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  4. Michalakellis v LMM Holdings Pty Ltd (No. 4) - [2023] QIRC 248

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Michalakellis v LMM Holdings Pty Ltd (No. 4)[2023] QIRC 248

Michalakellis v LMM Holdings Pty Ltd (No. 4)[2023] QIRC 248

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Michalakellis v LMM Holdings Pty Ltd & Ors (No. 4) [2023] QIRC 248

PARTIES:

Michalakellis, Dimitri

(Complainant)

v

LMM Holdings Pty Ltd

(First Respondent)

&

Reesby, Grant

(Second Respondent)

&

Gibson, Sam

(Third Respondent)

CASE NO:

AD/2018/83

PROCEEDING:

Referral of a complaint

DELIVERED ON:

30 August 2023

HEARING DATES:

30 and 31 August 2022

1, 2 and 3 September 2022

MEMBER:

Power IC

HEARD AT:

Brisbane

ORDERS:

  1. 1.That the complaint be dismissed.
  2. 2.I will hear the parties on the question of costs.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – where the complainant worked as a contractor for the first respondent – where the second respondent and the third respondent worked for the first respondent –     where the complainant alleges discrimination on the basis of certain attributes – attribute of sex, race and presumed sexuality pursuant to the Anti-Discrimination Act 1991 (Qld) section 7 – whether a person with an attribute was treated less favourably than another person without the attribute – consideration of a hypothetical comparator – whether discrimination in the workplace occurred – whether the respondents engaged in victimisation – where the complainant failed to discharge the onus of establishing that the treatment amounts to unlawful direct discrimination – where the complainant failed to discharge the onus of establishing the respondents engaged in victimisation – complaint dismissed

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) ss 7, 8, 9, 10, 15, 129, 130

CASES:

Bero v Wilmar Sugar Pty Ltd & Ors [2018] QCATA 104

Bero v Wilmar Sugar Pty Ltd [2016] QCAT 371

Briginshaw v Briginshaw (1938) 60 CLR 336

Carlton v Simon Blackwood (Workers’ Compensation Regulator) [2017] ICQ 001

Carr v Baker (1936) 36 SR (NSW) 301

Cassady v Hardings N.Q. Pty Ltd and Anor [2021] QCAT 353

Curran v yourtown & Anor [2019] QIRC 059

Golding Sippel and The Laundry Chute Pty Ltd [2021] QIRC 74

Gordon v State of Queensland & Ors [2013] QCAT 564

Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261

Haines v Leves (1987) 8 NSWLR 442

Jenkins v State of Queensland & Ors [2018] QCAT 154

Jones v Dunkel (1959) 101 CLR 298

LLM Holdings Pty Ltd & Ors v Michalakellis [2019] QIRC 75

McIntyre v Tully [2000] QCA 115

Michalakellis v LMM Holdings Pty Ltd (No 2) [2020] QIRC 24

Michalakellis v LMM Holdings Pty Ltd (No. 3) [2021] QIRC 289

Moffatt on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd [1998] QADT 16

Park v State of Queensland & Anor [2013] QCAT 183

Perera v Warehouse Solutions Pty Ltd (Human Rights) [2017] VCAT 1267

Purvis v State of New South Wales (Department of Education and Training) & Anor (2003) 217 CLR 92

Qantas Airways Ltd v Gama [2008] FCAFC 69 

Rintoul v State of Queensland & Ors [2016] QCAT 211

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44

Smith v Aussie Waste Management Pty Ltd [2015] FWC 1044

Tafao v State of Queensland [2020] QCATA 76

APPEARANCES:

Mr D. Michalakellis, the Complainant himself.

Ms R. Taylor of Counsel, instructed by Franklin Athanasellis Cullen Lawyers.

Reasons for Decision

  1. [1]
    Mr Dimitri Michalakellis ('the Complainant') filed a complaint in the then Anti‑Discrimination Commission Queensland ('ADCQ')[1] against LMM Holdings Pty Ltd, trading as Brisbane BMW ('the First Respondent'), Mr Grant Reesby ('the Second Respondent') and Mr Sam Gibson ('the Third Respondent') (together, 'the Respondents') alleging contraventions of the Anti‑Discrimination Act 1991 (Qld) ('the AD Act').
  1. [2]
    The Complainant and the Respondents participated in a conciliation conference before the ADCQ prior to the matter being referred to the Queensland Industrial Relations Commission ('the Commission') pursuant to s 166(1)(a) of the AD Act.
  1. [3]
    Following a conciliation conference at the Commission and a number of interlocutory determinations,[2] the matter proceeded to hearing.

Background

  1. [4]
    The Second Respondent was the Pre-Delivery Manager with the First Respondent. The Third Respondent was the Direct Manager of the Second Respondent and the First Respondent's General Manager for After Sales.
  1. [5]
    The Complainant was engaged as a contractor with the First Respondent after taking over from the previous contractor, 'True Colours Duco Repairs' ('True Colours').
  1. [6]
    Prior to the Complainant taking over as a contractor for the First Respondent, Mr Paul Tom operated True Colours and performed spray-painting and small repairs for the First Respondent.
  1. [7]
    In late 2015, Mr Tom, the Complainant, and the Second Respondent had a discussion about the Complainant taking over from True Colours as contractor for the First Respondent. In December 2015, the Complainant commenced his own contracting arrangement with the First Respondent providing minor paint repair and spray-painting services through his company, Mic Industries Pty Ltd.
  1. [8]
    The Complainant's work was completed in the pre-delivery yard of the First Respondent along with other employees and contractors.
  1. [9]
    Between January 2016 and 13 April 2018, the Complainant was the only person providing spray-painting and touch-up services at pre-delivery with the exception of when the Complainant was on holidays, during which the First Respondent engaged a different contractor to complete this work.
  1. [10]
    On 13 January 2018, the First Respondent's Managing Director, Mr Martin Roller, received an anonymous complaint from the Complainant's wife, Ms Lucy Michalakellis, alleging the Second Respondent was engaging in bullying behaviour towards the Complainant and other workers. Ms Michalakellis did not identify herself or the Complainant in the email.
  1. [11]
    On 14 January 2018, Mr Martin Roller, the First Respondent's Managing Director, replied to Ms Michalakellis and enquired if the Complainant would be prepared to have a confidential discussion with the First Respondent's Human Resources Manager, Mr Joshua McGee, to provide further details of the allegations. Mr Roller then notified Mr McGee of the complaint.
  1. [12]
    Mr McGee and the Third Respondent subsequently approached the Second Respondent to discuss the allegations made in the anonymous complaint. On 16 January 2018, Mr Roller wrote a further email to Ms Michalakellis to advise that the complaint was discussed with the Second Respondent.
  1. [13]
    On 21 January 2018, Ms Michalakellis emailed Mr Roller to advise that she had noticed an improvement in the situation with the Complainant and that he was still unaware that she had made the anonymous complaint.
  1. [14]
    In February 2018, Ms Michalakellis, again, emailed Mr Roller anonymously advising that the Second Respondent's alleged bullying behaviour towards the Complainant was occurring again. Mr McGee responded to this email on 28 February 2018, encouraging the Complainant to come forward to discuss the issues raised so they could be addressed. The Complainant replied on 7 March 2018 agreeing to have a discussion with Mr McGee to discuss the complaint on 9 March 2018.
  1. [15]
    On 9 March 2018, Mr McGee returned the Complainant's call. The Complainant confirmed his identity and outlined the details of his concerns, including that the Second Respondent:
  1. (a)
    had called his shoes and the music he listened to 'gay';
  2. (b)
    pointed to a dead cockroach and said 'there's one of your kind';
  3. (c)
    would deliberately tell the Complainant there was no further work only to call him back to pre-delivery shortly after; and
  4. (d)
    would unreasonably scrutinise his work.
  1. [16]
    The Complainant further detailed complaints that the Second Respondent was unapproachable, unreasonable or brusque and that he was not the only person that had these grievances with the Second Respondent. The Complainant gave examples of the Second Respondent 'blasting' or 'laying into the mechanics'.[3]
  1. [17]
    Mr McGee advised the Complainant that he would need to put the allegations to the Second Respondent.[4] The Complainant asked if there was 'any way we can put it in writing that I have the contract to work there for the next two years …'.[5] Mr McGee  responded that he did not generally get involved with 'that sort of stuff' but that he would raise it with the people who make those decisions.[6]
  1. [18]
    This conversation was recorded by the Complainant.
  1. [19]
    Mr McGee and the Third Respondent met with the Second Respondent and discussed the complaints raised by the Complainant.[7]
  1. [20]
    The Second Respondent denied some of the allegations, however, conceded others, including calling the Complainant's shoes 'gay' and the music that he listened to 'girly'.[8] The Second Respondent stated that there was banter at times which the Complainant engaged in and indicated that he would joke with the Complainant, and the Complainant would laugh. The Second Respondent stated that he was not aware he had caused any offence to the Complainant.
  1. [21]
    On 3 April 2018, the Complainant and Ms Michalakellis met with Mr McGee and the Third Respondent to discuss the complaints and to confirm that the allegations against the Second Respondent had been adequately addressed.[9]
  1. [22]
    The recollection of what occurred at the meeting differed between the participants, however, it is apparent that there was mention of the Complainant's Greek heritage, including that he had recently been to Greece and that 'Mr Gibson said something about Greek people being tough or resilient (or words to that effect)'.[10]
  1. [23]
    The day following the meeting, the Complainant approached the Second Respondent with a carton of beer to apologise and to discuss the complaint. The accounts of the meeting provided by the witnesses differ. The Second Respondent did not accept the carton of beer and asked the Complainant why he did not just come and talk to him about his concerns rather than wasting other people's time and being a 'keyboard warrior'.
  1. [24]
    The Complainant contends that the Second Respondent instructed staff to socially isolate him. The Second Respondent denied this allegation, however, accepted he had told other staff to only engage with the Complainant on a professional basis.[11] The Second Respondent stated that this was not because a complaint had been made, but rather because the Complainant did not like banter. The Complainant reported this interaction with the Second Respondent to Mr McGee on the same day.
  1. [25]
    Mr McGee and the Third Respondent spoke to the Second Respondent in the following days regarding his interaction with the Complainant on 4 April 2018 during which 'they outlined the First Respondent's expectations regarding [the Second Respondent's] behaviour and informed the Second Respondent that he would be receiving a letter (regarding the outcome of the Complainant's complaint) and would need to undertake some further training around workplace conduct'.[12]
  1. [26]
    The Complainant was called into work by the Second Respondent on 5 and 6 April 2018 before the Second Respondent took leave from 9 to 20 April 2018. The Complainant continued to perform work for the First Respondent on 10, 11, 12 and 13 April 2018.
  1. [27]
    After working on 13 April 2018, the Complainant went to see his doctor who advised him to stop working. The Complainant emailed Mr McGee on 17 April 2018 advising that he had been advised by his doctor to stop working for a period of time and had lodged a claim with WorkCover Queensland.
  1. [28]
    The Complainant did not return to work for the First Respondent.
  1. [29]
    The Complainant's application for workers' compensation to WorkCover was not accepted. The Complainant subsequently commenced an application for an order to stop bullying and a separate general protections application in the Fair Work Commission ('the FWC').
  1. [30]
    On 15 June 2018, the Complainant discontinued both FWC applications and filed a complaint with the ADCQ alleging that the Respondents had discriminated against him and engaged in victimisation.

Additional complaints

  1. [31]
    The Complainant filed a Statement of Facts and Contentions on 8 October 2018 followed by further and better particulars on 10 March 2019 following an order by Knight IC.
  1. [32]
    The Complainant filed and served an affidavit with an Amended Statement of Facts and Contentions on 16 June 2021. In this document, the Complainant included a new complaint of sex discrimination and pleaded new claims alleged to have occurred before 15 June 2017, which was the commencement of the limitation period to the complaint. Following an interim hearing regarding these issues, the Commission accepted the new complaint and the new and out-of-time allegations.[13]
  1. [33]
    Following a five-day hearing, the Complainant filed his closing submissions some two months later which raised a new complaint against the Second Respondent of sexual harassment. The closing submissions also raise a new allegation of direct discrimination by the First Respondent and a new complaint of victimisation by Mr McGee personally. The Respondents object to the introduction of each of these new complaints.
  1. [34]
    The Complainant was given leave to amend his Statement of Facts and Contentions in the period prior to the hearing following the interlocutory decision referred to at [32].[14] Acknowledging that the addition of a further attribute was to occur a short time prior to the commencement of the hearing, the decision clearly stated that the Complainant's Amended Statement of Facts and Contentions was to then encompass the entirety of the Complainant's case.[15]
  1. [35]
    In Carlton v Simon Blackwood (Workers’ Compensation Regulator),[16] Martin J stated:
  1. [18]
    … An appellant's case has to be known before the hearing starts. The Commission cannot allow a case to "evolve" and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment.

…

  1. [48]
    … Nevertheless, the matters for determination are confined by the Amended Statement of Events or the Statement of Stressors. Cases like this are not to be run as if they are a mini Royal Commission into all aspects of the conduct of both the employer and the employee.
  1. [36]
    Each of the new grounds of complaints raised by the Complainant in his closing submissions are addressed below.

Sexual harassment

  1. [37]
    In the Complainant's closing submissions, the Complainant claims that he was sexually harassed by the Second Respondent's conduct, in contravention of s 118 of the AD Act. This allegation was not put forward in the material before the hearing, nor was it raised during the hearing. The Complainant had not previously complained of sexual harassment in any of the jurisdictions in which the Complainant has filed proceedings.
  1. [38]
    The attempt to raise new grounds after the hearing has concluded and both parties have closed their cases raises the potential of significant prejudice against the Respondents.
  1. [39]
    The Complainant submits that the additional complaint should be accepted because the facts relied upon in support of his sexual harassment claim were alleged in his complaint to the ADCQ and in his Statement of Facts and Contentions. This is not entirely correct, with only some of the facts raised appearing in the Complainant's Further and Better Particulars and others not raised at all in the documents filed prior to hearing.
  1. [40]
    As outlined at [34], the Complainant had the opportunity to amend his case in the week prior to the hearing to include a further ground of complaint. The Complainant refers to comments in the interlocutory decision[17] that 'the QIRC is not bound by the characterisation of the ADCQ and is empowered by s 178 to amend a complaint'.[18] However, I note in that decision, I proceeded to make the point that 'The case to be answered will not be allowed to ''evolve'' at hearing without leave of the Commission, with the Complainant's Amended SOFC now encompassing his case'.[19]
  1. [41]
    If the Complainant was of the view that sexual harassment had occurred, he had the opportunity to include the allegation in his case at that late stage. No reasonable explanation was given as to why this claim was not included when the Complainant's Amended Statement of Facts and Contentions was filed.
  1. [42]
    The legal test to establish sexual harassment is different to that of direct discrimination. I accept the Respondents' submission that, had it been on notice of this complaint at the hearing, different lines of cross-examination would have been advanced to test the Complainant’s case and different evidence may have been called by the Respondents to address the issues in dispute.
  1. [43]
    The concessions made by the Second Respondent during the hearing do not, on their own, satisfy the meaning of sexual harassment within the meaning of s 119 of the Act.
  1. [44]
    Leave may be sought at any stage to amend a Statement of Facts and Contentions, however whether leave is given is a question of fairness between the parties. In the absence of compelling circumstances, allowing a complaint to be added within the Complainant's closing submissions that has not been included in documents filed prior to hearing or ventilated and tested in open court, would result in considerable unfairness. Permitting this course of action in the circumstances of this matter would unreasonably infringe on the Respondents' right to procedural fairness. Accordingly, this additional complaint will not be considered.

Direct discrimination by the First Respondent

  1. [45]
    The involvement of the First Respondent as outlined in the material filed prior to the hearing and ventilated during the hearing was limited to vicarious liability for the alleged conduct of the Second Respondent and the Third Respondent.
  1. [46]
    In the Complainant's closing submissions, he raises an argument that the First Respondent has engaged in conduct amounting to direct discrimination. The Complainant had not requested that the complaint be amended to include this complaint.
  1. [47]
    As outlined above, it would be prejudicial to allow an additional complaint to be pursued at the point of closing submissions in circumstances where the Respondents had not been put on notice of such a complaint. Doing so would be unfair as the First Respondent did not have the opportunity to provide evidence addressing the complaint.
  1. [48]
    It would contravene the principles of procedural fairness to allow this complaint to proceed having only been raised in closing submissions. Accordingly, this complaint will not be considered.

Victimisation by Mr McGee

  1. [49]
    The Complainant contends in his closing submissions that Mr McGee victimised him by failing to protect the Complainant from the Second Respondent's conduct and by revealing his identity to the Second Respondent.
  1. [50]
    This claim relates to a phone call between the Complainant and Mr McGee. This phone call was not a new fact that emerged during the hearing and was not a surprise to the Complainant. The appropriate time to bring a claim against Mr McGee was when his original complaint was filed or by seeking leave to amend the complaint.
  1. [51]
    It is also noted that Mr McGee is not a party to the proceeding, was not the subject of a complaint in the documents filed and was not legally represented at the hearing. Mr McGee gave evidence as a representative of the First Respondent due to his involvement in the complaint investigation.
  1. [52]
    The Complainant did not seek to amend his complaint to include this claim. This claim was not included in the Amended Statement of Facts and Contentions and was not specifically raised at the hearing. It would be unfair to allow this claim to be made in these circumstances. Accordingly, I will not consider this complaint.

Statutory framework

  1. [53]
    The onus lies with the Complainant to demonstrate, on the balance of probabilities, that the Respondents contravened the AD Act pursuant to s 204.
  2. [54]
    The requisite standard to which the contraventions must be proven is the Briginshaw test.[20] This is particularly relevant given the seriousness of the allegations.
  1. [55]
    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':
  1. 7Discrimination 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.
  1. [56]
    Section 8 of the AD Act provides the meaning of discrimination: 

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 anytime, 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.
  1. [57]
    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:
  1. 10Meaning of direct discrimination
  1. (1)
    Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

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.

  1. (2)
    It is not necessary that the person who discriminates considers the treatment is less favourable.
  2. (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.

  1. (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.
  2. (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.
  1. [58]
    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': 
  1. (1)
    A person must not discriminate—
  1. (a)
    in any variation of the terms of work; or
  2. (b)
    in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
  3. (c)
    in dismissing a worker; or
  4. (d)
    by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
  5. (e)
    in developing the scope or range of such a program; or
  6. (f)
    by treating a worker unfavourably in any way in connection with work.
  1. [59]
    Victimisation is prohibited pursuant to s 129 of the AD Act. Victimisation is defined in section 130 as follows:
  1. (1)
    "Victimisation" happens if a person (the "respondent") does an act, or threatens to do an act, to the detriment of another person (the "complainant")—
  1. (a)
    because the complainant, or a person associated with, or related to, the complainant—
  1. (i)
    refused to do an act that would amount to a contravention of the Act; or
  2. (ii)
    in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
  3. (iii)
    is, has been, or intends to be, involved in a proceeding under the Act against any person; or
  1. (b)
    because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a) (i) , (ii) or (iii).
  1. (2)
    In this section, a reference to involvement in a proceeding under the Act includes—
  1. (a)
    making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
  2. (b)
    involvement in a prosecution for an offence against the Act; and
  3. (c)
    supplying information and producing documents to a person who is performing a function under the Act; and
  4. (d)
    appearing as a witness in a proceeding under the Act.[21]

Vicarious liability

  1. [60]
    It is not in dispute that a relevant work relationship existed between the Complainant and the Respondents such that s 15 of the AD Act is engaged. The Respondents concede the Complainant was a contractor to the First Respondent and s 133(1) of the AD Act applies in these circumstances.[22]
  2. [61]
    It is not in dispute that if the Complainant establishes any contraventions of the AD Act by the Second Respondent or Third Respondent, the First Respondent would be vicariously liable for those contraventions.

