Jenkins v Queensland[2018] QCAT 154

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Table of Contents

Introduction3

Direct discrimination – the Applicant’s case as identified in her Contentions5

What was the extent of the individual Respondents’ knowledge of the Applicant’s impairment?7

Treatment ‘on the basis of’ a protected attribute – the causal element for direct discrimination9

Relevant legal principles – the standard of proof21

Circumstantial evidence and the drawing of inferences21

Claims against the Second Respondent23

The November 2014 leave incident23

The December 2014 direction28

The August 2015 incident29

The October 2015 incident29

The January 2016 and the April 2016 incidents30

The July 2016 incident31

Claims against the Third Respondent31

The October 2014 disciplinary action31

The November 2014 disciplinary action32

The December 2014 incident33

The May 2015 direction34

Complaint against the Fourth Respondent34

The Fourth Respondent’s December 2014 direction34

General and special compensation and other relief36

Introduction

1. [1]
   The Applicant, a police sergeant, has brought multiple complaints of discriminatory conduct against the State of Queensland, through its agency the Queensland Police Service (‘the QPS’) and three of its senior officers, arising out of twelve (12) events which it is contended occurred during 2014, 2015 and 2016.
2. [2]
   The claims made involve a level of complexity, and have multi-faceted aspects. At a most generalised level, the Applicant has alleged that the Respondents, in various ways, engaged in direct discrimination against her on the basis of an impairment which she suffered, namely post-traumatic stress disorder (‘PTSD’).
3. [3]
   It is not in issue that at the times at which these complaints are directed, the Applicant had PTSD which was an impairment within the meaning of that expression in s 7(1)(h) of the Anti-Discrimination Act 1991 (Qld) (‘the Act’). There is a dispute as to the extent to which the existence of that impairment was a matter that was known to the individual Second, Third and Fourth Respondents.
4. [4]
   The Applicant commenced work in the QPS in January 2000. In October 2010 she was promoted to the rank of Sergeant. In October 2011 she was working at the Richmond Police Station, in Far North Queensland and was exposed to significant trauma related to two incidents. The first incident was a suicide that she attended whilst working as a Sergeant in the QPS. This caused her distress, particularly as the deceased was well known to her daughter and her daughter’s fiancé. The second incident was another suicide that she was required to attend, again in a small country town outside of Townsville, but this time the deceased was her daughter’s fiancé. According to the medical evidence from her psychologist, these incidents were the basis for her suffering chronic PTSD and clinical depression. This also caused her to become severely hyper vigilant to all potential suicide risk in the future.
5. [5]
   Following these incidents, she had a period off work, but resumed her position with WorkCover continuing to pay for counselling for her. In October 2011 she was transferred from the Richmond Station on compassionate grounds. On 22 December 2012 she commenced employment at the Toowoomba Watch House as a Sergeant in the position of Shift Supervisor.
6. [6]
   Although she acknowledges that this move was essential for her recovery, it proved to be detrimental to her wellbeing because her duties were a trigger to the critical incidents. She was referred to a medical specialist and again ceased work in November 2013.
7. [7]
   She underwent treatment and medication trials and returned to work in September 2014 under what was described as a ‘Graduated Suitable Duties Plan’. The decision that she undertake the plan was made with a view to her having reduced hours and duties to enable her to reintegrate into the workplace.
8. [8]
   There is a report from her treating psychiatrist, Dr Andrea Boros-Lavack, which identifies that the psychiatrist had been treating her since November 2013, and that as a result of work-related incidents in October 2011, she sustained chronic PTSD and associated depressive disorder, for which she was provided treatment. After that treatment, her chronic PTSD was assessed by the Medical Tribunal and she was given a 12.5% partial permanent incapacity rating in March 2015.
9. [9]
   After her return to work, the Applicant continued to see her psychiatrist on a regular basis, as well as a community mental health nurse who was her case manager and engaged her in recovery-oriented therapy under the psychiatrist’s supervision.
10. [10]
    She was also treated with eye movement desensitisation and reprocessing, and evidenced-based talk therapy for PTSD by her psychologist, Jason Toombs. The report of Mr Toombs identifies that he is a psychologist in Toowoomba with over 25 years of experience, and that the Applicant was referred to him in May 2014 for treatment of her chronic PTSD and clinical depression. Both Dr Boros-Lavack and Mr Toombs have continued with their treatment of the Applicant more recently.
11. [11]
    Unfortunately, Dr Boros-Lavack did not make herself available, even by phone, for the purposes of being cross-examined by Counsel for the Respondents. The doctor had given notice well in advance of the hearing that she would be unavailable on the dates allocated. During the hearing it was ascertained that the doctor was in New Zealand but would not permit contact details to be provided. Notwithstanding that there was no opportunity to cross-examine Dr Boros-Lavack, it has not been suggested by Counsel for the Respondents that they were disadvantaged in any particular way by her unavailability to be cross-examined. Some aspects of the report of Dr Boros-Lavack, which go to the specific reports that the Applicant made about her conduct, may well have been the subject of cross-examination. I infer this because that was the direction in which cross-examination of the psychologist Mr Toombs took. No submission was made, however, that the opinions of Dr Boros-Lavack as to the effects of the actual or perceived discrimination inflicted upon the Applicant did not occur as she describes them. The same may be said of the evidence of Mr Toombs. In relation to the opinions of each of those practitioners, the weight to be given to those opinions about the significance for the Applicant of the conduct to which she was allegedly exposed, depends upon whether in fact the conduct in question occurred in the way in which the Applicant contends.
12. [12]
    Having heard the evidence of the Applicant and given careful consideration to it, and to the medical reports which have been tendered, I am satisfied that the Applicant perceived herself to have been subjected to discriminatory conduct in the ways in which she has described it in her statement, and in the ways in which she has reported it to her doctors. She struck me as a diligent and well-intentioned police officer, doing her best to secure a useful role within the police service.
13. [13]
    That however is not the end of the problem, because of course the question for me to decide is whether that discriminatory conduct occurred; whether she accurately perceived it to have occurred in the way that she describes or not. Then I must consider what consequences flowed from any such conduct.
14. [14]
    In this context, I note the observation of Mr Toombs; when being cross-examined about the reliability of the account, he was provided by the Applicant as to what had occurred to her at the Toowoomba Watch House, that even if her account was not accurate, there is no doubt that she had perceived that it was. He said, and I accept, that individuals with PTSD have a propensity to perceive that others are ‘ganging up’ against them.

Direct discrimination – the Applicant’s case as identified in her Contentions

15. [15]
    It is unlawful for a person performing any function or exercising any power under Queensland law to discriminate against a person on the basis of the person's impairment.
16. [16]
    Section 7 of the Act prohibits discrimination on the basis of certain attributes, which include ‘impairment’, defined in the Schedule to the Act as including the loss of a bodily function. Section 8 of the Act provides that discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of a characteristic that a person with that attribute generally has. Section 9 prohibits both direct and indirect discrimination.
17. [17]
    Section 10 of the Act, which deals with direct discrimination, provides (with examples omitted):

10 Meaning of direct discrimination

1. (1)
   Direct discrimination on the basis of an attribute happens 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.

2. (2)
   It is not necessary that the person who discriminates considers the treatment is less favourable.

3. (3)
   The person’s motive for discriminating is irrelevant.

4. (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.

5. (5)
   In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

18. [18]
    I turn now to the Applicant’s case based on direct discrimination. At the conclusion of the hearing, the Applicant relied upon earlier filed written submissions, as well as making oral submissions which summarised her case. In her own case the Applicant gave evidence and Mr Toombs did so by phone. Each of the Second, Third and Fourth Respondents gave evidence.
19. [19]
    From her submissions it may be seen that the case alleged against the Second Respondent, Senior Sergeant Draheim, her immediate supervisor, is that he directly discriminated against her on the basis of her impairments by engaging in seven (7) specific and identifiable actions in his capacity as the Officer-in-Charge of the Toowoomba Watch House, and the direct supervisor of the Applicant between 22 December 2012 and 14 August 2017, as follows:

    1. (a)
       Allegedly declining to process, or not processing the Applicant’s application for recreation leave in respect of which she sought leave from 17 to 21 November 2014 (‘the November 2014 leave incident’);
    2. (b)
       On 23 December 2014, allegedly discriminating against the Applicant on the basis of her impairment by speaking rudely and abruptly to her because the Applicant had taken sick leave for the period 13 November to 27 November 2014, and in directing her not to perform her duties (‘the December 2014 direction’). In this context it was also contended that the Second Respondent threatened sanctions by a supervisor, and humiliated the Applicant by making her stand and wait for the Inspector to deal with her;
    3. (c)
       On 3 August 2015, directly discriminating against her on the basis of her impairment by stating that he would not support a professional development opportunity because of the amount of leave that the Applicant had taken to date (‘the August 2015 incident’);
    4. (d)
       On 26 October 2015, directly discriminating against her on the basis of her impairment commending her practice of not taking sick leave, during a performance review. In other words, if she attended her duties and did not take leave, he would support professional development opportunities for her (‘the October 2015 incident’);
    5. (e)
       On 18 January 2016, directly discriminating against her on the basis of her impairment by refusing to support a development opportunity that she was interested in (‘the January 2016 incident’);
    6. (f)
       On 29 April 2016, directly discriminating against her on the basis of her impairment by again refusing to support a development opportunity that she was interested in (‘the April 2016 incident’);
    7. (g)
       On 11 July 2016, directly discriminating against her on the basis of her impairment by stating during a performance review that the Applicant would now be supported for development opportunities, but only at her rank, and in circumstances in which she was ‘no longer being punished’ (‘the July 2016 incident’).
20. [20]
    The Third Respondent was the direct supervisor of the Second Respondent, and held the rank of Inspector for the Toowoomba City Patrol Group. His responsibilities included overview of the Toowoomba Watch House. The case against him is as follows:

    1. (a)
       On 18 October 2014, he directly discriminated against the Applicant on the basis of her impairment by threatening to commence disciplinary action against her if she took sick leave that she was proposing to take for the period 13 November 2014 to 27 November 2014 (‘the October 2014 disciplinary action’). It may be seen that this allegation is associated with the November 2014 leave incident, and the December 2014 direction referred to above;
    2. (b)
       On 25 November 2014, he directly discriminated against her on the basis of her impairment by directing the Second Respondent to initiate a disciplinary complaint against the Applicant without consultation with her, or without inviting her input, and that this complaint was initiated because she had taken sick leave for the period 13 November 2014 to 27 November 2014 (‘the November 2014 disciplinary action’);
    3. (c)
       On 4 December 2014, he directly discriminated against her on the basis of her impairment by requesting her to change her sick leave application which had effectively sought retrospective approval for the sick leave she had taken in November 2014, so that it was a recreational leave application instead, failing which she would be sanctioned (‘the December 2014 incident’);
    4. (d)
       On 10 May 2015, he directly discriminated against her on the basis of her impairment by directing her to take accrued recreation leave against her wishes, in circumstances in which that leave had accumulated beyond permissible levels because of her absence from work due to her impairment (‘the May 2015 direction’).
21. [21]
    The case against the Fourth Respondent involved conduct allegedly occurring whilst he was relieving as an Inspector for the Toowoomba City Patrol Group, and which included review of the Watch House. Effectively, he was the temporary supervising Inspector for a period little more than a week in December 2014.
22. [22]
    The allegation against him is that on 16 December 2014 he directly discriminated against the Applicant on the basis of her impairment by asking her, through an email cc’d by the Second Respondent, to explain her whereabouts while she was on sick leave, despite the fact that a medical certificate had been provided for this period (‘the Fourth Respondent’s December 2014 direction’).

What was the extent of the individual Respondents’ knowledge of the Applicant’s impairment?

23. [23]
    Although the Applicant did not articulate her case as being one which was based upon circumstantial evidence, there were clearly aspects of it which were circumstantial in the sense that they required an inference to be drawn that the conduct which she contended was directed at her, was on the basis of her impairment. That was because there was no concession by any of the Respondents that anything they did was done on the basis of her impairment, and except in the case of her immediate superior, the Second Respondent, there was little to demonstrate that they were aware of the fact that she had an impairment.
24. [24]
    There was otherwise no “smoking gun” that identified that any of the alleged conduct by the Respondents occurred on the basis of her impairment, although some of what was alleged against the Second Respondent carried with it, by its very nature, the notion that it was on that basis.
25. [25]
    The Fourth Respondent, whose role was limited to events in a single week in December 2014, said he had no knowledge of the Applicant, had had no previous dealings with her, and was unaware of her impairment. That evidence was not challenged in cross-examination.
26. [26]
    The Third Respondent, who was in the most senior position of the three individual Respondents, had no recollection of ever having personally met the Applicant, and their dealings on the telephone had been her reporting the fact that juveniles were being kept in the Watch House. They did not concern her impairment. He too swore that he was unaware of the Applicant’s impairment. His evidence was that on or about 13 November 2014, the Injury Management Co-ordinator, a Ms Rennie, had emailed him to advise that she had received a phone call from the Applicant’s psychiatrist, and, he is now aware, probably enclosed a letter. It did not enclose a medical certificate per se. He is unable to recall whether he read the email or saw the letter, or sighted the medical certificate that was supposed to follow.
27. [27]
    The objective evidence is that Dr Boros-Lavack sent a fax cover sheet to Ms Rennie on 13 November 2014, with a notation under the message heading ‘Medical certificate attached with a letter from the doctor’ addressed to Ms Rennie and which stated:

I am stopping Jenny’s RTWP (referring to the Return To Work Plan referenced earlier) for two weeks from today, 13.11.14 to 27.11.2014 due to medical reasons. She will have more medication and talk therapy for stabilisation during this period of time. It is envisaged that she can return to work from 28.11.2014.

28. [28]
    I am somewhat sceptical of the contention by the Third Respondent that he was entirely unaware of her impairment. On his own evidence, he was communicating with the Second Respondent about a week and a half after the 13 November psychiatrist’s letter. That is, on 25 November 2014 he was having discussions with the Second Respondent about the veracity of her claim to have reported sick for the period 13 November 2014 to 27 November 2014. In his affidavit, one of the explanations he provided for requiring the Applicant to provide details of what she did during the period of absence was because he had significant concerns over the veracity of her sick leave claim. He mentioned though that:

… when the medical certificate was eventually received and sighted, it was apparent the doctor who wrote the certificate was the same doctor who had previously sent a letter supporting her application for recreation leave.

This statement is a little perplexing, because it appears to conflict with the contention that he had no knowledge that she had an impairment, whilst at the same time appearing to acknowledge that it indicated she was under the treatment of a psychiatrist, and that the psychiatrist had previously written a letter supporting an application for recreation leave. The letter to which he is referring was a letter dated 2 October 2014, written more than a month earlier, and which had been attached to a letter from the Applicant dated 8 October 2014 and which in turn had been sent to the Second Respondent.

29. [29]
    The letter from the Applicant of 2 October 2014 made reference to the fact that the attached letter was ‘a letter of approval from my doctor confirming that the leave will not interfere with the RTW program’. The letter from the doctor certified that the Applicant should be given recreation leave to attend her daughter’s wedding in Cairns between 17 and 21 November 2014 whilst she was under the Return To Work Program (‘RTWP’). As was explained in the evidence, and which I accept, if one is to interrupt a RTWP for recreation leave, it needs the approval of the treating doctor to ensure that that interruption does not adversely affect the program.
30. [30]
    It is not easy to see how the fact that there was known to be a psychiatrist, who was overseeing the RTWP, who was prepared to certify that recreation leave would not interfere with the program, sits with the proposition in paragraph 27 of the Third Respondent’s affidavit that it was a relevant consideration as to whether to request details of what she did during her leave, that the doctor who provided the medical certificate had ‘previously sent a letter supporting her application for recreation leave’ whilst at the same time contending that he had no knowledge of her impairment.
31. [31]
    Having said that, the Applicant did not challenge the evidence of either the Third or Fourth Respondents, that, at the material times at which they took action in relation to her, neither of them was aware that she had an impairment. It cannot be presumed that merely by virtue of the fact that a person is returning to work under a RTWP, and under supervision of the psychiatrist, that one has a remnant impairment, although common sense would suggest that it would raise a question about whether there was any remnant element. I incline to the view absent that challenge to the evidence of the Third and Fourth Respondents on this issue, that it should be accepted. My general impression of the Third and Fourth Respondents was that they were responsible and well intentioned senior officers within the QPS, had no personal animosity toward or adverse attitude toward the Applicant, and were unlikely to have taken adverse action against her of the kind contended for had they known of the existence of her impairment.
32. [32]
    The position of the Second Respondent is quite different. Senior Sergeant Draheim knew of her absence from work on sick leave for almost a year until she returned to work on 22 September 2014. He was aware that the Applicant was under a RTWP, because he had signed it as her supervisor. In paragraph [62] of his affidavit he conceded that he was aware of her impairment for that reason, but contends that his attitude was that where he was aware that officers in the Watch House had mental health issues, he would take appropriate steps to obtain support for the officers in line with his responsibilities as a manager.
33. [33]
    At least in relation to the Second Respondent, the possible inference that he acted adversely toward the Applicant on the basis of her impairment is open, because he at least was aware of the impairment at the time of the conduct complained of.

Treatment ‘on the basis of’ a protected attribute – the causal element for direct discrimination

34. [34]
    Section 10(1) of the Act requires that the Applicant establish that the Respondent has treated her or proposed to treat her in a discriminatory way ‘on the basis of’ the relevant attribute. Section 10 of the Act provides that a person’s motive for discriminating is irrelevant.
35. [35]
    The Queensland Court of Appeal in JM v QFG and GK [1998] QCA 228 gave careful consideration to the approach to be taken to ascertaining whether something occurred on ‘the basis of’ an attribute. That case involved an appeal from a decision of the Anti-Discrimination Tribunal concerning whether a refusal of treatment at an infertility clinic on the claimed basis that a patient’s lawful sexual choice of lesbianism amounted to direct discrimination. The approach of the court was to carefully identify precisely what was the reason for the refusal of the treatment. It was held on an analysis of the evidence that it could not have been said to have been her exclusive lesbianism, but rather the fact that she failed to comply with the Respondent’s definition of what constituted infertility, which led to her being refused the relevant treatment.
36. [36]
    Thomas JA said, in that case:^[1]

...a proper reading of the doctor’s evidence demonstrates that there was no such discrimination on the basis of the patient’s lesbian sexual activity, and it was not open to find that there was. The evidence showed that doctors providing services of this kind (including the respondent doctor) endeavoured to act upon reports and statements made by various bodies including the National Bioethics Committee. That Committee had published the view that “the most commonly accepted definition [of infertility] within medicine is the inability of a couple to conceive after twelve months of intercourse without contraception.“ That definition on any reasonable view seems to contemplate failure to conceive after intercourse between members of opposite sexes before infertility is established.

