Chut v Brisbane City Council & Turner [2014] QCAT 38

CITATION: Chut v Brisbane City Council & Turner [2014] QCAT 38 PARTIES: Ayik (Daniel) Chut (Applicant) v Brisbane City Council (First Respondent) Darren Turner (Second Respondent) APPLICATION NUMBER: ADL119-11 MATTER TYPE: Anti-discrimination matters HEARING DATE: 22 and 23 July 2013 HEARD AT: Brisbane DECISION OF: Member F FitzPatrick DELIVERED ON: 15 January 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Mr Chut’s complaint is dismissed. 2. Each party is to bear its own costs. CATCHWORDS: Where complainant alleges he was discriminated against at work because of his Sudanese race – direct and indirect discrimination – whether the complainant set out reasonably sufficient detail in his complaint to the Commission to “indicate an alleged contravention” as required by s 136(b) of the QADA – whether Tribunal has jurisdiction to hear and determine each ground of complaint – whether his race was “a substantial reason” for any unfavourable treatment – whether employer vicariously liable – what constitutes the taking of “reasonable steps” to prevent an employee contravening the Act Anti-Discrimination Act 1991 (Qld), ss 7, 10, 11, 15, 133, 177, 178, 204, 205 Hopper v Mt Isa Mines (1999) 2 Qd R 496 Simpson v Welsh and Queensland Police -- 1 of 15 -- 2 Service [2002] QADT 17 Jones v Queensland Health [2010] QCAT 700 Daw v QR Limited and Anor [2011] QCAT 319 Coleman v Ngoonbi Co-operative Society Ltd and Ors [2013] QCAT 207 Joldic v Adams and Luca as proprietor of Sunnybank Solicitors [2005] QADT 36 Chesson v Buxton 1990 EOC 92-295 Gilroy v Angelov [2000] FCA 1775 APPEARANCES and REPRESENTATION (if any): APPLICANT: Ayik (Daniel) Chut represented himself. RESPONDENT: Brisbane City Council and Darren Turner represented by Mr Stuart Sapsford of counsel, instructed by HBM Lawyers. REASONS FOR DECISION [1] The Brisbane City Council‟s “Working On” program provides traineeship opportunities for young adults of up to 35 years of age who have had difficulties with substance abuse. On 22 June 2010 the BCC wrote to Mr Chut offering him a temporary 12 month “Turf Management” traineeship position under this program, based at the St Lucia Golf Course. Mr Chut accepted the offer. [2] On 7 July 2011 the BCC wrote to Mr Chut advising him that the completion date for his traineeship was 6 July 2011, and that his employment with the BCC ceased as of close of business on that day. He had successfully completed the Amenity Horticulture Training Package Traineeship and received a certificate of completion. [3] On 22 June 2011, shortly before he completed his traineeship, Mr Chut lodged a complaint with the Queensland Anti-Discrimination Commission. An attachment alleges “racist and bullying behaviour” towards him by Mr Darren Turner, who was the Superintendent of the St Lucia Golf Course and Mr Chut‟s supervisor until April 2011. Due to the deteriorating working relationship between Mr Chut and Mr Turner, Mr Ryan Watterson, the Deputy Superintendent of St Lucia golf course, assumed that supervisory responsibility from 20 or 21 April 2011 to the end of Mr Chut‟s traineeship in July. [4] On 19 July 2011 the Commission accepted Mr Chut‟s complaint, to the extent that it related to a claim of discrimination on the attribute of race in the area of work under the Anti-Discrimination Act 1991 (Qld), (the QADA). [5] On 21 September 2011 Mr Chut requested that the complaint be referred to the Tribunal. On 10 November 2011 the Commission referred the -- 2 of 15 -- 3 complaint, listing the grounds of the complaint as race discrimination in the area of work. The hearing [6] Although Mr Chut had the benefit of legal representation early in the Tribunal process, by the time of the hearing legal aid had been refused and Mr Chut was representing himself, supported by members of the Sudanese community. [7] Mr Chut had requested a Dinka interpreter for the hearing and an interpreter was on standby. However the referral from the Commission indicated that Mr Chut did not require an interpreter. It soon became apparent that, as at the date of the hearing, Mr Chut, who was 36, had been living in Australia for approximately 17 years and had been educated in Australia. He completed year 12 in 2000. His command of the English language and his levels of English literacy were clearly adequate to enable him to understand and participate in proceedings conducted in English. The Tribunal informed Mr Chut that the interpreter could be re- engaged at short notice if required, but he did not express or demonstrate any further need for those interpreter services. He participated actively in the proceedings, asked questions and cross examined the respondents‟ witnesses. [8] Mr Chut was well presented and punctual in his attendance at the Tribunal. He was articulate and with support, was quick to understand what was required of him in presenting his case. [9] At the commencement of the hearing the Tribunal outlined what Mr Chut had to establish in order to succeed in his claim of direct and indirect discrimination, and