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- Unreported Judgment
Thorne v Toowoomba Regional Council QCAT 212
Thorne v Toowoomba Regional Council & Tytherleigh  QCAT 212
Lauren Edwina Thorne
Toowoomba Regional Council
27 November 2015
Member Ann Fitzpatrick
27 June, 2016
The First Respondent, the Toowoomba Regional Council and the Second Respondent, Kelvin Tytherleigh, pay to the Applicant Lauren Edwina Thorne the sum of $10,000.00 within 28 days of the date of this Order.
Anti-discrimination matters - impairment discrimination – termination from employment – pre-employment interview questions and medical examination - substantial reason
Anti-Discrimination Act 1991 (Qld) ss 7,10,11,15, 124 and 133.
Dovedeen Pty Ltd v GK  QCA 116;
Irvine v Porter v Mermaids Café and Bar Pty Ltd and Ingall (No2)  QCAT 482;
Purvis v New South Wales (2003) 217 CLR 92;
Stallard v Alsum Aluminium Pty Ltd and Anor  QCAT 490;
Webb v Lightfoot  QCAT 233
Lauren Edwina Thorne
Toowoomba Regional Council
FIRST AND SECOND RESPONDENT:
Represented by Ms P York, in house lawyer, Toowoomba Regional Council.
REASONS FOR DECISION
- Ms Thorne alleges that she suffered direct discrimination on the basis of impairment when her employment was not confirmed by the Toowoomba Regional Council (Council) on 1 September, 2014. Ms Thorne has proceeded against the Council and against Mr Tytherleigh, Manager People and Organisational Development Branch of the Council. Mr Tytherleigh was responsible for the decision not to confirm her employment at the end of an initial probationary period of employment.
- In her final submissions Ms Thorne also raises indirect discrimination.
- Ms Thorne was involved in an accident prior to her employment with the Council. Her right wrist and shoulder were injured. Subsequently, her left wrist sustained an overuse injury. Use of her hands was compromised by the wrist injuries.
- Ms Thorne applied to the Council for appointment to the permanent full-time position of Organisational Development Officer. She was successful and entered into a 3 month period of probationary employment on 2 June, 2014.
- The interview process for the position comprised 2 interviews with an interview panel and the conduct of pre-employment medical checks.
- A key issue in the case is why Ms Thorne’s employment was not confirmed at the end of her probationary period of employment.
- Ms Thorne alleges that her employment was not confirmed because of the medical condition affecting her wrists and the risk perceived by the Council, in terms of the prospect of a workers compensation or other claim made against, it arising out of her medical condition.
- The Council asserts that Ms Thorne was not frank with it in her first interview when she answered “No” to the question: “Is there any medical or other reason that would prevent you from performing any of the duties that are listed for this position? (Please look through each)”
- As evidence of Ms Thorne’s alleged lack of frankness, the Council relies on conversations between Mr Jerry Mooketsi, Principal Workplace Relations, and Ms Thorne, on 28 August, 2014. In particular, Ms Thorne was questioned about failing to inform the Council of a re-injury she suffered in her previous employment when performing administrative tasks. Further, in an “off the record” conversation Ms Thorne allegedly told Mr Mooketsi that when she had answered “yes” to a similar question at a different job interview she was not offered the job.
- Ms Thorne contends that she genuinely thought she was fit to perform the job and that she disclosed full details of the medical condition affecting her wrists during the pre-employment medical examinations. She says the Council offered her the job in full knowledge of her medical condition and with agreement to ensure certain work restrictions were in place to prevent aggravation of her injuries
- The Council contends that the sole reason for termination of Ms Thorne’s employment was a lack of trust and confidence in her as an employee. It has given evidence about and has made submissions about a number of matters learned after the end of Ms Thorne’s employment, which it submits go to her credit and support its view that Ms Thorne was not a trustworthy employee.
- Ms Thorne relied on a statement of contentions and evidence, dated 26 October, 2015, made Exhibit 1 in the proceedings as her evidence in chief. She also called as a witness, Dr.Vern Madden of The Health Advantage Pty Ltd Integrated Assessment & Worker Health Care. Dr Madden produced a bundle of records of his assessment of Ms Thorne’s medical condition and capacity for work – Exhibit 3 in the proceedings.
- The respondents’ witnesses Patricia Ciesiolka, Maddie Benjamin, Jerry Mooketsi and Kelvin Tytherleigh, each relied on their sworn statements as evidence in chief, being Exhibits 6,7,8 and 9 respectively.
- The following facts emerge from the evidence.
- The first interview for the role took place on 6 May, 2014. Mr Mooketsi, then Acting Manager, People and Organisational Development Branch of the Council, was chairperson of the selection panel. Ms Maddie Benjamin, then Principal Enterprise Bargaining for the Council was the other panel member. The panel asked a number of set questions during the interview, including: “Is there any medical or other reason that would prevent you from performing any of the duties that are listed for this position (Please look through each)”. The box marked “No” has been ticked on the interview form recording the questions and notes of the panel.
- The second interview took place on 12 May, 2014. On 15 May, 2014, Ms Thorne, as the preferred candidate was invited to attend a pre-employment medical assessment.
- The assessment took place with Dr Madden on 20 May, 2014. Dr Madden was familiar with Ms Thorne because he had previously considered her wrists and her fitness for work for her previous employer, Easternwell.
- Ms Thorne completed a pre-employment health assessment questionnaire on that day with the assistance of a nurse employed by Dr Madden. The questionnaire records that Ms Thorne suffered torn ligaments in 2011 and that she had right wrist surgery in 2012, from which she made a full recovery. The form also records that she had trouble with her right wrist in 2013 due to overuse (10 hours typing per day). The form records that: “she started using “Dragon” software. Wrist settled. Role has changed at work and is able to type as needed without restriction. 2013 had one month off work after aggravation of the wrist. Specialist suggested 2 weeks reduced typing time but workplace took extra 2 weeks…July 2013 when right wrist became aggravated investigations were done on left wrist. X2 cortisone injections left wrist – nil ongoing problems.”
- The questionnaire is headed: “Note for applicants completing this form…The pre-employment health questionnaire is aimed at determining if you have any health problems which:
- would limit you in being reasonably able to perform the job
- would be reasonably likely to be aggravated by the job
Toowoomba Regional Council will review the recommendations provided by the medical officer and will assess the pre-employment health assessment together with information from the recruitment process prior to making an employment decision.”.
