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  4. Taumoefolau v University of Queensland - [2021] QIRC 80

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Taumoefolau v University of Queensland[2021] QIRC 80

Taumoefolau v University of Queensland[2021] QIRC 80

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Taumoefolau v University of Queensland & Blakeney [2021] QIRC 080

PARTIES: 

Siale Polohiva Taumoefolau

(Complainant)

v

University of Queensland

(First Respondent)

&

Karl Blakeney

(Second Respondent)

CASE NO:

AD/2019/37

PROCEEDING:

Referral of a complaint under the Anti-Discrimination Act 1991 (Qld)

DELIVERED ON:

12 March 2021

HEARING DATES:

16 and 17 March 2020

MEMBER:

Industrial Commissioner Dwyer

HEARD AT:

Brisbane

ORDERS:

  1. The complaint is dismissed.
  1. Any application for costs pursuant to s 548 of the Industrial Relations Act 2016 (Qld) must be made within 14 days of the date of this Order.

CATCHWORDS:

INDUSTRIAL LAW – DISCRIMINATION – self represented applicant – application limited to matters referred – applicant bears onus of proof – no factual basis for complaints established – incoherent claims – onus not discharged – application dismissed

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) ss 7, 10, 11, 15, 25, 124, 129, 133, 164A, 204

Industrial Relations Act 2016 (Qld) s 548

CASES:

Briginshaw v Briginshaw (1983) 60 CLR 336

Commissioner of Corrective Services v Aldridge [2000] NSW ADTAP 5

Gambaro v Workers’ Compensation Regulator [2017] ICQ 5

Martires v Endura Paint Pty Ltd (No.1) [2021] FCA 178

EY v The Store [2021] QIRC 16

APPEARANCES:

Ms S Taumoefolau the complainant in person.

Mr S Mackie of counsel, instructed by Colin Biggers & Paisley Lawyers for the first and second respondent.

Reasons for Decision

         Nature and scope of the complaint

  1. [1]
    On 27 August 2018, Ms Taumoefolau made an application to the Anti-Discrimination Commission Queensland ('ADCQ') ('the complaint').[1] In the complaint, Ms Taumoefolau alleged contraventions of the Anti-Discrimination Act 1991 (Qld) ('the Act') by the University of Queensland ('UQ') and its employee, Mr Karl Blakeney. Ms Taumoefolau nominated discrimination on the basis of race, sex and age, each of which are attributes upon which discrimination is prohibited.[2]
  1. [2]
    The facts relied on by Ms Taumoefolau are set out in detail below. In summary, Ms Taumoefolau alleges that she was offered employment with UQ by either Ms Amanda Russell in a telephone conversation on 31 August 2017 ('the telephone call') or at a meeting with Ms Russell and Mr Blakeney at UQ on 5 September 2017 ('the meeting'). Ms Taumoefolau also subsequently alleged she was asked inappropriate questions at the meeting.[3] Ms Taumoefolau seems to allege (by implication) that the offer of employment was revoked after the meeting at UQ on 5 September 2017, and she alleges that this was on the basis of the prescribed attributes of race, age and gender.
  1. [3]
    The respondent parties deny that Ms Taumoefolau was offered employment and assert that the meeting was essentially an interview to ascertain Ms Taumoefolau’s suitability. Following the meeting, it was decided not to offer Ms Taumoefolau employment because she appeared overly nervous throughout the meeting. Mr Blakeney and Ms Russell deny that any of the nominated attributes were the basis for the decision not to offer Ms Taumoefolau employment. 
  1. [4]
    On or about 19 January 2019, the ADCQ (as it then was) informed UQ that it had accepted the complaint and began the process of scheduling the matter for conciliation. The matter was not resolved at the conciliation conference and was subsequently referred to this Commission pursuant to s 164A of the Act.
  1. [5]
    Notably, the referral of the complaint was limited to the allegations of discrimination on the basis of:
  • sex;
  • age;
  • directly and indirectly; and
  • the compliant with respect to a request for unnecessary information.
  1. [6]
    The ADCQ did not refer any complaint with respect to discrimination on the basis of race. Further, Ms Taumoefolau has subsequently sought to allege victimisation and discrimination on the basis of impairment.[4] I note neither of these complaints were contained in the referral from the ADCQ.
  1. [7]
    While I am not bound by the characterisation of the complaint in the referral, in this instance, I intend to restrict my dealing with this matter to the complaints referred to the Commission.
  1. [8]
    In particular, I do not intend to deal with the allegation of race discrimination. I am satisfied, having read the filed material and having heard evidence of Ms Taumoefolau on this issue, that there is no sustainable argument that the actions taken by the respondents were even remotely influenced by Ms Taumoefolau’s race.
  1. [9]
    The allegation regarding race discrimination arises exclusively from Ms Taumoefolau’s highly subjective perception that she was excluded from sharing lunch with Ms Russell and Mr Blakeney (that she alleges occurred after the meeting) because, as a Tongan, she was "not worth having lunch with".[5] There is no other evidence or allegation made by Ms Taumoefolau in support of her claim of race discrimination. For this reason I am not persuaded to expand the complaint referred by the ADCQ.
  1. [10]
    For completeness, had I been compelled to have dealt with a complaint of race discrimination in this matter, in all of the circumstances set out above, I would have dismissed it.
  1. [11]
    Further, I do not intend to deal with the complaints subsequently made alleging victimisation or impairment discrimination as they were never part of the complaint or the referral.  In any event, such complaints are unsupported by the evidence.
  1. [12]
    Ms Taumoefolau was unrepresented in this matter. The material filed and evidence given by Ms Taumoefolau, at times, made it difficult to ascertain the precise nature of her allegation(s). The written material filed by Ms Taumoefolau meanders through provisions of the Act somewhat aimlessly and incoherently in parts.
  1. [13]
    Ms Taumoefolau’s lack of representation no doubt put her at something of a disadvantage with respect to the pleading and presentation of her case however I note the former President’s comments in Gambaro v Workers’ Compensation Regulator where he observed that "a lack of legal representation is misfortune, not a privilege".[6]
  1. [14]
    It does not fall to me, or to the respondents, to articulate Ms Taumoefolau’s complaint more precisely where she cannot or will not. I add that, being conscious of her lack of representation, I ensured the proceedings were conducted such that Ms Taumoefolau was not disadvantaged.[7]
  1. [15]
    In addition to the lack of representation, Ms Taumoefolau’s presentation of her claim was mildly impacted by language issues. While I note that English was not Ms Taumoefolau’s first language, I had the opportunity to observe her over the two days of the hearing and I did not consider that she was lacking in proficiency to the extent that it prevented her from expressing herself and being understood. More often than not, it was my observation that Ms Taumoefolau’s language difficulties typically emerged when she was being asked to answer questions under cross examination or that went to some issue of controversy.
  1. [16]
    Despite the lack of precision with which it was presented, it was evident that Ms Taumoefolau’s complaint is confined to two key events.[8] In this matter, it will be the evidence of the conduct and language of Ms Russell and Mr Blakeney during the telephone call and at the meeting that will be central to determining whether the alleged contraventions of the Act can be established.

