Abdelkadiri v Ikea Pty Limited and Ors [2011] QCAT 732

CITATION: Abdelkadiri v Ikea Pty Limited and Ors [2011] QCAT 732 PARTIES: Nourddine Abdelkadiri v Ikea Pty Limited Louise Allen Jason Barton Brett Jones APPLICATION NUMBER: ADL016-09 MATTER TYPE: Anti-discrimination matters HEARING DATE: 8 and 9 November 2010 HEARD AT: Brisbane DECISION OF: Mr Robert Wensley QC, Member DELIVERED ON: 25 November 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The complaint is dismissed. 2. No orders as to costs. CATCHWORDS: ANTI-DISCRIMINATION – complaint of unlawful discrimination at the workplace – where findings of fact made against the applicant – where unlawful discrimination not proved APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Nourddine Abdelkadiri RESPONDENT: Mr A I James of counsel (instructed by Piper Alderman Lawyers) represented Ikea Pty Limited, Ms Louise Allen and Mr Jason Barton Mr Brett Jones did not appear REASONS FOR DECISION Introduction [1] This is the decision and reasons for decision in the Queensland Civil and Administrative Tribunal („the Tribunal‟) Brisbane Registry matter ADL016- 09. [2] The complainant is Mr Nourddine Abdelkadiri. The first respondent is Ikea Pty Limited ACN 006 270 757 („IKEA‟). Ikea is, it seems, a large -- 1 of 19 -- 2 corporation, operating throughout Australia, supplying goods for sale to the public and employing large numbers of people throughout the country. The second respondent is Ms Louise Allen. The third respondent is Mr Jason Barton. The fourth respondent is Mr Brett Jones. [3] The complainant is a former employee of the first respondent, first hired in about November 2006 to work as a storeman in the warehouse section of the Ikea store in Logan. The other respondents are also former employees of Ikea. [4] At relevant times, Ms Allen was the Sales and Supply Support Manager at the Logan store. Mr Barton was the warehouse supervisor, to whom the complainant ultimately reported. Mr Jones was a co-worker of the complainant, working as a storeman. [5] The complainant was born in Morocco on 6 July 1974, and came to Australia in about late 2005 or 2006. [6] When the complainant started working at Ikea, he was studying during the day and working at night. At that time, I accept, his English language skills were still developing and were quite limited. [7] The complainant had a written contract of employment with Ikea. Ikea submitted that that contract defined equal opportunity employment as precluding discrimination and harassment based on race or religion1. It was not contested that the written contract of employment was dated 1 November 2006. The complainant admitted signing the contract, but said he did not read it. [8] In his materials, the complainant says that he enjoyed work at Ikea for a while, but then, unfortunately, “things started to happen at work”, involving numerous matters over a period of time, about which his complaints have led to the proceeding in this Tribunal. I mention these matters in more detail below. [9] To end this introductory section, it is common ground that in January 2008 the complainant had an accident at work which led to him being treated by specialists and a neurosurgeon, under the Queensland WorkCover arrangements, following which he returned to work at Ikea and was put on light duties. I infer that the complainant had some time off work and came back to work on the light duties for something like four to six weeks, until he left Ikea in July 2008. [10] The complainant‟s WorkCover claims and complaints were settled, and on 24 February 2010 the complainant entered into a Release and Discharge with Ikea in that regard. 1 Respondents‟ contentions, para 7.6. -- 2 of 19 -- 3 The Proceedings leading to the Hearing [11] On 30 May 2008 the complainant made a complaint to the Anti- Discrimination Commission Queensland („the complaint‟). Broadly speaking, the complaint related to conduct alleged to have taken place in the Ikea workplace between about November 2006 and May 2008. [12] A conciliation conference was held on 21 July 2009, but the matter was not resolved. On 8 August 2009, the complaint was referred to the Anti- Discrimination Tribunal of Queensland, and on 1 December 2009 the matter was referred to this Tribunal. [13] In the Tribunal2, the complainant represented himself with assistance from (it seems) friends and family. The first, second and third respondents were represented by Piper Alderman Lawyers of Sydney. The fourth respondent, Mr Jones, was not represented at any time and seems to have taken no part in the proceedings, including not replying to correspondence either from the Tribunal or the Anti-Discrimination Commission. [14] The matter came on for hearing before me on 8 November 2010 and 9 November 2010. The complainant represented himself, and Mr A I James of counsel (instructed by Piper Alderman Lawyers) appeared for the first, second and third respondents. The fourth respondent was not represented and did not appear. [15] At the hearing, the complainant gave oral evidence and was cross- examined. Also, he relied upon statements of Heidi Isaksen (30 September 2010), Raj Narayan (1 October 2010), and Abderrahim Kissi (30 October 2010). I need to record that none of these statements assisted the complainant‟s case, because all of them, on their face, were simply records of some things which the complainant had told them about the factual history of the matter. However, I do accept that there was some independent evidence of the fact – which I accept as a fact – that the complainant has been stressed by the matters before this Tribunal, and has exhibited signs of that stress to those who know him. [16] Also on the file, although not expressly relied upon by the complainant, were: (a) his original complaint to the Anti-Discrimination Commission Queensland; (b) a document entitled „Problems I have been having at work‟, which seems to have been created in about June 2008; (c) an email from the complainant to Shobha Duff dated 17 July 2008; (d) a typewritten statement of the complainant dated 21 October 2008, referring to “Loiuse [sic], Adrian, Matt and Gleb”; 2 Apart from a very short period. -- 3 of 19 -- 4 (e) a statutory declaration of the complainant dated 22 October 2010; (f) a letter from the complainant addressed “To whom it may