McKay v Steggles Pty Ltd[2023] QIRC 328

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   Ms Prudence McKay ('the Complainant') filed a complaint against Steggles Pty Ltd, ('the Respondents') alleging contraventions of the Anti‑Discrimination Act 1991 (Qld) ('the AD Act').

2. [2]
   The Complainant submits that she was initially misdiagnosed with schizophrenia and subsequently diagnosed with Post-Traumatic Stress Disorder (PTSD) ('the mental illness') during her employment with the Respondent.^[1] The Complainant submits that her mental illness is an 'impairment' within the meaning of s 7(h) of the AD Act^[2] and the Respondent was aware of the Complainant's mental illness.

3. [3]
   The Complainant claims that the Respondent contravened s 15 of the AD Act by the following actions^[3]:

• Suspending the employment of the Complainant on 20 December 2019 until the Applicant provided a medical clearance in contravention of s 15(1)(a);

• Refusing to accept medical clearances provided by the Complainant on 20 December 2019 and again on 9 January 2020 in contravention of s 15(1)(c); and

• The refusal of the Respondent to accept the medical clearances left the Applicant with no alternative but to seek alternative employment, rendering the Applicant's resignation a constructive dismissal.

Statutory framework

4. [4]
   The onus lies with the Complainant to demonstrate, on the balance of probabilities, that the Respondents contravened the direct discrimination provisions of the AD Act pursuant to s 204.

5. [5]
   This standard of proof is informed by the Briginshaw test^[4] to reflect the seriousness of the allegations.

6. [6]
   Part 2 of Chapter 2 of the AD Act identifies 'Prohibited grounds of discrimination'. Section 7 prohibits discrimination on the basis of various defined 'attributes':

7  Discrimination on the basis of certain attributes prohibited

The Act prohibits discrimination on the basis of the following attributes—

1. sex;
2. relationship status;
3. pregnancy;
4. parental status;
5. breastfeeding;
6. age;
7. race;
8. impairment;
9. religious belief or religious activity;
10. political belief or activity;
11. trade union activity;
12. lawful sexual activity;
13. gender identity;
14. sexuality;
15. family responsibilities;
16. association with, or relation to, a person identified on the basis of any of the above attributes.

7. [7]
   Section 8 of the AD Act provides the meaning of discrimination:

Discrimination on the basis of an attribute include direct and indirect discrimination on the basis of—

1. a characteristic that a person with any of the attributes generally has; or
2. a characteristic that is often imputed to a person with any of the attributes; or
3. an attribute that person is presumed to have, or to have had at anytime, by the person discriminating; or
4. an attribute that a person had, even if the person did not have it at the time of the discrimination.

8. [8]
   Part 3 of Chapter 2 of the AD Act identifies 'Prohibited types of discrimination'. Section 9 prohibits 'direct' and 'indirect' discrimination, while s 10 defines the meaning of direct discrimination:

10 Meaning of direct discrimination

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

Example—

R refuses to rent a flat to C because—

• C is English and R doesn't like English people

• C's friend, B, is English and R doesn't like English people

• R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.

2. It is not necessary that the person who discriminates considers the treatment is less favourable.

3. The person's motive for discriminating is irrelevant.

Example—

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.

4. If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

5. In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

9. [9]
   Part 4 of Chapter 2 of the AD Act identifies 'Areas of activity in which discrimination is prohibited'. Division 2 of Part 4 deals with 'Work and work-related areas'. Section 15 identifies types of discrimination in the area of 'work':

(1)A person must not discriminate—

1. in any variation of the terms of work; or
2. in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
3. in dismissing a worker; or
4. by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
5. in developing the scope or range of such a program; or
6. by treating a worker unfavourably in any way in connection with work.

Complainant's case

10. [10]
    The Complainant's case substantially departed from the initial allegations outlined in her Statement of Facts and Contentions (SOFC).

11. [11]
    The Complainant submits that her case has narrowed in a manner that has not disadvantaged the Respondent.

12. [12]
    A Complainant is generally bound by their SOFC and unless leave is sought, this document is taken to encompass the Complainant's case. In Carlton v Blackwood^[5], Martin J stated that an appellant's case ought to be known before the commencing of the hearing and that a respondent should not be placed in the position of having to contend with the 'shifting sands of an undefined argument'.

13. [13]
    A number of claims outlined in the SOFC were not pressed at hearing. The Complainant's Counsel stated at the beginning of the hearing that he only intended to press the allegations outlined in paragraphs 18, 20 and 21 of the SOFC.^[6] These paragraphs do not include reference to the allegations described as 'touching', and at the conclusion of the hearing the Complainant's Counsel confirmed that claims alleging indirect discrimination were not pressed. Accordingly, it is taken that the 'touching' allegations and claims of indirect discrimination have been abandoned.

14. [14]
    The Complainant made submissions regarding their reliance on s 8(c) in their submissions in reply, however this subsection was not relied upon specifically at the hearing or in any previous documents.^[7] The Complainant's Outline of Argument refer to s 8(a) and s 8(b) as does their closing submissions, however, s 8(c) is only relied upon in the Complainant's submissions in reply.

15. [15]
    The change in focus in the Complainant's case is less than ideal, particularly its late reliance specifically on s 8(c). If the claim of a presumed impairment rather than an actual impairment been pleaded from the start, the evidence led by parties and submissions may have been more targeted and relevant. I am not however persuaded that the Respondent has suffered any prejudice as a result of the change in focus of the Complainant's case.

The impairment

16. [16]
    The attribute relied upon by the Complainant is an 'impairment' as outlined at s 7(h) of the AD Act. The relevant part of the definition of impairment as contained in the schedule of the AD Act is as follows:

…

4. A condition, illness or disease that impairs a person's thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour; or

…

17. [17]
    The Complainant describes her impairment as a 'mental illness'^[8].

18. [18]
    The Respondent referred to Curran v yourtown & Anor^[9] ('Curran'), in which O'Connor VP dismissed a complaint following the Complainant's failure to establish that she suffered an impairment. The Vice-President stated:

As the Complainant's contention is a contention pertaining to her medical diagnosis it follows that the Complainant was required to produce expert opinion evidence from a person duly qualified to do so.^[10]

19. [19]
    In Curran, the Vice President did not accept the evidence of the Complainant's treating psychologist as establishing that the Complainant had an impairment, stating:

The way in which the evidence has been presented to the Tribunal does not allow it to form a view that the Complainant has an attribute within the meaning of s 7 of the Act.

