Seen v Rebel Sport Limited[2021] QIRC 86

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

The following reasons are taken from the transcript of the decision delivered ex tempore on 12 March 2021. The reasons have been subjected to minor editing.

Background

1. [1]
   On 26 February 2021, Mr Seen filed a complaint with Queensland Human Rights Commission.  The background contained in the complaint may be summarised as follows:

• Mr Seen is presently employed by Rebel Sport Limited.
• On 2 February 2021, Mr Seen was advised that he would be required to attend a meeting with his employer on 3 February 2021 to discuss an incident that occurred in 2016. At Mr Seen’s request, that meeting was postponed until 4 February 2021, to allow him to have a support person attend with him. 
• Mr Seen attended the interview on 4 February 2021. After hearing the allegations against him, Mr Seen says he could not then respond to the allegations because he was feeling distressed by the line of questions and required more time to gather his thoughts in relation to the allegations.
• Mr Seen requested an extension of time in which he could respond to the allegations.  The parties initially agreed on a deadline of 8 February 2021. 
• Mr Seen subsequently requested a further deadline, due to the age and severity of the allegations. Mr Seen says the Respondent denied this request and says this caused him to develop psychological symptoms. 
• After a series of other exchanges, Mr Seen says that, on 12 February 2021, he was given an undefined extension with the Respondent noting that this extension would only last until they had determined that Mr Seen had been provided with a full opportunity to respond.
• Mr Seen subsequently provided a medical certificate to the effect that he was unfit for work from 20 February 2021 to 20 March 2021.  Mr Seen says the Respondent continued to maintain a deadline of 3 March 2021 (citing Ms Holloway’s email of 24 February 2021).

2. [2]
   The complaint alleges direct and indirect discrimination on the basis of an impairment.

3. [3]
   On 26 February 2021, the Queensland Human Rights Commission wrote to Mr Seen advising him that the complaint had been accepted.  That does not mean that the complaint is substantiated, but rather, that it discloses an issue which the Queensland Human Rights Commission will consider further through conciliation, and the like. 

4. [4]
   On 26 February 2021, Mr Seen filed a Form 84 Application with the Industrial Registry.  He also filed a Form 4 Application in existing proceedings.  Those Applications were accompanied by affidavit from Mr Seen and from Ms Haripersad of Supportah Ops. The parties subsequently filed affidavit material and outlines of argument, and the Applications were heard on 11 March 2021.

5. [5]
   This decision concerns both the Form 84 and the Form 4 Applications. 

Form 4 Application

6. [6]
   It is convenient to deal with the Form 4 Application in existing proceedings first. That Application sought that the matter be dealt with expeditiously and that leave be granted for the parties to be represented. Both those orders are granted.

7. [7]
   The third order sought reads:

An order, pursuant to section 473 of the Industrial Relations Act 2016 (Qld), that the Applicant not be subject to any act that might be prejudicial to their employment with the Respondent including removal from the Applicant’s current role, until such time as the Tribunal has determined the Applicant’s Application, pursuant to the s 144 of the Anti-Discrimination Act 1991 (Qld).

8. [8]
   By way of background, s 473 of the Industrial Relations Act 2016 (Qld) provides that the Commission has a limited injunctive power. The Commission may grant an injunction under that power:

1. (a)
   to compel compliance with an industrial instrument, a permit or this Act; or
2. (b)
   to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.

9. [9]
   I would just draw particular attention to the term ‘this Act’, meaning the Industrial Relations Act 2016 (Qld).  ‘Industrial instrument’ is defined in sch 5 to mean:

1. (a)
   an award; or
2. (b)
   a certified agreement; or
3. (c)
   an arbitration determination; or
4. (d)
   a code of practice under section 389; or
5. (e)
   an order under chapter 2, part 5 or 6.

10. [10]
    The third order initially sought by Mr Seen did not seek that the Respondent comply with the specific industrial instrument. Nor did it seek to restrain a contravention of an industrial instrument, or the Industrial Relations Act 2016 (Qld).  The case for Mr Seen was that a contravention of the Anti-Discrimination Act 1991 (Qld) was to, or had, occurred. 

11. [11]
    In the absence of seeking compliance with the Industrial Relations Act 2016 (Qld), a permit or an industrial instrument, or preventing non-compliance of those, it would not be appropriate to make an order under s 473.  The third order sought by Mr Seen does not fall within the ambit of s 473, and so I would refuse it on that basis.

12. [12]
    However, I have noted that Mr Seen’s position was amended in the outline of argument filed on 8 March 2021, in that an order pursuant to s 473 of the Industrial Relations Act 2016 (Qld) is no longer pressed; in favour of the second Application made pursuant to s 144 of the Anti-Discrimination Act 1991 (Qld).

