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Groves v State of Queensland (Queensland Corrective Services)[2024] QIRC 232

Groves v State of Queensland (Queensland Corrective Services)[2024] QIRC 232

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Groves v State of Queensland (Queensland Corrective Services) & Ors [2024] QIRC 232

PARTIES:

Groves, Matt

(Complainant)

v

State of Queensland (Queensland Corrective Services)

(First Respondent)

AND

Bettridge, Colin

(Second Respondent)

AND

Allen, Fiona Irene

(Third Respondent)

AND

Niven, Paul Norman

(Fourth Respondent)

AND

Davis, Simon James

(Fifth Respondent)

CASE NO:

AD/2023/122

PROCEEDING:

Application to dismiss proceedings

DELIVERED ON:

19 September 2024

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

Pursuant to section 541(b)(ii) of the Industrial Relations Act 2016 (Qld) matter number AD/2023/122 is dismissed.

CATCHWORDS:

EQUAL OPPORTUNITY AND DISCRIMINATION – where the respondent has brought an application to dismiss the appeal – whether further proceedings are necessary or desirable in the public interest

LEGISLATION AND

INSTRUMENTS:

Anti-Discrimination Act 1991 (Qld) s 7, s 8, s 9, s 10

Industrial Relations Act 2016 (Qld) s 541

Human Rights Act 2019 (Qld) s 15, s 25

CASES:

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

State of Queensland v Lockhart [2014] ICQ 006

Reasons for Decision

  1. [1]
    On 27 October 2023, the Queensland Human Rights Commission (QHRC) referred a complaint made by Mr Matt Groves (the Complainant) against the State of Queensland (Queensland Corrective Services) (the First Respondent; QCS), Mr Colin Bettridge (the Second Respondent), Ms Fiona Irene Allen (the Third Respondent), Mr Paul Norman Niven (the Fourth Respondent) and Mr Simon James Davis (the Fifth Respondent; CSO Davis).
  2. [2]
    In the Form 85 – Referral of a matter (the Complaint), Mr Groves provided that on 17 September 2021, another employee, Mr Adam Hobart (CCO Hobart), "threatened to bash me" (the incident).[1]
  3. [3]
    Mr Groves articulated his complaint as follows:

on September 2021 a work employeee (sic) Adam Hobart threatened to bash me. I reported this to the supervisor Simon Davis and no action was taken. I again complained to Manager Paul Niven and nothing was done. I thus filled out a SHE report as it had triggered my PTSD and was unable to work. Fiona Allen then looked at the CCTV with Col (sic) Bettridge and again did nothing as the case went to WorkCover and they stated they could no (sic) determine what had occurred and effectively called me a liar as they did not act in the interest of protecting me or investigating the incident appropriately. They did not interview all witnesses, did not stand down the perpetrator, did not reprimand the manager or supervisor and instead left me in a state of financial hardship and suicidal. I was left homeless, destitute and without any help as Workcover said on (sic) thing and Work said the opposite as they continued to blame each other. Work refused to show me the CCTV and then refused to give the CCTV to work cover. I then attempted to kill myself as i become (sic) more and more isolated and continually bullied, and left in financial ruin. My marriage broke down, i became homeless, i gave up my pets and was treated like a liar and not the victim. My claim was then denied by Work Cover and i was forced to return to work as i had no other option for money and thus another witness came forward that was on the CCTV and work never bothered to interview them as they then backed up my claim and again work tried to talk them out of giving a statement. I then left work again and another work cover claim was put in this time it was accepted and backed by a psychiatrist. My original claim has since been overturned by industrial relations where they state the CCTV clearly shows Hobart as the aggressor and agitated and it fit my statement. Going against what my work has said and stated. I believed they had done this intentionally and as said continued to discriminate and bully,, and destroy my life. Im not sure if its because I'm Aboriginal or just the overall toxic attitude and the way they conduct themselves. I am now struggling to get the back pay, holidays, sick pay and all my pay rectified as work cover laugh at me and treat me with contempt and work drag their feet and just don't act Work have also suggested that i end my career and take voluntary medical retirement. I find this disgusting and a way to bully me and get me out of the career I have[2]