20. [20]
    As the Complainant in Curran had not demonstrated that she had suffered from an impairment, the Vice President determined that her complaint must fail. This determination is consistent with a line of authority indicating that a complainant is required to prove that they were suffering from an impairment as a threshold issue before a claim for discrimination can succeed.^[11]

21. [21]
    The Vice President in Curran cited with approval the decision in Edoo v Minister for Health^[12] where it was said:

The factual material relied on by Mr Edoo did not establish that he suffered from an 'impairment'. Mr Edoo did not adduce evidence from any witnesses with qualifications in medicine to confirm that his stress was a 'condition' which manifested itself as a defect or disturbance in the normal structure of functioning of his body, or that it was a disease which impaired his thought processes, perception of reality, emotions or judgements or resulted in disturbed behaviour. Although Mr Edoo is a nurse, he did not purport to have qualifications entitling him to provide opinion evidence as to his medical condition. In the absence of any such expert evidence, we are unable to give Mr Edoo's evidence as to his own 'condition' any weight above that of mere assertion. From that perspective, Mr Edoo's evidence of the impairment from which (he) was suffering did not have probative force, and was not capable, of itself, of establishing that he was suffering from an impairment as defined in the EO Act. In addition, there was no expert evidence on which we might base the conclusion that stress was in fact a 'condition" rather than merely a symptom of some other underlying condition or circumstance.

22. [22]
    The evidence in this matter does not demonstrate that the Complainant has a diagnosis that meets the statutory definition in the AD Act which includes a ' condition, illness or disease that impairs a person's thought process, perception of reality, emotions, judgment or that results in disturbing behavior'^[13]. There is insufficient evidence that the Complainant had received a diagnosis from a doctor that could satisfy the statutory definition, or in fact a diagnosis at all.  No medical practitioner was called to give evidence of any diagnosis and no medical reports or clinical notes were provided confirming that a diagnosis had been made or treatment provided. The only evidence indicating a specific diagnosis was a letter signed by a Clinical Nurse Consultant, Ms Adams-Smith, stating that the Complainant had a diagnosis of schizophrenia. The letter does not outline whether Ms Adams-Smith had been informed of a diagnosis by a doctor or psychiatrist or only by the Complainant herself. There is simply no information as to how Ms Adams-Smith became aware of this 'diagnosis'. The only other evidence of an impairment is the Complainant's evidence-in-chief in which she stated that the diagnosis of schizophrenia was incorrect and that she in fact had post-traumatic stress disorder (PTSD). Mr Luke gave evidence that the Complainant told him that she had PTSD prior to her suspension from work on 20 December 2019.

23. [23]
    There is no evidence of the date of diagnosis, the name of any doctor who made the diagnosis, the symptoms experienced as a result of the condition or the treatment received. There are a number of documents in evidence in the form of letters relating to the Complainant's condition in relation to her capacity to work^[14]. These letters do not indicate a particular diagnosis. In the absence of more cogent evidence, there is no basis upon which to determine that the Complainant suffered from a particular illness that could be described as a ''condition, illness or disease that impairs a person's though processes, perception of reality, emotions or judgment or that results in disturbed behaviour'' at the relevant time.

24. [24]
    I accept the Respondent's submission that there is no evidence that could possibly meet the relevant standard of proof to show that the Applicant suffered an impairment at the relevant time. The Complainant has not discharged her onus to establish that she had an impairment pursuant to s 7(h) of the AD Act, however the provisions of s 8 extends the meaning of discrimination on the basis of an attribute and so must be considered.

25. [25]
    Section 8 of the AD Act is as follows:

8           Meaning of discrimination on the basis of an attribute

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of –

1. a characteristic that a person with any of the attributes generally has; or
2. a characteristic that is often imputed to a person with any of the attributes; or
3. an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or an attribute that a person had, even if the person did not have it at the time of the discrimination.
4. an attribute that a person had, even if the person did not have it at the time of the discrimination.

Example of paragraph (c) –

If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.

26. [26]
    The Respondent outlines in their SOFC that they were not aware of any mental health diagnosis affecting the Complainant until the Complainant presented its manager with a letter on 6 June 2019 from Ms Adams-Smith stating that the Complainant had schizophrenia. The evidence of Mr Luke and the Complainant is that after the work incident on 20 December 2019 the Complainant told Mr Luke that she had been incorrectly diagnosed with schizophrenia and in fact had PTSD. In circumstances where the Complainant maintains that she suffered from PTSD and the documentary evidence refers to schizophrenia, the evidence does not demonstrate that a clear condition, illness or disease has been identified. It is therefore unclear which of the Complainant's behaviours can confidently be said to be symptomatic or associated with the condition.

27. [27]
    In circumstances where the evidence did not establish the existence of an impairment, it would be entirely speculative to determine the characteristics that a person of a mental health condition generally has in accordance with s 8(a) of the AD Act or characteristics that are often imputed to a person with a mental health condition in accordance with s 8(b). There is no evidence before the Commission and the Complainant has made no submissions as to what characteristics are 'often imputed'^[15] to someone with a mental health impairment or what characteristics a person with a mental health impairment 'generally has'^[16]. There is no evidence nor submissions before the Commission as to the characteristics that a person with either schizophrenia or PTSD generally has or the characteristics that are often imputed to a person with either schizophrenia or PTSD. Accordingly, the claim of discrimination pursuant to s 8(a) or (b) cannot succeed.

