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Toodayan and Toodayan v Metro South Hospital and Health Service[2023] QIRC 36

Toodayan and Toodayan v Metro South Hospital and Health Service[2023] QIRC 36

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Toodayan and Toodayan v Metro South Hospital and Health Service & Others [2023] QIRC 036

PARTIES:

Toodayan, Nadeem

(Complainant)

v

Metro South Hospital and Health Service

(First Respondent)

and

Jordan, Lizbeth

(Second Respondent)

and

Nicholls, Kim

(Third Respondent)

CASE NO:

AD/2018/67

PARTIES

Toodayan, Zaheer

(Complainant)

v

Metro South Hospital and Health Service

(First Respondent)

and

Jordan, Lizbeth

(Second Respondent)

and

Nicholls, Kim

(Third Respondent)

CASE NO:

AD/2018/68

PARTIES

Toodayan, Nadeem

(First Complainant)

and

Toodayan, Zaheer

(Second Complainant)

v

Metro South Hospital and Health Service

(Respondent)

CASE NO:

AD/2019/110

PROCEEDING:

Referral of Complaints

DELIVERED ON:

9 February 2023

HEARING DATES:

8 October 2019 (AD/2018/67 & AD/2018/68)

9 September 2020 (AD/2019/110)

8 March 2021 (AD/2018/67, AD/2018/68 & AD/2019/110)

11-28 October 2021 inclusive (AD/2018/67, AD/2018/68 & AD/2019/110)

3 December 2021 (AD/2018/67, AD/2018/68 & AD/2019/110)

MEMBER:

O'Connor VP

HEARD AT:

Brisbane

ORDERS:

  1. That Complaints AD/2018/67, AD/2018/68 and AD/2019/110 be dismissed.
  1. I will hear the parties on the question of costs.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – where complainants employed as intern doctors of the respondent – where respondent implemented management strategy – where respondent made voluntary notifications to Australian Health Practitioner Regulation Agency – where first complainant resigned before completing general registration – where second complainant not offered further employment at end of internship – where complainants entered hospital when not workers and had no right to access the hospital at that time of day or enter particular areas – where second complainant pleaded guilty to trespass, computer hacking and misuse – where first complainant pleaded guilty to trespass – where respondents submit all applications are out of time and should be dismissed – where complainants allege discrimination on the basis of certain attributes – where attribute of religious belief within the meaning of s 7(i) of the Anti‑Discrimination Act 1991 – where attribute of race within the meaning of s 7(g) of the Anti‑Discrimination Act 1991 – whether person with an attribute is treated less favourably than another person without the attribute – whether discrimination in work area – whether discrimination in administration of state laws and programs area – where complainants seeking apology and general damages pursuant to ss 15 and 101 of the Anti‑Discrimination Act 1991 – where complainants failed to discharge the onus of establishing the treatment of them amounts to unlawful direct discrimination – complaints dismissed.

LEGISLATION:

Anti-Discrimination Act 1991 (Qld), s 6, s 7, s 8, s 10, s 15, s 46, s 101, s 138, s 164A, s 175, s 209

Criminal Code Act 1899 (Qld), s 408E

Health Practitioner Regulation National Law Act 2009 (Qld), s 144

Hospital and Health Boards Act 2011 (Qld), s 15

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 52

Summary Offences Act 2005 (Qld), s 11

CASES:

Bird v the Commonwealth (1988) 165 CLR 1

Bonner v Secretary, Department of Industry [2017] NSWCATAD 229

Campbell v Kirstenfeldt [2008] FMCA 1356

Carlton v Blackwood [2017] ICQ 001

Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6

Creek v Cairns Post Pty Ltd (2001) 112 FCR 342

Curwen & Ors v Vanbreck Pty Ltd (2009) 26 VR 335

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Dezfouli v Health Care Complaints Commission [2018] NSWCATAD 245

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Forest v Queensland Health [2007] FCA 1236

G v. H (1994) 181 CLR 387

Haider v Hawaiian Punch Pty Ltd [2015] FCA 37

IW v City of Perth (1997) 191 CLR 1

Jones v Toben [2002] FCA 1150

Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88

McEvoy v Acom Stairlifts Pty Ltd [2017] NSWCATAD 273

Petrak v Griffith University [2020] QCAT 351

Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; 217 CLR 92; 78 ALJR 1; 202 ALR 133

Qantas Airways Ltd v Gama (2008) 167 FCR 537

R v A2 (2019) 373 ALR 214

Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334

Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 A11 ER 26

Sharma v Legal Aid (Qld) (2002) 115 IR 91

Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278

Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260

Woodforth v State of Queensland [2017] QCA 100; [2018] 1 Qd R 289

Wotton v State of Queensland (No 5) [2016] 352 ALR 146

Wright v Callvm Vacheron Wallace Bishop & Anor [2018] QIRC 007

Yousif v Workers' Compensation Regulator [2017] ICQ 004

APPEARANCES:

Mr N.J. Derrington, Counsel instructed by Mr Z. Kelly, Greystone Lawyers for the Complainants.

Mr C. Murdoch, KC and with him Dr M. Brooks, Counsel instructed by Mr T. Walthall, Minter Ellison Lawyers for the Respondents

Reasons for Decision

  1. [1]
    On 14 August 2018 applications AD/2018/67 and AD/2018/68 were referred from the Anti-Discrimination Commission Queensland (ADCQ) (now the Queensland Human Rights Commission (QHRC) as from 1 July 2019) to the Queensland Industrial Relations Commission (the Commission) in accordance with s 164A of the Anti‑Discrimination Act 1991 (the AD Act).
  1. [2]
    On 18 September 2019 application AD/2019/110 was transferred to the Commission from the Queensland Civil and Administrative Tribunal pursuant to s 52(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  1. [3]
    At a hearing on 8 October 2019 the parties agreed as there were a number of similarities that all three matters be heard together.[1]  All matters were listed for hearing from 11‑28 October 2021.
  1. [4]
    The Complainants, Dr Nadeem Toodayan (Dr Nadeem) and Dr Zaheer Toodayan (Dr Zaheer) have brought three separate claims against the Respondents:
  1. (a)
    a claim by Dr Nadeem alleging direct discrimination on the basis of religious belief against Metro South Health and Hospital Board (MSHHS), Dr Lizbeth Jordan and Dr Kim Gill (nee Nicholls) in relation to Dr Nadeem's internship;
  1. (b)
    a claim by Dr Zaheer alleging direct discrimination on the basis of his religious beliefs against MSHHS, Dr Lizbeth Jordan and Dr Gill in relation to Dr Zaheer's internship; and
  1. (c)
    a claim by Dr Nadeem and Dr Zaheer alleging direct discrimination on the basis of their respective religious beliefs and/or race against Dr Nadeem and Dr Zaheer at the Princes Alexandra Hospital (PAH) on 4 April 2014 (G20 Incident).
  1. [5]
    In respect of AD/2018/67 and AD/2018/68 the Complainants are seeking the following:
  1. An order, pursuant to s 209(1)(b) and (g) of the AD Act, that the respondents pay to the complainants compensation for loss and damage suffered by reason of their contraventions of s 15 of the AD Act.
  1. An order, pursuant to s 209(1)(e), or in the alternative s 209(1)(d) of the AD Act, that the respondents make a public, or in the alternative private, apology to the complainants.
  1. [6]
    In respect of AD/2019/110 the Complainants are seeking the following:
  1. An order, pursuant to s 209(1)(b) and (g) of the AD Act, that the respondent pay to the complainants compensation for loss and damage suffered by reason of its contraventions of ss 15, 46 and 101 of the AD Act.
  1. An order, pursuant to s 209(1)(e), or in the alternative s 209(1)(d) of the AD Act, that the respondent make a public, or in the alternative private, apology to the complainants for its contraventions of ss 15, 46 and 101 of the AD Act.
  1. [7]
    The Hospital and Health Boards Regulation 2012 was amended by the Hospital and Health Boards (Changes to Prescribed Services) Amendment Regulation 2019 as from 15 June 2020 whereby particular health service employees will be employed by the chief executive of the department.  As a consequence, the relief sought against the health service will now be against the State of Queensland.
  1. [8]
    As the Complainants are twin brothers they will be referred to by their respective Christian names for ease of reference within this decision.

Facts and Contentions

  1. [9]
    The Respondents initially argued that in respect of AD/2018/67, AD/2018/68 and AD/2019/110 all three applications are out of time.  The complaints were made outside of the one-year statutory time limit provided by s 138 of the AD Act.  In respect of matters AD/2018/67 and AD/2018/68, the Respondents argued that before considering any of the substantive matters in dispute between the parties, the Commission should exercise its discretion not to accept the complaints and an order made that matters AD/2018/67 and AD/2018/68 be dismissed.[2]
  1. [10]
    Whilst the strike out was agitated in the Respondents' Response to the Complainants' Statement of Facts and Contentions (SOFCs), the argument was not further advanced before the Commission prior to the hearing of the substantive issues.

AD/2018/67

Complainant - Dr Nadeem

  1. [11]
    The Complainant, Dr Nadeem was employed by the Respondent at the PAH as an intern doctor between January 2012 and 19 November 2013.  Dr Nadeem is of the Afghan race and is, and at all material times was, of the Islamic faith.
  1. [12]
    The Second Respondent, Dr Jordan was at all material times between January 2012 and 19 November 2013, the Deputy Director of Medical Services or Executive Director of Medical Services (EDMS) at the PAH.
  1. [13]
    The Third Respondent, Dr Nicholls was at all material times between January 2012 and 11 November 2013, the Acting Director of Clinical Training, or the Director of Clinical Training (DCT) at the PAH.
  1. [14]
    As of 31 January 2012, Dr Jordan was aware that Dr Nadeem was of the Islamic faith and perceived Dr Nadeem to be a devout Muslim, as having a rather narrow view of normality and to be quite judgmental at times.

Management Strategy

  1. [15]
    On 31 January 2012, Dr Jordan emailed, inter alia, Dr Nicholls (Gill) and proposed that Dr Nicholls, herself and the other recipients of the email would cause the PAH to implement a management strategy (the Management Strategy) in respect of Dr Nadeem's employment, whereby supervisory staff would:
  1. (a)
    treat Dr Nadeem more firmly (including no margin for question) when correcting mistakes or providing feedback, as compared to other interns in the same or a similar position;
  2. (b)
    correct more frequently mistakes made by Dr Nadeem as compared to other interns making the same number of mistakes in their training;
  3. (c)
    provide more direct, specific, precise and consistent feedback than would be given to other interns in the same or a similar position about what is appropriate and what is not;
  4. (d)
    be more blunt and to the point about what interns could and could not do when supervising or dealing with Dr Nadeem as compared to other interns in the same or a similar position; and
  5. (e)
    give feedback to Dr Nadeem only in absolute, rather than qualified terms, as would usually occur with other interns in the same or in a similar position.[3]
  1. [16]
    The actions of writing the email and proposing the implementation of the Management Strategy was said to involve treatment of Dr Nadeem that was less favourable than Dr Jordan would have treated a medical intern, at the same respective stages of their internship, who was not perceived to be a devout Muslim; as having a rather narrow view of normality and/or as having a tendency to be quite judgemental at times.
  1. [17]
    It is contended that a substantial reason for Dr Jordan drafting the email and proposing the implementation of the Management Strategy was, individually and cumulatively, each of Dr Jordan's perceptions.
  1. [18]
    As set out in Complainant's SOFCs, Dr Jordan is alleged to have treated Dr Nadeem less favourably on account of the attribute of his religious belief[4] and outlined specific instances of the implementation of the Management Strategy on Dr Nadeem.[5]

Notifications to AHPRA

  1. [19]
    In implementation of the Management Strategy on or about 10 September 2012, Dr Jordan made a voluntary notification under s 144(1)(a) and (b) of the Health Practitioner Regulation National Law Act 2009 (Qld) (the National Law) to the Australian Health Practitioner Regulation Agency (AHPRA) about Dr Nadeem, in which she criticised Dr Nadeem's use of language in a discharge summary and reported to AHPRA the matters pleaded.[6]
  1. [20]
    Further, in implementation of the Management Strategy on or about 14 December 2012 and 8 March 2013, Dr Gill wrote to AHPRA to express concern to the Medical Board of Australia (MBA/the Medical Board) about Dr Nadeem's ongoing registration, purportedly because of, inter alia, a concern about Dr Nadeem's 'performance and ability to remediate areas of weakness'.
  1. [21]
    The actions of making the voluntary notification and writing to AHPRA involved treatment of Dr Nadeem that was less favourable than Drs Jordan and Gill would have treated a medical intern in similar circumstances to Dr Nadeem at the respective time of the voluntary notification and writing the letters who was not perceived to be a devout Muslim, as having a rather narrow view of normality and/or as having a tendency to be quite judgemental at times.

Consequences of the conduct of the Respondents

  1. [22]
    As a result of the implementation of the Management Strategy and the matters set out in paragraphs 16-23 of his SOFCs, Dr Nadeem had conditions placed on his provisional registration by AHPRA in or about May 2013.[7]
  1. [23]
    On or about 28 October 2013, before Dr Nadeem obtained his general registration, the First Respondent required him to show cause why his employment should not be terminated, inter alia, because of the decisions of the First Respondent referred to in paragraphs 11(b), (e), (g), (i) and (j) of his SOFCs; and Dr Nadeem not being assessed as having satisfactorily completed certain rotations, notwithstanding the matters in paragraphs 11(f)(i) and (h)(i) of his SOFCs.[8]
  1. [24]
    By reason of the above Dr Nadeem resigned his employment on 19 November 2013 and was precluded from obtaining employment to continue his training as a doctor, other than for a three-month period between October and December 2014, until October 2016.  He was required to move interstate to continue that training and was only able to obtain his general registration as a doctor in or about May 2017 and has suffered economic loss.
  1. [25]
    Dr Nadeem suffered loss and damage by reason of injury to his professional and personal reputation, and the suffering of humiliation and distress.
  1. [26]
    Dr Nadeem contends he was directly discriminated against within the meaning of s 10 of the AD Act on each of the occasions pleaded on the basis of the attribute of his religious belief within the meaning of s 7(i) of the AD Act.  He also contends Drs Jordan and Nicholls contravened s 15(1)(f) of the AD Act.  Further, Dr Nadeem contends he suffered the loss pleaded by reason of the contraventions pleaded.

