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Marsden v State of Queensland[2019] QCAT 183

Marsden v State of Queensland[2019] QCAT 183

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Marsden v State of Queensland & Ors [2019] QCAT 183

PARTIES:

KYLIE MARSDEN

(applicant)

v

STATE OF Queensland

JO SOOTHILL

STEVE WILDING

(respondents)

APPLICATION NO/S:

ADL082-17

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

10 July 2019

HEARING DATES:

9 April 2019; 10 April 2019; 11 April 2019

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDER:

The complaint by Kylie Marsden is dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where teacher has impairments – whether treated less favourably on the basis of impairment – whether exemption applies

Anti-Discrimination Act 1991 (Qld), s 10, s 108

Thorne v Toowoomba Regional Council & Tytherleigh [2016] QCAT 212

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondents:

C Hartigan instructed by Crown Law

REASONS FOR DECISION

Introduction

  1. [1]
    Ms Marsden is a high school teacher. She alleges unlawful discrimination under the Anti-Discrimination Act 1991 (Qld) (‘Anti-Discrimination Act’).
  2. [2]
    In particular, Ms Marsden alleges discrimination on the basis of impairments. She says she was discriminated against by her employer, which is the State of Queensland through the Department of Education, as well as by Ms Soothill who is the Principal of the school at which she teaches, and by Mr Wilding, a Deputy Principal at the school.
  3. [3]
    The impairments mainly relate to conditions of diabetes and a broken patella (knee cap), but there is also reference to some ongoing effects of earlier back injuries. It is undisputed that Ms Marsden has been diabetic since childhood, and that she broke her patella in a fall at school on 5 February 2016. She was off work for some months as a result of that injury.
  4. [4]
    For reasons that will be explained under a later heading, the relevant period in this proceeding for any unlawful discrimination is the period of 12 months ending on
    10 October 2016. 
  5. [5]
    There are two main aspects to Ms Marsden’s complaint. One relates to the school not assigning her any Home Economics classes, even though she is qualified to teach Home Economics and wants to teach it. Ms Marsden submits that there is an ‘impairment component’ to this aspect: the school, she says, excluded her from teaching Home Economics because it claimed that for health reasons she could not wear the closed-in shoes required in the kitchen. Ms Marsden also argues that the school failed to take her diabetes into account in its subject allocation decisions and some other actions. The other main aspect relates to how Ms Marsden’s graduated return to work, after the patella injury, was handled by the school.

The complaint and the Tribunal proceeding

  1. [6]
    The complaints process under the Anti-Discrimination Act at the relevant time first involved a complaint to the Anti-Discrimination Commission Queensland, with the possibility of later referral of the complaint by the Commission to the Tribunal.
  2. [7]
    Ms Marsden lodged her complaint with the Commission on 10 October 2016. The complaint covered events over several years, and so the Commission had to consider the effect of section 138 of the Anti-Discrimination Act. That section has the effect of confining complaints to the previous 12 months, subject to a discretion on the part of the Commissioner to consider earlier conduct. On 2 March 2017, a delegate of the Commissioner decided not to exercise the discretion in Ms Marsden’s case. This confined the complaint to events within the 12-month period ending on 10 October 2016.
  3. [8]
    On 10 October 2017, the Commissioner referred the complaint to the Tribunal.
  4. [9]
    After compulsory conferences and other interlocutory steps, the matter proceeded to hearing over three days in April 2019. In the course of the hearing, Ms Marsden made an oral application to be allowed to amend her complaint under section 178 of the Anti-Discrimination Act to include alleged discrimination after 10 October 2016. I refused to allow that amendment.
  5. [10]
    At the end of the three-day hearing, there was no time left for the parties to make oral closing submissions, so I made directions for the filing of written submissions. The following were filed:
    1. (a)
      closing submissions by Ms Marsden (50 pages) – I will refer to these as
      Ms Marsden’s initial closing submissions;
    2. (b)
      closing submissions by Ms Hartigan for the respondents (24 pages); and
    3. (c)
      closing submissions in reply by Ms Marsden (106 pages) – I will refer to these as Ms Marsden’s final closing submissions.

Background

  1. [11]
    It is undisputed that Ms Marsden is university-trained in the teaching of Home Economics and Health and Physical Education, and that for many years Home Economics formed part of her teaching load. However, she has not taught Home Economics for several years. According to Ms Marsden’s complaint, the previous Principal, Mrs Elena Itsikson, did not allocate her any Home Economics classes after she (Ms Marsden) resumed work in April 2011 after a period of injury leave. Ms Marsden says, and I accept, that she wanted to keep a Home Economics teaching load, and that she made this known to the school authorities year after year, to no avail. She was given on-the-job training in other subject areas including English and Humanities. (Humanities is sometimes referred to as Social Science in the material). Ms Marsden’s position is that she would feel much more comfortable teaching Home Economics than these other subjects, particularly Humanities. She feels that her strengths lie in the more practical and familiar area of Home Economics.
  2. [12]
    Ms Soothill became Principal in October 2015. Mr Wilding has been a Deputy Principal at the school for many years, and he figures in the complaint because he was the assigned return to work coordinator for Ms Marsden following her patella injury.

It is undisputed that from some time prior to 2016, senior Home Economics had been replaced with Hospitality subjects, and that as from 2015 at least, Ms Marsden would have to update her trade certificates before she could teach Hospitality. Home Economics is still offered in the lower grades, and there is no dispute that Ms Marsden remains qualified to teach that subject.

