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Anjilivelil v State of Queensland (Queensland Health)[2021] QIRC 348

Anjilivelil v State of Queensland (Queensland Health)[2021] QIRC 348

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Anjilivelil v State of Queensland (Queensland Health) and Anor [2021] QIRC 348

PARTIES:

Anjilivelil, Cyril

(Complainant)

v

State of Queensland (Queensland Health)

(First Respondent)

and

Wasmund, Darryl

(Second Respondent)

CASE NO:

AD/2020/10

PROCEEDING:

Referral of Complaint

DELIVERED ON:

18 October 2021

HEARING DATES:

22 March 2021 (Hearing)

22 April 2021 (Complainant written closing submissions)

10 May 2021 (Respondents written closing submissions)

MEMBER:

McLennan IC

HEARD AT:

Townsville

ORDERS:

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

CATCHWORDS:

ANTI-DISCRIMINATION – REFERRAL OF COMPLAINT – discrimination on the basis of race – whether less favourable treatment occurred – whether a real or hypothetical comparator should be used – where no less favourable treatment occurred – whether to award costs

LEGISLATION &

OTHER INSTRUMENTS:

Anti-Discrimination Act 1991 (Qld) s 7, s 8, s 10, s 11, s 15, s 133, s 136, s 141, s 166, s 204

Industrial Relations Act 2016 (Qld) sch 2

Public Service Act 2008 (Qld) s 27, s 28, s 29

Directive 15/13 Recruitment and Selection cl 9

Human Resources Policy B1 Recruitment and Selection

Human Resources Policy B25 Temporary Employment cl 7

Hospital and Health Service General Employees (Queensland Health) Award – State 2015 cl 7

Queensland Public Health Sector Certified Agreement (No. 9) 2016 cl 4

C Ronalds and E Raper, Discrimination Law and Practice (The Federation Press, 2012) 38

CASES:

Briginshaw v Briginshaw (1938) 60 CLR 336

Carlton v Blackwood [2017] ICQ 001

Commonwealth v Humphries (1998) 86 FCR 324

Haines v Leves (1987) 8 NSWLR 442

APPEARANCES:

Mr C Anjilivelil, the complainant in person.

Mr A Fraser of counsel, instructed by Crown Law for the First and Second Respondents. 

Reasons for Decision

  1. [1]
    Mr Cyril Anjilivelil has worked at the Townsville University Hospital ('the Hospital') for nine years.[1] 
  1. [2]
    He is currently employed as an Operational Support Services (OSO) Operational Officer, Level 2.[2]
  1. [3]
    Mr Anjilivelil has complained that career progression and training opportunities have been withheld from him because of his Indian 'race'.
  1. [4]
    The first allegation of discrimination centred on an email issued by Mr Damian Crowley,[3] to a cohort of 14 current and acting Supervisors inviting them to express interest in short term relief in his position.  Mr Anjilivelil believed that he should also have been sent this EOI email.  At that time, Mr Anjilivelil was neither a current or acting supervisor, though he had previously acted in the role of OSO Supervisor OO3 for less than three months.
  1. [5]
    The second allegation of discrimination regarded Mr Darryl Wasmund's[4] determination not to fill the OSO Coordinator role for two periods in October 2018 and February 2019.  Mr Anjilivelil believed that decision was taken to deny him the opportunity to act in that position, asserting that he had earlier been merit listed for the role.  Mr Wasmund gave evidence that the predominant need to fill frontline positions was the main driver of his decision to leave the OSO Coordinator role vacant, in light of staff shortages at the relevant times.  It has also been established that Mr Anjilivelil was third on the order of merit for the OSO Coordinator role and that either, or both, of the two colleagues ranked ahead of him were available in the relevant periods.
  1. [6]
    The third allegation of discrimination was that Mr Stephen Eaton[5] had not responded to Mr Anjilivelil's formal complaint within the timeframe specified in the industrial instrument.  Mr Eaton provided comprehensive explanation of the complexity of the matters and gave evidence as to the sequence of actions he had undertaken to address Mr Anjilivelil's concerns.  Mr Eaton gave evidence that he had not discriminated against Mr Anjilivelil on the grounds of his Indian 'race'.  That evidence was not tested in cross-examination.
  1. [7]
    Mr Anjilivelil has acted in various promotion and alternative role opportunities during his career with the Townsville University Hospital, including:
  • OSO Supervisor OO3 from 22 October 2018 to 13 January 2019;
  • Administration Officer AO2 from 22 October 2019 to 2 November 2019;
  • OSO Supervisor OO3 from 16 December 2019 to 5 January 2020; and
  • OSO Supervisor OO3 from 13 September 2020 to 29 September 2020.[6]
  1. [8]
    The Respondents have strenuously denied Mr Anjilivelil's allegations of racial discrimination.

Claim details

  1. [9]
    Mr Anjilivelil filed a complaint in the Queensland Human Rights Commission (QHRC) on 21 October 2019 alleging direct discrimination on the basis of race.
  1. [10]
    The complaint was accepted pursuant to ss 136 and 141 of the Anti-Discrimination Act 1991 (Qld) (the Act).
  1. [11]
    An unsuccessful conciliation before the QHRC resulted in this matter being referred to the Queensland Industrial Relations Commission (the Commission) on 17 February 2020, pursuant to s 166(1)(a) of the Act.
  1. [12]
    The Referral Notice from the QHRC relevantly states that the complaint "relates to or includes work or the work-related area" and was treated as alleging:

Race Discrimination in the area of work – Sections 7(g), 10, 11 and 15.

  1. [13]
    Mr Anjilivelil's complaint names two Respondents: the State of Queensland and Mr Darryl Wasmund (Manager of Support Services, Townsville University Hospital).
  1. [14]
    It is not disputed between the parties that the Commission has jurisdiction to hear and decide Mr Anjilivelil's complaint.

What legal tests must be satisfied for Mr Anjilivelil's claim to succeed?

  1. [15]
    Part 2 of chp 2 of the Act identifies "Prohibited grounds of discrimination".  Section 7 prohibits discrimination on the basis of various defined "attributes" including the attribute in s 7(g) of "race".  Section 8 of the Act refers to the meaning of discrimination on the basis of an attribute.
  1. [16]
    Part 3 of Chapter 2 of the Act identifies "Prohibited types of discrimination".  Section 9 prohibits "direct" and "indirect" discrimination.  Section 10 defines the meaning of direct discrimination:

10 Meaning of direct discrimination

  1. (1)
    Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
  1. [17]
    Section 10(4) of the Act provides:

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

  1. [18]
    Part 4 of chp 2 of the Act identifies "Areas of activity in which discrimination is prohibited".  The areas of activity are set out in div 2 through to div 11.
  1. [19]
    Division 2 of Part 4 deals with "Work and work related areas".  Section 15 identifies types of discrimination in the area of work.  Section 15(1)(b) provides that a person must not discriminate "in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker". 
  1. [20]
    The effect of the legislative scheme is that, for Mr Anjilivelil to establish direct discrimination, he needs to show that he has a protected attribute, and was treated less favourably than another person without the protected attribute, in circumstances that are the same or not materially different, because of the protected attribute that he possesses.
  1. [21]
    Pursuant to s 133 of the Act, the State of Queensland accepts that it is vicariously liable for the conduct of Mr Darryl Wasmund.[7]
  1. [22]
    The effect of s 204 of the Act is that it is for Mr Anjilivelil to prove, on the balance of probabilities, that the Respondents contravened the Act.
  1. [23]
    The standard of evidence is summarised in Briginshaw v Briginshaw, where the High Court stated that:

In determining whether evidence allows that degree of persuasion that amounts to proof of an allegation on the balance of probabilities, the Tribunal of fact must bear in mind the gravity of the allegation made and the seriousness of the consequences to a party against whose interest any adverse finding might be made.  The decision maker must be reasonably satisfied or feel an actual persuasion or feel comfortably satisfied that they have reached the right decision.[8]

What are the key questions to be determined?

  1. [24]
    Mr Anjilivelil has plead 'Indian' as his 'race',[9] specifically that he was "born and grew up in India and became a naturalised Australian citizen on 10 December 2015."[10]  That is not disputed by the Respondents.[11]
  1. [25]
    There are two questions to be decided relating to the attribute of 'race':
  • Was Mr Anjilivelil treated, or proposed to be treated, less favourably than another person without the attribute of 'race', in circumstances that are the same or not materially different?
  • If it is decided that a 'less favourable' treatment occurred, was a substantial reason for that treatment Mr Anjilivelil's attribute of 'race'?

