Fleming v Reid[2022] QIRC 122

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

Background

1. [1]
   Ms Frances Fleming worked on a full-time basis at Harcourts Hervey Bay, commencing work on 1 February 2016 as an Office/Sales Administrator and subsequently promoted to the role of Office Manager/Administrator.  

2. [2]
   Ms Fleming was employed by the Second Respondent, MZG Investments Pty Ltd.^[1]  The First Respondent, Ms Michele Reid, was the Principal and Director of the Second Respondent.

3. [3]
   As will be set out in detail below, Ms Fleming had cause to take leave from her role twice in 2019.  The first was when her father, who lived in Western Australia, had a stroke.  The second was when she took a period of leave to receive surgery on her hand and to recover from the operation.

4. [4]
   During this period of time, Ms Fleming's employer, Ms Reid, made a series of decisions ultimately culminating in a restructure of staff roles and a proposal to vary Ms Fleming's role by reducing her duties and hours of work.

5. [5]
   Ms Fleming contends that she suffered direct and indirect discrimination on the basis of her attributes of family responsibility and impairment and the related characteristic of requiring time off work at short notice.

6. [6]
   The Respondents say they have not discriminated against Ms Fleming, either directly or indirectly.

7. [7]
   While the evidence before the Commission provided a comprehensive picture of the events that occurred during the relevant period of time.  I have also been assisted by a statement of agreed facts prepared by the parties. 

8. [8]
   I have decided to structure this decision by first addressing the evidence and agreed facts before the Commission. I will then turn to the relevant legislative framework and consider the submissions of the parties, first in relation to indirect discrimination and secondly in relation to direct discrimination.

9. [9]
   For the reasons which follow, I find that Ms Fleming has been unable to establish that she suffered indirect discrimination or direct discrimination.  

Preliminary matters: agreed facts

Restructured Staffing Arrangements

10. [10]
    The parties provide the following agreed facts regarding the restructured staffing arrangements

1. a.
   During the Applicant's absence in June-July 2019 Ms Reid contacted the Applicant regarding work matters that were required to be dealt with during the end of the financial year.

1. b.
   After the Applicant returned from her absence in June and July 2019 Ms Reid spoke to the Applicant about the difficulties the Respondent experienced in the Applicant's absence.

1. c.
   Ms Reid expressed concerns to the Applicant that the Applicant was the only person with knowledge of the financial aspects of the business necessary to complete end of year financial obligations.

1. d.
   In or around late August 2019 the Respondents employed a junior receptionist, Ms Maddison Newman.

1. e.
   In or around early November 2019, the Applicant trained Ms Vanessa Rosario, Receptionist, in the performance of the Applicant's role in advance of the Applicant's absence.

1. f.
   In or around early November 2019, the Respondents engaged Paula Cheeseman as a bookkeeper to assist with financial aspects of the Applicant's role during the Applicant's absence.^[2]

Role Restructure

11. [11]
    The parties provide the following agreed facts regarding the role restructure

1. a.
   On 17 December 2019, the Respondents sent an email to the Applicant in relation to the variation of the Applicant's terms of employment.

1. i.
   The email enclosed a letter dated 16 December 2019 and a letter dated 18 December 2019.

1. b.
   The same documents were subsequently communicated to the Applicant by express post.

1. c.
   The Applicant responded to the letters of 16 and 18 December 2021 via correspondence dated 19 December 2021.

1. d.
   On 20 December 2019, the Respondent sent further correspondence to the Applicant regarding the variation of the Applicant's terms of employment.

The evidence before the Commission

12. [12]
    The Commission heard from the following witnesses:

• Ms Frances Fleming, Complainant;

• Ms Michele Reid, named Respondent, Owner of Second Respondent and Principal of Harcourts Hervey Bay;

• Mr Gregory Prange, previous business partner of Ms Reid, now retired;

• Ms Paula Cheeseman, contract bookkeeper; and

• Dr Ashwani Garg

Ms Fleming's role and duties

13. [13]
    Ms Fleming told the Commission that her role involved 'General administration, accounting, receipting, relief switchboard covering lunchbreak'.^[3]  When asked what her day typically looked like, Ms Fleming said:

So it would consist of the banking receipting in the morning, any sales contracts or anything that needed reviewing, contacting solicitors with regards to sales contracts and conditions that were due, making sure that staff, in general, were okay, anything that was required – any assistance required – short on staff, help with the property management side of it, make sure that the office and everything was well kept and – and looking neat, general office – general office duties.  Wednesday was – was generally a payday, so there was all the MYOB and the payroll to be done.  The accounts were done during the course of the – the day, the week, depending on – on how much was coming in.  Yep.^[4]

14. [14]
    Ms Fleming described her role as 'generalist' rather than 'specialist'.  Ms Fleming said that when she started in the role, she received quite intensive training from Mr Greg Prange.  Ms Fleming said that the training covered the use of the accounting software MYOB to 'do' the accounts, payroll, superannuation, Goods and Services Tax and getting figures and accounts ready to do the Business Activity Statements.   Ms Fleming's evidence was that her job was not 'hugely difficult' and that anybody with 'any previous accounting experience could do it'.^[5]

15. [15]
    Ms Reid described the nature of work Ms Fleming had initially been employed to undertake:

basic admin work, sales contracts and things like that, also to do pays, do our invoicing and things like that. So – but then her role grew in our business. … she was very good at her job.^[6]

16. [16]
    Ms Reid said that when she initially bought the business, she had two partners but that as she bought those partners out, she was very busy doing sales and she needed assistance with administrative tasks:

So I needed somebody that would be my right arm that I could trust to do a lot of the admin roles, office management, while I was out of the office, there was somebody there in charge of the office.^[7]

17. [17]
    Ms Fleming's evidence was that she did not take leave very often and when she did, it was 'A few days. Often just a day. But they were usually a few days, especially if I was going interstate'.^[8]

18. [18]
    In May 2019, Ms Fleming received what was described as a promotion to the position of 'office manager/administrator'.

Events of June and July 2019

19. [19]
    Ms Fleming said that when she received the call telling her that her father had had a stroke, she decided that she had to go to Western Australia.  Ms Fleming said that she knew it was coming up to the end of the financial year but that she chose to go.  Ms Fleming recalled that she spoke with Ms Reid and told her that it was short notice but that she had booked to go to see her father.  Ms Fleming recalled asking Ms Reid if she wanted her to call Mr Prange for coverage however Ms Reid said she would call Mr Prange herself.^[9]

20. [20]
    Ms Fleming said that she presumed that Ms Fleming was going to 'bring in Greg who was, at that time, still a business partner – to – to do what he had always done before I – before he trained me, which was the accounts and – and payroll'.  Ms Fleming said that Mr Prange was in semi-retirement but that at least once a month, he would check over documents and go through the accounts.^[10]

21. [21]
    Ms Fleming said that during the time she was in Western Australia, Ms Reid contacted her by telephone and that the nature of the calls were:

Access to the MYOB system and the performing superannuation bonus – dealings with the superannuation upon payment and that. Michele didn't have access and couldn't – or couldn't remember her login and there was issues with setting in a new payroll system – new payroll reporting system, I believe at the time.

22. [22]
    Under cross-examination, Ms Fleming said that she was not sure but that thought the new payroll system had to be implemented by about the 7th to the 10th of July in the new financial year.