vicarious liability. a) Mr Chut was informed that the QADA requires him, as the complainant, to prove direct discrimination, on the balance of probabilities1. In other words, if Mr Chut could provide evidence to the Tribunal that it was more likely than not that Mr Turner contravened the QADA, this part of the complaint would be substantiated and appropriate orders made. If he could not provide this evidence to the Tribunal, his complaint would be dismissed. b) In relation to indirect discrimination, the Tribunal must be satisfied that Mr Turner or the BCC imposed a condition, requirement or practice on Mr Chut‟s work with which people of the Sudanese race do not, or are not able to comply; and that a higher proportion of people who are not Sudanese comply or are able to comply. If the Tribunal is satisfied that such a term was imposed, the burden of proof shifts to Mr Turner or the BCC to establish the term in question is reasonable.2 If the Tribunal finds that the term is reasonable, this part of the complaint would be dismissed. If it finds the term is not 1 QADA s 204. 2 QADA s 205. -- 3 of 15 -- 4 reasonable, this part of the complaint would be substantiated and appropriate Orders made. c) The BCC would be jointly and severally liable for any contravention of the QADA by Mr Turner, unless it could establish, on the balance of probabilities, that it took reasonable steps to prevent Mr Turner contravening the QADA3. [10] In light of the Tribunal‟s obligations to support litigants and to accommodate different cultural perspectives4, the Tribunal also encouraged Mr Chut to ask questions about the law and Tribunal procedure as the hearing progressed. It monitored Mr Chut‟s understanding of the proceedings as they unfolded. Counsel for the BCC facilitated the Tribunal‟s efforts in this regard, for example by using plain language and providing copies of documents. Jurisdiction [11] On 17 April 2012, Mr Chut‟s solicitors filed a statement of his contentions with the Tribunal. In addition to the complaint of racial discrimination at work, which is clearly within the Tribunal‟s jurisdiction, these contentions allege that Mr Turner also contravened s 118 of the QADA, for example, by calling Mr Chut a “faggot”. [12] The Tribunal does not have jurisdiction to determine Mr Chut‟s complaint of sexual harassment. In 1999 the Supreme Court of Queensland observed in Hopper v Mt Isa Mines5 that the former Anti - Discrimination Tribunal‟s jurisdiction: …which is statutory rather than inherent, is founded on referral of a complaint complying with the terms of s.136….This also founds consistency in what is investigated, is the subject of conciliation and is referred to the Tribunal and provides for procedural fairness to all parties. [13] His Honour went on to say that … in my view, the effect of s.136 …, s.166 …and s.175 …is that the Tribunal‟s jurisdiction is conditioned on there being a complaint in terms of s.136, subject of course to the Tribunal‟s power to allow a complainant to amend a complaint; s.178. See also s.240 which refers to the Tribunal‟s functions in terms of “to hear and determine complaints”...“Findings of contraventions (by the Tribunal) not satisfying that requirement …cannot stand because there is no jurisdiction to make them.” [14] His Honour focused on the requirements of s 136(b) of the QADA in particular, namely the requirement for complainants to set out reasonably sufficient detail in their complaint to the Commission to “indicate an alleged contravention”.6 3 QADA s 133. 4 under the Queensland Civil and Administrative Tribunal Act 2009. 5 (1999) 2 Qd R 496 (Hopper). 6 The decision in Hopper has been followed both by the former Queensland Anti- Discrimination Tribunal and this Tribunal. “The jurisdiction of the Tribunal depends upon the existence of a valid complaint”. President Sofranoff - Simpson v Welsh and Queensland Police Service [2002] QADT 17 at [13]. Hopper was interpreted even more -- 4 of 15 -- 5 [15] Mr Chut selected most of the available grounds of complaint in the Commission‟s complaint form, including sexual harassment. However it seems that he was merely answering what he took to be questions about his status under each attribute, as distinct from claiming that he had been discriminated against on each the basis of each of those attributes. In any event, he did not include any details to “indicate an alleged contravention” of the sexual harassment provisions in s 118, as required by s 136(b) of the QADA.7 Mr Chut did not ask the Tribunal to amend his complaint to include sexual harassment. 