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Vale v State of Queensland & Ors QCAT 290
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Vale v State of Queensland & Ors  QCAT 290
JOHN ANTHONY VALE
STATE OF QUEENSLAND
DEBBIE-ANN CATHERINE BROOME
19 September 2019
29 October 2018; 30 October 2018; 31 October 2018; 1 November 2018; 2 November 2018; 5 November 2018
Further written submissions filed on 7 January 2019 and 21 January 2019
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION – Direct discrimination, indirect discrimination and victimisation – applicant employed as residential care officer (‘RCO’) with the Department of Communities, Child Safety and Disability Services (‘the Department’) – applicant develops chronic kidney disease which requires him to undertake continuous ambulatory peritoneal dialysis (‘CAPD’) – where applicant performed CAPD during his ‘crib break’ – where applicant prohibited by the Department from performing CAPD while working as an RCO – where applicant redeployed to an administrative role – whether prohibiting applicant from performing CAPD during his crib break as an RCO constituted discrimination on the basis of an impairment within the meaning of ss 10 and 15 of the Anti-Discrimination Act 1991 (Qld) – whether term imposed with which a higher proportion of people without his impairment comply or are able to comply being a requirement which is not reasonable having regard to the circumstances of the case and with which applicant not able to comply – whether requirement that RCOs not perform CAPD during their crib break was a “term” within the meaning of s 11 – whether any such term was reasonable – whether genuine occupational requirements of position meant any discrimination was not unlawful – whether applicant could comply with genuine occupational requirements notwithstanding need to perform CAPD – whether applicant required ‘special services or facilities’ – whether backfill arrangement was a ‘special service’ – whether backfill arrangement imposed ‘unjustifiable hardship’ on the Department within the meaning of s 35 – whether circumstances of the impairment imposed ‘unjustifiable hardship’ on the Department within the meaning of s 36 – whether Department did an ‘act’ that was reasonably necessary to protect the health and safety of people at a place of work within the meaning of s 108 – whether applicant subject to victimisation by the delayed presentation of his 15 year service certificate
Anti-Discrimination Act 1991 (Qld), s 5, s 6, s 7, s 8, s 9, s 10, s 11, s 15, s 25, s 35, s 36, s 108, s 130, s 133, s 204, s 205, s 206, s 208, s 209
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
Catholic Education Office v Clarke  FCAFC 197
Chivers v State of Queensland  2 Qd R 561
Collier v Austin Health (2011) 36 VR 1
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1996) 70 FCR 76
Haines v Leves  8 NSWLR 442
Hurst and Devlin v Education Queensland  FCA 405
Kimberley Stallard v Alsum Aluminium Pty Ltd  QCAT 490
Lyons v State of Queensland  QCA 159
Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489
New South Wales v Amery (2006) 230 CLR 174
Nojin v Commonwealth of Australia (2011) 283 ALR 800
Purvis v New South Wales (2003) 217 CLR 92
Qantas Airways Ltd v Christie (1998) 193 CLR 280
State of Queensland v Mahommed  QSC 18
State of Victoria v Schou (No 2)  VSCA 71
Tafao v State of Queensland  QCAT 409
Thorne v Toowoomba Regional Council & Tytherleigh  QCAT 212
Waters v Public Transport Corporation (1991) 173 CLR 349
Woodforth v State of Queensland  QCA 100
JW Merrell, of counsel instructed by GR Cooper, Crown solicitor
REASONS FOR DECISION
- This matter concerns whether Mr Vale was discriminated against at work because of an impairment he developed while employed by the Department of Communities, Child Safety and Disability Services (‘the Department’) as a residential care officer (‘RCO’) working with intellectually disabled people. Mr Vale had chronic kidney disease at the relevant time which meant he had to undertake continuous ambulatory peritoneal dialysis (‘CAPD’) twice during 12-hour shifts and once during an 8-hour shift. At the relevant time, Mr Vale worked three 12 hour night shifts, three 12 hour day shifts and one 8 hour variable shift per fortnight.
- Mr Vale would conduct his CAPD during his 30 minute ‘crib break’. An RCO is entitled to two crib breaks in a 12 hour shift and one crib break in an 8 hour shift. CAPD took Mr Vale on average 20 minutes and, if the need arose, the process could be stopped within 30 seconds and resumed at a later time. The Department ultimately determined that Mr Vale could not continue as an RCO while he needed to undertake CAPD and Mr Vale was, as a result, redeployed to an administrative position.
- Mr Vale’s principal complaint is that the conduct by the Department in transferring him from the position of RCO to an administrative position constituted unlawful discrimination against him within the meaning of the Anti-Discrimination Act 1991 (Qld) (‘ADA’). Mr Vale also includes in his complaint other conduct which occurred in the lead up to the decision to transfer him and once he began working in the administrative role. Mr Vale argues that the Department both directly and indirectly discriminated against him. Mr Vale has also alleged against the first and fourth respondents that he was subject to victimisation.
- The Department deny that their conduct or that of its employees constituted unlawful discrimination but argues, in any event, assuming it did, that the conduct fell within one or more of the exemptions to the Act.
- Mr Vale commenced CAPD on 4 September 2015.
- At that time Mr Vale worked as an RCO at 12 Donald Court, Maryborough where he was required to provide support services to three intellectually disabled persons. Mr Vale had been an RCO for 16 years and had known these three persons for the whole of that time. I accept that he was, accordingly, very familiar with their needs and behaviours.
- Mr Vale’s role as an RCO was to provide support and quality care to the service users at 12 Donald Court in respect of all aspects of their daily lives. Those duties involved assisting service users with daily activities by providing them with their meals, assisting with personal care and preparing them for outside activities. Mr Vale agreed it was his responsibility to: clean the house; manage the service users’ financial affairs; attend to shopping and banking for the service users; and complete administrative tasks relating to the operation of the house. Mr Vale’s duties regarding personal care of service users included grooming, toileting, showering, bathing, and dressing.
- The physical requirements for the RCO role were those set out in a position description, namely:
- Drive a manual car or mini bus
- Have and maintain a general level of fitness
- Stand for long periods of time
- Sit for long periods of time
- Bend, kneel and crouch
- Perform repetitive movements of hands and arms
- Stay alert on night shifts
- Lift a range of weights using safe practices when performing manual tasks
- Push manual wheelchairs
- Physically and mentally react quickly in situations where clients require immediate attention due to being at risk of harm
- Supporting service users, as required, to develop skills in personal care (including personal hygiene and grooming), taking medication (as prescribed by their treating doctor), and assistance with safe mobility
- Encouraging and modelling positive and socially appropriate behaviour and providing support with development and implementation of plans, including Positive Behaviour Support Plans
- Effectively utilising behaviour support strategies to support those service users who exhibit challenging behaviour.
- Mr Vale agreed in cross examination that, having regard to the position description, he was also required to assist clients with intrusive medical procedures and to employ protective actions as required to maintain safety and to take action to manage unpredictable and disruptive service user behaviour. Mr Vale also agreed in cross-examination that service users could unintentionally harm other service users or an RCO by grabbing, hitting or pulling at them.
- Mr Vale’s dialysis procedure took approximately 20 minutes and had to be done twice during a day shift and once during a night shift. The parties provided an agreed statement of facts outlining Mr Vale’s dialysis procedure. The process involved taking the dual dialyse bag from the heater/storage bag, connecting the line from Mr Vale’s Velcro belt to the draining bag, draining for 6-8 minutes, clamping the line, hanging the fresh dialyse solution from the curtain rod in the office, opening the clamp, releasing fresh dialyse (5-6 minutes), removing the empty fill bag from the curtain rail and placing it in a shopping bag with the empty drain bag, and then placing the shopping bag in the car which was parked immediately outside the front door.
- Depending on the length of his shift, Mr Vale was entitled to one or two crib breaks during the day lasting 30 minutes in duration. Mr Vale would undertake the dialysis procedure while on his crib break in the office at 12 Donald Court. Mr Vale applied a procedure prior to dialysing whereby he would sit the service users down, either at the table to eat or in front of the TV. The office had clear glass walls which enabled Mr Vale to keep the service users in his ‘line of sight’ while undertaking CAPD.
- A crib break is described in the relevant Award Quick Reference Sheet as follows:
Meal times and rest pauses
Crib break for shifts up to 10 hours
Crib break for shifts exceeding 10 hours
- The words ‘continuity of work’ must be read, of course, in the context of all of the tasks involved in the job description. Those tasks did not require constant surveillance of the individual service users and would necessarily involve times during which Mr Vale’s attention was occupied doing things other than supervising the service users. Tasks of that nature would include administration of financial affairs, preparing meals and cleaning. Needless to say, there would also be times at which Mr Vale would need to look after his own personal needs, for example, toileting and eating. I would infer also that, during the crib break, there was some relaxation of requirements such that, while not interfering with the continuity of work, would permit Mr Vale, for example, to make necessary telephone calls. There was further evidence, for example, that other RCOs would have a cigarette outside the front door during the crib break.
- On 15 September 2015 Mr Vale advised the Department that he had been performing dialysis at work (and would continue to need to do so). The Department responded as follows:
- (a)The Department obtained a statement of work capabilities from Mr Vale’s, general practitioner, Dr Paul Cotton;
- (b)Employees of the Department identified what they categorised as ‘risks’ in Mr Vale performing dialysis at work;
- (c)In October 2015, a risk assessment was conducted of Mr Vale conducting dialysis at work which identified a number of moderate and high level risks to Mr Vale and the three service users;
- (d)After considering options to mitigate those risks and meeting with Mr Vale to discuss other options to eliminate risk, the Department conducted a trial between November 2015 and February 2016, which involved other RCO’s and Direct Service Team Leaders (‘DSTLs’) being engaged to cover for Mr Vale while he performed dialysis;
- (e)Following an analysis of that trial, the second respondent decided it was not reasonable for the back-filling to occur whilst Mr Vale undertook dialysis. Consequently, Mr Vale was presented with a number of options to consider which included the creation of an administrative position at the Maryborough Service Centre of the Department.
- Mr Vale accepted the administrative position (although he argues he had no choice) and commenced working in that role on 4 April 2016. Mr Vale received the wages he would have received had he still been working as an RCO until 17 June 2016.
- From 17 June 2016, Mr Vale was paid as an administrative officer (classification AO3.3) until about 26 November 2016. Mr Vale had a successful kidney transplant on 27 November 2016 and from about that date was paid his ordinary wages as an RCO. Mr Vale recommenced duties at 12 Donald Court as an RCO performing shift work on 2 March 2017.
- Mr Vale’s complaints are particularised in his amended contentions.
- At the hearing Mr Vale said that the alleged discrimination occurred from 11 November 2015 to 26 November 2016.
- Mr Vale has made eight complaints arising out of the respondents’ conduct during that time which he says constitute unlawful discrimination against him. The complaints are as follows:
- (a)The risk assessments conducted by the first respondent were erroneous and Mr Vale never had an opportunity to counter errors in relation to the assessments and ultimately was removed from his RCO role due to incorrect information provided in the assessments (complaint one).
- (b)The first respondent had no ability to redeploy Mr Vale from the operational stream (under which his RCO position was classified) to an administrative position in the administrative stream (under which Mr Vale’s administrative position was classified) and that the reasons for doing so were incorrectly said to be ‘medical’ when no doctor’s report was in existence stating he was not fit to work as an RCO (complaint two).