Statutory framework

  1. [17]
    In the referral material the ADCQ indicates that it accepted the complaint in respect of the following provisions of the Act:

7  Discrimination on the basis of certain attributes prohibited

The Act prohibits discrimination on the basis of the following attributes—

(a) sex;

…

(f) age;

…

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.
  2. (2)
    It is not necessary that the person who discriminates considers the treatment is less favourable.
  3. (3)
    The person’s motive for discriminating is irrelevant.
  4. (4)
    If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
  5. (5)
    In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

11  Meaning of indirect discrimination

  1. (1)
    Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
  1. with which a person with an attribute does not or is not able to comply; and
  1. with which a higher proportion of people without the attribute comply or are able to comply; and
  1. that is not reasonable.
  1. (2)
    Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
  1. (a)
    the consequences of failure to comply with the term; and
  2. (b)
    the cost of alternative terms; and
  3. (c)
    the financial circumstances of the person who imposes, or proposes to impose, the term.
  1. (3)
    It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
  2. (4)
    In this section –

term includes condition, requirement or practice, whether or not written.

15  Discrimination in work area

  1. (1)
    A person must not discriminate —
  1. (a)
    in any variation of the terms of work; or
  2. (b)
    in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
  3. (c)
    in dismissing a worker; or
  4. (d)
    by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
  5. (e)
    in developing the scope or range of such a program; or
  6. (f)
    by treating a worker unfavourably in any way in connection with work.

…

124  Unnecessary information

  1. (1)
    A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.
  2. (2)
    Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by—
    1. an existing provision of another Act; or
    2. an order of a court; or
    3. an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or
    4. an existing provision of an industrial agreement under the repealed Industrial Relations Act 1999; or
    5. an order of QCAT or the industrial relations commission.
  3. (3)
    It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.
  4. (4)
    In this section—

existing provision means a provision in existence at the commencement of this section. Example—

An employer would contravene the Act by asking applicants for all jobs whether they have any impairments, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.

(Emphasis added)

  1. [18]
    In simple terms, the Act prohibits less favourable treatment of a person on the basis of a prescribed attribute or attributes. Further, the Act prohibits asking for information upon which unlawful discrimination might be based.
  2. [19]
    The Act requires a causal nexus between the prescribed attribute and the less favourable treatment. The use of terms such as 'on the basis of an attribute' unequivocally require that for a complainant to succeed on a claim of direct discrimination, it must be proven that the complained of conduct or treatment was wholly or substantially on the basis of a prescribed attribute.[9]
  1. [20]
    The onus of proof in establishing that causal nexus rests with Ms Taumoefolau. Ms Taumoefolau must prove the elements of her complaint on the balance of probabilities,[10] to the standard established in Briginshaw v Briginshaw.[11]