Form 84 Application

13. [13]
    This decision then turns to the orders sought pursuant to the Form 84 Application that relates to s 144 of the Anti-Discrimination Act 1991 (Qld). That section relevantly provides:

Applications for orders protecting complainant’s interests (before reference to tribunal)

1. (1)
   At any time before a complaint is referred to the tribunal, the complainant or the commissioner may apply, as provided under the relevant tribunal Act, to the tribunal for an order prohibiting a person from doing an act that might prejudice –

1. (a)
   the investigation or conciliation of the complaint; or
2. (b)
   an order that the tribunal might make after a hearing.

14. [14]
    Mr Seen’s Form 84 Application sought:

An order pursuant to s 144 of the Anti-Discrimination Act 1991 (Qld) that the applicant not be subject to any act that might be prejudicial to their employment with the Respondent, including removal from the Applicant’s current role until such time as a Tribunal has determined the substantive matter or by further order of the Commission. 

15. [15]
    Reading that section as a whole, and including the heading, renders it necessary to consider whether the Complainant’s interests might be prejudiced with respect to the investigation or conciliation of the complaint, or an order that the Tribunal might make after a hearing, if he was terminated before the complaint was conciliated, heard and determined. 

16. [16]
    In Beecham Group Ltd v Bristol Laboratories Pty Ltd,^[1] the High Court explained the two-step test for injunctive relief:

The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.^[2]

17. [17]
    The High Court also noted that, with respect to a prima facie case:

How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.^[3]

18. [18]
    That was followed in Australian Broadcasting Corporation v O'Neill.^[4] In this Commission, that was followed in Bond v Multicap Limited^[5] to which Mr Seen’s representative referred to at the hearing of this matter yesterday.

19. [19]
    In Bond v Multicap Limited,^[6] Industrial Commissioner Power summarised at paragraph 36:

The decision in Connor v Evans & Salvation Army determined that it was not necessary for the applicant to establish a prima facie case, however the QIRC must be satisfied of the existence of a serious issue to be tried. In the more recent case of Jones v Queensland Health Justice Wilson outlined the two main enquiries required as per the common law approach:

1. (a)
   Has the applicant made out a prima facie case, in the sense that if the evidence remains as it is, there is a sufficient likelihood of success to justify the preservation of the status quo pending the trial; and
2. (b)
   Whether the inconvenience of injury which the Applicant would be likely to suffer if an injunction is refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction were granted.

20. [20]
    However, that test is to be applied with respect to s 144 of the Anti-Discrimination Act 1991 (Qld).  The section is a limited injunctive power and addresses specific forms of prejudice to the complainant, namely “the investigation or conciliation of the complaint; or an order that the Tribunal might make after a hearing”. 

Prima facie case

21. [21]
    In considering whether a prima face case is made out, I have only considered the limited material before me.  Further, the question is not whether the complaint will be substantiated.  The test is less onerous than that.  That is worth bearing in mind if the complaint progresses further. 

22. [22]
    The complaint regards two forms of discrimination:  direct and indirect.  I will deal with each of those in turn. 

Direct discrimination

23. [23]
    Firstly, to the direct discrimination.  That is defined at s 10 of the Anti-Discrimination Act 1991 (Qld). 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. 

24. [24]
    The relevant attribute is said to be an impairment. So, the comparator would be a person without the same impairment or characteristics of the impairment, though in circumstances that are otherwise the same. 

25. [25]
    As outlined in the complaint, the relevant treatment is said to be:

1. (a)
   denying the Complainant reasonable adjustments; and
2. (b)
   disregarding the Complainant’s medical documentation.

26. [26]
    Here, the treatment complained of stems from the Respondent not allowing Mr Seen a further extension of time to respond to allegations in writing.  Mr Seen’s position is that he has asked for extra time to respond to the allegations against him, which he says he needed because of an alleged impairment, and that has been declined. 

27. [27]
    On the material before the Commission, it appears to me that the comparator would be treated in precisely the same way.  The comparator would not be granted extra time either, and would be required to respond by the same deadline.

28. [28]
    The complaint provides that the direct discrimination stems from not providing reasonable adjustments.  The essence of reasonable adjustments for an impairment is that a person is seeking to be treated differently on the basis of their impairment, and asking that their circumstances be better accommodated.

29. [29]
    As such, a prima face case of direct discrimination is not made out.

