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- Unreported Judgment
State of Queensland v Briant QCATA 50
State of Queensland & Ors v Briant  QCATA 50
State of Queensland
(First Appellant/First Respondent)
(Second Appellant/Second Respondent)
(Third Appellant/Third Respondent)
(Fourth Appellant/Fourth Respondent)
24 August 2015
Senior Member Brown
29 April 2016
ANTI – DISCRIMINATION – complaint of unlawful workplace discrimination based on impairment – where registered nurse not capable of working afternoon and evening shifts due to medical condition – direct and indirect discrimination
Anti-Discrimination Act 1991 (Qld), ss 10, 11, 15, 23, 25, 124, 133, 147 and 204
Disability Discrimination Act 1992 (Cth), ss 5, 6
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 142, 147
Briant v State of Queensland and Ors  QCAT
Cachia v Grech  NSWCA 232
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261
Hurst and Devlin v Education Queensland  FCA 405
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Purvis v New South Wales (Department of Education & Training) (2002) 117 FCR 237
Purvis v New South Wales (Department of Education and Training (2003) 217 CLR 92
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41
Sol Theo as Trustee v Birrer  QCATA 344
State of Queensland v Che Forest (2008) 168 FCR 532
APPELLANT / RESPONDENT:
Ms K. Philipson of Counsel, instructed by Ms C. McPherson, Crown Law for the State of Queensland, Kathy Hartland, Leona Bowers and Lorraine Mathison
RESPONDENT / APPELLANT:
Melanie Briant represented herself
REASONS FOR DECISION
- This matter involves two separate appeals. The first appeal is by the State of Queensland. The State of Queensland operates the Alpha Hospital. Kathy Hartland, Leona Bowers, and Lorraine Mathison are employed by the State of Queensland. Other than where we refer to the appellants individually, they will be collectively referred to as the appellants. The second appeal is by Melanie Briant who we will refer to by name or as the respondent.
- Ms Briant was employed as a registered nurse by the State of Queensland at Alpha Hospital Queensland from 8 November 2010 until 21 February 2013. She was employed on a permanent part-time basis, working 48 hours per fortnight.
- Ms Briant suffers from neuromas in both feet which results in chronic neuropathic pain. The pain is more significant in the afternoon and evening. As a result, in her employment at the Alpha Hospital, Ms Briant suffered increased pain on afternoon and night shifts.
- Ms Briant complained that as a result of notifying her employer of her impairment, discriminatory action was taken against her:
- She was not re-appointed to an acting clinical nurse role
- She was the subject of requests for medical information
- She was required to work all shifts in a 24 hour roster
- She was rostered on to afternoon shifts
- She was required to undertake a trial of employment as a clinical nurse at Jericho Spiritus Clinic (Jericho)
- She was prohibited from swapping shifts
- Ms Briant also said that her employer failed to apply the Queensland Health “Reasonable Adjustment Policy”.
- Ms Briant claimed that her employer’s conduct amounted to direct discrimination in breach of s 10 of the Anti-Discrimination Act 1991 (Qld) (ADA) and indirect discrimination in breach of s 11 ADA. She alleged that in breach of s 15 ADA she was discriminated against in the area of work.
- Ms Briant alleged that her employer by its employees (the second, third and fourth appellants) made unlawful requests for information within the meaning of s 124 ADA through their request for medical reports and that she was victimised within the meaning of s 129 and s 130 ADA.
- Ms Briant also contended that her employer breached the Work Health and Safety Act 2011 (Qld) and breached her contract of employment.
- The appellants denied Ms Briant’s allegations and relied on s 24 and s 25 ADA.
- It was uncontentious that the parties were bound by certain terms of employment and workplace policies. Those were the “General Terms and Conditions of Employment”, the “Reasonable Adjustment Human Resources Policy” (Effective Date July 2008) and the “Workplace Rehabilitation and Return to Work Policy”.
- On 24 November 2014, the Tribunal determined that the State of Queensland was liable for direct discrimination of Ms Briant in not re-appointing her to the role of Acting Clinical Nurse (ACN) when her contract expired on 5 August 2012. The Tribunal found that Ms Briant had not made out her other claims for direct and indirect discrimination.
- The Tribunal ordered the State of Queensland pay to Ms Briant the sum of $7,000.00 as compensation for hurt and humiliation. The Tribunal otherwise dismissed Ms Briant’s complaints of discrimination.
Application to appeal and for leave to appeal
- The relevant principles to be applied in determining whether to grant leave to appeal are well established: Is there a reasonably arguable case of error in the primary decision; Is there a reasonable prospect that the applicant will obtain substantive relief; Is leave necessary to correct a substantial injustice to the applicant caused by some error; Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.
Both appeals raise questions of law, questions of fact and questions of mixed fact and law.
The Appellants’ appeal
Grounds 1, 2, 3 and 7 – Appropriate comparator and less favourable treatment
- The appellants say that:
- The Tribunal erred in law in that it acted on a wrong principle and misapplied s 10 ADA and the tests in Purvis v New South Wales (Department of Education and Training), in determining an appropriate comparator and the issue of less favourable treatment.
