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  4. Robertson v McDonald's Australia Limited (No. 8) - [2023] QIRC 192

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Robertson v McDonald's Australia Limited (No. 8)[2023] QIRC 192

Robertson v McDonald's Australia Limited (No. 8)[2023] QIRC 192

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Robertson v McDonald's Australia Limited (No. 8) [2023] QIRC 192

PARTIES:

Robertson, B

(Complainant)

v

McDonald's Australia Limited

(Respondent)

CASE NOS.:

AD/2021/7 and B/2023/27

PROCEEDING:

Applications in existing proceedings and General Application

DELIVERED ON:

23 June 2023

HEARING DATE:

12 April 2023

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

The orders contained in paragraph [66] of these reasons for decision.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – Complainant alleges age discrimination and the asking of unnecessary questions against the Respondent – pursuant to an order striking out the Complainant's further statement of facts and contentions, the Complainant filed and served a third statement of facts and contentions – Respondent subsequently made application seeking an order to strike out the Complainant's proceeding – principles to be considered in respect of an application to strike out a proceeding – whether Complainant's third statement of facts and contentions put the Respondent on notice of the case it has to meet – Complainant's third statement of facts and contentions did not put the Respondent on notice of the case it has to meet – no confidence that Complainant will file and serve a statement of facts and contentions that puts the Respondent on notice of the case it has to meet – proceeding dismissed – further applications made by the Complainant seeking certain relief dismissed because they are misconceived

LEGISLATION:

Anti-Discrimination Act 1991, s 13, s 14, s 15, s 23, s 114, s 122, s 123, s 124, s 128, s 133 and s 178

Court Procedures Rules 2006 (ACT), r 21

Industrial Relations Act 2016, s 451 and s 463

Industrial Relations (Tribunals) Rules 2011, r 45

CASES:

Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Yatala Labour Prison Case) (No 2) [2023] FCA 429

Local Government Association of Queensland v Queensland Services, Industrial Union of Employees [2020] QIRC 068

Robertson v McDonald's Australia Limited [2021] QIRC 344

Robertson v McDonald's Australia Limited (No. 6) [2023] QIRC 093

Robertson v Queensland Farm Management and Training Pty Ltd (No 2) [2022] QIRC 365

APPEARANCES:

The Complainant on his own behalf.

Mr J. McLean of Counsel instructed by Ms L. Dearlove of Colin Biggers & Paisley for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    In respect of Case No. AD/2021/7, being Mr Robertson's complaint of unlawful discrimination against McDonald's Australia Limited ('McDonald's), I have made a recent decision being Robertson v McDonald's Australia Limited (No. 6)                    ('Robertson No. 6).[1]
  1. [2]
    These reasons should be read with paragraphs [1]-[14] and [46]-[56] of Robertson No. 6.
  1. [3]
    In Robertson No.6, I made the following orders in respect of Case No. AD/2021/7:
  • pursuant to s 451(2)(c) of the Industrial Relations Act 2016 ('the IR Act'), Mr Robertson's statement of facts and contentions filed on 30 September 2022 be struck out;
  • pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), Mr Robertson file and serve a statement of facts and contentions which places McDonald's on proper notice of the case it must meet, by 4.00 pm on Friday, 10 March 2023; and
  • the case be reviewed at 10.00 am on 12 April 2023.[2]
  1. [4]
    I also indicated that on 12 April 2023, I would hear, on that date, any application filed by any party before that date and any oral application made by any party on that date.[3]
  1. [5]
    On 10 March 2023, Mr Robertson filed a second further statement of facts and contentions ('Mr Robertson's third statement of facts and contentions').
  1. [6]
    On 22 March 2022, Mr Robertson filed an application, by which he seeks, pursuant to s 463(1) of the IR Act, a declaration concerning the alleged unlawfulness, pursuant to s 124 of the Anti-Discrimination Act 1991, of the way McDonald's advertises certain vacancies. That matter is Case No. B/2023/27.
  1. [7]
    On 6 April 2023 McDonald's applied to dismiss Mr Robertson's complaint of unlawful discrimination on the basis that Mr Robertson has repeatedly failed to file an appropriate statement of facts and contentions ('McDonald's application').
  1. [8]
    On 6 April 2023, Mr Robertson applied for an order that '… council [sic] utilized by the respondent in A.D 2022/6 be ordered to appear. 12/4/23 as per time listed.' ('Mr Robertson's application in existing proceedings')
  1. [9]
    In this decision, I am dealing with three matters:
  • first, whether the declaration sought in Case No. B/2023/27 should be made;
  • secondly, whether I should grant Mr Robertson's application in existing proceedings; and
  • thirdly, whether I should grant McDonald's application.
  1. [10]
    For the reasons that follow:
  • pursuant to s 451(2)(c) of the IR Act, I dismiss Mr Robertson's application made in Case No. B/2023/27;
  • pursuant to s 451(2)(c) of the IR Act, I dismiss Mr Robertson's application in existing proceedings; and
  • pursuant to r 45(3)(a) of the Rules, I dismiss Mr Robertson's proceeding in Case No. AD/2021/7.