The nature of unlawful discrimination under the Anti-Discrimination Act

  1. [13]
    Relevantly, the Anti-Discrimination Act prohibits discrimination[1] ‘on the basis of’[2] particular attributes, including impairment,[3] in the area of work.[4] However, a number of exemptions can apply.[5]
  2. [14]
    ‘Impairment’ is quite broadly defined,[6] and there is no dispute that it would cover losses of bodily function associated with diabetes, a patella injury or a back injury. Discrimination on the basis of an attribute includes discrimination on the basis of characteristics and attributes associated in various ways with the attribute.[7]
  3. [15]
    The area of work is also broadly captured.[8] Discrimination on the basis of impairment (or any of the other grounds) is prohibited, for example, in denying or limiting access to opportunities for promotion or other benefit, or in treating a worker unfavourably in any way in connection with work.
  4. [16]
    Discrimination can be direct or indirect.[9]
  5. [17]
    Section 10 explains the meaning of direct discrimination:

10 Meaning of direct discrimination

  1. (1)
    Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

  1. [18]
    In the cases on direct discrimination, the other person contemplated in this provision is referred to as the comparator.[10]
  2. [19]
    Section 11 explains the meaning of indirect discrimination:

11 Meaning of indirect discrimination

  1. (1)
    Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
  1. (a)
    with which a person with an attribute does not or is not able to comply; and
  1. (b)
    with which a higher proportion of people without the attribute comply or are able to comply; and
  1. (c)
    that is not reasonable.

  1. [20]
    Prior to the hearing, the Tribunal had directed Ms Marsden to file a statement of contentions setting out certain details. In summary, the details related to the attribute in question, the comparator (real or hypothetical), whether the discrimination was direct or indirect, if direct, how Ms Marsden was treated less favourably, and if indirect, what the term in question was, why it was more difficult for people with the attribute to comply with that term, and why it was not reasonable. The directions were also quoted by Ms Hartigan in her closing submissions.
  2. [21]
    Ms Marsden has put her case as one of direct discrimination. She has not submitted that there was some relevant term imposed or proposed, as would be required for a case of indirect discrimination. Correspondingly, of course, the respondents have not endeavoured to meet Ms Marsden’s case with any evidence or submissions relevant to indirect discrimination. Accordingly, I do not propose to address the question of indirect discrimination further.
  3. [22]
    Ms Marsden’s statements and submissions are all very long. They cover a wide range of workplace grievances. Some of those grievances have no apparent connection with impairment. Ms Marsden recognised this near the end of her written complaint when she wrote: ‘I realise that some matters are outside your jurisdiction but everything has to be put in the one document’.[11] This makes it quite hard to produce a coherent summary of Ms Marsden’s arguments insofar as they may be relevant to an anti-discrimination claim.

The school not allocating Home Economics classes to Ms Marsden

The relevant facts and complaints

  1. [23]
    Ms Marsden complains that she was not allocated any Home Economics classes in 2016. Ms Marsden says that the school scheduled a Home Economics teacher, Mrs Sandra Watson, to teach full-time even though her preference was for part-time work.
  2. [24]
    It is common ground that Ms Marsden met with Ms Soothill in January 2016, before the start of classes, and expressed her dissatisfaction with once again not having been allocated Home Economics classes in the timetable. Ms Marsden also made similar representations at later points in the year, including with the assistance of union representatives.
  3. [25]
    Ms Marsden complains that there were further opportunities during 2016 to allocate Home Economics classes to her, but the school declined them. She was not allocated any of the Home Economics classes of Mrs Lyn Albin, who retired in April 2016, or of Mrs Watson who applied in mid-2016 for a transfer out of the school (though the transfer did not take effect until the start of the 2017 year). Ms Marsden complains that she did not receive an email which Ms Soothill says was sent to all staff advising of Mrs Albin’s retirement, and this impeded her ability to express interest in taking on Mrs Albin’s classes. Ms Marsden was on leave due to injury as at April 2016. Ms Marsden points out that the school authorities did not ring her to advise her of Mrs Albin’s retirement, even though they knew of her desire to teach Home Economics.
  4. [26]
    Ms Marsden also contends that in 2014, her teaching preferences displayed online within the Department had been changed to ‘Generalist’ without her consent, and so did not show Home Economics as a teaching preference in 2016. Ms Marsden says that this would have substantially impeded her recruitment prospects for Home Economics. It appears that Ms Marsden’s union made successful representations on her behalf to have Home Economics restored as a preferred teaching area in March 2016. Ms Judith Dunker, a human resources manager with the regional office of the Department, says that the change in 2014 would have been at the request of Ms Marsden or a union representative. I do not consider it necessary to resolve whether it was done with consent. While the change may have disadvantaged Ms Marsden, it is not suggested, nor it is apparent, that it was done (or maintained within the relevant part of the 12 month period in question) because of Ms Marsden’s impairment/s.
  5. [27]
    Ms Soothill’s primary explanation for not allocating Home Economics classes to Ms Marsden is that there were other teachers better suited on account of more recent teaching experience in Home Economics and/or qualifications to teach the related subject Hospitality. Ms Soothill says that another reason that she did not allocate Mrs Albin’s classes to Ms Marsden was for continuity for students: Mrs Albin retired with only two weeks’ notice, and another teacher, Mrs Leianne Fearnley, who was able to teach both Home Economics and Hospitality, was available to transfer in to the school and take over Mrs Albin’s classes. Ms Soothill says the transfer took effect in late April 2016. At the time Ms Marsden was on leave due to injury and it was unclear, Ms Soothill says, when she would be able to resume teaching.
  6. [28]
    Ms Marsden says that Mrs Albin was not teaching Hospitality when she retired, and she also says that Mrs Fearnley’s Hospitality qualifications are not superior to her own. Further, Ms Marsden notes, it is common ground that by 2016 the school had moved to engaging external providers to deliver Hospitality training to senior students.
  7. [29]
    On 13 May 2016, Ms Soothill said in an email to Mr Ben Vercoe, a union representative assisting Ms Marsden, that one of the reasons it was unlikely that Ms Marsden would progress toward teaching Home Economics was that she had ‘previously refused to undertake [professional development] to upskill as a Hospitality teacher’. Ms Marsden does not agree that she refused. She says she had taken steps to upskill but the school then blocked her. I will discuss that issue in more detail under a later heading.
  8. [30]
    Ms Marsden also complains about the school taking into account a podiatry report by Ms Helen Jell. That report was dated 15 April 2014. It described in some detail Ms Marsden’s footwear requirements on account of her diabetic condition, and recommended the wearing of a particular type of sandal. The report noted Ms Marsden’s inability to reach her feet. It included the comment:

