Rutherford v RACQ Operations Pty Ltd
[2024] QIRC 145
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- Rutherford v RACQ Operations Pty Ltd[2024] QIRC 145
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Rutherford v RACQ Operations Pty Ltd[2024] QIRC 145
Rutherford v RACQ Operations Pty Ltd[2024] QIRC 145
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Rutherford v RACQ Operations Pty Ltd [2024] QIRC 145 |
PARTIES: | RUTHERFORD, Julie (Complainant) v RACQ Operations Pty Ltd (Respondent) |
CASE NO: | AD/2023/96 |
PROCEEDING: | Application in proceedings |
DELIVERED ON: | 12 June 2024 |
MEMBER: | Caddie IC |
HEARD AT: | On the papers |
ORDER: | The Respondent's application dated 24 May 2024 to amend their Response to the Complainant's Statement of Facts and Contentions is allowed. |
CATCHWORDS: | INDUSTRIAL LAW – DISCRIMINATION – VICTIMISATION – INTERLOCUTORY APPLICATIONS – application to amend statement of facts and contentions – withdrawal of admission – application granted. |
LEGISLATION: | Anti-Discrimination Act 1991 (Qld) s 166. Industrial Relations Act 2016 (Qld) s 539. Industrial Relations (Tribunals) Rules 2011 (Qld) pt 1 div 2 sub-div 2. Uniform Civil Procedure Rules 1999 (Qld) rr 188, 378. |
CASES: | Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4. Bond v State of Qld & Ors (No.2) [2020] QIRC 078. Cropper v Smith (1884) 26 Ch D 700. Gilbert v Metro North Hospital Service [2021] QIRC 255. State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. |
Reasons for Decision
- [1]Ms Julie Rutherford ('the Complainant') was previously employed by RACQ ('the Respondent'), commencing on 19 May 1986, and holding various customer service roles. She was a Member Engagement Specialist at the time of her termination on 1 April 2022. Proceedings were commenced by the referral of a complaint from the Queensland Human Rights Commission pursuant to s 166 of the Anti-Discrimination Act 1991 (Qld) ('AD Act') ('the Proceedings'). The Proceedings are set down for hearing commencing 1 July 2024.
- [2]At a mention held 20 May 2024, the Commission raised with the Respondent that two amended Statements of Facts and Contentions ('SOFC') had been filed in the Registry on 11 March 2024 and 13 May 2024 respectively, without the Respondent seeking leave to do so. It was noted that two of the amendments were potentially significant – particularly the proposed substitution of an admission with a denial.
- [3]The parties' attentions were drawn to the Anti-Discrimination Guide ('the AD Guide')[1] issued by the Commission, which outlines the requirement for approval of the Commission to amend a SOFC.[2] The Commission issued directions following the mention setting aside the amended SOFCs and requiring the Respondent to make an application within proceedings for leave to file a consolidated amended SOFC by 27 May 2024. The Complainant was directed to provide any response to this application by 3 June 2024.
- [4]In accordance with these directions, the Respondent filed their application within proceedings ('the application') on 24 May 2024 and the Complainant provided their response ('the response') on 3 June 2024. To avoid confusion, I will refer to the parties to this application based on their role in the Proceedings – Complainant and Respondent.
Power to grant leave to amend
- [5]In respect of the statutory regime governing amendment, the Respondent has referred in their submissions to pt 1 div 2 sub-div 2 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules')[3] and to amendment provisions in the Uniform Civil Procedure Rules 1999 ('UCPR')[4] governing the conduct of proceedings in Qld Courts. The Respondent argues the principles relating to the amendment of applications or of pleadings in civil proceedings should be applied here.
- [6]These issues were directly contemplated by Dwyer IC in Bond v State of Queensland & Ors (No.2).[5] This matter also involved a complaint of a breach of the AD Act in relation to work, and an application by the Complainant to amend the SOFC. Dwyer IC concludes the Commission has the necessary authority to grant leave to amend SOFCs as follows:
[18] While it is a document that forms part of the broader proceedings, a SOFC is a product of a direction issued pursuant to r 41. Rule 41 contains a broad and non exhaustive list of examples of orders that may be made in the conduct of proceedings. An order requiring amendment to a SOFC, or granting leave to amend on application, is within the contemplation of those powers in my view. Further, I consider s 539(d) of the IR Act provides an alternate source of the Commission's powers in this regard.[6]
- [7]The Respondent also refers in submissions to the AD Guide, which in addition to setting out the requirement to seek approval of the Commission to amend SOFCs, states "Any application to amend a Statement of Facts and Contentions must be made within seven (7) days before the hearing."[7]
- [8]I am satisfied that the Commission has discretion to determine whether leave to amend SOFCs should be granted, and that the Respondent has made the application within the timeframe outlined in the AD Guide.
