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  4. Whipps v The Battery Store Australia Pty Ltd - [2021] QIRC 16

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Whipps v The Battery Store Australia Pty Ltd[2021] QIRC 16

Whipps v The Battery Store Australia Pty Ltd[2021] QIRC 16

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:

Whipps v The Battery Store Australia Pty Ltd [2021] QIRC 016

Whipps, Daniel   

(Applicant)

v

The Battery Store Australia Pty Ltd

(Respondent)

CASE NO:

AD/2019/29

PROCEEDING:

Referral of complaint

DELIVERED ON:

15 January 2021

HEARD AT:

HEARING DATE:

Townsville

4 June 2020

MEMBER:

Hartigan IC

ORDER:

CATCHWORDS:

  1. The complaint is dismissed.
  1. I will hear the parties as to costs.

ANTI-DISCRIMINATION – INDUSTRIAL LAW – Direct discrimination – embarrassment – whether applicant impaired at the relevant time – whether applicant less favourably treated. 

LEGISLATION:

Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 10, s 11, s, 136, s 141, s 166, s 204, s 205, s 206, s 276

CASES:

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498

Briginshaw v Briginshaw [1938] 60 CLR 336

Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5

Curren v yourtown & Anor [2019] QIRC 059

Edoo v Minister for Health [2010] WASAT 74

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd  (1992) 110 ALR 449; [1992] HCA 66

Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; 217 CLR 92; 78 ALJR 1; 202 ALR 133

Woodforth v State of Queensland [2017] QCA 100

Wright v Callvm Vacheron Wallace Bishop & Anor [2018] QIRC 007

APPEARANCES:

Mr D Whipps, applicant in the matter

Mr K Kumar, agent for the respondent

Reasons for the Decision

Introduction 

  1. [1]
    Mr Daniel Whipps filed a complaint with the Anti-Discrimination Commission Queensland ("ADCQ") on 16 October 2018, alleging that he had been discriminated against on the basis of an impairment by his then employer, the Battery Store Australia Pty Ltd ("First Respondent") and Mr Kishor Kumar ("Mr Kumar").
  1. [2]
    On 13 November 2018, the complaint was accepted pursuant to ss 136 and 141 of the Anti-Discrimination Act 1991 (Qld) ("ADA"). The complaint was then referred to the Queensland Industrial Relations Commission ("the Tribunal") pursuant to s 166(1)(a) and s 276(2)(a) of the ADA. The referral notice,[1] relevantly states that the "complaint related to or includes work or the work-related area" and was treated as alleging "impairment discrimination in the area of work."
  1. [3]
    Mr Whipps commenced employment with the First Respondent on 30 July 2018 and was employed at a warehouse in Townsville. He was the only employee permanently situated at the warehouse in Townsville, however, he was in communication with Mr Kumar, whose position included managing the First Respondent's Townsville warehouse, on a regular basis.
  1. [4]
    The warehouse in Townsville was able to be observed by staff of the First Respondent, located in its Sydney premises, by the use of CCTV cameras.
  1. [5]
    On 2 and 3 October 2018, whilst Mr Whipps was in the office area of the warehouse, it was alleged by the Respondents that Mr Whipps was observed on CCTV footage by staff members of the First Respondent, located in Sydney. Those staff members reported that they saw Mr Whipps put his hand down the front of his shorts and appeared to masturbate.[2]
  1. [6]
    On or about 8 October 2018, Mr Kumar in the company of Mr Michael Adlard, attended at the Townsville warehouse and showed Mr Whipps photographs taken from stills of  CCTV footage on 2 and 3 October 2018.[3]
  1. [7]
    Mr Whipps denies that he was masturbating and says, that whilst he did have his hands down the front of his shorts, it was because he had a skin condition[4] which caused him to unconsciously scratch in the area of the skin condition.
  1. [8]
    Mr Whipps contends in summary, that on 8 October 2018, when Mr Kumar attended the Townsville warehouse with a copy of the photograph taken from a still of the CCTV footage, he did so with the intent to:[5]
  1. (a)
    embarrass and provoke Mr Whipps; and
  1. (b)
    try and make Mr Whipps resign because he had a rash. 
  1. [9]
    Further, Mr Whipps contends that Mr Kumar dismissed him as a result of having the rash.[6]
  1. [10]
    Mr Whipps states that the conduct of the First Respondent and Mr Kumar was discriminatory. Mr Whipps seeks compensation in the form of loss of wages in the sum of $4,400.00 and an amount of $10,000.00 for the embarrassment and suffering he and his family received as a result of Mr Kumar's actions.
  1. [11]
    The Respondents deny the allegations and Mr Kumar states that during the course of his discussion with Mr Whipps on 8 October 2018, Mr Whipps assaulted him. Mr Kumar states that Mr Whipps' employment was terminated primarily on the basis of the assault committed by Mr Whipps on Mr Kumar, together with the "masturbatory act" and for his general poor work performance.
  1. [12]
    The Respondents contend that if Mr Whipps suffered from a skin condition, which is denied by the Respondents, that Mr Whipps did not disclose the existence of such a condition in his pre-employment health examination, or to any other person at the workplace, prior to 8 October 2018.
  1. [13]
    Mr Whipps contends that he was directly discriminated against by the First and Second Respondent on the basis of his impairment.