concern” dated 21 December 2010; (g) the complainant‟s Contentions, filed in accordance with the orders of the Tribunal, and dated 17 March 2010. [17] The complainant also filed, and I assume relies upon, a medical certificate from Dr Embarki, from Morocco, and a statement of Ms Cath Stuart of Psychology Services Queensland. These documents relate to Mr Abdelkadiri‟s state of health in October 2010. They point to the complainant being depressed and suffering from anxiety and needing medical treatment and psychotherapeutic support in that regard, at that time. [18] I have read these documents carefully. Without attempting to dissect them in fine detail, it seems to me that, over the years, the complainant has had difficulty articulating his complaints with precision. I accept that he is a lay person without legal training, but I note, in a matter where issues of credit potentially are important, that there are numerous inconsistencies between the various documents created by him, as to what happened when, and who was involved, in relation to his complaints. [19] The first, second and third respondents‟ representatives proceeded on the basis that the essence of the complainant‟s complaints are contained in the Contentions which he delivered pursuant to the orders of the Tribunal, and it seems to me that that is an appropriate way to approach the matter as a whole, when it is attended by some confusion. [20] To complete this section, and before turning to the particular items of complaint, I record that at the hearing written statements of Ms Allen, Mr Barton, Mr Stuart Richmond and Mr Jason Bourne (the Ikea Human Relations Manager) were tendered. Mr Richmond has worked for Ikea since 2005. Currently he is a Logistics Team Leader at the Logan store. He remembers that the complainant began work there when that store opened in about 2006-2007. He understood the complainant to be a Logistics Co-Worker. Mr Richmond was also a Logistics Co-Worker at that time, and he and the complainant were supervised by Mr Barton. Later, Mr Richmond became the complainant‟s supervisor, in about 2007. [21] Each of Ms Allen, Mr Barton, Mr Richmond and Mr Bourne gave oral evidence (Ms Allen by video link from Victoria), and each was cross- examined by the complainant. [22] In the circumstances, I have had the advantage of seeing all of the relevant witnesses (except for Mr Jones), and my observations of their giving their evidence has assisted me in reaching conclusions in the matter, which is one, I note, where there are some stark conflicts of evidence between the complainant and some of the witnesses for the respondents. -- 4 of 19 -- 5 [23] Before turning to the particulars of the complaint, I make the following observations. [24] Mr Abdelkadiri presented as a witness very attached to his case. I do not doubt his commitment to honesty, but I found his evidence, at times, to be overly wordy, excitable, almost speech-making, and conveying the fact (which I accept) that he was angry and upset about the matters of which he complained. My impression, generally, was that over a period of time he had become committed to the cause of his application, so that, quite understandably, he was a passionate, rather than a dispassionate, witness of fact. [25] In this context, I thought that Ms Allen was a very credible witness. Although I refer to it in a little more detail below, where her evidence conflicts with that of the complainant, I prefer the evidence of Ms Allen. [26] Mr Barton presented as an honest, if somewhat defensive, witness. [27] Mr Bourne presented as a careful and professional person. His principal purpose, in giving evidence, seems to have been to reveal the Ikea documentary records with respect to the complainant‟s employment record with Ikea, and to present evidence about Ikea‟s policies and processes. In that regard, I do not doubt the accuracy of his evidence, although it is clear that he had limited personal knowledge of the complainant‟s employment history. In particular, he did not present (and presumably could not present) any documentary record of the complainant having attended a two day induction course3 at the beginning of his employment with Ikea, and his evidence really was limited to his knowledge of the Ikea policies in that regard. [28] Nevertheless, Mr Bourne‟s reference to the documentary record, with respect to the complainant in particular and to Ikea in general (in relation to the complainant‟s complaints), has been of assistance to me. [29] Generally, I thought that Mr Richmond was an honest and credible witness. Particulars of Mr Abdelkadiri’s complaints and analysis and findings of fact in regard to them [30] As I have mentioned, the details of the complainant‟s allegations have not been presented consistently over time, in terms of what happened or when it happened and what people were involved. This is a matter going to the credibility of the allegations. As I have said, I accept the distillation of the details of the complaints, as finally advanced, contained in the written submissions for the first, second and third respondents, at the end of the hearing. Also, there is an issue about whether the complainant received induction with Ikea and, if he did not (he says he did not), whether that is of significance in relation to his claims of unlawful discrimination. 3 A matter referred to below. -- 5 of 19 -- 6 [31] I turn now to deal with the complainant‟s particular allegations, after which I shall look at the law, to the extent to which it seems to me to be relevant. The complainant’s allegations (a) That Australian workers were shown favouritism over overseas workers due to their being offered better shifts and better jobs in the warehouse [32] This allegation appears in the complainant‟s statutory declaration of 22 October 2010. He says that he enjoyed the first month or two of work, but that unfortunately things started to happen at work after this time, such as favouritism between overseas workers and Australian workers. He declares that the Australian workers were given all of the best jobs in the warehouse, and all of the best shifts. [33] The first, second and third respondents submit that this contention is a bald assertion, not supported by any evidence. This seems to me to be correct. [34] There is evidence from Mr Richmond that