Attributes

  1. [62]
    The Complainant's allegations are that he was discriminated against on the basis of sex, race, and presumed sexuality.[23] The allegations are that the Complainant was discriminated against on the basis that he was male, Greek, and presumed to be homosexual.
  1. [63]
    The Respondents deny that they treated the Complainant less favourably and to the extent any actions are admitted, contend those actions were not made on the basis of the Complainant's sex, presumed sexuality or race.
  1. [64]
    There is no dispute that the Complainant is male and of Greek heritage.
  1. [65]
    The Complainant claims that characteristics that are often imputed to males are 'masculinity', 'not taking offence to insults directed at them' and 'being able to give as good as they get in relation to insults in the workplace'.[24]
  1. [66]
    The Complainant claims that the Second Respondent discriminated against him on the basis that he presumed the Complainant to have the attribute of homosexuality. The Complainant contends that the Second Respondent called him derogatory names related to homosexuality and treated him less favourably than other employees and contractors whom he did not perceive as being homosexual.
  1. [67]
    The Second Respondent gave evidence that he knew the Complainant was married and did not believe the Complainant was homosexual.[25] The Complainant submits that an objective determination must be made of whether an ordinary, reasonable person who heard the Second Respondent making the alleged remarks to the Complainant would consider the Second Respondent believed him to be a homosexual, referring to Purvis v State of New South Wales (Department of Education and Training) & Anor,[26] in which the majority stated:
  1. [236]
    For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed 'because of' disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'.
  1. [68]
    I note the following consideration of attributes in Rintoul v State of Queensland & Ors:[27]
  1. [10]
    It is important to note in section 8(c) that the attribute that a person is presumed to have must be a presumption by the person discriminating. For that section to apply here there the applicant will need to prove that the respondents or one of them had a presumption that the applicant was of Aboriginal descent or associated with, or relation to, a person identified on the basis of aboriginality.
  1. [69]
    In circumstances where the context of the admitted conduct does not indicate that the Second Respondent engaged in the conduct 'because of' a presumption that the Complainant was homosexual, this cannot be taken to be a presumed attribute of the Complainant. It is clear from the Second Respondent's testimony that he did not presume the Complainant to be homosexual and accordingly, any claim that he was treated less favourably pursuant to s 8(c) cannot be accepted.
  1. [70]
    Having determined that the Second Respondent did not presume the Complainant to be homosexual, it is not necessary to consider allegations relating to this attribute further in this matter.

Comparator

  1. [71]
    The Complainant claims that, in the course of his work with the First Respondent, he was treated less favourably than a person without his relevant attributes in circumstances that are the same or not materially different.
  1. [72]
    An analysis of 'circumstances that are the same or not materially different' involves consideration of a comparison with a person without the relevant attributes but otherwise in the same position as the Complainant.7
  1. [73]
    The task of identifying an appropriate comparator was considered by O'Connor VP in Curran v yourtown & Anor:[28]
  1. [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 no different from s 5(1) of the DDA. But beyond that likeness, there are differences between the two statutes. 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 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….

…

  1. [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.[29]
  1. [74]
    In relation to the claim of discrimination on the basis of race, the Complainant submits that a real comparator may be used and identified his predecessor Mr Tom as the appropriate comparator.[30] The difficulty with using Mr Tom as a comparator is that he was significantly more experienced in the role than the Complainant and had worked with the Second Respondent for a much longer period of time. A comparison between a contractor with over twenty years' experience, in the case of Mr Tom, with a contractor of less than three years' experience in the case of the Complainant, would not be appropriate as the circumstances are materially different.
  2. [75]
    For the complaint of less favourable treatment on the basis of race, the hypothetical comparator is a contractor to the First Respondent in the pre-delivery yard who is of non-Greek heritage and who has had similar work experience to the Complainant.
  1. [76]
    Regarding the complaint of less favourable treatment on the basis of sex, the Complainant submits that Ms Scott or Ms Fleming could be used as comparators however this is unsuitable.  Ms Scott was a direct employee of the First Respondent rather than a contractor and so was in a situation that was materially different to that of the Complainant. While Ms Fleming was a contractor, there is no evidence before the Commission of the type of contracting work undertaken, her skill level or length of experience. In these circumstances, a hypothetical comparator is appropriate. The appropriate hypothetical comparator for the claim of discrimination on the basis of sex is a woman working as a contractor for the First Respondent in the pre-delivery yard.

Evidence

  1. [77]
    The evidence before the Commission included substantial documentary evidence and the oral testimony of a number of witnesses. I have considered all of the evidence, however have examined the evidence of the Complainant and the Second Respondent most carefully on the basis that those parties were central to the majority of allegations.
  1. [78]
    In assessing the credit of the Complainant and the Second Respondent, I have considered Rush v Nationwide News Pty Ltd (No 7)[31], where Wigney J made the following observations regarding credibility and the reliability of witness evidence:
  1. [309]
    Aside from demeanour, there are other factors or considerations which may assist a judge in determining the credibility of a witness and the reliability of his or her evidence. Those considerations include: whether the witness has previously given an account of the events in question and, if so, whether that previous account is consistent or inconsistent with the evidence given by the witness; the plausibility and apparent logic of the events described by the witness; and the consistency of the account of the events described as compared with other objectively established events. (emphasis added)

Dimitri Michalakellis (the Complainant)

  1. [79]
    The Complainant gave oral evidence at the hearing. As I observed the Complainant give evidence, it was clear that he felt strongly that he had been treated poorly by the Respondents. Whilst I did not consider the Complainant to be dishonest in his evidence, it became apparent throughout his testimony that he was at pains to paint a picture of the Second Respondent's actions as being discriminatory even when the facts did not support this conclusion. This led on occasion to the Complainant embellishing or overstating incidents involving the Second Respondent.
  1. [80]
    The Complainant's combative demeanour in cross-examination and refusal to countenance innocent motives for any conduct reflected an entrenched view that all incidents involving the Second Respondent were motivated by malice or spite. It appeared that the Complainant had never considered that some actions in the workplace that may have inconvenienced or annoyed him were just a consequence of a busy workplace and not because of a deliberate intention to treat him in any particular way. 
  1. [81]
    I note the contents of Schedule B to the Respondents' submissions which outline the extent to which the Complainant had embellished his complaints over time or changed his version of events depending on the purpose of the legal proceedings. Some of these changes were minor and of limited consequence, however others were significant. For example, the allegation of discrimination on the basis of sex was not raised until the Complainant filed his Statement of Facts and Contentions on 16 June 2021 and the allegations of sexual harassment, and direct discrimination and victimisation by the First Respondent were not raised until the Complainant filed closing submissions. Whilst some of these changes are minor, consideration of the totality of the changes over time demonstrates a claim that has not been pleaded in a consistent manner and has evolved over time.  
  1. [82]
    I note that the original allegations made on 9 March 2018 and then 3 April 2018, can be distinguished from how the complaints were framed before the Fair Work Commission, which is different to how the complaints were framed before the ADCQ and then this Commission. I accept the Respondents' submission that the matter has evolved from a complaint that may have amounted to an allegation of unreasonable behaviour, to one which became a discrimination claim only after the Complainant failed to obtain successful outcomes in the other jurisdictions.
  1. [83]
    The Complainant was entitled to pursue actions in any available forum and no adverse finding is made about that conduct. The difficulty for the Complainant, however, is that his claims have not remained consistent throughout. The original discrimination claim filed in the ADCQ did not include allegations of homophobic slurs, allegations of sex discrimination and much less detailed complaints about the Respondents’ alleged conduct. Following the hearing, the Complainant has included additional claims relating to sexual harassment, direct discrimination and victimisation.
  1. [84]
    The Complainant submits that his evidence should be preferred to that of the Respondents because he has been consistent with his complaint from the moment it was made in March 2018. The evidence simply does not support this assertion. The Complainant has consistently claimed the Second Respondent behaved unreasonably, however the claims relating to conduct that could be considered contraventions of the AD Act have emerged over time. The Complainant's failure to provide reasonable explanations regarding the changes to his claims over time reflected poorly on his credibility.
  1. [85]
    The Complainant's credibility was also damaged by his persistent refusal to make reasonable concessions. Examples include his refusal to accept that as a luxury car dealership, the First Respondent had a very high standard of work on the jobs done at pre-delivery;[32] denying that swearing was a regular part of the workshop environment before claiming the following day he had said swear words were used in general language but just not aggressively;[33] maintaining that it was not his responsibility to clean the compound from the boot of the car on 7 March 2018[34] despite telling Mr McGee on 9 March 2018 that he had forgotten to do the inside of the boot when re-cleaning the car.[35] The Complainant did not make reasonable concessions over minor details. For example, the Complainant refused to concede that 3 July 2017 was not 'late 2017'[36] and claimed that 'more than one occasion is a lot of occasions'[37] with reference to a paperwork mistake that only occurred on two occasions.
  1. [86]
    The Respondent submits that the Complainant's complaint was motivated by a desire to obtain security from Brisbane BMW and/or a payout through litigation. The evidence supports an inference that the Complainant was worried about the potential impact of his relationship with the Second Respondent on his business, as demonstrated by his references to the 'power' the Second Respondent had over his livelihood during his phone call with Mr McGee[38]. The Complainant also requested a two-year contract from Mr McGee,[39] confirming that he had sought legal advice which indicated that he had a case, stating, 'But I don’t want to threaten you with any sort of legal action if the correct things are done moving forward.' It seems that the Complainant had become distressed at what he perceived to be a difficult relationship with the Second Respondent and attempted to obtain greater job security by securing a two-year contract. There was nothing inherently unreasonable in the Complainant's conduct in making the request. It does, however, lend weight to the proposition that the Complainant was primarily concerned with his job security in an environment in which the Second Respondent had raised performance concerns and their relationship had deteriorated.
  1. [87]
    The Complainant contends the Second Respondent's testimony was different from how he responded to the Third Respondent and Mr McGee during the investigation of his complaint, from how he instructed his lawyer in the FWC proceedings, from how he instructed his lawyers in relation to letters that they sent to the Complainant, and from the responses that his lawyers filed on his behalf in these proceedings. I find that the examples outlined by the Complainant in closing submissions do not fairly reflect the Second Respondent's testimony and consequently, I am not persuaded that the Second Respondent's testimony was materially different to the instructions given to his legal representatives.
  1. [88]
    On the basis that the Complainant's claim appears to have evolved over time, his failure to acknowledge or explain this evolution and his reluctance to make reasonable concessions generally, I consider the Complainant's evidence to be somewhat unreliable.

Grant Reesby (Second Respondent)

  1. [89]
    The Second Respondent presented as a witness who gave straightforward evidence, albeit in limited scope. The Second Respondent's demeanor could reasonably be described as gruff or brusque, however I found him to give direct and straightforward evidence. I found the Second Respondent to be an honest witness who made reasonable concessions throughout his evidence. For example, the Second Respondent conceded that he made the comment that the Complainants shoes 'look gay', that he called the music the Complainant listened to 'girly', and that he said, 'you'd better have your work boots on tomorrow' and 'no, fuck off. Don't bother coming back'.
  1. [90]
    The Complainant contends that the Second Respondent gave inconsistent evidence. One example included the Second Respondent's testimony that he was told by Mr Aaron Jackson from the dealership that he was not engaging the Complainant any longer due to the poor quality of his work. The Complainant points to evidence in the form of an invoice dated 27 February 2018 as evidence that he had in fact performed work for the dealership after this date. There is no evidence that the Second Respondent would have been aware of every time that the Complainant was engaged by the dealership, and his testimony of the conversation with Mr Jackson was not evidence that the dealership ceased using the Complainant from that date. It was simply his recollection of a conversation with Mr Jackson. Evidence of occasional work from the dealership did not render the Second Respondent's evidence untrue.
  1. [91]
    I do not accept the Complainant's submission that the Second Respondent 'lied' on the Form 18 filed by the Respondents in the Fair Work Commission in which he denied telling the Complainant that he had instructed staff to only speak to the Complainant about work matters. The Second Respondent’s evidence was that he had not ordered, or 'instructed', the staff but had told them that the Complainant did not like banter and after that, it was up to them what they did.
  1. [92]
    The Complainant submits the testimony regarding his grandfather reflects dishonesty on the part of the Second Respondent. The Second Respondent gave evidence of his recollection that the Complainant wanted to visit Greece because his grandfather had died. The Complainant states that he did not say that his grandfather had died, but that he wanted to visit him in Greece. It was clear from hearing the Second Respondent's evidence that he thought the Complainant had made the statement regarding his grandfather's death as the reason for his trip to Greece. In circumstances where there was no benefit to the Second Respondent for stating that the Complainant's grandfather had died, it is most likely that the Second Respondent simply misunderstood the Complainant's comment. Consequently, I am not persuaded that an adverse inference can be drawn regarding the Second Respondent's honesty on this basis. This does, however, reflect the Complainant's tendency to attribute a malicious motive to every action taken by the Respondents.

Allegations

  1. [93]
    The Respondent summarised the following incidents which the Complainant alleges amount to discriminatory conduct by the Second Respondent. Although the Complainant has alleged that particular conduct occurred because of a presumption that he was homosexual, I have found that the Second Respondent did not hold this presumption. Accordingly, claims relating to this attirbuted will not be considered.

Allegation One – The Second Respondent called the Complainant 'fairy features', 'poof', 'homo', 'faggot', 'paint poof' and 'poofter'.[40]

  1. [94]
    The Complainant alleges that from January 2016 to April 2018, the Second Respondent 'regularly and repeatedly' referred to him by these names. The Complainant did not provide evidence of any particular circumstances in which the Second Respondent used these names.
  1. [95]
    In his oral evidence, the Second Respondent denied calling the Complainant 'fairy features', 'poof', 'homo', 'faggot', 'paint poof' and 'poofter'.
  1. [96]
    In the anonymous emails sent from the Complainant's wife, Lucy Michalakellis, no mention was made of the Second Respondent calling the Complainant by these terms.
  1. [97]
    The reference to 'paint poof' was included in the Complainant's Amended Statement of Facts and Contentions, however the reference to 'poofter' was not included in this document. If the term 'poofter' had been used by the Second Respondent, one would expect that it would have been included in this document.
  1. [98]
    On 9 March 2018, the Complainant discussed his complaint about the Second Respondent during a phone call with Mr McGee.[41] As outlined above, I attribute considerable weight to this phone conversation on the basis that the phone call had been pre-arranged as an opportunity for the Complainant to discuss his complaint. I also note that the Complainant had recorded the conversation, indicating it was considered by him at least to be a serious discussion. Despite the conversation taking place over the period of an hour (approximately), the Complainant did not mention to Mr McGee that the Second Respondent had called him 'fairy features', 'poof', 'homo', 'faggot', 'paint poof' and 'poofter'.[42]
  1. [99]
    The first time the Complainant alleged that the Second Respondent called him some of these names was in the Complainant's FWC Applications[43]. In this document, the Complainant alleges that the Second Respondent regularly referred to the Complainant as 'poofter' and 'faggot' to other staff and contractors working at the pre-delivery yard. The Complainant does not state that he witnessed this conduct himself.
  1. [100]
    The first assertion by the Complainant that the Second Respondent called him 'poof' and 'paint poof' occurred on 7 December 2018 in the outline of evidence to be provided by Mr Cameron Helbig.[44] Mr Helbig gave evidence at the hearing that the Second Respondent regularly referred to the Complainant as 'the paint poof'.[45] I approach the evidence of Mr Helbig with some caution on the basis that he had been the subject of a reprimand by the Second Respondent whilst working at Brisbane BMW and had received a number of warnings before being dismissed. Mr Helbig's evidence was brief and did not provide particulars as to the circumstances in which he heard the Second Respondent refer to the Complainant as 'the paint poof'. Neither Mr Helbig nor the Complainant stated that they witnessed the Second Respondent directly calling the Complainant 'paint poof' and no evidence was given about the way in which the Complainant became aware that the term was used.
  1. [101]
    The first time the allegation that Second Respondent called the Complainant 'homo' and 'fairy features' was raised was in the Complainant's further and better particulars document dated 10 March 2019. If these slurs had in fact been used by Second Respondent, one would anticipate that the Complainant would have included them in his documents at an earlier stage. The inclusion of these additional names suggests embellishment of the claim. I am not persuaded that these terms were included only because of the Respondents' request for further and better particulars.
  1. [102]
    In his oral evidence, the Second Respondent denied ever calling the Complainant 'paint poof' and gave evidence that this was in fact the nickname given to the Complainant's predecessor, Mr Paul Tom.

The Second Respondent gave evidence that he had known Mr Tom for approximately 20 years.[46] It is plausible that when Mr Helbig heard the Second Respondent referring to someone as 'paint poof' he was referring to Mr Tom.[47]

  1. [103]
    In circumstances where the Complainant did not give evidence that he heard the Second Respondent use the alleged terms and where the Second Respondent denies ever calling the Complainant these terms, I am not persuaded that this allegation is made out. As noted at [89], I have broadly accepted the Second Respondent's evidence as truthful and note that he has conceded using other language against his interest but not these terms. In those circumstances, the allegation that the Second Respondent called the Complainant 'fairy features', 'poof', 'homo', 'faggot', 'paint poof' and 'poofter' has not been substantiated on the balance of probabilities.

 Allegation Two – The Second Respondent whistled at the Complainant to get his attention.[48]

  1. [104]
    The Complainant alleges that the Second Respondent would whistle at him to get his attention, rather than speak to the Complainant. The Complainant says that Second Respondent did this because the Second Respondent perceived the Complainant to be homosexual.
  1. [105]
    The Complainant stated the following to Mr McGee during his phone call on 9 March 2018:[49]

Complainant:  And then, uhh, I’d get to work, and he'd whistle at me like I’m a dog, you know? Like, I'll be sitting down painting a wheel and I’ll just hear this whistling, so I turned around to look around because, you know, it's odd to hear a whistle out the back of the factory – back of the warehouse. And there he is, whistling and waving at me, like I’m a dog. Like, oh, you know?

Mr McGee:  Yeah.

Complainant:  I don’t want to be treated like that, you know?

  1. [106]
    The Complainant did not state to Mr McGee that he thought the Second Respondent whistled at him because the Second Respondent thought he was homosexual.
  1. [107]
    In the Second Respondent's evidence, he denied whistling at the Complainant and stated, 'I don’t whistle at anybody because I don’t like it being done to me, so I do not do it back to other people'.[50]
  2. [108]
    I am not persuaded that the Second Respondent whistled at the Complainant to get his attention. Even if it was the case that the Second Respondent whistled at the Complainant, the evidence before the Commission does not establish that such conduct would not also have occurred with a hypothetical comparator, nor that such conduct would have occurred 'because' of the Complainant’s protected attributes.

Allegation Three – The Second Respondent made a comment to the Complainant to the effect of 'he could marry his own kind once Australia legalised same sex marriage'.

