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- Unreported Judgment
Christopher Karl Davis v Metro North Hospital and Health Service, Kerrie Mahon & Donna O'Sullivan QCAT 18
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Davis v Metro North Hospital and Health Service & Ors  QCAT 18
CHRISTOPHER KARL DAVIS
METRO NORTH HOSPITAL AND HEALTH
KERRIE MAHON (second respondent)
31 January 2019
19 March 2018, 20 March 2018, 21 March 2018, 8 May
2018, 9 August 2018
HUMAN RIGHTS DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION DISCRIMINATION DUE TO POLITICAL OR RELIGIOUS BELIEFS – where applicant formerly involved in state politics – where applicant resigns from politics after being fired as Health Minister for publicly criticising government policies – where applicant was qualified and sole candidate for senior medical position – whether decision to not employ applicant was because of applicant’s political beliefs and activities – whether applicant should be awarded general damages for personal impact of decision – whether applicant should be awarded damages for past and future economic loss – whether applicant should be awarded aggravated damages
The Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 10, s 13, s 14, s 132(1), s 132(2), s 133(1), s 209
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Carey v Cairns Regional Council  QCAT 26
Cassell & Co Ltd v Broome  AC 1027
Cerutti v Crestside Pty Ltd & Anor  1 Qd R 89
Department of Health v Arumugam  VR 319
Glasgow City Council v Zafar  2 All ER 953
Green v State of Queensland, Brooker and Keating
 QCAT 8
McIntyre v Tully (1992) 90 IR 9
Richardson v Oracle Corp (Australia) Pty Ltd (2014) 223
Rookes v Barnard  AC 1129
Sharma v Legal Aid (Qld) (2002) EOC 93-231
STU v JKL (Qld) Pty Ltd & Ors  QCAT 505
Uren v John Fairfax Pty Ltd (1996) 117 CLR 118
Woodforth v State of Queensland  1 Qd R 289
D O'Gorman QC, with S Lane, instructed by Robert Bax & Associates, Solicitors
C Murdoch QC, with E Shorten, instructed by Crown Solicitor
REASONS FOR DECISION
- In March 2012, there was a change of government in Queensland as a result of the State election. A Liberal National Party government came into power with Campbell Newman as Premier. Dr Christopher Davis had been elected to Parliament as a member of the Liberal National Party and in April 2012, Dr Davis was appointed to the Ministry of that government as the Assistant Minister for Health.
- The government embarked on the implementation of its policies and agenda for the State and in 2014, came into a public and acrimonious dispute with doctors employed at its public hospitals. The government wanted to introduce individual contracts for Senior Medical Officers and Visiting Medical Officers which varied some essential terms of their employment. When Assistant Minister for Health, Dr Davis, opposed and spoke out against aspects of the government’s position about the contracts and other decisions of the government, he was accused by the Premier as having breached the convention of Cabinet solidarity.
- Dr Davis was sacked by the Premier as Assistant Minister for Health on 13 May 2014. Dr Davis later resigned from Parliament on 23 May 2014, which, caused a byelection to be held in his electorate on 19 July 2014. Dr Davis had been publicly critical of the Liberal National Party government and in particular, of the Premier, over issues including changes to political donation laws, amendments to the Crime and Misconduct Act 2001 (Qld), the leadership style of the Premier, the operation of the Parliamentary Caucus in the Liberal National Party, and the public dissatisfaction with the government. The government lost the by-election in the seat vacated by Dr Davis. Public comments made by the Premier, Campbell Newman, laid the blame for the defeat of the Liberal National Party at the feet of Dr Davis. The unsuccessful candidate for the Liberal National Party, Bob Andersen, identified the damage done to the Party by the former member (Dr Davis) as a factor in the unsuccessful campaign.
- After his resignation from Parliament, Dr Davis continued to be a thorn in the government’s side. In late July 2014, Dr Davis publicly announced that he had resigned from the Liberal National Party and he was considering joining the Australian Labor Party so he could be a candidate for that party in the next State election, possibly in the Premier’s own electorate.
- Prior to going into politics and being elected to State Parliament, Dr Davis had been employed as a physician and geriatrician in public hospitals throughout Queensland. He had held from 1992 to 2012 a leadership role in Geriatrics at The Prince Charles Hospital and he had been the State President of the Australian Medical Association at one stage. He was somewhat of a prominent and public figure before 2012 and was certainly a public figure after his election to Parliament and appointment to the ministry of the Liberal National Party government. His public profile increased when he fell out with the Premier in 2014. Dr Davis appeared on television and in the print media during the months from early 2014 to at least the end of July 2014 when, in his role as a politician, he opposed certain actions and policies of the government which gained wide publicity.
- After 23 May 2014, Dr Davis was unemployed. In August 2014 a position for a 0.5 FTE Staff Specialist Geriatric Medicine Senior Medical Officer was advertised for the Royal Brisbane and Women’s Hospital, in the Metro North Hospital and Health Service. Dr Davis was a geriatrician and was qualified for the role. Dr Davis spoke to the person who was listed as the contact person in the advertisement, Dr Charles Denaro. Dr Davis was told by Dr Denaro that he would be very happy to see an application from Dr Davis.
- Dr Davis submitted an application for the position on 20 August 2014. Apart from the application by Dr Davis, there was only one other application lodged for the advertised position of Senior Medical Officer. The other applicant was not a geriatrician and was not qualified for the position. That other applicant was informed after the closing date for the application, that his application had been unsuccessful. Dr Davis was for all relevant purposes the sole applicant for the position.
- There was an established procedure within Metro North Hospital and Health Service for recruiting and then processing an application for a Senior Medical Officer. A selection panel would be convened to conduct an interview of the applicants, a recommendation made by the selection panel, and if that recommendation was to make an offer to an applicant, a letter of initial offer would be signed by the Chief Executive Officer of Metro North Hospital and Health Service and would be sent to the successful applicant to accept. Once the acceptance was given, subject to any issues having been clarified and resolved, the Chief Executive Officer would sign off on the contract of appointment, finalising the appointment.
- This procedure was not followed in the application made by Dr Davis. A selection panel was not formally convened. The recruitment process to fill the position did not proceed to an interview. Dr Davis was informed verbally and by email by Dr Denaro on 26 September 2014 that the position of Senior Medical Officer had been withdrawn. The work that had been intended to be performed within the Senior Medical Officer position was to be covered by internal re-arrangement of the work duties of other staff. Formal notice was sent by email to Dr Davis from the office of the Chief Executive Officer of Metro North Hospital and Health Service on 7 October 2014 that the selection committee was unable to progress with the filling of the vacancy.
- Dr Davis complains that the respondents unlawfully discriminated against him by the arrangements put in place to respond to his application and then by failing to employ him for the substantial reason that he held political beliefs or engaged in political activities. Dr Davis complains that the respondents discriminated against him by treating him less favourably, because of the attribute of his political beliefs and/or activities, than the respondents would have treated another applicant for the Senior Medical Officer position who did not have Dr Davis’s political beliefs and/or activities.
- The respondents deny that they have unlawfully discriminated against Dr Davis. They contend that the arrangements put in place to respond to his application were unusual but were due to the unusual circumstances arising from his application. They contend that the decision was made to cease the recruitment for this position in September 2014, pending consideration of the requirements of clinical streaming that had been introduced across Metro North Hospital and Health Service from July 2014. Clinical streaming required consideration of service delivery needs across the Health Service District and not just of the needs of an individual hospital within the District when recruitment of medical staff was undertaken. The respondents deny that any consideration of the political beliefs or activities of Dr Davis was influential in the decision made not to progress the application to fill the vacancy and not to employ Dr Davis in the Senior Medical Officer role.
Did Dr Davis have an attribute of political beliefs or activities?
- S 7 of the Anti-Discrimination Act 1991 (Qld) (‘the Act’) prohibits discrimination on the basis of certain specified attributes. One of those specified attributes is a person’s political belief or activity.
- Dr Davis was from March 2012 to May 2014 a politician, in that he was an elected parliamentarian in the Queensland State Parliament and was a member of the Liberal National Party government. During most of that period he was the Assistant Minister for Health in that government. Towards the end of his term as an elected politician he espoused beliefs that were publicly critical of the government to which he belonged, particularly about the dispute with hospital doctors over changes to their employment contracts. He was sacked as a Minister following his public utterances and activities as a Minister and parliamentarian criticising the Premier and government over its actions and policies. He resigned from Parliament. After his resignation from Parliament in May 2014, Dr Davis did not retire from politics but he continued as a political figure and he publicly announced an intention to join the Australian Labor Party, and to stand for election with that Party at the next State election in 2015.
- Dr Davis contends that these facts are sufficient to establish that he had relevant political beliefs or activities in terms of the attribute set out in s 7 of the Act. The respondents concede that for the purposes of this complaint, Dr Davis had an attribute of ‘political belief or activity’. The facts can lead to a conclusion that Dr Davis had engaged in political activity as an elected politician from March 2012 to 23 May 2014 and then as a self-professed candidate for political office in late July 2014, when he resigned from the Liberal National Party and publicly announced he was considering joining the Australian Labor Party. Dr Davis continued to espouse his political beliefs as a public figure long after he ceased being a parliamentarian. Dr Davis has established that in this complaint he has the attribute of ‘political belief or activity’ for the purposes of s 7 of the Act.
Whether complaint relates to actions and a decision in the pre-work area
- Ss 13 and 14 of the Act provide that a person must not discriminate in a workrelated area, including the pre-work area.
- The complaint made by Dr Davis is that he was discriminated against by the respondents in the arrangements made in conducting the recruitment and selection process for the Senior Medical Officer position, and in deciding not to offer him work in that position. Although Dr Davis also set out in his final version of contentions an allegation that he had been discriminated against in the administration of State laws or programs, this secondary aspect of his complaint was not argued at the hearing. The Tribunal considers that this secondary aspect of the complaint was abandoned and has not taken it into consideration in reaching its decision on the complaint of Dr Davis.
- The respondents appear to have conceded that the conduct and actions which are the subject of the complaint fall within the ‘pre-work area’ of s 14 of the Act. Dr Davis was seeking to be employed as a Senior Medical Officer within Metro North Hospital and Health Service and the complaint concerns the arrangements made for deciding whether Dr Davis would be offered work in that role, and then the failure to offer him work in that role. The complaint is properly based on actions, and a decision made, in the pre-work area.
- The Act prohibits direct discrimination which is defined in s 10 as follows:
- (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)It is not necessary that the person who discriminates considers the treatment is less favourable.
- (3)The person’s motive for discriminating is irrelevant.
- (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)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 an impairment may require special services or facilities is irrelevant.
- Dr Davis contends that he was subjected to direct discrimination by the respondents. He contends that as a person with the attribute of political belief or activity he was directly discriminated against in the pre-work area by the respondents. He contends that he was treated less favourably than another person without that attribute would be treated in circumstances that were the same or not materially different.
- The Act does not impose liability every time a person makes a decision that is not favourable to a complainant with an attribute of political belief or activity. Liability arises only should it be established that a complainant with that attribute is treated less favourably than another person without the attribute in the same or almost the same circumstances.
- The facts in this case are such that it can be found that Dr Davis, being a person with the attribute of political belief or activity, was the subject of selection arrangements and a decision about his proposed employment as a Senior Medical Officer at Metro North Hospital and Health Service that were not favourable to him. The position for which he was the only applicant did not progress to the selection stage and was withdrawn. However, those facts, without more, do not establish that Dr Davis was subjected to unlawful discrimination. The provisions set out in s 10 of the Act require a comparison of the conduct complained about with conduct that was or would have been experienced by an actual or hypothetical comparator.
- Dr Davis and the respondents submit that the relevant comparator is another applicant for a permanent part time (0.5 FTE) Senior Medical Officer position within Metro North Hospital and Health Service without Dr Davis’ political belief or activity. There was no evidence of the existence of any actual person who could be considered as the comparator in this case. Resort must be had to a hypothetical person as the comparator.
- The parties, however, differ on whether the Tribunal should find that the relevant attribute of political belief or activity has an attendant characteristic of having a high profile or whether the issue of Dr Davis having had a high profile is one of the circumstances in which a comparison of the conduct should take place.
- The difference in the submissions of the parties has its genesis in s 8 of the Act. That s provides that discrimination on the basis of an attribute includes discrimination on the basis of a characteristic that a person with the attribute generally has or a characteristic that is often imputed to a person with the attribute.
- It is submitted by Dr Davis that this case requires a comparison between the treatment that Dr Davis encountered as a person who holds his political beliefs and engaged in his political activities with the attendant characteristic of having a high profile and a person without that attribute and characteristic. It is submitted by Dr Davis that the ‘characteristics’ provision in s 8 of the Act broadens the ground on which discrimination is prohibited, by making it unlawful to discriminate against a person because of a characteristic which are generally possessed by or imputed to people who have the attribute in question.
- It is further submitted that the effect of s 8 in conjunction with the definition of direct discrimination in s 10 of the Act is to proscribe discrimination on the basis of a characteristic. Relying on the decision of the Court of Appeal in Woodforth v State of Queensland, it is submitted that a comparison to determine whether there had been discrimination would be ineffective if the characteristic of the attribute was also to be treated as one of the circumstances on which a comparison is based. It was submitted that this would mean that there could not be discrimination on the basis of a characteristic of the attribute because the comparator would also be a person with that characteristic.
- The submissions made by Dr Davis state that a characteristic must be one which the vast majority of persons of that particular status have or are believed to have. It was acknowledged in the submissions that a finding of whether a particular matter is a characteristic that generally appertains to, or is generally imputed to, an attribute is a question of fact or could be the subject of judicial notice. While there was evidence given by almost all of the respondents’ witnesses that Dr Davis had a high profile, there was no evidence from Dr Davis, consistent with his submissions, that the vast majority of persons with political beliefs or engaging in political activity have a high profile.
- The respondents submitted that Dr Davis had not referred specifically to facts in this case on which the Tribunal could safely find that there was a relevant characteristic, such as having a high profile, that attended the attribute of political belief or activity. It is submitted by the respondents that there is no authority for the proposition that a high profile is a characteristic of a person with a political belief or activity. The respondents submit that the proposition made by Dr Davis on this point was misconceived. I agree with the respondents’ submissions on this point.
- The respondents submit that s 8 does not draw in any and every characteristic associated with an attribute. For a characteristic to be relevantly drawn in with a particular attribute by s 8, it must be one that a person with the attribute generally has or is often imputed to a person with the attribute. There is no evidence that having, or being imputed to have, a high profile in the terms of s 8 is attendant on a person having a political belief or engaging in political activity. It is submitted by the respondents that tens of thousands of persons are members of political parties,
hold political beliefs and engage in all sorts of political activities without gaining a high profile or any public profile at all. Accepting that submission, the Tribunal can logically find that the vast majority of persons of that status do not have a high profile. Without evidence to the contrary, the Tribunal cannot conclude that having a high profile is generally a characteristic possessed by persons with the attribute of political belief or activity and cannot conclude that having a high profile is a characteristic generally imputed to persons of that status.
- Before a comparison can be carried out as to how Dr Davis was treated and how a hypothetical comparator would have been treated, it is necessary to establish the facts as to the treatment experienced by Dr Davis. Many of the facts arising from the evidence of the parties are not in dispute. The difficult issue is whether inferences should be drawn from the facts of the case when comparing the relative position of Dr Davis to the hypothetical comparator.
