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Webb v Sunshine Coast Hospital and Health Service[2015] QCAT 31

Webb v Sunshine Coast Hospital and Health Service[2015] QCAT 31

CITATION:

Webb v Sunshine Coast Hospital and Health Service & Anor [2015] QCAT 31

PARTIES:

Beverley June Webb

(Applicant)

 

v

 

Sunshine Coast Hospital and Health Service

Kevin Hegarty

(Respondents)

APPLICATION NUMBER:

ADL108-13

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

29, 30 and 31 October 2014

HEARD AT:

Brisbane

DECISION OF:

Member Browne

DELIVERED ON:

3 February 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application referring the complaint is dismissed.

CATCHWORDS:

ANTI-DISCRIMINATION – where complaint raises contentions of direct and indirect discrimination – where alleged discrimination on basis of presumed attribute of mental health – where complainant directed to attend independent medical examination – where complainant suspended from employment

Anti-Discrimination Act 1991 (Qld), s 5, s 7, s 8, s 10, s 11, s 15, s 104, s 105, s 124, s 209

Public Service Act 2008 (Qld), s 137, s 175

Workplace Health and Safety Act 2011 (Qld), s 19

State of Queensland v Attrill & Anor [2012] QCA 299; cited

Tung v State of Queensland [2013] QCAT 251; cited

Ward v Stradbroke Ferries Pty Ltd [2014] QCAT 637; cited

APPEARANCES:

APPLICANT:

Beverley Webb

RESPONDENT:

Sunshine Coast Hospital and Health Service

Kevin Hegarty

REPRESENTATIVES:

APPLICANT:

Beverley Webb represented by Mr Anthony Morris QC of senior counsel with Mr Simon Grant of junior counsel instructed by Corney & Lind Lawyers

RESPONDENT:

Sunshine Coast Hospital and Health Service and Kevin Hegarty represented by Mr Chris Murdoch of counsel instructed by Minter Ellison Lawyers

REASONS FOR DECISION

  1. [1]
    Mrs Webb had dreams to pursue a career as a pharmacist. In 2004 she realised that dream when she completed her final pre-registration examination and commenced employment as a pharmacy trainee on a temporary full time basis.
  2. [2]
    Mrs Webb accepted a permanent position as a pharmacist in 2005 and in September 2008 became a Senior Pharmacist working in the Caloundra Hospital. She is now employed on a permanent full time basis with the Sunshine Coast Hospital and Health Service (SCH&HS).[1] Kevin Hegarty is the Chief Executive of the Health Service.
  3. [3]
    Mrs Webb worked in the Caloundra Hospital. She completed post-graduate study while working full-time, necessary to meet the requirements for her pharmacy position. Mrs Webb also managed her breast cancer diagnosis that was made in 2011. This is one reason why she took a period of leave commencing 28 March 2012 and ending in December 2012.
  4. [4]
    Mrs Webb has not worked as a pharmacist for several months because in December 2012 the respondents suspended her employment on full pay. Prior to being suspended Mrs Webb was placed on alternative duties in March 2012. She was also directed, prior to her employment being suspended, by the respondents in 2012 to attend an independent medical examination (IME) with a psychiatrist, Dr Gary P Larder.[2]
  5. [5]
    Mrs Webb complained about the respondents’ conduct to the Anti-Discrimination Commission on 7 May 2013. The complaint was referred to the Tribunal on 23 October 2013.
  6. [6]
    Mrs Webb relied on her own evidence and was cross-examined. The respondents relied on the evidence of Lois Craig, Director for People and Culture for SCH&HS; Lina Ma, Human Resource Business Partner for Metro North Hospital and Health Service; and Brett Dalgliesh, Director of Pharmacy, Caloundra. Mr Dalgliesh was also cross-examined at the hearing. Mr Hegarty relied on his own evidence and was cross-examined.
  7. [7]
    Mrs Webb seeks an order that the respondents have breached Anti-Discrimination Act 1991 (Qld) (the QAD Act), and to return her to work in the pharmacy department of the Caloundra Hospital ‘pursuant to the advice of Dr Larder and Dr Tan [general practitioner]’.[3] Mrs Webb also seeks an order pursuant to s 209(1)(a) of the QAD Act to effectively restrain the respondents from taking any further action in relation to her employment; and an award of compensation pursuant to s 209(1)(b) and (c) of the Act for the amount of Mrs Webb’s legal costs.[4]

What is required to establish a breach of the Anti-Discrimination Act 1991 (Qld)?

  1. [8]
    One of the purposes of the QAD Act is to ‘promote equality or opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work…’.[5]
  2. [9]
    The QAD Act provides that discrimination will happen on the basis of an ‘attribute’ 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’.[6]
  3. [10]
    Section 8 of the QAD Act provides that discrimination ‘on the basis of an attribute’ includes both direct and indirect discrimination on the basis of ‘an attribute that a person is presumed to have or to have had at any time, by the person discriminating’.[7] In this case, the contentions are premised on the basis of a ‘presumed attribute’ namely mental illness.
  4. [11]
    Mrs Webb as the complainant bears the onus of proof to establish that on the balance of probabilities the respondents have contravened the QAD Act.[8] It is ‘not necessary’ that the person who discriminates (in this case the respondents) ‘considers the treatment is less favourable’.[9] Any ‘motive’ for the discrimination is ‘irrelevant’.[10] Section 10(4) provides:

s 10 Meaning of direct discrimination

…

  1. (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.
  1. [12]
    For the purposes of s 11 of the QAD Act there has been ‘indirect discrimination’ on the basis of an attribute ‘if a person imposes, or proposes to impose, a term’ that is ‘not reasonable’.[11] Whether a term is ‘reasonable’ will depend on ‘all the circumstances of the case’.[12] Section 11 also provides that it is not necessary that the person (the respondents) ‘imposing, or proposing to impose, the term is aware of the indirect discrimination’.
  2. [13]
    If the Tribunal is satisfied that there has been a ‘term’ imposed by the respondents for the purposes of s 11, then the respondents must prove on the balance of probabilities that the term complained of by the complainant (Mrs Webb) is reasonable.[13]
  3. [14]
    There are various decisions in this jurisdiction that have considered the meaning of direct and indirect discrimination; in particular what must be established for the Tribunal to be satisfied to the requisite standard that there has been a breach of the QAD Act.
  4. [15]
    I refer to the decision of Tung v State of Queensland.[14] In Tung the complainant made contentions of direct and indirect discrimination in relation to the refusal of his application for maternity leave because, as contended, he was not female ‘or rather because he was male and he was therefore treated less favourably than a female employee in circumstances that were the same or not materially different’.[15]
  5. [16]
    In Tung Member Roney QC referred to various decisions in considering the ‘difficulties’ in respect of s 10(1) of the QAD Act that requires treatment that is less favourable ‘on the basis of’ an attribute. Member Roney QC said:

These cases make clear that it is therefore necessary to look carefully at the "real reason" for why the Complainant was refused the paid leave he requested. If, as Section 10(4) of the Act says, there are 2 or more reasons why the person is acting, is a substantial reason one which was “on the basis of the attribute”?[16]

  1. [17]
    In this case the Tribunal must be satisfied that there has been a breach of the QAD Act before it can make one or more of the orders under s 209. In order to be satisfied there has been a breach of the Act all of the requirements of s 10 and for indirect discrimination all of the requirements for s 11 must be met. In considering all of the evidence, the Tribunal must consider the ‘true basis’ or ‘real reason’ for the respondents’ conduct including why Mrs Webb was required to attend an IME; and why she was and continues to be suspended from her employment.

