka is a real comparator
  1. [71]
    Ms Denise Masiecka is named as the real comparator to be used in making the Complainant’s case.  She was also a cleaner at the Club, a long term employee, and a mature age person with a medical condition requiring time off work for surgery on two separate occasions, before making a decision to resign her position. 
  2. [72]
    Whilst the Complainant’s submission does not assert that Ms Masiecka has the same two attributes of ‘age’ and ‘impairment’ as Mr Ogden (notwithstanding similarities are described), the comparison is drawn by way of Mr Ogden’s contention that he was treated less favourably than Ms Masiecka in circumstances that are the same or not materially different: [21]

It is submitted that a very different approach and very different arrangements were made for Ms Masiecka than the ordeal experienced by the Complainant.

  1. [73]
    Insufficient evidence was presented at Hearing as to whether or not Ms Masiecka had the same two attributes of ‘age’ and ‘impairment’ as Mr Ogden.  The described scenario of a mature age person with a persistent illness,[22] necessitating time off work and that ultimately led to her resignation may give the appearance of an impairment ordinarily.  Whilst Mr Ogden submitted there was no suggestion that Mr Miller told Ms Masiecka that she should go on the pension or that she should be offered cash-in-hand cleaning work elsewhere,[23] that is not the relevant consideration in identifying the appropriate comparator.  The question is whether she possessed the attributes of ‘age’ and ‘impairment’.  On the material before me, it appears she may possess both attributes.  As she was not called as a witness in this matter, I simply do not know and cannot proceed with the required confidence that Ms Masiecka is an appropriate comparator.
  1. [74]
    A curiosity could arise in the naming of this particular ‘real comparator’ in the Complainant’s case.  If another person, with the same attributes, did not receive discriminatory treatment by the Club, it may in fact serve to undermine rather than support Mr Ogden’s claims that he was discriminated against on the basis of those same attributes.
  1. Complainant asserts that a group of food and beverage staff are also real comparators
  1. [75]
    In the latter half of 2017, a restructure of the Food and Beverage department was undertaken, following a staff consultation process.  The Club asserts this was embarked on as a cost saving measure, culminating in the employment of a full time Level 7 Manager to avoid the payment of penalty rates[24] and reduce casual hours.[25]
  1. [76]
    This group of staff are also named as a real comparator to be used in making the Complainant’s case.  
  1. [77]
    Although Mr Ogden asserts that the restructure of the Food and Beverage department and the restructure of the Cleaning and Maintenance functions constitutes ‘circumstances that are the same or not materially different’, I am unconvinced for the reasons that follow.  
  1. [78]
    Firstly, there is no evidence before me that the group of Food and Beverage staff did not contain one or more person(s) with the attribute of either ‘impairment’ or ‘age’ or both.  I note the statement contained in the Complainant’s closing submission that the “…Food and Beverage staff employed by the First Respondent, all of whom did not have attributes of age and impairment…”. [26] I cannot simply rely on that statement in the absence of either oral or documentary supporting evidence to that effect.
  1. [79]
    This is particularly true given the definition of ‘impairment’ includes conditions that do not currently, but had previously, existed.[27]  Quite simply, such assertion is far beyond what Mr Ogden could reasonably know.
  1. [80]
    Secondly, the circumstances differed.  One pertained to a ‘group’ of staff where the employment relationship was continuing, there was an option to apply for the new permanent Manager role and the ‘group’ were readily accessible on site for the consultation conversations.  The other related to an ‘individual’ where a decision had been taken to outsource the cleaning function entirely, there would be no ongoing employment relationship and in circumstances where that person was absent from the workplace for an extended period of leave with a severe virus. 
  1. [81]
    The Respondents also suggest that the Act requires comparison between Mr Ogden and a person without the two attributes, noting that a ‘group’ is not an ‘individual’ for the purposes of the comparison to be made.[28]
  1. [82]
    I am not satisfied that either of the two real comparators suggested by Mr Ogden are appropriate.  However, this is not fatal to Mr Ogden’s ability to make his case.
  1. Respondent asserts that a hypothetical comparator should be used
  1. [83]
    The Respondents alternatively posit that a hypothetical comparator should be used and, in the absence of an appropriate real comparator, my consideration will proceed on that basis.
  1. [84]
    The hypothetical comparator is another employee of the Club, working in the Cleaning and Maintenance department, without the attributes of ‘impairment’ and ‘age’.  The circumstances that are the same, or not materially different, are that the person is absent from the workplace on an extended period of personal leave.[29]
  1. [85]
    It is significant to note that the reason for Mr Ogden’s absence from the workplace on personal leave was his illness with a severe virus.  While Mr Ogden’s shoulder injury was the claimed ‘impairment’ for the purposes of this Hearing – it was not the reason for his absence.
  1. [86]
    This Decision flows from the comparison of Mr Ogden’s treatment with the hypothetical comparator in the circumstances described above.

The ‘less favourable’ treatment alleged

  1. [87]
    Haines v Leves described the test such that:[30]

The words “less favourably” … requires a comparison of the treatment in the actual and in an hypothesised case… A “detriment” concept of discrimination has hitherto been adopted… The motives, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected. 

  1. [88]
    In Mr Ogden’s closing submissions, he describes the ‘less favourable treatment’ as:[31]
  • Mr Miller’s suggestion that he go on the pension;
  • Mr Miller’s offer of occasional cash-in-hand cleaning work at the Pine Rivers AFL Club;
  • The actual redundancy of Mr Ogden’s position at the Club;
  • The “negative and non-consultative way” in which Mr Lowen managed the redundancy process; and
  • The “dismissive and unsupportive” demeanour of Mr Lowen towards him – both at the time of his workplace injury and in the subsequent period of undertaking light duties.
  1. [89]
    In the Respondents’ closing submissions, they point to the expansion of the number of allegations made from two to five.  
  1. [90]
    Specifically, they note that Mr Ogden’s Statement of Facts and Contentions identified just two issues.  That is, Mr Miller’s suggestion that he go on the pension and the fact of Mr Ogden’s position being made redundant.  Notwithstanding that, the Respondents say an additional three allegations have belatedly emerged.  That is, Mr Miller’s offer of occasional cash-in-hand cleaning work; Mr Lowen’s attitude towards him following his workplace injury; and the way Mr Lowen managed the redundancy process.[32]
  1. [91]
    With respect to the burgeoning list of complaints, the Respondents assert that it should rather be confined to only the original two matters so contained in Mr Ogden’s Statement of Facts and Contentions.  Citing President Martin J in Carlton v Blackwood,[33] the Respondents argue that not to do so places them at the distinct disadvantage of having to “…contend with the shifting sands of an undefined argument”.[34]
  1. [92]
    The Respondents certainly have a point that the pleadings are defective.  They are very broad in that they do not clearly specify the nature of the less favourable treatment alleged.  However, it is also true that all five allegations were ventilated during Mr Ogden’s Evidence-in-Chief.  Before the Respondents opened their case, they were aware of the five allegations and these were put to the Respondents’ witnesses during the course of the Hearing.  
  1. [93]
    For those reasons, this Decision considers all five ‘less favourable treatment’ allegations made by Mr Ogden.  
  1. [94]
    Determining those allegations requires me to first establish the facts of the treatment received.[35] Put another way, has Mr Ogden proved - on the balance of probabilities - that the five allegations actually occurred?  If so proven, how would the Respondent(s) have treated the hypothetical comparator in the particular circumstances?  Further, if it was found that the Respondent(s) treated Mr Ogden differently to how they would have treated the hypothetical comparator, the question that follows is whether the different treatment amounted to ‘less favourable’ treatment.
  1. Did Mr Miller suggest that Mr Ogden “should go on the pension”?
  1. [95]
    Mr Miller’s testimony acknowledges that he did so on two occasions.  Firstly, in the context of Mr Ogden commenting on the high cost of his diabetes management diet and supplements and then again when Mr Ogden made reference to his physical ability to perform the full range of tasks.[36]  Mr Ogden confirms the context of the exchange in his evidence, saying:[37]

