Lenz v Rinami Pty Ltd[2024] QIRC 71

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   On 8 February 2024, Mr Lenz ('the Complainant') applied for orders pursuant to s 144 of the Anti-Discrimination Act 1991 ('AD Act') ('the Application'). The order sought would prohibit the Complainant's employer, Rinami Pty Ltd ('the Respondent'), from terminating his employment.

Background

2. [2]
   The Complainant has been an employee of the Respondent since 1 September 2022 at the Respondent's Varsity Lakes office. The Respondent had in place a hybrid work policy.  That policy required staff to attend the Varsity Lakes office at least three days per week. The hybrid work policy also deemed Tuesdays and Fridays as "required days for all staff to work collaboratively in the office".

3. [3]
   Approximately six weeks after commencing employment with the Respondent, the Complainant made an agreement with the Respondent that allowed the Complainant to work in the office on Mondays, Tuesdays and Fridays. This agreement also allowed the Complainant to attend the office only between school drop-off and pickup times. However, the Complainant would be required to work from home in the afternoons to make up for the balance of a full-time week. The agreement reached between the Complainant and the Respondent was in line with the Respondent's existing hybrid work policy for staff at the Varsity Lakes office.

4. [4]
   At some stage in 2023, the Complainant began spending more time working from home. The Respondent submits that the last recorded week that the Complainant attended the office on all three days was the week of 10 to 14 July 2023.

5. [5]
   The increased time that the Complainant spent working from home coincided with the worsening of the Complainant's chronic pain, which affected the Complainant's mobility. On 18 March 2023, the Complainant sent a message to the Respondent stating "Just need to take a break from my desk. Been sitting too long and my knees are killing me." Then, on 17 April 2023, the Complainant requested a meeting with the Respondent's Operations Manager, Mr McGregor. The purpose of that meeting was to discuss the Complainant's request to work from home for two weeks. The Respondent submits that the Complainant requested this working arrangement to "sort out [the Complainant's] knees". The Respondent agreed to this temporary arrangement.

6. [6]
   After nearly two months of working entirely from home, the Complainant advised the Respondent that "there hasn't been any major positive change with my knees. Having good days and bad days, but we basically established that they're done and won't be recovering. Que sera sera and all of that". There were numerous instances from that point on where the Complainant worked from home, sometimes because of the Complainant's mobility issues.

7. [7]
   The Complainant's supervisor met virtually with him on 24 October 2023. The supervisor raised concerns about the Complainant's lack of attendance at the office. The Complainant apparently replied that he was worried that his office chair could not safely support his weight following recent weight gain. The Respondent investigated these concerns and determined that the chair's maximum capacity of 259kg was more than adequate to safely support the Complainant's weight.

8. [8]
   Another meeting occurred on 2 November 2023 between the Complainant and the Respondent. Again, the topic discussed was the Complainant's health and safety. The Respondent submits that the Complainant said that he was having significant mobility issues and pain due to an ankle injury. The Respondent also submits that the Complainant said that he was unable to work for more than 20 minutes without pain and that he hoped to be able to work up to 30 minutes without pain after a month.

9. [9]
   The Complainant disagrees with the Respondent's submissions about the 2 November 2023 meeting. The Complainant submits that he said that he was "in constant pain" and so could not work any period of time without pain. Indeed, that is relevantly the phrasing of the "Patient Health Summary" dated 4 November 2023 prepared by Dr Samir Ibrahim, which states "has constant pain in R Ankle". The Complainant provided that document to the Respondent after it asked the Complainant for medical information about his condition.  In his revised submissions, the Complainant submits that on 2 November 2023 he told the Respondent that he could not "walk" (as opposed to using the word "work") for more than 15 minutes at a time, with his best effort being 17 minutes of walking. The Complainant submits that he was aspiring to be able to walk for 30 minutes continuously so he could confine his movement to a 30-minute lunch break.

10. [10]
    The Complainant referred to MS Teams messaging correspondence that he had with the Respondent on 19 October 2023. In that correspondence, the Complainant said that he had seen an improvement in his leg and was able to walk for 15 to 20 minutes, managing 6,000 steps a day "without pain". The Complainant did not explain the inconsistency between saying he was able to walk up to 6,000 steps a day "without pain" on 10 October 2023 and saying he was in "constant pain", and unable to walk for more than 15 minutes, on 2 and 4 November 2023.

11. [11]
    On 3 November 2023, the Respondent met with the Complainant following a reminder sent by the Respondent to staff about complying with the established hybrid work policy. During this meeting, the Complainant and the Respondent's Mr McGregor discussed the Complainant's mobility issues. At some point in this meeting, Mr McGregor requested the Complainant to provide information from a medical practitioner about the Complainant's mobility issues. In response, the Complainant provided the Respondent with the abovementioned "Patient Health Summary" dated 4 November 2023. The "Patient Health Summary" was a single page document relevantly stating little more than:

[the Complainant] has constant pain in R ankle X ray indicated Small bony ossicle superimposed on the inferior half of the lateral gutter of the ankle mortise due to permanent dystrophic calcification / chronic avulsion injury."

