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Mr A v Viva Energy Australia Pty Ltd QIRC 309
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Mr A v Viva Energy Australia Pty Ltd  QIRC 309
Viva Energy Australia Pty Ltd
Application for order protecting complainant's interests
7 September 2021
11 August 2021
The Applicant's application for an order pursuant to s 144 of the Anti-Discrimination Act 1991 is dismissed
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – applicant is an employee of respondent – respondent commenced disciplinary action against applicant – respondent indicated that termination of employment a possible outcome of disciplinary action – applicant invited by respondent to provide information for respondent to take into account in making a decision concerning applicant's ongoing employment – applicant lodged complaint with the Queensland Human Rights Commission – complaint that subjecting him to disciplinary action was direct and indirect discrimination contrary to the Anti‑Discrimination Act 1991 on the basis of his attributes of sex and, or in the alternative, sexuality – complaint of victimisation – complaint accepted by the Queensland Human Rights Commission – application by applicant pursuant to s 144 of the Anti‑Discrimination Act 1991 for an order halting the progression of the disciplinary action – matters to be considered by the Queensland Industrial Relations Commission in exercising discretion as to whether or not to make an order pursuant to s 144 of the Anti‑Discrimination Act 1991 – application refused
Acts Interpretation Act 1954, s 14A
Anti-Discrimination Act 1991, s 129, s 130, s 134, s 135, s 136, s 144, s 154A, s 158, s 174B, s 174C, s 191 and s 209
Australian Human Rights Commission Act 1986, s 46PP
Industrial Relations Act 2016, s 9, s 314, s 473, s 580, sch 1 and sch 5
Industrial Relations (Tribunals) Rules 2011, r 97
Australian Broadcasting Corporation v O'Neill  HCA 46; (2006) 227 CLR 57
Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd  FCA 458
Beecham Group Ltd v British Laboratories Pty Ltd  HCA 1; (1968) 118 CLR 618
Bond v Multicap Ltd  QIRC 051
Certain Lloyd's Underwriters v Cross  HCA 56; (2012) 248 CLR 378
Coop v State of Queensland  QCATA 205
Jones v Queensland Health  QCAT 700
Luthje v State of Queensland & Ors  QCAT 417
McGee v Sanders (No 2)  FCA 554; (1991) 32 FCR 397
McIntyre v Hastings Deering (Australia) Ltd and Anor  QCAT 438
McRostie v Boral Resources (Qld) Pty Ltd  QADT 4
Project Blue Sky Inc. v Australian Broadcasting Authority  HCA 28; (1998) 194 CLR 355
R v A2  HCA 35; (2019) 93 ALJR 1106
Samsung Electronics Company Ltd v Apple Inc and Another  FCAFC 156; (2011) 217 FCR 238
Seen v Rebel Sport Limited  QIRC 086
Toodayan & Anor v Anti-Discrimination Commissioner Queensland  QCA 349
Waters v Public Transport Corporation  HCA 49; (1991) 173 CLR 349
Mr C. Van Oeveren and Mr F. Farid of Human Rights Claims as Agent for the Applicant.
Ms J. Marr of Counsel instructed by Ms N. Gaspar, Mr M. Fedeli, Ms E. McRae and Ms J. Nashed of Herbert Smith Freehills for the Respondent with Mr C. Piotti of the Respondent.
Reasons for Decision
- Mr A is employed by Viva Energy Australia Pty Ltd ('Viva') as an IPT Manager at the Brisbane Airport. Mr A has been employed by Viva, and its predecessor, since September 2007.
- In December 2020, Mr A participated in an investigation conducted by Q Workplace Solutions concerning allegations that he had bullied and harassed a male colleague. While those allegations against Mr A were not substantiated, Viva formed the view that some of the findings by the investigator demonstrated that Mr A had fallen short of the conduct expected of him as a leader of Viva or as an employee that upheld Viva's fundamental values and standards. On 20 January 2021, Mr A received a written warning in relation to that demonstrated conduct ('the January 2021 warning').
- By letter dated 22 March 2021, Ms Natasha Cuthbert, Viva's General Manager - People and Culture, informed Mr A that Viva had engaged Q Workplace Solutions to undertake another investigation concerning him. That investigation concerned allegations that Mr A had:
- in May 2019, in respect of a female employee of Viva (who has since resigned) breached Viva's values;
- in May and July 2019, made unwanted sexual advances by SMS to the female employee; and
- after May 2019, made two unwanted advances by attempting to speak to the female employee ('the 2019 allegations').
- The investigation of the 2019 allegations was conducted in April 2021.
- By letter dated 8 July 2021 from Mr Vince Neville, Viva's General Manager - Distribution, Supply Chain, Mr A:
- was informed that the 2019 allegations were not substantiated;
- was further informed that Viva's view was that some of the investigator's findings and his (Mr A's) admissions made during the investigation, demonstrated that, in respect of the female employee, he had again fallen short of the conduct expected of him as a leader of Viva ('the findings made in the April 2021 investigation'); and
- was invited to provide a written response by a specified date.
- In the present proceeding, the 8 July 2021 letter from Mr Neville to Mr A has been referred to as the 'show cause letter' and the process, of which it is a part, as the 'show cause process'. It is common ground that such a process is a disciplinary action process against Mr A.
- On 26 July 2021, Mr A, through his representatives, made a complaint to the Queensland Human Rights Commission ('the QHRC') alleging that because Viva did not propose to take disciplinary action against him motivated by the January 2021 warning, Viva's determination to consider disciplinary action against him was motivated by the findings made in the April 2021 investigation. As such, Mr A complains that the show cause notice, and any disciplinary action taken on the basis of the show cause notice, amounts to direct and indirect discrimination, on the basis of his sex and/or sexuality in the work area, in contravention of the Anti-Discrimination Act 1991 ('the Act'). Mr A also made a complaint of victimisation.
- By application filed on 5 August 2021, Mr A, pursuant to s 144 of the Act ('Mr A's s 144 application'), seeks an order that:
[T]he Applicant not be subject to any act that may be prejudicial to their employment with the Respondent, including through a determination in the show-cause process, until such time as the Tribunal has determined the substantive matter, or by further order of the Commission.
- At the hearing of Mr A's s 144 application, Mr A submitted that, at its core, he sought to halt the progression of the show cause process, which he alleges has a discriminatory genesis and would amount to unlawful discrimination were it to proceed, such that the show cause process should be halted until the resolution of the substantive matter.
- At the conclusion of the hearing of Mr A's s 144 application on 11 August 2021, Viva agreed that it would not take any further step in respect of the show cause process against Mr A pending delivery of my decision in respect of Mr A's s 144 application.
- The issue that requires my determination is whether, pursuant to s 144 of the Act, I should exercise my discretion and make an order of the kind sought by Mr A.
- For the reasons that follow, I will not make an order of the kind sought by Mr A.
The prohibition of disclosure and anonymity orders sought by Viva
- By application in existing proceedings filed on 10 August 2021, Viva made application that, pursuant to s 191(1) of the Act, or in the alternative, pursuant to ss 580(5) and (6) of the Industrial Relations Act 2016 ('the IR Act'), the name of the female employee the subject of the findings made in the April 2021 investigation be prohibited from disclosure or being published in any document and, or in the alternative, that a pseudonym be used when referring to that female employee in any document or that a pseudonym replace all references to the name of that female employee in any relevant documents.
- In my view, s 191(1) of the Act is not, for the purposes of Mr A's s 144 application, a source of power to make the orders sought by Viva. This is because that power is contained in ch 7, pt 2, div 1 of the Act which refers to powers conferred on the Queensland Industrial Relations Commission ('the QIRC') once a complaint has been referred to it by the QHRC. Presently, no complaint by Mr A has been referred to the QIRC.
- However, s 174C(1) of the Act provides that if the Act confers jurisdiction on the tribunal in relation to a complaint or other matter, the tribunal may exercise the powers conferred on it under the Act or the relevant tribunal Act. In the present matter, the relevant tribunal Act is the IR Act.
- Section 580(5) of the IR Act relevantly provides that the QIRC may direct that evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search. Section 580(6) of the IR Act provides that such a direction may prohibit the publication, release or search absolutely, or except on conditions ordered by the QIRC. Section 580(7) of the IR Act relevantly provides that the direction may be given if the QIRC considers disclosure of the matter would not be in the public interest.