Well, I actually – I think I specified I’d had pains in my back but I never mentioned about pensions or nothing.  He brought it up himself.

  1. [96]
    Having found that this allegation occurred, the question now is whether or not Mr Miller would have made the same comments to the hypothetical comparator, so described at paragraph [84] above.  Eligibility for the pension inherently relies on attaining a certain age or having a disability.  As such, it would be quite odd for Mr Miller to have made the comment to the hypothetical comparator – and I find that he would not have done so.
  1. [97]
    Having found that different treatment would have likely applied to the hypothetical comparator, I now turn to whether or not this amounts to ‘less favourable’ treatment of Mr Ogden.  Or, did the different treatment result in a detriment to Mr Ogden?
  1. [98]
    Whilst it is later asserted that Mr Miller’s comments caused detriment to Mr Ogden, in that he took offence to them and felt “…hounded out of his workplace…”,[38] this claim was not supported by the tone of Mr Ogden’s evidence.[39]

Mr Ogden

He said “you can go on the pension”, you know.

Mr Watters

The pension?

Mr Ogden

And he just looked it up and he told me what you get and all this type of stuff.

Mr Watters

Do you remember what it was?

Mr Ogden

No, I don’t. No. I didn’t take any notice because I just – I just shoved it over my head and I forget about – forgot about it.

  1. [99]
    In determining that Mr Miller’s suggestion did not cause Mr Ogden detriment (or constituted ‘less favourable’ treatment), I have taken account of all the material before me – including both Mr Ogden’s and Mr Miller’s oral evidence regarding the context, intent and receipt of the comments made.  To be made aware of one’s entitlements in such a manner was not ‘less favourable’ treatment.
  1. [100]
    I believe Mr Miller’s reasons for appraising Mr Ogden of his potential entitlement were made genuinely out of concern for his colleague’s welfare. 
  1. [101]
    On the balance of probabilities, Mr Ogden was more likely to have been disinterested in the information conveyed about the pension, than genuinely offended by it. 
  1. [102]
    Whilst that treatment may be different to the hypothetical comparator, I do not find it is ‘less favourable’.

b)  Did Mr Miller offer Mr Ogden occasional cash-in-hand cleaning work at the Pine Rivers AFL Club?

  1. [103]
    Mr Miller’s testimony is that he made this offer to Mr Ogden, who seemed interested in the extra work at the time: [40]

Mr Watters

…So I’m interested in when that conversation took place, and under what circumstances, how did that come about; do you recall when that occurred? 

Mr Miller

Yes, I do, pretty much… So obviously needed someone to kind of clean the club after our functions which are probably eight – we have about eight home games a year – and maybe five of them we have a big function afterwards so we were looking for a cleaner to do a couple of hours on, like, a Sunday or Monday whenever it was suitable.  So I approached Barry, being the only cleaner I kind of knew, and someone that could probably do with a bit of extra cash.  I asked him if he was interested.  He seemed pretty interested, and then, kind of, that would have been maybe November, and then either late December, really, January, he kind of asked me if he was still needed.  I said, yes, we’ll just need to be kind of later in the year, kind of, May, June – sorry March, April we start so yes, that’s kind of where that came from.

  1. [104]
    Mr Ogden’s evidence was instead simply that he told Mr Miller “No.  I can’t do that and I’ll get in trouble.”[41]  
  1. [105]
    I prefer the evidence of Mr Miller to Mr Ogden on this point.  I do so on the basis of Mr Miller’s more detailed recall of both the statement and circumstances, together with the inherent reasonableness of Mr Miller’s account compared with the less likely scenario that hardworking Mr Ogden would have declined the opportunity to make additional money occasionally, especially given his earlier remarks to Mr Miller about the expense of his special diet and supplements.
  1. [106]
    Having found that this allegation occurred, the question now is whether or not Mr Miller would have made the same comments to the hypothetical comparator, so described at paragraph [84] above.  
  1. [107]
    As I have accepted Mr Miller’s account of events - that he offered Mr Ogden occasional cleaning work at the Pine Rivers AFL Club, as he was the only cleaner he knew and he thought he could do with the extra money – he is more likely than not to have made the same offer to the hypothetical comparator.  
  1. [108]
    The timing of Mr Miller’s offer of the extra work is important in that Mr Ogden had not yet been absent from the workplace for an extended period of personal leave due to his severe virus.
  1. [109]
    For the reasons explained above, I find that Mr Ogden has not suffered a detriment in circumstances where he was offered the opportunity to do occasional extra work for some extra money.

 

 c)  Was Mr Ogden’s position at the Club made redundant?

  1. [110]
    Correspondence from Mr Lowen dated 21 July 2018 advised Mr Ogden that his position would be made redundant and that his last day at the Club would be 31 July 2018.[42] The posted letter was received by Mr Ogden at his home on 26 July 2018. 
  1. [111]
    Having found that this allegation occurred, the question now is whether or not the Respondents would have meted out this decision to the hypothetical comparator, so described at paragraph [84] above.  
  1. [112]
    Although there are three Respondents in this proceeding, I accept Mr Miller’s unequivocal testimony that he was not party to the decision to make Mr Ogden’s position redundant:[43]

Ms Milevskiy

Yes.  Did you have any role in relation to the restructions that took place within the club?

