Xi v WorkCover Queensland  QCATA 134
Language ability a characteristic of race
The QCAT Appeal Tribunal set aside a decision to dismiss a complaint of race discrimination.
A woman who was of Chinese origin, and who had limited ability to communicate in English, alleged that WorkCover failed to provide an interpreter for her when communicating about her claim.
The Commission intervened in the appeal and made submissions about language as a characteristic of race, and imposing a term in indirect discrimination. Section 8 of the Anti-Discrimination Act 1991 extends the meaning of discrimination on the basis of an attribute to include the characteristics of an attribute.
The decision of the tribunal was set aside on two of the five grounds of appeal, both of which were questions of law. The Appeal Tribunal found:
- The tribunal was unable to properly consider whether the complainant had demonstrated that a term had been imposed on her, because it did not approach the complaint on the basis that having poor English skills was a characteristic of the attribute of race, and that it was possible to indirectly discriminate against a person on the basis of that characteristic.
- For the direct discrimination claim, the tribunal incorrectly identified the comparator as a non-Chinese person with a limited command of English. It was incorrect to include the limited command of English, because this was a characteristic of race that section 8 protects.
In discussion about direct discrimination and section 8, the Appeal Tribunal considered:
- Section 8 should be applied in general terms rather than specifically to the circumstances of the complainant;
- It is a characteristic of race within the meaning of section 8, that a person with the attribute of race may need assistance because they have poor English skills. Not having English as a first language and therefore having poor spoken and written English skills, and therefore possibly needing assistance with English, are often imputed to a person with the attribute of race; and
- The correct hypothetical comparator in this case is a person in the same or not materially different circumstances as the complainant, but without her attribute of race, and without the characteristic of possibly needing assistance because of poor English skills.
The decision to dismiss the complaint was set aside, and the complaint was remitted for reconsideration before the same tribunal members who heard it at first instance.
Xi v WorkCover Queensland  QCATA 134 (23 May 2016)
Queensland Civil and Administrative Tribunal Appeal Tribunal decisions are available from:
- Queensland Supreme Court Library website ; or
- Australasian Legal Information Institute (AustLII) website .