Should the declaration sought by Mr Robertson in Case No. B/2023/27 be granted?

  1. [11]
    In this application, for which relief is sought pursuant to s 463(1) of the IR Act, the decision sought by Mr Robertson is:

That the deputy Merrell give a direction as to the respondent's recently introduced and mandatory D.O.B within the online "careers" application process.

As to the standing of the question of D.O.B?

  1. [12]
    The grounds of the application are:

1/ That the D.O.B question is at least arguably unnecessary.

Where the question is in excess or want.

Where not a SINGLE advert states 'Junior' or like as to position's sought candidate/s.

Where the question breaches sect 124 A D act.

Where the question offends procedural fairness /due process as it is in advance of (any/if any).

Where there is already One age discrimination case before the Q.I.R.C ,Robertson v Mc Donald's Australia limit on [sic]

  1. [13]
    There are three significant problems with Mr Robertson's application.
  1. [14]
    First, Mr Robertson, as articulated in this application, does not seek a declaration, but seeks an order from the Commission directing that McDonald's not require applicants for positions with it to give their date of birth in online applications for employment.
  1. [15]
    Secondly, McDonald's is a national system employer and, in respect of industrial matters, is not subject to the IR Act. Section 463 of the IR Act, properly construed, only confers discretionary power on the Commission to make a declaration about '… an industrial matter' which can only concern an industrial matter as between employers and employees who are subject to the IR Act. Assuming that the issue at the heart of Mr Robertson's application is, in a general sense, an industrial matter because it concerns an employer and potential employees, it could not be an industrial matter for the purposes of the IR Act because it would concern a national system employer and potential national system employees.
  2. [16]
    Thirdly, pursuant to s 464 of the IR Act, a declaration may be made by a person who may be directly affected by the declaration. In Local Government Association of Queensland v Queensland Services, Industrial Union of Employees,[4] a Full Bench of the Commission considered that the phrase '… directly affected' in s 464(d) of the IR Act meant the declaration having an immediate causal effect, other than an indirect or remote causal effect, on the applicant.[5] It seems to me, leaving aside the first two issues to which I refer above, that Mr Robertson would not be directly affected by any declaration made by the Commission about the information McDonald's requires applicants for employment to supply. At most, there may be an indirect effect on Mr Robertson if he was such an applicant. There is no evidence before me from Mr Robertson that he intends, at any time, in the immediate or near future, to make an online application for employment with McDonald's.
  1. [17]
    For these three reasons, my view is that Mr Robertson's application in Case No. B/2023/27 is misconceived and should be dismissed pursuant to s 451(2)(c) of the IR Act.

Should Mr Robertson's application in existing proceedings be granted?

  1. [18]
    Mr Robertson submitted that the lawyer who appeared for the respondent in Mr Robertson's proceeding in Robertson v Queensland Farm Management and Training Pty Ltd (No 2)[6] should be ordered to appear in the present proceeding because McDonald's was allegedly trying to take the same point, in the present proceeding, as did the respondent in Robertson v Queensland Farm Management and Training Pty Ltd (No 2).
  1. [19]
    According to Mr Robertson, the point taken by the respondent in that case (that contributed to Mr Robertson's proceeding in that case being struck out) was that Mr Robertson failed to comply with the Rules in that he did not provide an address for service.
  1. [20]
    This application is entirely misconceived.
  1. [21]
    First, I doubt if there is power for me to make such an order.
  1. [22]
    Secondly, there is no reason to make a direction that the lawyer - who appeared for a different respondent in a different complaint by Mr Robertson - should appear in the present proceeding. Such a direction can have no relevance to the present proceeding.
  1. [23]
    In any event, the point taken by the respondent in the other proceeding is not a point taken by McDonald's in its present application to dismiss Mr Robertson's present proceeding.
  1. [24]
    For these reasons, my view is that Mr Robertson's further application in existing proceedings is misconceived and should be dismissed pursuant to s 451(2)(c) of the IR Act.

