Coenen v Bakers Club Worldwide Pty Ltd [2014] QCAT 676

CITATION: Coenen v Bakers Club Worldwide Pty Ltd & Ors [2014] QCAT 676 PARTIES: Christian Coenen (Applicant) v Bakers Club Worldwide Pty Ltd Iruka Pty Ltd Irmina Webber (Respondents) APPLICATION NUMBER: ADL008-14 MATTER TYPE: Anti-discrimination matters HEARING DATE: 26 September 2014 HEARD AT: Southport DECISION OF: Member Favell DELIVERED ON: 11 December 2014 DELIVERED AT: Brisbane ORDERS MADE: The applications are dismissed. CATCHWORDS: Anti-Discrimination – whether statements made – whether statements were capable of amounting to discrimination – whether victimisation – whether discrimination – whether vilification – whether public act – Anti-Discrimination Act 1991 s 4A, s 7, s 8, s 9, s 10, s 11, s 124A, s 129, s 130, s 132, s 133, s 141, s 204, s 205, s 206, s 210, Part 1 of Chapter 2, Part 4 Queensland Civil and Administrative Tribunal Act 2009 s 166 Fair Work Regulations 2009 r 1.07 Kirby P & Haines v Leves (1987) EOC 92-192 Waters v Public Transport Corporation (1992) 173 CLR 349 Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Haines v Leves (1987) 8 NSWLR 442 IW v City of Perth (1997) 71 ALJR 943 -- 1 of 17 -- 2 Sharma v Legal Aid Queensland [2002] FCAFC 196 Victoria v Macedonian Teachers Association of Victoria Inc. [1999] FCA 1287 Department of Health v Arumugam [1998] VR 319 APPEARANCES and REPRESENTATION (if any): APPLICANT: Christian Coenen RESPONDENT: Bakers Club Worldwide Pty Ltd represented by Michael Lyons of counsel instructed by HopgoodGanim, Solicitors Iruka Pty Ltd represented by Robert Lehn Solicitor Irmina Webber represented by Patrick Van Grinsven of counsel instructed by Macallan Solicitors REASONS FOR DECISION [1] On or about the 19th of July 2013 Mr Coenen filed a complaint with the Anti-Discrimination Commission of Queensland complaining about Shaneen Pointing and Irmina Webber. [2] In the complaint he complained of discrimination because of race, political belief or activity and of public vilification because of his race. He also complained of victimisation because he complained about discrimination, sexual harassment or public vilification. [3] In the complaint he said, at the telephone conciliation with the Fair Work Commission on 15 February 2013 Shaneen Pointing made a statement that Ms Irmina Webber an employee of Bakers Club Worldwide Pty Ltd had advised her that his actions at the office of Bakers Club Worldwide Pty Ltd on 7 January 2013 were comparable to actions of the Nazis in the Second World War. [4] The complaint was accepted under section 141 of the Anti-Discrimination Act 1991 (the Act). [5] By an email of the 15th of October 2013 addressed to the conciliator of the Anti-Discrimination Commission of Queensland Mr Coenen named Bakers Club Worldwide Pty Ltd and Iruka Pty Ltd as the respondents to his complaint lodged with the Commission. [6] On 31 October 2013 a delegate on behalf of the Anti-Discrimination Commissioner accepted under section 141 a complaint which named Iruka Pty Ltd as a respondent and confirmed that the Commission revoked the acceptance of the complaint against Bakers Club Worldwide Pty Ltd. -- 2 of 17 -- 3 [7] That was seemingly done on the basis that prior to the 25th of April 2013 Irmina Webber was employed by Iruka Pty Ltd and not Bakers Club Worldwide Pty Ltd. [8] By a letter dated the 26th of November 2013 solicitors acting on behalf of Iruka Pty Ltd contested the conclusion that Iruka was at the material time the employer of Irmina Webber. [9] On the 29th of November 2013 Macallan Lawyers advised the Commission that Irmina Webber had been issued a group certificate from Bakers Club Worldwide Pty Ltd which noted her employment from 2 May 2013. They went on to make submissions requesting the commission reconsider the decision to accept the complaint on the basis that were sufficient grounds for the Commission not to accept the complaint under section 168 of the Act. [10] On the 3rd of January 2014 the Commission decided that faced with contradictory statements and documents relating to vicarious liability issues the matter was one that required adjudication by QCAT and confirmed that the Commission had accepted the complaint against both Iruka Pty Ltd and Bakers Club Worldwide Pty Ltd. [11] On the 20th February 2014 the matter was referred to QCAT pursuant to section 166. [12] At the beginning of the hearing I asked the applicant to indicate the basis of his case and I was told that the dismissal of him as an employee was unfair because he was accused of acting like a Nazi. [13] At the end of the hearing I asked him to indicate which