LANDMARK CASES -
CELEBRATING 10 YEARS OF CASE LAW IN QUEENSLAND
For a variety of reasons the following Tribunal matters have been
chosen by current Commission staff as being significant, landmark,
educative, instructive or just plain old interesting. The facts of
each of these cases speak for themselves.
Michael Flannery v James O'Sullivan
(1993) EOC 92-501
Member Atkinson (27 April 1993)
Details of this case can be found in this issue
of 'Balancing the Act'.
Kevin Cocks v State of Queensland (1994)
EOC 92-612
President Atkinson (2 September 1994)
Mr Cocks was reliant upon a wheelchair for mobility. His complaint
concerned access provisions to the Brisbane Convention and Exhibition
Centre, which was then under construction. The front entrance to the
Centre was the principal entrance, and the most significant architecturally.
Access to this entry was by a set of 27 steps. This entrance was also
the drop off point for cars. Wheelchair accessible lifts were provided
approximately 43 metres from the main entrance.
It was found that the failure to provide access to the front entrance
of the Centre for persons with a mobility impairment is unlawful discrimination.
The respondent argued that the provision of wheelchair access to the
front entrance would impose unjustifiable hardship on it. This was rejected
by President Atkinson, on the grounds that the installation of the required
lift was only a small portion of a multi-million dollar project.
The nature of the benefit to those with a mobility impairment was weighed
against the detriment to the State of Queensland. For people with a
mobility impairment, it was felt that the provision of access would
enhance their rightful acceptance as members of the community with equal
dignity and worth and thus further the object of the Act.
The construction of access to the front entrance of the Centre was ordered
by the Tribunal.
Kerri Jane Skellern v Colonial Gardens Resort
and Norma Atlee
(1996) EOC 92-792
Member Coates (22 January 1996)
Ms Skellern worked for two and a half years (initially as a permanent
worker then as a casual) as a receptionist and in the Reservations and
Functions area for Colonial Gardens Resort. . She alleged that she was
dismissed because she became pregnant. Ms Skellern said she was told
she could no longer work in reception and that she should not be working
"in her condition". The employer stated that Ms Skellern was
not offered work because of a slackness in trade and downturn in income
and that the pregnancy was irrelevant.
The Tribunal found the alleged conversations where the complainant was
told she should not be working "in her condition" did take
place and that pregnancy was the reason for Ms Skellern not being offered
work. The evidence indicated that other casuals at the motel continued
to receive work and the complainant did not.
Ms Skellern was awarded $13,867 ($10,000 for loss and damages, and the
remainder for lost wages).
Peta Smith v John Paul Buvet and Port Bilbul
Pty Ltd (trading as Simpson Real Estate)
(1996) EOC 92-840
President Atkinson (20 May 1996)
Ms Smith alleged she was sexually harassed by Mr Buvet while she worked
for him during 1994. The evidence stated and the Tribunal found that
Mr Buvet subjected Ms Smith to unsolicited acts of physical intimacy,
made unsolicited requests for sexual favours and made remarks with sexual
connotations.
This case is interesting because consideration of the "reasonable
person" test was made by the Tribunal. In her decision, President
Atkinson said that the Queensland
Anti-Discrimination Act 1991
set out some of the circumstances that are relevant
in determining whether a reasonable person would consider that the other
person would be offended by certain behaviour.
The decision states "I find the touching and the remarks occurred
in circumstances where a reasonable person would have anticipated the
possibility that the other would be offended, humiliated or intimidated
by the conduct…I take into account that the complainant was particularly
inexperienced and naïve having grown up in a rural areas and was
ill-equipped to deal with the respondent’s conduct".
Ms Smith was awarded $20,880 as a result of the sexual harassment.
Narelle Hopper v Mount Isa Mines and others
(1997) EOC 92-879
President Atkinson (29 January 1997)
The complainant was a young woman employed as an apprentice diesel
fitter mechanic at Mt Isa. She alleged that she was subjected to sex
discrimination and sexual harassment throughout her employment. The
kinds of behaviour included derogatory sexual comments about her by
male apprentices and employees, displays of pictures of nude women on
the walls and lockers and being required to share toilets (which were
without doors) with the men.
The forms of sex discrimination included being given menial tasks, restrictions
on work and not being taken seriously as an apprentice.
The Tribunal found that Mt Isa Mines was vicariously liable for the
conduct of its employees, and awarded the complainant a total of $48,724
of which $10,000 was for hurt and humiliation. Mt Isa Mines sought to
prove that it had policies in place, but the Tribunal found that no
effective education program had been put in place to change entrenched
attitudes on the part of employees, or to otherwise prepare the workplace
for female employees.
D v G and O Pty Ltd
(unreported)
Member Keim (12 February 1997)
An Aboriginal woman was found to have been discriminated against because
she was refused rental accommodation. By telephone, the woman arranged
to meet an agent to inspect the flat, which was advertised for rent.
When the man arrived, he told the woman that the flat had already been
rented to another person.
Some time later a male friend of the complainant telephoned the respondent
and was told that the flat was still available for rent. The complainant
drew the conclusion that upon seeing that she was an Aborigine, the
agent decided not to rent the flat to her. Member Keim found that this
was the case, and that the respondent would not have treated another
prospective tenant, who was not an Aborigine in that way.
In awarding damages, the Member noted that the experience would have
been humiliating for the complainant, and contributed to her sense of
lack of self-worth. An amount of $9,000 was awarded as compensation.
The Member took the unusual step of extending until further order, the
non-publication order on the names of the respondents as well as the
complainant. He took into account the "small town nature of the
Mt Isa community" as well as evidence of other contact with Aboriginal
people favourable to the respondents.
