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Metro South Hospital and Health Service & Leighton v Luthje QCATA 145
Metro South Hospital and Health Service & Leighton v Luthje  QCATA 145
Metro South Hospital and Health Service
28 January 2015
Justice Thomas, President
22 September 2015
APPEAL – APPLICATION FOR LEAVE TO APPEAL – INTERLOCUTORY DECISION – ANTI-DISCRIMINATION – where applicant applied for interlocutory injunction to prevent independent medical examination until Anti-Discrimination matter could be resolved – where Senior Member granted interlocutory injunction – where leave is sought to appeal that decision – whether leave to appeal should be granted – leave to appeal granted, injunction set aside.
Anti-Discrimination Act 1991 (Qld) ss 7, 15, 34, 144
Public Service Act 2008 (Qld) ss 175, 178, Ch 5 Pt 7
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Corporation v O'Neill Laboratories Pty Ltd (2006) 227 CLR 57
Carey v Cairns Regional Council & Ors  QCATA 313
Jones v Queensland Health  QCAT 700
Luthje v State of Queensland & Ors  QCAT 417
McDermott v Chief Executive, Office of Liquor and Gaming Regulation  QCATA 065
McIntyre v Hastings Deering (Australia) Ltd & Anor  QCAT 438
Oatley v Pertzel  QCATA 92
State of Queensland v Peta Michelle Attrill  QCA 299
C Murdoch instructed by M Marincowitz on behalf of Metro South Hospital and Health Service and Karen Leighton
A Smeaton and M Spry of Counsel on behalf of Nathaniel Luthje
REASONS FOR DECISION
- I have had the benefit of reading the reasons of Dr Cullen. I agree with her conclusions and the order she proposes.
Member Dr Cullen
- The facts of this case are relatively straightforward and are not disputed.
- Nathaniel Luthje was employed by Metro South Hospital and Health Service as an Endorsed Enrolled Nurse (‘EEN’). Mr Luthje made a complaint of discrimination in the workplace due to his physical impairments, post-traumatic stress disorder and hearing disorder.
- After lodging a complaint to the Anti-Discrimination Commission Queensland, Mr Luthje filed an application in the Tribunal seeking an injunction under s 144 of the Anti-Discrimination Act 1991 (Qld) (‘AD Act’). The injunction was sought to restrain Metro South Hospital and Health Service from exercising certain powers under the Public Service Act 2008 (Qld) (‘PS Act’) that could result in his employment being terminated on medical grounds.
Decision at first instance: ADL047-14
- On 18 August 2014, the learned Senior Member granted an interlocutory injunction prohibiting the Respondent, Metro South Hospital and Health Service, and Second Respondent, Karen Leighton, from exercising their powers under Chapter 5 of the PS Act until the Applicant, Nathaniel Luthje’s, discrimination complaint could be heard and determined.
- Both Respondents now appeal against this decision.
- Briefly, the decision below was made on the basis that the learned Senior Member found that Mr Luthje:
- a)made out a prime facie case of discrimination; and
- b)there existed a real risk that his employment would be terminated before his complaint could be finalised.
- The learned Senior Member noted in the decision that there was no satisfactory explanation as to why a further medical report (an independent medical examination or ‘IME’ to be performed by Dr Ng) was necessary after Mr Luthje had a medical evaluation by a psychiatrist, Dr Grey, only recently.
- Mr Luthje had attempted a return to work program that resulted in concerns being raised about his ability to perform the daily functions of an EEN. He was suffering from long standing post-traumatic stress.
- These events led the learned Senior Member to conclude that Mr Luthje’s employment was indeed at risk of termination if the medical examination by Dr Ng went ahead. The learned Senior Member also accepted that if the injunction was refused, and Mr Luthje’s employment was terminated, Mr Luthje would have great difficulty in continuing his career as a health professional, or in obtaining alternate employment.
Leave to Appeal
- As the learned Senior Member’s decision was of an interlocutory nature and not the Tribunal’s final decision in a proceeding, leave to appeal is necessary.
- The Respondents seek leave to appeal on the basis that the Tribunal below erred at law. Leave to appeal on a question of law will be granted only where certain conditions are satisfied. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- The Respondents submit that this issue is of general importance as it gives rise to the interpretation and application of s 144 of the AD Act where the relief sought prohibits the respondents from directing Mr Luthje to undergo an independent medical examination (‘IME’) under s 175 of the PS Act. Because of the importance to the public in resolving this issue, the Respondents assert that leave should be granted.