The amendments sought
- [9]In the application, the Respondent contends most amendments sought are editorial in nature and do not alter the substance of the original SOFC. They confirm there are two amendments of substance:
- Raising the issue of misconduct based on the secret tape recordings of conversations, and its implications on any damages awards.
- The withdrawal of an admission as to the legal result of the reasons for termination.[8]
- [10]The Respondent asserts that the first amendment of substance should not be contentious as it raises a matter that only came to their attention through the disclosure process. The Respondent submits it is relevant to the consideration of any damages to be awarded should a finding in the Proceedings be made in favour of the Complainant.[9]
- [11]The Respondent acknowledges the withdrawal of an admission requires more detailed justification. They cite authorities from other jurisdictions they submit establish principles for the withdrawal of admissions, the Commission as currently constituted should apply:[10]
13. The principles to be applied in granting of leave for amendments including the withdrawal of an admission, were considered by the High Court in State of Queensland v J L Holdings Pty Ltd.[11] In the first instance, the trial judge rejected a late amendment to a defence in long running litigation that substantially changed the defendant's case, would have require [sic.] substantial additional facts to be introduced, and would result in existing trial dates to be aborted. In overturning the trial judge's decision, the joint reasons of Dawson, Gaudron and McHugh JJ referred with approval to an oft quoted passage in Cropper v Smith[12] where (at 710) Bowen LJ said:
"Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace."
- [12]In support of this specific amendment, the Respondent states their intention is to replace an admission of an allegation with a denial, to accurately reflect the legal effect of the reasons for dismissal of the Complainant. The Respondent argues the framing of this matter was a mistake and relies on the affidavit of Matthew John Payten as follows:
8. Referring specifically to the withdrawal of the admission in Part B, paragraph 9(c) of the original Response, the admission was an error on my part in the original Response as to the legal implications of the facts. The reason for the termination of employment are documented in a termination approval document and correspondence between the parties, being the prolonged absence from work and the inability to perform the duties of employment. It was my original assumption that because the absence and inability to perform the duties of employment were connected with the impairments, that it was likely to be considered to meet the definition of direct discrimination, subject then to the operation of the exemptions in sections 25, 36 and 108 of the Anti-Discrimination Act. However, in preparing the Applicant's outline of submission for the Proceedings and further considering relevant case law, it was apparent that this legal conclusion was incorrect, and that it was more probable (or at least reasonably open) to conclude that the test of direct discrimination was not met, because the Applicant did not treat the Respondent any less favourably than any other comparator employee without the impairment attribute in the same circumstances – that is, an employee who had a prolonged absence from work of the same magnitude and/or who was unable to perform the duties of employment. As such, the admission should not have been made, and is sought to be withdrawn.
- [13]Referring to the principles in J L Holdings,[13] the Respondent submits inter alia that the underlying facts for consideration are unchanged, there will be no delay to the Proceedings, and there is no evidence of any prejudice to the Complainant, as the lawfulness of the termination has at all times remained in issue.
The Complainant's response
- [14]The Complainant provided the following response to the application:
[1] In regards to the audio recordings, I sought advice and legally recorded the phone calls for my own personal record. This was done in the privacy of my own home and was not done with any malicious intent. All incoming and outgoing calls at RACQ are recorded so I also wanted a record of these very important conversations. Understandably, I presumed that I would not be able to remember all that was discussed without such recordings. These conversations occurred nearly 6 months after lodging the last work capabilities form and having no contact from RACQ regarding the form. I was receiving no pay during this time.
[2] In regards to the reason for my termination, my termination letter states that it is a "medical separation". The show cause letter refers to the reasonable adjustments not being feasible. It also claims that no other suitable roles were currently available. Why were they looking for other roles for me if I'd been away too long to be employed? And why was I offered the perfect job 23 months after last working?
[3] Any "extended and ongoing absence from employment" was due to RACQ's discrimination. My absence during COVID was due to them requesting personal and unnecessary information and treating me unfavourably due to my family responsibilities. My absence after being put in the inappropriate role of concierge, was due to no contact from Human Resources after I had submitted the review of my work capabilities form.
