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- Unreported Judgment
Webb v Sunshine Coast Hospital and Health Service QCATA 20
Webb v Sunshine Coast Hospital and Health Service & anor  QCATA 20
Beverley June Webb
Sunshine Coast Hospital and Health Service
13 November 2015
Senior Member Stilgoe OAM
25 January 2016
APPEAL–ANTI–DISCRIMINATION – where complaint raised contentions of direct and indirect discrimination – where alleged discrimination on basis of presumed attribute of mental health – where complainant directed to attend independent medical examination – where complainant suspended from employment
Anti-Discrimination Act 1991 (Qld), ss 10 and 11
Public Service Act 2008 (Qld), ss 137 and 175
State of Queensland v Atrill  QCA 299
Tung v State of Queensland  QCAT 251 cited
AJH Morris of Queens Counsel, S Grant of Counsel with him, instructed by Corney & Lind
C Murdoch of Counsel instructed by Minter Ellison
REASONS FOR DECISION
- Beverley Webb worked as a pharmacist and then senior pharmacist at the Caloundra Hospital (part of the Sunshine Coast Hospital and Health Service) from 2005 until December 2012.
- Ms Webb took leave from her position from March 2012 to December 2012. Part of that leave related to a cancer diagnosis in 2011 and part related to a stress condition. The balance of the leave was annual leave and long service leave.
- On 9 March 2012, the Service, though its officer Kevin Hegarty, directed Ms Webb to attend an appointment with Dr Gary Larder, a psychiatrist, for an independent medical examination (IME). Ms Webb did not attend that appointment. Mr Hegarty directed Ms Webb to attend an IME three more times. She did not attend any of the IME appointments.
- In December 2012, Mr Hegarty suspended Ms Webb on full pay until he could be satisfied she was fit to return to work. Ms Webb has not returned to work.
- Ms Webb filed a complaint with the Anti-Discrimination Commission claiming that the directions to attend IMEs, and her suspension, were discriminatory and therefore prohibited under the Anti-Discrimination Act 1991 (Qld) (Anti-Discrimination Act). She also complained about other acts by the Service. She stated that, in requiring Ms Webb to commit to a rotation to Nambour Hospital, the Service proposed a term of employment that was discriminatory. Further Ms Webb stated that the Service improperly dealt with the question of her registration status.
- The Commission referred Ms Webb’s complaint to the tribunal. The tribunal dismissed Ms Webb’s complaint.
- Ms Webb wants to appeal that decision. Ms Webb states the tribunal erred in finding that an unlawful direction by the Service for her to attend the IMEs was irrelevant to a consideration of whether the direction offended the Anti-Discrimination Act. She similarly states that the tribunal erred in finding that an unlawful suspension was irrelevant to a consideration of whether the suspension offended the Anti-Discrimination Act. She states that the unlawful decisions of the Service infected all interactions between her and the Service. She states that, given the evidence before it, there was no reasonable basis for the tribunal’s findings. She states that the tribunal erred in finding that the requirement to consider a rotation was not discriminatory. She states that the tribunal erred in finding that the Service’s approach to her registration status was not discriminatory.
- We are satisfied that the questions raised by Ms Webb are questions of law and leave to appeal is therefore not required.
The referral to the IME
- The primary submission by Counsel for Ms Webb is that her treatment must have been discriminatory because her treatment was unlawful and the Service subjected no other employee to unlawful treatment. Counsel submits that, if the tribunal found the referral to an IME unlawful, and therefore discriminatory, then all acts that followed from that referral are also tainted and discriminatory.
- Counsel for Ms Webb submitted that the question for the tribunal’s determination was ‘what was the thought process behind Mr Hegarty’s decision?’ The essence of Counsel’s submission was that Mr Hegarty took action against Ms Webb because he was concerned about her mental health, not because he had workplace health and safety concerns. He submitted that Mr Hegarty confused the reason he sent Ms Webb to the IME with the potential consequences if he did not refer her to an IME. He submitted that it did not matter whether Mr Hegarty identified mental health concerns that prompted him to consider workplace health issues or whether Mr Hegarty identified workplace health issues that prompted him to be concerned about Ms Webb’s mental health. In Counsel’s view, the result was the same; Mr Hegarty unlawfully referred Ms Webb to an IME.
- The argument, although attractive, is overly simplistic.
