State of Queensland v Attrill
[2012] QCA 299
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- Unreported Judgment
- Appeal Determined (QCA)
- State of Queensland v Attrill[2012] QCA 299
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State of Queensland v Attrill[2012] QCA 299
State of Queensland v Attrill[2012] QCA 299
SUPREME COURT OF QUEENSLAND
CITATION: | State of Queensland v Attrill & Anor [2012] QCA 299 |
PARTIES: | STATE OF QUEENSLAND |
FILE NO/S: | Appeal No 2735 of 2012 |
DIVISION: | Court of Appeal |
PROCEEDING: | Appeal Queensland Civil and Administrative Tribunal Act |
ORIGINATING COURT: | Queensland Civil and Administrative Tribunal at Brisbane |
DELIVERED ON: | 2 November 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 August 2012 |
JUDGES: | Margaret McMurdo P, Holmes JA and Douglas J |
ORDER: | Appeal dismissed with costs. |
CATCHWORDS: | DISCRIMINATION – GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – EMPLOYMENT – where the first respondent, a public servant, had a medical history of anxiety and depression – where the first respondent was directed by her employer to undergo a medical examination – where the resulting medical opinion was that workplace rehabilitation, transfer or redeployment were not reasonably practicable options due to the first respondent's medical condition – where the first respondent was asked by her employer to show cause as to why she should not be medically retired – where the first respondent was medically retired from the public service – where the requirement to undergo the medical examination, the requirement to show cause and the retirement involved the exercise of powers under chapter 5 part 7 of the Public Service Act 2008 dealing with employees suffering mental or physical incapacity – where the first respondent made a complaint to the Anti-Discrimination Commissioner alleging discrimination on the basis of impairment – whether the powers under chapter 5 part 7 of the Public Service Act 2008 are exclusive of or operate subject to the provisions of the Anti-Discrimination Act 1991 concerning discrimination in employment on the basis of impairment Anti-Discrimination Act 1991 (Qld), s 7, s 15, s 25, s 34, s 35, s 36, s 106, s 144, s 235 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9, considered |
COUNSEL: | W Sofronoff QC SG, with M Spry, for the appellant |
SOLICITORS: | Crown Law for the appellant |
- MARGARET McMURDO P: This appeal should be dismissed with costs for the reasons given by Holmes JA.
- HOLMES JA: This appeal concerns the regime under chapter 5 part 7 of the Public Service Act 2008 for dealing with public service employees suffering from mental or physical incapacity. At issue is whether that regime is exclusive of or operates subject to the provisions of the Anti-Discrimination Act 1991 concerning discrimination in employment on grounds of impairment.
The Public Service Act and the appellant’s actions
- The first respondent, Ms Attrill, was an employee of Corrective Services, which is part of the Department of Community Safety. She had a medical history of anxiety and depression and it was perceived that there had been some deterioration in her performance as an employee. In April 2011, a delegate of the chief executive of the Department directed her to attend a medical examination by a psychiatrist; she complied with that direction. The psychiatrist’s report advised that Ms Attrill had a major depressive disorder and anxiety disorder, the symptoms of which meant that she would not be able to perform the duties of her position on a permanent footing. A workplace rehabilitation program would not help; nor would adjustments to, or support in, Ms Attrill’s existing position. Any success in re-deployment was likely to be short‑lived.
- On the basis of that report, the chief executive’s delegate wrote to Ms Attrill expressing his conclusions that her unsatisfactory performance was caused by the depressive and anxiety disorders, and that workplace rehabilitation, transfer or redeployment were not reasonably practicable options because of her medical condition. He invited her to show cause why she should not be retired from the public service, saying that no final decision concerning her retirement had been made, or would be, until she had the opportunity to respond.
