Brown v City Venue Management Pty Ltd [2018] QCAT 168

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brown v City Venue Management Pty Ltd & Anor [2018] QCAT 168 PARTIES: ALEX BROWN (applicant) v CITY VENUE MANAGEMENT PTY LTD (first respondent) MELISSA TAVELLA (second respondent) APPLICATION NO/S: ADL019-16 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 4 June 2018 HEARING DATE: 30 April 2018 HEARD AT: Brisbane DECISION OF: Member Roney QC ORDERS: The complaints are dismissed. CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – GENERALLY – where alleged impairment discrimination in Sports Administration – belief as to less-favourable treatment – direct discrimination – circumstantial evidence – inferences to be drawn Anti-Discrimination Act 1991 (Qld), s 7, s 10 Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165 Dharmalingham v Western NSW Local Health District [2015] NSWCATAD 74 JM v QFG and GK [1998] QCA 228 Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; (2003) 77 ALD 570; (2003) 202 ALR 133; [2003] HCA 62 Waters & Ors v Public Transport Corporation (1991) 173 CLR 349; (1991) 103 ALR 513; [1991] HCA 49 APPEARANCES & REPRESENTATION: Applicant: Self-represented -- 1 of 21 -- 2 Respondent: G Radcliffe, solicitor of Radcliffe Taylor Lawyers REASONS FOR DECISION Introduction ...................................................................................................................... 2 Discrimination against a person on the basis of the person's impairment ........................ 3 Relevant legal principles – the standard of proof ............................................................. 3 Treatment ‘on the basis of’ a protected attribute – the causal element for direct discrimination ................................................................................................................... 4 Circumstantial evidence and the drawing of inferences ................................................... 7 The events of June to September 2015 ............................................................................. 7 The status of the Applicant’s employment ..................................................................... 11 What was the extent of the individual Respondents’ knowledge of the Applicant’s impairment? .................................................................................................................... 12 The Respondents’ case as to the reasons for not offering work ..................................... 12 The evidence of the Second Respondent ........................................................................ 14 The evidence of Mr Speechley, the General Manager for the First Respondent ........... 16 Cross-examination, submissions and findings open....................................................... 18 General and special compensation and other relief ........................................................ 20 Introduction [1] The Applicant was a male swimming instructor and lifeguard, who, for a period of over 10 years before 2012, had worked in those roles and was very experienced in that field. [2] In early 2012 he commenced working at the Centenary Pool in Spring Hill, Brisbane, as a swimming instructor. This pool closed for renovations late in 2012 and he was moved to Chermside Pool where he then worked. Both the Centenary and Chermside Pools were and still are operated by the First Respondent, City Venue Management Pty Ltd. The Second Respondent, Melissa Tavella, was the swimming school coordinator at the Chermside Pool which was operated by the First Respondent during the latter part of 2013 and during 2015. She was responsible for organising the staff and the swimming lesson schedules at the Chermside Pool. She no longer works for the First Respondent. [3] In his complaint to the Queensland Anti-Discrimination Commission on 23 November 2015, the Applicant complained that the Respondents had subjected him to direct discrimination on the basis that he had, or was perceived to have had, or continued to have meningitis, and was denied employment opportunities in 2015 and since as a result. [4] He contends in broad terms that the discriminatory conduct has caused him stress and financial concerns because he is unable to obtain income to pay important bills. He has applied for other work but has found it difficult to find adequate work -- 2 of 21 -- 3 particularly since he is in his sixties. The primary relief he seeks is an order reinstating him as an employee. Discrimination against a person on the basis of the person's impairment [5] It is unlawful for a person performing any function or exercising any power under Queensland law to discriminate against a person on the basis of the person's impairment. [6] Section 7 of the Act prohibits discrimination on the basis of certain attributes, which include ‘impairment’, defined in the Schedule to the Act as including the loss of a bodily function. Section 8 of the Act provides that discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of a characteristic that a person with that attribute generally has. Section 9 prohibits both direct and indirect discrimination. [7] Section 10 of the Act, which deals with direct discrimination, provides (with examples omitted): 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. (2) It is not necessary that the person who discriminates considers the treatment is less favourable. (3) The person’s motive for discriminating is irrelevant. (4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. (5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.” Relevant legal principles – the standard of proof [8] It is well-established that proceedings of this nature involving allegations of discriminatory conduct nature such as the present, albeit civil proceedings, with the requisite civil standard of proof applying, are required to meet the standards of the so-called Briginshaw test.1 [9] The Briginshaw principle so-called is understood as requiring care in cases where serious allegations have been made or a finding is likely to produce grave 1 Briginshaw v Briginshaw [1938] 60 CLR 336; Rejfek v McElroy (1965) 112 CLR 517; Adamson v Queensland Law Society Incorporated [1990] 1 QdR 498; Re Seidler [1986] 1 QdR 486. -- 3 of 21 -- 4 consequences. Importantly, Briginshaw does not alter the standard of proof, that is, on the balance of probabilities, as the High Court emphasised in its authoritative re- statement of the Briginshaw principle in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.2 Briginshaw does import some flexibility to the civil standard by directing attention to the strength of the evidence required in attaining the civil standard of proof, focusing on the