Respondents

  1. [27]
    The Respondents contend they have not engaged in any conduct which constitutes discrimination under the AD Act.  Dr Nadeem was not treated less favourably because of the attribute of his religious belief; decisions made, and action taken was because of documented concerns about Dr Nadeem's performance during his internship; and persons without the attribute of Dr Nadeem's religious belief would have been treated in the same way because of those performance issues.[9]
  1. [28]
    The Respondents specifically responded to each of the Complainant's allegations in paragraphs [1] to [27] of his SOFCs.[10]

Discrimination on the basis of religious belief

  1. [29]
    The Respondents deny they have engaged in any conduct which constitutes direct discrimination within the meaning of s 10 of the AD Act on the basis of Dr Nadeem's religious beliefs within the meaning of s 7(i) of the AD Act because it is not true.  Each occasion where discrimination is alleged to have occurred that the treatment of Dr Nadeem was as a result of his performance as an intern being considered to be unsatisfactory was not on the basis of the attribute of his religious beliefs.  In any event, a person of a different religious belief to Dr Nadeem's religious beliefs would have been treated in the same way in circumstances that are the same or not materially different.[11]
  1. [30]
    Further, the Respondents deny the allegations they contravened s 15 of the AD Act as it is not true.  It is also denied their actions caused economic loss or damage.

AD/2018/68

Complainant - Dr Zaheer

  1. [31]
    It was contended that as of 31 January 2012, Dr Jordan was aware that Dr Zaheer was of the Islamic faith and perceived to be a devout Muslim, as having a rather narrow view of normality and quite judgmental at times.

Management Strategy

  1. [32]
    On 31 January 2012, Dr Jordan emailed Dr Gill and proposed that Dr Gill, Dr Jordan and the other recipients of the email would cause the PAH to implement a Management Strategy in respect of Dr Zaheer's employment, whereby supervisory staff would:
  1. (a)
    treat Dr Zaheer more firmly (including no margin for question) when correcting mistakes or providing feedback, as compared to other interns in the same or a similar position;
  2. (b)
    correct more frequently mistakes made by Dr Zaheer as compared to other interns making the same number of mistakes in their training;
  3. (c)
    provide more direct, specific, precise and consistent feedback than would be given to other interns in the same or a similar position about what is appropriate and what is not;
  4. (d)
    be more blunt and to the point about what interns could and could not do when supervising or dealing with Dr Zaheer as compared to other interns in the same or a similar position; and
  5. (e)
    give feedback to Dr Zaheer only in absolute, rather than qualified terms, as would usually occur with other interns in the same or a similar position.[12]
  1. [33]
    The actions of writing the email and proposing the implementation of the Management Strategy involved treatment of Dr Zaheer that was less favourable than Dr Jordan would have treated a medical intern, at the same respective stages of their internship, who was not perceived to be a devout Muslim; as having a rather narrow view of normality and/or as having a tendency to be quite judgmental at times.  A substantial reason for Dr Jordan writing the email and proposing the implementation of the Management Strategy was, individually and cumulatively, each of Dr Jordan's perceptions.
  1. [34]
    As set out in the Complainant's SOFCs, Dr Jordan treated Dr Zaheer less favourably on account of the attribute of his religious belief[13] and outlined specific instances of the implementation of the Management Strategy on Dr Zaheer.[14]

Notifications to AHPRA

  1. [35]
    In implementation of the Management Strategy on or about 14 December 2012 and 8 March 2013, Dr Nicholls wrote to AHPRA to express concern about Dr Zaheer's ongoing registration and performance; in the letter dated 14 December 2012 Dr Nicholls made representations to AHPRA about the assessment of Dr Zaheer's clinical judgement that were incorrect and, in the letter, dated 8 March 2013 Dr Nicholls made representations to AHPRA about the assessment of Dr Zaheer's professionalism that were incorrect or incomplete.[15]
  1. [36]
    As a result of the communications to AHPRA on or about 15 August 2013, AHPRA imposed conditions on Dr Zaheer's provisional registration requiring him to practise medicine with a higher level of supervision than an intern normally would require; Dr Zaheer was, as a result, unable to work between 8 October 2013 and 25 November 2013; and Dr Zaheer was not offered ongoing employment with the PAH after 20 January 2014.
  1. [37]
    The consequences of the conduct of the Respondents were that on or about 5 May 2014, Dr Zaheer obtained his general registration but only with the conditions which had been imposed by AHPRA continuing to be imposed; Dr Zaheer was thereafter precluded from obtaining employment to continue his training as a doctor until 27 October 2016; was required to move to New South Wales to continue that training, was only able to obtain general registration as a doctor without conditions in or about August 2017 and has suffered economic loss.  Further, Dr Zaheer suffered loss and damage by reason of injury to his professional and personal reputation and the suffering of humiliation and distress.[16]
  1. [38]
    Dr Zaheer contends he was directly discriminated against within the meaning of s 10 of the AD Act on each of the occasions pleaded on the basis of the attribute of his religious belief within the meaning of s 7(i) of the AD Act.[17]

Respondents

  1. [39]
    The Respondents contend they have not engaged in any conduct which constitutes discrimination under the AD Act.  Dr Zaheer was not treated less favourably because of the attribute of his religious belief; decisions made, and action taken was because of documented concerns about Dr Zaheer's performance during his internship; and persons without the attribute of Dr Zaheer's religious belief would have been treated in the same way because of those performance issues.[18]
  1. [40]
    The Respondents submitted responses to each of the Complainant's allegations in paragraphs [1] to [24] of his SOFCs.[19]

Discrimination on the basis of religious belief

  1. [41]
    The Respondents deny they have engaged in any conduct which constitutes direct discrimination within the meaning of s 10 of the AD Act on the basis of Dr Zaheer's religious beliefs within the meaning of s 7(i) of the AD Act because it is not true.  Each occasion where discrimination is alleged to have occurred that the treatment of Dr Zaheer was as a result of his performance as an intern being considered to be unsatisfactory was not on the basis of the attribute of his religious beliefs.  In any event, a person of a different religious belief to Dr Zaheer's religious beliefs would have been treated in the same way in circumstances that are the same or not materially different.[20]
  1. [42]
    Further, the Respondents deny the allegations they contravened s 15 of the AD Act as it is not true.  It is also denied their actions caused economic loss or damage.

AD/2019/110

Complainants

  1. [43]
    The Complainants state as of 31 January 2012, or in the alternative as of 4 April 2014, and subsequent thereto, persons of the Islamic faith and/or persons of the Afghan race:
  1. (a)
    often had imputed to them that they were devout Muslims;
  2. (b)
    often had imputed to them that they posed a greater threat to security than members of the general population; and
  3. (c)
    often had imputed to them that they were more likely than members of the general population to be involved in planning for and/or committing dangerous acts and/or acts of terrorism.[21]
  1. [44]
    In the alternative to paragraph 3 of the Complainants' SOFCs, as at 31 January 2012, or in the alternative as at 4 April 2014, and subsequent thereto, persons of the Islamic faith and/or persons of the Afghan race who were perceived to be 'devout Muslims':
  1. (a)
    often had imputed to them that they posed a greater threat to security than members of the general population; and
  2. (b)
    often had imputed to them that they were more likely than members of the general population to be involved in planning for and/or committing dangerous acts and/or acts of terrorism.[22]

G20 Incident

  1. [45]
    During his employment at the PAH, Dr Zaheer had been an intern in the colorectal unit.  On or around 4 April 2013 a young patient, was admitted under the care of the medical team of which Dr Zaheer was a part.  The patient was diagnosed with terminal cancer and subsequently passed away in December 2013. 
  1. [46]
    The Complainants' primary purpose in entering the PAH on 4 April 2014 was for:
  1. (a)
    Dr Zaheer, having been profoundly affected by the death of the patient:
  1. (i)
    to undertake a personal reflection on the death of the patient on the anniversary of her admission and diagnosis by revisiting both the location of the events and her previous pathology records;
  2. (ii)
    to accompany Dr Nadeem in the purposes set out in sub-paragraph (b); and
  1. (b)
    Dr Nadeem:
  1. (i)
    to support his brother in the purposes set out in sub-paragraph (a);
  2. (ii)
    to return a library book; and
  3. (iii)
    to photograph some posters on medical history that he and Dr Zaheer had placed in the doctors' on-call room of the hospital during their employment.[23]
  1. [47]
    During the incident Dr Zaheer took photographs of specific areas of the colorectal ward and ward corridor relating to his reflective exercise.  He also accessed the computer and took four photos of the computer screen which showed pathology results.  Dr Zaheer said he was not taking photos of nursing staff.  Both complainants left the colorectal ward, attended the doctors' common room and pathology department, returned Dr Nadeem's library book and after being spoken to by a security officer, namely Mr Coates to whom they disclosed the true purposes for their attendance at the PAH, left the PAH.[24]

Conduct of the Respondent following the Incident

  1. [48]
    Later on 4 April 2014, Dr Ashby the then Chief Executive, MSHHS was briefed and told Ms Smith and Dr Birgan to immediately contact the G20 Dignitary Protection Unit which was part of the Intelligence, Counter-Terrorism and Major Events Command of the Queensland Police Service (QPS) and seek advice on briefing the Royal Visit Dignitary Protection Unit.[25]
  1. [49]
    The Complainants contend that the giving of the instructions by Dr Ashby was treatment that was less favourable than Dr Ashby would have treated a former medical intern of the Respondent, who was not perceived:
  1. (a)
    to be of the Islamic faith;
  2. (b)
    to be of the Afghan race;
  3. (c)
    to be a devout Muslim;
  4. (d)
    to pose a greater threat to security than members of the general population because of their race or religion; and
  5. (e)
    to be more likely than members of the general population to have gained access to the PAH for the purpose of committing a dangerous act and/or in preparation for or in relation to an intended act of terrorism because of their race or religion,

because Dr Ashby would not have instructed a Hypothetical Comparator to be reported to a counter‑terrorism unit of the QPS.[26]

  1. [50]
    In the alternative, the giving of the instructions by Dr Ashby involved treatment of the Complainants that was less favourable than Dr Ashby would have treated an ordinary visitor to the PAH, who was not perceived:
  1. (a)
    to be of the Islamic faith;
  2. (b)
    to be of the Afghan race;
  3. (c)
    to be a devout Muslim;
  4. (d)
    to pose a greater threat to security than members of the general population because of their race or religion; and
  5. (e)
    to be more likely than members of the general population to have gained access to the PAH for the purpose of committing a dangerous act and/or in preparation for or in relation to an intended act of terrorism because of their race or religion,

because Dr Ashby would not have instructed an Alternative Hypothetical Comparator to be reported to a counter-terrorism unit of the QPS.[27]

  1. [51]
    In the premises of paragraphs 12 to 18 of their SOFCs, the Complainants state Dr Ashby treated them less favourably on account of the attribute of their religious belief and/or the attribute of their race.[28]

Respondent's compliance with the Instruction

  1. [52]
    Dr Ashby's giving of the instructions on 4 April 2014 caused employees of the Respondent to report the incident to a counter-terrorism unit of the QPS and to provide information about the Complainants to the QPS, including:
  1. (i)
    a comprehensive background history of the Complainants which included information about their race and religion; and
  2. (ii)
    a statement that the Complainants had longer beards and hair than when they were interns at the PAH; and
  3. (iii)
    information about the management strategy adopted during their internships, which included information about their race and religion.[29]
  1. [53]
    The Respondent's compliance with the instructions of Dr Ashby, by its employees pleaded in paragraph 20(b) of the Complainants' SOFCs, was treatment of the Complainants that was less favourable than the Respondent would have treated a Hypothetical Comparator, because the Respondent would not have complied with an instruction to report a Hypothetical Comparator to a counter-terrorism unit of the QPS or to provide the information to that unit as pleaded in paragraph 20(b).[30]
  1. [54]
    In the alternative, the Respondent's compliance with the instructions of Dr Ashby, by its employees pleaded in paragraph 20(b) of the Complainants' SOFCs, was treatment of the Complainants that was less favourable than the Respondent would have treated an Alternative Hypothetical Comparator, because the Respondent, by its employees, would not have complied with an instruction to report an Alternative Hypothetical Comparator to a counter-terrorism unit of the QPS or to provide the information to that unit pleaded in paragraph 20(b).[31]
  1. [55]
    The Complainants state a substantial reason for the Respondent's compliance with the instructions of Dr Ashby was, individually and cumulatively, each of Dr Ashby's perceptions that the Complainants:
  1. (a)
    were of the Islamic faith;
  2. (b)
    were of the Afghan race;
  3. (c)
    were devout Muslims;
  4. (d)
    posed a greater threat to security than members of the general population because of their race or religion; and
  5. (e)
    were more likely than members of the general population to have gained access to the PAH for the purpose of committing a dangerous act and/or in preparation for or in relation to an intended act of terrorism because of their race or religion.[32]
  1. [56]
    The Complainants state in the premises of paragraphs 20 to 23 of their SOFCs, the Respondent, by its employees, treated the Complainants less favourably on account of the attribute of their religious belief and/or the attribute of their race.[33]
  1. [57]
    By reason of the matters pleaded in paragraphs 10 to 25 of the Complainants' SOFCs, the Complainants have suffered loss and damage by reason of injury to their professional and personal reputation, and the suffering of humiliation and distress.[34]
  1. [58]
    The Complainants contend they were directly discriminated against within the meaning of s 10 of the AD Act on each of the occasions pleaded in paragraphs 13 and 20 of their SOFCs on the basis of the attribute of their religious belief within the meaning of s 7(i) of the AD Act and/or on the basis of the attribute of their race within the meaning of s 7(g) of the AD Act.[35]
  1. [59]
    In the premises pleaded in paragraphs 12 to 24 of the Complainants' SOFCs:
  1. (a)
    Dr Ashby contravened ss 15(1)(f), 46(1)(d) and 101 of the AD Act; and
  2. (b)
    by reason of s 133 of the AD Act, the Respondent contravened ss 15(1)(f), 46(1)(d) and 101 of the AD Act.[36]
  1. [60]
    In the premises pleaded in paragraphs 20 to 24 and 27 of the Complainants' SOFCs:
  1. (a)
    the Respondent, by its employees, contravened ss 15(1)(f), 46(1)(d) and 101 of the AD Act; or, in the alternative,
  2. (b)
    by reason of s 133 of the AD Act, the Respondent contravened ss 15(1)(f), 46(1)(d) and 101 of the AD Act.[37]
  1. [61]
    In the premises, the Complainants state they suffered the loss pleaded in paragraph 26 of the Complainants' SOFCs by reason of the contraventions pleaded in paragraphs 27 to 29 of the Complainants' SOFCs.[38]
  1. [62]
    In the premises, the Complainants claim as follows:
  1. (a)
    Dr Zaheer claims general damages in the sum of $100,000.00;
  2. (b)
    Dr Nadeem claims general damages in the sum of $125,000.00; and
  3. (c)
    the costs of the proceeding.[39]