he has never observed Australian workers being offered favouritism. His evidence was that when the store was busy, shifts and jobs were offered to staff based on who was best suited for the job. There is evidence from Mr Barton that Australian workers were not afforded favouritism over overseas workers, and he said that staff were offered tasks and shifts based upon their ability and aptitude. [35] Of some significance, it seems to me, is that Mr Bourne, the Ikea Human Resources Manager, not only states that as far as he is aware no favouritism is shown to Australian workers, but that the complainant‟s evidence, that he was not offered overtime until he complained about it, expressly is contradicted by Ikea‟s pay records. These records are in evidence before me, and they show that the complainant worked overtime and was paid for it. [36] Indeed, in cross-examination, Mr Abdelkadiri complained that he was told that he had to stay back to work overtime and that this was affecting his ability to continue his studies. [37] I conclude that the evidence before me supports overwhelmingly a conclusion of fact that this complaint, of favouritism to Australian workers, is not made out. (b) That the third respondent, Jason Barton – (i) swore at the complainant; (ii) called the complainant a “Fucking Moroccan”; and (iii) made comments about the complainant‟s colour and religion [38] The complainant‟s evidence and filed documents inconsistently record complaints about alleged conduct of Mr Barton. In his statutory declaration Mr Abdelkadiri says, “Jason would often swear at me, calling me an F*** Moroccan. He would also make comments about my colour and my religion.” -- 6 of 19 -- 7 [39] In his written closing submissions, the complainant says that Jason Barton called him a terrorist, around 27 December 2006, about which he complained to management, including in a letter written to Paul, the goods flow manager. Neither of these matters is referred to in the complainant‟s statutory declaration. No such letter has been disclosed by Ikea (I note in passing that the Ikea disclosure is relatively voluminous and is of the type, in terms of nature of documents and records made, that I would have expected in a case like this). [40] It his Contentions, filed in the Tribunal, the complainant refers to being discriminated against “in that comments were made by the Respondents in a derogatory manner”, but it is not clear who is being referred to by the phrase “the Respondents”. I note here that the Contentions document is very general in content, and I found it of little assistance in seeking to analyse the evidence about particular specified allegations. [41] In his closing written submission, the complainant says that Jason Barton consistently swore during shifts when they were working together, making him (the complainant) very uncomfortable. He says that he overheard Jason Barton speak about him to others in a derogatory manner on a number of occasions (no particulars were given), including calling him a “Fucking Moroccan” to other people. [42] The written submissions for the first, second and third respondents4 note that in the complaint filed with the Anti-Discrimination Commission on 30 May 2008, the complainant recorded the following: “...There was a server [sic] discrimination situation with my first supervisor called JASON. ... He discriminated against me in many ways I.E. race, religion and he used to give me the hardest jobs while he was sitting with girls having fun. I reported the matter to Paul which [sic] at that time was the FLOOR MANAGER. He left some time ago but nothing seemed to be done about this. JASON use [sic] to tell people the [F****] Moroccan bastard is not her [sic]. I had been told on many accessions [sic] about what had been exactly said and what was going on.” [43] Mr Barton made two written statements. One of the things he denies is that he gave the complainant tasks or duties that were difficult in nature or different to those given to his peers. He denies treating the complainant differently in any way, as compared to his peers. Specifically, he denies referring to the complainant as “Moroccan”, or otherwise making comments to him about his race or ethnicity. Specifically, he denies referring to him as a “terrorist”. [44] Further, he expressly denies ever calling the complainant a “Fucking Moroccan” or swearing at the complainant. He acknowledges that he may have sworn in general conversation when he was working in the warehouse. [45] Having noted what seem to me to be the significant inconsistencies in the different versions of Mr Barton‟s alleged conduct, contained in the evidence and documents of the complainant; having had the advantage of 4 Para 23. -- 7 of 19 -- 8 seeing the relevant witnesses give their evidence; having noted the absence of any complaint document in the Ikea records (and indeed the absence of a copy of any such document kept or tendered by the complainant); and noting that the complainant bears the onus of proving his allegations, I conclude that the allegations have not been made out as a matter of fact. Specifically, where the evidence of Mr Barton conflicts with the evidence of Mr Abdelkadiri, I prefer the evidence of Mr Barton. (c) That the complainant was humiliated and discriminated against because of his race, religion and culture several times by “one person” [46] In his statutory declaration, the complainant says – “I was humiliated and discriminated against because of my race, my religion and my culture several times by one person. I reported the behaviour more than 3 times. My evidence of this is a letter of complaint that I sent to the management. I was told that it would be investigated but nothing happened. Many times I asked about the outcome, but each time there was an excuse until the person involved left Ikea.” [47] These generalised allegations of humiliation and discrimination are not particularised in the declaration, or later in the materials or evidence of the complainant. It may be that they are intended to be a general reference to particular allegations which do give details of time, place, conduct and the like. However, if that is the case, they add nothing to the particular allegations which are made and which I am dealing with in what I hope is a logical manner. [48] In the closing