- The Tribunal erred in law in that it misapplied s 10 ADA and the tests in Purvis in determining that Ms Briant was treated less favourably than the identified comparators and was subjected to unlawful direct discrimination by the appellants.
- The Tribunal erred in fact in that it deemed Ms Bowers and Ms Gayle Donaldson appropriate comparators for the purposes of s 10 ADA, and appeared also to deem Ms Leslie Delandelles an appropriate comparator, despite the evidence demonstrating that Ms Bowers, Ms Donaldson and Ms Delandelles did not possess the attributes identified by the Tribunal as being necessary to constitute appropriate comparators.
- The Tribunal erred in law in determining Ms Briant’s application when there was no evidence before it that Ms Briant was treated less favourably than a proper comparator and/or that such comparator was treated more favourably than Ms Briant.
- Ms Briant says that the comparators identified by the learned member were appropriate on the basis that the relevant circumstances do not have to be identical, merely similar. She says that the similar circumstances identified by the Tribunal were nursing staff, in particular clinical nurses or acting clinical nurses or Ms Bowers, who were appointed by the State of Queensland to be available 24 hours a day and in particular available at night.
- Ms Bowers was employed as Director of Nursing. Lesley Delandelles was employed at the hospital as a clinical nurse. Gayle Donaldson was employed at the hospital as a registered nurse and had also been an ACN.
- Ms Briant says that Ms Bowers was an appropriate comparator. She says that in her position, Ms Bowers was required to be available 24 hours a day.
- Ms Briant says that Ms Bowers, Ms Delandelles and Ms Donaldson were all unable to be on call at night and that such inability was accommodated by the employer. In contrast, says Ms Briant, her inability to be on call at night was not accommodated.
- As to the appellants’ contention that the appropriate comparator was a registered nurse who did not have chronic pain arising out of foot neuromas and who was acting in a temporary higher duties position, Ms Briant says that such a comparator is inappropriate for the following reasons:
- She had filled the higher duties position for more than 12 months continuously covering numerous temporary contracts;
- There was no other staff member suitable to fill the position;
- The timing of her non re-appointment;
- The position was left vacant despite Ms Briant being qualified and clinically able and despite her having filled the position for more than 12 months;
- The chance of a night call-out was negligible;
- The evidence of the appellants was that a substantial reason for Ms Briant’s non-appointment was based upon her impairment;
- Ms Briant continued to undertake the additional duties of an ACN;
- Ms Briant was able to safely undertake the on-call component of the ACN position.
- Ms Briant says that Ms Donaldson continued in the role of an ACN despite being unable to be on call at night whereas she did not, thereby evidencing her less favourable treatment.
Did the learned member err in formulating the comparator?
- It was incumbent on Ms Briant to establish that she received less favourable treatment than a person without her particular impairment, utilising a comparator analysis, and keeping the circumstances surrounding the treatment the same as, or similar to the circumstances surrounding the treatment in the actual situation and that the alleged less favourable treatment was because of her impairment.
- The learned member found that the appropriate comparator ‘must be a nurse employed by the First [Appellant] who does not have chronic pain arising out of foot neuromas, but who is unable to work afternoon or night shifts’. Further, it was found that the circumstances in which the comparison was to be undertaken must be the same as those complained about by Ms Briant, relevantly to the appellants’ appeal, being ‘re-appointment as an Acting Clinical Nurse use of an on-call roster’.
- Ms Briant says that the learned member’s determination of the appropriate comparator was correct.
- The appellants say that the appropriate comparator is a registered nurse who did not have chronic pain arising out of foot neuromas, who was acting in a temporary higher duties position.
- In considering the application of s 10 ADA, the first step is to identify the appropriate comparator. The comparator is a person without the disability. The second step is to undertake a comparison of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability ‘in circumstances that are the same or are not materially different’.
- The terms of s 10 ADA are not materially different from the terms of the Disability Discrimination Act considered by the High Court in Purvis. The learned member identified the comparator as a nurse employed by the State of Queensland, who did not have chronic pain arising out of foot neuromas but who was unable to work afternoon or night shifts.
- In our view, the learned member erred in formulating the comparator. In Ms Briant’s circumstances, the correct comparator was a registered nurse who did not have Ms Briant’s impairment, being chronic pain arising from foot neuromas. The issue of whether the comparator could work afternoon or evening shifts was relevant to the circumstances in which the comparison was to be undertaken but was not relevant to the formulation of the comparator.
- Once the comparator was identified then the treatment given to Ms Briant and the treatment given to a person without the impairment was required to be compared in circumstances that were the same or not materially different.
- As the High Court observed in Purvis:
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 (or to be given) to that disabled person 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 circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude …from consideration some of these circumstances because they are identified as being connected with that person’s disability. … All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
- Ms Briant was a registered nurse who was also an ACN. The fact that she was acting temporarily in the role, and her inability to work afternoon or night shifts, formed part of the relevant circumstances required to be identified.