A closed or lace-up shoe is inadvisable for Kylie, as it would be almost impossible for her to put on, as well as causing unnecessary and dangerous pressure in the toe and rearfoot areas.

  1. [31]
    It is uncontentious that closed shoes are mandatory in Home Economics kitchens for health and safety reasons.
  2. [32]
    Ms Soothill says that she took the report into account in considering class allocations in 2016, though she says it was not used to eliminate Ms Marsden from taking over Mrs Albin’s classes. Insofar as she acknowledges that the Jell report was taken into account otherwise, Ms Soothill maintains that it was not a ‘substantial or significant reason’[12] for denying Ms Marsden’s request to teach Home Economics. Ms Soothill says it was not substantial because she would have made the same decision even if they had been no such report.[13]
  3. [33]
    Ms Marsden disputes Ms Soothill’s characterisation of the closed shoes issue as insubstantial. She points to the email from Mr Vercoe about his phone conversations on 22 April 2016 with Ms Soothill and with Ms Dunker, the human resources manager whom Ms Soothill had consulted. There was discussion over whether Ms Marsden could teach Home Economics, and the closed shoes issue was one of the matters raised by Ms Soothill and Ms Dunker. According to the email, Ms Soothill:

… mentioned the medical documentation that meant you had to wear open toed footwear and that you are unable to wear safe shoes.

  1. [34]
    According to the email, Ms Dunker:

… communicated to me that you had health issues with your feet that did not allow you to wear closed in shoes, citing safety issues.