Relevant legislative provisions 

  1. [14]
    It is unlawful for a person performing any function or exercising any power under Queensland law, to discriminate against a person on the basis of a person's impairment. One of the overarching purposes of the ADA is to promote quality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including in the workplace.[7]
  1. [15]
    It is unlawful to discriminate in the workplace, whether directly or indirectly, on the basis of certain attributes, such as a person's impairment.[8]
  1. [16]
    Section 8 of the ADA defines discrimination on the basis of an attribute, as follows:

8Meaning of discrimination on the basis of an attribute

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

  1. (a)
    a characteristic that a person with any of the attributes generally has; or
  1. (b)
    a characteristic that is often imputed to a person with any of the attributes; or
  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.

Example of paragraph (c)— If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.

  1. [17]
    The attribute which Mr Whipps relies on is s 7(h), namely "impairment". Impairment is defined in the schedule of the ADA, relevantly, as follows:[9]
  1. (a)
    the total or partial loss of the person's bodily functions, including the loss of a part of the person's body; or
  1. (b)
    the malfunction, malformation or disfigurement of a part of the person's body; or

…

  1. (d)
    a condition, illness or disease that impairs a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; or

…

  1. [18]
    Characteristic[10] is not defined by the ADA. Its ordinary meaning has been held to include:[11]

[17]  …

"Relating to, constituting, or indicating the character or peculiar quality; typical; distinctive; distinguishing feature or quality."

"A feature or quality belonging typically to a person, place, or thing and serving to identify them."

(Citations omitted)

  1. [19]
    The High Court in Lyons v The State of Queensland[12] held that the manner in which it could be said that a particular characteristic is a characteristic of a person with an attribute, to be as follows:

The Anti-Discrimination Act 1991 (Q) ("the ADA") prohibits discrimination on the basis of any of the attributes that are specified in s 7. One such attribute is "impairment". "Impairment" includes the total or partial loss of a person's bodily functions. Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of a characteristic that a person with the attribute generally possesses or a characteristic that is often imputed to a person with the attribute. The appellant's deafness is an impairment and communication by means of Auslan is a characteristic that persons who are deaf generally possess.

(Citations omitted)

  1. [20]
    Section 10 of the ADA defines the meaning of direct discrimination, in the following terms: 

10Meaning 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. (2)
    It is not necessary that the person who discriminates considers that treatment is less favourable.
  1. (3)
    The person's motive for discriminating is irrelevant.
  1. (4)
    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. (5)
    In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

(Examples omitted)[13]

  1. [21]
    Section 15 of the ADA prohibits discrimination in the area of work, as follows: 
  1. Discrimination in work area
  1. (1)
    A person must not discriminate—
  1. (a)
    in any variation of the terms of work; 
  1. (b)
    in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
  1. (c)
    in dismissing a worker; or
  1. (d)
    by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
  1. (e)
    in developing the scope or range of such a program; or
  1. (f)
    by treating a worker unfavourably in any way in connection with work.
  1. (2)
    In this section— dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.

Relevant legal principles – the standard of proof

  1. [22]
    The civil standard of proof, being on the balance of probabilities, applies to this proceeding.[14] The relevant standard to be applied to the standard of proof is that established by the High Court in Briginshaw v Briginshaw [1938] 60 CLR 336 ("Briginshaw").[15]
  1. [23]
    The Briginshaw standard does not alter the civil standard of proof, but rather, it directs  attention to the strength of the evidence required in attaining the civil standard of proof, including by focussing on the probative value of such evidence.
  1. [24]
    In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[16] the High Court stated, "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove."
  1. [25]
    I consider the nature of the matters sought to be proved in this proceeding include serious allegations that, should a finding be made, may produce serious consequences for the Respondents. Accordingly, I consider the Briginshaw standard is the appropriate standard to apply in the circumstances of this matter. 

Did Mr Whipps suffer from an impairment for the purpose of the AD Act?