- Schedule 5 to the IR Act defines the phrase 'industrial cause' to include '… an industrial matter and industrial dispute.' Section 9(3) of the IR Act relevantly provides that a matter is an industrial matter if it relates to a matter mentioned in sch 1 of the IR Act. Item 26 of sch 1 to the IR Act refers to 'discrimination in employment'. In my view, Mr A's s 144 application concerns his complaint that he is the subject of unlawful discrimination in his employment. On that basis, Mr A's s 144 application is a matter relating to discrimination in employment as referred to in item 26 of sch 1 to the IR Act.
- The findings made in the April 2021 investigation concern, in part, findings of a sexual nature involving the female employee. Mr A's complaint to the QHRC is at a very early stage. There is no evidence that Mr A's complaint has been the subject of any investigation or conciliation by the QHRC. For these reasons, I considered that the disclosure of the name of the female employee was not in the public interest.
- As a consequence, on 11 August 2021, I made an order that except for the parties, all documents in relation to this matter, including affidavit material and annexures, exhibits, witness statements, written submissions, correspondence and transcripts of proceedings, be withheld from release or search absolutely, except on conditions ordered by the QIRC. I made that order because to make the order proposed by Viva in paragraph 2(b) of its application would require members of the Industrial Registry to view every document to remove the name of the female employee and insert, in lieu of that name, the pseudonym proposed by Viva.
- In addition, by consent of the parties, pursuant to r 97(3) of the Industrial Relations (Tribunals) Rules 2011, I have modified this decision by anonymising the applicant's name and the name of the female employee the subject of the findings made in the April 2021 investigation. I will refer to the female employee as 'Ms B.'
The January 2021 warning
- The January 2021 warning was issued because Viva found that Mr A had engaged in the following conduct:
- he would flick the back of the other male employee's ear, which Viva viewed as behaviour that was unacceptable in the workplace and inconsistent with the culture that it expected from all team members, let alone its leaders, and was demonstrative of Mr A's lack of judgment and perception of appropriate workplace behaviour in which he should partake as a leader;
- he would engage in arguments with the other male employee and although Mr A's interactions with the other male employee were in response to inappropriate conduct initially directed at him, Mr A's apparent tendency to respond in kind, in circumstances where he was a leader and was expected to uphold Viva's expected standards of behaviour, was unacceptable and inconsistent with Viva's expectations of him; and his conduct was demonstrative of his lack of judgment as a leader and his failure to uphold appropriate standards of workplace behaviour; and
- he used sexist and derogatory language to discuss a female employee which Viva found to be completely inappropriate and inconsistent with Viva's Code of Conduct ('the Code') expectation to treat others with respect and avoid situations that may be perceived as inappropriate and to never make inappropriate jokes or comments; and Viva found that the conduct was demonstrative of Mr A's lack of judgment as a leader and a failure to uphold appropriate standards of work behaviour, particularly in his behaviour towards females and, or in the alternative, other colleagues.
- The January 2021 warning was conveyed to Mr A by a letter from Mr Daryl Scott, Viva's Queensland Operations Manager, in which Mr Scott relevantly stated:
Having regard to all the information available, Viva Energy is issuing you with a Written Warning in respect of the identified Code breaches. Any further instances of inappropriate workplace conduct or behaviour outside Viva Energy's required standards may result in further disciplinary action, which may include your employment being terminated. Please note that this warning will be placed on your personnel file.
We now consider this matter to be finalised. We look forward to supporting you to improve your behaviours and avoid future issues.
The findings made in the April 2021 investigation and the show cause letter
- In the show cause letter, reference was made to the findings for the January 2021 warning and the fact of the warning. Mr A was then advised that Viva's view was that some of the investigator's findings from the investigation of the 2019 allegations, and admissions made by Mr A during part of that investigation, demonstrated that he had '… again fallen short of the conduct expected of you as a leader of the Company.' Mr A was informed that the conduct included findings that:
- in respect of the events of 8 May 2019:
- –at that time, you were in a position of leadership within Viva Energy;
- –you had attended Viva Energy's Docklands office for business purposes from Brisbane;
- –you were engaged in work travel and staying in hotel accommodation paid for by Viva Energy for work purposes;
- –during the evening on that date, you, [name of female employee deleted] and other Viva Energy employees socialised and drank alcohol at a local bar;
- –late in that evening, [name of female employee deleted] was highly intoxicated, and you and [name of female employee deleted] left the bar together; and
- –after you left the bar, you took [name of female employee deleted] up to your hotel room, notwithstanding that [name of female employee deleted] had a significant amount to drink and engaged in some conduct of a sexual nature (which, on your version of events, included attempts by [name of female employee deleted] to kiss you twice before you reached your hotel room).
The course of the events described above is concerning to Viva Energy and represents a lack of judgment on your behalf; in particular, your conduct of escorting [name of female employee deleted] to your work-provided hotel room whilst she was in a heavily intoxicated state. Such behaviour is inconsistent with the expectations Viva Energy holds of leaders of its organisation and is, again, demonstrative of your lack of judgment of appropriate behaviour that a people leader ought to partake in; and
- between 9 May 2019 and 9 July 2019, you and [name of female employee deleted] exchanged several text messages. These text messages were of a sexual nature, including that they make reference to something happening between you and [name of female employee deleted] early on 9 May 2019 which, whether on your account or [name of female employee deleted] account, was sexual in nature. Again, engaging in such behaviour is inconsistent with the expectations Viva Energy holds of leaders of its organisation.
Viva Energy's expectations of you and next steps
Viva Energy acknowledges that the allegations against you that formed part of the 2020 Investigation and 2021 Investigation were not substantiated. However, each of the respective investigators found that the conduct described above had in fact occurred (indeed, some of which by your own admission). Although such conduct did not lead to a substantiation of such allegations, it is nonetheless of concern to Viva Energy.
Specifically, as outlined above, Viva Energy considers such conduct to fall short of the conduct expected of you as a leader of the Company. Consequently, Viva Energy now has concerns about your lack of judgment that you are required to exercise as a leader of others within the organisation and has lost trust and confidence in your ability to successfully perform your role in a manner that consistently models behaviours and attitudes consistent with our Code of Conduct, Standards of Behaviour and Business Principles.
Viva Energy takes matters of this nature very seriously, particularly in respect of its leaders. For these reasons, we are considering taking disciplinary action against you, up to and including terminating your employment. Before we make a final decision in relation to your employment, you are invited to put forward any reasons why we should not do so, including any matters that the Company has taken into consideration that you believe we should not have or any matters that you believe that the Company should have taken into account and did not.
You are invited to provide a written response to the matters set out in this letter no later than 5:00pm on 15 July 2021 via email ….
- The matters '… set out in this letter' were the reasons for the January 2021 warning and the findings made in the April 2021 investigation as referred to above. Mr A was also advised that once he had provided his response, or if Viva did not hear from him by the specified date, it '… may make a decision in relation to the future of your employment based on the information available to it and advise you of its decision accordingly.' Extensions have been given to Mr A to provide his response and, at the date of the hearing of the present proceeding, his response was due on 13 August 2021.
Mr A's complaint to the QHRC
- In his complaint, Mr A, in summary, alleges that:
- on 8 May 2019, he and three other persons, including Ms B, had been drinking at a bar in Melbourne;
- during the course of the evening, Ms B became very intoxicated and by 11.30 pm, only Ms B and him remained at the bar;
- he was not able to obtain information from Ms B as to where she lived or where she was staying, '… precluding the Complainant from assisting [name of female employee deleted] to her own residence';
- having regard to her level of intoxication, he assisted Ms B back to his hotel room to ensure she was safe, and during that process she attempted to make sexual advances towards him, from which he retreated, and after arriving back in his hotel room she engaged in conduct of a sexual nature, from which he retreated;
- after Ms B sobered up later in the night, he assisted her in walking home;
- at no time did Ms B raise a complaint, internal or external, about his conduct;
- in referring to the 'March 2021 allegations', the show cause notice concludes that the events '… in particular the assistance of [name of female employee deleted] to the Complainant's hotel room', is inappropriate behaviour;
- the mention in the show cause letter of text messages between him and Ms B in the period of 9 May 2019 to 9 July 2019, which were asserted by Viva to be of a sexual nature, were clearly of a nature '… designed to check in on the wellbeing of' Ms B and any reasonable person having regard to the text messages would reach the conclusion that they were not of a sexual nature; and
- the conduct of Viva in relation to the '… March 2021 allegations' demonstrates a presumption by Viva that he was '… acting in an untoward manner towards [name of female employee deleted], and engaging in behaviour that was sexually harassing, or otherwise sexualised'.
