Barney v State of Queensland and Anor [2011] QCAT 618

CITATION: Barney v State of Queensland and Anor [2011] QCAT 618 PARTIES: George Fleetwood Barney v State of Queensland (First Respondent) Wendy Petersen (Second Respondent) APPLICATION NUMBER: ADL015-11 MATTER TYPE: Anti-discrimination matters HEARING DATE: 7 November 2011 HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 11 November 2011 DELIVERED AT: Brisbane ORDERS MADE: The application to dismiss is refused. CATCHWORDS: ANTI-DISCRIMINATION – complaint made to the Anti-Discrimination Commission more than one year after the alleged contravention – where allegations that delay has had negative impact of availability of evidence – where consideration of balance of fairness Anti-Discrimination Act 1991, s 175 APPEARANCES and REPRESENTATION (if any): APPLICANT: George Fleetwood Barney RESPONDENT: State of Queensland and Wendy Petersen represented by Mr Hamlyn-Harris of Counsel instructed by the Crown Law Office REASONS FOR DECISION [1] Mr Barney is employed as a residential care officer within the Department of Communities (Disability Services) in Accommodation Support and -- 1 of 4 -- 2 Respite Services. In his employment Mr Barney provides support to adults with disabilities. [2] In July 2007 Mr Barney commenced stress leave and was diagnosed in August 2007 with depression and anxiety. [3] Mr Barney is an indigenous man. In August 2007 Mr Barney was informed of allegedly racist remarks made about him by Wendy Petersen, another residential care officer. A resolution of a grievance based on these racist remarks was not achieved. [4] In August 2008 Mr Barney was informed that Ms Petersen had on some earlier occasion made other racist remarks about him at the workplace and that she had been spoken to by her work manager. The existence of reports detailing the handling of the employer’s response to these comments had not been disclosed during the investigation of a WorkCover claim made by Mr Barney in 2007 based on work stress. That claim was unsuccessful. Mr Barney returned to work in April 2009. [5] Mr Barney lodged a further grievance which was finalised in October 2009 in which the grievance against Ms Petersen was found to be substantiated but other aspects of his grievance about unfavourable treatment by his managers were found to be unsubstantiated. [6] Mr Barney lodged a complaint with the Anti-Discrimination Commission on 29 October 2009. By that date more than one year had passed since the events had occurred which were the subject of his complaint. In general, complaints must be lodged no more than one year after unlawful discriminatory behaviour has occurred.1 The Anti-Discrimination Commissioner exercised discretion to accept the complaint even though it was lodged more than one year after the events complained about. The complaint was subsequently referred to QCAT. [7] Section 175 of the Anti-Discrimination Act 1991 is in the following terms: (1) The tribunal must accept a complaint that is referred to it by the commissioner, unless the complaint was made to the commissioner more than 1 year after the alleged contravention of the Act. (2) If the complaint was made more than 1 year after the alleged contravention, the tribunal may deal with the complaint if the tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so. [8] The legal representatives for the respondents applied on 3 October 2011 for the complaint to be dismissed. A hearing of the dismissal application took place at the stage of proceedings when the evidence of Mr Barney had been filed and the hearing was scheduled to take place in 17 days time. The complaint had been received by QCAT some eight months earlier, on 24 February 2011. [9] The respondents submitted that QCAT was not permitted to deal with a complaint made more than one year after the alleged contravention if the 1 See section 138 of the Anti-Discrimination Act 1991. -- 2 of 4 -- 3 tribunal considers that it would not be reasonable to do so, considering the balance of fairness between the parties. The respondents further submitted that it was not reasonable for QCAT to deal with the complaint having regard to the length of delay in Mr Barney making his complaint, the absence of a reasonable explanation for that delay and the prejudice that the delay had caused to the respondents. [10] Mr Barney took some 26 months to make a complaint in October 2009 to the Anti-Discrimination Commission about the racist remarks made in 2007. Mr Barney had become aware in August 2008 of earlier racist remarks but he took some 14 months before he made a complaint to the Anti-Discrimination Commission about those remarks. These periods of delay in making a complaint are not insignificant given the 12 month time limit for lodging complaints. Does the balance of fairness fall towards the complaints being