Summary of Findings

  1. [26]
    Mr Anjilivelil has not demonstrated that, on the balance of probabilities, he was treated less favourably than another person without the attribute of 'race' would have been, in circumstances that are the same or not materially different.
  1. [27]
    As there is no finding that 'less favourable' treatment occurred, there is no requirement to go on to determine if a substantial reason for doing so was because of Mr Anjilivelil's Indian 'race'.
  1. [28]
    My reasons follow.

Witnesses

  1. [29]
    Mr Cyril Anjilivelil was the sole witness called to make the Complainant's case.
  1. [30]
    There were five witnesses for the Respondents:
  • Mr Damian Crowley (Staff Allocations Coordinator, Support Services, Townsville University Hospital);
  • Mr Wayne Cullen (Picture Archive Communications System Support Officer, Townsville University Hospital);[12]
  • Mr Darryl Wasmund (Manager, Support Services, Townsville University Hospital; Second Respondent);
  • Mr Stephen Eaton (Chief Operating Officer, Townsville Hospital and Health Service); and
  • Mr Dale Richter (Human Resources Business Partner, Townsville Hospital and Health Service).

Evidence and submissions

  1. [31]
    In a Directions Order dated 23 March 2021,[13] written closing submissions were directed in the order Complainant – Respondents – Complainant (in reply, on issues of law only).
  1. [32]
    The Complainant's written closing submissions were filed on 22 April 2021.
  1. [33]
    The Respondents' written closing submissions were filed on 10 May 2021.
  1. [34]
    No further submissions were received from the Complainant in response.[14]
  1. [35]
    The evidence of the six witnesses and Exhibit tendered at the Hearing, together with the written closing submissions of the parties and their Statements of Facts and Contentions, were considered in this Decision.  I have determined not to approach the writing of this Decision by summarising the entirety of the evidence provided and submissions made, but will instead refer to the parties' positions in my consideration of each question to be decided.

Was Mr Anjilivelil treated, or proposed to be treated, less favourably than another person without the attribute of 'race', in circumstances that are the same or not materially different?

  1. [36]
    I have earlier noted that it is not in dispute that Mr Anjilivelil's 'race' is Indian. 
  1. [37]
    Under s 10 of the Act, Mr Anjilivelil is next required to identify an appropriate real or hypothetical comparator without the attribute that he was treated 'less favourably than' in circumstances that are 'the same or not materially different'.
  1. [38]
    There are three aspects inherent in this mandatory requirement: 
  • Consideration of circumstances that are 'the same or not materially different';
  • The matter of an appropriate comparator; and
  • The 'less favourable treatment' that is alleged.

Consideration of the circumstances

  1. [39]
    In considering 'circumstances that are the same or not materially different', it has been said that:

…the test for direct discrimination requires a comparison with a person without the particular disability (or 'attribute' more broadly in this case) but otherwise in the same position in all material respects as the complainant.[15]

  1. [40]
    Either a real or hypothetical comparator may be used in judging whether or not the 'less favourable' treatment has occurred.

Identification of an appropriate comparator

Complainant asserts that a real comparator should be used

  1. [41]
    Mr Trevor Wilson and Mr Michael Bloomfield are named as two real comparators to be used in making the Complainant's case.  Mr Anjilivelil submitted that:

The comparator in this case could be Mr Trevor Wilson or Michael Bloomfield, who were also relief supervisors (OO3) just like me at the time.  Their substantive levels are OO2 just like me.  They were offered opportunity to send Expressions of Interest to the OO4 level relief job.[16]

  1. [42]
    The comparison is drawn by way of Mr Anjilivelil's contention that he was treated less favourably than both Mr Wilson and Mr Bloomfield in circumstances that are the same or not materially different. 
  1. [43]
    Mr Anjilivelil asserted that various entries[17] showed that both Mr Wilson and Mr Bloomfield:

…did the Support Services Supervisor relief role, switching between OO3 and OO2 (on and off), just like me.  (They) received the offer of opportunity through email dated 18 June 2019.[18]

  1. [44]
    That evidence was presented by the Complainant to demonstrate that Mr Wilson and Mr Bloomfield are the same, or not materially different, to Mr Anjilivelil in every way except 'race'. Notwithstanding, there is no evidence before me that Mr Wilson and Mr Bloomfield do not also claim Indian 'race'.
  1. [45]
    While there is insufficient evidence to accept Mr Wilson and Mr Bloomfield as appropriate real comparators, that in itself does not scuttle Mr Anjilivelil's case as a hypothetical comparator may be used.

Respondent asserts that a hypothetical comparator should be used

  1. [46]
    The Respondents submitted that:

…neither of these employees are an appropriate comparator because both Mr Bloomfield and Mr Wilson commenced as OSO OO2 level employees, the same level as Mr Anjilivelil, prior to Mr Anjilivelil commencing employment.  They were also acting as OSO Supervisors at the time of the EOI email with more than two years' experience as Supervisors at the time of the EOI email as compared to Mr Anjilivelil's one period of OSO Supervisor (Auditor) relief of 12 weeks at the relevant time.  Therefore, both Mr Wilson and Mr Bloomfield had significantly more experience as both OSO OO2s and OSO Supervisors than Mr Anjilivelil at the relevant time.[19]

  1. [47]
    The Respondent referenced the oral evidence of Mr Crowley[20] and documentary evidence of the three 'Employee Job History' print outs in support.[21]
  1. [48]
    The Respondents had earlier submitted that:
  1. (a)
    Mr Bloomfield:
  1. (i)
    commenced as an OSO OO2, the same level as the Complainant, on 14 December 2003, almost 9 years before the Complainant commenced in the OSO OO2 role; and
  1. (ii)
    acted in the OSO Supervisor role on various occasions, including at the time of the Expression of Interest (EOI), totalling approximately two and a half years at the time of the EOI for the Staff Allocations Coordinator relief position as compared to the Complainant's one period of OSO Supervisor relief of 12 weeks at the relevant time; and
  1. (b)
    Mr Wilson:
  1. (i)
    commenced as an OSO OO2, the same level as the Complainant, on 2 June 2011, 14 months before the Complainant commenced in the OSO OO2 role; and
  1. (ii)
    acted in the OSO Supervisor role on various occasions, including at the time of the EOI, totalling more than three years at the time of the EOI as compared to the Complainant's one period of OSO Supervisor relief of 12 weeks at the relevant time; and
  1. (c)
    therefore both Mr Wilson and Mr Bloomfield had significantly more experience as both OSO OO2s and OSO Supervisors than the Complainant at the relevant time.[22]
  1. [49]
    The Respondents posited that a hypothetical comparator should be used.  For the Respondent's reasons outlined above and in the absence of an appropriate real comparator, my consideration will proceed on that basis.
  1. [50]
    The hypothetical comparator is another employee of the Hospital with the same skills and experience as Mr Anjilivelil who does not have his attribute of 'race'.
  1. [51]
    This Decision flows from the comparison of Mr Anjilivelil's treatment with the hypothetical comparator in the circumstances described above.

