Queensland Industrial Relations Commission

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: Wright v Callvm Vacheron Wallace Bishop and Anor [2018] QIRC 007

PARTIES: Nicole Maree Wright (Applicant)

AND

Callvm Vacheron Wallace Bishop (First Respondent)

And

Constantin Cross Pty Ltd as Trustee of the Constantin Cross Trust (Second Respondent)

CASE NO: AD/2017/20

PROCEEDING: Referral of Complaint

DELIVERED ON: 23 January 2018

HEARING: 13 November 2017 (Brisbane) 1 December 2017 Applicant's submissions 11 December 2017 Respondents' submissions 15 December 2017 Applicant's submissions in reply

MEMBER: Deputy President Swan

ORDERS: 1. The Complaint is Dismissed.

CATCHWORDS: ANTI-DISCRIMINATION - DISCRIMINATION ON THE BASIS OF SEX - Applicant's complaint relates to discrimination on the basis of "sex" in the workplace - threshold issue relates to attribute of "sex" and matters identified by the Applicant i.e. domestic violence - domestic violence cannot properly be described as characteristics as an attribute of "sex" under the Act - the complaint is dismissed.

CASES: Anti-Discrimination Act 1991 - ss 6, 7, 8, 10, 11, 15, 16, 136, 141, 166, 204 and 276 Domestic and Family Violence Protection Act 2012 (Qld) - s 13 Lyons v The State of Queensland [2016] HCA 38 Woodforth v State of Queensland [2017] QCA 100 Four yearly review of modern awards - Family & Domestic Violence Leave Clause [2017] FWCFB 3494 APPEARANCES: Ms S. Robb of Counsel, instructed by Ms M. Alexander of Legal Aid for the Applicant. Ms C. Hartigan of Counsel, instructed by Mr S. Miotti of Romans & Romans Lawyers, for the First and Second Respondents.

DECISION

INTRODUCTION

[1] The Applicant viz., Ms Nicole Wright, lodged a complaint in the Anti-Discrimination Commission Queensland on 18 April 2017. On 10 May 2017, the complaint was accepted pursuant to ss 136 and 141 of the Anti-Discrimination Act 1991 (the ADA). The complaint has been referred to the Queensland Industrial Relations Commission (the Commission) pursuant to s 166(1)(a) and s 276(2)(a) of the ADA.

[2] The Referral Notice filed with the Commission on 2 August 2017, relevantly states that the "complaint related to or includes work or the work-related area" and was treated as indicating "discrimination on the grounds of sex in the work area as per s 7(a), s 7(h), s 10, s 11 and s 16" of the ADA".

[3] It should be noted however, that the Applicant did not subsequently pursue the issue of "impairment" as per s 7(h) of the ADA. The Applicant's written submissions of 1 December 2017 (paragraph 2) stated as follows:

"The complainant does not press her allegation that she was dismissed because of depression or anxiety constituting unlawful discrimination."

[4] The First Respondent viz., Mr Callvm Vacheron Wallace Bishop and Second Respondent viz., Constantin Cross Pty Ltd as Trustee of the Constantin Cross Trust (the Respondents), have identified a threshold issue which requires determination.

WITNESSES

[5] Witness for the Applicant were as follows:

 Ms Nicole Wright, the Applicant; and

 Ms Melinda Walton, Acting Senior Consultant, Employment and Training, Help Disability Support Services.

[6] Witnesses for the Respondents were:

 Mr Callvm Vacheron Wallace Bishop, the First Respondent, Director Constantin Cross Pty Ltd as trustee for the Constantin Cross Trust;  Ms Toni-Maree Bishop, mother of Mr Bishop, the First Respondent; and  Ms Kym Luis, Administration Supervisor or eLaundry (a business owned and operated by the First Respondent's parents).

ONUS OF PROOF

[7] The Applicant is required to satisfy the Commission that, on the balance of probabilities, the elements of discrimination in connection with work have been established (see s 204 of the ADA).

OVERVIEW OF APPLICANT'S COMPLAINT

[8] The Applicant's complaint is particularised as follows:

"22- 3-17 I called in sick due to a domestic violence incident the previous evening. I explained this to my boss Callvm.