Should Mr Robertson's proceeding in Case No. AD/2021/7 be dismissed?

McDonald's submissions

  1. [25]
    In summary, McDonald's submitted that Mr Robertson, since the referral of his complaint from the Queensland Human Rights Commission ('QHRC') to this Commission, has had three opportunities to file and serve a statement of facts and contentions that properly puts McDonald's on notice of the case it has to meet.
  1. [26]
    McDonald's further submitted that Mr Robertson's non-compliance with the orders made by the Commission, to file and serve a statement of facts and contentions that would put it on notice of the case it has to meet, has resulted in an ongoing prejudice to it and that Mr Robertson's continued non-compliance indicates his unwillingness to cooperate with the Commission in having his complaint ready for trial.

Mr Robertson's submissions

  1. [27]
    Mr Robertson submitted that the statement of facts and contentions he filed on 10 March 2023 was understandable.
  1. [28]
    Mr Robertson then made a number of submissions that went to the merits of the complaints of discrimination he now wants to make against McDonald's. These matters went to, in general, the alleged use by McDonald's of a company, in respect of its recruitment processes, which uses technology such as artificial intelligence to determine the age characteristics of applicants for employment with McDonald's.

Mr Robertson's third statement of facts and contentions

  1. [29]
    As I stated in Robertson No. 6, a party's statement of facts and contentions must be drawn so as to allow the other party or parties, and the Commission, to know what the case is about, and to know, before the trial starts, the genuine issues that remain in dispute and that must be resolved.[7]
  1. [30]
    The fact that Mr Robertson is representing himself, while a misfortune, is not a privilege. Mr Robertson's status as a self-represented litigant does not relieve him of the requirement, imposed by the Commission by the directions orders that have been issued, to put McDonald's on notice of the case it has to meet by filing and serving a statement of facts and contentions the meets the above-mentioned purpose.
  1. [31]
    Mr Robertson's third statement of facts and contentions suffers from the same kinds of vices as did his second statement of facts and contentions that I struck out in Robertson No. 6.[8]
  1. [32]
    First, the complaint Mr Robertson made to, and which was accepted by, the QHRC, was about a written application for employment Mr Robertson made at a McDonald's restaurant in Mount Isa, being an application for which he was subsequently interviewed. This is made clear from the second and fourth pages of Mr Robertson's complaint to the QHRC made on 5 September 2020 as contained in the referral by the QHRC to this Commission. That referral also contains a subsequent email Mr Robertson sent to the QHRC on 10 December 2020. That email was sent in response to an earlier email from the QHRC to Mr Robertson seeking clarification about ambiguities in his complaint. The QHRC stated the complaint was ambiguous because Mr Robertson had mentioned a Bundaberg address. In that email Mr Robertson stated that '… it was a historical application in Mount Isa' and that '… Bundaberg was a time and place, where I consulted the online "careers page."'
  1. [33]
    The third paragraph of Mr Robertson's third statement of facts and contentions seems to contend that the alleged unlawful discrimination arose following his consideration to make an application for employment at a McDonald's 'outlet' in Targo Street, Bundaberg, after he saw an employment vacancy sign at that 'outlet'. Mr Robertson contends that, despite considering making an online application, he made no application for employment at the McDonald's 'outlet' in Bundaberg.
  1. [34]
    In this particular respect, Mr Robertson's third statement of facts and contentions does not concern the same factual complaint to the one accepted by the QHRC. In the absence of the Commission, pursuant to s 178 of the Anti-Discrimination Act 1991, allowing Mr Robertson to amend his complaint, Mr Robertson cannot allege a different case in this Commission. Mr Robertson has made no application to amend his complaint pursuant to s 178 of the Anti-Discrimination Act 1991.
  1. [35]
    Secondly, paragraphs 1 and 4 to 6 of Mr Robertson's third statement of facts and contentions provide:

1/  For clarity AD/2021/7 has the applicant alledging [sic] data is processed as to enable M.A.L[9] in efforts as to wage saving/s by way of primarily employing Juniors.