written submissions for the first, second and third respondents, it is stated that the complainant fails in his statement to detail who the “one person” is, and provides no evidence of the nature of the discrimination. It is submitted that the complainant failed to demonstrate to the requisite standard that such humiliation or discrimination took place. [49] It seems to me that this submission is correct, and I so find. (d) That the complainant reported the alleged behaviour, referred to in paragraph (c) above, more than three times [50] In subparagraph (c) above, I have set out the complainant‟s evidence in his statutory declaration, in this regard. The complainant does not say when and to whom he reported the alleged behaviour. Although he refers to a letter of complaint sent to management, he did not produce a copy of the letter, and he does not identify the “management”. Nor does he give details of who told him that the matter would be investigated, or of the alleged many times he asked about the outcome. [51] Further, although it is suggested that “the person involved” provided excuses, that person is not identified. [52] These general and un-particularised allegations may be compared with the material in the complainant‟s statutory declaration which immediately follows them, where he says: -- 8 of 19 -- 9 “Then after that I experienced more discrimination against my religion and against me personally, when I was called a „terrorist‟ twice by a fellow employee, Brett Jones. One of these incidents took place in the warehouse, and the other in the restaurant upstairs. ... Both incidents were immediately reported to Stewart [sic], my supervisor at the time. He told me he would do something about it and that it was unacceptable and that he would talk to the management upstairs.” [53] These allegations are considered below, but it will be noted that they are quite specific and the people involved are identified and put in a position to respond. [54] It is submitted, in the final written submissions for the first, second and third respondents, in respect of this complaint, that the Tribunal could not be satisfied on the evidence that the generalised allegations of reporting are made out. It is submitted that the plaintiff has failed to demonstrate to the requisite standard that he made those complaints. Further, it is submitted that Mr Bourne confirms in his statement that there is no record in the complainant‟s personnel file of any complaints being made. [55] In paragraph 6 of his statement, Mr Bourne says: “I have reviewed Ikea‟s personnel records relating to Mr Abdelkadiri and there is no record of Mr Abdelkadiri making a formal discrimination or vilification complaint.” [56] I am not sure that I should attach any significance to the use of the word “formal”, although presumably it was used advisedly. That is, the statement is literally not to the effect that there are no informal complaints, of the relevant type, in the records. [57] I note that in Mr Richmond's statement, dealing with the allegations made against Brett Jones, Mr Richmond says that if he had received a complaint he would have spoken to the relevant employee and then gone straight to his immediate supervisor of Human Resources and sought advice. [58] In all of the circumstances, I think that I can infer, and I find, that there is nothing in the Ikea record relating to the alleged complaints, here under consideration. Had they been made, it is logical to expect that there would be a record and, again, I refer to the nature and extent of the Ikea disclosure. [59] In the result, I find that the complainant has failed to demonstrate to the requisite standard that he made the complaints which he said he did, and which are being considered in this particular subsection of my reasons. (e) That the fourth respondent, Brett Jones, called the complainant a terrorist on two occasions [60] Brett Jones is the fourth respondent. As mentioned, he did not appear at the hearing, and he took no part in the proceeding. He was employed by Ikea, first at the Springwood store and then at the new Logan store. He -- 9 of 19 -- 10 was a co-worker with the complainant, and he was known to Stuart Richmond. [61] As I have said, in his statutory declaration the complainant specifically alleges that he was twice called a terrorist by Brett Jones, with one of these incidents taking place in the warehouse, and the other in the restaurant upstairs. [62] In his oral evidence, the complainant gave further details of the alleged incident in the restaurant, and I thought that this evidence had the ring of truth. He described how he was having dinner in the restaurant, sitting on a chair and watching the TV, which was broadcasting something about the Iraq war. He described how Brett came in and called him a terrorist, and how he was very upset by that. No-one else was alleged to have been present at this time, and Mr Jones has given no evidence about it. [63] In his written closing submissions, Mr Abdelkadiri notes that Mr Jones did not appear at the hearing, and submits that his lack of attendance indicates that he does not take this matter seriously, and that perhaps he has things to hide. Certainly, Mr Abdelkadiri‟s evidence on the point stands unchallenged. [64] In the closing submissions for the first, second and third respondents, it is stated that, as those respondents are not said to have been a party to relevant conversations when the alleged comments were made, they are unable to submit on the accuracy of the complainant‟s assertions. [65] In his Contentions filed in the Tribunal (section 3), the complainant refers to comments being made about his alleged participation in terrorist activity because he was Moroccan. I infer that Mr Abdelkadiri asserts or assumed that there was an association between the alleged comment/s about being a terrorist and his Moroccan status, particularly in the context of the remark allegedly being made while there was a television program being broadcast in the restaurant about the Iraq war. [66] However, I note that the complainant does not attempt to give any more details of the alleged conversation (and I am not critical about that), so that I am left in some difficulty with respect to making a finding of fact about what, if anything, Mr Jones said to Mr Abdelkadiri