- Dr Madden gave evidence that the questionnaire was not provided to the Council but remains part of his records.
- On 20 May, 2014, Dr Madden spoke to Mr Mooketsi by telephone to obtain more detail about the nature of the proposed role. In a note dated 21 May, 2014, he records that he contacted Jerry Mooketsi and that Jerry was familiar with job demands of the research and development position. Dr Madden noted the need for typing.
- Dr. Madden provided a report on 20 May, 2014 to the Council. The report contains the question: “Does the applicant have any medical condition or medical history that may affect his/her well being or impact on the applicant’s ability to safely meet the inherent requirements of the position?” Dr Madden recorded the response: “Yes potentially”.
- The report also contains the question: “After consideration of the proposed position description together with the information provided by the applicant on the pre-employment health questionnaire and the occupational health examination, is the applicant fit to perform the duties of the proposed position?” Dr Madden recorded the response: “Uncertain”. He recommended a review with Wise Therapy to determine necessary accommodations and limitations.
- Ms Thorne has counter-signed the report confirming that she has read and had the results of the pre-employment health assessment explained to her by the examining medical officer.
- Upon receipt of the report Mr Mooketsi and Ms Benjamin telephoned Ms Thorne to discuss the concerns flagged by Dr Madden in the report.
- Ms Thorne’s evidence is that she discussed her condition, the circumstances surrounding aggravation of her injury, being the need to spend up to 10 hours a day typing and the accommodations made with her previous employer, with Mr Mooketsi. Ms Thorne’s initial evidence was that this conversation took place during the first interview. This is disputed by the selection panel members. It is disputed that Ms Thorne told Mr Mooketsi about aggravation of her injuries and what caused the aggravation. As to when such a conversation may have taken place, I note that during the hearing Ms Thorne suggested that the conversation took place during the pre-employment phase. I find it is most likely that the discussion Ms Thorne recalls is the telephone discussion held after the 20 May, 2014 report was received. Mr Mooketsi’s statement of evidence refers to a discussion on that day. His evidence is that Ms Thorne told him of the need to type for 10 hours a day at Easternwell. That is consistent with a discussion about aggravation of Ms Thorne’s medical condition. During cross-examination Mr Mooketsi recalled that during the conversation Ms Thorne told him she was able to continue working. Neither party tendered a diary note of their conversation. I am satisfied that during that discussion, which was initiated by Mr Mooketsi, to find out more about Dr Madden’s uncertainty as to Ms Thorne’s fitness for the job, that Ms Thorne discussed with Mr Mooketsi, her condition, the long hours of typing that gave rise to an aggravation of her injuries and the accommodations made by Easternwell as a result, which enabled her to continue with her work. It will be apparent from my reasons that I attribute little weight to this conversation.
- Wise Therapy provided a report to the Council, dated 22 May, 2011. The report stated that Ms Thorne has demonstrated restricted functional capacity where the following restrictions or modifications to the role should be considered:
- avoid long periods of typing eg more than 2-3 hours at a time;
- avoid lifting more than 5 kg from floor – waist height. 5 kg at waist height and 2.5 hg to above shoulder height;
- avoid long periods of driving eg 1-2 hours at a time.
- Dr Madden provided a report dated 30 May, 2014 to the Council, addressing the Wise Therapy report. In particular he addressed the issue of long periods of typing. He suggested the use of Dragon Dictate, use of an external keypad and mouse, and at least 15 minutes break every hour to perform other activities. He made those suggestions to “avoid a risk of aggravation”. He concluded that Ms Thorne is fit for the position with those restrictions.
- Dr Madden said in evidence that if any queries were raised with him he would have answered fully. Mr Mooketsi did attempt to speak to Dr Madden on receipt of the report, but he was away at the time.
- Mr Mooketsi consulted Mr Michael Courtney, Coordinator Safety at the Council, to obtain his views on the appointment of Ms Thorne in light of the medical information. Mr Courtney did not think Ms Thorne was suitable for the role, but left the decision to Mr Mooketsi. He said in an email dated 23 May, 2014: “Your call. I will do an “I told you so” though if she makes a claim.”
- Exhibit 2 in the proceedings is a copy of a report from Dr Gregory Couzens, Hand and Wrist Surgeon, dated 29 May, 2014, stating that: “Lauren Thorne has recovered from her bilateral wrist conditions and she has been cleared to return to full duties.” There is no evidence that this report was provided to the Council before the proceedings, but Ms Thorne’s evidence is that Dr Couzens had cleared her to return to full duties, at the time of her application for the position with the Council. I accept that evidence and find that at the time Ms Thorne applied for the role at the Council, she considered that she had recovered from her wrist condition and was fit to return to full duties.
- Ms Thorne was sent an offer of employment on 29 May, 2014 and she started work on 2 June, 2014. A work plan outlining restrictions to Ms Thorne’s duties was provided to her.
- Ms Thorne worked satisfactorily for the period of her probation. It is not in contention that there were no complaints about her work and that she would have been appointed permanently at the end of her probation if it had not been for the issues which arose in August, 2011. There is no evidence that the work restrictions impaired the productive performance of the job.
- Mr Mooketsi’s evidence is that close to the end of Ms Thorne’s probationary period, he reviewed her progress towards the work plan and wondered how long the work restrictions were to continue. He wrote to Dr Madden about this and also enquired whether Dr Madden wished to see Ms Thorne again. Ms Thorne was not examined by Dr Madden. Dr Madden wrote a letter dated 20 August, 2014, indicating the restrictions should remain in place for a minimum of two years as a precautionary measure to prevent a “significant and foreseeable risk of either aggravating one of the pre-existing injuries or creating another over use injury.” He referred to the fact that work related aggravations occurred in 2013, taking well over twelve months to settle.
- Mr Mooketsi gave evidence that he was surprised by the length of time the restrictions would continue and by the information about an aggravation of her injury whilst working at Easternwell. He met with Ms Thorne on 28 August, 2014 to discuss Dr Madden’s report, her duties at Easternwell, restrictions to her duties and the effect of the restrictions. Ms Thorne told Mr Mooketsi that she spent 10 hours straight typing while in her role at Easternwell. There was no flexibility. She aggravated her injury and then she started to use a program called dragon dictate to manage her injury.