8 [16] Following the reasoning in Hopper, the Tribunal does not have jurisdiction to determine this aspect of Mr Chut‟s complaint. [17] However, Mr Turner‟s failure to comply with the QADA by regularly referring to another employee‟s sexuality and lawful sexual activity is: properly admissible as providing a context in which the specific incidents complained of took their place… (or) in respect of the defence pursuant to s.133(2). (the statutory defence of reasonable steps open to the employers in response to a claim of vicarious liability). … findings of facts properly made on evidence admissible on the basis of general relevance or under s.133(2)… stand although they constitute contraventions not the subject of complaint.9 Mr Turner‟s management style [18] Mr Turner was open about his “friendly banter” with the green keeping staff, including teasing one employee about his sexual preferences. Mr Turner regarded this banter as harmless because he believed he had a good relationship with the employee in question and because the comments were “private”. [19] While there was no suggestion that these exchanges between Mr Turner and another employee about sexual preference were malicious, they were clearly discriminatory and the QADA makes it clear that Mr Turner‟s motive for discriminating is irrelevant. The QADA makes it unlawful for broadly in Jones v Queensland Health [2010] QCAT 700, where the learned Tribunal President cited it for authority for the proposition that “only an accepted complaint can be referred to this Tribunal”. This interpretation appears to extend the scope of the decision in Hopper. In any event, the sexual harassment complaint was not accepted by the Commission or referred to the Tribunal. 7 Although the contentions allege “sexual harassment,” it seems that this part of the complaint is in fact alleging discrimination on the basis of Mr Chut‟s sexuality or lawful sexual activity, or his association with, or relation to, a person identified on the basis of his sexuality or lawful sexual activity. QADA s 7. 8 Hopper has been relied upon as authority for refusing applications by complainants to amend their complaints by adding extra grounds after referral to the Tribunal. Daw v QR Limited and Anor [2011] QCAT 319, Coleman v Ngoonbi Co-operative Society Ltd and Ors [2013] QCAT 207. This is despite amendments in 2009 to the Tribunal‟s power to amend complaints (ss 177 and 178 of the QADA), and His Honour‟s observations in Hopper that the requirement for a valid complaint in terms of s 136 is “..subject of course to the Tribunal‟s power to allow a complainant to amend a complaint; s.178.” 9 Hopper op cit. -- 5 of 15 -- 6 managers to single out employees for comment on attributes such as their sexual preference or race. [20] I find that Mr Turner did engage in inappropriate banter with this employee, revealing a management style which made Mr Chut‟s complaints of racially referenced comments more plausible. Nevertheless, Mr Chut still has to satisfy the Tribunal that it was “more likely than not” that Mr Turner made racially discriminatory comments. [21] On the other side of the ledger, there are indications that Mr Turner was not inclined to treat Mr Chut less favourably than other employees because of his race. In fact Mr Turner treated him more favourably on occasion by lending him a uniform, giving him a lift from and to Toowong station, and assisting him to find housing when he was homeless. Mr Chut acknowledges this assistance, although he says it was overstated. While he agreed Mr Turner helped him by searching the internet, making calls and contacting relevant council officers to find him housing, he disputed Mr Turner‟s estimate of 20 - 30 hours. [22] As the traineeship progressed however, Mr Turner found Mr Chut increasingly difficult to manage, and the working relationship deteriorated progressively. I find that Mr Turner started to lose his temper with Mr Chut. Mr Chut said in evidence that “Darren (Mr Turner) will pick on you if he is having a bad day”. This evidence was not disputed, but it suggests that Mr Turner, if he did pick on staff when he was “having a bad day”, also picked on others as well as Mr Chut. [23] Mr Turner and Mr Chut also got off on the wrong foot over work uniforms and Mr Chut‟s romantic interest in Mr Turner‟s stepdaughter. Mr Turner said that Mr Chut was persistent in enquiring about his daughter, asked if he could marry her, and “hounded him for weeks” which made him uncomfortable, but not because of Mr Chut‟s race. Mr Chut‟s perspective was that talking to Mr Turner about his daughter was a respectful approach, as in Sudan the custom is to approach the family to arrange this sort of social contact. This incident is not part of Mr Chut‟s complaint and it does not constitute unfavourable treatment in relation to Mr Chut‟s work, but it illustrates the role different cultural perspectives played in the breakdown of the working relationship between Mr Turner and Mr Chut. Mr Chut‟s performance. [24] Mr Chut‟s traineeship was not without incident. He was homeless and living in his car for part of it. He did not always have enough credit on his phone to ring work to say he would not be in or would be late. He was clearly facing substantial challenges and showed determination in sticking with the traineeship, for what Mr Turner remembers as about 6 or 8 weeks of homelessness. Nevertheless, these challenges do not explain Mr Chut‟s ongoing failure to observe workplace rules such as notifying Mr Turner that he would be absent, or his extensive absenteeism over the 12 