  1. [35]
    Ms Soothill and Ms Dunker do not dispute having made these comments, though Ms Soothill says she does not remember mentioning the podiatry report.
  2. [36]
    The podiatrist’s recommendation was mentioned by Ms Soothill in her email dated
    13 May 2016 to Mr Vercoe as one of the matters making it unlikely that Ms Marsden would progress toward teaching Home Economics.
  3. [37]
    Ms Marsden also contends that there were other staffing options available to the school. For example, it could have appointed an interim teacher for Mrs Albin’s Home Economics classes until Ms Marsden was back at work.
  4. [38]
    Ms Marsden also submits that Mrs Fearnley, who transferred in to replace Mrs Albin, is an old and good friend of Ms Soothill, and that Ms Soothill in helping to facilitate the transfer was favouring a friend.
  5. [39]
    Ms Soothill did not respond in her affidavit to the allegation of friendship and favour to Mrs Fearnley. The matter was not put to Ms Soothill in cross-examination, but this was explained quite reasonably by Ms Marsden in her final closing submissions on the basis that she had no reason to suppose that the allegation was contested. As the allegation is of impropriety, I would not be prepared to make findings against Ms Soothill without the allegation having been put squarely to her for comment in cross-examination. The matter is not critical to establishing Ms Marsden’s case. On the contrary, a finding that Ms Soothill had acted in that manner would weaken Ms Marsden’s case because, to the extent it was accepted that Mrs Fearnley was selected at the expense of Ms Marsden, it would confirm that unfavourable treatment of Ms Marsden occurred for a reason unconnected with impairment discrimination. Nonetheless, it is noteworthy that Ms Marsden herself has put forward this explanation for Mrs Fearnley’s appointment.
  6. [40]
    In a similar vein, it is also noteworthy that Ms Marsden has submitted that the ‘main reason’ she was not allocated Home Economics classes at the start of 2016 was that there were four Home Economics teachers at the school and the school required only three.[14] Again, the connection with impairments is not apparent.
  7. [41]
    It is undisputed that in their January 2016 meeting, Ms Marsden told Ms Soothill that she was able to wear closed shoes in the kitchens. Ms Soothill says she told Ms Marsden that if Ms Marsden obtained a health professional report to that effect, she would consider it. Ms Marsden disputes this. However, it is undisputed that Ms Marsden did provide a fresh podiatrist’s report to the school but only in late November 2016, when she provided a report dated 22 September 2016 by Mr Alfonso Que. That report reiterated the need for good footwear. It recommended closed shoes in ‘the work zone such as kitchen’, and noted the option for Ms Marsden to wear ‘other sensible [shoes] outside of working area’. It can be seen that Ms Jell’s warning against the wearing of closed shoes was not repeated in the Que report.
  8. [42]
    Ms Marsden also highlights the fact that she was permitted by the school to teach a show cooking class during sports and recreation time on Wednesday afternoons. This was a class that students interested in competing in cooking competitions could take. Show cooking was taught in a Home Economics kitchen and therefore required the wearing of closed shoes. Ms Marsden submits that this demonstrates that she was perfectly capable of wearing closed shoes in the kitchens, and then changing into open shoes at other times. Ms Marsden also points out that theory classes in Home Economics are not conducted in the kitchens.
  9. [43]
    Ms Soothill’s explanation for permitting Ms Marsden to continue with the show cooking classes was that it was done to appease Ms Marsden who was not happy with her class allocation. Further, according to Ms Soothill, any work health and safety issues would be minimised because the activity was taught with another teacher and the class size was small; Ms Marsden had presumably worn closed shoes for the activity in 2015; Ms Marsden had said that she could wear closed shoes in the kitchen; and Ms Soothill had asked for an updated podiatrist’s report.
  10. [44]
    Ms Marsden disputes that show cooking was discussed at the January 2016 meeting. She also disputes that the class was co-taught. As mentioned above, Ms Marsden also disputes that Ms Soothill asked for an updated podiatrist’s report.
  11. [45]
    Ms Marsden has urged me to prefer her evidence to that of Ms Soothill. Ms Marsden submits that Ms Soothill gave unsatisfactory evidence in various respects. For example Ms Marsden submits that in oral evidence Ms Soothill said that she did not know that Ms Marsden had taught show cooking in 2015, but had indicated otherwise in her affidavit. However, I consider that any such inconsistency would be the result of confusion about the questioning or some lack of clarity about when Ms Soothill gained that knowledge, rather than anything more sinister. I take the same view of Ms Marsden’s submission that Ms Soothill initially denied in oral evidence that she had ever seen certain health reports. Ms Soothill did impress me as a straightforward and apparently honest witness who was doing her best to answer questions in cross-examination that were sometimes less than clear. However, I do consider that Ms Soothill’s grasp of certain details may be questionable, bearing in mind that she was new to the school at the time and would have been trying to come to grips with a very demanding and multi-faceted role.
  12. [46]
    Ms Marsden also did not strike me as dishonest, but it is apparent that she feels very strongly that she has been repeatedly treated as ‘second class citizen’[15] within the school. She is inevitably much more emotionally invested in her fate than school administrators. While I accept that she has striven to remain calm, I also consider it likely that her emotional investment has at times distorted her comprehension or recollection of events.
  13. [47]
    To take an example, Ms Marsden says that in a 2014 meeting, Ms Dunker told her she would need to work 24 hours per day on school work for 12 months to master her new teaching areas. Ms Dunker says that if she made any remark along those lines it would have been to the effect that no teacher should be expected to put in such hours. I consider it much more likely that Ms Dunker’s account is accurate. Similarly, Ms Marsden submits that Ms Soothill was being ‘deceitful’[16] during the January 2016 meeting in showing her a computer screen to indicate that she was an English and Social Science teacher, rather than a Home Economics teacher. However, it is not apparent how this was deceitful when it seems to be common ground that the screen would have shown recent teaching experience as distinct from areas of qualification or preference.
  14. [48]
    Overall, then, I regard Ms Soothill’s account of events as generally reliable. Ms Soothill’s handwritten notes of the January 2016 meeting do not mention the podiatrist’s report or an invitation to supply an updated one, but the notes are very cursory, and I accept Ms Soothill’s evidence that she did extend that invitation.
  15. [49]
    As I have mentioned, Ms Marsden submits that the school blocked her from upgrading her Hospitality qualifications. However, it is relevant to observe that Ms Marsden has not suggested that Ms Soothill’s account of preferring the experience and qualifications of other teachers in the areas of Home Economics and Hospitality is merely some sort of smokescreen to hide a true basis, being impairment discrimination, for preferring other teachers.
  16. [50]
    As I regard Ms Soothill as a credible witness, I do not consider her account of the other considerations to be a smokescreen. Accordingly, I accept that a reason for Ms Soothill preferring other teachers to teach Home Economics classes was that she perceived them as better suited in terms of experience and qualifications. Whether Ms Soothill’s perceptions in that regard were flawed, as Ms Marsden submits, is beside the point. Similarly, if Ms Soothill placed undue weight on Hospitality qualifications, having regard to the engagement of external providers for senior Hospitality, that is of no significance for present purposes. I therefore consider that much of what Ms Marsden complains of, in relation to missing out on Home Economics classes, has simply got no connection whatever with impairment discrimination. That is not to rule on whether Ms Marsden may have grounds for complaint in other arenas.
  17. [51]
    However, I do consider that there are two elements where there is connection with impairment/s and so the potential for impairment discrimination falls to be considered.
  18. [52]
    The first relates to the Jell report. The second relates to the allegation that Ms Marsden missed out on Mrs Albin’s classes because she was on leave due to injury. I will discuss these individually.

The Jell report

  1. [53]
    As discussed earlier, the Jell report was the 2014 podiatry report which warned of the danger of Ms Marsden wearing closed shoes. It was on file. Ms Soothill acknowledges that she took the report into account at least at the time of the January 2016 meeting with Ms Marsden. 
  2. [54]
    Section 10(4) of the Anti-Discrimination Act is relevant here:
  1. (4)
    If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
  1. [55]
    As I have mentioned, Ms Soothill said in her affidavit that the Jell report was not a substantial factor in her decision not to allocate Home Economics classes to Ms Marsden. Similarly, in cross-examination, Ms Soothill said that an updated podiatrist report clearing Ms Marsden to wear closed shoes would have removed a barrier, but the closed shoes factor was not a significant reason for the decision.
  2. [56]
    While I accept Ms Soothill’s evidence that the same decision would have been made in the absence of the closed shoes factor, I do not believe it can be dismissed from consideration as an insubstantial or insignificant factor. Clearly, it was taken into account, along with the experience / qualifications factor. The fact that both Ms Soothill and Ms Dunker mentioned the closed shoes factor to Mr Vercoe in April 2016, and that Ms Soothill referred to Ms Jell’s recommendation in her email to Mr Vercoe in May 2016, indicates that it did have some significance.
  3. [57]
    The closed shoes factor may not have been the dominant factor. However, its nature was such that had it been the only factor, it may well have resulted in the same decision. I therefore accept Ms Marsden’s argument that both factors were substantial reasons for the preferring of other teachers over Ms Marsden. As was noted by the Tribunal in Thorne v Toowoomba Regional Council & Tytherleigh:[17]

The section does not require that the impairment be the sole or dominant reason for the treatment. Bearing its ordinary meaning, substantial is defined as being real or actual, solid, material or important.