12. [12]
    The Respondent put on evidence that it responded to the Complainant with an email saying "thanks for the letter. I was looking for it saying that your ability to attend the office is diminished because of this condition". The Complainant replied:

What the letter says, as my doctor explained when he provided it is that:

My ability to walk is diminished.

My ability to climb stairs is diminished.

My ability to drive is diminished (driving is quite painful).

My ability to sit for long periods is diminished.

My ability to sleep comfortably is diminished.

I have caused myself a permanent and painful disability that I have to now learn to live with.

So yes, my ability to attend the office is diminished.

My ability to do anything ever again in my life is diminished.

And please note that as an employee I have provided far more information than I'm obliged to in any way.

What I'm asking for in having to manage this disability costs [the Respondent] nothing at all.

13. [13]
    The Complainant also submitted in his response that his walking is confined to laps of 100 steps inside of his house and that he has been unable to walk his dog for nearly one and a half years. The Complainant further submits that his physiotherapist has prohibited the Complainant from walking on uneven surfaces, inclines, declines, stairs and sand.

14. [14]
    The Complainant concluded in an email to the Respondent that he thought "the best path forward here is for me to put together a formal request for flexible work arrangements as per the fair work guidelines". In reply, Mr McGregor thanked the Complainant and said "I have no doubt you are in extreme pain and your lifestyle is being severely impacted. Yes, please put together a formal request".

15. [15]
    The Complainant then sent the Respondent a written request for a permanent flexible working arrangement on 6 November 2023. The proposed arrangement allowed the Complainant to work entirely from home and modified the Complainant's "online and available" working hours to be between 8:30am and 2:30pm. However, the Respondent would be allowed to require the Complainant to work an additional eight hours per week outside those times to make up for the shortened "online and available" hours. The Respondent gave the Complainant flexibility to decide when those eight hours were worked.

16. [16]
    The Complainant's request for a permanent flexible working arrangement prompted the Respondent to direct the Complainant to attend an independent medical examination ('IME').  The Respondent submits that it decided that the IME was an appropriate course because the medical information the Complainant provided to the Respondent was inadequate. Specifically, the Respondent submits that it was concerned that there was insufficient information about how the mobility issues impacted the Complainant's ability to work in the Respondent's office and to work from home.

17. [17]
    The Respondent was also concerned about the appropriateness of the request for flexible work arrangements. Specifically, the Complainant's request to work between 8:30am and 2:30pm would not help the Complainant "move and rest throughout the day".  The Respondent noted that being able to "move and rest throughout the day" was one of the Complainant's stated requirements supporting the request to work from home.

18. [18]
    On 23 November 2023, the Respondent formally requested the Complainant to attend an IME.  At the same time, the Respondent granted the Complainant's request for flexible working arrangements on an interim basis. The Complainant raised concerns about the IME on the same day and said that he had already provided medical evidence of his mobility issues. The Complainant said that these mobility issues did not inherently impact the Complainant's ability to work because his work required him to be "sitting at a desk using a computer".

19. [19]
    The Complainant contended that the request to attend an IME was unreasonable and constituted unlawful discrimination. This contention was based on advice that the Complainant says he received from the Fair Work Ombudsman to the effect that "there is no requirement under the Fairwork act (sic) that I undertake this medical examination, however there is a question of reasonableness and discrimination".

20. [20]
    The Respondent submits that the "Patient Health Summary" did not inform the Respondent about what working arrangements were safe for the Complainant. I agree. That single-page document provides little guidance about the Complainant's health and associated mobility issues and no guidance about how the Respondent might safely accommodate the Complainant's mobility issues.

21. [21]
    The Respondent also disagrees with the Complainant's contention that his mobility issues did not impact his ability to work. The Respondent noted that the Complainant raised concerns that being sedentary made the Complainant's pain worse at times. The Respondent submits that it was genuinely concerned about ensuring the Complainant's working arrangements were safe given that the Complainant's role was inherently sedentary.

22. [22]
    The Complainant contended that some of the Respondent's other full-time employees work entirely from home and none of them have been directed to attend an IME. In reply, the Respondent admits that it has other employees who work from home on a full-time basis. However, they do so because they live outside of Queensland. The Respondent submits that those employees have not been required to undertake an IME because their working arrangements were not in place for medical reasons. Rather, those employees were living so far away from the Respondent's offices that it was impractical for them to regularly attend the Respondent's offices. The Respondent also submits that none of those employees had flexible working hours like those requested by the Complainant.

23. [23]
    On 14 December 2023, the Respondent directed the Complainant to attend an IME and provided the following reasons:

As outlined above, it is important that [the Respondent] properly understand your condition and prognosis, as well as any impact this may have on your ability to perform your role.

… By signing the enclosed consent form, you will enable [the Respondent] to ask questions and obtain information so that it can understand your medical condition, how your capabilities for work are affected and your prognosis. From the information we obtain from the IME, [the Respondent] will also be able to understand if there are any reasonable adjustments that can be made to your role or working environment that will enable you to safely perform your duties, including if the temporary flexible working arrangements are unsuitable.

… This process is designed to ensure that you do not place yourself at risk of harm while you work and in order to enable [the Respondent] to better support you.

