Campbell v Henwood and Racing Queensland Board [2019] QIRC 24

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Campbell, Michael v Justine Henwood and Racing Queensland Board [2019] QIRC 024 PARTIES: Campbell, Michael (Applicant) v Justine Henwood (First Respondent) v Racing Queensland Board trading as Racing Queensland (Second Respondent) CASE NO: AD/2018/58 PROCEEDING: Application in existing proceedings DELIVERED ON: 25 January 2019 HEARING DATES: 18 September 2018, 2 November 2018 HEARD AT: Brisbane MEMBER: Industrial Commissioner Black ORDER: Claim of indirect discrimination dismissed; Claim of direct discrimination to proceed to substantive hearing. CATCHWORDS: ANTI-DISCRIMINATION LAW – Application to dismiss on particular grounds - no reasonable cause of action disclosed in pre-trial material and no reasonable prospects of success - prejudice to respondent - matter involves claims of direct and indirect discrimination based on the attribute of impairment. CASES: Anti Discrimination Act 1991, Kleinig v Village Roadshow Theme Parks Pty Ltd [2015] QCAT 330, Petrak v Griffith University and Ors [2018] QCAT 356. APPEARANCES: Mr M Campbell, self-represented. Mr PA Hardman, of KL Gates, for the respondents -- 1 of 11 -- 2 Decision Introduction [1] The respondents have brought an application seeking the grant of an order pursuant to s 451(1) of the Industrial Relations Act 2016 (the IR Act) and s 174B of the Anti- Discrimination Act 1991 (the Act). The respondents propose that an order be made dismissing the applicant's complaint on the following primary grounds: (a) The applicant's statement of facts and contentions filed on 14 August 2018 and the applicant's further and better particulars filed on 2 October 2018 disclose no reasonable cause of action; (b) The respondents are prejudiced by the failure to disclose a reasonable cause of action in that the respondents are unable to properly respond to the complaint. [2] The respondents argue that the applicant's pre-trial disclosures do not demonstrate any reasonable cause of action. In particular terms, the respondents submit that the applicant's complaints of stress or anxiety do not constitute an "impairment" within the meaning of s 7(h) of the Act. In the alternative, if there were an impairment pursuant to the terms of the Act, the applicant has not demonstrated that he was treated less favourably by reference to other senior employees who do not suffer from his impairment. [3] The submission was that when it came to a discussion about employment status and whether a separation of employment could be arranged under agreed terms, no differentiation could be made between the applicant on the one hand, and the category of persons who did not suffer an impairment, on the other hand. [4] The respondents also submitted that the claim of indirect discrimination cannot be made out for the reason that no term had been imposed on the applicant that the applicant could not comply with, but which a higher proportion of persons who did not suffer from an impairment of stress or anxiety, were able to comply with. Prejudice [5] Because of the failure of the applicant to adequately address the issue of impairment, the respondent said that it was prejudiced in terms of the future conduct of the proceedings, if the proceedings were allowed to continue. Information relating to the nature of the impairment was relevant to:  Whether the applicant has been treated less favourably than another person without the impairment;  Assessments that have to be made in relation to whether unreasonable terms allegedly imposed by the respondent could be complied with by persons without the impairment but which the applicant was unable to comply with;  The calculation of damages which takes into account the impact that the claimed discrimination has had on the applicant's capacity to work and his prognosis for recovery. -- 2 of 11 -- 3 Legislative Scheme [6] The scheme of the Act is one wherein section 7 of the Act prohibits discrimination on the basis of various defined "attributes" including the attribute, in s 7(h) of the Act, of "impairment". Section 8 of the Act refers to the meaning of discrimination on the basis of an attribute, while s 9 prohibits "direct" and "indirect" discrimination. Section 15 deals with discrimination in the area of work. Section 15(c) provides that a person must not discriminate in dismissing a worker, while s 15(f) provides that a person must not discriminate by treating a worker unfavourably in any way in connection with work. [7] The definition of "impairment" included in a schedule to the Act is broadly expressed to include "a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour". [8] Sections 10 and 11 of the Act define direct and indirect discrimination in the following terms: 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. … 11 Meaning of indirect discrimination (1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term— (a) with which a person with an attribute does not or is not able to comply; and (b) with which a higher proportion of people without the attribute comply or are able to comply; and (c) that is not reasonable. (2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example— (a) the