23. [23]
    Ms Reid was asked about her contact with Ms Fleming during the time while she was away:

Yes, we did, because it was at the end of the financial year.  At the time I wasn't really good at administration.  I'll admit to that, and we were doing the end of financial year with trust accounts and things like that.  It was a pretty critical time. I did have – my ex-principal come in to help, but he no longer had a login.  Nobody had logins for MYOB except for Fran, so I had to contact Fran to get the logins to get into MYOB, and then – yeah.^[11]

24. [24]
    Ms Reid said that as the principal licensee, she had responsibility but that she has always had good people around her to prepare end of year financial records. Ms Reid said that if Ms Fleming was not on leave, Ms Fleming would have done the work as she knows how to do it.^[12] When asked to explain what was happening in the office while Ms Fleming was away during that period, Ms Reid said:

End of financial year is a big time in a real estate office.  We've got trust accounts.  We've got to finalise everything and things like that. I didn't know how to do it. I'll admit that, and at the time, Fran was the only one who knew how to do it.  So I did call in my boss. He – between that, and then I had to bring Paula in and then talk to the accountants and everything. So between us all, it was sorted, but it was a very stressful, hectic time. Yes.^[13]

25. [25]
    Ms Cheeseman gave evidence that she had been a bookkeeper for 40 years and had been qualified for 20 years and runs her own business as a contract bookkeeper. Ms Cheeseman said that at the end of the financial year 2018/2019 she 'was called in by a very frantic Michele to come and sort out the end of financial year payroll and set up the Single Touch Payroll (STP). reporting because it hadn't been done'.^[14]  Ms Cheeseman said that STP payroll is the reporting to the Australian Taxation Office which had to be set up and tested before the start of the financial year and that it was important 'because it's law'.^[15]

26. [26]
    Mr Prange was a partner in MZG Investments and he sold his share to Ms Reid in June 2019.  When asked about his experiences during the end of financial year, Mr Prange said:

…Well, I got – that was when the balance of the business was settling so I was on the way out, but Michele asked me to come in and do Fran's job while she was away in Western Australia for a week initially but then it was – it went onto two weeks, and I had to do end of financial year for the sales trust end of financial year for the MYOB which was the book-keeping system, group certificates, reconciliations, lodgements, all that sort of stuff with the Tax Office over that two week period.^[16]

27. [27]
    Mr Prange said that he told Ms Reid that:

…because I was on my way out, and I was more or less a backup, that she would need to get someone – she needs to have someone – always had people in the office that can – two people in the office that can do the one job because it was obvious that she was exposed – she would become exposed when – if Fran's not there.^[17]

28. [28]
    When asked what he meant by 'exposed', Mr Prange explained:

MR PRANGE: …you need – well, trust account – trust account, sales trust has to be done on a regular basis because it's – you can't just leave it for two weeks, and then catch up if someone goes on holidays.

MR LANG:  And what happens if it's not?

MR PRANGE:  Well, the Office of Fair Trading will come in, and smack you.

MR LANG:  Could that have a financial impact?

MR PRANG:  Yes, because they normally fine you as well, and I don't think the clients, or the local solicitors would appreciate you not doing things on time because you do – you do create a liability for yourself if you take more than one day to send a contract out when a contract comes in, and once a receipt is written it's got to be lodged within a couple of days. It's got to be written out straightaway, and entered in the bookwork within a couple of days so it's just – it's ongoing; it's not something that can be left.

29. [29]
    Ms Fleming recalled a conversation with Ms Reid on 10 July 2019 after she returned from leave:

I returned to work on the 10th – the morning of the 10th, and I – I don't remember whether I was at my desk or at Michelle's desk, and she went through and said what a mess everything was; the accounts were a mess.  It was – I'm not sure if it was "a nightmare" or something like that – "it was just an absolute nightmare"; along those lines.  She'd had Greg in, and she'd had somebody else in trying to sort it out, and it was just an absolute shemozzle – a mess. And I think , at – at that time, she said, "That's it, you can't go on holidays. You're not going on holidays again."^[18]

30. [30]
    Ms Reid also recalled that conversation and said 'I let her know how much she was missed, how much mess we were in at the time, that we've got it all sorted out and, you know, just checked in with her and see how she went on her trip and everything was alright'.^[19]

31. [31]
    Ms Fleming said that it only took her a few days to get things back on track when she returned.  She said that the 'mess' Ms Reid referred to would have been the 'actual payroll side of it and not having access to – Michele not having her – her passwords and access to the system. When asked if it was 'just an access issue', Ms Fleming said: 'Partly, yes, and – and the implementation of this new reporting.  I believe it also involved, if I'm correct, an upgrade or an add-on to the payroll system'.^[20]

32. [32]
    Under cross-examination, Ms Fleming agreed that she was the only person in the office, aside from Mr Prange who was retiring, who had knowledge of many procedures from the financial side of the business.^[21] Ms Fleming agreed that Ms Reid was not familiar with the financial procedures and did not have all of the passwords.^[22]

33. [33]
    Under cross-examination, Ms Reid agreed that during that week things were 'a bit chaotic'.  When asked for how long it was like this, Ms Reid said it was very difficult:

It's – we were doing the end of financial year, and the end of month and the end of financial year.  That is not a good time in a real estate business.  It is extremely stressful, and getting everything – we've got to disburse to 400 landlords moneys and things like that. There's a lot that happens at the end of month.^[23]

34. [34]
    While Ms Fleming says that she can't recall such a conversation taking place, Ms Reid recalls the following:

I had a – had a conversation with Fran in regards to that the business isn't in a good position only having one person do that job, so that it wasn't good business to have somebody else that can do that job, because it is such an important job for the business to have two administrators that can swap jobs.  It protects the business so that I wouldn't be in that situation again. And I did have another – I had a receptionist, who was admin anyway, and we discussed about employing a junior to put at reception, bring Vanessa out, and they could job swap so that the business was never in the position again, where anyone had to take emergency leave or holidays or anything, and we couldn't function, because it was not a good time.^[24]

Events post June and July 2019

35. [35]
    Ms Fleming recalled that after her return from Perth, she was told that Ms Reid wanted to employ a junior receptionist and that the receptionist at the time was to move into an administrative role.

36. [36]
    There was further evidence that due to Ms Fleming's hand pain associated with her impairment, some duties such as writing of receipts were undertaken by the receptionist and that the new receptionist commenced duty at the end of August.^[25]

37. [37]
    Ms Reid recalled that she and Ms Fleming went through the process of employing a junior receptionist that Vanessa (receptionist at the time) taught the junior receptionist the role so Vanessa could join the 'admin section of the office'.  Ms Reid said that it 'gave us the opportunity to job share and learn that – Fran's job'.^[26]

38. [38]
    Ms Reid further said:

MS REID:  …Vanessa was to be taught Fran's job, so that if anyone needed holidays or sick leave, or anything like that, that I was never in the position of what I was at the end of the financial year.  And it's not an easy job to learn, so you've got to give it a period of time to learn the role.^[27]

MR VAN OEVEREN:  So when you say to learn that role, are you referring to Ms Fleming's role?

MS REID:  ---Correct. There – to do the – the wages and the BAS and – and the invoicing and end of month, and everything like that, needs to be ---

MR VAN OEVEREN:  so they sound like the – like bookkeeping duties?

MS REID:  Correct.

MR VAN OEVEREN:  Okay?

MS REID: ---It's a bit more than bookkeeping, but yeah. It's got a lot of bookkeeping in it.