portions of the Act were being relied on. He was unable to direct me to any particular parts of the Act. [14] The anti-discrimination purpose of the Act is set out in Part 1 of Chapter 2 of the Act. One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation. That purpose is to be achieved by prohibiting discrimination that is on a ground set out in Part 2 and of a type set out in Part 3 and in an area of activity set out in Part 4 of the Act unless an exemption set out in 4 or 5 of the Act applies; and allowing a complaint to be made under Chapter 7 against the person who has unlawfully discriminated; and using the agencies and procedures established under Chapter 7 to deal with the complaint. [15] Part 2 of the Act by section 7 prohibits discrimination as follows: 7 Discrimination on the basis of certain attributes prohibited The Act prohibits discrimination on the basis of the following attributes – (a) sex; -- 3 of 17 -- 4 (b) relationship status; (c) pregnancy; (d) parental status; (e) breastfeeding; (f) age; (g) race; (h) impairment; (i) religious belief or religious activity; (j) political belief or activity; (k) trade union activity; (l) lawful sexual activity; (m) gender identity; (n) sexuality; (o) family responsibilities; (p) association with, or relation to, a person identified on the basis of any of the above attributes. [16] Part 3 of the Act by section 9 prohibits direct and indirect discrimination. [17] Relevantly, direct discrimination on the basis of an attribute happens if a person treats a person with an attribute less favourably than another person without the attribute (section 10). Section 10 reads as follows: Meaning of direct discrimination (1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. Example – R refuses to rent a flat to C because –  C is English and R doesn’t like English People.  C’s friend, D, is English and R doesn’t like English people.  R believes that English people are unreliable tenants. In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct. (2) It is not necessary that person who discriminates considers the treatment is less favourable. (3) The person’s motive for discriminating is irrelevant. Example – R refused to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C will be treated -- 4 of 17 -- 5 badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C. (4) If there are 2 or more reasons why a person treats, or proposed 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. [18] Relevantly, indirect discrimination on the basis on an attribute happens if a person imposes a term with which a person with an attribute cannot comply and which a higher proportion of people without the attribute are able to comply and that is not reasonable (s 11). [19] Discrimination on the basis of an attribute is defined in s 8, to include direct and indirect discrimination on the basis of a characteristic that a person with any of the attributes generally has; or a characteristic that is often imputed to a person with any of the attributes; or an attribute that a person is assumed to have, or to have had at anytime by the person discriminating; or an attribute that a person had, even if the person did not have at the time of the discrimination. [20] Direct discrimination involves differential treatment.1 [21] In Waters v Public Transport Corporation2 Dawson and Toohey JJ expressed a statement of principle as: A distinction is often drawn between two forms of discrimination, namely “direct” or “disparate treatment” discrimination and “indirect” or “adverse impact” discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourably than the latter. [22] Whether there is a differential treatment therefore must be analysed in terms of how a person (the comparator) without the attribute (different race or different political belief or activity) would be treated in circumstances that are the same or not materially different. The relevant attribute in this case is said to be the complainant’s race or political belief or activity. [23] The First Respondent in its submissions accepts that discrimination is prohibited if it is with respect to the enumerated attributes in a recognised area. It submits that relevantly: 1 Kirby P and Haines v Leves (1987) EOC 92-192. 