determined by QCAT? [11] At the hearing, Mr Barney explained his delay in terms that he had followed in 2007 internal workplace procedures by reporting the remarks to his manager and then by lodging a grievance about the remarks once direct attempts at resolution had failed. In 2008 he followed a similar course by lodging a grievance, expecting to achieve satisfaction through the more usual system of recourse open to public servants. That process was not finalised until October 2009. [12] The respondents have submitted that by lodging grievances in 2007 and 2008 Mr Barney had made a conscientious decision not to make a complaint to the Anti-Discrimination Commissioner in a timely manner although he knew at the relevant time that he could make such a complaint. I do not accept that submission in view of the following factors. [13] I inferred from his material that Mr Barney had by late 2007 shifted his focus to his WorkCover claim as he was off work due to what he considered to be work related stress. In fact, he had been diagnosed with a major depressive disorder in July 2007. He was also drinking heavily for an extensive period of time when he was off work. Medical evidence produced by Mr Barney states that his major depressive disorder and alcohol abuse affected his ability to sustain concentration, focus and attention long enough to permit the timely completion of tasks commonly found in work settings.2 [14] It was also recognised in the medical evidence that in early 2008 at least the unresolved grievances and the prospect of lodging an anti- discrimination complaint was acting as an additional perpetuating stressor impacting on Mr Barney’s capacity to return to normal functioning. It is reasonable to find that Mr Barney’s psychological ill health was a significant factor in the choices he made in the period after July 2007. I am of the view that it was more probable than not that Mr Barney was incapable of making a conscientious decision not to lodge an anti- discrimination complaint during 2007 and 2008 due to his major depressive disorder. 2 See report of Dr Quentin Mungomery, consultant psychiatrist, 13 February 2008. -- 3 of 4 -- 4 [15] His functioning had improved by mid 2009 when he was back at work but I find that it was reasonable for Mr Barney by that time to await the outcome of the drawn out grievance procedure. His complaint was lodged soon after the end of the grievance procedure was known to him. [16] The respondents made submissions that they have been prejudiced by the delay in lodgement of the complaint. They submit that this prejudice must be weighed when considering the balance of fairness for the parties in section 175. It is an accepted fact that after four years the memories of witnesses will be adversely impacted by the passage of time. The respondents recounted specific difficulties that they had in arranging for some essential witnesses to be available for the hearing on 24 November 2011. [17] It is clear from the range of material presented to QCAT by both Mr Barney and the respondents that much of the evidence to be relied on will be found in contemporaneous file notes, reports and letters. Some witnesses had been proofed in the WorkCover investigation and their statements from 2007 form part of the documents presented by Mr Barney. The respondents have been able to find file notes made by its witnesses in 2007 which could inform and support their oral testimony. [18] While attendance by some of the witnesses may cause them inconvenience, I was not satisfied that the evidence available to QCAT would be so unreliable as to be unhelpful in determining the complaint made by Mr Barney. [19] It is a very serious step to dismiss a complaint of unlawful discrimination without allowing a hearing of that complaint to take place on its particular merits. Pre-hearing dismissal would deprive Mr Barney of the opportunity to have a just determination of his complaint which alleges a contravention of his human rights. In this case, it is not denied that words were said by Ms Petersen that referred to his racial origin. Those words could form the basis of a discrimination finding depending on the cogency of the evidence produced by Mr Barney. [20] In view of my satisfaction with the reasons for the delay in lodgement of his complaint, I consider that it would be reasonable to proceed to consider his complaint at QCAT and that it would be unfair to dismiss his complaint without providing him with a hearing on the merits of the complaint. [21] Any identified prejudice or inconvenience to the respondents has been outweighed in my view by the impact that dismissing this complaint some 17 days before the scheduled hearing would have on Mr Barney’s human rights. The balance of fairness has come out in his favour. [22] The application to dismiss must be refused. -- 4 of 4 --