  1. [58]
    Ms Marsden argues that the school’s reliance on the Jell report was a ‘ruse’[18] in light of the school’s willingness to allow her to teach show cooking. Also, the report merely said that the wearing of closed shoes was inadvisable; it did not forbid it. Further, Ms Marsden submits, the report was provided by her, in 2014, for another purpose – to indicate the type of shoes she should wear in the ‘main school’[19] as distinct from the kitchens – and it should not have been relied on to prevent her from teaching Home Economics.
  2. [59]
    Ms Marsden has said that the show cooking classes were not co-taught, and I see no reason to doubt this. Ms Soothill may well be mistaken on this point. As a new Principal, it is unlikely that she would have personally observed the classes at the end of 2015, and there would have been little or no opportunity to observe Ms Marsden in the classes in 2016. Ms Marsden went on injury leave in early February 2016, and was on severely restricted duties when she returned to work some months later.
  3. [60]
    I accept Ms Soothill’s evidence that the show cooking class would have been a small group. Additionally, show cooking was not part of the formal curriculum, so it is likely to have been a less pressured activity than regular Home Economics classes. I accept Ms Soothill’s explanation for why the school was prepared to allow Ms Marsden to continue the show cooking. It was only one lesson per week, with a smaller group of students, and Ms Soothill was trying to appease Ms Marsden. Notwithstanding that Ms Soothill appears to have been mistaken about the presence of a co-teacher, I am satisfied that Ms Soothill had genuine grounds for permitting Ms Marsden to continue in the show cooking classes while not permitting her to teach Home Economics. 
  4. [61]
    Ms Marsden has correctly pointed out that the Jell report used the term ‘inadvisable’ rather than some more absolute term of prohibition. However, the reference in the same sentence to ‘unnecessary and dangerous pressure’ left no room for doubt that a very stern warning against the wearing of closed shoes was intended by Ms Jell.
  5. [62]
    I am not persuaded by Ms Marsden’s argument that because she had provided the Jell report for a particular purpose, there was something improper in the use of the report by the school to assess her suitability for teaching Home Economics. The report contained information that was highly relevant to her suitability to teach Home Economics. It would have been irresponsible of the school to ignore the Jell report.
  6. [63]
    Ms Soothill says that the Jell report was not used ‘as a factor to eliminate Ms Marsden from obtaining [Mrs Albin’s] Home Economics classes’.[20] It is not obvious why Ms Soothill says this: perhaps the other factors including wanting continuity for the students were predominant considerations. Given that Ms Soothill mentioned the closed shoes issues to Mr Vercoe in both April and May 2016, however, I am inclined to the view, and I find, that the closed shoes issue must have been one of the reasons that Ms Soothill did not consider Ms Marsden as someone to whom Mrs Albin’s Home Economics classes might be allocated.

The argument that Ms Marsden missed out on Mrs Albin’s classes because she was on leave due to injury

  1. [64]
    Ms Soothill says that Mrs Fearnley was a suitable and available person to replace Mrs Albin, and that she did not consider Ms Marsden for the role for a number of reasons. These included Ms Marsden’s lack of qualifications to teach senior Hospitality, but also that Ms Marsden at the time was certified as totally incapacitated for work until 16 May 2016. It was expected, Ms Soothill says, that Ms Marsden would return to work on a graduated program that may involve administrative duties initially, and so it was not known when she would be able to resume teaching duties. Ms Soothill says that she wanted to ensure continuity for the students, rather than assigning an interim teacher after Mrs Albin left.
  2. [65]
    Ms Marsden says that in May 2016 Ms Soothill told her that she had not been allocated Mrs Albin’s classes because she was on leave at the wrong time. Ms Marsden submits that this means that if she had not been on leave, she would have been allocated the classes.
  3. [66]
    Ms Soothill denies making that comment. Even if she did make it, in my view it does not follow that Ms Soothill would have allocated Mrs Albin’s classes to Ms Marsden. It will be apparent from the discussion above that there were other reasons Ms Soothill did not wish to allocate Home Economics classes to Ms Marsden.
  4. [67]
    Insofar as Ms Soothill’s decision not to consider Ms Marsden was based on Ms Marsden’s absence, I find that the decision was based on the fact of the absence, and its uncertain length, rather than on the reason for the absence namely the injury.

Was there unlawful discrimination under the Anti-Discrimination Act?

  1. [68]
    Ms Marsden has put her case as one of direct discrimination. Accordingly, under section 10 of the Anti-Discrimination Act, the question is whether, on the basis of an attribute, Ms Marsden has been treated by the respondent/s, or proposed to be treated, less favourably than another person without the attribute would be treated in circumstances that are the same or not materially different.
  2. [69]
    Ms Marsden’s submissions address various aspects of that overall question, though some reframing is required to analyse the arguments in the terms of section 10.

Closed shoes issue

  1. [70]
    Ms Marsden submits, in the context of Mrs Albin’s classes, but the same reasoning could be applied to Home Economics classes generally:[21]

… I was eliminated from obtaining Mrs Albin’s Home Economics classes because I could not wear safe shoes in the Home Economics kitchen. The comparator is if I could wear safe shoes in the Home Economics kitchen I would not have been eliminated from obtaining Mrs Albin’s Home Economics classes.