consequences of failure to comply with the term; and (b) the cost of alternative terms; and (c) the financial circumstances of the person who imposes, or proposes to impose, the term. (3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination. (4) In this section— term includes condition, requirement or practice, whether or not written. [9] The effect of the legislative scheme is that for the applicant to establish direct discrimination, he needs to show that he was treated less favourably than another person (without the attribute of impairment suffered by him) in circumstances that are the same (or at least not materially different). For the applicant to establish that he has been indirectly discriminated against, he must show that an employment term was imposed on him: (i) That he could not comply with due to his impairment; -- 3 of 11 -- 4 (ii) That a higher proportion of senior employees without that impairment were able to comply with; and (iii) That was not reasonable. [10] The effect of sections 205 and 206 of the Act is that it is for the applicant to prove on the balance of probabilities that the respondent contravened the Act, except in the case of the applicant's allegation of indirect discrimination, where the respondents must prove on the balance of probabilities that a term complained of is reasonable. No reasonable cause of action [11] The respondents relied on a number of propositions to establish that the applicant's complaint did not establish a reasonable course of action, and that his application had no reasonable prospects of success. [12] The respondents said that the applicant had been put on notice in respect to the deficiencies in his cause of action since at least 7 September 2018 when the respondents requested a directions hearing to discuss the deficiencies in the claim. The filing by the applicant of further and better particulars on 2 October 2018 had not, in the view of the respondents, remedied the deficiencies. [13] Further to this filing, neither the disclosure of relevant documents by the applicant nor the outlines of the evidence to be given by the applicant's witnesses, have suggested that the deficiencies in the applicant's case can, or will be, cured. [14] In these circumstances, the respondents submitted that it was unlikely that the substantive proceedings will substantiate the applicant's contentions around the proof of impairment and the nature of the impairment. A failure by the applicant to establish that he was at the relevant time suffering an impairment pursuant to the Act, means that the applicant cannot establish a reasonable cause of action and his application must fail. Not a proper complaint [15] The respondents said that it was accepted that no complaint was made by the applicant to the respondents, prior to, or at the time of, the cessation of his employment, in relation to discrimination. The first time that any complaint about discrimination was made, was when the complaint was lodged with the Anti-Discrimination Commission some ten or eleven months after the cessation of employment. During his employment, the applicant did not express any concern or grievance that he had been subject to discriminatory treatment. For the respondents, this state of affairs was consistent with a factual scenario in which the available evidence does not establish that the applicant was suffering an impairment during the course of his employment. [16] In circumstances where the applicant did not adequately explain why his complaint was delayed until well after the event, the respondents considered that the applicant's real motivation and catalyst for bringing his complaint was not discriminatory conduct, but rather his dissatisfaction with the terms of a deed of release that the applicant entered into on the ending of his employment. It was the respondents' submission that when the applicant became aware of the terms included in other deeds, he became aggrieved that he had been offered a deed which he considered contained benefits less favourable than -- 4 of 11 -- 5 those included in the other deeds. It was this factor which motivated the lodgment of an anti-discrimination claim. [17] It was not in dispute that the applicant believed that he had been offered a deed which contained less favourable terms to deeds entered into by other senior employees of the second respondent. The applicant saw this development as constituting discriminatory conduct. In providing further and better particulars on 2 October 2018, the applicant stated inter alia that the second respondent presented a "deed of release to the complainant on materially worse terms than deeds of release presented to unimpaired executives or unimpaired senior employees of the first respondent". The applicant did not state how he became aware of the terms of other deeds, nor did he indicate when he became aware of the contents of the other deeds. Nor has it been disclosed, at this stage of the proceedings, when the other deeds referred to by the applicant were executed. [18] Irrespective of whether the applicant's claim of differential deed provisions was correct, the respondents did not accept that the contents of other deeds