month traineeship. -- 6 of 15 -- 7 [25] Mr Turner says that Mr Chut‟s performance was good for first 8 weeks, then he gradually started to take more time off, until his absenteeism required active management. Mr Turner found this stressful and frustrating. He says that the BCC Human Resources area asked him to explain why absentee levels were so high. He was sent on performance management and communication courses, and he was „told‟ to take notes and record attendance times for some employees, including Mr Chut and another trainee. He says that his notes (contributed to by Mr Watterson from April 2011) show that Mr Chut had been “..absent for 120 days of his twelve month traineeship, which included 38 unauthorised leave days and 48 sick days.” He also says that Mr Chut was consistently late to his TAFE course. [26] Mr Watterson, then the Deputy Superintendent, had a good working relationship with Mr Chut and showed some interest in him and in Sudanese culture. Mr Chut said that he had “no problem with Ryan”. However when Mr Watterson assumed supervisory responsibility for Mr Chut in late April 2011 he found that giving Mr Chut instructions was “an extremely difficult job”, as a) “…he was lazy and instead of working would often simply roll a cigarette and sit down and talk on his phone”. b) “he was unreliable and would frequently depart work half way through a work day alleging he was sick or for some other reason”. c) “…his work ethic became worse in the second half of his traineeship.” d) it was difficult to partner Mr Chut with other workers as they were “…all afraid of him due to his expressed history of violence and his observable short temper and violent reactions”. [27] Mr Chut disputed that he was lazy, unreliable, and violent, although he did acknowledge his homelessness as a disruptive factor affecting his work life. He said “I have good references and I work hard”. In relation to the allegations of violence, Mr Chut volunteered in his undated statement filed in the Tribunal on 21 March 2013 that he had knocked someone out because they called him a “faggot”. He wrote … At one stage outside of work someone call me a faggot and I knock him out he went to hospital and when I went back to work I told Darren, Jarrod and can‟t remember the rest, I thought he (Mr Turner) might get my point not to call me faggot. [28] However, during cross examination, Mr Chut changed his story and said that he had seen “someone else knock out someone because they called him a faggot”. This is a concerning admission that he mislead the Tribunal on this point, which began to raise the Tribunal‟s concerns about Mr Chut‟s credibility. [29] In any event, Mr Chut did not seriously contest Mr Turner‟s and Mr Watterson‟s record of his absences. Mr Chut‟s absenteeism was clearly unacceptably high and the BCC and Mr Turner had grounds for implementing appropriate performance management strategies. However, -- 7 of 15 -- 8 this lead to a further deterioration in the working relationship between Mr Turner and Mr Chut. [30] On 3 December 2010 the acting Manager, City Venues, in the BCC wrote to Mr Chut in the form of a “written direction” advising him that he had been referred to BCC‟s Rehabilitation Unit because of his recurring absences. The letter advised Mr Chut that despite Mr Turner‟s repeated requests, he had used inappropriate methods such as text messages or facebook to inform Mr Turner of his absences, instead of calling in person. On other occasions he did not make any attempt to notify Mr Turner. It also mentioned an “item of fleet” being damaged. It set out the requirement for 30 minutes prior notice of absences, medical certificates and the need to comply with Mr Turner‟s directions, in default of which he risked disciplinary action or a cancellation of his training contract. [31] On 17 February 2011 Mr Padget, in his capacity as the acting Manager, City Venues, handed Mr Chut a “Lawful direction” at TAFE. This was over half way into his traineeship, and yet the identified performance issues are limited to a failure to notify his team leader about his absence from TAFE on 14 and 15 February and being one and a half hours late on 16 February and half an hour late on 17 February. Mr Chut explains his late arrivals at least as due to trouble with public transport. He says he made up the missed time by staying back after TAFE. If there were continuing absenteeism issues, it is surprising that they were not mentioned in this direction. [32] On 20 or 21 April Mr Watterson assumed supervisory responsibility for Mr Chut. [33] On 6 May 2011 Mr Chut was issued with what the BCC styled in its chronology handed up to the Tribunal as a “Please explain letter regarding extended periods of absence without explanation.” This letter reiterates the grounds of the two former directions and asserts that since the direction of 17 February Mr Chut had failed to comply with the direction on 16 occasions. It is concerning that Mr Chut was asked to “submit his response … via Darren Turner”, given that, in April 2011, Mr Chut had complained to Mr Padget