Mastrangeli v Girle[2023] QIRC 175

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   Ms Cesira Mastrangeli ('the Complainant') filed a complaint alleging contraventions of the Anti-Discrimination Act 1991 (Qld) ('the AD Act') by Andrew Girle ('the First Respondent') and the State of Queensland (Queensland Police Service) ('the Second Respondent') (together, 'the Respondents').  

2. [2]
   The Complainant claims that she was treated less favourably than a person without her relevant attributes would have been treated in circumstances that are the same or not materially different. The Complainant also claims that a term was imposed with which a person with her attributes was unable to comply.

3. [3]
   The attributes relied upon in the claim are the Complainant's relationship status, her parental status, family responsibilities and her association with persons who have a disability.

4. [4]
   The Complainant filed a complaint in the then Anti-Discrimination Commission of Queensland ('ADCQ') alleging contraventions of the AD Act. Following an unsuccessful conciliation at the ADCQ, the matter was referred to the Queensland Industrial Relations Commission ('the Commission') pursuant to s 166(1)(a) of the AD Act.

5. [5]
   The Complainant filed an Amended Statement of Facts and Contentions on 15 January 2021.

6. [6]
   The burden of proof lies with the Complainant to satisfy the Commission, on the balance of probabilities, that the Respondents directly discriminated against the Complainant in contravention of the AD Act.^[1] The burden of proof lies with the Complainant to satisfy the Commission on the balance or probabilities that the Respondents imposed a term that indirectly discrimination against the Complainant. The onus shifts to the Respondent to establish that such a term was reasonable.^[2]

Agreed facts

7. [7]
   The following facts are not in dispute between the parties:

• At all material times, the Complainant was a single mother of two children, both of whom have disabilities;

• The First Respondent is a sworn police officer who has held the rank of Sergeant in the position of supervisor of the Information Support Team, State Intelligence, Crime and Intelligence Command, Queensland Police Service (QPS) from 20 August 2016.  The First Respondent was the direct supervisor of the Complainant;

• The Complainant commenced employment for the Second Respondent in 2011. The Complainant moved to the position of Intelligence Support Officer (Administration Officer AO2) for the State Intelligence Group, Intelligence Support Team on 15 January 2014;

• Between September 2013 and May 2014, the Complainant was on approved maternity leave. The First Respondent extended the period of maternity leave upon request by the Complainant. Prior to returning to the workplace the Complainant and Second Respondent structured a graduated return to work plan to accommodate the Complainant's family responsibilities;

• From 3 September 2014, by agreement with the Second Respondent, the Complainant worked five days per fortnight due to her parental responsibilities. This agreement was then modified on 27 July 2015, allowing the Complainant to work one day per week to enable the Complainant to care for her two children and attend specialist appointments in relation to her health;^[3]

• The latter arrangement provided that the Complainant worked on Monday of each week, however this was a flexible arrangement whereby the Complainant could and often did seek a change of her roster to allow for attendance at medical appointments or undertake family commitments; and

• This arrangement continued to be approved and extended by the Respondents, with the final flexible working arrangement dated from 11 March 2017 through to 10 March 2018.^[4] The last shift completed by the Complainant was 18 December 2017^[5].

Legal Principles

8. [8]
   There is no dispute that the Complainant was engaged by the Second Respondent in the area of work within the meaning of sections 15(1)(b), 15(1)(d), and/or 15(1)(f) of the AD Act.

9. [9]
   There is also no dispute that the Complainant possessed the following protected attributes named in her complaint:

5. a.
   Being a single mother (sections 7(b), 7(d), and 7(o) of the AD Act); and

5. b.
   Having the care of two children with impairments (sections 7(o) and 7(p) of the AD Act).

10. [10]
    Accordingly, the Complainant had the attributes of:

5. a.
   Relationship status;

5. b.
   Parental status;

5. c.
   Family responsibilities; and

5. d.
   association with, or relation to a person identified on the basis of any of the above attributes.

11. [11]
    The Complainant submits that she is a class of person who has or is imputed to have characteristics associated with the listed attributes which would be:

5. a.
   absences from her rostered workday at various times to provide care for her children; and

5. b.
   able to seek amendments to the rostered working day, at short notice, to attend to commitments concerning the care of her children.

12. [12]
    The Respondents accept that the need to take absences or request shift changes at short notice might reasonably be regarded as a characteristic that is often imputed to a person with the attributes of the Complainant.

Statement of Facts and Contentions and Response

13. [13]
    The Complainant filed an amended statement of facts of contentions which included allegations of both direct and indirect discrimination.

14. [14]
    At the commencement of the hearing the Complainant's Counsel advised that they did not intend to press the allegation of indirect discrimination with respect to the scheduling of team meetings.

15. [15]
    The allegations of direct discrimination relate to two adverse performance meetings and a transfer request. The Complainant claims that there was a negative culture toward people with parental responsibilities as evidenced by a colleague making the comment ''I   don’t know why people have kids if they can’t even fucking afford to have them''.

16. [16]
    In the meeting to discuss the Complainant's complaint about the adverse comment the Complainant's requested a transfer. The Respondents contend that the First Respondent did not have the authority to organise or grant transfer requests.

17. [17]
    The Complainant contends that she was treated less favourably because she was subject to performance management on a basis materially different to other staff and without knowledge of objective performance requirements. The Complainant allege that she was subject to adverse performance meetings in May 2017 and November 2017.

18. [18]
    The Complainant contends that she was subject to clandestine monitoring of her work performance and subject to performance management for being absent from the workplace due to personal/carer's leave. The Complainant also contends that she was subject to pressure or coercion to increase her working hours/days notwithstanding a flexible work agreement.

19. [19]
    The Complainant contends that the Second Respondent is vicariously liable for the contraventions pursuant to s 133(1) of the AD Act.

20. [20]
    The Respondents maintain that the Complainant was never excluded, denied access to any workplace right or treated differently to any other office in the workplace.

21. [21]
    The Respondents contends that no direction was made to the Complainant to attend a performance meeting, however a general performance review occurred on 6 November 2017 with the First Respondent and the team including the Complainant. The Respondents submit that at this meeting the First Respondent:

5. a.
   Discussed the work performance of the Complainant and advised that reports demonstrated that the Complainant was only achieving a quarter of the work that other officers with the same training and skills were undertaking;

5. b.
   Did not mention that the Complainant's absent days were negatively impacting her work performance;

5. c.
   Asked the Complainant whether extending her hours at work would assist financially and give her more time to work with others to hone her skills that the Complainant felt she was not maintaining; and

5. d.
   Did not coerce or direct that the Complainant increase their hours to improve performance or for any other reasons.

22. [22]
    The Complainant alleges that during 2017 and 2018 when the First Respondent was responsible for scheduling training the Complainant was unable to attend any training sessions as they were always planned on a day that she was not working.