  1. [71]
    Of course, Ms Marsden herself does not assert that she could not wear safe (that is closed) shoes in the kitchen. Rather, she is referring to the reason advanced by the school.
  2. [72]
    In my view, the submission (broadened beyond just Mrs Albin’s Home Economics classes) might be more appropriately reframed to address the requirements of sections 10 of the Anti-Discrimination Act as follows:
    1. (a)
      the attribute would be Ms Marsden’s diabetes impairment including an attribute that Ms Marsden ‘had’ or was ‘presumed to have’[22] namely an inability to safely wear closed shoes;
    2. (b)
      the comparator would be a teacher who did not have that attribute i.e. a teacher with no restrictions in the type of shoes they could wear;
    3. (c)
      Ms Marsden was treated less favourably than the comparator would be treated in the same circumstances because she was excluded from consideration for taking Home Economics classes but the comparator would have been considered for those classes.
  1. [73]
    Re-packaging Ms Marsden’s argument in that sort of way, I am satisfied that Ms Marsden has demonstrated direct discrimination on the basis of impairment. However, I am equally satisfied that the exemption in section 108 applies:

A person may do an act that is reasonably necessary to protect the health and safety of people at a place of work.

  1. [74]
    Clearly, the requirement for closed shoes in a Home Economics kitchen is a measure that is reasonably necessary to protect the health and safety of people, including teachers. The kitchen is a place of work for a Home Economics teacher. The respondents have not cited section 108, but it is clearly their position that the barrier to Ms Marsden teaching Home Economics, on account of the Jell report, was the workplace health and safety issue.
  2. [75]
    During the period in question, the latest podiatry opinion available to the respondents – contained in the Jell report – was to the effect that it would be dangerous to Ms Marsden’s health for her to wear closed shoes. I have accepted that, despite the Jell report, Ms Soothill was prepared to allow Ms Marsden to conduct show cooking classes, which required closed shoes, but this was a concession made by Ms Soothill to appease Ms Marsden. It does not, in my view, detract from legitimate safety concerns that Ms Soothill had about additionally assigning Home Economics classes to Ms Marsden. As I have earlier indicated, there is a real distinction between small group classes offered in sport and recreation time, and Home Economics classes that form part of the formal curriculum.
  3. [76]
    Accordingly, I consider it was properly open to the respondents to prevent Ms Marsden from teaching Home Economics on the basis of the Jell report. Consequently, the discrimination was lawful.[23]

The argument that Ms Marsden missed out on Mrs Albin’s classes because she was on leave due to injury

  1. [77]
    Ms Marsden submits that ‘the comparator is if [I] was not on leave I would have been given Mrs Albin’s Home Economics classes to teach.’[24]
  1. [78]
    As I have mentioned above, I do not accept that Ms Marsden would have been given those classes had she not been on leave. Further, I consider that the motivating factor for Ms Soothill’s decision, insofar as it rested on Ms Marsden being on leave, was not the reason for the leave but the fact of the leave including its uncertain duration. I accept that Ms Soothill prioritised continuity, as far as possible, for the students. Ms Hartigan submits that there must be a clear causal connection between an impairment and alleged discrimination, and no doubt that is correct. However, section 10 of the Anti-Discrimination Act requires this to be determined through the particular framework set out in that section rather than on the basis of ordinary logic.
  2. [79]
    Approaching the matter in the framework of section 10, and treating the fact of Ms Marsden being on leave (because of her impairment of a broken patella) as a substantial reason for Ms Soothill’s decision not to consider Ms Marsden for the classes, I would analyse the matter as follows:
    1. (a)
      the relevant attribute is Ms Marsden’s patella injury;
    2. (b)
      the comparator is a teacher without that attribute; and
    3. (c)
      the circumstances that are the same or not materially different involve the comparator being on leave (for whatever reason) of uncertain duration.
  1. [80]
    I am satisfied that the comparator would have been treated in the same way as Ms Marsden was treated: another suitable candidate being available to promptly take over Mrs Albin’s classes, that available candidate would have been selected.
  2. [81]
    Accordingly, I find that the respondents did not engage in direct discrimination in this respect.

Other alleged discrimination relating to allocation of classes

  1. [82]
    Ms Marsden has expressed other instances of alleged unfavourable treatment in some of the language relevant to section 10 of the Anti-Discrimination Act, for example:
    1. (a)
      in relation to Ms Soothill regarding Ms Marsden as an English and Humanities teacher rather than a Home Economics teacher, that ‘the comparator is if I was a Home Economics teacher I could teach Home Economics subjects’;[25]
    2. (b)
      it was discriminatory that other teachers had diverse teaching areas that included Home Economics – for example Home Economics and Science – but she was not permitted to have Home Economics classes; and
    3. (c)
      that her non-receipt of Ms Soothill’s email that mentioned Mrs Albin’s retirement, supposedly sent to all staff, was evidence of discrimination against her.
  2. [83]
    However, I do not understand Ms Marsden to be arguing that such treatment had any connection to her impairments. In any event, I am not satisfied from an examination of the evidence overall that there is any reason to suppose that such treatment had such a connection. Accordingly, they are workplace grievances that cannot entail impairment discrimination under the Anti-Discrimination Act.