MR VAN OEVEREN:  Okay. So the bookkeeping component was critical, and you needed coverage on the bookkeeping? ---

MS REID:  It's a critical part of it.  It's rule by Office of Fair Trading, and audited every – every third, or every, you know – I'm audited, you know. I've got to make sure that that is perfect, otherwise it's huge fines for myself and the office, so it is a critical role. Yes.^[28]

39. [39]
    Ms Reid was asked about why it was that she brought up the idea of a restructure following Ms Fleming's return. Ms Reid said, 'It's not good business to have one person knowing how to close off your business at the end of financial year, or at the end of the month'.^[29]

40. [40]
    Ms Reid's evidence was that she envisaged the job sharing or training of Vanessa by Ms Fleming to commence immediately.^[30]

Events of November and December 2019

41. [41]
    Ms Fleming was asked about events which occurred in the lead up to her surgery.  Ms Fleming said that the surgery was on 18 November 2019 and that she had leave approved by Ms Reid.  Ms Fleming told the Commission that Ms Reid approved her leave but that Ms Fleming did not believe Ms Reid was 'happy with it'.  Ms Fleming recalled Ms Reid making comments about needing Ms Fleming around and asking how she was going to manage without her. Ms Fleming said that she presumed Ms Reid would 'bring Greg in' but that this is not what occurred.^[31]

42. [42]
    Ms Fleming recalled that in early November, Ms Reid made the decision that Ms Fleming's work would be covered in part by the other office administration staff member picking up some of Ms Fleming's sales work and that Ms Reid 'would bring someone in to do the accounts and the wages and the payroll'. Ms Fleming said that she understood that this would be a temporary arrangement and that there had been no conversation with her about her role being changed.^[32]

43. [43]
    Ms Reid's evidence was that she made arrangements within the business to cover Ms Fleming's leave, 'Well, Fran had already started sharing some work with Vanessa, so Vanessa was already getting – doing a fair bit of work. And I then employed a contract bookkeeper to come in and do pays, paying invoices, my bank accounts and things like that'.^[33]

44. [44]
    Ms Reid said that the contract bookkeeper she employed was Ms Cheeseman. Ms Fleming said that she was given two days with  Ms Cheeseman in the lead up to her leave for hand surgery.

45. [45]
    Ms Cheeseman's evidence was that she had told Ms Reid that the debtors and creditors hadn't been set up right and it wasn't being used correctly.  Ms Cheeseman said that Ms Reid asked her to do a 'full audit on it'. Ms Cheeseman said that the result of the audit was 'a lot of work to clean it all up and get it running smoothly'. ^[34]

46. [46]
    Ms Cheeseman was asked about what discussions she had with Ms Reid after the 'audit':

Well, I told her that the operation of the accounts could be streamlined, and we got it, I got it down to 15 to 17 hours a week, and Michele said, "Well, when Fran comes back, you can train her in the new procedures and she can carry on from there."^[35]

47. [47]
    It was put to Ms Cheeseman that what she viewed as efficiencies were her own personal outlook based on her own experiences.  Ms Cheeseman disagreed, 'No. There are certain ways that books need to be kept for records, and legalities.'  It was put to Ms Cheeseman that there was no issue with the books, her reply was, 'No, it wasn't my personal outlook.  Records hadn't been kept properly'.^[36]

48. [48]
    There was some discussion with Ms Cheeseman regarding the issues she had identified with the use of MYOB.  Ms Cheeseman was repeatedly asked about whether there were documents to prove what she was saying and she consistently stated that there were no documents and suggested that she could 'go back and do reports from the previous to when I started – took over from Fran temporarily…'.  She said that the proof that it wasn't set up correctly was that there is no reporting 'of who had been paid what' prior to Ms Cheeseman starting it on the accounting system.^[37]

49. [49]
    Ms Cheeseman was asked about the 'full audit of the system' that she undertook.  She said that she 'went through the system' and 'found out everything that wasn't work – set up correctly' and 'proceeded to fix them'.^[38]  It was put to Ms Cheeseman that Ms Fleming had been using MYOB correctly, but not to Ms Cheeseman's standards or habits.  Ms Cheeseman said, 'No, to the use of MYOB standards'.^[39]

50. [50]
    Ms Cheeseman was asked what she meant when she said the audit was 'not official':

MS CHEESEMAN: It means going through, and seeing what's right and wrong.

MR VAN OEVEREN:  So you just had a quick skim through the system?

MS CHEESEMAN:  Not a quick; I was there for two weeks doing it.

MR VAN OEVEREN:  And so you had a two week read through the system?

MS CHEESEMAN:  Fixing things.

MR VAN OEVEREN:  Fixing things, and yet there's no documents that we've seen where you can identify things that need to be fixed, there's no proof of documents you even have regard to; we don't know what documents were on that system so I – how can you carry out an audit when you've not had regard to documents?

MS CHEESEMAN:  I just did.

MR VAN OEVEREN:  So the audit was just in your mind?

MS CHEESEMAN:  Yes.

MR VAN OEVEREN:  It was just your habits?

MS CHEESEMAN:  Of course it was if that's what you say.

MR VAN OEVEREN:  No, I'm asking you?

MS CHEESEMAN:  No, it wasn’t in my mind.  The system wasn't being used correctly.  According to accountants it needs to be done in a certain manner for record keeping. There was no records prior to me fixing it.^[40]

51. [51]
    Ms Cheeseman said that she knew how long it would take to do the work under the 'streamlined' system because she had to count her hours in order for Ms Reid to pay her.  Ms Cheeseman said that with training in the process, Ms Fleming would also have been able to undertake the role in the same amount of time.

52. [52]
    On being asked why the arrangements had been put in place, Ms Reid said:

Because at the time I was still selling real estate.  I was still heavily real estate. So my time was out of the office a fair bit, and I needed to make sure that the administration side of it run. I have to make sure, I 've got Office of Fair Trading, so it's got to be done properly.^[41]

53. [53]
    With regard to the decision to restructure the role, Ms Reid said that she had changed the role for efficiency and 'and discrepancies'.^[42]  She said that she changed the role for efficiency 'because the job could be done – that particular part of the job could be done in a shorter period of time, and more efficient.'^[43]

54. [54]
    When re-examined, Ms Reid was asked more about the experience with the bookkeeper doing the role that led her to form a thought in her mind about a variation to the role:

When Paula took over the bookkeeping and started working with MYOB and things like that, she said it wasn't efficient in the way it was done.  So I asked her to do a full audit on it, and then she found a lot of efficiencies. She can do all that – that part of the role in a few hours, compared to the amount of time that it was being done. We did sit down and meet about it and discuss it, but I didn't document it. I'm sorry.^[44]  

55. [55]
    It was put to Ms Reid that she restructured the role due to Ms Fleming's absences for the purpose of family responsibilities and impairment:

MR VAN OEVEREN:  Isn't there a link in the evidence you've just given that the applicant was absent for – and was going to be absent because of her family responsibilities and because of the medical condition.  You needed coverage for that absence and so you restructured her role to provide that coverage?

MS REID:  When Fran was absent to go for family reasons to WA, again, to my knowledge, that – the business was in a position where they could no longer have that risk of – of that position not being fulfilled.  So once Fran came back from her holidays, we went – put in place measures to change that.  So obviously, it became my – I – when it wasn't done correctly, it wasn't – Vanessa wasn't trained in that MYOB and things like that, that I was in a position where I would be in the same boat, and yes, I did then bring in a bookkeeper to cover that section of it.  Vanessa was trained on the rest of it.

MR VAN OEVEREN:  So it's correct that you did restructure her role because of her absences?