- In her reasons for decision, the learned Member referred to the decision of the Court of Appeal in State of Queensland v Atrill. The learned Member identified that a decision to refer an employee to an IME can be discriminatory and that the Anti-Discrimination Act does not provide an exemption to a referral that is discriminatory. To this point, Counsel for Ms Webb cannot cavil with the learned Member’s decision.
- Earlier in her reasons for decision, the learned Member identified the test for determining whether there was discrimination under s 10 of the Anti-Discrimination Act. She adopted the test articulated in Tung v State of Queensland: what was the real reason for the actions by the Service? Again, Counsel for Ms Webb does not suggest that this is the wrong test.
- The learned Member accepted Mr Hegarty’s evidence that he referred Ms Webb to an IME because he had concerns about workplace health and safety. Counsel for Ms Webb takes issue with this finding. He submits that the finding is “surreal” because there is no evidence to support the learned Member’s finding. He points to the unlawfulness of Mr Hegarty’s decision as further evidence that the decision making process was discriminatory.
- Therefore, the real question for the appeal tribunal’s determination is whether the learned Member erred in finding that the real reason for Mr Hegarty’s actions was not Ms Webb’s mental state but his concerns for workplace health generally.
- Counsel for Ms Webb spent some time taking the appeals tribunal to those parts of the transcript that, he says, shows that Mr Hegarty could not have made his decision based on workplace health considerations. He directed the appeals tribunal to his cross-examination of Mr Hegarty. A careful reading of that section of the transcript shows that Mr Hegarty, eventually, did answer “yes” to a question that: ‘there may be a mental health issue’. That concession is one answer in a series of answers by Mr Hegarty, the effect of which is that he was exercising his duty of care, worried about the possibility of workplace health and safety issues. Contrary to Counsel’s submissions, we do not see that evidence as being a clear admission by Mr Hegarty that he issued the direction because of concerns about Ms Webb’s mental health.
- Contemporaneous documents reflect and confirm Mr Hegarty’s position. On 13 October 2011, Ms Webb wrote to Alyson Reynolds, Complaints Resolution Manager for the Service. She reiterated her reluctance to participate in a rotation to Nambour Hospital and then wrote of bullying behaviour towards her. At the bottom of that letter, Ms Webb wrote:
Further more (sic) this bullying has not only been directed to me but also to other co-workers. The result is a dysfunctional and clinically dangerous workplace with many dispensing errors being made. The stress impacted upon these employees, including myself, to work in Nambour has the potential for a major clinical mistake.
For this reason, I am forwarding a copy of the above allegations to the Workplace Health and Safety Unit.
- Ms Webb squarely raised the issue of workplace health and safety in that letter. The Service responded to that letter by asking Ms Webb’s permission to contact her treating doctors to discuss her medical condition. Ms Webb did not give consent but she provided a letter from Dr Tan. The letter from Dr Tan addressed the stress of the rotation but it does not address the issue of workplace health and safety that Ms Webb raised.
- Mr Hegarty responded to the report from Dr Tan in a letter to Ms Webb dated 9 March 2012. Mr Hegarty acknowledged Ms Webb’s concerns about the rotation: ‘the District continues to work with you regarding the rotations’. He then recites information he has received that give him concerns about Ms Webb’s ability to work generally. He notes the Service has an obligation to provide a safe place of work and then advises that, because of this duty, he needs further information about the extent of Ms Webb’s condition and her ability to perform her work safely.
- Counsel for Ms Webb points out, correctly, that there was no evidence of complaints about Ms Webb’s performance, no evidence of other staff requiring time off because of Ms Webb’s actions, no evidence of the impact of Ms Webb’s presence on her colleagues and no evidence of any risk to Ms Webb herself through her usual duties at Caloundra Hospital. Those submissions, however, do not acknowledge that the grounds for the IME were workplace health and safety concerns that came to the attention of the Service through Ms Webb’s own assertion that the workplace was clinically dangerous. The Service was entitled, and obliged, to explore that allegation.
- The evidence can support the learned Member’s finding that the real reason for Mr Hegarty’s decision to refer Ms Webb to an IME was workplace health and safety concerns. The learned Member’s findings were not, therefore, “surreal”.
- Counsel for Ms Webb submitted that Mr Hegarty, and therefore the tribunal, confused the reason for sending Ms Webb to the IME with the potential consequences of not sending Ms Webb to the IME.