Relevant facts of the treatment received by Dr Davis
- Shortly before the beginning of June 2014, Dr Elizabeth Waldie, Staff Specialist Geriatric Medicine/Senior Medical Officer, Geriatric Evaluation and Management Services, Royal Brisbane and Women’s Hospital, had formally requested to reduce her hours to 48 hours per fortnight. If approved, this reduction in hours would create a 0.5 vacancy of the Senior Medical Officer’s position. The request by Dr Waldie to reduce her hours was approved on 30 June 2014. The reduction in hours would take effect from 1 September 2014.
- The recruitment process for the resultant vacancy in the Senior Medical Officer position commenced on 2 June 2014 when Dr Charles Denaro, Director, Department of Internal Medicine and Aged Care, at Royal Brisbane and Women’s Hospital, completed a Request to fill a Vacancy form and Rationale for the Request. Dr Denaro had completed the Rationale after reaching a conclusion that there was a clinical need to fill the vacancy and that the budget for the hospital permitted the vacancy to be filled. On 10 July 2014 Catherine (Kate) Mason, Executive Director, Internal Medicine Services, Royal Brisbane and Women’s Hospital also signed the Request to fill a Vacancy form and the Rationale form. Other senior personnel at the Royal Brisbane and Women’s Hospital signed these forms, including Professor Keshwar Baboolal, Executive Director, Royal Brisbane and Women’s Hospital before the forms were sent to the recruitment personnel to arrange for the application for the Senior Medical Officer’s position to be advertised.
- On or around 5 August 2014, the position of Senior Medical Officer was advertised. On the closing day for the applications, 20 August 2014, Dr Davis applied for the position. The application by Dr Davis was sent to Dr Denaro by the recruitment personnel on 21 August 2014. Dr Denaro forwarded the email containing the application by Dr Davis to Kate Mason, Dr Kana Appadurai, Clinical Director, Geriatric and Rehabilitation Services, Royal Brisbane and Women’s Hospital, and to Dr Shanti Kanagarajah, Clinical Director, Geriatric Evaluations and Management Services, Royal Brisbane and Women’s Hospital. Drs Appadurai and Kanagarajah were anticipated to be on the selection panel with Dr Denaro. Kate Mason informed Professor Baboolal that Dr Davis was the only applicant for the position.
- Shortly afterwards, Professor Baboolal informed Malcolm Stamp, the Chief Executive Officer of Metro North Hospital and Health Service that Dr Davis was the
only applicant for the Senior Medical Officer position. Malcolm Stamp told Professor Baboolal that he would get back to Professor Baboolal about the application.
- On 26 August 2014 Dr Denaro forwarded the email again to Kate Mason with a covering email asking, ‘Can we discuss when you are free how we should approach this tricky issue?’.
- Kate Mason responded by email and suggested that they meet on 28 August 2014. Dr Denaro and Kate Mason met on 28 August 2014 and on some subsequent occasions to discuss the application by Dr Davis. Professor Baboolal was present at some of the discussions. Contemporaneous notes were not kept of these discussions, although, emails were generated at times that set out details of some of these discussions.
- Dr Denaro telephoned Dr Davis on 28 August 2014. Dr Denaro informed Dr Davis that a formal selection interview would be replaced with a round table discussion to discuss his application. Dr Denaro indicated that he would try to organise this round table discussion in the next couple of weeks and asked Dr Davis about his availability for this discussion. On 28 August 2014 Dr Denaro emailed Drs Appadurai and Kanagarajah and Kate Mason reporting on his conversation with Dr Davis.
- On or about 2 September 2014, Professor Baboolal had further discussed the application by Dr Davis with Malcolm Stamp, Chief Executive Officer, Metro North Hospital and Health Services. Mr Stamp told Professor Baboolal that he had discussed Dr Davis’ application with the Board Chairman of Metro North Hospital and Health Service and that the preferred option was not to proceed with the recruitment process for the Senior Medical Officer position but to arrange for existing staff to cover the vacancy in the position.
- Professor Baboolal emailed Kate Mason on 2 September 2014 stating:
‘I have spoken to (Malcolm Stamp) who has spoken to the Board Chairman. The preferred option would be to consider internal reorganisation.’
- After receiving this email, Kate Mason discussed the contents with Dr Denaro on 2 or 3 September 2014 and they made enquiries about whether the vacant 0.5 FTE Senior Medical Officer’s position could be covered internally. On 3 September 2014, Dr Denaro emailed Kate Mason stating:
‘I have spoken with (Dr Kana Appadurai), (Dr Shanti Kanagarajah) and Rob. Shanti is happy to be the person that fills the job internally (at least till next year when hopefully we can readvertise). Will you contact Dr Davis and inform him of the decision?’
- On 3 September 2014, Kate Mason emailed Dr Denaro stating:
‘Thanks Charles for organising this. We will sort out the paperwork and I will sort out the contact with Chris (Dr Davis). One complication sorted. I hope!’
- On 3 September 2014, Kate Mason emailed Professor Baboolal and Dr Mark Mattiussi, Acting Executive Director, Medical Services, Royal Brisbane and Women’s Hospital, stating:
‘Mark, Kesh, seems like we can sort out the internal movement of one Geriatrician to fill the 0.5 FTE vacancy that was advertised. Are you comfortable with me contacting Chris Davis to tell him we have filled the position internally by Transfer at level, or should it be someone else??? We will need to be then doing a RFT for 0.5 FTE Internal Medicine Physician position that this now created.’
- Professor Baboolal emailed Kate Mason on 4 September 2014, in response to her email the previous day:
‘I think we need to hold until we are sure we have got support from above.’
- On the morning of 5 September 2014, Professor Baboolal orally requested Kate Mason to prepare a brief to the Chief Executive Officer of Metro North Hospital and Health Service to seek formal approval for the recruitment process for the 0.5 FTE Senior Medical Officer position to proceed to open merit.
- Kate Mason emailed Dr Denaro at 11.06 am on 5 September 2014 stating:
‘I have just been advised this morning that I need to prepare a brief to go to Malcolm (Stamp)!!! Cold feet re their decision might be an issue!! I will let you know asap.’
- At 12.24pm on 5 September 2014, Professor Baboolal emailed Kate Mason and Dr Denaro with the subject line reading ‘SMO geriatrics’ stating:
‘I understand there is a single Applicant for this role. Can you indicate to me what your preferred plan is and I can then escalate to CEO as he will be the delegated authority.’
- After receiving the email from Professor Baboolal, Dr Denaro asked to meet with Kate Mason who emailed Dr Denaro in reply stating:
‘How are you positioned this arvo? I am a tad confused. Kesh (Baboolal) rang me at 07:30 this morning and said he wanted a brief by Monday to go to CE. Not sure why he felt the need to email as well, but who knows???’
- At 4:30pm on 5 September 2014, Dr Denaro, Kate Mason and Professor Baboolal met in Professor Baboolal’s office. Professor Baboolal discussed the reason for his request for a brief to the Chief Executive Officer and what should be in the briefing note contents.
- Following that meeting, Dr Denaro sent an email to Dr Davis stating:
‘The intention is to organise an interview, but there will be a short delay until we can get confirmation of the availability of all the desired members for the interview panel. I hoping for later in September – I am now aiming for the week of 22nd. Sorry.’
- On or on a date after 5 September 2014, Kate Mason prepared a briefing note about the recruitment process for the 0.5 FTE Senior Medical Officer position with a recommendation that the recruitment proceed to open merit selection. The brief was addressed to several senior persons within the Royal Brisbane Hospital and Metro North Hospital and Health Service and was sent via those persons before it was to be sent on to the Chief Executive Officer.
- Malcolm Stamp was suspended as Chief Executive Officer, Metro North Hospital and Health Service on 8 September 2014. Kerrie Mahon was appointed that day as Acting Chief Executive Officer.
- On 19 September 2014, the brief was received by Dr Donna O'Sullivan, Executive Director Medical Services, Metro North Hospital and Health Service. Dr O'Sullivan, via an assistant, emailed Professor Baboolal and Kate Mason that she would not approve the brief as she would like to discuss with the Acting Chief Executive Officer.
- Dr Davis had emailed Dr Denaro on 19 September 2014 asking if there had been any developments. Dr Denaro replied stating:
‘As you might have guessed, I am facing some hurdles that were not present when we first advertised the position. Currently in South Australia. Will call with hopefully more clarifying information on Monday. Sorry.’
- Dr Davis telephoned Dr Denaro on Monday, 22 September 2014. Dr Denaro acknowledged to Dr Davis that there was interference with due process occurring in respect of his application for the Senior Medical Officer position.
- On 22 September 2014 Professor Baboolal emailed Kerrie Mahon and Dr O'Sullivan stating that Dr Davis had been making telephone calls asking why there was a delay in the recruitment process for the Senior Medical Officer position. Professor Baboolal enquired about the brief which had not yet reached Kerrie Mahon by that date.
- Kerrie Mahon telephoned Professor Baboolal about the Senior Medical Officer vacancy on 22 September 2014. Professor Baboolal gave Kerrie Mahon the background for the justification for the role and stated that there were no budget implications. Professor Baboolal informed Kerrie Mahon that Malcolm Stamp had asked him to fill the role internally and that he, Professor Baboolal, was uncomfortable about that decision. There was false economy as the movement of the internal person created a vacancy elsewhere. Kerrie Mahon talked about clinical streaming as the way going forward.
- On 23 September 2014, Professor Baboolal sent an email to Kerrie Mahon, with a copy to Dr Elizabeth Whiting, Executive Director of Clinical Services and of Medicine Clinical Stream across Metro North Hospital and Health Service, who had been appointed to that role as from 1 September 2014, stating:
‘The position has arisen as a result of a reduction in clinical hours of the incumbent. It is being cross filled by Gen Med consultant on a temporary basis who does not wish to/will not continue in this role. There will be a gap in the delivery of service if this vacancy is not filled. We are receiving daily calls from the applicant.’
- On or around 23 September 2014 Kerrie Mahon had a discussion about the vacancy of Senior Medical Officer in Geriatrics with Dr Whiting. Geriatrics came within the Medicine Clinical Stream across Metro North Hospital and Health Service. Kerrie Mahon had been heavily involved in early research and development into the suitability of implementing clinical streaming in Metro North Hospital and Health Service prior to her appointment as the Acting Chief Executive Officer of Metro North Hospital and Health Service. Implementation of the clinical steaming model had been underway since July 2014.
- Kerrie Mahon was told by Dr Whiting that a clinical steaming assessment had not been carried out for geriatric medicine. Dr Whiting informed Kerrie Mahon that Redcliffe and Brighton were areas of high need for geriatric services and that she would need to review service coverage across the stream. Dr Whiting did not have any workforce plan at that time that could provide input into recruitment within the clinical steam for which she was responsible, or which could assist in appointment decisions of Senior Medical Officers.
- Kerrie Mahon spoke to Dr Whiting in the discussion on 23 September 2014 about the awkwardness of Dr Davis’ application given that he had recently been the Assistant Health Minister.
- Kerrie Mahon spoke to Professor Baboolal on 23 September 2014 and informed him that she had considered the vacancy and that there was a need to look at the workforce of geriatric medicine as a whole across Metro North Hospital and Health Service from the perspective of the clinical stream.
- On 23 September 2014 Dr Denaro telephoned Dr Davis and informed Dr Davis that he had been instructed not to have an interview with Dr Davis until he got the go ahead from the Chief Executive Officer.
- On 25 September 2014 Professor Baboolal received an email informing him that the brief had not been endorsed by Dr O'Sullivan, but that Dr O'Sullivan had advised that Kate Mason will need to have a conversation about the brief with Kerrie Mahon. Following that email, Professor Baboolal emailed Dr O'Sullivan on 25 September 2014, that:
‘The decision to proceed with this selection process will need to be made at a MN level. Sending it back down to Kate does not resolve this issue or make it go away. The process also needs to be accountable and verifiable. I do not appreciate that you have not communicated with me regarding a brief that has been sent by me to your office as per process that you have stopped and sent back to a direct report of mine.’
- Dr O'Sullivan responded by email that day:
‘When I received this brief for review, I escalated it to the Acting Chief Executive given the potential sensitivity of the matter. It is a A/CE decision. It has NOT been stopped in my office.’
- On 26 September 2014 Professor Baboolal advised Kerrie Mahon that the Royal Brisbane and Women’s Hospital could cover the vacancy internally for a period with existing staff with no risk to patient care. That day Kerrie Mahon received the brief for approval.
- On 26 September 2014, Kerrie Mahon decided to pause the recruitment process for the 0.5 FTE Senior Medical Officer position and not proceed to fill that position at that time. Kerrie Mahon emailed Dr Whiting, with a copy to Professor Baboolal, on 26 September 2014 to instruct that a clinical streaming assessment process be undertaken to consider the position from a whole of the Metro North Hospital and Health Service perspective. Kerrie Mahon stated that, from this point, all senior medical officer positions would be considered from the point of view of both the stream and the hospital.
- Professor Baboolal emailed Dr Denaro and Kate Mason on 26 September 2014 stating:
‘Very frustrating. Not really the solution to the problem at hand. Need to consider whether you need the role, how it fits in with MNHHS strategy and then readvertise.’
- Kate Mason emailed Professor Baboolal and Dr Denaro asking what should Dr Davis be told about the decision about the recruitment to the Senior Medical Officer position. Kate Mason suggested that he be told that the recruitment is being pulled for now and reconsidered in light of the clinical streams and a revised process for approval. Professor Baboolal emailed Kate Mason his agreement about what was to be said to Dr Davis.
- Dr Whiting sent an email to Kerrie Mahon on 26 September 2014 stating:
‘As we talked about I discussed with Angela Wilkie as to what our options are and whether we can pause this process while we review the needs across metro north. I relayed to her my feeling that based on the information I have that my belief is that we have no grounds to not progress employment irrespective of where the identified priorities are if the individual wishes to apply for a position and is meritorious. Angela was anticipating a meeting with Paul Alexander yesterday afternoon and planned to discuss what his position was. I spoke to her first thing this morning and the meeting did not occur yesterday. The meeting is now to occur this afternoon and Angela will let me know the outcome following this. I haven’t discussed this issue with anyone other than Angela and will progress with a plan as soon as I have the advice.”
- Dr Denaro emailed Professor Baboolal and Kate Mason on 26 September 2014 stating:
‘I appreciate that you both are trying to find a sensible solution to this problem. So I write to Chris and say that in light of Clinical Streams being established across Metro North – all vacant positions are being re-evaluated and therefore this position has bene withdrawn. I will have to also say that I am hoping I will be given the approval to readvertise in the new year? He will realise that it is BS.”
- Dr Denaro set out further vacancies that were likely to arise in the new year.
- Professor Baboolal emailed to Dr Denaro and Kate Mason stating:
“Agree need to write to Dr Davis along those lines. The key for me is that important positions that need to be put in place are not held up because there is a failure to address the issue at hand. I will emphasise that to Liz as well.”
- Dr Denaro telephoned Dr Davis on 26 September 2014 after receiving the email from Professor Baboolal. Dr Denaro told Dr Davis that a decision had been made to withdraw the position. He had difficulty getting any clear or consistent advice from the Office of the Chief Executive. He would send an email advising that because of clinical streaming Metro North Hospital and Health Service needed to re-evaluate
every position in the clinical streams context, all vacancies were now going to be held off for a time. The real story was that because of all the political pressure, the hospital had decided to take the easy way out. He hoped to readvertise the position in the new year and Dr Davis would be welcome to reapply. He had so many vital matters to get through the Office of the Chief Executive that he could not afford for the Department of Internal Medicine and Aged Care to be put off-side. It was terrible that Dr Davis had been discriminated against. Metro North Hospital and Health Service was going to produce a process with clinical streams in relation to recruitment for positions. The hospital could not make the decision itself and the new process would include the hospital and clinical stream heads who would make decisions on recruitment.