MS REID:  Yes.^[45]

56. [56]
    It was put to Ms Reid that by reducing Ms Fleming's role and taking duties away from her, she was not creating coverage:

MR VAN OEVEREN:  …Taking away duties, reducing someone's role. That's not adding. That's not building. It's the opposite of that, is it not?

MS FLEMING:  It was determined that it was done more efficiently, yes.

MR VAN OEVEREN:  That's not my question.  My question is reducing someone's role, that does not create coverage, does it? Because you create coverage by growing a role?

MS FLEMING:  Yes, I suppose youse are correct there.

MR VAN OEVEREN:  So if you don't need to take anything away from a role to create coverage and you've been insistent the coverage was your focus, you didn't need to take anything away from Ms Fleming's role to create coverage, did you?

MS FLEMING:  Yes, I did. I needed to take that job and – leave it the way – well, how – what – restructured it.  That part – portion of the job.  It was more efficient to do it through a bookkeeper, than to have it in-house, and it's still – to this day, done by a bookkeeper. The MYOB section of it.^[46]

57. [57]
    Ms Fleming was repeatedly asked if she had documents that demonstrated the efficiency that she said had prompted her decision to restructure the job and she replied that she did not have any such documents.^[47]  A further discussion about the efficiencies ensued:

MR VAN OEVEREN: …The question is what documents exist that you based your decision-making process on. And you've said there were no documents. That's correct?

MS FLEMING:  There's no documents, but the job was substantially made a shorter period of time. And there was no documents to say that. So it's not in my mind I did have a bookkeeper that could do it in four hours instead of four days. So that's not in my mind, but I don't – didn't document it, no.

MR VAN OEVEREN: But if you're saying four hours and four days, where are the documents that support that?

MS FLEMING:  I don't have them.^[48]

58. [58]
    There was evidence that Ms Fleming had continued to work while she was at home following the surgery and that she was advised to stop working from home and accessing the system.^[49]  There was discussion about a text message exchange where Ms Fleming enquired as to whether Ms Reid required the pays to be done by Ms Fleming or if they would be done by Ms Cheeseman and the evidence demonstrates that Ms Fleming was aware that Ms Cheeseman was in the office undertaking duties such as payroll.^[50]

Ms Fleming's capacity to take leave from work

59. [59]
    Ms Fleming's evidence was that she believed that throughout her employment, all of her leave requests were granted by Ms Reid.^[51]

60. [60]
    Ms Reid's evidence was that employees who wanted time off would fill in a form, that the form would be given to Ms Reid to 'check it, sign off it, and then give to administration to put through the system'.^[52]

61. [61]
    Ms Reid's evidence was that if Ms Fleming asked for time off work to seek treatment on her hand, Ms Reid would have approved that, 'I would have given it to her, I always did. I never denied Ms Fleming or any staff member time off'.^[53]

62. [62]
    A bundle of Ms Fleming's approved leave forms was in evidence before the Commission.^[54]

Role restructure and subsequent events

63. [63]
    Ms Fleming said that she did not return to work after the surgery because 'I was dismissed'. When asked why she says she was dismissed, Ms Fleming said, 'because I received a letter to say that I had – my workplace – I had – my job had been restructured'.^[55]

64. [64]
    Ms Fleming's evidence was that she was received an email on 17 December 2019 and that attached to that email were two letters.  One of the letters was dated 16 December and one was dated 18 December 2019.   The letter dated 16 December 2019 was in regard to a variation in terms and conditions of employment changing Ms Fleming's role from full-time to part-time.   The letter dated 18 December 2019 stated that Ms Fleming's terms of engagement will change from full-time to part-time and from office manager to the role of bookkeeper.^[56]

65. [65]
    Ms Fleming says that when she received the documents, she was '…Stunned. Absolutely gobsmacked, stunned.'^[57]

66. [66]
    Ms Fleming said that the changes put forward in the letters were a demotion and that she had believed she was 'you know, an office manager that was helping to run a business, not just a few hours a week looking after her books'.^[58]

67. [67]
    Under cross-examination, Ms Fleming was taken to the final paragraph of the letter dated 18 December which read, 'Should you have any questions relating to this matter, please don't hesitate to contact me.  If you are happy to agree to the change in hours associated with your employment, please sign and acknowledge the section of the letter of variation attached.'  Ms Fleming was asked if this was an invitation to consider and advise whether she agreed or not.  She said that she did not believe that it was.

68. [68]
    Ms Fleming said that she did not try to discuss the documents with Ms Reid.  She said that she contacted 'Fair Work' and was advised that her employment had ceased.   Ms Fleming said that there was never any discussion with her and that she had not agreed on any change.  Ms Fleming said that she did not feel she could change the process or that outcome.^[59]

69. [69]
    Ms Reid was asked about the circumstances of the correspondence that was sent to Ms Fleming on 17 December 2019:

MR LANG:  Can you explain the circumstances of that correspondence?

MS REID:  Yeah. My bookkeeper found a lot of discrepancies in a lot of things to do with the administration. So I want – no, I wanted to talk to Fran about it.  I shouldn't have sent the letter, but anyway I did.  But I needed to talk to her about it because I had made a decision to keep the BAS wages, super and everything outside of the office and have a private contractor do it.

MR LANG:  So what was the intent of those letters?

MS REID:  ---I – I didn't write the letters, but I did sign them.  HR company wrote them. But at the end of the day I signed them, so the buck stops with me.  It was to discuss it. It wasn’t to terminate Fran at all.

MR LANG:  And did you receive a response from Ms Fleming to that letter – those letters?

MS REID:  ---Yeah, it was basically that she'd take – she was speaking to a solicitor.^[60] 

70. [70]
    Under cross-examination, Ms Reid was asked why she changed Ms Fleming's role:

MR VAN OEVEREN:  …why did you change her role?

MS REID:  I found some inefficiencies, so I restructured the role, and it wasn't that I was taking the whole role off her.  It was – I was actually wanting to increase her management role. 

MR VAN OEVEREN:  But you say that you were taking duties away from her?---

MS REID:  I was taking away the PAYG, the MYOB and the accounts payable.^[61]

71. [71]
    When asked about what Ms Fleming may have understood by the communication sent to her by Ms Reid, Ms Reid said that she hadn't thought about that correctly when she sent it and that if she had known what the reaction and the outcome from it would be, she would not have sent it.  Ms Reid that it had been a mistake to send something like that to Ms Fleming while she was on leave.^[62]

72. [72]
    During cross-examination, Ms Fleming was taken to a letter dated 19 December 2019 which she had written to Ms Reid.  That letter says:

Dear Michele  

I refer to your emailed letter of 18th December 2019 and Express Post letter dated 18th December 2019, titled VARIATION TO TERMS AND CONDITIONS OF EMPLOYMENT.

You are aware that at the time of you sending this correspondence I was in Brisbane seeing the specialist for my hand injury, for which I have a medical certificate covering my personal leave until 19th January 2020.

I have sent you a copy of this.

If my personal leave will not cover this entire period, you have my permission to use my annual leave to cover this time.

You are also therefore aware I have not had opportunity to fully realize this matter.

I then wish to advise that I have sought independent legal advice and my solicitor will be in contact with you prior to the cessation of my current medical certificate.

Regards

Frances Fleming^[63]

73. [73]
    Ms Fleming was asked whether the above letter demonstrated that she anticipated returning to work after her leave had ended and Ms Fleming said that she was not anticipating returning to work.