Background

  1. [4]
    Between 13 July 2015 and 18 August 2022, Mr Groves was employed with QCS as a Custodial Correctional Officer. At the time of the incident subject of the Complaint, Mr Groves worked at Borallon Training and Correctional Centre. On 19 September 2021, Mr Groves lodged a Safety, Health and Environment incident report (SHE Report) in respect to the incident, where he outlined that CCO Hobart clenched his fists and yelled at Mr Groves, words to the effect of:
  1. a.he 'didn’t know what the fuck [he] was doing';
  1. b.'get the fuck back into charlie 2'
  1. c.he was 'fucking useless';
  1. d.he should 'hide in there [Charlie 2] where [he] belong[s]'; and
  1. e.he would 'fucking smask (sic) [him]', he 'was a useless cunt' and 'would knock [Mr Groves] out and smash [Mr Groves]'.[3]
  1. [5]
    From 21 September 2021 to 17 October 2021, Mr Groves took a period of sick leave (including sick leave charged to recreation leave and sick leave without pay).
  2. [6]
    On 22 September 2021, Mr Groves lodged a WorkCover claim for a psychiatric injury he claimed to have sustained from the incident.
  3. [7]
    On 22 September 2021, the incident and relevant evidence were referred to the Ethical Standards Group (ESG) for assessment.[4] The ESG's Divisional Action form and complaint were provided to the then Assistant Commissioner (Southern Region Command) for allocation on 30 September 2021. The Divisional Action form recommended local management to consider remedial action as the incident did not meet the threshold to investigate further because:
  • There were no prior adverse records with ESG involving CCO Hobart;
  • Mr Groves did not wish to pursue a criminal complaint and expressed preference for the matter to be managed by QCS; and
  • The accounts of witnesses did not corroborate a threat of harm.
  1. [8]
    On 17 November 2021, Mr Groves lodged a further WorkCover claim for psychiatric/psychological injury sustained on 17 November 2021 when he learned of the existence of an alleged new witness (CCO Hamlyn) to the incident.
  2. [9]
    On 13, 14 and 17 November 2021, Mr Groves attended work as usual. He did not otherwise return to work prior to his resignation.
  3. [10]
    On 20 January 2022, Mr Groves lodged his Complaint with the QHRC.
  4. [11]
    On 5 August 2022, Mr Groves resigned from QCS effective 18 August 2022.
  5. [12]
    On 27 September 2022, a Re-Assessment Form in relation to the Incident was endorsed. The findings included that the allegations made by Mr Groves were not capable of being substantiated and the matter was closed.
  6. [13]
    The Complaint lodged by Mr Groves in the QHRC was unable to be resolved and was referred to this Commission at Mr Groves' request on 27 October 2023.

Application to dismiss proceedings

  1. [14]
    On 31 October 2023, the Industrial Registry emailed the parties requesting their availability to attend an initial conference of the matter.
  2. [15]
    On 14 November 2023, the Respondent wrote to the Industrial Registry and Mr Groves, requesting that I first issue directions orders requiring submissions on whether or not these proceedings ought to be dismissed pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld) (the IR Act).
  3. [16]
    The Respondents provided their position was that there has been no breach of the Anti-Discrimination Act 1991(Qld) (AD Act) or the Human Rights Act 2019 (Qld) (HR Act). In the circumstances, the Respondents submitted there would be no utility in holding a conciliation conference.
  4. [17]
    Mr Groves replied to that correspondence:

It would be prudent for the Commission to issue orders, as per s 541(b)(ii) of the Industrial Relations Act 2016 (Qld), to facilitate a more comprehensive examination of the issues at hand, thereby ensuring a fair and just outcome for all parties involved.