- Dr Denaro emailed Dr Davis on 26 September 2014, following his telephone conversation, stating:
‘As you probably know Metro North has recently changed its governance structure. We now have Clinical Services (Clinical Streams) that are across all of Metro North and they are no longer facility based. As result of the establishment of these Metro North Clinical Streams, all vacant positions are being re-evaluated and a decision has been made to withdraw the position of 0.5 FTE specialist in Geriatric Medicine at RBWH. I thank you for your application and interest in this Consultant position. I am hopeful that after this settling in period that I will be given the approval to readvertise in the New Year. I wish all the best in your future endeavours.’
- On 30 September 2014, Dr Whiting emailed Professor Baboolal stating:
‘As we move into clinical streams we will develop up workforce plans that take into account the workforce needs across metro north. In particular, our shortages are in the northern end of the health service and we need to ensure that this is taken into account when recruiting to SMO positions. I plan to discuss this on Friday at our exec group meeting. I understand that recruitment to a vacant 0.5 FTE geriatrician position was escalated to the CEO. This is not necessary. We will develop a workforce plan for the medicine stream as our next priority and as part of this the need for further appointments of geriatricians in metro north will be identified... Ideally a recruitment process will be run that reflects all the needs across the health service rather than a facility based approach that runs the potential of sites being in competition which other for appointments as we have recently experienced in general medicine. With this in mind I believe recruitment to the position you have could be held off for a short period until the workforce plan for medicine is completed.’
- On 3 October 2014, the Acting Medical Appointments Co-ordinator emailed Metro North Recruiting stating:
‘I have been advised by Kate Mason, Executive Director Internal Medicine Services, that we will not be filling the position of Senior Staff Specialist or
Staff Specialist (Geriatric Medicine). This decision was made by the Metro North Executive office.”’
- On 5 October 2014, Kerrie Mahon signed the CEO Brief for Approval stating:
‘Noted, Not approved at this time pending’. She added comments:
All SMO Positions for recruitment are to be considered in a whole of MNHHS context to ensure workforce shortages and service gaps are addressed. The recruitment of this position is to be considered in line with the requirement above.
- Kerrie Mahon, via an assistant, emailed Dr Davis on 7 October 2014:
‘I am writing on behalf of the selection committee for the above role. Although this position was advertised, I wish to advise that the selection committee is unable to progress with the filling of this vacancy at this time. The time and effort you have taken in applying for the role is appreciated. We hope that you will consider applying for other Queensland Health positions in the future and wish you every success for your career.’
- The Clinical Streaming Assessment referred to by Dr Whiting had not been completed by the time when Kerrie Mahon’s acting appointment came to an end on 8 November 2014. A new Acting Chief Executive Office, Terry Mehan, took a different view of clinical streaming. On 10 November 2014 the Board Chairman of Metro North Hospital and Health Service sent out notification to inform staff that all streams did not have to be implemented by 1 July 2015 as was the initial plan. Terry Mehan sent emails in December 2014 and February 2015 emphasising an intention to restore local decision-making accountability back into hospitals and key services at an operational level. By March 2015, a clinical streaming model similar to that contemplated in the emails of Terry Mehan was formalised and largely remains in place today.
- There was evidence that other persons had been successfully recruited into Senior Medical Officer positions in Metro North Hospital and Health Service around the same time when Dr Davis’ application was being considered. Kerrie Mahon as acting Chief Executive Officer had signed seven contracts of employment for Senior Medical Officers during the period 11 September 2014 to 25 September 2014. In none of those applications did Kerrie Mahon require the positions to be subjected to an assessment for clinical streaming purposes and the standard arrangements for selection for the positions had taken place.
Comparing treatment to hypothetical comparator
- When comparing the treatment accorded to Dr Davis to that of a comparator, the treatment must be considered in the circumstances set out from paragraph 31 to 77 or circumstances that are not materially different. The recruitment process for the 0.5 FTE Senior Medical Officer position in Geriatrics for which Dr Davis applied commenced in the standard way. The staff member responsible for commencing the recruitment, Dr Denaro, was satisfied that there was an adequate justification to fill the staff specialist vacancy that had arisen and that the associated costs for the 0.5 FTE position were covered in the budget. The position was advertised and initially two applications were received. Dr Davis is a geriatrician and qualified for the advertised position. The other applicant was not a geriatrician and not qualified for the advertised position. The other application was recognised as being made in error and was not further considered. Dr Davis was the only applicant for the position in that sense.
- Not long after the existence of an application by Dr Davis was notified by the recruitment personnel to Dr Denaro on 21 August 2014, the standard procedure for recruitment started to be altered. Instead of formulating a selection panel and arranging to interview Dr Davis, Dr Denaro sought out Kate Mason to discuss ‘this tricky issue’. Dr Denaro gave evidence in his written statement that the tricky issue had arisen because Dr Davis was the only applicant for the position and Dr Denaro had reservations about Dr Davis’ recency of practice as a geriatrician, about potential conflict that might arise with him over the governance model at the Hospital, about the willingness of Dr Davis to take directions from other staff, and a potential conflict that might arise as to the respective roles of general medicine and geriatric medicine in the treatment of aged patients.
- I accept the evidence of Dr Denaro that he held these initial reservations about the
‘fit’ of Dr Davis for the Senior Medical Officer position. Dr Denaro was aware of the political activities of Dr Davis during the earlier months of 2014, and indeed agreed with many of Dr Davis’ utterances about hospital doctors’ contracts, but I find that Dr Denaro did not have reservations about Dr Davis filling the Senior Medical Officer role because of Dr Davis’ political activities. Dr Denaro was refreshingly direct when cross-examined about the reasons for his concerns about employing Dr Davis and answered that he ‘never, ever could care less about’ it if pressure was sought to be applied to him to make decisions based on political concerns. Dr Denaro was an impressive witness and I accept his evidence that if he had been the person making a recommendation, he would not have been influenced by political pressure.
- Nevertheless, Dr Denaro somewhat unwittingly started the departures from the standard recruitment process. Up until 2 September 2014, he had intended to replace the standard interview process, which usually involved a formal set of standardised questions, with what he called a ‘round table conversation’ with Dr Davis, where the concerns about Dr Davis’ fit for the role would be directly discussed. Dr Denaro planned to have at that round table discussion some senior staff from his department as well as persons from outside his own department. He considered asking Dr Whiting to be part of the round table discussion as she had worked with Dr Davis at an earlier time, knew more about some issues that had arisen about Dr Davis at those times, and could appraise his responses to the issues of concern that Dr Denaro intended to raise with Dr Davis. If the concerns could not be resolved, I accept that Dr Denaro would not have recommended the selection of Dr Davis for the position, even though he was the only applicant.
- I am satisfied that Dr Denaro would have followed the standard interview arrangements for any other applicant, who was a geriatrician and qualified for the role of Senior Medical Officer in geriatrics, regardless of whether that other applicant had a high profile or not. I am satisfied that it was proposed to treat Dr Davis differently to that hypothetical applicant and that Dr Davis was treated less favourably as a result of the proposed change to the interview process. I am satisfied that the initial departure from the standard recruitment process (prior to 2 September 2014) was because of the unique factor that Dr Davis was the sole applicant for the position and that there were some issues to be resolved around his “fit” or suitability for the role. However, for the reasons set out in the preceding paragraph, I am satisfied that this less favourable treatment was not because of the political belief or activity of Dr Davis.
- The next stage of relevance in this complaint relates to the treatment of Dr Davis’ application as from 2 September 2014. On that day, Professor Baboolal was informed by Malcolm Stamp that following a discussion with the Board Chairman, the preferred option was that the 0.5 FTE vacancy was filled internally. Professor Baboolal informed Dr Denaro and Kate Mason of this conversation.
- Although termed as a preferred option, Kate Mason and Dr Denaro thereafter acted as if a decision had been made by Metro North Hospital and Health Service to stop the external recruitment process, in which Dr Davis was the only applicant. Dr Denaro consulted his colleagues in the geriatrics department and worked out arrangements for the vacancy to be covered internally. Kate Mason enquired as to who should inform Dr Davis of the decision to fill the vacancy internally and she offered to organise the paperwork required for the internal coverage of the vacancy.
- Kate Mason’s written evidence set out in her filed statement is at odds with what she had said in her emails on 3 September 2014 and with her actions at that time. In paragraph 32 of her statement signed on an unknown date in February 2017, she states that it was her understanding on 2 September 2014 that a final decision had not been made about the vacancy. She states that she understood that Malcolm Stamp, in conjunction with Dr Alexander, was considering internal reorganisation rather than proceeding with the recruitment process.
- In cross-examination, Kate Mason admitted that she knew after the email from Professor Baboolal on 2 September 2014 that a decision had been made not to appoint Dr Davis to the vacancy, although the details of the internal arrangements were initially yet to be made. She admitted that it was her understanding at that time that the external recruitment process would stop.
- The evidence of Kate Mason given during cross examination that a decision had been made on or about 2 September 2014 not to appoint Dr Davis was consistent with her contemporaneous comments in emails and is preferred to contrary evidence in her written statement. Kate Mason did not readily contradict her filed written statement during cross-examination but did so only when faced with the task of explaining statements made in her own words in emails on 2 and 3 September 2014. She was not an impressive witness as she was evasive in many of her answers during cross-examination.
- Her evidence at times confused the sequence of events, such as stating that she had only become aware ‘much later’ and ‘at the later part of the process’ of the suggestion that Dr Alexander had got involved in the recruitment process when the emails attached to her written statement revealed that such a suggestion was current and relayed to her on 2 September 2014, only 12 days after she was first informed of the application by Dr Davis and some 24 days before Dr Davis was informed that the vacancy for the 0.5 FTE Senior Medical Officer’s position was withdrawn.
- Kate Mason referred in her oral evidence to the need to brief up to the Chief Executive of Metro North Hospital and Health Service about Dr Davis’ application as she believed she had to comply with ‘a rule of no surprises’. However, the evidence is clear that the briefing up in which she was engaged had occurred on 5 September 2014, some two weeks after Malcolm Stamp had been told that Dr Davis was the sole applicant for the position and several days after a decision had been made not to appoint him to the vacancy.
- I find that the evidence of Kate Mason about the reasons why there was a need to consult with senior management about Dr Davis’ application is not credible and inconsistent with the email trail after 2 September 2014. Her evidence that the need to brief up was related to the high profile of Dr Davis and his potential lack of suitability for the Senior Medical Officer’s position is clearly incorrect given her admission that she already knew that a decision had been notified to Professor Baboolal by Malcolm Stamp that Dr Davis would not be appointed to the vacancy.
- From his emails of 3 September 2014, it is clear that Dr Denaro also believed that a decision had been made by that date not to appoint Dr Davis as he had asked Kate Mason whether she would contact Dr Davis to inform him of “the decision”. Evidence in his written statement, where inconsistent with his contemporaneous comments in his emails, is not preferred on this point.
- The witness who gave the most impressive evidence about the sequence of events that occurred from 2 September 2014 was Professor Baboolal. His evidence was not contained in a filed statement but consisted of his oral evidence and documents, mainly emails, he had created in 2014. His oral evidence came about because the Tribunal issued him with a notice to attend to give evidence. The respondents did not call him to give evidence even though he had an integral role in the events in the complaint and even though Dr Baboolal is currently employed by Metro North Hospital and Health Service, he is in a clinical role, different from his 2014 role as Executive Director of the Royal Brisbane and Women’s Hospital.
- Professor Baboolal told the Tribunal that the lawyers for the respondents had prepared a written statement for him but as it contained errors, he was not prepared to sign the statement. It would appear that further attempts were not made to finalise a statement that set out the evidence of Professor Baboolal to his satisfaction. Professor Baboolal impressed the Tribunal with his good recollection of the events of the complaint.
- He identified that a departure from the standard recruitment process had occurred when he notified the Chief Executive of Metro North Hospital and Health Service, Malcolm Stamp, of Dr Davis’ application. Professor Baboolal explained that he wanted to notify the Board via the Chief Executive that Dr Davis was the sole applicant for a position as he considered he had a duty to inform the Board and the Chief Executive Officer of this application. He explained that the Chair of the Board, Dr Alexander, is directly appointed by the Minister for Health and is directly accountable to the Minister. Professor Baboolal explained that if there was going to be a Ministerial enquiry or a press inquiry, the Chief Executive and the Board Chairman would want to know of the application.
- Professor Baboolal acknowledged that his actions, in giving notification to these persons about an application for a 0.5 FTE Senior Medical Officer position, was a departure from the usual process as the Chief Executive did not usually become aware of applications for vacancies until the selection process had been completed and a person had been selected for appointment, references checked and a letter of offer was to be signed. Professor Baboolal admitted that Dr Davis’ political activity was the reason he notified the Chief Executive although he told the Tribunal that he used to give notice to the Chief Executive if any person of high profile or public interest came to have a connection with the Hospital, such as being a patient.
- I accept the evidence that Professor Baboolal would have departed from the standard recruitment process for a Senior Medical Officer by notifying the Board via the Chief Executive of an application for such a position from any person with a high profile to forewarn the Board should enquiries be made about the application by the Minister for Health or by the press. In view of that finding, this departure from the standard recruitment process did not amount to treating Dr Davis differently or less favourably than another applicant for a 0.5 FTE Senior Medical Officer position in circumstances where such an applicant with a high profile would be likely to result in ministerial or press enquiries.
- The next occurring departure from standard recruitment procedure is more complex in nature. On 2 September 2014, Professor Baboolal was told that the Chief Executive of Metro North Hospital and Health Service and the Board Chairman wanted the vacancy filled by internal reorganisation. No explanation was given to Professor Baboolal for what was the basis of the decision to cease the external recruitment and to pursue an internal fill for the vacancy. The Chief Executive was the person with the delegated authority to make an appointment on behalf of Metro North Hospital and Health Service. Professor Baboolal was in no position to override that decision. He had to implement it.
- Professor Baboolal explained that he was concerned that the process around this application was being handled in a different way. He explained that the decision to cease the recruitment process was going to result in less favourable treatment for Dr Davis than the treatment of other applicants for positions within Metro North Hospital and Health Service. He believed that this different treatment was because of Dr Davis’ previous political activity.
- The respondents deny that a decision was made on 2 September 2014 to cease the recruitment process for the position applied for by Dr Davis. It has been established in these reasons that the persons directly involved in the recruitment process, Professor Baboolal, Dr Denaro, and Kate Mason, had believed that a decision not to appoint Dr Davis had been made on that date. The denial made by the respondents cannot withstand scrutiny.
- There was a disconnect between what was happening at that time and what was being told to Dr Davis that supports the basis for a finding that a decision had been made. After 2 September 2014, there is no evidence that any steps were realistically taken to proceed with the recruitment process. A selection panel was never convened and a date for a round table discussion with Dr Davis was never set. Dr Davis was being told between 2 September 2014 and 26 September 2014 that there were delays occurring that pushed back the likely date for an interview. In reality, there is evidence that there would be no interview after 2 September 2014 as the focus of all the persons involved in the recruitment process between 2 September 2014, and at least 22 September 2014, was on filling the vacancy by internal arrangements. The focus on clinical streaming issues then arose between 22 September 2014 and 26 September 2014. The only person left out of the loop after 2 September 2014 was Dr Davis.