37. [37]
    And later Thomas JA said:^[2]

It is true that as the result of some leading and argumentative cross-examination by the President the doctor made statements, which taken in isolation, admitted the lesbian relationship as the basis of his decision. But those concurrences were driven by the “stable and exclusive lesbian relationship” fallacy mentioned above, and also, it would seem, by the assumption in the questioning that the failure of a member of a lesbian couple to qualify was the result of her lesbian sexual activity rather than the result of her sexual inactivity with a member of the opposite sex. This is addressed in (c) below.

...

(c) The true basis of the doctor’s refusal to provide services to the patient was not because of her lesbian activity but because of her heterosexual inactivity. Minds may differ on the question, but common sense suggests that many lesbians are also prepared to engage in heterosexual activity. One can only include the quality of heterosexual inactivity in a particular individual if one overworks the term “lawful sexual activity” by adding personal relationship factors such as “exclusive relationship” to the concept.

38. [38]
    Davies JA said:^[3]

What the President appears to have done is to conclude that, because it was exclusive lesbianism which, on the evidence of the second respondent, prevented the appellant from complying with the reason for treatment, exclusive lesbianism was the reason or a substantial reason, for refusal of treatment. That is neither logically nor legally correct. On the second respondent’s evidence the reason why she was refused treatment was that she did not comply with the second respondent’s definition of infertility. The reason why, in turn, she did not so comply was her exclusive lesbianism. But it is the first, not the second, which is the reason, and the only reason, for refusal. The second is not a reason for refusal as, in other cases, celibacy or the engaging in exclusively protected intercourse or the failure to maintain a relationship for 12 months would not be a reason for refusal. Each is merely one of the categories of person who does not comply with the reason for treatment, the sole reason for refusal being non-compliance with that reason, namely infertility as defined by the second respondent and others.

39. [39]
    The High Court in Australian Iron and Steel Pty Ltd v Banovic was concerned with allegations of direct discrimination on the basis of sex, or gender.^[4] It was alleged that workers were retrenched because they had not been employed before a particular date. It was said that this amounted to discrimination on the basis of gender because the waiting period for employment with that employer was for a longer period for women than it was for men. Hence female workers were being retrenched because the male workers had in effect been employed longer, and before the relevant cut-off date. In the joint judgment of Justices Deane and Gaudron JJ it was held that:

... in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or the decision. And that may also be the case where some factor is identified as common to a significant proportion of those adversely affected.

Even if it could be said that a factor common to all or a significant proportion of those who were adversely affected by the decision of AIS to retrench by the “last on, first off” method was that they were women, a further finding that that was the true basis of the decision would be necessary to render [the equivalent to section 10] applicable… There is no finding to that effect by the Tribunal.

40. [40]
    Hence the court in Australian Iron and Steel Pty Ltd v Banovic concluded since the reason for retrenchment was the time at which employees were employed, and even though women were more affected by those retrenchments because they were more likely to have been employed later, there was no direct discrimination. The court went on to consider the alternative case of whether it was a case of indirect discrimination.
41. [41]
    Shortly after Banovic was decided the High Court revisited the issue in Waters & Ors v Public Transport Corporation (1991) 103 ALR 513.
42. [42]
    The complaints of discrimination there arose out of a direction by the Minister for Transport to the Public Transport Corporation to introduce changes to the public transport system. One of these changes was a new ticketing system for public transport involving travellers making a scratch mark on tickets. The other change involved the removal of conductors from some trams. The disabilities of the individual appellants made it difficult or impossible for them to use the scratch tickets. Some of them could not travel on trams which did not have conductors. The Board determined that the changes involved discrimination and ordered the Corporation to discontinue the changes.
43. [43]
    In examining the extent to which a causal connection between the basis for the relevant act and alleged direct discrimination, members of the Court differed. Mason CJ and Gaudron J (Deane J agreeing) said, under the heading ‘Section 17(1): does it require an intention or motive to discriminate?’, as follows:^[5]

There is some force in the suggestion that the expressions “on the ground of the status” and “by reason of the private life” in s 17(1) look to an intention or motive on the part of the alleged discriminator that is related to the status or private life of the other person: see Department of Health v Arumugam [1988] VR 319, per Fullagar J at 327. However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose: Ontario Human Rights Commission v Simpsons-Sears Ltd, at 547; see also Street, at CLR 487, 566. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, “to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status”. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of “on the ground of” and “by reason of”.

44. [44]
    A similar view was adopted by the House of Lords in R v Birmingham City Council; Ex parte Equal Opportunities Commission in relation to s 1(1)(a) of the Sex Discrimination Act (UK),^[6] which proscribed less-favourable treatment on the ground of sex. Lord Goff of Chieveley (with whom the other members of the House agreed) said:^[7] ‘The intention or motive of the defendant to discriminate… is not a necessary condition of liability’.
45. [45]
    His Lordship noted that, if intention or motive were relevant:^[8]

… it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys…

46. [46]
    McHugh J differed with this approach, distinguishing between the tests to be applied as to motive, intent and causation depending on whether the discrimination was direct or indirect. He said:^[9]

The words “on the ground of the status or by reason of the private life of the other person” in s 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. I am unable to accept the statement of Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 at 1193–4, and the statements of Deane and Gaudron JJ (at CLR 176-7) in Banovic concerning intention or motive to discriminate if they are intended to suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator (the discriminator) be actuated by status or private life in a provision such as s 17(1).

With great respect to Deane and Gaudron JJ, I think that the examples given by them in Banovic as to intention or motive not being a necessary condition of liability are cases which are caught by the concept of indirect discrimination which fall within section 17(5). The words “on the ground of” and “by reason of” require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (the victim). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. Of course, in determining whether a person has been treated differently “on the ground of” status or private life, the Board is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then “the ground of” the act of the discriminator was the status or private life of the victim: see Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61, per Mahoney JA at 66. But if the discriminator would have acted in the way in which he or she did, irrespective of the factor of status or private life, then the discriminator has not acted “on the ground of the status or by reason of the private life” of the victim. Likewise, if the discriminator genuinely acts on a non-discriminatory ground, then he or she does not act on the ground of status or private life even though the effect of the act may impact differently on those with a different status or private life. Thus, in Director-General of Education v Breen (1982) 2 IR 93, the Court of Appeal of New South Wales held that the Director-General had not acted “on the ground of sex” in selecting principals for non-secondary schools from a primary school promotions list rather than an infant’s school promotions list even though the use of the former list favoured male teachers. Only 1.5 per cent of teachers on the infants list were male but on the primary schools list 39 per cent of the teachers were male. Absent an intention to use the primary list to disadvantage females, discrimination in a case such as Breen can be established only by relying on a provision similar to section 17(5). At the relevant time, however, the Act had no such equivalent.

The effect of the introductory words of section 17(5), however, is that an act which falls within that sub- section is deemed for the purpose of section 17(1) to constitute treating “the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life”. If the alleged discriminator has in fact treated the other person “less favourably”, in the circumstances specified in section 17(1), then discrimination is made out and section 17(5) is irrelevant. Section 17(5), therefore, operates only in situations where section 17(1) is inapplicable. The hypothesis upon which section 17(5) is built is that the alleged discriminator has not in fact treated the other person “less favourably”. Yet discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different. Thus, both direct and indirect discrimination involve the notion of one person being treated “less favourably” than another.

How then can a case of indirect discrimination come within section 17(5) and yet not come within section 17(1)? The answer is that in section 17(5) “discrimination” is defined in an artificial sense and is dealing with situations where a requirement or condition is imposed equally but has an adverse or more adverse effect on persons of a particular status or with a different private life. A person may be guilty of discrimination under section 17(5) although he or she was not actuated in any way by status or private life.

47. [47]
    In Purvis v New South Wales (Department of Education and Training) the High Court considered these authorities in the context of a claim of disability discrimination.^[10]
48. [48]
    In that case the relevant Act stated that it was unlawful for an educational authority to discriminate against a student ‘on the ground of’ the student's disability. It stated that a person discriminates against another person on the ground of that person's disability if, ‘because of’ the person's disability, the discriminator treats him or her less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
49. [49]
    Chief Justice Gleeson said that:^[11]

In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex.

50. [50]
    After referring to the judgements referred to above from Waters v Public Transport Corporation, of Mason CJ and Gaudron J and that also of McHugh J, the Chief Justice said:^[12]

[159] ... However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ.

[160] The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.

51. [51]
    After referring to later authority Gleeson J said:^[13]

[166] The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act.

52. [52]
    The leading judgement in Purvis was delivered by Gummow, Hayne and Heydon JJ. For present purposes, relevantly, they identified the issue under consideration as being whether the Commissioner’s conclusion that the student’s behaviour occurred as a result of his disability and that:^[14]

… “in this case, Daniel's behaviour is so closely connected to his disability that if … less favourable treatment has occurred on the ground of Daniel's behaviour then this will amount to discrimination on the ground of his disability".