24. [24]
    The Respondent also directed the Complainant to allow an ergonomic assessment of the Complainant's home to "ensure that [the Complainant's] home working space is suitable, and is appropriate for [the Complainant's] condition."

25. [25]
    In response to the Respondent's directions, the Complainant told the Respondent that he had lodged a complaint with the Queensland Human Rights Commission ('QHRC'). Following the complaint made with the QHRC, the Complainant filed the present application with the Queensland Industrial Relations Commission ('QIRC') on 8 February 2024.  As noted above, the Application sought orders pursuant to s 144 of the AD Act prohibiting the Respondent from taking disciplinary action against the Complainant following the Complainant's refusal to attend an IME and to facilitate an ergonomic assessment of his home workplace.

26. [26]
    On 28 March 2024, the Respondent advised the Commission that it had made the Complainant's position redundant and invited the Complainant to consider discontinuing the Application. At that time, the publication of these reasons was imminent and, having not heard from the Complainant, I have decided to publish the reasons for the decision, having reviewed the reasons in light of the Respondent's advice that it has terminated the employment contract by way of redundancy.

The issues

27. [27]
    Section 144 of the AD Act says:

(1) At any time before a complaint is referred to the tribunal, the complainant or the commissioner may apply, as provided under the relevant tribunal Act, to the tribunal for an order prohibiting a person from doing an act that might prejudice—

(a) the investigation or conciliation of the complaint; or

(b) an order that the tribunal might make after a hearing.

(2) A party or the commissioner may apply, as provided under the relevant tribunal Act, to the tribunal for an order varying or revoking an order made under subsection (1).

(3) If the tribunal is satisfied it is in the interests of justice, an application for an order under subsection (1) may be heard in the absence of the respondent to the application.

28. [28]
    The issue to determine is whether to exercise the discretion to make an order pursuant to s 144 of the AD Act.  To exercise this discretion, the Complainant needs to show that the relevant "act", if not prohibited, might prejudice the investigation or conciliation of the Complainant's complaint or an order that the QIRC might make after a hearing.

29. [29]
    The Complainant submits that the act that I should prohibit is "changing the complainant's employment status (i.e. termination of employment) in response to the complainant's refusal to comply with an unlawful and discriminatory request for an independent medical assessment of his disability".

30. [30]
    In response, the Respondent argues, firstly, a threshold issue pursuant to s 136(b) of the AD Act, secondly, that no case is made out for any act that might prejudice the investigation or conciliation of the complaint, or any order the QIRC might make after a hearing. In the alternative that the test for an injunction applies, the Respondent argues that no triable issue exists and that balance of convenience favours the Respondent.

Relevant law

31. [31]
    In Transport Workers Union of Australia, Boss & Would v Boral Resources (QLD) Pty Ltd ('Boral'), ^[1] Forrest M, as his Honour then was, considered when the exercise of the discretion given under s 144 of the AD Act should be carried out. That case concerned a direction to two trucks drivers to attend an IME. There was disagreement about whether the direction was given solely because of a policy that authorised the employer to direct the truck drivers to attend an IME if they were over the age of 40. The Respondent determined to dismiss both drivers if they refused to attend an IME, prompting the truck drivers to seek the exercise of discretion under s 144.

32. [32]
    Forrest M first observed the lack of guidance about when the discretion under s 144 of the AD Act should be exercised.^[2] In light of that lack of guidance, Forrest M considered that the tests for injunctions were a useful analogue for the test for exercising discretion under s 144.^[3] Accordingly, Forrest M considered whether the complainants had satisfied the test for injunctions when considering whether to exercise discretion under s 144.^[4]

33. [33]
    In Jones v Queensland Health ('Jones'),^[5] his Honour, Wilson J, considered an application under s 144 for orders prohibiting the respondent from acting upon the ill-health retirement powers contained within the now superseded Public Service Act 2008. His Honour observed that past decisions applied the test for when a court or tribunal should order an interlocutory injunction when considering whether to exercise discretion under s 144 of the AD Act.^[6] His Honour said that the test for when a court or tribunal should order an interlocutory injunction has two elements. These two elements are:^[7]

• whether there is a serious question to be tried; and

• whether the balance of convenience as between the parties favours ordering the interlocutory injunction.

34. [34]
    However, against that history, Wilson J noted that the section is "self-contained" and that any injunction-based test should be applied within the confines of ss 144 (1)(a) and (b) of the AD Act.^[8] Significantly, his Honour observed that the "only question material to an application under that section was whether there is, or is not, was a material risk of prejudice of a kind which might affect the things mentioned in s 144 (1)(a) or (b)".^[9] In the context of the dispute before the Tribunal in that case, his Honour observed that:^[10]

"[t]he only relevant question is, then, whether or not the material establishes that the ill-health retirement of Ms Jones might prejudice the investigation or conciliation of her complaint, or an order that QCAT might make after hearing."