- Section 144 of the AD Act provides as follows:
ANTI-DISCRIMINATION ACT 1991 - s 144
144 Applications for orders protecting complainant's interests (before reference to tribunal)
- (1)At any time before a complaint is referred to the tribunal, the complainant or the commissioner may apply, as provided under the QCAT Act, to the tribunal for an order prohibiting a person from doing an act that might prejudice—
- (a)the investigation or conciliation of the complaint; or
- (b)an order that the tribunal might make after a hearing.
- (2)A party or the commissioner may apply, as provided under the QCAT Act, to the tribunal for an order varying or revoking an order made under subsection (1).
- (3)If the tribunal is satisfied it is in the interests of justice, an application for an order under subsection (1) may be heard in the absence of the respondent to the application.
- It is not disputed that the PS Act applies to Mr Luthje’s employment with Metro South Hospital and Health Service. Section 175 of the PS Act provides that:
PUBLIC SERVICE ACT 2008 - s 175
175 Chief executive may require medical examination
The chief executive may—
- (a)appoint a doctor to examine the employee and give the chief executive a written report on the examination; and
- (b)require the employee to submit to the medical examination.
- As injunctive relief can only be granted in aid of final relief, the Respondents argue that granting an interlocutory injunction that prohibited the exercise of powers under s 175 of the PS Act was in error. The Respondents assert that the Court of Appeal has previously held that s 175 of the PS Act is not subject to s 144 of the AD Act in State of Queensland v Peta Michelle Attrill (‘Attrill’). As such, the Tribunal could not make a final order that Mr Luthje not submit to a medical assessment and therefore also could not grant that relief by way of an interlocutory injunction.
Grounds of appeal
- The Respondents raise nine grounds of appeal against the decision made by the Tribunal below. These grounds can be summarised as follows:
- Attending an IME is not an event that, of itself, prejudices the factors in s 144 (a) and (b) of the AD Act.
- Any prejudice to Mr Luthje in attending an IME was speculative only.
- There was no evidence before the Tribunal that Mr Luthje’s attending an IME would itself be prejudicial.
- The Tribunal erred in taking irrelevant matters into account.
- The Order of the Tribunal was contrary to the principle that an interlocutory injunction can only be issued in aid to final relief.
- There was no evidence before the Tribunal that any decision adverse to Mr Luthje would be made under s 178 of the PS Act.
- There was no evidence that that might prejudice the factors prescribed in ss 144 (a) and (b) of the AD Act.
- The Tribunal erred in exercising its discretion and finding a real risk that Mr Luthje’s employment might be terminated.
- The Second Respondent, Ms Leighton, has no authority to exercise powers under Chapter 5, Part 7 of the PS Act. As such, she cannot be injunctively prohibited from exercising powers that she does not have.
- For these reasons, the Respondents argue that they should be:
- granted leave to appeal the decision prohibiting Metro South Hospital and Health Service from further exercising its powers under the PS Act until the discrimination matter is heard and determined; and
- that the Orders made in relation to both Respondents be set aside.
The Respondents’ Submissions
- At the core of the Respondents’ argument is the assertion that the Court of Appeal, in Attril, expressly held that a complaint of unlawful discrimination cannot be made in relation to a direction for an employee to attend an IME.
- The Respondents further point out that any direction that Mr Luthje attend an IME is a separate and distinguishable matter from those raised in the complaint referred to the Tribunal by the Anti-Discrimination Commission Queensland following his complaint. Mr Luthje does not allege that a direction for him to attend an IME constitutes unlawful discrimination.
- Under s 175 of the PS Act, the Respondents were lawfully entitled to direct Mr Luthje to undergo an IME. The purpose of an IME is to provide independent medical advice regarding, in this case, Mr Luthje’s ability to perform the full requirements of his position. The Respondents assert that the IME is required in order to make a decision about Mr Luthje’s suitability for ongoing work as an EEN. As the IME never occurred, the likelihood of his employment being terminated could not be ascertained.