  1. [109]
    The Complainant alleges in his closing submissions that the Second Respondent made the same sex marriage comment because the Second Respondent presumed the Complainant to be homosexual.
  1. [110]
    I note this allegation was not raised by the Complainant during his telephone discussion with Mr McGee,[51] his FWC Applications,[52] ADCQ Complaint, his original Statement of Facts and Contentions, his Further and Better Particulars, or his Amended Statement of Facts and Contentions.
  1. [111]
    This allegation was put to the Second Respondent in cross-examination at the hearing. The Second Respondent denied the allegation.[53]
  1. [112]
    On the balance of probabilities, I am not persuaded that the Second Respondent made this comment. Even if it was accepted that this comment was made, in circumstances where the Second Respondent did not presume the Complainant to be homosexual, it could not satisfy the legislative criteria that the conduct occur 'because' of the Complainant's protected attributes.

Allegation Four – The Second Respondent repeatedly referred to the Complainant as 'wog' and 'lazy Greek to other staff and contractors of the first Respondent.[54]

  1. [113]
    The Complainant alleges that the Second Respondent repeatedly made derogatory remarks about the Complainant to other staff and contractors based on the Complainant's Greek ethnicity, including referring to the Complainant as a 'wog' and 'lazy Greek'.
  1. [114]
    The Complainant did not raise this allegation during the 9 March 2018 phone call with Mr McGee. The Complainant first made the allegation of being referred to as a 'lazy Greek' in his FWC Applications but did not allege that he had been referred to as a 'wog' until Further and Better Particulars was filed on 10 March 2019.
  1. [115]
    The Complainant did not give any evidence as to the basis upon which he believed the Second Respondent referred to him by derogatory racial names to other staff and contractors. No witnesses were called to give evidence to support this allegation. 
  1. [116]
    The Second Respondent denied[55] calling the Complainant a 'wog', 'lazy Greek', 'lazy wog' or making comments that the Complainant was being a 'typical Greek who was 'lazy'.[56]
  1. [117]
    The Second Respondent gave evidence that the Complainant 'preferred to do just wheels because he could get in and make quick money on them and […] get out'[57] and that he 'tried to get out of painting bumpers, because [he] didn’t like doing it'.[58]
  1. [118]
    Whilst it may be the case that the Second Respondent thought the Complainant was lazy, I am not persuaded that the terms 'wog' or 'lazy Greek' were used.
  1. [119]
    The Complainant's allegation was that the Second Respondent referred to the Complainant as 'wog' and 'lazy Greek' to people other than the Complainant. There is insufficient evidence that this occurred, particularly in circumstances where the person who allegedly heard the references was not called to give evidence. In these circumstances, the allegation cannot be substantiated.

Allegation Five – The Second Respondent ceased eating lunch outside with the Complainant and would not say 'good morning' or 'goodbye' to the Complainant upon beginning and finalising work; 'avoided conversations' with the Complainant, often 'ignored' the Complainant's questions and would not reply to the Complainant's text messages regarding the availability of work.[59]

  1. [120]
    The Complainant alleges that beginning in approximately February 2016, the Second Respondent ceased eating lunch outside with him as he had when the Complainant was contracting with Mr Tom's company and started eating lunch inside the break room instead. The Complainant alleges that the Second Respondent would not say 'good morning' or 'goodbye' to the Complainant upon beginning and finishing work as he did with other employees and contractors.
  1. [121]
    The Complainant contends that this conduct, including avoiding conversations with the Complainant and ignoring his questions, did not occur with employees that the Second Respondent did not perceive as being homosexual and who were not of a Greek ethnicity. The Complainant points to evidence from text messages where the Second Respondent would not reply to the Complainant’s questions regarding the availability of work.[60]
  1. [122]
    The Second Respondent gave the following evidence regarding this matter:[61]

After Paul Tom left I would sometimes go out there, yes, but sometimes I would just keep working and it wasn’t really nice to sit there eating your lunch while spray-paint is getting sprayed around and thinners are being sprayed so – yeah, in the end I didn’t bother. I just went and sat in the lunchroom.

  1. [123]
    The Second Respondent gave evidence that he had known Mr Tom for 20 years,[62] over which time they had developed a friendship.[63] The Second Respondent's decision to eat his lunch with Mr Tom was based upon a long-standing friendship. The Second Respondent did not have this relationship with the Complainant as he had only known him for approximately four months as of February 2016.
  1. [124]
    The appropriate hypothetical comparator is a contractor who was not Greek or who was female and who the Second Respondent had known for approximately four months. Even if the Second Respondent's evidence that the Complainant would often continue spray-painting when the Second Respondent went outside to eat lunch is put aside, no reasonable inference can be made on the evidence that the Second Respondent would have treated a hypothetical comparator differently. The most plausible explanation for the Second Respondent not continuing to eat lunch with the Complainant is that he simply chose to sit away from the spray paint given that he did not have the same relationship with the Complainant as he had with his predecessor Mr Tom. I do not accept that the Second Respondent's conduct in having lunch separately would have been different in circumstances involving a hypothetical comparator who was not Greek or who was female.
  1. [125]
    The Second Respondent gave evidence that his carpark was about 2 metres from his office[64] and that he did not ordinarily walk around the pre-delivery yard saying 'good morning' or 'goodbye' to anyone upon arriving and leaving work.[65] The Second Respondent gave evidence that the Complainant had usually left work for the day before the Second Respondent finished.[66] 
  1. [126]
    The appropriate hypothetical comparator is a female contractor working in the pre-delivery yard who was not Greek and who usually left work before Second Respondent. I accept the Second Respondent's evidence that he did not usually say 'good morning' or 'goodbye' to anyone, including the Complainant, and that he simply went from his carpark to his office. Given that the Second Respondent did not go out of his way to make these greetings with others, it can reasonably be inferred that the Complainant was not treated differently to how a hypothetical comparator would have been treated.
  2. [127]
    This complaint includes allegations that the Second Respondent avoided conversations with the Complainant and would not answer his questions. The Complainant refers to text messages where it is alleged that the Second Respondent did not reply to the Complainant's questions regarding the availability of work.[67] The text messages between the Complainant and the Second Respondent indicates that in the period between 27 January 2016 and 6 April 2018, the Second Respondent did not reply promptly to the Complainant's text messages regarding available work on three occasions.[68] The Second Respondent replied the following morning on one occasion[69] and on another occasion the Second Respondent gave evidence that after receiving the message while driving to work, he spoke to the Complainant upon arriving at work.[70]
  1. [128]
    The documentary evidence simply does not support the claim that Second Respondent often ignored the Complainant’s questions or messages. The documentary evidence indicates that there were only three text messages that were not answered promptly, and this occurred in 2016. The evidence indicates that Second Respondent replied promptly to the vast majority of the Complainant's text messages.[71] The content of the text messages indicate that the Complainant was informed regularly about the availability of upcoming work.
  1. [129]
    The Complainant alleges that the Second Respondent avoided conversations with him in the workplace. The Second Respondent gave evidence that his role was demanding and described working in a 'pressure cooker environment'.[72] The Second Respondent's evidence was that he did  not  have casual chats with the Complainant during the day because he did not have the time,[73] and said that at times, he would 'go around the other door of the workshop' to avoid having conversations with Mr Tom, because 'Mr Tom liked to chat'.
  1. [130]
    On the evidence, there is clearly an innocent explanation for the Second Respondent not regularly having casual conversations with the Complainant at work. The evidence shows that the Second Respondent failed to respond promptly to text messages on three occasions over the course of two years. No reasonable inference can be made that the Second Respondent would not have behaved in exactly the same way in circumstances involving a hypothetical comparator who was female or not Greek.

Allegation Six – The Second Respondent repeatedly called the Complainant 'gay' for the music that he listened to while working.[74]

  1. [131]
    The Complainant alleges that the Second Respondent repeatedly called the Complainant 'gay' for the music that he listened to while working. The Second Respondent's evidence[75]  was that he referred to the Complainant’s music as 'girly'.
  1. [132]
    The Complainant refers to the Second Respondent's evidence that he referred to the Complainant's music as 'girly', noting that the Second Respondent gave evidence that he did not think it was appropriate to mock a woman for the music she listens to:[76]

Complainant:

Do you think it's appropriate workplace conduct to mock a woman for the music that she listens to?

Second Respondent:

No

  1. [133]
    The Complainant submits that the Second Respondent's evidence confirms that he treated the Complainant less favourably than he would have treated a female. The difficulty for the Complainant is that there is no evidence that the Second Respondent considered his comment about the Complainant's music to be mocking. Rather, the Second Respondent's evidence was that the females at pre-delivery engaged in 'banter' and that they were treated the same as the men.[77]
  1. [134]
    I accept the Respondents' submission that 'mocking' someone is an entirely different concept from engaging in 'banter' with someone, with the former considered mean-spirited whilst the latter is good-humoured.
  1. [135]
    The Second Respondent gave evidence that the Complainant had engaged in banter with him, describing him as a 'sheep shagger'[78] because the Second Respondent was thought to be from New Zealand. Although the Complainant accepted that he did engage in banter, he denied using this term.[79] Ms Michalakellis confirmed in evidence that this issue had been raised at the meeting as an example of something the Complainant has previously said to the Second Respondent.[80] It is unlikely that this matter would have been raised in that meeting had it not occurred. I accept that the Complainant used the term 'sheep shagger' in a manner that was part of the usual banter in the workplace.
  1. [136]
    The Second Respondent gave evidence that he previously had referred to Mr Tom's talkback radio station as 'morbid'.[81] I am satisfied that the environment in which the Second Respondent worked included 'banter' between the workers and this banter included opinion on taste in music or radio station preference.
  1. [137]
    I accept that the Second Respondent referred to the Complainant's music as 'girly' however am not persuaded that the same or similar comment would not have been made to a hypothetical comparator who was a female contractor or a non-Greek contractor in these circumstances.

Allegation Seven – For a couple of weeks after 3 July 2017, the Second Respondent repeatedly called the Complainant 'gay' because of the shoes he was wearing.[82]

  1. [138]
    The Complainant alleges that on 3 July 2017 and for a couple of weeks after, the Second Respondent repeatedly called the Complainant 'gay' because of the shoes he was wearing.  The Complainant contends that this was less favourable treatment because the Second Respondent presumed the Complainant was homosexual or in the alternative because the Complainant was male. 
  1. [139]
    The Second Respondent rejected the assertion that he called the Complainant 'gay' however conceded that on one occasion he said that the Complainant's shoes looked 'gay'.[83] The evidence of Cameron Helbig supported the Second Respondent's evidence that he referred to the shoes as gay. Mr Helbig stated in evidence:

And on another instance you wore a pair of brightly coloured trainers or sneakers to work and he referred to them as 'gay'.[84]

  1. [140]
    The Second Respondent gave evidence that he recalled saying to the Complainant, 'Geez, they look gay' followed by, 'Geez, you could hang around, we could turn the lights out and we could save on electricity with the brightness of those shoes'.[85]
  1. [141]
    As noted above at [69], the Second Respondent did not believe the Complainant to be homosexual. 
  1. [142]
    The Second Respondent's evidence was that people at pre-delivery would often joke around and 'banter'[86] with another person, Mr Michael Studley, whom they called 'Fatty' even though he was not fat[87] and Mr Tom called 'paint poof' even though he was not homosexual. The Second Respondent's evidence was that this banter included the female and homosexual members of the workplace and that the Second Respondent would make jokes with Ms Scott and Ms Fleming who would 'joke back'.[88]
  1. [143]
    The appropriate hypothetical comparator is a woman who wore brightly coloured shoes. Given the evidence of the Second Respondent that he also 'bantered' with the females in pre-delivery, I am not persuaded that the Second Respondent would have treated a hypothetical comparator differently.  The simple fact that the Second Respondent had not previously commented on a woman's shoes does not mean that his comment to the Complainant was because of his attribute of being male.
  1. [144]
    The Second Respondent's honest concession that he used this term reflects well upon his credibility. Notwithstanding this concession, the use of this term in this context is objectionable. I am not convinced by the Respondents' submission that because the dictionary definition of the term 'gay' also means 'brightly coloured' or 'brilliant', it was not intended to be a reference to homosexuality. Whilst the Second Respondent's pejorative use of the term may breach workplace policies or industrial instruments, it does not follow that it is direct discrimination in circumstances where the Second Respondent did not presume that the Complainant was homosexual.
  1. [145]
    The Complainant did not provide particulars about the circumstances in which the Second Respondent 'repeatedly' called the Complainant 'gay' because of the shoes he was wearing. Accordingly, I accept the Second Respondent's evidence that he called the Complainant's shoes 'gay' on a single occasion. I am not persuaded that the Second Respondent would not have commented to a female hypothetical comparator wearing similar shoes that her shoes were 'gay'. Even if it could be determined that the Second Respondent treated the Complainant less favourably to a hypothetical comparator, it could not be determined that such treatment was because of the Complainant's presumed sexuality as the Second Respondent did not believe the Complainant was homosexual. 

Allegation Eight – From on or about 10 March 2016, the Second Respondent would not allow the Complainant to charge for 'touch-ups' and the Second Respondent forced the Complainant to reduce the price he charged for 'euro holes'.[89]

  1. [146]
    The Complainant alleges that the Second Respondent told the Complainant that he was no longer permitted to charge for repair of 'euro holes' and 'touch ups'. The Complainant gave evidence that from 16 March 2016 the Second Respondent did not allow the Complainant to charge the First Respondent for touch-ups and that the Complainant was forced to provide them for free.[90]
  1. [147]
    The Second Respondent's evidence was that he could not recall this conversation.[91]
  1. [148]
    The documentary evidence supports a conclusion that the Second Respondent did not prevent the Complainant from charging for 'touch ups'. On 30 August 2016, the Complainant's company issued an invoice to the First Respondent for a service described as 'touch up rear bar'[92] which was approved by the Second Respondent.[93] On 26 June 2017, the Complainant's company issued an invoice to the First Respondent which included a line item named 'touch ups' which was approved by the Second Respondent.[94]  
  1. [149]
    The Second Respondent's evidence was that that the Complainant was allowed to charge for touch-ups 'on occasions'. The Second Respondent stated that 'Quite often touch ups would come out when the detailers buffed the car and it would spit the touch up out so yeah, we just stopped doing them'.[95]  The Second Respondent also stated that following pressure from the Sales Manager to cut costs, the Second Respondent identified touch-ups as an area that he could save costs by purchasing a 'touch-up stick for $50 from BMW' instead of having to pay a sub-contractor to perform the work.[96]
  1. [150]
    There may well have been a conversation about minimising the use of touch-ups in the context of cutting costs, however the evidence suggests that the Second Respondent was still authorising touch-ups on occasions when the Complainant included them in an invoice.
  1. [151]
    There was also evidence of occasions where the Complainant did not charge for touch-ups and included the service as part of a larger invoice.[97]
  1. [152]
    To the extent that the Complainant felt that there was pressure to reduce charging for touch-ups, the logical reason for such pressure was to minimise costs. No reasonable inference can be made that the Second Respondent would have treated a hypothetical comparator of a female contractor or a contractor who was not Greek differently in these circumstances. 
  1. [153]
    Even if it is accepted that the Second Respondent treated the Complainant less favourably than Mr Tom on the basis that Mr Tom was paid for touch-up jobs, there is no evidence that this difference is because of the Complainant’s attributes of being of Greek origin.
  1. [154]
    The Complainant claims that he was told by the Second Respondent that he was no longer able to charge for 'euro holes'. Second Respondent's evidence for this was:

We stopped repairing euro holes as we had the manager come through and he deemed that, 'Most people put euro plates [sic] back on their cars, so don’t fill in the holes'.[98]

  1. [155]
    The evidence supports a conclusion that the Complainant was asked to stop performing the service, not that he was to perform the service and not be paid accordingly.
  1. [156]
    The Complainant submits that invoices documenting his performance of the service demonstrates that he was able to continue after the Second Respondent's direction to cease, however the date upon which the Second Respondent gave the direction is not clear on the evidence.
  1. [157]
    In circumstances where an operational decision was made by a manager to cease repairing euro holes, it cannot be the case that the Second Respondent's relaying of that decision can be considered as treating the Complainant less favourably than the hypothetical comparator who is not female or Greek. This is not discriminatory conduct.

Allegation Nine – The Second Respondent informed the Complainant that he was not entitled to take a day off work on 15 April 2016 to go on a family holiday which the Complainant perceived was a threat to his 'status as a contractor'.[99]

  1. [158]
    The Complainant alleges that on 14 April 2016, the Second Respondent told him that he was not entitled to take a day off work on 15 April 2016 after he informed the Second Respondent that he had booked a family holiday for a weekend on the Gold Coast. The Complainant perceived this to be a threat to his status as a contractor.[100]
  1. [159]
    The Second Respondent's evidence was that he could not recall telling the Complainant that he was expected to work on 15 April 2016. The Second Respondent's testimony was that 'if there was no work there, I wouldn’t expect you to sit around home while your family was off having a holiday' and that the Complainant was 'entitled to a day off. You own your own business'.[101]
  1. [160]
    The Second Respondent previously noted that he did not control the timing of when work came in for the Complainant to complete.[102] The Second Respondent's evidence was that he did not control when the work needed to be done and would simply send a message to the Complainant when his services were required. The Respondents submit that during periods where the Complainant was unavailable, as was the case when the Complainant took holidays,[103] he would engage someone else to complete the work.

The text message evidence indicated that unless a job was urgent, the Second Respondent was indifferent as to whether the Complainant came in the following day or not.[104]

  1. [161]
    The Second Respondent's evidence that he was generally accommodating of the Complainant's schedule is supported by the history of text messages between the Complainant and the Second Respondent:

14 June 2016

Second Respondent at 9.55am:

I have one here. I can wait till tomorrow if you want.

Complainant at 9.56am:

Ok, thank you. If anything urgent comes up let me know and I’ll head in.

15 June 2017

Second Respondent at 11.18am:

Come

Complainant at 11.20am:

Hey mate, just working on a bar at zupps. Need me now or is tomorrow alright?

Second Respondent at 11.32am:

Tomorrow

10 August 2017

Second Respondent at 9.58am:

Hey, the a180 is here now

Complainant at 10.01am:

thanks mate, I've got a few things to do at Ford, I’ll be back in the morning for you

Second Respondent at 10.01am:

Ok

17 August 2017

Second Respondent at 10.19am:

Hey, I have cars to do

Complainant at 10.23am:

Hey mate, just pulled up to another job. I'll be there tomorrow for you. Cheers

Second Respondent at 10.24am:

Ok

  1. [162]
    The Complainant may have felt pressure to remain available for work on 15 April 2016, however I am not persuaded that this was due to any specific direction from the Second Respondent. The Complainant's angst was not dissimilar to that of many sole operators who feel pressure to be available at all times in order to maintain their client base. The Second Respondent made it clear in evidence that he believed the Complainant was entitled to take time off as he owned his own business. The Second Respondent did not contact the Complainant on 15 April 2016 as there was no work for him to do.
  1. [163]
    I am not persuaded that the Second Respondent told the Complainant that he was not entitled to take the day off work to go on holidays with this family. Even if this allegation was substantiated, no reasonable inference can be made from the surrounding circumstances that a hypothetical comparator of a female contractor or a non-Greek contractor would not have been treated in the same way.