about the complainant being a terrorist. [67] The other evidence bearing on this particular point is the complainant‟s declared testimony that the two alleged incidents, of being called a terrorist by Mr Brett Jones, were immediately reported to Stuart (Richmond, no doubt), the complainant‟s supervisor at the time. The complainant says that Stuart told him that he would do something about it, that it was unacceptable, and he would talk to the management upstairs. [68] Mr Richmond‟s evidence is to the contrary. In his statement he says: “During my time as the complainant‟s supervisor, I do not ever recall him approaching me to make a complaint about anything that Brett had said to -- 10 of 19 -- 11 him, and in particular, I do not recall him every complaining to me that Brett had called him a „terrorist‟. I do recall the complainant speaking to me about Michael Bristow, who was a supervisor. To the best of my recollection, the complainant was complaining about how Michael had told him off. This occurred in about 2007. I don‟t think there was any issue about race in the incident, as Michael is a Maori and I don‟t recall it being an issue. If he had made a complaint that Brett had called him a terrorist I would have spoken to Brett and then gone straight to my immediate supervisor of Human Resources and sought advice from them.” [69] As indicated above, I thought that Mr Richmond was a credible witness, and I accept his testimony in this regard. It follows that I do not accept the complainant‟s testimony about reporting alleged incidents involving Brett Jones to Mr Richmond. In turn, it seems to me that, logically, that is a matter to be taken into account in assessing the complainant‟s evidence about Mr Jones‟s alleged behaviour. [70] With some hesitation, but considering all of the evidence as a whole, I find that it is more likely than not that Brett Jones called the complainant a terrorist on at least one occasion while the two men were working together at Ikea. What precisely was said I do not know and cannot determine, but the inference is, I think, that the word “terrorist” was used in a derogatory manner and, if not intended, then at least it was understood by the complainant to have been used because of Mr Abdelkadiri‟s Moroccan status. [71] What that conclusion means, so far as the complainant‟s allegations of unlawful discrimination are concerned, both with respect to Mr Jones and with respect to his employer, Ikea, remains to be seen, and is considered below. (f) That the conduct of Brett Jones was reported to the complainant‟s supervisor „Stewart‟ [sic], but nothing came of this [72] I have referred to some of the evidence in relation to this particular allegation in the previous subparagraph. Also, I have recorded my conclusion that I accept Mr Richmond‟s evidence in this regard. [73] For completion, I reproduce here the closing written submissions for the first, second and third respondents, on this point: “Whilst the respondents are unable to submit on the accuracy of the alleged conversations between Jones and the complainant, insofar as the complainant is alleged to have reported the offensive comments to his supervisor, Stuart Richmond, it is submitted that the Tribunal would prefer the evidence of Richmond who states no such complaints were made to him. It is submitted that Richmond answered the questions put to him in an honest and forthright manner and made concessions where appropriate. Richmond confirms that had a complaint been made to him to the effect that Jones had called the complainant a „terrorist‟ he would have separated the parties to ensure no further conflict would occur and -- 11 of 19 -- 12 then gone straight to his immediate supervisor or [sic] a Human Resources and sought advice.5 It is submitted it was apparent from Richmond‟s evidence that he had a good grasp of the policies and procedures put in place by Ikea to deal with issues that require resolution. He confirms that had a complaint been received of the nature alleged by the complainant, he would have made a diary note of it, sent an email to his boss, and advises that an investigation would have ensued. As confirmed by Bourne, there is no record of any such investigation in the complainant‟s personnel file.” [74] I accept these submissions, and I find that the complainant has failed to make out this particular allegation. (g) The conduct of the second respondent, Louise Allen – (i) That Louise Allen attacked the complainant emotionally every day whilst he was on light duties [75] I have recorded above that, after the complainant returned to work with Ikea, following his workplace injury, he was put on light duties. The evidence seems to be that he was to work from 6 am to 10 am each day he worked. In his statutory declaration, the complainant states that he was put on light duties for four to six weeks before his employment with Ikea ended. [76] The statutory declaration then states: “I was attacked emotionally from the group leader Louise Allen everyday I worked. She banned me from wearing my jacket when other workers were allowed to wear jackets. It was freezing and went against my doctor‟s instructions. I was not allowed to go and get my breakfast outside the store during my break time, as she was having a birthday party. I was also given work in the warehouse that was not suitable for me according to my doctor‟s instructions. She took photos of me with some other employees without explaining to me why. Each day my stress increased as a result of this treatment at work.” [77] In his closing written submissions, the complainant stated that Ms Allen was unaware of the full extent of his injury; that she did not adequately comply with his doctor‟s instructions and the rehabilitation plan; and that although she was aware of his stress at work, she did not assist him to resolve the stress caused by co-workers at Ikea. [78] Ms Allen made a written statement, which is in evidence before me, and gave oral evidence. As I have indicated, I thought that she was a particularly impressive witness. I accept her testimony. [79] Ms Allen was employed by Ikea between February 2003 and February 2010. For most of that time she was Sales and Supply Support Manager, performing that role within an administrative department of Ikea. While she was working in Brisbane, Mr