28. [28]
    The Complainant has failed to meet the evidentiary hurdle to establish that the Complainant has demonstrated characteristics that a person with the alleged impairment generally has, or characteristics that are often imputed to a person with an impairment in the form of a mental health condition.  However, this does not mean that the case must fail on that basis alone. Section 8(c) includes discrimination on the basis of an attribute that a person is presumed to have or to have had at any time. I am satisfied that the Respondent was aware that a nurse had advised that the Complainant had schizophrenia and so presumed that the Complainant continued to suffer from this condition from 6 June 2019. It is also clear from the evidence of Mr Luke that the Respondent presumed the Complainant to have either schizophrenia or PTSD following the disclosure by the Complainant on 20 December 2019. The actions of the Respondent in seeking a medical clearance demonstrate a presumption that the Complainant had a medical impairment of some king. The lack of a confirmed diagnosis from a medical doctor may have made the presumption of a specific mental health impairment somewhat inconclusive, however I am satisfied that the presumption existed.

29. [29]
    The evidence supports a conclusion that the Respondent presumed the Complainant was suffering from an impairment in the form of schizophrenia from 6 June 2019 and PTSD from 20 December 2019.

Comparator

30. [30]
    As outlined in Curran, the requirement that it be demonstrated that a person has been treated less favourably than a person without the attribute, or a characteristic of the attribute, gives rise to a contingent requirement of identifying the other person against whom a comparison can be made. This is described as a 'comparator' which may be an actual or a hypothetical person against whom the Complainant can be compared.

31. [31]
    The Complainant relies upon the actual comparator of Ms Fiona Byrne. The Complainant gave the following evidence regarding Ms Byrne:

...one day we were passing each other and she wanted to have a fight with me. She raised her fists at me to fight and I did the same.^[17]

32. [32]
    The Complainant's evidence was that Ms Byrne returned to work following this incident, however the Complainant was suspended pending medical clearance.

33. [33]
    There is no evidence before the Commission as to Ms Byrne's disciplinary history with the Respondent. If Ms Byrne had a less extensive disciplinary history than the Complainant, she would not be an appropriate comparator as the circumstances will not have been the same or similar. As the evidence of Ms Byrne's disciplinary history is not before the Commission, I am of the view that a hypothetical comparator is more appropriate.

34. [34]
    In Stevenson v Murdoch Community Services Inc^[18] the court held that the proper comparator ''is a person with the same behavioral characteristics without the disability''^[19].

35. [35]
    The task of identifying an appropriate comparator was considered by O'Connor VP in Curran:

[84]In Woodforth v State of Queensland, a comparison was required between the Complainant's treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic. McMurdo JA wrote:

Section 10 of the ADA requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be ''in circumstances that are the same or not materially different'' from those that constituted the context for the treatment of the impaired person. In that respect s 10 of the ADA is no different from s 5(1) of the DDA. But beyond that likeness, there are differences between the two statutes. The DDA contained no equivalent of s 8 of the ADA, the effect of which, in combination with s 10 of the ADA, is to proscribe discrimination on the basis of a ''characteristic''. In the present case it proscribed discrimination on the basis of the applicant's inability to communicate by speech. That proscription would be ineffective if the characteristic of a disability was also to be treated as a “circumstance” in the comparison for the purposes of s 10. It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic. The Appeal Tribunal, whilst adverting to s 8, overlooked its effect upon the operation of s 10.

Further, the Appeal Tribunal incorrectly likened this characteristic of the applicant's impairment with the occurrences of violent behaviour that constituted the relevant circumstances in Purvis. They were occurrences which formed part of the factual context in which the student was treated. He was treated, by suspension and expulsion, in response to those occurrences. The required comparison was between the treatment of this student and the hypothetical treatment of another student. That hypothesis required the consideration of what would have been the treatment of another in response to occurrences of the same kind. The complication in Purvis, caused by the student's behaviour also being an incident of his disability, did not exist in the present case. In the present case the relevant ''treatment'' was the response of police to a complaint of criminal conduct.

…

The Appeal Tribunal misunderstood the relevance of the reasoning in Purvis and thereby erred in law in identifying the relevant comparator. The applicant's case required a comparison between her treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic. This error affected the Appeal Tribunal's conclusions on relevant factual issues….

…

[88]In my view the appropriate comparator is another employer of yourtown, working in the position of a Production Administrator, who does not have anxiety or any characteristics of it. The circumstances that are "the same or not materially different", are that the person has taken extended periods of personal leave and wishes to return to work.

36. [36]
    In my view an appropriate hypothetical comparator is a female employee of similar age, tenure and disciplinary history as the Complainant who the Respondent did not presume to have a mental health impairment.

Consideration

37. [37]
    The meaning of direct discrimination is outlined in s 10 of the AD Act:

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

38. [38]
    Section 8 of the AD Act defines discrimination on the basis of an attribute to include direct and indirect discrimination on the basis of:

1. a characteristic that a person with any of the attributes generally has; or

2. a characteristic that is often imputed to a person with any of the attributes; or

3. an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or

4. an attribute that a person had, even if the person did not have it at the time of the discrimination pursuant to section 8 of the Act.

39. [39]
    The Complainant is required to prove, on the balance of probabilities, that the Respondent has contravened the Act pursuant to s 204.

40. [40]
    The allegation made by the Complainant is that the Respondent advised the Complainant that she could not return to work without a medical clearance and then refused to accept the medical clearances leaving her with no alternative but to resign.

41. [41]
    The relevant test applied to a claim of direct discrimination was summarised by O'Connor VP in Curran:

[80]The test to be applied in determining a case of direct discrimination was set out by the full bench in Commissioner of Corrective Services v Aldridge:

[41] The proper test to be applied when determining a case of direct discrimination has been considered on numerous occasions by appellate courts. While there has been some confusion and inconsistency there is clear authority to guide us. In Waterhouse v Bell (1991) 25 NSWLR 99 the Court of Appeal considered that part of the Act which deals with direct discrimination on the ground of marital status. Clarke JA stated (at p 105):

The inquiry for which the section calls is a factual one involving essentially, two separate questions. The First, has A been treated less favourably than a person of different marital status was, or would have been, treated in the same circumstances, or in circumstances which are not materially different? The Second, if so, was the ground of the differential treatment one of those mentioned in (a), (b) or (c)?

[42] In Waters v Public Transport Corporation Dawson and Toohey JJ stated:

Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race).

[43] In the leading House of Lords decision, James v Eastleigh Borough Council Lord Goff stated:

The problem in the present case can be reduced to the simple question - did the defendant council, on the ground of sex, treat the plaintiff less favourably than it treated or would treat a woman?