2 (1992) 173 CLR 349 at 392. -- 5 of 17 -- 6 (a) the words ‘less favourably’ as used in s 11 requires a comparison of the actual treatment and the treatment in a hypothesised case3; (b) there must a causal link between the ground of discrimination alleged and the decision or action complained of – the discrimination must be ‘on the basis of’ the relevant attribute4; (c) if there are two or more reasons for the less favourable treatment, the discriminatory reason must be the substantial reason5; (d) there must be an objective characterisation of the discriminators ‘ground’ for its conduct, for which subjective intention may be relevant but is not decisive6. It is for the Applicant to make out each element of his or her case on the balance of probabilities7; (f) because the allegation of discrimination is a serious matter, the higher standard in Briginshaw v Briginshaw applies. The Tribunal must ‘feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality…it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal’8; (g) the burden of proof remains with the claimant.9 [24] I accept those propositions as being correct. [25] The meaning of victimisation is set out in s 130 as follows (1) Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant) – (a) because the complainant or a person associated with, or related to the complainant – (i) refused to do an act that would amount to a contravention of the act; or (ii) in good faith, allege, or intends to allege that a person committed an act that would amount to a contravention of the act; (iii) is, has been, or intends to be, involved in a proceeding under the act against any person; or (b) because the respondent believes that the complainant, or a person associated with, or related to, the complainant id doing, 3 Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19; Haines v Leves (1987) 8 NSWLR 442 at 471. 4 Anti-Discrimination Act 1991 (Qld) s 8. 5 Anti-Discrimination Act 1991 (Qld) s 10(5). 6 IW v City of Perth (1997) 71 ALJR 943 at 975 per Kirby J. 7 Sharma v Legal Aid Queensland [2002] FCAFC 196 at [40]. 8 Sharma v Legal Aid Queensland at [40]; Victoria v Macedonian Teachers Association of Victoria Inc. [1999] FCA 1287 at [15]. 9 Department of Health v Arumugam [1998] VR 319. -- 6 of 17 -- 7 has done, or intends to do one of the things mentioned (a)(i), (ii) or (iii). (2) In this section, a reference to involvement in a proceeding under the act includes – (a) making a complaint under the act and then continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and (b) involvement in a prosecution for an offence against the act; and (c) supplying information and producing documents to a person whose performing the function under the act; and (d) appearing as a witness in a proceeding under the act. [26] The term ‘discriminate’ appears in the dictionary to the Act as ‘means discriminate whether by direct discrimination or indirect discrimination’. Direct discrimination has a meaning given by s 10 and discrimination on the basis of an attribute has a meaning given by s 8. [27] The word “discrimination” is defined in the Oxford dictionary as: (1) Unfavourable treatment based on prejudice, especially or regarding race, religion, gender, age, sexual preference. (2) Good taste or judgement in artistic matters. (3) The power of discriminating or observing differences. (4) A distinction made with the mind or an action. [31] Mr Coenen was an employee of Baker’s Club Worldwide Pty Ltd. He claims he was a director of Bakers Club Worldwide Pty Ltd but that is disputed by Daniel Shock a director of Bakers Club Worldwide. On the relevant ASIC records Mr Coenen is not shown as a director. [32] On 7 January 2013 he along with Ulrich Klatte, Astrid Klatte and at least three other people attended the office of Bakers Club Worldwide at a time when a meeting was being held with Sue Thomas, Daniel Schoch, Irmina Webber, Ann Lee and Aeron Macdonald. Mr Coenen and the group which accompanied him were not invited. [33] The entry to the offices of Bakers Club Worldwide was videotaped and that record is exhibit 2. The DVD of the video shows the applicant and Mr Klatte entering the room, handing out some documents, speaking to them whilst others began to remove folders and documents from the office. The police were called and the documents were returned to the office and the applicant and those who accompanied him left after the police took details. [34] Anja Lampe-Matzkeit as the store manager of the Ashmore store attended the store meeting on the 7th of January 2013. -- 7 of 17 -- 8 [35] By an email on the 6th of January 2013 Mr Schoch advised Mr Klatte that Bakers Club Worldwide did not require his further involvement in the running of the business. Mr Klatte gave evidence that after he got that email he determined to attend the office of Bakers Club Worldwide the following day in order to get his personal belongings. [36] Also on the 6th of January 2013 Mr Schoch sent email to Mr Coenen addressing issues