Allegation that respondents blocked Ms Marsden’s efforts to upgrade her Hospitality qualifications

  1. [84]
    It is undisputed that Ms Marsden needed to undertake some additional training in order to be equipped to teach senior Hospitality. It is also undisputed that she took steps towards this in 2015, with the involvement of the school, particularly Mr Jason Stewart who at the time was employed as an Industry Liaison Consultant. It is also undisputed that Ms Marsden was to gather evidence of work experience in the hospitality industry for the purposes of recognition of prior learning. Further, Ms Marsden completed a component of the additional training, to gain a certificate in the responsible service of alcohol, in October 2015.
  2. [85]
    Ms Marsden says she provided documents evidencing work experience, by handing them to a receptionist to be left for Mr Stewart prior to the spring holidays in 2015. Mr Stewart says that if they were handed in, they did not reach him.
  3. [86]
    Ms Marsden submits that in various ways, particularly after Ms Soothill arrived in October 2015, the school blocked her efforts to upgrade her Hospitality qualifications. Any upgrade would have required her to undertake extensive work experience outside school hours and, she says, this can be contrasted with the experience of numerous other teachers who have been allowed to upgrade their qualifications during school hours. Such conduct amounts, Ms Marsden submits, to discrimination in the area of work by ‘denying or limiting access to opportunities for … training or other benefit to a worker’.[26]
  4. [87]
    The problem for this aspect of Ms Marsden’s case is that she has not shown, or even attempted to show, any connection with impairment. Perhaps Ms Marsden was treated less favourably than other teachers in respect of retraining, though I form no concluded view on the matter. However, in the absence of some connection with an impairment (or some other attribute under section 7 of the Anti-Discrimination Act), there is simply no valid claim of unlawful discrimination under the Anti-Discrimination Act.

Alleged discrimination through causing stress

  1. [88]
    Ms Marsden says that for many years the Department has had on file reports, updated from time to time, about the perils of stress for her diabetes. For example, there were reports from her ophthalmic surgeon to the effect that stress for a diabetic person carries with it a long-term risk of blindness. Ms Marsden also obtained a letter from her general practitioner Dr Dona Ratnaweera in January 2016 explaining that Ms Marsden was very stressed because of her workload, and that this could lead to diabetic complications. Ms Marsden says she had intended to give this letter to Ms Soothill at their January 2016 meeting, though ultimately she did not.
  2. [89]
    Ms Marsden argues that being required to teach subjects in which she was not university-trained meant that she had to do a lot of extra preparation. This affected her sleep and increased her stress levels.
  3. [90]
    The effect of Ms Soothill’s evidence is that she was not aware of this particular issue during the period in question, though she was aware from an early point that Ms Marsden has diabetes. Further, Ms Soothill says that Ms Marsden’s workload was less than most other full-time teachers in 2016, in recognition of the fact that Ms Marsden was still coming to grips with the subjects in question.
  4. [91]
    Ms Marsden has suggested a comparator of a teacher who is university-trained to teach their allocated subjects,[27] but this is misconceived.
  5. [92]
    There is no evidence or even any hint that Ms Marsden was treated less favourably in terms of workload, or in terms of being reassigned into new areas of teaching, than teachers not suffering from diabetes. Accordingly, there is simply no basis on the evidence provided on which Ms Marsden can establish direct discrimination on the basis of impairment.

Alleged selective use of health reports

  1. [93]
    Ms Marsden argues that the school was selective in its use of health reports: for example having regard to the Jell report but not the ophthalmic surgeon’s report.
  2. [94]
    Even if this were accepted, Ms Marsden has not shown that a person without impairment/s would have been treated more favourably.

Meal breaks

  1. [95]
    Ms Marsden says that because of her diabetes, she needs to have six meals per day, and that therefore the school has normally ensured that she has a spare period before or after any break in which she is rostered for playground duty. However, Ms Marsden says that the school has on occasions failed to ensure this. Ms Marsden has not particularised dates: she says she is unable to because her diary went missing at school during her absence after the February 2016 fall. So I am not sure that any of the incidents occurred during the period of relevance to the complaint.
  2. [96]
    However, a more fundamental problem for Ms Marsden’s case is that she cannot demonstrate that she was treated less favourably than a non-diabetic teacher in this regard. Presumably there are no special arrangements at all for non-diabetic teachers for meal breaks before or after playground duty. Nor is there any reason to suppose that if there was such an arrangement, that the school would be more vigilant to ensure that the system never broke down for non-diabetic teachers.
  3. [97]
    Ms Marsden has not demonstrated direct discrimination in this regard. 