The contentions of direct and indirect discrimination

  1. [18]
    Mrs Webb alleges direct and indirect discrimination. There are ten contentions alleging direct discrimination and five contentions alleging indirect discrimination. Although there are separate contentions made by Mrs Webb about the respondents’ conduct, her primary issue concerns the respondents’ decisions and or action taken to require or direct her to attend an IME; and to suspend (and continue to suspend) her employment on full pay.
  2. [19]
    Mrs Webb says that the respondents directly discriminated against her ‘on the basis of the attribute of alleged mental health’[17] by requiring her to attend an IME; suspending her employment; requiring her to ‘show cause’ in relation to renewal of registration as a pharmacist; discontinuing access to clinical websites; requiring her to seek approval to attend education sessions on various dates; failing to process her leave application within the required timeframe; and by directing her to not contact Health Service staff.  
  3. [20]
    The respondents’ requests for Mrs Webb to attend an IME were made by letters dated 9 March 2012, 23 March 2012, 18 September 2012 and 11 December 2012. In the letter dated 11 December 2012 Mrs Webb was advised by the respondents that should she ‘fail to follow any of these lawful directions’ including the direction to attend an IME, she may be liable to disciplinary action ‘up to and including termination of [her] employment’.[18]
  4. [21]
    Mrs Webb says the respondents have not validly exercised the power under s 175 of the Public Service Act 2008 (‘PS Act’) to require her to attend an IME.[19] Mrs Webb also says that the respondents have breached s 124 of the QAD Act by requiring her to provide ‘medical evidence’.
  5. [22]
    Mrs Webb contends that the ‘correct comparator’ pursuant to s 10 of the QAD Act ‘is an employee who has provided medical evidence of an inability to be involved in a rotation roster’.[20]
  6. [23]
    The respondents deny that they had ‘no lawful basis’ to order the IME. The respondents submit that it had a ‘primary duty of care’ pursuant to s 19 of the Workplace Health and Safety Act 2011 (Qld) (the WH&S Act) to ensure the ‘health and safety of its workers’ while at work; and refer to the power to require an employee to submit to an examination under s 175 of the PS Act.[21]
  7. [24]
    In relation to the requests for medical information, the respondents say that they made ‘various requests’ to Mrs Webb to provide or authorise the respondents to obtain information from Dr Tan, her treating medical practitioner, about the ‘nature and extent of [her] medical conditions’ and her ‘ability to perform the duties of her position’.[22] The respondents refer to the letters dated 2 September 2010 and 25 October 2011 and emails dated 25 May 2011 and 6 October 2011, in which requests were made for Mrs Webb to supply information or provide authorisation for the respondents to obtain information from Dr Tan.
  8. [25]
    In relation to the suspension of Mrs Webb’s employment, Mrs Webb says that the correct comparator is whether the respondents treated her less favourably by suspending her and thereafter maintaining the suspension (of Mrs Webb’s employment), where they would not have suspended another employee in the same circumstances.[23] Mrs Webb also says the respondents have not validly exercised the power under s 137 of the PS Act to suspend her.
  9. [26]
    Mrs Webb alleges indirect discrimination in relation to her continuing suspension on the basis of the attribute of alleged mental health. Mrs Webb submits that the comparator group for the purposes of s 11(1)(a) of the QAD Act is an employed pharmacist who reports stress. The base group for the purposes of s 11(1)(b) of the QAD Act is an employed pharmacist suspended lawfully.[24]
  10. [27]
    There are further contentions of indirect discrimination in relation to the respondents’ decision to refuse Mrs Webb training on 13 February 2013 and 1 May 2013 by requiring her to undertake on-call duties and by directing Mrs Webb to not contact other employees of the Health Service.

The direction to attend an IME and the decision to suspend

  1. [28]
    It is not possible to identify one particular incident as being the catalyst for the complaint. Mrs Webb refers to several matters that she says ‘need to be considered in the broader context’ as outlined in her statement[25] and the notice of contentions.[26]
  2. [29]
    The statements tendered in this matter are lengthy and attach several pages of documents. Mrs Webb’s statement contains 198 paragraphs of evidence.[27]
  3. [30]
    The evidence shows Mrs Webb took her responsibilities as a pharmacist seriously and did not hesitate to raise issues about her workplace with senior managers. Mrs Webb complained in 2010 about other pharmacy staff; in particular dispensing of medications that later became public interest disclosures (PIDs).[28] Mrs Webb also complained about harassment and bullying by other staff in 2008, 2010, 2011 and three separate complaints in 2012.[29] Mrs Webb also voiced her concerns on a number of occasions about her participation in the rotation program that was established within the Nambour General Hospital and was to extend to the Caloundra Hospital.[30]
  4. [31]
    Mrs Webb says that she obtained a medical certificate from Dr Tan after speaking to Tracey Naylor, acting assistant director, on 6 July 2009 about the ‘need to rotate in the future around the District’.[31]
  5. [32]
    Dr Tan provided further medical certificates dated 4 August 2011, 13 October 2011 and 12 March 2012 in relation to the rotation program. Dr Tan stated in the certificates that it was ‘medically inadvisable’[32] that Mrs Webb be included in the work rotation.[33]
  6. [33]
    In the medical certificate dated 13 October 2011 Dr Tan states:

… I am certain that the proposed changes to [Mrs Webb] workplace and ongoing rehabilitation would lead to a relapse of her anxiety and depression.[34]

  1. [34]
    The respondents’ formal offer to rotate was made to Mrs Webb by letter dated 2 September 2010.[35] In the letter of offer the respondents identified a number of anticipated ‘benefits’ in relation to the rotation program. The respondents also acknowledged receipt of ‘medical advice’ previously provided by Mrs Webb (from Dr Tan). It is clear from reading the letter of offer that the respondents were also managing other workplace issues such as a complaint that had been made by Mrs Webb in June 2010. The respondents state in the letter of offer:

…[The District] is aware that you lodged a grievance on 3 June 2010 with a number of allegations relating to Ms Nayler’s conduct and behaviour towards you. I note that this grievance also raises allegations in relation to suspected official misconduct; as discussed, these matters are being addressed by the Pharmacy Board and the Queensland Health Complaints Resolution Manager….

…

Pharmacy Services have recently taken the decision to commence a job rotation plan to support the continuing professional development of pharmacy staff within the Southern Cluster...

The District anticipates a number of benefits arising from this proposal, specifically:

  • Separation between yourself and Ms Nayler to allow for development of a long-term plan to address interpersonal issues between you;
  • Increased professional support, working in an environment with significantly more staff than currently work at Nambour;
  • The opportunity to develop a structured professional development plan, in collaboration with a Team Leader, to support you to realise significant personal and professional benefit from the experience; and
  • Exposure to a different professional environment to broaden your experience within Pharmacy services.

…

This proposal is not intended to disadvantage you in your employment with Queensland Health but instead to offer you an opportunity to explore your professional development in a safe and supportive environment. To that end, the District is happy to discuss any amendments to the proposal which you feel would better suit your needs. I encourage you to discuss this proposal with your union representative...

The Employee Assistance Program offers a confidential counselling service to all employees of the Sunshine Coast-Wide Bay Health Service District and you are encouraged to contact them should you wish to discuss your situation. …[36]

  1. [35]
    In the letter of offer, the respondents refer to mediation being offered to Mrs Webb on a ‘number of occasions’ and state that it was offered to Mrs Webb as ‘an option to informally resolve the grievance’.[37]
  2. [36]
    Mrs Webb rejected the offer to mediate at the same time she wrote to the respondents rejecting the offer to rotate. In her letter dated 14 September 2010 Mrs Webb stated that she rejected the offer to mediate ‘for reasons clearly stated previously’.[38] In relation to the rotation program, Mrs Webb said she would ‘prefer’ to wait until the plan has been ‘fully developed’. Mrs Webb stated in her letter:

I reject the offer [to rotate]…I understand I am forgoing the opportunity to be the first person to be transferred under the new “job rotation plan”. If there is to be a plan for the rotation of staff, I prefer to wait until it is fully developed and made public, before considering such a move.[39]

  1. [37]
    Mrs Webb says that she had a discussion with Mr Dalgliesh, (Assistant Director of Pharmacy) in May 2011 whereby he (Mr Dalgliesh) stated to her that she would be relocated to Nambour ‘regardless of any medical certificate [she] had [provided]’.[40] Mr Dalgliesh denied saying this to Mrs Webb during cross-examination at the hearing.
  2. [38]
    Mr Dalgliesh says in his statement that he had a few ‘informal conversations’ with Mrs Webb about the ‘prospect’ of her rotating. Mr Dalgliesh says that that Mrs Webb told him she had some ‘personality clashes with certain employees’ working at Nambour however she did not say what the ‘clashes’ were. Mr Dalgliesh says that Mrs Webb ‘became emotional’ and he did not want to cause her ‘unnecessary distress’.[41]
  3. [39]
    I found Mr Dalgliesh to be honest and forthright in giving his evidence. He spoke openly about his interactions with Mrs Webb in the workplace. Mr Dalgliesh has written a file note attached to his statement detailing his ‘observations of staff interactions’ including discussions he had with Mrs Webb about ‘rotation’ in 2011.[42] I accept Mr Dalgliesh’s evidence about the discussions he had with Mrs Webb in 2011 including his evidence that he did not tell told her she would ‘rotate’ regardless of any medical certificate.
  4. [40]
    Mr Dalgliesh says that he sought the assistance of People and Culture (Human Resources) in June 2011; in particular the assistance of Ms Craig to organise a meeting with Mrs Webb to discuss the rotation program. Mr Dalgliesh states his affidavit sworn 10 October 2014:

In June 2011 I liaised with Ms Craig about organising a meeting with Ms Webb to discuss her concerns about rotating to Nambour. I was already finding Ms Webb difficult to deal with, and knew that the rotational roster was an inflammatory and emotive issue for her, so I sought support from the people and culture team.[43]