Respondent

  1. [63]
    The Respondent states the alleged discrimination does not, as a matter of law, fall within ss 15(1)(f), 46(1)(d) or 101 of the AD Act and should be dismissed because:
  1. (a)
    Dr Nadeem and Dr Zaheer were not 'workers' in the employment of the Respondent at the time of the alleged contraventions;
  2. (b)
    Dr Nadeem and Dr Zaheer were not being supplied goods or services by the Respondent at the time of the alleged contraventions; and
  3. (c)
    no act was done by an employee of the Respondent in the performance of a function, exercise of power or in the carrying out of a responsibility within the meaning of s 101 of the AD Act.[40] 
  1. [64]
    The Respondent states that even if the AD Act applied, the Respondent did not engage in any conduct which constitutes discrimination under the AD Act for the reasons set out in paragraph 2 of the Respondent's SOFCs.
  1. [65]
    The Respondent in paragraphs 8-29 of their SOFCs set out their responses to the allegations in paragraphs 1-26 of the Complainants' SOFCs.[41]
  1. [66]
    In reference to paragraphs 27-31 of the Complainants' SOFCs, the Respondent:
  1. (a)
    denies it engaged in any conduct which constitutes direct discrimination within the meaning of s 10 of the AD Act on each of the occasions pleaded in paragraphs 13 and 20 of the Complainants' SOFCs on the basis of the Complainants' religious beliefs within the meaning of s 7(i) of the AD Act and/or on the basis of the Complainants' race within the meaning of s 7(g) of the AD Act for the reasons set out;
  1. (b)
    says that on each occasion where discrimination is alleged to have occurred that the treatment of the Complainants was on the basis of their unlawful conduct on 4 April 2014 and not on the basis of the attribute of their religious beliefs and/or race for the reasons set out;
  1. (c)
    says that, in any event, a Hypothetical Comparator or the Alternative Hypothetical Comparator would have been treated in the same way in circumstances that are the same or not materially different because:
  1. (i)
    either would not have authority to access the PAH at that time;
  2. (ii)
    either would have engaged in unlawful conduct in both accessing the PAH and a computer system to access patient records without authorisation;
  3. (iii)
    the PAH at that time was under a heightened awareness of and vigilance in relation to security issues in the lead up to the G20 (for which the PAH was to be a receiving hospital for certain dignitaries) as well as the impending Royal Visit;
  4. (iv)
    the Respondent was already in constant contact with the G20 Dignitary Protection Unit regarding security matters at the PAH;
  5. (v)
    in those circumstances the instruction and contact with the QPS about the unlawful conduct of either Comparator would have occurred; and
  6. (vi)
    in those circumstances the relevant information about either Comparator's unlawful conduct would have been provided to the QPS;
  1. (d)
    denies that it contravened s 15(1)(f) of the AD Act as alleged and further says that because neither Dr Nadeem nor Dr Zaheer were a worker of the Respondent within the meaning of that section at the time of the alleged discrimination that section cannot apply to the Complainants as a matter of law;
  1. (e)
    denies that it contravened s 46(1)(d) of the AD Act as alleged and further says that because neither Dr Nadeem nor Dr Zaheer were being supplied goods and services by the Respondent within the meaning of that section at the time of the alleged discrimination that section cannot apply to the Complainants as a matter of law;
  1. (f)
    denies that it contravened s 101 of the AD Act as alleged and further says that because no act was done by an employee of the Respondent, or the Respondent itself, in the performance of a function, exercise of power or in the carrying out of a responsibility within the meaning of s 101 that section cannot apply to the Complainants as a matter of law; and
  1. (g)
    otherwise denies that their actions caused loss or damage to the Complainants and says that any alleged loss or damage was solely because of the Complainants unlawful conduct on 4 April 2014.[42]
  1. [67]
    The Respondent seeks an order that the complaint be dismissed with costs.[43]

Outline of evidence

AD/2018/67 (Dr Nadeem)

Complainant

  1. [68]
    Dr Nadeem was born in Brisbane to Afghan parents and states he is of Muslim faith.  He graduated from Bond University with an MBBS degree in 2011.  He is currently employed as a medical registrar at The Wollongong Hospital in New South Wales and has worked in resident medical officer roles for over three years in total (excluding his internship) primarily in Victoria but also in Queensland, New South Wales and the Northern Territory.[44]
  1. [69]
    In 2018 Dr Nadeem was admitted to the Physician Training program of the Royal Australasian College of Physicians (RACP).  He successfully completed the RACP's written examination earlier in 2021 and is eligible to sit the clinical examination for progression to the Advanced Training program of the RACP.[45]

Internship

  1. [70]
    Dr Nadeem commenced his contract of employment at the PAH on 16 January 2012.  He was not assessed as satisfactorily completing the required terms during the first year of his internship and continued as an intern in 2013.  On 19 November 2013 Dr Nadeem resigned.[46]
  1. [71]
    During his internship Dr Nadeem stated he was treated differently and was subjected to increased scrutiny of his practice, pessimistic attitudes about his capabilities and learning, and harsh repercussions for holding and expressing differing perspectives of view.  He perceived he was treated less favourably than other interns and how he felt as a result of that treatment.[47]
  1. [72]
    During term one in General Medicine (Geriatrics) rotation Dr Nadeem was supervised by Drs Aitken and Rubbard.  On 27 February 2012 Dr Aitken conducted a mid-term performance assessment of Dr Nadeem when he was marked as unsatisfactory.  In a meeting with Drs Aitken and Nicholls on 28 February 2012, Dr Nadeem was told he would be excluded from 'ward call' duties (after hours work covering medical and surgical wards) and required to meet weekly to have his performance evaluated.[48]
  1. [73]
    Dr Nadeem said the explanation given by Dr Nicholls was, 'I was not safe to practice in less supervised conditions after hours' and other factual errors, referred to as the 'ward call incident'.  This incident involved Dr Zaheer on 30 January 2012 and when Dr Nadeem tried to correct Dr Nicholls, he states that he was cut off by Dr Aitken, who said 'no but there were still issues identified and you agreed to this'.  In disputing this Dr Nadeem felt his point of view was disregarded.[49]
  1. [74]
    On or about 28 March 2012 Dr Nadeem received a letter from the Executive Director & Director Medical Services, PAH requiring him to attend a Mental Health Assessment.  Dr Nadeem attended the assessment and was provided with a psychiatric report by Dr New dated 25 April 2012.  The report did not identify any treatable mental health condition that might affect his performance but did comment upon (amongst other things) personal background including details concerning ethnicity and religion, differences in personality and the likelihood for such differences to exercise undue influence on people responsible for assessing his performance.[50]
  1. [75]
    In the opinion of Dr Nadeem from this time onwards his relationship with staff at the PAH was compromised and he felt he did not trust the staff to treat him fairly and that none of the interns he worked closely with (except Dr Zaheer) were treated this way.[51]
  1. [76]
    On 13 August 2012 Dr Nadeem received an email from Dr Jordan informing him that the PAH had received a complaint from a GP about a discharge summary he had written, and this GP suggested that Dr Nadeem should be referred to AHPRA.  At a meeting on 14 August 2012 Dr Nadeem attended a meeting with Drs Nicholls and Naidoo of the Medical Education Unit (MEU) when Dr Nicholls said something to the effect, 'you've caused us so much trouble to date; and now this'.  Dr Nadeem was taken aback and felt that Dr Nicholls was being pessimistic towards him and would make no attempt to see things from his perspective.  He cannot remember a single instance in which Dr Nicholls encouraged him or told him he was doing something well (even when other senior supervisors had thought so).[52]
  1. [77]
    During terms four and seven Dr Nadeem was rostered in the Emergency Department (ED) with supervising consultants Drs Isoardi, Bazianis and Staib.  On or around 14 November 2012 the end of term assessment for the first ED rotation was completed by Dr Staib.  Dr Nadeem was assessed as unsatisfactory overall requiring further development in five criteria: clinical judgment/decision-making skills; emergency skills; medical records/clinical documentation; time management skills and teamwork and colleagues.[53]
  1. [78]
    Term five rotation was in Hepatobiliary Surgery with supervising consultants Drs Fawcett, O'Rourke and Hodgkinson.  On 12 December 2012 Dr Nadeem attended a meeting with Drs Fawcett and Nicholls at which his mid-term assessment was completed and his performance assessed as unsatisfactory overall.  At the end of term assessment on or around 9 January 2013 Dr Fawcett assessed Dr Nadeem as '[r]equires Further Development' in four domains, but nonetheless as '[s]atisfactory' overall.  Dr Fawcett then had a discussion with Dr Nicholls who persisted that Dr Nadeem should fail.  Dr Fawcett continued to disagree with Dr Nicholls, and ultimately walked out of the room in which Dr Nadeem perceived to be frustration when Dr Nicholls told him that he had no choice but to assess Dr Nadeem as '[u]nsatisfactory' overall.[54]
  1. [79]
    Even though Dr Fawcett's handwritten assessment form records Dr Nadeem's performance as '[s]atisfactory overall', the electronic assessment form records performance as '[u]nsatisfactory overall'.[55]
  1. [80]
    In his affidavit Dr Nadeem refers to Dr Gill's letter of 8 March 2013 to AHPRA and states as follows:
  1. (a)
    qualifies Dr Fawcett's overall satisfactory assessment of performance by recording (at page 15) 'End of term assessment - HPB.  Satisfactory assessment although noted to have not participated in ward call duties'.  That notation was inserted at Dr Nicholls' urging;
  1. (b)
    which wrongly records (at page 16) that Professor Fawcett commented, '[u]undoubtedly Nadeem is unusual, scholarly and well informed' on the assessment form.  The MEU's electronic transcription of the assessment form correctly records Professor Fawcett's handwritten comment as '[u]ndoubtedly Nadeem is unusually scholarly and well informed'; and
  1. (c)
    qualifies Dr Fawcett's satisfactory assessment of me by noting (on page 16) 'Prof Fawcett acknowledge that Dr Toodayan still required further development he felt that this did not need to take place in the division of surgery'.[sic]  To the contrary, during the meeting Dr Fawcett insisted that my performance had been satisfactory, that I not fail the rotation, and said something like 'well he doesn't need to do more surgical rotations'.  Interns are only required to complete one satisfactory rotation in surgery.[56]
  1. [81]
    In her show cause letter of 26 August 2013, Dr O'Dwyer refers to this assessment (and all of Dr Nadeem's other assessments to that date) as a 'conceded pass'.[57]
  1. [82]
    Dr Nadeem states during term six in cardiology rotation his supervising consultants were Drs Garrahy and Wang.  He said there were a number of occasions where he believes he was treated differently to other interns.  Firstly, he says he was required to go on a ward round on his own with Dr Garrahy and another consultant, Dr Ng.  During this ward round he was required by Drs Garrahy and Ng to update them on every single patient on the ward in the Coronary Care Unit (CCU) in detail.  This is not a task usually required of interns and typically done with a large group of doctors of varying levels of seniority, and the medical registrar/s or advanced trainees are expected to lead the way and present patients.  Drs Garrahy and Ng scrutinized him in detail about each of the patients.[58]
  1. [83]
    On 27 February 2013 at a mid-term assessment meeting with Drs Garrahy, Ng and Nicholls issues were raised about Dr Nadeem's answers to certain questions asked during the ward round.  Dr Garrahy told Dr Nadeem he should 'read and memorise all of Harrison's' to which he responded, 'I don't think that I will have the time [to do that]'.  Dr Nadeem said Harrison's Principles of Internal Medicine is one of the standard medical textbooks and is approximately 8000 pages long.  Both doctors assessed Dr Nadeem's mid-term assessment performance as unsatisfactory.  Dr Garrahy's assessment form refers to Dr Nadeem's response about not having time to memorise a book but omits any reference to the unreasonable request.[59]
  1. [84]
    The second most distressing experience by Dr Nadeem happened at a meeting during cardiology rotation towards the end of the term when Dr Garrahy became conscious of his Islamic faith and made remarks about his religious beliefs and included questions about his sexuality ('do you think about women/sex?').  The most offensive comment Dr Garrahy said was, 'you need to find a more forgiving God … I can commit adultery as many times as I want and my God will forgive me'.  Ms Angela O'Connor, MEU was also present taking notes and after Dr Garrahy left Dr Nadeem told her he had been very uncomfortable during the interview and that, 'I hope you wrote down what he [Dr Garrahy] said' referring to the adultery comment.  Dr Nadeem said he was so distressed by the statement he left the ward.  Dr Nadeem said he knew later that none of the notes document this statement.[60]
  1. [85]
    Thirdly, Dr Nadeem recalled when on rounds one morning, Dr Korczyk singled him out from the other interns and more senior doctors and asked him to interpret certain aspects of a patient's electrocardiogram (ECG).  The patient had Fabry's disease associated cardiomyopathy which Dr Nadeem had been discussing with the medical students and was focussed on when interpreting the ECG.  Dr Korczyk began raising his voice and saying something like, 'don't tell me about that! Just say what you see on this ECG!'.  Dr Nadeem felt intimidated and was so distraught that he left the ward round altogether shortly afterwards.[61]
  1. [86]
    On 10 April 2013 Dr Nadeem attended a meeting for his end of term cardiology assessment and there were eight or nine people including Dr Nicholls present which were more than in any of his other assessments or in his understanding in any other interns' assessments.  Dr Nicholls negatively influenced Dr Nadeem's supervisors' assessments of him by confronting him in front of the panel.  For example, when one of the consultants asked a question about certain aspects of his performance and he began to respond, Dr Nicholls would say things like, 'you say you are keen to improve and are working hard on this, but why are all your assessments showing that you are failing?  You have had these difficulties in every rotation to date'.  Dr Nadeem found out some time after that he had failed the term.[62]
  1. [87]
    Dr Nadeem commenced his second ED rotation as a supernumerary on or around 15 April 2013 with his clinical supervisors being Drs Staib and Isoardi. 
  1. [88]
    On 2 May 2013 Dr Nadeem received a letter from AHPRA regarding the renewal of his provisional registration.  The letter stated that the MBA had reviewed a number of documents being Dr Jordan's notification of 10 September 2012, Dr Nicholls' letter of 8 March 2013 and Dr New's psychiatric assessment dated 25 April 2012 and approved his application for renewal of provisional registration subject to conditions set out in the letter.  In summary, the conditions, to be reviewed after twelve months, required Dr Nadeem to nominate a supervisor and for that supervisor to be approved by the Medical Board; required Dr Nadeem to maintain a register of patients he treated, consulted or assessed, and to have his medical record writing reviewed monthly by his nominated supervisor; and required his supervisor(s) to make written reports to the Medical Board regarding his performance within one, two, three, six and twelve months of the commencement of the conditions.[63]
  1. [89]
    On or around 23 May 2013 Dr Staib completed Dr Nadeem's mid-term performance assessment as unsatisfactory.  Dr Nadeem's end of term performance assessment on or around 20 June 2013 by Dr Staib was satisfactory.[64]
  1. [90]
    An arrangement was reached with AHPRA on or around 30 August 2013 whereby Dr Nicholls would be Dr Nadeem's nominated supervisor and be responsible for coordinating the preparation of the mandatory reports with the reports to be prepared by his clinical supervisors for each rotation.[65]
  1. [91]
    Dr Nadeem was allocated to the endocrinology department for term 3B.  This was the last unit he had to complete satisfactorily to be eligible to complete his internship and apply for general registration.  His primary supervising consultant was Dr MacKenzie with whom there was a lot of conflict.  Dr Nadeem said at first, she was quite supportive but later became very hostile towards him.[66]
  1. [92]
    In one incident Dr Nadeem asked Dr MacKenzie what he should do when a patient was refusing to leave a clinic room, Dr MacKenzie started being verbally abusive and raised her voice saying things like, '[w]hy didn't you kick them out! What do you mean you didn't know what to do! Anybody would know that! You drag them out of the room!'[67]
  1. [93]
    On another occasion involving Dr MacKenzie in one of the endocrinology department meetings, Dr Nadeem asked a question regarding vanishing diabetes after hypophysectomy.  In a rude and derogatory manner, in front of all the attendees, Dr MacKenzie said words to the effect of, 'why did you have to say that!, that's what we've been talking about!; this is all irrelevant' and other comments to similar effect.  Her tone of voice was harsh and condescending.[68]
  1. [94]
    On or around 26 August 2013 Dr Nadeem received a letter from Dr O'Dwyer requiring him to show cause why his employment should not be terminated and that, 'the Hospital believe that you … should not progress through to a less supervised environment enabled by the provision of General Registration'.[69]
  1. [95]
    On 11 September 2013 Dr Nadeem was allocated to remain in endocrinology for term 4B from 7 October 2013 to 10 November 2013.  On or around 13 September 2013 Dr MacKenzie completed a report as required by the conditions to AHPRA regarding Dr Nadeem's performance which states he had mistakenly used the term, 'Brodie's abscess' (which he disputes) but had not 'read about foot ulcers' more generally.  Dr Nadeem states this is untrue as he had read in detail about foot ulcers, which he told Dr MacKenzie.  Dr MacKenzie's report instead focussed on his reference to Brodie's original 1832 publication describing 'cases of chronic abscess of the tibia' in a way that misrepresented (or otherwise unfairly portrayed) his interest in this matter.[70]
  1. [96]
    On 20 September 2013 Dr Nadeem's lawyers wrote to the PAH in response to the show cause letter he received from Dr O'Dwyer.
  1. [97]
    A further report was made to AHPRA by Dr MacKenzie on or around 4 October 2013 regarding Dr Nadeem's performance.  In that report Dr MacKenzie made what was said to be an exaggerated or misleading statement about a comment Dr Nadeem had made about a mentally impaired patient.  The comment attributed to Dr Nadeem was reported out of context relating to a patient who had Prader-Willi syndrome (and a resulting mild/moderate intellectual impairment) had made allegations of sexual abuse against her carers in a nursing home.  The previous clinic notes stated this complaint had been investigated and that the allegations were dismissed.  Dr Nadeem wrote in a GP letter that the allegations were found to be 'hardly credible'.  Dr MacKenzie reported this to AHPRA in a way to suggest that Dr Nadeem had been dismissive of this mentally impaired patient's concerns.[71]
  1. [98]
    Both of Dr Nadeem's mid-term and end of term assessments in endocrinology were unsatisfactory.  After receiving these assessments Dr Nadeem asked Dr Inder to complete a separate independent assessment which he gave him about a week later where he failed him very poorly.  When Dr Nadeem asked for some examples why he had failed, Dr Inder said, 'you know it's very strange, we never fail interns normally'.  Dr Nadeem later learned that around this time Dr Inder had written a letter to AHPRA saying that Dr Nadeem shouldn't be permitted to practice as a doctor.[72]
  1. [99]
    On or around 28 October 2013 Dr Nadeem received (via his lawyers) a letter from Dr King, Executive Director, PAH advising that she was giving serious consideration to terminating Dr Nadeem's employment and requesting he show cause why this action should not be taken.  Dr Nadeem resigned from his role at the PAH on 19 November 2013.[73]

