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. 2 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 3 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 4 (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; (c) pregnancy; (d) parental status; (e) breastfeeding; (f) age; (g) race; 5 (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 (c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; 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 6 "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.