  1. [26]
    Section 204 of the ADA provides that the Complainant must prove[17] that the Respondent contravened the ADA.[18] Accordingly, the onus rests with Mr Whipps to, inter alia, prove that he suffered from an impairment.
  1. [27]
    As noted above, the term impairment is defined in the Schedule of the ADA. Mr Whipps relied on subparagraph (d) of the definition, being "a condition, illness or disease that impairs a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour".
  1. [28]
    In support of this contention, Mr Whipps gave evidence and called Ms Rebecca Whipps, his former partner, and Dr Mercado, a general practitioner.
  1. [29]
    Mr Whipps described the impairment in the following terms:[19]

Yeah, well, the impairment is that I unconsciously start scratching at a rash that was – a rash, and that's what's happened in this incident, and as a result, Mr Kumar has dismissed my employment…

  1. [30]
    Mr Whipps gave evidence regarding the consequences of having the rash, as follows:[20] 

Yeah. Well, it's – it's something I've had for 20 years that causes me to scratch and itch. I don't – I don’t know what to – what to exactly say.   

  1. [31]
    Mr and Ms Whipps were married for approximately 20 years and separated in or about April 2016.
  1. [32]
    Ms Whipps gave evidence that during the course of their relationship, Mr Whipps, had a rash between his belly button and pubic bone area.[21]
  1. [33]
    Under questioning, Ms Whipps also indicated that the rash was also on Mr Whipps' "behind as well".[22] Ms Whipps' evidence was that during the course of their relationship, Mr Whipps attended several medical practitioners together with "herbalists" and naturopaths to try to resolve the rash. Her evidence was that Mr Whipps resorted to medication, over the counter remedies and natural remedies.
  1. [34]
    Ms Whipps' evidence was that Mr Whipps would try and rub the rash on the outside of his shorts, if they were in public. She says that Mr Whipps would ultimately have to excuse himself to go to the bathroom or a private area to scratch his rash properly. Mrs Whipps described the nature of the rash as follows:[23]

…It used to just sit there all the time. It didn’t matter if, like, it was cold or hot or, like, clothes on and off. It didn't matter. It just used to always be there and always itchy and [indistinct] and disgusting. And then I do remember him going to a doctor and the doctor did give him some – like, a – a cream and an oral medication. And after him taking that for about a week, I do remember the rash going away. But then shortly after that, we separated. So I couldn't even tell you if it worked or not.