about Mr Turner. The BCC should have appreciated that this avenue did not lend an air of objectivity or independence to the enquiry. The complaint [34] Mr Chut complains of both direct and indirect discrimination by Mr Turner. He acknowledged in an undated letter to the Tribunal in 2013, prior to a directions hearing in July 2013, that he faced challenges in substantiating his complaint because “witnesses to what I have alleged are still employed by the BCC and are unwilling to come forward to give written or in person evidence.” Yet when informed by the Tribunal that witnesses could be required to give evidence, Mr Chut was unclear about who those witnesses were and what sort of evidence they would have given. -- 8 of 15 -- 9 He goes on to acknowledge his lack of corroborating evidence for his claims. “I have little real evidence to support my claim.” [35] The QADA s 15 provides makes it unlawful for anyone to discriminate — (a) in any variation of the terms of work; or (b) in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or (c) in dismissing a worker; or (d) by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or (e) in developing the scope or range of such a program; or (f) by treating a worker unfavourably in any way in connection with work. [36] “Work” is defined in the dictionary to the QADA to include both temporary and traineeship positions, such as the position occupied by Mr Chut. [37] Mr Chut says that he was subjected to both direct and indirect discrimination at work by Mr Turner because of his race. Direct Discrimination Section 10 requires a comparison between the treatment by the discriminator of the person with the attribute and the likely treatment by the discriminator of a person without the attribute. If the complainant has been treated differently because of her/his race, was that treatment less favourable? If the treatment was less favourable, would the alleged discriminator have treated another person without that attribute in the same way given the circumstances? The motive, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected…10 [38] If Mr Turner treated Mr Chut unfavourably, Mr Chut must also establish that his race was “a substantial reason” for that treatment. 11 [39] Race is defined in the QADA as including: (a) colour; and (b) descent or ancestry; and (c) ethnicity or ethnic origin; and (d) nationality or national origin.12 [40] Mr Chut says that Mr Turner treated him less favourably than other employees who were not of the Sudanese race would have been treated, in each of the following circumstances. 10 Joldic v Adams and Luca as proprietor of Sunnybank Solicitors [2005] QADT 36 at [58]. 11 Op cit [60]. 12 Dictionary to the QADA. -- 9 of 15 -- 10 a) Not providing him with a “Toro” jacket and delay in supplying a council work uniform. [41] Mr Chut said in evidence that he wanted to fit in at St Lucia Golf course. He was understandably concerned when the rest of the staff received a complimentary jacket from Toro, a supplier, and he missed out. He was equally disappointed when it took 3 months for his council uniform to arrive, when he had been told that it would take 6 weeks. It must be acknowledged that this was an unfortunate start to the traineeship, because Mr Chut felt excluded from the start. [42] Mr Turner‟s evidence was that a supplier, Toro, had surplus State of Origin promotional jackets. They were allocated to St Lucia green keeping staff in May 2010, before Mr Chut started his traineeship. He said he “rang the rep” who tried to locate a jacket for Mr Chut, but couldn‟t find one. In relation to the council uniform, he said that Mr Chut attended his uniform fitting at Yakka at Northgate in first two weeks of his traineeship. These uniforms are made to order and usually take at least 3 months to deliver. [43] I find that Mr Turner did not treat Mr Chut less favourably than other employees by failing to provide him with the jacket or by delaying the uniform. I accept that the jackets were allocated prior to Mr Chut‟s arrival. I accept Mr Turner‟s evidence that Mr Chut‟s uniform fitting had been arranged promptly and that delivery dates were surprisingly long. Both incidents were outside his control. I have also taken into consideration that Mr Turner treated Mr Chut more favourably than other employees on this front by loaning him his own pants, shirt and boots when Mr Chut raised the lack of a uniform with “Bernadette in the office”. This aspect of the complaint is dismissed. b) Saying that he came to Australia as a slave and calling him names because of his race and colour. Once the finding is made that the racial epithets were used, the inference is inescapable that the way in which (the complainant) was treated was less favourable. 