- (c)Once deployed to an administrative role, Mr Vale should have continued to receive the wages and shift penalties he would have received as an RCO (complaint three).
- (d)Mr Vale was directly discriminated against in that he was not treated in the same way as another RCO without his impairment and was not provided with reasonable adjustment by not permitting him to continue as a RCO and instead offering him an administrative position (complaint four).
- (e)The way he was treated in the administrative role, namely not receiving a plan of tasks, duties or training and, essentially being left to do meaningless jobs that he was forced to obtain from making his own enquiries around the office. Further, that his first review meeting took place four months after commencing in the role and that little changed after that meeting (complaint five).
- (f)That he was redeployed on the basis of incorrect information provided in two reports ‘Analysis for Back-filling for Medical Procedure – John’ and ‘Alternative Duties/Relocation Options – John Vale Report’ and the Regional Manager’s letter of 26 February 2016 (complaint six).
- (g)Mr Vale’s supervisors when employed in the administrative role revealed to other staff, without his consent, that he had a medical condition which was an infringement of his privacy (complaint seven).
- (h)Mr Vale was the subject of victimisation by the fourth respondent when he was not provided with his 15-year service certificate of recognition at the time it was made available to be provided to him (complaint eight).
- The first, second and third respondents deny they unlawfully discriminated against Mr Vale in that a person without his impairment but who was required to work as an RCO at 12 Donald Court for an entire shift placing the service users at risk, would have been treated the same way. In particular, by being subjected to a risk analysis, provided with options to eliminate the identified risks, including by being subject to a back-filling trial, and being employed in a position away from 12 Donald Court.
- In respect of the other complaints, the respondents submit they are misconceived because even if all were true, those acts and omissions were not on the basis of Mr Vale’s impairment.
- In relation to any claim of indirect discrimination on the basis a term was imposed by the Department that Mr Vale was not permitted to return to work as an RCO until he had a kidney transplant, no such term was imposed or, if it was imposed, it was reasonable in all the circumstances to eliminate risks to Mr Vale and the service users brought on by performing dialysis at work.
- If unlawful discrimination has occurred then the respondents contend that the following exemptions apply:
- (a)Section 25(1), in that it was a genuine occupational requirement that Mr Vale be able to actively and continuously support and supervise service users during the entire shift without restriction;
- (b)Section 35, in that permitting Mr Vale to perform dialysis on a shift would require back-fill support which would impose unjustifiable hardship on the Department including:
- Practical difficulties in sourcing and organising other employees to back-fill the applicant for short periods of time while dialysis was being performed; and
- The back-filling would have taken more senior staff away from the duties they were required to perform.
- (c)Section 36, in that the circumstances of Mr Vale’s impairment would impose unjustifiable hardship on the Department as Mr Vale’s employer;
- (d)Section 108, in that the respondents’ treatment of Mr Vale was reasonably necessary to protect the health and safety of people at place of work in that Mr Vale, as an RCO was required to:
- Physically react quickly in situations where service users required immediate attention due to risk of harm; and
- React quickly and use actions and avoidance strategies to maintain safety, particularly in the management of unpredictable and seriously disruptive service user behaviour, being duties Mr Vale would not be able to perform when performing dialysis at work.
- The first and fourth respondents deny they unlawfully victimised Mr Vale within the meaning of s 130 because all the fourth respondent did was to make an enquiry of her senior manager if the certificate should be provided while Mr Vale was on sick leave and his QCAT proceedings were on foot. Further, that there was no evidence that the fourth respondent stopped, hindered or delayed the provision to Mr Vale of his certificate.
- I turn now to consider, separately, whether there has been direct discrimination, indirect discrimination or victimisation with respect to Mr Vale.
- In Collier v Austin Health it was held in the context of a matter involving equivalent provisions of the Equal Opportunity Act 1995 (Vic):
Anti-discrimination legislation gives effect to human rights principles which are of fundamental importance to individuals, society and democracy. In the words of Baroness Hale in Ghaidan v Godin-Mendoza, “[d]emocracy is founded on the principle that each individual has an equal value”. That equality is indispensable to the rule of law which is the foundation of our constitutional and governmental arrangements. It is built on the bedrock value that everyone without exception has a unique human dignity which is their birthright.
Following the statement of those and related principles in Arts 2 and 7 of the Universal Declaration of Human Rights, protection from and against discrimination was specified as a general human right in Art 26 of the International Covenant on Civil and Political Rights. Various conventions went on to specify that protection as a particular human right in given contexts…
…the Equal Opportunity Act prohibits discrimination on the basis of specified attributes, including the attribute of impairment. Discrimination has insidious individual effects and harmful social consequences. As I have said previously, to treat someone to their detriment on the basis of an attribute, such as race, gender or disability, is to act on the basis of stereotypical assumptions about them and their behaviour. It is not to act rationally on the basis of their individual worth and merit, but to act arbitrarily on the basis of a negative stigma which is attached to the attribute. The individual is left with feelings of pain, distress, personal injury and damaged self-worth. Depending on its nature and the circumstances, the discrimination can have serious physical, social or economic consequences for the wellbeing of the individual and their families. Most of all, it assaults the dignity which is the essence of their humanity. The consequences go beyond the individual. Returning to Baroness Hale in Ghaidan v Godin-Mendoza, discrimination “is damaging to society as a whole”. The harmful social consequences consist, among other things, in the damage which discrimination does to social cohesion and the wellbeing of the community, the financial and other costs of having and resolving discrimination disputes and the reduced or lost contribution of the complainant in the area of endeavour concerned.
- Section 208 of the ADA provides that the tribunal is not bound by the rules of evidence and, relevantly, ‘must have regard to the reasons for the enactment of this Act as stated in the preamble’. Relevantly, the Preamble provides that ‘the Parliament considers 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 that ‘the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone’.
- Section 6 of the ADA provides that the objects of the Act are (inter alia) to ‘promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work…’. The principle that requires the provisions of an Act to be read in light of its statutory objects is ‘of particular significance in the case of legislation which protects or enforces human rights’.
- The ADA meets its objects by prohibiting discrimination on a ground in s 7, of a type in s 10 (direct discrimination) or s 11 (indirect discrimination), and in certain areas of activity, which include the work or work-related area.
- Section 15 of the ADA provides:
15 Discrimination in work area
- (1)A person must not discriminate—
- (a)in any variation of the terms of work; or
- (b)in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
- (c)in dismissing a worker; or
- (d)by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
- (e)in developing the scope or range of such a program; or
- (f)by treating a worker unfavourably in any way in connection with work.
- (2)In this section—
"dismissing" includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.
- Section 10 defines direct discrimination and provides:
10 Meaning of direct discrimination
- (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.
- Here, the parties agreed that the relevant attribute was ‘impairment’. Impairment is defined to include total or partial loss of a bodily function. I accept that Mr Vale’s chronic kidney disease resulted in, at least, a partial loss of a bodily function.
- Discrimination on the basis of an ‘attribute’ includes discrimination on the basis of a characteristic that a person with that attribute either generally has or that is often imputed to a person with that attribute (referred to as the ‘attribute extension’). The need to undergo dialysis is a characteristic that a person with chronic kidney disease generally possesses and was, therefore, part of the protected ‘attribute’.
- A person directly discriminates against another on the basis of an attribute if the person treats, or proposes to treat, the person with the attribute less favourably than another person without the attribute is, or would be, treated in circumstances that are the same or not materially different. It does not matter whether the discriminator considers the treatment is less favourable. The motive of the discriminator is irrelevant. If there is more than one reason why a person has treated someone with an attribute less favourably, that less favourable treatment will be on the basis of the attribute if the attribute is a substantial reason for the treatment. In determining whether there has been less favourable treatment in circumstances that are the same or not materially different, the fact the person may require special services or facilities is irrelevant.
- The words ‘on the basis of’ require there to be a causal link between the less favourable treatment and a person’s attribute. This is demonstrated by the examples in s 10. It is not enough to show first that a person had an attribute and then only that the person was treated less favourably. There needs to be demonstrated a causal connection between the attribute and the treatment. In other words, it will be necessary to establish that the reason, or at least a substantial reason, for the less favourable treatment was the attribute. However, this is not the same as requiring there to be an intention or motive to discriminate. It is well established that there can be direct discrimination within the meaning of s 10 without any intention to discriminate, provided that the protected attribute is causally relevant, in the sense that it is a substantial reason.
- The following issues must therefore be determined:
- (a)Was the complainant treated less favourably than a person without the attribute would have received in circumstances that are the same or not materially different?
- (b)What was the reason or reasons for the less favourable treatment?
- (c)If more than one reason, was a substantial reason for the treatment the complainant’s attribute?
- The words ‘less favourably’ are to be given their ordinary meaning. They have been held to permit wide scope to the tribunal in applying its judgment to the facts proved in each case. The words require a comparison to be made between the complainant and an actual or hypothetical ‘comparator’ in circumstances that are the same or not materially different.
The comparator for the purposes of s 10
- Formulating the appropriate comparator can be difficult. The difficulty lies in excluding from the comparator the attribute and associated characteristics while at the same time giving content to the phrase ‘in circumstances that are the same or not materially different’.
- The respondents submitted that the appropriate comparator was:
- (a)an RCO, who was well regarded by the second respondent and who was working at 12 Donald Court;
- (b)an RCO who was working at 12 Donald Court and who was performing day shifts between 7am and 7pm and night shifts between 7pm and 7am; and
- (c)an RCO who did not have the applicant’s impairment of chronic kidney disease and did not have the characteristic of having to conduct Peritoneal Dialysis twice during day shifts and once during night shifts; and
- (d)an RCO who:
- was partially restricted in their ability to immediately assist and respond to the service users in respect to any situation facing a service user at 12 Donald Court for 20 minutes; and
- who was absolutely restricted in their ability to immediately assist and respond to the service users at 12 Donald Court in an emergency, for at least 30 seconds, due to a self-administered procedure being conducted while at work on a shift when caring for service users.
- (e)the restricted abilities of the RCO, referred to in paragraph (d) hereof, were likely to be temporary and not permanent.
- Mr Vale argued that an appropriate comparator would be an RCO who was a diabetic and needed to self-inject insulin during a shift. There was a suggestion this was an actual comparator, however no evidence as to the identity of an actual person was provided. Mr Vale also refers in his statement to the following comparators:
As a comparison I could be disconnected and attending a Service User within 30 seconds, a shorter period of time than any other staff member who was in the toilet, outside hanging washing on the line or a person outside having a smoke (for up to 20 minutes), at least five metres away from the door. (emphasis added)
- Alternatively, Mr Vale argued that, even adopting the respondents’ hypothetical comparator, he had been treated ‘less favourably’.
- In my view, the appropriate comparator is a person without Mr Vale’s attribute of chronic kidney disease and need to undergo peritoneal dialysis.
- The more difficult issue is whether the ‘circumstances’ for the purposes of s 10 include, as the respondents submit, where a person is partially restricted in their ability to attend to service users for 20 minutes, and absolutely restricted for 30 seconds due to a self-administered medical procedure?