of concern to Mr Schoch including the conduct of Mr Coenen. The email purported to give directions which required Mr Coenen to cease and desist from doing various things including attending at the head office because of allegations made by two staff members about Mr Coenen’s conduct. Mr Coenen said he did not read that email until later on the 7th of January 2013. [37] On the 8th of January 2013 by a letter dated that day Daniel Schoch terminated the employment of Mr Coenen. That letter gave reasons for the termination of employment. [38] Mr Coenen caused to be filed in Fair Work Australia an application for unfair dismissal. [39] In the application it was said that Mr Coenen had worked for the business of Bakers Club for over six years. It was said that Mr Coenen and Mr Klatte previously owned and operated the Bakers Club business under various entities. On or about May 2012 the applicant began working for Bakers Club Worldwide Pty Ltd performing the duties for the Bakers Club business. [40] On or about June 2012 the business was taken over by Mr Schoch. [41] On 2 January 2013 the applicant lodged a complaint with the Australian Competition and Consumer Commission and the Franchise Council of Australia directed at Mr Schoch. [42] Mr Schoch said that after the meeting on 7 January 2013 he was told by Ann Lee that Irmina Webber was upset by what happened because it brought back memories for her about stories that she had been told by her grandmother when her grandfather was taken during the war. He was told that fact after the letter of dismissal had been sent to the applicant. [43] Mr Schoch gave evidence that he terminated Mr Coenen’s employment because of his actions on the day of the 7th of January 2013 and it had nothing to do whatsoever with his German heritage or political beliefs. [44] A conciliation conference was held by telephone conference with Bakers Club Worldwide represented by Shaneen Pointing who at the time was in a relationship with Mr Schoch and was at his request a director of Bakers Club Worldwide. Mr Coenen was represented by Liam Fraser a solicitor from the firm Hemming & Hart. He was on a conference call with the mediator from Fair Work Australia and Shaneen Pointing. Mr Coenen was present with Mr Fraser and Mr Schoch was present with Ms Pointing. -- 8 of 17 -- 9 [45] Mr Schoch recalled, when addressing the circumstances of what happened on the 7th of January 2013, saying words to the effect that one of the employees had to be taken into the back office by another staff member and that she was crying. [46] During the conference Ms Pointing made a statement about the conduct of the Applicant. On all accounts very shortly after that statement Liam Fraser objected to what Ms Pointing had said and indicated that his client was offended. [47] Subsequently Hemming and Hart on behalf of Mr Coenen served a concerns notice under the Defamation Act 2005 on Ms Pointing alleging defamatory and discriminatory statements. [48] Before the Fair Work Australia compliant could be heard Mr Coenen filed a notice of discontinuance. [32] The complainant on the 3rd April 2014 filed in the Tribunal a document entitled ‘Complainant Contentions on referral under the Anti-Discrimination Act 1001 (sic)’. It is difficult to gleam from that document or an indeed the complaint made the logical basis for a claim existing under the Act. [33] The claims seems to be triggered by comments made during the Fair Work Australia Conciliation Conference by Ms Pointing, a time after the applicant had been dismissed. He contends that during the conference Ms Pointing alleged that he acted like a Nazi. Even if that was so (and it is disputed) it is difficult to see how that later statement has anything to do with the dismissal of the applicant from employment. [34] The solicitor acting for the Applicant at the time of the Conciliation Conference on the 15th February 2013 Mr Liam Fraser took notes of the conference.10 Part of those notes is as follows – R 1.07 definition - Was inconsistent with characterisation of K (contract) of employment - Refers to video tape - All conduct was witnessed - Felt entitled to participate in meeting - Wilful and deliberate misconduct - Serious imminent threat to health and safety - Compared us to Nazis - Stopped discussion.” [33] Later in the notes the following appears: “Irmina he spoke to her… 10 Exhibit A. -- 9 of 17 -- 10 Mother/grandmother said it felt like the stories her grandmother used to tell her about the Nazis storming the office. [34] During evidence Mr Fraser told me that was information told to him by Ms Pointing. Mr Fraser witnessed