- Only two other persons would have direct knowledge whether or not a decision had been made on 2 September 2014 to cease the recruitment process. Those persons are Malcolm Stamp and Dr Alexander.
- Malcolm Stamp did not file a statement in this complaint. The Tribunal unsuccessfully sought to arrange for Mr Stamp to give evidence. Mr Stamp has lived overseas for some years and he declined an invitation from the Tribunal to give evidence by telephone at the hearing. Mr Stamp sent a letter to the Tribunal registry in which he stated: “I confirm that I do not recall the events described in the contentions nor indeed any discussion(s) about the 0.5 SMO post in Geriatric Medicine at the RBWH.” There are no contemporaneous emails sent by Mr Stamp to confirm or deny what he had communicated to Professor Baboolal on 2 September 2014. No documents authored by Mr Stamp have been disclosed to the Tribunal with any memos or written evidence about the discussion he had with Professor Baboolal or with Dr Alexander, Chairman of the Metro North Hospital and Health Service Board.
- The respondents did not challenge the evidence of Professor Baboolal that he had spoken to Malcolm Stamp about Dr Davis’ application, as set out in his email to Dr Denaro and Kate Mason on 2 September 2014. I accept that the facts do support a finding that Malcolm Stamp did have a discussion with Professor Baboolal about the 0.5 FTE for Senior Medical Officer on 2 September 2014. I find, consistent with the email of Professor Baboolal, that the outcome of that discussion was to communicate a decision by Malcolm Stamp to fill the vacancy for that position by internal arrangements. ‘Preferred option’ leaves no room for a finding that a decision had not been made and communicated by Malcolm Stamp. A proper interpretation of those words must be that whatever other options had existed, the best option according to Malcolm Stamp was to be actioned and that was an internal filling of the vacancy. The communication did not set out a Plan B.
- Dr Alexander in his filed statement stated that he had no recollection of ever having a discussion with Malcolm Stamp about Dr Davis’ application or about the recruitment process for his application. He did not keep any file notes of his meetings with Mr Stamp or notes of agenda items for those meetings. Dr Alexander stated that it was unlikely that Mr Stamp would have discussed the recruitment process about Dr Davis’ application with him as Mr Stamp did not generally consult Dr Alexander about many matters affecting Metro North Hospital and Health Service, particularly operational matters. Dr Alexander was cross-examined on his evidence but made no admissions contrary to his written statement.
- The evidence of Dr Alexander is contradicted by the evidence of Professor Baboolal who, unlike Malcolm Stamp and Dr Alexander, has a recollection of events in which he was involved on 2 September 2014. Professor Baboolal was a witness who impressed the Tribunal with the reliability of his evidence. Professor Baboolal had committed his version of his discussion with Malcolm Stamp in writing in the emails he sent on 2 September 2014. At the hearing, some four years later, he was clear in the details of his recollections. He stated that Malcolm Stamp had said that Mr Stamp had discussed the application with the Board Chairman and that the preferred resolution was an internal filling of the vacancy.
- I accept the evidence of Professor Baboolal that he was told by Malcolm Stamp on 2 September 2014 that Dr Alexander had been involved in the decision to cease the recruitment process about Dr Davis’ application and to fill the vacancy by internal arrangements. I do not accept the statement by Dr Alexander that it was unlikely that he would become involved in the process to fill a 0.5 FTE application for a Senior Medical Officer, when that particular application was made by Dr Davis, who had been sacked as Assistant Minister for Health, who had resigned from Parliament, who had publicly resigned from the Liberal National Party, and who had made a public announcement that he would join the Labor Party and run for State Parliament with that Party less than four months earlier. To the contrary, I believe that it would be unlikely that he did not become involved in that application.
- I find that the established facts support the drawing of a reasonable inference that Dr Alexander was told by Malcolm Stamp about Dr Davis’ application. Malcolm Stamp had been told of Dr Davis’ application by Professor Baboolal. I accept the evidence of Professor Baboolal that Malcolm Stamp had told Professor Baboolal on about 24 August 2014 that he would get back to Professor Baboolal about this application. Malcolm Stamp was responsible to the Board of Metro North Hospital and Health Service. Dr Alexander was the Chairman of that Board and had meetings with Mr Stamp in that role. Given the recent turbulent events involving Dr Davis and the Liberal National Party Government, it is beyond credence that the Chief Executive Officer would not discuss matters relating to Dr Davis seeking employment as a public hospital doctor with the Board Chairman.
- Consistent with the evidence of Kate Mason and Professor Baboolal, it is inevitable that the ‘no surprises’ policy to which they referred would have resulted in Mr Stamp discussing Dr Davis’ application with his Board Chairman to work through options that they would consider would be acceptable to their responsible Minister, who was the Minister for Health. Professor Baboolal was told that Mr Stamp and Dr Alexander had reached a preferred option that ceased the recruitment of Dr Davis to a position for which he was the sole applicant. I am satisfied that a decision to cease the recruitment process and not to appoint Dr Davis was made by Mr Stamp, in conjunction with Dr Alexander, on 2 September 2014.
- This decision, made within the decision-making authority of the Chief Executive Officer, amounted to less favourable treatment of Dr Davis’ when compared to the outcome of a hypothetical application for a 0.5 FTE Senior Medical Officer position within Metro North Hospital and Health Service. All the witnesses for the respondents stated that the involvement of the Chief Executive Officer in recruitment is at the end of the process after a selection panel has recommended the appointment of an applicant. The involvement of the Chief Executive Officer before a selection panel is formed, or had at least conducted interviews and reached a recommendation, had no precedent. No rational explanation could be given for the decision made on 2 September 2014, based on process or fair dealing. A rational case had been made by Dr Denaro in early August 2014 for the filling of the vacancy by an external applicant. No objective factors based on budget or the need to cover a service delivery gap in geriatrics had changed that rationale by 2 September 2014.
- Dr Davis submits that the real reason for the decision to cease the recruitment process was because he was the sole applicant and he would have otherwise been appointed as he was qualified for the advertised position. The question is whether his appointment as a public hospital doctor, as a Senior Medical Officer, was prevented by Metro North Hospital and Health Service because he had political beliefs and had engaged in political activities which had placed him at odds with the government of the day in a very public dispute over, among other issues, the employment contracts of public hospital doctors.
- I find that a hypothetical applicant for a 0.5 FTE Senior Medical Officer position would not have encountered interference in the recruitment process by the Chief Executive Officer of Metro North Hospital and Health Service, which would result in the recruitment process being ceased before the usual selection phase. I find that Dr Davis was treated less favourably in that process. An inference of discrimination is open on the cumulative weight of the evidence, that a decision was made on 2 September 2014 not to employ Dr Davis because of Dr Davis’ attribute of political belief and activity. There was no innocent explanation given by Mr Stamp or Dr Alexander for the decision that could satisfactorily negate that inference. In fact, the evidence reveals that no reason was given for the decision by the Chief Executive Officer at that time: not clinical streaming, not budgetary concerns, not a concern about his ‘fit’ for the role. It is reasonable for the Tribunal to draw the inference that the reason for the decision was directly connected to who the sole applicant was and to his recent actions (less than four months previously and as recently as late July 2014) as a politician and a potential future political candidate.
Departure from contentions
- The respondents submit that the contentions of Dr Davis do not seek to rely on any decision made on 2 September 2014. They submit that Dr Davis should be kept to the case he relied on before the start of the hearing and that he should not be allowed to depart significantly from the case contended. I do not accept that submission. The hearing of this complaint was held over five days between 19 March 2018 and 9 August 2018. Lengthy submissions were filed by the parties and exchanged in April 2018 and updated in September 2018 after the final day of hearing on 9 August 2018. The respondents knew from the first days of the oral hearing in March 2018 that Dr Davis had departed from his contentions and they had ample opportunity from early in the hearing process in March 2018 to seek to produce evidence to counter his reliance on an interpretation of facts which he argues is evidence of discriminatory conduct.
- The respondents chose not to call Professor Baboolal as part of their case. They had interviewed him early in the complaint but did not ever finalise his version of events into a statement that the respondents wanted to rely on. It was his evidence in particular given on 9 August 2018 that had the effect for the Tribunal of filling in gaps in the evidence. He made it clear for the first time that he had informed Malcolm Stamp, the Chief Executive Officer, of Dr Davis’ application which resulted in time in the decision to cease the recruitment process. His evidence drew the attention of the Tribunal to the relevance of the interference by Malcolm Stamp, the Chief Executive Officer, in the recruitment process and to the relevance of the decision made on 2 September 2014. The respondents would have been aware of the evidence of Professor Baboolal well before the start of the hearing. They could have called him, as they did call other employees who had been directly involved in Dr Davis’ application, to give evidence but they decided against this course.
- The role of the Tribunal is to determine the complaint according to law. The Tribunal has an obligation to ensure, as far as is practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the complaint with all the relevant facts. The Tribunal must act fairly and according to the substantial merits of the case. It must observe the rules of natural justice but it is not bound by the rules of evidence or by any practices or procedures applying to courts.
- The Act provides that the Tribunal must have regard to the reasons for the enactment of the Act as stated in the preamble. In doing so, the Tribunal has regard to the statement that everyone should be equal before and under the law and have the right to equal protection and equal benefit of the law without discrimination, and for the Anti-Discrimination Act to make provision for the promotion of equality of opportunity for everyone by protecting them from unfair discrimination. These sentiments, together with the requirements of s 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) to act according to the substantial merits of a case, provide some context as to how complaints of discriminatory conduct are to be determined.
- I am satisfied that strict adherence to pleaded contentions is not necessary in order to act according to the substantial merits of a case. The Tribunal can, in this case, act fairly towards all parties by taking into account evidence that is relevant and cogent and by considering a case that was developed during the hearing based on that evidence. The respondents were represented by experienced counsel who took all opportunities to challenge the case of Dr Davis. I am satisfied that no unfairness arises when the Tribunal makes findings based on its interpretation of the evidence given during the course of the complaint, and in particular during the oral hearing, despite the contentions being rather more limited in scope than the evidence eventually revealed. Dr Davis did not have the evidence of Professor Baboolal until the hearing and it is not unexpected that late access to his evidence necessitated some changes to his case.
Events subsequent to 2 September 2014
- The Tribunal finds that the decision to cease the recruitment process for the 0.5 FTE Senior Medical Officer position made by the Chief Executive Officer of Metro North Hospital and Health Service on 2 September 2014 amounted to unlawful discrimination against Dr Davis. However, the impact of that decision must be considered in the light of further actions that occurred between 2 September 2014 and 26 September 2014. Those further actions came about due to Professor Baboolal seeking some form of accountability from the Chief Executive Officer so that an audit trail could be established for the decision to cease the recruitment process.
- Professor Baboolal has academic qualifications in law as well as in medicine. He explained that he had a concern that appropriate governance and accountability were missing in the decision made to cease the recruitment process. He was aware of ‘alarm bells’ that the decision to cease the recruitment process could be discriminatory and to address those concerns, he decided to act. To address the absence of written justification for the decision of 2 September 2014, Professor Baboolal directed Kate Mason by email to prepare a brief to the Chief Executive with a recommendation that the application by Dr Davis proceed to merit selection.
- Professor Baboolal explained his rationale:
‘Well, the purpose of the brief was a governance process that, you know, if the chief executive was going to direct, as was happening, that there had to be an accountable audible trail of that decision-making. Because I felt it was going – it was not the appropriate process. So that was one purpose. The second purpose was that I felt it was we should be going through an interview process and therefore was requesting that we did proceed down that line and that was the primary message at the front of it. The third thing was also to really highlight the potential risk to the organisation if it continued down the route it was going, by spelling out what are the issues.’
- Because of those concerns, Professor Baboolal deliberately directed Kate Mason to hold off informing Dr Davis of the decision to cease the recruitment process. Professor Baboolal wanted some formal accountability from the Chief Executive Officer for the decision. Kate Mason was wrong in her assumption that the request for the brief was because of ‘cold feet’ from Malcolm Stamp. The request to create a brief was the idea of Professor Baboolal alone and the request did not, at 5 September 2014, change or rescind the decision already made to cease the recruitment process.
- It appears that the suspension of Malcolm Stamp on 8 September 2014 was unexpected, as was the appointment of Kerrie Mahon as the Acting Chief Executive. There was no immediate impact on the outcome of Dr Davis’ application by the change of Chief Executive, as the decision had already been made to cease the recruitment process, although Dr Davis had not been informed of the decision. After 8 September 2014, rumours were circulating within the hospital that the recruitment process was being delayed due to interference from the executive team at Metro North Hospital and Health Service. Those rumours had reached Dr Davis by midSeptember 2014.
- Kerrie Mahon gave evidence that she could not recall when she first became aware of Dr Davis’ application. Due to his unexpected departure associated with his suspension, Malcolm Stamp is unlikely to have informed Kerrie Mahon of this matter. In any event, it would not have been a live issue for the departing Chief Executive Officer as he had told Professor Baboolal that the vacancy was to be filled internally. The most cogent evidence was given by Professor Baboolal. He said that he had discussed Dr Davis’ application with Kerrie Mahon early in the week commencing 22 September 2014 in the context of seeking a response to the brief sent some two weeks earlier.
- Professor Baboolal stated that he told Kerrie Mahon that Malcolm Stamp had asked him to fill the vacancy in the Senior Medical Officer’s position by internal arrangements and that he (Professor Baboolal) was uncomfortable with that decision. Professor Baboolal discussed the arrangements that he had put into place to fill the vacancy and how he considered those arrangements to be unsustainable as they just created another gap in service delivery elsewhere.
- It is clear from the evidence of Professor Baboolal, which was not challenged, that Kerrie Mahon was aware of the decision made by her predecessor to cease the recruitment process associated with Dr Davis’ application. The brief that she was being asked to consider was seeking a further decision to reverse the decision made on 2 September 2014 and the brief contained a recommendation that the process continue to open merit selection.
- It is not unexpected that Kerrie Mahon had such a focus on clinical streaming in her consideration of the question being put to her. In her written statement, Ms Mahon stated that in 2010 and then in late 2013, she was responsible for leading the process for developing the Metro North Hospital and Health Service Strategic Plan 2014-2018. In that role she had consulted with clinicians across the Service on improvements to health services. She was directly involved with her team in holding workshops to develop clinical steams for each major speciality group and her team undertook health service planning and population demand projections to facilitate plans of contemporary models for clinical services in each clinical stream.
- Ms Mahon states in her written statement that the Strategic Plan, and the results of the health services plan regarding demand and accessibility of clinical services across the Health Service district, foreshadowed and led to the Metro North Hospital and Health Service Board reforming the model of clinical service delivery in the latter part of 2014, through the introduction of clinical streaming across the Health Service district.
- Ms Mahon was appointed as Executive Director, Clinical Governance, Strategy, Quality and Risk in August 2014 for Metro North Hospital and Health Service. By August 2014, the Clinical Stream Executive Directors has been appointed and commenced their appointments on 1 September 2014. Ms Mahon acknowledged that this was a time of transition and some uncertainty in the Health Service district exacerbated by many staff movements and organisational changes occurring at that time.