[44] In our opinion these statements clearly express the relevant law and should have led the Tribunal to pose for itself the following question. Did the Commissioner, on the ground of race (or a characteristic of race) treat Mr Aldridge less favourably than it treated or would have treated a non-Aboriginal person in the same circumstances, or in circumstances which were not materially different?

[45] It is useful, for the purposes of analysis, to identify and label the two key components of this question. The First component is differential treatment and the Second is causation. Logically differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation.^[20]

42. [42]
    The question in this matter is whether the Respondent treated the Complainant less favourably than another person without the presumed impairment, or a characteristic of the presumed impairment, because of her presumed impairment or a characteristic of her presumed impairment in circumstances which were the same or not materially different.

Evidence

43. [43]
    Prior to an assessment of whether the Complainant's treatment was less favourable, it is necessary to establish the relevant treatment through consideration of the evidence. Evidence was given at hearing by the Complainant, Mr Hereora Luke, and Ms Sonia Takla.

44. [44]
    In written closing submissions, the Complainant submitted that the evidence given by Mr Luke and Ms Takla was 'less than forthcoming', citing evidence given as to the number of times the witnesses had seen a document in evidence.^[21] I do not accept that the evidence given by either witness was not forthcoming. It seemed to me that their evidence reflected a genuine attempt to recall the number of times they had seen the particular document, which may not have been immediately recalled given the passage of time.

45. [45]
    In summary, the Complainant gave the following evidence:

• The Complainant was initially working for the Respondent in the chicken tray pack section. This was a 'fairly close environment' and sometimes people would not be able to get past. An employee named 'Craig' would bump the Complainant on the buttocks.^[22] The Complainant said to Craig in the lunchroom' 'If you touch me again, I'll kick you in the balls''.^[23] The Complainant received a written formal warning for this conduct;^[24]

• The Respondent later moved the Complainant to the marinade section, which was a similar environment to the tray pack section involving close contact but included a lot more people^[25];

• A woman named 'Deb' placed her hands on the Complainant's hips to which the Complainant responded, ''If you ever touch me again, I'll kick you''. The Complainant then received a written warning;

• On 20 December 2019, an employee named Fiona Byrne and the Complainant had the following interaction – ''Fiona and I had been having troubles outside of work, and one day we were passing each other and she wanted to have a fight with me. She raised her fists at me to fight and I did the same''^[26];

• The Complainant was told by Mr Luke that she ''needed to get a formal letter from mental health to say I could return back to work''^[27];

• The Complainant provided the Respondent with a letter from the Atherton Mental Health Service Nurse signed by a Clinical Nurse, Ms Adams- Smith^[28];

• The Complainant did not return to work after giving the letter to the Respondent ''because they did not approve of the letter''^[29];

• Fiona Byrne returned to work following the altercation^[30];

• Mr Luke told the Complainant that she ''needed to get a formal letter from mental health to say'' that the Complainant ''could return to work''^[31];

• The same letter was returned to the Respondent after being co-signed by a psychiatrist, Dr Daniel Gileppa,^[32];

• The letter signed by Dr Gileppa was not accepted by the Respondent because ''they wanted something else''^[33];

• The Complainant provided a further letter dated 9 January 2020 to the Respondent^[34] and then resigned because she ''couldn’t get the right clearance for them''^[35]; and

• The Complainant had advised Mr Luke that she had PTSD.^[36]

Evidence of Mr Horeora Luke

46. [46]
    Mr Luke was employed as the Industrial Relations Co-ordinator at the Mareeba plant for the Respondent during the relevant period.

51. [47]
    Mr Luke gave evidence of verbal warnings given to the Complainant and documented on 5 February 2018^[37] and 23 March 2018.^[38]

52. [48]
    Mr Luke gave evidence of the medical certificates received from the Complainant and the letter he drafted to send to the Complainant on 25 June 2019 following her failure to attend her rostered shifts. Mr Luke's evidence was that the Complainant had not attended work for the previous twelve days and he had drafted the letter requesting that she make contact. Mr Luke did not send the letter as the Complainant phoned prior to it being sent. This documentary evidence supports a determination that the Respondent was infinitely patient with the Complainant's absences, often sudden and unexplained at the time, and was working with her healthcare professionals to support her recovery^[39].

53. [49]
    Mr Luke gave evidence of a meeting on 15 November 2018 involving himself, the Area Supervisor, a company witness, an employee witness and the Complainant. Following the meeting a written warning was issued to the Complainant by the Mareeba Plant Manager, Mr Warren Cosgrove, and was signed by both the Complainant and Mr Luke^[40].  The letter stated the following:

We note a verbal warning was issued to you on 23 March 2018 for engaging in a verbal argument and swearing at a team leader. Since this warning was issued it was alleged that on Thursday 8 November 2018 you behaved in an inappropriate manner toward another worker when you approached this employee in the smoko room and in an aggressive manner accused him of touching your bottom. During the confrontation you yelled and threatened the male worker by telling him if he touches you again you are going to kick him in the balls. Your actions made the worker feel uncomfortable, frustrated and embarrassed.

At the conclusion of our investigation, taking witness statements and your response into consideration the Company is satisfied that the alleged incident did occur as reported.

When given the opportunity to respond to our concerns you recognised that you both work in a small area and space is very limited therefore people can bump into each other at times. You also said you feel the worker didn’t have any intentions of touching you inappropriately and you believe it was an accident however you got frustrated because you have asked the worker on previous occasions to be more careful when walking near you. You also acknowledged you didn’t handle the situation properly.

We refer to our Disciplinary guidelines that clearly state the following examples at all times to treat your fellow workers with respect. If you have any concerns relating to the workplace then you must report them to the Company to be addressed in the proper manner.

We are expecting an immediate satisfactory improvement, which is required to continue for the full term of your employment with us. Failure to improve to an acceptable level, in particular, a repeat of any performance incident will result in further disciplinary action that may include the termination of your employment.