- The delegate took those steps under part 7 of chapter 5 of the Public Service Act. Part 7 applies where the chief executive of a department reasonably suspects that the absence or unsatisfactory performance of an employee is caused by mental or physical illness or disability,[1] and sets out the procedures which may be taken. Of particular importance here are s 175:
“175Chief executive may require medical examination
The chief executive may—
(a)appoint a doctor to examine the employee and give the chief executive a written report on the examination; and
(b)require the employee to submit to the medical examination.”
and s 178:
“178Action following report
(1)If, after considering the report of the medical examination, the chief executive is reasonably satisfied the employee’s absence or unsatisfactory performance is caused by mental or physical illness or disability, the chief executive may—
(a)transfer or redeploy the employee; or
(b)if it is not reasonably practicable to transfer or redeploy the employee—retire the employee from the public service.
(2)Subsection (1) does not limit the action that may be taken relating to the employee.”
- Section 25 of the Public Service Act sets out management and employment principles for the public service. Those relevant to employment are as follows:
“(1)Public service management is to be directed towards—
(a)providing responsive, effective and efficient services to the community and the Government; and
…
(d)continuously improving public service administration, performance management and service delivery; and
(e)managing public resources efficiently, responsibly and in a fully accountable way; and
(f)promoting the Government as an employer of choice; and
(g)promoting equality of employment opportunity.
(2)Public service employment is to be directed towards promoting—
(a)best practice human resource management; and
(b)equitable and flexible working environments in which all public service employees are—
(i)treated fairly and reasonably; and
(ii)remunerated at rates appropriate to their responsibilities; and
(c)a diverse and highly skilled workforce drawing from Government and non-government sectors.”
- Section 99 of the Act requires a chief executive discharging responsibilities under an Act to observe those principles. Section 30, which sets out the general obligations of government (and other prescribed) entities, similarly requires the promotion of equal employment opportunity.[2] Section 30 also requires each such entity to “eliminate unlawful discrimination about employment matters” against people belonging to certain target groups,[3] which include people with disability.[4] “Unlawful discrimination” is defined to mean “discrimination that is unlawful under the Anti‑Discrimination Act 1991”.[5]
The Anti-Discrimination Act and the first respondent’s actions
- Ms Attrill sought and was granted an extension of time in which to respond to the letter inviting her to show cause against her retirement. At the same time she lodged a complaint with the Anti‑Discrimination Commission, alleging that she had been discriminated against on the ground of her impairment in a number of respects, which included the direction to undergo psychiatric examination, the failure to consider transfer or secondment options and the failure to give her the opportunity of another placement. The complaint was made in respect of Corrective Services, when the relevant actions were in fact those of the delegate of the chief executive of the Department of Community Safety, but no point was taken about that.
- Section 7 of the Anti‑Discrimination Act prohibits discrimination on the basis of a number of prescribed attributes, including impairment. Section 15 of the Act prohibits discrimination, inter alia, in dismissing a worker or by treating a worker unfavourably in any way in connection with work.[6] The Act creates certain exemptions for discrimination in work relevant here. Section 25(1) provides that an employer may “impose genuine occupational requirements” for a position. Section 34 allows the setting of terms in respect of an employee with an impairment:
“34Special terms if job capacity is restricted by impairment
A person may fix reasonable terms in relation to the holder or prospective holder of a position who, because of an impairment—
(a)has a restricted capacity to do work genuinely and reasonably required for the position; or
(b)requires special conditions in order to be able to do the work.”
- Section 35(1) provides an exemption where an employee would require special accommodation beyond the employer’s reasonable capacity to provide:
“35Special services or facilities required
(1)It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if—
(a)the other person would require special services or facilities; and
(b)the supply of special services or facilities would impose unjustifiable hardship on the first person.”
More generally, s 36(1) permits an employer to discriminate on the basis of impairment:
“if the circumstances of the impairment would impose unjustifiable hardship on the [employer].”