Sought and achieved some 75 % if all in store "crew" are Juniors.

Data is processed to the end of determining age/age characteristics by A.I and from R.T.W documents. That there is Two age groups Junior and senior,

One much preferred, I.E Juniors read $.

…

4/  [1] 2b (1) Direct sections 13, 14, 15, 23, 114, 123, 128.

M.A.L is held liable as to the national careers page format, requirement for its use.

M.A.L is identified as to principle within the employment process, coordinating and centralizing applications.

2b (2) Mc Donald's Australia Limited. 2b (3) No comparator is named. Page 1.

Page 2. 2b (4) The hypothetical comparator is an individual of whom applies for employment and is aged between Fourteen (14) and Twenty (20) years of age.

2b (5) The less favorable treatment is that I in being older than Twenty (20) Years of age had or would have a reduced likelihood of an employment with the P 1

P 2 the respondent, and or franchisee.

5/  That data (information supplied in part mandated) was and is processed as to limit exclude older applicants from the prerequisite employment interview, thus reduced as to improbable likelihood of employment. The interview forms a precursor and a requirement as to be considered as against employment vacancies.

6/  [2] 2 c (1) Indirect, (1) 14, 15, 23, 114, 122, 123, 128, 133.

Page 2. 2c (2) The term is "Junior" and or understood as "Youth wages apply" or like 14‑20 Years of age, or like however understood as to be younger than Twenty-One (21). The term is clandestine, namely silent.

2c (3) I am "Senior" over Twenty (20) years of age as such can not comply with the term.2c (4) The higher proportion of persons can not comply.

2c (5) The term is not unannounced it is however "junior" or like, that the adverts are misleading and M.A.L do not have the protections of sect 33 A.D act, namely Junior wages provisions.

  1. [36]
    Any respondent to a claim of unlawful discrimination, who has served on them, as ordered by the Commission, a statement of facts and contentions from a complainant in a matter such as the present, should not be required to have to engage in a process of interpretation and speculation to understand the case alleged against them so that they can respond.
  1. [37]
    As best as I can make out, Mr Robertson's complaint, in a very general sense, now seems to be that McDonald's uses an online recruitment system provided by a third-party which, by artificial intelligence and the provision of 'R.T.W documents' or right to work documents, determines the age of applicants and is biased in favour of applicants who would be considered 'Juniors'. Mr Robertson then contends that it is for this reason that he did not apply, online, for employment at the McDonald's Targo Street, Bundaberg 'outlet' after he noted an employment vacancy sign at that outlet.
  1. [38]
    This general complaint can only concern alleged discrimination in the pre-work area within the meaning of the Anti-Discrimination Act 1991.
  1. [39]
    In terms of what seems to be an allegation of direct discrimination, Mr Robertson does not clearly contend how McDonald's treated or proposed to treat him less favourably in the pre-work area within the meaning of s 14(a)-(f) of the Anti-Discrimination Act 1991 when in fact he did not apply for the advertised vacant position at the McDonald's outlet in Bundaberg and when McDonald's (presumably) had no knowledge of him or of his age. The allegations about this issue are vague. McDonald's is left to interpret these paragraphs to be able to discern what is actually being alleged against it.
  1. [40]
    Similarly, in terms of what seems to be an allegation of indirect discrimination, Mr Robertson does not clearly contend how McDonald's imposed or proposed to impose a term on him such that he was the subject of unlawful discrimination in the pre‑work area within the meaning of s 14(a)-(f) of the Anti-Discrimination Act 1991. The alleged imposed term of 'Junior' is said to be '… clandestine, namely silent.' Mr Robertson does not clearly state how this term was imposed or proposed to be imposed on him when he did not apply for the vacant position at the McDonald's outlet in Bundaberg and when McDonald's (presumably) had no knowledge of him or of his age. Mr Robertson does not contend why any such term, if indeed one was imposed or proposed to be imposed on him, was not reasonable.
  1. [41]
    For these reasons, McDonald's is left to speculate on what is actually being alleged against it.
  1. [42]
    Mr Robertson does not contend how ss 13, 15, 23, 114, 122, 123, 128 or 133 of the Anti‑Discrimination Act 1991 are engaged in his complaint as referred to in his third statement of facts and contentions. In any event, the QHRC did not accept a complaint from Mr Robertson that McDonald's contravened ss 13, 23, 114, 122, 123, 128 or 133 of the Anti-Discrimination Act 1991.
  1. [43]
    Thirdly, paragraphs 8 to 18 and 24 to 41 of Mr Robertson's third statement of facts and contentions:
  • include a combination of submissions and evidence;
  • contain an allegation that McDonald's Privacy Policy has contravened privacy laws;
  • contain other irrelevant allegations that McDonald's has engaged in other unlawful conduct; and
  • contain other allegations that are not relevant.
  1. [44]
    None of these matters have any relevance to the complaint the QHRC referred to this Commission.
  1. [45]
    Fourthly, the QHRC did accept a complaint from Mr Robertson that McDonald's made an unlawful request for information within the meaning of s 124 of the Anti‑Discrimination Act 1991. That complaint was referred to this Commission.
  1. [46]
    That section provides:

124  Unnecessary information

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

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

Example-

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

  1. [47]
    Mr Robertson, in his third statement of facts and contentions, relevantly stated:

20/ Additionally, as how it is unlawful as to the respondent's actions including but not limited A.D 124. By way of clarity and as to the complexity or otherwise it is required as to understand that the respondents utilized in 2019 and presently a company, "SmartRecruiters". That specializes in the processing of data as to determine the sought and unsought characteristics, including that of the protected attribute namely age. The applicant seeks as to greater understanding by the court as to consider by way of background, of without which the matters may not be considered.21/ The exact circumstances are in part as to be understood against rather specialized and discrete information of which the importance is held discernable [sic] and significant."How does SmartAssistant work? Using millions of data points pulled from our applicant tracking system and powerful custom algorithms, SmartAssistant's A.I powered recommendation service discovers, evaluates, and matches candidates faster and at scale. Does the Match Score apply to all applicants? Or, are there any limitations? Scoring and recommendations P 6 require profile data from candidates.22/ Included: Candidates who've applied to jobs in the past, or have been added through other sources, as well as internal employees with a profile Excluded; Candidates outside of your system access level.

Past candidates rejected for principle reasons (e.g. bad culture fit and similar). e.g. third-party resumes databases)." 23/ "similar "means older the inferred, implied consequence is as to lesser to no opportunity. The processing has a function, that speaks as to memory so to speak related to "Bad fit", it follows subsequent applications are regarded on balance less favorably. Within the online applications are "Experience-Title-From-to "as a series of questions. The calendar and "Pick a date" additionally there is an option as to apply via"Facebook" via Indeed (recruiting type company) mathematically it is by extension, age/s are further and more clearly able as o [sic] be determined.

  1. [48]
    McDonald's is left to speculate, from this part of Mr Robertson's third statement of facts and contentions, as to how it allegedly contravened s 124 of the Anti-Discrimination Act 1991. Further still, none of the allegations contained in paragraph 20 of Mr Robertson's third statement of facts and contentions were complaints made to the QHRC.
  1. [49]
    Again, no application has been made by Mr Robertson to amend his complaint to include these new allegations.
  1. [50]
    Fifthly, Mr Robertson does not state how it is that he has suffered loss in the nature of general damages in the amount of $1,000,000.00, as he claims in paragraph 19 of his third statement of facts and contentions, when he did not apply for the vacant advertised position at the McDonald's outlet in Targo Street, Bundaberg.
  1. [51]
    In my view:
  • Mr Robertson is now making a complaint where the primary facts alleged are different to those as he alleged to the QHRC and which were accepted by the QHRC;
  • Mr Robertson has now made different allegations in his third statement of facts and contentions without him applying to the Commission to amend his complaint and without the Commission allowing him to amend his complaint;
  • in any event, for the reasons given above, Mr Robertson's third statement of facts and contentions requires McDonald's to engage in a process of interpretation and speculation to be able to discern the complaints made against it of direct and indirect discrimination in the pre-work area, and of an unlawful request for information, so as it can reasonably know the case it has to meet; and
  • the remainder of Mr Robertson's third statement of facts and contentions contains irrelevant material.
  1. [52]
    Given that this is the third time that Mr Robertson has been unable to produce a statement of facts and contentions that reasonably puts McDonald's on proper notice of the case it has to meet, the question is whether or not I should exercise discretion to dismiss the proceeding in AD/2021/7?