Mr Miller

No

Ms Milevskiy

Okay.  And did you have any involvement in the restructure of the cleaning and maintenance department?

Mr Miller

No

  1. [113]
    This finding refines my consideration to now be ‘whether or not the Club and Mr Lowen would have meted out this decision to the hypothetical comparator, so described at paragraph [84] above’.  
  1. [114]
    Against the backdrop of two other department-wide staffing restructures at the Club, I find it quite probable that the hypothetical comparator would have been made redundant too.
  1. [115]
    Evidence of both the ‘Food and Beverage’ staffing restructure (finalised in December 2017)[44] combined with the outsourcing of ‘Functions and Catering’ to Portabella Restaurant (finalised in the first half of 2018)[45] demonstrates the Club’s and Mr Lowen’s predilection to razor staffing costs.  
  1. [116]
    The decision to outsource the entirety of ‘Functions and Catering’ to “…any interested third parties who might want to take on a contract…”[46] gave a recent experience of mitigating the financial losses to the Club through that mechanism. [47] 
  1. [117]
    Mr Lowen’s testimony also elaborated that at the time of Ms Masiecka’s absence from the workplace due to illness, InstaClean was hired to fill in on the days that she otherwise would have worked.  When she formally resigned her position, InstaClean replaced her.  Mr Lowen had formed a commercial relationship with InstaClean.  He believed the engagement of an external provider to do this work had resulted in some savings, compared to the costs of a directly employed cleaner.[48]  No leap of faith is required to see how it came to be that Mr Ogden’s work was also eventually outsourced to InstaClean.
  1. [118]
    The fact that both these restructures occurred, ahead of making Mr Ogden’s position redundant on 31 July 2018, weighs firmly against the argument that he suffered ‘less favourable’ treatment on the grounds of protected attributes.
  1. [119]
    The timing of the cost cutting spree almost immediately after the Club obtained a bank loan for the additional land purchase on 31 October 2017, gives further weight to reduced financial circumstances being the true driver for the various restructure decisions taken in such short order.  
  1. [120]
    Even the evidence adduced as to the $60,000 cost of major refurbishment of the Reception and Bar areas in 2019 does not mean money was not tight at the Club.  It just means that such expenditure was a matter of priorities – servicing the loan and refitting the main patron areas were prioritised above the staff.  
  1. [121]
    Mr Ogden’s alternative view was that the ‘rubbery figures’ relied upon to quantify the potential savings to the Club - and with that a presumed lack of due diligence discharged by the Board and Mr Lowen in taking the decision - must mean that this was not the real reason for the redundancy.  
  1. [122]
    Whatever challenge may be levelled regarding any allegation of flawed quantification of potential savings to be made or appropriate methodology of calculations arrived at, the core point is that the Club and Mr Lowen had form for pursuing staffing restructures in the belief that it would result in significant savings.  
  1. [123]
    After 26 years of “…loyal service and commitment…”[49]  to the Club, Mr Ogden’s employment was nonetheless abruptly dispensed with in a single page termination letter.  Whilst I have found that the Club and Mr Lowen did not discriminate against Mr Ogden under the Act by making his position redundant, the callousness of the way the decision was taken and imparted is certainly worthy of some self-reflection by Mr Lowen and the Club.
  1. Did Mr Lowen manage the redundancy process in a “negative and nonconsultative way”?
  1. [124]
    A finding of fact on this allegation first requires exploration of the basic consultation requirements for a redundancy, compared with what actually happened to Mr Ogden.
  1. [125]
    The meaning of genuine redundancy that applies to a national system employee like Mr Ogden is contained in section 389 of the Fair Work Act 2009 (Cth).[50]  This provision includes a requirement for the employer to comply with any obligation in a modern award or enterprise agreement to consult about the redundancy.  
  1. [126]
    To discharge this requirement, meaningful consultation is required of employers ahead of any predetermined decision to make an employee redundant.  It is not simply for appearances after a decision has been fixed.[51] This inherently requires the employer to discuss proposed changes with, and to genuinely consult, affected employees before the definite determination has been made.  Commissioner Roe quoted an earlier Full Bench Decision[52] in these terms:[53]

As the Privy Council said in Port Louis Corporation v Attorney General of Mauritius:

The requirement of consultation is never to be treated perfunctorily or as a mere formality.

In the context of a case concerning the statutory obligation to consult in relation to decisions regarding variations in public transport routes Sachs LJ observed:

Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal.  I start accordingly from the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals – before the mind of the executive becomes unduly fixed.

  1. [127]
    In Tomvald v Tol Transport Pty Ltd [2017] FCA 1208, Justice Flick said:

The requirement to consult affected workers would, accordingly, not be satisfied by providing the employees with a mere opportunity to be heard; the requirement involves both extending to affected workers an opportunity to be heard and an entitlement to have their view taken into account when a decision is made.  Listening to affected workers with no intent to take the views they express into account falls short…Genuine consultation would generally take place where a process of decision-making is still at a formative stage.  But, having genuinely consulted with affected workers, the views expressed need not prevail; affected workers…have no right of veto.

  1. [128]
    In contrast to what should have happened, the following chronology outlines the redundancy process that was undertaken in Mr Ogden’s case.
  1. [129]
    On 22 June 2018, Mr Lowen emailed the Board proposing a restructure of the cleaning / maintenance work at the Club, referencing projected savings that may be achieved by outsourcing the function.  He advised that the proposal needed to be approved by a Board majority before he took the step of writing to Mr Ogden “…inviting him in for a discussion about this proposal”.[54]  In the attached restructure proposal, Mr Lowen wrote:[55]

Consequently the club will be contacting Barry Ogden to inform him of the proposal to restructure the cleaning/maintenance at Wantima country Club and inviting him to provide feedback and discussions on the matter before a final decision is made.

  1. [130]
    The first letter from Mr Lowen to Mr Ogden that advised the Club proposed to outsource the Cleaning and Maintenance function was dated 28 June 2018 (‘the First Letter’).[56] This correspondence invited Mr Ogden to a meeting on 10 July 2018 at 9 am “…to discuss and seek your feedback about the proposed restructure, any effects it may have to your employment and any measures it can take to avert or mitigate those effects.”
  1. [131]
    The First Letter was delivered to Mr Ogden’s home on 17 July 2018,[57] following his receipt of a text message from Australia Post on the same date.
  1. [132]
    Mr Lowen’s oral evidence was that he sent Mr Ogden a text message on 7 July 2018 to advise that there was a letter for him at Mitchelton Post Office.[58] Such text message was not tendered as an Exhibit at the Hearing in support of Mr Lowen’s claim.  Mr Ogden’s testimony contradicts Mr Lowen’s assertion:[59]

Mr Watters

There was no communication from Wantima with you about these letters or this proposal for claiming -?