- The learned member identified three people as comparators: Ms Leona Bowers, the Director of Nursing (a permanent position); Ms Gayle Donaldson who had been appointed ACN at various times; and Ms Leslie Delandelles.
- In considering the treatment of the comparator, the learned member found:
- Ms Briant gave evidence that she acted up in the Acting Clinical Nurse role and was engaged in periods of 2 to 3 months at a time, totalling more than 1 year from 25 July 2011 to 5 August 2012, although she was not required to sign engagement forms on a number of occasions. Part of her role as Acting Clinical Nurse was to be on call for night work, including to accompany the Ambulance to incidents in the District.
- Relevant to the question of how a comparator would be treated in these circumstances, Ms Bowers acknowledged that another Acting Clinical Nurse Gayle Donaldson was not required to be on call because she lived 80 kilometres away and similarly with Ms Delandelles who lived at Jericho. Ms Bowers also acknowledged that when she herself was injured she was unable to go out at night for a 3 month period and that arrangements were made to cover her.
- On the basis of Ms Bower’s evidence, I find that there was no refusal to reappoint Acting Clinical Nurse Gayle Donaldson because of her inability to be on call. Ms Donaldson is an appropriate comparator. Ms Bowers is in a slightly different position because of her permanent status as Clinical Nurse, however, she was not removed from her Clinical Nurse role because of her injury and an inability to work night shift and to be on call. I consider there is sufficient evidence that the comparators were treated differently to Ms Briant in circumstances that are not materially different.
- It is uncontentious that Ms Bowers held the permanent position of Director of Nursing. Ms Briant was acting in a temporary role. Any treatment of Ms Bowers is not an appropriate comparison with the treatment of Ms Briant. The circumstances of Ms Briant and Ms Bowers were materially different. The learned member erred in finding that Ms Bowers was an appropriate comparator.
- Ms Delandelles held the position of clinical nurse. There was evidence in the rosters that Ms Delandelles was rostered on evening shifts. Ms Bowers’ uncontested evidence was that Ms Delandelles was available and able to be on call. Any treatment of Ms De Landelles is not an appropriate comparison with the treatment of Ms Briant given that the circumstances pertaining to Ms Delandelles and Ms Briant were materially different. The learned member erred in finding that Ms Delandelles was an appropriate comparator.
- Ms Gayle Donaldson was appointed ACN during broken periods over 12 months ending in November 2012. There was no evidence before the learned member that Ms Donaldson was unable to work afternoon or night shifts. There was evidence in the rosters for 28 May 2012 to 24 June 2012 that Ms Donaldson was rostered on such shifts. The learned member erred in finding that Ms Donaldson was an appropriate comparator.
- The learned member erred in finding that Ms Briant was treated less favourably than Ms Donaldson, Ms Bowers and Ms Delandelles. The learned member did not apply the appropriate comparator nor compare the treatment of others in the same or not materially different circumstances in finding that the appellants had beached s 10 ADA. The learned member erred in identifying particular employees as appropriate comparators.
- The errors we have found are of fact and mixed fact and law. Leave to appeal is granted. Accordingly we will proceed pursuant to s 147(2) of the QCAT Act to re hear the matter. We are of the view that additional evidence is not required to enable us to decide the matter and the matter can be determined on the evidence before the learned member.
- In the absence of an identified comparator, could a hypothetical comparator be identified? The Full Court of the Federal Court observed, in considering s 5 of the Disability Discrimination Act:
It is difficult to illustrate the comparison called for by s 5 by way of a wholly hypothetical example, as it involves a comparison of treatment by the particular alleged discriminator, and requires findings of fact as to the particular disability, as to how the alleged discriminator treats or proposes to treat the aggrieved person, and as to how that alleged discriminator treats or would treat a person without the disability. The task is to ascertain whether the treatment or proposed treatment is based on the ground of the particular disability or on another (and non-discriminatory) ground. There must always be that contrast. To be of any value, the hypothetical illustration must make assumptions as to all factual integers.
- In the absence of an actual comparator it is necessary to consider what the evidence was before the learned member relevant to the treatment of a hypothetical comparator.
- The evidence of Ms Bowers, which was accepted by the learned member, was that the requirements of the role of a clinical nurse were an ability to work a 24 hour shift which obviously included afternoon and evening shifts, to be available to be on call and an ability to be called out to assist with the 24 hour ambulance service.
- The circumstances, relevant to the non reappointment of Ms Briant, by reference to which the comparison was to be undertaken were:
- Ms Briant was acting temporarily in the role as ACN
- Ms Briant was unable to work afternoon or night shifts
- Ms Briant was required to be on call and able to undertake call outs with the ambulance.
- There was no direct evidence before the learned member as to what the treatment of the hypothetical comparator would have been. To undertake the comparison between the treatment of Ms Briant with the treatment of a hypothetical comparator required findings of fact by the learned member.