  1. [35]
    Ms Whipps' evidence is that following her separation from Mr Whipps, she recalled him saying in conversation that his rash had returned.[24]
  1. [36]
    Mr Whipps also relied on the evidence of Dr Mercado, a general practitioner, who he attended in 2017. The medical attendance records indicate that Mr Whipps attended a consultation with Dr Mercado on 18 May 2017 and 3 July 2017.
  1. [37]
    The attendance record for 18 May 2017 refers to the purpose of the visit to be "rash abdominal wall (pelvic region)".
  1. [38]
    During the course of his evidence, Dr Mercado explained that this meant "[t]he abdominal wall is like the stomach, and the pelvic region is between the belly button and the pelvic bone, which is a firm bone right between the legs over there. So that's where the rash was."[25]
  1. [39]
    It was not put to the doctor by Mr Whipps that his rash was also located in any other region. The doctor confirmed that Mr Whipps' rash would have been itchy, although, his records did not record that Mr Whipps had complained of it as being itchy or that he had been scratching it.[26]
  1. [40]
    On that occasion, Dr Mercado prescribed Novasone, a corticosteroid ointment used for conditions such as dermatitis or a skin irritation. He indicated that Mr Whipps was to apply the ointment in order to address the rash, get the inflammation and itch down for as long as necessary.
  1. [41]
    Mr Whipps next attended Dr Mercado on 3 July 2017, for the purpose of applying for a taxi driver licence. Dr Mercado did not recall any discussion of Mr Whipps' rash in the second consultation and there is no record in the attendance notes as to any discussion with Mr Whipps' about the rash.
  1. [42]
    The Respondents contend that at the time that Mr Whipps was employed by the First Respondent, he was not suffering from the rash. In this regard, the Respondents rely on a pre-employment medical examination which consisted of a questionnaire completed by Mr Whipps and a medical examination conducted on 31 July 2018. The pre-employment medical examination was conducted by Dr David Wilkie, at Kinnect. Dr Wilkie was not called as a witness in the proceeding but his report was tendered into evidence.[27]
  1. [43]
    The pre-employment medical examination required Mr Whipps to complete a form by providing information in relation to his health. Under the heading "medical history – applicant to complete", Mr Whipps indicated on the form that he did not have any skin conditions including skin cancers and/or skin diseases (e.g. psoriasis, dermatitis, eczema) when he applied for the position. Mr Whipps accepted under cross-examination[28] that he did not state that he had the rash when he completed the form.
  1. [44]
    Further, Dr Wilkie conducted a physical examination including an abdomen assessment, which required an assessment as to whether there were any abdominal scars, abdominal masses or hernias present. Dr Wilkie indicated an absence of these matters arising during his examination of Mr Whipps. Further, Dr Wilkie was required to undertake a skin assessment of Mr Whipps, including determining the presence of any eczema, dermatitis or allergy; scars; skin legions; psoriasis or any other abnormalities.
  1. [45]
    Dr Wilkie indicated, that, but for the presence of moles or other abnormalities, each of those skin conditions were absent. In the examiner's comments, Dr Wilkie noted "moles and freckles present on body, no irregularities seen, skin fair, sun damaged to exposed areas, especially back of neck."[29]
  1. [46]
    I accept on the evidence that Mr Whipps has had a history whereby he suffered from a rash in the area between his abdominal wall and pubic bone. The difficulty for Mr Whipps is that there is no evidence, of probative value, that establishes that he was suffering from the rash on 2 and 3 October 2018. The evidence of Ms Whipps is that Mr Whipps' rash went away after a cream and taking oral medical, although, she recalls Mr Whipps stating that the rash returned at some later stage. The evidence of Dr Mercado was that on 18 May 2017, Mr Whipps complained of the rash, yet there is no record of any complaint about the rash taken in the consultation on 3 July 2017. The evidence contained in the pre-employment medical assessment, suggests that the rash was not present at the time of the examination. There is no evidence that the rash then later returned. Relevantly, Mr Whipps did not adduce any additional evidence beyond his own evidence that supports that the rash was present on 2 and 3 October 2018. I am not satisfied that Mr Whipps has established, to the requisite standard, that the rash was present at the time of the alleged discriminatory conduct. 
  1. [47]
    Further, and as noted above, Mr Whipps contends that he has an impairment that falls within the definition of "… a disorder, illness or disease that affects a person's thought process, perception of reality, emotions, judgment or that results in disturbing behaviour."
  1. [48]
    Mr Whipps contends that this is the relevant definition of impairment that he relies on because he "unconsciously start[s] scratching at a rash". Mr Whipps has failed to make out this contention for two reasons.[30]
  1. [49]
    Firstly, the weight of the evidence is that Mr Whipps was able to exercise some control over his urge to scratch. Ms Whipps' evidence was that Mr Whipps would initially scratch his rash through his clothes and, if necessary, would excuse himself and go to a public toilet or other private area if he felt an urge to scratch. This supports a conclusion that when the rash was present, Mr Whipps was able to exercise control over when and how he scratched the itch.
  1. [50]
    Secondly, and of greater significance, there was an absence of any evidence that the rash affected Mr Whipps' thought process, perception of reality, emotions, judgment or that it resulted in disturbing behaviour to the extent that it fell within the definition of impairment relied on by Mr Whipps.
  1. [51]
    Relevantly, no medical evidence was produced in support of Mr Whipps' contention. Dr Mercado's evidence was limited to him observing that the rash he saw in May 2017 would have been itchy.[31] It is difficult to conclude in the absence of any supporting evidence, how scratching a purported itch from a rash was the result of an impairment[32] that affected Mr Whipps' thought process, perception of reality, emotions or judgment or that resulted in disturbing behaviour.
  1. [52]
    In Edoo v Minister for Health[33] it was said that:

72  The factual material relied on by Mr Edoo did not establish that he suffered from an 'impairment'. Mr Edoo did not adduce evidence from any witnesses with qualifications in medicine to confirm that his stress was a 'condition' which manifested itself as a defect or disturbance in the normal structure or functioning of his body, or that it was a disease which impaired his thought processes, perception of reality, emotions or judgments or resulted in disturbed behaviour. Although Mr Edoo is a nurse, he did not purport to have qualifications entitling him to provide opinion evidence as to his medical condition. In the absence of any such expert evidence, we are unable to give Mr Edoo's evidence as to his own 'condition' any weight above that of mere assertion. From that perspective, Mr Edoo's 'evidence' of the impairment from which (he) was suffering did not have probative force, and was not capable, of itself, of establishing that he was suffering from an impairment as defined in the EO Act. In addition, there was no expert evidence on which we might base the conclusion that stress was in fact a 'condition' rather than merely a symptom of some other underlying condition or circumstance.