- Ms Thorne was unwilling to again see Dr Madden and was initially unwilling to allow Council to discuss her with her previous employer. She later agreed to Mr Mooketsi speaking to Easternwell. She said that Council could talk to her or her specialist about her medical condition.
- During the 28 August, 2014 meeting Mr Mooketsi asked Ms Thorne why she answered “No” to the question – “Is there any medical or other reason that would prevent you from performing any of the duties that are listed for this position?” Mr Mooketsi has recorded in his record of the conversation that Ms Thorne said that she was back at work full time and her medical condition didn’t stop her from doing her job. She knew that she had work restrictions but they didn’t stop her from doing her job.
- Mr Mooketsi also made a file note of an off the record discussion between himself and Ms Thorne on 28 August, 2014, during which Ms Thorne allegedly said that when she answered “yes” to a similar question with another prospective employer, she was unsuccessful in the job application. Mr Mooketsi records that Ms Thorne said “in her head she knows that she can do the job if she takes adequate breaks”. Ms Thorne asserts that Mr Mooketsi misunderstood the conversation. Whatever was said in that conversation, I attribute it no weight because the conversation related to a different job with a different employer. There is no evidence as to any parallel in the tasks between that other job and the Council job.
- On 29 August, 2014, Mr Mooketsi emailed Mark Stacey, Training Design and Development Manager at Easternwell asking:
“a. What specific work did Lauren do that aggravated her pre-existing injury?
b. What specific work did Lauren do in 2013 during the time she had work restrictions:
c. What work was Lauren doing that she could no longer do after the pre-existing injury became aggravated?
How did Lauren get along during the time she had work restrictions?”
- A response was requested by 4 September, 2014. On 2 September, Mr Stacey advised that Easternwell was not in a position to provide the information at this time.
- Mr Mooketsi’s evidence is that he was concerned Ms Thorne may not be open and honest about matters relevant to the performance of her job. He discussed the matter with his superior, Mr Tytherleigh.
- Mr Tytherleigh discussed with Mr Mooketsi the answer given at the first job interview that Ms Thorne had no medical or other reason that would prevent her from performing the duties “despite having full knowledge of her written medical advice and the work restriction at her previous employer.” He also discussed the reference to not succeeding in another job application when answering “yes” to a similar question.
- Mr Tytherleigh said his principal concerns were:
- an apparent disconnect between what Ms Thorne had stated in the interview process and what was now apparent to him.
- Ms Thorne may not be open and honest about performance of her duties and that may impact on her ability to perform work safely.
- She has access to confidential information regarding current and ex-employees. He did not think he could trust her with that information.
- After deliberation, Mr Tytherleigh concluded that his staff have access to some of the most sensitive information in Council and the expectation of them to maintain confidentiality is essential. His decision regarding Ms Thorne came down to a decision as to whether he could trust her again in the future. He determined that he was not able to trust her again. Mr Tytherleigh said that once he reached this position, the decision regarding Ms Thorne’s probation became clear and he determined that her appointment should not be confirmed. Mr Mooketsi agreed with that conclusion.
- A meeting was held between Mr Tytherleigh, Mr Mooketsi and Ms Thorne on 1 September, 2014. Ms Thorne was told her employment would not be continued. Mr Tytherleigh recalls saying words to the effect her hands were not the issue and ending Ms Thorne’s employment was a shame because she was capable of good work. Ms Thorne asserts Mr Tytherleigh said words to the effect: “it is really a pity because we hired you for your brains and not your hands.” I have no way of resolving this conflict in the evidence. At the end of the day, there are other parts of the evidence which reveal Mr Tytherleigh’s state of mind and I place no weight on what Ms Thorne asserts was said.
- Ms Thorne was handed a letter stating:
“I refer to medical advice received on 20 August, 2014, and to your discussions with Mr Jerry Mooketsi, Principal Workplace Relations on 28 August, 2014.
As a result of the above discussions and medical advice, Council is of the view that you have not been frank in disclosing your circumstances that would affect the performance of your duties in the position. This lack of frankness has caused Council to not retain the requisite trust and confidence to continue your employment. Had you been frank, this would not be an issue.
…Council has decided not to confirm your employment..”
- Mr Tytherleigh issued an amended letter on 5 September, 2014 removing reference to the reason for termination of employment, following a request by Ms Thorne. Further requests were made by Ms Thorne for amendments to the letter. Those requests were refused.
- Mr Tytherleigh and Mr Mooketsi both refer to information discovered after termination of her employment which they assert support the basis of her termination.
- In particular, email communications with Ms Thorne’s solicitor in relation to a claim for damages she is prosecuting in relation to the accident giving rise to her injuries. Mr Tytherleigh points to correspondence suggesting Ms Thorne was experiencing difficulties with her hands whilst employed at Council and that she was discussing income protection insurance in case it was necessary for her to bring a claim.
- Mr Tytherleigh says that contrary to what Ms Thorne was asserting to Council, she was of the belief that her medical condition would prevent her from performing the duties of the position and that her condition was being aggravated by normal duties in the position at Council.
- Mr Tytherleigh also refers to email correspondence referring to possible other jobs or businesses Ms Thorne was exploring.
- When cross-examined about the difficulties Ms Thorne encountered with her hands in her work at Council, she was straightforward in her response. She said that she did encounter problems, but she obtained some massage therapy which helped and she learned to break up her day more to relieve pressure on her hands. Likewise, she was straightforward in acknowledging her interest in other work and businesses, but denied that she was seeking other work because she knew she could not do the job at the Council. In relation to income protection insurance, she said she has assets and a business to protect and that it was an ongoing issue for her, so she wanted to be sure she was protected. Ms Thorne denied that she was trying to organise insurance to cover the contingency that she would not be employed for long.
- Ms Thorne denied that she was expecting and planning for dismissal from Council.
- I found Ms Thorne to be an honest witness. She did not shirk any question put to her. She provided credible explanations for all issues put to her in cross-examination.