Allegation Ten – Demanding the Complainant return to work on 19 April 2016.[105]

  1. [164]
    The Complainant claims that on 19 April 2016, after the Complainant had finished all available work for the First Respondent and while he was at another client's dealership, the Second Respondent called the Complainant and demanded that he return to complete another job. The Complainant alleges that when he said he could not return, the Second Respondent 'threatened' the Complainant's position as a contractor if the Complainant refused his demands to 'drop everything' and immediately return to the First Respondent whenever he ordered the Complainant to do so.
  1. [165]
    The Complainant alleges that this treatment was because the Complainant was Greek and/or male.
  1. [166]
    The Second Respondent's evidence was that he had never threatened the Complainant's position as a contractor for not prioritising the First Respondent's work over the Complainant's other clients[106] and in fact encouraged the Complainant on multiple occasions to expand his business outside of the First Respondent.[107]
  1. [167]
    The Second Respondent stated in evidence that he did not care when the Complainant worked, as long as he got the work done, acknowledging that as a contractor, the Complainant was his own boss.[108]
  1. [168]
    The Second Respondent stated that if a job came in, he would text the Complainant immediately to let him know as this was the process to allow the Second Respondent to keep on top of the allocation of work for all of his contractors. If a job was urgent, the Second Respondent stated that he would let the Complainant know and request that he complete the work urgently,[109] however otherwise he did not care if the Complainant came in the following day or not.[110]
  1. [169]
    Second Respondent's evidence was that he only gave the spay-painting and touch-up work to the Complainant and not to other contractors with the exception of when the Complainant was on holidays.[111]
  1. [170]
    The text message history[112] between the parties indicates regular, cordial exchanges regarding the availability of work after 19 April 2016. This seems at odds with the allegation that a demand was made that he return to complete work and that his position was threatened by the Second Respondent. I am not satisfied that this allegation is substantiated, however even if the direction was given, no reasonable inference can be made that a demand to return to complete work would have been made to the Complainant but not to a hypothetical comparator of a female contractor or a non-Greek contractor.

Allegation Eleven – On 14 July 2016, the Second Respondent raised concerns about the quality of the Complainant's work and threatened the Complainant's position as a contractor.

  1. [171]
    The Complainant alleges that on 14 July 2016:
  • The Second Respondent raised concerns about the quality of the Complainant's work after asserting that the Complainant had done a substandard job on the vehicle, following which the Second Respondent threatened the Complainant's position as a contractor.
  • The Complainant then texted the Second Respondent[113] to explain the situation and the Second Respondent did not reply.
  1. [172]
    The Second Respondent gave evidence that he did not recall this incident,[114] however denies ever threatening the Complainant's position as a contractor.[115]
  1. [173]
    The text messages in evidence indicate that a conversation about a vehicle occurred on or around 14 July 2016. The text messages do not indicate that the Second Respondent threatened the Complainant. The text messages confirm that the Complainant continued to be called in to work by the Second Respondent after this date.
  2. [174]
    I accept that in his role as Pre-Delivery Manager, it was not unreasonable for the Second Respondent to raise concerns about the quality of work if required. This cannot reasonably be interpreted as a threat to the Complainant's position. A reasonable inference from the evidence, particularly the Second Respondent's continued use of the Complainant's services, is that the Complainant's position was not threatened. 
  1. [175]
    In circumstances where concerns were held about the quality of work completed, there is no basis upon which to conclude that the Second Respondent would not have raised these concerns with a hypothetical comparator, being a contractor who was female or a contractor who was not Greek. This was not discriminatory conduct.

Allegation Twelve – From February 2017, the Second Respondent routinely sent the Complainant single word text messages rather than 'communicative' text messages.[116]

  1. [176]
    The Complainant alleges that from February 2017, the Second Respondent routinely sent the Complainant single word text messages rather than communicative text messages that he sent to other workers and contractors.
  1. [177]
    The evidence indicates that the Second Respondent occasionally sent the Complainant single word text messages.[117] It is noted that the Complainant also sent the Second Respondent one word text messages.[118]In the context of the messages sent between the parties, the majority of messages sent by the Second Respondent used more than one word.[119]
  1. [178]
    The Second Respondent gave evidence that the reason he sent short text messages was because he was likely to have been flat out busy[120] and that he also sent one word text messages to others.[121]
  1. [179]
    In circumstances where the Second Respondent occasionally sent one word text messages to the Complainant, I consider it unlikely that he would not have done so to a hypothetical comparator who was a female contractor or a non-Greek contractor. A reasonable explanation of the single word text messages was that it was a factor of how busy the Second Respondent was at the time the message was sent.
  1. [180]
    Whilst it is accepted that the Second Respondent sent single word text messages rather than 'communicative' text messages to the Complainant on occasion, it is not accepted that would not have done so with a hypothetical contractor who was female or Greek. This was not discriminatory conduct.

Allegation Thirteen – In May 2017, after the Complainant informed the Second Respondent that he had ordered a new vehicle, the Second Respondent said the Complainant 'earned too much money'.[122]

  1. [181]
    The Complainant alleges that after he ordered a new vehicle the Second Respondent said that the Complainant 'earned too much money'.
  1. [182]
    The Second Respondent gave the following evidence in cross-examination to the Complainant – I joked with you and said, ''Gee, you must be on a lot of money''.[123] The Second Respondent gave evidence that at that time, the other workers at pre-delivery did not drive nice cars worth more than the Complainant's new vehicle.[124]
  1. [183]
    The Complainant's evidence was that he engaged in banter with other employees[125] and was able to enjoy friendly banter with all the other workers at Brisbane BMW, and that he had never had an issue with the banter before.[126] In circumstances where the evidence was that workers at pre-delivery generally got along and engaged in banter,[127] casual swearing and general 'ribbing'[128] I accept the submission that this statement could not reasonably be considered as anything other than an innocuous comment.
  1. [184]
    The Second Respondent's evidence was that he engaged in banter with most people at pre-delivery, including females.[129] No reasonable inference can be made that in this environment the Second Respondent would not have made the statement to a hypothetical comparator who was a female contractor or a non-Greek contractor. This conduct was not discriminatory.

Allegation Fourteen – On 30 October 2017, the Second Respondent told the Complainant to 'go to spec savers'.[130]

  1. [185]
    The evidence confirms that on 30 October 2017, the Second Respondent texted the Complainant with the message, 'Go to spec savers'.[131] The Complainant states that he implied from the Second Respondent's passive-aggressive text that he was attempting to insult him about the quality of the work that he had performed.[132]
  1. [186]
    The text message exchange between the parties was as follows:[133]

Second Respondent:

Did you touch up the mini paint

Complainant:

Yes

Second Respondent:

Why didn't you use the right colour

Complainant:

The white one? It looked great when I did it.

Second Respondent:

Go to spec savers

  1. [187]
    The Second Respondent gave evidence that his message was a flippant comment and a joke,[134] stating the following:

Why did you sent that text? --- Because the detailer came down to me and – laughing and said you should see the way that Dimitri's painted the bonnet and I said okay. So I came down and the bonnet was a car which had a creamy white colour and the touch ups were done with just white so it really stood out. So I sent Dimitri a text message and asked him if he'd touched up the bonnet to which he replied yes and I said shame you didn't paint it the right colour or something and he said it looked all right to me and I said you should go to Specsavers just in reference to that ad. It was – wasn't meant to be mean or taking any offence to it. It was just a – you know, just a joke.[135]

  1. [188]
    Specsavers, a well-known provider of optometry services, had run television advertisements featuring comedic misjudgments due to poor eye sight. These advertisements did not focus on a specific race or sex, rather on mixed demographics with the common ailment of poor eyesight.  If the same situation was to have arisen with a female contractor or a non-Greek contractor, no reasonable inference could be drawn that the Second Respondent would not have made the same comment. The comment related to the Complainant's eyesight and no submissions were made that poor eyesight is a characteristic of either being female or Greek. The claim that this treatment was different or less favourable due to the Complainant's sex or ethnicity is not accepted.

Allegation Fifteen – The Second Respondent swore at the Complainant on a number of occasions.

  1. [189]
    The Complainant claims that on 15 November 2017, after the Complainant asked to leave work at 1:00pm to attend an ultrasound, the Second Respondent told the Complainant to 'just fuck off and don’t bother coming back'.[136]
  1. [190]
    The Second Respondent gave the following evidence about this event:[137]

Can you recall what he said to you on that occasion? -- Yes. He came in my office and said that he had to or that he was going to the appointment with his wife because she wanted him there and I said, 'Yeah, go. Just go', and then he said to me, 'I’ll come back after the ultrasound', to which I replied no – what did I say? I said, 'NO, fuck off. Don’t bother coming back', if I’m allowed to swear, sorry.

You can say the words you said? -- Yep.

Was that – did – did you say that aggressively? -- No, no, I did not.

How did you intend that comment to be conveyed or what was your tone of voice when you said it? -- I meant don't bother coming back today. Stay – you know, there's no point coming back today. Stay with your wife. It's - you know, if he had the ultrasound at 1 o'clock I think it was, there's no point coming back so I just said, 'No. Don't bother coming back.' There was no – nothing meaning don't come back to work if you’re going to go to your wife's ultrasound. I'd never say that to anybody. We're only fixing cars. You don't get to see an ultrasound every day of the week.

Did Mr Michalakellis return to work after that? -- Yes, he did.

  1. [191]
    The Complainant came back to work the next day after the Second Respondent allocated work to him. If the Second Respondent had not wanted the Complainant to come back, he would not have allocated him further work.
  1. [192]
    The Complainant complained of two other occasions when the Second Respondent swore at the Complainant to get out of his office. The Second Respondent's evidence of these occasions were that at both times he had people in his office discussing personal matters and he had asked the Complainant to leave.[138] The Second Respondent stated that on the first occasion, Ms Scott was in his office discussing personal matters and on the second, it was Mr Daniel Row. The Second Respondent's evidence was that the door to his office was shut although the Complainant would have been able to see that someone else was in the office with the Second Respondent at the time and that the Complainant entered the office without knocking. The Second Respondent stated that he first gestured and then asked the Complainant to leave.
  1. [193]
    The Second Respondent gave evidence that he only swore aggressively at the Complainant once when Mr Row was in his office.[139]
  1. [194]
    The Second Respondent outlined the conversation with Mr Row that was deeply personal.[140] The Second Respondent then described the circumstances where he was talking with Mr Row in his office when the Complainant entered:

Office door again was closed. He approached from the side that he could see that somebody was in there. He approached, walked straight in the door. There are other members of my staff waiting outside because they could see what was happening. He walked straight in and stood by the window. I gestured to him to leave.

When you say gestured, just for the record, you're moving your hands --?

Yes, I was –

-- away from your body --? --Yes. I was going –

-- pointing--? Towards the door.

Thank you? -- He stood there and looked at me and again got the angry look on his face. I said, 'You can leave now', and he still stood there and looked at me. I said, 'Can you get out', and he still stood there and looked at me with an angry look on his face and that was when I said, 'Get the fuck out of my office now'.

  1. [195]
    The Second Respondent admitted that he swears when he gets angry and frustrated[141] and Mr Gibson gave evidence that the Second Respondent told Mr Gibson to 'fuck off' 'quite frequently'.[142]
  1. [196]
    It is clear that the Second Respondent's comment to the Complainant prior to his leaving to attend the ultrasound was not said aggressively. The Second Respondent has admitted when he swore aggressively, and I accept his evidence that that was not the case on this occasion. Even if it were taken as so by the Complainant, I am not persuaded that the Second Respondent would not have said the same thing to a hypothetical comparator being a contractor who was female or not Greek in the same or similar circumstances.
  1. [197]
    The Complainant submits that workers and contractors regularly needed to enter the Second Respondent's office to obtain paperwork and car keys that were vital to them performing their work. The Complainant contends that he was the only contractor or worker who the Second Respondent told to 'fuck off' in an aggressive way. Undoubtedly, this was because he was the only contractor refusing to leave whilst a sensitive conversation was happening between the Second Respondent and Mr Row.
  1. [198]
    With respect to the Second Respondent's comments to the Complainant in his office, a reasonable inference is that if a hypothetical comparator entered the Second Respondent's office without knocking when the door was shut whilst another worker was having a personal discussion with the Second Respondent and did not leave after being gestured to do so, the Second Respondent would have responded in exactly the same manner.
  1. [199]
    The Second Respondent's use of swear words on occasion was undoubtedly inappropriate, but it cannot reasonably be inferred that it was discriminatory or directed at the Complainant because of his protected attributes. 

Allegation Sixteen – In December 2017, the Second Respondent pointed to a cockroach and said, 'there's one of your kind'.[143]

  1. [200]
    The Complainant alleges that in December 2017, the Second Respondent pointed to a cockroach and said 'there's one of your kind'.[144]
  1. [201]
    The Second Respondent denies ever referring to the Complainant as a 'cockroach'.[145] The Second Respondent denied this allegation when it was first put to him by Mr McGee in April 2018.[146]
  1. [202]
    When the Complainant first raised this allegation during his phone call with Mr McGee on 9 March 2018, the Complainant told Mr McGee that he considered it to be a joke.[147]
  1. [203]
    I am not satisfied on the evidence before me that the conduct occurred. In circumstances where the Second Respondent has made other concessions freely and sought to explain his conduct,[148] it would seem that had this comment been made, the Second Respondent would make such an admission in order to explain the context.
  1. [204]
    If it was the case that such a comment was made by the Second Respondent, no reasonable inference could be made that the Second Respondent would not have directed the same or similar comment to a hypothetical comparator of a contractor who was female or not Greek. There is no evidence before me of how a cockroach may reasonably be considered as a characteristic or associated with any particular race or sex.

Allegation Seventeen – On 15 January 2018 the Complainant received an 'angry phone call' from the Second Respondent asking why the Complainant was not at work, in circumstances where the Complainant says he had no notice that he needed to be at work.[149]

  1. [205]
    The Complainant alleges that he received an angry phone call from the Second Respondent asking why the Complainant was not at the pre-delivery yard for work, to which the Complainant responded that he had not received any notice of work.
  1. [206]
    The Respondents denied this allegation in their Amended Response to the Complainant's Amended Statement of Facts and contentions.[150] This allegation was not put to the Second Respondent at the hearing.
  2. [207]
    I am not satisfied that this allegation is substantiated. If it were the case that the Second Respondent engaged in the conduct as alleged, there is no reasonable inference that may be drawn that the conduct was because of the Complainant's attributes. Even if it were the case that such a call was made, there is no evidence to support a conclusion that the call would not have been made to a hypothetical comparator indicating that the Complainant was not treated less favourably.

Allegation Eighteen – On 14 February 2018 the Complainant was required to prioritise Brisbane BMW, with the Second Respondent threatening to cease using the Complainant's services.[151]

  1. [208]
    The Complainant alleges that on 14 February 2018, after completing his work and leaving pre-delivery, the Second Respondent called the Complainant and asked him to come back to complete more work. When the Complainant said he could not return because he had another job, the Second Respondent allegedly 'threatened that he would find another contractor to complete the work' and hung up on the Complainant. The Complainant claims that he returned to complete the job only to find it was not urgent. The Complainant left again and received a further three phone calls from the Second Respondent during which, the Second Respondent said words to the effect that 'you’d better have your work boots on tomorrow'.[152]
  1. [209]
    The Complainant first raised these allegations during the phone call between the Complainant and Mr McGee. In this phone call, the Complainant stated that he had a large job to complete at a different dealership and the Second Respondent called him four times during the day requesting he return to Brisbane BMW. The Complainant stated that he told the Second Respondent 'Grant, I’m busy, I can't come back'[153] during the phone call. The Complainant did not state that the Second Respondent had demanded that he turn around immediately, otherwise he would find another contractor or that the Second Respondent had hung up during a phone conversation.
  1. [210]
    The Complainant submits that this was not the 'lone occurrence', however no evidence was given of other occasions on which similar conduct had occurred. The Complainant also submitted that Mr Tom had been allowed to work for other clients without intrusion, however no evidence was given of Mr Tom's work for other clients.
  1. [211]
    The Second Respondent  recalled a single incident when he called the Complainant three or four times while he was doing work for another client,[154] however denied ever threatening the Complainant's position as a contractor if he did not return to Brisbane BMW to complete an urgent job.[155] The Second Respondent  gave evidence that it was standard practice for him to call or text all contractors, including the Complainant, on multiple occasions in a day to let them know of their workload, allowing them to plan ahead.[156]
  1. [212]
    The Second Respondent admitted that he would naturally want contractors to give Brisbane BMW some priority to ensure that work was being done but he understood that the Complainant was 'his own boss' and there was no agreement or requirement that he work solely for Brisbane BMW.[157] The Second Respondent encouraged the Complainant to expand his business and told him words to the effect of 'you can’t have all your eggs in one basket'.[158]
  1. [213]
    I accept that the purpose of the various phone calls was to coordinate an urgent job however I am not persuaded that the Second Respondent threatened to cease using the Complainant's services if he did not return to work.
  1. [214]
    The Second Respondent admitted saying 'you’d better have your work boots on tomorrow' which he described as a general saying he used when there was a lot of work to do the next day.[159] This comment is a common phrase indicating that there is a lot of work to be done or that the next day would be very busy. The Complainant's perception that the Second Respondent was insinuating he was lazy due to his Greek heritage is completely unfounded. In circumstances where the Second Respondent denied that he thought the Complainant was lazy or that he was not a hard worker,[160] it is unclear why the Complainant thought that the comment reflected either his work ethic or his ethnicity. I am not persuaded that the Second Respondent threatened the Complainant's position as a contractor, however, even if this were the case, no reasonable conclusion can be made that a similar conversation would not have been had with a female contractor or a non-Greek contractor. The Second Respondent did call the Complainant three or four times while he was doing work for another client and did tell the Complainant 'you better have your work boots on tomorrow'. However, there is no reason to believe this conduct would not have occurred with a hypothetical comparator or anyone else in the workplace.
  1. [215]
    There is no basis to conclude that a hypothetical comparator being a contractor who was female or non-Greek would not have been treated in the same manner as the Complainant.

Allegation Nineteen – The Second Respondent texted the Complainant to come into work when there was no work available.

  1. [216]
    The Complainant claims that on 19 February 2018, the Second Respondent texted him to inform him of available work the next day. The Complainant states that he arrived at work at approximately 5.30 am on 20 February 2018 to find that there was no work for him to do. The Complainant states that he called the Second Respondent who did not answer and after the Second Respondent arrived at work at approximately 6.30 am, denied messaging the Complainant and sent him away. The Complainant claimed that he left and subsequently received a call from the Second Respondent who said he had found the car the Complainant was meant to work on and asked him to come back.[161]
  1. [217]
    The Complainant further claims that the Second Respondent would text the Complainant 'on a lot of occasions' to advise of work available when there was no work available.[162]
  1. [218]
    The evidence indicated that on two occasions, the Second Respondent sent a text message to advise the Complainant of work in circumstances where there was no job on which he could immediately commence working. One of those occasions was due to the mistake of another contractor.[163]
  1. [219]
    The Second Respondent recalled one occasion where the Complainant had arrived at work before him and there were two orders on the tray. The Second Respondent's evidence was  as follows:[164]

... there were two orders in the tray. One was for a windscreen to be fixed. The other was for [the Complainant] to fix something on the car of which I don't recall whether it was wheels or bumper. I got there and [the Complainant] said to me, 'There's no order here for me'. And I said, 'Yes, yes, there is. I printed it out last thing last night'. Went into the office and the windscreen one was there and I could see that there was the windscreen invoice. So I put two and two together knowing that the – well, the windscreen guy has obviously been. So right in front of [the Complainant] I rang the windscreen guy and said, 'What's the name of the business on the order that you've got?' And he said, 'I’ve picked up the wrong order. Sorry'. So I fixed that while [the Complainant] was standing there. Probably took all of five minutes, if that…

  1. [220]
    When this explanation was put to the Complainant, he agreed with the Second Respondent's recollection of the incident:[165]

And you emailed him the day before because you got to work and there was no order there for you? --- Correct

That's accurate? And you had assumed that that was [the Second Respondent’s] fault, hadn't you --- Yes

And then it turned out it was the windscreen contractor that had taken your order by mistake? --- Yes, that's right.