Factual background

  1. [21]
    The chronology of relevant events, and many of the facts surrounding them, were largely non-contentious.
  1. [22]
    On or about 22 August 2017, Ms Taumoefolau made contact with staff at the UQ Temp Register with respect to obtaining employment in an IT role.
  1. [23]
    Shortly after 22 August 2017, Mr Blakeney, the IT Service Delivery Manager, required a short term casual employee to complete some projects. He asked his colleague Ms Russell to contact the UQ Temp Register to ascertain whether there were any suitable candidates for the role registered.
  1. [24]
    Ms Russell spoke with Mr Josh Quarmby of UQ Temps who subsequently contacted Ms Taumoefolau to discuss suitability for the role and arrange reference checks. Ms Russell subsequently called Ms Taumoefolau.
  1. [25]
    During the telephone call on 31 August 2017 Ms Taumoefolau contends that Ms Russell offered her a job.[12] Ms Taumoefolau further contends that she accepted the job, arranged to commence on 4 September 2017 and agrees that she screamed with delight during the call.[13] Ms Taumoefolau contends that Ms Russell agreed with the nominated start date and said that Ms Taumoefolau would need to complete some forms.
  1. [26]
    In contrast to this account of events, Ms Russell contends that she called Ms Taumoefolau to discuss the nature of the job. She rejects the suggestion that she made an offer of employment. Ms Russell agrees that she said words to the effect of "your application looks good but I have to run it past my manager". Ms Russell confirms that Ms Taumoefolau not only squealed, but that she generally made little sense throughout the brief conversation. Ms Russell says she put this down to nerves.[14]
  2. [27]
    Ms Taumoefolau alleges she nominated 4 September 2017 as her commencement date. Notably, Ms Taumoefolau made no attempt to attend work or contact anyone about attending work on that day. On the afternoon of 4 September 2017, Ms Taumoefolau was invited (via email) by Ms Russell to attend the meeting at a café on UQ grounds on 5 September 2017.[15]
  1. [28]
    Ms Taumoefolau met with Mr Blakeney and Ms Russell at the café at UQ for coffee on 5 September 2017. During the meeting the nature of the role Mr Blakeney was looking to fill was discussed.
  1. [29]
    The conversation at the meeting forms the basis of much of Ms Taumoefolau’s claim. Ms Taumoefolau alleges that the things said and questions asked by Mr Blakeney at this meeting reveal his prohibited discriminatory conduct. Notwithstanding the alleged discrimination, Ms Taumoefolau also alleges Mr Blakeney offered her employment.[16]
  1. [30]
    Immediately following the meeting, Ms Taumoefolau made multiple calls to Ms Russell and sent an email to ascertain whether she was "on board".[17] In the days that followed, Ms Russell communicated with Ms Taumoefolau and advised her that she had not been successful and the reasons why.[18]
  1. [31]
    Initially, there is no evidence that Ms Taumoefolau raised any objection to this news when delivered by Ms Russell. However as noted above, almost a full year later, Ms Taumoefolau formulated the allegations of discrimination now before me.
  1. [32]
    There is no dispute between the parties that Ms Taumoefolau has the protected attributes i.e. she is a woman and was approximately 50 years of age at the relevant time. My consideration of this matter deals only with whether Ms Taumoefolau was subjected to direct or indirect discrimination on the basis of those attributes and further, whether Ms Taumoefolau was subjected to unlawful requests for information. 

         Direct discrimination

  1. [33]
    Ms Taumoefolau asserts alternatively that she has been subjected to both direct and indirect discrimination.
  1. [34]
    The proper test to be applied was recently set out in the decision of Hartigan, IC in EY v The Store :[19]

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

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

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

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

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

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

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

  1. [35]
    In the circumstances, broadly speaking, the central issue for consideration is whether Ms Taumoefolau was treated less favourably by UQ and Mr Blakeney than another person without those attributes in the same or similar circumstances and, if so, was it on the basis of one or both of the prescribed attributes.
  1. [36]
    The proper comparator in the context of Ms Taumoefolau’s complaint would be a male, under the age of 50, who presented in telephone contact and at interview in the same or similar way as Ms Taumoefolau i.e. in a nervous manner.

Less favourable treatment

  1. [37]
    It appears Ms Taumoefolau claims that the alleged offer (and then retraction of the alleged offer) of employment was the less favourable treatment to which she was subjected based on her prescribed attributes. I cannot identify any other facts alleged by her that are consistent with a complaint of less favourable treatment.
  2. [38]
    The Respondents contend that there was never any offer of employment. If that is accepted, then a substantial factual basis of Ms Taumoefolau claim evaporates. Given the difficulties confronting Ms Taumoefolau that were discussed above, I propose to consider three alternative scenarios with respect to less favourable treatment, namely, whether there is there evidence that:
  1. Ms Taumoefolau was offered employment on 31 August 2017 that was subsequently withdrawn; or
  1. Ms Taumoefolau was offered employment at the meeting on 5 September 2017 that was subsequently withdrawn; or
  1. Ms Taumoefolau was declined an offer of employment.
  1. [39]
    I am conscious that scenario 3 above has never been a discernible pleading in Ms Taumoefolau’s complaint however I consider it prudent to address it given that her failure to secure a role with UQ seems a central feature of Ms Taumoefolau’s complaint. I see no prejudice to either party by expanding my consideration in this manner.
  1. [40]
    The respondent parties have maintained throughout proceedings that no offer of employment was ever made to Ms Taumoefolau. In order to consider these scenarios, it is necessary to first consider the question of whether an offer of employment was made, and if so, when.