Statutory framework

23. [23]
    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—

1. (a)
   sex;
2. (b)
   relationship status;
3. (c)
   pregnancy;
4. (d)
   parental status;
5. (e)
   breastfeeding;
6. (f)
   age;
7. (g)
   race;
8. (h)
   impairment;
9. (i)
   religious belief or religious activity;
10. (j)
    political belief or activity;
11. (k)
    trade union activity;
12. (l)
    lawful sexual activity;
13. (m)
    gender identity;
14. (n)
    sexuality;
15. (o)
    family responsibilities;
16. (p)
    association with, or relation to, a person identified on the basis of any of the above attributes.

24. [24]
    Section 8 of the AD Act provides the following:

Discrimination on the basis of an attribute include 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; or
3. (c)
   an attribute that person is presumed to have, or to have had at any time, by the person discriminating; or
4. (d)
   an attribute that a person had, even if the person did not have it at the time of the discrimination.

25. [25]
    Part 3 of Chapter 2 of the AD Act identifies 'Prohibited types of discrimination'. Section 9 prohibits 'direct' and 'indirect' discrimination, while s 10 defines the meaning of direct discrimination:

10Meaning 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.

26. [26]
    Section 11 of the AD Act provides the following:

Meaning of indirect discrimination

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

1. (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.

2. (2)
   Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—

1. (a)
   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.
4. (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.

27. [27]
    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 identifies types of discrimination in the area of 'work': 

15Discrimination in work area

3. (1)
   A person must not discriminate-

1. (a)
   in any variation of the terms of work; or
2. (b)
   in denying or limiting access to opportunities for promotion, transfer, training or   other benefit to a worker; or
3. (c)
   in dismissing a worker; or
4. (d)
   by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
5. (e)
   in developing the scope or range of such a program; or
6. (f)
   by treating a worker unfavourably in any way in connection with work.

…

The Comparator

28. [28]
    The Complainant submits that in the course of her employment with the Second Respondent she was treated less favourably than a person without her relevant attributes in circumstances that are the same or not materially different.

29. [29]
    An analysis of 'circumstances that are the same or not materially different' involves consideration of a comparison with a person without the particular attributes but otherwise in the same position as the Complainant.^[6]

30. [30]
    The task of identifying an appropriate comparator was considered by O'Connor VP in Curran v yourtown & Anor^[7]:

[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)

…

[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.

31. [31]
    As Commissioner Pidgeon noted in Fleming v Reid & Anor^[8]('Fleming'), absences at short notice for prolonged periods could reasonably be considered a characteristic of (or a characteristic often imputed to) a person with the attributes of family responsibilities.

32. [32]
    In Fleming, Commissioner Pidgeon observed:

[139]Both parties direct my attention to the matter of Petrak v Griffith University & Ors. 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 objectively and accurately.

[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 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.'

33. [33]
    Neither party in this matter contend that an actual comparator may be used and in such circumstances a hypothetical comparator may be considered. In my view the appropriate hypothetical comparator is an employee working one day per week, without the attributes of being a single person with family responsibilities including children with impairments, with the associated characteristic of needing to be absent at short notice. The circumstances that are the same or not materially different are where the comparator had raised concerns about the conduct of another employee, where the comparator had made a request to transfer, and where the Respondents held concerns about the comparator underperforming at work. 

Allegations of less favourable treatment

Concerns raised by the Complainant

34. [34]
    The Complainant gave evidence that in November 2016 she heard her colleague Regan Campbell state ''I don’t know why people have kids if they can’t even fucking afford them''^[9] (the adverse comment'). The Complainant's evidence was that at the time the comment was made, she was on the phone with the Second Respondent's shared services area discussing an overpayment of her maternity leave.^[10] In cross-examination the First Respondent accepted that such a statement would objectively have been highly inappropriate.^[11]

35. [35]
    The Complainant agreed under cross-examination that she was not actually involved in the conversation with Mr Campbell. The Complainant gave evidence that she formed the impression that the comment was directed at her, with Mr Regan sitting quite close to the Complainant.^[12]

36. [36]
    Following the adverse comment, the Complainant sought a meeting with the First Respondent which took place on 28 November 2016. Both the Complainant and the First Respondent separately made a note of the meeting.^[13]

37. [37]
    The Complainant made a note when she got to her home after the meeting with the First Respondent noting, inter alia, the following^[14]:

• I asked him if he could see what was going on here? Because most of the others in the team treat me like I don’t exist like I don’t belong there. He said''Yeah everyone is pissed off because you’re only working one day per week!''

• I then brought up what happened the previous week when I was on the phone with Annette from Payroll and Regan made the comment aloud about ''I don’t know why people have kids if they can’t even fucking afford to have them!'' Andrew’s response was''Oh that’s just a typical twenty one year old comment'' and dismissed it like it wasn't a big deal. I told him that I have a twenty one year old son and he doesn't speak like that! He again just dismissed what I was saying and started to walk out of the door of the conference room. He didn’t say anything about addressing it with Regan which really bothered me I honestly feel like crap and unsupported by my team leader.

38. [38]
    The note further outlined a discussion about training between the parties after the First Respondent asked the Complainant to outline the tasks she knew how to undertake.

39. [39]
    The First Respondent also made a note soon after the meeting with the Complainant on 28 November 2016^[15]. The note stated:

• Meet with Cesira Mastrangeli 07.40. Feels excluded and victimised within team. Part time one day a week due to family circumstances. Advised that issue may stem from the perception that as one day a week she fails to maintain skill levels. Proposed new process to improve her skills.

40. [40]
    The First Respondent informally counselled Mr Campbell as to the nature and professionalism of his interactions with staff of the IST on 29 November 2016.^[16] This interaction was recorded in his diary, however the date was incorrectly noted as 30 November.^[17]

41. [41]
    The First Respondent’s note after the meeting recorded that he proposed a process to improve the Complainant's skills. The Complainant stated under cross examination that it was possible the First Respondent suggested something 'along the lines' that the issue might stem from the perception that at working one day a week she was failing to maintain her skill levels.^[18] The Complainant denied that the First Respondent proposed a period of refresher training to help improve her skills. On the basis that the First Respondent's note was made shortly after the meeting, I accept that he proposed training to improve the Complainant's skills.

42. [42]
    The Complainant submits that although the First Respondent initially accepted the inappropriateness of the adverse comment, he later sought to minimise it by explaining that it was not clear whether Mr Campbell was referring to the Complainant and that if Mr Campbell was going to make offensive statements, he would make them to a person's face rather than behind their back.^[19] The First Respondent gave his opinion to the Complainant that in a busy office with multiple conversations occurring at the same time, it was unlikely that Mr Campbell's comment was specifically referring to the Complainant.^[20] The Complainant submits this defence misses the point that the comment was made in close proximity to where the Complainant was sitting. 