  1. [41]
    The evidence shows that Ms Craig attempted to address Mrs Webb’s concerns about ‘rotation’ by organising meetings with her that did not take place. The first offer to attend a meeting was made in an email dated 29 July 2011. Ms Craig referred to the ‘aim of the meeting’ in her email and stated: ‘to explore your concerns and determine what supports can be put in place to facilitate your working in Nambour’.[44]
  2. [42]
    Ms Craig says in her affidavit that the purpose of the meeting was to understand Mrs Webb’s concerns about rotation. Ms Craig states:

The purpose of the meeting was for Brett [Dalgliesh] and I to understand what Ms Webb’s concerns were about the rotations to Nambour and whether the Health Service could accommodate or support her in some way to facilitate her working at Nambour.[45]

  1. [43]
    Mrs Webb says she did not attend the meeting with the respondents on 29 July 2011 because she had just returned from leave following the death of a close family member. Mrs Webb says Ms Craig ‘demanded a meeting and dismissed [her] feelings’. Mrs Webb states in her affidavit:

I was contacted by Ms Lois Craig (People and Culture) via telephone, who demanded a meeting and dismissed my feelings regarding the death of my nephew, by stating “these things happen everyday”. The death of my nephew had been completely unexpected, and he was particularly close to me. I found Ms Craig’s statement to be offensive, insensitive and inappropriate.[46]

  1. [44]
    Ms Craig was not required for cross-examination at the hearing. It is her evidence that she did not ‘demand’ a meeting when she spoke to Mrs Webb by telephone.[47] Ms Craig states in her affidavit that she attempted to organise with Mrs Webb further meetings to discuss her concerns about rotation that did not happen.[48] Ms Craig also sent an email to Mrs Webb on 6 October 2011 requesting she provide an updated medical certificate. In her email Ms Craig foreshadows a request to speak to Dr Tan. Ms Craig also refers to the respondents’ leave policy.[49] Ms Craig states in her email dated 6 October 2011:

Some time has now passed since the presentation of your medical certificate (dated 4 August 2011) in response to the District’s request for you to undertake your Pharmacist responsibilities at the Nambour Hospital Pharmacy, for the purposes of development and achieving uniformity across the District, with a view to participating in a District-wide roster in the future. I note that approximately 4 weeks notice would be provided of this request, with the proposed time frames, and also that private mileage and travel are provided for. Caloundra remains your usual workplace.

The medical certificate presented is relevant to your employment, and Queensland Health’s leave policy refers to the requirements that a medical certificate needs to (1) identify the nature of the medical condition and (2) the period or approximate period for which sick leave is necessary.

Could you please provide an updated medical certificate to your Assistant Director, Pharmacy, Caloundra, by Thursday 20 October 2011?[50]

  1. [45]
    Ms Craig says that the requests made to obtain information were due to a ‘number of concerns’ about the medical certificates provided by Mrs Webb. Ms Craig says in her affidavit:

I had a number of concerns with the medical certificate. Firstly, it did not tell me what Ms Webb’s ‘medical issues’ were. Secondly, the certificate did not provide any information about how long Dr Tan considered Ms Webb’s medical issues would affect her ability to rotate to Nambour. Thirdly, the certificate suggested Ms Webb’s medical issues were work related but it did not tell me how or whether any adjustments or accommodations would be made to Ms Webb’s work arrangements to avoid risk of injury to her.[51]

  1. [46]
    Ms Craig gives evidence about the further medical certificate provide by Mrs Webb dated 13 October 2011; in particular the reference in the medical certificate (of Dr Tan) to ‘extra stress of travelling to other district hospital pharmacies’.[52] Ms Craig says that she thought the Health Service could support Mrs Webb and she wanted to ‘exhaust’ all ‘reasonable’ adjustments to support her in her participating in the rotation program. Ms Craig said:

…If the travel was the issue for Ms Webb, I thought the Health Service could have possibly supported [Ms Webb] by, for example, arranging for her to travel by taxi, or to have a designated car park for her at Nambour General Hospital if she was concerned about walking too far to her vehicle. I wanted to exhaust all possible reasonable adjustments in order to facilitate her participation in the rotational roster program but the further certificate from Dr Tan did not assist me in any way.[53]

  1. [47]
    Mrs Webb says in her statement that the medical certificates were obtained by her (from Dr Tan) not to ‘obtain leave’ but as stated by her ‘to advise that rotating to Nambour was not recommended’.[54] Mrs Webb says she had ‘just completed’ a Post-Graduate Masters course that ‘demonstrated’ her ability to ‘perform at a high level of competence’. Mrs Webb states:

Simply put, the Respondents failed to understand that any anxiety and depression referred to in the medical certificates would only result if I were to rotate to Nambour. The issue was the pressure placed on me to rotate to Nambour and the effect of actually rotating to Nambour. I believe there would have been no concerns on my part if the Respondent had taken my General Practitioner’s recommendations and followed his advice by not requiring me to rotate to Nambour.[55]

  1. [48]
    Mrs Webb says that any ‘anxiety and depression’ would ‘only result’ if she were required to ‘rotate’.[56] There is evidence before me that there were, however, other workplace issues raised by Mrs Webb and her union representative that were communicated to the respondents in early October 2011, that were not just related to rotation.
  2. [49]
    Mrs Webb raised concerns on 13 October 2011, after receiving Ms Craig’s email (dated 6 October 2011), about bullying and harassment in relation to ‘rotation’ to Alyson Reynolds (Complaints Resolution).[57] In her letter Mrs Webb refers to ‘stress’ that may ‘impact’ not just herself but also other employees required to work in Nambour (on rotation). Mrs Webb refers to ‘bullying’ directed to other employees and says in the letter:

…

Furthermore this bullying has not only been directed to me but also to other co-workers. The result is a dysfunctional and clinically dangerous workplace with many dispensing errors being made. The stress impacted upon these employees, including myself, to work in Nambour, has the potential for a major clinical mistakes. For this reason I am forwarding a copy of the above allegations to the Workplace Health and Safety Unit.[58]

  1. [50]
    Mr Sallaway, union representative for Mrs Webb, also refers to other ‘significant’ issues in relation to ‘rotation’ in his email dated 22 October 2011 sent to the respondents (Ms Craig). Mr Sallaway states in the email:

At this stage there are more significant issues than our members medical certificate that prevent her [Ms Webb] from working at Nambour Pharmacy that QHealth must consider first.[59]

  1. [51]
    The respondents’ response sent to Mr Sallaway by letter dated 28 October 2011 is important because in the letter the respondents explain why further information is required about Mrs Webb’s medical condition.[60] Ms Craig drafted the letter and says (in the letter) that when no information is provided it is difficult to ‘determine’ how to ‘manage the situation’.[61] Ms Craig also refers to the respondents’ duty of care obligations and says they would like to understand Mrs Webb condition.[62] Ms Craig states:

…

Where an employee submits a medical certificate which indicates they are unable to perform an aspect of their role, or that certain restrictions apply, and no information is provided regarding the medical condition, it makes it very difficult for the Sunshine Coast Health Service District (the District) to determine how to best manage the situation and ensure the employee is not placed at risk.

…

Understandably given the presentation of the medical certificate, the District needs to ensure it meets our duty of care obligations. As has been acknowledged in our letter of 25 October 2011, the District would like to better understand the nature and extent of Ms Webb’s medical condition, to determine our best course of action for managing and supporting her situation. The District requires a response to this letter by Friday 4 November 2011.[63]

  1. [52]
    Mrs Webb states in her affidavit that ‘it is well known and documented in earlier medical certificates (dating back to 2008)’[64] that she was recovering from breast cancer and had a heart condition. This is relevant to what was known by the respondent at the time of making the request for medical information.
  2. [53]
    The evidence of Ms Craig (People and Culture) is that she did not know about Mrs Webb’s previous medical history at the time she prepared the letters to Mrs Webb (in October 2011) requesting her authority to obtain further information. Ms Craig states in her affidavit that even if she had known about ‘these medical conditions’ she would still have requested Mrs Webb’s authorisation to obtain further information.[65] Ms Craig states:

In October 2011 when I prepared the letter to Ms Webb requesting her authorisation to obtain further information from Dr Tan I was not aware that she had these specific medical conditions and there was nothing documented in the medical certificates from Dr Tan that I had seen about either condition. Even if I had known about these medical conditions at that time I still would have requested her authorisation to obtain further information from Dr Tan about how these conditions prevented Ms Webb from working at Nambour and whether any reasonable adjustments could be made to facilitate her working at Nambour.[66]

  1. [54]
    I accept the evidence of Ms Craig that there were attempts made by her to discuss with Mrs Webb her concerns ‘about rotation’. I also accept Ms Craig’s evidence that she requested information be provided to ‘better understand the nature and extent of Ms Webb’s medical condition’.[67]

Request to Attend an IME

  1. [55]
    Mr Hegarty gives evidence about why he requested Mrs Webb attend an IME. Mr Hegarty says in his affidavit that he was satisfied that an IME was required so that the Health Service could ‘properly carry out its duty’ to provide Mrs Webb with a safe place of work.[68] Mr Hegarty says in his affidavit:

I was satisfied that an [IME] was required so that the Health Service could properly carry out its duty to provide Ms Webb with a safe place of work. Dr Tan’s medical certificates of 4 August 2011 and 13 October 2011 did not elaborate on the nature or extent of Ms Webb’s ‘significant stress and medical issues’. They also did not inform me as to the likely duration of Ms Webb’s ‘significant stress and medical issues’ or their impact on her ability to perform her role and participate in the roster.