the Applicant become upset at the comments. [35] Apart from the summary referred to above the evidence given by Mr Fraser seems consistent with the case that Ms Pointing was addressing the requirements of regulation 1.07 of the Fair Work Regulations 2009. [36] That regulation makes reference to ‘wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment’11 and ‘conduct that causes serious and imminent risk to (i) the health or safety of a person; (ii) the reputation, viability or profitability of the employers business.”12 [37] Ms Pointing gave evidence that in addressing the conference she was indicating that the applicant’s behaviour fell into the category described in regulation 1.07(2)(b), in that he came into the office and intentionally interrupted a management meeting and brought a number of other people some of whom had no connection with the business and he refused to leave the premises despite being asked to by Daniel Schoch. She was seeking to make the point that the Applicant’s behaviour fell into the category described in regulation (2)(b)(i) because it was conduct that causes serious and imminent risk to the health or safety of a person. [38] The note she made after the conference had terminated said that on that issue she said:  That the intrusion caused distress to other persons who were in the office at the time;  That office staff were so traumatised by the event that they still lock the doors when present in the office to that they, as they feared a repeat intrusion;  At one of the store managers had been taken to a back office and was in tears;  That she had been told by an employee of BCWW that the store manager who was in tears was so upset by what was happening because she said it bought back memories of stories she had been told by her grandmother about the conduct of the Nazis in the war. [39] Her evidence in that regard seems to me to be consistent with the evidence given by Mr Fraser and Mr Schoch. [40] Anne Lee gave a statement.13 She was at all times the bookkeeper for Bakers Club Worldwide. She was present at the meeting on the 11 Regulation 1.07(2)(a). 12 Regulation 1.07(2)(b). 13 Exhibit 16. -- 10 of 17 -- 11 7th January 2013 with Irmina Webber, Anja Lampe-Matzkeit, Aaron McDonald, Daniel Schoch and Sheree McOmish. She gave evidence that when the Applicant and the persons accompanying him entered the meeting she felt sick, intimidated and frightened. She saw that Irmina Webber was stressed and she looked as if she was not coping with the situation. She was concerned about her welfare and took her back to the back office and handed her some tissues. She said that Ms Webber was visibly very upset and was crying and shaking. [41] She said that Irmina told her that the whole scene reminded her of stories her grandmother had told about when the Nazis had stormed her grandmother’s house in Poland during WWII. She said that she was told the intrusion into the office appeared well organised and that is how her grandmother explained it. Her grandmother had said the first German officer would come in and distract the family while the other officers would ransack the house. Her grandmother told her that one officer would usually take photographs while everything was happening. [42] She gave evidence that ‘at no stage did I mean to ever call Christian a Nazi’. [43] The meeting of the 7th January 2013 was the subject of a video and during the disruption it appears that the Applicant who was then an imposing man walked up and down the room sometimes close to Mr Schoch making assertions about his capacity. Whilst that was occurring others were removing documentation. [44] Ms Lee had told Ms Pointing of that story. [45] Mr Coenen when giving his evidence said that he heard ‘acting like a Nazi’. He said that word “Nazi” was like an explosion. However, under cross examination he accepted that the version given by Ms Pointing could have been said. [46] Claudia Karsten was also present at the Conciliation Conference. In her statement14 on this point she said ‘after 15 minutes or so, whilst Shaneen accused Christian for (sic) wilful misconduct again and for threatening people in the office (on the 7th January 2013), she just of a sudden accused him that he was behaving like the Nazis, what she was obviously told by staff member Irmina after the event on Monday 7th January 2013’. [47] During cross examination she said she had definitely heard the word Nazi but rejected the proposition that Ms Pointing had been told that a member of staff brought back what her grandmother had told her about the war. It was suggested to her that she just heard the