43. [43]
    On the basis that no explanation was provided as to why Mr Campbell did not give evidence, it can be assumed that this evidence would not have assisted the Respondents.^[21] Accordingly I accept that Mr Campbell's comment was made in the terms outlined by the Complainant, and that it was said loudly enough that it would reasonably be expected that the Complainant would hear the comment.

44. [44]
    The Complainant submits that the fact that Mr Campbell felt sufficiently comfortable in his work environment to make the adverse comment is probative of the broader attitude toward family responsibilities that he held and which pervaded the Complainant's work environment. The Complainant contends that the First Respondent's failure to appropriately manage the concern that the Complainant raised in respect of Mr Campbell's comment also reflects this environment.

45. [45]
    The Respondents' submit that the First Respondent counselled Mr Campbell over his comment. The First Respondent gave the following evidence: 

On the basis that Cesira found that comment inappropriate. I told him that he should be very much more careful in what he said and the circumstances in which he said it, to avoid upsetting other members.^[22]

46. [46]
    The First Respondent accepted that in hindsight he should have gone back to the Complainant to explain the steps he had taken following her complaint. When asked why he did not take formal disciplinary action against Mr Campbell, the First Respondent gave the following evidence:

As I said, it was an informal counselling. I'm their team leader. I routinely informally counsel people about comments they make, about their phone manner, about their attitudes going into the office. It’s just part of the day to day parcel of being the team leader.^[23]

47. [47]
    The Complainant submits that if it were not for the characteristic of her attributes, the First Respondent would not have adopted such a 'lacklustre process' in handling the matter. In my view this is entirely speculative and such an inference cannot reasonably be drawn on the evidence. The First Respondent gave evidence that he informally counselled Mr Campbell over the comment and that he routine counselled other staff informally as part of his daily practice. It is not unreasonable for a team leader to firstly address a complaint with an individual employee informally in an attempt to resolve the matter at a local level. In circumstances where the conduct is repeated, a more formal disciplinary process would be expected. There is no evidence that similar conduct was repeated.

48. [48]
    In these circumstances, the First Respondent's actions in addressing the issue with Mr Campbell within one day of the complaint being made was timely and appropriate. Whilst best practice would dictate that the First Respondent's actions be communicated to the Complainant, it was perhaps understandable that this did not occur given the span of time between when the discussion occurred and when the Complainant returned to the office.

49. [49]
    When considering the actions taken by the First Respondent following receipt of the complaint, no inference can reasonably be made that the hypothetical comparator would have been treated differently in the circumstances. The only reference to the Complainant's absences, which are characteristics of her attributes, were with respect to maintaining her skill levels which would have been the same for any employee who may have failed to maintain their skills.

50. [50]
    The evidence indicates that the Complainant made a complaint about Mr Campbell's comment to the First Respondent who then informally counselled Mr Campbell about the conduct. I am not persuaded that any reasonable inference may be drawn that the First Respondent's treatment was less favourable because of the Complainant's attributes or associated characteristics.

The Transfer request

51. [51]
    During the meeting between the Complainant and the First Respondent on 28 November 2016, the Complainant requested a transfer. The Complainant states that this request was rejected out of hand.

52. [52]
    The First Respondent's evidence was as follows:

At the meeting on 28 November 2016 Ms M did request a transfer to another unit. I advised Ms M that the IST is the only unit in State Intelligence that has AO2 level positions and as a consequences there was no other work to which Ms M could be transferred. I advised Ms M that with the additional training being made available and the use of the computer dashboard and WIKI this may assist her however, if she was still desirous of a transfer, expressions of interest come out on the QPS internet and this may be an opportunity for her''.^[24]

53. [53]
    In cross-examination, the First Respondent disagreed that the transfer request was a reasonable one and repeated his position that there was no position to which the Complainant could be transferred.^[25] The Respondent submits that whether or not the Complainant was advised by the First Respondent at the time that there was nowhere to transfer her, that was the true state of affairs. The Respondents also submit that the First Respondent had no authority to grant such a transfer in any event.

54. [54]
    The First Respondent's oral evidence indicated that his concern about the Complainant's performance was also on his mind when the transfer request was made. This is supported by the First Respondent's contemporaneous note of the same meeting in which the transfer request was made where the issue of the Complainant's skill level was raised and a process proposed to improve her skills.^[26]

55. [55]
    Whilst the First Respondent was undoubtedly concerned about the Complainant's performance when the transfer request was made, I accept that the substantial reason that the First Respondent did  not escalate the Complainant's transfer request was because it was due to unavailability of an alternative AO2 position. Regardless of whether the First Respondent provided an adequate explanation at the time, there was simply no position into which the Complainant could be transferred outside of the IST.

56. [56]
    In these circumstances, a hypothetical comparator would also have been denied an opportunity to transfer to an alternative AO2 position on the basis that these positions did not exist outside of IST. Accordingly, the Complainant was not treated less favourably because of her attributes or associated characteristics.

Performance management

57. [57]
    The Complainant agrees that the First Respondent had spoken to her a number of times about her performance and as her supervisor this was not unreasonable.^[27] The Complainant gave evidence that the First Respondent raised concerns that other staff had commented about her work effort and that he held a perception that she was not performing well. The Complainant gave evidence that the First Respondent stated in the meeting that ''everyone is pissed off because you’re only working one day per week'' and that he was himself ''pissed off'' about the Complainant's working patterns.

58. [58]
    The Complainant's evidence was that the First Respondent also stated ''The others in your team don’t think that you’re pulling your weight when you’re at work''.^[28] The First Respondent stated in cross-examination that ''people would notice'' when the Complainant was not at her desk, that ''she was always away have smoke breaks [and] socialising''.^[29]

59. [59]
    The Complainant submits that despite what the First Respondent essentially refers to as significant performance concerns, he then waited another six months to raise 'vague and unparticularised' concerns regarding her performance. The Complainant contends that that the First Respondent's way of dealing with these concerns was to pressure the Complainant to work more days. The Complainant contends that the First Respondent's management of these concerns was infected by his own frustrations in having to deal with the Complainant's absences and the source of her need to take those absences.