I was also satisfied that an [IME] was required to properly identify any potential for a major clinical mistake as suggested by Ms Webb in her complaint of 13 October 2011. Ms Webb did not elaborate on this issue in her complaint. I considered that it would have been negligent of the Health Service not to properly investigate this risk considering the obvious high duty of care it owes to its patients as well as its staff.[69]

  1. [56]
    Mr Hegarty when questioned at the hearing about whether he took certain steps because of a perception about mental health problems concerning Mrs Webb stated that he had a concern about ‘risk’. Mr Hegarty when further questioned about whether any ‘risk’ that was perceived was related to mental health issues, said that it was based on ‘anxiety and risk of incident’.
  2. [57]
    I accept Mr Hegarty’s evidence about why he took ‘certain steps’ in relation to Mrs Webb’s workplace issues. I accept that Mr Hegarty had concerns about her safety in the workplace. Mr Hegarty sent letters to Mrs Webb about the complaints made by her in relation to workplace bullying and harassment. It is clear from reading the letters that he has identified the concerns held by the respondents in relation to Mrs Webb’s safety in the workplace by referring to the respondents’ ‘duty of care’ obligations.[70]
  3. [58]
    In the letter dated 8 February 2012 Mr Hegarty responded to Mrs Webb’s complaints (made on 13 October 2011) and acknowledged the respondents’ ‘duty of care’.[71] Mr Hegarty stated:

In accordance with occupational health and safety requirements, the District has a duty of care to ensure employees are not placed at risk in the workplace.[72]

  1. [59]
    In his letter dated 9 March 2012 Mr Hegarty refers to the respondents’ ‘duty of care’ and ‘concerns’ raised by Mrs Webb’s husband (Mr Webb) about Mrs Webb’s ‘well-being’ as a result of workplace issues.[73] Mr Hegarty states in the letter that there are medical issues ‘not just related to the rotations’.[74] Mr Hegarty also ‘directed’ Mrs Webb to attend an IME with Dr Larder under s 19 of the WH&S Act and made the decision to place Mrs Webb on alternate duties. Mr Hegarty stated:

1. Direction to attend independent medical assessment

I believe the best way to obtain the medical information is via an independent medical assessment. Therefore I am directing you to attend an independent medical assessment. Please be aware this direction is a lawful direction under section 19 of the Work Health and Safety Act 2011 (Qld).

Please be advised if you do not attend this appointment without reasonable excuse you may be liable for disciplinary action.[75]

…

2. Alternative duties

…

Your alternative duties will commence from the date of this letter and remain in place until you have attended the independent medical assessment and I am satisfied you are not at risk of injury or illness at work.

…

Please be advised this is a lawful direction. If you fail to comply with this direction without reasonable excuse you may be liable for disciplinary action.[76]

  1. [60]
    In his letter dated 23 March 2012 Mr Hegarty refers to the ‘duty of care’ owed to Mrs Webb and ‘concerns’ for her ‘welfare’.[77] Mr Hegarty refers to the direction to attend an IME and the decision to place Mrs Webb on alternative duties that is to ‘remain in place’ until Mrs Webb attends the IME and the District is ‘satisfied’ that Mrs Webb is not ‘at risk of injury or illness to herself or others at work’. Mr Hegarty states in the letter:

I advise that this action is being taken in order to address the District’s concerns for Mrs Webb’s welfare. The District has been made aware from a number of sources, including Mrs Webb herself and her treating Doctor that her current condition may impact on her ability to safely discharge the duties of her substantive position. Of particular concern was a statement made by Mrs Webb in a letter to the District’s Complaints Resolution Manager, dated 13 October 2011 Ms Webb advised the stress she is experiencing ‘has the potential for a major clinical mistake’.[78]

  1. [61]
    In the letter dated 18 September 2012, Mr Hegarty referred to the IME (rescheduled appointment) and confirmed that the Mrs Webb’s transfer to alternative duties ‘remains in place’.[79]

The Decision to Suspend

  1. [62]
    The decision to suspend Mrs Webb from her employment appears in Mr Hegarty’s letter dated 11 December 2012. In the letter Mr Hegarty refers to the allegations of bullying and harassment in the workplace, ‘concerns’ raised by Mrs Webb in relation to ‘stress’ in the workplace and concerns raised by Mrs Webb’s husband about ‘issues’ in the workplace.[80] Mr Hegarty also refers to the direction to attend an IME in the letter dated 18 September 2012 and states the direction ‘still stands’. Mr Hegarty states that he has ‘decided’ to ‘suspend’ Mrs Webb ‘from duty on full pay’. In relation to the ‘suspension’ Mr Hegarty states in the letter:

4.  Suspension

Given the unresolved issues and the concerns that still exist for your wellbeing I have given consideration to whether you should return to the workplace at the end of your long service leave.

Section 137(1) of the Public Service Act 2008 (the Act) provides an employee may be suspended from duty if the chief executive reasonably believes the proper and efficient management of the department might be prejudiced if the employee is not suspended. Having considered the information available to me I have decided to suspend you from duty on full pay, effective 31 December 2012. This suspension is in accordance with section 137 of the Act.

Your suspension will remain in place until the outcome of your independent medical examination has been considered or unless otherwise determined. I will review your suspension regularly.[81]

  1. [63]
    Mr Hegarty in his affidavit says that the decision to suspend Mrs Webb on full pay was based on his responsibilities as a chief executive and the duty of care to Mrs Webb and staff. Mr Hegarty states:

My decision to suspend Ms Webb on full pay was based on my responsibility as chief executive to ensure that the health service complied with its duty of care to Ms Webb and our employees.

Ms Craig’s email and the explanatory information in the document coversheet noted that on 7 December 2012 Workplace Services Unit [WSU] provided verbal support to suspend Ms Webb. I particularly relied on this support from the WSU in making my decision to suspend Ms Webb.

Employee suspension is not a frequent occurrence within the Health Service. Of approximately 4,800 employees in the Health Service, on average I believe less than five would be suspended per year. I would not make a decision to suspend an employee without concurring advice from the WSU that such a course was appropriate … The fact that WSU supported the decision to suspend Ms Webb was central to my decision.[82]

  1. [64]
    I accept Mr Hegarty’s evidence that his decision to suspend Mrs Webb from duty was based on his responsibilities as a Chief Executive and the ‘duty of care’ to Mrs Webb and staff in the workplace.
  2. [65]
    In a further letter dated 14 December 2012 Mr Hegarty responded to Mrs Webb’s complaints made to the CMC (on 23 May 2012) that were referred back to the respondents to manage.[83] Mr Hegarty again refers to the ‘concerns’ raised by Mr Webb about Mrs Webb’s well-being in the workplace. Mr Hegarty states:

…A conversation between The Health Service and your Union Representative in which the Health Service was advised that your husband, Mr Lewis Webb, has expressed concerns for your well-being as a result of issues in the workplace.[84]

  1. [66]
    Mr Hegarty also gave evidence about the concerns raised by other staff in relation to working with Mrs Webb; in particular ‘reported distress’ from employees about Mrs Webb contacting them. Mr Hegarty says he considered alternative duties would not be appropriate for Mrs Webb on the basis of the ‘reported concerns’.[85] Mr Hegarty states in his affidavit:

As stated in my letter [11 December 2012], I had considered all alternative duties that may have been available for Ms Webb to perform but I determined that it would not be appropriate for Ms Webb to perform alternative duties on the basis of the reported concerns from staff in relation to her observed behaviour.

The ‘observed behaviour’ was the reported distress from employees about Ms Webb contacting them to provide her with statements, and generally about her return to the workplace as per Ms Craig’s email [dated 7 December 2012]…[86]

  1. [67]
    Mr Hegarty attaches to his affidavit the confidential email from Ms Craig (to Lynette Thompson). The email dated 7 November 2012 refers to various issues including information being received about Mrs Webb contacting other employees at Caloundra and Gympie asking for information and references. The email says the Workplace Services Unity (WSU) have agreed that the SCH&HS (the first respondent) can suspend Mrs Webb with pay. In relation to the concerns of staff, the email states:

Alyson Reynolds has received information that Ms Webb has been contacting other employee/s at Caloundra and Gympie asking for information/references; and employees are concerned regarding refusing that request and generally her impending return;[87]

  1. [68]
    Mr Hegarty was cross-examined at the hearing about the ‘concerns’ held by him in relation to Mrs Webb and other staff. Mr Hegarty said he previously had confidential discussions at a senior level with staff about concerns in relation to working with Mrs Webb. I accept the evidence given by Mr Hegarty about the reported concerns of Mrs Webb from other staff. Some of these concerns are recorded in the email dated 7 November 2012 prepared by Ms Craig.