- In Purvis v New South Wales the High Court considered the issue in the context of an equivalent provision in the Disability Discrimination Act 1992 (Cth). However, there was no ‘attribute extension’ provision like s 8 of the ADA. In Purvis, a student with a mental illness which led to disturbed behaviour was excluded from school due to his violent behaviour. It was held that the appropriate comparison was with another student ‘without the disability’, which meant another student without disturbed behaviour resulting from a disorder, not another student who did not misbehave. In other words, relevant ‘circumstances’ for the purposes of the comparison would include violent conduct on the part of another student who is not manifesting disturbed behaviour resulting from a disorder. As Gleeson CJ said, if the comparison was with a student who did not have the disability but who also did not otherwise misbehave, the comparison required by the Act would be purely formal. He said:
If the person without the disability is simply a pupil who is never violent, then it is difficult to know what context is given to the requirement that the circumstances be the same.
- Gummow, Hayne and Heydon JJ said in respect of the issue:
[The appellant] sought to refer to a set of circumstances that were wholly hypothetical – circumstances in which no aspect of the disability intrudes. That is not what the Act requires.
In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given ….must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person…It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability.
- McHugh and Kirby JJ however in dissent said that the proper comparator was a student who did not misbehave. This was because the behaviour was related to the prohibited ground. If the case was one concerned with the ground of race or sex then the behaviour of the complainant could be considered. Thus it would be appropriate to consider the treatment of a man who behaves badly with that of a woman who behaves badly to see whether the man or woman, as the case may be, was treated less favourably on the ground of sex. They observed that provisions that extend discrimination to include characteristics have the purpose of ensuring anti-discrimination legislation is not evaded by using such characteristics as ‘proxies’ for discriminating on the basic grounds covered by the legislation.
- The issue is whether s 8 of the ADA is an example of the type of extension provisions referred to by McHugh and Kirby JJ, and whether the effect of s 8 is not only to prevent characteristics of an impairment forming part of the comparator, but also from forming any part of the circumstances or context in which the comparison takes place.
- In Lyons v State of Queensland, the Queensland Court of Appeal had to consider the formulation of an appropriate comparator and circumstances where a deaf person had been excluded from jury duty. There Holmes JA held:
There can be no doubt that the appropriate comparator is a person without the applicant’s attribute of deafness or need to communicate through Aslan. But to posit a comparator with no further qualification than a desire to perform jury service is meaningless; it is to disregard the circumstances in which the relevant treatment of the applicant occurred. Here the circumstances in which the Deputy Registrar made her decision were that she was required to apply a law which, at least in her view, precluded the presence of an outsider in the jury room. That was not a question of the applicant’s needing a special service: the Registrar did not exclude her because of her need for the assistance of an interpreter but because of the perceived impossibility of an interpreter, as a person extraneous to the jury, being present in the jury room. The Tribunal Member appropriately had regard to that consideration as part of the circumstances of the relevant treatment in formulating the comparator of a person with hearing seeking the assistance of another in the jury room.
- More recently in Woodforth v State of Queensland, it was held by McMurdo JA:
Section 10 of the AD Act requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be “in circumstances that are the same or not materially different” from those that constituted the context for the treatment of the impaired person. In that respect s 10 of the ADA is not different from s 5(1) of the DDA. But beyond that likeness, there are differences between the two statutes. The DDA contained no equivalent of s 8 of the ADA, the effect of which, in combination with s 10 of the ADA, is to proscribe discrimination on the basis of a “characteristic”. In the present case it proscribed discrimination on the basis of the applicant’s inability to communicate by speech. That proscription would be ineffective if the characteristic of a disability was also to be treated as a ‘circumstance’ in the comparison for the purposes of s 10. It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic.
…the Appeal Tribunal incorrectly likened this characteristic of the applicant’s impairment with the occurrences of violent behaviour that constituted the relevant circumstances in Purvis. They were occurrences which formed part of the factual context in which the student was treated. He was treated, by suspension and expulsion, in response to those occurrences. The required comparison was between the treatment of this student and the hypothetical treatment of another student. That hypothesis required the consideration of what would have been the treatment of another in response to occurrences of the same kind. The complication in Purvis, caused by the student’s behaviour also being an incident of his disability, did not exist in the present case. In the present case the relevant “treatment” was the response of police to a complaint of criminal conduct.
…The applicant’s case required a comparison between her treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic.
- Having acknowledged the difference in the statutes (namely the absence of an ‘attribute extension’ in the DDA) McMurdo JA said:
And the DDA contains no equivalent of s 8 of the ADA, by which the meaning of discrimination on the basis of an impairment is defined to include discrimination on the basis of a characteristic of that impairment. Nevertheless their Honours’ reasoning in that respect is relevant because of its explanation of the need to construe a statute from a consideration of the operation of the statute as a whole, and to avoid, if possible, a construction of a term (“disability” in that case and “impairment” in the present case) which would exclude “from consideration that attribute….which makes that person ‘different’ in the eyes of others”.
- The Tribunal in Tafao v State of Queensland purported to reconcile the Purvis and Woodforth decisions. That case concerned the treatment of a transgender woman prisoner in a male correctional facility who was referred to by male pronouns. There Member Fitzpatrick said:
Consistent with Woodforth I must identify any relevant characteristic of a protected attribute. It is also relevant to make a finding as to the occurrences which formed part of the factual context.
I conclude that if, as in Purvis and Lyons the impugned treatment was given in response to an occurrence which encompasses a characteristic of an attribute, that characteristic may form part of the common circumstances. I consider that the views of McMurdo JA in Woodforth in relation to a characteristic of an attribute, not properly forming part of the common circumstances, is limited to circumstances such as those occurring in Woodforth where the impugned treatment was not given in response to an occurrence which encompasses a characteristic of an attribute.
- I agree with that approach. The circumstances referred to in s 10 are all of the objective features which surround the actual or intended treatment of the impaired person by the person alleged to be the discriminator. These may include certain consequences of possessing a particular characteristic of an attribute if the impugned treatment occurred in response to an occurrence that resulted from a characteristic of an attribute. If this was not the case, the whole purpose of undertaking a comparison would be lost. Here, that means it is appropriate to take into account as part of the circumstances for the purposes of the comparison, that the comparator is partially restricted for 20 minutes and absolutely restricted for 30 seconds in attending to the needs of service users. I would also add that relevant circumstances would include that the restriction occurs during a crib break. These circumstances, so defined, are in my view, not materially different to Mr Vale’s circumstances at the relevant time.
- I do not accept that it is necessary to include the reason for the restriction being to undertake a medical procedure. This is because the restriction occurred during a crib break when RCOs were otherwise free to do as they wished provided it did not interfere with continuity of work. Further, in my view, the CAPD did not materially add to the risk to service users. Defining ‘circumstances that are the same or not materially different’ in terms only of the time restriction identified by the respondents is also, in my view more consistent with the objects of the Act and, in particular with ss 8 and 10. The self-administered medical procedure is a characteristic of the impairment and should not, therefore, form part of the ‘circumstances’ for the purposes of s 10. This would be to ignore s 8.
- I appreciate that the same criticism may be directed at defining ‘circumstances’ for the purposes of s 10 to include the time restriction which arises from the need to undergo the medical procedure. However, in my view, to draw that distinction is valid. If the medical procedure is eliminated then the question is whether the treatment would be the same if another RCO was similarly restricted/occupied (but not impaired and not doing dialysis). That is, in my view, is the correct question and one which is consistent with the objects of the ADA. To ask whether the treatment of another RCO would be the same if they were time restricted due to performing a medical procedure, is to effectively ask whether the Department would treat someone who was also impaired and needed to perform a medical procedure, albeit not the same procedure, the same way. This analysis or approach to the comparator exercise would, in my view, be meaningless and would undermine the objects of the ADA.
- I agree with the respondents that Mr Vale’s comparators, being RCOs who are using the toilet, hanging washing on the line or smoking outside are not appropriate comparators because they do not deal with sufficient specificity with the partial and absolute restrictions experienced by Mr Vale. Having said that, it is entirely feasible that RCOs occupied in any of those ways would satisfy the hypothetical comparator scenario, presuming they were occupied for the same time (namely 20 minutes). I am satisfied that for each example the response time would have been at least 30 seconds.
- My reasoning thus far is that the comparison to be undertaken pursuant to s 10 is between the treatment of Mr Vale and the treatment of:
- (a)a person without chronic kidney disease and without the need to undergo dialysis;
- (b)who is a RCO at 12 Donald Court;
- (c)who, during his or her crib break, is partially restricted from attending to service users for 20 minutes and absolutely restricted from attending to service users for 30 seconds.
- At the heart of these proceedings is whether it was unlawful discrimination to, in effect, transfer Mr Vale to an administrative position from his position as an RCO because of his need to undergo CAPD during his crib break. While it is true that Mr Vale ultimately accepted the transfer, I accept Mr Vale’s submission that, effectively, he had no other reasonable option. Related to this is the decision by Mr Smales to not implement the backfilling arrangement. Mr Vale submits that he was transferred because of his impairment in that it had been determined that he could not undertake CAPD at work during his shifts as an RCO. Mr Vale, in short, submits that he could when undertaking CAPD attend to a service user almost immediately, and in that respect was treated less favourably than other RCOs to whom the same expectations did not apply.
- Otherwise, Mr Vale makes a number of complaints relating to the way he was treated by the Department once he disclosed he was dialysing at work and as to the way he was treated in the administrative role. Mr Vale submits, in effect, that other RCOs who needed risk assessments, an analysis of special services or support arrangements, or who needed to be transferred to an administrative role would have been treated more favourably than him.
- The respondents submit that the hypothetical comparator would have been treated in the same way as Mr Vale, in particular that he or she would have:
- (a)been subject to a risk assessment;
- (b)been involved in meetings with management of the Department whereby various options would be put to the hypothetical comparator (as were put to Mr Vale) to eliminate the risks to the hypothetical comparator and to the service users;
- (c)been subject to the back-filling trial;
- (d)been subject to the same consideration about alternative duties as was put to Mr Vale; and
- (e)when the back-filling trial turned out not to be reasonable, been offered to perform administrative duties if and until the hypothetical comparator was able to continuously assist and supervise the service users at 12 Donald Court so as to eliminate any risk to service users.
- I turn now to consider, in respect of each complaint, whether there has been direct discrimination. In doing so, I will consider the issues outlined above, namely whether the treatment identified by Mr Vale was ‘less favourable’ and, if so, whether that was ‘on the basis of’ his impairment.
- I note at the outset that the principal complaint is, in my view, complaint four. The other complaints largely concern conduct incidental to that complaint and which, in my view, do not constitute unlawful discrimination.
The information upon which the two risk assessments relied was inaccurate in important respects and Mr Vale had no opportunity to provide any meaningful input into the reports or to discuss the outcomes. Mr Vale was not provided with a copy of the second risk assessment report notwithstanding it contained a list of items that Mr Vale was expected to action.
- I accept that the risk assessments and internal departmental correspondence overestimated the length of time of Mr Vale’s dialysis procedure and omitted that it took approximately 30 seconds to disconnect. I also find that Mr Vale was not afforded adequate opportunity to participate in the risk assessment process or to address any identified perceived risks raised by those assessments.
- I also find that Mr Vale’s risk assessments were not conducted as fairly or with as much impartiality as they might have been. The impression from the evidence was that there was no genuine attempt to assess risk but rather an attempt to invent as many as possible. Important information underlying the procedure was inaccurate and other important information, relating to the 30 second disconnect time, was totally absent. The ratings attributed to so-called risks were also inflated. Finally, there was no effort made to have Mr Vale address any of the identified risks. As Mr Vale says, although he was recorded as the person responsible for addressing certain risks, he was not provided with a copy of the second updated risk assessment or other similar assessments.