  1. [53]
    Mr Whipps has not discharged the onus that rests on him to establish that he had an impairment within the meaning of s 7(h) of the ADA.
  1. [54]
    I consider that the evidence to be deficient, to the extent that there is no evidence in support of the fact that Mr Whipps suffered from an impairment, being a skin condition, at the relevant time connected to the complaint. Further, I have concluded that Mr Whipps has not established that the impairment he suffered from fell within the definition of impairment being "… a disorder, illness or disease that affects a person's thought process, perception of reality, emotions, judgment or that results in disturbing behaviour", as there is no evidence that his impairment affected him in such a way.
  1. [55]
    As Mr Whipps has not established this threshold issue, namely that he suffered from an impairment at the relevant time, his claim must fail.
  1. [56]
    However, if I am wrong in respect of this conclusion, I will proceed on the basis that Mr Whipps did suffer from an impairment for the purpose of the AD. Nevertheless, and for the reasons which follow, Mr Whipps' claim must fail.

Direct discrimination

  1. [57]
    Mr Whipps has alleged that he has suffered direct discrimination at the hands of the Respondents.
  1. [58]
    The test to be applied in the case of determining direct discrimination was set out by the full bench in Commissioner of Corrective Services v Aldridge:[34]

[41]  The proper test to be applied when determining a case of direct discrimination has been considered on numerous occasions by appellate courts. While there has been some confusion and inconsistency there is clear authority to guide us. In Waterhouse v Bell (1991) 25 NSWLR 99 the Court of Appeal considered that part of the Act which deals with direct discrimination on the ground of marital status. Clarke JA stated (at p 105):

The inquiry for which the section calls is a factual one involving essentially, two separate questions. The First, has A been treated less favourably than a person of different marital status was, or would have been, treated in the same circumstances, or in circumstances which are not materially different? The Second, if so, was the ground of the differential treatment one of those mentioned in (a), (b) or (c)?

[42]  In Waters v Public Transport Corporation Dawson and Toohey JJ stated: Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race).

[43]  In the leading House of Lords decision, James v Eastleigh Borough Council Lord Goff stated:

The problem in the present case can be reduced to the simple question - did the defendant council, on the ground of sex, treat the plaintiff less favourably than it treated or would treat a woman?

[44]  In our opinion these statements clearly express the relevant law and should have led the Tribunal to pose for itself the following question. Did the Commissioner, on the ground of race (or a characteristic of race) treat Mr Aldridge less favourably than it treated or would have treated a non-Aboriginal person in the same circumstances, or in circumstances which were not materially different?

[45]  It is useful, for the purposes of analysis, to identify and label the two key components of this question. The First component is differential treatment and the Second is causation. Logically differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation.

(Emphasis in original) (Citations omitted)

  1. [59]
    The question to answer in this matter, is whether the Respondents treated Mr Whipps less favourably than another person without that attribute, or a characteristic of the attribute, because of his impairment or a characteristic of his impairment in circumstances that were the same, or not materially different.

The comparator

  1. [60]
    The requirement to prove that the person has been treated less favourably than a person without the attribute or a characteristic of the attribute gives rise to a contingent requirement of identifying the proper other person against whom a comparison can be made, or a "comparator".
  1. [61]
    The comparator must be a person without Mr Whipps' relevant attribute but in the same circumstances as him.
  1. [62]
    In the present circumstances, a hypothetical comparator must be used.
  1. [63]
    In Woodforth v State of Queensland [2017] QCA 100, a comparison was required between the complainant's treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech, and a person without that impairment and that characteristic. Relevantly, McMurdo JA wrote:

[53]  Section 10 of the ADA requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be “in circumstances that are the same or not materially different” from those that constituted the context for the treatment of the impaired person. In that respect s 10 of the ADA is no different from s 5(1) of the DDA. But beyond that likeness, there are differences between the two statutes. The DDA contained no equivalent of s 8 of the ADA, the effect of which, in combination with s 10 of the ADA, is to proscribe discrimination on the basis of a "characteristic". In the present case it proscribed discrimination on the basis of the applicant’s inability to communicate by speech. That proscription would be ineffective if the characteristic of a disability was also to be treated as a "circumstance" in the comparison for the purposes of s 10. It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic. The Appeal Tribunal, whilst adverting to s 8, overlooked its effect upon the operation of s 10.

[54]  Further, the Appeal Tribunal incorrectly likened this characteristic of the applicant’s impairment with the occurrences of violent behaviour that constituted the relevant circumstances in Purvis. They were occurrences which formed part of the factual context in which the student was treated. He was treated, by suspension and expulsion, in response to those occurrences. The required comparison was between the treatment of this student and the hypothetical treatment of another student. That hypothesis required the consideration of what would have been the treatment of another in response to occurrences of the same kind. The complication in Purvis, caused by the student's behaviour also being an incident of his disability, did not exist in the present case. In the present case the relevant “treatment” was the response of police to a complaint of criminal conduct.

