Relationship status case studies

Summary: This was a complaint of discrimination and victimisation made by a woman who had been employed by the Department of Justice and Attorney-General as a Youth Conferencing Convenor in Maroochydore. During her employment the woman formed a relationship with a colleague which led to them marrying. The woman claimed that after her marriage, the relationship with her supervisor deteriorated.

This summary is confined to aspects of the decision that are relevant to the meaning of the attribute of relationship status.

Background

After an initial issue around November 2011 that the woman addressed through a detailed letter of complaint to her supervisor, she claimed that the supervisor continued to treat her less favourably over the course of the next two years because of her relationship with the colleague who she married.

In March 2014 the woman expressed an interest in acting in the supervisor’s role during a planned absence of approximately 11 days. Her application was unsuccessful, and this triggered a significant emotional and professional decline such that she ceased to work in April 2014 and did not return.

After a lengthy absence from work, an Independent Medical Examination (IME) was ultimately conducted in April 2016 and the doctor provided a qualified opinion that concluded that subject to a graduated return to work program, the woman would be able to return to work in a different office or a different department. She was directed to return to work but did not do so, and a show cause process ensued that led to her dismissal.

The woman claimed that the show cause process and her termination were acts of victimisation because of complaints that her husband raised in the show cause response letters, and that the termination of her employment was discrimination on the basis of her mental health and her relationship status.

Meaning of relationship status

The tribunal considered that authorities in Queensland have been consistent in adopting a narrow meaning to the attribute of relationship status, despite there being conflicting authorities in other jurisdictions.

The tribunal referred to a decision of the Supreme Court in Re Mount Isa Mines Ltd [1996] QSC 11, where the Court said that who a person is married to is an incident of a person’s marital status and has no bearing on the attribute of marital status as defined in the Anti-Discrimination Act. The attribute must be given its literal interpretation.

The reasoning of the Court was followed by the Anti-Discrimination Tribunal in Sherman & Anor v Grady & Anor [2008] QADT 7 at [76]-77]. There the tribunal considered that the attribute of relationship status (relevantly to that complaint, being married) meant because of the complainant’s married state and not her choice of marital partner.

In this case, the tribunal agreed with the approach of the Supreme Court and the former Anti-Discrimination Tribunal to apply the plain language of the definition of relationship status in the Anti-Discrimination Act. The fact of to whom the woman was married was an incident of her status and not a part of it.

The tribunal found that any claim of discrimination on the basis of relationship status because of the relationship with a particular person must fail. Discrimination on the basis of relationship status is limited to the status, not the incidental fact of who a complainant is married to.

Outcome

The tribunal considered all of the claims and concluded there was no contravention of the Anti-Discrimination Act in any of the claims. The complaint was dismissed in its entirety.

Bond v State of Queensland (Department of Justice and Attorney-General) & Ors [2023] QIRC 148 (30 May 2023)

Summary: This was an appeal from an opinion given by the Anti-Discrimination Tribunal (the tribunal) under section 208 of the Anti-Discrimination Act 1991 (the Act). The Anti-Discrimination Commissioner had asked the tribunal for an opinion as to whether a payment of allowance clause in a proposed enterprise agreement was lawful under the Act. The clause provided for the payment of an additional allowance to an employee with one or more dependents, if the employee was the only employee of the company within the family unit.

At issue was whether the proposed payment discriminated on the basis of marital status. Employees with a dependent who were married to or in a de facto relationship with another employee would not qualify for the allowance. The tribunal said it was their marital status to another employee that prevented those people from receiving the allowance. The tribunal considered there was a strong case that the clause was indirect discrimination in that a person who was married or in a de facto relationship with another person who was an employee of the company was not able to comply with the requirement that they are the only employee of the company in the family unit in order to receive the allowance.

The tribunal treated the attribute of marital status as comprehending marital status to another employee and being married or in a de facto relationship with another person who is an employee of the company.

The attribute of marital status in section 7(b) was defined in the Act as follows:

Marital status means whether a person is —
(a) single; or
(b married; or
(c) married but living separately and apart from the person’s spouse; or
(d) divorced; or
(e widowed; or
(f) a de facto spouse.

The Court said that in the present case:

• The definition of marital status focuses on the fact that a particular employee is married or in a de facto relationship.
• The definition does not extend beyond the limit of a person being married or a person being a de facto spouse.
• The definition does not extend to the person being married to or in a de facto relationship with another employee.
• The fact that a particular employee is married to, or the de facto spouse of, another employee is an incident of each employee’s marital status and has no bearing on the attribute of marital status as defined in the Act.

The Court also considered section 8(a) and (b) of the Act, which provides that discrimination on the basis of an attribute includes discrimination on the basis of a characteristic that a person with the attribute generally has, or a characteristic that is often imputed to a person with the attribute.

The respondent argued that the relevant part of the clause in question was predicated on the assumption that in a married couple or de facto relationship there will be one bread winner and one dependent, and that such stereotyping amounts to indirect discrimination within section 8 of the Act.

The Court considered the clause was not predicated on that assumption, and considered that in society at that time such views about one bread winner were no longer held. Reading the relevant part of the clause in the context of the whole clause, it could be seen that family unit was not exhaustively defined and imposes a ceiling on the amount to be paid to a single-family unit.

The Court said the definition of marital status must be given its literal interpretation and the tribunal erred in law in concluding that it included marital status to another employee.

The Court allowed the appeal and declared that the clause did not constitute discrimination on the basis of marital status within the meaning of the Act.

Re Mt Isa Mines Ltd [1996] QSC 11; [1997] 1 Qd R 249

Summary: A woman wanted a quote to get her roof fixed and contacted a roofing company to talk to their representative. He asked her questions about her relationship, and told her that she could not get a quote for roofing without her husband present.

At conference the company apologised and explained that their representative should only ask whether she was a homeowner. They confirmed that it was not company policy to ask a woman to have her husband present and explained that the representative was no longer with the company.

The company agreed to make changes including monitoring inbound and outbound calls and including a new section in the call centre manual cautioning staff against asking personal questions of customers, and apologised to the complainant.

Summary: A woman alleged that she had been requested to provide details on an employment application form about her date of birth, medical history, marital status, number of children and the ages of her children.

The Commission contacted the respondents and advised them that it was unlawful to request information on which unlawful discrimination might be based, and that the Commission had received a complaint about their employment application forms.

The respondents said they were unaware that it was unlawful to request this information and that the application form was one that had been used by the company for many years without being reviewed.

The complaint resolved when the company agreed to remove the personal questions from their employment application forms. Although not requested by the complainant, the company also forwarded her a letter of apology, and sought the Commission's advice about recruitment practices and policy implementation.