- The Respondents submit that attendance at an IME is not, of itself, prejudicial, for the simple reason that there are a range of outcomes that could eventuate following the IME, not just termination:
A medical examination is not directed towards the medical retirement of the employee, but rather obtaining sufficient relevant information to enable an appropriate decision to be made, focusing on continued employment, where reasonable.
- Section 178 of the PS Act sets forth the possible outcomes following an IME:
PUBLIC SERVICE ACT 2008 - s 178
178 Action following report
- (1)If, after considering the report of the medical examination, the chief executive is reasonably satisfied the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability, the chief executive may—
- (a)transfer or redeploy the employee; or
- (b)if it is not reasonably practicable to transfer or redeploy the employee—retire the employee from the public service.
- (2)Subsection (1) does not limit the action that may be taken relating to the employee.
- This being the case, the Respondents assert that the assumption by the learned Senior Member below that Mr Luthje’s employment may be terminated was highly speculative. It was therefore erroneous for the Tribunal below to have concluded that Mr Luthje’s employment was at risk, as there were a number of possible outcomes following the IME.
- The Respondents assert that the Order of the Tribunal below fundamentally undermines the powers available to an employer in respect of its employees under the PS Act, and further that the Order prevents the assessment of Mr Luthje’s capacity for work, in an area of employment where public health and welfare is paramount.
- Finally, the Respondents assert that the Tribunal below erred in taking into account irrelevant matters in finding that it would have been more appropriate for Mr Luthje to return to a doctor he had already seen (Dr Grey) or attend an independent occupational therapist. These matters are not relevant to the determination by the Tribunal as to whether or not attendance at an IME by Mr Luthje would prejudice either of the factors in ss 144(1)(a) and (b) of the AD Act.
Mr Luthje’s submissions
- Mr Luthje submits that the issue to be decided here is whether his undergoing an IME would prejudice the investigation and conciliation of his complaint or an order the Tribunal may make after hearing; not if the IME was itself discriminatory.
- In short compass, Mr Luthje submits that the decision in Atrill did not read down s 144 of the AD Act, and is therefore not inconsistent with the Senior Member’s decision below.
- Mr Luthje submits that the Respondents have misinterpreted Attrill in that Attril did not concern the operation of s 144 AD Act; rather it concerned the operation of the prohibitions in ss 7 and 15 of the AD Act in light of s 175 of the PS Act.
Issues to be determined:
- Arising from the parties’ submissions, there are three broad questions that this Appeal Tribunal must determine.
- Is an appeal necessary to correct a substantial injustice to the Respondents, and is the relationship between s 144 of the AD Act and s 175 of the PS Act an issue of general importance such that a decision of the Appeal Tribunal would be to the public’s advantage?
- Was the learned Senior Member correct in ordering that the Respondents be restrained from exercising the power under the PS Act to require Mr Luthje to undertake an IME until his discrimination matter could be heard and determined?
- What is the relationship between s 144 of the AD Act and s 175 of the PS Act?
The appeal raises issues of general public importance
- The Appeal Tribunal is satisfied that the questions posed about the relationship between the AD Act and PS Act are of general importance to the public and merit comment. Whilst the Tribunal has no conferred jurisdiction in relation to the PS Act, it does hear and determine all of the matters arising under the AD Act. The proper construction and interpretation of the AD Act is crucial, particularly in light of the large numbers of public servants employed by the State of Queensland.
- One of the primary purposes of the AD Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work. In order for work within the public service to operate optimally, it is important that public service employers and employees (including the Respondents and Mr Luthje) understand the relationship that exists between requiring an employee to attend an IME. Of similar importance are the avenues of redress that an employee may have under the AD Act in circumstances where they believe they have been discriminated against in the area of work on the ground of impairment.
- The QCAT Appeal Tribunal has previously held that an application for leave to appeal will not normally be granted for a putative appeal from an interlocutory decision unless there is sufficient ground to doubt the correctness of the decision, and there would be substantial injustice if leave to appeal was not granted.
- However, the nature of this appeal, which requires careful regard to the human rights objectives enshrined in the AD Act, clearly merits granting leave to appeal, at least insofar as the first limb of the test for the granting of leave to appeal is concerned.
- In relation to the second limb of the test for leave to appeal, that being whether the Respondents can demonstrate a reasonably arguable case of error in the learned Senior Member’s decision below as well as reasonable prospects of substantive relief, it is most convenient to discuss this in conjunction with the substantive issues raised on appeal.