- Reference was also made in argument to s 106 of the Anti‑Discrimination Act, which permits a person to do an act necessary to comply with or specifically authorised by a provision of another Act in existence at the commencement of the section. But the only significance of s 106 here would seem to lie in what it does not provide for: any protection for acts necessary to comply with, or authorised by, later Acts.
- Ultimately, Ms Attrill applied to the Queensland Civil and Administrative Tribunal for an injunction to restrain the appellant from continuing the ill-health retirement process until her complaint had been dealt with. That application was made under s 144 of the Anti-Discrimination Act. It enables a complainant, at any time before his or her complaint is referred to the tribunal, to seek an order preventing a person from doing an act which may prejudice the investigation or conciliation of the complaint or an order that a tribunal might make after a hearing.
The QCAT decisions on the operation of the Acts
- A senior member of the tribunal refused the injunction on the basis that part 7 of chapter 5 of the Public Service Act must be taken to have impliedly repealed the prohibitions on discrimination in s 15 of the Anti‑Discrimination Act, so that the tribunal had no jurisdiction to grant the injunction. That decision was set aside by the appeal tribunal of the Queensland Civil and Administrative Tribunal. It held that the part 7 provisions could operate in parallel with the discrimination provisions of the Anti-Discrimination Act.
- The appeal tribunal’s reasoning was as follows. It was to be accepted that it was a genuine occupational requirement within the meaning of s 25 of the Anti‑Discrimination Act for employees to attend work and satisfactorily perform their duties. Empowering a chief executive of a department to require an employee to attend a medical examination where impairment was thought to be causing unsatisfactory performance was consistent with fixing reasonable terms under s 34 of the Anti‑Discrimination Act. Once the chief executive received a report satisfying him or her that unsatisfactory performance was caused by impairment, the steps which followed could be taken within the parameters of the Anti‑Discrimination Act. Thus, if arrangements could be made to accommodate the impaired person without unjustifiable hardship, to transfer, redeploy or retire him or her would constitute unlawful discrimination. If, on the other hand, the disability was such that the employee would not, under any circumstances, be able to perform his or her work, the employer could argue that continued employment would impose unjustifiable hardship on it, so that retiring the employee would not be unlawful discrimination.
- That analysis was, the appeal tribunal said, consistent with the equal employment opportunity obligation imposed on government agencies by s 30 of the Public Service Act. The Anti‑Discrimination Act provided a set of legislative criteria for chief executives in performing their functions under chapter 5 part 7 of the Public Service Act, in what would otherwise be a vacuum.
- By the time the appeal tribunal came to consider the matter, the first respondent’s employment had been terminated. The appeal tribunal made orders setting aside the decision of the tribunal member and listed the proceedings for a directions hearing in relation to the application for injunctive relief.
The appellant’s contentions on appeal
- The appellant submitted that chapter 5 part 7 of the Public Service Act, as a later enactment, impliedly repealed the Anti‑Discrimination Act to the extent of any inconsistency; or at the least that s 15 of the Anti‑Discrimination Act was to be read subject to part 7, so that the latter provided, in effect, an exemption from the prohibitions in s 15. The appellant’s arguments began with reliance on the maxim expressum facit cessare tacitum as applied in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[7]:
“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”
Here, it was submitted, the chief executive’s specific powers, conferred in a later enactment dealing with the terms of employment of public servants, excluded the operation of the general provisions of the Anti‑Discrimination Act.
- Part 7 was expressly premised, it was submitted, on the jurisdiction of the chief executive to make decisions about employment where an employee suffered from a disability. Inherent to the exercise of the jurisdiction was the possible treatment of such an employee less favourably than employees without such a disability. The general provisions of the Anti‑Discrimination Act dealing with the same subject matter could have no work to do consistently with the exercise of the chief executive’s power. But the first respondent’s complaint was of the invocation of the very procedure which Part 7 authorised.
