Many discrimination claims arise as a result of a change in employment circumstances. In these situations, an employee may wish to make a complaint to the Anti Discrimination Commission Queensland (“ADCQ”), following which the complaint will be considered by the ADCQ, and subject to the appropriate processes such as conciliation conferences. The complaint may even be referred to the Queensland Civil and Administrative Tribunal (“QCAT”).
However, where a resolution is not achieved earlier in the legal process, the time taken to obtain a final outcome in the matter would be significant. In those circumstances, the employee may suffer irreparable detriment as a result of alleged discriminatory conduct.
In such circumstances, there may be merit in making an urgent application to QCAT, seeking an order that no changes are made by the employer to the employment circumstances, thereby maintaining the status quo of the complainant.
Under the Anti-Discrimination Act 1991 (Qld), complainants are able to seek orders from QCAT which protect the complainant’s interests, even before the matter is referred to QCAT.
McIntyre v Hastings Deering (Australia ) Ltd and Anor involved a single mother with young two children. She had initially accepted her employment as her employer allowed her to have “family friendly work-shifts”. However, during the course of her employment, the Complainant was presented with a contract by her Employer that would alter her shifts, such that if accepted, would impact her ability to both work and care for her children.
Ms McIntyre lodged a complaint with the ADCQ alleging her Employer’s conduct was discrimination, as the conduct sought to alter her working hours thereby having adverse effects on her family responsibilities.
The complaint had been accepted by ADCQ, but had not yet been referred to QCAT. However, as the Employer had given Ms McIntyre a due date to agree to the change in work-shifts, she made an application to QCAT seeking an order that her current “family friendly work-shifts” be maintained, and remain unchanged.
Ms McIntyre was successful in obtaining an order that maintained the status quo, and was able to continue with her “family friendly work shifts” until a final resolution was reached between the parties as to her discrimination complaint.
However, each decision will be reliant upon its own set of facts. The decision in McIntyre v Hastings Deering (Australia) Ltd and Anor is to be contrasted with Singh v Donoghue & Rockhampton Cab Company Ltd.
In Singh v Donoghue & Rockhampton Cab Company Ltd, the complainant was a cab driver, and had lodged an application with QCAT seeking to prohibit the respondents from conduct that might stop him from being allocated driving jobs by Rocky Cabs.
Here the complainant sought to rely upon the decision in McIntyre v Hastings Deering (Australia) Ltd and Anor, but was unsuccessful in convincing the Tribunal to maintain the status quo.