Alleged offer of employment – 31 August 2017

  1. [41]
    Ms Taumoefolau maintains that she received a telephone call from Ms Russell on 31 August 2017. Ms Taumoefolau contends that Ms Russell overtly and without any ambiguity offered her a job. She gave evidence of the conversation during the hearing as follows:[20]

She said to the effect, she congratulate me for my new appointment to the IT support officer. And she ask me when would I like to start, and I said, “What about Monday 4th September?” And she said something- “That’s fine. I will send you employment form and you need to fill it and return it to me by – before Friday so that you can start on Monday.”

  1. [42]
    Ms Taumoefolau has given similar accounts of this conversation previously. It is clear from her evidence that she contends there was a firm offer made on 31 August 2017 and that she accepted that offer. She further contends that a starting date was agreed upon, namely 4 September 2017.
  1. [43]
    In support of her contention, Ms Taumoefolau lead evidence from her 16 year old daughter Ms Melenaite Taumoefolau (‘Melenaite’). Melenaite, who was aged 13 at the relevant time, gave evidence that she was in the car with her mother when Ms Russell called. She said that she answered the telephone for Ms Taumoefolau and said further:[21]

So when I picked up the phone, it was on speaker, and the – what I heard – what I remember is that the lady said, “Congratulations. You’ve got the job” and the rest I don’t really remember…

  1. [44]
    Melenaite also confirmed that Ms Taumoefolau was excited and screaming during the telephone conversation and said words to the effect of "Thank you, you won’t regret recruiting me".[22]
  1. [45]
    Ms Russell’s evidence in chief was provided by way of affidavit.[23] At paragraphs 17 to 19 of her affidavit, Ms Russell describes the conversation between her and Ms Taumoefolau on 31 August 2017. In short, Ms Russell contends she called Ms Taumoefolau to discuss the role with her. She was particularly concerned to do so because the role was different to a ‘normal IT Support Officer role’ and because it was only a short term engagement.[24]
  1. [46]
    Ms Russell states that Ms Taumoefolau did not make much sense over the phone. She states that Ms Taumoefolau was squealing with excitement and was muddling her words. Ms Russell says that she said to Ms Taumoefolau words to the effect of "your application looks good but I have to run it past my manager as he has the final say".
  1. [47]
    Under cross examination by Ms Taumoefolau, Ms Russell said she did not recall every word of the conversation because it occurred over two years earlier. She said she did not recall if she used the word congratulations, though she was confident that she did not as she did not have the authority to recruit Ms Taumoefolau.[25]
  1. [48]
    Ms Taumoefolau questioned Ms Russell about the employment forms sent to her after the telephone conversation. Ms Russell conceded this had been an error on her part, but they are forms used in the recruitment process, not an offer.[26] I accept the evidence of Ms Russell on this point. The sending of those documents was quite obviously an error.
  1. [49]
    Ms Russell denied she had agreed to a 4 September 2017 start date. She said that she asked Ms Taumoefolau if she could be available to start on 4 September. She says that this did not mean Ms Taumoefolau was starting that day as it still all had to be run past Mr Blakeney.[27] 
  1. [50]
    It is Ms Taumoefolau’s contention that she was offered employment in the telephone conversation with Ms Russell on 31 August 2017. Ms Russell rejects this proposition. Where the accounts differ I prefer the evidence of Ms Russell. I do so for a number of reasons.
  1. [51]
    Firstly, it was uniformly accepted by all parties and witnesses to the conversation that Ms Taumoefolau was excited to the point that she was squealing during the telephone conversation. It was apparent that, having been unemployed for approximately two years prior to this conversation,[28]  Ms Taumoefolau would have likely been quite thrilled at the prospect of re-entering the workforce.
  1. [52]
    In my view, Ms Taumoefolau’s heightened state of excitement was a factor that lead her to misunderstand the nature of the conversation with Ms Russell.
  1. [53]
    Secondly, I consider that Ms Taumoefolau was also liable to misunderstand the nature of the conversation because of her mild language difficulties.
  1. [54]
    I do not accept that Ms Russell commenced the conversation by saying "congratulations" and "you have been successful". I have no doubt that this was how Ms Taumoefolau perceived the call from Ms Russell, but I consider it highly improbable that Ms Russell used those words or even expressed that sentiment because, while I note Ms Russell was new to her role at the time, her evidence reveals that she was very clear of the extent of her authority. I accept that she understood her limits then, as she does now. She did not have the authority to hire Ms Taumoefolau, so she would not have used those words. 
  1. [55]
    While I do not accept her account of the event, I do not find that Ms Taumoefolau is being wilfully dishonest in her account. It is a common enough feature of witness testimony that, over time, a reconstruction of events will occur in the memory of a witness. I consider that over the time that has elapsed, Ms Taumoefolau has conflated the series of events and emotions following the telephone call to construct a recollection that she was offered the role.
  1. [56]
    I have no doubt that Ms Taumoefolau genuinely believes now that Ms Russell offered her the role, but much of her own evidence suggests she was not clear about this at the relevant time. Problematically for Ms Taumoefolau, part of her own account of these events directly contradicts the assertion she now makes and reveals objectively what must have been her mindset at the time.
  1. [57]
    While Ms Taumoefolau insists that 4 September 2017 was nominated during the call with Ms Russell to be her start date, it is uncontroversial that Ms Taumoefolau made no attempt to attend work, or even make any enquiries about attending work on 4 September 2017. It is inconceivable that any person who had arranged a firm commencement date for employment would simply hang up the telephone and take no further action. The next contact was not until Ms Russell emailed Ms Taumoefolau on the afternoon of 4 September 2017, at a time when Ms Taumoefolau (on her current account) would have already expected to have commenced work. Yet Ms Taumoefolau took no action after 31 August 2017. She did not even initiate the email contact that took place on 4 September 2017.
  1. [58]
    It is clear, from her own actions at the relevant time, that Ms Taumoefolau could not have had an expectation that she was commencing work on 4 September 2017.
  1. [59]
    For completeness I should add that I do not accept the evidence of Melenaite. For similar reasons, I do not consider that Melenaite is being wilfully dishonest. Having regard to the fact that she was thirteen at the time of the conversation and that she was not asked to record her recollections in writing until eight months later, I find her evidence to be unreliable. I also consider it to be more than a little implausible that the only precise words Melenaite says she can recall from the telephone call, after all of this time, is Ms Russell offering Ms Taumoefolau a job.
  1. [60]
    In all of the circumstances I prefer the evidence of Ms Russell with respect to the telephone call on 31 August 2017. I find that Ms Russell made a preliminary approach to Ms Taumoefolau about her interest in and suitability for a role, but that no offer of employment was made. I find that Ms Russell undertook to discuss the matter with Mr Blakeney and make arrangements to interview Ms Taumoefolau to determine her suitability.