Metro South Hospital and Health Service should not have been restrained
- It is self-evident that the Second Respondent, Karen Leighton, could never have validly exercised any powers under the PS Act in her individual capacity. In this respect, the injunction granted by the Tribunal below was too broad, and should be set aside.
- In relation to Metro South Hospital and Health Service, this Appeal Tribunal must determine whether the exercise of discretion by the learned Senior Member in relation to s 144 of the AD Act was exercised according to law.
- The considerations for the granting of an injunction are settled at law:
- the applicant has made out a prima facie case, such that there is a probability the applicant may obtain the relief sought at trial; and
- the balance of convenience favours the granting of the injunction.
- The former President of the Tribunal, His Honour Justice Wilson, has previously cautioned against extending the common law principles of interlocutory applications ‘too far’, for the reason that applications for injunctive relief brought pursuant to s 144 of the AD Act are bought within a discreet statutory framework rather than under the common law.
- Putting these considerations within the context of s 144 of the AD Act, the Appeal Tribunal must consider whether the absence of a restraint in relation to the IME would prejudice the investigation or conciliation of Mr Luthje’s complaint, or any ultimate remedy ordered by the Tribunal.
- The Tribunal has granted injunctive relief previously in Jones v Queensland Health (‘Jones’), with the notable difference that in Jones, the employee had already been confronted with “ill-health retirement” under Part 7 of the PS Act.
- Here, the processes that an employer may undertake under the PS Act to determine whether an employee is fit have not progressed as far as they had in Jones. This is an important distinction, and the decision in Attrill is instructive in this regard.
- In Attrill, the employee had complied with a directive to attend an IME. The eventuating psychiatric report led to the employer asking the employee to show cause as to why she should not be retired, in having provisionally concluded that she could not be redeployed, transferred or rehabilitated successfully.
- Ms Attrill then applied to the Tribunal under s 144 of the AD Act for an injunction restraining the employer from continuing with the ill-health retirement until her complaint of discrimination could be heard. Ms Attrill’s application for an injunction was initially refused by the Tribunal. She appealed to the QCAT Appeal Tribunal, by which point in time her employment had, in fact, been terminated. The Appeal Tribunal determined, contrary to the decision of the Tribunal at first instance, that the provisions contained in Part 7 of the PS Act could operate in parallel with the AD Act.
- The QCAT Appeal Tribunal in Attrill recognised that being able to perform the genuine occupational requirements of a job was vital, and the IME process allowed an employer to assess this. If the employer, having received an IME report, then failed to consider what arrangements could be made prior to a retiring an employee, it would amount to unlawful discrimination. However, if the employer did consider making reasonable accommodations, and these could not be made without imposing unjustifiable hardship on the employer, retiring the employee would not be unlawful discrimination.
- In having made the application for the injunction prior to the IME taking place, Mr Luthje never allows Metro South Hospital and Health Service the opportunity to consider the genuine occupational requirements of his position through the proper lens of his actual (as opposed to surmised) health.
- Justice Holmes (as she then was), in writing the leading judgment in Attrill, explained that:
Thus, if s 175 permits a discriminatory exercise of power, the conclusion, inevitably, is that it cannot sensibly operate in conjunction with s 15. The result is that the provisions of part 7 must be taken to have impliedly repealed or excluded the operation of the provisions of the Anti-Discrimination Act so far as the exercise of power under s 175 is concerned. Consequently, whether or not one starts from the premise that requiring an employee to attend a medical examination is capable of amounting to discrimination under the Anti-Discrimination Act, the result must be the same: the exercise of power under s 175 is not subject to the prohibitions in the Anti-Discrimination Act.
The same is not true, however, for the exercise of power under s 178. There is no difficulty in reading that power as subject to s 15, because the Anti-Discrimination Act exemptions can work effectively in respect of its exercise. In considering what action to take upon receipt of a report which establishes that the employee’s absence or unsatisfactory performance is as a result of impairment, the chief executive can have regard to the fact that the employee’s continued employment would impose unjustifiable hardship or require special services or facilities, the supply of which would impose unjustifiable hardship. If the decision is made to continue the person in employment, reasonable terms may be fixed under s 34. The continued employment is subject to the employer’s entitlement to impose genuine occupational requirements.