Patricia Wharton & Others v. Conrad International
Hotels Corporation
(2001) EOC 93-131
Member Sowden (8 December 2000)
In this case six Aboriginal people were visiting Conrad International
Hotel on the Gold Coast and were discriminated against because of their
race. Ms Wharton and five friends went to Fortunes Nightclub where several
incidents happened. These were that one person was thrown out of the
club for allegedly assaulting another patron; the others in the group
were refused drink service (including soft drink) and finally all of
the group were evicted.
The Tribunal Member considered the evidence and formed the view that
"The totality of the evidence is one way. Someone in the employ
of the respondent did not want the complainants to remain at Fortunes
that evening. I find that the only reasonable explanation for the incidents
was because of the complainants' race…".
Some of the most compelling evidence was the refusal of drink service
to all six patrons. One of the group did not drink alcohol, yet was
refused service because the hotel claimed she was drunk. The evidence
was that the complainants were not intoxicated. Also of interest was
an entry in the log books kept by Conrad security stating "Description
of incident: Call to Fortunes as they wished to put out a group of native
Australians…". The Member found the discrimination to be "serious
and blatant" causing the complainants to be intimidated, embarrassed
and deeply hurt because of the treatment they had to suffer. The complainants
were awarded each of the sum of $10,000 plus interest.
"I" v Bernadette O'Rourke and Corinda
State High School and Minister for Education of Queensland
(2001) EOC 93-132
President Copelin (31 January 2001)
"I" was a student at a Brisbane high school. She has been
diagnosed with spastic quadriplegia and intellectual disability. It
was alleged that she had been discriminated against on the basis of
her impairment in relation to three school events, namely : the year
12 school formal, the graduation dinner and an excursion as part of
a Tourism Studies subject.
In relation to the school formal, "I" had access to the venue
by means of a stair climber, which it was alleged was undignified and
unsafe. Assistance was also provided for her when using the toilets
which were not wheelchair accessible.
The dinner was held on a boat which was accessed by ramps and gangplanks.
Concern was expressed about safety aspects and emergency procedures
for this venue. "I" attended the event and an extra person
was assigned to take personal responsibility for "I"’s safety.
The school considered it unsafe for "I" to attend the Tourism
Studies excursion to Tangalooma Resort and an alternative excursion
to a local shopping centre was organised.
"I" was found to have been directly discriminated against
by excluding her from the tourism excursion, for which she received
an award of $3,000 general damages to reflect the loss of enjoyment
of the normal school environment. In relation to the other two events,
the President accepted the argument that the indirect discrimination
suffered by "I" was "reasonable" in the circumstances
of the case, in that it would have imposed unjustifiable hardship on
the respondents to provide special services or facilities.
Jennifer Morgan v. GK
(2001) EOC 93-154
Member Pagani (22 May 2001)
This case involved access to fertility services by same-sex couples.
Ms Morgan was living in a stable lesbian relationship and sought access
to fertility treatment with Dr GK. It was alleged being refused treatment
because she was in a lesbian relationship discriminated against Ms Morgan.
The Tribunal first heard this matter in 1996 and found that Ms Morgan
was discriminated against. The Court of Appeal overturned the original
decision in 1998. Special leave was sought from the High Court to appeal
this decision, however this was refused. A component of the Court of
Appeal’s decision was to remit the matter back to the Tribunal on the
issue of indirect discrimination. (Editors note: Indirect discrimination
occurs when a rule or requirement is imposed with which a particular
group of people cannot comply and which is not reasonable).
In relation to indirect discrimination it was argued that a term was
imposed on Ms Morgan that she obtain written consent to the treatment
by her male partner. Ms Morgan was unable to comply with this requirement
because she is exclusively lesbian. It was argued that a higher proportion
of non-lesbians are able to comply with the requirement. The question
was whether the term was reasonable. In deciding this, the Tribunal
had to consider whether it was reasonable for Dr GK to follow policy
guidelines set by the Health Department and various Ethic Committees.
These guidelines confined access to fertility treatment to heterosexual
married or defacto couples where the male partner had given written
consent to the treatment. Dr GK received his licence to conduct and
provide fertility services from Queensland Health on the express condition
that he follow and comply with these guidelines.
It was found that Dr GK’s conduct was reasonable as he was required
to follow policy set down by Queensland Health. The Member found no
indirect discrimination happened. The possibility for future challenges
to the guidelines themselves however were left open. Member Pagani said
"It was (and still is) open to lesbian women to challenge the various
bodies who define and implement policies and guidelines restricting
these types of services".
Michael Skinner and David Smith v Lightning Bolt
Co Pty Ltd
(unreported)
Member Wyvill (4 July 2001)
The complainants who were aged 58 and 57 years respectively were dismissed
on the same day from their employment as storemen with the respondent
company. The reason given was "insufficient work owing to
a down turn in trade". Complaints of age discrimination in
employment were made when it was discovered that two men aged
21 and 36 years had been engaged as replacements, some 10 days
after the complainants had been dismissed.
Member Wyvill found that there was no lack of work, and that the
complainants were not dismissed as a step in a cost reduction
exercise. He found that a substantial reason for the dismissals
was the age of the complainants. The Member took into account
the circumstances of each complainant in awarding damages, while
acknowledging that both suffered shock, distress and devastation.
Mr Skinner’s prospects of securing permanent work in the future
were not so promising as Mr Smiths and this is reflected in the
damages awarded. Mr Skinner was awarded a total of $72,582, and
Mr Smith $8,906.
Note : This case is currently on appeal to the Supreme Court of
Qld.
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