- As a self-represented litigant it is understandable that Ms Briant’s approach to the formulation of the comparator did not involve a detailed consideration and application of s 10 ADA and the relevant legal principles. Much of Ms Briant’s focus was upon the aspects of the acting clinical nurse role involving the requirement to be on call to undertake call outs with the ambulance.
- The evidence before the learned member was that approximately 10 weeks prior to the expiration of her term as acting clinical nurse, Ms Briant notified her employer of her disability and the impact it had upon her ability to undertake her work duties. Ms Briant’s evidence was that the subsequent requirement by her employer to work afternoon and night shifts increased the pain she was experiencing and was against medical advice, including the strong advice of a specialist physician.
- The evidence of Ms Briant was, effectively, that she could not work afternoons and evenings on the basis that this exacerbated her pain.
- Ms Briant did not argue her case before the learned member by reference to a hypothetical comparator. Rather, as the evidence unfolded it was clear that Ms Briant relied upon the appellant’s treatment of specific employees as evidencing the different and discriminatory treatment that she received.
- As we have found, the employees identified by the learned member were not appropriate comparators. The comparator was therefore a hypothetical one. That hypothetical comparator was a person without Ms Briant’s disability, acting in a temporary ACN role, who was unable to work afternoon and evening shifts. Was there evidence before the learned member that Ms Briant was treated less favourably than such a person? As we have observed Ms Briant did not present her case by reference to the requirements of s 10 ADA nor did the learned member give consideration to the treatment of a hypothetical comparator. There was no direct evidence led of how a hypothetical comparator would have been treated. The evidence was limited to the (incorrectly identified) comparators.
- Ms Briant was required to prove her complaint on the relevant civil standard. She was required to adduce evidence that would enable the Tribunal to undertake a comparison of the treatment by the appellants, to make findings of fact as to Ms Briant’s disability, and to make findings in relation to how the appellants treated Ms Briant and how the appellants would have treated a person without the disability.
- There was evidence before the learned member as to the nature and extent of Ms Briant’s disability and how she was treated by the appellants. There was however, in our view, insufficient evidence to make any findings that Ms Briant was treated less favourably than the hypothetical comparator.
- In our view Ms Briant failed to establish that her treatment was less favourable than an appropriate comparator as required by s 10(1) ADA. Accordingly, we find that Ms Briant’s complaint of direct discrimination should be dismissed.
- Based on the findings we have made, it is unnecessary for us to consider the remaining grounds of appeal.
Ms Briant’s appeal
- Ms Briant says that the learned member erred by not making a finding on her objection to transcripts of conversations which she says were surreptitiously recorded. This ground appears to be based upon Ms Briant’s view that file notes of conversations she had with Ms Bowers and Ms Hartland were sufficiently detailed as to lead to the conclusion that the conversations had been recorded and the file notes were effectively a transcript.
- This matter was dealt with by the learned member at the hearing. There is no evidence relied upon by Ms Briant that the conversations were recorded. This ground of appeal is not made out.
- Ms Briant says that the Tribunal failed to make a finding of direct discrimination on the basis that she was directed to work against the strong advice of a specialist physician.
- The essential thrust of Ms Briant’s submission is that her employer acted unreasonably and in a discriminatory way, breaching its workplace health and safety obligations to her, thereby exposing her to risk of injury. The learned member found that the substantial reason for Ms Briant being required to work the relevant assigned shifts was the implementation by the employer of the equitable rostering policy.
- The learned member found that while Ms Briant was treated less favourably than the comparators she was not treated less favourably because of her impairment. The learned member found:
- I am unable to conclude that Ms Briant was treated less favourably because of her impairment. The evidence reveals that Ms Briant’s request for relief came at a time when Ms Mathison was determined to impose a requirement on all staff to work afternoon and night shifts as a regular part of their roster in order to achieve equity in rostering practices. Her evidence was that she was responding to complaints in the District about inequitable allocation of night shifts and that at a meeting of District Directors of Nursing held in March, 2012 she required them to all produce rosters which equitably distributed shifts across the 24 hour roster.
- I accept the evidence of the Respondents as to their attitude to rostering Ms Briant onto afternoon and night shifts and find that what resulted was a rigid determination on the part of the Respondents for Ms Briant to work all shifts across the 24 hour roster.
- This ground of appeal is not made out.
- Ms Briant says that the learned member erred in failing to find that she had been dismissed in breach of s 15(1)(c) ADA.
- Ms Briant says that she was left with no option other than to resign her employment with Queensland Health because of the consequences of the discriminatory conduct. Whilst the submission is unclear, it appears that Ms Briant relies upon some form of constructive dismissal. Again, whilst not expressed as such, Ms Briant appears to be saying that the cumulative effect of the behaviour of her employer was to leave her with no option other than to resign.