The 'less favourable' treatment alleged

  1. [52]
    In Haines v Leves, the test was described as:

The words "less favourably" … requires a comparison of the treatment in the actual and in an hypothesised case… A "detriment" concept of discrimination has hitherto been adopted… The motives, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected.[23]

  1. [53]
    Mr Anjilivelil has pressed three allegations of 'less favourable treatment':[24]
  • Allegation 1: Mr Crowley (Staff Allocations Coordinator, Support Services) provided the Expression of Interest directly to OSO Supervisors on 18 June 2019, which did not include Mr Anjilivelil.
  • Allegation 2: Mr Anjilivelil was merit listed for the position of OSO Coordinator on 3 November 2017, but Mr Wasmund failed to appoint him to the position when it later became vacant.
  • Allegation 3: Mr Eaton (Chief Operating Officer, Townsville Hospital and Health Service) failed to respond to Mr Anjilivelil's grievances within time.
  1. [54]
    In Carlton v Blackwood, President Martin J observed that Respondents should not be disadvantaged by having to "…contend with the shifting sands of an undefined argument".[25]
  1. [55]
    The Respondents noted that Mr Anjilivelil's evidence went beyond the scope of matters contained within his Statement of Facts and Contentions - and further, that it had been objected to at the Hearing on that basis.[26] 
  1. [56]
    The allegations subject of this Decision are confined to the three matters contained in Mr Anjilivelil's Statement of Facts and Contentions.  Mr Anjilivelil had confirmed these three matters to be the subject of his complaint in an email exchanged with the Respondents' representative.[27] 
  1. [57]
    Determining those matters requires me to:
  • First establish the facts of the treatment received.[28]  Put another way, has Mr Anjilivelil proved - on the balance of probabilities - that the three allegations actually occurred? 
  • If so proven, how would the Respondent(s) have treated the hypothetical comparator in the particular circumstances? 
  • Further, if it was found that the Respondent(s) treated Mr Anjilivelil differently to how they would have treated the hypothetical comparator, the question that follows is whether the different treatment amounted to 'less favourable' treatment.
  1. [58]
    My consideration of those elements follows.

Allegation 1:  Mr Crowley (Staff Allocations Coordinator, Support Services) provided the Expression of Interest directly to OSO Supervisors on 18 June 2019, which did not include Mr Anjilivelil.

  1. [59]
    On 18 June 2019, Mr Crowley emailed a cohort of 14 staff members - OSO Supervisors (OO3) - regarding the opportunity to express interest in the Staff Allocations Coordinator relief position (OO4) for ad hoc periods of relief.[29] 
  1. [60]
    That EOI email was not sent to Mr Anjilivelil.

Mr Anjilivelil's account

  1. [61]
    Mr Anjilivelil complained that Mr Crowley did not send the EOI email to him, "while people of my equal status were offered the same."[30] 
  1. [62]
    Mr Anjilivelil then chronicled his subsequent actions as:[31]
  • On 12 July 2019, he contacted Mr Wasmund both via email and in person "about the details of the opportunity; since by then it was leaked to the floor that … Mr Damian Crowley was trying to hand out the relief opportunity secretly". 
  • That same day, Mr Wasmund advised Mr Anjilivelil that the EOI was advertised.  However, Mr Anjilivelil contended that was not the case and that Mr Wasmund was attempting to misinform him.
  • On 15 July 2019, Mr Anjilivelil emailed both Mr Crowley and Mr Wasmund in which he "asked specific questions to highlight that Mr Wasmund was hiding facts from me."
  • On 17 July 2019, Mr Anjilivelil stated that Mr Crowley "indirectly confirmed"  he had "violated the standard operating procedure of advertising positions within the hospital network but rather secretly emailed it to people of his choice."  Mr Crowley was said to have provided the EOI email "to those Supervisors of his choice since it was in their Succession plan". 

Mr Anjilivelil argued that his career progression aspirations were also contained within his own "…Succession plan even prior to some of the chosen staff joining the Queensland Health or opted to start working as Supervisor" – and that he had advised Mr Wasmund and Mr Goddard of this in a meeting on 15 February 2018.

  • On 17 July 2019, Mr Crowley was said to have emailed Mr Anjilivelil to the effect that he did not possess the required skills to perform the Staff Services Coordinator role.
  • On 26 July 2019, Mr Wasmund was said to have emailed Mr Anjilivelil in the same vein as above.
  1. [63]
    Mr Anjilivelil stated that he had worked as a relief Supervisor since 2018 and his aspirations to work in that role had been contained in his Succession plan / Performance Appraisal and Development Programme since 2014.

Respondents' account

  1. [64]
    The Respondents submit that the EOI email was sent to all OO3 Supervisors, including those who were acting in the OSO Supervisor role at that time.[32] 
  1. [65]
    The cohort of 14 staff members who were sent Mr Crowley's EOI email included Mr Wilson and Mr Bloomfield, both of whom were acting in the OSO Supervisor role on 18 June 2019.[33] 
  1. [66]
    On 18 June 2019, Mr Anjilivelil "was not an OSO Supervisor (OO3) but was in the role of OSO Cleaner Support Services (OO2)."[34]
  1. [67]
    With respect to Mr Anjilivelil's subsequent actions outlined at paragraph [62] above, the Respondents state that:[35]
  • Mr Crowley clarified that the EOI was not placed on the Staff Notice Board but was instead emailed to all OO3 Supervisors.  That did not breach any standard operating procedure - and Mr Crowley's email to Mr Anjilivelil on 17 July 2019 did not indicate that it had done so.
  • Mr Crowley was unaware of the content of Mr Anjilivelil's Performance Appraisal and Development Programme (PDP).
  • Mr Anjilivelil's 2014 PDP records his interest in "admin roles" and "Assistant Manager roles" but did not include any specific reference to the Staff Allocations Coordinator role.
  • Mr Anjilivelil's 2018 PDP records his interest in relief Supervisor positions and career progression aspirations to OO4 – OO5 classification level.
  • The cohort of 14 staff members who were sent Mr Crowley's EOI email commenced at the Hospital prior to Mr Anjilivelil's request for the opportunity in his 2018 PDP.
  • Mr Goddard and Mr Richter met with Mr Anjilivelil on 15 February 2018, at which time he was advised to raise career aspirations with Mr Wasmund through his PDP.
  • Mr Wasmund cannot recall the date of conversation with Mr Anjilivelil about career aspirations; however recognised that he applied for the Staff Allocations Coordinator role in March 2018.

Did Allegation 1 occur?

  1. [68]
    Mr Crowley did not send the EOI email to Mr Anjilivelil on 18 June 2019. 
  1. [69]
    That is not in dispute between the parties.

If it occurred, how would the Respondent(s) have treated the hypothetical comparator in the particular circumstances?

  1. [70]
    Mr Anjilivelil submitted that (emphasis added):

Even when I have ticked all the boxes, I was discriminated or kept away from career progression opportunities, I believe this was because of my Indian ethnicity / race.[36]

  1. [71]
    At the Hearing, Mr Anjilivelil stated (emphasis added):

…Trevor Wilson and Michael Bloomfield, they are also first entry OO2 like me and they're also acting in the role.  All those people got it – got this email and they can be – go get that higher positions, whereas I can't get it because I have to look after the staffing allowance because they want me to be in the lower grade doing the entry level jobs all the time.  I can't go up.  That is what undoubtedly he was saying.  Persons of my similar status can – got the – offered the opportunities but I am not.[37] 