- We disagree. In fact, Counsel’s submissions about the unlawfulness of Mr Hegarty’s action appear to do that very thing: because the consequence of the decision was unlawful, the reason for the decision is tainted and, therefore, must be discriminatory. The learned Member correctly focussed her decision on the reason for the referral, not the consequences.
- Counsel for Ms Webb submitted that the tribunal was not entitled to proceed on the assumption that an employer acts unlawfully towards all its staff. There is no evidence that the learned Member did act on this presumption. Instead, she applied the test for direct discrimination under the Anti-Discrimination Act.
- Atrill is clear authority for the proposition that the power to issue directions under the Public Service Act 2008 (Qld) (Public Service Act) is a separate consideration from whether the exercise of that power is discriminatory. Mr Hegarty may not have validly exercised his power under the Public Service Act. The Act provides Ms Webb with a right to appeal that decision. She was aware of her appeal rights but she chose a different path. If Ms Webb wanted to contest the validity of Mr Hegarty’s direction, a complaint to the Anti-Discrimination Commission was not the appropriate action. We agree with the learned Member that whether the direction was unlawful was not a relevant consideration.
- Mr Hegarty’s decision to refer Ms Webb to an IME may not have been the best response to Ms Webb’s predicament. Again, that does not mean that his action was discriminatory. Ms Webb failed to persuade the learned Member that Mr Hegarty treated Ms Webb, with her attribute, less favourably than he treated a person without that attribute. The learned Member was not in error.
Ms Webb’s suspension
- Counsel for Ms Webb advanced similar arguments in relation to Ms Webb’s suspension; that the suspension was unlawful and that learned Member erred in deciding that whether or not the referral was unlawful was irrelevant.
- Counsel for Ms Webb submits that the suspension was unlawful on two bases: firstly, because it relied upon the unlawful direction to the IME and secondly, Mr Hegarty lacked power to give the direction. Counsel for Ms Webb submitted that the unlawful nature of the suspension automatically meant that the suspension was discriminatory.
- Once again, Counsel for Ms Webb took the appeal tribunal through the evidence to demonstrate that Mr Hegarty unlawfully directed the suspension. Counsel submitted that Mr Hegarty did not turn his mind to the basis of the power to suspend, that he probably thought he was suspending Ms Webb under his workplace health and safety obligations but that, once the Service’s lawyers were involved, the grounds for the suspension were expressed to be s 137 of the Public Service Act. Counsel for Ms Webb suggests that this evidence proves the unlawful nature of the direction and, therefore, the discriminatory conduct.
- For the reasons we have already given, we do not agree that the learned Member erred in finding that discrimination and unlawfulness are separate issues, and that unlawfulness of an action is irrelevant to a decision about whether it was also discriminatory. However, to the extent that it matters, the evidence to which we were directed confirms the correctness of the learned Member’s decision. The reason (as opposed to the source of power) for Mr Hegarty’s decision to suspend Ms Webb were his concerns about workplace health and safety.
- Again, the learned member found there were a number of reasons why Mr Hegarty sought to have Ms Webb suspended. Mr Hegarty had regard to Ms Webb’s complaints of work place bullying and harassment. He considered her concerns about stress in the workplace. He considered Mr Webb’s concerns about his wife’s wellbeing because of work place issues. He had regard to reported distress from other staff about working with Ms Webb and her requests for information and references from them leading to welfare and safety issues in the work place. He considered Ms Webb’s non-compliance with the IME and his inability to ascertain the true nature of Ms Webb’s medical condition.
- We note, again, that Ms Webb had other avenues available to challenge the lawfulness of the suspension. She did not choose to take that path.
Requiring Ms Webb to engage in an on-call roster
- Counsel for Ms Webb takes issue with the learned Member’s finding the Service did not indirectly discriminate against Ms Webb. He submits that the learned Member’s finding that on call roster was only mentioned in correspondence in the context of asking about Ms Webb’s ability to participate in the roster was an error. He submits the evidence before the tribunal made it clear that participation in the on-call roster was a requirement imposed on all pharmacists.