- Ms Briant led no evidence at the hearing that she had been dismissed from her employment. The evidence before the learned member was that Ms Briant resigned from her employment. The learned member dealt with Ms Briant’s argument that she had no option other than to resign in considering the issue of victimisation and the ‘shift swapping’ claim. The learned member said:
Ms Briant says that it was alleged she “gave” her shifts to Mr Briant and that she was being paid for shifts performed by Mr Briant. Mr and Mrs Briant strenuously deny this allegation. Ms Briant says the allegation was made prior to the Anti-Discrimination conciliation conference. She asserts that the allegation is victimisation as a consequence of her complaint to the Anti-Discrimination Commission on 20 November 2012. Ms Briant says that she had no option but to resign in the face of the allegation. No evidence was called by the [Applicant] in support of the allegation.
The issue was raised with Ms Mathison in cross-examination. It was put to her that the allegation Ms Briant gave her shits to her husband, was made in order to force her to resign. It was suggested the making of the allegation amounted to bullying, harassment and victimisation. Ms Mathison denied this was the case and said that if Ms Briant felt aggrieved she could have lodged a grievance pursuant to the grievance resolution procedure.
… I find that Ms Mathison intended the matter to be dealt with as a performance issue with access to the grievance procedure for Ms Briant. I am unable to find that lodgement of the Complaint caused the allegation to be made.
- The learned member clearly set out the evidence which she accepted and the findings she made on that evidence. We see no error in the reasoning of the learned member. This ground of appeal is not made out.
- Ms Briant says that the learned member erred in asking ‘why Ms Briant was treated in the way she complains, to determine if her treatment was “based on” her impairment.’ Ms Briant says that the question the learned member should have asked was ‘was the attribute a substantial reason for the treatment.’
- The submission by Ms Briant does not go any further towards illuminating what Ms Briant says the error was by the learned member or what she says were the consequences flowing from any such error.
- Ms Briant does not point to any aspect of the learned member’s reasons which reveal an incorrect application of the relevant provisions of the Act. The learned member set out the issue for determination thus: ‘whether there was less favourable treatment “on the basis” of Ms Briant’s impairment’; she explained why that was required; and she set out the analysis of that issue by reference to relevant legal authority. The learned member’s reasons do not reveal that she confined herself to determining whether Ms Briant’s impairment was the sole reason for the less favourable treatment. The learned member’s reasoning at  of the reasons reflects no error nor that the learned member misdirected herself in determining Ms Briant’s claims of direct discrimination.
- This ground of appeal is not made out.
- Ms Briant says that the learned member erred in making the following findings:  that Ms Briant was not treated less favourably because of her impairment;  the substantial reason for Ms Briant’s treatment did not relate to her impairment but rather to the regularisation of the rosters to ensure that Ms Briant worked all shifts in the 24 hour roster;  rostering of Ms Briant on afternoon and night shifts was because of the direction to create equitable rosters;  not making a finding of direct discrimination when Ms Briant was rostered to afternoon and night shifts;  that Ms Briant’s unfavourable treatment was as a result of the employer’s desire to impose equitable rosters;  that Ms Briant had not been directly discriminated against as a result of the failure to apply the Reasonable Adjustment Policy;  the reason for Ms Briant being requested not to swap shifts with her husband was as a result of the imposition of a requirement to work afternoon shifts.
- What Ms Briant contends for, although not expressed in such terms, is that the learned member should have preferred Ms Briant’s evidence to the evidence of other witnesses and/or that the weight of the evidence did not support the findings made by the learned member.
- A factual conclusion cannot be treated as an error of law unless it is supported by no evidence, or unless it is clear beyond serious argument that it is wrong. It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should have received. Findings of fact will not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.
- The learned member made a number of relevant findings on the facts:
- The employer had a ‘rigid determination’ for Ms Briant to work all shifts across the 24 hour calendar;
- All nurses at Alpha Hospital were required to work all shifts;
- Ms Hartland was fixed on achieving an equitable roster;
- Ms Mathison directed the Directors of Nursing to go back to their facilities and explain the introduction of equitable rosters;
- Ms Bowers rostered in accordance with Ms Mathison’s direction.
- Ms Briant makes extensive reference to the “Rostering Framework,” however it is unclear whether what she is saying is that the learned member erred in not placing sufficient weight on the document.
- Ms Briant says that the learned member’s findings are flawed. She says the evidence led by the appellants was that Ms Briant’s treatment had nothing to do with equitable rostering. Ms Briant says that the only reason she was treated unfavourably by her employer was as a result of her disclosure of the medical condition in the letter of 30 May 2012.
- Ms Briant says that if the imposition of the equitable rostering policy was the reason for her unfavourable treatment, then there would not be evidence of many other examples of other staff not working all shifts across the roster.
- The findings which Ms Briant relies upon as being erroneous relate to the imposition by Ms Briant’s employer of the equitable roster policy. The learned member found that Ms Briant had been treated unfairly and unfavourably not as a result of her impairment but as a result of the imposition of the equitable rostering policy.