10 September 2012 voluntary notification to AHPRA

  1. [100]
    Dr Nadeem commented about Dr Jordan's voluntary notification to AHPRA in relation to the specific items set out in the letter.  He said he was very upset when he first read it sometime in late October 2012 and remembered losing all confidence in the MEU and Dr Jordan as it seemed to him they were intent on ending his medical career.[74]

8 March 2013 referral letter to AHPRA

  1. [101]
    Dr Nicholls wrote to AHPRA on 8 March 2013 and Dr Nadeem did not become aware of this letter until around 29 May 2015.  When he first saw it he was very upset by the pessimistic and uncharitable nature of this communication and particularly offended and hurt to read that Dr Nicholls had requested that serious consideration be given to Dr Nadeem's ongoing registration as a medical practitioner.  Dr Nadeem said he had devoted his entire working life to the medical profession and through his entire two years at the PAH he was not once told that his registration was at risk.  A significant number of the allegations made were never discussed with him during his internship.[75]
  1. [102]
    Dr Nadeem accepts that his internship demonstrated certain instances of suboptimal performance and rare instances of suboptimal professional conduct.  Any suboptimal interactions with staff at the PAH were always in the context of persistent prejudicial and discriminatory treatment rather than a reflection of his true ability, character and professionalism.  Dr Nadeem states he has always been diligent and conscientious in his duties as junior doctor and would have been receptive to honest assistance in every instance.[76]

Respondents

  1. [103]
    In her affidavit Dr Lizbeth Jordan, Second Respondent said during the period 2011 to 2015 at various times she was employed as Deputy EDMS and EDMS at the PAH.  She was not employed at the PAH between 27 January 2013 and 4 November 2013.  In her role as DDMS and EDMS Dr Jordan did not have direct oversight of the internship program and had not much direct interaction with Dr Nadeem.[77]
  1. [104]
    In her affidavit Dr Kim Gill, Third Respondent said from 2010 she was employed as Deputy DCT, PAH and then acted in the DCT role from 2011 until approximately November 2013.  In her role as Acting DCT she reported to the DDMS, who reported to the EDMS.[78]

Interactions with interns and internship process

  1. [105]
    The DCT at the PAH works within the MEU and is responsible for the implementation of the intern training program, including planning, delivery, and evaluation of the program at the hospital level.  The DCT also supports interns with special needs and liaises with term supervisors to provide specific support and/or remediation.[79]
  1. [106]
    The role of the MEU is to co-ordinate and deliver education and training for intern doctors in accordance with prescribed curriculum during their internship years.  The ultimate goal is to assist interns to successfully complete their internships and progress through to general registration.[80]
  1. [107]
    The MEU is responsible for tracking and collating assessment forms and analysing assessment outcomes.  This data is reported to the health service and used to inform intern supervisor and support processes in accordance with the Australian Medical Council (AMC) - Intern training national standards for programs (National Standards).[81]
  1. [108]
    In Australia, all medical graduates must successfully complete an internship before becoming generally registered with the Medical Board.[82]
  1. [109]
    An intern is required to complete 47 weeks (full-time equivalent) with the following core terms during their internship:
  1. (a)
    10 weeks of general medicine;
  2. (b)
    10 weeks of surgery; and
  3. (c)
    at least 8 weeks of emergency medicine.[83]
  1. [110]
    Intern doctors require appropriate supervision with different functions, a term supervisor, a Primary clinical supervisor and an Immediate supervisor.  Feedback and performance review is conducted in accordance with the National Standards.[84]
  1. [111]
    At the PAH assessment of intern performance is primarily performed by the term supervisors with input from the senior staff in each department.  Where problems are identified in relation to an intern's performance a supervisor would usually contact the MEU.[85]
  1. [112]
    As the DCT, Dr Gill was required to certify completion of internship and submit to the MBA.  AHPRA partners with the MBA to implement the national registration and accreditation scheme.[86]

Governance of internship

  1. [113]
    Also, the DCT as an education provider and a health practitioner registered under the National Law, Dr Gill was required to comply with ss 140 and 144 of the National Law regarding reporting 'notifiable conduct' to AHPRA.[87]
  1. [114]
    In her role as DCT, Dr Gill in conjunction with the EDMS was required to ensure that the training and assessment process at the PAH met the accreditation standards and that interns were assessed consistent with the standards at the time.  It was also her responsibility to report accurate information to the registration authority of AHPRA and the MBA in accordance with the National Law in order to ensure that the interns were well trained, supported and assessed appropriately with the ultimate goal of keeping the public safe.[88]
  1. [115]
    During his initial intern interview on 15 February 2012 Dr Nadeem recognised that his time management and prioritisation skills needed to be developed and he stated that he would also prioritise working on teamwork and inter-personal relationships.  Dr Nadeem stated that he had 'some medical issues' but he 'didn't believe that they would impact on his intern year'.[89]
  1. [116]
    On 28 February 2012 Dr Nadeem's mid-term assessment was held and his performance was assessed as 'unsatisfactory'.  In Dr Gill's experience it was not unusual for interns to have some difficulties adjusting to the transition from medical student to first year doctor at the start of the year.  However, the outcome of the assessment indicated significant performance issues which were well below expectations for an intern even in their first term.[90]
  1. [117]
    All interns who worked at the PAH in 2012 were involved in the Formal Mentoring Program.  This is a 'pastoral care' role rather than a clinical role.  After meeting with Dr Nadeem his mentor raised concerns, he may have been suffering from a health condition.  Given the legal requirements, Dr Gill said they were obliged to give further consideration as to whether there was 'a reasonable belief' that Dr Nadeem was or could be 'impaired' and that a mental health assessment would be a prudent step for the PAH to take.[91]
  1. [118]
    Dr Nadeem was assessed as satisfactory at the end of first term 2012.
  1. [119]
    Dr Nadeem's end of second term appraisal in anaesthetics was assessed as 'unsatisfactory'.  Dr Gill was concerned that Dr Nadeem did not appear to be developing any insight into the fact he was being given consistent feedback about his unsatisfactory performance in the same areas in his internship.[92]
  1. [120]
    In or around early August 2012 Dr Nadeem commenced his third term in the dermatology department with clinical support from Professor Peter Soyer, Director of Dermatology.  Dr Nadeem was assessed by the relevant supervisors as requiring further development for medical records/clinical documentation, time management skills and teamwork.  He was considered by the clinical supervisors as having been assessed as 'satisfactory' for the term with the summative assessment recognised as 'satisfactory' by the MEU and the DCT.[93]
  1. [121]
    Dr Nadeem's fourth term rotation was in the ED.  All interns are required to complete a rotation in the ED during their internship.  Dr Nadeem was assessed as 'unsatisfactory' for his mid-term appraisal and his end of term appraisal.[94]
  1. [122]
    For his compulsory surgical term Dr Nadeem was allocated to the hepatobiliary unit where he was assessed as 'satisfactory' for his end-of-term appraisal.
  1. [123]
    Because Dr Nadeem had not passed some terms during 2012, Dr Gill provided an accompanying letter to AHPRA outlining how Dr Nadeem had progressed throughout his internship year.  The information was based on Dr Gills' understanding of his performance based on assessments by the relevant clinical supervisors for each term and other documented clinical and professional issues.[95]
  1. [124]
    For his first term in 2013 Dr Nadeem was allocated to the cardiology department where he was assessed as 'unsatisfactory' for his mid-term appraisal.  An Improvement Performance Action Plan (IPAP) was developed to address identified issues.  Dr Nadeem was assessed as 'unsatisfactory' for his end of term appraisal.[96]
  1. [125]
    Dr Nadeem was allocated to the ED to complete his repeat compulsory term.  His mid‑term appraisal was assessed as 'unsatisfactory'.  Dr Gill understood that AHPRA placed conditions on Dr Nadeem's registration in June 2013.  Dr Nadeem was assessed as 'satisfactory' for his end of term appraisal.[97]
  1. [126]
    In late July 2013 Dr Nadeem was allocated to the endocrinology and diabetes unit for his third term (3B). He raised a concern about Dr Gill being his primary supervisor under his AHPRA conditions.  Dr Gill contacted AHPRA to discuss other possible supervisory options.  He was assessed as 'unsatisfactory' for his end of term appraisal.  Dr Nadeem's mother, Ms Shinwari requested to meet with Drs Gill and O'Dwyer to discuss the welfare of both her sons and provided background information.[98]
  1. [127]
    Dr Nadeem remained in the endocrinology and diabetes unit for term 4A.  Dr Gill commenced maternity leave in late October 2013 and was replaced by Dr Georga Cooke in the DCT role.  Dr Cooke also took over as Dr Nadeem's AHPRA supervisor.[99]

AD/2018/68 (Dr Zaheer)