  1. [18]
    On 16 November 2023, I issued a Directions Order requiring submissions from the parties on the question of whether or not these proceedings ought to be dismissed under s 541(b)(ii) of the IR Act.

Relevant Legislation

  1. [19]
    Section 541(b)(ii) of the IR Act states (emphasis added):

541 Decisions generally

The court or commission may, in an industrial cause do any of the following—

  1.   make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;
  1.  dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—
  1.  the cause is trivial; or
  1.  further proceedings by the court or commission are not necessary or desirable in the public interest;
  1.  order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.
  1. [20]
    The AD Act prescribes:

7 Discrimination on the basis of certain attributes prohibited

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

…

  1.  age;
  1.  race;
  1.  impairment;

…

8 Meaning of discrimination on the basis of an attribute

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

  1.  a characteristic that a person with any of the attributes generally has; or
  1.  a characteristic that is often imputed to a person with any of the attributes; or
  1.  an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
  1.  an attribute that a person had, even if the person did not have it at the time of the discrimination.

Example of paragraph (c)—

If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.

9 Discrimination of certain types prohibited

The Act prohibits the following types of discrimination—

  1.  direct discrimination;
  1.  indirect discrimination.

10  Meaning of direct discrimination

  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. It is not necessary that the person who discriminates considers the treatment is less favourable.
  1. 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. 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.
  1. 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. [21]
    Section 15 of the HR Act provides:

15 Recognition and equality before the law

  1. Every person has the right to recognition as a person before the law.
  1. Every person has the right to enjoy the person’s human rights without discrimination.
  1. Every person is equal before the law and is entitled to the equal protection of the law without discrimination.
  1. Every person has the right to equal and effective protection against discrimination.
  1. Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
  1. [22]
    Section 25 of the HR Act provides:

25 Privacy and reputation

A person has the right—

  1. not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
  1. not to have the person’s reputation unlawfully attacked.

Consideration

The Respondents' submissions

  1. [23]
    The Respondents submitted the matter should be dismissed as Mr Groves has failed to adequately identify the conduct he is relying on to support any allegations of a breach of the AD Act or the HR Act, and the proceedings are otherwise misconceived and/or lacking in substance.
  2. [24]
    The Respondents submitted that based on the Complaint form, they would be guessing the case they are having to meet at a hearing is:
  1. Direct impairment and/or race discrimination in breach of the AD Act on the basis the investigation process was flawed;[5] and
  2. A breach of the right to recognition and equality before the law under s 15 of the HR Act.[6]
  1. [25]
    The Respondents submitted that no such breaches have occurred and that the incident was properly referred to ESG and an assessment was completed in eight days, in accordance with the Public Sector Commission's Conduct and Performance Excellence Case Categorisation framework.[7]
  2. [26]
    With reference to the investigations conducted by WorkCover and QCS respectively that were raised in the Complaint form, they submit that they were separate and for different purposes. Whilst the Office of Industrial Relations (OIR) overturned the decision to deny Mr Groves' First Claim and preferred Mr Groves' version of events, the witness accounts are inconsistent. Significantly, OIR's decision found "the injury did not arise out of or in the course of management action".[8] 
  3. [27]
    Further, they submit that Mr Groves' claim that QCS refused to provide the CCTV footage of the Incident to WorkCover is misconceived, because CCTV footage was provided to WorkCover. Any delays were due to QCS seeking necessary advice regarding its obligations under the Corrective Services Act 2006 and the Information Privacy Act 2009 regarding release of confidential information (CCTV footage) and was unrelated to Mr Groves' impairment and/or race.[9]