  1. [72]
    Mr Anjilivelil has maintained that the Respondents have discriminated against him by not sending him the EOI email – but sending it to 14 other staff members, including Mr Wilson and Mr Bloomfield who were relieving Supervisors "just like me".[38]
  1. [73]
    As earlier identified, the hypothetical comparator is another employee of the Hospital with the same skills and experience as Mr Anjilivelil who does not have his attribute of Indian 'race'.
  1. [74]
    The Respondents submitted that the EOI email was only sent to the cohort of 14 staff members – all of whom were either OSO Supervisors or acting OSO Supervisors on 18 June 2019 - because:
  • OSO Supervisors had the rostering knowledge and experience to fill the role for short periods of relief, as required.
  • Service levels may not have been adequately maintained if the relief opportunity was provided to OO2 level staff with less knowledge and experience than the OO3 Supervisors, as they would likely require more support to perform the role which would be difficult to accommodate in the context of staffing shortages.[39]
  • The relief opportunity was provided to allow OSO Supervisors (OO3) to expand their skills before potentially extending it to other staff at a lower classification level (OO2).[40]
  1. [75]
    The Respondents further noted that:
  • Mr Anjilivelil had completed only one period of relief as an OSO Supervisor (OO3) from 22 October 2018 to 13 January 2019 at the time the EOI email was sent.  With that exception, he worked as an OSO OO2 in the relevant period.[41]
  • Following that period relieving as an OSO Supervisor, Mr Wasmund asked Mr Anjilivelil "if he would like to complete further OO3 relief opportunities, but (he) had indicated that he was not interested in any night shift Supervisor relief opportunities which limited the amount of Supervisor opportunities available to (him) given the 24 hour nature of the hospital environment."[42]
  1. [76]
    In summary, Mr Anjilivelil's grievance was that persons of "similar status" were offered the EOI opportunity but he was not – and further that he "believed" this was because of his Indian 'race'.  He contended that he received less favourable treatment than Mr Wilson and Mr Bloomfield, who he considered to be "just like me".
  1. [77]
    However, Mr Wilson and Mr Bloomfield were not of "similar status" to Mr Anjilivelil.  Paragraph [48] details that both Mr Wilson and Mr Bloomfield had significantly more experience - as both OSO OO2s and OSO Supervisors - than Mr Anjilivelil at the time the EOI email was sent.  The Respondents provided specifics of those differences between Mr Anjilivelil, Mr Wilson and Mr Bloomfield – with respect to their respective periods of service and extent of experience acting in the OSO Supervisor role – in their Statement of Facts and Contentions filed 4 December 2020. 
  1. [78]
    Yet Mr Anjilivelil has persistently ignored that critical point. 
  1. [79]
    At the Hearing, Mr Anjilivelil's evidence confirmed that, when the EOI email was sent on 18 June 2019:
  • He had only performed one period of relief in the OSO Supervisor role from 22 October 2018 until 13 January 2019.[43]
  • He was not acting in the role of OSO Supervisor.[44]
  • 12 of the 14 staff members who received the EOI email were permanently employed as OSO Supervisors.[45]  The remaining two staff members in that cohort - Mr Wilson and Mr Bloomfield – were both relieving in the OSO Supervisor role at that time and had done so for a significant period.[46]
  • Mr Wilson and Mr Bloomfield had more than two years' experience as OSO Supervisors.[47]
  1. [80]
    Mr Anjilivelil's evidence makes clear that he understood the marked difference in supervisory experience between Mr Wilson and Mr Bloomfield and himself.  Mr Anjilivelil recognised that those two colleagues were acting supervisors at the time the EOI email was sent and he was not.  Further, Mr Anjilivelil accepted that the cohort of 14 staff members to whom the EOI email was sent were all either OSO Supervisors or acting in that role at the time. 
  1. [81]
    Demonstrably, Mr Wilson and Mr Bloomfield were not of "similar status" or "just like" Mr Anjilivelil. 
  1. [82]
    So with respect to the comparison between Mr Anjilivelil and the hypothetical comparator, it is not in dispute between the parties that Mr Crowley sent the EOI email only to OSO Supervisors or acting supervisors at that time – and that Mr Anjilivelil was neither.  To be clear, Mr Crowley did not send the EOI email to any other employee of the Hospital with the same skills and experience as Mr Anjilivelil who does not have his attribute of Indian 'race'. 
  1. [83]
    It follows then that Mr Anjilivelil was not treated any differently to the hypothetical comparator. 
  1. [84]
    As there was no "less favourable treatment", there is no consideration as to whether discrimination occurred with respect to the EOI email.
  1. [85]
    I would further observe that the explanation provided as to why the EOI email was sent to that particular cohort of 14 staff members rings true.  In my view, it is imminently practical, sensible and considered.  Nothing in the THHS's provided reasoning suggests to me any unfairness, impropriety or conspiracy with respect to the EOI email; notwithstanding Mr Anjilivelil's evident frustration that his extensive efforts throughout July 2019 to uncover some wrongdoing were thwarted.

Allegation 2:  Mr Anjilivelil was merit listed for the position of OSO Coordinator on 3 November 2017, but Mr Wasmund failed to appoint him to the position when it later became vacant.

Mr Anjilivelil's account

  1. [86]
    Mr Anjilivelil stated that he was denied the "opportunity to fill in as Coordinator Operational Services even after being merit listed."[48]  That claim followed Mr Cullen's[49] advice that Mr Anjilivelil had been merit listed at interview.[50]
  1. [87]
    Mr Anjilivelil's complaints were that Mr Wasmund "refused to acknowledge that merit list" on two occasions when opportunities to act in the higher position emerged in February 2019 and October 2018, as "none other than me in the merit list was ready / available to take up the position."[51]  However, Mr Anjilivelil stated that Mr Wasmund "respected the merit list prepared by the interviewing board before and after those … dates in the case of Ms Merites Alcomendas but once again not for me."[52]
  1. [88]
    Mr Anjilivelil noted that Ms Alcomendas relieved in the OSO Coordinator role after 11 November 2018 and asserted that evidenced discrimination against him.[53]
  1. [89]
    In doing so, Mr Anjilivelil alleged Mr Wasmund violated the PS Act, merit principle[54] and merit criteria.[55]
  1. [90]
    Mr Anjilivelil further objected to Mr Sam Galluccio's[56] response to his complaint to the Queensland Human Rights Commission that "it is at the discretion of the manager to appoint from a merit list or undertake an alternate process to fill a vacancy"[57] and claimed that meant that "Queensland Health authorities support selective discrimination."[58]

Respondents' account

  1. [91]
    It is agreed that Mr Anjilivelil applied for the role of OSO Coordinator on or around October 2017. 
  1. [92]
    Mr Cullen's evidence was that as a result of the selection process for the OSO Coordinator role, Ms Alcomendas OO3 Supervisor was successful and that Mr Brett McIntosh OO3 Supervisor was merit listed in second position, followed by Mr Anjilivelil in third position.  So whilst it was correct that Mr Anjilivelil was "merit listed", it is relevant that was in third position.
  1. [93]
    With respect to Mr Anjilivelil's claim that the OSO Coordinator position remained vacant in February 2019 and October 2018 at times when "none other than me in the merit list was ready / available to take up the position", the Respondent explained that decision was taken due to staff shortages - and the resultant prioritisation of front line work being actually performed in preference to the discharge of the 'coordination' function, in the circumstances.[59]
  1. [94]
    However, Mr Wasmund also stated that had he instead determined to place an acting staff member in the OSO Coordinator position, it would first have been offered to Ms Alcomendas and then to Mr McIntosh, given the order of merit.[60] 
  1. [95]
    Further, it was the case that either or both or those staff members were present in the workplace in the relevant periods.  The leave records show that Mr McIntosh was at work between 1 October and 11 November 2018.  Further, both Mr McIntosh and Ms Alcomendas were present for the most part between 1 February and 18 February 2019.  That evidence contradicts Mr Anjilivelil's claim that no other merit listed colleagues were ready or available to take up the position.[61]
  1. [96]
    Ms Alcomendas returned to the OSO Coordinator role on 12 November 2018 due to medical restrictions which prevented her from returning to her OO3 Supervisor role.[62] 
  1. [97]
    The Respondent's position was that Mr Wasmund was not obliged to advise Mr Anjilivelil that he had determined not to fill the vacant OSO Coordinator position nor to document reasons for his decision.[63]

Did Allegation 2 occur?

  1. [98]
    It is true that Mr Anjilivelil was listed in the order of merit for the position of OSO Coordinator on 3 November 2017.
  1. [99]
    It is also the case that Mr Wasmund did not appoint Mr Anjilivelil to the position when it later became vacant in the relevant periods.
  1. [100]
    Those facts are not in dispute between the parties.

If it occurred, how would the Respondent(s) have treated the hypothetical comparator in the particular circumstances?

  1. [101]
    The fact that Mr Wasmund decided not to appoint anyone to the position of OSO Coordinator in the relevant periods[64] is not in dispute.[65]
  1. [102]
    My consideration first turns to whether Mr Wasmund was required to appoint anyone to the vacant OSO Coordinator role in the relevant periods.  I have also considered whether his decision not to do so was reasonable in the circumstances.