  1. [64]
    In the current case, no submissions were made with regard to who would be the proper comparator or what were the characteristics of Mr Whipps' impairment. However, I consider that given the nature of Mr Whipps' evidence, a characteristic of the alleged impairment would be an unconscious urge to scratch the rash. Accordingly, in my view, the appropriate comparator is another employee of the First Respondent, working in the warehouse who does not have a rash, or any characteristics of it.
  1. [65]
    The circumstances that give rise to the Respondents' treatment that are the same or not "materially different" may be determined by considering the photographs tendered into evidence.
  1. [66]
    The video footage taken by the CCTV cameras of Mr Whipps on 2 and 3 October 2018 was not in evidence. However, screen shot stills of that video footage was produced and tendered as evidence.[35] The photograph depicts Mr Whipps in the public area of the Townsville warehouse, sitting on an office chair. Mr Whipps is holding a mobile telephone in his right hand. Mr Whipps' shorts appear to be pulled down exposing the top part of his left thigh.[36] Mr Whipps' left hand is down his shorts, up to approximately halfway down his forearm. Mr Whipps left hand appears to be lower than his abdominal wall.
  1. [67]
    Accordingly, the relevant circumstances are that the person has been viewed in a public area of the First Respondent's warehouse with their shorts pulled down exposing the top of their thigh, with their left arm down their shorts, up to approximately half-way down their forearm, whilst their hand appears to be lower than their abdominal wall, whilst they looked at a mobile telephone held in their right hand.

Treatment on the basis of a protected attribute – the causal element for direct discrimination

  1. [68]
    Section 10(1) of the ADA requires that Mr Whipps establish that the Respondents have treated him, or proposed to treat him, in a discriminatory way "on the basis of" the relevant attribute.
  1. [69]
    Section 10 of the ADA provides that a person's motive for discriminating is irrelevant. The High Court in Purvis v New South Wales (Department of Education and Training)[37] refer to the causation question as follows:

158  In Waters v Public Transport Corporation, Mason CJ and Gaudron J (Deane J agreeing) approved the view of Deane and Gaudron JJ in Banovic that motive or intention to discriminate is not required. Their Honours said that it is enough if the difference in treatment is based on the prohibited ground, notwithstanding an absence of motive or intention.

159  In Waters, McHugh J rejected the statement of Lord Goff in Birmingham and the statements of Deane and Gaudron JJ in Banovic concerning motive or intention, in so far as they might suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator was actuated by the prohibited ground. His Honour said:

"The words 'on the ground of' and 'by reason of' require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ('the victim'). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did."

(Citations omitted)

  1. [70]
    Mr Whipps called evidence from Mr Adlard who was in attendance with Mr Kumar on 8 October 2018 when the conversation between Mr Kumar and Mr Whipps occurred. Mr Adlard previously worked as a distributor for the First Respondent. Since then, the distribution agreement with the First Respondent has been terminated. Mr Kumar submitted[38] that I should take into account that the First Respondent commenced court proceedings against Mr Adlard when considering his evidence. However, the existence of court proceedings and their potential influence on Mr Adlard's evidence was not put to Mr Adlard by Mr Kumar. Accordingly, I have not considered those matters to be relevant to the evidence provided by Mr Adlard. Mr Adlard's evidence was, as follows:[39]

… I was asked by Kishor Kumar to go into the warehouse so that he could talk to Daniel. That's how it started. I went over there to – with Kishor in his vehicle to the warehouse. [indistinct] I think, if I remember rightly. And we walked in there and Kishor then basically told Daniel that his services [sic] was no longer provided – required, sorry. I think – trying to remember off – off the top of my head there. Daniel asked him why and Kishor said, "You know why". And then it, sort of, yeah, I suppose raised voices between them discussing the reason why. And it, sort of – I think Daniel mentioned that he had a – a medical condition at the time and I think Kishor said, "No, it wasn’t," or something like that or it wasn't in his medical file or something I recall – I can't remember there. And then, obviously, Daniel got a little bit upset.

  1. [71]
    There was no concession by the Respondents that the conduct that they engaged in was done on the basis of Mr Whipps' impairment. It was the Respondents' case that they were not aware that Mr Whipps suffered from a rash, until he sent a text message to Mr Kumar at 7.29pm on 8 October 2018. Relevantly, the text message from Mr Whipps stated, as follows:[40]

We can see how you have made a mistake. The picture is however clearly of me scratching myself. I have a very well document how I have rash [sic] due to reaction with nylon that's been document for over fifteen years. I suggest you apologies [sic] for your discrimination against my disability and fast or I will start legal action against you and the company. I also note how you haven't bothered to come pick up the vehicle. Is this cause you refusing [sic] to pay outstanding money.