They did not reference in their reasons the cases discussed by the Chief Justice on how to identify the ‘true basis’ for the act or decision.

53. [53]
    The question was posed in these terms by reference to what was required to show direct discrimination:^[15]

[224] The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.

[225] In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions:

1. (i)
   How, in those circumstances, would the educational authority have treated a person without Daniel's disability?

2. (ii)
   If Daniel's treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel's disability?

Section 5(1) could be engaged in the application of section 22 only if it were found that Daniel was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Daniel's treatment.

54. [54]
    Hence those judges held that the 'circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person' by the alleged discriminator. In Purvis, the circumstances in which the student was treated as he was included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less-favourably than other pupils were. Accordingly, the comparator was a student who was not disabled, but who had acted in the same violent manner as had Daniel. Callinan J agreed with Gummow, Hayne and Heydon as to the circumstances that were to be ascribed to the comparator.
55. [55]
    The judgement of the dissenting judges McHugh and Kirby JJ, on the issue of the appropriate comparator, and as to the causation issue, are informative. As to the former they said:^[16]

Provisions that extend the definition of discrimination to cover the characteristics of a person have the purpose of ensuring that anti-discrimination legislation is not evaded by using such characteristics as "proxies" for discriminating on the basic grounds covered by the legislation. But the purpose of a disability discrimination Act would be defeated if the comparator issue was determined in a way that enabled the characteristics of the disabled person to be attributed to the comparator. If the functional limitations and consequences of being blind or an amputee were to be attributed to the comparator as part of the relevant circumstances, for example, persons suffering from those disabilities would lose the protection of the Act in many situations. They would certainly lose it in any case where a characteristic of the disability, rather than the underlying condition, was the ground of unequal treatment.

56. [56]
    In relation to the causation question McHugh and Kirby JJ said:^[17]

[148] The words "because of" in s 5(1) of the Act indicate that it is the reason why the discriminator acted that is relevant. This interpretation is also consistent with s 10 of the Act, which refers to an act done for two or more "reasons". In dealing with s 10 the Explanatory Memorandum to the Disability Discrimination Bill also stated that "[i]n relation to direct discrimination the reason that someone has done a particular discriminatory act is very important." However, the cases show differences of opinion concerning the relevance of the alleged discriminator's motive or intention.

[149] A "but for" test was applied by Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission where his Lordship said:

There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate … is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex. [Otherwise] it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but … because of customer preference, or to save money, or even to avoid controversy.

[150] By placing the words "intention" and "motive" together and denying that either is necessary for a finding of direct discrimination, his Lordship opened the way for the submission that direct discrimination does not contain an intention element. However, intention and motive are not the same thing.

[151] In James v Eastleigh Borough Council, Sir Nicolas Browne-Wilkinson VC rejected the "but for" test. His Lordship said:

[O]ne is looking, not to the causative link between the defendant's behaviour and the detriment to the plaintiff, but to the reason why the defendant treated the plaintiff less favourably. The relevant question is 'did the defendant act on the ground of sex?' not 'did the less favourable treatment result from the defendant's actions?'

[152] His Lordship said "the legally determinant matter is the true reason for the defendant's behaviour, not his intention or motive in so behaving."

[153] But on appeal the House of Lords reversed the decision. Lord Goff, together with Lord Bridge of Harwich and Lord Ackner, reaffirmed the objective "but for" test as the relevant test. However, the dissentients, Lord Griffiths and Lord Lowry, criticised the "causative" approach as dispensing with essential statutory criteria. Lord Lowry said:

It can thus be seen that the causative construction not only gets rid of unessential and often irrelevant mental ingredients, such as malice, prejudice, desire and motive, but also dispenses with an essential ingredient, namely, the ground on which the discriminator acts. The appellant's construction relieves the complainant of the need to prove anything except that A has done an act which results in less favourable treatment for B by reason of B's sex, which reduces to insignificance the words 'on the ground of.' Thus the causative test is too wide and is grammatically unsound, because it necessarily disregards the fact that the less favourable treatment is meted out to the victim on the ground of the victim's sex. (original emphasis)

[154] Since James, however, the United Kingdom courts have moved away from the "but for" test. In Nagarajan v London Regional Transport, Lord Nicholls of Birkenhead held that it is necessary to consider the reason of the alleged discriminator but that his or her motive is irrelevant. His Lordship said:

[I]n every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator …

The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred … Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign.

[155] In Chief Constable of the West Yorkshire Police v Khan Lord Nicholls again rejected the "but for" test. He said:

For the reasons I sought to explain in Nagarajan v London Regional Transport … a causation exercise of this type is not required … The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.

[156] The House of Lords recently affirmed these principles in Shamoon v Chief Constable of the Royal Ulster Constabulary. Lord Hope of Craighead said that in most cases "the reason why" will call for some consideration of the mental processes of the alleged discriminator.

[157] These more recent English authorities are consistent with the approach taken by the Australian courts. In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex.

[158] In Waters v Public Transport Corporation, Mason CJ and Gaudron J (Deane J agreeing) approved the view of Deane and Gaudron JJ in Banovic that motive or intention to discriminate is not required. Their Honours said that it is enough if the difference in treatment is based on the prohibited ground, notwithstanding an absence of motive or intention.

[159] In Waters, McHugh J rejected the statement of Lord Goff in Birmingham and the statements of Deane and Gaudron JJ in Banovic concerning motive or intention, in so far as they might suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator was actuated by the prohibited ground. His Honour said:

The words 'on the ground of' and 'by reason of' require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ('the victim'). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did.

However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ.

[160] The reasoning in discrimination cases in that Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.

[161] Subsequent decisions have applied this approach to the question of causation. In Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd Lockhart J said:

The plain words of the legislation … necessarily render relevant the defendant's reason for doing an act, that is the reason why the defendant treated the complainant less favourably.

[162] His Honour also said that the presence of intention, motive or purpose relating to health does not necessarily detract from the conclusion that there is discrimination on the prohibited ground – in that case, sex.

[163] In University of Ballarat v Bridges, having considered the decisions in Banovic and Waters, as well as dictionary definitions, Ormiston J concluded that both "ground" and "reason" connote a basis that actuates or moves a person to decide a matter or to act in a particular way. His Honour said:

[N]otwithstanding that it has been said on many occasions that the Act should be given a broad interpretation, the object of the legislature was to look at the reasoning process behind the decision, conscious and unconscious, at least so far as direct discrimination is concerned.

[164] His Honour said that motive and purpose should be treated as largely irrelevant so long as it can be shown that the person charged intended to do an act that in fact amounts to unlawful discrimination.

[165] It is true that statements of Toohey J and Gummow J in IW v City of Perth might appear to support a "but for" test in discrimination cases. Kirby J, after referring to the "reasons for the conduct of the alleged discriminator", said that the "but for" test applied by the House of Lords in James and by this Court in Banovic and Waters was "the correct test". In IW v City of Perth, however, the references to the "but for" test were expressed in relation to a decision of a corporate body that was made by its Councillors casting votes.

[166] The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act. The Commissioner appears to have wrongly characterised the principle that he applied – which was the correct principle. He correctly held that the benevolent motive of the principal did not excuse the discriminatory treatment of Mr Hoggan.

[167] The Commissioner also correctly found that, because Mr Hoggan was treated less favourably because of his behaviour, he was discriminated against on the ground of his disability. Mr Hoggan's behaviour is a manifestation of his disability. In X v McHugh (Auditor-General for the State of Tasmania), Sir Ronald Wilson said that it is enough if an employer is shown to have discriminated because of a manifestation of a disability. The decision in X v McHugh was followed in Y v Australia Post where the Commission said:

[T]o discriminate against a person suffering a mental disorder because of the behaviour of that person which directly results from that mental disorder, is to discriminate against that person because of the mental disorder.

[168] The validity of this principle can be seen by considering situations where the disability manifests itself in ways that society perhaps finds more acceptable than in cases where the disability manifests itself in dangerous conduct. In Randell v Consolidated Bearing Co (SA) Pty Ltd, for example, an employer was held to have discriminated against an employee on the ground of his disability by dismissing him because of his difficulties with the stock numbering system used in the employer's warehouse. These difficulties were a manifestation of the employee's dyslexia.

[169] The Commissioner also found that the reason for Mr Hoggan's exclusion from the school, unlike the reason for his suspensions, included issues other than his behaviour. The Commissioner found that, although Mr Hoggan's behaviour was a factor in his exclusion, it was not the only factor. He found that the principal had also acted because Mr Hoggan was unable to cope with the stresses of high school life as a result of his disability. Section 10 of the Act states that, if an act is done for two or more reasons and one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act), the act is taken to be done for that reason. Because the Commissioner found that the decision to exclude Mr Hoggan was made on this basis, the Commissioner's decision can be supported without having to consider issues relating to behaviour.

[170] In our view, when the Act is applied according to its true construction, the Commissioner was correct in finding that the State through its agents had discriminated against Mr Hoggan.