23-3-17 I sent Callvm a text saying I would be fine to work the next day. I received no response so I turned up to work on time at 9am on the Thursday morning. 24-3-17 Callvm said he was surprised to see me. I explained I needed to work as I was now homeless and needed to keep busy also. At the end of my shift (12pm) Callvm informed me that I was no longer needed as they couldn't afford to pay me. They sent an email to Help Enterprises (my employment agency as I am disabled) and explained I had 'too many personal problems'.

I believe this to be sexual discrimination as women are more prone to be victims of domestic violence."

[9] The Applicant contends that "domestic violence" is characterised as an attribute of "sex" under the Act. It is claimed:

"18. The discrimination by the Respondents against the complainant was on the basis of the attribute of sex. The complainant is a woman. The discrimination by the Respondents against the complainant was on the basis of characteristics;

(a) that women generally have, within the meaning of s 8(a) of the Act, namely a disproportionate likelihood of being victims of domestic violence and experiencing the associated inhibition of rights and freedoms including; and

(b) often imputed to women within the meaning of s 8(b) of the Act, namely an inability to reasonably keep personal issues out of the workplace and to reasonably prevent personal issues from impacting on their work." [Applicant's submissions, paragraph 18]

[10] The Applicant states that both direct and indirect discrimination occurred on the basis of the characteristics of the attribute of "sex" and is prohibited under the ADA.

RELEVANT LEGISLATION AND THRESHOLD ISSUE

[11] While the Respondents concur with the Applicant that the construction of the characteristics identified as being an attribute of "sex" is novel, it states that the submission fails because "the matters identified by the Applicant cannot properly be described as characteristics of being a female" (Respondents' submissions, paragraph 8).

Relevant Legislation

[12] The relevant provisions of the ADA to be considered within this context are at s 6(1) of the ADA which provides as follows:

"6 Act's anti-discrimination purpose and how it is to be achieved

(1) One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation."

[13] Chapter 2, Part 2 of the ADA defines the prohibited grounds of discrimination. Part 3 describes the prohibited types of discrimination, and direct and indirect discrimination. Part 4 describes the areas in which discrimination is prohibited.

[14] The prohibited grounds of discrimination are defined at s 7 of the ADA as follows:

"7 Discrimination on the basis of certain attributes prohibited

The Act prohibits discrimination on the basis of the following attributes-

(a) sex;

(b) relationship status;

(d) parental status;

(e) breastfeeding;

(f) age;

(g) race;

(h) impairment;

(i) religious belief or religious activity;

(j) political belief or activity;

(k) trade union activity;

(l) lawful sexual activity;

(m) gender identity;

(n) sexuality;

(o) family responsibilities;

(p) association with, or relation to, a person identified on the basis of any of the above attributes."

[15] Section 8 of the ADA relevantly provides the meaning of discrimination on the basis of an attribute as follows:

"8 Meaning of discrimination on the basis of an attribute

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of -

(a) a characteristic that a person with any of the attributes generally has; or

(b) a characteristic that is often imputed to a person with any of the attributes; or

(d) an attribute that a person had, even if the person did not have it at the time of the discrimination."

[16] The attribute which the Appellant says is relevant is s 7(a), namely "sex". As "sex" is not defined within the schedule of the ADA, its ordinary meaning is:

"The character of being either male or female… the sum of the anatomical and physiological differences with reference to which the male and the female are distinguished, or the phenomena depending on these differences… men collectively or women collectively".1

[17] Also, "characteristic" is not defined by the ADA and its ordinary meaning includes:

1 The Macquarie Dictionary, Fifth Edition 2009

"Relating to, constituting, or indicating the character or peculiar quality; typical; distinctive; distinguishing feature or quality."2

"A feature or quality belonging typically to a person, place, or thing and serving to identify them."3

[18] In Lyons v The State of Queensland4, French CJ, Bell, Gageler, Keane and Nettle JJ set out the manner in which it could be asserted that a particular characteristic could be said to be a characteristic of someone with an attribute as follows:

"The Anti-discrimination Act 1991 (Q) (the 'ADA') prohibits discrimination on the basis of any of the attributes that are specified in s 7. Once such attribute is 'impairment'. 'Impairment' includes the total or partial loss of a person's bodily functions. Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of a characteristic that a person with the attribute generally possesses or a characteristic that is often imputed to a person with the attribute. The appellant's deafness is an impairment and a communication by means of Auslan is a characteristic that persons who are deaf generally possess."