word Nazi and did not hear the rest. To that Ms Karsten answered ‘Nazi stood out’. [48] In my view it is likely the account as given by Ms pointing is the correct account and the Applicant was not accused of acting like a Nazi. 14 Exhibit 3. -- 11 of 17 -- 12 [49] One of the purposes of the Anti-Discrimination Act is to promote equality of opportunity for everyone by making a person responsible for certain acts of the person’s workers or agents. That purpose is achieved by making a person civilly liable for a contravention of the act by the person’s workers or agents.15 [50] If any of the person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be are jointly and severally civilly liable for the contravention and a proceeding under the act may be taken against either or both.16 [51] It is a defence to a proceeding for a contravention of the Act (s 133(1)) if the Respondent proves, on the balance of probabilities, that the Respondent took reasonable steps to prevent the worker or agent contravening the act. [52] As at 15th February 2013 the date of the Fair Work Conciliation Conference Ms Pointing was a director of Bakers Club Worldwide. [53] Bakers Club Worldwide contend that Ms Webber commenced employment with it on 2nd May 2013. It contends that she was as at the 7th December 2013 (the date the Applicant contends the words ‘acted like a Nazi’ were said) was employed by Iruka Pty Ltd. [54] James Lang a director of Iruka Pty Ltd in a statement said that on 7th January 2013 the business known as Bakers Club Robina (of which Ms Webber was the store manager) was owned by Iruka but the business known as ‘Bakers Club Robina’ was managed and conducted by Bakers Club Worldwide Pty Ltd which employed Ms Webber. [55] Ms Webber in exhibit 15 says that from around May 2011 until May 2013 she was employed by Iruka Pty Ltd. She says that on the 7th January 2013 at the meeting she felt very upset and distressed. She started to cry. She said memories of stories that her grandmother had told her when she was a child filled her head. As a young girl her grandmother had told her about how when the soldiers took her grandfather away one soldier stood at the door, one took pictures, another gave orders, one distracted her, while others went about forcibly taking him away. She says that she is certain that she did not accuse Mr Coenen of being a Nazi. [56] Bakers Club Worldwide contends that Ms Webber did not commence employment with them until 2nd May 2013. [57] The burden of proof is that it is for the complainant to prove on the balance of probabilities that the Respondents contravened the Act subject to the requirements in s 205 and s 206 of the Act.17 15 Anti-Discrimination Act 1991 (Qld) s 132. 16 Anti-Discrimination Act 1991 (Qld) s 133(1). 17 Anti-Discrimination Act 1991 (Qld) s 204. -- 12 of 17 -- 13 [58] In respect of an allegation of indirect discrimination the Respondent must prove on the balance of probabilities that the term complained of is reasonable18. In respect of any exemption relied on, the Respondent must raise the issue and prove on the balance of probabilities that it applies.19 [59] The first Respondent accepts that the Applicant as a German has a protected attribute based on race (German). They dispute that the Applicant can establish an ‘attribute’ for the purposes of the act based on ‘political belief or activity’. It assumes that the Applicant alleges only direct discrimination under the Act and not indirect discrimination. [60] I note that the Applicant has not alleged that the first Respondent imposed a term which discriminated against him.20 [61] I note that the Applicant has not alleged that any of the Respondents treated, or proposed to treat, the Applicant less favourably then another person without the Applicants attribute would have been treated, in circumstances that they were the same or not materially different.21 [62] The first Respondent contends that statements during the Fair Work Conciliation Conference were relevant to explain why the Applicant’s behaviour on Bakers Club Pty Ltd in the unfair dismissal application amounted to serious misconduct within the meaning of Regulation 1.07 of the Fair Work Regulations 2009. In that regard they contend that the Applicant had on 7th January 2013 acted in a manner which was wilful or deliberate behaviour by an employee that was inconsistent with the continuation of his employment (paragraph 2(a) of the Fair Work Regulations) and conduct that caused serious and imminent risk to the health or safety of other persons (paragraph 2(b)(i) of the Fair Work Regulations). [63] I accept the description of