74. [74]
    In re-examination, Ms Fleming was asked about the letter she had written on 19 December 2019.  When asked why she sent the letter, Ms Fleming said: 'To – think to tell Michele that I was not happy.  I was not going to – I was not going to just take this as how you treat people and I wanted to get further advice'.^[64]

75. [75]
    Ms Fleming was then taken to a letter dated 20 December 2019:

Re; Change of hours

Dear Fran,

I hope you are resting and recovering from your hand operation after the setback incurred last week. 

Please disregard the letter dated 18th December 2019 as this was composed for your proposed return to work on the 20th December 2019.

I would like you to rest and recuperate over the coming weeks so you are fully fit to return to work on the 20th January as per your advice to me via text on Tuesday 17th December 2019.  During this time you will remain to be paid at 38 hours per week.  Could you please let me know if you are happy to use your annual leave from 27th December 2019 as your Personal leave entitlements (29.324hrs) will run out the week ending Wednesday 25th December 2019.  You have 190.444hrs accrued annual leave which is available for you to use during this time and of course 3 public holidays over the Christmas, New Year period.

While you are recuperating you are not permitted to keep accessing MYOB and any other work programs including banking, as I want you to fully recover for your return.  Please provide a Certificate of Capacity for your return to work.

There will be a number of restructuring changes through the whole office in the New Year and part of this will involve you being trained in the new streamlined procedures.

As I will be on leave when you return, please feel free to call and discuss any concerns you may have.  I had tried to phone you after missing your call the other day but have not been able to get you due to being extremely busy with sales, management of the office and restructuring.

Kind regards

Michele Reid

Principal

MZG Investments Pty Ltd t/a Harcourts Hervey Bay^[65]

76. [76]
    Ms Fleming agreed that the above letter had asked her to disregard the previous correspondence, grants her leave and envisions her returning to work on 19 January 2020.  Ms Fleming agreed that she never returned to work, did not provide notice because she believed she had been dismissed and her employment ended when she received the letters.^[66] Following this, Ms Fleming filed an application with the Fair Work Commission.

77. [77]
    Ms Reid's evidence was that the letter of 20th December 2019 was a retraction. When asked to explain the circumstances of that letter, Ms Reid said:

Yeah. The other letters, I think, were a bit harsh and probably not what I actually clearly wanted to say.  I wanted to discuss it with Fran, so, yeah, I retracted it. And realistically, I really wanted her to focus on getting better.^[67]

78. [78]
    Ms Fleming's evidence was that she did not seek further advice from Fair Work following receipt of the letter of 20 December 2019 and that she was 'already going with the information that they'd given me'.  Ms Fleming agreed that she could have spoken to Fair Work regarding the further information but that she did not and that she was dealing with her lawyer then.

79. [79]
    When asked why she did not take any further steps to engage with Ms Reid or the organisation, Ms Fleming said that she felt betrayed, upset and hurt. She agreed that she didn't think anything would be achieved if she engaged with the letter (of 20 December 2019) because Ms Reid had made her mind up and already knew what she was doing.^[68]

80. [80]
    Ms Fleming was asked about a WorkCover claim she made in February 2020 and whether she still considered she was employed at that time. Ms Fleming said that she did not consider herself to be employed when the claim was lodged.^[69]

81. [81]
    Ms Fleming was taken to correspondence dated 22 April 2020:

RE: EMPLOYMENT WITH HARCOURTS HERVEY BAY

We refer to the above matter and confirm that we act on behalf of Harcourts Hervey Bay.

We have received notice from Shine Lawyers that they no longer act for you in this matter.

We note that the parties have been unable to reach a resolution of your General Protections Application through conciliation and that your Application has been referred to a Member of the Fair Work Commission for issue of a Certificate in accordance with s368 of the Fair Work Act.

Our client has now also received confirmation of the rejection of your application for workers compensation.

We note that by correspondence of 20 January 2020 you were stood down with pay until 3 February 2020 and that the last work capacity certificate provided by you expired on 30 March 2020.

Our client has made it clear through its Response to your General Protections Application that our client did not consider that your employment had been terminated, however you have taken no steps to return to work or provide a reasonable explanation for your absence. 

In the circumstances, our client considers that you have repudiated your contract of employment and for the avoidance of doubt, our client confirms that your repudiation is accepted and that your contract of employment is at an end.

Our client request that you return the front door key and a back door key to the office and all other property of Harcourts Hervey Bay to our client by 5pm on Friday, 24 April 2020.

Our client will provide you with a Separation Certificate for your records.

Yours faithfully^[70]

82. [82]
    Ms Fleming was asked if this letter had finalised her employment with Harcourts and she responded, 'According to the letter, yes'.^[71]

83. [83]
    At the conclusion of the re-examination, Ms Fleming was asked about the two views she had formed regarding being terminated, but also there being no point in returning to work after receiving the correspondence on 20 December 2019 revoking the role restructure correspondence of 16 December 2019:

MR VAN OEVEREN: So on the 20th, when you've received this letter and you've explained these new thoughts that you've had, can you please help us understand how you held these two views?—

MS FLEMING:  So I received the two letters changing my – my employment.  Having spoken to Fair Work and they said that I had basically been terminated and I had been terminated and then to receive this letter saying that the letters that we sent previously were incorrect and were sent in error, for me to go and engage with Michele and – and follow up and take up the offer here, my thought was, and I go back and what happens? It's saying that I'm part-time and no, you're going to – no, go back to fulltime when you come back, so I'm there for how long before she changes it again and I'm completely out the door? I didn't trust her.

MR VAN OEVEREN: Did you consider that your role, as it was before the 17th, had ended?---

MS FLEMING:  Yes, I did.^[72]

Statutory framework

84. [84]
    The Anti-Discrimination Act 1991 (the AD Act) is intended to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct.^[73]

85. [85]
    Part 2 of Chapter 2 of the AD Act identifies 'Prohibited grounds of discrimination'. Section 7 prohibits discrimination on the basis of various defined 'attributes:

7 Discrimination on the basis of certain attributes prohibited

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

…

8. (h)
   impairment;

…

(o) family responsibilities;

…

86. [86]
    Section 8 relevantly states:

8 Meaning of discrimination on the basis of an attribute

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

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

….

87. [87]
    Part 3 of Chapter 2 of the AD Act identifies 'Prohibited types of discrimination'. Section 9 prohibits 'direct' and 'indirect' discrimination, while ss 10 and 11 define the meaning of direct and indirect discrimination:

10 Meaning of direct discrimination

3. (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.

Example—

R refuses to rent a flat to C because—

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

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

• R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.

3. (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.

Example—

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.

3. (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.

3. (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

3. (1)
   Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—

1. (a)
   with which a person with an attribute does not or is not able to comply; and

2. (b)
   with which a higher proportion of people without the attribute comply or are able to comply; and

3. (c)
   that is not reasonable.

3. (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.

3. (3)
   It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

3. (4)
   In this section—

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

Example 1—

An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2—

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.

88. [88]
    Part 4 of Chapter 2 of the AD Act identifies 'Areas of activity in which discrimination is prohibited'. Division 2 of Part 4 deals with 'Work and work-related areas'. Section 15 deals with discrimination in the work area:

15 Discrimination in the 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

…

6. (f)
   by treating a worker unfavourably in any way in connection with work.

Did the Complainant have attribute/s or a characteristic of an attribute for the purposes of the Act?

Relevant attributes of Ms Fleming – family responsibility and impairment

89. [89]
    By way of the agreed statement of facts,^[74] the parties agree that Ms Fleming had the attributes of family responsibilities within the meaning of s 7(o) of the AD Act and an impairment with the meaning of s 7(h), and Schedule 1, of the AD Act.