Abdelkadiri was assigned to her 5 This submission is not quite in keeping with Mr Richmond‟s written statement, which is to the effect that he would have spoken to Brett Jones and then gone to his immediate supervisor of Human Resources. -- 12 of 19 -- 13 department as part of his return to work program. Ms Allen says that she was instructed that Mr Abdelkadiri would be in the department from 6 am to 10 am a couple of days per week. She was not the complainant‟s manager during this time. His manager was the Goods Flow Manager of the goods flow department. [80] Ms Allen says that while Mr Abdelkadiri was assigned to her department he was to complete simple tasks, such as filing, checking data entry, and distributing printed reports, in line with a suitable duties plan. [81] Ms Allen states that at no time did she ever enquire into any specific details of Mr Abdelkadiri‟s personal history, situation, religious belief or other information, and she denies making any comments to or about him regarding his personal attributes. She denies generally the allegations made against her. [82] She says that during the time she worked with the complainant, their shifts did not always coincide, because her shift would sometimes start at 8 am, 11 am or 1 pm. [83] If the complainant‟s allegation that he was attacked emotionally by Ms Allen every day he worked is a standalone allegation, rather than an introduction to more specific allegations, I reject the allegation. It is not particularised, it does not sit with Ms Allen‟s evidence as a whole (which I accept), and, I must say, it seems quite unlikely to have been true. (g) (ii) That Louise Allen banned the complainant from wearing a jacket, which went against the instructions of the doctors who were treating him for his workplace injury [84] I have set out above the complainant‟s evidence in this regard, from his statutory declaration. In his closing written submissions, Mr Abdelkadiri says that Ms Allen instructed him not to wear his leather jacket over his uniform, even though other workers were allowed to do this, and that she showed favouritism to other workers in that regard. [85] In her statement, Ms Allen expressly denies ever banning the complainant from wearing a particular jacket at work. [86] There is a conflict between the complainant‟s statutory declaration and the details that he gave to the Anti-Discrimination Commission, where he stated: “... Last Sunday it was really freezing in the morning so I kept my jacket on. Around 9.30 (Matt) he is a Logs supervisor came to me with a dirty look. Mat [sic] what is wrong. He said you are not allowed to wear a jacket. Then he gave me a jumper which is not warm enough for someone who suffer from sciatic nerve and shoulders damage.” [87] In the closing submissions for the first, second and third respondents, it is submitted, as seems to me correctly, that the original complaint made no mention of Ms Allen in relation to this alleged incident, and that I should prefer the evidence of Ms Allen. I accept that submission. -- 13 of 19 -- 14 [88] In doing so, I note that it was conceded in evidence by the complainant that he was required as part of his employment to wear a uniform; that the jacket he wanted to wear did not form part of the uniform; and that he was offered an alternative. A submission is made for the first, second and third respondents that even if the complainant was required to remove his jacket, there was no evidence to support a finding that such a requirement was placed upon him on the basis of an attribute he has, such as race, religion or impairment, so that the complainant has failed to demonstrate that the alleged conduct amounts to discrimination within the meaning of the Anti-Discrimination Act 1991. [89] If it were necessary to do so, I would accept this submission. However, it is not necessary to do so because I find against the complainant on this particular issue, as a straightforward matter of fact, remembering that the allegation as ultimately advanced was made in respect of conduct of Ms Allen. (g) (iii) That Ms Allen would not allow the complainant to go outside to get his breakfast during his break time [90] This particular allegation seems to relate to a single occasion, because the complainant says in his statutory declaration that he was not allowed to go and get his breakfast outside the store in his break time, as Ms Allen was having a birthday party. [91] Ms Allen denies this, and refers to an occasion which she remembers, having a meeting with Mr Abdelkadiri regarding breaks during his shifts. She recalls saying to Mr Abdelkadiri words to the following effect: “You are entitled to a 5 minute walk around the office every 30 minutes and there are no scheduled breaks (15 or 30 minutes) in a rostered 4 hour shift, as per the Ikea Collective Agreement.” [92] She recalls that during this meeting, Mr Abdelkadiri appeared to be quite agitated and defensive, as demonstrated through his body language and voice projection. [93] I accept Ms Allen‟s evidence. [94] As well, I note the written submissions of the first, second and third respondents, to the effect that the complainant, during cross-examination, confirmed that his return to work program provided for him to work a four hour shift which, due to its length, did not include a meal break. I note that it is submitted that, even if it was to be accepted that the complainant was not allowed to go to get his breakfast outside the store, there is no evidence before me to show that other employees were allowed to do this, who do not share the same attributes as the complainant. [95] If it were necessary, I would accept these submissions, but it is not necessary because of the finding of fact which I have made. -- 14 of 19 -- 15 (g) (iv) That Ms Allen gave the complainant work in the warehouse that was not suitable having regard to his doctor‟s instructions [96] The allegation appears in the complainant‟s statutory declaration, although it is not particularised. In his final written submissions, the complainant says, without giving details, that he was asked to do work by Ms Allen that caused pain to his injured back. [97] In her statement, Ms Allen denies ever detailing the complainant to attend to work in the warehouse. She refers to her understanding that, as part of his return