The Complainant's submissions

  1. [28]
    Although Mr Groves did not specifically address each point raised by the Respondents with respect to why these proceedings should be dismissed, he provided some further information regarding his Complaint.
  2. [29]
    Mr Groves submitted that he previously "raised concerns with HR regarding incidents that triggered my PTSD" for example when "two Indian colleagues spoke Hindi instead of English with each other and with prisoners". Mr Groves provided that despite "experiencing significant stress and anxiety, [his] concerns were dismissed".[10]
  3. [30]
    With respect to the incident complained of, Mr Groves submitted he was outside the unit at Charlie 2 when he joined a conversation between CCO Hobart and another officer. Without provocation, CCO Hobart became extremely aggressive, yelling, screaming, and threatening to physically assault Mr Groves. He repeatedly used derogatory language, further exacerbating his condition.[11]
  4. [31]
    Mr Groves asserts in his written submissions that he believes to have experienced age discrimination and racially motivated actions, "orchestrated between CSO Davis and CCO Hobart".[12] This is because when Mr Groves reported the incident to CSO Davis, given "his personal relationship with CCO Hobart, CSO Davis showed little interest and failed to take any action".[13] Mr Groves submitted that after reporting the incident to CSO Davis, when he was leaving the office, he overheard CSO Davis make "a derogatory racial comment under his breath, which was a clear act of racial discrimination against my aboriginal heritage".[14]
  5. [32]
    Mr Groves claimed that at a different meeting between him and his Manager, Mr Niven "chose to disregard the severity of CCO Hobart's treats and sought to bypass disciplinary action".[15] Following this, HR became involved, and HR Representatives Ms Allen and Mr Bettridge reviewed the CCTV footage of the incident and concluded that nothing had occurred.[16]
  6. [33]
    Mr Groves submits that the lack of investigation by the QCS employees further deprived him of justice and raised questions about racial motivations. The cumulative effects of these incidents have exacerbated Mr Groves' PTSD. 

Should these proceedings be dismissed?

  1. [34]
    In Campbell v State of Queensland (Department of Justice and Attorney-General),[17] Justice Martin provided (emphasis added, citations removed):
  1. [25]
    Similarly, in Prange v Brisbane City Council, Hall P held at [3] that:

"The power to dismiss proceedings pursuant to s. 331 of the Act, on the ground that further proceedings are not necessary or desirable in the public interest, is a discretionary power. The discretion is not vested in this Court. The discretion is vested in the Commission. Only in limited circumstances may this Court intervene. In House v The King at 504 to 506, Dixon, Evatt and McTiernan JJ explained:

'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’

  1. [26]
    In the earlier case of Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd Hall P, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell as follows:

"There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules."

  1. [35]
    Satisfaction of s 541(b)(ii) of the IR Act turns on whether further proceedings are not necessary or desirable in the public interest.
  2. [36]
    The decision of his Honour Deputy President O'Connor (as he then was) in State of Queensland v Lockhart provided (emphasis added, citations removed):[18]

In O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression ‘in the public interest’. Their Honours wrote:

‘Indeed, the expression, ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.’

In GlaxoSmithKline Australia Pty Ltd v Makin, the Full Bench of Fair Work Australia in considering what constitutes ‘the public interest’ wrote:

‘Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.

  1. [37]
    The Respondents submit that it would not be in the public interest for the matter to be heard because:
  1. Mr Groves failed to adequately particularise any alleged breach of the AD Act or HR Act or his alleged loss; [19] and
  2. In any event, the proceedings are otherwise misconceived and/or lacking in substance, there are insufficient prospects of success to justify the matter proceeding to hearing, and having regard to the Commission's limited resources.[20]

Has Mr Groves failed to adequately particularise any alleged breach of the AD Act or HR Act or his alleged loss?