probative value of such evidence. Essentially, it goes to the degree of persuasion of the mind. [10] Thus the High Court in Neat stated that:3 …the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Treatment ‘on the basis of’ a protected attribute – the causal element for direct discrimination [11] Section 10(1) of the Anti-Discrimination Act 1991 (Qld) (‘the Act’) requires that the Applicant establish that the Respondent has treated him, or proposed to treat him, in a discriminatory way ‘on the basis of’ the relevant attribute. Section 10 of the Act provides that a person’s motive for discriminating is irrelevant. [12] In Purvis v New South Wales (Department of Education and Training) the High Court considered these authorities in the context of a claim of disability discrimination.4 [13] In that case the relevant Act stated that it was unlawful for an educational authority to discriminate against a student ‘on the ground of’ the student's disability. It stated that a person discriminates against another person on the ground of that person's disability if, ‘because of’ the person's disability, the discriminator treats him or her less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability. [14] Chief Justice Gleeson said that:5 In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex. [15] After referring to the judgements referred to above from Waters v Public Transport Corporation,6 of Mason CJ and Gaudron J and that also of McHugh J, the Chief Justice said:7 2 (1992) 110 ALR 449, 449–50; [1992] HCA 66. 3 (1992) 110 ALR 449, 449–50. 4 (2003) 217 CLR 92; (2003) 77 ALD 570; (2003) 202 ALR 133; [2003] HCA 62. 5 (2003) 217 CLR 92, [157]. -- 4 of 21 -- 5 [159] However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ. [160] The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind”. [16] After referring to later authority Gleeson J said:8 [166] The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act. [17] The leading judgement in Purvis was delivered by Gummow, Hayne and Heydon JJ. For present purposes, relevantly, they identified the issue under consideration as being whether the Commissioner’s conclusion that the student’s behaviour occurred as a result of his disability and that:9 …"in this case, Daniel's behaviour is so closely connected to his disability that if … less favourable treatment has occurred on the ground of Daniel's behaviour then this will amount to discrimination on the ground of his disability". They did not reference in their reasons the cases discussed by the Chief Justice on how to identify the ‘true basis’ for the act or decision. [18] The question was posed in these terms by reference to what was required to show direct discrimination:10 [224] The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct 6 (1991) 173 CLR 349; (1991) 103 ALR 513; [1991] HCA 49. 7 (2003) 217 CLR 92, [159]-[160]. 8 Ibid [166]. 9 Ibid [192]. 10 Ibid [224]. -- 5 of 21 -- 6 can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different. [225] In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions: (i) How, in those circumstances, would the educational authority have treated a person without Daniel's disability? (ii) If Daniel's treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel's disability? Section 5(1) could be engaged in the application of section 22 only if it were found that Daniel was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Daniel's treatment”. [19] Hence those judges held that the 'circumstances referred to in s.5(1) are all of the objective features which surround the actual or intended treatment of the disabled person' by the alleged discriminator. In Purvis, the circumstances in which the student was treated as he was included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils were. Accordingly, the comparator was a student who was not disabled, but who had acted in the same violent manner as had Daniel. Callinan J agreed with Gummow, Hayne and Heydon as to the circumstances that were to be ascribed to the comparator. [20] In relation to the causation question McHugh and Kirby JJ said:11 [158] In Waters v Public Transport Corporation, Mason CJ and Gaudron J (Deane J agreeing) approved the view of Deane and Gaudron JJ in Banovic that motive or intention to discriminate is not required. Their Honours said that it is enough if the difference in treatment is based on the prohibited ground, notwithstanding an absence of motive or intention. [159] In Waters, McHugh J rejected the statement of Lord Goff in Birmingham and the statements of Deane and Gaudron JJ in Banovic concerning motive or intention, in so far as they might suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator was actuated by the prohibited ground. His Honour said: The words 'on the ground of' and 'by reason of' require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ('the victim'). The status or private life of the victim must be at 11 Ibid [158]-[159]. -- 6 of 21 -- 7 least one of the factors which moved the discriminator to act as he or she did. [21] As Justice McHugh said in Waters v Public Transport Corporation ‘on the ground of’ and ‘by reason of’ require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of ‘the victim’. The protected attribute, to use the language of the Queensland Act, must be at least one of the factors which moved the discriminator to act as he or she did. And as his Honour said, of course, in determining whether a person has been treated differently ‘on the ground of’ that matter, this Tribunal is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then ‘the ground of’ the act of the discriminator was the status or private life of the victim. Circumstantial evidence and the drawing of inferences [22] In the present case, as is the case in many discrimination cases, there are real issues concerned with what inferences may be drawn from proven facts. [23] In Dharmalingham v Western NSW Local Health District,12 the New South Wales Civil and Administrative Tribunal the summarised the relevant approach: [157] There was no direct evidence that the comment was made on the ground of the applicant’s race. The issue of what happens when there is no direct evidence has been discussed in decisions including Dutt, Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 (Edwards) and Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. Where there is no direct evidence, an applicant must rely upon inference. In Dutt the Tribunal noted that the authorities identify the flowing considerations in respect of drawing inferences to prove less favourable treatment: • a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from the primary facts; • an inference must be reasonably drawn on the basis of primary