Decision not to fill the OSO Coordinator role

  1. [103]
    Mr Anjilivelil maintained that the vacant position should have been filled.  His claim was that the decision not to fill the position was made in order to avoid giving him that opportunity. 
  1. [104]
    Mr Anjilivelil's evidence was that:

It's a standard procedure followed in THHS that in the event vacancies more than two weeks, is filled.  That is a standard operating procedure what we see in the department.[66] 

  1. [105]
    In cross-examination, Mr Anjilivelil agreed that cl 4.2.3 of the Certified Agreement[67] applied to the replacement of existing permanent staff "due to retirement, resignation, termination, transfer or promotion" and that was not the circumstances applicable to the relevant periods.  Mr Anjilivelil said:

This [indistinct] talks about a person resign from the position or position – the individual who is working there is no more available for the job.  This is talking about that.  I am talking about relief positions as a practice in THHS – no vacancy have all in my nine years with the Queensland Health, I rarely see any department leave their positions vacant more than two weeks without – or bringing somebody else into the role.[68]

  1. [106]
    Mr Anjilivelil asserted "That is the normal practice I see in the department".  Whilst he stated that he was "…employed as a roster O2 and I work as voluntarily as the union delegate there…", Mr Anjilivelil clarified that "…I have more access to some of the documents after became a delegate."[69] 
  1. [107]
    Mr Fraser, Counsel for the Respondent, asked whether Mr Anjilivelil could support that assertion with any documentary evidence.  He could not. 
  1. [108]
    The oral evidence of Mr Anjilivelil alone supports his proposition that it was standard operating procedure of the THHS to fill all vacancies of more than two weeks.

Merit principle and merit criteria

  1. [109]
    Mr Anjilivelil also stated that the Public Service Act 2008 (Qld) has been breached with the respect to the failure to apply the merit principle and merit criteria in these circumstances.  The relevant sections of the PS Act referenced provides that (emphasis added):

27  The merit principle

  1. (1)
    The selection, under this Act, of an eligible person for an appointment or secondment as a public service employee must be based on merit alone (the merit principle).
  2. (2)
    The merit principle applies subject to chapter 5, part 2, division 2.

Editor's note—

chapter 5, part 2, division 2 (Reappointment of particular election candidates)

  1. (3)
    In this section—

appointment does not include a transfer.

28    Merit criteria

In applying the merit principle to a person, the following must be taken into account—

  1. (a)
    the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question;
  1. (b)
    if relevant—

(i) the way in which the person carried out any previous employment or occupational duties; and

(ii) the extent to which the person has potential for development.

29    Directives about applying the merit principle

  1. (1)
    A directive of the commission chief executive may provide for how selection, under the merit principle, for a stated type of appointment or secondment must be carried out.
  1. (2)
    A selection for an appointment or secondment must comply with any relevant directive under subsection (1).
  1. [110]
    I observe that the above sections pertain to the selection of a person for a position; rather than a decision as to whether or not a vacancy is to be filled. 
  1. [111]
    Mr Anjilivelil also objected to Mr Sam Galluccio's advice that appointments from a merit list is the discretion of the Manager (emphasis added):

I would like to clarify with you the requirements for a manager to refer to an order a merit when recruitment to a temporary or permanent vacancy.

The panel may create an order of merit of the applicants who meet the key attributes and are considered suitable for appointment.  This merit list may be used to appoint to similar vacancies for a specified period up to 12 months after the closing date of the initial vacancy.  It is at the discretion of the manager to appoint from a merit list or undertake an alternate process to fill a vacancy.

I believe there has been no deliberate attempt to limit your career progression.  I consider that there has been no breach of the Queensland Health (QH) Recruitment and Selection policy B1 and Temporary Employment policy B25 (attached).[70]

Mr Anjilivelil alleged that this meant that "Queensland Health authorities support selective discrimination."[71]

  1. [112]
    I note that the HR Policy B25 Temporary Employment referred to by Mr Galluccio states that (emphasis added):

Temporary base grade appointments may be established for periods less than 12 months on the basis of operational convenience, in accordance with the provisions of Directive 3/09 – Recruitment and Selection.[72]

  1. [113]
    Further, the HR Policy B1 Recruitment and selection policy referred to by Mr Galluccio states that (emphasis added):

Secondment The temporary engagement of a permanent employee, either at their substantive classification level or at a high classification level within or external to Queensland Health.  Secondments are a developmental opportunity for an employee, for periods of up to 12 months and may or may not be subject to a merit process.[73]

The policy notes also that:

PSC Directive 15/13 – Recruitment and Selection specifies the minimum requirements applying to the recruitment and selection of public service employees and health service employees.

…

This policy sets out additional requirements and standard processes specific to Queensland Health and must be read in conjunction with PSC Directive 15/13 – Recruitment and Selection…

The policy makes clear that secondments for periods up to 12 months "may or may not be subject to a merit process".  Notwithstanding that, Mr Wasmund's evidence was that the order of merit would have been applied in the usual course, in the event that he had decided to fill the vacancy.

  1. [114]
    With respect to PSC Directive 15/13 Recruitment and Selection that was effective in the relevant period, cl 9.6 provides that (emphasis added):

9.6  Vacancies are not required to be advertised where they are:

  1. (a)
    for entry level roles
  2. (b)
    to be filled for a period of less than 12 months
  3. (c)
    to be filled via transfer, redeployment or secondment at or below level
  4. (d)
    to be filled using an order of merit for a recurring vacancy
  5. (e)
    for a casual role.
  1. [115]
    Foundationally, Mr Anjilivelil did not accept that Mr Wasmund's decision not to fill the OSO Coordinator position was operationally driven "…because when Marites came back, he was on – she was suddenly allowed to jump into the role."[74]  Mr Wasmund's evidence was that:

…she went on sick leave for an extended period of time.  And part of her return to work program under the recommendation of her medical advice wasn't to return back to the mental health unit.  So she came back over to the main building.[75]

  1. [116]
    It is significant that Mr Anjilivelil was ranked third in the order of merit for the position of OSO Coordinator on 3 November 2017, behind Ms Alcomendas and Mr McIntosh respectively.
  1. [117]
    In cross-examination, Mr Anjilivelil agreed that Ms Alcomendas was first on the merit list and it was put to him that it was therefore "actually her role."[76]  He also accepted in cross-examination that, in the event that Ms Alcomendas was unable to take up the position, "the orthodox thing to do"[77] would then be offered to Mr McIntosh as second in the order of merit.[78]
  1. [118]
    The appropriate hypothetical comparator is another employee of the Hospital with the same skills and experience as Mr Anjilivelil who does not have his attribute of 'race'.[79]
  1. [119]
    In this instance, the less favourable treatment alleged is the failure to offer Mr Anjilivelil the opportunity to act in the OSO Coordinator role in the relevant periods.  I agree with the Respondents' submission that:

…no one was offered the opportunity to relieve in the role for either of these periods and therefore Mr Anjilivelil has not been treated less favourably than the relevant comparator.[80]

  1. [120]
    However, if I am wrong on that point, I also find that Mr Wasmund's decision not to fill the vacancy in the relevant periods was fair and reasonable.  My reasons follow.
  1. [121]
    I note the policies do not contain any standard operating procedure requiring that absences more than two weeks in duration must be filled.  That is consistent with the evidence of Mr Wasmund that it was open to him to decide not to fill the vacancy.
  1. [122]
    While Mr Anjilivelil's evidence was that it was standard operating procedure for such vacancies to be filled for periods of more than two weeks, the available documentary evidence does not support that contention.  In his capacity as a union delegate, Mr Anjilivelil claimed to have access to documentation that supported his claim.  However, any such documents were not tendered at the Hearing of this matter and is not in evidence before me.
  1. [123]
    In my view, Mr Wasmund's decision was reasonable against the backdrop of staff shortages, the resultant workload complaints by the AWU on behalf of its members and management's determination to allocate available staff to the performance of frontline duties in the first instance. 
  1. [124]
    Neither do I agree with Mr Anjilivelil that the cited sections of the PS Act have been breached by the Respondents.  As explained above, that pertains to the selection of a person for a position which is not the case here. 
  1. [125]
    Whilst it is acknowledged that Mr Anjilivelil has taken umbrage at Mr Galluccio's advice that appointments from a merit list is the discretion of the manager, this Decision includes various extracts from the policies attached to that correspondence that further elaborate and explain that position.  In short, it was open to Mr Wasmund to take the approach that he did.
  1. [126]
    The documentary evidence shows that either or both Ms Alcomendas and Mr McIntosh were present in the workplace in the relevant periods.  In the event that Mr Wasmund had chosen to fill the vacancy, his evidence was that he would have offered the position to first Ms Alcomendas and thence to Mr McIntosh, with respect to the order of merit.  As it transpired, the other factors outlined above led Mr Wasmund to resolve not to fill the vacancy and he did not offer the vacancy to either of those colleagues.  As noted, Mr Anjilivelil was third on the list and as such he accepted that the position would not be offered to him above Mr McIntosh.
  1. [127]
    Finally, I consider that Mr Wasmund's decision to permit Ms Alcomendas to take up the OSO Coordinator role as part of her return to work program, consistent with the recommendation of her medical advice, to be entirely appropriate. 