Mr Ogden 

No.  I haven’t. No.

Mr Watters

- prior to those letters?

Mr Ogden 

No, no.

Mr Watters

There was no phone call?

Mr Ogden 

No.

Mr Watters

No text message?

Mr Ogden 

No.

Mr Watters

No one called around home and said “Oh, Barry, you need to know”?

Mr Ogden 

No.

  1. [133]
    I prefer the evidence of Mr Ogden to that of Mr Lowen on this point.  If such a text message existed, Mr Ogden would certainly have it – or, in the alternative, I would have expected Mr Lowen to have produced it.  As neither did, the most likely scenario is that it did not happen as Mr Lowen has claimed.
  1. [134]
    Having received neither the First Letter nor any text from Mr Lowen, Mr Ogden was unaware of the meeting scheduled to discuss the restructure proposal with him at the Club on 10 July 2018.  That being the case, he did not attend the meeting.
  1. [135]
    The second letter from Mr Lowen to Mr Ogden (‘the Second Letter’) was dated 11 July 2018.  This letter noted Mr Ogden’s absence at the meeting scheduled on 10 July 2018

to discuss the proposed restructure of the Cleaning and Maintenance function.  That being the case, Mr Ogden was instead invited to provide written feedback by 18 July 2018.

  1. [136]
    The Second Letter was also delivered by Australia Post to Mr Ogden’s home at on 17 July 2018. [60] 
  1. [137]
    Having received both the First and Second letters on 17 July 2018, Mr Ogden made contact with Mr Lowen that day noting that the Second Letter required him to provide any written submission on the restructure proposal by 18 July 2018 (the following day).  On that basis, Mr Lowen texted Mr Ogden to extend the deadline for any written submission until 20 July 2018.[61] Mr Ogden’s evidence was as follows: [62]

Mr Watters

So can we take it that that’s a text from your boss to you saying, “If you’ve got anything you want to tell me about this, you’ve got to do it by the 20th.” 

Is that what he’s saying?

Mr Ogden

Yeah.  I did.  Yeah.  But I said to him – I rang – I [indistinct] that I had no email address.  All I had was a mobile phone and I had no local – no standard pay phone anymore because I had to cancel it. 

  1. [138]
    Mr Ogden did not make a written submission to the Club as to why his position should not be made redundant by 20 July 2018.
  1. [139]
    The very next day, Mr Lowen again wrote to Mr Ogden stating that his position will be made redundant and his last day at the Club will be 31 July 2018 (‘the Third Letter’).[63]
  1. [140]
    The Third Letter was delivered by Australia Post to Mr Ogden’s home on 26 July 2018.
  1. [141]
    It is clear from the documentary evidence tendered that Mr Lowen and the Club knew what steps were required for genuine consultation. [64] Yet they failed to follow them.
  1. [142]
    I find that Mr Lowen and the Club did not manage the redundancy process appropriately.  This included a failure to genuinely consult with Mr Ogden about the proposed restructure, that would ultimately result in the cessation of his employment.  Mr Lowen could have reasonably been expected to know that three days was insufficient time for Mr Ogden to prepare and post a written submission that may save his job.  He knew Mr Ogden did not have access to email, that may otherwise have expedited the process of making such submission.  Mr Lowen was also aware that Mr Ogden likely lacked the capacity to write any such submission, given his extended absence from the workplace due to illness for which medical certificates had been supplied.  Add to all that, Mr Lowen himself was on holidays by the time Mr Ogden received the two letters,[65] and so was not at the Club to directly discuss the matter in person, even if Mr Ogden had been well enough to do so.
  1. [143]
    With respect to the second part of Mr Ogden’s complaint - that he was not offered to apply or compete with the external service provider - section 358 of the Fair Work Act 2009 (Cth) states:

An employer must not dismiss, or threaten to dismiss, an individual who:

(a)   is an employee of the employer; and

(b)   performs particular work for the employer;

in order to engage the individual as an independent contractor to perform the same, or substantially the same, work under a contract for services.

  1. [144]
    Quite simply, that could not have happened because it would have been unlawful.  Therefore, I do not accept that as a basis for alleging discrimination and find no wrongdoing by the Respondents occurred in that particular respect.
  1. [145]
    Having found that the first part of Mr Ogden’s allegation is substantiated, the question now is whether or not the Club and Mr Lowen would have done the same thing to the hypothetical comparator (so described at paragraph [84] above).  
  1. [146]
    In short, I have decided that their conduct would have been no different to the hypothetical comparator, without the protected attributes, for the reasons that follow.
  1. [147]
    Emboldened by two prior staff restructures, also undertaken quite recently and seemingly without incident, it is likely that the Club and Mr Lowen saw no need for delay in also outsourcing Mr Ogden’s duties.
  1. [148]
    Where a decision had been taken to outsource this function entirely, there would be no ongoing employment relationship to mind.  I believe it is likely that the Club and Mr Lowen would act the same way towards the hypothetical comparator.  The haste with which Mr Lowen expedited the redundancy, the conduct of the process at arms’ length (by correspondence and text message), together with the timing of Mr Lowen’s absence on holidays when the two letters were received all persuades me to conclude that these were the actions of a person keen to avoid the difficult conversation in these circumstances.  
  1. [149]
    While the actions of the Club and Mr Lowen were not considerate, sensitive or even fairminded, I nonetheless cannot find that they were discriminatory.
  1. Was Mr Lowen’s demeanour “dismissive and unsupportive” towards Mr Ogden – both at the time of his workplace injury and in the subsequent period?
  1. [150]
    Mr Ogden contends that Mr Lowen’s demeanour was dismissive and unsupportive, with respect to his workplace injury and subsequent viral illness.  His closing submission claimed that Mr Lowen:[66]

…was disinterested in his (Mr Ogden’s) injuries and / or welfare, largely ignoring him during his recovery period, up until his return to full duties, at which time, he fell ill with a virus, and the Second Respondent (Mr Lowen) abused him, demanding to know who would then do the cleaning…

  1. [151]
    My consideration of these allegations includes some exploration of the differences between the assertions contained in the written closing submissions and the testimony of Mr Ogden and Mr Lowen.  In preferring the witnesses’ oral evidence, I observe that the content of the closing submissions are signed by the parties’ representatives and are not sworn evidence.