90. [90]
    With regard to family responsibilities, the parties agree that:

The Applicant's family responsibilities arose on 26 June 2019 when the Applicant received a call from her sister, Ms Nerida Proctor, and advised her that their father had experienced a stroke and was extremely ill as a result.^[75]

91. [91]
    On 26 June 2019, Ms Fleming requested leave for a period from 27 June 2019 and this was approved by Ms Reid.

92. [92]
    With regard to an impairment within the meaning of s 7(h) and Schedule 1, of the AD Act, the parties agree that

1. a.
   The Applicant suffered from a medical condition that cause malfunction of the Applicant's hands.

1. b.
   The Applicant suffered from a medical condition caused by presence in the body of organisms capable of causing illness or disease, with symptoms consistent with a 'common cold' or similar viral illness.

93. [93]
    Relevant to this matter, from 15 November 2019, Ms Fleming was absent from work due to surgery to treat her hand impairment and post-operative recovery.  Ms Reid approved this absence.

94. [94]
    While the Respondents admit that Ms Fleming has the attribute of impairment, it is denied that Ms Fleming was treated less favourably than another person without the attribute of impairment would have been, in circumstances that are the same or not materially different because the Respondent's did not vary her employment or dismiss her on the basis of her protected attribute.

95. [95]
    The Respondents say that they did not directly or indirectly discriminate against Ms Fleming in contravention of the AD Act.

Did Indirect Discrimination occur?

96. [96]
    In order for Ms Fleming to establish that the Respondents have indirectly discriminated against her, it is necessary for her to demonstrate that a 'term' has been imposed or was planned to be imposed upon her: '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 able to comply'; and is not reasonable.^[76]

97. [97]
    If Ms Fleming is able to establish that such term has been imposed, the burden of proof sits with the Respondent to demonstrate that such a term was reasonable.^[77] 

98. [98]
    The 'term' that Ms Fleming contends was imposed upon her was that:

1. a.
   she not be absent from the workplace on short notice; and/or

1. b.
   to otherwise be reliable.

Ms Fleming's contentions

99. [99]
    Ms Fleming says that the term imposed on her was the requirement that she not be absent from the workplace on short notice and/or otherwise be reliable.   Ms Fleming says that this term was imposed by dismissing her and that she either did not or could not comply with the term on the basis of her attributes because she: had an injury; required medical treatment; and was required to be absent from work and unable to perform her duties.

100. [100]
     Ms Fleming says that a higher proportion of people without her attributes were more readily able to comply with the term because they did not contract an illness that required medical treatment and required them to be absent from work.

101. [101]
     Ms Fleming says that the term was unreasonable because:

1. a.
   The consequences of the Applicant not complying with the Term was that:

1. i.
   the Applicant was dismissed with the meaning of s 15 of the Act.

1. b.
   The Term was an 'all-or-nothing' term that did not contemplate or allow for reasonable adjustments that could be afforded to the Applicant.

1. c.
   The Employer failed to discharge its obligations with respect to determining the inherent requirements and/or genuine occupational requirements of the Applicant's role.

1. d.
   The Employer failed to discharge its obligations with respect to determining what special services or facilities could be provided to the Applicant within the meaning of s 35 of the Act.

1. e.
   The cost of alternative terms was nil or negligible in accommodating the Applicant's attribute.

1. f.
   The financial circumstances of the Employer were not insubstantial.

1. g.
   The Employer failed to engage an appropriate process to determine if hardship that was unjustifiable would be incurred.

1. h.
   The Employer had a discretionary choice between discriminatory and non-discriminatory conduct.

102. [102]
     In support of this contention, Ms Fleming's representative says that 'the evidence adduced at trial clearly demonstrated that the variation to the Applicant's role occurred because of the absences'.^[78] Reference is made to the evidence of Ms Reid where she 'perceived a need to provide coverage to the Applicant's duties brought about by the sudden and impromptu June/July absence of the Applicant when determining to vary the Applicant's role'.^[79]

Respondent's contentions

103. [103]
     Essentially, the Respondents submit that it did not impose a term that Ms Fleming not be absent from the workplace on short notice and/or to otherwise be reliable.  In the event that it is established that such a term was imposed, the Respondents argue that it was reasonable to do so given the surrounding circumstances.

104. [104]
     The Respondents say that Ms Reid was supportive of Ms Fleming's leave and her return to the business after the leave and that the proposal regarding the restructure of Ms Fleming's position was unrelated to Ms Fleming's injury and were proposed because:

1. the Applicant was the only person in the business with knowledge of financial aspects of the business, requiring the Respondents to consider the operational requirements of the business;
2. the Respondents' decision to restructure the staffing of the business was prompted by the Applicant's absence in June and July 2019 for personal and annual leave during which time the Respondent did not sufficient cover for the Applicant;
3. after embarking on the restructure of the business, the Respondent identified efficiencies that could be achieved and proposed variations to the Applicant's employment.

105. [105]
     The Respondents say that they rescinded correspondence sent in error and remained willing to consult with Ms Fleming, but Ms Fleming declined to participate in further discussions with the Respondents regarding the restructure and treated her employment as being at an end.

106. [106]
     The Respondents deny that a term was imposed on Ms Fleming because the Respondents did not dismiss Ms Fleming.

Consideration – there has been no indirect discrimination

107. [107]
     For the reasons which follow, I have found that there has been no indirect discrimination. The evidence does not demonstrate that the First or Second Respondent 'imposed a term with which the person with the attribute/s could not comply'.  The evidence demonstrates that the employer approved Ms Fleming's leave on the two relevant occasions and took steps to ensure that Ms Fleming's duties were undertaken in her absence. 

108. [108]
     I am unable to find that the Respondents imposed a term on Ms Fleming that she either not be absent from the workplace or that she otherwise be reliable.

109. [109]
     The evidence before the Commission indicates that Ms Fleming was granted leave on short notice by the Respondents in June 2019.  Ms Reid acted reasonably in seeking to make alternative arrangements for Ms Fleming's duties to be undertaken in her absence.  Further, I cannot find that the decision following Ms Fleming's leave to ensure that someone else in the workplace (additional to Ms Fleming) receive training caused any detriment to Ms Fleming.

110. [110]
     The evidence also demonstrates that when Ms Fleming applied for leave to undergo surgery in December 2019 that this was also approved. It was entirely reasonable for Ms Reid to make alternative arrangements for Ms Fleming's work to be undertaken during her absence.

111. [111]
     It appears that despite her contention that she had been dismissed, Ms Fleming continued to be paid her sick leave entitlements pending her expected return to work, at which point, according to the correspondence provided to Ms Fleming on 20 December 2019 (though not responded to), a variation to her role would be discussed.

112. [112]
     I note Ms Fleming's submission that the correspondence of 16 December 2019 amounts to a repudiation and that 'where that determination…the horse had already bolted; a discriminatory decision had been made and had been manifested'. 

113. [113]
     Dr Garg's evidence was that Ms Fleming had genuinely believed that she had been dismissed, however I note that Dr Garg examined Ms Fleming on 31 August 2021 some 20 months after the events.  Dr Garg could not recall Ms Fleming speaking to him about the letter she received on 20 December 2019 which included a statement to disregard the correspondence of 17 December 2019. ^[80]   Dr Garg confirmed that for the purposes of his report, 'it is not relevant what the actual situation was. But what is relevant is how she interpreted the situation. And she might have completely misinterpreted the situation.'^[81]  Dr Garg said that 'fact finding is not really important.  So it is really the patient's interpretation – or – person's interpretation of the event'.^[82]

114. [114]
     While a consideration of the impact of the events on Ms Fleming would be relevant in considering any amount of damages to be awarded. In determining whether there was discrimination, I am required to take into account the factual matrix and determine what actions were taken and what occurred.  The evidence demonstrates that Ms Fleming actively chose to ignore that correspondence because of her view that some action regarding her role would eventually happen when she returned to work.  Ms Fleming also gave evidence that she did not seek further advice about what impact the correspondence of 20 December 2019 may have had on her employment situation.