- Mr A then contended that:
- because Viva did not propose to take disciplinary action against him motivated by the January 2021 warning alone '… it must be that the determination to consider disciplinary action was materially on the basis of' the findings made in the April 2021 investigation;
- having regard to the relevant circumstances that underpin the findings made in the April 2021 investigation, '… the approach taken by the Employer is motivated by the Complainant's gender and sexuality';
- Viva's determination to issue the show cause notice is motivated by the findings made in the April 2021 investigation, which are discriminatory on the basis of his sex and sexuality, and that the show cause notice and any disciplinary action taken on the basis of the show cause notice is likewise discriminatory;
- Viva has engaged in direct discrimination against him in the work area because, having regard to him assisting Ms B back to his hotel room to ensure her safety and wellbeing, walking Ms B home from his hotel room to ensure her safety and wellbeing and subsequently sending Ms B text messages '… to ensure her safety and wellbeing and to avoid the ventilation of private events to save' Ms B from embarrassment, Viva would not have subjected a female employee or a homosexual male employee to the show cause notice;
- Viva has engaged in indirect discrimination against him in the work area because:
- –Viva implicitly imposed on him the term of:
[T]he requirement for assistance to be provided to an intoxicated, vulnerable employee by another employee who could not have been attracted to them, or otherwise perceived by the Employer to pose a threat to them or be acting with improper intentions (Term);'
- –the term was imposed by Viva's determination to engage in the show cause process '… predicated on the Complainant's actions in providing assistance to [name of female employee deleted] while she was intoxicated and vulnerable';
- –he could not comply with the term because he was male and heterosexual and was perceived by Viva to pose a threat to Ms B or otherwise to be acting with improper intentions;
- –higher proportion of people without his attribute '… were more readily able to comply with the Term because the Complainant's protected attribute was the significant factor precluding compliance with the term';
- –the term was unreasonable because the consequences of him not complying with the term was that, amongst other things, he was subject to the show cause notice; and
- he had, during the April 2021 investigation, complained to Viva that he had been the victim of sexual harassment by Ms B, and '… the Respondents determined to change their position and press' the findings made that led to the January 2021 warning as grounds for dismissal which amounted to Viva engaging in victimisation within the meaning of s 129 and s 130 of the Act.
- By email sent on 28 July 2021, the QHRC advised Mr A's representatives that his complaint had been accepted under the Act and that notification letters would be sent out in the coming days.
Section 144 of the Act
- Section 144 of the Act provides:
144 Applications for orders protecting complainant's interests (before reference to tribunal)
- (1)At any time before a complaint is referred to the tribunal, the complainant or the commissioner may apply, as provided under the relevant tribunal Act, to the tribunal for an order prohibiting a person from doing an act that might prejudice-
- (a)the investigation or conciliation of the complaint; or
- (b)an order that the tribunal might make after a hearing.
- (2)A party or the commissioner may apply, as provided under the relevant tribunal Act, to the tribunal for an order varying or revoking an order made under subsection (1).
- (3)If the tribunal is satisfied it is in the interests of justice, an application for an order under subsection (1) may be heard in the absence of the respondent to the application.
- At the date of the hearing of Mr A's s 144 application, his complaint had not been referred to the QIRC under the Act.
Mr A's evidence and submissions
- Mr A submitted that the QIRC and the Queensland Civil and Administrative Tribunal ('the QCAT') have approached the exercise of the discretion under s 144 of the Act in a way similar to that used in the courts in applications for injunctions, namely, that he has to establish '… an arguable case for relief, and second, where does the balance of convenience lie.'
- Mr A also submitted that the approach of Industrial Commissioner Power in Bond v Multicap Ltd ('Bond') should be followed, namely, that he has to make out a prima facie case in the sense that if the evidence remains as it is, there is a sufficient likelihood of success to justify the preservation of the status quo pending the trial, and whether the inconvenience or injury which he would be likely to suffer if an injunction was refused outweighs, or is outweighed by, the injury which Viva would suffer if an injunction was granted.
- Mr A then submitted:
- While the test directly lifted from s 144 of the AD Act provides that the Tribunal may make;
an order prohibiting a person from doing an act that might prejudice-
(a) the investigation or conciliation of the complaint; or
(b) an order that the tribunal might make after a hearing.
it is submitted that this is a threshold question only, associated with injury suffered by the Complainant as a result of the act the Complainant seeks restrained.
- In determining this question, "the applicant only has to show that prejudice might occur. The obligation on the applicant is to show that a possibility of prejudice exists that is tangible or, at least perceptible and plausible and not too remote or unlikely..." .
- The balance of convenience test, it is submitted, is one that should not be rigidly held to a strict application of s 144(1)(a) and (b) of the AD Act, and instead is one that is guided only by s 144(1)(a) and (b) to ensure any order made by the Commission are appropriately proximal to the subject of the QHRc [sic] Complaint.
- The discretion to make an order under s 144 of the AD Act, it is submitted, is to be exercised in a way that recognises that it is intended principally to protect the interests of the complainant before reference and/or resolution of the Complaint to and/or by the QHRC.
- Consequently, it is submitted, for orders to be made pursuant to s 144 of the AD Act, the QIRC must be satisfied that;
- a.there is a serious question to be tried insofar as the applicant made out a prima facie case; and
- b.the acts which the Complainant seeks to prohibit are;
- acts that may prejudice the investigation or conciliation of the complaint, or any order the QIRC; and
- acts that may, if the injunction is refused, cause injury to the Complainant that outweighs the injury the Respondents would suffer if an injunction were granted.
- Mr A affirmed an affidavit for the purposes of his s 144 application.
- In terms of a prima facie case, Mr A's evidence is that:
- he disputed the allegations that he bullied the male employee the subject of the January 2021 warning, allegations which were found to be unsubstantiated;
- he disputed the 2019 allegations, allegations which were found to be unsubstantiated; and
- in his response as part of the investigation of the 2019 allegations, he raised his own complaint that he had been sexually harassed (by Ms B) and, while that complaint was acknowledged, no action was taken by Viva.
- In his submissions, Mr A also relied on his complaint as evidence establishing a serious question to be tried.
- In terms of evidence going to the balance of convenience, Mr A's evidence is that:
- the show cause process has had far reaching effects on his life, namely:
- –he had to engage representation to assist him in making his complaint to the QHRC;
- –given his age (55), his employment with Viva and its predecessor for 14 years, his unique role with Viva and the effects of COVID-19 on the aviation industry, if he was dismissed, it would be close to impossible for him to find a new job consistent with his qualifications and experience, and he would face a prolonged period of financial hardship through termination; and
- –if his employment was changed by Viva, he would feel significantly less secure in his employment and, given that his life commitments are structured around the remuneration of his present position, he would be placed in a position of financial stress and uncertainty;
- the effects of the show cause process have been far reaching on his mental and physical health such that:
- –he is struggling with severe anxiety and depression for which he is receiving '… clinical assistance';
- –on 13 August 2021, he has organised an appointment with his General Practitioner for a referral to a Psychiatrist;
- –it was on this basis that he brought his QHRC complaint; and
- –he anticipates that any change to his employment by Viva disciplining him or dismissing him would cause a considerable worsening of his mental health, such that it may impact his ability to '… progress my matter';
- he is ready and willing to return to his role with Viva if permitted by Viva;
- presently, he is on personal leave covered by the entitlements he has accrued with his lengthy employment with Viva; and
- he seeks orders which '… would stop the show cause process, and would prevent me from having my employment to [sic] prejudiced by my Employer, until such time as my complaint is resolved, or the Tribunal orders otherwise.'