- The evidence before the learned member was that Ms Mathison was aware of complaints that the rosters were inequitable including complaints to the union. The evidence was that Ms Mathison conducted a review of the rosters in the six month period following her appointment and that this led to the meeting Ms Mathison had with the Directors of Nursing and some nurses responsible for rostering in larger facilities at which she communicated the directive to implement the equitable rostering policy. The evidence before the learned member was that Ms Bowers stated that she had permitted inequitable rostering practices to occur and had taken steps to change the rostering patterns to prevent inequitable rosters.
- Whilst Ms Briant may take issue with the learned member’s findings that the introduction of the equitable rostering policy led to her unfavourable treatment, it was open to the learned member to make the findings on the evidence before her. What Ms Briant is seeking to do is to re-agitate the evidence. An appeal is not an opportunity for an unsuccessful party to have a re-trial.
- There was no error by the learned member.
- This ground of appeal is somewhat difficult to understand. Ms Briant makes no reference to any specific finding by the learned member. We understand Ms Briant to argue that in the face of the contention by the appellants that it was ‘reasonably necessary to protect the health and safety of people at a place of work within the meaning of s 108 ADA’ and the first appellant’s knowledge as at 5 August 2012 that Ms Briant wished to be exempt from working afternoon and night shifts because of her medical condition, the learned member should have accepted from that point on that any treatment of Ms Briant was due to her impairment.
- The substance of this ground has already been dealt with in our consideration of grounds 2 to 5 (inclusive). This ground of appeal is not made out.
- Ms Briant says that no meeting was held by Ms Mathison in March 2012 with Directors of Nursing and nurses responsible for rostering. It is unclear whether Ms Briant disputes that the meeting occurred at all, or that what is disputed is what occurred at the meeting.
Grounds 8 and 9
- Grounds 8 and 9 are, in essence, a reframing of ground 5 and for the same reasons we find that these grounds of appeal are not made out.
- This ground of appeal is based on what Ms Briant says was an error by the learned member in finding that she was required to establish an actual intention on the part of the appellants to discriminate against her. Upon closer analysis of this ground, what Ms Briant appears to be saying is that, firstly, the learned member applied the incorrect test in considering the application of s 10 ADA and, secondly, because of the learned member’s findings in relation to the reason for the appellants’ failure to appoint Ms Briant as an ACNafter 5 August 2012, the learned member should have logically found that the reason for all claimed unfavourable treatment by the appellants, was her attribute.
- Dealing with the learned member’s approach to s 10 ADA, there is nothing in the reasons to suggest any error on the part of the learned member. As to the argument by Ms Briant that the weight of the evidence favoured a finding that her unfavourable treatment was a result of her impairment, for the reasons we have already set out we find no error. This ground of appeal is not made out.
- This ground relates to the learned member’s findings that the failure by the appellants to apply the reasonable adjustment policy did not constitute grounds for a finding of direct discrimination against Ms Briant.
- The learned member found that the policy had not been applied and that, instead, a plan similar to a rehabilitation plan for an injured worker returning to work was constructed. The learned member found that the reason for insisting Ms Briant work afternoon and night shifts was out of a desire to impose equitable rosters.
- Ms Briant relies upon the same arguments as those advanced in respect of appeal ground 5 and for the same reasons we reject those arguments.
- This ground also addresses the finding by the learned member regarding the proposed trial employment of Ms Briant as a clinical nurse at Jericho. The learned member found that the trial was a proposal only and that Ms Briant had been invited to discuss the matter with Ms Mathison. Ms Briant, on appeal, casts this issue in the light of the non application by the appellants of the reasonable adjustment policy. She says that the attempt to redeploy her to Jericho was contrary to the policy. Ms Briant argued below that the attempt at redeploying her to Jericho was contrary to the reasonable adjustment policy.
- The difficulty with Ms Briant’s argument is that the learned member found that Ms Briant had been consulted in relation to the matter, that the possibility of her working at Jericho had been cast as a proposal and that the proposal was intended as a possible solution to Ms Briant’s problems. The learned member found that Ms Briant had not been treated less favourably than anyone else because of her impairment.
- The learned member did not find that there had been any attempt (as opposed to a proposal) to redeploy Ms Briant to Jericho. Accordingly, there was no basis for the argument by Ms Briant that the policy had not been complied with.
- There was no error by the learned member. This ground of appeal is not made out.
Grounds 12 and 13
- These grounds relate to the finding by the learned member that Ms Briant had not established indirect discrimination by the appellants. Ms Briant says that there was sufficient evidence before the learned member to find that a higher proportion of people without Ms Briant’s impairment could comply with the term as compared to people with Ms Briant’s impairment.
- Ms Briant says that the learned member was required to adopt a hypothetical comparator and that her failure to do so was an error of law. Ms Briant also says that the condition she contends for as having been imposed by the appellants was unreasonable.
- It is appropriate to examine what Ms Briant said before the learned member about indirect discrimination. Ms Briant argued that her employer had imposed a term that she was required to work a continuous 24 hour roster every fortnight. She said that the term was unreasonable in the circumstances.