13 [44] Mr Chut gave evidence that he was in the lunch room with Mr Watterson, then the Deputy Superintendent at St Lucia, discussing their respective countries of birth. Mr Watterson is from Wales, which he located for Mr Chut on a world map. Mr Chut pointed out Sudan. Both Mr Watterson and Mr Chut agree that Mr Turner was standing looking on, eating cereal, which he had for smoko every morning. Mr Chut claims Mr Turner entered into the conversation, saying that Mr Chut had come to Australia as a “slave”. Mr Turner disputes this. [45] Mr Watterson‟s evidence is significant, given the conflict in evidence between Mr Chut and Mr Turner. Mr Watterson‟s version of events differs from Mr Chut‟s in two important respects. Firstly Mr Watterson says the conversation began when Mr Chut commented on Mr Watterson‟s tattoo of 13 Chesson v Buxton 1990 EOC 92-295. -- 10 of 15 -- 11 the Welsh flag. Mr Turner confirmed that the tattoo was discussed. Yet Mr Chut has no memory of the tattoo. More importantly, Mr Watterson was definite in his evidence that Mr Turner did not enter into the conversation between him and Mr Chut, let alone say anything about a slave. Instead, he said that Mr Chut referred to himself as enslaved “..on a regular if not a daily basis.” He said that Mr Chut would explain that “he‟d had a rough childhood, he‟d been a soldier, he was basically enslaved, he escaped his country and came to Australia as a refugee.” [46] I find that, at least at this stage of the traineeship, Mr Watterson had a good working relationship with Mr Chut and was generally well disposed to him. Even though he was Mr Turner‟s deputy at the time, he presented as an assertive and capable person who was not in Mr Turner‟s “pocket”. By the time he gave his evidence he had been promoted to Superintendent and Mr Turner was no longer his supervisor. Mr Watterson was actively involved in and paying attention to this interaction with Mr Chut, and his evidence was clear and consistent. He presented as a reliable witness. I accept Mr Watterson‟s evidence that Mr Chut had himself introduced the word “slave” into workplace conversation on earlier occasions. I accept Mr Turner‟s evidence, corroborated by Mr Watterson, that he did not refer to Mr Chut as a slave. Mr Chut has not established that it was more likely than not that Mr Turner said that he had come to Australia as a “slave” in front of Mr Watterson. This aspect of the complaint is dismissed. [47] This is a substantial setback to Mr Chut‟s case, as his evidence has, again, been directly contradicted, this time in relation to a significant interaction which constituted one of the more serious allegations against Mr Turner. It also calls the reliability of his memory into question, as he could not recall seeing Mr Watterson‟s tattoo. [48] Mr Chut says that Mr Turner occasionally referred to him with reference to his colour. For example says he overheard Mr Turner say “I wonder what the (sic) midnight got up to on the weekend”. Mr Turner‟s evidence was that he didn‟t refer to Mr Chut as “midnight” and had not heard the term used before with reference to someone‟s race. Mr Chut did not call any witnesses to substantiate his claim. While it is not determinative, I note that this allegation was not mentioned in the original complaint to the Commission. [49] Again, the conflict between the evidence of Mr Turner and Mr Chut can best be resolved with regard to the evidence of Mr Watterson, which was that he had never heard Mr Turner refer to Mr Chut as “midnight” or anything similar. As Mr Turner saw nothing wrong with his inappropriate comments to other staff, it is unlikely that he would have hidden this sort of “banter” from Mr Watterson. I am not satisfied that it was more likely than not that Mr Turner referred to Mr Chut as “midnight”. [50] At the start of the traineeship Mr Chut took Sudanese food to work, such as Okra. He said that Mr Turner passed comment on his food several times. For example, when he heated it in the microwave Mr Turner told -- 11 of 15 -- 12 him that the food “smells like shit”. Mr Chut said that “you just don‟t say that” in Africa, in other words, it was an insult, (as it is in the Australian culture). He said that he ate alone, outside, after that. Mr Turner denies the allegation, saying that he encouraged Mr Chut to “…join him and the other staff at meal times, however he indicated that he preferred to sit by himself”. [51] Although the evidence suggests that this is something Mr Turner might say, this does not mean that it was more likely than not. The green keeping staff all ate lunch together, and if Mr Turner commented frequently on Mr Chut‟s food, it is reasonable to expect that there would be witnesses to Mr Turner‟s conduct. Yet the only employee who was called as a witness was Mr Watterson, who said that he had never heard Mr Turner commenting on Mr Chut‟s food. I am not satisfied that it was more likely than not that Mr Turner commented on Mr Chut‟s food. Not investigating a complaint about his treatment. [52] Mr Chut did not present any evidence to suggest that, because of his race, the council treated him less favourably than another employee making a complaint would have been treated. He complained to Mr Padget, but Mr Padget was not named as a respondent to his complaint. This aspect of the complaint is dismissed. [53] Nevertheless, I agree that Mr Padget‟s handling of the complaint