 Alleged offer of employment - 5 September 2017   

  1. [61]
    Following an email exchange on the afternoon of 4 September 2017, Ms Taumoefolau was invited to meet with Ms Russell and Mr Blakeney. The meeting proceeded as arranged at 2pm at a café on the grounds of UQ. Ms Taumoefolau gave evidence that she was nervous.[29]
  1. [62]
    Similarly to her account of the telephone conversation on 31 August 2017, Ms Taumoefolau contends that Mr Blakeney expressly congratulated her and told her she had the role.[30] Mr Blakeney and Ms Russell deny this. She describes the conversation in her evidence as follows:

…And so we started with – by the UQ manager, Mr – congratulated me, asked me at the beginning of it, “Have you got a job?” and I said, “No, I haven’t got a job. I’ve been contacted regarding this, that I’ve got this job,” and he said, “Congratulations. We offer you the job, and so you start on Monday. You work Monday to Friday from 8 to 4 o’clock…

…He didn’t offer the job in the – at the end of the interview. He offered the job at the beginning, and he said, “I – I manage 250 staff and” – and I remember I say [indistinct], well, the – you know, what – the job, it is for – because of configuring router,… And she said that, “You start Monday. You work from Monday to Friday. You start at – from 8 o’clock to 4 o’clock….

  1. [63]
    Mr Blakeney and Ms Russell say that Ms Taumoefolau appeared nervous throughout their meeting with her, to the point where they each formed the view she was unsuitable for the role.[31]
  1. [64]
    Ms Taumoefolau further asserts that she was asked questions that contravene the Act. I will deal with those separately below.
  • [65]
    The evidence of Ms Taumoefolau is directly at odds with the evidence of Ms Russell and Mr Blakeney. I do not consider that Ms Taumoefolau’s account of the conversation at the meeting is reliable. Ms Taumoefolau’s description of the words and phrasing allegedly used by Mr Blakeney (as set out above) are unusual. I consider it implausible that Mr Blakeney would use language in the manner described as his opening remark to Ms Taumoefolau.
  1. [66]
    Ms Taumoefolau’s account of the meeting has all the hallmarks of a reconstructed memory based on her subjective perceptions, similar to her evidence of the telephone call of 31 August 2017. 
  1. [67]
    Ms Russell gives an account of all aspects of the conversation that is a largely consistent to that given by Mr Blakeney.[32] For this reason, I consider the evidence of Ms Russell and Mr Blakeney to be more reliable.
  1. [68]
    Further, and again similarly to the evidence Ms Taumoefolau gave about the telephone call on 31 August 2017, there are certain agreed facts that point to Ms Taumoefolau having a different understanding of the conversation at the time of the meeting to the understanding she now asserts.
  1. [69]
    It appears on the evidence that Ms Taumoefolau accepts that she made multiple calls to Ms Russell immediately following the meeting to enquire whether she had the job.[33] There is no suggestion by Ms Taumoefolau that the alleged offer made at the commencement of the meeting was withdrawn. That being the case, her confusion after the meeting is at odds with her assertion an offer was made at the start of the meeting.
  1. [70]
    The concession about making calls after the meeting unequivocally establishes that, in the period immediately following the meeting, Ms Taumoefolau was still unclear about whether she had been employed.[34] If this is correct, and I accept it is, then there cannot have been any offer made.
  1. [71]
    In the circumstances I find that Ms Taumoefolau was not offered employment at the meeting on 5 September 2017.
  1. [72]
    In all of the circumstances, I find that there was no offer of employment to Ms Taumoefolau at any time. If no offers were made either in the telephone call or at the meeting, then it follows that no offers were retracted. As a consequence of this finding it becomes unnecessary to consider (by way of reference to a comparator) whether Ms Taumoefolau was subjected to less favourable treatment with respect to offers of employment being retracted.
  1. [73]
    The only remaining consideration is whether declining to offer employment was less favourable treatment on the basis of the attributes of age and sex.