Complainant

  1. [128]
    Dr Zaheer was born in Brisbane, is of the Afghan race and he is a Muslim.  He graduated from Bond University with a Bachelor of Medicine/Bachelor of Surgery in 2011.  He is currently employed as a Basic Physician Trainee at the Canberra Hospital in the Australian Capital Territory and has been working in this capacity since early 2020.  He has previously worked in Resident and Senior Resident Medical Officer roles for about three-and-a-half years in total in Queensland, New South Wales and the Northern Territory.  He is responsible for directly supervising the work of interns on a daily basis.[100]
  1. [129]
    In 2018 Dr Zaheer was admitted to the Basic Training program of the RACP.  He is currently in his final year of Basic Training.  On 15 February 2021 he successfully completed the RACP's Divisional Written Examination on his first attempt.  He was due to sit the Divisional Clinical Examination, which was scheduled for later in 2021.[101]

Internship

  1. [130]
    Dr Zaheer commenced employment at the PAH in January 2012 as a medical intern.  During his time at the PAH Dr Zaheer had little interaction with Dr Nicholls in a clinical context.[102]
  1. [131]
    On or around 23 January 2021 Dr Zaheer commenced the first term of his internship in Respiratory Medicine Department, PAH with Dr Murphy his supervising consultant and Dr Ellender, supervising registrar.  He was informed on or around 27 February 2012 that his performance had been assessed as unsatisfactory which he was surprised to learn as he had been given no indication prior to this time that there were any concerns.  Dr Zaheer raised with Dr Murphy that he would benefit from being given specific examples where his performance was unsatisfactory so that he could attempt to improve prior to further assessment.  The only relevant matter of which he was aware was that he had been too thorough in his assessment of a patient on an after-hours shift on 30 January 2012.  On 28 February 2012 at a meeting with Dr Gill overseeing and Dr Ellender providing the majority of the feedback, Dr Zaheer was required to complete an IPAP.[103]
  1. [132]
    Dr Zaheer was excluded from ward call duties following his mid-term assessment having only worked about three shifts on ward call.  Several broad areas and specific examples of unsatisfactory performance were identified including 'time management', 'not following instructions', 'pay attention to tasks on ward round', 'attempt to show more enthusiasm and engagement', 'punctuality'.[104]
  1. [133]
    The 'ward call incident' on 30 January 2012 was Dr Zaheer's first ward call shift and his first ward call patient.  The patient had unwitnessed seizure-like activity in a bathroom near the main foyer.  The registrar asked Dr Zaheer to accompany the patient to the ward and perform a clinical assessment to exclude any major causes for seizure.  During conversation with the patient and her sister they conveyed their frustrations regarding comments made by members of the treating team that the patient was making up her seizure-like episodes.  Dr Zaheer completed a full neurological examination.  He did not do this with any intention to override the treating team's provisional diagnosis of psychogenic non-epileptiform seizures.  He thoroughly documented his assessment alongside the concerns the patient and her sister had raised.[105]
  1. [134]
    Dr Zaheer recognised that the time spent with this patient and the extent of his history, examination, discussion and documentation went beyond what was expected and that his comments may have created some confusion and exacerbated pre-existing friction between the patient/family and the treating team.  It was submitted that Dr Zaheer made a naïve mistake from a misunderstanding of his responsibility during his very first ward call experience from which he has learned and modified his future behaviour[106].
  1. [135]
    Dr Zaheer's performance during his ward call shift on 24 February 2012 was identified as a concern.  Dr Zaheer said in hindsight, he acknowledges that his feedback about the shift may have been communicated in a better way.  Also, that a file note exists recording him as having said that he was 'deleting pages'.  He recalls deleting some non-urgent text pages, i.e. of duties that did not immediately need attending to.  He said he did this so that he could prioritise the more urgent tasks and had not intended to disregard those deleted tasks.[107]
  1. [136]
    An incident occurred during Dr Zaheer's second or third ward call shift where a patient had been admitted for approximately one week and had longstanding thrombocytopaenia the cause of which was still under investigation.  Dr Zaheer had been asked to follow up a full blood count that had been arranged for after hours.  When he returned later that night to review the results the platelets were low however when Dr Zaheer advised the Junior House Officer (JHO) he did not ask him to do anything about it.  The patient eventually received a transfusion with a unit of platelets later in the night.  Dr Zaheer said it was a lack of appropriate communication that allowed this oversight to occur.  The senior doctors present expressed the view that the delay in commencing the platelet transfusion was solely due to a deficiency of his clinical judgment/knowledge in that he did not recognise that a platelet count of three was critically low.[108]
  1. [137]
    On 28 March 2012 Dr Zaheer attended an end of term assessment meeting with Drs Ellender and Gill.  Dr Ellender said if Dr Zaheer did receive any negative feedback he should not 'take it personally' and that it was because aspects of his personality and/or behaviour were 'just weird'.  Dr Zaheer's performance for the term had been assessed as unsatisfactory.  Dr Ellender records the following matters in her file notes, late for morning round, x-ray meeting list not sent to correct address as per unit handbook, did not attend unit meeting, hypotensive patient, prescribing error and [nursing staff] complaint about aggressive tone to voice when asked to attend morning ward.[109]
  1. [138]
    Dr Zaheer said in response to 'x-ray meeting list not sent to correct address' that he had made a typographical error in the recipient's e-mail address which was a genuine and unpredictable mistake.  He said Dr Nicholls referred to this incident in her letter to AHPRA of 8 March 2013.  He considered it unfair and inappropriate for his supervisors to portray this incident as a performance concern.  In relation to 'did not attend unit meeting' Dr Zaheer said it would have likely been because the ward was particularly busy and so his fellow resident and he had arranged that he would attend the meeting whilst Dr Zaheer stayed on the ward to complete tasks.[110]
  1. [139]
    Terms two, three and mid-term four (geriatrics) were assessed as satisfactory.  On 23 October 2012 Dr Zaheer was reinstated to ward call duties during his geriatric's rotation.  He was removed from ward call for a second time after two incidents which occurred on 25 October 2012 and 2 November 2012.  First on 25 October Dr Zaheer requested a swap and as he was unable to find a colleague to swap with on short notice, he worked the shift.  The second incident on 2 November Dr Zaheer called the switchboard operator and said he may not be able to do his shift.  He subsequently received a call from the after-hours roster manager who was not receptive to his concerns.  He accepts he may well have said something like he would not do the shift and hung up.  The ward receptionist said there was someone on the phone and Dr Zaheer was not aware it was the Chair of Medicine and he said he did not want to talk to anyone at the moment.  He was then approached by a registrar and advised him of the situation, and he alleviated Dr Zaheer's concerns advising him to finish up minor ward tasks and notify him of the outstanding admissions which he would do himself and Dr Zaheer was able to do the after-hours ward call shift.[111]
  1. [140]
    Dr Zaheer acknowledges his shortcomings in relation to this incident which was not indicative of any deficiency in clinical performance, rather an isolated instance related to his professionalism.[112]
  1. [141]
    On or around 8 November 2012 Dr Zaheer was informed by Dr Berry his end of term assessment for geriatrics rotation had been completed and his performance was unsatisfactory.  The criteria identified as requiring further development were professional responsibility, time management skills and teamwork and colleagues.  Towards the end of his rotation Dr Zaheer said his registrar Dr Leow advised he had advocated for him to pass the rotation considering his overall good performance during the term and that his recommendations had not seemed to change Dr Berry's decision.[113]
  1. [142]
    Term five rotation was in orthopaedic surgery and Dr Zaheer's supervising consultant was Dr King with supervising registrar Dr Campbell.  Dr Zaheer was concerned about the workload of the staff and the consequences for patient safety however for a number of reasons never made a written complaint.  On or around 14 December 2012 he was assessed as unsatisfactory.  Criteria identified as requiring further development were emergency skills, professional responsibility and time management skills.  Specific examples were 'needs to arrive at work on time each day', 'needs to prioritise tasks appropriately' and 'ask for help when needed and needs to attend clinic/meetings when asked'.  Notwithstanding the earlier issues, on or around 18 January 2013 Dr Zaheer's end of term performance was assessed as satisfactory overall.[114]
  1. [143]
    Term six was in colorectal surgery where Dr Zaheer was assessed on or around 22 February 2013 for his mid-term performance as 'better than expected' and overall, as satisfactory.  His supervising consultant, Dr Miller in his end of term assessment on or round 11 April 2013 assessed Dr Zaheer's performance as 'better than expected' in all criteria and in four criteria his performance was assessed as 'exceptional'.  Overall performance was assessed as satisfactory.[115]
  1. [144]
    During term seven from 15 April 2013 until 23 June 2013 Dr Zaheer was in general medicine with supervising registrar initially Dr Berkman and later Dr Leow.  On or around 17 May 2013 Dr Zaheer's mid-term performance assessment was satisfactory overall and 'better than expected' or 'exceptional' in all criteria.  His end of term performance assessment was completed on or around 21 June 2013 with his performance assessed as satisfactory overall and 'consistent with level of appointment' or 'better than expected' in all criteria.  Dr Zaheer received a letter from Dr Nicholls on or around 2 July 2013 commending him on his 'exceptional standard of practice' during his general medicine (term 7) rotation.[116]
  1. [145]
    Dr Zaheer worked in renal medicine during terms eight and nine from 29 July 2013 until 4 October 2013.  On or around 23 August 2013 Dr Zaheer's mid-term assessment was satisfactory overall and 'exceptional' in most criteria, and otherwise 'better than expected'.  Dr Stevenson noted Dr Zaheer's 'sophisticated, succinct discussion of clinical cases far above expected level' and Professor Johnson concurred on 30 August 2013.  The end of term assessment on or around 4 October 2013 was assessed as satisfactory overall and consistent with level of appointment or better in all criteria.[117]
  1. [146]
    On or around 2 August 2013 Dr Zaheer's lawyers made a submission to AHPRA in response to their letter he received dated 23 April 2013 attaching the notification and letters from Dr Nicholls (14 December 2012 and 8 March 2013) and Dr Lawrence (dated 8 March 2013). 
  1. [147]
    Dr Zaheer received a letter on or around 20 August 2013 from AHPRA notifying him of a decision to impose conditions on his registration.  Amongst other matters, the conditions required:

"(a) I only work in a position approved of in writing by the Medical Board;

  1. (b)
    I only work under supervision of a supervisor approved of in writing by the Medical Board;
  1. (c)
    I report to my supervisor at the end of each working day about my management of patients; and
  1. (d)
    My supervisor report to the Medical Board about my performance and progress at specified intervals as well as at any other time required by the Board."[118]
  1. [148]
    Dr Zaheer said he was aware from the correspondence that the decision had been made in response to the notification by the PAH and that the PAH would be notified directly by AHPRA of the decision.  He was also aware that his lawyers had on 26 August 2012 provided AHPRA with contact details for the MEU at the PAH in response to a request from AHPRA for those details so that AHPRA could carry out the direct notification.  Accordingly, he was of the view that any obligation to notify his employer of the imposition of the conditions had been sufficiently satisfied.  Dr Zaheer was aware that on or around 27 August 2013 AHPRA did notify the PAH by letter.  Further, he believes Dr Nicholls was made aware of the conditions on 21 August 2013 because of the existence of a file note by her recording a discussion on that day between herself and Dr O'Dwyer about AHPRA having imposed conditions on Dr Zaheer's registration and an email of the same day from her to Dr O'Dwyer referring to the 'AHPRA supervision requirements'.[119]
  1. [149]
    On or around 23 September 2013 Dr Zaheer received a letter from Dr O'Dwyer dated 17 September 2013 referring to the imposition of conditions on his registration by AHPRA:

"(a) stated that I had failed to disclose the conditions on my registration, contrary to the terms and conditions of my employment;

  1. (b)
    stated that 'the conditions that have been placed on [my] ability to safely work cannot be accommodated by the Princess Alexandra Hospital or any other hospital in Metro South'; and
  1. (c)
    placed me on notice that serious consideration was being given to terminating my employment."[120]
  1. [150]
    On 16 October 2013 Dr Zaheer received a letter from Dr O'Dwyer stating that PAH would agree to Dr Cooke, incoming DCT, being appointed as his primary supervisor and day-to-day supervision being delegated to the registrar and consultant of the ED, being the department where he was allocated to undertake the next rotation.  On or around 23 October 2013, Dr Zaheer applied to AHPRA for a grant of general registration.  He was informed on or around 7 November 2013 the Medical Board had approved the proposed supervision arrangements and on or around 25 November 2013 Dr Zaheer returned to work at the PAH.[121]
  1. [151]
    Dr Zaheer worked in emergency medicine during term ten from 25 November 2013 until 19 January 2014.  He was assessed by Dr Cooke in a report dated 30 December 2013 as performing consistently with the level expected in all criteria in accordance with the conditions on his registration.  On or around 14 January 2014 an end of term assessment was completed with performance assessed as satisfactory overall and as 'consistent with level of appointment' in all criteria.[122]
  1. [152]
    On 5 February 2014 Dr Cooke received an email from AHPRA asking her to provide her recommendation as to Dr Zaheer's suitability for general registration.  She responded on even date to the effect Dr Zaheer proceed to general registration only if the current conditions on Dr Zaheer's registration were maintained and that his supervisor submit reports to AHPRA be maintained.[123]
  1. [153]
    Dr Zaheer said he reviewed Dr Nicholls' correspondence dated 8 March 2013 to AHPRA and notes many of the allegations or instances referred to are not identified, inaccurate or untrue.  His employment with the PAH ceased on 19 January 2014 when his contract ceased.[124]

Matters subsequent to the PAH/continuing employment endeavours

  1. [154]
    On 5 May 2014 Dr Zaheer received a letter from AHPRA advising that he had been granted general registration but with conditions.  He endeavoured to gain employment after leaving the PAH and obtained a position at Liverpool Hospital on 27 October 2016.[125]
  1. [155]
    Dr Zaheer applied for positions in the RMO Campaigns in Queensland and within various states throughout Australia as well as contacting numerous recruitment agencies.  In addition, he continued his professional learning undertaking online continuing professional development activities completing several British Medical Journal Learning modules.  He also completed several courses, modules and tutorials.[126]

Application to review conditions of registration

  1. [156]
    On 26 February 2016 Dr Zaheer applied to AHPRA for a review of the conditions on his registration noting 'the nature and extent of the conditions has ultimately proved to be a bar to [me] obtaining any employment … [t]he conditions therefore have effectively amount to a suspension'.  On or around 6 May 2016 he received correspondence from AHPRA advising the Queensland Notifications Committee (QNC) that the Medical Board had refused his application.  On 3 June 2016 Dr Zaheer filed an application in QCAT to review the decision of the QNC.  On 12 June 2017 Dr Zaheer received notice from AHPRA that the restrictions on his general registration were being removed.[127]