could be relevant to the determination of the applicant's complaint, and that he could not sustain a claim of discrimination by reference to the terms of other deeds. [19] The applicant rejected criticism of the timing of the lodgement of his complaint of discrimination. He said that his complaint was lodged within the statutory time frame and that it was a matter for his discretion as to when he lodged his complaint. He did however point out that he was medically ill for a long time after the ending of his employment with the second respondent, and that during this period of time he was in no fit state to lodge a complaint or commence litigation. Deed of release [20] The ending of the applicant's employment was facilitated by a deed of release which was settled following discussions or negotiations between the second respondent and the applicant. A copy of the deed of release was included in the referral materials. The deed was executed on 8 March 2017. A term of the deed was that the applicant would tender his resignation from the employment of the respondent with effect from 9 March 2017. [21] The circumstances associated with the signing of the deed are controversial in that the applicant claimed that the nature and severity of his impairment inhibited his ability to negotiate fair terms and that, in signing the deed, he lacked the capacity to make an informed choice. The effect of the applicant's position was that the decision of the ADCQ Commissioner to accept his complaint amounted to an endorsement of his position. The complaint was accepted pursuant to s 137 of the Act: 137 Unfair agreements not to complain are not binding (1) The commissioner may accept a complaint from a person who had previously agreed with another person not to complain, if the commissioner is of the reasonable opinion that it is fair to accept the complaint. (2) In assessing whether it is fair to accept the complaint, the commissioner is to consider all the relevant circumstances of the case including— (a) the knowledge of the parties who made the agreement; and (b) what the person who wishes to complain received in return for the agreement. -- 5 of 11 -- 6 [22] The respondents pressed the view however that while the Anti-Discrimination Commission may have been able to exercise a discretion to accept the complaint, the fact that the applicant elected to negotiate the deed and sign the deed remained a matter for consideration. The submission was that unless the applicant can establish that the deed was obtained under duress, or as a consequence of unlawful or unfair conduct by the respondents, the fact that the deed was entered into by the applicant remained a factor to be considered, and a factor which supported the application to dismiss the proceedings. Proof of Impairment [23] The effect of the respondents' submission was that it was clear on the information disclosed thus far that the applicant will be unable to establish that he was a person with a protected attribute (impairment) at the time of the alleged discrimination. The respondents said that a conclusion to this effect was already open based on all of the respondents' material including documents exchanged, witness lists and outlines of evidence. In more particular terms, the respondents submitted that the applicant has:  Failed to provide any material that identified the nature of the alleged impairment that he claimed to be suffering from at the time of the alleged discrimination;  Failed to provide any objective evidence that he notified the respondents that he was suffering from an impairment during the course of his employment. At its highest, the material filed by the applicant indicates that he was suffering from stress and anxiety alleged to have arisen from work;  Even if it were accepted that at the relevant time the applicant was experiencing anxiety and stress, the applicant has not provided any medical evidence, either at the time of his employment or during the proceedings, to confirm he was suffering from an impairment;  Failed to provide medical evidence regarding the continuing impact of the alleged discrimination on his prognosis for recovery. [24] The respondents said that in the absence of any objective medical evidence, there was no reasonable basis upon which to conclude that the applicant was suffering from an impairment. Their view was that a mere assertion that the applicant was suffering stress or anxiety at work, does not give rise to a finding that the applicant was impaired within the meaning of the Act. Further, while the applicant provided medical certificates on 23 January 2017, 20 February 2017 and 24 February 2017, none of the certificates explained why the applicant was unfit for work, nor stated that the applicant was suffering from an impairment within the meaning of the Act. [25] The effect of the applicant's submissions was that he could establish both that he was suffering from an impairment and also that the respondents knew that he was suffering an impairment at the relevant times. In providing further and better particulars on 2 October 2018, the appellant stated:  The first and second respondents were made aware of, and acknowledged, that the applicant had an