The IME with Dr Larder

  1. [69]
    Ms Webb attended an IME with Dr Larder on 10 January 2013 and a follow-up appointment on 1 February 2013. Dr Larder prepared a report dated 15 February 2013.[88]
  2. [70]
    Mr Hegarty explains the reasons why he did not return Mrs Webb to her substantive position after receiving Dr Larder’s report. Mr Hegarty says that he was not satisfied it would be ‘safe to do so’ and further enquiries had to be made.[89] Mr Hegarty states in his affidavit:

I could not return Ms Webb to her substantive position on the basis of Dr Larder’s report because I was not satisfied it would be safe to do so. The reason why I formed this view was because for almost all of the questions that Dr Larder’s independent expert opinion was sought, he deferred to Dr Tan’s opinion and recommended the Health Service liaise with Dr Tan. I therefore decided that until further enquiries had been made with Dr Tan as had been recommended by Dr Larder, and the Health Service had considered the information obtained as a result of those enquiries, there was an unreasonable risk to Ms Webb’s health and safety if I allowed her to immediately return to her substantive position with the pharmacy department.[90]

  1. [71]
    The respondents received a further medical certificate from Dr Tan dated 21 March 2013. Dr Tan stated that Mrs Webb was ‘fit’ to return to her substantive position.[91]
  2. [72]
    Mr Hegarty explains the reason why he ‘could not’ return Mrs Webb to her employment after receiving Dr Tan’s medical certificate. Mr Hegarty says he needed further information to ensure Mrs Webb’s safe return to the workplace. Mr Hegarty states:

I could not return Ms Webb to her substantive position on the basis of the one line medical clearance from Dr Tan. Dr Larder has not given Ms Webb a full clearance – his opinion was that Ms Webb was able to resume ‘some of the duties of her substantive position’ and that an appropriate Health Service representatives should liaise with Dr Tan about what those duties are and plan a resumption. I was not prepared to lift Ms Webb’s suspension until we had the further information we required to ensure Ms Webb’s safe return to the workplace.[92]

  1. [73]
    Mr Hegarty refers to the other concerns related to Mrs Webb’s workplace in relation to her fellow staff members which were ‘reported’ before the medical certificate of Dr Tan (dated 21 March 2013) was received.[93] This evidence is relevant to the issue of whether Mrs Webb was able to resume some of the duties of her substantive position and therefore whether the ongoing suspension was reasonable. Mr Hegarty states in his affidavit:

During Ms Webb’s absence from the workplace and before the further advice from Dr Tan was received, there were reported significant concerns among her fellow staff members regarding her return to the Pharmacy Department. The reported issues indicated there may be broader team issues and dynamics within the Pharmacy Department which may:

  1. (a)
    make it unsafe for Ms Webb to return to the Pharmacy Department; and/or
  1. (b)
    make it unsafe for Ms Webb’s fellow staff members if she returns to the Pharmacy Department; and/or
  1. (c)
    impact on the SCHH’s ability to provide functional pharmacy services.[94]
  1. [74]
    I am satisfied that there was evidence of workplace concerns; in particular reported concerns by other staff about Mrs Webb returning to the workplace in December 2012. These ‘concerns’ were highlighted in the email to Ms Craig by Alyson Reynolds and this was communicated to Mr Hegarty.[95] I accept Mr Hegarty’s evidence that he had concerns about whether it was safe for Mrs Webb to resume some of her duties after receiving Dr Larder’s report and Dr Tan’s certificate. The concerns held were reasonable given that there were unresolved workplace issues in relation to complaints that had been made by Mrs Webb personally and by other staff.
  2. [75]
    I have also considered Mrs Webb’s written submissions in relation to the legality of the suspension. Mrs Webb contends that the suspension was ‘illegal’ because it did not comply with the requirements of s 137 of the PS Act.[96] This contention is premised on the basis that any notice or purported notice given under the PS Act must be compliant; in particular for the purposes of s 137 there must be notice given of when the suspension starts and ends. Mrs Webb contends that the notice or purported notice given by Mr Hegarty in his letter dated 11 December 2012 cannot be compliant with the PS Act because it does not provide ‘an end date’.
  3. [76]
    The respondents contend that the basis for the suspension was the ‘safety concerns’ held by the respondents relating to Mrs Webb and others. In respect of the ongoing suspension, the respondents contend that this was the result of ‘concerns in respect of [Mrs Webb’s] safety and that of others’.[97]
  4. [77]
    Mr Hegarty was cross-examined at the hearing about the letter dated 11 December 2012. Mr Hegarty said that the intention of the letter dated 11 December 2012 was to ‘receive the report of Dr Larder’. Mr Hegarty stated that there was no further notice of suspension. Mr Hegarty received the report of Dr Larder on 18 February 2013 and stated that the report was ‘not definitive in nature’. Mr Hegarty stated that after he received Dr Larder’s report he was ‘still considering it’ and sent a further letter to Mrs Webb dated 28 February 2013.
  5. [78]
    Mr Hegarty accepted during cross-examination that the wording of the letter dated 11 December 2012 for the purposes of s 137 of the PS Act did not contain a cessation date but said that it did however state ‘unless otherwise determined’. Mr Hegarty stated that he relied on advice given in relation to the wording of the letter; in particular he stated that he relied on the advice ‘at the time’ of the workplace advisory service to ‘validate action taken’. When questioned at the hearing about ‘anything else’ (he relied on) to ‘justify’ the ongoing suspension, Mr Hegarty stated: ‘only our duty of care’.
  6. [79]
    I accept Mr Hegarty’s evidence about the reasons why he took certain action in relation to Mrs Webb including directing her to attend an IME and suspending her employment. The evidence shows that Mr Hegarty raised the issue of ‘duty of care’ and ‘concern’ about Mrs Webb’s well-being in the workplace in various correspondence; in particular letters dated 8 February 2012, 9 March 2012, 23 March 2012, 11 December 2012 and 14 December 2012. Mr Hegarty also addressed other issues in his letters concerning the respondents’ request for medical information, the request to attend an IME and other action taken including placing Mrs Webb on alternative duties and suspending her from her employment.
  7. [80]
    In relation to Mrs Webb’s continuing suspension from her employment on full pay, I accept the evidence of Mr Hegarty that there were other concerns about the safety of staff working with Mrs Webb that were communicated to the respondents in November 2012. I accept Mr Hegarty’s evidence that he was not prepared to lift the suspension until the respondents had received further information to ensure ‘Mrs Webb’s safe return to the workplace’.[98]

Has there been a breach of the QAD Act?

  1. [81]
    The evidence shows there is more than one reason why the respondents required Mrs Webb to be independently examined and made the decision to suspend her employment on full pay. That is, a concern about Mrs Webb’s safety in the workplace. The ‘concerns’ about Mrs Webb’s safety in the workplace were not just related to the medical issues identified by Dr Tan in various medical certificates that were obtained by Mrs Webb in relation to her participation in the rotation program. There were concerns held by the respondents about Mrs Webb’s safety in the workplace and the safety of other staff working with Mrs Webb in the workplace.
  2. [82]
    In relation to the direction to attend an IME, Mrs Webb says the respondents have not validly exercised their power under s 175 of the PS Act to require her to attend an IME. Section 175 of the PS Act gives the chief executive the power to appoint a doctor to examine an employee and to give a written report on the examination and require the employee to submit to the medical examination.
  3. [83]
    I am referred to the decision State of Queensland v Attrill & Anor.[99] In Attrill’s case the Court of Appeal considered the question of whether the exercise of the power to require an employee to undergo an IME was discriminatory. The Court of Appeal considered this question in the context of whether s 175 of the PS Act gives the chief executive the power to ‘discriminate’ against an employee on the basis of impairment.
  4. [84]
    In Attrill’s case, the Court of Appeal referred to the decision of Goldberg J in Thompson v IGT (Australia) Pty Ltd[100] in relation to the common law obligations of an employee to ‘obey the lawful and reasonable directions of the employer’ and whether it was ‘reasonable’ to direct an employee to attend an IME to determine his or her fitness for duties.[101]
  5. [85]
    In Attrill’s case the Court of Appeal found that the appellant’s history of psychiatric illness was known to the respondents and notwithstanding the power to require an employee to attend an IME under s 175 of the PS Act, if the requirement is discriminatory then there is no exemption under the QAD Act. The Court of Appeal said:

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.[102]

  1. [86]
    In this case the ‘true nature’ of Mrs Webb’s medical condition referred to in the medical certificates completed by Dr Tan was not known by the respondents. Mrs Webb submitted medical certificates about her inability to participate in a rotation program. It is Ms Craig’s evidence that she had a ‘number of concerns’ about the medical certificates and the certificates did not ‘tell her’ what the ‘medical issues’ were.[103]
  2. [87]
    There is also evidence before me that there were other workplace concerns held by the respondents about Mrs Webb that were not just related to her participation in the Nambour rotation program. The concerns related to complaints made by Mrs Webb about bullying and harassment by other staff and an issue raised by Mrs Webb herself that was identified by her as having the ‘potential for a major clinical mistake’.[104] There were also concerns held by the respondents about the safety of other staff in the workplace.
  3. [88]
    I am not satisfied that a person in the same circumstances as Mrs Webb who had submitted a medical certificate as to his or her inability to be involved in the rotation program would not be treated differently by the respondents. The issue of whether the respondents lawfully exercised powers under the PS Act is not the test to be applied under the QAD Act. I am not satisfied that there has been a breach of the QAD Act in relation to the respondents’ direction to attend an IME and the decision to suspend Mrs Webb from employment; and the decision to continue the suspension.
  4. [89]
    I have also considered the evidence before me in relation to the respondents’ request that Mrs Webb participate in the rotation program. I am satisfied that this request was not an unreasonable request given Mrs Webb’s experience as a pharmacist and her terms of appointment. The respondents identified benefits in relation to ‘rotation’ in the letter of offer to Mrs Webb dated 2 September 2010. Ms Craig in her affidavit refers to Mrs Webb’s signed letter of appointment and terms and conditions of employment. The terms refer to a possible requirement to work ‘in any location within the Sunshine Coast Health Service District’.[105]
  5. [90]
    I have also considered Mrs Webb’s contention that the respondents by letters dated 2 September 2010, 25 May 2011, 25 October 2011 and email dated 6 October 2011, made requests to Mrs Webb to supply information or provide authorisation for the respondents to obtain information in breach of s 124 of the QAD Act. It is a defence under s 124(3) of the QAD Act if the ‘respondent provides, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination’.

The request to supply information

  1. [91]
    I am satisfied based on the evidence before me that there has been no breach of s 124 of the QAD Act and that the requests were otherwise reasonably necessary for the respondents to understand the nature of Mrs Webb’s medical condition in order to support her in her workplace duties including the Nambour rotation program.
  2. [92]
    The requests made by People and Culture for information; in particular by letter dated 2 September 2010, clearly state that the respondents want to ‘understand the medical barriers’ in relation to the rotation to Nambour and how the ‘[barriers] might be safely overcome’.[106] Again in the letter dated 25 October 2011 the respondents refer to the District wanting to ‘understand the nature and extent of [Mrs Webb’s] medical condition and the affect it may have on [her] ability to perform the duties of [her] position’. The letter also refers to the medical certificates not providing an ‘approximate timeframe for which the certificate covers’.[107]
  3. [93]
    The contentions in relation to direct discrimination in directing Mrs Webb to attend an IME have not been established. The contentions of direct and indirect discrimination in relation to the decision to suspend Mrs Webb from her employment on full pay and to continue the suspension (on full pay) have not been established.

Show cause notice in relation to registration as a pharmacist

  1. [94]
    The respondents by letter dated 15 January 2013 required Mrs Webb to ‘show cause’ why her employment should not be terminated in circumstances where her registration was shown as ‘lapsed’ on the Australian Health Practitioner Regulation Agency (AHPRA) website.[108]
  2. [95]
    The evidence of Ms Ma (Human Resources Business Partner) is that Health Service employees are responsible for renewing their registration and that it is ‘usual for line managers’ to check the registration status of their team and to ‘follow up’ with anyone who has not applied to renew their registration before expiry.[109]
  3. [96]
    Ms Ma was not required for cross-examination. She says in her affidavit that she checked the status of Mrs Webb’s registration that appeared on the AHPRA website on 9 January 2013 as having expired on 30 November 2012. A copy of the relevant extract from the AHPRA website is attached to Ms Ma’s affidavit. It is Ms Ma’s evidence that the letter sent by the respondents was a ‘please explain’ letter.
  4. [97]
    I accept Ms Ma’s evidence that the Respondents’ letter dated 15 January 2013 sent to Mrs Webb was to ‘follow up’ her registration as a pharmacist that was shown on the AHPRA website as having expired on 30 November 2012. The respondents clearly state in their letter dated 15 January 2013 the words ‘opportunity to respond’ and invite Mrs Webb to respond in writing.[110]
  5. [98]
    I accept Ms Ma’s evidence that the Health Service was satisfied with Mrs Webb’s response that she had submitted her registration renewal application within the required timeframe and that AHPRA had been delayed in processing it. The respondents state in the letter dated 25 January 2013:

Based on the information provided, I am satisfied that you have submitted a renewal application and this is being processed by the [AHPRA]. I note that under national law you are able to practice while your renewal application is being processed.[111]

  1. [99]
    I am not satisfied that the reason for sending the letter dated 15 January 2013 was on the basis of Mrs Webb’s presumed attribute of mental health. The contention is not substantiated.

Access to clinical websites

  1. [100]
    Mrs Webb says she could not access clinical network websites because of a change to her log-in details in about April 2013.[112]
  2. [101]
    Mrs Webb was not at work at the time there was a change to the clinical network websites and Mrs Webb says in her statement that the procedure had changed and details for updating the email account had not been provided to her. It was therefore necessary for Mrs Webb to obtain a letter from People and Culture to obtain certification that she was a Queensland Health employee.
  3. [102]
    I accept the evidence of Ms Ma that the issue of not being able to access clinical websites between 11 December 2012 and 12 April 2013 had only been brought to her attention in or around August 2013, after she read Mrs Webb’s complaint filed in the Anti-Discrimination Commission of Queensland. Ms Ma says in her affidavit that the People and Culture team did not have ‘any concerns’ about Mrs Webb having access to the clinical network websites and would have provided correspondence confirming her employment (with Queensland Health) to Mrs Webb had a request been made.
  4. [103]
    I accept the evidence of Ms Ma that had the issue been raised as a concern it would have been addressed by the People and Culture team. I am not satisfied that the contentions in relation to direct discrimination in failing to access the clinical websites have been substantiated.

Requirement for permission to attend education sessions – 1 February 2013, 13 February 2013 and 1 May 2013

  1. [104]
    Mrs Webb alleges that the respondents directly discriminated against her in requiring her to seek approval to attend education sessions where they would not have required another employee to do so.
  2. [105]
    Mrs Webb also alleges indirect discrimination in relation to refusing her training on the basis of the attribute of alleged mental health.[113]
  3. [106]
    The evidence shows that on 18 January 2013 Mrs Webb requested permission to attend an education session on 1 February 2013 and this request was refused by the respondents (by Ms Ma) by letter dated 25 January 2013.[114]
  4. [107]
    A further request was made on 11 February 2013 by Mrs Webb to attend training on 13 February 2013. This request was also refused by the respondents by letter dated 12 February 2013. The respondents (Ms Kirwan) state in the letter that Mrs Webb is suspended with pay and refer to their ‘duty of care’ in relation to Mrs Webb’s safety and wellbeing. The respondents state any request to attend training or educational programs while Mrs Webb is suspended will not be approved until they have an ‘understanding’ of Mrs Webb’s abilities. Ms Kirwan states in the letter:

…At this stage Mrs Webb is suspended with pay and the SCHHS have a duty of care to ensure her safety and wellbeing. Any request to attend training or educational programs while Mrs Webb is suspended on pay will not be approved until we have a full understanding of her abilities, including her health and well-being (physically and mentally).[115]

  1. [108]
    Mr Hegarty also wrote to Mrs Webb’s solicitors by letter dated 13 February 2013 referring to ‘concerns’ regarding Mrs Webb’s wellbeing in relation to attending training on 13 February 2013. Mr Hegarty gives reasons for the refusal to attend training in his affidavit. Mr Hegarty says that he had ‘concerns’ about Mrs Webb’s wellbeing and the wellbeing of other pharmacy staff who were also attending the session.[116] Mr Hegarty states in his affidavit:

53. My concerns for Mrs Webb’s wellbeing and the wellbeing of other Pharmacy Department staff from the Caloundra Hospital who were also attending the education session had not been resolved and I was not prepared to in effect lift the suspension for one day. I was not prepared to create an opportunity for interaction between Mrs Webb and other pharmacy staff attending the education session. This would have been contradictory to the reason that I had suspended her from duty.