 No offer of employment  

  1. [74]
    Plainly, Ms Taumoefolau was given preliminary consideration for, but ultimately was not offered, employment. A refusal to offer employment might be less favourable treatment contravening the Act if the basis for the refusal is wholly or substantially because a candidate for the employment possesses one of the attributes listed at s 7 of the Act.
  1. [75]
    Relevantly, it is important to note that a mere refusal to offer employment is not, of itself, a contravention of the Act.
  1. [76]
    Ms Taumoefolau is a woman and she was aged 50 at the relevant time. Each of these attributes fall within prescribed attributes upon which a person may not discriminate.
  1. [77]
    There is no evidence before me that establishes any overt reference to, or reliance on, one or both of the attributes possessed by Ms Taumoefolau when Mr Blakeney or Ms Russell were communicating with Ms Taumoefolau or forming the decision not to offer her employment. Importantly, there is no evidence that Mr Blakeney or Ms Russell expressly or openly turned their mind to these attributes as the basis for refusing to offer employment to Ms Taumoefolau.
  1. [78]
    Both Mr Blakeney and Ms Russell assert that their decision not to offer Ms Taumoefolau employment was because she appeared to be overly nervous during the meeting. The rationale for rejecting her on this basis was that the work in IT often requires IT staff to deal with stressed or anxious UQ personnel.[35]
  1. [79]
    While it is not a directly comparable experience, I had the opportunity to observe Ms Taumoefolau over the two days that she appeared before me. Allowing for nerves that she inevitably felt, I observed her to be somewhat introverted, timid and (at times) a very poor communicator. Having had the benefit of observing Ms Taumoefolau in a stressful situation, I have no difficulty in accepting the evidence of Mr Blakeney and Ms Russell about Ms Taumoefolau’s demeanour and presentation during the meeting.
  1. [80]
    It is uncontested that Ms Taumoefolau was asked questions about her capacity to lift heavy equipment. If it had been the case that Mr Blakeney or Ms Russell had declined to offer employment to Ms Taumoefolau because of a perception that her age or gender precluded her from such work, that may well have lead to a prima facie contravention of the Act,[36] although certain exemptions might apply.[37] But the evidence of both Mr Blakeney and Ms Russell reveals that such considerations played no part in their decision not to hire Ms Taumoefolau. I accept their evidence in that regard.
  1. [81]
    Having heard the evidence of Mr Blakeney and Ms Russell, and having observed Ms Taumoefolau myself, I have no doubt that Ms Taumoefolau presented very poorly at the meeting. I accept the evidence of Mr Blakeney and Ms Russell that Ms Taumoefolau’s nervous presentation was the reason why she was not offered employment. Importantly, I consider this was also the only reason.
  1. [82]
    In all of the circumstances I am satisfied that there was no direct discrimination as alleged or at all.

Indirect discrimination

  1. [83]
    The complaint referred from the ADCQ included a complaint pursuant to s 11 of the Act. The particulars of this complaint are not readily identifiable in the referral material but there is an attempt to set them out in Ms Taumoefolau’s Statement of Facts and Contentions filed on 13 March 2020.
  1. [84]
    I do not intend to re-produce the entire pleading in these reasons. I will instead set out a small portion that will serve as an example of the style, structure and disjointed nature of the pleadings. It reads as follows:

The Complainant was indirectly discriminated against based on her working status attribute in association with complainant (temporarily imputed on her during the interview she is NOT UQ current staff) and upon which the Complainant was discriminated against is comparable to the internal applicant who was successful in obtaining the position.

Assumedly, the refusal of appointment of Complainant to the IT Support Officer was based on attribute in association with complainant associated attribute her working status – not current UQ staff like internal applicant. It was obvious the refusal of the appointment of Complainant to the IT Support position was based on her associated working status attribute (NOT UQ current staff) which was reflected when the position was first congratulated and offered to the Complainant was on 31st August 2017 (when the UQ IT Manager Mr Blakeney was on leave) prior to the second offer of the same position to Internal Applicant after on 5 September 2017 because the internal applicant is an UQ Current staff.

It was obvious that Mr Karl Blakeney and Ms Russell pre-plan was NOT to inform the Complainant of informal coffee being second interview until her attendance as a way to discriminate against the Complainant and be unsuccessful in obtaining the position because they wanted the the (sic) internal Applicant to be successful in obtaining the position because of being UQ current staff.   