The relevant principles

  1. [53]
    I rely on what I said in paragraphs [17]-[26] of Robertson No. 6 about:
  • the purpose of statements of facts and contentions;
  • the power of the Commission, pursuant to s 451(2)(c) of the IR Act, to summarily dismiss a proceeding because an applicant has failed to file and serve a statement of facts and contentions that puts a respondent on proper notice of the case it must meet; and
  • the power of the Commission, pursuant to r 45(3)(a) of the Rules, to dismiss a proceeding because an applicant has failed to comply with a directions order by not filing and serving a statement of facts and contentions that puts a respondent on proper notice of the case it must meet.
  1. [54]
    Relevantly to the present case, I also refer to the decision of the High Court in Aon Risk Services Ltd v Australian National University ('Aon')[10] where the plurality[11] stated:

112 A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

113 In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

114 Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule’s objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU’s application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a “just resolution” of ANU’s claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU’s claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.[12]

  1. [55]
    While those comments by the plurality concerned r 21 of the Court Procedures Rules 2006 (ACT) and a late application to amend a statement of claim, the comments are apposite in the present case.
  1. [56]
    The effect of the three failures of Mr Robertson, to file and serve a statement of facts and contentions that reasonably puts McDonald's on proper notice of the case it has to meet, is twofold.
  1. [57]
    First, it is oppressive on McDonald's not to be able to have the proceedings commenced against it by Mr Robertson resolved by the Commission in a reasonably efficient manner. That cannot be done until Mr Robertson reasonably puts McDonald's on proper notice of the case it has to meet.
  1. [58]
    Mr Robertson made his complaint to the QHRC on 5 September 2020. The complaint was referred to this Commission on 16 February 2021. Mr Robertson has now had three opportunities, since 2021, to file and serve a statement of facts and contentions that reasonably puts McDonald's on proper notice of the case it has to meet. Mr Robertson filed his first statement of facts and contentions on 30 June 2021.[13] Mr Robertson filed his second statement of facts and contentions on 30 September 2022. Both were struck out. Mr Robertson's third statement of facts and contentions has the similar failings of his first two. By this stage of the proceeding, well over two years after it was first referred to this Commission, McDonald's still does not have a statement of facts and contentions that reasonably puts it on notice of the case it has to meet.
  1. [59]
    In respect of Mr Robertson's third statement of facts and contentions, leaving aside the irrelevant matters and the new claims in respect of which he has not made application to amend his complaint, McDonald's is left to a process of interpretation and speculation to try to discern the case against it in terms of direct and indirect discrimination and in respect of the complaint about the contravention of s 124 of the Anti‑Discrimination Act 1991.
  1. [60]
    Secondly, the time taken by the Commission in dealing with Mr Robertson's three deficient statements of facts and contentions has prevented the resources of the Commission being devoted to other litigants who wish to have their matters heard and determined.
  1. [61]
    That is to say, as referred to in Aon,[14] the failure of Mr Robertson to clearly articulate the case that McDonald's has to meet in a timely manner has caused delay that is undesirable; and such delay has deleterious effects, not only upon the other party to the proceedings in question - in this case, McDonald's - but to other litigants before the Commission.
  1. [62]
    Mr Robertson, since February 2021, has been unable to file and serve a statement of facts and contentions that meets the requirements of the Commission and that is fair to McDonald's. That is to say, since that time, Mr Robertson has not complied with the orders made to file and serve a statement of facts and contentions that reasonably puts McDonald's on proper notice of the case it has to meet. McDonald's submitted that Mr Robertson's continued non-compliance indicates his unwillingness to cooperate with the Commission in having his complaint ready for trial. For the reasons I have given above, I accept that submission.
  1. [63]
    Given Mr Robertson's three unsuccessful attempts, from February 2021, to file and serve a proper statement of facts and contentions, I have no confidence that, if I struck out Mr Robertson's third statement of facts and contentions and gave him leave to file and serve a fourth statement of facts and contentions, Mr Robertson would be able to file and serve a statement of facts and contentions that reasonably puts McDonald's on proper notice of the case it has to meet.
  1. [64]
    The history of Mr Robertson's three unsuccessful attempts to file and serve a statement of facts and contentions strongly supports my conclusion.
  1. [65]
    For these reasons, pursuant to r 45(3)(a) of the Rules, I will dismiss Mr Robertson's proceeding in AD/2021/7.