Mr Lowen’s dismissive and unsupportive demeanour towards Mr Ogden at the time of his workplace injury and during his recovery period

  1. [152]
    With respect to his exchange with Mr Lowen immediately following his workplace injury, Mr Ogden’s testimony was that:[67]

Mr Watters

So talk us through that for a minute.  Like, what – you went – you knocked on the door or you went to the office or you said “Hey, Andy, I’ve had an accident”?  

Mr Ogden

Probably just –

Mr Watters

Just tell us what happened?

Mr Ogden

- knocked on the door.  And I said “Andy, I just thought I’d let you know that I’ve had an incident and – and that I tripped over a mat outside which was stupid of me.  It was my fault.”  And I said, “I just thought I would fill out an incident report and give it to you.”  And – and that was it, you know.

Mr Watters

What did he say?

Mr Ogden

He didn’t seem worried at all, you know.

Mr Watters

Well, did he say anything?

Mr Ogden

No, not really. No.

Mr Watters

Well, hang on – so you handed him the incident report?

Mr Ogden

I can’t remember.  But – no, but I think I did – yes.  I think I put it on his desk.

Mr Watters

Okay.  Did you show him your injuries – your knees?

Mr Ogden

Yes.

Mr Watters

Well, talk us through that?

Mr Ogden

I showed him the injury.  I said “Look what I done to my knees.”  And that was it.  And, more or less, just walked out of the office then, you know.

Mr Watters

And you say there was no conversation -?

Mr Ogden

Nothing.

Mr Watters

- further?

Mr Ogden

Not much, no.

Mr Watters

I want to – just – I just want to be clear about this.  He didn’t say to you, “Barry, that’s terrible.  Give us a look at your knees.  Do you need to go home?”  

Mr Ogden

No.  No, he didn’t say that.  His attitude was never like that, at all, you know.

Mr Watters

Did he say to you, “Barry, I’m worried about that.  You might need to see the doctor”?

Mr Ogden

No, not – I couldn’t remember, you know.

Commissioner

Just be – just be careful not to lead, Mr Watters.

  1. [153]
    In contrast, Mr Lowen’s evidence was that:[68]

Mr Watters

You heard his evidence today, his evidence-in-chief, that when he – after his – or on the date of his injury – workplace injury, 30 December 2017, he reported to you in the office and handed you a workplace incident form.  Do you agree with that?  Is that right?

Mr Lowen

No.  He – he had an – he had an accident.  From what – again, it’s a long time ago.  But from what I can remember, he had an incident, he come and told me about – that he hurt his knees.

Mr Watters

Yes.  Did he show you his knees?

Mr Lowen

I can’t – can’t remember.  But he probably did because I said – I – I – I told him to go home, all right, and he – he didn’t go home.  He refused to go home and I told him to do an incident report.

Mr Watters

So he didn’t come to you with the incident report?

Mr Lowen

No.  I asked him to fill one out.  He come to me, he told me about his knees, that he had an accident – incident and I said “you should go home” and he didn’t – and he refused to go home and he – and I said “you need to fill out an incident report.”

Mr Watters

And you heard his evidence this morning, he – again, he didn’t use this word “disinterested” but he – his evidence is, well, you weren’t interested in what his injuries were?

Mr Lowen

Well, that’s his opinion but that’s not right because I was.

  1. [154]
    The specificity of Mr Lowen’s recount of the conversation that day leads me to prefer that evidence.  
  1. [155]
    I am not persuaded by the elements of Mr Ogden’s oral testimony extracted above where his statement begins with “Probably just -” nor the commentary preceded by an acknowledgement that “I can’t remember” or similar terms, even in spite of quite directive questioning by his representative. 
  1. [156]
    Clearly, the two witnesses’ accounts differ in terms of who it was that initiated the completion of the incident report, but that is not critical to the finding on this particular allegation.  
  1. [157]
    The inference Mr Ogden drew from his impression that Mr Lowen “…didn’t seem worried at all, you know” has been that he did not care about his injuries.  However, it appears more likely to me that Mr Lowen was not in any way perturbed by his completion of an incident report, nor any potential WorkCover claim that may follow, and adopted a matter-of-fact approach to the report being made to him.  
  1. [158]
    It is uncontentious that Mr Lowen’s personal demeanour was not given to effusive displays.  However, that is not the same as saying one is “dismissive and unsupportive”, especially if they are known to be the same with everyone.  
  1. [159]
    With respect to the challenge that he was disinterested in Mr Ogden’s injury, Mr Lowen bluntly replied “Well, that’s his opinion but that’s not right because I was.”  
  1. [160]
    On the evidence I have before me, I cannot be satisfied that this aspect of Mr Ogden’s allegation is true.  
  1. [161]
    The second part of this allegation was that Mr Lowen’s demeanour was also “dismissive and unsupportive” throughout the period of Mr Ogden’s recovery from his workplace injury.
  1. [162]
    The complaints aired by Mr Ogden with respect to this is rather limited to his account of being asked to sign a letter of acceptance of continuation of employment with the Club (the Letter of Acceptance) with an attached Position Description by Mr Lowen on 2 January 2018 and the Club’s failure to inquire about his wellbeing thereafter.[69]
  1. [163]
    When Mr Ogden was shown Exhibit 4 and asked about it, he gave evidence including:

Mr Ogden:

I wasn’t very well that day.  I was sick.  Yeah.  When I’d actually signed it because I was a bit upset that he specified to me that “if you don’t sign it you’ll be made re-redundant.”

Mr Watters

Who specified to you?

Mr Ogden

----

Andy Lowen.

Mr Watters

And he said to you, what?

Mr Ogden

He asked me – he said to me “there’s – I got a document here you’ve got to sign.”

Mr Watters

Yeah?

Mr Ogden

You know.

Mr Watters

Was this the document?

Mr Ogden

That’s the document.  Yeah.

Mr Watters

Yeah.  And what else was said?  Was anything else said?

Mr Ogden

No.  He just said “just sign it when you’re here and then give it back to me”, you know.

Mr Watters

Okay.  So did you read it?

Mr Ogden

----

I did.  Yeah.

Mr Watters

…And so you signed it and what happened to the document then?

Mr Ogden

Well, I didn’t hear back for a fair while and then he come up to me one day and told me that – he says “you don’t have a criminal record or you’re a”, you know, and that was it, you know.  It’s “you don’t have a criminal record or you’ve – and you live alone by yourself.”  I just thought it was a bit odd saying that, you know – you know.