Allegation 3:  Mr Eaton (Chief Operating Officer, Townsville Hospital and Health Service) failed to respond to Mr Anjilivelil's grievances within time.

Mr Anjilivelil's account

  1. [128]
    Mr Anjilivelil made a formal complaint of workplace discrimination to Mr Stephen Eaton, Chief Operating Officer, THHS in email correspondence dated 3 September 2019.[81]  The broad scope of that document was to (emphasis added):

…narrate a series of discrimination done upon me from the management over the years.[82]

  1. [129]
    Mr Anjilivelil stated that a response was received on 23 October 2019.[83]  He was dissatisfied with that correspondence, on the grounds that:

The attachments provided did not speak to anything mentioned in the complaint.  The issues were not mentioned in the outcome letter, but some other issue reply was provided as its outcome.[84]

  1. [130]
    Mr Anjilivelil subsequently advised Mr Eaton of his continued dissatisfaction in that the reply received did not address the complaints he had raised.  That was the subject of further email correspondence sent the following day.[85] 
  1. [131]
    On behalf of their member, the AWU sought a meeting with Mr Eaton to further discuss Mr Anjilivelil's complaint.  Mr Anjilivelil gave evidence that the AWU Organiser had

…made a telephone call to Mr Eaton to organise a meeting with myself, Peter, Sam and Stephen.  I made them aware about the complaint and we were told he will get back to us with a real outcome which never materialised.[86]

  1. [132]
    With respect to his unresolved complaint, Mr Anjilivelil submitted that Mr Eaton:

…agreed to look into it.  No further communications received on the matter at all.[87]

  1. [133]
    Mr Anjilivelil stated that Mr Eaton did not act on that complaint within the required timeframe under cl 7.2 of the Hospital and Health Service General Employees (Queensland Health) Award – State 2015[88] which provides (emphasis added):

7.2 Employee grievance procedures - other than Award matters

  1. (a)
    The objectives of the procedure are to promote the prompt resolution of grievances by consultation, co-operation and discussion to reduce the level of disputation and to promote efficiency, effectiveness and equity in the workplace.
  2. (b)
    The following procedure applies to all industrial matters within the meaning of the Act:

Stage 1: In the first instance the employee shall inform such employee's immediate supervisor of the existence of the grievance and they shall attempt to solve the grievance. It is recognised that an employee may exercise the right to consult such employee's union representative during the course of Stage 1.

Stage 2: If the grievance remains unresolved, the employee shall refer the grievance to the next in line management ("the manager"). The manager will consult with the relevant parties. The employee may exercise the right to consult or be represented by such employee's union representative during the course of Stage 2.

Stage 3: If the grievance is still unresolved, the manager will advise the employer and the aggrieved employee may submit the matter in writing to the employer if such employee wishes to pursue the matter further. If desired by either party the matter shall also be notified to the relevant union.

  1. (c)
    The employer shall ensure that:
  1. (i)
    the aggrieved employee or such employee's union representative has the opportunity to present all aspects of the grievance; and
  2. (ii)
    the grievance shall be investigated in a thorough, fair and impartial manner.
  1. (d)
    The employer may appoint another person to investigate the grievance. The employer may consult with the relevant union in appointing an investigator. The appointed person shall be other than the employee's supervisor or manager.
  1. (e)
    If the matter is notified to the union, the investigator shall consult with the union during the course of the investigation. The employer shall advise the employee initiating the grievance, such employee's union representative and any other employee directly concerned of the determinations made as a result of the investigation of the grievance.
  1. (f) margin-bottom:0pt;The procedure is to be completed in accordance with the following time frames unless the parties agree otherwise:

Stage 1:

Discussions should take place between the employee and such employee's supervisor within 24 hours and the procedure shall not extend beyond 7 days.

Stage 2:

Not to exceed 7 days.

Stage 3:

Not to exceed 14 days.

  1. (g)
    If the grievance is not settled the matter may be referred to the Commission by the employee or the union.
  1. (h)
    Subject to legislation, while the grievance procedure is being followed normal work is to continue except in the case of a genuine safety issue. The status quo existing before the emergence of a grievance or dispute is to continue while the procedure is being followed. No party shall be prejudiced as to the final settlement by the continuation of work.
  2. (i)
    Where the grievance involves allegations of sexual harassment an employee should commence the procedure at Stage 3.
  1. [134]
    Mr Anjlivelil further asserted that Mr Wasmund and "Queensland Health in general" contravened s 6(1) of the Act[89] which states:

One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them

from unfair discrimination in certain areas of activity, including work, education and accommodation.

Respondents' account

  1. [135]
    It is not in dispute that Mr Anjilivelil complained to Mr Eaton "across a number of themes"[90] regarding discrimination and lack of access to promotion opportunities in email correspondence sent on 3 September 2019.
  1. [136]
    Mr Eaton acknowledged receipt of that correspondence within 24 hours.[91]  Mr Eaton's evidence was that Mr Anjilivelil's complaint was complex and as such he was actively taking steps to gather pertinent information from THHS Human Resources staff ahead of formally responding to Mr Anjilivelil.
  1. [137]
    Mr Eaton explained the process that he had embarked on with respect to Mr Anjilivelil's complaint:

…So just my immediate – immediate acknowledgement 24 hours later just to confirm receipt and that I would be following this up with the HR director.

Mr Fraser: Okay. So after these two emails, what process did you follow with respect to Mr Anjilivelil's complaint?

Mr Eaton: Yeah.  So within my role, the type of HR related matter – matters I get tend to be if there's been a formal investigation, information will be provided to me to make a decision as an executive delegate.  From time to time, I do get complaints from various members of staff which sometimes have not the same degree of context or background information.  This fell into that matter.  I wasn't sure whether there'd already been a process that had been followed at the service group level.  So my general action in this case is to consult with the director of HR who's my, sort of, immediate peer and support in these matters.  Just ask him to clarify where – if there'd been any previous reviews of complaints such as this within the service group.  So that was my immediate question to the HR department.

 …

Mr Eaton: …I subsequently received an email from Mr Anjilivelil on Friday, September the 27th, and that was just to get a progress update in relation to my review of this matter.  Upon receipt, I forwarded that email to get a formal update from the aforementioned Sam Deluce, just to review the specifics of this case.

 …

Mr Fraser: The complaint you received in the email?

Mr Eaton: That's right.  So, obviously, we'd had the 27th of September where I'd ask for a formal update, and this is my subsequent follow-up, just dated two weeks later, just to try and bring it to a resolution acknowledging the time elapsed.

 …

Mr Eaton: …So subsequent to the meeting on the 17th – so it was the 15th of October which I just mentioned with the HR team, I then wrote back to the complainant on the 23rd of October.  It was a letter with some supporting documents.

 …

Mr Fraser: What observation, if any, do you make about this document and your response to Mr Anjilivelil's complaint?

Mr Eaton: Yeah.  I think the complexity of the complaint was quite specific because, as they'd often – there's a really clear process around following stage 1, stage 2 and then a subsequent referral to the delegate to review a complaint that had been undertaken, and I think, fundamentally – I think what was quite complex for HR was that the, sort of, chronology of events from my perspective was quite unclear, so it was quite difficult to track what had been undertaken in the service group, what had been formally closed off, and then you'd normally get – the documentation of that closed-off review would then come to you as the delegate subsequently to review.  And I think, ultimately, just looking back, the time it took for me to respond in total – the complexity of the process and the fact that it didn't necessarily follow a normal staged process was the reason for the delay, and I think that's my main observation.  I mean, the other focus for me was that whenever I did get an email or correspondence to follow up, I acted on it pretty much within 24 hours each time and agreed obviously, to meet as well.  So that would, I guess, be my overview in relation to the process.[92]

  1. [138]
    Mr Eaton responded to Mr Anjilivelill's formal complaint in email correspondence two days after he filed a complaint with the Queensland Human Rights Commission on 21 October 2019 regarding discrimination on the basis of race.[93]
  1. [139]
    It is not in dispute that Mr Anjilivelil sent further correspondence to Mr Eaton indicating his dissatisfaction with the response received the following day.
  1. [140]
    It is agreed that a meeting occurred "in the first week of November"[94] to discuss Mr Anjilivelil's complaint.  That meeting was held at the request of Mr Peter Ward, AWU Organiser, in correspondence which further advised Mr Eaton that:

Cyril vehemently believes that the matters haven't been adequately addressed in he claims that the issues are being confused with issues that were sorted between himself and Scott Goddard.