54. Mrs Webb has made other requests to attend education sessions, most of which have been approved by the Health Service. The Health Service has not responded with a blanket ‘no’ to every request. Each request is assessed according to the likelihood of Mrs Webb coming into contact with staff from the Caloundra Hospital Pharmacy Department. She has been permitted to attend sessions at which no other pharmacists from the Health Service have attended.[117]

  1. [109]
    I am satisfied that the respondents’ reasons for refusing Mrs Webb’s requests to attend education sessions were on the basis of safety concerns held by the respondents.
  2. [110]
    The evidence before me shows and I have made findings that there were unresolved issues in relation to Mrs Webb’s workplace including complaints made by Mrs Webb about staff and concerns raised by other staff. Ms Ma in her affidavit supports Mr Hegarty’s evidence about the reason why Mrs Webb was refused a request to attend training on 1 May 2013. Ms Ma states that the respondents were ‘still considering her wellbeing and ability to meet the requirements for the role’.[118]
  3. [111]
    Mr Hegarty’s evidence that each request to attend training was considered according to the ‘likelihood’ of Mrs Webb having contact with other staff is also supported by Ms Ma. Ms Ma states in her affidavit that the respondents approved Mrs Webb’s attendance at the asthma symposium and refers to the medical certificate of Dr Tan that indicated there were ‘no concerns’ about Mrs Webb travelling to Brisbane to attend the session.[119] Ms Ma states in her affidavit that the Health Service approved Mrs Webb’s request to attend the Asthma Symposium ‘on the basis that no one else from Caloundra Hospital Pharmacy Department was attending’.[120] I accept Ms Ma’s evidence.
  4. [112]
    I am not satisfied that the allegations of direct discrimination and indirect discrimination are established. I am satisfied that there were concerns held by the respondents about Mrs Webb’s safety in relation to her attending training and that the ongoing requirement to seek permission to attend training sessions was related to concerns about her safety in the workplace and not because of her perceived mental health. The contentions of direct and indirect discrimination are not established.

Failure to respond to leave request in a reasonable timeframe

  1. [113]
    Mrs Webb contends her leave request was not responded to within the five day period as set out in the respondents’ policy.
  2. [114]
    In the affidavits of Ms Ma and Mr Dalgliesh there is an explanation given as to the reason why the leave request was not approved within five working days that is a delay in communication between Mr Dalgliesh and Ms Ma about processing the request. Ms Ma states in her affidavit that most leave requests are approved within five working days but not all are. Ms Ma refers to ‘unit organisational requirements and/or the timing of the requested leave’. Ms Ma further states in her affidavit that the delay ‘in this instance was not intentional or linked to Ms Webb’s medical condition’.[121] Ms Ma also states in her affidavit that Mr Dalgliesh told her that he was ‘happy to approve Mrs Webb’s leave request’.[122]
  3. [115]
    I accept the evidence before me that there was a delay in communications between Mr Dalgliesh and Ms Ma. I am not satisfied the contention as it relates to direct discrimination has been established and that the delay in processing the leave request was related to Mrs Webb’s perceived mental health. The contention has not been established.

Amending work hours, locations and work conditions

  1. [116]
    I am not satisfied for the purposes of s 11 of the QAD Act that the respondents have imposed a term by requiring Mrs Webb to undertake on-call duties on the basis of the attribute of alleged mental health.
  2. [117]
    There was no term imposed. The respondents refer to the ‘on call roster’ in the letter dated 12 April 2013 in the context of asking Dr Tan’s opinion about Mrs Webb’s ability to participate. The respondents state in the letter:

Is Ms Webb able to participate in the Health Service pharmacy on-call roster which may require her to present to Nambour Hospital or Gympie Hospital?

It would be appreciated if you would forward this question to Dr Tan for his consideration.[123]

  1. [118]
    I am satisfied that it was reasonable for the respondents to make the enquiry about an on-call roster given that Dr Larder had referred the respondents to Dr Tan’s opinion in relation to Mrs Webb’s capacity to perform work. Dr Larder states in his report dated 18 March 2013:

In my opinion Ms Webb is able to resume some of the duties of her substantive position.

In my opinion the appropriate employer representative could liaise with Dr Tan about what these duties are and plan a resumption in the next 4 weeks.[124]

  1. [119]
    I am satisfied that it was reasonable for the respondents to make enquiries about Mrs Webb’s ability to undertake certain duties in the context of all of the circumstances - that is Mrs Webb having been suspended from duties and having attended an IME with Dr Larder.[125] The reference to the on-call roster in the letter dated 12 April 2013 was made in the context of requesting information and was not imposing a term for the purposes of s 11 of the QAD Act. The contention is not established.

Ban on communications with Queensland Health staff

  1. [120]
    Mrs Webb contends direct discrimination on the basis of the attribute of alleged mental health in directing her not to contact staff at the Health Service where they would not have so directed another employee in the circumstances. Mrs Webb also raises a contention of indirect discrimination in directing her not to contact other employees of the Health Service on the basis of alleged mental health.
  2. [121]
    The evidence shows and I have made findings that the respondents held concerns about staff members who reported that they had been contacted by Mrs Webb. Ms Craig in her affidavit states that in February 2012 she was contacted by ‘the subject officer’ of Mrs Webb’s complaint that she had received a private call from Mrs Webb’s husband and on other occasions she had received text messages.[126] Ms Craig also refers in her affidavit to advice received that Mrs Webb had been contacting other employees at Caloundra and Gympie ‘asking for information and references’. Ms Craig states:

[In December 2012] I had also received advice from Ms Reynolds that Ms Webb had been contacting other employees at Caloundra and Gympie asking for information and references and that the employees reported being concerned if they declined Ms Webb’s request and generally regarding her impending return to work. I understood from the information I was given by Ms Reynolds that the employees were concerned about Ms Webb retaliating against them in some way, either at work or outside work. Ms Webb’s behaviours (*including her contacting employees for information and references) appeared to be escalating in this regard.[127]

  1. [122]
    I am satisfied based on the evidence that the reasons for imposing conditions that Mrs Webb not contact staff was due to safety concerns in the workplace and not because of Mrs Webb’s perceived mental health. I have made findings that the respondents’ concerns about Mrs Webb’s safety in the workplace were identified on a number of occasions in various correspondence and this was the reason for the request to attend an IME and to suspend Mrs Webb from her employment; and to continue the suspension.
  2. [123]
    The respondents have a duty of care to provide a safe place of work to Mrs Webb and other staff. I am satisfied that it was reasonable for the respondents to put in place requirements such as no contact being made by Mrs Webb with other staff in the circumstances that is a concern for her safety and the safety of other staff in the workplace and not because of Mrs Webb’s perceived mental health. I am not satisfied the contentions have been established.

Conclusion

  1. [124]
    I accept Mrs Webb’s evidence that she is a competent pharmacist and that she enjoyed her work in the pharmacy.
  2. [125]
    The evidence shows that the opportunity to participate in the rotation program had advantages for Mrs Webb. Mrs Webb had concerns, however, about her participation in the program.
  3. [126]
    Mrs Webb provided medical certificates that referred to a medical condition also identified as ‘medical problems’ and ‘medical issues’ by Dr Tan. The medical certificates were provided in relation to Mrs Webb’s participation in the rotation program. The evidence shows that the respondents took steps to understand the ‘barriers’ to Mrs Webb participating in the rotation program by requesting information be provided and directing that she attend an IME. The respondents also attempted to arrange meetings with Mrs Webb to discuss her issues about participating in the rotation program so that they could support her in the workplace.
  4. [127]
    The evidence also shows that there were a number of concerns held by the respondents in 2011 and 2012 that were not just related to the medical certificates completed by Dr Tan but related to the safety of Mrs Webb and other staff in the workplace. The respondents made the decision to suspend Mrs Webb from her employment on full pay in December 2012 and the suspension continued on full pay after Mrs Webb attended an IME in January 2013 and February 2013. The evidence shows that the respondents decisions to suspend Mrs Webb from her employment and to continue her suspension was for reasons of her safety and the safety of others in the workplace - not because of her perceived mental health.
  5. [128]
    I have made findings that there has been no breach of the QAD Act and because of my finding I have no power to make the orders that Mrs Webb seeks including an order that she be returned to the workplace. That does not mean Mrs Webb is prevented from considering her options outside this jurisdiction. As the learned Dr Cullen said in Ward v Stradbroke Ferries Pty Ltd:[128]

There are several features present here that suggest that this dispute would more properly be placed within the jurisdiction of the Industrial Relations Commission, rather than QCAT.

  1. [129]
    Similarly in this case there are issues including, for example, the legality of the suspension under the PS Act that may be more properly placed within the jurisdiction of the Industrial Relations Commission, rather than QCAT. In this case the appropriate order is that the application referring the complaint is dismissed.

Footnotes

[1]  Application was made and leave was granted at the hearing on 30 October 2014 to change the first respondent’s name to Sunshine Coast Hospital and Health Service as amended by the Hospital and Health Board Amendment Act No 2 2014 (Qld).