- In terms of whether there is a serious question to be tried, Mr A submitted that:
- the threshold for establishing that there is an existence of a serious issue to be tried is not a high one;
- as demonstrated by the acceptance of his complaint by the QHRC, it has been determined by the delegate of the Human Rights Commissioner ('HRC') that his complaint sets out reasonably sufficient details to indicate an alleged contravention of the Act, and that his complaint is not frivolous, trivial or vexatious, or misconceived or lacking in substance;
- his affidavit (Exhibit 2) demonstrates that if the evidence remains the same there is '… at the very least the triable question as to whether the Complainant has been subject to unlawful direct and/or indirect discrimination pursuant to ss 10 and/or 11 of the AD Act, as well as victimisation pursuant to ss 129 and 130 of the AD Act'; and
- in any event, a prima facie case is made out and accordingly there is a serious question to be tried such that, consistent with the decision in Bond, there is a sufficient likelihood of success to justify the preservation of the status quo pending the trial.
- In terms of the question of the balance of convenience, Mr A submitted that:
- he seeks the maintenance of the current status, namely, with Viva taking no further steps in the show cause process and while such an order includes, by extension, protection from being terminated, '… the order is not solely concerned with the termination and instead looks at a wide ambit of considerations that flow from the show‑cause process as detailed below';
- if an order protecting his interests were not granted and the status quo not maintained, he may suffer inconvenience through a number of forms referred to in his affidavit, namely:
- –the immediate impact on his employment, being the adverse and detrimental action from the show cause process which may lead to penalties imposed by Viva from which he may suffer financial hardship or the termination of his employment;
- –the psychological impact of the show cause process continuing, which is unknown, but could be severe and may have a severely detrimental impact on his health which may:
- prejudice '… the conciliation of the matter in circumstances where the scope of damages is unknown and consequently, the parties are disparate on grounds of resolution'; and
- prejudice the orders made on hearing as the psychological impact on him may mean options such as reinstatement or winding back any disciplinary action may not be practicable or may not undo the impact on his psychological state;
- –his termination will cause a severe injury of wide ranging impact including psychological, the inability to obtain further employment and financial hardship through loss or a significant decrease in pay; and
- –any personal financial hardship may interfere with him prosecuting the substantive matter in that if he suffers personal financial hardship, he may have difficulty in progressing the matter forward, including during conciliation, and which may limit him in obtaining representation to assist in progressing the matter.
- Indeed, Mr A submitted:
- While the QHRC and QIRC are jurisdictions that have regard to the ability to self-represent, the Complainant may be precluded or disadvantaged in self-representing due to an aforementioned severely affected psychological state.
- Either or both of these circumstances may prejudice the conciliation of the matter and preclude the progression of the matter to hearing, inherently prejudicing an order that the tribunal might make after a hearing.
- Additionally, if the status quo is not maintained, further events occur, and further damage is suffered by the Complainant, the Complainant will need to run further branches of a more developed case, rather than that currently at hand.
- This materially prejudices the Complainant as it creates additional onuses for the Complainant to discharge at trial that would otherwise not exist if the injunction were granted.
- Where the Complainant has to run additional limbs of a case as a result of an act of the Respondents, especially where the Complainant is disenfranchised in progressing their Complaint for the aforementioned reasons, there is a possibility that orders made by the Tribunal at hearing may be prejudiced.
- In oral submissions, Mr A submitted:
So in that scope we say that, in the first instance, we have prejudice to the process through the psychological impact, prejudice to orders that may be made through the psychological impact, and a body of law that says that a termination can be stopped, very specifically because of the impact it has on the orders that might be made. And, again as detailed in our written submissions, there has been very specific consideration given to a number of instances where the idea of a reinstatement, even though it could potentially be made, is going to be frustrated or made problematic by the termination in the first place and any intervening events.
- Mr A was suspended on full pay pending the determination of the outcome of the 2019 allegations.
- Mr A submitted that the inconvenience Viva said it would suffer if the order Mr A sought was made (referred to below), had been self-imposed, brought about by Mr A being stood down on pay pending the investigation of the 2019 allegations, and that the inconvenience he says he might suffer if an order is not made, outweighs that self‑imposed inconvenience of Viva.
- Mr A also submitted that in applying the elements expressly referred to in s 144 of the Act, if the show cause process continued, that:
[M]ay result in a variety of circumstances that might prejudice the investigation, it might prejudice the conciliation, and it might at the final day prejudice orders. Very simply, if the conclusion of the show cause process - or even a continuation of the show cause process does anything from impacting detrimentally on the complainant’s psychological state through to creating further matters and developing past this current status quo, then they will be events - or they will be matters that might prejudice the investigation of the complaint, because the situation has changed.
The complexion’s changed. It might prejudice the conciliation because what’s been conciliated may be different. It’s no longer this complaint. It’s a [sic] evolved or different set of circumstances. It might prejudice the conciliation through the complainant’s ability to participate reasonably in those processes and it might ultimately prejudice the orders that are made for the reasons I’ve detailed previously.
Viva's evidence and submissions
- Mr Neville's evidence was that:
- once the investigation of the 2019 allegations was completed, he formed the view that the conduct which had been substantiated or admitted to by Mr A and the conduct leading to the January 2021 warning, brought Mr A's ongoing position as a front-line supervisor of Viva's people into question;
- for that reason, along with Ms Cuthbert, he made the decision that it was appropriate to commence the show cause process with Mr A;
- at the time of him (Mr Neville) affirming his affidavit, two extensions had been given to Mr A to provide his response to the show cause letter and no final decision had been made in relation to Mr A's ongoing employment;
- Mr A has held the role of ITP Manager since September 2017 and in his role, he (Mr A) supervises approximately six or seven staff with refuelling activities at Brisbane Airport and, as a front-line supervisor, he is responsible for duties such as ensuring his team has adequate tools, are performing their roles safely, and scheduling and communicating relevant rosters;
- Mr A has been absent from his role of ITP Manager at the Brisbane Airport since March 2021;
- during the time Mr A has been absent from his role:
- –a Shift Team Lead has been acting in Mr A's role; and
- –Viva has had to:
- take steps to backfill the Shift Team Lead role;
- reallocate duties to different people; and
- engage some casual staff members to cover the follow on effects resulting from Mr A's absence;
- –for at least the last periods of time that Mr A has received payment from Viva, it is paying the cost of his remuneration, as well as the employee who has been acting up in his role, with the cost to Viva being approximately $50,000 to $60,000 in additional remuneration; and
- –his absence has had a number of other impacts on Viva, including:
- a breakdown of leadership stability caused by a lack of knowledge and skill in the employees engaged to fill his role on a temporary basis;
- the need to train employees acting in the positions left temporarily vacant due to Mr A's absence; and
- a demonstrable increase in stress levels of the team due to the uncertain nature of the temporary fulfilment of Mr A's role over an extended period of time;
- if the order sought by Mr A was made, it would interfere with Viva's ability to finalise the show cause process, and if that cannot be done in a timely manner, it will undermine the purpose and integrity of Viva's disciplinary procedures; and
- if Mr A did return to his role and the order sought by Mr A was made, he (Mr Neville) had concerns about Mr A coming back to work because of the significant breakdown of trust which has occurred.
- Ms Cuthbert's evidence was that:
- the Code sets out its expectations for Viva's employees, including expectations that its employees abide by its core values of honesty, integrity and respect for people;
- employees have a responsibility for providing a safe and inclusive workplace, including obligations with respect to health, security, environment and equal opportunity;
- Viva has a Standards of Behaviour ('the Standards') which set out:
- –what is expected of all its employees and that, through the Standards, all individuals will contribute to the existence of a safe and respectful work environment;
- –the responsibilities expected of employees;
- –what discrimination, harassment and bullying are within the workplace; and
- –how Viva manages such issues;
- Viva has a Disciplinary Procedure ('the Disciplinary Procedure') which sets out the process to be followed when dealing with an alleged breach of a relevant policy, including the Code, namely:
- –how an investigation will be conducted once a complaint is received;
- –how a decision will be made as to what action will be taken following the investigation;
- –how disciplinary action will be taken; and
- –when termination of employment may occur.