facts; • an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; • a fact relied upon as the basis of an inference need not be proved to the requisite standard of proof; • it is not enough that the inference is a mere possibility: it must be one of "probable connection"; • the inference must be a logical one, and not supposition; • an inference cannot be made where more probable and innocent explanations are available on the evidence. The events of June to September 2015 12 [2015] NSWCATAD 74, [157]. -- 7 of 21 -- 8 [24] The Applicant contends, and I accept, that he had worked for the First Respondent for a few years before 2015 and that there had been no issues raised about his performance, work ethic or attitude in that time. [25] In November 2014 he unexpectedly became ill with meningitis. He claims that he informed his direct supervisor, the Second Respondent, that he was ill and was unable to come to work. He contends that when she asked him for a medical certificate, he provided that from the hospital. The documentary evidence suggests that was so. [26] His condition worsened, and he was then admitted to Royal Brisbane Hospital Intensive Care and remained in hospital for a period of 7½ months. He recovered from his meningitis, and sought to return to work with the First Respondent. I accept his evidence on these issues. [27] The Respondents contend that the Complainant simply did not attend to perform his rostered shift on 9 November 2014, and that it was five days after his unexplained absence that they received a medical certificate under cover of an email. The certificate made reference to the fact that he was unable to perform normal duties for five days. They contend that he was expected to return to his next rostered shift on 21 November 2014 but did not attend. They contend that on that day the Second Respondent phoned the police to lodge a missing person’s report, and the police in due course advised that they had located the Complainant. They contend that there was then no contact whatsoever from the Complainant between 12 November 2014 and late September 2015, and that they assumed the Complainant had abandoned his casual employment. This is inconsistent with the evidence that he did make contact in that time. [28] I also accept that he communicated with the Second Respondent as best he could during this difficult period to let her know what was happening to him. There are email exchanges exhibited to his affidavit which show that on 12 November 2014 he wrote to the Second Respondent attaching a medical certificate regarding his absence the previous Sunday, and indicating that he was keen to come back the next Sunday. The emails which follow from the Second Respondent show that she made further enquiry about his failure to turn up on the following Sunday and wanting to know what was happening. [29] The Applicant wrote to the Second Respondent on 1 December 2014 stating that his ‘body had let him down’, that he had been in intensive care at the hospital for the past few weeks and been away from his phone for the past few weeks. He said he would endeavour to let her know when he was better. [30] The Second Respondent wrote back to him enquiring about him on 3 and 16 November 2014. On 16 December the Second Respondent wrote to him by email indicating that she hoped he was doing better and was back on the mend. There then appears then to have been a gap in communications until on 9 April 2015 when the Applicant wrote to Reece Rackley for the First Respondent, primarily on the topic of what was happening at another local swim school, the Sam Riley swim school where the Applicant had a role, and seemingly getting Mr Rackley interested in that business. In the body of that email the Applicant mentions that there is still a 14½ year period left on his lease but that he was ‘still stuck in hospital with no firm -- 8 of 21 -- 9 release date’. There were follow up emails that discussed the possibility of Mr Rackley wanting a tour of the Sam Riley swim school facilities under discussion. [31] On 16 June 2015 the Applicant wrote again to Mr Rackley apologising for his delay in relation to responding about interest in the Sam Riley swim school. In that email the Applicant mentions that he was still ‘trapped in hospital’, but was ‘perfectly healthy’, that he had seen four doctors outside the hospital and all found him to be perfectly healthy and fully recovered. He mentioned that he was getting legal assistance so that he could get out and mentioned the possibility of bringing an action for false imprisonment against the hospital. It seems the hospital was unprepared to release him without assurance he would be properly accommodated on his release. [32] On 19 June 2015, under the heading ‘Returning to work!’, the Applicant emailed the Second Respondent in these terms: I am finally getting out of hospital next week, and am ready to return to work. Initially I’m available for weekend work, preferably regular shifts, but can do cover work at first. I will also have some availability for weekday covers. Please let me know what might be available. I am scheduled to get out on Tuesday. Cover work was work covering for other teachers who were unavailable. [33] On 23 June 2015, in response to that email, the Second Respondent responded that she did not: … have anything to offer in the way of permanent shifts at the moment and could only start you back on covers. Is the reason were in hospital going to have any bearing on future shift? You were in there for such a long time. I will also need a clearance from the hospital detailing that you are okay to take up this kind of work again. Feel free to drop in and see me and we can go through a few things. I look forward to seeing you. [34] On 3 July 2015, the Applicant and the Second Respondent communicated saying he had been in to the pool on an earlier day, had been helped to fill out his blue card renewal, had recently done a first aid course and recertified for CPR and first aid, and would be happy to come in and do training on the new lesson plans which she had written suggesting he do. There were follow up emails on 10 July about the proposal to do these lesson plans, which involved particular teaching techniques for swimming. He responded that he would try to come in the following Monday to which she responded that she did not work on Mondays. [35] On 17 July 2015, the Second Respondent wrote to the Applicant pointing out that HR had some specific requirements. One was that he was going to have to have a medical clearance stating he was fit to be teaching children and was healthy enough to cope with classes on a consistent basis ‘if rehired’. She also mentioned that he could not be in the