- At the hearing, Counsel for Ms Webb submitted that the learned Member misapplied the test in s 11 of the Anti-Discrimination Act because she found that participation in the on call roster was not a term of employment. In fact, the learned Member assumed that it was a term of employment, or a proposed term, because she then considered whether the imposition of the term was reasonable. That question can only arise if there has been a determination that there is a proposed term, Ms Webb could not comply with it because of her attribute, and a higher proportion of people without the attribute can comply with the term.
- Counsel for Ms Webb also submitted that the imposition of the term was not reasonable because it ensured that people who could not comply with the term would not be offered the opportunity for advancement.
- It is true that the letter from Mr Hegarty to Ms Webb dated 9 March 2012 states: “’…the District was looking at introducing changes to the Pharmacy Service which have included having employees rotate to different facilities within the District’. However, the purpose of the proposal is revealed in Mr Hegarty’s letter to Dr Larder:
…the District proposed a rotational system for the pharmacy service which was intended to enhance service delivery to patients and further develop and up-skill pharmacy employees by providing them with exposure to other pharmacy area and acute care environments.
- Ms Webb focussed on the District’s stated desire to develop and up-skill pharmacy employees, applied that desire to her own circumstances and immediately saw discrimination. Contrary to her own statement, Ms Webb did not recognise that she had chosen an alternative pathway to promotion through post-graduate study. She did not recognise that the rotation might be required to enable other staff members the opportunity to work at Caloundra to improve their skills. She did not recognise that her enhanced skills may have enhanced service delivery to patients at hospitals other than Caloundra or that she might have been in a position to mentor other staff. It cannot be said, therefore, that the proposed term was unreasonable because the consequences of the failure to comply with the term affected Ms Webb’s advancement opportunities. The evidence can support the learned Member’s assessment that the imposition of the proposed term was reasonable.
- Counsel for Ms Webb then submits that the proposed term was unreasonable because staff could be required to add 200 km and 2 hours per day to their commute. He submits that, when a person has a medial basis for not undertaking such travel, the proposed term is discriminatory.
- The argument is theoretical. There is no evidence that Ms Webb would be required to travel 200 km per day and add 2 hours to her commute. The Service did not know whether Ms Webb was capable of such a commute because she refused to submit to an IME. The tribunal was not required to speculate about such matters.
- There is no error.
Issuing a show cause notice in relation to Ms Webb’s registration as a pharmacist
- Counsel for Ms Webb submitted that, because the referral to the IME and Ms Webb’s suspension were unlawful, the Service’s conduct in asking Ms Webb to show cause about her registration was discriminatory.
- We have already dealt with the issue of the unlawfulness of the IME and suspension “infecting” the balance of the Service’s decision. It is not necessary to cover that ground again.
- The normal process of confirming registration is for an employee’s line manager to confirm her registration status. Because Ms Webb had been suspended, she was not at work and, therefore, her line manager could not follow up the inquiry. Consequently, the Service asked the People and Culture section of the service to follow up Ms Webb’s registration. That section did so by way of a show cause letter.
- Counsel for Ms Webb submits that the process was discriminatory because it would not have occurred in the absence of discriminatory conduct.
- An employee may be absent from work for a number of reasons. If the issue of registration arises during the employee’s absence, for whatever reason, then it follows that the Service cannot follow up that registration issue through a line manager. A show cause notice might be issued to any employee who is absent from work and whose registration status is questioned.
- The learned Member was not satisfied that the decision to send the show cause notice was based on Ms Webb’s attribute. The evidence can support that finding and we can find no reason to come to a contrary view.
- The appeal is dismissed.
 Webb v Sunshine Coast Hospital and Health Service & Anor  QCAT 031 at  to .
  QCA 299.
  QCAT 251.
 Supra at .
 Supra at .
 Transcript page 2-59 line 45 to page 2-60 line 20.
 Transcript page 2-60, line 20.
 Letter Ms Webb to Mr Hegarty 17 February 2012.
 Reasons for decision at .
 Reasons for decision at , .
 Reasons for decision at ,  and .
 Reasons for decision at .
 Reasons for decision at , .
 See for example reasons for decision at .
 Reasons for decision at .
 Affidavit Beverley June Webb sworn 22 August 2014 at .
- Published Case Name:
Beverley June Webb v Sunshine Coast Hospital and Health Service and Kevin Hegarty
- Shortened Case Name:
Webb v Sunshine Coast Hospital and Health Service
 QCATA 20
Senior Member Stilgoe, Member Gardiner
25 Jan 2016