was deficient in several respects. However these complaint handling issues are more relevant to the issues of when the BCC became aware of Mr Chut‟s concerns, and in the event that a contravention is made out, whether it took “all reasonable steps”14 to prevent Mr Turner contravening the QADA. c) Cancelling the Applicant‟s traineeship. [54] The BCC‟s written offer to Mr Chut makes it clear that this was a temporary position. However, even after the 30 day probation period, the appointment was subject to Mr Chut‟s satisfactory performance in the role, and could even be “for a lesser period” as determined by Mr Chut‟s Divisional Manager. Attached to the offer were a summary of the terms and conditions of employment including the BCC Code of Conduct. The offer says that Mr Chut was to be remunerated for a combination of employment and training responsibilities. [55] Mr Chut believes that Mr Turner was responsible for the temporary termination of his traineeship in April, 2011. Mr Turner said he did not make the decision. In any event, it was clear that there were ample grounds for this cancellation on performance grounds. [56] When the BCC discovered that Mr Chut had injured his hand and had been granted time off on worker‟s compensation the traineeship, 14 QADA s 133(2). -- 12 of 15 -- 13 Mr Chut‟s employment with the BCC was reinstated. I am satisfied that regardless of whether or not Mr Turner had input into the decision, it was based on Mr Chut‟s performance, and not on his race. d) Not transferring him to another workplace [57] Mr Chut says that he asked to be transferred to Victoria Park Golf course. Mr Turner says he did not receive any application, „…either formal or informal” from Mr Chut and that he did not have the “ability” to facilitate that transfer. He says that in any event, Victoria Park was “fully utilised” and it is not possible to simply transfer a person at their request. However he did acknowledge that another trainee was transferred from Victoria Park to St Lucia as a “supernumerary”, due to fighting with other staff at Victoria Park. Mr Chut said in evidence that he told Mr Paget verbally when he complained in April 2011 that he wanted a transfer. However Mr Chut did not provide any evidence to substantiate his claim that his request for a transfer had been refused because of his race. This aspect of the complaint is dismissed. e) Treating him differently to other employees, for example in the level of training provided, in the allocation of work, in relation to performance management or in the offer of ongoing employment. [58] The evidence of Mr Turner, Mr Watterson and Mr Padget shows that if Mr Chut was treated less favourably than other St Lucia employees in relation to training, the allocation of work, and ongoing employment, his performance was a substantial reason for this different treatment, and not his race. [59] After Mr Padget interviewed Mr Chut about his complaint, he made notes which record that Mr Chut did not have any complaint about the training he had received from Mr Turner and the staff at St Lucia. The notes record that Mr Chut agreed he had been trained to do everything on the golf course except mowing tees and greens. [60] Mr Chut says he was asked to perform tasks which would usually be performed by two employees, alone. Mr Chut‟s main complaint is that after the floods, he was alone lifting a heavy hose while others were partnered up. Both Mr Turner and Mr Watterson gave evidence that the most common task on a golf course, which is mowing, is always done alone. Mr Watterson‟s evidence was that further, other employees were reluctant to work with Mr Chut because of previous altercations with him or because of his reputation for a quick temper. [61] Mr Pratten, a fellow apprentice who was not Sudanese, was subject to a similar performance regime to Mr Chut, in circumstances which were not materially different. Mr Chut says that Mr Turner did not smell other employees‟ breath to see if they had been drinking, even though other staff came to work with a hangover. However I am satisfied that Mr Turner treated Mr Chut this way because of his absenteeism and not because of his race. -- 13 of 15 -- 14 [62] The BCC‟s offer of employment stated that although it would evaluate Mr Chut‟s performance at the conclusion of the traineeship with a view to offering ongoing employment, there was no guarantee of employment on the completion of the traineeship. There is no evidence that Mr Chut was treated less favourably than other apprentices in being offered ongoing employment after his traineeship, because of his race. Mr Turner says that there were no vacancies, and that in any event, Mr Chut‟s performance did during the traineeship did not warrant a formal appointment. [63] I find that Mr Chut was not treated less favourably than other employees on these grounds because of his race. This aspect of the Complaint is dismissed. Indirect discrimination. [64] In order to succeed in a complaint of Indirect discrimination, Mr Chut had to establish that Mr Turner or the BCC imposed a