- Ms Cuthbert's further evidence was that:
- the investigation report that led to the January 2021 warning included findings that the allegations made against Mr A were not substantiated, in so far as it was found he had not bullied the male complainant, however, some of the conduct that constituted those allegations were substantiated which was found to be a breach of the Code; and the investigator also found that many of the exchanges between Mr A and the male employee were robust or angry;
- upon her review of the findings from the investigation of the 2019 allegations, she formed the view that some of the findings, and Mr A's admissions made during the investigation, fell short of the conduct expected of him as a leader of Viva;
- in particular, she formed the view that:
- –the course of events which were admitted to by Mr A throughout the investigation represented a lack of judgment on his behalf, in particular, his conduct in escorting Ms B back to his hotel room while she was in a heavily intoxicated state; and
- –the text messages which were sent by Mr A following the events that took place on 8 May 2019 were of a sexual nature and that such communication was inconsistent with the expectations Viva held for leaders of its organisation; and
- as a result of the views she had formed in regards to the findings that led to the January 2021 warning and the findings from the investigation of the 2019 allegations, she made the decision that Mr A:
[H]ad demonstrated a pattern of behaviour which was inconsistent with the conducted [sic] expected of him as a leader at Viva Energy, as set out in the Code of Conduct and Standards of Behaviour described at paragraph 7 and 8 above.
- In particular, Ms Cuthbert's evidence was that:
- This decision to commence a show cause process was consistent with the Disciplinary Procedure described at paragraph 9.
- This decision to commence a show cause process was the same decision I would have made for any other Viva Energy employee, regardless of their gender or sexuality, who:
- a.was in a position of leadership akin to the ITP Manager role;
- b.had been issued with a written warning in respect of certain conduct; and
- c.had a second complaint made against them which resulted in the following behaviour being admitted to in relation to a co-worker over whom the employee was senior to:
- interactions with the co-worker while the co-worker was intoxicated, which were held not to demonstrate a lack of judgement; and
- exchanging of text messages of a sexual nature with the co-worker, which were held not to meet the expectations of Viva Energy.
- After referring to decisions of the QCAT and the Queensland Anti‑Discrimination Tribunal ('QADT') which considered and applied s 144 of the Act, Viva submitted that:
- Judge Horneman-Wren in Coop v State of Queensland ('Coop'), in respect of the application of s 144 of the Act, emphasised the need for precision in the identification of both the act said to give rise to the material risk of prejudice and the orders which are said to be potentially prejudiced, and in what way;
- the only question material to an application under s 144 is whether there is, or is not, a material risk of prejudice of the kind which might affect the things mentioned in s 144(1)(a) or (b);
- Mr A's submissions as to the balance of convenience focus on the prejudice to him which fundamentally misapprehends the specific nature of the prejudice which is relevant to the enquiry under s 144 of the Act; and
- the broad nature of the proposed act Mr A seeks to restrain (as set out in Mr A's s 144 application) prevents a proper analysis of the real question to be determined, namely, whether the particular acts will prejudice the investigation or conciliation of Mr A's complaint or an order that the QIRC may make after a hearing.
- In oral submissions, Viva submitted that:
- applying the decision of Wilson J, President of the QCAT, in McIntyre v Hastings Deering (Australia) Ltd and Anor ('McIntyre'), Mr A has to show a possibility of prejudice that is tangible, or at least perceptible and plausible, and not too remote and unlikely;
- the evidence upon which Mr A contends that is prejudicial to the investigation or conciliation of his complaint, or any order that the QIRC might make after a hearing, is the psychological impact of the show cause process on him if that process was to continue; and
- his evidence about that is speculative and is inconsistent with the fact he has been instructing his representatives since the investigation of the 2019 allegations up to his present s 144 application.
- In terms of the victimisation claim, Viva submitted that:
- there was no evidence that a formal complaint had been made by Mr A to Viva about the sexual harassment of him by Ms B; and
- Ms B ceased to be an employee of Viva by the time he told Viva he had been sexually harassed by Ms B.
- Viva also made submissions about whether Mr A had established a prima facie case and where the balance of convenience lay.
- In terms of a prima facie case, Viva submitted that:
- the evidence demonstrates that in instigating the external investigations and the subsequent show cause process, it has acted consistently with its policies and procedures, including the Code, the Standards and the Disciplinary Procedure;
- the show cause process was commenced on the basis of concerns arising in respect of factual findings made in two external investigations;
- the great weight Mr A places on the second of those investigations to support his contention that '… the approach taken by the Employer is motivated by the Complainant's gender and sexuality' is fundamentally misconceived because:
- –it overlooks the fact that the show cause letter addresses concerns arising in respect of factual findings made in both investigations, the concern being that Mr A had demonstrated a pattern of behaviour which is inconsistent with the conduct expected of him as an employee in a leadership position as set out in the Code and the Standards; and
- –the factual findings underpinning the concerns arising out of the second investigation are those which were admitted to by Mr A and the text messages sent by Mr A, and the concerns addressed in the show cause letter do not extend any further;
- the evidence demonstrates that the decision to commence the show cause process would have been made by the decision makers in respect of any employee, regardless of gender or sexuality, in the relevant circumstances;
- the show cause process has been utilised by Viva in respect of other employees regarding inappropriate workplace behaviour;
- the indirect discrimination complaint is fundamentally misconceived because it seeks to attack the allegations that were the subject of the second external investigation, but these are not the subject of the show cause process in that the concerns raised by the show cause letter are, relevantly, based on Mr A's own admissions and his text messages; and
- there is no evidence which arises above a bare assertion that supports the victimisation complaint and the evidence it has put on clearly refutes the suggestion that the show cause process was instigated because of the complaint raised by Mr A that he had been the victim of sexual harassment.
- In terms of the balance of convenience, Viva submitted that:
- it is incumbent on Mr A to demonstrate material prejudice and he has not done so in that he has not identified the particular remedy or remedies which he says are prejudiced and in what way;
- there are a vast array of orders which the QIRC may make under the Act if Mr A's complaint is proved;
- if Mr A's real objective is to prevent Viva from terminating his employment, then this application is misconceived and premature because the show cause process has not progressed beyond the first show cause letter, Mr A's response has not yet been received, and no decision has been made in relation to Mr A's ongoing employment;
- by contrast to Mr A's position, the prejudice to Viva is significant; and
- the prejudice to Viva is also amplified by the uncertain and potentially lengthy duration of the proposed order.
Should the order sought by Mr A be made?
- As I indicated to the parties during the hearing, there was a question in my mind as to whether the practice that has been adopted by the QADT, the QCAT and the QIRC to determine s 144 applications, by applying at least two of the principles to determine whether or not an interlocutory injunction should be granted, is correct. Two reasons immediately come to mind that give rise to the question.
- First, the Parliament has chosen not to use the noun 'injunction' in respect of the grant of power given under s 144 of the Act. It has been held by Gray J in McGee v Sanders (No 2) that where the Parliament has chosen not to use that noun in conferring a broad power on a court to make interim orders, then it may not be that the principles considered in determining whether or not to make an order for an interlocutory injunction should be applied in dealing with applications for such orders.
- Secondly, the statutory power given under s 144 of the Act is in strict terms. The matters the QIRC must consider are the act the complainant or the HRC contends might prejudice the investigation or conciliation of the complaint, or an order that the QIRC might make after a hearing. The concern I have is that the principles considered in interlocutory injunctions may be a distraction from the matters to which s 144 directs attention.
- However, as I raised this with the parties during the hearing, they have not had the opportunity to provide considered argument about the issue. Both parties framed their submissions, in part, around the practice adopted by the QADT, the QCAT and the QIRC. I will determine the matter by considering the submissions made by the parties.
The construction of s 144 of the Act
- In R v A2, Kiefel CJ and Keane J, in summarising the principles of statutory construction, stated in part:
- The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
- Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
- The meaning of the provision in a statute must be determined by reference to the language of the instrument viewed as a whole and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. In addition, the purpose of the legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.
- In addition, s 14A(1) of the Acts Interpretation Act 1954 provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. The noun 'purpose', for an Act, is defined in the Acts Interpretation Act 1954 to include its policy objective.