  1. [85]
    The pleadings on indirect discrimination go on in this style for a total of four pages. The subsequent passages provide no more clarity than those reproduced above. I pause to note again that while English was not her first language, I observed Ms Taumoefolau to have adequate command of the language in other written materials filed and in her presentation before me.
  1. [86]
    The pleadings on indirect discrimination are entirely incapable of being understood. Moreover, Ms Taumoefolau made no significant attempt to cross examine either witness on the issue of indirect discrimination so that some clarity of this ground of her complaint might have been achieved. 
  1. [87]
    Ms Taumoefolau’s written closing submissions on indirect discrimination seek to expand the claim and appear to break the complaint into three parts:
  1. An indiscernible complaint consistent with her pleadings in the Statement of Facts and Contentions;
  1. Race discrimination; and
  1. An impairment complaint.
  1. [88]
    Ground 2 was not referred by the ADCQ and I have already determined not to deal with it. Ground 3 is a new ground and is similarly incoherently pleaded in the written submissions. Ground 1 is equally incoherent. I can identify no cogent complaint of indirect discrimination in Ms Taumoefolau’s material.
  1. [89]
    The only particulars of the indirect discrimination complaint that  I am able to glean from the pleadings and the submissions is that Ms Taumoefolau is trying to allege that a term of being an existing UQ employee was (apparently covertly) imposed on her in her consideration for employment. The ‘proof’ of this is alleged to be the fact that the role Ms Taumoefolau interviewed for was given to an internal applicant. The evidence rises no higher than Ms Taumoefolau’s speculative theory which places the most sinister spin on the objective facts. If that is her complaint of indirect discrimination, I do not accept it. In the absence of any supporting evidence I consider the scenario highly improbable.
  1. [90]
    For completeness, having regard to all the evidence lead at hearing, I cannot identify any facts that would give rise to any complaint of indirect discrimination. 
  1. [91]
    In the circumstances I intend to dismiss the complainant insofar as it relates to indirect discrimination.

Unnecessary information

  1. [92]
    The complaint referred from the ADCQ included a complaint pursuant to s 124 of the Act. The particulars of this complaint are not readily identifiable in the referral material, but are set out in Ms Taumoefolau’s Statement of Facts and Contentions filed on 13 March 2020 as follows:

The complainant was discriminated during the second interview by UQ way of working on the basis of being required by Mr Blakely to answer unnecessary interview question about if any of her family have had any connection with the University of Queensland which applies generally in the workforce and usually disadvantage applicant from working together with close relatives in the same organisation. Sometimes, it puts the applicants in disadvantage position for their close relative staff member who have dynamics with interview panel. The complainant was not offered the position and believed this was on the basis of her answer of unnecessary question of having family members at UQ (husband – UQ MBA postgraduate, 2 daughters – 1 final year Art student and 1st year Science) which is contrary to section 124 (irrelevant information).

  1. [93]
    Ms Taumoefolau’s written submissions on the s 124 compliant, delivered after the hearing, include a replication of this passage. Ms Taumoefolau’s pleadings and submissions again suffer from a lack of coherence though slightly less so in this instance.
  • [94]
    As best as I can ascertain, Ms Taumoefolau appears to be contending that she was asked about family connections at UQ. To what extent such questions might elicit information on which unlawful discrimination might be based is entirely unclear. Ms Taumoefolau made no clear attempt to cross examine either Mr Blakeney or Ms Russell about this allegation.
  1. [95]
    In their affidavits, Mr Blakeney denied asking any such questions,[38] while Ms Russell recalled something to the effect of questions about connections to UQ asked in the context of 'general conversation'.[39]  
  1. [96]
    I am satisfied that a question or questions enquiring about personal connections to UQ may have been asked. I accept the evidence of Ms Russell that such questions were asked in general conversation and were apparently inconsequential. Ultimately though, s 124 does not require consequences of unlawful discrimination to flow from the question. A contravention of s 124 starts and ends with the asking of the question.
  1. [97]
    The difficulty for Ms Taumoefolau is that she has failed to demonstrate how information about her family connections with UQ might have formed the basis of unlawful discrimination. Ms Taumoefolau merely points to a question or questions about her family connections to UQ. On the evidence of family connections alone, I am unable to confidently identify how such information might form the basis of unlawful discrimination.
  1. [98]
    In the circumstances, I am not satisfied it was a question or questions contravening s 124 of the Act.

         Vicarious liability

  1. [99]
    UQ are named as the first respondent in these proceedings. Notwithstanding this, Ms Taumoefolau has made no submission nor offered any pleading about vicarious liability arising under s 133 of the Act.
  1. [100]
    In any event, given my findings above, it follows that I find that UQ has no liability, vicarious or otherwise, for the matters complained of by Ms Taumoefolau.