115. [115]
     As discussed above, I find that the office restructure occurred in response to an identified need to ensure that there was more than one person in the small organisation who could undertake the bookkeeping role. It did not represent a term imposed upon Ms Fleming that she not be absent or otherwise be reliable.

116. [116]
     I further find that the quite separate proposal of a variation to Ms Fleming's role in December, a) occurred in response to identified efficiencies in work practices; b) was withdrawn in response to Ms Fleming raising concerns about it and c) was never operationalised.  That being the case, I do not find that the proposed variation represented a term that Ms Fleming not be absent or be otherwise reliable.

117. [117]
     The evidence before me is inconsistent with Ms Fleming's claim that she was dismissed from her role with the Second Respondent.  It is clear that there was a role variation proposed without consultation and that it was presented to Ms Fleming with a request that she acknowledge and accept the change.  However, when Ms Fleming contacted Ms Reid and said that she did not accept the change and was considering her options, Ms Reid retracted the correspondence.  Additionally, the evidence demonstrates that Ms Fleming continued to be paid her leave entitlements for a period of time after she says she was dismissed and while she did not return to work following her paid sick leave, the employment relationship did not end until some months later.

118. [118]
     I am unable to establish on the evidence before me that Ms Fleming was dismissed or that the terms as contended were imposed. I find that there has been no indirect discrimination.

Did Direct Discrimination occur?

119. [119]
     With regard to Ms Fleming's contention that there has been direct discrimination, I find that Ms Fleming's initial absence in June/July uncovered an operational deficiency in the business. The services of Mr Prange and Ms Cheeseman were accessed on a short term basis to address this operational deficiency.  Ms Reid's management decisions regarding how to address that operational deficiency in the business included training of a staff member to undertake the work in the event of future absences.  There was no detriment to Ms Fleming as a result of this decision. The training of the other employee to be able to undertake the bookkeeping work did not occur.  In order to address the operational deficiency during Ms Fleming's leave to undergo hand surgery and associated recovery,  Ms Cheeseman was employed as a contractor in December 2019.  While Ms Cheeseman was undertaking her work, she identified efficiencies regarding the use of MYOB.  Ms Reid asked Ms Cheeseman to work on addressing these efficiencies and following her work on the system, Ms Cheeseman informed Ms Fleming that the bookkeeping could be done in far fewer hours than it had been previously.  On the basis of that information, Ms Reid made the decision to propose a variation to Ms Fleming's role.

120. [120]
     While I note Ms Fleming's argument that but for her absences, the proposed role variation or restructure which caused her detriment would not have occurred, the evidence does not demonstrate that proposed role variation implemented was for the reason of Ms Fleming's absence due to family responsibilities or impairment.

121. [121]
     In the event that I am wrong regarding that finding, I have given consideration to the office restructure and the role variation and considered whether Ms Fleming was treated less favourably than a 'comparator'. This is discussed below.

Ms Fleming's contentions

122. [122]
     Ms Fleming says that the hypothetical comparator is an employee without her attributes/extended characteristics of that attribute in the same or not materially different circumstances.

123. [123]
     Ms Fleming says that the Respondents did not treat and/or would not have treated, the relevant comparator as Ms Fleming was treated by varying her employment conditions to her detriment; and being dismissed within the meaning of s 15 of the AD Act.

124. [124]
     Ms Fleming says that the treatment was less favourable as it caused her economic loss, offence, embarrassment, humiliation, and intimidation.

125. [125]
     The substantial reason for the less favourable treatment was on the basis of Ms Fleming's protected attributes and the conduct was therefore direct discrimination^[83] in the work area.^[84]

Respondent's contentions

126. [126]
     If it is found that the Respondent varied Ms Fleming's employment to her detriment, the Respondent submits that Ms Fleming's attributes were not a/the substantial reason for the actions.

127. [127]
     It is agreed between the parties that the comparator is someone without Ms Fleming's attributes, the Respondent contends that the comparator should be a 'senior employee with critical responsibilities in the business'.

128. [128]
     The Respondent says that the substantial reason for the restructure that resulted in any detriment, was the 'identification of efficiencies through a restructure that was commenced after deficiencies in staff levels to cover critical responsibilities during periods of leave were identified'.^[85]

129. [129]
     The Respondents say they would not have treated a hypothetical comparator in a materially different way, and an employer should be able to make changes in the workplace to ensure they have sufficient coverage for workers who perform critical responsibilities that need to be undertaken whether the worker is present or not.

130. [130]
     If the hypothetical comparator is a person who is the only person in the business able to undertake critical tasks then any business would restructure staffing to ensure there is sufficient capacity to do those tasks and avoid the risk those tasks cannot be done in the employee's absence for any reason.^[86]

131. [131]
     As stated above, the Respondents deny that Ms Fleming was treated less favourably than another person without the attribute of impairment would have been, in circumstances that are the same or not materially different because the Respondents did not vary her employment or dismiss her on the basis of her protected attributes.

Identifying a comparator

132. [132]
     I note Ms Fleming's submission that a determination of the comparator must be in accordance with Purvis v New South Wales (Department of Education and Training) [2003] HCA 62 and the reasons of Woodforth v State of Queensland [2017] QCA 100 where Purvis is distinguished in relation to the application of s 8 of the AD Act.

133. [133]
     In the matter of Curran v yourtown & Anor [2019] QIRC 059, O'Connor VP addressed the task of identifying an appropriate comparator:

[84]In Woodforth v State of Queensland, a comparison was required between the Complainant's treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic.  McMurdo JA wrote:

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

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

The Appeal Tribunal misunderstood the relevance of the reasoning in Purvis and thereby erred in law in identifying the relevant comparator.  The applicant's case required a comparison between her treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic. This error affected the Appeal Tribunal's conclusions on relevant factual issues… (emphasis added, citation omitted)

[85]  In the present case no submissions were made regarding the 'characteristics' of the Complainant's impairment.  Indeed, as noted above the lack of specificity as to the exact nature of the Complainant's impairment makes the determination of an appropriate comparator problematic.

[86]  The Complainant submits that the appropriate comparator, with respect to the events between May and September 2016, is that of an individual who has taken an extended period of personal leave.

[87]  The Respondent submits that the appropriate comparator is a person without mental health issues, having long term, extended and unpredictable absenteeism, having the September 2016 Failed RTW, having no Medical Certification of Fitness for Duty in November 2016, having no Medical Certification of absenteeism, and having no engagement in the 2017 RTW.

[88]  In my view the appropriate comparator is another employer of yourtown, working in the position of a Production Administrator, who does not have anxiety or any characteristics of it.  The circumstances that are "the same or not materially different", are that the person has taken extended periods of personal leave and wishes to return to work.

134. [134]
     In this case, submissions have been made regarding a characteristic associated with Ms Fleming's attributes. In its written closing submissions, Ms Fleming submits that an appropriate comparator is an employee within the workplace who was not absent in circumstances the same as the Ms Fleming, including absences at short notice, for prolonged periods, and during important business periods.