to work program, he was required to count stock at eye level so that he did not have to crane his neck, but she notes that that instruction did not come from her. [98] Particularly given the lack of detail in the complainant‟s evidence, I prefer the evidence of Ms Allen over that of the complainant on this point, and I find as a fact that the allegation is not made out. [99] I add that, if it were necessary, I would find that the complainant had failed to demonstrate the conduct complained of was based on any attribute he possessed, in the context of an allegation of unlawful discrimination within the meaning of the Anti-Discrimination Act 1991.6 (g) (v) That Louise Allen took photographs of the complainant without explaining why [100] In his statutory declaration, the complainant states simply that Ms Allen took photographs of him with some other employees, “without explaining to me why”. In his written closing submissions, the complainant says that Ms Allen was present when an incident involving his photo being taken occurred, and that she provided no explanation of why this was done. It seems to me that the two allegations, potentially at least, are inconsistent. [101] In his original complaint to the Anti-Discrimination Commission Queensland, the complainant said that in late May 2008 two girls were standing around talking, around 10 o‟clock before he finished, and that they took photos of him while he was clocking off. He noted that one was a restaurant manager, but he did not know the other one and he had to find her name. He said that, “I‟m sure that it‟s something because I saw her putting (??) in the pocket”. [102] Ms Allen denies taking any photographs of the complainant, and states that during the time he was working at Ikea she did not own a phone that was capable of taking photographs. [103] The complainant was cross-examined about the discrepancies mentioned above. He testified that actually there were three girls, one of which was Ms Allen, and that it was Ms Allen taking the photographs. However, I accept the submissions made for the first, second and third respondents that this was not put to Ms Allen by the complainant when he cross- 6 See para 40 of the final written submissions for the first, second and third respondents. -- 15 of 19 -- 16 examined her. On the contrary, it was put to her that she was present when another girl took photographs of him. [104] I find the complainant‟s evidence on this particular point unsatisfactory, and I accept Ms Allen‟s evidence that she never took a photograph of him as alleged. [105] Also, I accept the closing written submissions for the first, second and third respondents that, if there were evidence to support a finding that photographs were taken of the complainant by Ms Allen or another Ikea employee, this conduct arose as a consequence of some attribute that he had, and therefore could amount to unlawful discrimination. [106] In the result, I find against the complainant in respect of this allegation. (h) Did the complainant receive induction training when he first began his employment with Ikea? [107] In his materials, and particularly in his written closing submissions, Mr Abdelkadiri alleges that at no point did he receive induction with Ikea, and that at no point were copies of Ikea policies given to him or explained to him. The complainant submits that Ikea cannot provide evidence that he did an induction course or, indeed, received any form of induction. [108] The significance of this point is unclear to me. The complainant seeks to persuade me that he received no induction, and perhaps that I should find that that was contrary to Ikea‟s policies. [109] Assuming that it is relevant, the evidence for the respondents on the point is not very compelling. Mr Bourne said that it is Ikea‟s practice to inform all new employees of its policies and to provide them with a copy during a compulsory two day induction on commencement of employment. In oral evidence, he said that Ikea kept records of who had done the induction, but no records in that regard were produced with respect to Mr Abdelkadiri. [110] Mr Barton says that when he commenced work with Ikea, he remembers that he was required to undertake an induction program during which he was informed of, amongst other things, the human resources policies. [111] Mr Abdelkadiri says that Mr Richmond, in oral evidence, indicated that his induction was only practical on-the-job training, and that accords with my recollection. [112] In all of these circumstances, it seems to me that probably I should accept that the complainant did not receive the induction training, even though it was Ikea‟s policy that he should have done so. [113] The question remains, what is the significance of such a finding? It might have some general significance, as pointing to Ikea‟s having established policies in relevant areas but perhaps not following them always in practice (or perhaps in particular instances not following them), but again the question is – what is the significance of that, if it be a fact (as far as -- 16 of 19 -- 17 the complainant‟s complaints of unlawful discrimination against him are concerned)? [114] Mr Abdelkadiri does not seem to say that he did not receive his induction training because of his race or religion or anything along those lines, so it seems to me that the allegation ultimately goes nowhere, so far as the complainant‟s complaints are concerned. [115] The issue might have some significance in relation to the respondents‟ submissions about section 133 of the Anti-Discrimination Act 1991 in regard to vicarious liability, and I consider that below. (i) That Ikea was not supportive of the complainant; did not investigate his complaints; failed to follow its own policy; did not help the complainant with his English language; and did not properly support the complainant during the readjustment period after he returned to work after injury [116] This is a somewhat nebulous complaint or set of complaints, and the significance is not clear to me. However, I record that in his closing written submissions, the complainant said that Ikea did not investigate properly any of his claims about favouritism, racism, and vilification; that he never felt supported by Ikea as one of its employees, when he had an issue; that his experience at Ikea