water without a current blue card even if he had an old one and a new one needed to be issued. Critically, she said in the email: There is nothing to offer at the moment and I not am sure as to when or if something will come up… I will keep in contact if something does become available though. -- 9 of 21 -- 10 [36] The Applicant contends that when he went to speak to the Second Respondent with a view to returning to work, she shook her head, muttering that he had been in hospital for a long time and asking if he was sure that he was alright. He contends that she announced that she had no work for him, which was a proposition he contends was not true, having regard to his experience in the industry, the time of year, the fact that there was unexpected and regular turnover of staff, and the fact that staff were often away for various reasons. He contends that a moment after he was told there was no work, a complete stranger walked to the front desk and applied for work, and the response from the Second Respondent was a warm greeting and he was told that they were always looking for new teachers. The Second Respondent denies the incident concerning the stranger being offered work occurred. [37] I am not prepared to accept that the Second Respondent did make a remark which told others that work was available, at the time that this in person conversation with the Applicant took place. It is inconsistent with the emails that she had been writing in June and July, which on the one hand encouraged further involvement of the Applicant in working there but indicated that there was no specific work on offer at that time, and that she would let him know if any came up. In my view, it is inherently unlikely that she would have encouraged him to attend training sessions, and keep him informed about events that were going on at the pool if she had already decided that they would not be offering him any work in the future. [38] On 9 September 2015 the Applicant emailed another staff member working for the First Respondent, Jason Pfingst, indicating that he had been asked if he was available to be a lifeguard in that summer, and had said that he would, and with two others having left it would seem to be good to have experienced staff in the group because he was an experienced lifeguard. He was told to be there on 11 September at training and they would discuss it. [39] On 23 September the Applicant again wrote to Mr Pfingst indicating that he was very keen to get back to regular work like before at the pool, was quite happy to do lifeguard work and would greatly appreciate regular weekend lifeguard shifts. He said that he had always been a good, loyal and reliable worker and had a lot to contribute. He pointed out that after several months away his finances were not great and every bit of work helped. Mr Pfingst responded that at that time they were required to share the hours between all the new staff to test them so that they were ready for the busy period, and that the Applicant would be put on as much as possible but that he was to keep in mind that he probably would not get as many hours as he did when he was coordinating with the LTS teacher classes. The Applicant responded on the same day thanking him and indicating that he would appreciate at least getting regular weekend lifeguard shifts. [40] It appears that by 29 September 2015, the Applicant had realised that he was not going to be given any work of any substance. He wrote to Jay Clarke who was an employee of the First Respondent. This lengthy email set out his complaints about not being given additional work and essentially contains the substance of the matters that were set out in his statement of complaint to the Commission dated 23 November 2013. It referred to an incident when the Second Respondent was on holidays when he was instructed to shadow another teacher (that is, where an employed teacher on duty runs the lesson and the shadow watches how it is delivered). He took the view that -- 10 of 21 -- 11 this other teacher did not always follow the plan for the class level. Initially he said nothing. Then the Second Respondent’s daughter told him to stop shadowing the other teacher. He told her that he was keen to shadow the other teacher as he had been told to do this and that he was keen to return to work. He did not understand what all that shadowing that he was required to do was about because he was treating it as a lead up to return to work, but he was not returned to work. [41] The Applicant says that at no stage was he told that he was not shadowing properly nor was it otherwise indicated that he was doing anything improperly. In fact that is the case. He was never told that he was doing anything wrong. Nor was he ever told that he had been the subject of complaints by parents, if in fact those complaints had ever been made. Nor was he ever told that that the fact that he had failed to attend a rostered shift when he was sick was a material factor in whether he was being given work on an ongoing basis. Nor was he ever told that that the Respondents had formed the view that he could not competently perform the duties of a swim instructor to a satisfactory level. Nor was he told unequivocally that there had been a streamlining process, that he had been treated as having ‘abandoned his employment’ and that the First Respondent had filled all the necessary teaching positions so there were none available for ‘new casual staff’. [42] After a number of other attempts, which he claims that he made to be put back to work at the Chermside Pool, he did not succeed in being given work at the pool except for work on one shift since the time he came out of hospital. He contends that this was because of his impairment or perceived impairment. The status of the Applicant’s employment [43] There are a number of issues which are in contention in the case. One, about which there was significant conflict, was as to whether he had been appointed to a permanent position prior to falling ill, or alternatively whether he had reason to believe that he had been appointed to a permanent position to which he became entitled to fixed shifts which offered some form of permanent employment. [44] For the Respondents it was contended that the Applicant’s employment was only ever on a casual basis. On the Applicant’s case, he was adamant that he had been appointed as a permanent employee. The issue about that turns upon one written communication that he received that suggested that the hours that he was to work were ‘permanent’. The document in question was an email sent on 28 June 2014 by the Second Respondent to various staff at the Chermside Pool, including the Applicant. It refers to them in the email as ‘teachers’. It discusses the fact that teachers who might be unwell need to organise for someone else described as ‘a cover’ to take their classes. And it provides in these terms: The shifts that every teacher has in LTS is your permanent working hours (sic.), they are your classes, same time each week. I realise that everyone needs time off from time to time and if this is the case then I need to know way in advance as especially during winter it gets hard to try to find covers. [45] It goes on to point out that she understands that they all have families and that the individuals need to take time off from time to time. [46] In my view, properly read, that communication conveyed that the hours that particular individuals worked were fixed, with everyone working at the pool having -- 11 of 21 -- 12 fixed shifts, but this did not in my view imply or expressly provide that there was permanent employment. His impression therefore that he was returning to a position of permanent employment and was dismissed from it or not offered further work in those circumstances is not made out. The Second Respondent swore, and I accept that in their industry, apart from a substantial number of full time permanent and part time permanent staff, most of those who participated in the industry were casual employees, and that included the Applicant. [47] It is a matter of concern that there was a complete paucity of evidence of any kind which identified the terms of the Applicant’s engagement with the First Respondent. Not a single document was produced by the Respondents which evidenced those arrangements; no contract of employment, no letter of appointment, no employment records of any kind which concerned the terms of the Applicant’s employment. [48] In the end however, nothing turns upon whether his position was a permanent, permanent casual or casual position, because if he had established that the refusal to provide him with work, in any capacity, was on the basis of his impairment, his claim could nevertheless be made out. [49] Ultimately I do not need to decide which of the various versions of what the ground or grounds were for the decision not offer the Applicant further work was, because the ultimate issue is whether any of those grounds materially on the basis of his attribute or one he was perceived to have. What was the extent of the individual Respondents’ knowledge of the Applicant’s impairment? [50] There was no concession by any of those called in the Respondents’ case that anything they did was done on the basis of his impairment, and except in the case of the Second Respondent, there was little to demonstrate that anyone but her was aware of the fact that he had previously suffered from meningitis. [51] There was otherwise no ‘smoking gun’ that identified that any of the alleged conduct by the Respondents occurred on the basis of his impairment, although some of what was alleged against the Second Respondent carried with it, by its very nature, the notion that it was on that basis. [52] At least in relation to the Second Respondent’s specific knowledge, the possible inference that she acted adversely toward the Applicant on the basis of a perceived impairment is theoretically open; she, at least, was aware of the fact that he had previously suffered from meningitis at the time of the conduct complained of, but there was nothing to suggest she believed he had an ongoing impairment relation to that illness, and she was not cross-examined with a view to showing she believed he had an ongoing impairment. The Respondents’ case as to the reasons for not offering work [53] The Respondents deny that they knew or perceived the Complainant to have an impairment or residual meningitis, and did not know of the length of time that he had been in hospital. They contend that the reason they did not offer him further casual employment was that the First Respondent had gone through a streamlining process after the Complainant had ‘abandoned’ his casual position and it had then filled all necessary teaching positions. -- 12 of 21 -- 13 [54] When it came to arguing the case before me, the stated grounds for not offering him any casual or other positions contained many inconsistencies and contradictions. [55] According to the affidavit of Mr Rackley, the sole director and principal of the First Respondent, the reason that he was informed by the General Manager of Rackley Swimming, Cameron Speechley, that the Applicant was not offered further employment was because: (a) He had been disloyal to CVM by operating the Capalaba Sam Riley swim school from September 2014 in competition with CVM while he was working for CVM; (b) Arising from Mr Speechley’s experience with the Applicant when he was working at Aquatic Achievers, the Applicant was considered to be unreliable as an employee; (c) The Applicant could not competently perform the duties of the swim school teacher to a satisfactory level; and (d) There were not any shifts available at that time for new casual staff. [56] The Respondents accept that the matters that Mr Rackley contends were the basis for not offering further employment were never communicated to the Applicant. [57] In Mr Speechley’s affidavit, he said that he was told in discussion with the Second Respondent in relation to how the Applicant had performed in trial/shadow lessons that the Applicant was: (a) Having difficulty conforming to the updated lesson plans that had been rolled out in September 2014; (b) Was spending unusual amounts of time with particular children in certain classes; and (c) Was inconsistent in his attendance at work for lengthy periods. [58] Mr Speechley contends that he told the Second Respondent that the First Respondent would not employ the Applicant because of the same matters set out above as to what Mr Rackley was told, in precisely the same words. That is, his affidavit uses precisely the same language as does Mr Rackley’s on this topic. [59] The Respondents accept that the matters that Mr Speechley contends were the basis for not offering further employment were never communicated to the Applicant. [60] Another version of why work was not offered is advanced in the Respondents’ written submissions of 9 March 2018. The Respondents did not re-employ the Applicant for the following reasons: (a) The Applicant had been disloyal in the past by operating a business in competition with the First Respondent company while he was working for the Respondents; -- 13 of 21 -- 14 (b) The Applicant had multiple complaints made about him by parents of children who attended lessons with the Applicant; (c) The Applicant had previously failed to attend rostered shifts without providing the First Respondent with any warning or notice; (d) During