The Queensland Civil and Administrative Tribunal has upheld an employee's right to have her workplace discrimination claim fully heard rather than have some of them struck out on the application of her employer.
"An argument for striking out a claim must be very clear to justify QCAT's intervention to prevent a party from submitting its case for determination.
"It is a very serious matter for QCAT to dismiss a claim without allowing a hearing of that claim to take place", said Senior Member Clare Endicott.
Senior Member Endicott rejected the application by Queensland Health to restrict the counsellor’s claim to discrimination on the grounds of impairment as classified by the Anti-Discrimination Commission in referring it to QCAT.
She said that while QCAT can only consider the complaint referred by the Commission, the Tribunal was not bound by the Commission’s “categorisation” of the complaint.
She said she was satisfied after reading the documents lodged with the Commission which outline the entire complaint that it is based on discrimination on the grounds of impairment, sex and alleged victimisation by the employer.
Senior Member Endicott said that she would not allow Queensland Health’s application to knock out these additional grounds, saying that the employee “should be given the opportunity to endeavour to substantiate her complaint including her allegation of sex discrimination and victimisation via a hearing by the tribunal”.
“The proper course is for QCAT to consider the cogency of those allegations after a hearing and not to forestall attempts by [the counsellor] to argue her case in relation to those allegations”.
In also allowing the case to consider allegations of discrimination on the basis of relationship status, Senior Member Endicott said she was mindful of Queensland Health’s argument that such a complaint was “misconceived” as they were based on who she was in a de facto relationship with rather than that she was in a de facto relationship at the relevant time.
"Queensland Health rely on case law authorities which have determined that provisions prohibiting discrimination on relationship status do not extend to prohibiting discrimination based on the identity of a person’s spouse. It is a person’s marital status that is relevant not the choice of partner.”
Background
The case relates to a Queensland Health employee's complaints that she was not given sufficient support by her employer in the aftermath of being assaulted in March 2007 by a person, also employed by Queensland Health, with whom she was, at the time, in a de facto relationship.
Senior Member Endicott said that the employee believed that she had been treated unfairly by her employer because Queensland Health officers had decided "the assault was her own personal business, had nothing to do with work, was her fault, not their business, her private affair, not a work related matter".
In her lodged complaint, the employee claimed that Queensland Health officers had:
- refused her leave from work to undergo therapy on the basis that it was not work-related;
- refused to remove her from frontline sexual assault counselling;
- declined to investigate her complaints about ongoing harassment by the man who assaulted her;
- extended her probationary period;
- refused to allow her to return to work after she had ceased work due to ill health; and
- made allegations unfairly about unsatisfactory work performance.
She also said that the man who had assaulted her had been treated "with concern by the same employer by being transferred to another area".
Senior Member Endicott agreed to Queensland Health’s application to remove several paragraphs from the claim that covered events that had allegedly occurred in the period since the claims were lodged.
She said they would need to be the basis for a new claim to the Anti-Discrimination Commission.