- Despite her background in strategic planning and her recent quality and risk responsibilities, Ms Mahon did not make notes of any of her conversations about Dr Davis’ application. She stated that she spoke to those persons who had information, such as Professor Baboolal, but that she did not record anything from her discussions about this application. Angela Wilkie, a human resources officer within Metro North Hospital and Health Service, described Kerrie Mahon’s style in her role of Chief Executive Officer as quite a structured person: conversations were quite formal and meetings and minutes of meetings were documented. Ms Wilkie thought that Kerrie Mahon had a regimented approach and kept good file notes and good records.
- Ms Mahon is obviously an intelligent and talented person. She had experience in senior administrative and managerial roles within Metro North Hospital and Health Service. Her skills were obviously recognised and valued by the Board of the Health Service as she was appointed to the top managerial role of Chief Executive Officer in an acting capacity on 8 September 2014. She worked with the Board Chairman and was responsible to the Board in carrying out her role. It is reasonable to conclude that, given her responsibilities in that role, her inherent inclination to keep good notes of meetings with staff would be heightened. However, on the issue of Dr Davis’ application, her evidence reveals that quite the opposite occurred. Ms Mahon kept no contemporaneous notes or made any records of who she spoke to and what she was told before declining to permit the recruitment process to proceed.
- During cross-examination, it was put to Ms Mahon that the absence of records of her discussions about Dr Davis’ application amounted to bad governance on her part. Ms Mahon replied:
‘I thought it was sufficient to have the conversation with Dr Baboolal to determine – to assure me of the things that I’ve asked him – and he did assure me – and for me to then continue in my decision making.’
- Ms Mahon would not accept the suggestion that such a departure from her usual structured approach to record keeping was unusual or bad practice.
- However, the Tribunal is not satisfied that Ms Mahon has adequately explained why, regarding Dr Davis’ application, she did not keep notes or records of her enquiries. She gave evidence that she was aware of the political activities of Dr Davis and of how he was sacked as Assistant Minister for Health. Ms Mahon had told Dr Whiting that she was aware of the ‘awkwardness’ that Dr Davis’ application presented to the Health Service due to his past political position. Ms Mahon had been told that a decision had been made by Malcolm Stamp to cease Dr Davis’ application and that the Executive Director of the Royal Brisbane and Women’s Hospital was not comfortable about that decision. How she dealt with the aftermath of that decision which was not being left to sit by Professor Baboolal and whether she would reverse that decision would have been a major task for Ms Mahon and one that she should have strictly documented in line with her natural inclination, administrative experience, and personality style.
- Her failure to do so was left without an adequate explanation. Ms Mahon did not admit to discussing Dr Davis’ application wider than her discussions with Professor Baboolal, Dr Whiting, and possibly Dr O'Sullivan. However, Angela Wilkie, head of Human Resources at Metro North Hospital and Hospital Service, gave evidence that she had spoken to Ms Mahon on various occasions about the process for recruiting this Senior Medical Officer position. This was not disclosed by Ms Mahon.
- Ms Wilkie gave evidence that there had been discussions amongst the executive team at Metro North Hospital and Health Service about Dr Davis’ application for the position. In particular, Ms Wilkie stated that from these discussions she became aware that clinicians involved in the recruitment process for the position had a perception that the executive team at Metro North Hospital and Health Service were interfering in the recruitment process for an improper reason, namely because of Dr Davis’ position in politics. One such clinician, Dr Denaro, confirmed that he was aware of a rumour that Dr Davis would not be employed at Metro North Hospital and Health Service because he had opposed the Liberal national Party on a number of issues.
- Ms Mahon, as acting Chief Executive Officer, was part of the executive team. She did not include in her statement any reference to her discussions with Ms Wilkie or about what had been discussed at the executive team meetings about perceptions by clinical staff of interference for political reasons in the process regarding Dr Davis’ application. No explanation was given for the failure of Ms Mahon to include this evidence in her statement although it would have been highly relevant and cogent. Her written statement was effectively limited to one issue, clinical streaming, when her knowledge of the circumstances of Dr Davis’ application was shown by the evidence of Ms Wilkie and Professor Baboolal to be somewhat wider in scope.
- I am satisfied that Ms Mahon became aware after she was appointed as acting Chief Executive Officer of concerns that some clinical staff had about the way Metro North Hospital and Health Service was processing Dr Davis’ application. Her knowledge was from direct discussions with Professor Baboolal who told Ms Mahon of his concerns about Mr Stamp’s decision and then from informal discussions at the executive team meetings about what essentially were rumours about interference for political reasons in the process. With that knowledge, the Tribunal finds it is incredible that Ms Mahon did not see the need to make records of all her discussions about Dr Davis’ application despite the risks to her reputation and to the reputation of the Health Service that the circumstances readily gave rise to.
- I was left with the impression that Ms Mahon, contrary to her usual structured approach to meetings, did not make notes or keep records in order to prevent details of those discussions becoming public. I find that Ms Mahon was selective in her evidence and offered facts that would tend to support the case of the respondents, of which she was one, rather than giving a full revelation of what she knew of the circumstances relevant to the complaint.
- This was particularly highlighted when Dr Davis filed in the Tribunal on 6 August 2018 a copy of a clinical stream update from Metro North Hospital and Health Service emailed to staff about the implementation of clinical streaming in 2014. This update dated 17 September 2014 specifically stated that the day to day activities, processes and reporting lines will remain the same until the new framework is fully implemented. A further update sent on 9 October 2014 stated that until arrangements, including the development of clinical stream operational plans, are embedded, it was important to maintain business as usual. These updates and their contents were not disclosed by Ms Mahon. These documents are consistent with the evidence of Dr Whiting that she had understood that processes, including recruitment, were to be conducted a ‘business as usual’ basis pending implementation of clinical streaming being finalised. The effect that Ms Mahon’s evidence gave was that the change in processes, such as recruitment, was required to take place immediately.
- Overall, I found Ms Mahon to be an unsatisfactory witness regarding what exactly she had done and what she had taken into account when reaching a conclusion that the recruitment process of Dr Davis should not be reinstated by proceeding to a merit selection.
- Before leaving Ms Wilkie’s written statement, there is a remaining issue that was not satisfactorily addressed. Ms Wilkie said in her written statement that she did not recall discussing issues about the recruitment process involving Dr Davis’s application with Dr Alexander at any time. However, Ms Wilkie did not admit that she had at least tried to do so nor did she reveal the reasons why she tried to do so. Dr Whiting, in an email sent on 26 September 2014, stated that Angela Wilkie had intended to meet with Dr Alexander on 25 September 2014 and she planned to discuss with him what his options were. The ‘options’ relate to the comment in the email by Dr Whiting that she had told Angela Wilkie of her belief that there were no grounds not to progress employment irrespective of where the identified priorities are if the individual wishes to apply for a position and is meritorious.
- The email goes on to reveal that the meeting between Ms Wilkie and Dr Alexander did not take place on 25 September 2014, but that the meeting was to occur in the afternoon of 26 September 2014. There is no evidence as to whether Ms Wilkie achieved her intent to speak to Dr Alexander to ascertain what his options were about the employment of Dr Davis. However, the question arises why the Human Resource Manager, whose authority did not cover the employment of clinical staff, sought to discuss what options Dr Alexander believed were relevant to that issue when he had no role as Board Chairman in recruiting a Senior Medical Officer. The answer must logically be that, Ms Wilkie, as part of the executive team who worked with Dr Alexander, was aware that Dr Alexander would be interested in the outcome of a recruitment process involving Dr Davis because of who Dr Davis was. I am satisfied that Ms Wilkie would not have sought directions from the Board Chairman about another applicant, who did not have a history of being involved in a public and political dispute with the government of the day, and who wanted to be employed as a Senior Medical Officer, in circumstances where a clinical streaming assessment for the position had not taken place.
- I am satisfied that the facts support a conclusion that Ms Wilkie as part of the executive staff at Metro North Hospital and Health Service was aware of potentially serious consequences of not proceeding on merit with the recruitment of Dr Davis to the position for which he was the only applicant and she wanted to seek direction from the Board Chairman on what should be done. I am satisfied that Ms Wilkie did not, at that time, hold the view that the absence of a clinical streaming assessment necessarily prevented a resumption of the recruitment process but that other options, such as proceeding with the recruitment, were just as able to be considered.
- I cannot reach a similar conclusion regarding Ms Mahon. I have found that she was an unsatisfactory witness arising from what she failed to reveal of her knowledge of the outcome she reached about Dr Davis’ application. However, the basis to draw an adverse inference that Ms Mahon held a substantive reason for not adopting the recommendation to proceed to a merit selection because of Dr Davis’ political belief or activity has not been established. I am satisfied that she was aware of his political beliefs and activities but the evidence to establish a finding that that knowledge effectively leads to, and is the source of, her decision is not present. However, the conclusion already made that Dr Davis was subjected to discriminatory conduct by Metro North Hospital and Health Service by the decision made by Mr Stamp on 2 September 2014 is not negated by the absence of liability being found against Ms Mahon.
- I have found that the recruitment process had ceased by virtue of the decision made on 2 September 2014. Dr Davis would have been told of the decision to fill the role by internal re-arrangements shortly after that date if Professor Baboolal had not decided to proceed on his concerns about that decision and to seek documented accountability from the Chief Executive Officer for the decision. However, the evidence is clear: the decision was not rescinded after 2 September 2014, although that was the outcome that Professor Baboolal had hoped would occur. The impact of the discriminatory conduct took effect from the decision made on 2 September 2014. The Actions of Kerrie Mahon in declining to set aside the discriminatory decision had no causal role in the liability of Metro North Hospital and Health Service for that decision. The recruitment process had ceased on 2 September 2014. The reasons espoused by Ms Mahon for not rescinding that decision are ultimately quite irrelevant to the liability of the first respondent.
- S 132(1) of the Act provides that it is one of the purposes of that Act to promote equality of opportunity for everyone by making a person liable for certain acts of the person’s workers or agents. S 132(2) provides that that purpose is to be achieved by making a person civilly liable for a contravention of the Act by the person’s workers or agents.
- S 133(1) provides that if any of a person’s workers or agents contravenes the Act in the course of work or while acting as an agent, both the person and the worker or agent are jointly and severally liable for the contravention, and a proceeding under the Act may be taken against either or both. The first respondent was the employer of Malcolm Stamp as at 2 September 2014. He was the Chief Executive Officer of the first respondent. The first respondent would be variously liable for contraventions of the Act by its Chief Executive Officer. This proceeding was not taken against Malcolm Stamp as he was not joined as a respondent. However, the effect of s 133(1) is such that the Tribunal, having found that Malcolm Stamp contravened the Act, can conclude that as a matter of law the first respondent is vicariously liable for the contravention of the Act by its worker or agent, Malcolm Stamp without a proceeding being also brought against him.
Dismissal of complaint as against the second respondent and third respondent
- Kerrie Mahon was not involved in making the decision on 2 September 2014. I have not found that her actions amounted to a contravention of the Act. I dismiss the complaint made against Kerrie Mahon. The role of the third respondent, Donna O'Sullivan, in acting in a discriminatory manner against Dr Davis was barely articulated in the contentions, at the oral hearing or in the final submissions. She was not involved in making the decision on 2 September 2014. I cannot find on the evidence that her actions amounted to a contravention of the Act. I dismiss the complaint made against Donna O'Sullivan.
- Dr Davis seeks the payment of damages to compensate him for loss and damage arising from the discriminatory conduct of the first respondent. The Tribunal has power under s 209 of the Act to make an order requiring the first respondent to pay such compensation.
- Dr Davis gave evidence as to the effect that the discriminatory conduct of the first respondent had on him. He told the Tribunal that he had feelings of anger and grief because he had been prevented from returning to work as a public hospital doctor. He stated that he had lost self-esteem, he had lost his standing in his profession, and he had lost dignity because of the treatment he had received. The loss of his selfesteem arose as he had been reduced from medical director of a major academic clinical department to a clinician incapable of securing a public hospital position, such as a Senior Medical Officer.
- Dr Davis stated that not being able to participate in his profession and having been subjected to discrimination had caused him considerable distress. He had isolated himself from people and events that would remind him of what had happened to him. Dr Davis stated that this isolation had resulted in his not applying for further public hospital clinical jobs, having been denied the prescribed and fair recruitment procedures. He feared a further loss of dignity should he apply for additional positions that he had no prospect of getting.
- Dr Davis stated that there had been significant negative effects on his psychological and physical well-being, particularly impacting on his sense of purpose, and on his mental and physical stimulation. He was denied the social aspects of working with patients, families, and workers within the public health system. He was denied the opportunities to practice his profession, in regards the work he might have otherwise done in the positions he had applied for at the Royal Brisbane and Women’s Hospital and at Caboolture Public Hospital.
- Dr Davis stated that he has had minimal opportunity to practice his professional skills or engage in professional development that is integral with public hospital clinical practice. He stated that due to the denial of competent professional status, as well as income, and from a desire not to interact with people who assisted the refusal to give him work, he has become isolated from his profession. He stated that there has been a very significant impact on his professional outlook which has made him despondent and creating a sense of powerlessness.
- He stated that loss of income has directly adversely affected his financial flexibility with associated psychological detriment. His available resources have changed from savings of more than $96,000 to having to increase his mortgage facility by some $163,400. He stated that he has gone from a position of financial independence to one of reliance on his wife’s income.
- Dr Davis stated that income from his limited private practice has been insignificant in comparison to earnings from his usual career as a public hospital doctor. He stated that general medical practitioners prefer maintaining close professional relationships with hospital geriatricians who can access other essential resources such as admission to public hospital beds and access public hospital and ambulatory service allied health and nursing professions.
- Dr Davis presented details of his income from private practice from FY 2014/2015 to 31 December 2017 as follows:
- (a)FY 2014/2015 $9,862.16
- (b)FY 2015/2016 $17,911.12
- (c)FY 2016/2017 $15,616.52
- (d)FY To 31.12.17 $6,307.75
- Dr Davis stated that he has been denied the physical aspects of going to work, particularly moving around the workplace, and the mental stimulation that also results from physical activity. He stated that he has developed gravity ulcers on his lower limbs associated with inactivity.
- Dr Davis relied on extracts from a report of the House of Representatives Standing Committee on Employment which found adverse impacts from prolonged unemployment which were consistent with the impacts that Dr Davis reported as experiencing himself, including low self-esteem, loss of self-identity, mental and physical ill health effects, social isolation, and financial devastation.
- Dr Davis stated that his focus on the preparation of this complaint for determination by the Tribunal has resulted in less time to devote to his private practice, which has been severely detrimentally affected as a result. What is described as near total immersion in preparation of the complaint, has resulted according to Dr Davis in his curtailing many therapeutic activities such as spending time with his family and friends, attending church, playing piano, and music appreciation. He stated that overall, this matter has caused him great sadness and disappointment, which at times has bordered upon despair with suicidal ideation.
- He eschewed external health professional advice and medication to deal with the stress of preparing his complaint but relied on self-directed ‘cognitive behavioural therapy’. Dr Davis stated a belief that this course of action allowed him to identify and address the causes of major stress associated with the complaint and Tribunal hearing processes.
- The evidence of Dr Davis about the impact that the failure to obtain the Senior Medical Officer position had on him is supported by evidence from his wife and from his son. His son refers to Dr Davis being withdrawn, questioning his selfworth, and being ostracised from his colleagues. His wife, Dr Sinclair, referred to Dr Davis becoming anxious when the response to his application was delayed. She refers to him displaying depression, frustration, anger, disbelief, and being horrified at what he perceives to be the loss of his career in medicine. She refers to psychological effects displayed by Dr Davis as well as loss of confidence and social isolation. She states that Dr Davis does not attend AMAQ functions as past president or other professional meetings as he does not want to discuss his situation.