- Mr Vale raised a comparison with a risk assessment conducted while he was in the administrative role in relation to his seating arrangements, called an ergonomic assessment. That assessment was extensive, involved Mr Vale throughout the process and required him to read and ‘sign off’ on the assessment report created.
- I note however the evidence of Ms Blanch as to the process which was applied once a risk assessment had been conducted. Ms Blanch said, in effect, that a safety advisor would talk to the employee once the risk assessment had been conducted, not to adjust the risk assessment but to determine what steps the Department might be able to take to assist the employee. Ms Blanch gave no evidence that there was an obligation to give a draft risk assessment to the employee for comment or to settle the risk assessment with the employee.
- The respondents submit that even if I accept that the assessments were wrong or that Mr Vale was not given the opportunity to discuss them, there was no evidence that those acts or omissions occurred because of Mr Vale’s impairment.
- In my view the risk assessments conducted in relation to Mr Vale were more exacting than would have applied to other RCOs without Mr Vale’s impairment but who were the subject of a similar assessment. In the absence of any other evidence, I rely on Ms Cuskelly’s evidence when she could not explain the extreme ratings she had attributed to certain ‘risks’ identified by her, nor justify why some risks had been included at all. Furthermore, I find that the second updated risk assessment was not done with a view to correcting any errors in the first assessment but rather to ‘sure up’ the conclusions of the first and, ultimately, to provide support for the decision to offer Mr Vale alternative duties.
- I find this because the risk assessment process seemed to have as its purpose justifying the conduct of the Department rather than accurately assessing any real risk to service users. The risk assessments did not accurately represent the risks of conducting the dialysis procedure at work. Although Mr Vale had advised Ms Cuskelly of the time it took him to undertake dialysis, Ms Cuskelly had instead attached information she had obtained from the internet as to the time dialysis took. This information stated the time taken for the procedure was 30-40 minutes when in Mr Vales’ case it was 20 minutes. There was also no mention of the 30 seconds it took Mr Vale to disconnect from the procedure, this is despite the fact this critical information was disclosed by Mr Vale to the Department on 23 October 2015 and on 11 November 2015. Mr Vale’s suggestions that an onsite assessment take place were also ignored. Further, the second updated risk assessment of 22 February 2016 was not emailed to Mr Smales until 23 February 2016, the day after the decision was made by Mr Smales and communicated by Mr Robinson to Mr Vale that it was ‘not sustainable’ for the backfilling arrangement to continue. Finally, the second updated risk assessment was not provided to Mr Vale even though Mr Vale was identified as the person responsible for ‘actioning’ each ‘identified hazard’. This all suggests, as I have indicated earlier, that the decision was already made and not based on any real material risk to service users. Indeed, I had the distinct impression that the second risk assessment was done ‘after the event’ to support the already formed opinions of the Department.
- Having said that, I am not satisfied there is sufficient evidence to conclude that Mr Vale was treated less favourably than another RCO without Mr Vale’s impairment would have been, had he or she needed to undergo a risk assessment. Further, there is no evidence that the risk assessment process, even if it could be shown to be discriminatory, caused loss or damage to Mr Vale. Mr Smales, the person who ultimately made the decisions with respect to Mr Vale, albeit in consultation with others, gave evidence that he knew the true time taken by Mr Vale to undertake CAPD and of the 30 seconds disconnect time but that, in his opinion, 30 seconds was too long.
- This complaint is dismissed.
The Department redeployed him from the operational stream to an administrative stream which it did not have the ability to do. The Department incorrectly stated the reasons were of a medical nature when there was no medical evidence or doctor’s report stating that he was not fit to continue in the role of RCO.
- I accept that Mr Vale was transferred from the operational stream to the administrative stream but I make no finding as to whether this was within the power of the Department to do so. I agree that the reasons for doing so were said to be ‘medical’. While I agree that Mr Vale was not medically unfit, I understand the Department to be referring to his kidney disease and consequent need to undergo dialysis.
- I am unable to conclude that this was outside the power of the Department, although I note that the first respondent submits it had lawful authority to do what it did. I also cannot be satisfied on the evidence that the Department would not transfer an RCO from an operational stream to an administrative stream in the same or similar circumstances to Mr Vale’s.
- This complaint is dismissed.
When Mr Vale was transferred to the administrative role he was not paid his projected roster, namely wages and shift penalties, that he would have received had he been in the RCO.
- I accept that Mr Vale was not paid his projected roster as an RCO when working as an administrative officer from 17 June 2016 to 26 November 2016.
- Mr Vale submits that an employee who is transferred for disciplinary reasons is entitled to be paid their original salary under a policy titled ‘Alternative Duties – Administrative Arrangements supporting employees placed on alternative duties during investigation or discipline processes – Guidelines for AS & RS Managers’. Mr Vale submits that if that policy had been applied to him, he would have been entitled to be paid his projected roster, that is, the relevant shift penalties he was earning as an RCO, for the entire time he performed administrative duties.
- The first respondent submits that the policy did not, in its terms, apply to Mr Vale and that there was no obligation to pay his projected roster while Mr Vale was working as an administrative officer because he was not working RCO shifts.
- I find that Mr Vale was treated less favourably than another RCO would have been had he or she needed to be transferred to alternative duties. This is because an RCO who was transferred for disciplinary reasons would, under the policy, be entitled to their original salary, while Mr Vale was not. In my view, it is no answer to this to say that the policy did not apply to Mr Vale. The fact that the same conditions did not apply in Mr Vale’s circumstances is, in my view, less favourable treatment on the basis of his impairment.
- I note that Mr Smales gave evidence that he was never advised that the policy applied to Mr Vale’s circumstances and that he did not have responsibility for this aspect of the decisions made with respect to Mr Vale. I accept this to be the case. This does not mean, however, that the decision to pay Mr Vales at the AO.3 rate was not discriminatory when other employees transferred to alternative duties were entitled to receive their original salary.
- This complaint is allowed as against the first respondent.
Mr Vale was not treated in the same way as another RCO without his impairment and was not provided with reasonable adjustment to enable him to continue in the role of RCO.
- This is the broadest complaint. It is also the most substantive. In essence, Mr Vale submits that he was forced to transfer to an administrative role because:
- (a)he was not allowed to perform CAPD in his crib break; and
- (b)the respondents were not prepared to implement the back-filling arrangement to support him while he undertook CAPD in his crib break.
- I agree with Mr Vale, for the reasons which follow, that he was not treated in the same way as another RCO without his impairment would have been treated and that this was ‘less favourable’ treatment on the basis of his impairment within the meaning of s 10. I find, for the reasons which follow, that it was less favourable treatment to, in effect, direct that Mr Vale not perform CAPD in his crib break when he was just as responsive as another RCO who was otherwise occupied in their crib break. I also find that it was less favourable treatment to decide not to continue to backfill in circumstances where it completely eliminated any risks to service users and cost less than employing Mr Vale in a supernumerary administrative role.
- The RCO position does not involve full-time observation and supervision, a fact apparent from the job requirements set out above and the manner in which the requirements of the position have, over time, been performed. In other words, there was no requirement that an RCO monitor the activities of a service user 100% of the time. In this respect I accept the submissions of Mr Vale:
The evidence in this matter shows that the risk component of the care model adopted by the Dept for 12 Donald Court residence acknowledged that RCO’s [sic]:
- could not be in all places at once, so to speak, while on shift;
- were not expected to be responsive to or available to all Service Users at the same time at any one time;
- were not expected to accompany each Service User [SU] at all times during their waking or sleeping hours, nor follow them around;
- were expected to be alert and available to react quickly in the event of any adverse incident to a SU;
- in a number of periods on each of their shifts necessarily and legitimately would not be in the “line of sight” of their charges.
- I find that there was a greater expectation of Mr Vale in relation to the performance of his duties as an RCO than applied to other RCOs, in particular because the respondents applied to him more onerous requirements than they expected of others. I have given careful consideration to the nature of the position that Mr Vale occupied and in doing so, I find that the position could be fulfilled and performed notwithstanding that over a crib break a person might be occupied in such a manner as would render him or her unable to respond to a situation for 30 seconds. I base this finding on the fact that, during the crib break, it was acceptable for employees to be outside smoking a cigarette, hanging washing on the line, or be in a bathroom looking after their toileting needs. Furthermore, although it was said by the Department that Mr Vale was temporarily disabled from performing duties for 20 minutes, that submission does not take into account that he could almost immediately disengage from the procedure should the need arise.
- I do not accept that other RCOs would necessarily be in a better position than Mr Vale to respond to service users in their ‘crib break’. I accept the submissions of Mr Vale that 30 seconds is less time than it would take a RCO to respond who might be, for example, in the toilet, hanging washing on the line or outside smoking.
- It was submitted by the Department that during the dialysis procedure, Mr Vale was unable to walk around to employ protective measures in respect of those under his care. However, during other parts of the day given the job description, and certainly during the crib break, the attention of other RCOs would have been distracted to a similar extent for other reasons. Moreover, even outside the crib break, the employment did not involve constant supervision, and I infer it would not be uncommon for the employee to be some seconds away from being able to render assistance. I note in this respect that Mr Vale employed a practice of seating those under his care within his line of sight from the office during his dialysis which would permit him not only to watch them while they were there but also to notice if one or more of them left the room. An RCO outside the building, hanging washing on the line or smoking a cigarette by way of comparison, would not have the opportunity to observe the service users.
- I find that Mr Vale’s impairment and his need to dialyse during his crib break gives rise to no material increase in risk to service users to that which would otherwise exist. Mr Vale was certified medically fit and able to perform all the tasks of an RCO by his treating doctor, Dr Cotton. It is inevitable, whether a person in Mr Vale’s position has to undergo dialysis or not, that there will be periods when the service users will not be under observation, when they will be acting independently of the RCO, and where some risk exists concerning their conduct and possible consequences.
- Mr Vale referred, in the alternative, to particular examples of RCOs who worked at other residences and who, he alleged, were not subjected to the same expectations as he was. One RCO, for example, worked at the ‘Milton Street residence’ which consisted of two duplexes side by side separated by two open air carports. A single RCO was required during a shift from 7pm to 7am to ‘service’ both users in each unit. One service user was attached to an overnight Percutaneous Endoscopic Gastronomy (‘PEG’) feed while the other service user used a walker due to mobility issues and was at risk of having falls, for example, when attending the toilet at night. Mr Vale submitted that his circumstances, namely being able to respond within 30 seconds, was less of a concern for service users than the Milton street arrangement and yet Mr Vale’s arrangement was considered unacceptable. I agree that this also demonstrates less favourable treatment on the same basis, that higher expectations were placed on Mr Vale.
- Mr Vale also referred to another comparator, namely RCOs who work in residences where they are required to assist a service user with showering. Most service users require full assistance from the RCO to shower, get dried and dressed. This process takes approximately 15 minutes and for that time, for privacy, the bathroom door is closed. With the bathroom door closed, other service users are unattended and often out of hearing range. Again, Mr Vale submitted that his circumstance whereby service users are unattended for a period of 30 seconds and usually within sight of Mr Vale, poses less of a risk and yet his circumstances were deemed an unacceptable risk by the respondents.
- I find therefore that Mr Vale was treated less favourably in that more onerous requirements were placed on him in relation to his crib break than were placed on other RCOs during their crib break or, in the case of RCOs at other residences, even outside their crib break.