60. [60]
    The evidence does not support the Complainant's submission that the performance concerns were a 'recent invention'. The evidence of concerns regarding the Complainant's performance is summarised below -

1. (a)
   Mr Bruce Lockyer (Mr Lockyer) was employed as a full time administration officer (AO2) in the same unit as the Complainant. Mr Lockyer gave evidence that he noticed and heard from other team members after a period of time working in the IST that the Complainant was not completing her allocated workload or doing as much as other members of the IST.^[30]

2. (b)
   Mr Lockyer's evidence was that the Complainant would blame other officers, the computer or phone calls for not completing her allocated tasks. The Complainant would then often pass this work onto other members of the team to complete at the end of her shift. Other officers in the same environment were able to manage their time and prioritise their own work such that they completed significantly more tasks during their day without expecting team members to complete it on their behalf.^[31]

3. (c)
   Mr Lockyer gave evidence that he noticed that the Complainant was regularly absent from her workstation during the days she was at work^[32] and that the Complainant would not come in to work on the rostered Mondays and in some instances would not return to the workplace for up to three or four weeks. This required all the work that the Complainant had not completed to be re-assigned to other members of the team. Quite often when work was re-assigned it was noted that some of the original work actioned by the applicant and processed incorrectly had to be redone.^[33]

4. (d)
   In cross examination Mr Lockyer accepted that the Complainant's absences had an impact on the team, placed a burden on others, and he possibly found it frustrating.^[34]

5. (e)
   Senior Constable Allen Miller was the Acting Supervisor of the Complainant's work unit for a short period. SC Miller's stated that he assigned the Complainant duties that were able to be audited at the end of her shift and that when the Complainant was at work he made sure that no one interrupted her to allow her to undertake her work without distraction. The Complainant's work output was significantly less than other officers in the unit performing the same tasks.^[35]

6. (f)
   SC Miller denied overstating the Complainant's performance issues, giving the following evidence:

…I think that’s pretty clear that there were concerns about the – her work performance so I did an audit of the work performance for the day; I don’t think that’s overstating it.^[36]

61. [61]
    The First Respondent gave evidence that at the meeting on 28 November 2016 he proposed that to improve her skill levels the Complainant undertake a brief period of refresher training with a work colleague. The Complainant did not take up this offer.^[37]

62. [62]
    On 9 May 2017, the First Respondent recorded the following entry in his work diary:

“Issues of Cesira Mastrangeli on Monday requested by Senior Constable Miller to check [indistinct] results and upload – to do [indistinct] results in course of the day at requested at 0800 to finish at 1430. She had done about 38 including another appointment that was 38 results in two hours. Generally 50 to 70 results can be done in a single hour. Senior Sergeant Russell McDonald was advised.”^[38]

63. [63]
    On 09 May 2017 the First Respondent had a performance development and assessment meeting with the Complainant. The First Respondent informally spoke to the Complainant about her work performance and requested that she restrict her absences from her desk, which were significant, and not related to her morning teas and lunch breaks. This was not a punitive or disciplinary meeting and no formal action was taken.^[39]

64. [64]
    The Complainant alleges that the First Respondent directly discriminated against her by treating her less favourably than he would have treated a hypothetical comparator. The evidence supports a conclusion that there were genuine concerns about the Complainant's performance and, in his role as manager, the First Respondent was required to manage this issue.

65. [65]
    The First Respondent conceded that he ought to have properly particularised the performance concerns, stating:

… in the knowledge I have now, I would have moved away from an informal management style, which I adopted at the time, to a formal and rigorous management style, and I would have implemented formal procedures much earlier than I did with Cesira.^[40]

66. [66]
    The First Respondent gave evidence that he was ''trying to manage the situation at the 10 metre level, not by going formal'' and that ''if I went formal with that, she wouldn’t have a job''.^[41] The First Respondent stated that he had difficulty even starting an informal management process, because of the Complainant’s authorised absences, and his own, made it difficult for them to connect.

67. [67]
    It is entirely reasonable for a supervisor to manage performance issues informally at first instance to allow the employee an opportunity to demonstrate improved performance. If this process does not address the performance issues, the supervisor would then escalate to formal process. The fact that the First Respondent attempted to deal with the Complainant’s performance issues informally reflected a genuine attempt to allow the Complainant to address the concerns.

68. [68]
    It is clear that the First Respondent held genuine concerns regarding the Complainant's work performance as evidenced by the First Respondent in the meetings of 28 November 2016, 23 May 2017 and 6 November 2017. The Complainant accepted that the meeting of 23 May 2017 was an 'informal discussion about work performance'^[42], during which the First Respondent requested that unauthorised absences from her desk be restricted. The Complainant agreed that the First Respondent sat opposite her and so could observe whether she was absent from her desk.^[43] The First Respondent also asked the Complainant to consider extending her working hours in order to improve her skills. No pressure was placed upon the Complainant to change her hours. A number of options were discussed however no extension of hours and days was agreed upon.

69. [69]
    The Complainant's evidence was that her regular absences from her desk were due to medical conditions that required her to go to the bathroom and prevented her from remaining seated for long periods of time.^[44] When cross-examined about whether the Complainant had spoken to the First Respondent about those matters, the Complainant gave the following evidence^[45]:

I recall in passing he kept asking me every time I went to the toilet, ''Where have you been?'' I didn’t feel it was appropriate to tell him that I went to the ladies.

70. [70]
    The Complainant stated that her medical conditions were listed on her personnel file and the First Respondent could have accessed that information through that source.

71. [71]
    In circumstances where the First Respondent has informally raised concerns about consistent absences from her desk, it would have been reasonable for the Complainant to alert him to the presence of conditions on her personnel file if she did not want to discuss the specific nature of the conditions.

72. [72]
    The Complainant blamed her work performance issues on other factors such as computer issues and someone tampering with her work drawers such that she would have to spend 15 minutes per shift 'hunting around under the desk' for them.^[46] Whilst there was undoubtedly computer issues on occasions, it is in my view unlikely that these issues and a loss of 15 minutes per shift would have had a material impact on work performance.

73. [73]
    Despite the Complainant's claim that she was not told how her performance was unsatisfactory, it is clear from the evidence that multiple conversation were had in an attempt to improve her performance by upskilling and minimising absences from her desk to allow her more time to complete her tasks.

74. [74]
    As submitted by the Respondent, the First Respondent's responsibility to manage the Complainant's work performance is outlined in section 26(3) of the Public Service Act 2008 (Qld) (s 40(3) of the Public Sector Act 2022 (Qld)) provides:

…A public service manager must –

1. (a)
   pro-actively manage the work performance and personal conduct of public service employees under the manager’s management; and
2. (b)
   If a case of unacceptable work performance or personal conduct arises, take prompt and appropriate action to address the matter.

75. [75]
    I accept that the First Respondent had a responsibility to pro-actively manage the Complainant's work performance and his informal discussions with the Complainant reflected this responsibility.

76. [76]
    The evidence does not support a finding that the substantial reason for the meetings to discuss the Complainant's work performance was the Complainant's attributes or associated characteristics.

77. [77]
    On the balance of probabilities, the evidence does not indicate that the manner in which the First Respondent managed the Complainant's performance was less favourable than that which would have been adopted when compared to the hypothetical comparator.

78. [78]
    In circumstances where the hypothetical comparator demonstrated poor performance, a reasonable inference is that the First Respondent would have engaged in the same or similar conduct to address the performance concerns.