- Chapter 7, pt 1, div 1, sub-div 1 of the Act deals with all complaints. Section 134 of the Act sets out who may complain, s 135 of the Act provides that a person may make a complaint alleging more than one contravention of the Act and s 136 of the Act sets out the formalities of making a complaint. Section 144 is located in ch 7, pt 1, div 1, sub‑div 1 of the Act.
- Once a complaint has been made, ch 7, pt 1, div 2 of the Act provides for the investigation process. Section 154A of the Act provides that at any time after the complaint has been received, the HRC may investigate the complaint.
- Chapter 7, pt 1, div 3 of the Act sets out the conciliation process. Section 158(1) of the Act provides that if the HRC believes that a complaint may be resolved by conciliation, the HRC must try to resolve it in that way.
- Chapter 7, pt 1, div 4 of the Act provides for the referral of an unconciliated complaint, that is or includes a work-related matter, to the QIRC.
- Chapter 7, pt 2 of the Act sets out what the QIRC may do and div 2 of that part sets out the hearing process. Chapter 7, pt 2, div 3 of the Act sets out the post‑hearing process which includes s 209. That section provides for the orders the QIRC may make if it decides the respondent has contravened the Act. That power includes an order requiring the respondent to pay the complainant, within a specified period, an amount it considers appropriate as compensation for the loss or damage caused by the contravention and an order requiring the respondent to do specified things to redress loss or damage suffered by the complainant because of the contravention. Section 209(5) defines 'damage', in relation to a person, to include '… the offence, embarrassment, humiliation, and intimidation suffered by the person.'
- Having regard to the context in which s 144 appears in the Act and to its terms:
- the 'complaint' referred to in s 144(1) is the complaint made to the HRC pursuant to s 134 of the Act; and
- the purpose or policy objective of s 144 of the Act is to confer discretion on the QIRC to make an order prohibiting any person from doing an act that might prejudice either:
- –the investigation or conciliation of the complaint by the HRC, as provided for in ch 7, pt 1, divs 2 or 3 of the Act; or
- –an order the QIRC may make after a hearing, as provided for in ch 7, pt 2, div 3 of the Act.
- Further, as has been previously held:
- the consideration of the questions required to be considered in s 144 occurs within the ambit of a provision which, on its face, involves the exercise of a wide discretionary power to make orders directed to the maintenance of the status quo for the purpose of enabling the processes provided under the Act to be effectively pursued, and to maximise the opportunity for its objectives to be achieved which include protection from unfair discrimination, the investigation of complaints in which discrimination is alleged and, if the HRC believes resolution by conciliation is possible, attempts to do so; and
- the discretion to make an order under s 144 is to be exercised in a way which recognises that it is intended, primarily, to protect the interests of the complainant before reference of the complaint to the tribunal.
- Justice Wilson in McIntyre stated that while the QCAT and the QADT have generally approached the exercise of the discretion arising under s 144 in a way that is used in the courts in applications for injunctions, that was not to say that an applicant who establishes a prima facie case and that the balance of convenience lies in the applicant's favour, can avoid meeting the obligation to also establish what s 144 specifically requires, namely, the making of an order prohibiting a person from doing an act that might prejudice the investigation or conciliation of the complaint or an order that the tribunal might make after a hearing.
- Indeed as submitted by Viva, Wilson J held that by having regard to the word 'might' in s 144 of the Act, an applicant has to show that a possibility of prejudice exists that is tangible or, at least, perceptible and plausible, and not too remote and unlikely.
- In the same vein, Judge Horneman-Wren in Coop relevantly stated:
- The nature and content of the injunction also has a statutory context in an application under s 144. The nature of the order is that it must be, in all cases, prohibitory not mandatory. The content of the order in any particular case is that it will restrain the act or acts which have been identified as those which, if unrestrained, would cause potential prejudice to the orders which the Tribunal may otherwise make after a hearing.
- In my view, this case demonstrates the need for precision in respect of these matters. The prohibition of the particular act or acts identified as those which might prejudice an order the Tribunal may make is all that is authorised under s 144.
- For these reasons, I reject Mr A's submission that s 144(1) of the Act amounts to a threshold question only.
Might the prejudice identified by Mr A occur if the show cause process continues?
- Mr A's complaint is that:
- Viva has engaged in unlawful direct and indirect discrimination, contrary to the Act, on the basis of his sex or, in the alternative, his sexuality, by subjecting him to the show cause notice; and
- the reason for asking him to respond in the show cause process to his conduct that led to the January 2021 warning, was the complaint he made through his representative's letter to Q Workplace Solutions dated 20 April 2021 that Ms B had sexually harassed him, which he contends amounts to victimisation within the meaning of s 129 and s 130 of the Act.
- That is the complaint that has been accepted by the QHRC and it is that complaint I must consider in determining whether or not to exercise discretion to make an order pursuant to s 144 of the Act.
- The act Mr A wants the QIRC to prohibit Viva from doing is the continuation of the show cause process.
- In paragraphs - of these reasons, I have summarised the prejudice Mr A identifies might occur if the order he seeks was not made. I do not accept Mr A's submissions.
- As referred to earlier, Mr A's complaint is that the commencement of the show cause process is unlawfully discriminatory and an act of victimisation. I do not find that the continuation of the show cause process might prejudice - being prejudice that is perceptible and plausible and not too remote or unlikely - any conciliation of that complaint by the HRC or any order that the QIRC may make after a hearing. There are a number of reasons for this.
- First, there is no persuasive evidence before me that Mr A's psychological state is that, as set out in his evidence, due to the commencement of the show cause process. In addition, there is no persuasive evidence before me that Mr A's psychological state may be that, as set out in his evidence, due to the continuation of the show cause process. All such processes are stressful for any employee. However, Mr A's evidence about the current and potential effect on his psychological state is vague, speculative and not plausible.
- Mr A states he is currently receiving 'clinical assistance' but does not state the nature of that clinical assistance. At the date he affirmed his affidavit in these proceedings (Exhibit 2) he was yet to have an appointment with his General Practitioner for a referral to a Psychiatrist, although he said this was going to occur. Further, Mr A stated that he had sought the advice of a Psychologist, but gave no evidence that he had actually seen a Psychologist. In addition, Mr A gave the vague evidence that for the last six weeks '… I have been reaching out to the employment assistance program conversing with a counsellor to no avail.' It is unclear what he meant by that evidence.
- In terms of the future of his mental health, the only evidence Mr A gives is his own and which is not supported by a medical practitioner. Further, Mr A's evidence is speculative in that:
- he anticipates that any change to his employment would cause his mental health to worsen considerably;
- he is very concerned how bad his mental health might become if he was disciplined or dismissed; and
- he worries that if his mental state worsens, it may impact his ability to progress his matter.
- Mr A's evidence is also internally inconsistent. On the one hand, he gives evidence about the current effect on his psychological state due to the show cause process, namely, '… severe anxiety and depression'. Immediately after that, he then gives evidence that he is ready and willing to return to his duties if permitted to do so by Viva. Furthermore, Mr A's mental state, despite his evidence, has not prevented him:
- from giving instructions to his representatives during the show cause process, in commencing his complaint and in making his s 144 application; and
- from affirming his affidavit for his s 144 application.
- For these reasons, I do not accept Mr A's submissions about any relevant prejudice due to the effect of the continuation of the show cause process on his mental state.
- Secondly, an outcome of the show cause process may be the termination of Mr A's employment. I acknowledge that Mr Neville's evidence is that he believes there has been a significant breakdown of trust with Mr A. However, no decision has yet been made about what disciplinary action, if any, may be taken against Mr A. Indeed, as at the date of the hearing of Mr A's s 144 application, Mr A had not provided a written response to Viva as invited by Mr Neville's letter dated 8 July 2021. For this reason, the relevant prejudice which Mr A states will arise if his employment is terminated is speculative. Indeed, the assessment of any relevant prejudice must be in respect of the complaint that has been made to the QHRC. Mr A's complaint is that the commencement of the show cause process is unlawfully discriminatory and an act of victimisation.