35. [35]
    In Mr A v Viva Energy Australia Pty Ltd ('Viva Energy'),^[11] his Honour, Merrell DP, questioned the practice of applying a two-part test for interlocutory injunctions to the exercise of discretion pursuant to s 144.^[12] In that case, his Honour observed that the parties had apparently agreed to run their matter on the basis that his Honour should apply the interlocutory injunction test to s 144.^[13] That interlocutory test requires complainants to show that there is a triable issue and that the balance of convenience favours making an order.^[14]  However, his Honour doubted whether it was appropriate to apply the test for interlocutory injunctions to the exercise of discretion under s 144.^[15] His Honour observed two reasons why using the interlocutory injunction test for the exercise of discretion pursuant to section 144 might be inappropriate.

36. [36]
    The first reason was that Parliament chose not to use the noun "injunction" when drafting s 144.^[16] Citing Gray J in McGee v Saunders (No 2) ('McGee'),^[17] his Honour observed that it may not be appropriate to apply the interlocutory injunction test to a statutory power that allows a court to make an interim order if Parliament does not use the word "injunction" when conferring that power on a court.

37. [37]
    To demonstrate the point made in McGee, his Honour, Merrell DP, noted the different phrasing of s 46PP(1) of the Australian Human Rights Commission Act 1986 (Cth) ('AHRC Act'):^[18]

(1)  At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may grant an interim injunction to maintain:

(a)  the status quo, as it existed immediately before the complaint was lodged; or

(b)  the rights of any complainant, respondent or affected person.

38. [38]
    His Honour also noted the different phrasing of ss 314(1)(f) and 473 of the Industrial Relations Act 2016 (Qld) ('IR Act'):^[19]

(1) Without limiting the commission's jurisdiction to make orders, the commission may make 1 or more of the following orders on deciding an application mentioned in section 313 —

…(f) an order granting an interim or other injunction or make any other order it considers appropriate to prevent, stop, or remedy the effects of, a contravention of this part.

39. [39]
    Section 473(1) of the IR Act relevantly says:^[20]

(1) On application by a person under section 474, the commission may grant an injunction—

(a) to compel compliance with an industrial instrument, a permit or this Act; or

(b) to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act; or

(c) the commission considers appropriate for the prevention or settlement of an industrial dispute involving allegations of sexual harassment or sex or gender-based harassment.

40. [40]
    His Honour's focus was on the intentional use of the word "injunction" in s 46PP(1) of the AHRC Act and ss 314(1)(f) and 473(1) of the IR Act, compared with the conspicuous absence of that word in s 144 of the AD Act.  His Honour's point was that if Parliament had intended for s 144 to contain a general power to order injunctions to maintain the status quo, it would have been easy enough to do so by using the word "injunction".^[21]

41. [41]
    The second reason that his Honour questioned the use of interlocutory injunction tests in determining s 144 applications was that the statutory power in s 144 is narrower than the power to order interlocutory injunctions.^[22] His Honour explained that s 144 is framed in "strict terms" meaning that the Commission must only consider how the "act" that the complainant seeks to prohibit might prejudice the investigation or conciliation of the complaint, or an order that the Commission might make after hearing. His Honour expressed concern that applying the test for interlocutory injunctions – namely, whether there is a serious question to be tried and the balance of convenience between the parties – inappropriately broadens s 144's scope.  I infer from his Honour's concerns that s 144 instead has a narrower focus. Namely, on whether an act might, if not prohibited, prejudice the investigation or conciliation of the complaint or an order that might be made after a hearing.

42. [42]
    I respectfully share those concerns. In my opinion, whether there is a serious issue to be tried and on whose side of the Bar Table the balance of convenience falls are not the focus of s 144. Section 144 clearly states that I should only consider whether the relevant act might prejudice the investigation or conciliation of the complaint or an order that the tribunal might make after a hearing. No more, no less. It might be that a party proves that there is a triable issue or a level of inconvenience along the way to showing that a prejudice might befall the investigation or conciliation of their complaint or an order than a tribunal might make after a hearing.  But when interpreting the terms of s 144 of the AD Act, I must bear in mind the fact that the AD Act prescribes a process for dealing with complaints.  The investigation and conciliation of complaints, as well as arbitration and any subsequent potential remedial orders, are key elements of that process. That is by design. Consequently, it seems clear to me that it is the integrity of those processes that Parliament has sought to protect by way of the discretionary power present in s 144. Conversely, it also seems clear to me that the discretion in s 144 is not simply directed to preserving a substantive status quo.

43. [43]
    In Viva Energy, Merrell DP, did consider the serious issue to be tried and balance of convenience questions.^[23]  However, it seems to me that his Honour did so only because that is how the parties approached the matter. As previously noted, his Honour expressed concerns about the appropriateness of that approach.^[24]  But like Wilson J did in Jones, his Honour Merrell DP evaluated these considerations within the confines of s 144.^[25] In doing so, his Honour made several observations highlighting the prominence of the clear terms of s 144 itself.