Respondents

  1. [157]
    As already stated in AD/2018/67, Dr Jordan, Second Respondent in her affidavit outlined her role during the period 2011 to 2015 and said she did not have direct oversight of the internship program and had not much direct interaction with Dr Zaheer.[128]
  1. [158]
    In her affidavit, Dr Gill, Third Respondent relied on paragraphs [1]-[46] of her evidence as already stated in AD/2018/67 outlining her role, interactions with interns and internship process and governance of internship.[129]
  1. [159]
    Dr Gill said Dr Zaheer commenced in the respiratory medicine ward for his first term in January 2012.  Interns at the PAH are not required to participate in night ward call; however, they are required to complete shift work and night shifts in the emergency team.  She said it would be expected that an intern would be able to identify a clinical issue, recognise their limitations and notify the more senior doctor on the shift of these concerns.[130]
  1. [160]
    An issue arose in relation to Dr Zaheer's performance following an incident on a ward call shift on or about 30 January 2012.  She understood Dr Zaheer performed a review of a patient and took about 1.5 hours, preparing seven pages of notes on the patient's file and made comments that he did not agree with the specialist team who had been looking after the patient and made these views known to the patient and their family.  She said it was inappropriate for a junior doctor/intern to make comments to a patient and their family members about a treatment plan which had been set up by more senior doctors without at least raising these concerns with those doctors first.[131]
  1. [161]
    Dr Gill said an initial intern interview meeting was held with Dr Zaheer to discuss the ward call issue and to get some further background about an intern and what they are hoping for during their internship.  Following the ward call incident, a 'PRIME' was initiated whereby significant clinical events are recorded and reported to the hospital executive.  Dr Gill and Ms Margaret Hayman met with Dr Zaheer on 21 February 2012 to discuss the outcome of the PRIME report, explain the process and provide him with support.[132]
  1. [162]
    As Dr Zaheer was assessed as having unsatisfactory performance in his mid-term assessment, Dr Gill decided he should be removed from further ward call rosters due to ward call being much less supervised than day shift and because of the issues that had been identified by the clinical supervisor.[133]
  1. [163]
    A triage meeting was held on 6 March 2012 to discuss Dr Zaheer's performance so that identified concerns could be discussed with a view to working on appropriate strategies to assist him moving forward.  The outcome was to assist the clinical team and Dr Zaheer in the IPAP process.  Throughout the remainder of term one a number of IPAP discussions were held.  At the end of first term Dr Zaheer was assessed as unsatisfactory.[134]
  1. [164]
    Dr Gill said the assessments for Dr Zaheer in his second, third and mid-fourth terms 2012 were satisfactory.  However, his end of fourth term appraisal in general medicine term in the geriatrics department was unsatisfactory.  As a result of Dr Zaheer's unsatisfactory appraisal in geriatrics it was agreed that he should be taken off ward call again and this was the standard practice whenever there were concerns about an intern's performance.  Dr Zaheer had shown an unprofessional attitude in contributing to the after-hours roster as was demonstrated by his interactions with Sammy Carter, Executive Support Officer, Division of Medicine in refusing to communicate with the Chair of Division of Medicine, Dr Judy Flores over the phone.[135]
  1. [165]
    In his fifth term in the orthopaedic unit Dr Zaheer was assessed as 'unsatisfactory' for his mid-term appraisal.  As Dr Zaheer had not completed his internship requirements within the first year, he was required to apply for renewal of his provisional registration with AHPRA.  Dr Gill was required to sign off the renewal application and because Dr Zaheer had not passed some terms during 2012, she provided an accompanying letter to AHPRA based on her understanding of his performance and other documented clinical and professional issues which had come to light.[136]
  1. [166]
    Dr Gill said Dr Zaheer's end of term appraisal for fifth term was assessed as satisfactory.  She said it was standard procedure those doctors completing their internship at PAH were offered JHO roles for their second year.  It was apparent that Dr Zaheer would need extra time to complete his intern requirements and for this reason he was not included in the offers and instead allocated to further intern terms.[137]
  1. [167]
    Dr Gill said she was contacted by Ms Rachele Mitchell from AHPRA seeking further information from the PAH in order to progress Dr Zaheer's application for renewal of his provisional registration.  After a conversation with Ms Mitchell on or about 12 February 2013 she asked for a further 'notification' to be sent to AHPRA which provided additional information regarding Dr Zaheer's progress and Dr Gill presumes his performance issues would have been discussed.  The letter to AHPRA dated 8 March 2013 was written after the mid-term assessment from term one in 2013 was completed.[138]
  1. [168]
    Dr Zaheer's was allocated to perform his repeat first term in 2013 in the colorectal unit and in March 2013 he came to meet with Dr Gill and Ms O'Connor regarding some concerns he had about his progress in colorectal and that he had been finding it difficult to get to work on time as a result of fatigue, ruminations and because he was not interested in the term.  As a result of this conversation Dr Zaheer was offered professional support.  Both his mid-term and end of term appraisals in this unit were assessed as satisfactory.[139]
  1. [169]
    For his second term rotation in 2013 which was a repeat core term, Dr Zaheer was allocated to general medicine and was assessed as satisfactory for both his mid-term appraisal and his end of term appraisal.  After completing his term in general medicine, Dr Zaheer had completed the minimum rotations for applying for general registration.  Dr Gill said in her role as DCT she was required to provide AHPRA with a Report on Completion of Internship and to make a recommendation about Dr Zaheer's progression to unconditional general registration.[140]
  1. [170]
    Dr Gill said based on her understanding of Dr Zaheer's inconsistent clinical progress and recurrent concerns regarding professional behaviour throughout his internship, her recommendation was that he should remain in a highly supervised and supported clinical environment, required by ongoing provisional registration requirements and that the progress to unconditional general registration should be delayed.  She said while there had been some improvement in his clinical performance, there remained a concern regarding the lack of significant evidence of remediation of his professional behaviour and conduct based on issues that had been reported over time to the MEU.[141]
  1. [171]
    In her view, Dr Gill said Dr Zaheer had 'up and down' performance across his internship and more concerning though was that although he seemed to be able to achieve a satisfactory level of practice, it appeared he performed at this level only when he was practising in a department of interest to him, not when it was required of him by his responsibilities to his patients, his colleagues or his employer.  She said Dr Zaheer would benefit from continuing to perform work for a further period in supervised environments in clinical units that had been designated by the Postgraduate Medical Education Council of Queensland (PMCQ) as being educationally sound, had good orientation processes and provided support to young doctors.[142]
  1. [172]
    Dr Zaheer was allocated to the renal department in term 3B and commenced in late July 2013.  On 20 August 2013 the MBA imposed certain conditions on Dr Zaheer's provisional registration.  The conditions were very onerous, including that he had to practise under the supervision (primarily in person) of a supervisor who was approved by the MBA.  Further, the conditions included that Dr Zaheer had to inform the supervisor at the end of each working day about his management of individual patients, and written reports had to be provided to the MBA.  Dr Gill said these conditions were more onerous than the conditions on an intern during their internship.  Also, he was required to notify his employer.  Dr Gill said once she became aware of the conditions, she emailed Dr O'Dwyer to ask to convene a review panel and further discuss the support Dr Zaheer could be given.[143]
  1. [173]
    Dr Zaheer's end of term appraisal in renal was assessed as 'satisfactory'.  Dr Gill said she was concerned that by mid-September 2013 Dr Zaheer had not informed his employer of the restrictions placed on him by AHPRA and if he had not done so he was in breach of those conditions.  She emailed Dr O'Dwyer on 17 September 2013 because of her concern.  She was aware Dr O'Dwyer subsequently sent a show cause letter to Dr Zaheer in relation to this issue.[144]
  1. [174]
    Dr Zaheer remained in renal unit for term 4A and was assessed as 'satisfactory' for his end of term appraisal.  On 8 October 2013 Dr Gill attended a meeting with Dr Zaheer, his solicitor, Dr Cook (the incoming DCT) and Ms O'Connor to discuss the issue of Dr Zaheer having an AHPRA approved supervisor. 
  1. [175]
    In late October 2013 Dr Gill was due to commence maternity leave and Dr Cooke was put forward as Dr Zaheer's AHPRA supervisor around this time.[145]

AD/2019/110

G20 Incident (Dr Nadeem)

  1. [176]
    Dr Nadeem said in the early hours of the morning on 4 April 2014 his brother and himself were at home both having worked overnight when his brother indicated that he would like to attend the PAH to commemorate his then deceased patient.  It was the anniversary of the admission in which her terminal malignancy was diagnosed.  Dr Nadeem agreed to go with his brother for moral support and he intended to also take some photographs of the posters they had earlier erected at the PAH and to return a library book.  He said at no time did it occur to him that they were no longer authorised to visit the PAH.  He had never worked anywhere else before and therefore had no prior experience of the end of an employment relationship on which to draw.  He outlined various other reasons including that his ID badge continued to work to access the hospital as he had made previous visits to check his email and erect posters.[146]
  1. [177]
    In his affidavit Dr Nadeem said he was not aware there was a requirement that he return the ID badge as it identified him as a 'doctor' and he had not given any further thought to what to do with it when he ceased working at the PAH.  The fact that the badge worked on other visits to the PAH after his employment had finished led him to believe he was still authorised to be there.  The first time it occurred to him that he was not authorised to attend the PAH was when the police executed the search warrant at their home.[147]
  1. [178]
    Dr Nadeem said his brother and he entered the main foyer of the PAH at around 4.52 am on 4 April 2014 and went to Ward 4E, the colorectal ward where his brother took some pictures of the ward corridors.  He was confronted by a nurse, Ms Cooper who said that his brother could not take photos of nursing staff to which Dr Nadeem replied, 'he's just taking pictures of the ward for reflective reasons, isn't that allowed?'.  He was not taking photos of the staff at any time.[148]
  1. [179]
    Dr Nadeem said they left Ward 4E and went to the doctors' common room to photograph medical history posters then went to the library on the ground level to return a book.  As they were exiting the PAH at approximately 5.32 am they were approached by the security guard, Mr Coates who asked them if they were the ones on Ward 4E and they said they were.  Mr Coates told them they were not allowed to take photos of the ward and the nurses.  Dr Nadeem told him his brother was only visiting as a personal reflective exercise to pay respects to a young patient of his who had died.  He took some photos of the ward because he thought he might use them in a personal reflective piece of writing.  Mr Coates then replied to the effect, 'you're not allowed to publish anything without the hospital's permission'.[149]
  1. [180]
    Dr Nadeem said they did not hear any further about their visit to the PAH until 8 May 2014 when the QPS Counter-Terrorism Unit arrived at their house and executed a search warrant and seized his computer and other personal possessions.  Later both Dr Nadeem and his brother were asked to attend the police station where they were charged, arrested and held in custody overnight.  He said they were shocked at what was occurring.  They had made an honest mistake but were being treated like serious criminals.[150]
  1. [181]
    Dr Nadeem said he later became aware that as a result of these incidents and the PAH decision to involve counter-terrorism police, photographs of his brother and him and details of their attendance were circulated by the Respondent to its staff and the Office of the Minister for Health (Queensland), the Crime and Corruption Commission (CCC) and AHPRA.  Between April 2015 and December 2016, he and his brother were the subject of an investigation by AHPRA.  For many months afterwards he said they were subjected to ongoing surveillance by the QPS Counter Terrorism Unit.[151]
  1. [182]
    In his affidavit Dr Nadeem said as a result of these matters he has suffered significant emotional distress and injury to his personal and professional reputation.  Despite being one of the only Osler scholars of his generation he is not able to contribute on equal footing to others in the respective Osler societies of which he is a devoted member.  Details of his legal matters (without any vindication of his position) are a matter of public record and can be searched online.[152]
  1. [183]
    Dr Nadeem said this had led to long-standing difficulties finding work.  He feels he has been judged by others for his religion and racial background and it appears that these factors will ultimately determine how he is treated.  He claims he has been discriminated against and he has been further persecuted for complaining about his grievances.[153]
  1. [184]
    On or around 8 November 2019 Dr Nadeem said he became aware that the Respondent had alleged at paragraph 12(g) of its response filed in these proceedings, that he had been dishonest in stating his true purpose for attending the PAH on 4 April 2014.  This caused him extreme distress as he has been consistent in his version of events for six years and cannot understand why they should still be doubting his reasons for attending the PAH on that occasion.  He has been deeply offended by these sentiments.  The repeated assertion that he has been dishonest in these circumstances demonstrates to him the Respondent's abject inability to treat him on equal footing to others.[154]

G20 Incident (Dr Zaheer)