- In particular, Ms Thorne was unshakeable in cross-examination in relation to her belief that her medical condition did not prevent her from performing the role at the Council. She said that she had a medical clearance from her surgeon that she had fully recovered. I accept that is the case. Ms Thorne pointed to the job description referring to such matters as consultation, reviewing and discussing. It did not emphasise typing, so she did not think that she would run into problems such as she had experienced at Easternwell where she had been required to type constantly from 8.30 am to 5.15pm. I accept that the job description does cover a broad range of duties not focussed on typing. Ms Thorne’s evidence is that she thought the day would be more broken up at Council. Ms Thorne said in cross-examination that she was honest in her answer to the question whether she had a medical condition which would affect performance of her work. Ms Thorne said that she was not asked whether she had a medical condition. She said that if she had been asked for her medical history she would have provided it. I accept that evidence. When it was put to Ms Thorne in cross-examination that Ms Thorne had difficulty at Easternwell, but she still answered “no” to the question about a condition affecting her performance, Ms Thorne said that her troubles at Easternwell related to that job and that the job at Council was a different role. I accept that is the case. It does not follow that because Ms Thorne aggravated her injuries at Easternwell, in circumstances specific to that job, that she would suffer the same problem in a different job.
- I find that Ms Thorne did answer honestly the question put to her in the first interview as to any medical condition which might affect performance of the job. I find that there was a credible basis for the opinion she expressed in the interview.
- I also find that Ms Thorne honestly and openly participated in the pre-employment medical assessments. She disclosed her medical history and the aggravation to her injuries which occurred in her previous job. She was found to be fit for the job at Council, subject to some work restrictions, expressly stated to be for the purpose of avoiding aggravation. Council knew that.
- In relation to Mr Mooketsi, I noted one area of his evidence that was unsatisfactory. He was asked in cross-examination what was meant in Mr Courtney’s email by reference to a “claim”. He was asked if it was an issue of risk. Mr Mooketsi suggested that he did not know. He said “Your guess is as good as mine”. That is not a credible answer for a person qualified and practising in human resources. I accept, as submitted by Ms Thorne, that Mr Courtney was referring to the risk of a workers compensation claim.
- Likewise in relation to Mr Tytherleigh, there were unsatisfactory aspects of his evidence. He adopted a combative attitude under cross-examination. He appeared determined to attack Ms Thorne’s integrity as a means of bolstering his position. I am troubled by the leap in reasoning from what he described as a “lack of frankness” about her medical condition to doubting whether she could be trusted to observe confidentiality in her role in human resources. During cross-examination Mr Tytherleigh’s language became more inflammatory. He accused Ms Thorne of “lying” and said that she had been “caught out”. Like Mr Mooketsi, he did not answer a question about the meaning of Mr Courtney’s comment in relation to the risk of a “claim” in a straightforward way, saying that “risk” was not Mr Courtney’s area, it was workplace, health and safety.
- The Anti-Discrimination Act 1991 (Qld) (the Act), prohibits discrimination on the basis of impairment in the area of work, including the pre-work area.
- Discrimination in the pre-work area includes, relevantly, discrimination in the arrangements made for deciding who should be offered work. Discrimination in the work area includes, relevantly, discrimination in dismissing a worker or by treating a worker unfavourably in any way in connection with work. Dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.
- Although Ms Thorne has asserted indirect discrimination in her final submissions, her case was not conducted by reference to the imposition of an unreasonable term, with which she could not comply, but which a higher proportion of people without her impairment could comply. Ms Thorne has not addressed the elements of section 11 of the Act. I do not consider there is any evidence on which I can further consider the assertion of indirect discrimination.
- It is not in issue that Ms Thorne suffers an impairment within the terms of the Act.
- To succeed in her claim of direct discrimination, Ms Thorne must establish the elements of section 10 of the Act, namely:
- (a)on the basis of her impairment, namely injured wrists;
- (b)the Council and Mr Tytherleigh treated her less favourably than another person was treated, who did not have injured wrists;
- (c)in circumstances that are the same or not materially different; and
- (d)if there are two or more reasons why she was treated less favourably, her medical condition is a substantial reason for the treatment.
- The analysis involves consideration of a comparator.
- Ms Thorne does not refer to a real or hypothetical comparator. She merely asserts in her closing submissions that she was treated less favourably than a person without her impairment. She says that a person without her impairment would not endure the same treatment.
- The Council and Mr Tytherleigh submit that the relevant material circumstances are those of an employee on probation whom the employer believes has misrepresented matters that are relevant to the employee’s performance of the position.
- I think the respondents’ formulation is erroneous. It seeks to insert a purported reason for its treatment of Ms Thorne as a circumstance surrounding her treatment.
- Taking guidance from the High Court in Purvis v New South Wales the circumstances to be described are “all of the objective features which surround the actual or intended treatment of the disabled person”.
- I think the comparator is an employee of the Council who does not have injured wrists. The circumstances that are “the same or not materially different”, are that the person is nearing the end of their probationary employment and they require ongoing restrictions to the way in which their work is performed.
- Mr Mooketsi and Mr Tytherleigh gave some evidence in relation to persons employed by the Council who could be considered a comparator. Mr Mooketsi said in cross examination that Council employs people with medical conditions. He also said that Council employs people who are performing restricted duties. They are accommodated within the workplace. He said that the Council is supportive, that there are rehabilitation officers to ensure the employees work safely and that they don’t aggravate existing injuries. Mr Mooketsi said that Council provides a safe environment. Mr Tytherleigh gave evidence that a large number of staff work to suitable duties on account of injuries and that they have management plans. He said that Council can manage people with injuries. The respondents submitted that the Council has a demonstrated willingness, facilities and a record of supporting and accommodating people with impairments in various circumstances.
- I am reluctant to include in the description of the “circumstances that are the same or not materially different”, a belief of the employer that the employee has misrepresented matters that are relevant to the employee’s performance of the position. I am reluctant to do so because it is an issue in this case whether that was a truly held belief or merely an assertion to cover another, discriminatory, reason for the Council’s treatment of Ms Thorne. I do not think at this stage the Council’s belief about a misrepresentation can be considered an “objective feature” surrounding the treatment of Ms Thorne. The issue is one on which a finding will be made. The finding will be relevant to the question of why the Council treated Ms Thorne in the way that it did.
Issues to be determined
- It is necessary to make findings of fact in relation to the following matters:
- (a)whether Ms Thorne’s complaints as to how she was treated are made out.