- Thirdly, Mr A says he may suffer an adverse and detrimental impact on his employment from penalties (other than dismissal) imposed by the show cause process which may mean he cannot afford to continue to be represented. There are a number of problems with this submission. Mr A's submission is speculative. There is no clear evidence from Mr A that if non-dismissal disciplinary action is taken against him, he would not have the financial resources to afford continued representation. Similarly, there is no clear evidence from Mr A that even if he was dismissed, he would not have the financial resources to afford continued representation. Further, the submission infers that an unrepresented complainant might not achieve a conciliated outcome before the HRC or a relevant order from the QIRC. There is no proper basis for such an inference.
- Fourthly, even if Mr A was dismissed, and a further or amended complaint was made and accepted by the HRC and, ultimately before the HRC in conciliation or before the QIRC in a hearing, he has an expanded case, those facts, of themselves, are unlikely to prejudice the conciliation of such an amended complaint or any order that the QIRC may make after a hearing about such an amended complaint. The fact that Mr A may have to run a more developed case than his current complaint is not a fact that would prejudice the conciliation of his present complaint or an order that the QIRC may make after hearing his present complaint.
- Fifthly, the relief Mr A claims in his complaint is compensation for non-economic loss. For the reasons given above, the evidence led by Mr A has not persuaded me that the continuation of the show cause process might prejudice, in respect of that relief sought, the conciliation of his complaint or an order that the QIRC may make after the hearing of his complaint.
Prima facie case
- In Coop, Judge Horneman-Wren, Deputy President of the QCAT referred to the principles confirmed by Wilson J in Jones v Queensland Health that apply in respect of the application of s 144 of the Act, namely, the principles relevant to interlocutory injunctions. Judge Horneman-Wren stated those principles require first, that the applicant establish that there is a prima facie case, in the sense that if the evidence remains as it is, there is a sufficient likelihood of success to justify the preservation of the status quo pending the trial. Secondly, it must be determined whether the inconvenience or injury which the applicant would be likely to suffer if an injunction is refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.
The direct discrimination complaint
- In hearing and determining a case of direct discrimination, a complainant is (usually) forced to rely on circumstantial evidence. However, the relevant tribunal must carefully consider the circumstances established by the evidence and not proceed to draw inferences unless the circumstances properly give rise to such inferences. Further, the tribunal must carefully consider the explanations put forward by a respondent which must be carefully considered with the initial circumstances. The tribunal must be satisfied, before finding that any unlawful discrimination has occurred, that, in all the circumstances, it is more probable than not that less favourable treatment on the basis of the alleged attribute did occur.
- The evidence Mr A put on, in support of his direct discrimination case, included:
- that he disputed all the original allegations made against him and that they were found to be unsubstantiated; and
- his complaint to the QHRC.
- Mr A's complaint of direct discrimination depends upon an inference being drawn that the substantial reason for commencing the show cause process, in respect of his admitted conduct in walking Ms B back to his hotel when she was heavily intoxicated and later exchanging text messages with her, is on the basis that he is a male heterosexual and that in those same circumstances, Viva would not have commenced a show cause process against a female employee or a homosexual male employee.
- In relation to the issue concerning the text messages, Mr A has not included those messages in his evidence because he says he no longer has them. However, as part of his response to the investigation of the 2019 allegations in April 2021, Mr A stated that:
- it was plain that by the text messages he was concerned for Ms B's welfare and her dignity;
- he sought to reassure her that there were no hard feelings by inviting her to dinner as he had very few options available to him to try and keep any future communication with Ms B private and discreet so as not to cause Ms B or himself any further embarrassment; and
- some of the text messages '… may have crossed a line of what would be normal conduct between colleagues' but were sent in order to make Ms B feel like nothing was wrong.
- The evidence of Mr Neville and Ms Cuthbert is that:
- Mr A's conduct, by escorting Ms B back to his hotel room while she was heavily intoxicated, displayed a lack of judgment;
- the subsequent text messages sent by Mr A were of a sexual nature, being communication which was inconsistent with the expectations Viva held for its leaders;
- their view was that this conduct of Mr A, plus his conduct that led to the January 2021 warning, was inconsistent with the Code and the Standards; and
- the show cause process, consistently with the Disciplinary Procedure, was then commenced for those reasons.
- Viva also did not exhibit the text messages to the affidavit material upon which it relied.
- However, if the evidence remained the same, I am not persuaded that there is a sufficient likelihood of success to justify the preservation of the status quo pending the trial. That is to say, on the evidence currently before me, I am not persuaded there is a sufficient likelihood of Mr A proving that a substantial reason the show cause process has been commenced against him was on the basis of his sex or sexuality. The reasons for this are:
- the inclusion of the findings made by Viva that led to the January 2021 warning - which are not alleged by Mr A to be made on the basis of his sex or sexuality - as a basis for commencing the show cause process;
- the admitted conduct of Mr A in May 2019 of escorting Ms B back to his hotel room while she was heavily intoxicated and his admission that he subsequently sent text messages to her;
- Mr A's explanation for sending the text messages is not convincing and his own description of some of the text messages is inconsistent with his claim he sent them because he was concerned for Ms B's welfare and her dignity;
- Ms Cuthbert's evidence that the text messages were of a sexual nature;
- the fact that Mr A holds the position of a leader within Viva; and
- the reasons given by Viva for commencing the show cause process, namely, the evidence of Mr Neville and Ms Cuthbert that Mr A's conduct was inconsistent with the Code and the Standards.
The indirect discrimination complaint
- Mr A complains that the term imposed was the requirement for assistance to be provided to an intoxicated, vulnerable employee by another employee who could not have been attracted to the intoxicated, vulnerable employee, or otherwise perceived by Viva to pose a threat to the intoxicated, vulnerable employee or be acting with improper intentions. Mr A complains that the term was implicitly imposed by the commencement of the show cause process. A term said to be imposed may be implicit in the conduct which is said to constitute discrimination.
- However, I am not persuaded that if the evidence stayed the same, there is a sufficient likelihood of success that Mr A could prove that particular term was imposed. It is a significant stretch to claim that, by the commencement of the show cause process, Viva imposed the term formulated by Mr A. This is because the reasons for the commencement of the show cause process were:
- the reasons for the January 2021 warning;
- all of Mr A's admitted conduct concerning Ms B, including the text messages Mr A sent to Ms B; and
- the view formed by Viva that Mr A's conduct was inconsistent with the Code and the Standards having regard to his leadership position.
The victimisation complaint
- I am not persuaded that if the evidence stayed the same, there would be a sufficient likelihood of success in respect of the victimisation complaint.
- First, on the evidence before me, Mr A made no complaint directly to Viva that Ms B had sexually harassed him. During the investigation of the 2019 allegations conducted in April 2021, Mr A stated to the Q Workplace Solutions investigator that he had been sexually harassed by Ms B. Secondly, assuming that statement was brought to the attention of Viva, again, on the evidence before me, the show cause process was commenced having regard to the entirety of the conduct of which Viva found Mr A had engaged, including the findings made during the investigation of the 2019 allegations which included the text messages.
- Furthermore, I do not accept Mr A's submission that merely because the HRC has accepted his complaint, that fact is evidence that suggests there is a serious question to be tried. I accept that s 139 of the Act provides that the HRC must reject a complaint if the HRC is of the reasonable opinion that the complaint is frivolous, trivial or vexatious, or is misconceived or lacking in substance. However, in the absence of direct proof or evidence being provided with a complaint, the HRC, in deciding whether or not to accept a complaint, will need to consider whether the details provided in and with the complaint are indicative of circumstances that, if ultimately proved, are capable of supporting the inference sought to be drawn or the case alleged by the complainant. In the present case, Mr A's complaint consisted of allegations of fact and his contentions that he was the subject of contraventions of the Act. No other proof was provided. Clearly, the HRC accepted Mr A's complaint because what was alleged was an indication of contraventions. However, the fact a complaint indicates a contravention is not evidence of a contravention.
The balance of convenience
- For the reasons given earlier in paragraphs -, I am not persuaded that Mr A would suffer the inconvenience or injury he says he would suffer if the order he seeks was not made. In my opinion, Viva would suffer the greater inconvenience of being unable to finalise its disciplinary process in a timely manner if an order of the kind sought by Mr A was made. The balance of convenience is against making an order of the kind sought by Mr A.