- The circumstances of the case were on all fours with those in Ferdinands v Commissioner for Public Employment[8] in which it was held that the Police Act 1998 (SA) set up a regime for police appointment, discipline and termination to the exclusion of the Industrial and Employee Relations Act 1994 (SA). The arrangements for control and management of the police force and for merits review of some kinds of decision, but not others, had the appearance of exhaustiveness.[9] Similarly, part 7 established a comprehensive and exhaustive scheme to deal with public service employees who were mentally ill or physically incapacitated. Consequently, s 15 of the Anti‑Discrimination Act was impliedly repealed to the extent that it would otherwise have applied to the redeployment, transfer or retirement of public service employees on impairment grounds.
- The result, it was said, was that the first respondent could make no valid complaint under the Anti‑Discrimination Act. Any decision to be made under part 7 – in particular, the decision as to whether transfer or redeployment was “reasonably practicable” – was to be made by reference to the terms of the Public Service Act, including its equal opportunity provisions, not the Anti‑Discrimination Act. If the Public Service Act considerations were not applied in making a decision, the remedy was review under the Judicial Review Act 1991, not complaint under the Anti‑Discrimination Act.
The respondents’ contentions on appeal
- The first respondent supported the reasoning of the appeal tribunal. In considering implied repeal by a later statute, the question, as posed by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom,[10] was whether the later of the two provisions was not capable of sensible operation if the earlier provision stood. Here, for the reasons which the appeal tribunal had given, the two pieces of legislation could sensibly operate together. The Anthony Hordern case had no application because it concerned a situation where a special power exhaustively governed a particular subject, to the exclusion of another, more general power. The present case did not involve the conferral of competing powers but constraints imposed by the Anti‑Discrimination Act on the exercise of power.
- Counsel pointed, in particular, to the obligation in s 30 of the Public Service Act to eliminate discrimination which was unlawful under the Anti‑Discrimination Act. The effect of that requirement was that Government entities were obliged to eliminate less favourable treatment on the basis of attributes prescribed under the Anti‑Discrimination Act, including impairment, unless that less favourable treatment was the subject of an exemption under the Act. Thus, for example, the chief executive would be entitled to require of an employee that he or she be able to perform duties which were part of the genuine occupational requirements of his or her position.
- The Anti-Discrimination Commissioner had intervened in the tribunal proceedings, pursuant to his right to do so under s 235(j) of the Anti‑Discrimination Act, and was consequently second respondent to the appeal. He too supported the decision of the appeal tribunal. He argued that the effect of the Anti‑Discrimination Act, taken as a whole, was: to prohibit unfavourable treatment of an impaired worker, including by dismissal; to impose obligations on an employer to make reasonable adjustments for a worker’s impairment; and to allow the imposition of genuine occupational requirements for a position. Read in conjunction with the Anti‑Discrimination Act, part 7 of chapter 5 of the Public Service Act permitted what would otherwise be unlawful discrimination only where adjustments would be unreasonable or would create unjustifiable hardship or the worker was unable to perform the genuine occupational requirements of the position.
- It was apparent, from the existence of s 30 of the Public Service Act, that part 7 was not a comprehensive and exhaustive scheme to deal with public sector employees who were mentally or physically incapacitated. The Anthony Hordern principle had no application, because insofar as there was any prescription for the mode of exercise of the chief executive’s powers, it was that the unlawful discrimination provisions of the Anti‑Discrimination Act were preserved.
Discussion
- If the appellant’s contention as to the Anthony Hordern principle were right, it is difficult to see how the Anti‑Discrimination Act could have any application wherever a statutory power conferred with any specificity was exercised: an unfortunate result. However, I accept the respondents’ submission that the principle does not apply here.
- In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom,[11] referred to above, Gummow and Hayne JJ provided some clarification of the principle:
“Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power”, or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power.”[12] (Citations omitted.)