Other issues

Absences

79. [79]
    The Complainant contends that she received less favourable treatment a result of the absences that are a characteristic of her attributes. The Respondents' made the following submissions regarding the Complainant's absences:

• There was evidence before the Commission of the shift rosters for the period August 2016 to December 2017.^[47] during that period, the evidence reflected:

1. a)
   The complainant completed 46 out of a possible 62 rostered shifts.^[48] Three of the 46 shifts were completed in part, and the complainant accessed RL or SL for the remainder of the shift.
2. b)
   There were 6 occasions when the complainant was unable to attend work on a Monday, and she requested her shift be transferred to a different day. These requests were always accommodated by Sergeant Girle.^[49]
3. c)
   There were 13 Occasions where the complainant accessed SL (sick leave) or SRL.
4. d)
   One day was taken as recreation leave; and
5. e)
   Four days were taken as leave without pay.

80. [80]
    The Complainant submits that the 'obvious frustrations' expressed by witnesses in cross-examination regarding the Complainant’s absences infected their dealings with the Complainant  and particularly how the First Respondent dealt with the complaint against Mr Campbell. I accept the Respondent's submission that managers are human beings who are not immune to feeling inconvenienced or frustration by the frequency of absences and the necessity to manage the impact of that upon the team. I consider the concessions made by the Respondent's witnesses of frustrations by the Complainant's colleagues demonstrates the truthfulness of their testimony. Feelings of frustration on occasion does not however equate to less favourable treatment unless there is evidence of differential treatment.

81. [81]
    It seems to me that the First Respondent's reactions to the Complainant's text messages advising of absences or requesting shift changes did not indicate frustration. This lends weight to the conclusion that the First Respondent was frustrated with the Complainant's work performance and skill limitations rather than her absences from work. The First Respondent noted concerns about the Complainant's absences from her desk on the days she attended work, which is not a characteristic associated with the Complainant’s attributes.

82. [82]
    The following evidence was given by Senior Sergeant Lonton in response to a question in cross-examination as to whether the Complainant’s absences for two or three weeks at a time was a burden:^[50]

Well, no more so than anyone else who had to access sick leave or carer's leave, or other special – it's part of the nature of managing people is to try and make sure that the work can be balanced with what their personal needs are in the work environment, the fact that it did impact timeframes for the processing of work if she took on jobs or took on tasks, and then wasn't able to process them. 

83. [83]
    When questioned as to whether she found the Complainant's absences frustrating, Senior Sergeant Lonton replied:^[51]

…

I wouldn't say it was frustrating to me; it was just more a case of what was going to work best for her, with her personal circumstances, and what was going to work best for the unit. 

84. [84]
    Senior Sergeant Lonton's evidence supports a finding that the Complainant's absences were managed in a similar way to other absences in the workplaces.

85. [85]
    I considered Mr Lockyer's concession of frustration to be an honest reflection of the impact the Complainant’s absences had because of the consequences of the workload on the team for work not completed and not simply because of the absences from the workplace. This is not a case where colleagues were resentful of the Complainant’s working arrangement, rather it appears the frustration resulted from the workflow consequences on the team from incomplete work tasks. The existence of frustration is not evidence of less favourable treatment, as the same level of frustration would have been felt as a consequence of a hypothetical colleague without the Complainant’s attributes working one day per week who was not adequately completing their workload. 

86. [86]
    As considered above, it appears that the any frustration felt by the Complainant’s colleagues emanated primarily from the Complainant's work performance whilst at work rather than her absences. To the extent that the First Respondent did feel frustrated by the Complainant's regular absences, this does not amount to direct discrimination as there is insufficient evidence of less favourable treatment. Based on the text messages in evidence, I accept the Respondents' submission that on every occasion that the Complainant was either unable to attend work or needed to change her shift, the First Respondent was responsive, accommodating, and empathetic to her situation.

87. [87]
    Copies of the message exchanged between the Complainant and the First Respondent highlight the accommodating response to the Complainant's requests:

19/12/2016

First Respondent - Hi Cesira. Is everything ok? I see you haven’t called in but you aren’t here yet.

Complainant – Hi Andrew, [redacted]^[52] sick again and I’m getting overwhelmed with things that have been going on. Sorry I did call early but the reception phone rang out and I texted Kim but apparently she’s not in today. Just managed to get through to Heather.

First Respondent – Thanks. H just cane [sic] and it me know. Take care.

…

06/03/2017

Complainant – Hi Andrew, sorry for the late reply, I ran out of credit Unfortunately legal aid are taking their sweet time in assessing my application and the deadline to submit my response for court is this week so I’ve had to do all my legal work, gather evidence and chase up witness affidavits all myself. Not sure if you’ve been advised but I’ve been in contact with Tony Horan and asked if I could swap tomorrows shift for Friday instead and he said that was fine and would let everyone know. Thanks for being understanding.

First Respondent – OK. I’ll make sure the roster is market up and see you on Friday.

…

12/12/2016

First Respondent  – Morning Ceisra. I see on ITAS your son is not well. Is everything ok? Hope you’re ok.

24/4/2017

Complainant – Hi Andrew, it’s Cesira. Just letting you know that I won’t be in today as I’ve had a rough few nights with (…). Since getting out of hospital he’s been in a lot of pain and really restless so I’ve had to get up every few hours to alternate his meds. I have a medical certificate to hand in next time I’m in the office. Thanks.

First Respondent – OK. Take care.

22/05/2017

Complainant – Hi Andrew, it’s Cesira. I’m not sure if you’re on today. I’m feeling unwell today so I won’t be able to come into work. Am I able to make up a day either tomorrow or Wednesday which ever day you think there’d be a desk available please? I did try calling work but no one picked up. Please let me know. Thanks

First Respondent – Tomorrow would be best if you could, as your desk will still be free. Get better and we’ll see you in the morning.

…

12/6/2017

Complainant – Hi Andrew, it’s Cesira. Just letting you know I won’t be able to make in into work tomorrow as I’ve caught gastro. … Please let me know if you want me to makeup the day on Friday if you have a spare desk or completely write off the week and come in next Monday? Thanks for your understanding. 

First Respondent – Friday would be good if you can make it. Plenty of work. Keep me in the loop!

…

15/6/2017

Complainant – Hi Andrew, sorry for messaging so late. Just letting you know I won’t be in tomorrow as my GP has advised me not to come in as I’m still symptomatic …

First Respondent – Is OK I’ve marked you down as crook. Get better!

…

3/7/2017

Complainant – Hi Andrew, it’s Cesira. I won’t be in today as (…)'s sick and I’ve been up all night with him so we haven’t had much sleep. Could I come in tomorrow please to make up for not being able to make it in today? Thanks

First Respondent – Yes, for sure that would be good if you can.

6/8/2017

Complainant – Hi Andew, sorry for the late text. Just letting you know that I won’t be able to make it in tomorrow as my son is unwell. Unfortunately I won’t be able to make up my time on Tuesday as I have to prepare for my court hearing on Wednesday, but I can make up my time either Thursday or Friday if you have a spare desk? Otherwise I can use my Rec leave. Please let me know. Thanks Cesira.