- (b)Whether that treatment was less favourable than another person without Ms Thorne’s impairment would have been treated in circumstances that are the same or not materially different.
- (c)Why was Ms Thorne treated in that way? Was it because of her impairment and the associated risk to the Council of a claim against it arising out of the impairment? Was it because of a lack of trust and confidence in Ms Thorne as a result of her answer to the interview question about a medical condition which may affect performance of the job and her subsequent conversations with Jerry Mooketsi?
- (d)Subject to the outcome of these issues, if there are 2 or more reasons for less favourable treatment of Ms Thorne, was her impairment a substantial reason?
- (e)Are Mr Tytherleigh and the Council able to establish a defence under the Act?
Complaints about Ms Thorne’s treatment
- Ms Thorne’s principal complaint is that her employment was not continued past the end of her probationary period. Associated with that complaint are her concerns at the way she perceived her medical condition was discussed and her hands were scrutinized for a period before the decision was made not to continue her employment.
- It is not in dispute that Ms Thorne’s employment was not continued past the end of her probationary period. I find that occurred and that it constitutes a dismissal and unfavourable treatment in connection with her work, as contemplated by s 15 of the Act. An analysis of comparative treatment remains to be undertaken.
- I accept that Ms Thorne perceived her hands were the subject of scrutiny during the last few days of her employment, however, the allegation is vague. I do not consider she has provided any evidence of such unreasonable conduct with reference to her hands, that it could amount to unfavourable treatment in connection with work.
- I will deal with the complaint of discussion about her medical condition in the period leading up to termination, later in the decision.
- Ms Thorne also complains about the way the pre-employment process was undertaken. She asserts that for weeks, her hands were the topic of conversation, which negatively impacted on her self-esteem. She says that she felt as though she would not get the position because of her medical history and felt discriminated against, despite the fact that she knew she could succeed in the position. I do not think the interview process, including the pre-employment medical assessments were conducted in any way other than directed at determining whether Ms Thorn had the capacity to perform the job for which she applied. In fact, she was successful in obtaining the job and appeared to be satisfied with the work restrictions developed to guard against aggravation of her injury. For these reasons, I cannot find that there has been any pre-employment discrimination in the terms of the Act.
- Ms Thorne complains that she was asked a range of personal questions about her condition in the days leading up to her termination, including how long her disability would last. She also complains that she felt completely victimized and discriminated against when Mr Tytherleigh and Mr Mooketsi asked if they could ring her previous manager to discuss her medical condition. She said that she did not understand the relevance. She complains that she was told if she did not permit the interaction then it looked like she was hiding something about her condition.
- In this regard, I note s 124 of the Act. The section provides that a person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based. It is a defence to a proceeding for a contravention of this section of the Act if the respondent proves, on the balance of probabilities that the information was reasonably required for a purpose that did not involve discrimination.
- Ms Thorne has not formally claimed a breach of s 124 of the Act against Council and Mr Tytherleigh. However, I think her complaint about the questions she was asked in the period leading up to termination of employment squarely raises the issue.
- The questions asked of and about Ms Thorne were:
- (a)Asking Dr Madden how long the work restrictions outlined in his earlier report were to continue. I consider that question could reasonably be asked to ensure a safe work environment for Ms Thorne, rather than to elicit an answer on which unlawful discrimination could be based.
- (b)The questions asked by Mr Mooketsi in the interview on 28 August, 2014. I consider that the questions asked about how Ms Thorne was finding the role, how she was managing the work restrictions and how much writing, typing and lifting she was doing were reasonable to ensure a safe work environment. I do not think they were a request for unnecessary information on which unlawful discrimination might be based.
Likewise, I think it is reasonable for Mr Mooketsi to ask Ms Thorne if she disagreed with anything in Dr Madden’s further report, particularly in relation to the length of time work restrictions should continue.
However, it is difficult to see the relevance to the safe performance of Ms Thorne’s job at the Council, for questions to be asked about:
- the work she was doing at Easternwell;
- the work that she specifically did when she aggravated the injury – for example, writing, typing, photocopying, stapling, filing, lifting and carrying things;
- what work she was then doing at Easternwell in light of her aggravated injury;
- whether she was on any suitable duties program or similar program;
- whether she had any difficulties complying with the program;
- if the suitable duties program worked;
- whether Council could talk to her immediate supervisor at Easternwell and the overall manager of the group/Branch.
Mr Mooketsi’s evidence seeking to justify the questions is that he was growing increasingly concerned about the inconsistent information Ms Thorne was providing him. I do not think Ms Thorne was providing inconsistent information. She restated in the 28 August, 2014 interview all the matters which had been disclosed to Mr Mooketsi and Dr Madden, during the pre-employment process. Mr Mooketsi said that because of the “inconsistencies” he was concerned that Ms Thorne may not be open and honest about matters relevant to the performance of her job. He said that he wanted to confirm that Ms Thorne complied with the restrictions and candidly advised her supervisor of the true status of her condition from time to time as relevant and any issues then. He said he thought that information might be of assistance. He does not say assistance with what matter.
I think that the information sought by Mr Mooketsi was unnecessary for continued management of Ms Thorne to ensure that she worked safely and did not aggravate her injuries whilst employed by the Council. Ms Thorne was a Council employee entirely subject to its direction and control. I think the questions Mr Mooketsi wished to ask Easternwell could reasonably be construed as a request for unnecessary information on which unlawful discrimination might be based. Ms Thorne cross- examined Mr Mooketsi as to why, rather than contacting Easternwell, he did not arrange to speak to Dr Madden or her medical specialist or an occupational therapist, if he was concerned about the need for ongoing work restrictions. Mr Mooketsi said that he thought information from Easternwell would be sufficient. He gave no direct answer in relation to her question about why he did not speak to her specialist or an occupational therapist, but said that: “we decided you could not be trusted”.