the Applicant’s behaviour as one which may have fallen into the category as described in paragraph (2)(a) of the Fair Work Regulations, in that the Applicant came into the office and intentionally interrupted a management meeting and brought a number of other people some of whom had no connection with the business and he refused to leave the premises despite being asked to do so by Mr Schoch. [64] I also accept and it is apparent on the DVD (exhibit 2) that people scattered throughout the office and started removing documents and taking them out of the office. [65] I also accept that the behaviour of the Applicant may have fallen into the category described 2(b)(i) of the Fair Work Regulations because it was conduct that caused serious or imminent risk to the health or safety of a person. 18 Anti-Discrimination Act 1991 (Qld) s 205. 19 Anti-Discrimination Act 1991 (Qld) s 206. 20 Anti-Discrimination Act 1991 (Qld) s 11. 21 Anti-Discrimination Act 1991 (Qld) s 10. -- 13 of 17 -- 14 [66] In particular I accept that one of the store managers had been taken back into a back office and was in tears. I also accept that subsequent to the event office staff lock doors when present in the office to prevent a repeat intrusion. I also accept that Bakers Club Worldwide had been informed that the store manager, Ms Webber who was in tears was very upset by what was happening because it brought back memories of stories that she had been told by her grandmother about the conduct of the Nazis in the war. [67] In my view, the Applicant has not shown that he was treated any less favourably than any other person in the same position. [68] In my view it is likely that the statements made in Fair Work Conciliation would have been made by Bakers Club Worldwide regardless of the Applicants protected attribute namely race or political belief. [69] In my view, the Applicant has not established any type of discrimination under s 9 of the Anti-Discrimination Act. [70] I note that the statement alleged to been made by Ms Pointing was made during the Fair Work Conciliation more than one month after the Applicant had been dismissed from his employment. [71] In my view the Applicant cannot show that if there was discrimination, it occurred in an area of activity where discrimination is prohibited under part 4 of the Anti-Discrimination Act. [72] In my view this is not a case where the Applicant was unlawfully discriminated against on the grounds of his race or political belief when he was dismissed on 8th January 2013. The reasons for the dismissal are set out in the dismissal letter and they do not support any claim of discrimination in the work area in relation to the Applicants dismissal. [73] In my view any allegations of unlawful discrimination must relate to subsequent events after 8 January 2013. [74] There has not been any evidence to show that the Applicant has been treated less favourably because of his protected attributes either being German or because of a presumed/compared political belief. [75] Section 124A provides that: A person must not by a public act, insight hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.22 [76] Section 124A(1) does not make unlawful - (a) the publication of a fair report of a public act mentioned in sub-section (1); 22 Anti-Discrimination Act 1991 (Qld) s 124A(1). -- 14 of 17 -- 15 (b) the publication of material in circumstances in which the publication would be made subject to a defence of absolute privilege in proceedings for defamation; or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific, or research purposes or for other purposes in the public interest, including public discussion or debate about, an expositions of, any act or matter.23 [77] Section 4A defines public act as: (1) A public act includes – (a) any form of communication to the public, including by speaking, writing, printing, displaying notices, broadcasting, telecasting, screening or playing of tapes or other recorded material, or by electronic means; and (b) any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia. (2) Despite anything in sub-section (1), a public act does not include the distribution or dissemination of any material by a person to the public if the person does not know, and could not reasonably be expected to know, the content of the matter. [78] In my opinion the alleged statement by Ms Pointing or the alleged statement by Ms Webber were not made “in public”. [79] Further in my opinion they were not made to insight hatred, serious contempt or severe ridicule of the Applicant based on his race. [80] In so far as there is a racial vilification complaint