  1. [164]
    Mr Ogden clearly wondered why he was being pursued by Mr Lowen with left-field inquiries as to whether he had a criminal record and the current status of his living arrangements.  As Mr Ogden articulated, his perspective was that he found Mr Lowen’s line of questioning all “a bit odd”.  
  1. [165]
    The Letter of Acceptance signed by Mr Ogden reveals the probable reason for Mr Lowen’s questions was in reference to the Terms and Conditions clause 2.2 permitting the Club to conduct a police check on employees.  It appears to me that Mr Lowen may have been trying to establish whether or not to enact that provision in Mr Ogden’s case.  In hindsight, a degree of confusion and disquiet may have been avoided had these reasons simply been shared with Mr Ogden.  
  1. [166]
    With respect to the Club’s failure to inquire after his health, following his workplace injury, Mr Ogden gave the following evidence: [70]

Mr Watters

What about – go back to 2nd of January 2018.  So we know you go to work that day because you signed your new position description.  And then you say you go to the doctors and a doctor’s certificate is issued; right?  Did anyone

ring you that week, from Wantima, and say “Mate, are you okay?”

Mr Ogden

Not can I – not that I can remember, no.

Mr Watters

If they had sent you a text would you remember?

Mr Ogden

I didn’t receive any texts.

Mr Watters

If they had sent you a text, you would have the text; right?

Mr Ogden

Yes, I would.

  1. [167]
    While Mr Ogden is emphatic that he received no such inquiries by text, his evidence as to whether or not anyone from the Club inquired after his health was much less definitive.  I cannot be persuaded, to the standard of proof required, that the allegation that Mr Ogden’s welfare was largely ignored during his recovery period is correct.
  1. [168]
    Neither do I find that this part of the allegation can reasonably be described as a “dismissive and unsupportive” demeanour towards Mr Ogden.

Mr Lowen’s dismissive and unsupportive demeanour towards Mr Ogden at the time when he contracted a severe virus

  1. [169]
    With respect to his exchange with Mr Lowen at the time he fell ill with a severe virus, Mr Ogden’s testimony was that:[71]

Mr Watters

And on the 8th of May you took sick with virus; right?

Mr Ogden:

That’s right.

Mr Watters

Did anyone from Wantima ring you up and say, “Hey, Barry.  You feeling okay?  Are you all right, mate?”

Mr Ogden

No.

Mr Watters

Did anyone send you a text message and say -?

Mr Ogden

No.

Mr Watters

No?

Mr Ogden

No.  But I rang Andy Lowen on the Friday when I was really crook.

Mr Watters

What – well, we will get to the date [indistinct] talking about it.  All right.  So you have returned to work.  You’re on light duties.  You fall sick with a virus. 

And no-one makes contact to check on your condition?

Mr Ogden

No.

  1. [170]
    Whilst it is later claimed in his closing submission that Mr Lowen “…abused him, demanding to know who would do the cleaning…”, Mr Ogden’s oral evidence conveyed a milder tone: [72]

Mr Watters

And then, when you were on sick leave, they did not know why you were on sick leave; is that correct?

Mr Ogden:

They knew – I think they knew why I was – why I was on sick leave because it was specified in the – in the doctor’s certificate, you know.

Mr Watters

That you were unwell?

Mr Ogden

Yeah.

Mr Watters

Yeah.  But not a diagnosis?

Mr Ogden

No, no.  But I faxed a – I rang Andy Lowen one Friday morning and specified I had a wog.  I was very, very sick.

Mr Watters

Okay?

Mr Ogden

And all he wanted to know is who’s doing the work the next day.

Mr Watters

Okay?

Mr Ogden

I was supposed to start on the Saturday, but I rang him on Friday afternoon.

  1. [171]
    In re-examination by his representative, Mr Ogden elaborates:[73]

Mr Ogden

I rang Andy Lowen on a Friday.

Mr Watters

Right?

Mr Ogden:

And I was supposed to start on the Saturday.

Mr Watters

Right.  And what did you tell him?

Mr Ogden

I told him I was very, very sick.  I said I was coughing – because of the coughing o the phone [indistinct]

Mr Watters

Yep?

Mr Ogden

And he like – he was – wasn’t very, well, happy about that, you know.  He just wanted to know who was going to come to work to do the work on Saturday.

Mr Watters

Well, that – how do you know he wasn’t happy?  What – something happened on the phone that indicted that to you.  What was it?

Mr Ogden

Yeah, it did.  Just – it was just – he just wasn’t very nice to me about it and that’s all.

Mr Watters

Well, do you want to tell us how – what was said?

Mr Ogden

He just more or less said – I said, you know, he said “Why can’t you come to work? And I told him I was crook [indistinct] and I said I just want to get – I can’t come into work because I was [indistinct] coughing all the time and I couldn’t stop.

Mr Watters

Okay.  And you say he wanted – he had a discussion about who was going to do the job or where your replacement was?

Mr Ogden

Yeah.  He just wanted to know who was going to do the job because – and what work I had to do.

Mr Watters

All right?

Mr Ogden

Because Saturday – you see, Saturday, is a busy day.

Mr Watters

Yeah?

Mr Ogden 

Because you get a lot of members in, you know.

  1. [172]
    It is quite a leap to cast Mr Lowen’s reported response to Mr Ogden as ‘abusive’ in the context of that conversation.  As I have already stated, the sworn evidence is always elevated above the closing submissions signed by representatives - and this particular commentary has rather over-egged the pudding.
  1. [173]
    Mr Lowen’s recall of the events was markedly different:[74]

Mr Lowen

We – we were trying to ring Mr – Mr – Barry for multiple times to see when he was going to come back to work and how long he was going to be sick for.

Mr Watters

And you say he didn’t pick up and he didn’t respond?

Mr Lowen

No.

Mr Watters

At all?

Mr Lowen

No.  He didn’t – I didn’t speak to Barry until – the 17th is when I actually spoke to him.  Apart from that first conversation, I think, when he first went sick when he rang and said “I’m sick”.

Mr Watters

Tell me about that?

Mr Lowen

Just that.  You know, he didn’t know – from what I can remember, he didn’t know what – what he was sick with and, you know, so he couldn’t tell us what he was sick with or when he would be back.  But then after that it – we just couldn’t – you know, time went on and we were just getting – we were just getting doctor’s certificates with – with no information on them quite regularly just saying that he – he’s unfit for work and, you know, again, you know, as time went on we were trying to get hold of Barry.  We just couldn’t.

Mr Watters

You know, don’t you, at law a medical practitioner is not required to tell you what your employee’s condition is on a medical certificate?  You know that, don’t you?

Mr Lowen

Yeah.  I understood that.  Yeah.

Mr Watters

Yes?

Mr Lowen

Yeah.

Mr Watters

A doctor can rightfully at law put on a medical certificate “you’re suffering a medical condition -?

Mr Lowen

Yeah.  Which -

Mr Watters

Or words to that effect?