First Respondent – OK I’ll get back to you in the morning.

…

11/12/2017

First Respondent – Good morning Cesira. Kim just let me know you aren’t feeling well. Take care of yourself.

Complainant – Morning Andrew, thanks, will do.

…

15/1/2018

Complainant – Hi Andrew, just letting you know I won’t be in today as I’m unwell. Thanks Cesira.

First Respondent – OK Cesira. I’ll mark up ITAS. Take care of yourself.

88. [88]
    At the hearing of this matter the Complainant did not accept the proposition that there was no pushback from the First Respondent when she wanted to change her shift or was unavailable to attend work.^[53] There was no evidence of any pushback and as outlined above at [87], the evidence indicated complete support for the Complainant's requests. I found the Complainant’s response to be curious in that it appears to lack any insight into the continuous adjustments made to accommodate the Complainant’s requests in the workplace.

89. [89]
    The Complainant claims that on the 4 December 2017 she received a reprimand from the First Respondent after he found that she was absent from her desk. The First Respondent’s evidence was that he had allocated one person at any time to perform IPND duty in two-hour blocks. The First Respondent stated that the roster would require one person to give their full attention for two hours per day and during that time they were not to answer phones or schedule their break. Breaks were to be arranged around the rostered duty.

90. [90]
    The Complainant confirmed in cross-examination that she had seen the email to the team from the First Respondent dated 21 July 2017 which stated:^[54]

Don’t go wandering off to socialise, have a smoke break, grab a coffee or whatever. We’re drowning in this stuff, I need you all to focus closely, please.

91. [91]
    The First Respondent states that on 4 December 2017 the Complainant was rostered to perform IPND duty from 9.00-11.00am. The First Respondent’s evidence was^[55]:

I noticed when returning from a meeting at 9.20am that Ms Mastrangeli was absent and when I asked around was told that she had gone out at 9.00am. I amended the roster by swapping her roster duties with another member so that continuity was maintained. …

When Ms Mastrangeli returned at 9.30am I informed her of this swap, and that she would now be performing duty from 11.00am to 1.00pm. Ms Mastrangeli asked when she could take her lunch and I advised that she was to take her lunch break either before 11.00am or after 1.00pm but that she was now covering the roster period from 11.00am to 1.00pm.

At approximately 11.10 I saw that Ms Mastrangeli was again not present and asked others in the team where she was. I was advised that Ms Mastrangeli left at 11.00am. On Ms Mastrangeli’s return at 11.30 I asked where she had been and she replied that she had taken her lunch. I specifically asked her why she had left the roster arrangement as I had made it clear to her what those arrangements were. Ms Mastrangeli claimed she was entitled to a lunch break to which I responded that she was however as she was rostered on to the 11.00am to 1.00pm shift and the lunch period was as I had already directed and that was before 11.00am or after 1.00pm.

92. [92]
    The Complainant states that when the First Respondent asked why she was not at her desk at 9.15am she told the First Respondent  that her computer had been dismantled and she was waiting for IT to fix it. The First Respondent replied that another officer was rostered to take over her time slot to process IPNDs and the Complainant was then rostered to do the IPNDs between 11.00am and 1.00pm.

93. [93]
    The Complainant's evidence continued:^[56]

I said that I was rostered to have lunch at 11.30am and finish work at 2.00pm, to which Sergeant Girle said, “that’s another issue. You have to manage your time and work to the set roster” and walked off.

I felt faint from hunger at around 11.00am. [The First Respondent] wasn’t at his desk so I messaged Kim O'Brien, the administrative officer in charge of rosters, to say I would do the IPNDEs from when I got back from lunch until the end of my shift.

I then took lunch at around 11.00am and returned at 11.30am, upon my return, Sergeant Girle again approached and scolded me loudly in front of my co-workers and other staff members in the floor asking where I had been and why I was not at my desk.

94. [94]
    It does not appear that any further action was taken by the First Respondent regarding this matter and as such there was no formal 'reprimand' given to the Complainant. The evidence of the First Responded was that he 'responded' to the Complainant whilst the Complainant's evidence was that he 'scolded' her. There is insufficient evidence to conclude that the First Respondent scolded the Complainant, however I accept that it was more likely than not that the First Respondent tone was strained in circumstances where he had given a clear direction that the Complainant perform a certain task between set hours and this direction was not followed.

95. [95]
    If the same or similar circumstances were to have occurred with a hypothetical comparator, it is more likely than not that the First Respondent would have responded in the same way. The First Respondent's response was because of the Complainant's failure to follow a direction to not leave her desk and was not because of her attributes of characteristics of her attributes. The Complainant did not receive less favourable treatment in these circumstances.

Training

96. [96]
    The Complainant claims that the First Respondent scheduled training on days that she was not at work. The Complainant contends that in doing so the First Respondent indirectly discriminated against the Complainant by imposing a term which required employees to be present in the workplace on a day other than their ordinary working day to receive any training or professional development courses.

97. [97]
    The only evidence of training scheduled when the Complainant was not at work was a reference to training in relation to the 'Telecommunication Interception Act' on an unknown date.^[57] The Complainant gave evidence of speaking to a trainer in 2017 named 'Sophie’ about scheduling a training session for her to attend. The Complainant stated that Sophie told her she would raise it with the First Respondent however she did not hear back from this inquiry.

98. [98]
    In circumstances where the evidence was that training generally occurred online through the use of Dashboard or Wiki, there is no evidence that the type of training referred to by the Complainant was a regular occurrence in that workplace. The evidence of Senior Sergeant Lonton was that because of the repetitive nature of tasks within the IST, training consisted of accessing a central point for retrieving forms and information relating to the processing of IST tasks.^[58] Training consisted of understanding the process to complete the forms with these instructions available via the Dashboard.  Snr Sgt Lonton's evidence was that members within IST regularly provided advice and support to each other in relation to the completion of tasks and provided an additional level of training as required. In addition, a series of guides were developed to assist with training as new processes were implemented.^[59]

99. [99]
    The Complainant was cross-examined about an email sent by the First Respondent on 14 February 2017 outlining the process by which information on contacts and procedures was being migrated from the Dashboard to a Wiki page, including links to the Wiki and links to instructions on how to use the Wiki. The email contained the following text:

…

By now you have likely seen the Dashboard, which contains a fair amount of information as to contacts and procedures.

Back in mid-January, I commenced a process of moving the contacts and procedures across to a Wiki (like Wikipedia, but specific to our requirements). Click HERE to have a look (you all have access).

There is also a blog, and the last entry (here) has instructions on how to use the Wiki.