  1. [38]
    With respect to the first point the respondent raised at [36](a), I agree that Mr Groves did not adequality particularised any breach of the AD Act or the HR Act in his Complaint, which was before the Respondents at the time they submitted their application to dismiss the proceedings. However, at the point of making his Complaint to the QHRC, Mr Groves had not been asked to particularise his case in any great detail. Under the "Details of the Complaint" section of the Complaint, the form states "Providing dates, and stating with the first event and then proceeding to the second and subsequent events, please tell us what happened".  In this section is where Mr Groves outlined the following (emphasis added):

on September 2021 a work employeee (sic) Adam Hobart threatened to bash me. I reported this to the supervisor Simon Davis and no action was taken. I again complained to Manager Paul Niven and nothing was done. I thus filled out a SHE report as it had triggered my PTSD and was unable to work. Fiona Allen then looked at the CCTV with Col (sic) Bettridge and again did nothing as the case went to WorkCover and they stated they could no (sic) determine what had occurred and effectively called me a liar as they did not act in the interest of protecting me or investigating the incident appropriately. They did not interview all witnesses, did not stand down the perpetrator, did not reprimand the manager or supervisor and instead left me in a state of financial hardship and suicidal. I was left homeless, destitute and without any help as Workcover said on (sic) thing and Work said the opposite as they continued to blame each other. Work refused to show me the CCTV and then refused to give the CCTV to work cover. I then attempted to kill myself as i become (sic) more and more isolated and continually bullied, and left in financial ruin. My marriage broke down, i became homeless, i gave up my pets and was treated like a liar and not the victim. My claim was then denied by Work Cover and i was forced to return to work as i had no other option for money and thus another witness came forward that was on the CCTV and work never bothered to interview them as they then backed up my claim and again work tried to talk them out of giving a statement. I then left work again and another work cover claim was put in this time it was accepted and backed by a psychiatrist. My original claim has since been overturned by industrial relations where they state the CCTV clearly shows Hobart as the aggressor and agitated and it fit my statement. Going against what my work has said and stated. I believed they had done this intentionally and as said continued to discriminate and bully,, and destroy my life. Im not sure if its because I'm Aboriginal or just the overall toxic attitude and the way they conduct themselves. I am now struggling to get the back pay, holidays, sick pay and all my pay rectified as work cover laugh at me and treat me with contempt and work drag their feet and just don't act Work have also suggested that i end my career and take voluntary medical retirement. I find this disgusting and a way to bully me and get me out of the career I have[21]