- I turn now to consider whether the treatment was ‘on the basis of’ the impairment.
- In resolving the issue of whether this treatment occurred ‘on the basis of’ Mr Vale’s impairment, the following submissions by the respondents are relevant:
There is no dispute that the [sic] following the risk assessment in October 2015, the subsequent actions taken by the First, Second and Third Respondents, of:
- (a)Directing the applicant to take special leave to determine the [sic] what the First Respondent would do in respect of the applicant following the risk assessment;
- (b)Conducting the back-filling trial; and
- (c)Offering to temporarily place the Applicant in an administrative role until he received a kidney transplant,
Were done because of the Applicant’s impairment and his characteristic of the requirement for him to conduct Peritoneal Dialysis.
- I find, for the reasons which follow, that the decision that Mr Vale could not undertake CAPD during his break, that back-filling was not going to continue and that he was to be offered an administrative role, were all decisions made on the basis of Mr Vale’s impairment.
- In determining the reasons for the relevant treatment, I am not bound by the ‘verbal formula’ which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the basis of a protected attribute then the ‘basis of’ the act of the discriminator was the protected attribute.
- If there is more than one reason for the less favourable treatment, the impairment or the need to undergo dialysis must have been a substantial reason for the treatment. It has been held in Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission that “based on” in the context of s 9 of the Racial Discrimination Act 1975 (Cth) encompasses a broad, not necessarily causative relationship.
- During the course of the hearing the respondents submitted, essentially, that they did not believe Mr Vale could perform the inherent requirements of the RCO position and that the health and safety of the service users and of Mr Vale was at risk. The letter of 26 February 2016 from Mr Smales to Mr Vale in which Mr Vale is offered the ‘option’ of taking up an administrative position sets out, in effect, that the reason for the decision is that it had been determined Mr Vale was:
…unable to fulfil the inherent requirements of RCO position, particularly in relation to:
- Physically reacting quickly in situations where clients require immediate attention due to being at risk of harm;
- Supporting service users, as required to develop skills in personal care (including personal hygiene and grooming), and assistance with safe mobility; and
- Employ protective actions as required. This could include reacting quickly and using actions or avoidance strategies to maintain safety. It could also include the management of unpredictable, seriously disruptive client behaviour.
As you are aware the clients at 12 Donald Court, Maryborough require constant care and attention and with you performing peritoneal dialysis as required and with potentially increasing frequency this places vulnerable clients at an unacceptable risk of harm.
- The respondents submit that the second respondent in cross-examination provided the reason for transferring Mr Vale to an administrative office and discontinuing the back-filling trial when he said, in effect, that the medical evidence proved that the applicant ‘was 100% fit for duties but not at 100% of the time’. The respondents argue that this demonstrates that the risk to Mr Vale and service users by performing CAPD in the workplace was a real risk and the only way to eliminate it was to offer Mr Vale an administrative role pending his kidney transplant.
- In my view, the evidence makes it clear that the basis for transferring Mr Vale to the administrative role was that he had an impairment and needed to undertake dialysis at work. The fact the respondents say that performing dialysis at work presented an unacceptable risk to service users does not alter the position that the reason for the decision was the need to undertake dialysis which is part of the protected attribute.
- In any event, I do not accept that the decision was made because of any perceived risk to service users flowing from undertaking dialysis at work during his crib break. I have already found that there was no material increase in risk to service users from Mr Vale undertaking CAPD during his crib break. That risk to service users was not the real reason for transferring Mr Vale to the administrative position, is also clear from the respondents’ position with respect to the backfilling arrangement. The backfilling arrangements, it was admitted, eliminated any risk to service users and was less costly than the supernumerary administrative position and yet, the decision was made not to continue it.
- Mr Vale cross-examined Mr Robinson as to the reasons why the Department did not proceed to back-fill his position for the time he was dialysing, given that it cost less than appointing him to a supernumerary administrative position. Mr Robinson admitted in the course of cross-examination that having the second staff member there during the back-fill trail ‘mitigated the risk. That was the point of the trial.’
- Mr Robinson then, in defending his decision to transfer Mr Vale to the more costly administrative position, said as follows:
Mr Robinson: Well, the cost of placing you into a supernumerary administration role was 60-odd K plus. It was close to the most expensive option we had.
Mr Vale: So why would you not continue to leave me in a residence and with support, various support?
Mr Robinson: It may have been more expensive, but it mitigated the risk to service users and to you, and that was our primary concern from day 1.
Mr Vale: So even though I’d be dialysing in a separate room with the person on for that period of time, that still would save the department a considerable amount of money?
Mr Robinson: We took the view the best way to mitigate the risk is remove the risk. In the end, yes, it cost us a lot more money.
Member: But, Mr Robinson, I thought you said earlier…that adding the second staff member mitigated the risk?
Mr Robinson: Yes.
Member: And I thought you …were implying entirely. So I think Mr Vale’s point is, well, if you were happy that mitigated the risk, then why would you go down the route of this supernumerary position that…was the most expensive option?
Mr Robinson: Because I wasn’t convinced that the other option was sustainable. We would have to continue to find staff who would accept a two-hour shift, or we would have to continue to take the STLs offline through the roll, and we’d have to continue to wear the impost upon the administrative staff of having to continually find staff to backfill that shift.
Member: ….you’ve just said then that the real reason was that it wasn’t sustainable because of the ongoing difficulties for staff in contacting other staff?
Mr Robinson: There was still some residual risk of having a second person there, but there was also the reputational risk to the department of having a staff member perform an invasive medical procedure upon themselves in the private home of our clients. That was also part of our consideration.
Member: So can you just explain your concern about that, the reputational risk?
Mr Robinson: Sure. The purpose of AS & RS, the service, and the RCOs like Mr Vale is to provide support to individuals with disability to lead good lives, provide personal care, assist them if required with appropriate medication, medical procedures where that’s appropriate to do so. To have a staff member entrusted with that responsibility performing their own medical procedure on themselves in a workplace that was also the private home of individuals does not pass the “Courier-Mail” test anywhere, anytime. If there was – if the department was to be exposed supporting a person caring for vulnerable individuals in a service such as this and says that there’s a staff member on shift who’s performing an invasive medical procedure, I think that would play very badly. And when we’re assessing risk, reputational risk of the department is one of the risks that has to be considered as well as the physical risk to Mr Vale and the physical risk to service users.
- This passage is revealing. It shows that the Department was not concerned about the risk to service users but with risk to itself. The Department was satisfied it had completely eliminated the risk to service users by adopting the back-fill arrangement and yet declined to proceed with backfilling. It could not be said, against this background, that the decision to transfer Mr Vale and not continue with back-filling was made on the basis of concerns for service users.
- This is where the anti-discrimination legislation steps in. It is not lawful to discriminate against Mr Vale because he needs to dialyse during his break at work when there is no added risk to service users in him doing that or, alternatively, where any risk can be eliminated by a back-fill arrangement which did not impose ‘unjustifiable hardship’ on the Department and was less costly than the supernumerary administrative position.
- I find that Mr Vale was treated less favourably in being transferred from the RCO position and the basis of this treatment was his impairment and the need to undergo dialysis. I also find that Mr Vale was treated less favourably in relation to the back-filling trial and the decision not to proceed with it.
- In the alternative, I find that Mr Vale’s impairment including the need to undertake dialysis was a substantial reason for the transfer.
- I find the first respondent and second respondent jointly and severally liable in respect of complaint four which constitutes a contravention of s 15(1)(f) of the ADA.
When Mr Vale was transferred to the administrative role he was not provided with a plan of tasks, duties or training. He was left to do meaningless jobs that he had to obtain from making his own enquiries around the office and his first review took place four months after he commenced in the office, after which nothing changed. He was also not invited to team meetings.
- The respondents deny these allegations for two reasons:
- (a)Mr Vale was properly managed and given relevant duties and training and was performance reviewed; and
- (b)If there was a lack of meaningful duties, training and performance review conducted of Mr Vale, that was not because of or on the basis of his impairment.
- While working in the administrative role at the Maryborough Service Centre, Mr Vale was overseen by Ms Burns. The respondents say that at this time his tasks included facilitating Q-build maintenance; collecting mail to service users; creating service user files; updating the hazard register; moving records to storage; completing household safety assessments and maintaining the workplace inspection register and assisting with filing. The respondents submit that Mr Vale was given one on one training on an “as needs” basis and give as an example the training he was given regarding Q-Build.
- In terms of review, the respondents submit that Mr Vale met with two staff members to discuss the tasks he had been undertaking and was given a blank Achievement and Capabilities Plan to complete. This is the same review process adopted when conducting reviews of RCOs.
- I accept that the administrative position was unfulfilling and that there was insufficient work for Mr Vale to do. I accept that Mr Vale felt the experience of looking for work from other staff members degrading. I also accept that he was not given a plan of work, meaningful duties and was excluded from team meetings. In this respect I accept Mr Vale’s evidence:
I had previously heard of people being put in a desk job and not given any work to do in the hope that they will get sick of doing nothing and resign. This administration role I was given felt the closest I had seen or experienced to this situation in my working life. It was degrading.
- I also accept Mr Vale’s evidence that he suffered a ‘reduction in his self-esteem and standing among his peers’ as a result of the lack of meaningful work.
- However, assuming an RCO needed to be transferred and was temporarily undertaking administrative duties in the same office, I am not satisfied that the work the RCO would have been given would have been any more meaningful or fulfilling than that experienced by Mr Vale.
- This complaint is dismissed.
The basis on which he was deployed to an administrative role was flawed, in that the information in two reports pertaining to him was inaccurate, namely the report titled “Analysis for Back-filling for medical procedure – John” and “Alternative Duties/Relocation Options – John Vale report”; and in a letter from the Regional Manager of 26 February 2016. These reports and letter, containing incorrect information about him, were relied upon to his detriment.
- Mr Vale submits that he was removed from his RCO position in reliance on an incorrect costing of the proposed backfilling arrangement. Mr Vale submits that the decision was made by Mr Smales at a meeting on 10 February 2016 at which it was documented Mr Smales had said, in effect, that he had to draw the line and it was unreasonable to ‘fork out’ $21,000 a year to backfill for Mr Vale.
- Mr Vale submits that the backfill trial indicated that the cost would be approximately $12,000 to $14,000 a year.
- The respondents submit that the data collected during the trial and the analysis of the trial was not in error. While it is true the figures ranged from a projected yearly cost of $21,472.36 to $12,220.20, this was because the figures would fluctuate given the focus of the trial.
- Mr Smales wrote to Mr Vale on 26 February 2016 advising him that it was unreasonable for him to continue to perform CAPD at Donald Court for a number of reasons, including: the process of continuing backfilling arrangements presents unreasonable ongoing impost on the service centre; and the additional workload implications for the administration and management team are as a result, not sustainable.
- Even if I assume that the information Mr Smales relied upon as to projected cost of backfilling was inaccurate, I am not satisfied that this occurred because of Mr Vale’s impairment. There is insufficient evidence for me to determine that another RCO who required support would have been supported in the backfilling arrangement despite the administrative difficulties raised by the respondents.
- This complaint is dismissed.
The supervisors of his administrative position revealed to other staff, without his consent, that he had a medical condition.
- This complaint arose from the time Mr Vale was working in the administrative role at the Maryborough Service Centre. There were two incidents: one on 5 May 2016 when his supervisor sent an email to some staff in the office advising that Mr Vale would be leaving early to attend a medical appointment; and the second on 21 June 2016 when the same supervisor sent an email to three other staff members advising that Mr Vale would be leaving the office that day to attend a blood test during his morning tea break.