  1. [185]
    Dr Zaheer in his affidavit said that during their employment his brother and himself frequently and anonymously distributed informative posters about pioneering medical and scientific personalities in various locations at the PAH.  They held such individuals in high esteem and undertook this exercise as a gesture of respect on a particular anniversary pertaining to the individual being commemorated.[155]
  1. [186]
    Dr Zaheer said he was profoundly affected by the death of a young patient who was admitted on or around 4 April 2013 under the care of the surgical team of which he was a part.  His relationship was friendly but professional.  The patient was around his age and shared similar intellectual inclinations so at times during her admission he said they discussed scientific matters of interest such as topics in marine biology.  He said this enabled some distraction from her pain and enhanced rapport, making her stay in hospital a little less stressful.  With both her and her family's permission he followed her medical progress and maintained periodic communication with her following her discharge.  In December 2013 he learnt of her final hospital admission and paid his respects at her bedside on the day she passed away.[156]
  1. [187]
    This was the first time a young patient in whose care Dr Zaheer had been involved, and even just a young person he had known, had passed away.  He attended her funeral at the invitation of her family, and this also augmented the impact of her death.  He planned to write a reflective account on her life and illness focussing on the important clinical insights he had gained from his involvement in her care and sought and received the permission of her family to pursue it.  He had also sought and received the patient's permission to access her medical records prior to her death.  Dr Zaheer initially intended to self-publish the work for private circulation but later decided not to publish them and later still decided not to pursue writing the reflective account at all.[157]
  1. [188]
    Dr Zaheer said in the early morning of 4 April 2014 after he had been working overnight (and for about two weeks prior to this) on a video about marine biology for the purpose of commemorating the anniversary of his friendship with the patient, he decided to visit the colorectal ward at the PAH to pay his respects to her.  He thought it would be better to go early in the morning because the hospital would be less busy, and he could take some photos without staff or patients walking through the shots.  They timed their arrival at the hospital for about 5.00 am before the surgical wards became active around 6.00 am.[158]
  1. [189]
    At that time Dr Zaheer thought as a registered doctor he was allowed to access both the PAH and the staff areas within it and also to use the hospital computers.  He said during his employment many doctors would come and go from the hospital regularly and he did not believe all of them were employed at the PAH.  This was his first ever job and he was unfamiliar with his post-contractual obligations or that there was a requirement that he return his ID badge when his employment at the PAH ended.[159]
  1. [190]
    The first time he had any knowledge that he was not authorised to attend the PAH or to use the hospital computer was when the police executed the search warrant at his home on 8 May 2014.[160] 
  1. [191]
    Dr Zaheer stated that as a manifestation of his reflective intentions he wore the same clothing on 4 April 2014 that he had worn when he was employed together with his ID badge.  He did not intend for anyone to mistake him for a current employee but wanted to make it clear that he was allowed to be at the PAH because he was a doctor with what he understood to be a legitimate doctor's identification.
  1. [192]
    Dr Zaheer said his brother and himself jointly accessed the hospital after hours for reasons other than attending rostered shifts on numerous occasions in relation to placement of historical posters and pamphlets within the hospital on the anniversaries of certain medical pioneers or scientists.  They often attended in the early hours of the morning to minimise disruption to the regular activities of staff and to maintain their anonymity in relation to the placement of the posters and pamphlets.[161]
  1. [193]
    At about 4.58 am Dr Zaheer said he accessed the Auslab application on the computer to view the pathology records of the patient.  He did not feel any hesitancy in accessing the records because he had the patient's and her family's longstanding permission to access her medical records.  He then decided to use his digital camera to take four separate photographs of the histopathology result as part of the reflective exercise in which he was engaged.  He also took a photograph of the doctors' station and some photographs of specific areas of the colorectal ward including the bed where the patient was first admitted to the ward.[162]
  1. [194]
    Dr Zaheer is aware it has been alleged he also accessed other patients' medical records.  He states he did access a patient with his own payroll number by accident and that number was typed in by mistake.  Although he did access the file, he did not view any specific records.[163]
  1. [195]
    At approximately 5.08 am both Dr Zaheer and his brother left the colorectal ward and walked towards the doctors' common room to photograph medical history posters.  Dr Zaheer captured seven different images of all of their posters they had placed on the walls and on a whiteboard in the on-call room at about 5.09 am.  Dr Zaheer then proceeded to the doctors' lounge which abuts the on-call room and took three photos, two of two different posters and one of the lounge areas where they exited.  Dr Zaheer said they proceeded to the pathology department where they were required to sign in at the front desk after saying they would like to visit the teaching room.  In the teaching room where the posters were located, he photographed eighteen posters between 5.19 am and 5.22 am and then proceeded to the library following which they decided to leave the PAH.[164]
  1. [196]
    Dr Zaheer said he did not hear anything further about the visit until 8 May 2014 when four members of the QPS Counter-Terrorism Unit executed a search warrant at his family home.  On 21 May 2014 Dr Zaheer and his brother were charged with serious offences of entering premises to commit an indictable offence and fraud.  They were arrested and held in custody.  This was the first time Dr Zaheer said he had been arrested.  He was bewildered by the fact that even after he conveyed his motivations for his visit to the PAH on 4 April 2014 the police proceeded with the charges.[165]
  1. [197]
    Dr Zaheer said as a result of the decision by the PAH to involve counter-terrorism police, photographs of his brother and him and details of their attendance at the PAH were circulated by the Respondent to its staff and the Office of the Minister for Health (Queensland), the CCC and AHPRA.  Between April 2015 and December 2016, he and his brother were the subject of an investigation by AHPRA.  Dr Zaheer said he was the subject of further investigations by the same QPS Counter-Terrorism Unit regarding two unrelated incidents in September and October 2014.[166]
  1. [198]
    Dr Zaheer said as a result of these matters he has suffered significant emotional distress and injury to his personal and professional reputation.  He has been unfairly portrayed as a dishonest clinician by senior members of the very profession to which he has devoted his early career.  He feels like he has been made to suffer disproportionately for his honest mistakes and oversights as a junior member of the profession and that his race and religion were given undue attention in determining the strategy with which his mistakes were managed.  Even his pastime of flying remote-controlled aircraft has been negatively affected by this matter as he can no longer simply relax and unwind because he has to constantly worry about the police finding his activities suspicious.[167]
  1. [199]
    On or around 8 November 2019 Dr Zaheer said he became aware that the Respondent had alleged at paragraph 12(g) of its response filed in these proceedings, that he had been dishonest in stating his true purpose for attending the PAH on 4 April 2014.  This caused him further distress because even now after so many years his experience of coming to terms with the death of a young patient continues to be entirely discounted.  This was a serious matter for him, and he remains extremely upset to see how the Respondent continues to simply disregard this as a plausible explanation for his attendance at the hospital.  He is extremely offended that even now, long after the conclusion of the criminal proceedings in this matter, his honesty continues to be questioned.[168]

Statutory Framework

  1. [200]
    One of the overarching purposes for the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity including the workplace.[169]
  1. [201]
    Part 2 of the AD Act sets out in ss 7 and 8 of the AD Act the prohibited grounds of discrimination.
  1. [202]
    It is unlawful to discriminate in the workplace, whether directly or indirectly, on the basis of certain attributes including race and religious belief or activity.[170]
  1. [203]
    Section 7 prohibits discrimination on the basis of the listed attributes.  An attribute is defined by s 7 of the AD Act to mean:

7 Discrimination on the basis of certain attributes prohibited 

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

  1. (a)
    sex;
  1. (b)
    relationship status;
  1. (c)
    pregnancy;
  1. (d)
    parental status;
  1. (e)
    breastfeeding;
  1. (f)
    age;
  1. (g)
    race;
  1. (h)
    impairment;
  1. (i)
    religious belief or religious activity;
  1. (j)
    political belief or activity;

(k) trade union activity;

(l) lawful sexual activity;

(m) gender identity;

(n) sexuality;

(o) family responsibilities;

(p) association with, or relation to, a person identified on the basis of any of the above attributes.

  1. [204]
    It is not in contention that the Toodayans are of Islamic faith which comes with the scope of s 7(i) of the AD Act; and are of the Afghan race, which comes within the scope of s 7(g) of the AD Act
  1. [205]
    Discrimination under the AD Act can occur on both a direct and indirect basis.  Section 8 of the AD Act defines discrimination on the basis of an attribute to include direct and indirect discrimination and relevantly provides:

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)
    a characteristic that a person with any of the attributes generally has; or
  1. (b)
    a characteristic that is often imputed to a person with any of the attributes; or
  1. (c)
    an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
  1. (d)
    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.

  1. [206]
    A person may discriminate by treating someone less favourably because of an attribute such as religion or race.  However, discrimination on the basis on an attribute includes discriminating against a person on the basis of a characteristic that is often imputed to the person, because of their protected attribute.[171]
  1. [207]
    Part 3 of the AD Act deals with prohibited types of discrimination.  Section 9 prohibits direct and indirect discrimination.
  1. [208]
    Section 10 of the AD Act relevantly provides:

10 Meaning of direct discrimination

  1. (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.

. . .

  1. (2)
    It is not necessary that the person who discriminates considers the treatment is less favourable.
  1. (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.

  1. (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.

…

  1. [209]
    Section 10(1) of the AD Act requires that the Complainants establish that the Respondents have treated them, or proposed to treat them, in a discriminatory way "on the basis of" the relevant attribute.
  1. [210]
    Part 4 of the AD Act deals with areas of activity in which discrimination is prohibited.  Division 10 is relevant to the G20 Matter dealing with administration of State laws and programs area.
  1. [211]
    The Complainants submit the key concepts arising out of s 10 of the AD Act are that discrimination on the basis of an attribute is protected when:
  1. (a)
    it involves either treatment that is less favourable, or a proposal to treat a person with an attribute less favourably, than another person who does not have the attribute is or would be treated;
  2. (b)
    where the attribute is a substantial reason for the treatment (even if there are other reasons for the treatment); and
  3. (c)
    motive is irrelevant, if factually speaking, treatment is different because of an attribute.[172]
  1. [212]
    The allegations of discrimination in relation to the Complainants' treatment during their internships are made based on this extended definition of the meaning of discrimination on the basis of an attribute.  The allegations in both matters are that:
  1. (a)
    each of Drs Gill and Jordan perceived the Complainants:
  1. (i)
    to be devout Muslims;
  1. (ii)
    to have a rather narrow view of normality; and
  1. (iii)
    to have a tendency to be quite judgmental at times;
  1. (b)
    those characteristics are commonly imputed to persons of the Islamic faith; and
  2. (c)
    the less favourable treatment is alleged to have occurred because Drs Gill and Jordan, holding those perceptions because of the Complainants' faith, treated them less favourably.[173]
  1. [213]
    The Complainants submit the allegations in respect of their performance are 'more nuanced' than a broad allegation there was discrimination because of their religion.
  1. [214]
    The Complainants accept that in order to obtain a remedy, it is insufficient for there to be a finding of discrimination.  It is necessary for the discrimination to occur in a context which is prohibited.[174]

Pleaded Characteristics

  1. [215]
    The Complainants contend that certain 'characteristics' are often imputed to persons with particular attributes in line with s 8(b) of the AD Act.
  1. [216]
    They also contend that certain characteristics are often attributed to people of the Afghan race and Islamic Faith.
  1. [217]
    In respect of what is described as the intern matters, it is contended that a person of the Islamic faith often had imputed to them that:
  1. (a)
    they were devout Muslims;
  1. (b)
    they had a rather narrow view of normality; and
  1. (c)
    they had a tendency to be quite judgmental at times.
  1. [218]
    Characteristic (c) does not accurately reflect the wording in Dr Jordan's email of 31 January 2012 which expresses it as follows: 'could be quite judgmental about patients at times.'
  1. [219]
    In respect of what is described as the G20 Matter, it is contended by the Complainants that a person of the Islamic faith and/or persons of the Afghan race often had imputed to them that:
  1. (a)
    they were devout Muslims;
  1. (b)
    they posed a greater threat to security than members of the general population; and
  1. (c)
    they were more likely than members of the general population to be involved in planning for and/or committing dangerous acts and/or acts of terrorism.
  1. [220]
    In the alternative, in respect of the G20 Matter, it was contended that a person of the Islamic faith and/or persons of the Afghan race who were perceived to be 'devout Muslims' often had imputed to them that:
  1. (a)
    they posed a greater threat to security than members of the general population; and
  1. (b)
    they were more likely than members of the general population to be involved in planning for and/or committing dangerous acts and/or acts of terrorism.
  1. [221]
    The Complainants attempted to support the contentions by calling expert evidence.[175]
  1. [222]
    In respect of whether a person of the Islamic faith and/or persons of the Afghan race often had imputed to them that they were devout Muslims, the evidence of the experts differed.
  1. [223]
    Evidence was given by Dr Mario Peucker, a Senior Research Fellow at the Institute for Sustainable and Liveable Cities at Victoria University.  His evidence was that '...religiosity and faith are highly subjective and personal'.[176]
  1. [224]
    In refencing the Pew Centre's 2006 report, Professor Akbarzadeh, a Research Professor in Middle East and Central European studies at Deakin University said that the majority of populations surveyed in all ten non-Muslim countries (excluding Australia) believed Muslims were devout.
  1. [225]
    Although Dr Peucker does not deal with the pleaded characteristic of having a rather narrow view of normality, he expressed the opinion that in respect of 'direct quantitative research into whether Australians perceive Muslims as being judgmental or narrowminded is scarce'.[177] 
  1. [226]
    In cross-examination, it was accepted that the evidence of both Dr Peucker and Professor Akbarzadeh involved a survey of published research literature.  Much of the published literature referenced was produced in the early 2000's.
  1. [227]
    The Issues Deliberation Australia (IDA) Survey suggested that 10 per cent of respondents indicated that many or most Muslim Australians would support terrorism promoted by Islamic extremists.[178]
  1. [228]
    Professor Akbarzadeh writes:

There is a view in the Australian society that Muslims are narrow-minded.  Pointing to this assumption are claims that Muslims are backward, intolerant, culturally inferior and unwilling to adapt to Australian culture and norms.[179]

  1. [229]
    After referencing some international research, Professor Akbarzadeh goes on to suggest that the research indicates "... that there is a perception of Muslims as narrow-minded when it comes to other religions and cultures".[180]
  1. [230]
    I accept the Respondents' argument that Professor Akbarzadeh seems to conflate 'intolerance', 'being demanding' as being the same as being 'narrow-minded'.
  1. [231]
    In respect of the G20 Matter, neither the evidence of Dr Peucker nor Professor Akbarzadeh deal directly with the pleaded characteristic.  In the second affidavit of Dr Peucker[181] he asserts that:
  1. My opinion that Australian respondents with negative attitudes toward Muslims would associate traits of Fanaticism and Violence with Muslims is supported by Australian survey data that suggests that Australian respondents perceive Muslims as being more likely to perpetrate violence which poses a threat to the safety of members of the public.  The survey data can be grouped in three broad categories according to the associations made with Muslims reported by respondents:

11.1 'Muslims pose a threat to Australia, particularly to national security or public safety';

11.2 'Muslims support or condone terrorism';

11.3 'Terrorism is associated with Muslims'.