- The present case is not one of competing powers, one broad, the other specific and subject to qualifications. There is a single source of power, part 7 of chapter 5 of the Public Service Act. Section 99 of the Act restricts the exercise of the powers part 7 confers by requiring adherence to the management and employment principles in s 25, which include the promotion of equality of employment opportunity. The question is whether the powers part 7 creates are also subject to the more specific prohibitions and limitations in the Anti‑Discrimination Act, or whether there exists an inconsistency between them that leads to the conclusion that the enactment of the former must have repealed or excluded the latter.
- In Goodwin v Phillips[13], Griffiths CJ identified the
“… general rule, that is, that where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.”[14]
- To determine whether part 7 has effected an implied repeal or exclusion of s 15, it is necessary to consider whether, in fact, the provisions “are capable of a sensible concurrent operation”.[15] If the conclusion were that application of the Anti‑Discrimination Act provisions meant that the chief executive could not lawfully exercise his powers under part 7, the appellant’s case for repeal or exclusion would be made out.
- In fact, as it seems to me, whether the chief executive can exercise his powers under part 7 consistently with the constraints in the Anti‑Discrimination Act depends on which power is being considered. Part 7 creates two distinct powers: under s 175, to appoint a doctor and require that the employee attend a medical examination and under s 178, upon receipt of the report, to transfer, redeploy or take other action in respect of the employee. (There is another power, in s 179(2), for the chief executive to keep the record of the requirement and the medical report separate from other records for the employee, but it is of no consequence to this issue.)
- In argument, the question was canvassed as to whether the exercise of the power to require an employee to undergo medical examination was discriminatory. The appellant pointed out that it was likely to be: it required the employee to reveal personal matters under compulsion and, where physical examination was required, to submit to what would otherwise be a trespass. The first respondent also contended that compulsorily requiring a medical examination was less favourable treatment. The second respondent took a sunnier view: a medical examination might be the means of identifying a way in which an employee could be benefited by transfer or re-deployment.
- If s 175 does confer a power on the chief executive to discriminate against an employee on the basis of impairment, the question is whether s 15 of the Anti‑Discrimination Act, if applied, would have the effect of prohibiting that exercise of power or whether there exists an exemption which would make the resulting discrimination lawful. The appeal tribunal reasoned that s 34 of the Anti‑Discrimination Act, which permits the fixing of reasonable terms in relation to an employee whose capacity to do the work is restricted or who requires special conditions, allowed the chief executive to require attendance at a medical examination. With respect, I think there are some difficulties in that analysis. Firstly, I think it may be questioned whether a one‑off requirement to attend a medical examination really constitutes the fixing of terms. Secondly, the reasoning proceeds from an assumed premise – the employee’s restricted capacity to do work or requiring special conditions because of the impairment – which is not, in fact, established at the time the direction to attend the examination is given; to the contrary, ascertaining whether it exists is the very purpose of the examination.
- The appellant brought the court’s attention, however, to the decision of Goldberg J in Thompson v IGT (Australia) Pty Ltd.[16] In that case, Goldberg J considered the question of discrimination in relation to an employee who sought interlocutory orders under the Disability Discrimination Act 1992 (Cth) requiring his employer to withdraw its demand that he attend for psychiatric assessment. He had a known disability, a back injury, but had had a disproportionate number of absences from work, some explained, some not. Section 15(2) of the Disability Discrimination Act made it unlawful for an employer to discriminate against an employee on the ground of disability by dismissal or by “subjecting the employee to any other detriment”. “Discrimination” was defined in that Act along similar lines to the Anti‑Discrimination Act, as treating a person less favourably than a person without the disability would be treated.
- Goldberg J observed that at common law it was the obligation of an employee to obey the lawful and reasonable directions of the employer and it was reasonable to direct an employee to attend a medical examination to determine whether he or she was fit to perform his or her duties. The requirement to provide medical information to the employer, provided it was made on reasonable terms and shown to be reasonably necessary, was, his Honour concluded, not a detriment in employment but a necessary part or incident of the employment. Even if there had been such a detriment, the requirement to attend the examination was not made because of the applicant’s disability, but to find an explanation for his absences from work, to enable his employer to comply with its occupational health and safety obligations and to find out the extent to which the applicant could perform the inherent requirements of his work.