it is dismissed. [81] Section 129 of the Anti-Discrimination Act provides: A person must not victimise another person. [82] Section 130 defines victimisation as: “(1) Victimisation happens if a person (Respondent) does an act, or threatens to do an act to the detriment of another person (complainant) – (a) because the complainant, or a person associated with, or related to, the complainant – (i) refused to do an act that would amount to a contravention of the act; or (ii) in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or (iii) is, has been, or intends to be, involved in a proceeding under the Act against any person; or 23 Anti-Discrimination Act 1991 (Qld) s 124A(2). -- 15 of 17 -- 16 (b) because the Respondent believes that the Complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do any one of the things mentioned in paragraph (a)(i), (ii) or (iii). [83] There is no evidence that engages the operation of section 129 and in so far as there is reliance on section 130 the victimisation complaint made here is dismissed. [84] I note the other complaints made in Court or before various regulatory bodies and authorities. [85] The first Respondent argued in part that the conduct of the Applicant in making the various complaints for commencing various litigation allows a finding that this application and referral was brought for an improper purpose and that it was frivolous, trivial or vexatious and was lacking in substance or otherwise an abuse of process. It is not necessary for me to make any such finding because of my findings that the words contended for as having been said by Ms Webber and Ms Pointing were not so said and my finding that in any event even if they were in circumstances here there is not been shown to be a breach of the Anti-Discrimination Act. Because of my findings I order that the complaint made by the Applicant against it be dismissed.24 [86] Iruka Pty Ltd contended that Bakers Club Worldwide was the employer of Ms Webber and accordingly it was not responsible for or vicariously liable for any acts of Ms Webber. Bakers Club Worldwide had contended to the contrary. Because of my findings concerning the words said and the dismissal of the complaint it is not necessary for me to decide who was in fact the employer of Ms Webber or whether that entity was vicarious liable for any statement made by Ms Webber. [87] The third Respondent was not present at the Fair Work Conciliation Conference but adopted the denial of Ms Pointing. She did contend that she had not spoken to Ms Pointing about the events which occurred at the office of the first Respondent on the 7th January 2013 and that she had never uttered words to Ms Pointing in substance or affect to those alleged by the Complainant. [88] As I have indicated I accept that to be the case. [89] The third Respondent did not have a direct knowledge of who employed who but as I have said for the reasons I have given it is not necessary for me to decide that matter. [90] I accept the evidence of Ms Webber that she did not say the words attributed to her by the Applicant and I accept her account of how she felt on the 7th January 2013 leading her to be reminded of what she was told by her grandmother about the conduct of the Nazi’s during the war in connection with her grandmother and grandfather. 24 Anti-Discrimination Act 1991 (Qld) s 210. -- 16 of 17 -- 17 [91] I accept the contentions by the third Respondent that the claimant’s claim for alleged discrimination fails because of the language complained of had not been used against him personally on the basis of his race or any political belief or activity of his. [92] I also accept the contention by the third Respondent that the allegations against it, taken at their highest cannot establish that she treated the complainant unfavourably in any way in connection with work. The third Respondent had no involvement with any steps taken by the first Respondent against the complainant. [93] I accept the submissions made on behalf of the third Respondent and I find that the third Respondent did not engage in prohibited discrimination of the complainant, did not engage in racial vilification of the complainant and did not engage in victimisation of the complainant. [94] The parties have sought to be heard on costs. [95] All parties should by 4 pm 19 January 2015 file in the Tribunal and serve on the other parties’ submissions as to whether any costs orders should be made and whether it should be determined on the papers. Any such admissions should include any submissions about the appropriate orders and why the orders are sought. -- 17 of 17 --