- Dr Sinclair has noticed that Dr Davis has a leg ulcer which has become infected and which has caused him pain. She states that his tiredness and stress associated with this complaint have aggravated his post-polio syndrome, resulting in weakness and more pain. She states that work had always been an integral part of Dr Davis’ life and not working has affected him profoundly. She stated that his lack of appreciable earnings has been a constant source of worry and anxiety. She noted that Dr Davis no longer takes pride in his appearance and does not look after himself as he used to. Dr Sinclair stated a belief that his standing as a professional has been affected by the lack of resolution of his complaint and his inability to work again.
- The submissions of the respondents object to some aspects of the evidence of Dr Sinclair as amounting in effect to expert evidence when her expertise has not been established. The Tribunal considers that the evidence of Dr Sinclair is not expert evidence and any opinions expressed by her are not expert opinions. Her evidence is as the wife of Dr Davis and as someone who has a unique opportunity to observe him in all types of circumstances. I am satisfied that the evidence of her observations is cogent and relevant and is accepted by the Tribunal. It is reasonable to expect that what she observes of her husband’s behaviour and moods is informed by her own medical knowledge and her choice of language at times is likely to be immured with a familiarity with medical terminology. These factors do not convert her evidence into expert evidence and the Tribunal has not given any higher merit to Dr Sinclair’s observations from that perspective than to similar evidence from Donald McInnes who is without a medical background.
- Donald McInnes is a friend of Dr Davis. He stated he became aware of a change in Dr Davis in that he was pre-occupied, distracted, and was turning down social invitations. Mr McInnes stated that Dr Davis stopped going out to dinner regularly with him because he had work to do associated with his complaint. Mr McInnes noted that Dr Davis’ physical health and mobility have declined.
- The evidence as to the impact of the discriminatory conduct on Dr Davis was not contradicted by evidence from the respondents as far as a claim for general damages was concerned. The Tribunal should assess appropriate compensation by looking at the overall impact of the unlawful events on Dr Davis. What is relevant is the impact causing loss or damage to the particular complainant. Damage is defined in an inclusive manner in s 209(5) as including the offence, embarrassment, humiliation, and intimidation suffered by a person. As the definition is not limited to the particulars set out in s 209(5), damage could also be manifested by other adverse effects suffered by a person.
- I accept the evidence of Dr Davis and of his witnesses as to the impact caused to Dr Davis by the contravention of the first respondent. I find that the unlawful discriminatory conduct which ceased the recruitment process, and which prevented Dr Davis from being appointed to the Senior Medical Officer position, caused Dr Davis loss and damage. He experiences feelings of anger and grief, loss of selfesteem and confidence, loss of dignity, social isolation, reduced sense of purpose, feelings of despondency and powerlessness, loss of independence and development of feelings of dependence, reduced mental and physical stimulation when not working, pain from infected gravity ulcers on his leg associated with reduced physical activity, feelings of great sadness and disappointment which has bordered upon despair with suicidal ideation, and a profound general loss of enjoyment of life.
- The Tribunal must consider those impacts on a person who previously was a highly achieving individual with an intact sense of worth, had self-confidence, and a sense of dignity from a lifetime of successful professional activity and standing. His evidence reveals that he had overcome the effects of polio as a child and completed his academic studies despite some disability arising from his childhood ill health. At age 38 he was appointed as Medical Director, Geriatric Medicine and Rehabilitation Medicine Programme, at The Prince Charles Hospital. He was very active in his professional college, being Chairman of Queensland State Committee, Royal Australasian College of Physicians, and then President of the Australian Medical Association, Queensland in 2008/2009. He remained in charge of Geriatric Medicine at the Prince Charles Hospital for 20 years until 2012, when he resigned to enter politics. After election to the Queensland Parliament, he was appointed as the Assistant Minister for Health as a first term parliamentarian.
- Dr Davis gave evidence that he intended to return to his profession as a geriatrician after he finished with politics. He had expected to resume his career as a public hospital doctor practicing in geriatrics. Those matters were fundamental to his self-image and emotional functioning. The Tribunal finds that the matters set out in paragraph 165 amount to a serious, deleterious impact on the psychological state of Dr Davis and that impact was caused by the contravention of the first respondent. Dr Davis has been changed by that impact from a confidant, highly achieving medical professional capable of taking responsibility for the management and direction of an entire department of a major public hospital to an anxious, despondent, socially isolated person who demonstrates a lack of purpose, self-worth and drive. The Tribunal finds that this deleterious impact has been long lasting (since September 2014) and ongoing.
- The respondents submitted that Dr Davis has attributed some of the impact he experienced to factors that arose from his decision to self-represent himself in this complaint for part of the period from referral to the Tribunal until hearing. Dr Davis did reveal that his time and focus was heavily taken over by his preparation of his complaint for hearing and that this had been a factor in his social isolation and exhaustion. The respondents submitted that the period of self-representation was 11 months and that the demands of being a self-represented litigant for that period could not have affected Dr Davis.
- However, Dr Davis’ evidence is clear: the burden of acting on his own behalf in preparing his complaint for hearing did have an impact on his emotional functioning. Dr Davis gave unambiguous and consistent evidence on that issue and his evidence was corroborated by the observations of members of his family and by his friend. The Tribunal accepts the evidence of Dr Davis and finds that, as a direct consequence of bringing his complaint to a determination, Dr Davis acted as a selfrepresented litigant for part of the complaint process and in doing so, experienced damage in the sense of burdensome emotional effects. The damage is in this sense a direct consequence of the unlawful actions of the first respondent.
- Dr Davis is seeking $100,000 as compensation by way of general damages. In support of his claim for compensation of that amount, he submitted that the Tribunal should take into account the fact that he was a very public figure at the time of the events, his treatment at the hand of the then Queensland Government was demeaning and humiliating, the treatment was an abuse of power, and was compounded by the fact that he was at that time a person of high status in the community due to his professional and political achievements.
- The respondents argue against the relevancy to the assessment of general damages of the assertion that the treatment that Dr Davis received involved an abuse of power. Putting aside the question as to whether any finding has or can be made that there had been an abuse of power, the Tribunal is not persuaded by the assertion made on behalf of Dr Davis on this issue. What is relevant to the assessment of general damages is the impact of the contravention on the complainant. The submissions do not satisfy the Tribunal that the categorisation of the respondents’ actions as an abuse of power (as distinct from their legal effect of contravening the rights of Dr Davis) was somehow determinative of the extent of the impact on him that ensued and therefore quantifiable in general damages.
- Dr Davis has not presented authority to the Tribunal which supports his assertion. The Tribunal considers that the question of whether there was an abuse of power might be relevant to the issue of determining whether aggravated damages should be awarded but will not take the question into account when estimating the appropriate amount of general damages to award to Dr Davis.
- The respondents also submitted that Dr Davis’ past achievements are irrelevant to an assessment of general damages. The respondents submitted that there is no principle that a person ought to be awarded greater general damages on the basis of their past achievements as a person may experience injured feelings regardless of their past achievements. The Tribunal agrees with the proposition that the past achievements, or even professional status, of a person are not necessarily indicative of how that person would be impacted by a contravention of the Anti-Discrimination Act. However, the issue to be considered in each case is whether, on the evidence in that particular case, the personal impact on the person has been heightened due to some factor peculiar to the complainant, such as having a public profile or reputation from past achievements.
- The Tribunal accepts that Dr Davis reacted strongly to what he perceived to be a major fall from grace with the entity which had employed him for over 20 years. He had enjoyed eminent status within that entity. The Tribunal finds that the fact that Dr Davis was not appointed to a relatively junior position for which he was the only applicant dealt a major blow to Dr Davis’ self-esteem and sense of dignity from which he has not yet recovered. The Tribunal finds that that impact was made more significant to Dr Davis because of his past professional and employment achievements and because of his perception of his standing within Metro North Hospital and Health Service.
- The Tribunal can be guided in the assessment of general damages by what other decision makers, in cases involving unlawful discrimination, have concluded is appropriate compensation for contravention of a person's human rights. Each case, of course, is different as the impact of that contravention will differ from person to person.
- Of the cases that the submissions of Dr Davis urged the Tribunal to consider, Richardson v Oracle Corp (Australia) Pty Ltd (‘Richardson’), presents the highest award of general damages of $100,000. In that case, Ms Richardson was found to have endured continuous sexual harassment at work over a period of seven months, causing an adjustment disorder with mixed anxiety and depressed mood which continued for up to two years and which had caused her to change jobs and which adversely affected her sex life with her partner. An award of general damages based solely on the outcome in Richardson’s case would be a departure from the way the Tribunal and its predecessor had assessed general damages in the past.
- The member in Green v State of Queensland, Brooker and Keating  QCAT 8 (‘Green’) set out a comprehensive analysis of the factors resulting from applying the new level of general damages as set out by Richardson. I adopt the reasoning he used in that analysis and agree with his conclusion which found that there was in fact a line of Tribunal authority that had sought consistency of general damages awards with the awards of other courts to compensate for similar impacts caused by unlawful conduct of a respondent. The member concluded that the Tribunal should stay on the course followed in the recent decisions and should not suddenly increase awards of general damages because of Richardson, particularly as the Tribunal is established by State law and has authority of decisions in the State courts to guide the Tribunal in the assessment of general damages for like impacts.
- The awards of other courts that he had identified had been delivered by the Supreme Court of Queensland for impacts amounting to psychological injuries diagnosed and treated by health professionals. He had also recognised that in cases where there is no such diagnosed personal injury there will be no comparable line of authority from the Queensland courts that could guide the Tribunal for consistency purposes. He suggested that in those cases the Tribunal could be influenced by Richardson to increase its levels of awards in appropriate cases to ensure that the awards keep pace with inflation and with prevailing standards in the community. Once again, I agree with the approach suggested by the member and adopt the conclusion he reached.
- Dr Davis has not relied on medical evidence that he has sustained a diagnosed psychological disorder because of the conduct for which the first respondent is liable. He eschewed medical treatment and instead he used his own form of cognitive behavioural therapy to respond to the negative impacts he experienced on his emotional and psychological functioning. Nevertheless, the Tribunal finds that the impact has been real and distressing to Dr Davis. The Tribunal finds that the impact has had a more deleterious impact than mere offence or transitory humiliation and has brought about the changes described in paragraphs 164 and 167.
- I find that the Actual impact on Dr Davis’ functioning caused by the contravention of the Act in this case is not dissimilar to, and has had serious and debilitating consequences in common with, the effects of a diagnosed psychological disorder. I am satisfied that the Tribunal should consider, when assessing the appropriate level of general damages required by s 209 of the Act to compensate Dr Davis for the damage caused to him, the persuasive influence of Richardson in raising the level of the award to reflect prevailing standards in the community.
- I am not persuaded, however, that by adopting the principles in Richardson in cases where there has been no evidence relied on about the development of a diagnosed medical disorder the Tribunal must necessarily award damages to the levels awarded in that case. Where the impact is slight or transitory, the award must reflect that scope of impact. Where the impact is life changing and prolonged, regardless of the presence or absence of a diagnosed injury, the award of general damages should be raised within a comfortable distance of compensation levels awarded by the courts and the Tribunal for similar impacts found to have resulted from the wrongful conduct. Community standards should be able to be ascertained from those court awards and more recently from the Tribunal awards.
- The submissions by Dr Davis suggest that the awards of the Tribunal in Green, in STU v JKL (Qld) Pty Ltd & Ors (‘STU’), and in Carey v Cairns Regional Council (‘Carey’), may be of some guidance. General damages of $70,000 were awarded in both Green and in STU. General damages in Carey were awarded at $30,000. The submissions by the respondents suggest that general damages should be in the range of $0 to $5,000. In view of my findings that Dr Davis has sustained damage of a life changing and prolonged effect, I do not accept the submissions of the respondents as to the appropriate amount of general damages to compensate Dr Davis for the damage he experienced.
- In Carey, the complainant had become reclusive, was concerned about his financial circumstances, was caused considerable stress, had lost considerable confidence in his own abilities, suffered nausea, tearfulness, irritable bowel and other painful symptoms, suffered distress, depression, hopelessness, anger and low self-esteem. In Green, the complainant was preoccupied by the wrongful conduct he had experienced, had feelings of profound embarrassment and humiliation, had feeling of being sexually attacked, developed binge drinking of alcohol, had problems sleeping and concentrating, had fatigue, rapid heartbeat, trembling, obsessive thinking, eating and stomach problems, compulsive behaviours, bouts of crying, depressed mood, feelings of hopelessness, and anxiety. In STU, the complainant suffered post-traumatic stress order and depression, nightmares, psychotic ideation, agoraphobia, anxiety, fear, panic attacks, poor sleep, loss of confidence and trust, suicidal thoughts, attempted suicide, self-harm, and drug and alcohol abuse.
- I am satisfied that the impact on Mr Green and on STU was significantly greater than the impact caused to Dr Davis by the wrongful conduct. I consider that the award of general damages to compensate Dr Davis should not be as high as the general damages awarded in those two recent Tribunal decisions. The impact to Mr Carey appears to have been closer to the impact experienced by Dr Davis. Allowing for the effects of inflation as set out above, an award of $35,000 for general damages would be consistent with Carey. However, general damages in that amount would not take into account the factors recognised by Richardson, particularly a change in community standards as to an appropriate response to a contravention of a person’s human rights as protected in legislation such as the Act.
- Taking into account those factors, I am satisfied that an award of $50,000 would be appropriate to compensate Dr Davis for the impact on his psychological and emotional functioning caused by the contravention of the Act for which the first respondent is responsible.
Interest on general damages
- Dr Davis seeks interest on the award of general damages. While there had been a line of Tribunal decisions up until recently which declined to award interest on general damages, his submissions relied on the authority of Cerutti & Anor v Crestside Pty Ltd & Anor, in seeking interest. In that case, Applegarth J (with whom McMurdo P and Gotterson JA agreed) sitting in the Queensland Court of Appeal, stated:
‘The discretion to award interest in exercised judicially and in accordance with the principle that interest is awarded to compensate the plaintiff for having been kept out of money to which it was entitled as a result of the defendant's wrongdoing. The discretion ought to be exercised unless there are proper reasons not to do so. Interest may be awarded from the date the cause of action arose, the date of demand for compensation or for some other period.’
- Since Cerutti, there have been cases where the Tribunal has followed the authority of the Court of Appeal and awarded interest on general damages. The respondents have submitted that the Tribunal’s former line of decisions that declined to award interest on general damages was correct and that the Tribunal had fell into error in awarding interest in recent cases. It was submitted that Cerutti, was a claim under different legislation and that the provisions in such a case as to damages are different to the Act. I do not accept those submissions.
- The principle that awarding interest is part of the discretion of the decision maker in Cerutti, is not expressed as being limited to or dependent on the Actual legislation that created the cause of action. The principles are of general application and are as relevant to claims made under the Act as to claims made under different legislation or at common law.
- The recent Tribunal cases referred to calculated interest at 2% per annum. I consider that it is appropriate to maintain consistency with what is an appropriate rate of interest given the prevailing low interest rates in the community. I calculate that interest on $50,000, as from 2 September 2014 (when the contravention occurred) to the date of this decision, is $4,410 and is awarded in that amount to Dr Davis.