- The respondent submits that there is no evidence this conduct was undertaken because of Mr Vale’s impairment. Further, that there is no evidence it was less favourable treatment compared to someone who did not have his impairment in circumstances that were the same or not materially different. The respondent submits that the supervisor would have taken the same steps had another staff member in the Centre been absent to advise other relevant staff as to why that person would not be at work.
- I accept that Mr Vale’s supervisors revealed to other staff that he had a medical condition. However I am not satisfied that this conduct was because of Mr Vale’s impairment. I accept that it was normal practice for the supervisor to let other staff know why someone might be absent. I do not find, therefore, that Mr Vale was treated less favourably than another RCO would have been in circumstances that were the same or not materially different.
- This complaint is dismissed.
Mr Vale was not provided with his 15 year certificate of service at the time it was made available to be provided to him.
- This complaint raises an allegation of victimisation within the meaning of s 130 of the ADA. I will deal with it below.
- Mr Vale has also argued that the circumstances of his case also gave rise to a case of indirect discrimination.
- Indirect discrimination is defined as follows:
11 Meaning of indirect discrimination
- (1)Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term –
- (a)with which a person with an attribute does not or is not able to comply; and
- (b)with which a higher proportion of people without the attribute comply or are able to comply, and
- (c)that is not reasonable.
- (2)Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example –
- (a)the consequences of failure to comply with the term; and
- (b)the cost of alternative terms; and
- (c)the financial circumstances of the person who imposes, or proposes to impose, the term.
- (3)It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
- (4)In this section – term includes condition, requirement or practice, whether or not written.
- It is apparent that pursuant to s 11, for indirect discrimination to have occurred, four elements must be satisfied:
- (a)the discriminator imposes or proposes to impose a term;
- (b)the term is one with which a person with an attribute does not or is not able to comply;
- (c)a higher proportion of persons without the attribute comply or are able to comply; and
- (d)the term was not reasonable.
- In Hurst and Devlin v Education Queensland, the court considered the meaning of ‘requirement or condition’ in the indirect discrimination provision in the Disability Discrimination Act 1992 (Cth). There it was held that the words ‘requirement or condition’ were to be construed broadly and beneficially and that the requirement or condition need not be explicit but may be implicit. This approach was applied to s 11 of the ADA in State of Queensland v Mahommed.
- In Catholic Education Office v Clarke in considering ‘reasonableness’ it was held:
The court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement or condition: Waters v Public Transport Corporation, at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC, at 88, per Beaumont J; State of Victoria v Schou  VSCA 71, at , per Phillips JA.
- Section 11 has been described as, in effect, a deeming provision, in the sense that if the elements of the section are satisfied, discrimination on the basis of a person’s impairment is taken to have occurred. The complainant must prove on the balance of probabilities that the respondent contravened the Act, subject to the requirements of sections 205 and 206.
- Mr Vale alleges that the respondent imposed a term that he not be permitted to return to work as an RCO until he had a kidney transplant.
- The respondents deny such a term was ever imposed and submit, in the event it was imposed and was a term with which a higher proportion of people without the attribute could comply, the term was reasonable. The respondents must prove, on the balance of probabilities, that the term complained of was reasonable.
- The respondents submit the term was reasonable for the following reasons:
- (a)Mr Vale was unable to perform the inherent requirements of an RCO position;
- (b)performing dialysis placed the service users at an unacceptable risk of harm;
- (c)it was unreasonable for Mr Vale to continue dialysis under the trial backfill arrangements due to the ‘unreasonable ongoing impost on the service centre’ and the additional workload implications for the administration and management team; and
- (d)the legislative and common law obligations the first respondent had to ensure the safety of the service users.
- The Tribunal is not bound by a complainant’s formulation of a term. As Callinan J held in State of New South Wales v Amery:
It is their duty to ascertain the actual position, including whether an (alleged) perpetrator has truly sought to impose, or permits indirectly, the imposition of a requirement or condition which is discriminatory, and not reasonable within the meaning of the Act.
- I find that the respondents imposed a term that an RCO could not perform continuous ambulatory peritoneal dialysis at work. I find that this term was imposed because it was implicit in correspondence to Mr Vale from the Department outlining his options. This correspondence made it clear that while Mr Vale needed to perform CAPD that an option of working as a RCO was not available to him.
- I find that Mr Vale was unable to comply with that term from the time he was diagnosed with end stage kidney disease to the time of his kidney transplant. I find that this term, as I have re-formulated it, is obviously a term with which a higher proportion of people without Mr Vale’s impairment would be able to comply.
- I am not satisfied that the term in the all the circumstances of this matter was reasonable.
- The proper approach to the question of ‘reasonableness’ is to judge the reasonableness of the requirement or condition, not the reasonableness of the decision to require the person to comply with it. The test of ‘reasonableness’ has been said to be an objective one which is less than necessity but more demanding than a test of convenience. The tribunal is required to weigh all relevant factors.
- Given my findings as to the nature of the role of a RCO and the nature of the CAPD procedure, in particular that a person can disconnect within 30 seconds, I do not consider the imposition of the term reasonable. In arriving at that finding I have taken into account any risks to service users and corresponding risk to the Department in allowing CAPD to be performed during an RCO’s crib break.
- For the reasons above, I find that Mr Vale was able to perform the inherent requirements of an RCO position and that the dialysis procedure that he performed did not place the service users at Donald Court at a materially greater risk of harm than they would otherwise be during a crib break. I have also taken into account the ‘cost of alternative terms’. In my view the alternative term could have been that backfilling occur for the time an RCO is undergoing CAPD. The cost of backfilling was, by the Department’s own admission, less costly than the course of creating a supernumerary administrative position for Mr Vale. It was also an alternative that was equally suited to the requirements of the job. This factor lends support to the conclusion that the term imposed was not reasonable. Finally, I do not find that the obligations of the first respondent towards Mr Vale under the ADA conflicted with or otherwise prevented compliance with its legislative and common law obligations to ensure the safety of service users.
- Accordingly, I find there was indirect discrimination in the terms outlined above, of Mr Vale.
- Section 24 provides that it is not unlawful to discriminate in the work area if an exemption in ss 25 to 36 or part 5 applies. The respondents have the onus of proof in relation to the application of any of the exemptions in part 4 of the Act.
- The respondents rely on the following exemptions:
- (a)Section 25 – genuine occupational requirements;
- (b)Section 35 – special services or facilities required;
- (c)Section 36 – circumstances of impairment; and
- (d)Section 108 – workplace health and safety.
- I will deal with each of them in turn.
Genuine occupational requirements
- Section 25 provides, relevantly:
25 Genuine occupational requirements
- (1)A person may impose genuine occupational requirements for a position.
Examples of genuine requirements for a position—
selecting an actor for a dramatic performance on the basis of age, race or sex for reasons of authenticity
using membership of a particular political party as a criterion for a position as an adviser to a political party or a worker in the office of a member of Parliament
considering only women applicants for a position involving body searches of women
employing persons of a particular religion to teach in a school established for students of the particular religion.
- The first respondent argued that it was a genuine occupational requirement that Mr Vale be able to ‘actively and continuously support and supervise service users during the entire duration of a 12 hour shift without restriction’.
- The issues are whether that, indeed, was a genuine occupational requirement of the RCO position and whether, if it was, Mr Vale could reasonably comply with it.
- I do not accept that it was a genuine occupational requirement that a RCO devote all of his or her time and attention to the needs of service users. This is reflected in the work duties statement which indicates that a RCO is entitled to two 30-minute crib breaks. During the crib break a RCO is expected to stay alert to what is going on but this does not mean he or she has to devote all of his or her attention to the service users. This also must be the case when the rest of the duties of a RCO, which include cleaning and laundry, are taken into account.
- I note the evidence of Dr Cotton who was provided a list of the duties of a RCO and who stated that, in his opinion, Mr Vale was able to perform all his duties.
- The meaning of an ‘inherent’ requirement was considered in Qantas Airways Limited v Christie. There it was held:
... an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.
- In my view the ‘genuine occupational requirements’ of a position would include its ‘inherent requirements’. There is a difference between the requirements of a position as opposed to the requirements of a job. This was discussed in Christie where McHugh J held:
In some cases the distinction between the inherent requirements of a particular position and those of a particular job, although subtle, may be material. This is often likely to be the case where qualifications are concerned, particularly those qualifications that are not concerned with the physical or mental capacity to perform the tasks involved in the position. Thus to be an American born citizen is an inherent requirement of the position of President of the United States, but it is not an inherent requirement of the “job” of President if that term refers to the work done by the President.
- ‘Inherent’ has been interpreted to mean ‘existing in something as a permanent attribute or quality; forming an element, especially an essential element of something; intrinsic, essential’. In this context, that which is essential to the performance of a particular position must be regarded as an inherent requirement of that position. For example, in Cramer v Smith Kline Beecham, penicillin tolerance was found to be an inherent requirement of working in a chemical manufacturing plant. Tolerating penicillin was an essential attribute of being employed in the particular position.
- Mr Vale’s position was Residential Care Officer. The issue is whether it was an inherent requirement of that position that an RCO actively and continuously support and supervise service users during the entire duration of a 12-hour shift without restriction.
- I have already found that there was no such requirement.
Special services or facilities are required which would impose unjustifiable hardship on the respondents
35 Special services or facilities required
- (1)It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if—
- (a)the other person would require special services or facilities; and
- (b)the supply of special services or facilities would impose unjustifiable hardship on the first person.
- (2)Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5.
- ‘Unjustifiable hardship’ is defined as follows:
5 Meaning of unjustifiable hardship
Whether the supply of special services or facilities would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example—
- (a)the nature of the special services or facilities; and
- (b)the cost of supplying the special services or facilities and the number of people who would benefit or be disadvantaged; and
- (c)the financial circumstances of the person; and
- (d)the disruption that supplying the special services or facilities might cause; and
- (e)the nature of any benefit or detriment to all people concerned.
Example of application in the work area (section 35)—
Company R refuses to employ A who uses a wheelchair because there is no appropriate access to the place of employment. R may only discriminate against A on the basis of impairment if supplying access would be very expensive or would impose another significant hardship on R.
- The respondents submitted that to permit the applicant to perform dialysis on a shift required backfill support. This constituted a ‘special service or facility’ and would impose ‘unjustifiable hardship’ on the first respondent due to:
- (a)the practical difficulties in sourcing and organising for other RCOs to backfill the applicant for short periods of time while he performed dialysis, including that more senior staff would have been taken away from their duties; and
- (b)the additional cost of employing RCOs to backfill the applicant for short periods of time during a shift while the applicant performed dialysis during a shift (estimated to be between $14,000 and $21,000); and
- (c)the additional administrative costs to the first respondent of sourcing and organising for other RCOs to backfill the applicant for short periods of time, namely $2,671.32; and
- (d)the precedent it may create.
- I find that there was no need to impose any special requirements for Mr Vale. I rely on my findings above that the RCO role did not require constant monitoring or surveillance such that it was inconsistent with the role for Mr Vale to be undertaking dialysis in his crib break.