- (c)Ms Thorne ultimately agreed to questions being asked of Easternwell about work that she did when she aggravated her injury, the suitable duties program and “how she went”. Those questions were asked in the email from Mr Mooketsi to Mr Stacey. I think those questions were unnecessary and that they sought information about Ms Thorne’s medical condition which were directed to the risk to an organisation if Ms Thorne aggravated her injuries. That was information on which unlawful discrimination might be based. Ms Thorne put it to Mr Mooketsi in cross examination that risk and the prospect for a claim against the Council was the reason for termination of her employment. Mr Mooketsi denied this and said that there was no discussion of risk at the time of termination of her employment. I do not accept this answer. I find that the questions put to Ms Thorne in relation to aggravation of her injuries at Easternwell and the questions put to Easternwell about these issues were directed to the risk Ms Thorne’s injuries posed to the Council, in the event that she aggravated her injuries whilst performing work. The Council’s proper concern should only relate to Ms Thorne’s fitness for the job in which she was employed by the Council. Dr Madden made it perfectly plain that she was fit for the job in question provided she worked in accordance with particular restrictions. The evidence is that she did so.
- I find that contrary to section 124 of the Act, Council sought unnecessary information on which unlawful discrimination could be based.
- Ms Thorne also complains that Mr Tytherleigh asked Ms Benjamin about how she obtained her injury. Ms Benjamin does not address that issue in her evidence. At the hearing, Ms Thorne did not ask Ms Benjamin or Mr Tytherleigh about the conversation. I do not think there is sufficient evidence for me to make any finding in relation to this complaint.
- I have found that Ms Thorne was treated unfavourably in relation to her employment and that she was dismissed in the terms of the Act. I have found that she and Easternwell were asked unnecessary questions on which unlawful discrimination could be based.
Less favourable treatment than a comparator
- Ms Thorne must establish that the treatment she received was less favourable than the treatment of a person who does not have injured wrists, who is nearing the end of their probationary period and who requires ongoing restrictions to the way in which their work is performed.
- The only evidence about the treatment of other employees with injuries or medical conditions (which I assume includes people who do not have injuries to their wrists) came from Mr Mooketsi and Mr Tytherleigh. There was no evidence as to whether these people might be on probation, but I think I can draw that conclusion from Mr Mooketsi’s evidence that people with medical conditions are appointed. It is usual for a probationary period to follow appointment.
- From the evidence of Mr Mooketsi and Mr Tytherleigh, I find that Council employees who do not have injuries to their wrists, but who do have some form of injury or disability are employed and continue in their employment whilst performing restricted duties. I find that by not continuing Ms Thorne’s employment at the end of her probationary period, Ms Thorne was treated less favourably than a person without injuries to their wrists, in circumstances where they are nearing the end of their probationary period and they require ongoing restrictions to the way in which their work is performed.
Why was Ms Thorne treated less favourably than the comparator?
- Ms Thorne must establish a causal connection between her treatment and her impairment. That is, she must establish on the balance of probability that her treatment was because of her impairment.
- The Council submits that it was purely lack of confidence in Ms Thorne’s honesty that informed the Respondents’ decision to terminate her probation.
- The Council submits that the information it acquired after Ms Thorne’s dismissal supports its belief that Ms Thorne could not be trusted because she had mislead the Council in relation to her capacity to perform the job. It asserts that its after acquired knowledge demonstrates that Ms Thorne knew she did not have the capacity to perform the job, because of her injured wrists and that she was expecting and planning for dismissal, she was making plans for other work and she was seeking income protection insurance to cover a future claim.
- I have previously dealt with these issues insofar as they might affect the credit of Ms Thorne and have found that she made a satisfactory explanation, so that her credit as a witness is not affected. I do not think these issues are relevant to a finding as to the real reason why the Council and Mr Tytherleigh decided to dismiss Ms Thorne from employment. I think the only relevant information is the information known by the Council and Mr Tytherleigh at the time of her dismissal. For this reason I have excluded the after acquired information from my consideration.
- Mr Tytherleigh is the decision maker who determined not to continue Ms Thorne’s employment. He did so after reflecting on conversations with Mr Mooketsi. Mr Mooketsi told him about Dr Madden’s August, 2014 report. They discussed why Ms Thorne had not revealed the extent of her medical history and the work restrictions at her previous employer when asked the question in the first interview as to whether she had a medical condition which would prevent her performing the duties of the position. They discussed Ms Thorne’s off the record conversation with Mr Mooketsi about a similar question raised in another interview with a prospective employer.
- Although I have found that Mr Mooketsi did have a conversation with Ms Thorne during the pre-employment phase about aggravation of her injuries at Easternwell and the fact that she undertook restricted duties as a result, I do not think Mr Mooketsi passed this information onto Mr Tytherleigh. I accept that Mr Tytherleigh did not know that this information had been disclosed by Ms Thorne.
- Mr Tytherleigh gave evidence that he made the decision to dismiss Ms Thorne because he could not trust her not to breach confidentiality in her role in human resources which gave her access to sensitive confidential information. The decision appears to have flowed from:
- (a)considerations as to what Mr Tytherleigh called the disconnect between the answer given in the first interview and what had been expressed in Dr Madden’s letter, to the effect that she had aggravated her injury performing administrative work;
- (b)that she may not be open about her capacity and may not be able to work safely; and
- (c)because her honesty was in question, she may not be trusted with confidential information.
- Mr Tytherleigh confirmed these matters at the hearing. Under cross-examination Mr Tytherleigh said that he did not accept Ms Thorne had divulged information about her injury and aggravation of the injury in the pre-employment phase. He said that she should have divulged the seriousness of her condition and that it was easily aggravated, in the first interview. In cross-examination he went further and said that Ms Thorne had lied at the interview and had been caught out.
- On the basis of Mr Mooketsi’s evidence, I find that he referred the issue of Ms Thorne’s ongoing employment to Mr Tytherleigh because of concerns in relation to her ability to continue working in the role without injuring herself. Mr Mooketsi gave evidence that was an issue for him. It is also consistent with the range of questions he asked Ms Thorne and Easternwell. Those concerns were passed onto Mr Tytherleigh and are reflected in Mr Tytherleigh’s considerations.
- Mr Tytherleigh’s evidence suggests that there was more than one reason at play in his decision. First, the reason given in the termination letter to Ms Thorne, being a lack of frankness in her pre-employment interview, resulting in a lack of trust and confidence. Second, the reason given in his evidence in chief - that because she had shown herself not to be honest in her pre-employment interview she could not be trusted not to divulge confidential information. Third, the underlying consideration reflected in Mr Mooketsi’s concerns, that Ms Thorne may not be open and honest about her ability to perform her duties and that may impact on her ability to perform work safely.