  1. [72]
    Mr Kumar submitted that the Respondents did not have any knowledge of Mr Whipps' condition, as follows:[41]

Well, like I said, if Mr Whipps has spoken to him about it there and then that he's got a medical condition and that he needed to be checked and needed – I would have spoken to him. I'd say, "Yes, by all means, go and get yourself checked, and give us some certificate that you have a condition, that you need to do this." But, again, I mean, I would have asked him not to do that in the office, go to the bathroom to do these things. So that's where we stand at the moment, and we, not knowingly, discriminated against him he had a rash. We had no idea about it.

  1. [73]
    I find on the evidence before me, that at some point during the conversation on 8 October 2018, Mr Whipps advised Mr Kumar that he had a medical condition, including that he had a rash. However, on the evidence, no details were provided by Mr Whipps as to where the rash was located or why he was engaged in the conduct depicted in the photograph. Mr Whipps provided some further details of the condition when he sent the text message to Mr Kumar at 7.29pm on 8 October 2018. By that time, Mr Whipps' employment had already been terminated.
  1. [74]
    Mr Kumar's evidence was that even if he had known of the rash, he would have expected that Mr Whipps not do what he did in the office but rather, instead, go to the bathroom.
  1. [75]
    Mr Whipps has led no evidence demonstrating that the comparator would have been treated differently by the Respondents. Relevantly, Mr Kumar submitted:[42]

…As a company, as – and we have a lot of staffs. For us, that is totally – it's not a behaviour we condone, and it's something that – you know, I just can't justify that a person is allowed to do that in a public area where there's – forget about the TV camera. It's a public area. Anybody could walk in. I could have walked in. One of my customers could have walked in and seen him in that position. It would have been embarrassing not just for him but for us as a company.

  1. [76]
    I am unable to accept that the Respondents' conduct in requesting Mr Whipps to resign and/or by terminating the employment, amounted to direct discrimination against Mr Whipps on the basis of his impairment. There is no evidence to suggest that the Respondents would not have engaged in similar conduct with the comparator and accordingly, I am not satisfied that Mr Whipps was treated less favourably.
  1. [77]
    Further, Mr Kumar contends that the primary reason Mr Whipps' employment was terminated was because Mr Whipps assaulted Mr Kumar during the course of the conversation on 8 October 2018. Mr Whipps has been charged with assault and the matter is before another court.
  1. [78]
    Mr Adlard's evidence was that[43] he heard Mr Whipps say to Mr Kumar "I should hit you". This evidence is consistent with the Respondents' position that Mr Whipps' employment was primarily terminated because of Mr Whipps' conduct towards Mr Kumar on 8 October 2018.[44] Such conduct by Mr Whipps can not be attributed to the impairment.
  1. [79]
    In addition to the above conduct, Mr Whipps also complained that Mr Kumar's conduct included embarrassing Mr Whipps by making fun of him in front of Mr Adlard. Mr Kumar denies that he engaged in such conduct. Mr Adlard's evidence does not support the allegation that Mr Kumar made fun of Mr Whipps in front of Mr Adlard during the course of the meeting on 8 October 2018. Accordingly, I find that Mr Kumar did not engage in such conduct.

Conclusion

  1. [80]
    Mr Whipps has failed to establish that he has an impairment within the meaning of the ADA. Such a conclusion is fatal to Mr Whipps' complaint.
  1. [81]
    With respect to the allegation of direct discrimination, Mr Whipps has failed to establish that the Respondents have treated him, or, proposed to treat him on the basis of his attribute, less favourably than another person without the attribute is, or would be, treated in circumstances that are the same or not materially different.[45]
  1. [82]
    For the reasons set out in this decision, I find that Mr Whipps has not established that he suffered direct discrimination. The complaint is dismissed.

Order

  1. [83]
    I make the following order:
  1. The complaint is dismissed.
  1. I will hear the parties as to costs.

Footnotes

[1] Filed with the Tribunal on 8 April 2019.

[2] Respondents' Response to the Statement of Facts and Contentions filed 17 July 2019.

[3] Exhibit 2.

[4] Mr Whipps describes the skin conditions as "a rash".

[5] Statement of Facts and Contentions filed on 15 May 2019.

[6] Ibid.

[7] Anti-Discrimination Act 1991 (Qld) s 6.

[8] Ibid s 7(h).

[9] Ibid sch 1.

[10] Anti-Discrimination Act 1991 (Qld) s 8.

[11] Wright v Callvm Vacheron Wallace Bishop & Anor [2018] QIRC 007, [17].

[12] [2016] HCA 38, [2] (French CJ, Bell, Keane and Nettle JJ).

[13] Example-

• R refuses to rent a flat to C because-

• C is English and R doesn't like English people

• C's friend, B, is English and R doesn't like English people

• R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R's belief about C's or B's nationality,

or the characteristics of people of that nationality, is correct.