44. [44]
    First, his Honour observed the remarks made by Wilson J in McIntyre v Hastings Deering (Australia) Ltd and Anor ('McIntyre').^[26] In McIntyre, Wilson J held that a complainant cannot avoid the obligation to establish that an act might prejudice the investigation or conciliation of the complaint or an order that a tribunal might make after hearing, even where the complainant establishes a prima facie case and proves that the balance of convenience favours the order.^[27] That is a significant observation in my opinion. It highlights that establishing a prima facie case and an inconvenience to a complainant is not the end of the inquiry. Even if inconvenience is established, an order under s 144 can only be made where the complainant has established that not doing so may result in prejudice to the investigation or conciliation of their complaint or an order that the tribunal might make after a hearing.

45. [45]
    Second, his Honour, Merrell DP, noted that the word "might" in s 144 meant that there must be a possibility of prejudice that was at least perceptible and plausible and not too remote and unlikely.^[28]

46. [46]
    Third, his Honour held that financial detriment in the form of a complainant's inability to afford representation is often speculative. His Honour considered a submission in that case which implied that an unrepresented complainant might not achieve a conciliated outcome before the HRC or a relevant order from the QIRC.  His Honour held that there was no proper basis for such an inference to be drawn.^[29] Accordingly, his Honour found that considerations of whether a complainant can afford representation provides no basis for concluding that there might be a tangible prejudice to investigating or conciliating the complaint or any order the tribunal might make.^[30]

47. [47]
    Fourth, his Honour found that the mere fact that a potential dismissal may require a complainant to recast their application is unlikely to prejudice investigating or conciliating the complaint or any order the tribunal might make.^[31]

48. [48]
    In addition to these observations, his Honour considered Horneman-Wren J's observations in Coop v State of Queensland ('Coop').^[32] Horneman-Wren J favoured Wilson J's approach in Jones of considering the test for interlocutory injunctions through the narrower confines of s 144.^[33] Horneman-Wren J only considered the balance of convenience test after finding whether there was an identified "act" that might prejudice investigating or conciliating the complaint or any order the tribunal might make after hearing. His Honour held that the balance of convenience test – that is, whether there is an injury or inconvenience likely to be suffered by a party – is confined by s 144.^[34] In other words, the injury or inconvenience likely to be suffered must be such that it might prejudice the investigation or conciliation of the complaint or orders which might be made after hearing.^[35]

Section 136 of the AD Act

49. [49]
    As to the threshold issue raised by the Respondent, s 136(b) of the AD Act relevantly says:

A complaint must—

…(b) set out reasonably sufficient details to indicate an alleged contravention of the [AD Act]; and

50. [50]
    The Respondent submits that the Complainant's complaint does not have the requisite 'reasonably sufficient details'. The Respondent submits that the lack of details invalidates the Complainant's complaint and so the Complainant's complaint does not enliven the QIRC's jurisdiction.

51. [51]
    In Smith v The Lutheran Church of Australia Queensland District Trading as St Peter's Lutheran College (No.2),^[36] the Queensland Civil and Administrative Tribunal ('QCAT') held that a complaint made under s 136 of the AD Act must have sufficient detail of the alleged breach for the relevant tribunal to consider whether to accept or reject a complaint. QCAT held that "the mere setting out of a factual history of some events, no matter how well worded, is not enough to satisfy the threshold test in s 136."^[37]  Instead, QCAT found that "it is the alleged breach of the [AD Act] that must be sufficiently detailed before a decision to accept or reject a complaint can be undertaken."^[38]

Party submissions and evidence

Complainant's submissions and evidence

52. [52]
    The Complainant's complaint lodged with the QHRC alleges that the direction to attend an IME unlawfully discriminates against him on the basis of a disability. The Complainant also alleges that he has been victimised because he made a discrimination complaint following the Respondent's direction to attend the IME.  The alleged victimisation is the Respondent's direction to facilitate an independent ergonomic assessment of the Complainant's work environment at home.

53. [53]
    The Complainant seeks an order prohibiting the Respondent "from changing [the Complainant's] employment status (i.e. termination of employment)". I surmise from this submission that the "act" that the Complainant seeks an order prohibiting the Respondent from carrying out is the act of terminating the Complainant's employment.

54. [54]
    The Complainant submits that the termination of his employment would cause his mental health to deteriorate. The Complainant further submits that the decline in mental health would be so substantial that he could not practically continue proceedings in the QHRC. The Complainant also submits that a finding that the Respondent victimised him may make the Respondent unwilling to conciliate because the finding of victimisation might expose the Respondent to harsher penalties. The Complainant also submits that it would be in the interests of justice to restrain the Respondent from dismissing him because the Complainant has simply "been caught up in the current post-pandemic "return to office" conflict".

55. [55]
    The Commission issued directions ordering the parties to file evidence to support their respective submissions.  The Complainant did not file any further evidence and relies only on the material included in his application and submissions, including a late amendment and its attachments, all of which I have carefully considered.  No medical evidence was filed by the Complainant supporting his assertion that dismissal might impact his mental health so substantially that it would prevent the Complainant from engaging in the proceedings before the QHRC.

Respondent's submissions and evidence

56. [56]
    The Respondent put on evidence in the form of a statement from Director, Mr Russell Codlin.  The Respondent also filed detailed submissions.

57. [57]
    As noted above, the Respondent submits that the Complainant has failed to make a sufficiently detailed complaint under s 136. The Respondent supports this submission by reference to the absence of correspondence from the QHRC to the Respondent about the Complainant's complaint.