…

47. [50]
    Mr Luke gave evidence of a meeting on 15 October 2019 involving himself, a company witness, an employee witness and the Complainant. Following the meeting a written warning was issued to the Complainant by the Mareeba Plant Manager, Mr Warren Cosgrove, and was signed by both the Complainant and Mr Luke^[41]. The letter stated the following:

…

It was alleged that on 14 October 2019, you have used inappropriate language towards a fellow employee. The employee has touched/tapped your body and said excuse me in order to move past you, you have been reacted by using inappropriate language. Following an investigation and taking witness accounts into consideration we are satisfied that you have behaved inappropriately. Your actions made the workers feel angry, uncomfortable and threaten [sic].

When given the opportunity to respond you admitted that the above is true and stated that you feel uncomfortable when people touch your body however you admitted you should have acted differently.

The company recognises that you have made efforts to apologise to the other employee involved and this has been accepted by the employee.

…

Please note this company cannot and will not tolerate such circumstances with regard to your employment and this warning is an official notice to illustrate our concern and advise that it will be placed in your personnel file.

We are expecting an immediate satisfactory improvement, which is required to continue for the full term of your employment with us. Failure to improve to an acceptable level, in particular, a repeat of any performance incident will result in further disciplinary action up to an may include termination of your employment.

…

54. [51]
    Following the altercation between the Complainant and Ms Byrne on 20 December 2019, Mr Luke gave evidence of a letter he sent to Ms Tackle^[42] stating the following:

An incident occurred on Friday 20/12/2019 at 0830 between Prudence and Fiona Byrne where a verbal altercation occurred.

Fiona presented to IR office extremely upset due to Prudence yelling and swearing at Fiona.

Prior to starting the meeting Prudence stated that if the company is going to sack her then we should just hurry up.

After interviewing Prudence regarding the incident this morning, prudence has stated that Fiona was also yelling and swearing at prudence. She could not confirm what was she [sic].

Prudence stated that she has been diagnosed with post-traumatic stress disorder and does not require medication for this.

IR pointed out to Prudence that she has been previously counselled for inappropriate behaviour and had disciplinary action taken against her. This behaviour has continued and IR has issued Prudence a Final Warning for inappropriate behaviour in the workplace. Additionally Prudence has been suspended until she can provide the company with a fit to work Medical Certificate from her GP/psychiatrist and if Prudence is required, evidence that she is taking her medication if she is required.

During the counselling session Prudence expressed laughter when the allegations were presented to her and at times would slump her head and whisper to herself. At other times she would become angry and ask to leave the room to regain control over her angry [sic]. After the counselling session Prudence asked what the process would be if she decided to resign. IR explained the procedure and Prudence left the site.

I prepare [sic] the Final Warning document today.

55. [52]
    When asked the reason for the suspension, Mr Luke gave evidence that the site manager had concerns regarding the safety of other workers because there were knives and scissors around and Prudence's past behaviour had threatened violence towards other workers.

56. [53]
    Mr Luke gave evidence that the initial document provided by the Complainant (‘Letter One) was not sufficient to lift the Complainant's suspension as it had been created by a nurse rather than her treating practitioner or psychiatrist. Mr Luke's evidence was that he told the Complainant that this was not sufficient.

57. [54]
    Letter One stated the following –

Dear Madam/Sir

Prudence McKay was discharged from the Mental Health Service in early November, 2019. In our opinion, there is no reason she should not be able to work part-time to full-time, depending on her preference.

Prudence was not prescribed any medication from our service when she was discharged.

Please contact me with any further queries.

Yours sincerely

Patricia Adams-Smith

Clinical Nurse Consultant

58. [55]
    Mr Luke gave evidence that the Complainant then provided the same letter but co-signed by a psychiatrist, Dr Gileppa. Mr Luke forwarded this to the Respondent’s WHS Manager and Ms Takla who advised they were not satisfied because it was the same document written by the nurse rather than a document written by a doctor confirming that the Complainant was medically fit to return to work.

59. [56]
    Mr Luke confirmed that Ms Lena Hammel is the industrial relations coordinator based at the Ipswich factory who also dealt with all the Queensland industrial relations issues. Mr Luke was copied into an email from Ms Hammel to Mr Ian McLauchlin of the Australian Meat Industry Employees Union (AMIEU) on 5 January 2020 advising that further medical information was required to allow the Complainant to return to work.^[43]

60. [57]
    Mr Luke was shown a letter signed by Dr Gileppa and Ms Adams-Smith dated 9 January 2020 ('Letter Two'), and confirmed that the Complainant's suspension was not lifted after this letter was received because it did not state that the Complainant was fit to return to normal duties.^[44] Letter Two stated the following:

Myself and Patricia Adams-Smith (Mental Health Clinical Nurse Consultant) have assessed Ms McKay. She has a medical condition which is currently stable. She is cleared to perform her duties from this perspective.^[45]

61. [58]
    Mr Luke confirmed that he had created the document titled 'Confirmation of Resignation' confirming that the Complainant had verbally resigned on 29 January 2020 via a telephone call to him in the office.^[46]

62. [59]
    In cross-examination Mr Luke conceded that the Complainant had never engaged in physical violence at work. Mr Luke stated that whilst he could not say that swearing occurred every day, he agreed that swearing was not rare at the Mareeba plant.^[47]

63. [60]
    Mr Luke was questioned as to whether he had seen the document emailed from Ms Takla to Mr Buckley at the AMIEU attaching a letter entitled 'Roles Requirements' which outlined the information sought from the Complainant's medical practitioner.^[48] The letter outlined the requirements of Process Workers, including working in close proximity to other personnel and communicating on a regular basis with teammates and supervisors. The letter asked for confirmation (via a Yes/No option) as to whether the Complainant was still experiencing the medical condition; whether the Complainant was being treated for the condition; and whether working in her work environment continue to exacerbate/aggravate her condition.

64. [61]
    Under cross-examination Mr Luke stated that he had not previously seen the Role Requirements letter before. Mr Luke also stated that people returning to work after injury are managed by the WHS people and that he was not usually involved in that process. Mr Luke’s evidence was that he was involved in the Complainant's process because he had dealt with her disciplinary actions and counselling sessions.

Evidence of Ms Takla

65. [62]
    Ms Takla gave evidence that she is the National Industrial Relations Manager of the Respondent.