Damages for past economic loss
- Dr Davis claims damages for economic loss arising as a result of the contravention of the Act. He claims that pecuniary loss has arisen because of the failure of the first respondent to employ him. Apart from his limited private practice as a geriatrician, Dr Davis has not worked since he applied for the Senior Medical Officer position. He gave evidence that his preference from August 2014 was for part time employment in a public hospital. After learning of the withdrawal of the Senior Medical Officer position at Metro North Hospital and Health Service at the end of September 2014, Dr Davis had applied for a number of positions unsuccessfully. These applications were for:
- (a)Geriatrician at Metro South Hospital and Health Service;
- (b)Health Service Chief Executive at Metro North Hospital and Health Service;
- (c)Board member of Metro North Hospital and Health Service;
- (d)Chief Executive of Queensland Health;
- (e)General physician/geriatrician at the Caboolture Hospital;
- (f)Chair and member of the Hospital and Health Boards
- Dr Davis did not apply for any further public hospital position after 29 November 2015. He gave evidence that being unsuccessful in applications for positions within his expertise had resulted in significant detrimental consequences on him. He had feelings of anger and grief in being unable to return to his work as a public hospital doctor. He did not want to be reminded of the discriminatory conduct he had experienced in September 2014 and so he isolated himself from people and events that would remind him of them. This isolation had the effect of Dr Davis deciding not to apply for some public hospital clinical jobs for which he may have been qualified.
- He gave evidence that after being unsuccessful in these applications, he considered that it was futile and demeaning to apply for further positions. This experience resulted in his considering that it would involve a further loss of dignity to apply for positions that he believed he had no prospect of getting. As time continued to elapse since his last period of employment as a public hospital doctor (prior to April 2012), questions about his recency of practice and currency of his clinical skills were issues relevant to his appointment as a clinician. Dr Denaro had expressed some concerns about issues of currency of Dr Davis’ clinical skills as well as whether Dr Davis would be content with a clinical position that was considerably junior to the role he had performed at The Prince Charles Hospital until 2012.
- The respondents submitted that real reason why Dr Davis did not apply for advertised positions for which he would have been qualified as a geriatrician from late 2015 was unrelated to the reasons he had given in his evidence. The respondents cross-examined Dr Davis about a call made to him by Ken Whelan in September 2015. Mr Whelan was the then Chief Executive Officer of Metro North Hospital and Health Service. Mr Whelan had asked Dr Davis whether he was interested in working with Metro North Hospital and Health Service as they needed people like him. Ultimately Dr Davis informed Mr Whelan that he would not work with the Health Service.
- Dr Davis had the opportunity to explain his response. He stated that he could not vouch for the bona fides of the invitation made by Mr Whelan as the opening remarks made by Mr Whelan referred to the existence of a legal matter between Dr Davis and the Health Service. Dr Davis believed that the call was related to his legal matter and was not a re-opening of his job application.
- Dr Davis stated that he took legal advice as the overture by Mr Whelan was taken by Dr Davis to be related to his anti-discrimination complaint, in which he was legally represented. Dr Davis stated that he received legal advice that any offer to be employed should remain in abeyance until the issue as to whether he had been discriminated against by the Health Service had been resolved. Dr Davis considered and then accepted that advice as he considered that there needed to be an independent decision made about his complaint before he was prepared to be employed at the Health Service. He did not consider it prudent to place himself in a potentially risky situation as an employee at an organisation that he perceived had already discriminated against him once.
- Dr Davis was consistent in his evidence that he wanted his complaint resolved before he believed he could accept employment with Metro North Hospital and Health Service. He considered that having outstanding litigation against his employer involving some of its senior staff would be unpleasant and detrimental to him. Dr Davis explained that he had applied for one position in the Health Service at Caboolture Hospital as he considered that it was far enough removed from the environment where he had been subject to discrimination but that he still would have wanted resolution of his complaint before he accepted a contract of employment at Caboolture Hospital.
- Dr Davis was not shaken in cross-examination on this issue. He remained clear in his evidence that be believed any employment within Metro North Hospital and Health Service could not be accepted by him unless his complaint had been resolved as the presence of the outstanding complaint would make his employment untenable for him:
‘Subject to resolution of the matter, because the geriatrician community is a very small community. And having a situation where subject to further examination before the tribunal, my colleagues had assisted and permitted the situation that led to me not being given a position – it was always going to be extremely tense, especially as a number of the people had been very close to me. I could not actually consider any form of reconciliation without an apology or some other form of mediation in respect of what the RTI documents disclose.’
- I accept the evidence of Dr Davis that he believed that it would be untenable to put himself back into the workforce at Metro North Hospital and Health Service before a resolution of his complaint had occurred. He believed that he could not work with the staff who had been involved in the process that had wrongfully failed to appoint his to the Senior Medical Officer position in September 2014, unless the sting of his experience had been pulled out through a resolution in some form of his complaint. The staff members in question held positions from on the ground clinical roles up to higher administrative roles and would be persons who he would have to work with closely.
- It is unrealistic to expect Dr Davis to be able to work harmoniously and comfortably with these staff members in these circumstances, particularly when Dr Davis had prolonged feelings of anger, distress and loss of confidence caused by his treatment by Metro North Hospital and Health Service. It is just as unrealistic to expect Dr Davis to accept employment with that entity as to expect a person who had been subjected to other forms of wrongful conduct, such as unlawful harassment, to return to the place of employment where the harassment had occurred without any remediation in place to address the wrongful conduct there.
- I find that the motivation for Dr Davis to cease applications for positions within Metro North Hospital and Health Service after November 2015 was reasonable and did not amount to a failure to mitigate his loss of wages. The Tribunal finds that Dr Davis has sustained a loss of wages as a consequence of the discriminatory behaviour to which he had been subjected. He is entitled to recover damages to compensate him for that loss.
- The respondents submit that Dr Davis has failed to present adequate evidence on which damages for past economic loss can be calculated other than by having reliance on the relevant industry award. They submitted that Dr Davis has not given full details of the costs he incurred with his private practice. However, the employment that had been sought by Dr Davis was 0.5 FTE and would have permitted Dr Davis to continue with private practice. I am satisfied that the evidence does allow the Tribunal to calculate past economic loss based on the earnings from the employment denied to Dr Davis by contravention of the Act.
- There are two methods of calculating past economic loss. The first method is preferred in the submissions of Dr Davis and looks at the amounts of remuneration paid to comparable Senior Medical Officers who had been offered employment in the period relevant to this complaint. Evidence was presented of the remuneration from 17 contracts of employment for Senior Medical Officer positions. I accept that in relation to remuneration, there are different classification levels that in turn can provide different rates of remuneration for the same position. I accept that the highest classification level for the Senior Medical Officer position was level 27 and it was reasonable to expect that remuneration for Dr Davis would be set at level 27 given his experience as a geriatrician.
- The unchallenged evidence before the Tribunal was that the range of annual remuneration from the contracts of employment at that level was from $357,275.01 to $458,440.57. The remuneration at $458,440.57 is considerably higher than the remuneration in the other contracts of employment. For the sake of a valid comparison of remuneration, I will leave out that higher remuneration contract when calculating the basis of the loss attributable to the failure to employ Dr Davis. I accept the submissions of Dr Davis that the average annual remuneration for a full time comparative Senior Medical Officer is $365,223.16. The 0.5 FTE remuneration is $182,611.58 per annum.
- The submissions of Dr Davis also include allowance for an annual increase in salary of 2.5%. This allowance is reasonable as the certified agreement relevant for Senior Medical Officers provides for such an increase in annual salary.
- On the calculation based on a comparable salary in the contract of employment of a Senior Medical Officer, Dr Davis claims past loss of salary at $813,717.17 for the period from 1 October 2014 to 31 December 2018 (plus any further days up to the date of decision). The submissions set out a calculation of past loss of wages based on the award for Senior Medical Officers as an alternative method of calculation of his loss. This alternative method arrives at a loss of $741,642 but does not include an allowance for motor vehicle and professional development. The respondents submitted that this alternative method should be a more accurate assessment of loss as none of the 17 contracts of employment used in the first method relate to a contract for a geriatrician.
- However, the relevance of those contracts of employment is not whether the roles in those contracts for Senior Medical Officers were or were not for geriatricians but because the 17 Senior Medical Officers through their contracts appear to have been paid remuneration at a rate higher than their award. I find that Dr Davis’ loss of wages from employment would be more accurately calculated by comparison to what other Senior Medical Officers would have been paid in circumstances close to the position he had been refused rather than the award given the evidence of a not insignificant difference between contract rates and the award.
- I find that the appropriate calculation of loss of remuneration to 31 January 2019 is $830,824.83. Details of my calculation are set out in the footnotes. The Tribunal has not in similar decisions reduced the figure for loss of earnings from employment by the amount of income tax payable on such a figure as damages for lost wages are taxable in the hands of the recipient. Dr Davis claims in addition an amount for the loss of the employer’s superannuation contribution based on 9.5% of remuneration. That loss amounts to $78,928.35 to 31 January 2019. This contribution is part of the employment entitlement of a Senior Medical Officer and Dr Davis should be compensated for the loss to his superannuation caused by the failure to employ him.
- The Tribunal has considered whether the evidence can establish that Dr Davis would have been able to perform the work as a public hospital geriatrician up to the date of this decision in order to found a claim for economic loss. Dr Davis gave evidence that he had made a career choice a long time ago that because of his polio and the consequences of it, he considered that the public hospital system was a lot friendlier to his needs than private practice. He stated that in private practice a geriatrician has to go from hospital to hospital and from ward to ward, but a public hospital geriatrician looks after patients in one ward.
- Dr Davis presented evidence from Dr Robert Henderson and Dr Vernon Hill as to the effect of any medical conditions that might impact on his functioning as a public hospital doctor. Dr Henderson is a neurologist. He reported that Dr Davis was diagnosed with polio at a young age. Following a clinical examination on 21 March 2018, Dr Henderson reported that Dr Davis has severe wasting and weakness in limb muscles. This is now profound in the upper limbs and lower limbs affecting his ability to perform the usual activities of daily living. Dr Henderson expressed an opinion that the main impairment from a workplace viewpoint would lie in his mobility issues such as walking and working in limited spaces.
- Dr Henderson expressed an opinion that Dr Davis would have significant difficulties working outside a predictable, highly structured workplace such as the usual outpatient department setting in a large tertiary hospital where junior doctors provide assistance in patient care. The Tribunal understands the conclusion of Dr Henderson is that Dr Davis would be able to work in a public hospital setting as a geriatrician as that environment would provide him with a predictable, highly structured workplace together with access to junior doctors to provide assistance with patient care.
- Dr Hill is a rehabilitation physician. He conducted a clinical examination of Dr Davis on 20 March 2018. He reported that Dr Davis was severely disabled early in life with polio but that he had gradually regained enough function to walk without aids, to cope with normal schooling, to play tennis and the piano as a young man. Dr Hill reported that as Dr Davis has grown older, the muscular imbalance has gradually taken its toll and now Dr Davis is finding it easier and safer to use an electric wheelchair when travelling around outside his home.
- Dr Hill expressed the opinion that Dr Davis has always practised in a public hospital setting because of the support of registrars and residents with whom he has worked. Dr Hill expressed the opinion that Dr Davis does not have the mobility and flexibility to run a standard private practice as he would be required to travel to and park at, other venues, which he would find exhausting and time consuming. Dr Hill considered that Dr Davis still had the potential to work as a geriatrician Rehabilitation Physician in a public hospital setting.
- The evidence from Dr Henderson and Dr Hill supported a conclusion that Dr Davis could work as a public hospital doctor despite his physical limitations due to post-polio complications. However, evidence from one of the respondents’ witnesses, Dr Kanaganayagam Appaurai, was relied on by the respondents to challenge the extent to which Dr Davis could work in a public hospital setting.
- Dr Appadurai stated that a geriatrician in the Internal Medicine and Aged Care Department of the Royal Brisbane and Women’s Hospital is required to work in both inpatient services and outpatient clinics. There are annual rotations through the work areas both onsite at the Royal Brisbane and Women’s Hospital and offsite at Windsor. Consultants such as a geriatrician are expected to conduct clinical examinations of patients as well as conduct oversight of the work of more junior doctors. Dr Appaduri gave evidence as to the physical demands involved when conducting a clinical examination of a patient including the practical requirement that the clinician must stand in order to perform an examination.
- However, the evidence of Dr Appadurai does not directly address the question of whether Dr Davis would have been able to work in the advertised Senior Medical Officer role in September 2014. Other evidence is more cogent. The staff who were directly involved in recruitment for that role did not express any qualms about the physical capacity of Dr Davis to perform the work required in the role. Professor Baboolal denied that there was at the time of the recruitment process any concerns raised about Dr Davis’ physical capacity. Dr Whiting had no concerns about Dr Davis’ ability to perform the work in the role and in particular stated that she had never seen his physical impairments stop him from practicing safe clinical medicine. Dr Denaro did not refer to any physical impediment on the part of Dr Davis. Dr Davis has continued to work in private practice as a geriatrician. The specific problems he stated he encounters relate to mobility issues but there was no evidence that his ability to examine patients was in anyway restricted.
- Dr Appadurai on cross examination confirmed that the significant physical impairments of Dr Davis were not to his knowledge raised during the recruitment process, including by Dr Denaro who would know about the work to be performed in the advertised role. Dr Appadurai conceded that if a person was unable to perform their duties, adjustments would be made so as to cope with any difficulties they had and the work would be re-adjusted proportionately.
- The Tribunal concludes that the evidence does not establish that Dr Davis would have been physically unable to perform the role of Senior Medical Officer that he had applied for in September 2014. None of the persons directly involved in the recruitment process had expressed any ascertained problems with Dr Davis being able to perform the role he applied for. Dr Davis believed he could perform the work. Dr Whiting expressly considered that Dr Davis could safely perform clinical duties. Dr Henderson and Dr Hill had expressed opinions that Dr Davis could work
as a geriatrician in a public hospital setting. The Tribunal finds that Dr Davis was able in September 2014 to perform the role of a Senior Medical Officer as a geriatrician. His past loss of remuneration arising from the first respondent’s contravention of the Act should be compensated for the entire period of that loss from 1 October 2014 to the date of this decision.
- Dr Davis claims interest on the lost remuneration and lost superannuation contributions. Dr Davis has not had access to the remuneration lost to him by the failure to employ him in the Senior Medical Officer role. Based on the requirement of s 209 of the Act, that appropriate compensation should be paid for Dr Davis’ loss, the Tribunal concludes that only by awarding interest on the lost income and other employment entitlements to the date of judgement will the award of compensation provide Dr Davis with the real value of employment benefits he would have had if, he had been employed from September 2014. The Tribunal considers an appropriate rate of interest is 2% as cash interest rates have been modest since 2014. The Tribunal calculates interest on past economic loss and past lost superannuation contributions of $909,753.18 from 1 October 2014 to 31 January 2019 at $78,784.62.
Damages for future economic loss
- Dr Davis claims compensation for future economic loss. He submits that the likelihood of his obtaining employment in the future is significantly diminished. He states that it is unreasonable for him to seek employment in the future with Metro North Hospital and Health Service. There are other Health Services operating in an area where he could work without the burden of lengthy travel or a change of residence, such as Metro South Hospital and Health Service. Dr Davis submits that he has already applied for a position at that Health Service and he was unsuccessful. He submits that it is unlikely that he could obtain employment in any Health Service.