- The learned member correctly found that a term was imposed upon Ms Briant requiring her to undertake all shifts across the 24 hour roster. The learned member also correctly found that the term contended for by Ms Briant was limited in its relevance to the complaints with respect to a requirement that Ms Briant work all shifts across the roster and being rostered on afternoon and night shifts.
- The learned member identified a number of significant deficiencies in the evidence as it related to the allegation of indirect discrimination. She noted that there was no evidence led by Ms Briant as to the appropriate base group or whether the base group should be limited to the Alpha Health Service or whether it should cover the District. The learned member correctly observed that the question of the proportion of people who could comply with the condition compared to the proportion of people with the impairment who could not comply involved findings of fact based on evidence.
- The learned member was required to decide firstly the existence of the term contended for and then to consider whether the term was caught by ss 11(1)(a) and (b) ADA. The onus was upon Ms Briant to establish that the term was so captured. If she discharged this burden, the onus then shifted to the appellants to prove the reasonableness of the term in accordance with s 11(1)(c) ADA.
- In considering s 6 of the Disability Discrimination Act 1992 (Cth) Lander J identified the four elements required to establish a claim for indirect discrimination:
First, that the discriminator has required the applicant to comply with a requirement or condition. Secondly, that a substantially higher proportion of persons without the applicant’s disability have complied, or are able to comply, with the requirement or condition. Thirdly, the requirement or condition is not reasonable having regard to the circumstances of the case. Fourthly, the requirement or condition must be one with which the applicant has not complied or is not able to comply.
- Once the term is identified with some precision, the four step process identified by Lander J can be undertaken.
- The learned member found that the term was identified as the requirement for Ms Briant to work all the shifts in a 24 hour roster. The learned member also found that Ms Briant was required to comply with the term.
- Citing State of Queensland v Che Forest the learned member found that the nature of Ms Briant’s impairment was not such as to show, without further proof, that none of the members of the comparator group (ie the persons with the impairment), could not comply with the condition leading to the necessary conclusion that a substantially higher proportion of persons without the disability could comply.
- The Full Court of the Federal Court in Che Forest identified the requirements of the equivalent of s 11 ADA found in s 6 of the Disability Discrimination Act 1992 (Cth) finding that what is required is:
…a comparison of the way in which the alleged discriminator deals with one group of people, being a group who do not have the disability of the alleged aggrieved person (the base group), with the way in which the alleged discriminator deals with another group of people, being a group of people who do have the disability of the allegedly aggrieved person (the comparator group). The comparison must be a comparison of groups of people by reference to the alleged discriminating. The base group that is appropriate for that exercise will vary according to the context in which the condition or requirement is imposed.
- The court in Che Forest found that:
In order to satisfy the first prerequisite of s 6, it would have been necessary to make findings as to the following:
- The proportion of people in the base group, being people who do not have Mr Forest’s disability, who are able to comply with the condition or requirement that any animal accompanying that person into the hospital or the health centre has been assessed by Queensland Health as having training and hygiene standards acceptable to Queensland Health.
- The proportion of people in the comparator group, being people who do have Mr Forest’s disability, who are able to comply with the condition or requirement that any animal accompanying that person into the hospital or the health centre has been assessed by Queensland Health as having training and hygiene standards acceptable to Queensland Health.
- If the first proportion was substantially higher than the second proportion, the first prerequisite of s 6 would be satisfied.
- Che Forest involved a claim for indirect discrimination by Mr Forest after he was refused access to a hospital and health centre (and consequent treatment) while he was accompanied by one or other of his dogs. The Court held:
It may be that an inference would have been open that the proportion of people in the base group, who do not have Mr Forest’s disability, who are able to comply with Queensland Health’s requirement or condition, would be close to 100%. However, there was no evidence before the primary judge to show what proportion of people in the comparator group, who have Mr Forest’s disability, are able to comply with the requirement or condition. Accordingly, on the evidence before the primary judge, no finding could have been made that the first prerequisite of s 6 was satisfied in relation to the conduct complained of. It follows that there was no basis upon which there could be a finding of unlawful conduct within s 23 or s 24, by the operation of s 6 of the Act.”
- As the learned member correctly identified, she was faced with a lack of evidence in relation to identifying either the base group or the comparator group. She also correctly found that, given the lack of evidence, she was unable to draw an inevitable inference. As Black CJ observed in Che Forest:
In some instances the required disproportional impact may be established as a matter of inevitable inference. This will occur when the very nature of the disability is such as to show, without further proof, that none of the members of the comparator group – the persons with the disability – could not comply with the requirement or condition, leading to the necessary conclusion that a substantially higher proportion of persons without the disability could comply.
- There was, before the learned member and as identified in Che Forest, no evidence to establish the respective proportions of persons who could comply with the requirement or condition.
- The learned member was compelled to make the findings she did in relation to the claim for indirect discrimination. This ground of appeal fails.