 Indirect discrimination

30. [30]
    Indirect discrimination is defined at s 11 of the Anti-Discrimination Act 1991 (Qld). Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term:

• with which a person with an attribute does not or is not able to comply; and
• with which a higher proportion of people without the attribute comply or are able to comply; and
• that is not reasonable.^[7]

31. [31]
    The reasonableness of the term involves considering all of the circumstances of the case, including:

• the consequences of failure to comply with the term;
• the cost of alternative terms; and
• the financial circumstances of the party imposing the term.^[8] 

32. [32]
    ‘Term’ is defined to include a “condition, requirement, or practice…”^[9] 

33. [33]
    Mr Seen has provided medical certificates regarding his unfitness to work.  Schedule 1 of the Anti-Discrimination Act 1991 (Qld) defines impairment to include “a condition that impairs a person’s thought process, emotions or judgment”.  The material before me with respect to that issue is Mr Seen’s affidavit, which deposes to various psychological symptoms, and a medical certificate certifying him unfit for work.  At this stage, on its face, that would constitute an impairment within the broad definition in sch 1. 

34. [34]
    Here, the term is said to be “the requirement for the Complainant to comply with the imposed deadlines in responding to the show cause notice, or otherwise respond to the show-cause notice, within a timeframe preferable to the employer.”

35. [35]
    That is a relevant term, and it was imposed by virtue of the Respondent’s email dated 24 February 2021. 

36. [36]
    A higher proportion of people without the impairment described could comply with that term. 

37. [37]
    What is ‘reasonable’ requires considering all of the relevant circumstances.

38. [38]
    There comes a point where delays render the imposition of such a term to be reasonable.  It is not reasonable to extend the finalisation of the investigation process indefinitely.  However, on the face of it, it would not be reasonable to require Mr Seen to respond when he has a medical certificate to the effect that he is not fit to respond until 20 March 2021.  That is not a significant delay.

39. [39]
    However, it may be open for this Commission to find that, given Mr Seen was capable of instructing an agent to bring these proceedings, he may also have been capable of answering the allegations by 3 March 2021 or shortly thereafter.  A brief extension is one thing, but several longer extensions to reply may render the delay less reasonable, and hence the imposition of the term more reasonable. If that was the Commission’s finding, then the term of requiring a reply by 3 March 2021 would be reasonable and that element of the complaint would fail. 

40. [40]
    The Complainant need only demonstrate a prima facie case at this stage.  What is ‘reasonable’ requires considering all the material circumstances.  On the material before me, I find there is a prima facie case of indirect discrimination.  There is insufficient evidence before the Commission presently that the term was reasonable. 

41. [41]
    Considering I have concluded that Mr Seen has made out a prima facie case with respect to indirect discrimination, I now turn to consider the balance of convenience limb of that test.

Balance of Convenience

42. [42]
    In Banovic v State of Queensland, Department of Education,^[10] Industrial Commissioner Dwyer said, at paragraph 66:

Evaluating where the balance of convenience lies, involves the weighing of competing prejudices to each party in circumstances where the injunction is or is not ordered.  Whether such disadvantages could be overcome with an order for compensation, if the applicant were successful at the final hearing, is a significant factor in the consideration. 

43. [43]
    It is useful to reiterate that, broadly, the orders sought would prevent the Complainant from being “prejudiced in their employment” with the Respondent, until the substantive matter is determined, or by further order of the Commission.  Presumably, that would include termination, demotion, suspension, and the like. 

44. [44]
    Consideration of the balance of convenience under s 144 of the Anti-Discrimination Act 1991 (Qld) is not of unlimited scope.  The prejudice to be suffered is, with respect to the investigation or conciliation of the complaint, or alternatively an order that the Tribunal might make after a hearing. 

Investigation or conciliation of the complaint

45. [45]
    With regard to potential prejudice to the investigation or conciliation of the complaint, Mr van Oeveren (on behalf of Mr Seen) submitted the following:

• If Mr Seen is afforded the opportunity to further engage in the investigation process, through providing a written response to the allegations, the Respondent’s findings with respect to the allegations may differ to the finding it would otherwise come to. 

• Any potential decision of the Respondent to terminate Mr Seen may substantially change the scope of the matter to be presented before the QIRC.  The Respondent’s decision may require additional consideration of further issues which, in turn, may make it more difficult for Mr Seen to run his case. 

• If Mr Seen is not afforded the opportunity to respond to the allegations, the Respondent may make its decision in Mr Seen’s absence, thereby denying him the opportunity to defend himself, and this may result in detriment.

46. [46]
    In response, Ms Willoughby (on behalf of the Respondent) submitted the following:

• The Respondent intends to finalise the investigation process and does not require any further response from Mr Seen.

