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- Unreported Judgment
McMonagle v Ramsay Health Care Australia Pty Ltd QCAT 103
McMonagle v Ramsay Health Care Australia Pty Ltd  QCAT 103
Ramsay Health Care Australia Pty Ltd
8 April 2016
Dr Cullen, Member
12 May 2016
Anti-Discrimination – Impairment and Employment – Application does not disclose any claim under anti-discrimination legislation – appropriate forum was by way of an appeal to the Queensland Industrial Relations Commission from WorkCover Review Unit decision.
Anti-Discrimination Act 1991 (Qld), s 136
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 32
The parties were self-represented.
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- Mrs Susan McMonagle was employed as an Endorsed Enrolled Nurse (‘EEN’) at Pindara Private Hospital, which is operated by Ramsay Health Care Australia. On 25 June 2014, Mrs McMonagle lodged an application for workers’ compensation with WorkCover for a psychological condition identified as ‘stress due to staff behaviour following previous injury’.
- As is all too common for health care workers, Mrs McMonagle sustained physical injuries following an assault by a male patient in late 2013. She made a claim with WorkCover for her physical injuries, described as ‘soft tissue injury right hand, right chest’, which was accepted by WorkCover.
- Work Cover investigated Mrs McMonagle’s application for psychological injuries, and considered two factors:
- Factor 1 – bullying and harassment on returning to work; and
- Factor 2 – reduction in hours due to wrist injury.
- WorkCover rejected Mrs McMonagle’s claim for psychological injuries. In short compass, this was because WorkCover found her injuries arose out of the exercise of reasonable management action taken by Ramsay Health taken in connection with her return to work. Mrs McMonagle sought a review of that decision, and comprehensive reasons were provided by a review officer from the review unit of the Workers’ Compensation Regulator. The Review Unit came to the same conclusion as WorkCover, and determined that Mrs McMonagle did not sustain an injury in accordance with s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
- Mrs McMonagle was, throughout the WorkCover proceedings, represented by lawyers. She clearly believed that her WorkCover claim for the psychological injury should not have been rejected. The appropriate avenue for her was to appeal the Review Unit’s decision to the Queensland Industrial Relations Commission, within 20 business days from the date of receipt of the decision. The Review Unit decision was dated 16 July 2015.
- Surprisingly, rather than proceeding down this obvious and appropriate avenue, with the assistance of her then solicitors, Mrs McMonagle instead decided to pursue a complaint she had earlier made with the Anti-Discrimination Commission Queensland (‘ADCQ’). The complaint to the ADCQ, made on 2 June 2015 purported to be on the ground of impairment, in the area of employment. The complaint, which contained scant detail, then proceeded through the processes that take place within the ADCQ.
- On 7 September 2015, the ADCQ wrote to Mrs McMonagle and advised her that her complaint had been accepted. That letter indicates that:
The decision to accept the complaint whether or not the complaint has merit. It simply means that at least one allegation contained in the complaint is about conduct which may be a breach of the Act (section 136) and so the Anti-Discrimination Commission (the Commission) must try to resolve the complaint.
- The complaint did not resolve through conciliation, and it was then referred to the Tribunal. The reason for acceptance of the complaint by the ADCQ is illusive – the sole allegation made within the material that raises undertones of discrimination is that the Second Respondent, Patricia Hogan, called her an ‘invalid’ and continued to call her a ‘disabled invalid whilst mimicking a disabled person.’ The Respondents denied these allegations.
- If true, and if said in the tone that Mrs McMonagle asserts, that conduct is offensive. However, there is no disability vilification law that precludes the mere making of offensive statements about persons with disability, in Queensland. The complaint never identifies, beyond these potentially offensive statements, what it is actually about – whether the alleged discrimination was direct, or indirect, and what the impact was upon Mrs McMonagle’s employment.
- In point of fact, there was no impact upon Mrs McMonagle’s employment disclosed on the material referred by the ADCQ. Rather, the material indicates that she returned to work, on limited duties, following her physical injury. The Review Unit Reasons for Decision provided clearly outline that Mrs McMonagle was returned to work ‘through the provision of suitable duties’. It is difficult to see what the complaint of discrimination could then be, and it certainly has not been articulated by Mrs McMonagle’s then solicitors.
- Upon referral of the complaint to the Tribunal by the ADCQ, the Tribunal quickly ascertained that there were serious concerns about whether the complaint had any reasonable prospects, despite it having been accepted by the ADCQ. As such, and in order to provide Mrs McMonagle with the best opportunity to articulate her concerns, the Tribunal expedited the complaint to an early Compulsory Conference between the parties.
- Following the Compulsory Conference, the parties agreed that the complaint should be dismissed by the Tribunal. Although Mrs McMonagle could have withdrawn her complaint, that would have left open the question as to whether QCAT was an appropriate forum for this complaint to be heard. It is conceivable that Mrs McMonagle may wish to raise concerns about the legal advice she may have been given about these proceedings by her then solicitors, elsewhere. As such, it is more appropriate that the Tribunal dismiss the application for the reasons articulated.
- In accepting this poorly articulated complaint, the ADCQ inadvertently created an impression that proceeding down this avenue might afford Mrs McMonagle with relief. Whilst people must be given opportunity to try and articulate their concerns before complaints are dismissed, it is simply not enough to identify ‘impairment’ and ‘work’ and hope for relief. There must be a nexus between the impairment and some action taken by the employer. The matters raised here clearly fall within the domain of the Workers’ Compensation Regulator, and the Queensland Industrial Relations Commission.
- It is concerning that this shortcoming was not addressed earlier. The Tribunal is not privy to the nature of legal advice that Mrs McMonagle obtained from her then solicitors, but would consider that, on the material available to the Tribunal at the time of the Compulsory Conference, there was no identifiable, viable complaint for which the Anti-Discrimination Act 1991 (Qld) could provide relief.
- If it is the case that Mrs McMonagle received advice from her then solicitors to abandon her appeal from the Review Unit’s decision in favour of running this unviable action in QCAT, that would be extraordinary advice. The Tribunal has no ability to assess whether an appeal to the Queensland Industrial Relations Commission had any prospects of success. The Tribunal can merely indicate that, where the QIRC was the appropriate avenue if any relief was to be had, and where solicitors were involved, this sideways trajectory to the Tribunal, where no prospects of success existed, at the potential expense of a timely appeal to the appropriate jurisdiction, is unusual.
- The Application is dismissed by consent, on the basis of the material filed to date in the Tribunal.
- There will be no order as to costs.
 Reasons for Decision, Review Unit, page 12, 16 July 2015.
- Published Case Name:
Susan McMonagle v Ramsay Health Care Australia Pty Ltd and Patricia Hogan
- Shortened Case Name:
McMonagle v Ramsay Health Care Australia Pty Ltd
 QCAT 103
12 May 2016