That's correct? --- Yes.

And so you had emailed Josh to tell him there was a problem when you made the assumption that [the Second Respondent] had called you in when there was no work; that's right? --- Correct.

And then you emailed him to correct the record that that wasn't [the Second Respondent's] fault? -- Correct.

  1. [221]
    The Second Respondent denied that he deliberately contacted the Complainant to advise work was available when work was not available.[166] The evidence suggests that on one occasion, the Complainant was notified of work in circumstances where there was no work order which the Second Respondent contends was an error.
  1. [222]
    I accept the Respondents' submission that in circumstances where the Second Respondent managed and coordinated work between fifteen employees and four contractors, it was entirely reasonable to conclude that the one occasion where the Complainant was notified of work when there was no such order was the result of a genuine mistake. 
  1. [223]
    When compared with the hypothetical comparator of a female contractor or a contractor who was not Greek, I am not persuaded that the Second Respondent would have behaved differently. No reasonable inference may be made on the evidence that the Second Respondent intentionally called the Complainant into work when he was not required because of the Complainant's attributes.

Allegation Twenty - On 21 February 2018, the Complainant left the yard after the Second Respondent told him there was no more work for him to do. The Second Respondent called the Complainant to advise him of more work and when the Complainant said he could not return to the yard until tomorrow, the Second Respondent was angry and threatened that the Complainant would need to make sure he was at work early the next day to complete the work.

  1. [224]
    The Second Respondent's evidence was that on the day before this incident, the Complainant had committed to completing a job on the car with Mr Gary Kable, who was responsible for coordinating new cars at pre-delivery.[167] The Second Respondent stated that the Complainant instead decided to go home without having completed the work and advised the Second Respondent the following day that he did not return to complete the job because he was dealing with issues relating to his compressor.[168] The Second Respondent recalls asking the Complainant why he could not do the job yesterday when it was not raining.[169] The Second Respondent denied threatening the Complainant but admitted that he told the Complainant that the job needed to be completed early the next day.[170]
  1. [225]
    The Second Respondent gave evidence that there was urgency around the job because it was a new car that had gone out to a customer and had to come back to Brisbane BMW. 
  1. [226]
    It appears that the Second Respondent was unhappy that a job that the Complainant had committed to doing had not been done despite the urgency. The Second Respondent's actions in asking why the job had not been completed and requesting that the Complainant return early the next day to complete the work was a reasonable direction to ensure urgent work was completed. There is no evidence upon which to reasonably infer that the Second Respondent would have treated a hypothetical comparator, being a female contractor or a non-Greek contractor, differently in similar circumstances.

Allegation Twenty-one – On 22 February 2018, the Second Respondent forced the Complainant to complete work on a new vehicle inside the workshop because it was raining that day.  The workshop had 'insubstantial lighting'. When the Complainant objected to completing the work, the Second Respondent said to effect 'stop being lazy' and 'stop making excuses'. The Complainant completed the job but received an 'inevitable' complaint regarding the quality of his work.[171] The Second Respondent blamed the quality issues entirely on the Complainant.

  1. [227]
    The Second Respondent admitted saying words to the effect of 'stop making excuses' when the Complainant advised that he could not do the work because it was raining, however denied telling the Complainant to 'stop being lazy'.[172] The Second Respondent gave evidence that he made room inside the workshop for the Complainant to do the work.[173]
  1. [228]
    The Second Respondent gave evidence that because the Complainant did not complete the work when he said he would, they were not able to consider other options such as replacing the bumper with one off another vehicle.[174] The Second Respondent denied telling the Complainant that he needed to ensure the work was of a perfect standard.
  1. [229]
    The Complainant gave evidence that it was not advisable to paint cars when it rained even if it was undercover because of the humidity and moisture in the air.[175]
  1. [230]
    The Respondents submit that it was the requirement of the Complainant's work to complete work when it rained (but not outside in the rain) given the frequency of rain in Queensland.
  1. [231]
    The Complainant's evidence was that he ultimately preceded with the job but did so 'begrudgingly'[176]. The Complainant stated that due to the insubstantial lighting and limited protection from other elements, the quality of the fresh paint on the bumper was affected leading to a complaint regarding the work. The Second Respondent stated that the Complainant did a good paint job, however as a consequence of being upset and rushing through the work, he did not paint the bumper from edge to edge as he would ordinarily do. The consequence of this was a noticeable difference between the Complainant's paintwork and the paintwork already on the vehicle. This was the subject of the complaint.[177]
  1. [232]
    The Complainant compares his treatment to that of his predecessor, Mr Tom, with respect to this allegation, with the Complainant stating that Mr Tom was not directed to paint out in the rain.[178] The difficulty with this submission is that it is clear that the Complainant was also not directed to paint out in the rain, instead, arrangements were made for the Complainant to complete the urgent work in the workshop.
  1. [233]
    When compared to a hypothetical comparator, being a female contractor or a contractor who was not Greek, no reasonable inference can be drawn that the Second Respondent  would have treated the comparator less favourably in circumstances where he had urgent work to be completed. The reason the Complainant was required to complete the work in the workshop was because it was raining and the work was urgent, not because of the Complainant's race or sex.

Allegation Twenty-two – On 7 March 2018, the Second Respondent sent the Complainant an abusive text message threatening the Complainant's position as a contractor after the Complainant left polishing compound in the boot of a car. The text message stated, ‘If you don't want to be here just tell me'.[179]

  1. [234]
    On 7 March 2018 the Complainant left cutting compound in the boot of a car after he had finished his second attempt at completing his work on the car. The Complainant told Mr McGee on 9 March 2018 that the cutting compound flipped everywhere so he wiped the car with a cloth and inside the boot.[180]
  1. [235]
    The Second Respondent gave evidence that the Complainant was having trouble painting the bumper correctly, and so had to redo the work three or four times.[181] The Second Respondent walked out the back later in the day to find that the Complainant had already left. After determining that it was too late to have the vehicle detailed, the Second Respondent decided that he would take that car home over the weekend. The Second Respondent opened the boot and found that it was covered in 'bog dust and water', noting that the 'buffing compound has come off the rotating part and flung into the boot of the car'.[182] The Second Respondent stated that it was the responsibility of the Complainant to clean up after his own work and that he did not consider it acceptable to leave the car in that condition.
  1. [236]
    The Complainant gave evidence that it was not his responsibility to have cleaned the boot of the car and that it was acceptable to leave the car with compound in the boot.[183] I note that this was inconsistent with the evidence the Complainant gave that he cleaned up following his first attempt to complete the job but had forgotten to do so on the second occasion.
  1. [237]
    The Second Respondent took photos of the condition of the car and sent the photos to the Complainant along with a message stating 'If you don't want to be here just tell me'.[184]
  1. [238]
    The Second Respondent denied ever threatening the Complainant's position as a contractor or that the text message was abusive. The Second Respondent's evidence was that he viewed the condition of the car to be an indication that the Complainant did not want to be there.[185]
  1. [239]
    The Complainant sent the following response to the Second Respondent:[186]

Yeah. Sorry about that. To make up for it, I'll cancel my invoice for that vehicle. Please accept my apologies.

  1. [240]
    I note that later that day, the Second Respondent sent a message to the Complainant to notify him that there was work for him the following day.[187]
  1. [241]
    I consider the Complainant's evidence that it was not his job to clean out the compound to be disingenuous. It is clear that it would normally form part of his job, as indicated by the fact that he had cleaned it after his first few attempts at the job. One could reasonably accept the Complainant's actions in cancelling his invoice as confirmation that the Complainant accepted that it was in fact his job to clean out the compound. In these circumstances, it was not unreasonable for the Second Respondent to question whether the Complainant did in fact want to be there.
  1. [242]
    The message from the Second Respondent could not reasonably be interpreted as threatening the Complainant's position. It appears that a simple comment regarding the Complainant's mistake has been erroneously interpreted by the Complainant as threatening despite no evidence to support such an interpretation. The fact that the Complainant was offered further work within a matter of hours should have allayed any concerns the Complainant had in this regard.
  1. [243]
    The Second Respondent's text message could not reasonably be considered threatening, particularly in circumstances where the Complainant understood that it related to the poor quality of his work. No reasonable inference can be drawn from these facts that a hypothetical comparator who was a female or non-Greek contractor would have been treated any differently by the Second Respondent in the same or similar circumstances. 

Allegation Twenty-three – the Complainant was paid less than Superfinish Express for providing the same service.

  1. [244]
    The Complainant submits that Brisbane BMW paid him less than the operator of Superfinish Express for providing the same service. The Complainant contends that this demonstrates that he was treated less favourably than his successor by paying him at a below-market rate for the discriminatory reasons outlined. The Respondents concede that Superfinish is currently being paid more for repainting bumpers and wheels than the Complainant was in the period 2016 to 2018. The Complainant referred to a specific example of Superfinish charging two hundred and forty dollars for each 'right-hand front bumper bar damage' and 'repair right-hand front and left-hand rear' in March 2019 as compared with the one hundred and fifty dollars the Complainant charged for a 'a small section of a rear bar' in December 2015.[188] I accept the Respondents' submission that it is not reasonable to compare prices charged in 2015 for a particular service to pricing in 2019 for a different service. This evidence cannot reasonably be relied upon as demonstrating differential treatment. 
  1. [245]
    I also note the evidence that the Third Respondent gave in response to a question as to whether paying a worker less than another worker doing the same job in the same workplace is less favourable treatment:[189]

It depends on the skill level of that person. You can have a mechanic paid at $28 and you can have another mechanic paid at $36 because of his level of skill. It’s the same with detailers, it's the same with painters, it’s the same with panel beaters.

  1. [246]
    The Second Respondent's evidence was that he did not complain to the Complainant about his prices or restrict the amount the Complainant could charge.[190] On one occasion, the Second Respondent states that he confronted the Complainant for not notifying him of an increase in his prices because the Second Respondent had already quoted a car based on the Complainant's former prices.[191]
  1. [247]
    The Complainant was paid the amount he charged for his services. As the Complainant set his own prices, one can reasonably assume these were at market rates. When he withdrew his services, the Respondent then paid Superfinish Express the price they charged for their services. If the market rate had increased, which invariably would happen over time, it is to be expected that the rate for these services would be higher. The evidence does not support a finding that the Complainant was paid below-market rates for his work.

Direct Discrimination –Third Respondent

  1. [248]
    The Complainant alleges that the Third Respondent discriminated against him on the basis of his Greek heritage.
  1. [249]
    It is not entirely clear what the Complainant alleges amounted to differential treatment by the Third Respondent. It appears that the claim is related to the alleged comments made by the Third Respondent during the 3 April 2018 meeting that took place between the Complainant, Ms Michalakellis, Mr McGee and the Third Respondent. The Complainant alleges that the Third Respondent told the Complainant that he should 'toughen up' and have 'thicker skin' because he was Greek; that the Complainant was being 'overly sensitive' and 'soft'; that the Complainant should be 'strong' and 'toughen up' to handle the Second Respondent's alleged behaviour due to the Complainant's Greek heritage; and that the Complainant should 'be a real man like his resilient Greek ancestors'.
  1. [250]
    The Complainant first referred to his claim that the Third Respondent told him that he needed to 'be a real man like his resilient Greek ancestors' in his written closing submissions.[192] I note that this allegation was not put to the Third Respondent at the hearing, denying the Third Respondent an opportunity to respond to the allegation. In circumstances where the Third Respondent admitted to describing Greek people as 'resilient', as confirmed by Ms Michalakellis,[193] this allegation appears to be an attempt to overstate the reference to ethnicity to fit within a claim for discrimination on the basis of race.
  1. [251]
    The evidence given by the Complainant regarding the 3 April 2018 meeting is inconsistent. The Complainant stated that during the meeting, Mr McGee told him that the Second Respondent 'denied ever calling me gay, wog or cockroach' before confirming that he had not complained about the Second Respondent calling him 'wog' prior to the meeting. I do not consider the Complainant's recollection of the meeting reliable.
  1. [252]
    The Third Respondent accepted that he had commented on the Complainant's Greek heritage and the resilience of the Greeks at the meeting on 3 April 2018.[194] Mr McGee's recollection of the meeting was similar to that of the Third Respondent.
  1. [253]
    The Complainant's wife, Ms Michalakellis, gave evidence that she recalled the Third Respondent saying words to the effect that 'Greeks were strong and resilient and encouraged [the Complainant] to be the same because of his Greek heritage'.[195]   
  1. [254]
    The Third Respondent denies telling the Complainant that he should 'toughen up' in relation to the Second Respondent's banter, have 'thicker skin' , or that he was 'soft' or being 'overly sensitive'. Mr McGee denied hearing the Third Respondent make the alleged comments during the meeting. Further, Ms Michalakellis gave evidence that the Third Respondent did not say the Complainant was 'soft'.[196]
  1. [255]
    On the basis that the Third Respondent's evidence is broadly consistent with that of Mr McGee and the Complainant's wife, and my view that the Third Respondent gave honest and straightforward evidence, I do not accept that the Third Respondent called the Complainant soft or said that he needed to toughen up.
  1. [256]
    It is clear that the Third Respondent said words to the effect that Greek people are strong, tough or resilient. Mr Gibson gave evidence that he made the statement to boost the Complainant's morale as he believed he had suffered a loss in the family.[197]
  1. [257]
    The Complainant submits that the Third Respondent's remarks were discriminatory because he indicated that the Complainant was failing to live up to his Greek heritage, while his Australian colleagues were not held to the same standard based on their status as native Australians.
  1. [258]
    The Third Respondent states that he said words to the effect that Greeks are 'resilient' and 'strong' after the Complainant had advised he had just been in Greece due to a family bereavement. The Third Respondent observed during the meeting that the Complainant appeared upset and so made these comments to boost the Complainants morale.

The Complainant accepted that he mentioned during the 3 April 2018 meeting that he had been on holidays to Greece to visit his grandfather. Mr McGee recalls the Complainant mentioning that he returned from Greece and that a family member had passed away. It was in this context that Mr McGee recalls the Third Respondent saying words to the effect of Greek people are known to be 'strong' and 'resilient'.

  1. [259]
    The Complainant's evidence was that the Third Respondent did not state that Greek people are tough and resilient, however he later conceded that there was mention of 'strength' and there might have been a mention of 'resilience'.[198]
  1. [260]
    After listening to the Third Respondent give evidence, I am persuaded that he gave an honest account of the conversation. He did not attempt to sanitise his comments and readily admitted that he made references to the Complainant’s ethnicity.
  1. [261]
    On the evidence, it is clear that the Third Respondent considered that the Complainant was upset and made a comment about the Complainant's Greek heritage in the context of Greeks being 'strong' and 'resilient' as a form of encouragement to the Complainant.
  1. [262]
    It is accepted that conduct in the form of comments can be considered less favourable treatment.[199] However, it is not the case that words constitute unlawful discrimination where a person interprets them as patronising, insulting, offensive, insensitive, bad mannered or politically incorrect unless less favourable treatment is proven to the requisite standard.[200]
  1. [263]
    In considering circumstances in which comments may constitute less favourable treatment, I note the decision in Moffatt on behalf of Saunders v Whittaker and Medihelp Services Pty Ltd ('Moffat').[201] In Moffat the Respondent's discussions regarding the 'thickness of skulls of Aboriginal people' and 'full-bloodedness of [the Applicant] and her child' were not considered less favourable treatment.
  1. [264]
    I note the consideration of Member Keim in Moffatt who considered that it is 'unlikely that the objects of the Act are to be advanced by prohibiting discussion of various aspects of the culture and experience of a person from a particular ethnic or cultural background with that person.'[202] Whilst the Third Respondent's comments may not fall into the same category as discussions about 'culture and experience', neither can they be considered as calculated to humiliate or demean an employee by reference to race.[203]
  1. [265]
    The Third Respondent's comments formed part of a discussion in which the Third Respondent mentioned the strength and resilience associated with the Complainant's cultural background. The admitted remarks were in reference to positive aspects that the Third Respondent associated with Greek culture. Whilst these comments may have been racially stereotypical and clumsy, it seems to me that they were made in an attempt to support the Complainant.
  1. [266]
    I accept that when compared with a hypothetical comparator of a contractor who was not Greek, the Third Respondent would not have made similar comments. Whilst this is evidence of different treatment, it has not been demonstrated that it was less favourable treatment. Less favourable treatment requires detriment to be suffered on the part of the Complainant.[204] The nature of the terms used were not inherently offensive and they did not cause any loss or detriment to the Complainant. One could certainly question whether comments of this nature are appropriate when managing a workplace complaint, however poor management does not demonstrate discrimination. I am not persuaded that the Third Respondent's comments constitutes less favourable treatment.
  1. [267]
    The Complainant did not demonstrate that the Third Respondent's comments were discriminatory.

Victimisation

  1. [268]
    The Complainant alleges that Mr McGee and the Second and Third Respondents engaged in victimisation following the making of his complaint.
  1. [269]
    Section 129 of the AD Act prohibits victimisation and s 130 defines the meaning of victimisation. To demonstrate victimisation, the Complainant must discharge his onus to establish that the Second Respondent and Third Respondents acted or threatened to act to the Complainant's detriment because he alleged that the Second Respondent committed an act that would amount to a contravention of the AD Act.
  1. [270]
    As determined in [52], I do not consider it fair or reasonable to allow an allegation against Mr McGee for victimisation to proceed in circumstances where such an allegation was not made in any version of the Complainant's filed documents or raised at the hearing.
  1. [271]
    In Sivananthan v Commissioner of Police, New South Wales Police Service,[205] it was held that detriment means loss, damage, or injury to the person. It must be 'real and not trivial' and something that a reasonable person would consider to be detriment.[206]
  1. [272]
    As considered in Bero v Wilmar Sugar Pty Ltd,[207] the Complainant must establish the following elements to prove victimisation has occurred:
  1. [150]
    … Firstly, the First Respondent did something or threatened to do something. Secondly, that what the First Respondent did was to the detriment of the Applicant. Thirdly, there is a causal nexus between any detriment suffered by the Applicant and the matters stated in section 130 of the Anti-Discrimination Act.

Victimisation complaint against the Second Respondent

  1. [273]
    The Complainant's allegations of victimisation against the Second Respondent can be summarised as the Second Respondent:
  • implied that ongoing work at BMW was at risk because of the complaint;
  • was dismissive of the complaint against him;
  • directed BMW staff and contractors working at the lot to socially isolate the Complainant;
  • imposed a higher standard of work product without a commensurate increase on income; and
  • repeatedly misinformed the Complainant as to his workload, resulting in a loss of income and an increase of his costs.
  1. [274]
    The Complainant's Amended Statement of Facts and Contentions included a further claim that on 23 March 2018, the Complainant's work on the rear bumper of a black BMW was inspected by the Second Respondent and another employee, and a torch was used to reveal small imperfections.[208]
  1. [275]
    The Complainant states that he informed the Second Respondent that the work was completed to a reasonable standard and he could not improve it, and the Second Respondent replied by threatening the Complainant's position as a contractor.[209]

Meeting on 4 April 2018

  1. [276]
    The Complainant attended the pre-delivery yard with a carton of beer for the Second Respondent on 4 April 2018 and states that he did this due to the threats from the Third Respondent regarding his position as a contractor as he had upset the Second Respondent.[210] The Complainant claims that the Second Respondent mocked him by calling him a 'keyboard warrior' and told him he had wasted everybody's time for making the complaint. The Second Respondent is then alleged to have threatened the Complainant's position and told him he would be increasing scrutiny on his work and not allowing him to increase the price of work in line with an increased expectation in quality.[211]
  1. [277]
    The Second Respondent admitted in evidence that he had called the Complainant a 'keyboard warrior' and said he was wasting everyone's time with the complaint. The Second Respondent's evidence of the conversation with the Complainant was as follows:[212]

He said that he wasn't aware of – of the emails and that it was just his wife and that she was pregnant and that she was just hormonal, so don't worry about it. And I said to him, 'Well, you know, why didn't you come to me and talk to me about it? And we could have settled this whole thing rather than involving other people and wasting other people's times and being a keyboard warrior. Why didn't you just come and talk to me?'.