57. [57]
    As Justice McHugh said in Waters v Public Transport Corporation, ‘on the ground of’ and ‘by reason of’ require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of ‘the victim’. The protected attribute, to use the language of the Act, must be at least one of the factors which moved the discriminator to act as he or she did. And, as his Honour said, of course, in determining whether a person has been treated differently ‘on the ground of’ that matter, this Tribunal is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then ‘the ground of’ the act of the discriminator was the status or private life of the victim.

Relevant legal principles – the standard of proof

58. [58]
    It is well-established that proceedings of this nature involving allegations of discriminatory conduct nature such as the present, albeit civil proceedings, with the requisite civil standard of proof applying, are required to meet the standards of the so-called Briginshaw test.^[18]
59. [59]
    The Briginshaw principle so-called is understood as requiring care in cases where serious allegations have been made or a finding is likely to produce grave consequences. Importantly, Briginshaw does not alter the standard of proof, that is, on the balance of probabilities, as the High Court emphasised in its authoritative re-statement of the Briginshaw principle in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.^[19] Briginshaw does import some flexibility to the civil standard by directing attention to the strength of the evidence required in attaining the civil standard of proof, focusing on the probative value of such evidence. Essentially, it goes to the degree of persuasion of the mind.
60. [60]
    Thus the High Court in Neat stated that:^[20]

… the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.

61. [61]
    In short, the more serious the allegation, the more probative or stronger the evidence needs to be. Having said this, in Neat the High Court cautioned against generalisations about the need for ‘clear’ or ‘cogent’ evidence, even where the standard of proof was correctly understood. These were ‘likely to be unhelpful and even misleading’.

Circumstantial evidence and the drawing of inferences

62. [62]
    In the present case, as is the case in many discrimination cases, there are real issues concerned with what inferences may be drawn from proven facts.
63. [63]
    In relation to the issue of drawing inferences from proven facts, according to oft-cited dicta of Street CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd:^[21]

… the plaintiff must prove his case; and although he may establish a state of facts which lead one to think that his version is quite a possible version of what took place, he must do something more than show a state of facts which is consistent with one view or with another view … A guess is a mere opinion or judgment formed at random and based on slight or uncertain grounds. In contradistinction to such a conjectural opinion, an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts. It must be something which follows from given premises as certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect.

64. [64]
    Where an applicant claims an inference should be drawn:^[22]

There must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture … The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability — a mere scintilla of probability such as would not warrant a finding in a civil action … to such practical certainty as would justify a conviction in a criminal prosecution.

65. [65]
    In Jones v Dunkel, Kitto J stated:^[23]

One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed…

66. [66]
    In G v H, Brennan and McHugh JJ defined an inference in the context of judicial decision-making as:^[24]

… a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference: Martin v Osborne (1936) 55 CLR 367. But the drawing of an inference is part of the process of fact finding: it has to do with the minor premise in the syllogism of judgment, not with the major premise of legal principle.

67. [67]
    An inference is not to be drawn and will be a ‘matter of conjecture’ where the circumstances give rise to conflicting inferences of equal probability.^[25]
68. [68]
    In Dharmalingham v Western NSW Local Health District,^[26] the New South Wales Civil and Administrative Tribunal the summarised the relevant approach:

There was no direct evidence that the comment was made on the ground of the applicant’s race. The issue of what happens when there is no direct evidence has been discussed in decisions including Dutt, Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 (Edwards) and Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. Where there is no direct evidence, an applicant must rely upon inference. In Dutt the Tribunal noted that the authorities identify the flowing considerations in respect of drawing inferences to prove less favourable treatment:

• a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from the primary facts;
• an inference must be reasonably drawn on the basis of primary facts;
• an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;
• a fact relied upon as the basis of an inference need not be proved to the requisite standard of proof;
• it is not enough that the inference is a mere possibility: it must be one of "probable connection";
• the inference must be a logical one, and not supposition;
• an inference cannot be made where more probable and innocent explanations are available on the evidence.

Claims against the Second Respondent

The November 2014 leave incident

69. [69]
    As was referenced earlier in these Reasons, on 22 September 2014, the Applicant returned to work at the Toowoomba Watch House after a long period of being on sick leave. Three weeks later, on 3 October 2014, she made an electronic leave application for recreation leave for the period 17 November 2014 to 21 November 2014. The objective documentary evidence shows that she expressly indicated in that application that it was to organise and attend her daughter’s wedding in Cairns. It specifically referenced the fact that she had received a report the previous year advising of her exemption from the leave embargo that had been imposed on police staff whilst the G20 conference of international leaders was occurring. As it turns out, the G20 conference was to occur at that time, and it is common ground that there had been a leave embargo on police officers for that period, except for sick leave. The period to which the embargo applied was 3 November 2014 to 21 November 2014.
70. [70]
    Her application letter also pointed out that she was on a RTWP, had no commitments to the G20 event, and had a doctor who had approved that leave, that is, that it would not interfere with her RTW program. The report from Dr Andrea Boros-Lavack was attached.
71. [71]
    I find that there was a discussion between the Applicant, and the Second Respondent on 15 September 2014, prior to her return to work on 22 September 2014, to discuss her return to work arrangements, and it was in the course of that that she had first indicated that she wanted to take leave in November for her daughter’s wedding.
72. [72]
    The Second Respondent contends that in the discussion she told him she had a report from a commissioned officer stating that she could take leave during that time. Her application for leave dated 3 October reflects that state of mind. He contends that she was told she could submit an application for leave but it was subject to approval by a Deputy Commissioner and that it was unlikely she would get it. He contends that she then responded that she would ‘go sick’ if the leave application was not approved, to which he is said to have responded that this was not appropriate. According to his evidence she has then stated that her doctor would have no problem writing her a certificate.
73. [73]
    He made a diary note in his diary for 15 September 2014 that recorded some of these things, but omitted others, critically the comment that she had received a report excusing her from the embargo. It contains these words ‘Jenny said she would go sick if she couldn’t get the leave and that her doctor would have no problem with certificate’.
74. [74]
    Although the Applicant did not deal with this alleged meeting in her written statement of evidence, in cross-examination she conceded that there was a meeting on that date. She initially denied knowing that there was a leave embargo, or at least the dates of it, but accepted that she knew that there would be one. She accepted that she knew by 15 September 2014 that the embargo applied to recreational leave but did not know that there were other kinds of leave to which it applied including sick leave. She did not know that if the application was for recreation leave in the embargo period it needed approval by an Assistant Commissioner and that if not approved by the Assistant Commissioner that she would not get the leave.
75. [75]
    She denied saying in the 15 September meeting that she wanted the leave to go to her daughter’s wedding, although she did concede that she had said this in a later conversation with the Second Respondent. She conceded that he had said that there was no leave allowed in the G20 period, to which she responded that she had a report releasing her from that embargo. She accepted that she may have been asked who the commissioned officer was that gave the release and as to where the officer was from. She denied stating that she would ‘go sick’ or that the doctor would give her a certificate if the leave was not approved.
76. [76]
    I accept that there must have been some conversation on that day in which it was communicated to her that there was an embargo on recreational leave. I also accept, however, that she clearly believed she had been given an exemption from it. That meant that she genuinely believed she had prospects of getting recreational leave. It is difficult to see why she would have volunteered, at that time, that she would need to make the application on some different basis because she had no particular reason to think she would not get that leave, or because she would not be able to find the release document she believed she had been provided until she later searched for it. That is, there was no reason for her necessarily to have said that if she did not get the leave she would ‘go sick’. I consider it likely that there was a discussion about her health, and the prospects that a doctor would certify it as appropriate for her to attend her daughter’s wedding.
77. [77]
    It is clear that, by the time she made her electronic leave application approximately a fortnight later, she was still applying for recreation leave, not sick leave, and had specifically included her treating psychiatrist in the process to obtain the psychiatrist’s approval for that course. It is improbable that she specifically said in that meeting words that implied that if she was not given the recreational leave for that wedding she would falsely or improperly apply for sick leave in circumstances in which she believed she was not entitled to it. I am not satisfied that the Second Respondent’s diary note that refers to that comment accurately reflects what it was that the Applicant said on that occasion. I accept that the Second Respondent believed she had said she would ‘go sick’.
78. [78]
    After this conversation of 15 September the Applicant made enquiries to try to locate the report she had understood she had been provided in 2013 exempting her from the leave restrictions. She believed she had saved it on the computer in the Watch House, and had kept the email attaching it, but due to the replacement of a computer operating system, the data had been deleted. In cross-examination of her on this issue, it was put to her that she had fabricated the claim that she had received such an exemption. Other evidence suggested that it was unlikely that such an exemption would have been given to her by any officer with authority to provide it. In the end it is unnecessary to resolve the issue of whether she had or had not actually received such an exemption. The probabilities are that she had not. I accept however that she genuinely believed she had received an exemption in 2013 and the fact that she believed that is reflected in communications she sent in 2014. The fact that she did not clarify until well after the 15 September meeting that she could not obtain a copy of that exemption assists me in arriving at the conclusion that she is unlikely to have made an adamant statement in that meeting that if she did not get the leave, she would make some false claim to enable her to go on sick leave.
79. [79]
    The Second Respondent received the Applicant’s letter of 8 October 2014 with the attached psychiatrist’s report. That letter identifies that the Applicant believed she had an exemption. She asked that her application be considered.
80. [80]
    On the Second Respondent’s evidence, on 9 October 2014 he asked the Applicant if she had located the exemption report and she told him she had not. He told her that he could not endorse her application for recreation leave but that he would be able to alter the roster so that she could have the maximum number of days off to allow her to attend the wedding. According to the Second Respondent she then repeated her ‘earlier threat’ that ‘if her recreation leave was not approved, she would go sick’. He further contended that he told her that this would not be appropriate to which she responded that her doctor would have no problem writing her a medical certificate. He made another diary note on that day and that note is in evidence.
81. [81]
    The Second Respondent then contacted the Third Respondent Inspector Wheeler and communicated his understanding of what he had just been told. This in due course led to action by Inspector Wheeler which is also the subject of complaint in this proceeding against him. The Applicant denied that this conversation took place on 9 October 2014. She accepted that she was told that she would be given the maximum number of days off to attend the wedding, but says that this occurred on 22 September, not 9 October and she denied saying that she would ‘go sick’.
82. [82]
    I find that there was conversation that took place on 9 October between them and that in the course of that conversation the Second Respondent said words to the effect that the recreation leave sought would be declined if no further supporting exemption documentation was supplied. I accept that she communicated the idea that unless she received the recreation leave that it would be open to her to make an application to take the same time off as sick leave. There is nothing in the hand written diary note (which is largely illegible, and has not been translated) that appears to refer to the fact that her wedding attendance plans could be accommodated by roster adjustments.
83. [83]
    According to the Second Respondent he had another conversation with her the next day on 10 October 2014. In that conversation he asked if she had located the exemption report to which she responded she had not, despite having communicated with the Information Technology Branch to assist in finding it. He swore and I accept that he told her that given his understanding of the requirements of the leave embargo, he had no choice but to decline the leave request, and he noted in the application that he had declined it due to the embargo. He noted in his written comments that he was able to negotiate some days off during this time ‘as discussed’.
84. [84]
    I accept that there had been a discussion about accommodating those days off by roster changes, although whether that occurred on 9 October or some earlier date is not sufficiently clear on the evidence. It is in any event unnecessary to decide specifically when it was that it had been accommodated or said to be possible to accommodate it in that way. The idea though that he had already indicated an ability to accommodate her needs to be at the wedding without the need to use up her recreation leave would, as a matter of common sense, suggest that it is unlikely she felt so desperate to obtain a leave of absence approval that she would indicate a willingness to make a false application for sick leave. I accept that she probably made a remark from which the Second Respondent gained the impression that she might do so.
85. [85]
    It is apparent that even 2 days later, on Sunday, 12 October 2014, the Applicant was still hopeful she would locate the exemption letter. She certainly is unlikely to have decided to ‘go sick’. On that day she wrote to her Union representative explaining what she saw to be the history of the matter. She set out that she believed she had obtained an exemption from the G20 embargo based on her large leave balance, which had accumulated because of the time that she had been away from the workplace and unable to take that leave. She described having saved the report to her desktop. She then says she planned her daughter’s wedding based on the assumption she would have the time off and that she applied for leave. She indicated that her leave application had been declined and would not be progressed unless she could produce the report giving her the exemption. She asked for his assistance.
86. [86]
    The union representative responded six days later on Saturday, 18 October reporting on his enquiries, the substance of which was:

    1. (a)
       That it was unlikely she had received an exemption from the embargo because the dates of the G20 were not known in the previous year when she claimed to have received it;
    2. (b)
       That he had requested the QPS to give her such an exemption but that the District would not support it; and
    3. (c)
       That he had been told by the Second Respondent that he had a plan to afford her days off which would cover the majority of the leave she was requesting.
87. [87]
    As to [86](c), I note that this suggests that he had only recently identified that ability because the suggestion is not made that he had already discussed that with the Applicant.
88. [88]
    The next comment in the email of 18 October is significant. The ‘Inspector’ told her Union representative that if the Applicant ‘decided to go sick over that period’ he would instigate a disciplinary complaint, and added the comment ‘just so you know because I would have considered it if I was in your shoes’. This last comment means that the ‘Inspector’, that is presumably the Third Respondent, had already heard the suggestion that she might go sick over that period. The Union representative was telling her that he saw that she might be able to take it as sick leave but was warning her of the possible consequences if she did. The Union representative was not called as a witness at the hearing to explain what he was told exactly.
89. [89]
    In due course a disciplinary complaint was initiated in consequence of her taking leave in November.
90. [90]
    On 13 October 2014 the Applicant sent through her psychiatrist’s letter referred to earlier in these Reasons. By then it had become clear to the treating psychologist that it was appropriate for her to have that leave. I do not accept that the Applicant procured her psychiatrist to provide a false or bogus report to Ms Rennie on 13 November 2014. Nor was that report a report designed to improperly stop her RTWP for two weeks due to medical reasons, when the psychiatrist did not genuinely believe that it was appropriate for her to stop that program. The psychiatrist clearly held the genuine view that it was appropriate to do so.
91. [91]
    The report of Dr Boros-Lavack explains the situation, and I accept that it accurately reflects her thinking behind the decision. The Applicant had reported to her that there were incidents in her workplace that were causing her concern, that managers were intimidating her with threats of discipline for taking sick leave, and that management appeared to be targeting her legitimate medical condition and alleged resentment for the time she had been away from work to seek treatment. Dr Boros-Lavack said that these workplace incidents caused the Applicant to respond:

… with new onset of anxiety and depression. She was experiencing severe insomnia, anxiety episodes when travelling to work and depression consistent with adjustment disorder with anxious and low mood.

The psychiatrist decided, as a result of this new symptomology, to certify her unfit for the period 14 to 28 November 2014. To immerse her in her daughter’s wedding process was a deliberate decision which the doctor said was an integral part of her treatment. She concludes that the additional stress caused by not being afforded time off work to attend the wedding resulted in an increase in her symptoms.

92. [92]
    The Applicant did not turn up for her shifts, to the extent that she had them for the period 13 November 2014 to 27 November 2014. In due course, on 4 December 2014 the Applicant lodged an application for retrospective approval of sick leave for the period 13 November 2014 to 27 November 2014, and that was approved by Acting Inspector Deacon, the Fourth Respondent.
93. [93]
    In relation to the November 2014 leave incident, I find that the reason for the Second Respondent not processing or approving her application for recreation leave was not a means of targeting her legitimate medical condition, or resentment for the time she had been away from work to seek treatment, in the way that Dr Boros-Lavack identifies. I accept though that the Applicant perceived that to be the position and that she suffered anxiety and depression as a result of that perception.
94. [94]
    I accept that the Second Respondent declined the leave on the basis that:

    1. (a)
       There was an embargo on leave for that period which applied to all officers;
    2. (b)
       That at the time the leave was declined or not supported, the Second Respondent did not accept that the Applicant had been excused from the embargo; and
    3. (c)
       The Applicant could not produce any documentary evidence of that excusal. The application to him was not one for sick leave, and he did not decline it because she was sick or because he did not believe that she was sick.
95. [95]
    I therefore find that the failure to progress the application or approve that leave was not conduct that occurred on the basis of the Applicant’s impairment.

The December 2014 direction

96. [96]
    After the events in November 2014 described above, on 25 November 2014 the Second Respondent and the Third Respondent had a conversation in consequence of which the Second Respondent instigated an internal disciplinary investigation against the Applicant, arising out of her absence from work for the period 13 November to 27 November. At that stage the Applicant had not returned to work from her period away. In relation to the 25 November 2014 disciplinary process, the Applicant swore that that conduct, which seemed to be based on a suspicion of misconduct in taking sick leave, was based on ill will on the part of the Second Respondent and contempt for the fact that she had taken sick leave to treat her impairment. She swears and I accept the complaint was assessed by Ethical Standards and later found not to have been substantiated.
97. [97]
    On 15 December 2014, the Second Respondent was sent an email from his superior officer the Fourth Respondent, who was then the Acting Inspector. That email requested that the Applicant be prevailed upon to provide a written report in respect of a number of questions concerning her absence from work in November 2014.
98. [98]
    On 4 December 2014, a Sergeant Hampson called her into his office and said that he had spoken to the Third Respondent who had requested that she alter the application for sick leave to make it into an application for recreational leave, and that she should do so as an act of good faith. I accept her evidence on this issue.
99. [99]
    After she had returned to work, and on 16 December having received the email from the Second Respondent seeking an explanation for her conduct during the period she was on sick leave, she said she felt intimidated and bullied. She had no experience of persons who had sought sick leave on medical advice being challenged about the basis for their claims. She spoke to an officer at the union who advised her not to respond to it, that it was not a lawful direction.
100. [100]
     On 16 December, the Second Respondent onforwarded that email from the Fourth Respondent to the Applicant, and wanted a response to the questions it raised by 23 December.
101. [101]
     On 18 December she saw her psychiatrist and expressed her distress at having received this email. The psychiatrist reviewed her Suitable Duties Plan and decided to give her further leave from the period of the expiration of it on 26 December 2014. She then completed a medical certificate certifying the Applicant as unfit to work for a month from 26 December 2014.
102. [102]
     The events which are said to constitute the December 2014 direction occurred on 23 December when the Applicant was rostered to transport prisoners to Brisbane. The Applicant’s version is that the Second Respondent arrived at work, appeared to be annoyed, although not specifically about her. He then instructed her to come to his office. She contends that he was angry that she had put in another sick leave application on such short notice and without consideration for management. On her version, he asked her about her response to the report she had been required to produce by that day to which she responded that she would not be replying. She was told not to leave the Watch House until the Inspector had come and spoken to her. In the meantime, the prison transport was held up and she felt embarrassed and humiliated in front of her colleagues. She was advised by another officer to try to ignore what were seen to be harsh comments, and reassured her that she would be on leave from that day. An hour later they were finally directed to leave with the prisoners.
103. [103]
     The Second Respondent’s account of those events shows little difference between them as to what occurred. On his version their exchanges took no longer than 20 minutes to resolve. He denies speaking rudely or abruptly toward her, however in my view nothing turns upon whether he did or not.
104. [104]
     It is very likely that he was rather short with her on that occasion. It was just before Christmas and it was a busy period. He may well have been irritated by her again taking leave for a month from just before Christmas. He was also likely to be frustrated that he was not going to be able to get a response to the questions that her superior officer and wanted her to answer, using him as a conduit. I accept however that his conduct toward her that day did not occur on the basis of her impairment, but rather was a combination of factors unrelated to her impairment.