Orders

  1. [66]
    I make the following orders:
  1. Pursuant to s 451(2)(c) of the Industrial Relations Act 2016, the proceeding in Case No. B/2023/27 is dismissed.
  1. Pursuant to s 451(2)(c) of the Industrial Relations Act 2016, the Complainant's application in existing proceedings filed on 6 April 2023 in Case No. AD/2021/7 is dismissed.
  1. Pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011, the proceeding in Case No. AD/2021/7 is dismissed.

I certify that the preceding [66] paragraphs are a true copy of the Reasons for Decision of Deputy President Merrell.

J.W. MERRELL, Deputy President:   ………………………………

(Signature)

23 June 2023

Footnotes

[1] [2023] QIRC 093 ('Robertson No. 6').

[2] Ibid [57].

[3] Ibid [55]-[56].

[4] [2020] QIRC 068.

[5] Ibid [40]-[46] (Vice President O'Connor, Industrial Commissioner Hartigan, as her Honour then was, and Industrial Commissioner McLennan). Section 464(d) of the Industrial Relations Act 2016 provides that an organisation of employees or employers who may be directly affected by the declaration may make an application for a declaration under s 463.

[6] [2022] QIRC 365.

[7] Robertson No. 6 (n 1), [26].

[8] Robertson No. 6 (n 1) [35]-[40].

[9] Which stands for McDonald's Australia Limited.

[10] [2009] HCA 27; (2009) 239 CLR 175 ('Aon').

[11] Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[12] Citation omitted. See also Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Yatala Labour Prison Case) (No 2) [2023] FCA 429, [5]-[9] (O'Sullivan J).

[13] Robertson v McDonald's Australia Limited [2021] QIRC 344, [23] (Industrial Commissioner Dwyer).

[14] Aon (n 10).

Close

Editorial Notes

  • Published Case Name:

    Robertson v McDonald's Australia Limited (No. 8)

  • Shortened Case Name:

    Robertson v McDonald's Australia Limited (No. 8)

  • MNC:

    [2023] QIRC 192

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    23 Jun 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Aon Risk Services Australia Limited v Australian National University (2009) HCA 27
2 citations
Jump To
Cite 1 - (2009) HCA 27
Cite 2 - (2009) HCA 27
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Yatala Labour Prison Case) (No 2) [2023] FCA 429
2 citations
Jump To
Cite 1 - [2023] FCA 429
Cite 2 - [2023] FCA 429
Local Government Association of Queensland v Queensland Services, Industrial Union of Employees [2020] QIRC 68
3 citations
Jump To
Cite 1 - [2020] QIRC 68
Cite 2 - [2020] QIRC 68
Cite 3 - [2020] QIRC 68
Robertson v McDonald's Australia Limited [2021] QIRC 344
2 citations
Jump To
Cite 1 - [2021] QIRC 344
Cite 2 - [2021] QIRC 344
Robertson v McDonald's Australia Limited (No. 6) [2023] QIRC 93
4 citations
Jump To
Cite 1 - [2023] QIRC 93
Cite 2 - [2023] QIRC 93
Cite 3 - [2023] QIRC 93
Cite 4 - [2023] QIRC 93
Robertson v Queensland Farm Management and Training Pty Ltd (No 2) [2022] QIRC 365
4 citations
Jump To
Cite 1 - [2022] QIRC 365
Cite 2 - [2022] QIRC 365
Cite 3 - [2022] QIRC 365
Cite 4 - [2022] QIRC 365

Cases Citing

Case NameFull CitationFrequency
Robertson v McDonald's Australia Limited (No 3) [2024] ICQ 94 citations
Robertson v McDonald's Australia Limited [2023] ICQ 271 citation
Robertson v McDonald's Australia Limited (No 2) [2023] ICQ 282 citations
1

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