66. [63]
    Ms Takla stated that the letter signed by Ms Adams-Smith of 20 December 2019 was not accepted ''because it was from a clinical nurse, not from a registered doctor.''^[49]

67. [64]
    Ms Takla's gave the following evidence:

The company needs to be satisfied with the evidence it's provided, that it's safe to allow the person to return to work, having a history of issues with Prudence. And just to say she’s safe to return to work, well, they told us before that she was safe to return to work and the incidences continued.^[50]

68. [65]
    When asked in cross-examination about whether the documentation was not accepted due to previous incidents, Ms Takla responded:

No, that's not correct. We just needed further information. We needed – we needed to exercise our duty of care, not just to Prudence, but to her fellow workers also. And when allowing her back into the workplace, we need to be sure that her fellow workers were also going to be safe.^[51]

69. [66]
    Ms Takla continued:

So we've had several months of issues with Prudence. Okay. So we've had not one, we've had numerous incidences of inappropriate behaviour with Prudence. Prudence made us aware that, you know, she had a mental illness and was getting help, and she had provided us with documentation. Initially it was - the diagnosis was schizophrenia. And then we told she's on medication. And then we were told that the medication was playing up with her and she was having issues. All along the company was supportive, flexible, whatever we could do. You know, her hours of work. We worked with her. Supported her every step of the way. No call. No show for two weeks. We sent around abandonment letters. She came back and said, ''I wasn't well''. We said, ''All right. No worries. Happy to keep working with you.'' And that was back in June '19.

70. [67]
    Ms Takla gave evidence of her concerns regarding the safety of the workplace:

We continued to work with Prudence to help her get well and get back to work. We as an employer need to make sure that all employees in the workplace are safe and that nobody is exposing anybody to any risk of harm, whether it's psychological or physical. It got to a point where, with Prudence, no matter what we'd done, no matter what we tried to do, the various information that we had received, it got to a point where, look, we need absolute clarity now. We need to be sure, because the issue with Prudence, time and time again, was being touched by other workers. That was her main concern. So it got to a point where besides whatever her illness is, we just need to be sure that allowing her back into the workplace, where it is reasonable to expect to be knocked or touched. This is a production line. Hundreds of workers. People moving around. Box is being lifted and - it's inevitable that someone's going to knock you or touch you. We can't continue to have these outbursts. We needed to make sure is she definitely ok  to work in this environment, in close proximity to her fellow workers, and do the other tasks that are required of her. I don't think that was a big ask for the company, and we were still more than happy to continue working with Prudence and welcome her back into the workplace. There was never an intention of terminating her employment. And that's seen clearly by the months that we'd worked with her.^[52]

71. [68]
    Ms Takla's evidence was that Prudence continued to have other incidents of outbursts becoming 'quite offensive towards her fellow workers', and that despite the medical clearances she would be stable for a while before another outburst would occur.^[53]

72. [69]
    Ms Takla gave the following evidence:

So the doctors would say to us, "Look, she’s fine. She's right to return to work.'' She would come back to work and then we would have another incident, another outburst. So hence why this time round it was like, well, here we go. We’ve had another outburst. We can't just keep having outburst after outburst and, you know, she's okay now. She's not okay now. She's – it got to a point where, you know, we need to exercise our duty of care, was what the WHS coordinator clearly stated to me and said, 'Sonia, we need to make sure that she's right to return into the workplace. This is the work environment. She is going to be touched by fellow workers. It's just the work environment. Is she going to be okay to come back in there and are her fellow workers going to be safe?'' Because that started to become a real issue for the company, is there grievance from the fellow workers in being put in that position.^[54]

73. [70]
    In cross-examination Ms Takla vehemently denied the proposition that the Respondent was never going to have the Complainant back in the workplace.^[55]

74. [71]
    Ms Takla gave evidence that Letter One was not accepted due to concerns that the letter was written by a nurse and the level of content contained within the letter.

75. [72]
    Ms Takla confirmed that she had checked the email sent to the AMIEU by Ms Hamill which advised the following:

What the company is seeking is a recent medical clearance from her treating practitioner, stating Prudence is fit to return to work. I do not believe that a letter from a nurse was considered to be sufficient proof and to the satisfaction of the company, which is the same thing that was explained to Prudence over the phone.^[56]

76. [73]
    In cross-examination it was put to Ms Takla that Letter Two signed by both Ms Adams-Smith and Dr Gileppa satisfied the requirement that the Complainant be cleared to return to work as outlined in the email from Ms Lena Hamill on 5 January.  Ms Takla gave evidence that she took Letter Two to the WHS coordinator who told her that they needed ''more than that''.^[57] Ms Takla described consulting with WHS prior to the 6 January 2020 and then asking if the clearance was sufficient before being told:

They said, "No, we still need to make sure that she’s able to come and work in this same working environment. She's stable at the moment. Is coming back into other workplace, working in this same environment that's causing her to have these outbursts, because she is going to be touched and knocked and, you know, by her fellow workers. Is that going to – you know, be an issue. We need to be sure that they understand that working environment clearly and that she is going to be okay to work in that working environment.'' That's the advice we were given. The letter was prepared and we were told, “Can you please get further information” and then, you know, ''We'll verify whether or not she’s able to return.''^[58]

77. [74]
    Ms Takla gave evidence about an email she sent to Mr Buckley at the AMIEU attaching a letter entitled ‘Roles Requirements’ which outlined the information sought from the Complainant's medical practitioner.^[59] The letter outlined the requirements of Process Workers, including working in close proximity to other personnel and communicating on a regular basis with teammates and supervisors. The letter asked for confirmation as to whether the Complainant was still experiencing the medical condition; whether the Complainant was being treated for the condition; and whether working in her work environment continue to exacerbate/aggravate her condition. Ms Takla's evidence regarding this document was as follows:

I decided to get further advice from the WHS coordinator. I advised her of the medical certificate and her response was that we need further information to be able to be satisfied that it's safe to allow Prudence to return to work. And she provided me with a letter, a standard letter that the WHS team use. And it had various information that we required Prudence's medical practitioner to answer some questions there for us. Just to give us comfort and satisfaction that it was safe to allow her to return to the workplace.^[60]

78. [75]
    Ms Takla was further cross-examined as to whether any information was going to be enough to allow Prudence to return to the workplace. Ms Takla responded:

All Prudence needed to do was organise to have that – those questions answered and that would have – then the WHS person would have determined whether or not those answers – the evidence provided was satisfactory and safe for us to allow her to return to work.^[61]

79. [76]
    The Complainant's Counsel put to Ms Takla that if the Complainant had suffered a broken leg and her doctor had said that she was fit to return she would have been back at work the next day. Ms Takla stated that would occur 'only if she’s fit to return to work' before replying 'correct'.^[62]

Was the Complainant subject to less favourable treatment in circumstances the same or not materially different?