In regards to the issues Cyril put in his recent complaint, he feels that they haven't been addressed.

Cyril has expressed that he would like the AWU seek the assistance of the QIRC to resolve this impasse.

Therefore I request a meeting between yourself, myself and Curil in order to have a closer look at Cyril's subject matter in order to make sure that all efforts have been exhausted before involving the QIRC.[95]

  1. [141]
    With respect to the meeting held, Mr Eaton's evidence was that:

…So the outcome had already been made.  So my letter was the outcome.  But we did meet subsequently in November.  So we met at the start of November, you and I, and Peter Ward from the AWU.  So we did meet as per the direction here, and I think you asked for some clarification, and I provided that clarification at that meeting.  I just don't have the date with me, but it was the first week.  It was the week commencing the 4th of November that we met.

Mr Anjilivelil: In that, there was no outcome was issued to me – any paperwork was being given to me on that day on the meeting, that meeting between myself, yourself, Peter and Sam.  And I convinced you that the wrong outcome letter was issued to me, and I made you understand that the material in that letter which I sent you is totally a different subject?

Mr Eaton: We did a review of the information we provided.  We were comfortable that the decision that we made was the final decision, and I think at the meeting we would have just highlighted if there was any subsequent matters then please bring them to our attention.[96]

  1. [142]
    Essentially, Mr Eaton stated that Mr Anjilivelil's complaint was reviewed following that meeting; however the THHS's position in response to it remained unchanged.

Did that occur?

  1. [143]
    The Respondents accept that it took Mr Eaton approximately 7 weeks to determine Mr Anjilivelil's complaint.[97]
  1. [144]
    Subsequent to Mr Eaton's formal response to Mr Anjilivelil, it is not disputed that a meeting was held to further discuss the complaints.
  1. [145]
    It is also accepted that Mr Eaton did not issue a different decision to Mr Anjilivelil as a result of the meeting held.

If it occurred, how would the Respondent(s) have treated the hypothetical comparator in the particular circumstances?

  1. [146]
    Mr Anjilivelil has not made submissions as to the appropriate real or hypothetical comparator. 
  1. [147]
    The Respondents submit that the appropriate hypothetical comparator is another employee of the Hospital who also made a complaint to the COO regarding various issues with promotion opportunities who does not have his attribute of 'race'[98] and I will proceed on that basis.
  1. [148]
    In this instance, the less favourable treatment alleged is that Mr Eaton did not respond to Mr Anjilivelil's formal complaint within the prescribed timeframe.
  1. [149]
    My consideration first turns to the appropriate timeframe for the formal complaint to be addressed.  I then consider how the hypothetical comparator would have been treated in those circumstances.

Timeframe to address complaint

  1. [150]
    Completion of the 'Employee grievance procedures - other than Award matters' contained in cl 7.2(f) of the Award takes a maximum of 4 weeks in total, from the commencement of Stage 1 to the conclusion of Stage 3.
  1. [151]
    It is accepted that a period of approximately 7 weeks in fact elapsed between the time Mr Anjilivelil's formal complaint was provided to Mr Eaton and the outcome letter being issued in response.
  1. [152]
    From the outset, I would also observe that the terms of the grievance procedure were seemingly not strictly adhered to by either party in this dispute.
  1. [153]
    So while it is true that Mr Eaton's reply was issued some weeks after the Award provision prescribed, there was also some inattention to the correct process and timeframes on the part of Mr Anjilivelil.  In his capacity as a union delegate, Mr Anjilivelil would have been aware of both the Award grievance procedure and its importance.  In the event that Mr Anjilivelil was unaware of his own obligations in that regard, his AWU Organiser would likely have altered him to the process requirements upon his later involvement at the point the meeting was sought with Mr Eaton.
  1. [154]
    Mr Eaton gave evidence as to the reason for this delay and the series of actions he had taken at the Hearing of the matter.  The relevant parts appear in extract at paragraphs [137] and [141] of this Decision.  I find Mr Eaton's account straightforward and sensible.  I can well appreciate the challenges Mr Eaton encountered in these particular circumstances.
  1. [155]
    For instance, Mr Anjilivelil's initiating correspondence to Mr Eaton opens with the rather broad descriptor that the formal complaint of discrimination pertains to various incidents "done upon me from the management over the years". 
  1. [156]
    Mr Anjilivelil's formal complaint correspondence did not include dates, clear and concise particulars nor all relevant documentation and supporting materials that would best enable Mr Eaton to review the subject matters complained of efficiently and expeditiously.  Rather it is a somewhat vague account of irritants nursed by Mr Anjilivelil "over the years". 
  1. [157]
    It was necessarily then incumbent upon Mr Eaton to seek the assistance of the THHS HR team to discover the specific events Mr Anjilivelil had complained of and understand what had occurred at that time.  That in itself takes time, further compounded by the lack of proximity of some alleged events and actions to the initiation of Mr Anjilivelil's formal complaint. 
  1. [158]
    With reference now to the hypothetical comparator, the question was directly put to Mr Eaton who vehemently rejected that the delay in responding to Mr Anjilivelil's complaint had anything to do with his 'race':

Mr Fraser: Now, it's been alleged in this proceding that the delay in responding to Mr Anjilivelil's initial complaint constitutes direct discrimination on the basis of his race.  What role, if any, did Mr Anjilivelil's race play in your way in which you approached responding to the complaint?

Mr Eaton: Absolutely nothing at all.  I was – the response was 100 per cent consistent with standard processes.  So yeah.  There was no – that didn't come into play at all.[99]

Mr Anjilivelil did not cross-examine Mr Eaton on that part of his evidence.

  1. [159]
    I accept Mr Eaton's evidence as to the reasons for the delay in responding to Mr Anjilivelil's formal complaint.  That is reasonable in these circumstances.
  1. [160]
    I do not find that Mr Eaton treated Mr Anjilivelil less favourably than another employee without the attribute of Indian 'race'.

If it is decided that a 'less favourable' treatment occurred as a result of Mr Anjilivelil's 'race', was a substantial reason discriminatory?

  1. [161]
    My findings above mean there is now no requirement to determine this question.

Conclusion

  1. [162]
    I explained to Mr Anjilivelil that, in order to successfully make his case, he needed to provide evidence that any less favourable treatment he has complained of occurred because of his Indian 'race'.[100] 
  1. [163]
    Mr Anjilivelil replied that:

I believe because it is clear from this point that I am painted differently.  It is all these things I – but what I am seeing – I am seeing comparing with others who was – got their higher opportunities, their ideal progression.  They're all – they are all not immigrants and they are all with the same qualification as me who – and the same role – starting as same role as me – they're all born in here and they are not from my race.  And I find – I don't find any Indian, even though we have almost two dozen of Indians there, all with even 15 years – 16 years in the base level, they have a lot of academic qualifications and experience as – here and abroad, but none of them are going anywhere.  They are just in the base entry.

So I feel that a difference in treatment I am getting, because the discrimination I am getting is because of my race.  Otherwise, nobody has told me, you are not getting these facilities – you are not getting your share – fair share because of my race.  They did not say to me verbally, but – and I think in a country like this or in a place with a lot of laws against this, nobody will date to say that verbally, but they will do it without saying that.  That is my – this is one I want to put it.[101]

  1. [164]
    Mr Anjilivelil did not call any other witnesses in support of his case.
  1. [165]
    Despite what Mr Anjilivelil believed to be true, several critical elements of his complaints were not borne out by the evidence. 
  1. [166]
    There are mandatory tests that must be met under the Act for successfully bringing a claim of discrimination.  For the reasons I have explained with respect to each of the allegations, I find that Mr Anjilivelil was not treated less favourably than the hypothetical comparator, on the basis of the attribute of his Indian 'race'. 
  1. [167]
    The complaint is dismissed.