58. [58]
    The Respondent alternatively submits that, pursuant to s 144 of the AD Act, the Complainant has failed to establish why a potential dismissal might prejudice the investigation or conciliation of the complaint or any order that a tribunal might make after hearing.

59. [59]
    The Respondent submits that the Complainant's submission that his mental health would deteriorate if he was dismissed is speculative and not supported by evidence. The Respondent points to the fact that the Complainant has undertaken to treat his mental health and to return to work in some capacity.

60. [60]
    The Respondent also addressed the Complainant's submission that the Respondent would be less amenable to conciliation if the Respondent were exposed to a penalty for victimisation by being allowed to proceed with its proposed ergonomic assessment of the Complainant's home workplace.  The Respondent submits that the Complainant's argument is "illogical and unfounded". The Respondent argues in reply, persuasively in my opinion, that exposure to penalties is likely to have the opposite effect – that such exposure instead ought to inspire the Respondent to be more amenable to conciliation. The Respondent further submits that it has been co-operative and that there is nothing in the Respondent's conduct that indicates that it would stop co-operating.

61. [61]
    The Respondent submits that the Complainant must demonstrate a possibility of prejudice that is tangible, or at least perceptible and plausible and not too remote and unlikely. The prejudice needs to be established as being a prejudice to the processes of investigation or conciliation of the complaint, or to any order that a tribunal might make after hearing. The Respondent also submits that a complainant cannot rely on s 144 of the AD Act to seek general interlocutory injunctive relief to prevent future contraventions of the AD Act that a complainant speculates might occur.^[39] I find both of these submissions to be persuasive.

62. [62]
    The Respondent makes several submissions about the application of the principles of interlocutory injunctions to the present matter. The Respondent submits that the Complainant has not made out a prima facie case. The Respondent also submits that the balance of convenience is confined to that injury or inconvenience outlined in s 144 of the AD Act, i.e., prejudice to the investigation or conciliation of the complaint or to an order that might be made by the tribunal after hearing.

63. [63]
    The Respondent has put on evidence and submissions that it would suffer significant detriment if it were prohibited from directing the Complainant to attend an IME and to facilitate an ergonomic assessment of the home workplace.   Specifically, the Respondent submits that prohibiting it from making such directions would increase the Complainant's risk of further injury. The Respondent contends that the heightened risk of injury (caused by an order prohibiting it from making the aforementioned directions) would compromise the Respondent's ability to meet its workplace health and safety obligations.

Consideration

Section 136 of the AD Act

64. [64]
    In the Complainant's complaint about discrimination made to the QHRC, the Complainant alleges that:

I believe Russell [alleged to be an employee of the Respondent] is acting this way [i.e., directing the Complainant to attend an IME and to facilitate the ergonomic assessment of the work area at home] because he wants to make life as difficult as possible to force me to quit so he doesn't have to deal with having a disabled employee.

65. [65]
    I have carefully considered the Complainant's claim.  In it the Complainant does not specifically allege direct or indirect discrimination. If it is direct discrimination that is alleged, the Complainant fails to particularise how the direction to attend an IME or to facilitate the ergonomic assessment constitutes less favourable treatment of the Complainant.

66. [66]
    If it is indirect discrimination that is alleged, the Complainant does not outline the term that he alleges the Respondent imposed, or proposed to impose, on the Complainant. Even if this term could be identified by implication, no particulars are given as to how a person with the relevant attributes does not, or is unable to, comply with the term. Relevant attributes are not particularised either. There are also no particulars explaining how a higher proportion of people without the attribute comply with, or are able to comply with, the term, or why the term is not reasonable.

67. [67]
    The Complainant's allegations of discrimination are general and vague.  I find that it is unclear how the Respondent is alleged to have specifically contravened the AD Act. I find that the Complainant has not set out reasonably sufficient details to indicate the contraventions of the AD Act, as required by s 136 of the AD Act. Consequently, I find that the Complainant's complaint relating to discrimination does not satisfy the threshold required by s 136(b) of the AD Act.

68. [68]
    In the Complainant's complaint about victimisation to the QHRC, he answered "yes" to the question of "Do you think you have been victimised because you complained about discrimination, unnecessary questions, sexual harassment or public vilification?". Again, I have carefully considered the Complainant's claims of victimisation in his QHRC complaint form. In it, the Complainant fails to particularise how the request to facilitate an ergonomic assessment of the work area at home constitutes victimisation pursuant to s 130 of the AD Act. The Complainant does not say how the direction to facilitate an independent ergonomic assessment of the Complainant's work area at home constitutes a detriment. Consequently, the Complainant fails to plead or particularise how the direction to facilitate an ergonomic assessment of the home workplace constitutes victimisation.

69. [69]
    I find therefore that the Complainant has failed to set out reasonably sufficient details to indicate that the Respondent has victimised him in contravention of s 129 of the AD Act. It follows that I find the Complainant's complaint relating to victimisation does not satisfy the threshold required by s 136(b) of the AD Act.