- I think, however, that requiring an employee to do something which is a necessary incident of employment, where that requirement is made because of impairment, may nonetheless constitute less favourable treatment. Here the examination was required because of Ms Attrill’s known history of psychiatric illness, in order to establish its implications for her ability to work. But it is not necessary for me to reach a concluded view on the point. If the exercise of the power under s 175 to require an employee suffering from disability to attend a medical examination is not discriminatory, s 15 of the Anti-Discrimination Act has no application. If it is discriminatory, there is, in my view, no exemption in the Anti-Discrimination Act apposite to the making of a specific requirement of that kind which would apply so as to render the discrimination lawful. Section 15 would, if effective, prohibit the exercise by the chief executive of his power under s 175.
- Thus, if s 175 permits a discriminatory exercise of power, the conclusion, inevitably, is that it cannot sensibly operate in conjunction with s 15. The result is that the provisions of part 7 must be taken to have impliedly repealed or excluded the operation of the provisions of the Anti-Discrimination Act so far as the exercise of power under s 175 is concerned. Consequently, whether or not one starts from the premise that requiring an employee to attend a medical examination is capable of amounting to discrimination under the Anti-Discrimination Act, the result must be the same: the exercise of power under s 175 is not subject to the prohibitions in the Anti‑Discrimination Act.
- The same is not true, however, for the exercise of power under s 178. There is no difficulty in reading that power as subject to s 15, because the Anti-Discrimination Act exemptions can work effectively in respect of its exercise. In considering what action to take upon receipt of a report which establishes that the employee’s absence or unsatisfactory performance is as a result of impairment, the chief executive can have regard to the fact that the employee’s continued employment would impose unjustifiable hardship or require special services or facilities, the supply of which would impose unjustifiable hardship. If the decision is made to continue the person in employment, reasonable terms may be fixed under s 34. The continued employment is subject to the employer’s entitlement to impose genuine occupational requirements.
- That view of s 178 is to be preferred for a number of reasons. Firstly, of course, the construction which gives both Acts their effect is to be preferred. Secondly, reading the power under s 178 as subject to s 15 is consistent with the requirement under s 25 of the Public Service Act that the power be exercised with regard, inter alia, to promoting equality of employment opportunity, and with the broader requirement in s 30 that discrimination which is unlawful under the Anti‑Discrimination Act be eliminated. Thirdly, while hardly decisive, it is of some relevance that chapter 7 part 3 of the Public Service Act excludes remedies under the Industrial Relations Act 1999 and the Judicial Review Act for certain specified matters, but does not exclude remedies under the Anti‑Discrimination Act.
- The appellant had suggested that the first respondent’s complaint was of the very invocation of the procedure under part 7. But the heads of her complaint included the failure to consider transfer or secondment options and not providing her with the opportunity of another placement. Those matters of complaint went, in my view, to the steps the appellant had thus far taken in the exercise of the power under s 178 of the Public Service Act and could properly form a basis for granting injunctive relief under s 144 of the Anti-Discrimination Act.
- The appeal should be dismissed with costs.
- DOUGLAS J: I agree with the reasons of Holmes JA and that the appeal should be dismissed with costs.
Footnotes
[1] Section 174.
[2] Section 30(1).
[3] Section 30(2)(b).
[4] Section 30(4).
[5] Section 30(4).
[6] Section 15(1)(c) and (f).
[7] (1932) 47 CLR 1 at 7.
[8] (2006) 80 ALJR 555.
[9] At p 560.
[10] (2006) 228 CLR 566 at 585.
[11] (2006) 228 CLR 566.
[12] At 589.
[13] (1908) 7 CLR 1.
[14] At 7.
[15] (2006) 228 CLR 566 at 585.
[16] (2008) 173 IR 395.