The August 2015 incident

105. [105]
     The Applicant contends that on 3 August 2015, the Second Respondent stated that he would not support a professional development opportunity that she was interested in because of the amount of leave she had taken.
106. [106]
     On 3 August, she had applied for a relief position and sent an email to the Second Respondent for his advice about him supporting that application. The precise language of the email from her was that it sought his response to her request for his opinion about her throwing her name in for a relief position. He emailed back stating that he would not support the application because of ‘the amount of leave you have taken and we had to pay another officer higher duties to do your job’. The answer was to refer to the fact that she had only just returned from a long absence, ‘regardless of the type of leave’, and he would not be supportive of her relieving elsewhere because they would have to fill her position again, when they had just had to do that for the past several months. He said she could still respond to the position and it would be sent through but he would not support it.
107. [107]
     The objective facts are that it was not an easy matter to obtain availability of officers at Sergeant level to work in the Watch House in Toowoomba. I find that his decision not to support her application was on the basis of financial and operational grounds. It is probable that any Sergeant without the Applicant’s impairment, who had similarly been away on leave and wanted the support of her superior officer to go elsewhere would have been treated in the same way. I find that his want of support was not on the basis of her impairment.

The October 2015 incident

108. [108]
     The incident to which this part of the application is directed concerns alleged discussion by the Second Respondent in the course of his conducting a performance review of the Applicant. The allegation, at a generalised level, is that when conducting an end cycle assessment of her performance, he had completed it in a way which included a development section which suggested she perform relief duties in other work areas. She queried why he had written that when he had stated at other times that he would not support her relief work applications.
109. [109]
     On the Applicant’s evidence, he said that it was because she had not taken sick leave for a while and if that practice continued into the New Year he would reconsider supporting applications by her for relief positions. The complaint does not, as the Respondents’ written submissions contend, allege that he had said that if she continued to take sick leave he would not support professional development opportunities.
110. [110]
     His written comment in the performance development assessment form was to the effect that she should ‘continue to apply for those positions’.
111. [111]
     The Second Respondent denies saying that if the Applicant continued not to take sick leave, he would support professional development opportunities. I accept that the Second Respondent said words to the effect that he would not then and there support expressions of interest outside the Watch House for her because of operational and staffing reasons. His unwillingness to support relief work and other duties at that time was because there were other staff at the Watch House who were due to take large periods of leave at that time. I am not satisfied that there was discrimination by the Second Respondent in his expressed attitude toward her doing relief work, or in expressing the views that he expressed nor were they held on the basis of her impairment. He may well have been understandably concerned that she had taken lengthy periods of sick leave, and it may have been relevant to his decision as to whether he would recommend her for relief duties elsewhere, but it was not discriminatory for him to take that consideration into account.

The January 2016 and the April 2016 incidents

112. [112]
     These incidents, related to the August 2015 and October 2015 incidents, concerned another occasion when it is contended that the Second Respondent discriminated against her on the basis of her impairment by refusing to support a career development opportunity.
113. [113]
     On 18 January 2016, the Applicant submitted an Expression of Interest (‘EOI’) to work elsewhere in the months of February and March 2016. The Second Respondent’s email response said that he was happy for her to apply, however he would not support it at that time and explained that he would not be supporting any EOI’s by anyone while a particular staff member was elsewhere and also because of the fact that there were leave balances and other sergeants on leave once he had returned. I accept that those were the genuine reasons for his unwillingness to support her EOI at that time and that they did not constitute unlawful discrimination on the basis of her impairment.
114. [114]
     On 29 April 2016, the Applicant submitted further EOI’s for two positions at Southern Region Regional Office. In her application email she made a statement to the effect that the Second Respondent was not supportive of her conducting any relief duties or professional development opportunities but had been included as a recipient of the email.
115. [115]
     The Second Respondent did not see the comment in the email for a number of days, but when he did, on 5 May 2016, he responded to a recipient of the EOI, and also to the Applicant in the following terms:

I was not consulted in relation to this EOI and am at a loss in relation Sgt Jenkins’ comments in relation to relieving and professional development opportunities. Unfortunately, due to staffing requirements I am not supportive of this EOI at this time. Once leave balances are under control at the end of this financial year, I will be able to reconsider the Watchhouse (sic.) position to releasing staff for other duties.

116. [116]
     As he explained in his evidence, and I accept, at that time there was a limited availability of Sergeants to perform duties at Toowoomba Police Station. He swore, and I accept, that there six days in the period for which she was seeking to be placed elsewhere where there was only one Sergeant performing other duties, and for the remainder of the period there were between two and three Sergeants performing other duties or on leave.
117. [117]
     He swore, and I accept, that the EOI’s for which the Applicant had applied were for only short periods, and finding replacement staff for her tasks for short periods was very difficult because there was a lack of interest from others who might have applied. I accept that those were the genuine reasons for his unwillingness to support her EOI at that time and that they did not constitute unlawful discrimination of her on the basis of her impairment.

The July 2016 incident

118. [118]
     The Applicant contends that on 11 July 2016, the Second Respondent discriminated against her during a performance review by making a remark that she was ‘no longer being punished’ and would be supported for development opportunities. She made a note of this in her personal diary at that time.
119. [119]
     There is a dispute about what was said in the course of that discussion. The Second Respondent denies making the statement that she was no longer being punished.
120. [120]
     I am not persuaded on the evidence that the Second Respondent made the comment that she was no longer being punished. That said, even assuming that comment was made, in context, it was a statement to the effect that he would now be supporting her for EOI’s. It was capable of implying that in the past he had not supported her because she was being punished, although for what was not specified. I have already found that he was not punishing her on the basis of her impairment.
121. [121]
     In my view, this was neither discriminatory conduct, nor something said on the basis of her impairment. If anything, it was an encouraging remark about her future at work under his supervision.

Claims against the Third Respondent

The October 2014 disciplinary action

122. [122]
     The Third Respondent, Mark Wheeler, held the rank of Inspector at the Toowoomba Station. That role required him to have an overview of the activity in the Watch House. He was the direct supervisor of Sergeant Draheim, the Second Respondent.
123. [123]
     This aspect of the complaint is related to the disciplinary process which had been threatened on 18 October 2014 arising out of her intention to take sick leave in November 2014 during the period of her daughter’s wedding. The Third Respondent’s evidence, which I accept, is that Sergeant Draheim had advised him of the Applicant’s plans to take recreational leave in November 2014 to attend her daughter’s wedding and her claim to have been granted an exemption from the leave embargo. The Third Respondent had been told by Sergeant Draheim that she had threatened to take sick leave if the recreational leave she had sought was not approved, and would have her doctor prepare a medical certificate.
124. [124]
     I accept that in that context, the Third Respondent told Sergeant Draheim to do what was necessary to enable the Applicant to attend her daughter’s wedding without breaching the leave embargo.
125. [125]
     There was then the exchange of emails with the union representative referred to earlier. The Third Respondent, having read the union representative’s email, spoke to Sergeant Draheim who confirmed that he had told the Applicant that he would arrange her roster in a way that permitted her to attend the wedding. Sergeant Draheim effectively informed the Third Respondent again of the threat by the Applicant to ‘go sick’ if she did not get the recreation leave in circumstances in which there was no objective evidence that she had been given an exemption from the embargo.
126. [126]
     It is clear that the Third Respondent took the view that it was possible that the Applicant was absenting herself from the workplace without due cause, and that this was a disciplinary matter. He saw himself as having a statutory obligation to report conduct suspected of being misconduct or a breach of discipline. He took the view that if the Applicant took the leave as sick leave, that it was a matter that he would need to report.
127. [127]
     The circumstances invite the conclusion that it was unfortunate that such scepticism was held about the genuineness of the Applicant’s entitlements to take sick leave at that time. As it turned out there was no justification for that scepticism. No doubt, had the Third Respondent had the opportunity to obtain reliable information from the Applicant’s psychiatrist about the Applicant’s condition, he may well have satisfied himself that there was no need for an investigation were she to take sick leave at that time.
128. [128]
     I am not satisfied that his decisions in that regard were made on the basis of her impairment. I accept his evidence that he would have considered the initiation of a similar investigation by any person who was making an application for leave, with or without impairment, in circumstances in which the claimed reason for the leave as false or suspicious.