• In the event the Respondent concludes that the allegations made against Mr Seen were substantiated, then, an entirely separate disciplinary process phase would follow, at which time, Mr Seen would be given further opportunity to respond. 

47. [47]
    In my view, any potential initiation of a disciplinary process (dependant on the eventual outcome of the paused investigation process) and any resultant disciplinary action that may arise (which may include the termination of Mr Seen’s employment, or indeed, the imposition of other disciplinary action) would not prejudice the investigation or conciliation of the complaint.  In such circumstances, Mr Seen could proceed with a complaint in the usual way. He could collect evidence through disclosure orders to support his case, and the like. 

48. [48]
    The written submission was made that Mr Seen would be prejudiced by being terminated, as he would not have an income with which to pursue his complaint.  However, many parties are self-represented in this Commission and before the Queensland Human Rights Commission.  Conciliations, in particular, are less formal and complex than hearings.  There are no filing fees, there are flexible rules of evidence, and if Mr Seen has a legitimate complaint then I have confidence that not being represented would not affect his ability to investigate or conciliate the complaint, or indeed pursue it further to hearing. 

Orders the Commission may make after a hearing

49. [49]
    Turning now to potential prejudice to orders the Commission may make after a hearing.  With reference to the case of Bond v Multicap Limited,^[11] Mr van Oeveren submitted that the psychological impact of termination may prevent Mr Seen from engaging with the workplace, and therefore, may prejudice a potential order for reinstatement.

50. [50]
    In response, Ms Willoughby (on behalf of the Respondent) referred to the case of Coop v State of Queensland^[12] at paragraph 141:

An order under s 144 of the ADA would have to be directed at preventing prejudice to the investigation or conciliation of the complaint, or some order of the Tribunal other than an order in the nature of reinstatement of the tenancy agreement.

51. [51]
    Going on to paragraph 144 of Coop v State of Queensland:^[13]

Section 144 of the ADA does not confer power upon the Tribunal to grant general interlocutory injunctive relief to prevent future contraventions of the ADA. It may be invoked to prevent prejudice to the processes and remedies which might flow from a complaint that discrimination has occurred. It may not be invoked to prevent acts which, if perFormed, may found a complaint of discrimination.

52. [52]
    The Commission is empowered by s 209 of the Anti-Discrimination Act 1991 (Qld) to make a vast array of orders if a complaint is proved. 

53. [53]
    Mr Seen seeks an award of an unspecified amount of damages.  There is no reason why this Commission could not make such an order if Mr Seen were to be terminated or otherwise disciplined.  If it were the case that such disciplinary action increased the award of damages, then so be it.  That circumstance would not stymie this Commission’s power to make such an award. 

54. [54]
    Even if it were the case that Mr Seen sought an order to the effect that he be given a further opportunity to respond to the allegations, that could be facilitated by orders available to this Commission.  The Commission could order that Mr Seen be reinstated, be given a further opportunity to respond, and accompany that with an award of damages, if appropriate. Further still, if the Commission found it was inappropriate to order reinstatement for some reason, I accept that loss could be compensated by damages. 

55. [55]
    There is little or no prejudice to the Commission’s ability to make orders about the complaint after a hearing, if the Respondent terminates or otherwise disciplines Mr Seen. 

56. [56]
    In considering the balance of convenience, it is not lost on me that time for a complaint to be conciliated at the Queensland Human Rights Commission, then be referred to this Commission for conference, then be heard and determined, could be years.  That is relevant to Mr Seen’s prejudice, but also to the Respondent’s prejudice as well.

57. [57]
    While Mr Seen would be disadvantaged, he would be able to seek employment elsewhere.  The Respondent would be required to either convince Mr Seen to resolve the complaint or simply to continue to engage him as an employee.  That would cause enormous complications if Mr Seen’s potential termination were to relate to serious disciplinary actions, because there are ramifications for the Respondent’s workplace health and safety obligations to their staff and to their clients.

Conclusion

58. [58]
    So in conclusion, in weighing the parties’ written submissions and oral submissions, I have determined that the Application ought be dismissed.  The balance of convenience does not favour the making of orders sought.  The prejudice to be suffered to Mr Seen, with respect to the investigation or conciliation of the complaint, or an order that the tribunal might make after a hearing, if he were to be terminated or otherwise disciplined is not sufficient to warrant such a significant order. 

Order

1. That the Form 4 Application is dismissed.
2. That the Form 84 Application is dismissed.
3. That costs are reserved until such time as the complaint is resolved, either by agreement save as to costs, or by decision of this Commission.