- Mr Tytherleigh does not refer in his evidence in chief to the “off the record” conversation between Mr Mooketsi and Ms Thorne as forming part of his decision. It is put in the Council’s submissions as a reason for dismissal of Ms Thorne. At best, that conversation formed part of the discussion between Mr Mooketsi and Mr Tytherleigh prior to Mr Tytherleigh making up his mind to dismiss Ms Thorne and influenced Mr Tytherleigh’s view that Ms Thorne had not been frank in the interview process.
- Present in the deliberations of Mr Mooketsi and Mr Tytherleigh was the risk that Ms Thorne would aggravate her injuries whilst employed at the Council if she was not honest about her capacity. It is her impairment that gives rise to the risk, although both witnesses framed the concern as whether Ms Thorne could be relied upon to say if she was “ok or not” in the performance of her duties and whether she could work safely.
- I think that the emphasis on reliance, or trust in Ms Thorne by the Council and Mr Tytherleigh is a smokescreen for their real concern that Ms Thorne’s impairment may result in a claim being made against the Council in the event that she suffered an aggravation of her injuries whilst performing her work. The likelihood of a claim by Ms Thorne was raised in Mr Courtney’s email to Mr Mooketsi. Both Mr Mooketsi and Mr Tytherleigh were evasive when cross-examined about the email.
- There are a number of reasons why I think reference to “reliance” and “trust” is a smokescreen.
- First, the Council must be taken to know the questions it can lawfully ask of a job candidate. However, it now complains that Ms Thorne is untrustworthy because she did not provide an answer to a question it did not and could not ask. Ms Thorne was not asked in the first interview to describe her medical history or its impact on previous work. The Council complains that Ms Thorne is unreliable and untrustworthy because she did not proffer information not requested of her. Mr Tytherleigh expected Ms Thorne to say at the first interview that she had a serious medical condition which was easily aggravated. The attitude of the Council and Mr Tytherleigh is patently unreasonable in the face of the question it asked and the process it had in place for obtaining a medical opinion of fitness for the role.
- Second, Mr Mooketsi and Mr Tytherleigh were apprised of Dr Madden’s May, 2014 report which declared her fit her the job provided she worked to restricted duties to avoid an aggravation of her injuries. From that report, the Council and Mr Tytherleigh knew Ms Thorne had a medical condition. They knew the condition put her at risk of aggravated injuries. They knew that to avoid aggravation of the injuries Ms Thorne must follow a particular work plan. Those were the relevant facts for management of Ms Thorne. Plainly, Dr Madden reached his conclusion by reference to an understanding of Ms Thorne’s medical condition and history, the tasks that posed a risk of aggravation and the accommodations that were necessary to avoid the risk. The facts relevant for the Council did not change in August, 2014 when Dr Madden provided it with some of the medical history which informed his opinion. That medical history did not change Ms Thorne’s ongoing management. There was nothing relevant, which the Council was not told, when Ms Thorne was appointed.
- Third, Ms Thorne was asked to give a subjective opinion on her physical capacity to do the job in question. I have found that she gave an honest answer based on advice from her treating surgeon and her evaluation of the tasks in the new role. For an independent opinion, the Council requires its Doctor to express a medical opinion on Ms Thorne’s physical capacity to do the job. The Doctor does so by probing Ms Thorne’s medical history and assessing its relevance to the job description. Dr Madden completed the task with the help of an occupational therapist and expressed a clear medical opinion as to fitness for the job.
- Finally, there is no evidence that Ms Thorne did not observe the restricted duties directed by Dr Madden. Ms Thorne gave evidence that she was able to manage any difficulties she encountered by the simple strategies of massage and breaking up her duties. There is no reasonable basis for an opinion that Ms Thorne may be unreliable or untrustworthy where her medical condition is concerned. The Council did not take up Ms Thorne’s suggestion of a medical examination to check if her injuries had been aggravated by her work.
- A false construct has been created to suggest that Ms Thorne is unreliable and untrustworthy. The Council and Mr Tytherleigh have built on that false construct to suggest that because Ms Thorne can be characterised as unreliable and untrustworthy she may not be open and honest about her capacity to perform her work. The Council and Mr Tytherleigh’s reasoning is so expedient, that I cannot find it a genuinely held opinion that Ms Thorne was unreliable or untrustworthy.
- I find that a reason for dismissal of Ms Thorne was her impairment and the attendant risk of a claim against the Council arising out of an aggravation of her injuries. I find that it was not a reason for her dismissal that Ms Thorne could not be relied on or trusted to be open about her capacity to do her work safely.
Was Ms Thorne’s impairment a “substantial reason” for her treatment?
- Section 11(4) of the Act provides that if there are 2 or more reasons why a person treats another with an impairment less favourably, they do so on the basis of the impairment, if the impairment is “a substantial reason” for the treatment. The section does not require that the impairment be the sole or dominant reason for the treatment. Bearing its ordinary meaning, substantial is defined as being real or actual, solid, material or important.
- I have found that a reason for dismissal of Ms Thorne was her impairment with its attendant risk of aggravation and thus a claim against the Council. Mr Tytherleigh expressed other reasons for the dismissal, including that she is likely to divulge Council’s confidential information and that she has not been frank.
- Those accusations are not based on a rational premise. They are based on the same false construct I have discussed. That is, Ms Thorne did not proffer information in circumstances where that information was not and could not lawfully have been requested of her and where the Council had all the relevant facts. I doubt whether the reasons given for dismissal are based on genuinely held opinions.
- Ms Thorne’s impairment and the attendant risk that she may aggravate her injuries whilst at work stands as a substantial reason for her treatment by the Council.
- The Council and Mr Tytherleigh refer to sections 35 and 36 of the Act in their submissions. They say that they did not dismiss Ms Thorne because of any unjustifiable hardship associated with providing her with special services or facilities or because the circumstances of the impairment would impose unjustifiable hardship on them. However, they submit that after Ms Thorne’s dismissal they learned that Ms Thorne’s injuries were worsening from performing her duties and that it is possible the circumstances of her impairment would have required the supply of special services such as to cause unjustifiable hardship.