impairment;  The first respondent observed and commented on the applicant exhibiting characteristics associated with his impairment;  The impairment caused the applicant to take four weeks sick leave (supported by a medical certificate) commencing January 2017; -- 6 of 11 -- 7  The Human Resources Department of the second respondent was informed of the applicant's impairment and acknowledged observing characteristics generally associated with the applicant's impairment;  The second respondent's Chief Executive Officer, Dr Forbes, knew of the applicant's impairment, including his need for sick leave, and was informed directly by the applicant of his condition;  Dr Forbes acknowledged observing characteristics generally associated with the applicant's impairment. [26] These propositions were further particularised in the applicant's 29 November 2018 supplementary submission where he submitted that the respondents knowledge of his impairment was established by reference to a number of factors:  The first respondent's enquiry about the applicant's stress levels in December 2016;  A diary note made by the applicant on 23 January 2017 in relation to a phone discussion between himself and the first respondent on that day;  Medical certificates dated 23 January 2017 and 20 February 2017;  A diary note composed by the applicant on 3 March 2017;  The first respondent's diary note dated 5 March 2017 which referenced a claim made by the applicant that the second respondent had breached its duty of care;  The applicant's interpretation on the first respondent's reference in the same diary note to the applicant's threatening conduct;  An email sent by the applicant to Ms Lorena on 5 March 2018 which raised concerns about his treatment by the second respondent;  A text message sent by the applicant to Dr Forbes on 6 March 2017;  A diary note written by Dr Forbes about his meeting with the applicant on 6 March 2017, including reference to the applicant's concern at the manner in which he was being treated by the first respondent;  Evidence of impairment noted by Ms Lorena during the meeting held on 6 March 2018 which caused her to undertake a "welfare check" on the applicant;  A diary note made by Ms Lorena on 6 March 2017 which referenced a statement by the applicant that the stress from work had impacted his personal life. [27] The applicant said that when he commenced sick leave on 23 January 2017, he advised the first respondent that "he was proceeding on four week’s sick leave" and that he "just needed time to work out his head and health as he felt he had been operating in a haze". [28] The applicant cannot succeed in his claim of discrimination unless he can establish that at the relevant times he was suffering from an impairment pursuant to the provisions of the Act. The respondents argue that on the material disclosed thus far, there is no reasonable prospect of the applicant proving that he was suffering from an impairment. [29] Despite the respondents' reservations, and while I accept there is an argument to be resolved about whether stress could constitute an impairment, there is some evidence that the applicant was suffering from stress either related to the demands of his role, his relationship with the first respondent or for other reasons. He took four weeks sick leave commencing in January 2017 and attended on his general practitioner in January and February 2017. Further, at this stage of the proceedings, the appellant has not yet had the opportunity to call medical evidence. Evidence from his general practitioner in particular, -- 7 of 11 -- 8 in the substantive proceedings, will clarify some of the unresolved questions surrounding the nature of the applicant's condition at the time. [30] Having regard to the broad definition of "impairment" included in the Act, I am of the view that sufficient has been disclosed in the pre-trial processes to suggest that the applicant has an arguable case that he suffered an impairment at the relevant times. Consequently, he should be given the opportunity of proving his assertions in the substantive proceedings. Direct discrimination [31] While not precisely articulated in these terms, I proceed on the basis that the applicant's claim turns on whether, in the process of execution of his deed of release, or in the resolution of the terms of the deed of release, he was treated less favourably than the comparator group in circumstances which are not materially different. [32] In providing further and better particulars on 2 October 2018, the applicant identified the discriminatory treatment as follows:  The second respondent, upon becoming aware of the applicant's impairment commenced, and then repeatedly, suggested, encouraged and pressured the applicant to resign;  The first and second respondents knew that the applicant, due to the applicant's impairment, lacked capacity to understand the implications of the terms being imposed;  The respondents denied the applicant reasonable opportunity to obtain legal advice, and knew his diminished capacity was likely to result in him accepting the deed;  The terms of the deed presented to him were less favourable than those presented to other senior employees. [33] The applicant needs to show how he was treated less favourably than the relevant comparator (the unimpaired senior employee of the first respondent). In his 2 October 2018 submission, he addressed the matter by claiming that:  An unimpaired senior employee would never have been encouraged or pressured to resign. It had been repeatedly suggested to the applicant that he should resign and the applicant was encouraged or pressured to resign.  