the Applicant’s trial period in 2015, the Second Respondent formed the opinion that the Applicant could not competently perform the duties of the position of swim instructor to a satisfactory level; (e) At the time the Applicant sought re-employment, it was winter and the pool was operating on reduced hours; and (f) The First Respondent company had gone through a streamlining process since the Applicant abandoned his employment and the First Respondent company had already filled the necessary teaching positions so there were no shifts available for new casual staff. [61] I find the contentions made in the Respondents’ written submissions quite extraordinary, to the extent that they imply that there was a factual basis for deciding that he had abandoned his employment, or, for that matter, that anyone from the Respondents actually thought that he had abandoned his employment. Likewise there was nothing to show that his failure to attend his rostered shifts at the end of 2014 was or could be a legitimate basis for refusing him work later on. Indeed, I find as a fact, that none of those matters was a reason for the failure to provide the Applicant with work from mid-2015. The evidence of the Second Respondent [62] The Second Respondent’s written statement of evidence contains the basis for why she decided it was inappropriate to offer the Applicant further work. She acknowledged that during the course of offering shadow shifts , the Applicant: (a) Mentioned that he had ‘escaped from hospital’ and the police and ambulance found him; (b) Said they had taken him back to hospital; (c) Had been upset about being locked in hospital; and (d) Told her that he had had meningitis. [63] She contended that when she observed three or four of his shadow lessons, she decided that his parent and student interaction and relationships were not up to an acceptable standard, because his communication was poor or non-existent with the students. She acknowledged though that this ‘poor communication’ had occurred prior to his absence from work in 2014. She claims that, prior to November 2014, the Applicant had been required to attend her office on a number of occasions because of disagreements with other teachers and parents wanted their children removed from his classes. -- 14 of 21 -- 15 [64] She referred to the fact that he presented as a ‘closed type of person’ and this was not well received by fellow staff, the students or their parents. She contends that because of those abovementioned matters, ‘and negative feedback’ and after discussing with Mr Speechley whether they should offer him teaching shifts, she was directed by Mr Speechley, the General Manager of the swim school operations for the First Respondent, not to offer the Applicant further work. [65] In August or early September 2015 she told the Applicant they would not give him any more teaching shifts as there were none available. But, in fact, she had decided that even if teaching shifts were available, they would not be offering him any shifts because they did not ‘feel he was up to the standard required to teach swimming lessons’. [66] On 20 September 2015 the Applicant had been rostered on for a casual lifeguard shift. The Second Respondent contends that during the course of that shift a number of customers verbally and in writing complained that he had spoken to children inappropriately and aggressively. This too formed part of the reasons she did not offer him more work. [67] In the sworn statement of the Second Respondent she contended that she spoke to Mr Speechley, the General Manager of the swim school operations for the First Respondent, as a result of which he directed her not to offer the Applicant further work. She describes this as being the result of certain ‘specified matters’ that she had mentioned earlier in that statement, ‘negative feedback’, and the result of discussing whether or not the Applicant should have swimming school teaching shifts. What those specified matters and negative feedback were are not specifically identified. [68] There is a long history of incidents in her statement which precede the statement that this was the result of certain ‘specified matters’. She was not cross-examined about what she meant. [69] I infer that what she is referring to is in part the fact of his absence from the school for a lengthy period. I accept that when he came back and spoke to her on 4 July 2015 he did not tell her that he had been hospitalised with meningitis, although that he did tell her that he had been hospitalised with meningitis and locked up in hospital when he returned to perform shadow teaching duties with a swimming instructor after 4 July 2015. The only other matter in her statement which materially could have preceded the discussion she referred to as having had with Mr Speechley, was her observation of the Applicant whilst doing shadow lessons, and her decision that his communication with students was poor or non-existent. In that context she referred to incidents which had occurred prior to his 2014 hospitalisation, where there were verbal disagreements with other teachers and parents wanted their children removed from his classes. There was no objective corroborative evidence of any kind to support the proposition that there had been verbal disagreements with other teachers or that parents had wanted their children removed from classes. In her oral evidence she contended that she had six parent complaints over the 12 months to November 2014. She could produce only one complaint letter, and it was very old. [70] She produced in Court out of a folder which she said she had found the week before the hearing, a letter concerning a complaint by another teacher about the Applicant -- 15 of 21 -- 16 and another manager at the pool. She also claims to have had meetings with other teachers who told her that the Applicant did not get on with them. I have reviewed the 10 December 2013 letter from the Applicant to the Second Respondent about a complaint that had been made by a person called Sherelle during learn to swim classes. It provides a plausible explanation for the Applicant’s alleged conduct which was the subject of that complaint. I find that the incident to which that letter refers, played no part in the decision by the Respondents not to offer the Applicant further work. [71] The Second Respondent conceded that she took no action whatsoever to raise any of these matters with the Applicant at any time, nor was there any record of any kind to show that the First Respondent, as his employer, regarded those complaint matters as being of such seriousness as to bring into question whether he should teach at the school. I find that in fact they did not have any part