Direct Discrimination

[19] Section 10 of the ADA defines what is meant by "direct discrimination".

"10 Meaning of direct discrimination

(1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Example -

R refuses to rent a flat to C because -

 C is English and R doesn't like English people  C's friend, B, is English and R doesn't like English people  R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.

(2) It is not necessary that the person who discriminates considers the treatment is less favourable.

2 Supra 3 The Oxford Dictionary, https://en.oxforddictionaries.com/definition/characteristic 4 Lyons v The State of Queensland [2016] HCA 38 (5 October 2016);

(3) The person's motive for discriminating is irrelevant.

Example -

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.

(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

(5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant."

Indirect Discrimination

[20] Section 11 defines what is meant by "indirect discrimination":

"11 Meaning of indirect discrimination

(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term -

(a) with which a person with an attribute does not or is not able to comply; and

(b) with which a higher proportion of people without the attribute comply or are able to comply; and

(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example -

(a) the consequences of failure to comply with the term; and

(b) the cost of alternative terms; and

(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

(4) In this section -

term includes condition, requirement or practice, whether or not written.

Example 1 -

An employer decides to employ people who are over 190 cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2 -

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress."

[21] Section 15 prohibits discrimination in the area of work as follows:

"15 Discrimination in work area

(1) A person must not 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

(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.

(2) In this section -

dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise."

Respondents' Submissions on Threshold Issue

[22] Section 10 of the ADA viz., meaning of direct discrimination, requires a comparison be made between the treatment the discriminator gives or intends giving and that which the discriminator would or intends to give to a person without the Applicant's attribute in "circumstances that are the same or not materially different".

[23] Woodforth v State of Queensland5 considers the difficulty encountered in identifying the relevant circumstances or context for the comparison to be made. In that matter it was held that discrimination was extended to include discrimination on the basis of a characteristic that a person with the attribute generally possesses or which is often imputed to a person with the attribute.

[24] The Applicant stated in its submissions in reply:

"8. The complainant does not contend that domestic violence is a characteristic that women generally (as in predominantly) have, but does contend that women generally have the characteristic of being disproportionately likely to be victims of domestic violence and experiencing the associated inhibition of rights and freedoms. That characteristic is consistent with what the complainant alleges is her characteristic with respect to s 8(a).

9. Women are disproportionally victims of domestic violence and there are negative assumptions associated with women's experience of domestic violence that do not attach to victims of other types of violence in the same way…"

[25] The Applicant, relying on s 8(a) of the ADA has contended that the status of being a victim of domestic violence and/or an inability to reasonably keep one's personal issues out of the workplace or to prevent those issues from impacting upon their work, are in fact characteristics that are often imputed to females and/or is a characteristic that a female generally has. The Respondents reject this claim.

[26] The Respondents outlined the difficulties the Applicant faced in supporting this claim:

"There are a number of issues that the complainant must overcome including that:

(a) Defining what she means by 'domestic violence' in the context of considering whether being a victim of domestic violence is a characteristic of the attribute of sex;

(b) That while women may disproportionately be victims of domestic violence, men and boys are also victims of domestic violence; and

(c) Whilst females may be disproportionately greater victims of domestic violence, it cannot be said that being a victim of domestic violence is a

5 Woodforth v State of Queensland [2017] QCA 100

feature or quality of being a woman that serves to identify a person as being a woman." [Respondents' submissions, paragraph 24]

(a) Domestic Violence

[27] The Domestic and Family Violence Protection Act 2012, refers to relevant relationships as including not only an intimate personal relationship but also a family relationship and an informal care relationship (see s 13 of that Act "meaning of relevant relationship").