- I also find, in the alternative, that if a back-filling arrangement was required, that this did not constitute ‘unjustifiable hardship’. The Department conceded in cross-examination that the cost was not the issue but that the back-fill arrangement was ‘unsustainable’ given the burden to other staff in organising a person to back-fill and that senior staff may be taken away from their duties to back-fill. There was also, an underlying concern about setting precedents in a ‘highly unionised’ environment. As Mr Smales said in the course of giving evidence at the hearing:
…it’s a highly industrialised environment. Setting any kind of precedents about giving – oh, well, you – you – concern about other staff coming and saying, “Well, I can’t do this,” so therefore I can’t perform, you know, shifts on Sundays or I can’t do – it could set significant precedents. I need to – I need to be very conscious of precedents in this environment. Highly unionised. We would have, you know, union – there was – there was a special area within the – within the department that dealt with the industrial issues within AS&RS. It was a specific unit within the depa-within the agency – had to do that because of the vagaries of some of the policies, the-the variations that occurred.
- These reasons, in my view, do not amount to ‘unjustifiable hardship’, particularly when the size of the first respondent is taken into account and the improvements and consequent savings that were made the longer the back-filling arrangements were in place. This indicates that the administrative problems identified by the Department in sourcing staff to back-fill could have been ameliorated as efficiencies were introduced. I also do not accept that concern about setting precedents in a ‘highly unionised’ environment is a relevant circumstance for the purposes of s 5.
Circumstances of impairment
- Section 36 provides:
36 Circumstances of impairment
- (1)It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if the circumstances of the impairment would impose unjustifiable hardship on the first person.
- (2)Whether the circumstances of the impairment would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example—
- (a)the nature of the impairment; and
- (b)the nature of the work or partnership.
- The respondent submitted that Mr Vale’s impairment would impose unjustifiable hardship on the first respondent as Mr Vale’s employer for the same reasons it relied on in arguing s 35 applied.
- I do not consider, in view of ‘all the relevant circumstances of the case’, that Mr Vale’s impairment imposed unjustifiable hardship on the first respondent within the meaning of s 36. In arriving at this conclusion I have taken into account Mr Vale’s record as a highly valued disability worker of some 16 years’ experience, the nature and size of his employer, the nature of his work as an RCO, his entitlement to two crib breaks, the nature of the procedure, that he had undertaken it for over 4 months with no backfill arrangements in place and with no issues, and that he had been certified on two occasions during the relevant period as medically fit for work.
- I find that there was no need for a backfill arrangement while Mr Vale undertook dialysis but, in any event, if there was a need for a backfill arrangement that this did not constitute an ‘unjustifiable hardship’ within the meaning of s 36.
Workplace Health & Safety
- Section 108 provides:
108 Workplace health and safety
A person may do an act that is reasonably necessary to protect the health and safety of people at a place of work.
- The respondent submits that Mr Vale’s treatment was reasonably necessary to protect the health and safety of people at his place of work, in that Mr Vale, as an RCO during a shift was required to:
- (a)physically react quickly in situations where service users required immediate attention due to risk of harm;
- (b)provide assistance with safe mobility; and
- (c)react quickly and use actions and avoidance strategies to maintain safety, particularly in the management of unpredictable and seriously disruptive service user behaviour, being duties he would not be able to perform when he was performing dialysis.
- I find that the act of removing Mr Vale from the role of an RCO was not ‘reasonably necessary’ to protect the health and safety of the service users at Donald Court. I find that Mr Vale was able to react quickly to an emergency, being able to disconnect within 30 seconds, and that he was otherwise experienced in working with people with special needs and in particular with the three service users at Donald Court so as not to subject them to any unreasonable risk of harm. He had also implemented his own preparation strategy prior to undertaking CAPD which had worked well for some months and was otherwise fully attentive to the needs of service users while performing CAPD.
- Accordingly, I find that the exemption in s 108 does not apply.
- Mr Vale alleges that he was victimised by the first and fourth respondents by their act in withholding from him his Certificate of Recognition for 15 years of service with the Queensland Public Service because he had made a complaint of discrimination against the Department which had been referred to the Tribunal. Mr Vale said:
This action infers that the quality of my service to the Queensland government was adversely affected by my lodging a complaint with QCAT.
- Section 129 of the Act provides that a person must not victimise another person. Section 130 provides that:
"Victimisation" happens if a person (the "respondent”) does an act, or threatens to do an act, to the detriment of another person (the "complainant”)—
- (a)because the complainant, or a person associated with, or related to, the complainant—
- (i)refused to do an act that would amount to a contravention of the Act; or
- (ii)in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
- (iii)is, has been, or intends to be, involved in a proceeding under the Act against any person; or
- (b)because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).
- The source of the complaint is an email from Ms Broome, who held the position of senior advisor HR advice with the Department, to Mr Wadeson, manager of HR services on 23 November 2016.
- The email reads:
Given the QCAT matter with Mr Vale do you see any issue with us giving Mr Vale his 15 year service certificate?
- The certificate was not ultimately withheld from Mr Vale, although there was some delay in giving it to him. Mr Wadeson’s evidence was that, upon receiving the email, he immediately told Ms Broome to give the certificate to Mr Vale. This was corroborated by Ms Broome. However, due to an administrative oversight Ms Broome said that the certificate was not provided to Mr Vale until sometime later, on 8 August 2017. There is no evidence to suggest that the certificate was deliberately withheld from Mr Vale.
- The issue then is whether Ms Broome, by making the enquiry about whether to give Mr Vale the certificate, has done an act or threatened to do an act to the detriment of Mr Vale because of his discrimination proceedings.
- Making this enquiry is not, in my view, an act to the detriment of Mr Vale.
- The issue is whether, by making that enquiry, Ms Broome was threatening not to issue or at least to delay the issue of his certificate.
- It was not within Ms Broome’s authority as to whether or not to issue the certificate. In those circumstances it cannot be said that Ms Broome was threatening not to issue it. I do accept, however, that the enquiry was causally related to the discrimination proceedings. However, I am not satisfied that Mr Vale suffered any detriment due to the delay in issuing the certificate to him.
- In conclusion, I am not satisfied Mr Vale was the subject of victimisation within the meaning of s 130 of the Act in relation to the provision to him of his 15 year certificate of service.
- As noted above, Mr Vale has made a number of complaints of discriminatory conduct. The most serious, of course, was the allegation relating to his need to transfer from the position of RCO to administrative officer. I have also made findings of discriminatory conduct in relation to complaint three. In my findings concerning appropriate compensation that follows, I have considered all the complaints successfully made.
- The tribunal has power to award compensation for loss or damage caused by the contravention pursuant to s 209(1)(b) of the ADA. It has been held that such compensation is to be assessed through a comparison of the position the complainant might have been in had the discriminatory conduct not taken place with the situation in which the complainant was placed by reason of the conduct of the discriminator, the object being to place the complainant in the position they were in before the contravention of the ADA.
- The approach has been said to be two-fold: first, to assess the loss or damage caused by the contravention and then to determine the appropriate level of compensation for that loss or damage. Loss or damage, to be recoverable, must have been reasonably foreseeable. If the loss is too remote it will not be considered ‘appropriate’ within the meaning of s 209(1)(b) of the ADA.
- The period of time over which Mr Vale experienced discriminatory conduct was from November 2015 to November 2016.
- Mr Vale has been working in his former RCO role since his kidney transplant on 27 November 2016. His economic loss claim therefore relates to the time from 13 April 2016, when he left that role to 27 November 2016.
- Had Mr Vale continued in his role as an RCO between 13 April 2016 and 27 November 2016 he would have earned approximately $49,388. Instead, as an administrative officer (AO3.3) Mr Vale was paid approximately $38,016. I find therefore, that Mr Vale suffered loss of salary of $11,372 over that period, and I award compensation in that amount.
- In addition, Mr Vale claims the following economic loss:
- (a)Reimbursement of 128 hours of recreation leave for the period 29 February 2016 to 20 March 2016 including penalty payments not received in the amount of $1,043.30
Mr Vale submits that he is entitled to reimbursement of the 3 weeks’ recreation leave to his accrued leave. Mr Vale submits, essentially, that this was leave he was forced to take because he had been told in a meeting of 22 February 2016 by David Robinson that his only option if he did not take the offered transfer to an administrative role was to take accrued recreation leave, long service and then leave without pay until his kidney transplant.
The respondents submit that Mr Vale is not entitled to be reimbursed for the recreation leave because it was leave Mr Vale voluntarily applied for after advising the respondent (on 29 February 2016); that he did not wish to take up the offer of administrative duties; and that he would be applying for recreation leave. The respondents also submit that Mr Vale is not entitled to the $1,043.30 because he was paid his penalty rates for that period of leave.
There was, in my view, a sufficient causal nexus between the claimed loss and the offending conduct. It is correct to that the decision to take the recreational leave was one for Mr Vale; on the other hand, had it not been for the offending conduct, there would have been no decision to make.
Accordingly, I allow the lost recreational leave in the sum of $1,043.30.
- (b)Reimbursement for two weeks leave without pay including penalty payments missed for the period 21 March 2016 to 3 April 2016 in the amount of $3,546.75
Mr Vale claims reimbursement for the two weeks he went on leave without pay. The two period of leave without pay followed the earlier three weeks of ‘forced recreation leave’ (item (a) above). Mr Vale submits that he was required to take the leave because he was not prepared to accept the transfer to the administrative role for an indefinite period without knowing what other options he had which would become clearer once he had met with the Anti-Discrimination Commission Queensland.
Mr Vale submits that the combined five week period (item (a) and (b)) was ‘definitely not a holiday’. Mr Vale submits that due to the inaccurate Reports that he should never have been put in apposition where his only choice was to take the administrative position or not be employed. Taking leave at that time was his only option.
Mr Vale also claims to be entitled to be paid his salary plus penalties for the two week period in the sum of $3,546.75.
The respondents submit that while it was true Mr Vale was on two weeks leave without pay, that this was a result of his own decision not to initially take up the offer of administrative duties.
I allow this claim in the sum of $3,546.75, for the same reason I allowed the claim for recreational leave.
- (c)Missed penalty rates for the period 13 April 2016 to 27 November 2016 whilst he was in the administrative position in the amount of $7,944.11
Mr Vale claims he is entitled to the penalty payments he missed out on from the period 12 April 2016 to 27 November 2016 (24 weeks) which amounted to $7,944.11. In fact Mr Vale’s calculation of missed penalties in the amount of $7,944.11 is taken from 13 June 2019.
The respondents submit that Mr Vale was paid his projected roster up to about 17 June 2016 and, that as a consequence, any claim for missed penalty rates while Mr Vale was working in the administrative position can only be from about 17 June 2016 to 26 November 2016 which was approximately $8,786.00. However, the respondents submit that the fact Mr Vale did not receive those penalty rates for the administrative position was not due to any discriminatory conduct on the part of the respondents. Mr Vale did not receive those penalty rates because: he agreed to work in the administrative position; and he did not engage in any shift work over that period of time.
In my opinion, there is a sufficient causal nexus between the offending conduct and the alleged loss. In a common sense way, the offending conduct caused Mr Vale to miss out on income he would otherwise have earned.
I will allow the sum of $7,944.11, the amount claimed by Mr Vale.
- (d)Claim for one week’s pro rata recreation leave for the period 13 April 2016 to 2 March 2017 which is not quantified but Mr Vale says amounts to 28.4 hours of recreation leave
Mr Vale submits that he is entitled to claim pro rata for the additional one week’s recreation leave that he had not received in the administration position for the period 13 April 2016 to 1 March 2017.