Mr Lowen

Which is why we were trying to get a hold of Barry himself.

Mr Watters

Right.  Now -?

Mr Lowen

Or I was trying to get hold of Barry himself.

Mr Watters

Right.  So initially he makes contact and tells you that he’s very sick and he can’t come into work or – or if that description’s not right, you tell me what he said?

Mr Lowen

Yeah.  He said “I’m sick, I can’t come into work,” from memory.  Again, it’s a long time ago.

Mr Watters

Right.  Now, you heard his evidence-in-chief today, he says that you were – I don’t know if his – he didn’t use this word, “dismissive”, but that’s what I took from his evidence, that you weren’t interested in his welfare or his condition.  What you were interested in, “well, who the hell’s going to do your job”?

Mr Lowen

No.  That’s not right.  I was trying to phone him all the time and see how he was and see what was wrong with him, you know, but he just didn’t – he didn’t return our calls at all.

  1. [174]
    In considering the conflicting oral evidence of Mr Ogden and Mr Lowen, I find Mr Ogden’s account more believable. Given my reasoning above, I find it probable that Mr Lowen did not go out of his way to contact Mr Ogden where he most unequivocally states he did not.  
  1. [175]
    Whilst Mr Lowen states that he was “…trying to phone him all the time and see how he was…”, I do not believe that to be true.  There would be no reason for Mr Ogden to have failed to note the numerous missed calls from his Manager, particularly where he obviously feels hurt and aggrieved that no such contact was made.
  1. [176]
    Similarly, I believe Mr Ogden’s account of his telephone conversation with Mr Lowen on Friday, when he advised that he could not come into work the following day.  As previously explored, Mr Lowen was unlikely to offer an effusive expression of personal concern to any staff member.  When confronted with such a staffing issue on Friday – the day before a busy day, with a lot of members coming in – it rings true that the first order issue for Mr Lowen would be “who was going to do the job…and what work I had to do.”
  1. [177]
    Having found that this allegation occurred, the question now is whether or not Mr Lowen would have meted out the same treatment to the hypothetical comparator, so described at paragraph [84] above.  
  1. [178]
    I do not believe that Mr Lowen’s response to the hypothetical comparator would have been any different.  Mr Ogden’s own testimony is compelling on this point, that Mr Lowen’s attitude was “…never like that, at all, you know.”[75]
  1. [179]
    The fact that Mr Ogden lived alone, was a longstanding employee and had the attribute of ‘age’ were all reasons why Mr Lowen might well have been kinder to him by way of inquiries or a card in this period.  However, ‘good manners’ cannot be legislated – and the fact that he chose not to do so is not, in itself, discriminatory. 

If it is decided that a ‘less favourable’ treatment occurred as a result of Mr Ogden’s ‘impairment’ or ‘age’, was a substantial reason discriminatory?

  1. [180]
    My findings in paragraphs [95] – [179] above mean there is now no requirement to determine this question.

Conclusion

  1. [181]
    As a witness, Mr Ogden presented as an obliging worker whose personal story spoke to qualities of resilience, duty and work ethic.  The type of man most would consider themselves fortunate to have in their employ.
  1. [182]
    Despite what Mr Ogden believed to be true, critical elements of his complaint were not borne out by the evidence.  I find that he was not treated less favourably, on the basis of an attribute, than the hypothetical comparator.  
  1. [183]
    These are the mandatory tests that must be met under the Act for successfully bringing a claim of discrimination.  Electing to run this case as an anti-discrimination matter has predetermined the criteria under that Act that must be met in order for Mr Ogden to succeed.  There is no discretion for a Commissioner to apply a different standard in this type of matter. 
  1. [184]
    But my Decision should not be entirely celebrated by the Club and Mr Lowen.
  1. [185]
    On the evidence before me, the Club has determined to rely on a brief proposal outlining some potential savings to be made by hastily outsourcing work diligently performed by Mr Ogden for 26 years.  In doing so, scant regard has been paid to the discharge of their clear obligations to genuinely consult with Mr Ogden about the Club’s proposal to make his position redundant.  
  1. [186]
    Mr Ogden has been unable to prove, on the balance of probabilities, that the Respondents’ actions were discriminatory.  This is primarily due to the recent track record of also restructuring and outsourcing the work of other employees.
  1. [187]
    The complaint is dismissed.

Costs

  1. [188]
    The Respondents’ have indicated their intention to seek a costs order against Mr Ogden.[76] However, I am not minded to entertain such application for costs in this matter.  
  1. [189]
    My Decision is consistent with the relevant legislative provisions.  Section 2 of Schedule 2 of the Industrial Relations Act 2016 (Qld) provides that, for proceedings brought under the Anti-Discrimination Act 1991 (Qld), the default position is for each party to bear its own costs.  
  1. [190]
    A departure from this practice would only occur in circumstances where “the interests of justice” would require an order for costs to be made.[77]  Section 4 of Schedule 2 lists circumstances that may inform any decision as to whether an order for costs may be made. Having considered the relevant legislative provisions, together with the circumstances of this case, I find no compelling reason to disturb the usual practice so prescribed.
  1. [191]
    Each party is to bear their own costs in the matter.
  1. [192]
    I order accordingly.

Orders:

  1. The complaint is dismissed.
  2. Each party is to bear their own costs.

I certify that the preceding 192 paragraphs are a true copy of the Reasons for Decision of Industrial Commissioner McLennan.

R.D.H. McLennan, Industrial Commissioner....................................

(Signature)

Dated: ..............

Footnotes

[1]Transcript of Proceedings T1-70, lines 4-13.

[2]Briginshaw v Briginshaw (1938) 60 CLR 336.

[3]Anti-Discrimination Act 1991 (Qld) Schedule – Dictionary, definition of ‘impairment’.

[4]Complainant’s Closing Submissions filed 30 March 2020, page 4, para 12.

[5]Complainant’s Closing Submissions filed 30 March 2020, page 6, para 15.

[6]Exhibit 2.

[7]Exhibit 3.

[8]Exhibit 6.

[9]Exhibit 5.

[10]Exhibit 6.

[11]Exhibits 5 and 6.

[12]Transcript of Proceedings T1-20, T1-21, T1-22 and T1-23.

[13]Transcript of Proceedings T1-20, line 45, T1-21, lines 1 – 15 and T1-121, lines 1-10.

[14]Transcript of Proceedings T1 -20, T1-21, T1-22 and T1-23.

[15]Curran v yourtown & Anor [2019] QIRC 059.

[16]Exhibit 2.

[17]Respondents’ Joint Closing Submissions filed 14 April 2020, page 4, paras 29, 31 and 33.