  1. [278]
    In reference to the use of the term 'keyboard warrior', The Second Respondent gave the following evidence:[213]

I didn't mean it as an insult. What I meant was just sitting behind a keyboard typing out a – a complaint. To me if I had a complaint about somebody I’d go up to them and say, 'Hey, mate, you know, calm your farm and stop doing that'.

  1. [279]
    The Complainant refers to the definition of the term 'keyboard warrior' from the website 'writerswrite.com' as 'a keyboard warrior is someone who acts so tough online but is a coward away from their computer. The term is derogatory, and it is meant as an insult.'[214]
  1. [280]
    The Respondents refer to the Macquarie Dictionary definition for a keyboard warrior as 'a person who adopts an excessively aggressive style in online discussions which they would not normally adopt in person-to-person communication, often in support of a cause, theory, world view, etc.'[215]
  1. [281]
    I accept that the Complainant took offense to the Second Respondent's use of the term 'keyboard warrior'. However, I do not accept that this was the cause of any detriment to the Complainant in the form of loss, damage or injury. The evidence indicates that the Second Respondent was upset that the Complainant did not speak to him before complaining to management first and his response reflected this view. This comment could not reasonably be considered to have been said to victimise the Complainant.
  1. [282]
    The Complainant initially claimed that at the meeting on 4 April 2018, the Second Respondent told him that he had always been loyal to him and that he should not have complained. However, in the Complainant's further and better particulars this allegation evolved to claim that the Second Respondent had threatened to cease using the Complainant's services by 'no longer remaining loyal'[216] to him.
  1. [283]
    The Complainant submits that the Second Respondent's actions in telling him that he would no longer resist pressure to replace him and no longer be loyal to him constituted victimisation.[217]
  1. [284]
    The Second Respondent's evidence under cross-examination regarding this meeting was as follows:

So you were disappointed that a complaint had been made about you to Martin Roller, weren't you? – I'd be disappointed that a complaint was made to me – to anyone, whether it was to Martin Roller or anybody.

On the meeting of the 4th of April 2018 you told me that you weren't going to resist pressure from others to replace me as a contractor, didn't you? -- I can’t remember the date but yes ---

Yes? --- I did.

So you told me that you were no longer going to remain loyal to me, didn't you? -- No, I did not.

  1. [285]
    The Second Respondent's evidence in chief was as follows:

Did you threaten his position as a contractor in that meeting? --- No, I did not.

Did you say that you would increase scrutiny on his work? --- No, I did not.

  1. [286]
    In circumstances where the Second Respondent advised the Complainant of further work on the day after the meeting and the Complainant was also called into work after the Second Respondent went on holidays, the evidence does not support a finding that the Second Respondent stated that he would not remain loyal to the Complainant.
  1. [287]
    The Second Respondent's comments regarding resisting pressure to replace the Complainant seem to have arisen in the context of the Second Respondent using an alternative contractor, Superfinish, when the Complainant was on holidays. The Second Respondent gave evidence that Superfinish had approached him about permanently taking on the work for Brisbane BMW however, the Second Respondent advised them they he would stay with the Complainant.[218]
  1. [288]
    The Second Respondent also gave evidence that the Complainant asked him if he could find out why he was not getting work from the dealership and when the Second Respondent  inquired, he was informed it was because the Complainant’s work standard was not high enough.[219] The Second Respondent's evidence was that he resisted pressure from the dealership to get rid of the Complainant by telling them he would keep him on because he had the detailers there to fix up his work.[220]
  1. [289]
    The Second Respondent felt that he had been looking out for the Complainant and on the basis that the complaint was made to management rather than to him personally, was upset and stated that he would not continue to resist pressure to replace the Complainant.
  1. [290]
    I am not persuaded that the Second Respondent's comment that he was not going to resist pressure to replace the Complainant was made because the Complainant had alleged that the Second Respondent had 'committed an act that would amount to a contravention of the Act'. The fact that the Complainant continued to receive work demonstrates that the Second Respondent's comment did not actually lead to any detriment to the Complainant. There is insufficient evidence of loss, damage or injury as a consequence of the Second Respondent's comment.
  1. [291]
    In his conversation with Mr McGee on 9 March 2019, the Complainant stated that he can go 'three, four days without getting a phone call from the Second Respondent. And then as soon as something happens, as soon as he gets one where to fix on the car, he'll call me and demand that I come in straight away'.[221] This indicates that the inconsistent nature of the work had existed prior to the Second Respondent being made aware of the complaint.
  1. [292]
    The third allegation regarding the Second Respondent's conduct at the meeting of 4 April 2018 was that he advised the Complainant that he had directed others to isolate the Complainant.
  1. [293]
    The Second Respondent denied telling others to isolate the Complainant. The Second Respondent's evidence was that when he became aware that the Complainant did not like banter, he informed other employees that they should not engage in this behaviour with him. The Second Respondent stated that he told others to only speak with the Complainant on a professional basis.[222]
  1. [294]
    The Third Respondent's evidence supports the Second Respondent's testimony in that he recalled advising the Second Respondent to remain strictly professional because it was clear to him that the Complainant did not like banter.[223]
  1. [295]
    The Complainant did not indicate that he heard the Second Respondent's comments firsthand, and in the absence of testimony from any other witness, I accept the Second Respondent's characterisation of his comments. Accordingly, I accept the Second Respondent's evidence that he did not order anyone to isolate the Complainant.
  1. [296]
    In circumstances where the Complainant had conveyed that he did not want to engage in banter and just wanted to get in, do his work and go home,[224] there was nothing inappropriate about the Second Respondent advising other employees and contractors to contain their conversations to work-related matters. There was no loss, damage or injury arising from this conduct.
  1. [297]
    I note that there was no evidence that the Complainant did in fact experience any isolation when he attended work following the meeting. In circumstances where the Second Respondent did not order that the Complainant be isolated and no isolating conduct occurred, the Complainant suffered no loss, damage or injury.
  2. [298]
    The allegation that the Second Respondent misinformed the Complainant about the availability of work referred to events prior to the Complainant's complaint to Mr McGee on 9 March 2018. In circumstances where the documentary evidence suggests that the Second Respondent was first made aware of the complaint on either the 23 March 2018 or on 27 March 2018 when he was spoken to by Mr McGee,[225] it cannot be the case that this allegation can be substantiated. Victimisation cannot occur before the alleged perpetrator is aware of any complaint.
  1. [299]
    A further allegation of victimisation against the Second Respondent relates to an alleged increase in scrutiny and expectations of higher quality work following the complaint.
  1. [300]
    I note the Respondents' submission that this claim has changed over time, with the Complainant's original Statement of Facts and Contentions claiming that the Second Respondent had scrutinised his work excessively the entire time he had contracted with the Respondents. The Complainant outlined in his original Statement of Facts and Contentions that 'from January 2016 to April 2018' he was subjected to 'excessive scrutiny of performance'.[226]
  1. [301]
    The evidence indicates that the increase in expectations over the time that the Complainant contracted to the Respondents was a general expectation for all employees and contractors and not specific to the Complainant.[227] On the basis that any excessive scrutiny commenced prior to the complaint, as indicated in the Complainant's original contentions, such conduct cannot be considered victimisation.
  1. [302]
    The Complainant claims that the Second Respondent's use of a torch on 23 March 2018 to inspect the bumper bar of a black car was an act of victimisation. It is not clear whether the Second Respondent was aware that the Complainant was the source of the complaint by this date, however the Second Respondent was certainly aware that a complaint had been made. The Second Respondent's evidence was that he brought Ms Terry Scott as a witness when he inspected the vehicle, stating:[228]

Basically just to cover me so that if anything happened, I had another witness there just to protect me to say that I hadn’t said anything wrong, done anything wrong.

  1. [303]
    Even if it is accepted that by this time the Second Respondent knew the identity of the Complainant, the Second Respondent's action in bringing a witness cannot reasonably be considered victimisation as there was no loss or detriment suffered by the Complainant.
  1. [304]
    The Complainant contends that the Second Respondent's use of a torch to inspect the paint was also an act of victimisation. The Complainant contends that the lighting inside the workshop was sub-standard for painting.[229] In those circumstances, it is difficult to accept that the use of a torch to inspect the work done in the same workshop would be unreasonable. The Second Respondent gave evidence that the use of a torch to inspect paint repairs was not unusual. In these circumstances, the use of a torch to inspect the Complainant’s work could not reasonably be considered victimisation as there was no loss, damage or injury.
  1. [305]
    The Complainant alleges further that the Second Respondent victimised him by significantly reducing his workload after he made the complaint. The Complainant submits that his work was drastically reduced in the two weeks after the Second Respondent knew about the complaint on 23 March 2018. The Complainant submits that he was only called into work in the fortnight following 23 March 2018 on one occasion.[230]
  1. [306]
    The documentary evidence does not support this allegation. The Complainant's own records and those of the First Respondent indicate that the Complainant worked for the First Respondent on 29 March 2018, 5 April 2018, and 6 April 2018. The Complainant accepted in evidence that he had worked on those dates. 
  1. [307]
    Evidence was given that the pre-delivery yard was not open on Good Friday and Easter Monday in 2018 reducing the number of days that the Complainant could have been called in on those days during that fortnight.[231] Evidence was also given of the sporadic and unpredictable nature of work at the pre-delivery yard, with financial records indicating that the Complainant did not work in a clear pattern.[232] The Complainant accepted this characterisation of the work in evidence.[233]
  1. [308]
    It is clear that after the Second Respondent was informed about the complaint, he continued to call the Complainant into work. The Complainant was called in on 4 April 2018 after he had discussed the complaint with the Second Respondent. The Second Respondent then went on holidays and by the time he had returned to work the Complainant had ceased contracting with the First Respondent.
  1. [309]
    The evidence does not support a determination that the Complainant's workload was reduced following the complaint becoming known to the Second Respondent.
  1. [310]
    The Complainant alleges that the Second Respondent victimised him by holding him to a higher standard than his successor.
  1. [311]
    The Complainant showed a photo to the Third Respondent of a car bumper that he indicated had been worked on by Superfinish Express. The Third Respondent responded by stating that it was not performed to an acceptable quality and worse than some of the Complainant's jobs.[234] The Complainant submits that this is evidence that he was held to a higher standard than his successor.
  1. [312]
    This is one example of many where the Complainant's submissions appear to misunderstand or misrepresent the evidence. The Complainant submits that the Second Respondent testified that no complaints were received about the quality of work at Superfinish Express. The Second Respondent did not give such evidence, with his testimony responding to a question as to whether he still received complaints regarding the quality of work. The Second Respondent stated, 'We usually stop them with our stricter controls that we have now.'[235]
  1. [313]
    The Complainant submits that the Third Respondent confirmed that 'any complaints made about work done by Dimitri were never as bad as the work completed by Superfinish Express.'[236] This was not the Third Respondent's evidence. The Third Respondent's testimony after looking at photos of a Superfinish job was 'And even you – your quality, when you’ve got some jobs wrong, it was – it was never like that.'[237] That evidence can be accepted as demonstrating that when the Complainant completed some jobs incorrectly, it was never like that of the job in the particular photos, however it cannot be extrapolated more generally. It cannot be reasonably demonstrated that the Complainant was held to a higher standard than his successor.
  1. [314]
    I accept the Respondents' submission that the Complainant provided a table which indicated the photo was taken after the invoice date, however there was no other evidence to substantiate the dates of the photographs. In any event, the Third Respondent's evidence cannot reasonably be generalised to demonstrate an attitude toward Superfinish's work more generally. It is implausible that a luxury car dealer would risk customer complaints due to sub-standard quality to allow Superfinish Express to perform work at a lower standard than the Complainant.
  1. [315]
    On the evidence before the Commission, it has not been demonstrated to the requisite standard that the Second Respondent engaged in victimisation of the Complainant.

Victimisation by the Third Respondent

  1. [316]
    The Complainant originally alleged that the Third Respondent criticised him for making a complaint and threatened to cease using his services.[238] The Complainant later included other claims alleging that the Third Respondent had accused him of being 'soft'; that he should be 'strong' and needed to 'toughen up' to handle the Second Respondent's behaviour due to his Greek heritage.[239]    
  1. [317]
    As outlined at [249], I accept the Third Respondent's account of the meeting in which he admitted making reference to the Complainant's Greek ethnicity.
  1. [318]
    In circumstances where the Third Respondent made his comments under the genuine but mistaken belief that the Complainant had visited Greece following the death of a family member, it cannot be accepted that the Third Respondent's words were victimisation. There was no loss or injury and consequently no detriment demonstrated.
  1. [319]
    The Complainant also claims that the Third Respondent told the Complainant he had advised the Second Respondent to increase scrutiny over his work after the complaint was made. The final allegation regarding the Third Respondent was that he threatened the Complainant's position as a contractor if he could not withstand the Second Respondent's behaviour.[240]
  1. [320]
    The Third Respondent denied telling the Second Respondent to increase scrutiny over the Complainant and threatening his position.[241] The Third Respondent gave evidence that he talked about quality control processes during the meeting and confirmed that he had required the Second Respondent to introduce such processes during his time as After Sales Manager. The Third Respondent gave evidence that these processes had been introduced across the board and applied to all employees and contractors.[242] The evidence of the Second Respondent and Mr McGee was consistent with this matter.[243]
  1. [321]
    I accept the Third Respondent's evidence regarding the context in which the Complainant refers to 'increased scrutiny'. I am satisfied that these comments were made to indicate to the Complainant that the quality control processes were required of all employees and contractors and not solely the Complainant. The comments were not made to demonstrate a change of position because the Complainant made the complaint, rather to explain why the expectations of the Complainant were not unique. The explanation as to why the Third Respondent had made a business decision that had applied to everyone in the workplace was not provided because of his complaint but rather to confirm that the Complainant was not the only worker subject to the scrutiny. This cannot reasonably be considered victimisation as the conduct did not occur because of the complaint.
  1. [322]
    I also note that the Complainant raised his complaint about increased scrutiny from the Second Respondent in his phone call to Mr McGee on 9 March 2018. Any alleged increased scrutiny cannot then be considered victimisation as the actions were alleged to have occurred prior to the Third Respondent's knowledge of the complaint.
  1. [323]
    Following the complaint, the Complainant continued to receive all the Respondents' spray-painting work. There is no evidence that the Respondents utilised the services of other contractors, with the Complainant continuing to work in the same manner as he did before the complaint up until he terminated their relationship whilst the Second Respondent was on leave.
  1. [324]
    I am not satisfied that the evidence supports a determination that the Third Respondent did, or threatened to do, anything to the detriment of the Complainant following his complaint. The victimisation claim against the Third Respondent is not made out.

Consideration

  1. [325]
    The AD Act requires consideration of whether the Complainant was subject to less favourable treatment because of his attributes. Less favourable treatment is differential treatment identified through the comparison of the actual and hypothetical, and which is detrimental to the Complainant.[244] The motives, reasons or suggested justifications of the detriment are immaterial if differential treatment that is detrimental to the Complainant is established.[245]
  1. [326]
    If treatment is considered less favourable, the Commission must be satisfied that the reasons for that treatment was the attribute. Where there are two or more reasons for treating a person less favourably, it is on the basis of the attribute if the attribute is a substantial reason for the treatment.[246]
  1. [327]
    The AD Act prohibits direct discrimination on the basis of certain attributes as outlined in s 7. To uphold such a claim, it must be demonstrated that any less favourable treatment is because of the attribute. The Complainant contends that the Respondents believed that men in its workforce were presumed to have the characteristics of 'masculinity; not taking offence to insults direct at them and being able to give as good as they get in relation to insults in the workplace'. Curiously, this submission appears to contend that the Complainant was treated less favourably than other types of males. Whilst these characteristics may be associated with some types of males, I do not accept that they are generally considered a characteristic of males and hence cannot be considered protected attributes. Personality types and general behaviours are not protected attributes unless they are genuinely considered a characteristic of a protected attribute.
  1. [328]
    As outlined in the consideration of each of the allegations above, the Complainant has not demonstrated that he was treated less favourably on the basis of his sex, race or presumed sexuality.
  1. [329]
    The Complainant submits that a Jones v Dunkel[247] inference should be drawn for the Respondents' failure to call Mr Richard Smith, Mr Daniel Row, Mr Paul Tom, Ms Scott, Ms Fleming and Mr Luke Ellis to give evidence.[248]
  1. [330]
    The circumstances for drawing a Jones v Dunkel inference are found where an uncalled witness is a person presumably able to put the true complexion on the facts relied on by a party as the ground for an inference favourable to that party.[249] The three conditions to be applied are: first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her evidence would elucidate the matter; and thirdly, whether his or her absence is unexplained.[250]
  1. [331]
    The Second Respondent's testimony referred to a text message received by Mr Smith from the Complainant asking if Mr Smith would like to be a witness, that the Complainant had $20,000 to spend on the court case and that the Complainant expected to make a lot of money out of the court case.[251] The Second Respondent gave evidence that Mr Smith appeared to be reading something on his phone while saying these things to the Second Respondent and that several other staff members had approached the Second Respondent to report having receive a similar text message from the Complainant.[252]
  1. [332]
    In circumstances where the Second Respondent's evidence about his interaction with Mr Smith did not form part of the Respondents' Statement of Facts and Contentions and does not explain or contradict the claims regarding discrimination or victimisation, I do not consider that it was expected that Mr Smith be called to give evidence. Accordingly, no Jones v Dunkel inference may be made. I also note that I have given no weight to this evidence on the basis that it does not assist in considering the allegations made by the Complainant.
  1. [333]
    The Second Respondent  also gave evidence that on one occasion the Complainant entered his office while Mr Row was inside discussing personal matters with the Second Respondent.[253] The Second Respondent's evidence was the Complainant did not knock and after entering the Second Respondent gestured to him to leave before asking him to leave and finally telling the Complainant to 'Get the fuck out of my office now'.[254] In circumstances where the Second Respondent admits to the conduct alleged, that is swearing at the Complainant, the evidence of Mr Row would not assist in elucidating the matter.
  1. [334]
    The Complainant submits that a Jones v Dunkel inference should be made because of the Respondents' failure to call Mr Tom to support the Second Respondent's claims that he called someone other than the Complainant 'paint poof'.[255]  
  1. [335]
    I accept the Respondents' submission that where the Complainant sought to rely on Mr Tom as a comparator, in circumstances where he has not called any evidence from Mr Tom to establish whether he holds any of the protected attributes that are relevant to the discrimination complaint, it might well be the Complainant who should have called Mr Tom to give evidence. I do not consider a Jones v Dunkel inference should be made regarding the failure to call Mr Tom.
  1. [336]
    The Second Respondent gave evidence regarding a detailer, Mr Luke Ellis who formerly contracted for Brisbane BMW. In the Second Respondent's testimony he said that Mr Ellis was 'openly gay', that 'he joined in the banter' and 'was the same as everybody else that worked there' and that the Second Respondent and Mr Ellis had a good relationship.[256] In circumstances where the Second Respondent has maintained that he did not believe that the Complainant was homosexual, Mr Ellis's evidence would not be relevant to the claim.[257] Accordingly, no Jones v Dunkel inference may be made.
  1. [337]
    The Complainant submits that a Jones v Dunkel inference should be made following the failure of the Respondents to call Ms Teri Scott and Ms Emily Fleming to give evidence.[258] The Second Respondent gave evidence that Ms Scott, who was a detailer working at pre-delivery, had engaged in joking and banter[259] and was with the Second Respondent when he inspected the Complainant's work with a torch because of inadequate lighting.[260]
  1. [338]
    I am not of the view that the evidence of Ms Scott would have assisted in explaining or contradicting the evidence in circumstances where the Second Respondent admitted using a torch to inspect the Complainant's work on one occasion and there is no claim that Ms Scott was with the Second Respondent when he used the torch on other occasions.
  1. [339]
    I note that the Complainant's request that the attribute of sex be added to his claim was only accepted by the Commission on 25 August 2021,[261] with the substantive hearing commencing on 30 August 2021.  I accept the Respondents' explanation that it could not reasonably be expected that the First Respondent would have had time within the three available business days to ascertain if Ms Scott, who is no longer employed by the First Respondent, and Ms Fleming, who was never an employee of the First Respondent, were available to give evidence or to prepare them for the impending hearing. The Complainant was given leave to amend his complaint at a late stage to ensure that he was given an opportunity to put his full case before the Commission. The consequence of that was the Respondent had little time to prepare itself for that part of the case that it was required to meet at short notice. In these circumstances, I accept that no Jones v Dunkel inference should be made as an adequate explanation has been provided.