The respondents submit that, for similar reasons to (c) above, Mr Vale should not be entitled to any pro rata additional recreation leave (provided to shift workers) over the same period of time because he was not working in a shift work position over that time.
I have above allowed Mr Vale’s claim for recreation leave lost by reason of his shift of position to an administrative officer. This item of loss, however, is not sufficiently related to the offending conduct. I will not allow this part of the claim.
- (e)Claim for reimbursement of sick days, which is not quantified, but Mr Vale claims the period of 62.5 hours
Mr Vale submits that as an RCO working 12 hour shifts he normally worked only two day shifts a week which gave him adequate days off work for medical appointments. During the period in the administrative role Mr Vale was working an 8am to 4 pm shift 5 days a week and, as a consequence, was forced to take sick leave to attend appointments. Mr Vale has claimed reimbursement of all hours he took as sick leave during the period 12 April 2016 to 1 November 2016 except for 1 July when he was actually sick. On all other occasions Mr Vale was attending medical appointments for which medical certificates were provided. Mr Vale claims a total of 62.5 hours.
The respondents submit that Mr Vale is not entitled to this claim because there can be no causal link between any claim for sick days that Mr Vale says he has taken.
I will not allow this claim. First, the sick leave was used by Mr Vale for the purpose it was granted by the employer. Secondly, it has not been demonstrated that Mr Vale could ever have claimed the sick leave, if not taken, as a monetary amount.
- Mr Vale has not claimed that he has suffered any psychological or psychiatric injury as a result of the discriminatory conduct by the respondents.
- Mr Vale bases his claim for compensation on the stress and hardship caused by the fear that his employment might be terminated by the Department. Mr Vale claims general damages at $50,000 per year, amounting to $150,000 in total. Mr Vale states in his submissions that he is leaving the assessment of compensation to the ‘discretion of the Tribunal to make an assessment of a fair amount’.
- Mr Vale was understandably aggrieved and frustrated at the way in which he was treated. He was not properly consulted about his procedure or the options and important information relied upon in making critical decisions about Mr Vale’s employment was plainly wrong.
- Mr Vale took his position as RCO very seriously and had been working in the role for over 16 years. It was humiliating and degrading to him on a personal level to be moved from this position to one that he was not trained for and which seemed to be a superfluous role. This added insult to injury as Mr Vale was forced to look for menial tasks to do around the office to keep himself occupied. Mr Vale, in his opening address to the Tribunal summarised the effect on him as follows:
With the redeployment to an administrative position, not only did I suffer from a reduction of remuneration, approximately $20 000 per annum equivalent due to being paid incorrectly, I also suffered a reduction in my status and responsibilities that amounted to demotion, a demotion to an unspecified position with no allocated ongoing duties or responsibilities for the first four months. After four months working in an administration position, at a review meeting I was offered hand-me-down jobs from the AO2 administration officer. My status and level of responsibility were less than the lowest ranked AO2 administration position in the office. This severely impacted on my sense of self-worth…Redeployment to an administration position was, for me, a punishment. After 16 years as an RCO working a variety of 12-hour shift times and being kept busy with a variety of activities, I felt like a caged tiger working 8am to 4pm each day, Monday to Friday. When other staff had no work for me to do, I found it difficult to be sitting at a desk with nothing to do, adjacent to a busy walkway leading to the lunch room, with the staff fridge situated next to my desk. It became a regular embarrassment and humiliation, for a person who likes to be busy and active, to have nothing to do.
- These effects echo those described in Collier v Austin Heath, a case referred to above. The individual, who was treated to their detriment on the basis of stereotypical assumptions about them and their behaviour, or due to a negative stigma attached to an attribute, was said to be ‘left with feelings of pain, distress personal injury and damaged self-worth’. As it was held in Collier:
Most of all, it assaults the dignity which is the essence of their humanity.
- By reason of his change of position, Mr Vale says he was unable to play golf (because of the changed hours) and was unable to take positions he would otherwise have taken on a hospital committee; and had to resign as the Chair of Kidney Health Australia, Fraser Coast. I am conscious that he suffered not only the effects of the treatment at the time, but that it has been necessary to litigate his complaint.
- I have taken all of these matters into account. However, there is no evidence that Mr Vale has suffered any psychiatric condition as a result of his treatment; or that there will be any serious, ongoing issues for him.
- Doing the best I can, I will allow the sum of $10,000 for non-economic loss.
Joint and several liability
- The first respondent accepted that if any of the second, third or fourth respondents had contravened the ADA, that the first respondent was vicariously liable for their conduct. This does not, however, absolve the second respondent if he has otherwise contravened the ADA. I have found above that the third respondent and fourth respondent did not contravene the ADA.
- Section 133 of the ADA provides:
133 Vicarious liability
- (1)If any of a person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
- I have found above that Mr Vale was directly discriminated against, principally by being transferred to an administrative role from his position as an RCO because he had chronic stage kidney disease and needed to perform CAPD during his crib break. The decision that Mr Vale could not continue in the RCO role while he needed to undertake CAPD was made by Mr Peter Smales, the second respondent. Mr Smales also made the decision, albeit in consultation with others, that it was not reasonable to continue to support Mr Vale in the RCO position by continuing the backfilling arrangement for the periods when he needed to undertake dialysis. These are decisions that I have found to be discriminatory, both on the basis the conduct constituted direct discrimination and indirect discrimination. Accordingly, I find that Mr Smales has, in these respects, contravened s 15(1)(f) of the ADA.
- Accordingly, I do not find that Mr David Robinson, the third respondent, is responsible for these decisions. I therefore find that he is not liable in respect of complaint 3 or 4. Mr Robinson, at the relevant time, was employed as the Manager of the Maryborough Service Centre, Disability Services, Central Queensland Region. Mr Robinson reported to Mr Smales, Regional Director. While Mr Robinson advised Mr Smales and agreed with his assessment of Mr Vale’s situation, it was Mr Smales, ultimately, that made the relevant decisions.
- I find, in his position as Manager of the Maryborough Service Centre, that Mr Robinson was responsible for the way Mr Vale was treated, namely, in the way the risk assessments were conducted and the process that was applied generally to Mr Vale including, importantly, the limited ‘options’ presented to him by Mr Robinson at their meeting on 11 November 2015. Having said that, I have not found this treatment, though unsatisfactory, constitutes unlawful discrimination.
- The first and second respondents are, accordingly, jointly and severally liable to pay Mr Vale the sum of $33,906.16 within 14 days of the date of this order.
- I also order, pursuant to s 66 of the QCAT Act, that the names of the relevant service users must not be published.
- I direct the parties to make any submissions as to costs on or before 30 September 2019 and any submissions in reply on or before 7 October 2019.
 Applicant’s submissions, .
 Statement of David Robinson, Annexure DR-1: Position Description of RCO.
 Respondents’ submissions, 3 December 2018, .
 Ibid .
 In compliance with Tribunal Directions of 5 November 2018.
 Applicant’s statement of 5 April 2018, Attachment 7.
 Letter of Mr Smales to Mr Vale of 26 February 2016, Affidavit of Peter Smales, - and Annexure ‘PS 12’.
 Applicant’s amended contentions dated 3 July 2017.
  VSC 344.
 Ibid 6-7.
 Waters v Public Transport Corp (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J.)
 ADA, s 6(2)(a).
 ADA, s 4, Schedule.
 ADA, s 8.
 ADA, s 10(1).
 ADA, s 10(2).
 ADA, s 10(3).
 ADA, s 10(4).
 ADA, s 10(5).
 The examples are part of the Act and can be used in interpreting the relevant provision: Acts Interpretation Act 1954 (Qld), s 14(3), s 14D.
 See for example, James v Eastleigh Borough Council  2 AC 751; Reg v Birmingham City Council, Ex parte Equal Opportunities Commission  AC 1155.
 Garton v Hillcrest Hospital Inc (1984) EOC 92-01, 76-010.
 Haines v Leves  8 NSWLR 442, 471.
 Ibid, citing Boehringer Ingelheim Pty Ltd v Reddorp  2 NSWLR 13.
 Respondents’ submissions, 3 December 2018, p 71.
 Applicant’s statement filed 3 March 2018, exhibit 1, Part A, p 489.
 (2003) 217 CLR 92, 101 (Gleeson CJ).
 Ibid 160-161. Agreed by Callinan J at .
  QCA 159.
 Ibid .
  QCA 100.
 Ibid -, .
 Ibid , citing Purvis (2003) 217 CLR 92, 157, .
  QCAT 409, -.
 T3 48-64.
 T 6-47.
 Respondents’ submissions, 3 December 2018, .
 Exhibit 12.
 T 6-49.
 Respondents Submissions filed 3 December 2018, .
 Waters v Public Transport Corporation (1991) 103 ALR 513, 552 per McHugh J citing Umina Beach Bowling Club Ltd v Ryan  2 NSWLR 61, 66.
 ADA, s 10(4).
 (1998) 160 ALR 489, 509.
 T 5-74.
 T 5-86.
 Exhibit 2, .
 Applicant’s amended contentions dated 3 July 2017.
 Applicant’s final submissions, 8 January 2018, .
  FCA 405.
 Ibid ; Forest v Queensland Health  FCA 936, .
  QSC 18.
  FCAFC 197.
 Catholic Education Office v Clarke  FCAFC 197; (2004) 138 FCR 121.
 ADA, s 204.
 Applicant’s contentions, .
 ADA, s 205.
 (2006) 230 CLR 174.
 Ibid .
 Letter from Peter Smales to John Vale on 26 February 2016.
 Nojin v Commonwealth of Australia (2011) 283 ALR 800, .
 Catholic Education Office v Clarke  FCAFC 197, .
 State of Victoria v Schou (No 2)  VSCA 71, 130.
 AD Act, s 206.
 Respondents’ contentions, 12 January 2017, .
 (1998) 193 CLR 280.
 Ibid, .
 Ibid,  citing the International Labour Organisation’s Commission of Inquiry into the observance of the Discrimination Convention by the Federal Republic of Germany.
 Ibid, .
 Unreported, Federal Court of Australia, 2 July 1997.
 Respondents’ contentions, .
 Respondents’ submissions, 3 December 2018, .
 T 6-36.
 Applicant’s Response to directions issued on 7 March 2018, .
 Exhibit 4, .
 Exhibit 7, .
 McCauley v Club Resort Pty Ltd (No 2)  QCAT 243, ; Bell v State of Queensland (No 1)  QCAT 297, .
 Ibid -.
 Exhibit 1, 645.
 Applicant’s submissions, 30 January 2017, 5.
  QCAT 212, -;  QCATA 128, .
  QCAT 490, -.
 T 1-40.
  VSC 344, 346-347.
 See at  of these Reasons.
  VSC 344, 346-347.
 Respondents’ submissions, 3 December 2018, .
 The second respondent’s evidence was that he was the delegate and was the ultimate decision maker in the treatment provided to Mr Vale: Respondents’ submissions, 3 December 2018, .
 Respondents’ submissions filed 3 December 2018, , ,  and .
 Affidavit of David Robinson, 9 May 2018, .
 Respondents’ submissions filed 25 October 2018, ; T 1-14, 1-15.
- Published Case Name:
John Anthony Vale v State of Queensland, Peter Smales, David Robinson and Debbie-Ann Catherine Broome
- Shortened Case Name:
Vale v State of Queensland & Ors
 QCAT 290
19 Sep 2019