was that there were no consequences for fellow employees who broke procedure or policy; that his experience at Ikea was that his workplace issues were regarded as trivial and not important to Ikea to worry about; that he received little consideration for his lack of English when Ikea dealt with him; that no-one at Ikea offered to support him with his English when he needed to make a complaint; so that he felt very isolated and frustrated, and it was hard for him to express his thoughts and experiences properly. [117] I accept that Mr Abdelkadiri genuinely holds the views that he has expressed in this regard. However, I note that I have made a finding of fact that he did not complain to his supervisor/s about alleged discrimination. [118] It seems to me that this series of allegations has no relevance to the particular allegations of unlawful discrimination which have been made by the complainant, but potentially is relevant to the section 133 defence. The submissions for the first, second and third respondents seem to recognise this, in paragraphs 45-51 of those submissions. [119] In this regard, I accept the submissions for the first, second and third respondents that: (a) Ikea at material times had appropriate policies and procedures in place to address issues arising in the workplace, including discrimination (there was a good deal of evidence about this, about which I accept); and (b) while not being aware of the detail, the complainant knew that he could make complaints to management about his treatment in the workforce and, indeed, he asserted that he did so. -- 17 of 19 -- 18 [120] In all of the circumstances, I find that, if an unlawful act of discrimination was carried out by an employee of Ikea, Ikea has a defence pursuant to section 133(2) of the Anti-Discrimination Act 1991, in that it took reasonable steps to prevent such a contravention. [121] I should note that this finding is made in the circumstance that I have found against the complainant in respect of almost every allegation which he made or makes against the respondents, save for the allegations against Mr Jones, with which I shall now deal. The significance of the finding about Brett Jones [122] Having made the decision, above, in relation to Ikea‟s liability for the acts of its employees in the present case, it remains to be considered whether the finding I have made about what Mr Jones said to Mr Abdelkadiri, has any ultimate significance in the complainant‟s anti-discrimination case. [123] Put shortly, I conclude that it does not. [124] I do not think that anything said by Mr Jones, in describing Mr Abdelkadiri as a terrorist, can be regarded as having the character of “a public act” in terms of section 124A of the Anti-Discrimination Act 1991. [125] Nor do I think that, in this regard, there is any suggestion that a term was imposed, in a relevant sense, upon the complainant by any of the respondents in the sense of a complaint of indirect discrimination. [126] That leaves the issue of direct discrimination. I accept the written submissions made for the first, second and third respondents7 that: 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.8 [127] From the complainant‟s materials, the relevant attribute appears to be his race or status as a person born in Morocco. On the findings I have made, it is at least arguable that if the complainant was of, say, Irish, Swedish or Australian extraction, Mr Jones might not have called him a terrorist and therefore directly discriminated against him. [128] However, upon consideration, it seems to me that this is too long a bow to draw, despite the absence of evidence from Mr Jones and no cross- examination of him, because the particulars of the statement, and the context in which it or they were made, are not proven. [129] On my findings, Mr Jones made, or probably made, a statement or statements which might objectively be regarded as rude or insensitive (and which I accept would have been regarded by the complainant as hurtful), but which fall short of being able to be characterised at law as direct discrimination. 7 Para 9. 8 Section 7, Anti-Discrimination Act 1991. -- 18 of 19 -- 19 Conclusions [130] Mr Abdelkadiri‟s complaints of unlawful discrimination against him, fail. [131] Overwhelmingly, that is because the factual allegations which he made were not made out, to my satisfaction, on the evidence. The one matter which potentially was of substance, relating to the allegations against Mr Brett Jones, did not, on the facts as I found them, constitute unlawful discrimination. [132] In the result, the complainant‟s application to this Tribunal must be dismissed. [133] In the written concluding submissions made for the first, second and third respondents, those respondents reserved their rights to seek costs should the Tribunal dismiss the complainant‟s complaint. [134] I am conscious of the fact that I have found that Mr Abdelkadiri‟s complaints are founded in genuine beliefs about how wrongly he was treated by the respondents, and how that treatment affected him very adversely. By the same token, I note that I have found that almost every relevant allegation of fact made by Mr Abdelkadiri was not made out on the balance of probabilities, and more than one of those findings was based on my preferring the evidence of respondent witnesses to the evidence of the complainant. [135] Further, it is plain from the file and all of the materials filed that the first respondent expended considerable effort, and inevitably considerable money, in defending the matter, on behalf of itself and the other represented respondents. [136] This Tribunal is empowered in relevant circumstances to make an award of costs against a party bringing proceedings in the anti-discrimination list. My sense is that the power is infrequently used, and that for good reason. [137] I must say that my initial inclination was to consider making a costs order against Mr Abdelkadiri, in all the circumstances of this matter. However, I am conscious of the provisions of sections 100 and 102 of the QCAT Act, and having looked at the relevant subparagraphs of section 102(3), I have concluded that in this case there should be no order as to costs. Orders [138] The orders of the Tribunal are: 1. The complaint is dismissed. 2. No orders as to costs. -- 19 of 19 --