- I reject this submission as raising any defence to Ms Thorne’s claim. There is no medical evidence that Ms Thorne’s injuries were worsening. There is no evidence that special services were required. There is no evidence of unjustifiable hardship now or in the future.
- For the reasons set out in this decision, I find that the Council and Mr Tytherleigh have unlawfully discriminated against Ms Thorne on the basis of her impairment. I note that in its statement of contentions filed in the proceeding, the Council has asserted that at all relevant times, Mr Tytherleigh was acting in the course of his work. As Mr Tytherleigh was the person who took the decision to dismiss Ms Thorne and who gave effect to the decision, he is liable for the contravention of the Act. By s 133 of the Act, the Council is vicariously liable for the contravention.
- The Council has requested an order pursuant to s 64 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), that Mr Tytherleigh be released from the proceedings. Because of the findings made in this decision, I decline to make this order. In any event, I consider the request to be misconceived.
- Ms Thorne seeks:
- (a)Re-instatement in an alternative location.
- (b)Any record that defames her character in terms of naming her as a dishonest person to be corrected and/or deleted.
- (c)Financial compensation for lost salary between the date of termination (not including the week of salary in lieu through until the 12th of October as well as the 27th November until the finalization of the claim.
- (d)Compensation for damage in equal financial amount to the amount listed above.
- A remedy of re-instatement was not canvassed by Ms Thorne at the hearing. I have no evidence in relation to the capacity of the Council to re-instate Ms Thorne. For that reason I decline to order re-instatement.
- Ms Thorne has not specified any document that defames her character. I am unable to make a meaningful order in relation to this request. In any event my findings in relation to the circumstances surrounding dismissal of Ms Thorne are set out this decision, which is a matter of public record.
- At the hearing, Ms Thorne submitted that she was seeking to resign, because a record of dishonesty was affecting her career. The respondents submit that they are unable to change the record to express a resignation when that is not in fact what occurred. I accept that submission.
- At the hearing, Ms Thorne submitted in relation to her claim for economic loss that she sought a payment for the period 1 September, 2014 to 1 October, 2015, when she obtained other employment. She seeks the payment by reference to her Council salary of $74,000.00 per annum.
- The Council submits that the applicant was paid one week in lieu of notice when she was terminated from employment and that she was managing Concenti Academy of Music, working in Quinci Living and working for University of Southern Queensland immediately after she was terminated from her employment. There is no evidence before me in relation to the details of any of that work. The Council appended some documents relating to those organisations to their submissions in reply. I am unable to accord those documents any weight, as they were not put in evidence.
- Ms Thorne has not submitted any evidence to substantiate her claim for past economic loss. At the least I would have expected her to tender a copy of relevant income tax returns and evidence of attempts to gain other work. That evidence should have been available to enable cross-examination by the respondents. I am unable to make any award for economic loss.
- That leaves Ms Thorne’s claim for compensation for damage, which is defined in the Act to include offence, embarrassment, humiliation and intimidation suffered by a person. Ms Thorne appears to claim a sum equivalent to the amount of her economic loss claim in the order of approximately $80,000.00. She offers no comparative decisions in justification of this sum.
- Ms Thorne’s evidence in chief addresses her feelings of stress, depression, lack of self-worth and anxiety as a result of the discrimination she suffered. She says that she attempted suicide shortly after the termination of her employment because of diminution in self worth, the prospects for her future and the hurt and humiliation that she felt. Ms Thorne says that she is currently taking anti-depressants and termination of employment, the discrimination she endured and the flow on effects have contributed to this. She further says that she felt humiliated and embarrassed and was sick at the thought that her colleagues would be told that she was terminated for being dishonest or for her medical condition. She said that she is hugely concerned that her public record states she was terminated for dishonesty and that may jeopardize her ability to obtain positions into the future.
- No medical evidence was tendered in relation to Ms Thorne’s psychological state. However, Ms Thorne was not challenged in cross-examination in relation to these matters. I accept that Ms Thorne did suffer hurt and humiliation as a result of her dismissal from employment in the circumstances in which it occurred.
- Upon reference to other cases involving termination of employment as a consequence of discriminatory conduct, I consider an appropriate award of compensation for hurt and humiliation is $10,000.00. The Council and Mr Tytherleigh are jointly and severally liable to pay that sum to Ms Thorne.
- I Order that the First Respondent, the Toowoomba Regional Council and the Second Respondent, Kelvin Tytherleigh, pay to the Applicant Lauren Edwina Thorne the sum of $10,000.00 within 28 days of the date of this Order.
 Statement of Evidence of Kevin Tytherleigh, dated 20 November, 2015 – Exhibit 9 at para 24.
 Exhibit 9 at paras 25,26 and 27.
 Exhibit 9 at para 31.
 Statement of Evidence of Jerry Mooketsi, dated 23 November, 2015 – Exhibit 8, attachment “JJM2”.
 Ss 7,8,,9,10,11, 13,14 and 15 of the Anti-Discrimination Act 1991 (Qld).
 Definition of “impairment”, Schedule to the Anti-Discrimination Act 1991 (Qld).
 (2003) 217 CLR 92 at 224.
 Exhibit 8 attachment “JJM 15”.
 Statement of Jerry Mooketsi, dated 23 November, 2015 – Exhibit 8 at para 68.
 Dovedeen Pty Ltd v GK  QCA 116, the Queensland Court of Appeal found that there was a causation element to the direct discrimination provision in s 10 of the Act.
 Statement of Kevin Tytherleigh, dated 20 November, 2015 – Exhibit 9 at para 31.
 Statement of Kevin Tytherleigh, dated 20 November, 2015 – Exhibit 9 at paras 25,26 and 27.
 Macquarie Dictionary, 4th edition, Macquarie Dictionary Publishers Pty Ltd, The University of Sydney, 2007, p.1220.
 Section 124 Anti-Discrimination Act 1991 (Qld).
 Stallard v Alsun Aluminium Pty Ltd and Anor  QCAT 490; Webb v Lightfoot  QCAT 233; Irvine v Porter v Mermaids Café and Bar Pty Ltd and Ingall (No 2)  QCAT 482.
- Published Case Name:
Thorne v Toowoomba Regional Council & Tytherleigh
- Shortened Case Name:
Thorne v Toowoomba Regional Council
 QCAT 212
27 Jun 2016