  1. [39]
    Mr Groves now has had an opportunity to further particularise his complaint in his written submissions as to why these proceedings should not be dismissed.  I have had careful regard to those submissions and make the following observations.
  2. [40]
    From what I can best discern from reviewing the Complaint form submitted by Mr Groves, he is alleging he was directly discriminated against as defined by s 10 of the AD Act, and that the Respondents breached ss 15 and 25 of the HR Act impacting upon his right to recognition and equality before the law.[22]
  3. [41]
    For Mr Groves to make out that he had been subject to direct discrimination, the Commission must be satisfied, on the balance of probabilities, that:
  • He has been treated less favourably than another person without the attribute (impairment and/or race and/or age) in circumstances that are the same or not materially different; and
  • The attribute (impairment and/or race and/or age) must be a substantial reason for the treatment.[23]
  1. [42]
    In the Complaint form, Mr Groves referred to himself as being 'Aboriginal' and claimed to have Post Traumatic Stress Disorder and anxiety. Mr Groves further articulated in his written submissions he believes to have experienced "not only age discrimination but also racially motivated actions, orchestrated between CSO Davis and CCO Hobart …".[24]
  2. [43]
    In my view, the conduct complained about seems to be an incident whereby an aggressive exchange occurred between CCO Hobart and Mr Groves but it did not occur based on impairment, race or age. In the most contemporaneous report of what was said during the exchange between Mr Groves and CCO Hobart produced on 19 September 2021, Mr Groves does not complain of CCO Hobart speaking on the basis of any protected attribute.[25] The dispute seems to arise over a disagreement about prisoner management practices. That, together with what Mr Groves wrote on his Complaint form to the QHRC, speaks to a disagreement occurring between colleagues that escalated, but does not indicate that the disagreement was on the basis of any protected attribute.
  3. [44]
    Mr Groves also complained about the manner in which the investigation process took place after reporting the incident to relevant QCS employees. On my assessment of the matter, Mr Groves has not particularised why or how the investigation was flawed because of any protected attribute Mr Groves possesses. Nothing to this effect appears on the Complaint form. In fact, when referring to the way QCS has handled this matter, Mr Groves provided he was "not sure if its because I'm Aboriginal or just the overall toxic attitude and the way they conduct themselves".
  4. [45]
    Mr Groves submitted that the "lack of a thorough investigation by Ethical Standards further deprived me of justice and appropriate care, raising questions about racial motivation or personal attacks against me". Mr Groves' use of the words "raising questions about racial motivation" appears to indicate uncertainty regarding whether the conduct complained about is racially motivated or not. I have not been presented with any specific incidents or events that demonstrate how the way the investigation was conducted was "racially motivated" to disadvantage Mr Groves. The only incident Mr Groves refers to that was racially motivated was where he alleges that after he reported the incident to CSO Davis, Mr Groves "heard CSO Davis make a derogatory racial comment" and that it was a "clear act of racial discrimination against [his] Aboriginal heritage, in breach of Racial Discrimination Act 1975 (Cth)".[26] Mr Groves did not specify what the comment was or how it was in breach of the Racial Discrimination Act 1975 (Cth). Nonetheless, the Commission cannot enforce any allegations of breaches of the Racial Discrimination Act 1975 (Cth), as it is outside its jurisdiction. If this matter were to progress to a hearing, the onus would be on Mr Groves to prove his case. In my view, Mr Groves has failed to adequately particularise any breach of the AD Act or HR Act to date, in both his Complaint form and later in his written submissions in regard to why these proceedings should not be dismissed.
  5. [46]
    Further, there is no evidence to suggest a limitation of Mr Groves' right to recognition and equality before the law in breach of the HR Act and Mr Groves has not particularised any alleged breach of the HR Act.
  6. [47]
    While I agree with the Respondents, that Mr Groves has not particularised any breach of the AD Act or HR Act, I will not dismiss the application purely on that basis. It is the failure of Mr Groves to articulate a breach of the AD Act and HR Act, in combination with the matter having insufficient prospect of success, which has caused me to determine that it would not be necessary or desirable in the public interest for the matter to progress.

Is the complaint misconceived and/or lacking in substance, and are there insufficient prospects of success to justify the matter proceeding to hearing?

  1. [48]
    In order for this matter to succeed at a hearing, Mr Groves would need to satisfy the Commission that he was directly discriminated against, as he had been treated less favourably than another person without the attribute (impairment and/or race and/or age) in circumstances that are the same or not materially different and that the attribute must be a substantial reason for the treatment.[27]
  2. [49]
    An appropriate comparator to assess Mr Groves' prospects of success can be characterised as a person without the attribute of impairment and/or race and/or age, who complained to their employer about an incident during which they allegedly were threatened with physical violence in the workplace.
  3. [50]
    Mr Groves specifically stated in his Complaint form that he was unsure if the way he was treated was as a result he was of his Aboriginal heritage, which he later asserted in his written submissions. As outlined above, Mr Groves initially provided in his Complaint form that he was "not sure if its because I'm Aboriginal or just the overall toxic attitude and the way they conduct themselves". If the conduct complained about was the result of the latter, the "overall toxic attitude and the way they conduct themselves", then presumably the conduct complained about, in circumstances that are the same or not materially different, could occur to any employee.
  4. [51]
    Mr Groves submitted that CSO Davis failed to take any action with respect to his complaint because of "his personal relationship with CCO Hobart", not because of any attribute that Mr Groves possessed. If Mr Groves' submission on this point were to be accepted, it would likely be determined that a person without the attribute of impairment and/or race and/or age, who complained to CSO Davis about an incident during which they allegedly were threatened with physical violence in the workplace by CCO Hobart, would have received the same treatment as Mr Groves, in circumstances where that treatment was the result of the personal relationship between CCO Hobart and CSO Davis.
  5. [52]
    I have had regard to Mr Groves' own recount of the incident with CCO Hobart where no protected attribute had been raised and reported by him initially, rather, it was the difference of opinion in prisoner management practices. Such report would be weighed heavily if the matter was to proceed to a hearing, being a contemporaneous account provided by Mr Groves shortly after the incident occurred. The statements Mr Groves complained of do not contain any slurs in relation to race, impairment, or age. Mr Groves reported that CCO Hobart said (in summary):
  1. a.he 'didn’t know what the fuck [he] was doing';
  1. b.'get the fuck back into charlie 2'
  1. c.he was 'fucking useless';
  1. d.he should 'hide in there [Charlie 2] where [he] belong[s]'; and
  1. e.he would 'fucking smask (sic) [him]', he 'was a useless cunt' and 'would knock [Mr Groves] out and smash [Mr Groves]'.[28]
  1. [53]
    Further, no breach of ss 15 or 25 of the HR Act seems to arise under the circumstances described by Mr Groves, nor has been particularised.  
  2. [54]
    Having regard to the considerations of Justice Martin in Campbell v State of Queensland (Department of Justice and Attorney-General),[29] and the level of efficiency in the use of the Commission as a public resource, I find that in circumstances where the proceedings have limited prospects of success and are misconceived, it is not in the public interest for the matter to progress.