Documentary evidence

  1. [340]
    In considering this complaint, I have given significant weight to the evidence of the phone conversation between the Complainant and Mr McGee on 9 March 2018.[262] Mr McGee was not aware that the phone conversation was being recorded by the Complainant.
  1. [341]
    The fact that the phone call had been pre-arranged and the Complainant knew the conversation was being recorded gives further weight to the presumption that he intended this conversation to be a reliable account of his complaint. This evidence in my view best reflects the truth of the complaint.
  1. [342]
    The Complainant submits that he only revealed some of his complaints during the phone call because he was driving, distracted, and that Mr McGee cut him off as he was outlining some of the Second Respondent's actions.[263] I accept that the Complainant may have been distracted whilst driving, however I am not persuaded that he was not permitted to raise all of his concerns to Mr McGee during the lengthy call. The Complainant had made the phone call to Mr McGee on that day as previously arranged and Mr McGee had returned the missed call.  The Complainant was not caught off guard, rather he had time when he first made the call to gather his thoughts and consider how he was going to present his complaint to Mr McGee.
  1. [343]
    The Complainant submits that it was entirely reasonable for him to not include every aspect of his complaint during the phone call on the basis that he expected a fulsome investigation would take place. This is plausible to some extent, and one could not quibble with minor facts not making their way into the conversation. I do note, however, there was considerable build-up to this conversation, with a number of emails sent between the Complainant and Mr McGee to arrange a time and date for the phone conversation to take place. The Complainant was aware from Thursday 8 March 2018 that he would likely be having the conversation with Mr McGee after 5:00pm Friday 9 March 2018. Accordingly, one would reasonably expect him to have given some thought to detailing his complaint. Even if the Complainant was distracted during the phone call, such distraction does not explain the entirely different complexion of the complaint. It was not the case that a few claims were not raised, rather the entire premise of the claim that was placed before this Commission was different.
  1. [344]
    The phone conversation was contemporaneous with the relevant events, making it a reliable account of the incidents raised by the Complainant. In this phone conversation, the Complainant does not mention that he was called names such as 'faggot', 'poof', 'paint poof' or 'fairy', nor that he was called a 'lazy wog'. The Complainant does not mention any reference to his Greek ethnicity. The Complainant mentions that the Second Respondent called him a 'cockroach' but stated that it was a joke.[264] Importantly, the Complainant states that the Second Respondent treated other workers in pre-delivery in a similar way.[265]
  1. [345]
    The Complainant told Mr McGee that the Second Respondent had 'abused' him[266] and when asked what the Second Respondent had said to the Complainant, the Complainant stated the following:

He said, 'Oh, it's because you couldn't be bothered to come in yesterday', umm, 'Now it's raining, you’re making excuses so you don't have to paint this car'. It’s like, well, no, that's not the case. I was there yesterday morning. How didn't you know about this?

  1. [346]
    The example given above was presumably one of the most compelling examples of the Second Respondent's alleged abuse. I accept the Respondents' submission that, had the Complainant experienced more egregious abuse, he would undoubtedly have raised it during this conversation with Mr McGee.
  1. [347]
    The clear impression from the phone conversation is that the Complainant is of the view that the Second Respondent behaves unreasonably, not only to him, but to others in the workplace. In the phone call in which the Complainant explained his allegations to Mr McGee, he stated:[267]

…I'm not the only person that has these grievances with [Second Respondent], but I seem to be the only person that’s coming forward…

… So I was a bit nervous about coming forward and, uh, there was a time about a year ago when someone came up to me and asked if we wanted to do a mass walk out. He just said everyone should just walk outa here cos [the Second Respondent]'s just being so unreasonable. So we were about to just stop work for – for – until [the Second Respondent] pulled his head in, but we decided against it obviously.

  1. [348]
    In the phone conversation, the Complainant told Mr McGee what he had heard about previous employees who have complained about the Second Respondent, explaining that a technician had recently left saying 'that’s just the way [the Second Respondent] is, that's how he's always been, and I've just learned to live with it'.
  1. [349]
    The Complainant gives examples of other workers having to wait outside the Second Respondent's office before keys could be returned and of a time when the Second Respondent 'laid into' a mechanic for not noticing damage to a car. The Complainant explained that after bringing some damage to the Second Respondent's attention he would call them 'idiots' for not noticing the damage.[268]
  1. [350]
    During the phone call the Complainant states that, 'he is not the only person who has these grievances with [the Second Respondent]' and spoke about the Second Respondent 'absolutely blasting' and 'laying into' the mechanics.[269]
  1. [351]
    It is clear that the Complainant held a view that he and others were not being treated appropriately by the Second Respondent. The theme of the Complainant's concerns related to the Second Respondent's general treatment of the Complainant and others, not that he was treated less favourably because of his attributes.
  1. [352]
    The Complainant spent considerable time during the phone call explaining to Mr McGee that he could not expand his business to other dealers as the Second Respondent demands that he return to do work for him. He explained that he can go 'three, four days without getting a phone call from the Second Respondent. And then as soon as something happens, as soon as he gets one where to fix on the car, he’ll call me and demand that I come in straight away'.[270] The Complainant does not suggest in any way that he believed that this occurred because he was male or Greek, or because the Second Respondent believed that he was homosexual.
  1. [353]
    The Complainant then stated to Mr McGee:

So, umm, I have been on a – on the Maurice Blackburn website I sent you the link to. Umm, literally I can tick off like nine out of ten of those things that constitute bullying. I can tick off and say that's what [the Second Respondent] does to me.[271]

  1. [354]
    It is clear that the Complainant views the conduct of the Second Respondent as bullying in nature. The entire description of the Complaint during the phone call is one of being bullied and treated unreasonably along with his co-workers.
  1. [355]
    In the phone call to Mr McGee, the Complainant stated the following:[272]

Umm, yeah, but like I said before they were gonna train me to be a Dealer Principal and then I'll walk into [the Second Respondent] sometimes and he'll say how stupid I am and dumb I am. And, you know, it's exactly not the case. I'm, umm, not stupid in any regard. He thinks I'm stupid for some of the stuff I do, but I can be clever in other ways. Maybe, you know, I’m just not his type of clever like, umm. That just annoys me because I’m not dumb… I’m not stupid. But that's what he thinks of me and that's how he treats me.

  1. [356]
    When Mr McGee asked the Complainant during the phone call why he thought the Second Respondent was different with the previous owner, Mr Tom, the Complainant replied:[273]

I don't know. I think age. I'm a very young guy, I’m 27. Half [the Second Respondent's] age at least. Yeah, I just don't think he respects my generation. I am a very hard worker. I'll sit there from 5.30 in the morning until 5.30 at night if the work is there, but he expects me to sit around and do nothing for hours in between while stuff gets sorted on his end. I don't think that's reasonable either.

  1. [357]
    The Complainant's answer reflects his confusion as to the reason the Second Respondent treated him in the way alleged. When pressed the only reason the Complainant could suggest related to his age. No mention was made of his sex, ethnicity or presumed homosexuality.
  1. [358]
    In my view, the phone conversation is the best evidence of the actual grievance held by the Complainant. I accept the Respondents' submissions that the Complainant's allegations at hearing bear little resemblance to the complaints he made during his recorded phone call with Mr McGee.
  1. [359]
    Other documentary evidence put before the Commission does not support the Complainant's allegations. I place substantial weight on the documentary evidence on the basis that they are contemporaneous and hence more reliable than the memory of the witnesses. The text messages between the Second Respondent and the Complainant do not support the allegations that the Second Respondent regularly failed to reply to the Complainant by text and threatened his position if he refused to drop work for other car companies and return to Brisbane BMW when ordered.
  1. [360]
    The Complainant's allegation that he was not permitted to charge for touch-ups from March 2016 is not supported by the documentary evidence in the form of invoices which indicate that the Complainant continued to charge for touch-ups after March 2016.
  1. [361]
    I have considered all of the Appellant's submissions but note that rather than emphasising the evidence that supports his complaint, the submissions were in many areas not reflective of the evidence given. For example, the submission that the Second Respondent conceded that he forced the Complainant to paint vehicles in the rain was simply incorrect. The Second Respondent's lawyers had admitted in a Notice to Admit Facts that the Second Respondent had forced the Complainant to paint vehicles 'while it was raining' to maintain deadlines for having vehicles prepared for sale or delivery. The Second Respondent's evidence was that he made room inside the workshop for the work to be completed inside, and not 'in the rain' as submitted. The Complainant submits that the Second Respondent gave inconsistent evidence about the number of times he told the Complainant to 'fuck off', rendering his evidence unbelievable. The reality of the Second Respondent's evidence was that he admitted to using this term on two occasions, and that he had used the term aggressively once. 
  1. [362]
    The Complainant has submitted that the intention of the person engaging in discrimination is not relevant. Whilst this is accurate, it is still necessary to establish that the conduct was less favourable because of the attributes.
  1. [363]
    The Complainant was of the view that the Second Respondent's failure to text him back about work on an occasion was discriminatory, submitting that 'It doesn’t matter his intention. The fact that it did upset me is the problem'. The fact that the Complainant was upset by the failure of the Second Respondent to text him back immediately does not demonstrate that the Second Respondent's conduct was discriminatory. Simply being upset does not establish that the conduct is less favourable treatment. A causal link must be established between the ground of discrimination alleged and the relevant decision or action. The discrimination must have been on the basis of the relevant attribute.
  1. [364]
    The Complainant submits that the Second Respondent admitted that he treated the Complainant less favourably than the female contractor named Ms Fleming. The transcript of evidence does not support this submission. The Second Respondent confirmed that he would not mock a woman, but neither did he accept that he had mocked the Complainant.
  1. [365]
    The Complainant submits that the First Respondent touted its 'Sime Darby Discrimination, Harassment and Bullying-Free Workplace Policy' ('the Sime Darby Policy') as having a zero-tolerance approach to discrimination, sexual harassment and bullying, however in practice this did not occur. The Complainant spend a significant amount of time cross-examining witnesses as to their knowledge of this policy and its use in practice.
  1. [366]
    I note the decision in Smith v Aussie Waste Management Pty Ltd,[274] where an employee was reinstated following a determination that the context in which offensive language was used was relevant in determining if it was serious misconduct. This is not relevant to a claim of discrimination but should be noted in the context of the Complainant's submissions that the work environment was 'tolerant of discriminatory, harassing and bullying behaviour'. An awareness that staff may use offensive language on occasions cannot reasonably be considered evidence that discriminatory behaviour was ignored or condoned.
  1. [367]
    Even if the Complainant's submission that the Respondents breached their obligations under parts of the Sime Darby Policy is correct, this is not the test in a claim made pursuant to the AD Act. The role of the Commission is not to assess whether the workplace policy has been breached. The test is whether there have been contraventions of the AD Act. The Complainant’s fixation on this policy goes to the inherent difficulty with his case, which is that the Complainant felt that he was treated poorly by the Respondents and attempted to fit those facts into an application seeking redress through some forum. The Complainant's evidence and submissions give the impression of a narrative developed to fit the jurisdiction. The Complainant's submission that the Respondents would view any complaint as indicating that 'he wasn’t one of the guys – that he couldn't hack the workplace culture of making fun of each other'[275] is not supported by evidence. This was simply not the tone of the Complainant's concerns when his concerns were first raised in the phone call with Mr McGee.
  1. [368]
    The Complainant's comments to Mr McGee indicate that he was in fact one of many 'guys' who together had spoken about their concerns about the Second Respondent's conduct. This led the Complainant to seek relief through a number of applications in other jurisdictions including workers' compensation and the Fair Work Commission. There is nothing improper about the Complainant pursuing a course of action in these jurisdictions, however it lends weight to the contention that this was a disagreement about how the Complainant was treated as a contractor and not a genuine claim about discrimination.
  1. [369]
    As previously stated, the onus of proof lies with the Complainant to demonstrate that the alleged conduct occurred and that the alleged conduct was less favourable treatment because of his protected attributes. To establish victimisation, the onus also lies with the Complainant to demonstrate that the Respondents engaged in conduct that was to his detriment because he made the complaint.
  1. [370]
    In determining whether the Complainant has discharged this onus, I note the reference in the decision of Member Roney in Gordon v State of Queensland & Ors[276] to Gurnett v Macquarie Stevedoring Co Pty Ltd ('Gurnett'):[277]

… the plaintiff must prove his case; and although he may establish a state of facts which lead one to think that his version is quite a possible version of what took place, he must do something more than show a state of facts which is consistent with one view or with another view… A guess is a mere opinion or judgment formed at random and based on slight or uncertain grounds. In contradistinction to such a conjectural opinion, an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed acts. It must be something which follows from given premises as certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect.

  1. [371]
    Member Roney proceeds to consider circumstances in which an Applicant contends that an inference should be drawn, as discussed by the court in Carr v Baker:[278]

There must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture… The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture.

  1. [372]
    After carefully considering the evidence, I formed the impression that the Complainant found the Second Respondent's conduct to be demanding and unreasonable rather than discriminatory.
  1. [373]
    I accept the Respondents' submission that the core of the Complainant's complaint is that the Second Respondent is unapproachable,[279] unreasonable,[280] made his life difficult,[281] set him up to fail.[282] The Complainant was of the view that the Second Respondent did not respect him or his generation[283] and had power over his livelihood.[284]
  1. [374]
    This evidence supports a conclusion that the complaint was about a work superior who the Complainant viewed as demanding and unreasonable. The veneer of discrimination based on the Complainant's attributes and victimisation appears to have been added at a later date, potentially when it became apparent that the other legal avenues to ventilate this grievance were not available.
  1. [375]
    I note the decision of Perera v Warehouse Solutions Pty Ltd (Human Rights),[285] in which the tribunal made the following comments:
  1. [56]
    In my experience it is not uncommon for lay people to use terms such as 'discrimination' and 'harassment' in ways which do not align with the legal meaning of the words. That is not a reason to discount the evidence entirely. It is not uncommon for people who feel they have been unfairly treated to see everything that happens through that prism.
  1. [376]
    It was apparent from the Complainant's evidence that he perceived every action by the Second Respondent as malicious. One example was his evidence regarding the paperwork error, in which he gave the following evidence:

[The Second Respondent] knew that I would have to drive all the way to work, across the toll bridge, go there, set up, wake up early. It’s an inconvenience to me…

  1. [377]
    The proposition that the Second Respondent intentionally orchestrated a scenario that would cause the Complainant maximum inconvenience is, on the balance of probabilities, unlikely. It is even less likely that the paperwork error was the result of the Second Respondent treating the Complainant less favourably because of his sex, ethnicity or presumed sexuality.
  1. [378]
    The Complainant was upset that he was told that his work standard was, on occasion, not up to standard and was annoyed that the Respondents had expectations of his availability that he felt were unreasonable. This was undoubtedly disappointing for the Complainant, but it was not discrimination. 
  1. [379]
    It is clear that the Complainant felt that his predecessor, Mr Tom, was treated better than he had been. As noted above, Mr Tom is not an appropriate comparator, however I note that having a close relationship with a contractor over many years who has significantly more experience will likely lead to a familiarity that is not immediately present with a change in business owner. The Complainant may have wanted to have the same relationship with the Second Respondent as he had with Mr Tom, however relationships like this are not transferrable and usually take time to develop. The Complainant's contention that he was treated differently because of his sex, race, or presumed sexuality is simply not supported by the weight of the evidence. A far more plausible explanation for the Complainant's experience is that it was a usual adjustment between a new contractor and principal. Any familiarity between the Second Respondent and Mr Tom was a consequence of a long-standing relationship and many years of experience. I am not of the view that the Complainant was treated less favourably, however to the extent that he may have felt less 'warmth' from the Second Respondent, no reasonable inference can be made that this was due to his attributes.
  1. [380]
    The Complainant submits that the Commission should be satisfied that 'the conduct of the Second Respondent towards him was not banter and that it instead can be characterised as bullying and harassment, leading to discrimination and victimisation'.[286] Even if it was the case that the conduct alleged by the Complainant was not considered 'banter', it was not conducted because of the Complainant's attributes. In such circumstances, the conduct may be considered unreasonable behaviour, however it cannot be molded into a claim that it occurred in contravention of the AD Act.
  1. [381]
    I note the comment in McIntyre v Tully ('Tully'),[287] in which the Queensland Court of Appeal stated:
  1. [14]
    It is clear enough that the offering of an insult or the making of inappropriate statements is not per se prohibited by the Act, except in specific instances such as incitement to racial hatred, discriminatory advertising, and other particular forms of objectionable conduct set out in parts 4 and 5 of the Act. So far as Chapter 2 (prohibited discrimination) is concerned the Act does not penalise freedom of expression unless all the requirements of prohibited discrimination are present. The Act does not per se render a person liable to pay damages for making politically incorrect statements. It is not the use of hurtful words that is proscribed, but rather the act of discrimination.[288]
  1. [382]
    I accept that the Complainant was offended when the Second Respondent acted in a way that he considered unreasonable, such as swearing at the Complainant in anger or telling him to 'go to Specsavers'. However as noted above in Tully, the offering of an insult alone, except in specific circumstances, is not prohibited by the Act.
  1. [383]
    Even if the conduct of the Second and Third Respondent was to be considered unreasonable, it does not amount to discrimination as the evidence does not demonstrate that the Complainant was treated less favourably. Even if the Complainant had been able to demonstrate less favourable treatment, no reasonably inference could have been drawn that the alleged treatment occurred because of his attributes.
  1. [384]
    The evidence also does not support a finding that the Complainant was subject to victimisation by the Respondents. 