The November 2014 disciplinary action

129. [129]
     This aspect of the complaint is associated with the October 2014 disciplinary action that I have just dealt with. The Applicant alleges that the Third Respondent discriminated against her on the basis of her impairment on 25 November 2014 by directing Sergeant Draheim to submit a disciplinary complaint against her without consultation with her and without application of the principles of natural justice. The Applicant contends that a disciplinary complaint was initiated against her because of the sick leave she had taken to manage her impairment. Were those matters true, it may well have been sufficient to establish discrimination on the basis of her impairment.
130. [130]
     There is no direct evidence to show that her impairment was the basis upon which the decision was made to direct Sergeant Draheim to submit a disciplinary complaint against her. As I have said, as a result of various conversations with Sergeant Draheim, the Third Respondent clearly had concerns over the veracity of her claims to be entitled to sick leave.
131. [131]
     The Third Respondent gave evidence which suggested that it was relevant to his scepticism to know that the psychiatrist’s certificate or letter sent to justify her sick leave during November was the same psychiatrist who had previously sent a letter supposedly supporting the Applicant’s application for recreation leave. Of course the psychiatrist did not ‘support’ the Applicant’s application for recreation leave at all. Rather, she had properly certified that she did not consider the taking of recreation leave would adversely affect the RTWP. This misunderstanding did not, however, mean that in directing that a complaint be issued, that it was on the basis of her impairment, or because she had taken sick leave to which she was entitled because of her impairment.
132. [132]
     I accept that the Third Respondent genuinely had a sceptical view about the claims that she had been sick in the November period and was sceptical about the validity of the psychiatrist’s role in that leave being obtained. In large part this was brought about by what the Second Respondent had told him. The Applicant was treated no differently in those circumstances than any other person who did not have her impairment.

The December 2014 incident

133. [133]
     This incident concerns a conversation that took place between Acting Senior Sergeant Hampson under instruction from the Third Respondent, and the Applicant on 4 December 2014. The contention is that the Third Respondent asked another officer to ask her to change her sick leave application to an application for recreation leave, and that if she did not do so she would be sanctioned. As was referenced earlier, this application for sick leave was a retrospective application, to take account of the period that she was on leave in November.
134. [134]
     Irrespective of what was said between them on 4 December 2014, it is common ground that the Applicant did not change her application. Her leave application remained for sick leave, and that that application was approved.
135. [135]
     I accept that the conversation between them implied that it was appropriate for her to change the application to a recreation leave application, and that this reflected the Third Respondent’s view that there was not in fact a legitimate basis being made to apply for sick leave. He had explained this view to Acting Sergeant Hampson to tell the Applicant.
136. [136]
     No sanctions were in fact taken against her for taking sick leave, or for that matter, not amending the application to make it one for recreation leave. I am not satisfied on the evidence that there was any discrimination against her on the basis of her impairment, nor that there was any consequence that flowed from the request being made as it was.

The May 2015 direction

137. [137]
     This aspect of the complaint concerns an allegation that the Third Respondent directed the Applicant to take accrued recreation leave which had accumulated due to her absence from work.
138. [138]
     It is common ground that her accrued recreation leave had built up because of the substantial periods she had been away from work on sick leave, and whilst she was on that leave, she nevertheless accrued recreation leave which she could not take whilst ill.
139. [139]
     I accept that as part of the management process by which the QPS managed staffing levels, staff were permitted, subject to some allowances, to accrue only limited recreation leave. Once they had accrued those limit levels, they were expected to take leave. Officers in the Third Respondent’s position were expected to manage those balances by having the officers in question take for leave rather than allow it to continue to accrue.
140. [140]
     I accept that whilst the Third Respondent may well have actively encouraged the Applicant to take recreation leave, he did so as part of the process of managing staffing levels, and because of QPS policies. It is not to the point that one of the reasons that she had accrued such leave is that it had accumulated whilst she was on sick leave. I accept that there were mechanisms to extend those leave balances in the same way that he would have dealt with any member of the QPS who had accumulated an excessive leave balance.

Complaint against the Fourth Respondent

The Fourth Respondent’s December 2014 direction

141. [141]
     In the period from 15 December 2014, the Fourth Respondent was a relieving Inspector in the Toowoomba City Patrol Group. As I have mentioned previously, he held that position for little more than a week from 15 December 2014.
142. [142]
     The allegation against him is that, on 16 December 2014, the Applicant was requested to provide an explanation for her whereabouts whilst on sick leave in November 2014.
143. [143]
     On 15 December 2014, the Fourth Respondent met with Sergeant Draheim for a handover and they discussed the Applicant’s absence from work in November. As a result of what Sergeant Draheim told him, the Fourth Respondent too formed the view that there was doubt about the legitimacy of the Applicant’s application for sick leave in the period in November when she attended her daughter’s wedding.
144. [144]
     The Fourth Respondent approved that sick leave, and swore that he had no real choice in the matter having regard to the fact that there was a psychiatrist’s letter which had approved that leave. That said, he remained sceptical of the validity of the claim.
145. [145]
     He too was cognisant of the fact that improper claims for sick leave might constitute police misconduct, and as an Inspector he was responsible for ensuring leave was taken for legitimate reasons. As a result, he sent an email to Sergeant Draheim asking for him to get an explanation from her for her conduct.
146. [146]
     At that time, the Fourth Respondent was aware that the Applicant had PTSD, but did not, he says, appreciate the significance of this. It is doubtful whether, had he had all of the information which was there to be known about her condition, he would have acted as he did. I accept though that in directing the Second Respondent to obtain a response from her, that he was not discriminating against her on the basis of her impairment, but rather because of his concerns about the veracity of her application for sick leave.
147. [147]
     The Applicant also relies upon the terms of s 124 of the Act in contending that it was improper to ask her for the information sought.
148. [148]
     Section 124 of the Act provides as follows:

1. (1)
   A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.

2. (2)
   Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by—

1. (a)
   an existing provision of another Act; or

2. (b)
   an order of a court; or

3. (c)
   an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or

4. (d)
   an existing provision of an industrial agreement under the repealed Industrial Relations Act 1999; or

5. (e)
   an order of QCAT or the industrial relations commission.

3. (3)
   It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.

4. (4)
   In this section—

"existing provision" means a provision in existence at the commencement of this section.

(emphasis added)

149. [149]
     In my view, it stretches the language of s 124(1) too far to suggest that asking someone to give information about where they were and what they did whilst on sick leave was a request for information on which unlawful discrimination might be based. Rather, it was a request for information upon which consideration was to be given as to whether her claims to have been genuinely sick while on sick leave in that period might be verified. The Fourth Respondent already had information about her impairment, because he was aware of the psychiatrist’s role in her treatment, at least to some degree.
150. [150]
     Additionally, s 124(3) provides a defence to a contravention of s 124(1) if it is proven on the balance of probabilities that the information was reasonably required for a purpose that did not involve discrimination. I find that the information was reasonably required for another purpose, namely to investigate the validity of the application for sick leave, and that further it was not discriminatory to do so.

General and special compensation and other relief

151. [151]
     The Applicant’s description of the consequences for her various discriminatory conduct does not distinguish the various forms of conduct alleged and the consequences said to flow from it in each case. Her description of the ways in which any of the individual incidents affected her is extremely limited. She has not sought to distinguish between the conduct of any of the particular Respondents in identifying the ways that she was affected.
152. [152]
     She swore, in general terms, that she suffered hurt and suffering as a result of the actions of the Respondents. She felt she was being subjected to managerial actions taken on the basis of her impairment and says that it was accompanied by ill will and a poor culture within the QPS which had caused ‘risk’ to her health and safety. She seeks compensation for pain, suffering, humiliation, loss of enjoyment of life, emotional distress and loss of opportunities.
153. [153]
     There are, as I have said, medical reports from Dr Andrea Boros-Lavack and the psychologist, Mr Toombs. Dr Boros-Lavack opines that the Applicant was greatly distressed by requests for justification for her being away from work and that this justified the doctor’s decision to suspend her from duties from 26 December 2014. The Applicant expressed her concerns to the doctor that there was ‘retribution and professional damage’ being caused to her, and that there had been ‘ongoing hostility and resentment toward her’ for sick leave taken. The report describes a worsening of the Applicant’s adjustment disorder with anxious and low mood, tearful spells, severe insomnia, social withdrawal, feelings of helplessness and hopelessness, gastrointestinal symptoms, headaches and palpitations.
154. [154]
     Had I upheld the most significant complaints, namely those made against the Second Respondent, in my view an appropriate award for general compensation was the sum of $25,000.00. Had I upheld the complaints against the Third and Fourth Respondents, an appropriate award would have been, in each case, $5,000.00. Interest at 4% would have been appropriate upon these figures.
155. [155]
     Even had I been prepared to accept that there had been a refusal to recommend her for other career opportunities, I am not satisfied on the evidence, that even if it had been otherwise she would have obtained those alternative positions and derived a better income.
156. [156]
     In the circumstances, I am not satisfied that there is sufficient evidence that she has suffered economic loss as a result of any of the conduct of the Respondents, or any of them.
157. [157]
     In the result I dismiss the application.