There are a few major advantages to the Wiki over the dashboard:

• Anyone in the team can update it, including creating new pages
• If someone has a special moment and over-writes information, either myself, SSGT Fagg, or Roy Sibthorpe, can roll the changes back – you have not destroyed the information
• Because procedures change so frequently, it is important that they are kept live; the Wiki allows this.

…

100. [100]
     The Complainant's oral evidence reflected a distinct lack of curiosity or interest in the online training that was available.^[60] With regard to the rolling out of the Wiki page, the following evidence was given:

Counsel - Okay. Once it was rolled out you were told about it, weren't you?

Complainant – I may have seen an email here and there.

101. [101]
     The Complainant gave the following evidence:^[61]

Counsel – Okay. Sergeant went on to explain the advantages of using the wiki over the dashboard?

Complainant – Yes

Counsel – So at the time the wiki was introduced there it was replacing, in effect, the IT dashboard?

Complainant – Okay

Counsel - Well, do you agree or disagree?

Complainant – I wasn’t involved in that process so it could be a possibility.

Counsel – Okay. And so up to the point where wiki was introduced you, like all the other officers in ST, had access to the IT dashboard?

Complainant – For myself I’ve never used the dashboard. I just used my own notes and whatever manual I had previously when I started.

Counsel – Okay. Were you aware that the IT dashboard existed?

Complainant – I’m not sure. I didn’t really hear about it.

Counsel – So you’re not sure if it existed or not?

Complainant – No, I – I don’t know when it came about, how long before this wiki rolled out. Yes, it existed at some point but I don’t know when.

Counsel – So you say you never accessed it?

Complainant- No.

Did you ever ask anyone how to access the online resources?

Complainant – No.

102. [102]
     The Complainant's evidence demonstrates a perplexing lack of interest in accessing information about procedures necessary to perform her job or to keep abreast of changes to procedures.

103. [103]
     SC Miller's evidence regarding training was as follows:^[62]

The information as to how to fill out documents for the work undertaken by Ms Mastrangeli was all on the server and readily accessible by Ms Mastrangeli. If needed, Ms Mastrangeli was advised that if she had any issues there were at least three other officers who could show her and who were willing to show her anything she was unsure of.

104. [104]
     The Complainant's response to SC Miller's statement was as follows:^[63]

It was not practicable for me to access these documents as I only worked one day per week, I felt, and understood, based on my discussion with Sergeant Girle, that several other people were watching me and I was already concerned that they were trying to pin under-performance on me.

105. [105]
     The Complainant accepted in cross examination that she had not identified any occasions where people were watching her and commenting whilst she accessed online documents to assist her with doing her job.^[64]

106. [106]
     There is insufficient evidence to conclude that training sessions were scheduled on any particular day of the week. The onus is on the Complainant to demonstrate that a term was imposed that she could not meet because of her attributes. In the absence of any cogent evidence as to the dates that these training sessions were held and the corresponding roster for the Complainant, it is not possible to conclude that any such term was imposed.

Isolation generally

107. [107]
     The Complainant claims that the Intelligence Support Team Officers would go for a coffee run and consistently ask her co-workers but not her if they wanted anything.^[65] No further information was given about the context of this claim, including the nature of the relationship between the Complainant and these Officers. In circumstances where it is unclear to me if the First Respondent was involved or whether this issue was raised by the Complainant, I cannot determine that this was less favourable treatment by the Respondents based on the Complainant's attributes.

108. [108]
     The Complainant claims that on or around 14 August 2017 she attended work to find that her drawers had been moved, a rotten strawberry had been placed on her document holder and notes were missing from her files. The Complainant contends that she was subject to discriminatory conduct through the movement of her drawers in her absence including an incident on 4 January 2018 involving the use of a paper clip to open her drawers.

109. [109]
     SC Miller's evidence was that when he arrived at work on 4 January 2018, he realised that he did not have his keys or his token to complete the IPND checks on the computer system as his token was in his set of drawers. SC Miller had been relieving at a PCYC for a period and when he was away his set of drawers had been moved. SC Miller's evidence was that he found two sets of drawers under one of the desks.

110. [110]
     SC Miller gave the following evidence^[66] :

Not having my keys to open the drawer I used a paper clip to open it. Once I realized that it was not my drawer and immediately shut the drawer and endeavoured to lock it with the paper clip. Unfortunately when trying to lock the drawer the paper clip got stuck.

I used another paper clip to open the other set of drawers and this was my set of drawer and I retrieved the token to answer the IPNDe.

…

On returning to work on the Wednesday Andrew Girle the Sergeant in Charge and Supervisor and I had a meeting to bring me up to date with what had been occurring in IST while I was away. Andrew told of the paper clip incident and I immediately advised him of what had occurred.

Andrew advised that I should advise Inspector Mulo who was undertaking an enquiry into the incident. I sent an email to Inspector Mulo and one to Andrew Girle reiterating what I had told him at the earlier meeting.

111. [111]
     In circumstances where the Complainant attends work for one day a week in an open plan arrangement it would reasonably be expected that there may be changes to the workplace furniture during that time. These changes, including the incident involving Sgt Miller and the paper clip, may often have an innocent explanation. The Complainant indicated that she sat at a colleague's desk at one point when her computer was not working and it appears that the workstation arrangement is quite fluid. This would not be unusual in a work unit that operates over seven days with both full time and part time employees. Without more cogent evidence, it is not reasonable to conclude that someone was intentionally moving the Complainant’s drawers to 'confuse or annoy' her as alleged. There is no evidence that the First Respondent left a strawberry or removed notes from the Complainant's desk.

112. [112]
     The Complainant claims that new staff members would be nice to her but would become less warm towards her as time went on, that she was ignored by most of the other staff members during the day, and that when she would try to join in a conversation others would make it obvious that she was not welcomed and would disperse. These claims were vague and unparticularised and were not put to the First Respondent at the hearing. There is insufficient evidence to support this allegation.

113. [113]
     There is insufficient evidence of the Complainant receiving differential treatment. On the evidence before me, no reasonable inference can be drawn that the Complainant was treated less favourable than the hypothetical comparator in the same or similar circumstances.

Consideration

114. [114]
     The Complainant bears the onus of establishing on the balance of probabilities that the Respondents engaged in direct discrimination in contravention of the AD Act.

115. [115]
     The Complainant's allegations of discrimination evolved somewhat over the course of filing the Complainant's documents, the hearing, and closing submissions. The allegations of direct discrimination that were pressed can be summarised as follows:

• the First Respondent's management of a complaint made by the Complainant against a co-worker ('the Complaint')
• The First Respondent’s response to a transfer request made by the Complainant ('the transfer request')
• The First Respondent’s management of the Complainant’s performance at work ('work performance issue’).

116. [116]
     There is no dispute that the Complainant possessed the protected attributes of being a single mother and having the care of children with impairments. These attributes are protected pursuant to s 7 of the Act, being those of relationships status, parental status, family responsibilities and association with or relation to a person identified on the basis of any of the above attributes.