to play in the decision not to offer him work, and that the reference to these matters in Ms Tavella’s statement is an attempt to provide some ex post facto justification for a decision made between one to two years later not to offer him further work. The evidence of Mr Speechley, the General Manager for the First Respondent [72] Mr Speechley, the General Manager for the First Respondent, and the person that the Second Respondent contended had directed her not to provide the further work, emphasised in his statement and in the course of his oral testimony that there were other occasions, (other than those that I have already referred to when he was sick), when the Applicant was working at the Aspley Pool and had not shown up for his shifts. [73] That part of Mr Speechley’s affidavit seeks to paint a picture of the Applicant being a very troublesome employee. The first part, paragraphs 1 to 5, talk about him having an unusual personality and being inconsistent with his work attendance, but the events that he was referring to there are events in 2008 and 2009. Why that would be regarded as relevant to a decision made in 2015 was not explained but it made its way into his affidavit in any event, clearly in an attempt to somehow or other set the scene for him being dysfunctional or inconsistent with work attendance. [74] He also referred to having issues with the Applicant following set lesson plans. He accepted that there were teacher performance reviews, and that these were kept in writing. These reviews were conducted periodically and would have been conducted in relation to the Applicant. Despite contending that the aforementioned issues had some part to play in his decision, he could not produce any documentary record of any kind which showed there had been any negative comment made in any performance review involving the Applicant. [75] Ultimately his explanation provided in response to questions by the Tribunal as to why work had not been offered, was as follows: (a) That the Applicant was not regarded as an employee of the First Respondent at that time; he was a mere casual, and there had been no letter of appointment. Mr Speechley claims to have been told his by the Second Respondent in July 2015; -- 16 of 21 -- 17 (b) That Mr Speechley and the Second Respondent had discussed staffing levels and that they probably would have discussed and looked at the rostering issue; (c) That the Mr Speechley was looking to see whether the Applicant could be fitted in as a lifesaver as well as a teacher; (d) That Mr Speechley and the Second Respondent’s considerations were directed to whether he was the ‘best fit’ to work at the Chermside Pool; (e) As to whether the Applicant’s method of lesson delivery and consistency of attendance, or showing up when required, made him a best fit; (f) Whether the Applicant was a ‘best fit’ having regard to ‘customer feedback’; (g) Whether the Applicant fitted in with other members; (h) The Applicant’s ‘overall demeanour’; (i) Mr Speechley described these topics as having been raised in a general discussion between himself and the Second Respondent taking into account the feedback from other teachers and customer feedback, none of which he specifically referenced. He could not say whether there was any paperwork present for this discussion. There were no notes taken of it; (j) Mr Speechley’s ultimate conclusion was that he and the Second Respondent were both of the same opinion, which was that the Applicant was not a good fit for their swim school, that, culturally, he did not fit closely into their team, and that there were concerns from other teachers about his general demeanour and behaviour; (k) Having said all that, Mr Speechley then advanced the proposition that the ‘most important issue’ was the fact that the Applicant had been running another swim school, i.e. the Sam Riley swim school, and which he contended was conduct which most organisations would not permit. He acknowledged, however, that he knew as early as September 2014 of the involvement of the Applicant in the other school, and had done nothing about stopping him or raising concerns with him about it. He said that his practice was that if he found an employee working for another swim school he would ask them to desist or pick a side. It is common ground that he did not do such a thing in this case. I do not consider that this was likely to have been a genuine ground for not offering him work; -- 17 of 21 -- 18 (l) Much was made in cross-examination of the Applicant of the fact that there was supposedly a policy which prohibited staff being in competition or acting for other providers of these kinds of services. But, it turned out that no one was even suggesting, least of all any of the witnesses for the Respondents, that the Applicant had been given this. Mr Rackley and Mr Speechley, who were both involved in the policy, (which was marked for identification and never actually tendered as an exhibit as such) could not say it was ever shown to him or known to him; (m) I accept the Applicant’s contention that it was not one of the bases for which he was terminated that he had been disloyal in the past by operating a competing business, or operating at the Capalaba Sam Riley Swim School in competition while he was working with the First Respondent; (n) I accept the evidence of Mr Rackley that, in April and June 2015, he exchanged emails with the Applicant about the First Respondent possibly branding the Applicant’s Capalaba Sam Riley branded swim school with Rackley Swimming’s branding. I accept also that in April 2015 the Applicant had informed him that he had purchased the Capalaba Sam Riley swim school in the previous September of 2014; (o) In oral testimony Mr Rackley swore, and I accept, that he did not object to the Applicant’s participation in the other swimming school, that it had nothing to do with the First Respondent, and he was within his rights to do so. This other swim school was 15km away and not a direct competitor. There is no documentary or any other contemporaneous evidence advanced in the Applicant’s case which provides support for the proposition that his involvement in another swim school was in any way a consideration for why he was not offered work at Chermside from late 2015 on; and (p) There is no communication in existence which demonstrates that the First Respondent, or any person on its behalf, or for that matter the Second Respondent, communicated with the Applicant or anyone else in a way which was consistent with it having some objection in that regard. I reject the Respondents’ contention that that was one of the bases for failing to provide him with further work. Cross-examination, submissions and findings open [76] The evidence in this case presents a considerable conundrum. On the one hand the versions contained in the statements of witnesses for the First Respondent, and the Second Respondent herself, markedly differed from their oral testimonies on the issue of what the basis was for not offering him further work. The written contentions for the Respondents in turn differed significantly from what was to be found in the sworn testimony during cross-examination. -- 18 of 21 -- 19 [77] The cross-examination of the Applicant by the Respondents’ counsel was really on peripheral issues and did not get to the nub of any of the issues that I need to decide. [78] On the other hand, the Applicant’s cross-examination of the Respondents’ witnesses failed to challenge them on critical aspects of their evidence. He did not ever suggest that any of them were liars, or demonstrate that any of them were liars, but made final submissions that invited me to find that they were all liars. [79] Critically, the Applicant also failed to cross-examine any of the witnesses called in the Respondents’ case with a view to establishing that any of them knew or believed that he had a relevant impairment. He did not cross-examine any of them to suggest that, insofar as any of them was involved in the decision not to offer him work, the perception that he had an impairment was a material factor in that decision. Indeed, his questions were not directed to that issue in any substantive way. [80] Despite my invitation to him to do so, the Applicant failed to address those issues directly in his final submissions. Those submissions focussed upon the reasons that I should disbelieve certain aspects of the evidence given by the Respondents’ witnesses, including on the topics as to: (a) Whether or not he was a permanent employee; (b) Whether or not he had contacted them in the period from November 2014 whilst ill; (c) Whether they decided he abandoned his employment; (d) When it was that he first contacted the Respondents to enquire about further work; (e) Whether or not they knew he had an impairment; (f) Whether they knew of his time in hospital; (g) Whether they had already filled available teaching positions, and whether no teaching positions were available; (h) Whether the First Respondent was a small operation which was unduly prejudiced by his external activity; (i) Whether his standard performance while shadowing was adequate; (j) Whether he had been required to attend the office because of disagreements with teachers and parents wanting children moved; and (k) Whether not employing him was reasonably necessary to protect the safety of pool users. [81] Generally, the Applicant’s submissions placed most of their emphasis upon what he contended were misleading statements in contravention of provisions of the QCAT -- 19 of 21 -- 20 Act, whether their conduct constituted an attempt to influence QCAT staff with misleading statements, and whether perjury had been committed. [82] This is a disturbing case where I hold a high degree of suspicion that the real story from the Respondents’ point of view struggled to emerge, and was intentionally concealed, confused or muddled. There are very real concerns that documents which must exist to record the things that the Respondents say justified the decisions they made have not been produced, or that it was decided not look for such documents, for reasons which can only be inferred. The Second respondent of course had left long ago and no longer could access those documents. But, that did not affect the position of those behind the First Respondent. [83] On the other hand, the Applicant failed fundamentally to grapple with the idea that he needed to establish that there was discriminatory conduct, and did not establish that there were lies being told in this proceeding which he wanted actioned. [84] I am persuaded that both Mt Speechley and the Second Respondent were both of the same opinion, which was that the Applicant was not a good fit for their swim school, that he culturally did not closely into their team, and that there were concerns from other teachers about his general demeanour and behaviour. There may well have been other associated reasons for the decision, but the evidence about what they were is most unsatisfactory. I make it clear that I have not found as a fact that he had any personality traits which justified such a conclusion or that there was any proven basis for concerns held within the Second Respondent’s organisation that the Applicant’s general demeanour and behaviour were in any way inappropriate. [85] For the reasons I have identified above, I do not accept that the Applicant was not offered work on the basis of a perception that he had an impairment, or because he had one in fact. General and special compensation and other relief [86] In this case the relief the Applicant seeks is an order that he be somehow reinstated to work for the First Respondent on similar working conditions to what he had when there in 2014. Even assuming I have power to make such an order, there is no basis for making that order here. [87] Ordinarily of course, the Tribunal would seek to assess what would have been the general and special damages or other compensation flowing from the complained of conduct, were that to be proved. That course does not present itself as a viable possibility in this case. [88] I have the generalised statements of the Applicant that he contends in broad terms that the discriminatory conduct has caused him stress and financial concerns because he is unable to obtain income to pay important bills. He has applied for other work but has found it difficult to find adequate work particularly since he is in his sixties. [89] There is no submission made in either the Applicant’s sworn statement or his written contentions or oral submissions about what the quantum of compensation he seeks is. For that matter, the submission of the Respondents does not address that issue either. -- 20 of 21 -- 21 [90] Doing the best I can with what he has said were the effects for him, I would have assessed his general compensation at $5,000.00, and allowed interest on that figure consistently with the Supreme Court Practice Direction No. 7 of 2013, paragraph 2, i.e. at the prescribed rates of 4% above the cash rate last published by the Reserve Bank of Australia from 1 August 2015 to date. [91] There has been no attempt to quantify any claimed economic loss. In any event, on the basis of the findings, I have made out that there is no basis whatsoever for an order for past or future economic loss since none of that loss was causally connected with discriminatory conduct. [92] In the result I dismiss the application. -- 21 of 21 --