The deed of release prepared by the respondent contained materially worse terms than deeds of release presented to unimpaired senior employees employed by the first respondent. [34] The respondents submitted that the comparison to be made is with other employees who have decided to resign and who have engaged in a process where the separation from employment is facilitated or effected by the entering into of a deed of release. For my part, the comparator group can be more accurately defined as senior executives, without an impairment, who, for particular reasons, participate in a discussion about a separation from employment, either at their own initiative or at the initiative of their employer, and which discussion includes the settling of terms of a deed of release. -- 8 of 11 -- 9 [35] The respondents submitted that the applicant could not have been treated less favourably in the process of offering and discussing the terms of a deed, nor could he have been lacking capacity to participate in such a process in circumstances where the process commenced, and the deed offered, at his instigation. The applicant had sought a meeting with Dr Forbes, and in that same meeting the applicant had raised the idea of a redundancy. The respondents also said that the proposal had been raised by the applicant prior to that meeting and that the applicant had been actively seeking a redundancy package. [36] I have a significant reservation, on the disclosed material, about the factual basis for some of the propositions articulated by the applicant (paragraphs 32 and 33 above refer). It is not clear to me at this stage that the first respondent "repeatedly, suggested, encouraged and pressured" the applicant to resign. Nor is it clear that the applicant would not have understood the terms of the deed, or that the respondent "denied the applicant reasonable opportunity to obtain legal advice". [37] The applicant is also likely to experience difficulty in establishing that he was treated less favourably than other senior employees in proposing a negotiated exit from the organisation. It is likely that the process implemented by the respondents was not untypical in the same or similar circumstances. [38] Finally, as currently informed, it is doubtful that the applicant will be able to establish that the terms of deeds of release entered into by other employees of the second respondent are relevant to his claim of discrimination. [39] It is not known how the applicant knew of the terms of other deeds given the almost certain inclusion of "confidentiality" provisions, but by way of general commentary, the resolution of the terms of a deed invariably turns on a range of variables, many of which are unique to the person involved. Further, deeds executed after 8 March 2017 could not be relevant in circumstances where the respondents could not know on 8 March 2017 the outcome of future negotiations in relation to deeds of release. [40] It is also a significant problem for the applicant that he signals an approach in which a substantial investigation would need to be launched before he could prove that deeds entered into by other senior employees established discriminatory treatment arising from the settling of the terms of his deed. For my part, I am uncertain how such a finding could be made. [41] Notwithstanding all of this, the applicant can point to some factors which might suggest that a potential existed for the respondents to take advantage of his unsettled state of mind to firstly encourage him to resign, then to encourage him to accept a deed of release on fixed terms, and terms which were not generous. These factors include:  Evidence of friction and perhaps hostility between the applicant and the first respondent;  A suggestion by the first respondent that the resolution of any disharmony included an option to resign;  A preemptory approach to the discussions about the ending of employment and the terms of a deed of release; -- 9 of 11 -- 10  The presentation of a deed including terms which were expressed as non- negotiable;  A relatively swift conclusion to the discussions about the terms of the deed; and  Whether adequate consideration was given by the respondent to the desirability of the applicant accessing legal advice before his signing the deed. [42] In all the circumstances, I am not prepared to deny the applicant the opportunity of testing the veracity of his allegations or substantiating his foundational propositions in the substantive proceedings. The applicantion to dismiss the claim of direct discrimination is rejected. Indirect Discrimination [43] In his statement of facts and contentions, the applicant did not include any material that might contribute to a finding that he had been subject to indirect discrimination. It