[28] This provides a broad definition which permits a greater proportion of the community (male and female - including male and female children), to be covered by the definition of "domestic violence".

(b) Proportionality of Victims of Domestic Violence; and (c) Whether domestic violence is a Feature of being a Woman that identifies that person as being a woman

[29] The general proposition is that women are disproportionately more likely to be victims of domestic violence. As well, it must also be the case that other persons, males and male and female children are also victims of domestic violence.

[30] For statistical purposes, the Respondents referred to the Australian Bureau of Statistics "Personal Safety, Australia, 2016 Survey"6. It was claimed that relevant and reliable data on the prevalence of domestic violence is scarce and that the only reliable statistical data comes from this National survey which was conducted last in 2016. The data concerning domestic violence is summarised by the Respondents as follows:

"● More than one in three Australians experienced violence by a male perpetrator since the age of 15 (36 per cent or 6.7 million), compared to one in ten by a female perpetrator (11per cent or 2 million);

● Approximately one in four women (23 per cent or 2.2 million) experienced violence by an intimate partner, compared to one in thirteen men (7.8 per cent or 703,700).

● Women were nearly three times more likely to have experienced partner violence than men, with approximately one in six women (17 per cent or 1.6 million) and one in sixteen men (6.1 per cent or 547,600) having experienced partner violence since the age of 15.

● One in six women (16 per cent or 1.5 million) and one in seventeen men (5.9 per cent or 528,800) experienced physical violence by a partner.

● One in four women (23per cent or 2.2 million) and one in six men (16per cent or 1.4 million) reported experiencing emotional abuse by a current and/or previous partner since the age of 15." [Respondents' submissions, paragraph 36]

6 Australian Bureau of Statistics, 49060.0 Personal Safety, Australia, 2016 Survey, http:/www.abs.gov.au

[31] The Respondents state that it is clear from this data that women are more likely to be the victims of physical abuse by an intimate partner. The data however, also shows that men also are victims of domestic violence (both physical and emotional) and that the majority of women in the community (overall), are not victims of domestic violence.

[32] There is no statistical data on any individual's experience before the age of 15 to determine whether male of female children suffer proportionately the same exposure to domestic violence.

[33] What is not accepted by the Respondents is that women generally have the status of being victims of domestic violence and that this status identifies them as being a woman. Therefore, the Applicant's submission as it relates to s 8(a) viz., "a characteristic that a person with any of the attributes generally has", must fail.

[34] Regarding the Applicant's reference to s 8(b) viz., "a characteristic that is often imputed to a person with any of the attributes", it is clear that the Applicant has not expanded upon this perspective i.e. that the Applicant had been discriminated against on the basis of having an inability to reasonably keep personal issues of the workplace and to reasonably prevent personal issues from impacting on work as being characteristics; and consequently the Respondents state that complaint should also fail.

[35] The Respondents submitted that the views expressed by the Applicant on this point were scant but added "other than to note it seems to be based on an archaic notion that women by their status as being female are more likely to be emotional and unable to control such emotions". Noted also is that the Applicant's assertion had not been put to Mr Bishop in Cross-Examination.

Applicant's Submissions on Threshold Issue

[36] In supporting its construction of the term "domestic violence", the Applicant referred to statements made by Judicial Officers in the "National Domestic and Family Violence Bench Book"7 (the Bench Book), demonstrating that the effects of domestic violence are well known and that women are disproportionately the victims of such violence.

[37] The Applicant has submitted various commentary from the Bench Book, including the following at section 4.4.1 Women: [footnotes omitted]

"Prompted by growing academic, government and community attention to the range of complex issues associated with domestic and family violence, Australian researchers have considered the gendered nature of this form of violence. Claims that domestic and family violence is gender-equal or gender- neutral are consistently refuted by empirical research demonstrating that, while sometimes women are violent in their intimate relationships, overwhelmingly it is men who are more likely than women to be violent towards their partners.

7 National Domestic and Family Violence Bench Book, www.dfvbenchbook.aija.org.au

…

Further research explains that the gendered framing of domestic and family violence recognises that this form of violence occurs within the wider context of social and economic disadvantage and inequality experienced by women in relation to men, which may mean that for some women multiple factors may intersect so as to heighten their vulnerability."