condition, requirement or practice on his work with which people of the Sudanese race do not, or are not able to comply; and that a higher proportion of people who are not Sudanese comply or are able to comply.15 [65] If Mr Chut could show that a term was imposed in breach of s 11 of the QADA, the onus of proof shifts to the person imposing the term (Mr Turner or the BCC) to prove, on the balance of probabilities, that the term complained of is reasonable.16 [66] Mr Chut did not identify any condition, requirement or practice with which Sudanese employees in particular, were not able to comply. He did not identify any instances of indirect discrimination. Vicarious liability [67] As the Tribunal has found that Mr Turner has not contravened the QADA, it is not necessary to consider whether the BCC is vicariously liable for Mr Turner‟s actions. However had the findings been different, it was by no means clear from the evidence that the BCC had taken “reasonable steps” to prevent Mr Turner from contravening the QADA. There was scant evidence led about Mr Turner‟s preparedness to manage employees from different cultural backgrounds, and what steps had been taken to support and educate him for this challenging role. [68] The case law on this point makes it clear, that, as a significant employer with significant resources, the bar of what constitutes “reasonable steps” will be set at a higher level for the BCC than it would be for an employer of lesser means and capacity.17 15 QADA s 11. 16 QADA s 205. 17 „.. the reasonable steps defence does not establish a blanket standard required across all employers, but is variable; being moulded by such factors as the size of the -- 14 of 15 -- 15 [69] In response to a question from the Tribunal, Mr Padget indicated that managers like Mr Turner received induction and team leader training, and training on workplace health and safety, the BCC Code of conduct and its core values. He mentioned an annual course for managers - including performance management, core values, dealing with difficult situations and employees and that this did “touch on racial and sexual discrimination”. After the course there is a small test to be done online. He said that he suspected that there was only “..minimal stuff” in the induction programme on cross cultural awareness and dealing with people from different racial backgrounds. [70] The evidence also raised concerns about the robustness of Mr Padget‟s investigation after Mr Chut complained in April 2011. He did not report back to Mr Chut about the progress of the complaint, or send him a copy of his notes as a record of the complaint. His record of interview with Mr Turner does not suggest that he raised the issue of race or cultural differences with Mr Turner, although those issues were clearly raised by Mr Chut in his complaint. No enquiry appears to have been made into the truth of those allegations, either by Mr Padget or the BCC Human Resources Department. It should not have been necessary for Mr Chut to make a written complaint in order for the BCC to take further action. [71] The “Working On” programme is a remedial initiative to support young people with substance abuse issues to return to employment. Nevertheless, the QADA has equal application to worthwhile initiatives with a beneficial purpose such as this one. The Council must apply the same high standards to these initiatives as it does to its core business. The programme imposes unique demands on managers like Mr Turner, who are called upon to manage employees facing their own challenges. BCC must ensure that when it calls upon its managers to participate in the programme, it equips them with the skills and support to make it a positive experience for both parties. [72] Mr Chut was not represented at the hearing. Although he was not successful in his claim, I have had regard to the fact that he is not a man of means, and lacks the capacity to meet any award for costs. I adopt the default provision in the Tribunal in relation to costs, namely that each party should bear its own costs. [73] I dismiss Mr Chut‟s complaint and order that each party bear its own costs. employer . See, eg, Cooke v Plauen Holdings [2001] FMCA 91, [37]: 'Care needs to be taken when considering the meaning of the expression "taking reasonable steps …". The SDA does not distinguish between large and small employers, in terms of the availability of a defence under s 106 (2): Gilroy v Angelov [2000] FCA 1775, [100]. As was apparent in that case, however, it would be unrealistic to expect all employers, regardless of size, to adhere to a common standard of preventative measures. This defence has been interpreted in Australia as requiring the employer to take some steps, the precise nature of which will be different according to the circumstances of the employer. Thus, large corporations will be expected to do more than small businesses in order to be held to have acted reasonably..” see article “Open all hours: the reach of vicarious liability in 'off-duty' sexual harassment complaints” Brook Hely 2008 -- 15 of 15 --