- In any event, the question of a prima facie case should not be considered in isolation from the balance of convenience, and the apparent strength of a party's prima facie or substantive case will often be an important consideration to be weighed in the balance.
- In my view, for the reasons I have given above, the strength of Mr A's substantive case is not particularly strong which also weighs against making the order he seeks.
- The question in the present proceeding is whether or not I should make an order, pursuant to s 144 of the Act, of the kind sought by Mr A.
- For the reasons I have given, this is not a case where I am persuaded that the facts are such that I should exercise my discretion and make an order of the kind sought by Mr A in his s 144 application.
- I make the following order:
1. The Applicant's application for an order pursuant to s 144 of the Anti‑Discrimination Act 1991 is dismissed.
 T 1-19, ll 33-37.
 T 1-86, ll 21-26.
 T 1-7, ll 4-19.
 Exhibit 3, exhibit 'VN-01' first and second pages. In his complaint to the QHRC, Mr A refers to this matter as the 'December 2020 allegations' (Exhibit 1, exhibit 'PH-01'). This is not an accurate description. Whilst the original allegations against Mr A (that he had bullied the other male employee the subject of the January 2021 warning) were not substantiated, Viva found that the three aspects of Mr A's conduct, referred to above, were such that he should receive a written warning in relation to that conduct.
 Exhibit 4, exhibit 'NC-5', third page.
 Exhibit 3, exhibit 'VN-01', second page.
 Exhibit 3, exhibit 'VN-01', second and third pages.
 Again, in his complaint to the QHRC, Mr A makes reference to the 'March 2021 allegations' (see Exhibit 2, paras. 5 and 6). This is not an accurate description of the matters referred to in those paragraphs of the complaint. While the original allegations against Mr A concerning Ms B were not substantiated by Q Workplace Solutions, Viva, in the show cause letter, made findings about two aspects of Mr A's conduct concerning Ms B (referred to earlier in these reasons), such that he was invited to respond why Viva should not take any disciplinary action against him.
 Exhibit 1, exhibit 'PH-01'.
 Exhibit 1, exhibit 'PH-01'.
 Exhibit 1, exhibit 'PH-01'.
 Exhibit 1, exhibit 'PH-01'.
 Exhibit 1, exhibit 'PH-01'.
 Exhibit 1, exhibit 'PH-01'.
 Exhibit 1, exhibit 'PH-01'.
 Mr A's written submissions filed on 10 August 2021 ('Mr A's submissions'), para. 27.
  QIRC 051 ('Bond').
 Mr A's submissions, para. 31.
 Citations omitted.
 Exhibit 2, paras. 10-44.
 Mr A's submissions, paras. 47-48.
 Exhibit 2, paras. 45-66.
 Exhibit 2, paras. 67-77.
 Exhibit 2, para. 81.
 Exhibit 2, para. 89.
 Exhibit 2, para. 90.
 Mr A's submissions, paras. 41-53.
 Mr A's submissions, paras. 59-60.
 Mr A's submissions, paras. 63-69.
 Mr A's submissions, paras. 70-75.
 Mr A's submissions, paras. 76-82.
 Mr A's submissions, paras. 83-86.
 T 1-36, ll 24-31.
 Exhibit 3, para. 8.
 T 1-77, ll 35-45.
 T 1-79, ll 11-16.
 T 1-41, ll 13-26.
 Exhibit 3, paras. 9-27.
 Exhibit 4, paras. 7-9. The Code, the Standards and the Disciplinary Procedure were exhibited to Exhibit 4.
 Exhibit 4, paras. 1-13.
 Exhibit 4, paras. 15-16.
  QCATA 205 ('Coop').
 Ibid -.
 Viva's written submissions filed on 11 August 2021 ('Viva's submissions'), paras. 31-45.
  QCAT 438 ('McIntyre').
 Ibid .
 T 1-66, l 39 to T 1-68, l 29.
 T 1-61, l 28 to T 1-64, l 15.
 Viva's submissions, paras. 49-56.
 Viva's submissions, paras. 58-70.
 T 1-59, l 25 to T 1-60, l 8, T 1-70, ll 5-11 and T 1-76, l 32 to T 1-77, l 2.
  FCA 554; (1991) 32 FCR 397 ('McGee'), 402 (Gray J). Cf Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd  FCA 458,  (Wheelahan J).
 McGee (n 52) 402-403. By way of comparison, s 46PP(1) of the Australian Human Rights Commission Act 1986, which seems to be the equivalent to s 144 of the Act, provides that at any time after a complaint is lodged with the Australian Human Rights Commission, the Federal Court or the Federal Circuit Court may grant an 'interim injunction' to maintain the status quo, as it existed immediately before the complaint was lodged, or the rights of any complainant, respondent or affected person. A comparison can be also be made to s 473 and s 314(1)(f) of the Industrial Relations Act 2016 ('the IR Act'). The former confers power on the QIRC to grant an interim injunction to compel compliance with or to restrain or prevent a contravention or continuing contravention of an industrial instrument, a permit or the IR Act. The latter confers power to grant an interim or other injunction to prevent, stop or remedy the effects of a contravention of ch 8, pt 1 of the IR Act.
  HCA 35; (2019) 93 ALJR 1106 (citations omitted) (Nettle and Gordon JJ at  agreeing).
 Project Blue Sky Inc. v Australian Broadcasting Authority  HCA 28; (1998) 194 CLR 355,  (McHugh, Gummow, Kirby and Hayne JJ).
 Ibid .
 Certain Lloyd's Underwriters v Cross  HCA 56; (2012) 248 CLR 378,  (French CJ and Hayne J).
 Anti-Discrimination Act 1991 s 209(1)(b).
 Anti-Discrimination Act 1991 s 209(1)(c).
 Anti-Discrimination Act 1991 s 174B(a)(i).
 McIntyre (n 45) .
 Ibid .
 Ibid -.
 McIntyre (n 45) .
 Coop (n 42).
 Exhibit 1, exhibit 'PH-01', paras. 39 and 45 a.
 Exhibit 2, paras. 32-33.
 Exhibit 1, exhibit 'PH-01', paras. 50-55.
 Exhibit 2, para. 72.
 Exhibit 2, paras. 68 and 69.
 Exhibit 1, exhibit 'PH-01', paras. 57-58.
 Coop (n 42).
  QCAT 700, -.
 Coop (n 42) . The authorities referred to by Judge Horneman-Wren, in respect of this aspect of his Honour's decision, were Beecham Group Ltd v British Laboratories Pty Ltd  HCA 1; (1968) 118 CLR 618 ('Beecham'), 622-623 (Kitto, Taylor, Menzies and Owen JJ) and Australian Broadcasting Corporation v O'Neill  HCA 46; (2006) 227 CLR 57,  (Gleeson CJ and Crennan J) and  (Gummow and Hayne JJ).
 Coop (n 42) . The authority referred to by Judge Horneman-Wren in respect of this aspect of his Honour's decision was Beecham (n 74), 622-623 (Kitto, Taylor, Menzies and Owen JJ).
 For example, Luthje v State of Queensland & Ors  QCAT 417,  (Senior Member Oliver).
 Bond (n 17), - (Industrial Commissioner Power) and Seen v Rebel Sport Limited  QIRC 086, - (Industrial Commissioner McLennan).
 McRostie v Boral Resources (Qld) Pty Ltd  QADT 4, 25 (Senior Member Keim).
 Ibid 28.
 Exhibit 1, exhibit 'PH-01', paras. 24 and 25.
 T 1-39, ll 34-36.
 Waters v Public Transport Corporation  HCA 49; (1991) 173 CLR 349, 360 (Mason CJ and Gaudron J).
 Toodayan & Anor v Anti-Discrimination Commissioner Queensland  QCA 349,  (Burns J, Fraser JA at  and Philippides JA at  agreeing).
 Samsung Electronics Company Ltd v Apple Inc and Another  FCAFC 156; (2011) 217 FCR 238,  and  (Dowsett, Foster and Yates JJ).
- Published Case Name:
Mr A v Viva Energy Australia Pty Ltd
- Shortened Case Name:
Mr A v Viva Energy Australia Pty Ltd
 QIRC 309
07 Sep 2021