- Ms Briant says that the learned member erred in not finding that Ms Briant had been victimised as a result of the allegations that she had given shifts to her husband to work.
- Ms Briant says that she was unaware until the hearing that it was alleged by the appellants that she was being paid for shifts her husband had worked in lieu of Ms Briant.
- The findings of the learned member which Ms Briant says reveal error relate to the allegation by Ms Briant that she was victimised after lodging her original anti-discrimination complaint. This victimisation was said to have taken the form of an allegation by her employer (in a conversation on 5 November 2012) that Ms Briant had given her shifts to her husband and that she was being paid for shifts worked by Mr Briant.
- Before the learned member, the appellants said that Ms Briant’s complaint to the Anti-Discrimination Commission was lodged after the issue of shift swapping was discussed with Ms Briant. Whilst it was common ground between the parties before the learned member that the discussion on 5 November 2012 occurred and that the swapping of shifts between Ms Briant and her husband was discussed, the parties differed as to what they contended had actually been said. The appellants said that Ms Briant was told to cease giving her husband her rostered shifts without providing any notice to Queensland Health. Ms Briant said that she was told not to swap shifts with anyone particularly her husband.
- The learned member referred to evidence that the allegation that Ms Briant gave her shifts to her husband was raised with Ms Briant on 5 November 2012, before her complaint was lodged with the Commission.The learned member was not satisfied that Ms Briant proved that she had suffered detriment because of the allegation being made nor that lodgement of her complaint to the Commission caused the allegation to be made.
- The findings made by the learned member were open on the evidence.
- Ms Briant’s final ground of appeal is that the learned member erred in her assessment of quantum. We have found that there was no evidence that Ms Briant was treated less favourably than the comparator. It follows that there was no basis upon which an order for compensation could be made. It is therefore unnecessary for us to address this ground.
- In respect of the appellants’ appeal, we grant leave to appeal and allow the appeal.
- Ms Briant’s application for leave to appeal is refused and her appeal is dismissed.
- Ms Briant’s complaint of discrimination is dismissed.
 Briant v State of Queensland and Ors  QCAT .
 While the Tribunal’s reasons refer to an award of $10,000 at , the orders of the Tribunal reflect an award of $7,000.
 QCAT Act, s 142(1).
 QCAT Act, s 142(3)(b).
 QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
 Cachia v Grech  NSWCA 232 at .
 Op cit 5.
 Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577 at 578, 580.
 (2003) 217 CLR 92.
 Respondent’s submission in reply .
 Respondent’s submission in reply .
 Respondent’s submission in reply .
 Outline of submissions by the appellants .
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92 at  per Gleeson CJ, at - per Gummow, Hayne and Heydon JJ and at  per Callinan J.
 Outline of Submissions on behalf of the appellants, .
 Reasons, .
 Reasons, .
 ADA Act, s 10(1).
Disability Discrimination Act 1992 (Cth).
 Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92,  and .
 Attachments 3 and 5 to Ms Briant’s statement of evidence.
 T2-27, 40-42.
 Purvis v New South Wales (Department of Education & Training) (2002) 117 FCR 237.
 Reasons, (d).
 ADA, s 204.
 Transcript 1-98 and 1-99.
 Reasons,  to  inclusive.
 Ms Bowers’ evidence at T2-53, T2-71, 2-72 and Ms Mathison’s evidence at T3-43 to 3-49 (inclusive).
 Exhibit 6 - Statement of evidence of Ms Bowers  and annexure LB-22.
 Reasons,  (g) and  to  (inclusive).
 Reasons, . In relation to the word [Applicant] the reasons reflect [Respondents] which appears to be a typographical error in the reasons.
 Reasons, .
 Reasons, .
 Reasons, .
 Sol Theo as Trustee v Birrer  QCATA 344.
 Ibid at .
 Fox v Percy (2003) 214 CLR 118, at 125-126.
 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611.
 Statement of Leona Bowers – Attachment 2.
 Reasons, .
 Reasons,  to ; Ms Mathison’s evidence at, for example, Transcript 3-43 to T3-49 (inclusive).
 Transcript 2-67 line 46; 2-68, lines 1-2;2-72 lines 1-10.
 Ms Briant refers to the respondents’ contentions at  (g) (ii) and (iii).
 Ms Mathison’s evidence Transcript 3-43 to T3-49, T3-100; Ms Bowers’ evidence T2-53.
 Reasons,  to  inclusive.
 Reasons, .
 Reasons, .
 Reasons, , .
 ADA, s 205.
Hurst and Devlin v Education Queensland  FCA 405.
 (2008) 168 FCR 532.
 Reasons, .
 Op cit 51 at .
 Op cit 51 at .
 Op cit 51 at .
 Op cit 51 at .
 Op cit 51 at .
 Reasons, .
 Reasons, .
- Published Case Name:
State of Queensland & Ors v Briant
- Shortened Case Name:
State of Queensland v Briant
 QCATA 50
Senior Member Brown
29 Apr 2016