- Although the Court of Appeal did not specifically address the interplay between s 144 of the AD Act and s 175 of the PS Act in Attrill, as Mr Luthje correctly points out, the end result must be the same. It is clear from Attrill that an employer should be given the opportunity to consider the IME, and to then take the appropriate action after considering what accommodations can be made once the medical report is at hand.
- Mr Luthje must allow the IME process to unfold. The Tribunal is cognizant that employees may be trepidatious about this process, seeing it as a mere stepping stone to their eventual retirement. However, the employer must be given an opportunity to consider making any possible accommodations that are needed, and which will not cause it unjustifiable hardship. If an employer fails to consider carefully its responsibilities, the IME report at hand, that may well be a factor that would be looked upon unfavourably by a Tribunal.
- It is also the case that once the report is at hand, any action taken by Metro South Hospital and Health Service will have crystalised, such that the Tribunal is not confronted with an injunction application in circumstances where it must then try to apply the balance of convenience test to a speculative set of parameters. Whilst it was in error for him to do so, one can readily see why the learned Senior Member considered Mr Luthje’s previous report by Dr Grey, there being a lack of any other tangible medical evidence available at the premature time of the application.
- This Appeal Tribunal accepts the Respondents argument that without it having considered the IME, the risk of termination could not be calculated by the learned Senior Member below. With a step-wise process such as that set out in Chapter 7 of the PS Act, each step must be taken in turn.
- Whilst an employee may believe they will be retired, and be proven correct following the IME, the employer must show its hand before injunctive relief can legitimately stop a legislatively enshrined process, which must balance the competing interests of ensuring public safety in the health system with individual rights of the employees serving it. Without an independent assessment of Mr Luthje’s ability to perform the genuine occupation requirements of an EEN, it remains to be seen whether or not his ability to perform his job has been compromised, or whether Metro South Hospital and Health Service can make any reasonable accommodations.
- For these reasons the IME, in and of itself, could not form a prejudicial basis upon which the Tribunal could grant injunctive relief pursuant to s 144 of the AD Act. The Respondents have, in my view, demonstrated that it was an error at law for the injunction restraining them from operating powers available to them under s 175 of the PS Act. I accept that it is clear at law that an interlocutory injunction can only be issued in aid of final relief.
- It would not be appropriate for the Tribunal to comment upon any injunction that may issue under s 178 of the PS Act at a future point in time, once the IME has been obtained.
- That said, while it is clear in my view that the Tribunal cannot restrain an employer from obtaining an IME under s 175 PS Act, Attrill expressly found that there was no difficulty with the powers available under s 178 PS Act from operating alongside the AD Act.
- For the reasons set out above, Metro South Hospital and Health Service and Karen Leighton are granted leave to appeal the 29 August 2014 decision of the Tribunal, and the orders prohibiting Metro South Hospital and Health Service and Karen Leighton from further exercising the powers under ss 174, 175 and 178 of the PS Act until Mr Luthje’s complaint could be heard and determined by the Tribunal, are set aside.
 For ease of reading, although the Respondents (Metro South Hospital and Health Service and Ms Leighton) are now the “Appellants”, they shall simply continue to be referred to collectively as “the Respondents”.
 Luthje v State of Queensland & Ors  QCAT 417 at .
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 142(3)(a)(ii).
 Pickering v MacArthur  QCA 294.
 Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577, 578 and 580.
 ABC v Lenah Game Meats Pty Limited (2001) 208 CLR 199.
  QCA 299 at .
 Attrill at .
 AD Act s 6.
 Ibid, Ch 2 Pt 4.
 McDermott v Chief Executive, Office of Liquor and Gaming Regulation  QCATA 65 at .
 Australian Broadcasting Corporation v O'Neill Laboratories Pty Ltd (2006) 227 CLR 57.
 McIntyre v Hastings Deering (Australia) Ltd & Anor  QCAT 438 at .
  QCAT 700.
 Attrill at -.
 ABC v Lenah Games Pty Ltd (2008) CLR 199 at .
- Published Case Name:
Metro South Hospital and Health Service & Leighton v Luthje
- Shortened Case Name:
Metro South Hospital and Health Service & Leighton v Luthje
 QCATA 145
22 Sep 2015