was only after he was directed to provide further and better particulars that he provided the following commentary: Indirect Discrimination I have been subject to indirect discrimination, pursuant to Section 11 of the Anti-Discrimination Act as follows; The Second Respondent proposed to, and imposed, terms on behalf of the First Respondent through the Deed of Release between Michael Campbell and Racing Queensland Board Trading as Racing Queensland (the Deed); Prior to being presented with the Deed, the Complainant had not been exposed to and did not have understanding of the conditions set out, or proposed, in Deeds of Release prepared by Racing Queensland, described as a “standard deed”. The First and Second Respondents knew that the Complainant was significantly impaired. The First and Second Respondents knew that the Complainant lacked capacity to understand the terms being imposed. The First and Second Respondents knew that the Complainant, due to the Complainants impairment, lacked capacity to understand the implications of the terms being imposed. On the basis of the attribute, impairment: I was not able to comply with each term proposed or imposed, including that;  I did not freely enter into the Deed; and  I was unable to, and did not, take the opportunity to carefully consider the contents of the Deed; and  I was unable to, and did not, obtain legal advice on the matters set out in the deed; and  I was unable to, and did not, fully comprehend the conditions, or the impacts of the matters set out in the Deed; A higher proportion of people without my attribute comply, or are able to comply, with the terms in a Deed of Release as their cognition is less likely to be impaired; and The terms imposed were not reasonable. [44] For the applicant to succeed in a claim of indirect discrimination, the applicant must establish that the respondents imposed unreasonable terms which have the effect that a -- 10 of 11 -- 11 person with the impairment cannot comply, but with which a higher proportion of persons without the impairment are able to comply. [45] The inadequacy of the applicant's reasoning in support of his claim is self-evident. In the first instance, the applicant argues that the term or terms imposed, were particular terms of the deed of release. It is very hard to envisage a circumstance in which a term of a deed of release could be imposed. A deed of release, in its executed form, is the product of an agreement reached between the parties to the deed. Absent a measure of duress, the applicant could not have been forced to comply with any of the terms proposed by the respondent. [46] Secondly, the applicant does not identify the particular terms of the deed that he was unable to comply with. For example, he did not explain how he could not comply with the "confidentiality" term of the deed, or that he could not comply with the term that provided that he would receive an amount of money by way of a settlement sum. [47] The applicant does say in the commentary reported above that he did not freely enter into the deed, that he did not consider the content of the deed, that he was unable to obtain legal advice, and that he did not comprehend the impact of the terms of the deed. But these propositions do not relate to terms of the deed which are unable to be complied with, but rather are reflections on the applicant's state of mind or on the processes associated with his consideration of the deed. Nor does the applicant address the requirement to identify the terms that he could not comply with, but which other senior employees were able to comply with. [48] In Kleinig v Village Roadshow Theme Parks Pty Ltd1, the presiding member concluded: [40] I do not consider Ms Kleinig has been the subject of indirect discrimination. I accept the submissions of the respondent that no term or condition in the sense of a compulsion or obligation was imposed on Ms Kleinig for continued access to rides at Wet and Wild. Mr Ebeling, acting as an employed ride attendant made a mere request, which was reasonable in the circumstances. [49] Similarly, in this matter "no term or condition in the sense of a compulsion or an obligation" was imposed by the respondent. In Petrak v Griffith University and Ors2, the presiding member declined to proceed with a claim in circumstances where the applicant could not articulate what term or condition might have been imposed on her: [14] The Applicant was asked to articulate her complaint of indirect discrimination. She was unable to say what term or condition might have been imposed on her, being an essential element of such a claim. I do not think that any such claim can proceed. To the extent that it currently forms part of the Applicant’s claims it is dismissed. [50] The applicant has failed to demonstrate that he has an arguable case in so far as his claim of indirect discrimination is concerned. This part of his application is dismissed. [51] The application is listed for mention on 7 February 2019 at 3.30 pm to discuss the further scheduling of the complaint of direct discrimination. 1 Kleinig v Village Roadshow Theme Parks Pty Ltd [2015] QCAT 330. 2 Petrak v Griffith University and Ors [2018] QCAT 356. -- 11 of 11 --