Conclusion

  1. [55]
    I order accordingly.

Orders:

Pursuant to section 541(b)(ii) of the Industrial Relations Act 2016 (Qld) matter number AD/2023/122 is dismissed.

Footnotes

[1] Form 85 – Referral of a matter filed 27 October 2023, 14.

[2] Form 85 – Referral of a matter filed 27 October 2023, 14.

[3] Respondents' submissions filed 14 December 2023, [3].

[4] Ibid [6].

[5] Respondents' submissions filed 14 December 2023 [17].

[6] Ibid.

[7] Ibid [21].

[8] Ibid.

[9] Ibid.

[10] Complainant's submission filed 6 February 2024, [2].

[11] Ibid [3].

[12] Ibid [11].

[13] Ibid [5].

[14] Ibid [6].

[15] Ibid [17].

[16] Ibid [19].

[17] [2019] ICQ 18, [23]-[26].

[18] State of Queensland v Lockhart [2014] ICQ 006, [21] followed in Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18, [24].

[19] Respondents' submissions filed 14 December 2023, [32].

[20] Ibid.

[21] Form 85 – Referral of a matter filed 27 October 2023, 14.

[22] However, no further submissions have been made by Mr Groves with respect to an alleged breach under ss 15 or 25 of the Human Rights Act 2019 (Qld). This conclusion can only be drawn from the fact that Mr Groves wrote "Yes" to the question "Are you complaining about a breach of your human rights …" and indicated the human rights breached were "Freedom of expression" and "Right to privacy and reputation" on the Complaint form to the QHRC.

[23] Anti-Discrimination Act 1991 (Qld) s 10.

[24] Complainant's submissions filed 6 February 2024, [11].

[25] Respondents' submissions filed 14 December 2024, Attachment 1.

[26] Complainant's submissions filed 6 February 2024, [6].

[27] Anti-Discrimination Act 1991 (Qld) s 10.

[28] Respondents' submissions filed 14 December 2023, [3].

[29] [2019] ICQ 18.

Close

Editorial Notes

  • Published Case Name:

    Groves v State of Queensland (Queensland Corrective Services) & Ors

  • Shortened Case Name:

    Groves v State of Queensland (Queensland Corrective Services)

  • MNC:

    [2024] QIRC 232

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    19 Sep 2024

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
Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18
4 citations
Jump To
Cite 1 - [2019] ICQ 18
Cite 2 - [2019] ICQ 18
Cite 3 - [2019] ICQ 18
Cite 4 - [2019] ICQ 18
State of Queensland v Lockhart [2014] ICQ 6
2 citations
Jump To
Cite 1 - [2014] ICQ 6
Cite 2 - [2014] ICQ 6

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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