Conclusion

  1. [101]
    Ms Taumoefolau has proceeded with this complaint in circumstances where there was no compelling evidence to support any of her claims. It is not a case where she sought to call evidence from witnesses who failed to come up to proof, or produce documents that circumstantially suggested liability for some or all of the complaints but equally failed to do so. Ms Taumoefolau’s complaint has proceeded entirely on her speculation or supposition about the motives of Mr Blakeney and Ms Russell. It was speculation and supposition that was not objectively reasonable.
  1. [102]
    Unsurprisingly, given the dearth of evidence accompanying her complaint, Ms Taumoefolau has failed entirely to discharge the onus of proof. In the circumstances the complaint must be dismissed.   

Order

  1. [103]
    I make the following order:
  1. The complaint is dismissed.
  1. Any application for costs pursuant to section 548 of the Industrial Relations Act 2016 must be made within 14 days of the date of this Order.

Footnotes

[1] Now the Queensland Human Rights Commission.

[2] Anti-Discrimination Act 1991 (Qld) ss 7(a), 7(f)-(g).

[3] The complaint regarding s 124 of the Act was not originally nominated but appears to have been added during the complaints passage through the ADCQ.

[4] Anti-Discrimination Act 1991 (Qld) s 129.

[5] See Part F of Ms Taumoefolau’s complaint to the ADCQ. See also Transcript dated 16 March 2020, page 1-16 to 1-17.

[6] [2017] ICQ 5, [14].

[7] Martires v Endura Paint Pty Ltd (No.1) [2021] FCA 178, [40]-[41].

[8] The telephone call on 31 August 2017 and the meeting on 5 September 2017.

[9] Anti-Discrimination Act 1991 (Qld) s 10(4).

[10] Ibid s 204.

[11] (1938) 60 CLR 336.

[12] Transcript 16 March 2020, page 11, line 25-35.

[13] Transcript 16 March 2020, page 11, line 39-44.

[14] Exhibit 14, paragraphs 19-22.

[15] Exhibit 2.

[16] Transcript 16 March 2020, page 14, line 15-25

[17] Transcript 16 March 2020, page 14, line 25-40; Exhibit 4.

[18] The role went to an internal applicant. Exhibit 5.

[19] [2021] QIRC 016, [58]; Commissioner of Corrective Services v Aldridge [2000] NSW ADTAP 5, [41]-[45].

[20] Transcript, 16 March 2020, page 11, line 25-30.

[21] Transcript, 17 March 2020, page 4, line 0-8.

[22] Transcript, 17 March 2020, page 4, line 10-15.

[23] Exhibit 14.

[24] Exhibit 14 at paragraph 18.

[25] Transcript, 17 March 2020, page 18, line 1-8.

[26] Transcript, 17 March 2020, page 20, line 1-10.

[27] Transcript, 17 March 2020, page 18, line 35-45.

[28] Transcript, 16 March 2020, page 9, line 35-40.

[29] Transcript, 16 March 2020, page 46, line 20-25.

[30] Transcript, 16 March 2020, page 14, line 10-23; page 1-49, line 1-10.

[31] Exhibit 14 at paragraphs 32-35 and Exhibit 16 at paragraph 48.

[32] Contrast this with Melenaite’s singular recollection of the conversation on the telephone.

[33] Transcript, 16 March 2020, page 49, line 15.

[34] Transcript, 16 March 2020, page 1-15, line 1-10; Exhibit 4.

[35] Exhibit 16 at paragraphs 46-47 and Exhibit 14 at paragraph 41.

[36] Anti-Discrimination Act 1991 (Qld) s 10(3).

[37] Ibid s 25(1).

[38] Exhibit 16, Affidavit of Karl Blakeney at paragraph [32].

[39] Exhibit 14, Affidavit of Amanda Russell at paragraph [44].

Close

Editorial Notes

  • Published Case Name:

    Taumoefolau v University of Queensland & Blakeney

  • Shortened Case Name:

    Taumoefolau v University of Queensland

  • MNC:

    [2021] QIRC 80

  • Court:

    QIRC

  • Judge(s):

    Member Dwyer IC

  • Date:

    12 Mar 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 (1983) 60 CLR 336
1 citation
Jump To
Cite 1 - (1983) 60 CLR 336
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
2 citations
Jump To
Cite 1 - [2000] NSWADTAP 5
Cite 2 - [2000] NSWADTAP 5
Gambaro v Workers' Compensation Regulator [2017] ICQ 5
2 citations
Jump To
Cite 1 - [2017] ICQ 5
Cite 2 - [2017] ICQ 5
Martires v Endura Paint Pty Ltd (No.1) [2021] FCA 178
2 citations
Jump To
Cite 1 - [2021] FCA 178
Cite 2 - [2021] FCA 178
Waterhouse v Bell (1991) 25 N.S.W.LR. 99
1 citation
Jump To
Cite 1 - (1991) 25 N.S.W.LR. 99
Whipps v The Battery Store Australia Pty Ltd [2021] QIRC 16
2 citations
Jump To
Cite 1 - [2021] QIRC 16
Cite 2 - [2021] QIRC 16

Cases Citing

Case NameFull CitationFrequency
Albert v Global Healthcare Pty Ltd [2023] QCAT 4281 citation
1

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