80. [77]
    Section 10 of the AD Act provides that direct discrimination happens if a person treats or proposes to treat a person with an attribute less favourably than another person without the attribute in circumstances that are the same or not materially different.

81. [78]
    An assessment must be done of whether the Complainant was subject to less favourable treatment in circumstances the same or not materially different. The phrase 'less favourable treatment' was considered in Haines v Leves^[63]:

The words ''less favourably''… requires a comparison of the treatment in the actual and in an hypothesised case… A ''detriment'' concept of discrimination has hitherto been adopted…The motives, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected.

82. [79]
    Accordingly, less favourable treatment is differential treatment identified through the comparison of the actual and hypothetical and which is detrimental to the Complainant.

83. [80]
    If treatment is considered less favourable, the Commission must be satisfied that the reasons for that treatment was the attribute. Where there are two or more reasons for treating a person less favourably, it is on the basis of the attribute if the attribute is a substantial reason for the treatment.

84. [81]
    The phrase 'circumstances that are the same or are not materially different' has been considered in a number of authorities. The High Court determined in Purvis v New South Wales^[64]  when considering the Disability Discrimination Act 1992 (Cth) that what must be examined is ''what would have been done in those circumstances if the person concerned was not disabled.''^[65]

85. [82]
    In this matter, 'circumstances that are the same or are not materially different' are circumstances in which an employee has been involved in an altercation with a work colleague and has been counselled before revealing to the employer that they have PTSD.

48. [83]
    The Applicant's claim of less favourable treatment relates to the allegations made by the Complainant that the Respondent stated that she could not return to work without a medical clearance and then refused to accept the medical clearances leaving her with no alternative but to resign. The Respondent's action in advising the Complainant that she could not return to work is the conduct that must be examined, with the refusal of medical clearances leading to her resignation part of that conduct.

86. [84]
    In order to assess whether the treatment was less favourable, it is necessary to compare the treatment of the Complainant with that of a hypothetical comparator, being a female of equivalent age, tenure and disciplinary history who the employer did not presume to have schizophrenia or PTSD.

87. [85]
    In these circumstances, it is clear that the hypothetical comparator would not have been required to produce a medical clearance as they would not have asserted that they were suffering from PTSD or schizophrenia. The conduct of the comparator would presumably be managed according to the standard employer disciplinary processes depending on their disciplinary history. It is clear from the Respondent's submissions and the evidence of Mr Luke and Ms Takla that the reason the Complainant was required to obtain a medical clearance was because of her disciplinary history and her presumed impairment of PTSD or schizophrenia.

88. [86]
    The Respondent submits that its requirement that a medical clearance be provided confirming the Complainant’s fitness to perform normal work duties was entirely reasonable. Further, the Respondent contends that that this was a common approach taken whenever there was a concern about an employee who may have medical issues affecting their capacity to perform their normal work duties, or their ability to perform such duties safely.

89. [87]
    The issue of workplace health and safety was raised in the evidence of Mr Luke and Ms Takla. The AD Act contains specific provisions outlining exemptions, with s 103 providing that ''it is not unlawful to discriminate with respect to a matter that is otherwise prohibited under part 4  if an exemption in sections 104 to 113 applies.''^[66] Section 108 falls within the category of exemptions referred to in s 103, which is outlined as follows:

108Workplace health and safety

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

90. [88]
    A summary of the Complainant's employment history prior to her suspension includes the following:

• On 23 March 2018, a verbal warning was given to the Complainant;

• On 22 November 2018, a written warning was given to the Complainant;

• On 4 June 2019, a note from Ms Adams-Smith was provided advising that the Complainant had a diagnosis of schizophrenia;

• On 10 July 2019, the Complainant provided a document indicating she suffered from a 'medical condition' and an 'acute exacerbation of a medical condition';

• On 15 October, the Complainant was counselled and issued a written warning about offensive language used towards a fellow employee;

• On 20 December 2019, the Complainant engaged in yelling and swearing with a work colleague. The Complainant gave evidence that Ms Byrne ''raised her fists at me to fight and I did the same''^[67] which the Respondent took to indicate that the Complainant was willing to engage in a fight in the workplace; and

• On 20 December 2019, the Complainant advised Mr Luke that she had been diagnosed with PTSD following which she was suspended pending the provision of a medical clearance.

92. [89]
    An assessment of the Complainant's history does not indicate that the Respondent held a prejudicial view of the Complainant's mental health condition. It is clear that the Respondent was aware of the likelihood that the Complainant had schizophrenia from 4 June 2019 based on the letter from Ms Adams-Smith. In an incident that occurred after the condition became known involving the Complainant engaging in offensive language towards a fellow employee on 15 October 2019, the Respondent chose to counsel the Complainant and issue her with a further written warning.

93. [90]
    It was only after the final incident on 20 December 2019, which involved threats to fight a fellow worker, that the Respondent sought a medical clearance. The Complainant advised Mr Luke at the meeting following this incident that she had PTSD and when asked at the hearing if the PTSD was connected to her behavior she answered 'possibly'^[68].

94. [91]
    The issue of health and safety in the workplace was raised in the Respondent’s submissions which stated -

Given the number of events involving verbal abuse, threats of physical harm, and a willingness to fight in the workplace demonstrated on 20 December 2019, a concern whether the Complainant was fit to return to the workplace – a workplace involving people working in close quarters and using knives and scissors – was, in the Respondent's submission, a reasonable concern.

95. [92]
    Mr Luke gave evidence that the site manager had concerns for the safety of other workers because ''there were knives and scissors around”. This evidence demonstrated the genuine concerns held about the health and safety of people at the place of work in circumstances where threats had been made by the Complainant. Any consideration of the Complainant's history would reasonably give rise to concerns about the health and safety of the other employees and the Complainant herself.