135. [135]
     I accept that 'absences at short notice, for prolonged periods' could reasonably be considered a characteristic (or a characteristic often imputed to) a person with the attributes of family responsibility and impairment. 

136. [136]
     The Respondents argue that Ms Fleming's approach to the suggested comparator is too narrow.  The Respondents submit that the 'circumstances the same or not materially different' need to include the employee working in a 'senior administrative role with essential functions that can be carried out only by that employee' and 'being on leave (for whatever reason) for uncertain duration'.

137. [137]
     During oral closing submissions, Ms Fleming's representative again submitted that the 'correct comparator cannot make mention of absences as a relevant circumstance' and reiterated its submission that the comparator is 'someone who is not absent from the workplace in a manner akin to the applicant here'.^[87] 

138. [138]
     The Respondent points to Marsden v State of Queensland & Ors^[88] where it was held that circumstances that were the same or not materially different involved the comparator being on leave, for whatever reason, of uncertain duration:

[77] Ms Marsden submits that 'the comparator is if [I] was not on leave I would have been given Mrs Albin's Home Economics classes to teach.'

[78] As I have mentioned above, I do not accept that Ms Marsden would have been given those classes had she not been on leave.  Further, I consider that the motivating factor for Ms Soothill's decision, insofar as it rested on Ms Marsden being on leave, was not to the reason for the leave but the fact of the leave including its uncertain duration.  I accept that Ms Soothill prioritised continuity, as far as possible, for the students.  Ms Hartigan submits that there must be a clear causal connection between an impairment and alleged discrimination, and no doubt that is correct.  However, section 10 of the Anti-Discrimination Act requires this to be determined through the particular framework set out in that section rather than on the basis of ordinary logic.  Approaching the matter in the framework of section 10, and treating the fact of Ms Marsden being on leave (because of her impairment of a broken patella) as a substantial reason for Ms Soothill's decision not to consider Ms Marsden for the classes, I would analyse the matter as follows:

1. (a)
   the relevant attribute is Ms Marsden's patella injury;
2. (b)
   the comparator is a teacher without the attribute; and
3. (c)
   the circumstances that are the same or not materially different involve the comparator being on leave (for whatever reason) of uncertain duration.

[79] I am satisfied that the comparator would have been treated in the same was as Ms Marsden was treated: another suitable candidate being available to promptly take over Mrs Albin's classes, that available candidate would have been selected.  Accordingly, I find that the respondents did not engage in direct discrimination in this respect.

139. [139]
     Both parties direct my attention to the matter of Petrak v Griffith University & Ors.^[89]  In that matter, the Tribunal considered that where the task of defining the comparator is difficult, it is helpful to recognise that the comparator is simply a statutory tool enabling the real question, of whether the direct discrimination has occurred, to be answered accurately and objectively.^[90]

140. [140]
     I have trouble with Ms Fleming's argument that the comparator and/or the 'circumstances which are the same or not materially different' cannot involve the comparator's absence from the workplace. Employees have an entitlement to leave.  A person without the attributes of family responsibility and impairment may still apply for and take leave as a part of their working conditions.  It seems to me that it would not be useful to establish a comparator who is never absent from the workplace when such a situation will not occur in a practical situation.

141. [141]
     I find that for the purposes of this matter, the appropriate comparator is a person without the attributes of family responsibility and impairment and the associated characteristic of needing to be absent at short notice, for prolonged periods.

142. [142]
     The 'circumstances that are the same or not materially different' are that the person has   an approved leave application and there is a need for the business to take steps to enable the leave to occur given that the person has particular responsibilities within the small business which are not readily fulfilled by another employee.

Consideration – there has been no direct discrimination

143. [143]
     On any view of the evidence, I cannot conclude that the Respondent treated, or proposed to treat, Ms Fleming less favourably than another person without the attribute in the circumstances I have established at [142] as the same or not materially different.

144. [144]
     I note Ms Fleming's contention that 'all of these matters came into existence subsequent to and because of the applicant's leave' and I further note Ms Reid's evidence about the need for the restructure arising from Ms Fleming's absence. 

145. [145]
     The evidence before the Commission demonstrated that the events of 2019 happened in the context of changes to the business, including Ms Reid taking sole ownership.  The evidence was that Ms Reid does not have a background in the accounting or bookkeeping aspects of the business in the way that the previous owner, Mr Prange did.

146. [146]
     Mr Prange's transition out of the business and into retirement was occurring at around the same time as Ms Fleming needed to take the leave to attend to her family responsibilities.  This faced Ms Reid with the realisation that in the absence of Ms Fleming (or a comparator), she had no one to call upon to undertake these tasks.  On that occasion she was able to recall Mr Prange to work and accessed the services of Ms Cheeseman.

147. [147]
     Following that event, Ms Reid set about restructuring the office staff to ensure that there was an additional member of staff who could undertake some of the financial or bookkeeping roles undertaken by Ms Fleming.  I find that this is a step Ms Reid would have taken with regard to a comparator who did not have the attributes or characteristics of Ms Fleming.

148. [148]
     It is apparent to me that Ms Reid would have identified the 'skill gap' existing in the office following Mr Prange's retirement either when Ms Fleming went on planned leave unrelated to her attributes of family responsibility or impairment or when a comparator took leave that was not at short notice and for an undefined period of time.

149. [149]
     When Ms Fleming needed to take leave again at the end of the year, it seemed that the staff upskilling or retraining Ms Reid had envisaged in restructuring the office staff had not come to fruition.  Ms Reid again called upon Ms Cheeseman to provide bookkeeping services.  Again, I find that this is action Ms Reid would have reasonably taken in response to the planned absence of a comparator with Ms Fleming's responsibilities.

150. [150]
     I understand that Ms Fleming's representative contended that there was no evidence of the 'efficiencies' Ms Cheeseman had identified in the system.  However, I found Ms Cheeseman to be an honest and convincing witness and I accept that someone with many years of experience and a deep knowledge of MYOB would have readily identified inefficiencies in the way the system was set up.  I further accept that having rectified these inefficiencies, Ms Cheeseman would have been able to provide Ms Reid with a realistic prediction of the number of hours it would take someone who had previously been using the system to complete the same type of work.

151. [151]
     I am of the view that Ms Cheeseman would have made similar findings should a comparator have been responsible for undertaking work using the system in the same way and took a period of planned leave.

152. [152]
     I am persuaded that Ms Reid took action in proposing a variation to Ms Fleming's role as a result of the inefficiencies identified by Ms Cheeseman and not because Ms Fleming was absent at short notice absence because of family responsibility and impairment that brought the efficiencies to light. As discussed above, I find that any absence of an employee with responsibility for the financial or bookkeeping aspects of the business would have uncovered the issues discussed above.

Section 10(4) of the AD Act

153. [153]
     In the alternative, if Ms Fleming was treated less favourably than another person without the attribute, I am not persuaded that for the purposes of s 10(4) of the AD Act that the attribute was the substantial reason for the treatment.  I do not find that the proposed variation to the role was for the substantial reason of Ms Fleming's family responsibilities, impairment or absences on short notice.  I find that the proposed variation to the role was for the substantial reason of the operational efficiencies Ms Reid was seeking to achieve.

Conclusion

154. [154]
     Having found that there has been no direct or indirect discrimination, it is not necessary for me to consider the evidence of Dr Garg or Ms Fleming's submissions regarding economic and psychological damage she says she has incurred.

Order

155. [155]
     The complaints are dismissed.