Return to work

  1. [98]
    Ms Marsden returned to work in mid-May 2016. She had limited mobility. She was on a graduated return to work program, with suitable duties plans devised and revised from time to time by occupational therapists engaged by WorkCover Queensland. There was input from Ms Marsden’s treating health professionals. Her hours of work were gradually increased. Initially, Ms Marsden was assigned administrative duties, and then teaching duties in second semester.
  2. [99]
    Ms Marsden complains about various aspects of how the school handled her return to work. These include failure to ensure that the allocated carpark (within a relatively short distance of her working area) was vacant; being required to share a desk with another teacher; then being reassigned to a ‘cupboard’; and being assigned a filthy and damaged computer. Ms Marsden also complains about delays by the school in obtaining a special chair. In her statement of contentions,[28] Ms Marsden alleged direct discrimination by Mr Wilding and other Deputy Principals in assigning her duties which required walking beyond the restrictions imposed by health professionals, though it is not clear whether this was within the period in question.
  3. [100]
    The respondents dispute various aspects of Ms Marsden’s account including the description ‘cupboard’, but contend that they adjusted the arrangements in response to Ms Marsden’s objections and requests. In relation to the shared desk requirement, Mr Wilding, the return to work coordinator, says that he thought there would be little overlap between Ms Marsden and the other teacher, as both were working only three days per week. Ms Marsden says, however, that there was overlap and impracticality.
  4. [101]
    Ms Marsden submits that she was discriminated against: ‘the comparator is I required my own desk … The comparator is every person is entitled to work in a habitable room’,[29] and so on.
  5. [102]
    Ms Marsden has not, however, demonstrated that she was treated less favourably than a person without impairments would have been treated. I will take the requirement to share a desk as an example. The other teacher was, presumably, not impaired. She was also required to share the desk. Ms Marsden was not treated less favourably than that teacher. As they were, apparently, the only teachers required to share a desk, it might be said that they were treated less favourably than other teachers, but this treatment had nothing to do with impairment. Quite probably the requirement for the teachers to share a desk was poorly thought out, but it was not a case of impairment discrimination.
  6. [103]
    Similarly, there is no apparent connection between the other matters of complaint and Ms Marsden’s impairment. It is not suggested, for instance, that the respondents were punishing Ms Marsden, whether intentionally or not, for having broken her patella, by relegating her to the so-called cupboard or by issuing her with a rundown computer. Ms Marsden’s case seems to involve an assumption that because she had impairments, and because she considers that she was treated poorly, she must have a case of impairment discrimination. If so, that is misconceived. A person can be treated poorly for any number of reasons. Ms Marsden would need to show that she was treated less favourably by the respondents than they would have treated a non-impaired person. She has not shown that.

Procedural matters

  1. [104]
    Ms Marsden has made some procedural arguments in her closing submissions. These include that I should strike out Ms Hartigan’s submissions because they are not signed, and that I should reject certain affidavits filed on behalf of the respondents because of the failure of witnesses to sign in certain places, and so on. I do not accept those arguments. The Tribunal may inform itself in any way it considers appropriate,[30] and it is not bound by rules of evidence or court procedures.[31] Technical deficiencies in the presentation of affidavits, and similar matters, are not of true significance.
  2. [105]
    Ms Marsden also argues that one of the witnesses for the respondent, who now works for the Department of Education but who previously worked for WorkCover Queensland, illegally accessed WorkCover information referred to in her affidavit.[32] That information is not, as it turns out, of any influence in my decision. Accordingly, I will not discuss the matter further, and Ms Marsden can pursue that complaint elsewhere if she wishes.
  3. [106]
    Of more moment is Ms Marsden’s submission that she was denied natural justice during the hearing in that she was not permitted to question witnesses for the respondents on events that occurred after the period of 12 months in question (ending on 10 October 2016) despite the fact that Ms Hartigan had been permitted to question witnesses for Ms Marsden on such events.
  4. [107]
    This would allude to the fact that in the earlier part of the hearing I did permit evidence to be given about a meeting at the school in November 2016. Initially this occurred when some witnesses for Ms Marsden were interposed to give evidence by phone, and I did not realise until later that the meeting in question fell outside the 12-month period. I did then permit some further evidence about the November 2016 meeting on the basis that it may shed light on earlier events. When it became clear to me that this notion was misconceived, I did not permit further evidence on the topic. While I appreciate that this might come across to Ms Marsden as unfair treatment, in my view it was essentially a matter of taking steps as the hearing progressed to confine the evidence to relevant topics.
  5. [108]
    Ms Marsden also points out that parts of the affidavit material for the respondents address events after 10 October 2016. I might add that so do parts of Ms Marsden’s material, including her closing submissions. It is not practical in a hearing, where spare time is scarce, to take the considerable time that would be involved in striking out irrelevant portions of affidavits. The more sensible approach is the one I have taken, which involves relying on only the relevant portions in reaching my decision.

Conclusion

  1. [109]
    Ms Marsden has failed to establish unlawful discrimination. Accordingly, her complaint must be dismissed.

Footnotes

[1]  Anti-Discrimination Act, s 6(2).

[2]  Ibid, s 7.

[3]  Ibid, s 7(h).

[4]  Ibid, s 15.

[5]  Ibid, s 6(2).

[6]  Ibid, Schedule.

[7]  Ibid, s 8.

[8]  Ibid, s 15.

[9]  Ibid, s 9.

[10]  See, for example, Thorne v Toowoomba Regional Council & Tytherleigh [2016] QCAT 212, [65].

[11]  Complaint lodged 10 October 2016, p 32.

[12]  Exhibit 6, [70].

[13]  Ibid, [28].

[14]  Ms Marsden’s initial closing submissions, p 3.

[15]  An expression frequently used by Ms Marsden in her complaint.

[16]  Ms Marsden’s initial closing submissions, p 3.

[17]  [2016] QCAT 212, [109].

[18]  Complaint lodged 10 October 2016, p 10.

[19]  Ms Marsden’s initial closing submissions, p 7.

[20]  Exhibit 6, [50].

[21]  Ms Marsden’s final closing submissions, p 95.

[22]  Anti-Discrimination Act, s 8.

[23]  Anti-Discrimination Act, s 103.

[24]  Ms Marsden’s final closing submissions, p 96.

[25]  Ms Marsden’s statement of contentions, [5].

[26]  Anti-Discrimination Act, s 15(1)(b).

[27]  Statement of contentions, [35].

[28]  At [60].

[29]  Ms Marsden’s final closing submissions, p 100.

[30]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c).

[31]  Ibid, s 28(3)(b).

[32]  Ms Marsden’s initial closing submissions, p 34.

Close

Editorial Notes

  • Published Case Name:

    Kylie Marsden v State of Queensland & Ors

  • Shortened Case Name:

    Marsden v State of Queensland

  • MNC:

    [2019] QCAT 183

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski

  • Date:

    10 Jul 2019

Appeal Status

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

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