117. [117]
     As noted above at [33], the appropriate hypothetical comparator is a person without the Complainant's attributes or associated characteristics employed in the same position as the Complainant at the 0.2 full time rate who accessed leave within their entitlements. The circumstances that are the same or not materially different are where the person makes a complaint about the conduct of another employee, makes a request to transfer and has been subject to performance concerns in their role at work. 

118. [118]
     With respect to the evidence given by the Complainant and the First Respondent, I have accepted that both witnesses gave honest and straightforward evidence. I have some difficulty relying on the Complainant's evidence where it is not otherwise supported by documentary evidence where it conflicts with the First Respondent on the basis that I consider her recollection to be less reliable. I base this assessment on the Complainant signing an affidavit confirming that she was pressured to increase her hours at a meeting with the First Respondent to discuss her complaint about Mr Campbell.^[67] It appears from the file note taken by the Complainant of the meeting that this issue had not in fact been discussed at that meeting. At the commencement of her evidence the Complainant confirmed that the First Respondent had not raised the issue at the meeting but at a later date. It appears that the Complainant's recollections were not consistent with the file note and hence the inaccuracy of the affidavit. Whilst there is no suggestion that this inconsistency was a result of any impropriety on behalf of the Complainant, it reflects adversely on the reliability of the Complainant's evidence.

119. [119]
     The Complainant contends that the First Respondent was frustrated with her as a result of her absences which are a characteristic of her attributes and this frustration resulted in discriminatory conduct. As noted in the extract of messages at [86], the First Respondent displayed no frustrations at the Complainant's regular request to change shifts or advise that she was unavailable. On the evidence before me, it seems more plausible that the source of the First Respondent's frustrations were the Complainant's regular absences from her desk outside of lunch and morning tea and limited work performance rather than absences from the workplace.

120. [120]
     After considering the evidence, the Complainant has not demonstrated that she was treated less favourably because of her attributes or characteristics of those attributes. Whilst the absences and shift changes occurred quite often, it seems to me it was the inability to maintain her work performance rather than the absence from the workplace that caused any frustration in the workplace. The Complainant's frequent absences from her desk during the day when she was at work reasonably gave rise to frustrations given that work not completed by the Complainant was given to other colleagues for completion. There was insufficient evidence that any frustration felt by the Respondents resulted in less favourable treatment.

121. [121]
     The First Respondent managed these performance concerns through an informal process that was not unreasonable. His suggestion that the Complainant consider possible increases or changes to her hours to improve her skills were not directions or attempts at coercion. It is clear that the Complainant rejected the Respondent's suggestions immediately as she was entitled to do.

122. [122]
     I also do not consider the manner in which the complaint against Mr Campbell was handled or the denial of the transfer request to be unfavourable treatment.

123. [123]
     The Complainant's contention that Mr Campbell's comment was somehow reflective of the broader attitude toward family responsibilities cannot reasonably be accepted on the evidence. The Complainant agreed that the First Respondent was not present when Mr Campbell made the comment.^[68] A single colleague's inappropriate comment cannot be accepted as reflective of the attitude of the entire workplace without cogent evidence to support such a claim.

124. [124]
     The decision to not grant the Complainant's request for transfer was due to the operational structure which did not allow for a transfer at the Complainant's level. Whilst I accept that the First Respondent also had misgivings about transferring the Complainant given his performance concerns, I do not consider that this was the substantial reason.

125. [125]
     Issues raised by the Complainant regarding the scheduling of team meetings were not pressed at hearing, however the Complainant maintained that the scheduling of training was indirect indiscrimination on the basis that the Respondents had imposed a term which required employees to be present in the workplace on a day other than their ordinary working day to receive any training or professional development course.^[69]

126. [126]
     The imposition of such a term can not reasonably be inferred from the evidence before the Commission. There was evidence that the Complainant could access training via the Dashboard and Wiki on an ongoing basis at any time she was at work. The Complainant gave an unparticularised reference to a scheduled training session but no further details were given as to the date this training was provided. There is no evidence that the Complainant was required to attend the workplace on a day other than her ordinary working day to receive training or attend a professional development course. There is insufficient evidence that any such term was imposed on the Complainant.

127. [127]
     The Complainant submits that the Commission should accept that the conduct alleged amounted to discrimination pursuant to s 10 of the AD Act. In considering the inferences that must be drawn in order to reach such a conclusion, I note the decision of VP O'Connor in Toodayan and Toodayan v Metro South Hosptial and Health Service & Others^[70] in which the matter of Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd^[71] was considered:

The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawing favour of the party which bears the burden of proof in the case, the conclusion must be ‘the more probably inference’ from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference...

In its recent decision in Marriner & Ors v Australian Super Developments Pty Ltd, this Court summarised the relevant principles as follows:

''A party seeking to establish than an inference ought to be drawn must demonstrate that that inference is the more probable one which arises from the established facts. The inference must be based on evidence rather than speculation …" (citations omitted)

128. [128]
     It appears to me that the Complainant's case was one based on speculation. The evidence did not establish that the Complainant's attributes and associated characteristics were the substantial reason for the actions taken by the Respondents. The meetings on 28 November 2016, 23 May 2017 and 6 November 2017 all involved reasonable discussions by the First Respondent about the performance issues he was attempting to manage. I cannot reasonably draw an inference on the evidence before me that the Complainant was treated less favourably because she was subjected to performance management on a basis materially different to a hypothetical comparator. The Complainant was not subject to performance management, rather she was requested to limit her absences from her desk and to consider methods to improve her skills. In circumstances where concerns were held about the work performance of a hypothetical comparator, one would expect  a similar process involving informal discussions would be had to address performance concerns. The Complainant's reference to 'clandestine monitoring' of her work is overstated, with reports from colleagues about continued absences from her desk and an assessment conducted by a supervisor of the Complainant's work performance entirely reasonable conduct in the circumstances.

129. [129]
     The Complainant has not demonstrated that she was subject to performance management for being absent from the workplace due to personal/carer's leave as alleged, nor that she was subject to pressure or coercion to increase her working hours or days notwithstanding a flexible work agreement. A suggestion from the First Respondent to consider increasing her hours to maintain her skills can not reasonably be considered pressure or coercion.

130. [130]
     The Complainant has not demonstrated that she was treated less favourably in the circumstances. Even if informal discussions about performance issues could be considered unfavourable treatment, I am satisfied that it was on the basis of genuine concerns regarding her work performance and not because of her relevant attributes or associated characteristics.

Conclusion

131. [131]
     The Complainant has not discharged her onus to establish on the balance of probabilities that she was subject to direct discrimination or that a term was imposed that indirectly discriminated against her in the workplace. 

Order

132. [132]
     I make the following order:

The complaint is dismissed.