70. [70]
    I conclude that the Complainant has failed to set out reasonably sufficient details to indicate an alleged contravention of the AD Act.  That defect might be remedied upon the Complaint being given an opportunity to properly set out the required details so that the Respondent can have fair notice of the case it is to answer. The matter is still before the QHRC, however. I do not propose to deal further with this issue other than to conclude that I find in favour of the Respondent's arguments on this point.

The correct approach to applications under section 144 of the AD Act

71. [71]
    Section 144 of the AD Act has previously been approached as a general power to grant injunctions. However, I am inclined to adopt an approach consistent with the observations of Wilson J in McIntyre and Jones, Horneman-Wren J in Coop and Merrell DP in Viva Energy.  Accordingly, I conclude that the correct approach to applications under s 144 of the AD Act is to apply the test that is wholly contained within s 144 itself. In addition to those concerns previously mentioned about applying the test for injunctions, there are others.

72. [72]
    For instance, in applications for injunctions, the notion of 'prejudice' is about prejudice to the parties. However, the meaning and context of 'prejudice' as it appears in s 144 of the AD Act instead comes from the section itself and the Act when read as a whole.  Construing the meaning of that term requires considering the context derived from the other words in the section, applying to them their plain meaning in accordance with the purpose of the legislation and, of course, considering the legislation as a whole.^[40]

73. [73]
    As I construe the term 'prejudice' in s 144, it appears to be primarily concerned with prejudice to the processes of investigation, conciliation and remedial orders after any hearing.   Not simply prejudice to one party or the other if the order being sought is not made.  It is true that 'prejudice' might incidentally befall a party if the Commission does not make an order under s 144. However, prejudice befalling a party does not, in and of itself, mean that prejudice might befall one or more of the processes mentioned in ss 144 (1)(a) or (b).

74. [74]
    Furthermore, there must be consideration of the purpose of s 144 itself.  The processes of investigating complaints, conciliation and remedies that the tribunal may order after a hearing are key elements of the AD Act. I construe s 144 to be a mechanism installed by Parliament, the purpose of which is to empower the Commission to prevent an act from occurring that might cause prejudice to one or more of those processes.

75. [75]
    The injunction test element of unavailability of remedies bears some similarity to the element of s 144(1)(b) - prejudice to an order the tribunal might make after a hearing. However, that is only one of three possible paths that a complainant may take under s 144.  Unlike the fundamental threshold issue in an injunction application, it is not essential to success for an application under s 144 to prove that no other remedy is available.  The three processes mentioned in s 144 (1)(a) and (b) are each separated by the word "or". An application for an injunction will generally fail where another adequate remedy exists. An application under s 144 is not so limited.  For example, depending on the facts, and the relevant 'act', establishing that prejudice might befall the investigation of the complaint alone would suffice.  That is so even if remedies such as reinstatement and compensation are adequate and available after a hearing. Such a case made under s 144 of the AD Act would succeed provided the other elements of s 144 were met.  But it would fail as an application for most interlocutory injunctions because other adequate remedies would still be available.

76. [76]
    In Viva Energy the complainant alleged that his pending dismissal might prejudice the conciliation or investigation of his complaint.  The complainant argued that a dismissal would cause financial stress that would consequently prejudice the complainant's ability to advance his case. Merrell DP concluded that financial stress was not something that was likely to cause a tangible prejudice to the investigation or conciliation of a complaint or any order the tribunal might make after a hearing.^[41] I respectfully agree with and adopt that approach.

77. [77]
    I do not accept the Complainant's assertion that, if dismissed, his mental state may deteriorate such that it might prejudice his ability to assist in the investigation or conciliation of the complaint. There is no cogent evidence before me supporting such an assertion. I am not persuaded by the Complainant's assertions about how he feels he might react if dismissed. I am also disinclined to accept the Complainant's assertions because of the absence of any medical evidence from a suitably qualified practitioner going to the issue of what impact a dismissal might have on the processes of conciliation or investigation, or orders that the QIRC might make after hearing. I am therefore not satisfied that prejudice might befall the investigation or conciliation of the complaint, or any order that the QIRC may make after a hearing, simply because the Complainant says that he will likely suffer a decline in his mental health if I did not prohibit the aforementioned acts.

78. [78]
    The Complainant's assertion that the Respondent will be less amenable to conciliation if the Respondent were left to dismiss the Complainant because it may consequently be subject to harsher penalties must be rejected. I accept the Respondent's submission that exposure to possible penalty is something that would very likely promote the spirit of compromise needed for effective conciliation.

79. [79]
    As to whether any prejudice might befall an order the Commission might make after a hearing, the recent decision to make the Complainant's position redundant may feature at a hearing. If the Complainant succeeds at hearing, the Commission is empowered with broad discretion to make orders for compensation. The Commission is also empowered to make orders for penalties for victimisation if the Complainant successfully proves that he has been victimised. As noted by Horneman-Wren J in Coop, the Commission is also empowered to order reinstatement or re-employment.^[42] I am not satisfied by the Complainant's material that dismissal might prejudice any of these orders that the Commission is empowered to make after a hearing.