[14] Anti-Discrimination Act 1991 (Qld) s 204.

[15] Briginshaw v Briginshaw [1938] 60 CLR 336. See also Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498.

[16] (1992) 110 ALR 449, 450; [1992] HCA 66.

[17] On the balance of probabilities.

[18] In accordance with the requirements in ss 205 and 206 of the ADA.

[19] T1-66, ll 12-14.

[20] T1-9, ll 23-24.

[21] T1-33, ll 32-33.

[22] T1-33, l 44.

[23] T1-36, l 32.

[24] T1-35, ll 24-25.

[25] T1-17, ll 15-17.

[26] T1-16, ll 21-23.

[27] Exhibit 4.

[28] T1-20, L15.

[29] See Exhibit 4.

[30] In addition to my finding that the rash was not present at the relevant time.

[31] T1-16, L18.

[32] (A rash).

[33] [2010] WASAT 74; 72 SR (WA) 16, 72. Cited with approval in Curren v yourtown & Anor [2019] QIRC 059.

[34] [2000] NSWADTAP 5, [41]-[45].

[35] Exhibit 2.

[36] Mr Whipps' evidence is that he was not wearing underwear, see T1-72; ll 12-17.

[37] [2003] HCA 62, [158]-[159] (McHugh and Kirby JJ); 217 CLR 92; 78 ALJR 1; 202 ALR 133.

[38] T1-73, ll 8-14.

[39] T1-39, ll 10-20.

[40] Exhibit 1. See also T1-13, ll 36 – 42.

[41] T1-74, ll 40 – 47.

[42] T1-72, ll 38 – 44.

[43] T1-39, ll 45- 46.

[44] Together with what the Respondents' describe as the "masturbatory act".

[45] Anti-Discrimination Act 1991 (Qld) s 10.

Close

Editorial Notes

  • Published Case Name:

    Whipps v The Battery Store Australia Pty Ltd

  • Shortened Case Name:

    Whipps v The Battery Store Australia Pty Ltd

  • MNC:

    [2021] QIRC 16

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    15 Jan 2021

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
Adams v Ascot Iron Foundry Pty Ltd (2010) 72 SR (WA) 16
1 citation
Jump To
Cite 1 - (2010) 72 SR (WA) 16
Adamson v Queensland Law Society Incorporated[1990] 1 Qd R 498; [1989] QSCFC 145
2 citations
Jump To
Cite 1 - [1990] 1 Qd R 498
Cite 2 - [1990] 1 Qd R 498
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
2 citations
Jump To
Cite 1 - [2000] NSWADTAP 5
Cite 2 - [2000] NSWADTAP 5
Curran v yourtown & Anor [2019] QIRC 59
2 citations
Jump To
Cite 1 - [2019] QIRC 59
Cite 2 - [2019] QIRC 59
Edoo v Minister for Health [2010] WASAT 74
2 citations
Jump To
Cite 1 - [2010] WASAT 74
Cite 2 - [2010] WASAT 74
Lyons v State of Queensland [2016] HCA 38
1 citation
Jump To
Cite 1 - [2016] HCA 38
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
2 citations
Jump To
Cite 1 - (1992) 110 ALR 449
Cite 2 - (1992) 110 ALR 449
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) HCA 66
2 citations
Jump To
Cite 1 - (1992) HCA 66
Cite 2 - (1992) HCA 66
Purvis v New South Wales (2003) 78 ALJR 1
2 citations
Jump To
Cite 1 - (2003) 78 ALJR 1
Cite 2 - (2003) 78 ALJR 1
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
2 citations
Jump To
Cite 1 - (2003) 217 CLR 92
Cite 2 - (2003) 217 CLR 92
Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133
2 citations
Jump To
Cite 1 - (2003) 202 ALR 133
Cite 2 - (2003) 202 ALR 133
Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62
2 citations
Jump To
Cite 1 - [2003] HCA 62
Cite 2 - [2003] HCA 62
Waterhouse v Bell (1991) 25 N.S.W.LR. 99
1 citation
Jump To
Cite 1 - (1991) 25 N.S.W.LR. 99
Woodforth v State of Queensland[2018] 1 Qd R 289; [2017] QCA 100
2 citations
Jump To
Cite 1 - [2017] QCA 100
Cite 2 - [2017] QCA 100
Wright v Callvm Vacheron Wallace Bishop and Anor [2018] QIRC 7
2 citations
Jump To
Cite 1 - [2018] QIRC 7
Cite 2 - [2018] QIRC 7

Cases Citing

Case NameFull CitationFrequency
McKay v Steggles Pty Ltd [2023] QIRC 3282 citations
Taumoefolau v University of Queensland [2021] QIRC 802 citations
1

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