[18]Anti-Discrimination Act 1991 (Qld) Schedule – Dictionary, definition of ‘impairment’.

[19]Anti-Discrimination Act 1991 (Qld), s 10; Ronalds, C and Raper, E, ‘Discrimination Law and Practice’, The Federation Press, 2012, page 38.

[20]Complainant’s Closing Submissions filed 30 March 2020, page 5, para 15.

[21]Complainant’s Closing Submissions filed 30 March 2020, page 5, para 17.

[22]Transcript of Proceedings T1-75: Mr Lowen states Ms Masiecka is a ‘mature age person’ but ‘did not know her age’.

[23]Complainant’s Closing Submissions filed 30 March 2020, page 5, para 17

[24]Respondents’ Joint Closing Submissions filed 14 April 2020, page 8, para 65.

[25]Transcript of Proceedings T1-93, line 10.

[26]Complainant’s Closing Submissions filed 30 March 2020, page 8, para 22.

[27]Anti-Discrimination Act 1991 (Qld) Schedule – Dictionary, definition of ‘impairment’

[28]Respondents’ Joint Closing Submissions filed 14 April 2020, page 3, para 20.

[29]Fair Work Act 2009 (Cth), s 97 describes ‘personal leave’ as “the leave an employee may take when they are not fit for work due to an illness or injury affecting themselves or their immediate family member.”

[30]Haines v Leves (1987) 8 NSWLR 442 at 471.

[31]Complainant’s Closing Submissions filed 30 March 2020, page 6, para 17, 18 and 22.

[32]Respondents’ Joint Closing Submissions filed 14 April 2020, page 5, paras 40-41.

[33]Carlton v Blackwood [2017] ICQ 001 [18].

[34]Respondents’ Joint Closing Submissions filed 14 April 2020, page 5, paras 42-43.

[35]Commonwealth v Humphries (1998) 86 FCR 324 at 333B

[36]Transcript of Proceedings T2-4, lines 5 – 45 and T2-5, lines 5 – 10.

[37]Transcript of Proceedings T1-42, line 35

[38]Complainant’s Closing Submissions filed 30 March 2020, page 9, para 26.

[39]Transcript of Proceedings T1-42, line 45 and T1-43, line 5.

[40]Transcript of Proceedings T2-11, lines 20 – 35.

[41]Transcript of Proceedings T1-48, lines 25 – 30.

[42]Exhibit 11.

[43]Transcript of Proceedings T2-3, lines 10 – 15.

[44]Transcript of Proceedings T1-92, lines 30 – 45.

[45]Transcript of Proceedings T1-75, lines 10 – 45.

[46]Transcript of Proceedings T1-75, line 20.

[47]Transcript of Proceedings T1-75, line 35.

[48]Transcript of Proceedings T1-76, lines 10 – 30

[49]Exhibit 11.

[50]Exhibit 4, cl 2.1

[51]Maswan v Escada Textilvertrieb t/as Escada [2011] FWA 4239

[52]Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Pty (1998) 88 IR 202.

[53]Construction, Forestry, Mining and Energy Union and others v BHP Coal Pty Ltd (2012) 220 IR 287.

[54]Exhibit 15, page 2.

[55]Exhibit 15, page 3.

[56]Exhibit 8.

[57]Transcript of Proceedings T1 – 44, lines 15-45 and T1-45, lines 5-15

[58]Transcript of Proceedings T1 – 79, lines 35 – 45.

[59]Transcript of Proceedings T1 – 50, lines 25 – 35.

[60]Transcript of Proceedings T1 – 44, lines 15-45 and T1-45, lines 5-15.

[61]Exhibit 10, page 2.

[62]Transcript of Proceedings T1 – 51, lines 30-35.

[63]Exhibit 11

[64]Exhibit 15 and Exhibit 8.

[65]Transcript of Proceedings T1 – 50, line 40.

[66]Complainant’s Closing Submissions filed 30 March 2020, page 9, para 26.

[67]Transcript of Proceedings T1-18, lines 5 – 40.

[68]Transcript of Proceedings T1-112, lines 15-30.

[69]Exhibit 4.

[70]Transcript of Proceedings T1-44, lines 1 – 10.

[71]Transcript of Proceedings T1-43, lines 35 – 45.

[72]Transcript of Proceedings T1-59, lines 1 – 5.

[73]Transcript of Proceedings T1-60, lines 25 – 45 and T1-61, lines 1 – 10.

[74]Transcript of Proceedings T1-111, lines 20-45 and T1-112, lines 1 – 15.

[75]Transcript of Proceedings T1-18, line 35.

[76]Respondents’ Joint Closing Submissions filed 14 April 2020, page 13, para 107.

[77]Industrial Relations Act 2016 (Qld), Schedule 2, s 4(1).

Close

Editorial Notes

  • Published Case Name:

    Ogden v Wantima Country Club & Ors

  • Shortened Case Name:

    Ogden v Wantima Country Club & Ors

  • MNC:

    [2020] QIRC 83

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    11 Jun 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Carlton v Workers' Compensation Regulator [2017] ICQ 1
2 citations
Jump To
Cite 1 - [2017] ICQ 1
Cite 2 - [2017] ICQ 1
Commonwealth v Humphries (1998) 86 FCR 324
2 citations
Jump To
Cite 1 - (1998) 86 FCR 324
Cite 2 - (1998) 86 FCR 324
Construction, Forestry, Mining and Energy Union and others v BHP Coal Pty Ltd (2012) 220 IR 287
2 citations
Jump To
Cite 1 - (2012) 220 IR 287
Cite 2 - (2012) 220 IR 287
Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Pty (1998) 88 IR 202
2 citations
Jump To
Cite 1 - (1998) 88 IR 202
Cite 2 - (1998) 88 IR 202
Curran v yourtown & Anor [2019] QIRC 59
3 citations
Jump To
Cite 1 - [2019] QIRC 59
Cite 2 - [2019] QIRC 59
Cite 3 - [2019] QIRC 59
Haines v Leves (1987) 8 NSWLR 442
2 citations
Jump To
Cite 1 - (1987) 8 NSWLR 442
Cite 2 - (1987) 8 NSWLR 442
Maswan v Escada Textilvertrieb t/as Escada [2011] FWA 4239
2 citations
Jump To
Cite 1 - [2011] FWA 4239
Cite 2 - [2011] FWA 4239
Tomvald v Toll Transport Pty Ltd [2017] FCA 1208
1 citation
Jump To
Cite 1 - [2017] FCA 1208

Cases Citing

Case NameFull CitationFrequency
Grimsey v Laketrend Pty Ltd [2022] QIRC 322 citations
1

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