96. [93]
    The Complainant's submissions state that she had never been physically violent at work, however the Complainant's disciplinary history confirms that the Complainant had made threats of physical violence. It was not necessary for the Respondent to wait for an actual incident of violence to occur before seeking a medical clearance. In these circumstances, it was not unreasonable to consider that a medical clearance was necessary to protect the health and safety of the people at the workplace.

97. [94]
    The evidence of Ms Takla demonstrated genuine concern about the health and safety of the workers when seeking the medical clearance. Ms Takla gave evidence that:

We continued to work with Prudence to help her get well and get back to work. We as an employer need to make sure that all employees in the workplace are safe and that nobody is exposing anybody to any risk of harm, whether it's psychological or physical.^[69]

98. [95]
    Section 108 requires the act to have been 'reasonably necessary to protect the health and safety of people at a place of work.' In circumstances where there was a pattern of behaviour involving verbal abuse and threats of physical harm, I am satisfied the Respondent has demonstrated that a medical clearance beyond the cursory letter initially provided was 'reasonably necessary' to protect the health and safety of people in the Complainant's workplace.

99. [96]
    The Roles Requirements document forwarded to the AMIEU provided for a more detailed medical assessment of the Complainant's capacity. In circumstances where it was unclear from Letter Two whether Dr Gileppa was aware of the Complainant's role requirements and work environment, a request that these matters be considered in the context of a medical assessment was reasonably necessary.

100. [97]
     I am not persuaded that the Respondent did not intend to allow the Complainant to return to work. The Roles Requirements document was sent to the Complainant's representative with instructions to provide the completed document to the Respondent. There is no evidence to indicate that the Respondent would not have accepted the completed document and, if medical clearance had been given, allowed the Complainant to return to work. Whilst this document should have been provided to the Complainant at first instance, the evidence suggests that unlike the usual role of HR in addressing the disciplinary conduct, this matter required the further involvement of the WHS manager.  The only reasonable inference that can be drawn from the fact the form had not been seen a significant number of times by Mr Luke or Ms Takla is that similar circumstances had not arisen regularly.

101. [98]
     I am not persuaded by the Complainant's submission that the Respondent was 'never' going to allow the Complainant to return to work. The history of the Respondent’s management of the Complainant's employment indicates that the Respondent did not hold an adverse view of the Complainant's presumed impairment. The managers of the Complainant had shown considerable patience and support throughout the multitude of previous incidents involving the Complainant in the workplace. This history gives weight to a finding that the Respondent would have allowed the Complainant to return to the workplace if the medical clearance had been returned indicating that it was safe to do so.

102. [99]
     I accept the Respondent's submissions that the Complainant resigned under a mistake of fact as she was unaware of the Respondent's requirements in terms of the medical clearance questionnaire.

103. [100]
     The Applicant refers to the principle in Jones v Dunkel^[70] ('Jones v Dunkel') and submits that an adverse inference may be drawn against the Respondent for their failure to call Ms Byrne as a witness.

104. [101]
     I note the consideration of the principle in Kuhl v Zurich Financial Services Australia Ltd^[71] ('Kuhl') in which the High Court stated:

The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case^[72]

104. [102]
     The court in Kuhl referred to the inference that may be drawn in such circumstances, stating:

The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.^[73]

105. [103]
     In Australian Securities and Investments Commission v Hellicar^[74] the High Court stated:

…that any inference favourable to the plaintiff for which there was ground in the evidence might more confidently be drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation for his absence.

106. [104]
     The conditions to be applied when considering whether to draw a Jones v Dunkel inference are whether the uncalled witness would be expected to be called by one party rather than the other, whether their evidence would elucidate the matter, and whether their absence is unexplained.

107. [105]
     The Complainant submits that an adverse inference may be drawn following the failure of the Respondent to call Fiona Byrne as a witness. As it was the Applicant who intended to rely upon Ms Byrne as a comparator, one would expect that it would be the Complainant who would call Ms Byrne to give evidence rather than the Respondent. In circumstances where the Respondent confirmed that the Complainant was required to obtain a medical clearance prior to returning to work following her advice that she had PTSD, it is unclear exactly what matter Ms Byrne would be able to elucidate. It was not disputed that Ms Byrne returned to work after the relevant incident in circumstances where the Complainant was suspended pending a medical clearance. Accordingly, I am not persuaded than an adverse inference should be drawn for the failure to call Ms Byrne to give evidence.

Conclusion

108. [106]
     The onus lies with the Complainant to demonstrate that the alleged conduct occurred and that the alleged conduct was less favourable treatment because of a protected attribute in circumstances that are the same or not materially different. The Complainant has discharged that onus and I am satisfied that the Complainant was subject to less favourable treatment following the Respondent's direction to provide a medical clearance before she could return to the workplace. This treatment was contrary to s 15(f) of the AD Act which prohibits discrimination in the work area by treating a worker unfavourably in any way in connection with work.

109. [107]
     However, I am satisfied the Respondent's requirement that the Complainant provide an appropriate medical clearance was reasonably necessary to protect the health and safety of people at her place of work. Accordingly, the Respondent's actions were permissible pursuant to the workplace health and safety exemption outlined in s 108. In these circumstances, s 103 of the AD Act applies confirming that the conduct of the Respondent was not unlawful.

Costs

110. [108]
     Neither party indicated in the material filed that orders relating to costs were sought.

111. [109]
     Section 2 of schedule 2 of the Industrial Relations Act 2016 (Qld) provides that the usual position for proceedings brought under the AD Act is that each party bear its own costs.

112. [110]
     Section 4 of schedule 2 provides that the Commission may make an order of costs if it considers such an order is required in the interests of justice, with s 4(2) outlining matters to which the Commission may have regard in considering an order of costs.

113. [111]
     Having considered the matters in s 4(2), I am not of the view that the circumstances of this matter warrant a departure from the usual position in order to make an award of costs.

Orders

114. [112]
     I make the following orders:

1. That the complaint be dismissed.

2. Each party to bear their own costs.