[38] Similar commentary had been made in the Queensland Government Report "Not Now, Not Ever"8 which states, inter alia, that:

"The majority of people who experience domestic and family violence in Queensland are women… the most common pattern of domestic and family violence is that it is committed by men against women."

[39] In a working paper titled "Domestic Violence Victims at Work - the Role of Anti- Discrimination Law"9 published by the University of Sydney, it is stated:

"The harm inflicted by the violence can often be compounded by discrimination experiences in the workplace. The types of workplace harm include (a) hostility, assumptions and stereotyping based on negative attitudes about victims of domestic violence; and (b) inflexibility in policies and practices that impacts particularly harshly on workers who experience domestic violence. Anti-discrimination laws are designed to address these kinds of workplace harms by promoting normative and behavioural change so as to enable the equal participation and dignity of members of identified marginalised groups".

[40] Also, commentary has been made by a Full Bench of Fair Work Australia in its four yearly review of modern awards Family & Domestic Violence Leave Clause10. The Full Bench stated that:

"We further accept that whilst men can experience family and domestic violence, family and domestic violence is a gendered phenomenon which means it disproportionally affects women. …

We do not accept the submission that the impact on those employees who experience family and domestic violence is no different to impact on employees who experience other forms of violence. While it may be true that a person who experiences a physical assault has the same physical injuries irrespective of the identity of the assailant we are satisfied that the relationship that the employee has to the assailant when the assailant is an intimate partner

8 Department of Communities, Not Now, Not Ever, 2015, 9 Smith, Belinda and Orchiston, Tashina, Domestic Violence Victims at Work: A Role for Anti- Discrimination Law? (July 13, 2012). Australian Journal of Labour Law, Vol. 25, No. 3, pp. 209-236, 2012; Sydney Law School Research Paper No. 12/46 10 4 yearly review of modern awards - Family & Domestic Violence Leave Clause [2017] FWCFB 3494 (3 July 2017) at [49] and [50]

or was a former intimate partner adds an extra complexity not found in other assaults."

[41] In summary, the Applicant stated that not only did domestic violence disproportionally affect women, but that there are negative assumptions associated with women's experience of domestic violence that do not attach to victims of other types of violence in the same way.

CONCLUSION

[42] I have accepted the Respondents' submissions concerning ss 8(a) and 8(b) of the ADA.

Section 8(a) "a characteristic that a person with any of the attributes generally has"

[43] While it is accepted that the proportion of domestic violence victims are female, it is clear that women are not the only victims of domestic violence or that the majority of women are victims of domestic violence. The statistical data provided by the Respondents is unchallenged and supports its propositions.

[44] It is not accepted that being a victim of domestic violence is a characteristic that women generally have. There is nothing in the Applicant's submissions that supports this proposition. It is also not accepted that being a victim of domestic violence is a feature or quality of being a woman that serves to identify a person as being a woman.

[45] The Applicant's complaint pursuant to s 8(a) of the ADA is dismissed.

Section 8(b) "a characteristic that is often imputed to a person with any of the attributes"

[46] Similarly, the assertions made by the Applicant concerning s 8(b) of the ADA are dismissed. There is nothing in the case as submitted by the Applicant to support the proposition that the Applicant was discriminated against on the basis of the alleged characteristic of having an inability to reasonably keep personal issues out of the workplace and to reasonably prevent personal issues from impacting on work being performed.

[47] The Respondents claim in their final submissions on s 8(b) as follows:

"The Applicant has not made submissions with respect to this argument in the outline of submissions. There is no evidence or analysis relied on by the Applicant to support that proposition. … This was not put to Mr Bishop under Cross Examination".

[48] This view is accepted by the Commission as accurately reflecting the Applicant's case.

[49] It is determined that the Applicant's claim that being a victim of domestic violence and/or an inability to reasonably keep personal issues out of the workplace and to

reasonably prevent personal issues from impacting on work as being a characteristic of being female, is not accepted.

[50] The Respondent's threshold issue is accepted and the Applicant's complaint is dismissed.