- Dr Davis is currently 65 years of age. He intended to work until he was 69 years of age. If he can establish a loss of future earning capacity, that loss would extend for a period of some 3 years and 8 months. Dr Davis does not claim that the psychological and emotional impacts on his functioning, caused by the contravention of the Act by the first respondent, will continue to prevent his working for Metro North Hospital and Health Service or indeed for any other Health Service. He gave evidence that he considered that he could work even at Metro North Hospital and Health Service if there was a resolution to his complaint. He believed that the presence of that unresolved complaint would prevent his working with the persons he believed had acted wrongly against him. While Dr Davis did state that one of the consequences of the failure to appoint him to position he had sought in September 2014 was his isolation from his profession, there is no cogent evidence that his isolation would continue should his complaint be upheld.
- The complaint has been resolved by the finding of unlawful discriminatory conduct for which the first respondent is vicariously liable and awarding significant compensation for the loss and damage caused to Dr Davis by that conduct. The barriers that Dr Davis had identified to his working with clinical and administrative staff at Metro North Hospital and Health Service should gradually be removed as a result of his complaint being upheld. The then Chief Executive of Metro North Hospital and Health Service had indicated in September 2015 that Dr Davis’ employment by that Service would be welcomed and the evidence was left open to conjecture as to the possibility of employment being offered in future.
- However, the Tribunal accepts that the lengthy period of time that Dr Davis has not been employed in a public hospital setting is likely to be an adverse influence on his obtaining that type of employment in the future. He has been more than six years out of public hospital practice, with two of those years being attributable to his period as a parliamentarian. The senior clinical staff at the Royal Brisbane and Women’s Hospital had questions about his currency of practice in 2014 and those issues are likely to be raised again and again in job applications which Dr Davis may make in 2019 and afterwards. He is six years older than when he ceased work in 2012 and his contacts within his profession are likely to have weakened over time. If he had been working in the position he applied for in September 2014, these disadvantages would not have arisen or least been less influential in his ability to work. In conjunction with these issues, which would be more influential five years on in 2019 than was the case in 2014, his increased difficulties with his mobility arising from his post-polio disorder are likely to reduce his choices of employment within a public hospital setting, even if adjustments could be made.
- The Tribunal finds that the wrongful failure to appoint him to the position in September 2014 continues to cause Dr Davis loss in that his future employment prospects have been detrimentally affected by the lengthy period of time out of public practice. I find that due to his age, his decreased contacts, and his decreased profile as a clinician, and to some extent post-polio effects developed while he was involved in pursuing his complaint, Dr Davis is unlikely to be able to return to work as a public hospital doctor and that he will have to endure a forced retirement from that line of work into the future. I find that as a result Dr Davis has experienced a loss of income earning capacity which it is appropriate should be compensated with the payment of damages. I accept the unchallenged evidence of Dr Davis that he is already maximising his efforts to earn income from private practice and that his loss of future earnings from public practice should not be reduced for any allowance for any presumptive increase in his privately earned remuneration.
- Future earnings, calculated on the basis of the contractual level of remuneration of a Senior Medical Officer, for 3 years and 8 months amounts to $744,229.19. When estimating the future superannuation contributions by his employer over that period, the submissions of Dr Davis set out calculations that take into account the proposed increased rate of contributions in 2022. I adopt the inclusion of that proposed increase and find the future employer contribution to superannuation is calculated at $71,418.59.
- These estimates of future remuneration entitlements must be reduced if the Tribunal is not satisfied on the balance of probabilities that Dr Davis would work as a public hospital clinician at 0.5 FTE basis to age 69. The factors that would be relevant are contingencies such as the uncertainty of life, the post-polio disorder which, according to Drs Hill and Dr Henderson, would have impacted Dr Davis’ mobility in any event over time, and the remaining likelihood that Dr Davis will successfully obtain public hospital employment before he turns 69.
- Dr Davis submitted that the evidence before the Tribunal has provided no basis for reduction for any contingencies. He submitted that the evidence of Dr Hill and Dr Henderson should be applied only in a way that limits the prospects of Dr Davis to work in private practice. However, the evidence from those expert witnesses can also be fairly applied to predict the future capacity of Dr Davis to work as a medical professional, regardless of the setting of that future employment.
- Dr Henderson in his report dated 21 March 2018 stated:
‘The natural history is that the remaining motor units are gradually lost with the normal aging process. Gradually there is progressive wasting and weakness and in Dr Davis’ case this is now profound in the upper limbs and proximal lower limbs affecting his ability to perform the usual activities of daily living......I have considered whether Dr Christopher Davis could work in a typical Brisbane private setting. A wider scope of his overall management in the face of increasing physical difficulties would require a more detailed history and examination.’
- I accept that Dr Henderson provided his opinion about Dr Davis’ ability to work as a clinician in a private setting, but he expressly did not provide a final evaluation of Dr Davis’ ability in March 2018 to work in a public hospital setting with his increasing physical difficulties. His evidence does not rule out the likelihood that the increasing physical difficulties might restrict Dr Davis’ activities even as a hospital clinician in the future.
- The opinion of Dr Hill, as set out in his report dated 26 March 2018, could be viewed as definite support for Dr Davis to have retained the capacity to work as a clinician in public hospitals in the future. Dr Hill acknowledged that Dr Davis has gradually lost function due to post-polio syndrome. Dr Hill believes that Dr Davis’ has the potential to work in a public hospital setting as he would have the support of registrars and residents. This reliance on support of more junior doctors was comprehensively explained in the evidence of Dr Appadurai. Whilst acknowledging the supportive role of registrars and residents, Dr Appadurai stated that a consultant (the role of the Senior Medical Officer) would need to conduct physical examination of patients when circumstances arise that require a ‘hands on’ examination in order to ensure that the clinical information recorded about a patient is accurate and at those times when there has been no prior involvement in a particular patient by a junior doctor.
- I accept that many aspects of a physical examination of a patient can be undertaken despite a clinician having difficulties with standing and mobility. I also accept that there are adjustments that could be made to the manner in which a clinician working in geriatrics could perform his daily work. However, I accept the evidence of Dr Appadurai that a consultant may find that observing examinations being conducted by junior doctors may not be satisfactory in patients with complex medical conditions or with new complications. I accept the evidence that the nature of the work in the Geriatrics Department is dynamic and unpredictable and is not always the structured environment referred to by Drs Henderson and Hill.
- I prefer the evidence of Dr Appadurai to the opinions, where relevant, of Dr Henderson and Dr Hill when considering the impact that Dr Davis’s post-polio disorder is likely to have on his future capacity to work as a 0.5 FTE Senior Medical Officer in a public hospital from the end of January 2019 onwards. Dr Appadurai has worked in that setting for over 10 years and has relevant first-hand experience of the tasks involved in that particular role. His evidence, particularly as expanded during cross-examination, does not conclusively rule out the likelihood of Dr Davis working in such a role over the next few years. However, it does provide a basis for the Tribunal to be satisfied that some contingency must be taken into account that Dr Davis would not have been able to continue working as a 0.5 FTE clinician in a public hospital until age 69 due to his increasing physical limitations. Those limitations (which now include gravity ulcers and the need to mobilise outside the home using a wheel chair) do not appear to have been so advanced when Dr Davis lodged his application for the Senior Medical Officer in August 2014.
- Dr Davis submitted that the respondents raised the issue of his capacity to work in a public hospital setting effectively after the evidence had closed and he did not have the chance to provide a proper response to this allegation. I do not agree. The statement of Dr Appadurai was not limited in relevance to the sole issue of the capacity of Dr Davis to work as a Senior Medical Officer in September 2014. It was relevant to the capacity of Dr Davis to work in the future as well. The experienced legal team representing Dr Davis should not have been caught off guard by the submissions of the respondents when the submissions departed from the amended contentions of the respondents. I am satisfied that all the issues in the original submissions filed in April 2018 and in the final version filed in September 2018 had been addressed in the evidence presented in filed statements and in crossexamination of the witnesses. I do not accept that there any unfairness arose in the manner that either party presented their cases to the Tribunal.
- I consider that appropriate compensation for future loss must be based on the contingencies to which I have referred. The Tribunal finds that a reduction of some 50% of the assessed future earnings and superannuation contributions would be appropriate. This contingency percentage acknowledges that Dr Davis now has the resolution of his complaint and public recognition of the wrongful conduct to which he had been subjected. He had expected to be able to move forward with employment prospects once that result had been achieved. Whether that is possible or not is for time to tell given the increasing nature of his physical difficulties which were not so pronounced in August 2014. Nevertheless, Dr Davis has overcome similar difficulties earlier in his life and achieved his goals. He came across as a determined man of very superior intelligence but also one who readily concedes the existence of problems and who is mindful of the professional responsibilities inherent in his work as a geriatrician.
- Ultimately, I was unable to conclude on the balance of probabilities that Dr Davis would have been able to work until 69 had he not been subjected to the wrongful conduct of the first respondent. However, based on his evidence and demeanour over five hearing days in 2018, I concluded it was more likely than not that Dr Davis would have worked as a public hospital clinician past his mid-60’s, despite his difficulties. On the basis of reduction of future remuneration by a factor of 50%, the damages for future economic loss are calculated at $407,823.89.
- Dr Davis also seeks a remedy in the form of aggravated damages. He submitted that aggravated damages can be awarded to compensate a complainant when the harm done by the wrongful act was aggravated by the manner in which the Act was done. He submitted that such damages are compensatory in nature because the more insulting or reprehensible the respondent’s conduct the greater the indignity which the complainant suffers and the greater the outrage to the complainant’s feelings. Aggravated damages can be awarded as additional compensation for injured feelings when the sense of injury resulting from the wrongful conduct is justifiably heightened by the manner of, or the motive for, the conduct.
- Dr Davis submitted that aggravated damages have been awarded for acts of unlawful discrimination. Atkinson J had concluded in McIntyre v Tully:
‘There is no reason in principle why this head of damages should not be awarded in appropriate cases for unlawful discrimination when damages are awarded for distress, loss of dignity and injury to.’
- Dr Davis submitted that he should be awarded aggravated damages because the treatment he suffered at the hands of the Queensland Government was humiliating and degrading, constituted an abuse of power, compounded by his former positions as Assistant Minister for Health, a member of parliament, president of the Queensland Chapter of the Australian Medical Association, recipient of the AMA President’s Award in 2011, and Director of Geriatric Medicine at the Prince Charles Hospital for some 20 years.
- The Tribunal considers that the flaw in this claim for aggravated damages arises not from any reservations that Dr Davis suffered loss because of wrongful and reprehensible conduct by the employees and agents of the first respondent but because the evidence in the complaint could not extend to identifying any specific person within the Queensland Government who directed the decision not to employ Dr Davis. It is possible to surmise that Mr Stamp and Dr Alexander may have merely followed some bidding by a person or persons within the Ministry but it is also open to speculation that their decision was more self-protective in nature from perceived retribution that they might have faced if they were instrumental in employing a person who had so publicly denounced the policies and integrity of the Government a few months earlier. If the complaint had succeeded as against the State of Queensland, then a claim for aggravated damages may have had grounds for consideration.
- While it is regrettable that Mr Stamp and Dr Alexander did not afford Dr Davis an equal opportunity, despite his political beliefs and activities, to be considered for employment in a position for which he was the sole applicant and for which he was qualified, I cannot find that their actions amounted to an abuse of power in the sense argued by Dr Davis. The decision contravened the Act which protects the right to equal opportunity in many aspects of life in this community. However, the circumstances of the complaint have not convinced me that an award of aggravated damages against the first respondent has been made out.
- Dr Davis no longer seeks exemplary damages, so no consideration has been given to that remedy. Dr Davis no longer seeks an apology from persons who he had claimed were responsible for the contravention of the Act by the first respondent. Again, no consideration has been given to that remedy.
- There is one remaining remedy that Dr Davis is seeking. He asks for an order directing the first respondent to provide training to executive level officers in relation to the Act and its application to the recruitment and selection process. He submitted that there is utility in such an order to the effect that the respondents engage in anti-discrimination education programs. On the findings made by the Tribunal that Mr Stamp in conjunction with Dr Alexander made the decision to cease the recruitment process and not to employ Dr Davis, there is no basis to make such a direction. Mr Stamp left the employ of Metro North Hospital and Health Service over four years ago and does not live in Australia. Dr Alexander is no longer the Chairman of the Health Service and appears to have no ongoing role with recruitment and selection of staff for that Health Service. The complaint against Kerrie Mahon and Dr O'Sullivan was dismissed and no findings made of any contravention of the Act by them.
- I can see no utility in directing that the executive level officers of the Health Service undergo education in anti-discrimination matters, as they presumably already know the law, as does everyone in the community. To single that level of officers out for education is not warranted on the facts available to the Tribunal.
- The Tribunal has received submissions on costs from the parties but due to the outcome of the complaint, it is appropriate to provide the parties with an opportunity to address the Tribunal on costs. The Registry will make arrangements for a date to be set in the near future when the parties can make oral submissions on costs.
 Anti-Discrimination Act 1991 (Qld) s 8(a)–(b) (‘Anti-Discrimination Act’).
  1 Qd R 289.
 Sharma v Legal Aid (Qld) (2002) EOC 93-231.
 See, eg, Glasgow City Council v Zafar  2 All ER 953; Department of Health v Arumugam  VR 319.
 Richardson v Oracle Corp (Australia) Pty Ltd (2014) 223 FCR 334.
 (2014) 223 FCR 334.
 See the comprehensive analysis of Richardson in Green v State of Queensland, Brooker and Keating  QCAT 8.
 Green v State of Queensland, Brooker and Keating  QCAT 8 .
 Ibid .
  QCAT 505.
  QCAT 26.
 Using the inflation calculator of the Reserve Bank of Australia.
  QCAT 26.
  QCAT 8.
  QCAT 505.
  QCAT 26.
 (2014) 223 FCR 334.
  1 Qd R 89.
 Ibid .
 See, eg, Green v State of Queensland, Brooker and Keating  QCAT 8; STU v JKL (Qld) Pty Ltd & Ors  QCAT 505.
  1 Qd R 89.
 Based on an annual salary of $182,611.58 (daily rate $499.96), in FY 2014/2015 - 273 days from 01.10.14 to 30.06.15 at daily rate $136,489.08, FY 2015/16 $187,176.87, FY2016/17 $191,856.29, FY2017/18 $196,652.69, FY 2108/19 annual salary $201,569.00, (daily rate $551.86) for 215 days to 31 January 2019 $118, 649.90).
 Daily rate from 01.02.19 to 30.06.19 is $551.86 by 150 days is $82,779; FY2019/2020 is $206,608.22; FY 2020/2021 is $211,773.42; FY 2021/2022 is $217,067.75; daily rate from 01.07.22 to 30.09.22 is $609.15 by 92 days is $56,041.80.
 $47,610.26 being 9.5% of $501,160.64 to 30.06.21; $21,706.77 being 10% of $217,067.75 in FY 2021/2011; $2,101.56 being 10.5% of $56,041.80 for 01.07.22 to 30.09.22.
 Uren v John Fairfax Pty Ltd (1996) 117 CLR 118, 149–151 (Windeyer J).
 Cassell & Co Ltd v Broome  AC 1027; Rookes v Barnard  AC 1129.
 (1992) 90 IR 9. 31 Ibid –.
 Ibid –.
- Published Case Name:
Christopher Karl Davis v Metro North Hospital and Health Service, Kerrie Mahon & Donna O'Sullivan
- Shortened Case Name:
Christopher Karl Davis v Metro North Hospital and Health Service, Kerrie Mahon & Donna O'Sullivan
 QCAT 18
31 Jan 2019