Costs

  1. [168]
    The Respondents have not indicated their intention to seek a costs order against Mr Anjilivelil, neither would I be minded to make such an order in this case. 
  1. [169]
    My Decision is consistent with the relevant legislative provisions.  Section 2 of sch 2 of the Industrial Relations Act 2016 (Qld) provides that, for proceedings brought under the Anti-Discrimination Act 1991 (Qld), the default position is for each party to bear its own costs. 
  1. [170]
    A departure from this practice would only occur in circumstances where "the interests of justice" would require an order for costs to be made.[102]  Section 4 of sch 2 lists circumstances that may inform any decision as to whether an order for costs may be made. Having considered the relevant legislative provisions, together with the circumstances of this case, I find no compelling reason to disturb the usual practice so prescribed.
  1. [171]
    Each party is to bear their own costs in the matter.
  1. [172]
    I order accordingly.

Orders:

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

Footnotes

[1] Respondent's Statement of Facts and Contentions, 17 August 2020, 1 [2].

[2] Ibid.

[3] Staff Allocations Coordinator.

[4] Manager, Support Services.

[5] Chief Operating Officer.

[6] Respondents' Statement of Facts and Contentions, 17 August 2020, 1 [5].

[7] Respondents' closing submissions, 10 May 2021, 1 [3].

[8] (1938) 60 CLR 336.

[9] Complainant's Statement of Facts and Contentions, 27 November 2020, 2 [13].

[10] T 1–5, lines 26–27.

[11] Respondents' closing submissions, 10 May 2021, 4 [21].

[12] Mr Cullen held the position of Acting Assistant Manager, Support Services, TUH in the relevant period; T 1–50, lines 1–7.

[13] Amended by consent on 30 April 2021.

[14] Email from Mr Anjilivelil to the Industrial Registry dated 23 May 2021 advised that he did not wish to provide any reply submissions.

[15] Anti–Discrimination Act 1991 (Qld) s 10; C Ronalds and E Raper, Discrimination Law and Practice (The Federation Press, 2012) 38.

[16] Complainant's Statement of Facts and Contentions, 27 November 2020, 3 [22].

[17] Exhibit 1, 483, 502–503.

[18] Complainant's Closing Submissions, 22 April 2021, 2 [14]–[15].

[19] Respondents' Closing submissions, 10 May 2021, 5 [27].

[20] T 1–39, lines 7–12.

[21] Exhibit 1, 400, 483, 502.

[22] Respondents' Statement of Facts and Contentions, 4 December 2020, 2 [6].

[23] 8 NSWLR 442, 471.

[24] Complainant's Statement of Facts and Contentions, 27 November 2020; Respondents' closing submissions, 10 May 2021, 1 [4].

[25] [2017] ICQ 001, [18].

[26] T 1–5, lines 42–45; T 1–6, lines 1–30.

[27] Exhibit 1, 339 – 351.

[28] Commonwealth v Humphries (1998) 86 FCR 324, 333B.

[29] Exhibit 1, 555.

[30] Complainant's Statement of Facts and Contentions, 27 November 2020, 1 [2].

[31] Ibid 1–2, [4]–[11].

[32] Respondents' Statement of Facts and Contentions filed 4 December 2020, 2 [8].

[33] Exhibit 1, 555; Respondents' Statement of Facts and Contentions, 4 December 2020, 2 [6].

[34] Ibid 3 [8].

[35] Ibid 3–5 [11]–[14].

[36] Complainant's Statement of Facts and Contentions, 27 November 2020, 2 [13].

[37] T 1–14, line 43; T 1–15, line 2.

[38] Complainant's Closing Submissions, 22 April 2021, 2 [14]–[15].

[39] Respondents' Statement of Facts and Contentions, 4 December 2020, 3 [8].

[40] Ibid 3 [11].

[41] Ibid 4 [13].

[42] Ibid 5 [13].

[43] T 1–20, line 45; Exhibit 1, 400.

[44] T 1–21, lines 4–8; Exhibit 1, 400.

[45] T 1–22, lines 1–2; Exhibit 1, 481 – 501.

[46] T 1–22, lines 4–34.

[47] T 1–23, lines 5–10.

[48] Complainant's Statement of Facts and Contentions, 27 November 2020, 4 [23].

[49] In his capacity as Chair of the interview panel.

[50] Complainant's Statement of Facts and Contentions, 27 November 2020, 4 [24].

[51] Ibid 4 [25].

[52] Ibid 4 [26].

[53] Exhibit 1, 277; Complainant's Closing Submissions, 22 April 2021, 3 [21].

[54] Public Service Act 2008 (Qld) s 27.

[55] Ibid s 28.

[56] Executive Director, Human Resources and Engagement, THHS.

[57] Complainant's Statement of Facts and Contentions, 27 November 2020, 4 [28]; Exhibit 1, 113.

[58] Ibid 4 [28].

[59] T 1–59, line 41–47; T 1–62, line 27–31; T 1–68, line 24–29.

[60] T 1–62, line 36–45; T 1–63, line 21–33; T 1–64, line 20–26; T 1–68, line 9 –22.

[61] Exhibit 1, 474 – 480; Respondents' Closing Submissions, 10 May 2021.

[62] T 1–64, line 44; T 1–65, line 2; Respondents' Closing Submissions, 10 May 2021.

[63] Respondent's Closing Submissions, 10 May 2021, 8 [54].

[64] The relevant periods are 1 October to 11 November 2018 and 1 February and 18 February 2019.

[65] T 1–24, lines 1–2.

[66] T 1–27, lines 39 – 43.

[67] Queensland Public Health Sector Certified Agreement (No. 9) 2016; Exhibit 1, 620.

[68] T 1–28, lines 13–19.

[69] T 1–28, lines 21–30.

[70] Exhibit 1, 113.

[71] Complainant's Statement of Facts and Contentions, 27 November 2020, 4 [28].

[72] Cl 7.2.

[73] Definitions, 'Secondment', 22.

[74] T 1–28, lines 43–44.

[75] T 1–64, line 45; T 1–65, line 2.

[76] T 1–29, line 1.

[77] T 1–27, line 18.

[78] T 1–27, lines 1–34.

[79] Paragraph [55] of this Decision.

[80] Respondent's Closing Submissions, 10 May 2021, 7 [45].

[81] Exhibit 1, 444.

[82] Exhibit 1, 444.

[83] Exhibit 1, 462–467.

[84] Complainant's Closing Submissions, 22 April 2021, 5 [39].

[85] Exhibit 1, 468.

[86] T 1–19, lines 4–8.

[87] Complainant's Closing Submissions, 22 April 2021, 5 [39].

[88] Complainant's Statement of Facts and Contentions, 27 November 2020, 4.

[89] Complainant's Statement of Facts and Contentions, 27 November 2020, 5 [32].

[90] T 1–70, line 36.

[91] Exhibit 1, 447 – 450.

[92] T 1–70, lines 41–47; T 1–71, lines 1 – 38; T 1–72, lines 42 – 47; T 1–73, lines 1–10.

[93] Exhibit 1, pages 458–467.

[94] T 1–72, line 27

[95] Exhibit 1, page 473.

[96] T 1–74, line 47 and T 1–75, lines 1–15.

[97] Respondents' Closing Submission, 10 May 2021, 9 [59].

[98] Respondents' Closing Submission, 10 May 2021, 9 [57].

[99] T 1–72, lines 29–34.

[100] T 1–19, lines 25–31

[101] T 1–19, lines 33–46; T 1–20, lines 1–2.

[102] Industrial Relations Act 2016 (Qld) sch 2, s 4(1).

Close

Editorial Notes

  • Published Case Name:

    Anjilivelil v State of Queensland (Queensland Health) and Anor

  • Shortened Case Name:

    Anjilivelil v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 348

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    18 Oct 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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Carlton v Workers' Compensation Regulator [2017] ICQ 1
2 citations
Jump To
Cite 1 - [2017] ICQ 1
Cite 2 - [2017] ICQ 1
Commonwealth v Humphries (1998) 86 FCR 324
2 citations
Jump To
Cite 1 - (1998) 86 FCR 324
Cite 2 - (1998) 86 FCR 324
Haines v Leves (1987) 8 NSWLR 442
2 citations
Jump To
Cite 1 - (1987) 8 NSWLR 442
Cite 2 - (1987) 8 NSWLR 442

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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