[2]  The respondents wrote to Mrs Webb by letters dated 9 March 2012, 23 March 2012, 18 September 2012 and 11 December 2012 in relation to attending an IME, see Exhibit 2, [78], [83], [89] and [90].

[3]  Applicant’s written submissions dated 31 October 2014.

[4]  Ibid.

[5]  QAD Act, s 6.

[6]  Ibid, s 10.

[7]  Ibid, s 8(c).

[8]  Ibid, s 204.

[9]  Ibid, s 10(2).

[10]  Ibid, s 10(3).

[11]  Ibid, s 11(1)(c).

[12]  Ibid, s 11.

[13]  Ibid, s 205.

[14]  [2013] QCAT 251.

[15]  Ibid, [5].

[16]  Ibid, [50].

[17]  Schedule of applicant’s contentions filed 30 October 2014.

[18]  Exhibit ‘8’, Attachment ‘KH3’.

[19]  Schedule of applicant’s contentions filed 30 October 2014, [1.2].

[20]  Ibid, [1.3].

[21]  Respondents’ contentions on referral filed 7 February 2014, [8] – [12].

[22]  Ibid, [5].

[23]  Schedule of applicant’s contentions dated 30 October 2014, [3.2].

[24]  Ibid.

[25]  Statement of Beverley June Webb sworn 22 August 2014, Exhibit marked 2, [20].

[26]  Notice of contentions dated 10 January 2014 and Schedule of applicant’s contentions filed on 30 October 2014.

[27]  Exhibit 2.

[28]  Exhibit 2 - ‘first instance of concern’ made on 15 April 2010 at [21], ‘second instance of concern’ in March 2010 at [31], ‘third instance of concern’ in October 2010 at [38], ‘fourth instance of concern’ on 15 December 2011 at [41].

[29]  Exhibit 2, see complaint concerning Ms Hamilton made on 8 January 2008 at  [177] and [178]; complaint made on 3 June 2010 concerning Ms Nayler and Ms Hamilton at [185]; complaint made on 13 October 2011 concerning Robert Marshall (District Director for Pharmacy), Brett Dalgliesh (Assistant Director), Annabelle Kirwan (Chief Executive Officer, People & Culture) and Lois Craig (Senior Advisor, People & Culture) at [64]; complaint made on 23 February 2012 concerning 49 concerns to the Crime and Misconduct Commission at [194]; complaint made on 17 February 2012 concerning Linda Coombs (People & Culture) at [73; complaint made on 16 April 2012 to the Minister for Health concerning ‘management’ of Caloundra Hospital at [74].

[30]  Ibid, see [49] to [74].

[31]  Ibid, [52].

[32]  Exhibit 2, Attachment ‘B’ (Medical Certificate dated 6 July 2009).

[33]  Ibid, [61], [63], [75]; see Attachments ‘B’, ‘G’, ‘I’ and ‘O’.

[34]  Ibid, Attachment ‘I’.

[35]  Ibid, Attachment ‘C’.

[36]  Ibid.

[37]  Ibid.

[38]  Ibid, Attachment ‘D’.

[39]  Ibid.

[40]  Ibid, [57].

[41]  Exhibit 7, [26].

[42]  Ibid, Attachment ‘BD3’.

[43]  Ibid, [27] to [29].

[44]  Email from Lois Craig (people and culture) dated 29 July 2011, Exhibit 2, Attachment ‘F’.

[45]  Exhibit ‘5’, [26].

[46]  Exhibit ‘2’, [60].

[47]  Exhibit ‘5’, [30].

[48]  Ibid, [23] to [36].

[49]  Ibid, Attachment ‘LC14’.

[50]  Ibid.

[51]  Exhibit ‘5’, [38].

[52]  Exhibit 2, Attachment ‘I’.

[53]  Exhibit 5, [42].

[54]  Exhibit 2, [62].

[55]  Ibid, [68].

[56]  Ibid.

[57]  Ibid, [64].

[58]  Ibid, Attachment ‘J’.

[59]  Exhibit 5, Attachment ‘LC16’.

[60]  Ibid, [43], Attachment ‘LC19’.

[61]  Ibid, [48].

[62]  Ibid.

[63]  Ibid, Attachment ‘LC19’.

[64]  Exhibit 2, [72].

[65]  Exhibit 5, [46].

[66]  Ibid, [46].

[67]  Ibid, Attachment ‘LC19’.

[68]  Exhibit ‘8’, [24] to [25].

[69]  Ibid.

[70]  Letters dated 8 February 2012, 9 March 2012, 23 March 2012, 18 September 2012, 11 December 2012 and 14 December 2012.

[71]  Exhibit 8, Attachment ‘KH1’.

[72]  Ibid.

[73]  Exhibit 2, Attachment ‘P’.

[74]  Ibid.

[75]  Exhibit 2, attachment marked ‘P’.

[76]  Exhibit 8, Attachment ‘KH6’.

[77]  Ibid, Attachment ‘KH8’.

[78]  Ibid.

[79]  Ibid, Attachment ‘KH15’.

[80]  Ibid, Attachment ‘KH17’.

[81]  Exhibit 8, Attachment ‘KH16’.

[82]  Ibid, [46] to [49].

[83]  Ibid, Attachment ‘KH2’

[84]  Ibid.

[85]  Ibid, [46] to [49].

[86]  Ibid.

[87]  Ibid, Attachment ‘KH16’.

[88]  Ibid, Attachment ‘KH21’.

[89]  Ibid, [57].

[90]  Ibid, [57].

[91]  Ibid, Attachment ‘KH23’.

[92]  Ibid, [63].

[93]  Ibid, [65].

[94]  Ibid, [65].

[95]  Ibid, Attachment ‘KH16’.

[96]  Applicant’s submissions dated 31 October 2014, [4.1].

[97]  Respondents’ written submissions filed 31 October 2014 [112], [114].

[98]  Exhibit 8, [63].

[99]  [2012] QCA 299.

[100]  [2008] 173 IR 395.

[101] State of Queensland v Attrill, [34].

[102]  Ibid, [35].

[103]  Exhibit 5, [38].

[104]  Ibid, [88] and [89].

[105]  Exhibit 5, [4]-[9], Attachment ‘LC2’.

[106]  Exhibit 2, Attachment ’C’.

[107]  Ibid, Attachment ‘K’.

[108]  As at 15 January 2013.

[109]  Exhibit 6, [15].

[110]  Ibid, [19]-[20], Attachment ‘LM7’.

[111]  Ibid, Attachment ‘LM13’.

[112]  Exhibit 2, [113].

[113]  On 13 February 2013 and 1 May 2013.

[114]  Exhibit 2, Attachment ‘HH’.

[115]  Ibid, Attachment ‘II’.

[116]  Exhibit 8, [53].

[117]  Ibid, [53], [54].

[118]  Exhibit 6, [87].

[119]  Ibid, [88], [89].

[120]  Ibid, [89].

[121]  Ibid, [78].

[122]  Ibid, [74].

[123]  Exhibit 2, Attachment ‘NN’.

[124]  Exhibit 8, Attachment ‘KH21’, p59.

[125]  See respondents written submissions filed 31 October 2014, [171].

[126]  Exhibit 5, [54] to [57].

[127]  Ibid, [75].

[128]  [2014] QCAT 637 at [12].

Close

Editorial Notes

  • Published Case Name:

    Webb v Sunshine Coast Hospital and Health Service & Anor

  • Shortened Case Name:

    Webb v Sunshine Coast Hospital and Health Service

  • MNC:

    [2015] QCAT 31

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    03 Feb 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
State of Queensland v Attrill [2012] QCA 299
4 citations
Jump To
Cite 1 - [2012] QCA 299
Cite 2 - [2012] QCA 299
Cite 3 - [2012] QCA 299
Cite 4 - [2012] QCA 299
Thompson v IGT (Australia) Pty Ltd (2008) 173 IR 395
1 citation
Jump To
Cite 1 - (2008) 173 IR 395
Tung v State of Queensland [2013] QCAT 251
4 citations
Jump To
Cite 1 - [2013] QCAT 251
Cite 2 - [2013] QCAT 251
Cite 3 - [2013] QCAT 251
Cite 4 - [2013] QCAT 251
Ward v Stradbroke Ferries Pty Ltd [2014] QCAT 637
2 citations
Jump To
Cite 1 - [2014] QCAT 637
Cite 2 - [2014] QCAT 637

Cases Citing

Case NameFull CitationFrequency
Leggett v BHP Coal Pty Ltd [2017] QCAT 772 citations
Sunshine Coast Hospital and Health Service v Webb [2020] QCA 1891 citation
Webb v Sunshine Coast Hospital and Health Service [2016] QCATA 201 citation
1

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