80. [80]
    The Complainant also submits that it would be in the interests of justice to restrain the Respondent from dismissing him. In support of this submission, the Complainant argues that he has been caught up in a post-pandemic return to office conflict between employees and employers. There is no evidence presented to support this submission.  In any case, this submission is misguided.  It does not address the relevant test pursuant to s 144 of the AD Act and the submission must be rejected.

81. [81]
    Having considered all of the evidence and submissions presented by the parties, I am not satisfied that the Complainant has established that, if the Respondent were not prohibited from dismissing the Complainant, prejudice might befall the investigation or conciliation of his complaint or any order the QIRC might make. The Complainant has therefore not satisfied the requirements of s 144 of the AD Act. I dismiss the application accordingly.

The injunction test

82. [82]
    As noted above, the test for interlocutory injunctions that has been utilised in previous cases presents some tension with the phrasing of s 144.  As well, the test referred to in those decisions mentioned above sets out only two considerations that must be made out in an injunction application to achieve an order.  First, that there is a real issue to be tried, and if so, that the balance of convenience favours granting the injunction. However, as is also noted above, interlocutory injunctions also require establishing, as a threshold issue, that no other remedy is available. 

83. [83]
    I acknowledge that there is some tension in cases regarding the approach to be taken with respect to s 144 applications.  Specifically, whether applying the test for injunctive relief is the correct approach to applications for orders pursuant to s 144 of the AD Act.  I have decided above that the correct approach is to apply only the test set out in the terms of s 144 itself.  In deference to that body of cases that applied the injunction test, and because the parties have mentioned it in this case, I have also considered this application as if s 144 of the AD Act conferred a general power of injunction.

Triable issue

84. [84]
    For the following reasons, I am not persuaded that there is a triable issue in either discrimination or victimisation.  I have formed that view based on the evidence and submissions presented in this application by the parties. On that material, I am satisfied that the Respondent directed the Complainant to attend an IME in response to the Complainant notifying that he had a debilitating condition that is permanent and painful and that was being aggravated by work.  My preliminary view, which is all that is available to me at this interlocutory stage of the matter, is that the Respondent's direction to the Complainant to attend an IME seems to be a lawful and appropriate response to being told that information.  I accept the evidence and submissions of the Respondent that it made this direction to discharge its workplace health and safety duties owed to the Complainant. I consequently do not see a serious issue to be tried in that regard.

85. [85]
    I also find it difficult to see at this stage of the proceeding that there is a serious issue to be tried in the victimisation complaint.  Again, I can only take a preliminary view of the materials on an interlocutory application such as this.  However, on the evidence and submissions before me, I accept the evidence that there were two main reasons why the Respondent directed the Complainant to facilitate an ergonomic assessment of the Complainant's work area at home.  The first reason is the Complainant's complaints about how work worsened his mobility issues.  The second reason is that the Respondent had just recently granted the Complainant's request to work entirely from home on a temporary basis. A further difficulty for the Complainant in making out a case for a serious issue to be tried is that he has not explained how the direction to facilitate an ergonomic assessment of the Complainant's work area at home amounts to victimisation pursuant to s 130 of the AD Act. I am therefore not satisfied that there is a real issue to be tried within the assertion that directing an ergonomic assessment of the Complainant's work area at home constituted victimisation.

Balance of convenience

86. [86]
    I accept the Respondent's submissions on the balance of convenience test. The Respondent may have been at serious risk of contravening its workplace health and safety obligations if I were to prohibit it from enforcing the IME or ergonomic assessment directions. Based on the material before me, such a prohibition on the Respondent would likely cause the Respondent to suffer a significant prejudice to its ability to meet the workplace health and safety duties that it owes to the Complainant. The Respondent is on notice as to a serious and permanent condition that the Complainant says is constantly painful and is worsened by work.  The Respondent's obligations to ensure the Complainant's safety at work are as obvious as they are serious. 

87. [87]
    I see nothing in the Respondent's conduct to date that indicates it is taking its health and safety obligations less seriously than it should.  From my preliminary vantage point, both of the relevant directions appear to me to be the result of the Respondent needing to meet obligations to ensure the Complainant's safety at work.  The order sought would hamstring the Respondent from obtaining medical advice about how to handle the obvious risk to the Complainant's health and safety attached to work.  As I see it, the orders sought might have compelled the Respondent into the very situation that it is stridently trying to avoid. Namely, directing work to be carried out in the face of an obvious risk to the Complainant's health and safety by doing so.

88. [88]
    Conversely, any prejudice that the Complainant might suffer from not receiving the order he seeks is no greater than that which might befall any other complainant in a similar situation. The Complainant would doubtless suffer financial stress and inconvenience from being dismissed, but there is nothing on the materials before me to suggest that such financial stress and inconvenience would be any greater than what many other complainants in a similar situation might experience. Weighed against the abovementioned prejudice to the Respondent in granting the order sought, my assessment is that the balance of convenience would lie in favour of refusing the application. 

89. [89]
    I conclude that I would not have changed my finding that the application should be dismissed even if the injunction test were applied to this matter.

90. [90]
    I order that the application is dismissed accordingly.

Orders

The Application is dismissed