[4] Lastly, I do not believe that any new information has been provided that would support the change of reason for my termination. Mr Payten was the General Manager of Human Resources at the time of the discrimination and my dismissal so would have had full access to all relevant and necessary information regarding the reason for my termination. His proposed amendment is not a subtle change to his original response but rather a completely different scenario and I do not agree to it being changed.[14]
Consideration
- [15]I accept the Respondent's characterisation of many of the proposed amendments as unsubstantial and the identification of two amendments being of substance. In forming this view, I note that the Complainant offers no comment in relation to this characterisation.
- [16]I remain slightly perplexed by the Respondent's view articulated again in this application that they simply had to file the amended SOFCs, and in the absence of any objection from the Complainant, those SOFC became their amended case. The lack of objection received from a self-represented complainant unfamiliar with the procedures of the Commission should not reasonably be read as consent. This approach also underestimates the importance of SOFCs as outlined in the AD Guide, in many decisions in this jurisdiction,[15] and as described by Dwyer IC in Bond:
[19] … I consider that an important function of a SOFC is to allow parties to properly set out and particularise their complaint, and to allow them to understand the case of other parties to the proceedings. While not formally recognised as such, I consider that SOFCs have a function akin to pleadings.[16]
- [17]In relation to the first amendment of substance raising the purported impact of the audio recordings, I note the Complainant's response includes her rationale for recording the conversations and her rejection of the characterisation of her conduct, but does not include any grounds for objection to the amendment.[17] I accept this amendment.
- [18]The amendment seeking to replace an admission with a denial warrants closer consideration. I note paragraphs [2] and [3] of the Complainant's response argue the merits of the case rather than providing grounds for objecting to the amendment. In paragraph [4] however, the Complainant does clearly object to the amendment on the basis that "His proposed amendment is not a subtle change to his original response but rather a completely different scenario and I do not agree to it being changed."
- [19]It is consistent with the principles highlighted by the Respondent that should this amendment substantially change the pleaded case and thereby cause disadvantage to the Complainant, this would represent a reasonable basis to refuse the amendment. I do not consider that to be the case when considering the amendment sought.
- [20]The impugned clause of the Respondent's original SOFC provides:
[The Respondent] admits that the Complainant's employment was terminated for reasons including her impairment, but says that this is exempted for the reasons set out in Part C of this Response.
- [21]The proposed amended SOFC provides:
[The Respondent] denies that the Complainant's employment was terminated because of her impairment and says that the Complainant's employment was terminated because of:
i. her extended and ongoing absence from employment; and
ii. her inability to perform the requirements of her role as a Member Engagement Specialist.
- [22]Part C referenced in the Respondent's original SOFC directly refers to the defence relied upon by the Respondent regarding the Complainant's alleged inability to undertake the inherent requirements of the role including attendance and the role's duties. This tends to support the evidence of Mr Payten that it was never his intention to infer that the termination was unlawful, and the amendment simply puts this beyond doubt.
- [23]For the benefit of the Complainant, I emphasise that allowing the amended SOFC to form the basis of the Respondent's case does not indicate any agreement on the part of the Commission to what is being contended by any party at this stage in the Proceedings. The parties will each have the opportunity to advance their cases at Hearing.
- [24]I am satisfied that my discretion can be appropriately exercised to allow the application to amend the Respondent's SOFC and I order accordingly.
Order
1. The Respondent's application dated 24 May 2024 to amend their Response to the Complainant's Statement of Facts and Contentions is allowed.
Footnotes
[1] Queensland Industrial Relations Commission Guide, Version 1.1, updated 25 August 2021.
[2] Ibid, p 21.
[3] The Respondent incorrectly referred to this as div 1 sub-div 2.
[4] Uniform Civil Procedure Rules 1999 (Qld) rr 188, 378.
[5] Bond v State of Queensland & Ors (No.2) [2020] QIRC 078 ('Bond')
[6] Ibid, [18].
[7] ADC Guide (n 1), p 22.
[8] Respondent's submissions filed 24 May 2024, [20].
[9] Ibid, [21]; Affidavit of Matthew John Payten filed 24 May 2024, [5].
[10] Emphasis removed.
[11] State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 ('J L Holdings').
[12] Cropper v Smith (1884) 26 Ch D 700.
[13] n 8.
[14] Complainant's submissions in reply filed 3 June 2024.
[15] For example, see Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4, [11]–[15]; Gilbert v Metro North Hospital Service [2021] QIRC 255, [475]–[480].
[16] Bond (n 3), [19].
[17] It should also be noted that the Recordings became known to the Respondent through the Complainant's disclosure of a list of documents in their possession or under their control directly relevant to a matter in issue in the Proceeding, as required by Directions issued on 9 October 2023.