Conclusion

  1. [384]
    Consistent with the Briginshaw principles, the Commission must feel an actual persuasion of the occurrence of the allegations, which cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.[289]
  1. [385]
    After carefully considering all of the evidence in this matter, I am not persuaded that the Complainant was treated less favourably because he was male or because he was of Greek ethnicity. I am not persuaded that the Respondents presumed the Complainant to be homosexual. I am also not persuaded that the Complainant was subject to victimisation by the Respondents.
  1. [386]
    The Complainant has failed to discharge the onus of establishing that the treatment amounts to unlawful discrimination or victimisation under the AD Act. Accordingly, the complaint is dismissed.

Orders

  1. [387]
    I make the following orders:
  1. 1.That the complaint be dismissed.
  2. 2.I will hear the parties on the question of costs.

Footnotes

[1]Now the Queensland Human Rights Commission.

[2]LLM Holdings Pty Ltd & Ors v Michalakellis [2019] QIRC 75; Michalakellis v LMM Holdings Pty Ltd (No 2) [2020] QIRC 24; Michalakellis v LMM Holdings Pty Ltd (No. 3) [2021] QIRC 289 ('Michalakellis No. 3').

[3]Exhibit 7: Transcript of phone recording between the Complainant and Mr Joshua McGee (9 March 2018) [83], [117].

[4]Ibid [198].

[5]Ibid [199].

[6]Exhibit 6: Voice recording of conversation between Complainant and Mr Joshua McGee, the Complainant, Mrs Michalakellis and Mrs Michalakellis's family members (9 March 2018); Exhibit 7.

[7]T 5-20, l 23; Exhibit 8: Email from 'Anonymous' to Mr Martin Roller, 13 January 2023, 8-9.

[8]T 5-21, ll 1-2.

[9]T 5-22, ll 26-45.

[10]T 4-57, ll 1-15 ; T 2-61, ll 1-4; T 2-35, ll 1-9.

[11]T 3-26, ll 41-46.

[12]T 5-26, ll 20-33.

[13]Michalakellis No. 3 (n 2).

[14]Ibid.

[15]Ibid [44].

[16][2017] ICQ 001, [18], [48].

[17]Michalakellis No. 3 (n 2).

[18]Ibid [44].

[19]Ibid.

[20]Jenkins v State of Queensland & Ors [2018] QCAT 154, [58]; Briginshaw v Briginshaw (1938) 60 CLR 336 ('Briginshaw').

[21]Anti-Discrimination Act 1991 (Qld), ss 130(1)-(2) (emphasis added).

[22]Ibid s 15(f).

[23]Ibid ss 7(a), (g), (n).

[24]Complainant's closing submissions filed 4 November 2021, [11],

[25]T 3-15, l 43.

[26](2003) 217 CLR 92, 163 ('Purvis').

[27][2016] QCAT 211, [10].

[28][2019] QIRC 059.

[29]Ibid [84], [88] (emphasis added) (citations omitted).

[30]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [6].

[31][2019] FCA 496.

[32]T 2-37, l 44; T 2-58, l 4.

[33]T 2-19, l 23.

[34]T 2-25, l 40.

[35]T 2-26, l 10.

[36]T 2-10, l 1.

[37]T 2-30, l 43.

[38]Exhibit 7 [37], [163], [175].

[39]Exhibit 7 [99].

[40]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [33].

[41]T 1-25, l 23.

[42]Exhibit 8.

[43]Exhibit 11: Material filed in the Fair Work Commission. Form F72 – Application for an order to stop bullying dated 11 May 2018, 6.

[44]Exhibit 19: Complainant's Outline of Evidence, 1.

[45]T 2-68, l 4.

[46]T 3-8, l 22.

[47]Jones v Dunkel (1959) 101 CLR 298 ('Jones v Dunkel').

[48]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [11].

[49]Exhibit 7 [145].

[50]T 3-58, l 32.

[51]Exhibit 7.

[52]Exhibit 11.

[53]T 3-35, l 35.

[54]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [12].

[55]T 3-35, l 31.

[56]T 3-16, l 5.

[57]T 3-13, l 10.

[58]T 4-24, l 4.

[59]Complainant's Statement of Facts and Contentions filed 8 October 2018, [13].

[60]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [13].

[61]T 3-14, ll 22-26.

[62]T 3-15, ll 43-44.

[63]T 3-70, ll 38-39.

[64]T 3-14, ll 31-34.

[65]T 3-14, ll 28-32.

[66]T 3-68, ll 13-14.

[67]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [13].

[68]Exhibit 3: Text messages between the Complainant and Mr Reesby, 27 January 2016 to 6 April 2018, pp 8, 10, 19.

[69]19 February 2018.

[70]T 3-72, l 33; Exhibit 3.

[71]Exhibit 3.

[72]T 3-6, l 28.

[73]T 3-68, l 16.

[74]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [13].

[75]T 3-33, ll 18-19.

[76]T 3-38, ll 30-31.

[77]T 3-7, l 42; T 3-39, ll 12-14; T 3-8, ll 12-13.

[78]T 3-26, ll 25-26.

[79]T 1-51, l 15.

[80]T 2-61, l 14.

[81]T 3-15, ll 24-25.

[82]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [24].

[83]T 3-15, l 31.

[84]T 2-68, l 6.

[85]T 2-70, l 45.

[86]T 2-71, l 16.

[87]T 2-74, l 36.

[88]T 3-8, l 1.

[89]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [16].

[90]T 2-16, l 36.

[91]T 3-78, ll 21-23.

[92]Exhibit 18: Invoices from Mr Michalakellis (Volume 2, Tab 85 of Respondents' Court Book) 24.

[93]T 3-19, l 39.

[94]T 3-77, l 34.

[95]T 3-19, ll 18-20.

[96]Ibid.

[97]T 3-78, l 32.

[98]T 3-56, ll 15-18.

[99]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [17].

[100]T 1-20, ll 44-46.

[101]T 4-18, ll 20-21.

[102]T 3-21, l 5.

[103]T 3-18, ll 46-47.

[104]T 3-21, l 4.

[105]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [18].

[106]T 3-18, l 40.

[107]T 3-19, ll 1-8.

[108]T 3-18, l 26.

[109]T 3-18, ll 35-36.

[110]T 3-2, l 4.

[111]T 3-18, ll 46-47.

[112]Respondents’ closing submissions filed 24 December 2021, sch C.

[113]Exhibit 18, p. 13.

[114]T 4-14, l 39.

[115]T 3-18, l 40.

[116]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [33].

[117]Respondents' closing submissions filed 24 December 2021, sch C.1; Exhibit 3.

[118]Ibid.

[119]Respondents' closing submissions filed 24 December 2021, sch C.4.

[120]T 3-15, l 1.

[121]T 3-15, l 4.

[122]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [23].

[123]T 4-40, l 46.

[124]T 4-40, ll 42-43.

[125]T 1-49, l 1.

[126]T 1-14, ll 40-41.

[127]T 3-6, ll 14-17.

[128]Exhibit 7 [155].

[129]T 3-8, l 1.

[130]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [25].

[131]Exhibit 3, p. 73.

[132]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [25].

[133]Exhibit 3, p. 72.

[134]T 3-16, ll 29-30.

[135]T 3-16, l 30.

[136]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [26].

[137]T 3-16, l 45.

[138]T 3-17, l 26.

[139]T 3-47, ll 46-47. 

[140]T 3-17, ll 45-47.

[141]T 3-7, l 28.

[142]T 4-86, l 10.

[143]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [28].

[144]Ibid [27].

[145]T 3-15, l 46.

[146]T 3-25, l 39; T 2-32, l 29; T 5-20, ll 44-45.

[147]Exhibit 7, p. 71; T 2-12, l 1.

[148]For example, allegations regarding swearing at the Complainant.

[149]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [28].

[150]Ibid.

[151]Ibid [30].

[152]Ibid.

[153]Exhibit 7 [117].

[154]T 4-13, ll 30-31.

[155]T 3-18, l 40.

[156]T 4-12, l 4.

[157]T 3-19, l 8.

[158]T 4-14, l 24.

[159]T 4-14, l 9.

[160]T 4-14, l 24.

[161]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [31].

[162]T 2-30, l 43.

[163]T 2-30, l 39.

[164]T 3-20, ll 36-45.

[165]T 2-30, 1 9.

[166]T 3-21, l 1.

[167]T 3-11, l 35.

[168]T 3-21, l 32.

[169]Ibid.

[170]Respondent's Amended Response to the Complainant's Amended Statement of Facts and Contentions filed 27 August 2021, [32].

[171]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [33].

[172]Respondent's Amended Response to the Complainant's Amended Statement of Facts and Contentions filed 27 August 2021, [33].

[173]T 4-25, ll 24-25.

[174]T 3-21, ll 35-37.

[175]T 2-24, l 9.

[176]T 2-14, l 2.

[177]T 3-22, ll 2-5.

[178]T 3-55, l 41-42.

[179]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [34].

[180]T 2-24, l 6.

[181]T 3-22, l 41.

[182]T 3-21, l 10; Exhibit 20: Photographs (Volume 2, Tab 77 of the Respondents' Court Book) [6].

[183]T 2-25, l 32.

[184]Exhibit 3, p. 90.

[185]T 3-23, l 22.

[186]T 3-23, ll 42-43.

[187]Exhibit 3, p. 93.

[188]T 4-35, l 26; T 3-80, l 19; T 3-80, l 33; Exhibit 2: Folder of photographs (Volume 1, Tab 2 of the Respondents' Court Book); Exhibit 35: Mic Industries invoice commencing 30 December 2015, p. 1.

[189]T 4-94, ll 41-45.

[190]T 1-46, l 23.

[191]T 3-82, ll 11-13.

[192]Complainant's closing submissions filed 4 November 2021, [48].

[193]T 1-33, l 40.

[194]T 4-57, l 15.

[195]T 2-61, ll 7-8.

[196]T 2-63, ll 33-35.

[197]The Complainant had been to Greece to visit his family and Mr Reesby was under the impression that someone in his family was dying or had died. The Complainant denies that this was the case. It is clear that Mr Reesby misunderstood what the Complainant had told him and repeated it to Mr Gibson. 

[198]T 2-34, l 23.

[199]Bero v Wilmar Sugar Pty Ltd & Ors [2018] QCATA 104, [11].

[200]Cassady v Hardings N.Q. Pty Ltd and Anor [2021] QCAT 353, [53].

[201][1998] QADT 16.

[202] Ibid.

[203]Qantas Airways Ltd v Gama [2008] FCAFC 69.

[204]Golding Sippel and The Laundry Chute Pty Ltd [2021] QIRC 74, [212] ('Golding') discussing Haines v Leves (1987) 8 NSWLR 442, 471 ('Haines').

[205][2001] NSWADT 44.

[206]Ibid [40]-[41].

[207] [2016] QCAT 371, [150].

[208]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [37].

[209]Ibid [38].

[210]Ibid.

[211]Ibid.

[212]T 3-28, l 29.

[213]T 4-37, l 1.

[214]T 4-37, l 15.

[215]Respondents' closing submissions filed 24 December 2021, [390].

[216]Complainant's further and better particulars dated 10 March 2019, [5k]-[5l].

[217]T 4-40, l 13.

[218]T 3-12, ll 1-9.

[219]T 3-12, ll 21-25.

[220]T 3-12, ll 25-32.

[221]Exhibit 7 [121].

[222]T 4-37, ll 30-35. 

[223]T 4-59, ll 35-47.

[224]Exhibit 7 [55].

[225]Exhibit 8, p. 8-9; T 3-20, l 6; T 3-25, l 7; T 5-20, l 32.

[226]Complainant's Statement of Facts and Contentions filed 8 October 2018, 2.

[227]T 4-57, l 44; T 3-29, l 11.

[228]T 3-24, l 31.

[229]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [33].

[230]Complainant's closing submissions filed 4 November 2021, [101].

[231]T 2-7, l 15.

[232]Exhibit 14: Invoice History (Volume 2, Tab 87 of Respondents’ Court Book) 1.

[233]T 2-17, l 15.

[234]T 4-89, l 40

[235]T 4-29, l 37.

[236]Complainant's closing submissions filed 4 November 2021, [158].

[237]T 4-89, l 44.

[238]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, 2.

[239]Ibid [38].

[240]Ibid [38], [54].

[241]T 4-58, l 1; T 4-94, l 28.

[242]T 4-52, l 7; T 4-57, l 34

[243]T 3-29, l 14; T 5-24, l 14

[244]Golding (n 203) discussing Haines (n 203).

[245]Ibid; Tafao v State of Queensland [2020] QCATA 76, [83]. Differential treatment may be less favourable because of the distress and offence caused by the treatment.

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

[247](1959) 101 CLR 298.

[248]Ibid.

[249]Ibid.

[250]Ibid.

[251]Respondents' closing submissions filed 24 December 2021; T 3-32, ll 5-15.

[252]T 3-32, ll 19-22; T 3-18, l 1-23.

[253]T 3-17, l 45 – T 3-18, l 1.

[254]T 3-18, ll 1-23.

[255]Complainant's closing submissions filed 4 November 2021, [177].

[256]T 3-31, l 16.

[257]T 3-15, ll 43-44.

[258]Complainant's closing submissions filed 4 November 2021, [179].

[259]T 3-8, ll 7-8.

[260]T 3-22, ll 7-8.

[261]Michalakellis No. 3 (n 2). 

[262]Exhibit 7.

[263]T 1-25, ll 25-28.

[264]Exhibit 7 [71].

[265]Ibid [83], [117].

[266]Ibid [92]-[95].

[267]Ibid [35], [45].

[268]Ibid [99], [113].

[269]Ibid [35], [83], [117].

[270]Ibid [121].

[271]Ibid [123].

[272]Ibid [149].

[273]Ibid [185].

[274][2015] FWC 1044.

[275]Complainant's Amended Statement of Facts and Contentions filed 16 June 2021, [20].

[276][2013] QCAT 564.

[277](1955) 72 WN (NSW) 261, [264].

[278](1936) 36 SR (NSW) 301, 306.

[279]Exhibit 7 [65], [105].

[280]Ibid [45], [183], [187].

[281]Ibid [57], [131], [149].

[282]Ibid [73], [77].

[283]Ibid [163], [185].

[284]Ibid [37], [163], [175].

[285][2017] VCAT 1267, [56].

[286]Complainant's closing submissions in reply filed 24 February 2022, [144].

[287][2000] QCA 115, [14].

[288]Ibid (emphasis added) (citations omitted).

[289]Briginshaw (n 20).

Close

Editorial Notes

  • Published Case Name:

    Michalakellis v LMM Holdings Pty Ltd & Ors (No. 4)

  • Shortened Case Name:

    Michalakellis v LMM Holdings Pty Ltd (No. 4)

  • MNC:

    [2023] QIRC 248

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    30 Aug 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
Bero v Wilmar Sugar Pty Ltd [2018] QCATA 104
2 citations
Jump To
Cite 1 - [2018] QCATA 104
Cite 2 - [2018] QCATA 104
Bero v Wilmar Sugar Pty. Ltd. [2016] QCAT 371
2 citations
Jump To
Cite 1 - [2016] QCAT 371
Cite 2 - [2016] QCAT 371
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Carlton v Workers' Compensation Regulator [2017] ICQ 1
2 citations
Jump To
Cite 1 - [2017] ICQ 1
Cite 2 - [2017] ICQ 1
Carr v Baker (1936) 36 SR (NSW) 301
2 citations
Jump To
Cite 1 - (1936) 36 SR (NSW) 301
Cite 2 - (1936) 36 SR (NSW) 301
Cassady v Hardings N.Q. Pty Ltd [2021] QCAT 353
2 citations
Jump To
Cite 1 - [2021] QCAT 353
Cite 2 - [2021] QCAT 353
Curran v yourtown & Anor [2019] QIRC 59
2 citations
Jump To
Cite 1 - [2019] QIRC 59
Cite 2 - [2019] QIRC 59
Golding v Sippel and The Laundry Chute Pty Ltd [2021] QIRC 74
2 citations
Jump To
Cite 1 - [2021] QIRC 74
Cite 2 - [2021] QIRC 74
Gordon v State of Queensland & Ors [2013] QCAT 564
2 citations
Jump To
Cite 1 - [2013] QCAT 564
Cite 2 - [2013] QCAT 564
Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN NSW 261
2 citations
Jump To
Cite 1 - (1955) 72 WN NSW 261
Cite 2 - (1955) 72 WN NSW 261
Haines v Leves (1987) 8 NSWLR 442
2 citations
Jump To
Cite 1 - (1987) 8 NSWLR 442
Cite 2 - (1987) 8 NSWLR 442
Jenkins v Queensland [2018] QCAT 154
2 citations
Jump To
Cite 1 - [2018] QCAT 154
Cite 2 - [2018] QCAT 154
Jones v Dunkel (1959) 101 CLR 298
3 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Cite 3 - (1959) 101 CLR 298
LLM Holdings Pty Ltd v Michalakellis [2019] QIRC 75
2 citations
Jump To
Cite 1 - [2019] QIRC 75
Cite 2 - [2019] QIRC 75
McIntyre v Tully[2001] 2 Qd R 338; [2000] QCA 115
2 citations
Jump To
Cite 1 - [2000] QCA 115
Cite 2 - [2000] QCA 115
Michalakellis v LMM Holdings Pty Ltd (No 2) [2020] QIRC 24
2 citations
Jump To
Cite 1 - [2020] QIRC 24
Cite 2 - [2020] QIRC 24
Michalakellis v LMM Holdings Pty Ltd (No. 3) [2021] QIRC 289
2 citations
Jump To
Cite 1 - [2021] QIRC 289
Cite 2 - [2021] QIRC 289
Park v State of Queensland & Anor [2013] QCAT 183
1 citation
Jump To
Cite 1 - [2013] QCAT 183
Perera v Warehouse Solutions Pty Ltd (Human Rights) [2017] VCAT 1267
2 citations
Jump To
Cite 1 - [2017] VCAT 1267
Cite 2 - [2017] VCAT 1267
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
2 citations
Jump To
Cite 1 - (2003) 217 CLR 92
Cite 2 - (2003) 217 CLR 92
Qantas Airways v Gama [2008] FCAFC 69
2 citations
Jump To
Cite 1 - [2008] FCAFC 69
Cite 2 - [2008] FCAFC 69
Rintoul v State of Queensland [2016] QCAT 211
2 citations
Jump To
Cite 1 - [2016] QCAT 211
Cite 2 - [2016] QCAT 211
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
2 citations
Jump To
Cite 1 - [2019] FCA 496
Cite 2 - [2019] FCA 496
Saunders v Whittaker and Medihelp Services Pty Ltd (1998) QADT 16
2 citations
Jump To
Cite 1 - (1998) QADT 16
Cite 2 - (1998) QADT 16
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
2 citations
Jump To
Cite 1 - [2001] NSWADT 44
Cite 2 - [2001] NSWADT 44
Smith v Aussie Waste Management Pty Ltd [2015] FWC 1044
2 citations
Jump To
Cite 1 - [2015] FWC 1044
Cite 2 - [2015] FWC 1044
Tafao v State of Queensland [2020] QCATA 76
2 citations
Jump To
Cite 1 - [2020] QCATA 76
Cite 2 - [2020] QCATA 76

Cases Citing

Case NameFull CitationFrequency
Michalakellis v LMM Holdings Pty Ltd [2024] ICQ 222 citations
1

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