  1. [232]
    However, the survey data identified by Dr Peucker does not, in my view, support the conclusions reached by him.  In 'Contemporary racism and Islamophobia in Australia (2007)',[182] it is suggested that 66% of respondents may have perceived some threat by 'Islam', the number when asked to articulate a specific form of the threat being linked to 'military threat' was much lower.[183]  The authors go on to observe:

Asking respondents for their opinions on the threat that Islam poses to Australia was itself likely to stimulate an articulation of a perceived threat.  That 36 percent of respondents perceived no threat (and a further 6 percent did not feel able to comment) could be seen as an encouraging indicator that Australians are by no means universally convulsed with Islamophobia.[184]

  1. [233]
    In the paper 'The Vicious Cycle of Stereotyping: Muslims in Europe and Australia'[185] jointly prepared by Dr Peucker and Professor Akbarzadeh, reference is made to the IDA Survey noting that 51% of respondents did not agree with the statement that 'Muslims threaten the Australian way of life and its mainstream culture and values.[186]  To the extent that terrorism was a concern, '[t]en percent of Australian respondents indicated that many or most Muslim Australians would support terrorism promoted by Islamic extremists'.[187]
  1. [234]
    The authors further state:[188]

In contrast, the self-assigned way of life in multicultural Australia encompasses, in addition to a commitment to fundamental freedoms and dignity, a strong sense of fairness and equal opportunities - everyone deserves a fair go.  Religion and ethnicity appear to be hardly important, as opinion polls have shown.  Asked about desired characteristics of new immigrants 'Australians appeared to put less emphasis on incoming immigrants being ... white than other countries.'  A Christian background is considered important only by about 15 per cent.

  1. [235]
    In the report 'Australian Muslims: the Challenge of Islamophobia and Social Distance 2018'[189] data dealing with islamophobia and social distance is recorded arising out of two surveys conducted by the Australian National University Social Research Centre. Islamophobia denotes negative and hostile attitudes towards Islam and Muslims.
  1. [236]
    Whilst none of the survey questions deal specifically with the pleaded characteristics, it is possible to glean the following from the survey results.  Over 68.2 % of respondents disagree with the statement 'just to be safe, it is important to stay away from places Muslims could be'; and 78% of respondents agreed with the statement 'Muslims should be allowed to work in places where many Australians gather, such as airports'.[190]  Notably, almost 70% of Australians appear to have a very low level of Islamophobia and are not concerned about Islam or Muslims.  The report observes the findings indicate that a large majority of Australians are not Islamophobic.[191]
  1. [237]
    Reference is also made to the report 'Perception of Muslims and Islam in Australian Schools'.[192]  Whilst the relevance of data relating to opinion of school children to the views held by the broader Australian population is questionable, the report does record the following:

'Goodwill towards the Muslim community resonates with more participants than otherwise.  There are twice as many respondents (35% + 7% contracted with 19% + 2%) who believe that most Australians have good feelings for Muslims (Figure 10.4).  As a result, it is correct to conclude that they are perceived as been accepted in the wider mainstream society'.[193]

  1. [238]
    There are numerous cases, including Makita (Australia) Pty Ltd v Sprowles[194] and Dasreef Pty Ltd v Hawchar (Dasreef)[195] that clearly outline the duty of an expert and the issues involved with unproven assumptions in expert witness reports.
  1. [239]
    Heydon J, in Dasreef, addressed several of these issues in his judgement.  He said:

An expert opinion is not admissible unless evidence has been, or will be, admitted, whether from the expert or from some other source, which is capable of supporting findings of fact which are sufficiently similar to the factual assumptions on which the opinion was stated to be based to render the opinion of value.[196]

  1. [240]
    Later in the decision his Honour noted that:

If the expert's conclusion does not have some rational relationship with the facts proved, it is irrelevant.  That is because in not tending to establish the conclusion asserted, it lacks probative capacity.  Opinion evidence is a bridge between data in the form of primary evidence and a conclusion which cannot be reached without the application of expertise.  The bridge cannot stand if the primary evidence end of it does not exist.  The expert opinion is then only a misleading jumble, uselessly cluttering up the evidentiary scene.[197]

  1. [241]
    Unless there is evidence to support the assumptions in an expert report, the report will be given little weight by the Commission.
  1. [242]
    I found the evidence of Dr Peucker and Professor Akbarzadeh of little direct relevance or assistance in determining the issues before the Commission.  In particular, neither of the experts addressed the specific pleaded characteristics.  Much of the research relied upon did not reference contemporary data.
  1. [243]
    The Respondents correctly note that the expert evidence should be understood in the context of the allegations of direct discrimination made against particular limited persons; and cannot be relied upon to assert that particular people may have acted in a certain way towards the Complainants.
  1. [244]
    The evidence does not support, in my view, a conclusion that the pleaded characteristics are ones which are often imputed to a person who holds an Islamic religious belief.
  1. [245]
    Moreover, I have not been persuaded that the pleaded 'characteristics' can be properly said to be imputed to a person with the particular attributes.
  1. [246]
    Notwithstanding that view, I am also not persuaded that the Complainants have established that the pleaded 'characteristics' can be properly described as such.
  1. [247]
    Characteristic is not defined by the AD Act.  Its ordinary meaning has been held to include:[198]

[17]  ..."Relating to, constituting, or indicating the character or peculiar quality; typical; distinctive; distinguishing feature or quality".

"A feature or quality belonging typically to a person, place, or thing and serving to identify them". (Citations omitted)

  1. [248]
    In Lyons v The State of Queensland[199] the High Court held that the manner in which it could be said that a particular characteristic is a characteristic of a person with an attribute, is as follows:

[2] The Anti-Discrimination Act 1991 (Q) ("the ADA") prohibits discrimination on the basis of any of the attributes that are specified in s 7.  One such attribute is "impairment".  "Impairment" includes the total or partial loss of a person's bodily functions.  Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of a characteristic that a person with the attribute generally possesses or a characteristic that is often imputed to a person with the attribute.  The appellant's deafness is an impairment and communication by means of Auslan is a characteristic that persons who are deaf generally possess. (Citations omitted)

  1. [249]
    The Respondents contend that what is pleaded as 'characteristics' is in truth nothing more than a description of relativity.  That is, as expressed by the Complainants, what is a description solely of relativity between two persons or groups.[200]
  1. [250]
    The Complainants have failed to establish in my view that the pleaded characteristics can properly be considered to be a 'characteristic' for the purposes of the AD Act; and are ones which are often imputed to a person who holds an Islamic religious belief.

The Comparators

  1. [251]
    The requirement to prove 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 proper other person against whom a comparison can be made, or a 'comparator'.[201]  In Commissioner of Corrective Services v Aldridge it was also said:

[46]  For differential treatment to occur the treatment of the Complainant must be less favourable than the treatment which was or would have been afforded to a person of a different race (in this case the treatment of a non-Aboriginal person) and that treatment must have occurred in circumstances which are the same or not materially different.  The treatment which was afforded to the Complainant must be objectively less favourable than the treatment which was actually afforded to a non-Aboriginal person, or which would have been afforded to a non-Aboriginal person, in the same circumstances as the Complainant or in circumstances which were not materially different.  As Mahoney JA observed in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 when discussing this component of the element of direct discrimination:

These words require that there be two situations or sets of circumstances, the actual and the hypothesized, so that it can be determined by a comparison whether treatment in the former is "less favourable" than in the latter.[202]

  1. [252]
    The comparator must be a person without the Complainant's relevant attribute but who was in the same circumstances as the Complainant.  In the present circumstances this is made more difficult given it has been accepted that there is no actual comparator who worked for the Respondent and therefore a hypothetical comparator must be used.
  1. [253]
    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 … [203]

  1. [254]
    Without derogating from that undoubtedly correct approach, it is often difficult in deciding upon the proper comparator in different circumstances.  The changing nature of the Complainants' case had only served to compound that difficulty.  Where there is no evidence of how an identifiable comparator was treated (i.e. a real person whose treatment the Complainants' treatment can be compared with), there is a difficulty in undertaking such analysis.[204]
  1. [255]
    The Complainants submit where this occurs the decision in the House of Lords of Shamoon v Chief Constable of the Royal Ulster Constabulary is instructive.  Lord Nicholls relevantly explained:

[7]  … in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the 'less favourable treatment' issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the 'reason why' issue). …

[8] No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others?  But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems.  Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue.  The two issues are intertwined.

[9] The present case is a good example.  The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976, SI 1976/1042 are in all material respects the same as those in the 1975 Act which, for ease of discussion, I have so far referred to. Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors.  Unlike her, they retained their counselling responsibilities.  Is this comparing like with like?  Prima facie it is not.  She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not.  This might be the reason why she was treated as she was.  This might explain why she was relieved of her responsibilities and they were not.  But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was.  It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations.  If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.

[10] I must take this a step further.  As I have said, prima facie the comparison with the two male chief inspectors is not apt.  So be it.  Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made.  On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated?  But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was.  It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was.  Was it grounds of sex?  If yes, then she was treated less favourably than a male chief inspector in her position would have been treated.  If not, not.  Thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue.  And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.

[11] This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.  Was it on the proscribed ground which is the foundation of the application?  That will call for an examination of all the facts of the case.  Or was it for some other reason? If the latter, the application fails.  If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.[205]

  1. [256]
    This approach was adopted recently in Petrak v Griffith University:

Where the task of defining the comparator is difficult, it is helpful to recognise that the comparator is simply a statutory tool enabling the real question to be answered accurately and objectively, with proper regard for the fact that a person may act unconsciously or as a result of unrecognised prejudices.  In this respect, the United Kingdom cases are helpful. …[206]

  1. [257]
    As was recognised in that decision, the language of s 10 of the AD Act nonetheless requires the comparative exercise to be undertaken.  However, these cases demonstrate that an inference that a person has been treated less favourably than the hypothetical comparator can be drawn from the fact of a finding that a substantial reason for the treatment was in fact a protected attribute.[207]
  1. [258]
    The Second, Third and Fourth Instances of alleged discrimination involve the way the performance issues of the Complainants were managed during their internships.
  1. [259]
    The evidence of three comparator interns who also exhibited performance concerns were identified by Dr Gill in her affidavit.[208]  The Complainants submit that no consideration was given to referring any of the three interns to AHPRA.[209]  In the second and third comparators there was no triage meeting arranged to decide how to deal with them.[210]

Consideration

  1. [260]
    Briefly, the Complainants case involved what is described as the 'Intern Matters' and the 'G20 Matter'.
  1. [261]
    In respect of the 'Intern Matters', the Complainants submit the evidence in these proceedings has demonstrated that from early on in their employment as interns at the PAH commencing at the beginning of 2012 each of them faced significant difficulty in progressing through the internship program.  It was argued that there were multiple causative factors. 
  1. [262]
    At the outset, it is necessary to briefly discuss how the Complainants have conducted their case.  Substantial evidence was filed by both parties in these proceedings.  However, the case which finally emerged from the hearing is much narrower in compass.  
  1. [263]
    Broadly speaking the determination of the Complainants' case has been made more difficult by the shifting nature of the contentions. 
  1. [264]
    In this jurisdiction the Complainant is required to file a SOFCs.  A SOFCs is not attended with the same level of formality as pleadings in the traditional sense but nevertheless the document requires a Complainant to provide an outline of their case.[211]
  1. [265]
    By the conclusion of the hearing, and the filing of the submissions it became apparent that some of the allegations made by the Complainants were either not supported by the evidence or simply abandoned.  In the Complainants' closing submissions, the instances and sub-categories of direct discrimination were reduced.
  1. [266]
    The changing nature of the Complainants' contentions put the Respondents at a distinct disadvantage.  As Martin J observed in Carlton v Blackwood:

An appellant's case has to be known before the hearing starts.  The Commission cannot allow a case to "evolve" and place the Respondent in the position of having to contend with the shifting sands of an undefined argument.  If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions.  The Commission can then decide whether or not to allow such an amendment.[212]

  1. [267]
    The "shifting sands" of the Complainants' case is evidenced by the finessing of the allegations. 
  1. [268]
    Whilst the Respondents were required to respond to allegations of direct discrimination and sub-categories as expressed in the SOFC's, the reformulation of the issues for determination did introduce some new allegations.
  1. [269]
    The Respondents submit that the Commission ought not to consider the new allegations.  However, on balance, I not persuaded that they prejudice the Respondents' case.
  1. [270]
    For convenience, I adopt the Complainants' five identified instances of alleged discrimination to be considered.[213]

Instance One - Management Strategy

  1. [271]
    The first instance of alleged discrimination concerns a proposal by the Respondents to implement a Management Strategy in which the Complainants allege they were treated less favourably. 
  1. [272]
    On 31 January 2012 the Complainants allege the Second Respondent, Dr Jordan proposed such a strategy by sending an email to two other doctors in the MEU, Dr Gill and Dr Naidoo. 
  1. [273]
    The allegation is premised on the action of sending the email of 31 January 2012 and the alleged strategy contained therein.
  1. [274]
    It was contended that the email proposed the Complainants be treated differently from other interns in their first rotation by proposing that supervising staff treat the Complainants more firmly, more frequently correct their mistakes, be more direct, blunt, and only give feedback in absolute terms, for any performance concerns.[214]
  1. [275]
    The Complainants submit this allegation constituted direct discrimination as the reason for Dr Jordan doing this was her perception that each of them had certain characteristics often imputed to a person of the Islamic Faith.[215]
  1. [276]
    It is pleaded in the SOFCs[216] that the email was sent to the supervisory staff for the purpose of implementing a management strategy whereby staff would:
  1. (a)
    treat Dr Nadeem and Dr Zaheer more firmly (including no margin for question) when correcting mistakes or providing feedback, as compared with other interns in the same or similar position;
  1. (b)
    correct more frequently mistakes made by Dr Nadeem and Dr Zaheer as compared to other interns making the same number of mistakes in their training;
  1. (c)
    provide more direct, specific, precise and consistent feedback than would be given to other interns in the same or a similar position about what is appropriate and what is not;
  1. (d)
    be 'more blunt' and to the point about what interns could and could not do when supervising or dealing with Dr Nadeem and Dr Zaheer as compared to other interns in the same or similar position; and
  1. (e)
    give feedback to Dr Nadeem and Dr Zaheer only in absolute, rather than qualified terms, as would usually occur with other interns in the same or a similar position.
  1. [277]
    The issues in relation to this allegation are whether:
  1. (a)
    the email in fact constituted a proposal to treat the Complainants less favourably if they exhibited performance concerns; and
  1. (b)
    a substantial reason for Dr Jordan doing this was her perceptions, following on from a conversation that she had with Professor Hays at Bond University about the background of Dr Nadeem and Dr Zaheer, that they were raised in Saudi Arabia, very devout Muslims, and had a narrow view of normality and a tendency to be quite judgmental at times.[217]
  1. [278]
    The Complainants submit if the answer to those questions is yes, then that is sufficient to make out a case of direct discrimination.
  1. [279]
    The relevant comparator in relation to this allegation is an intern without the religious belief held by Dr Nadeem and Dr Zaheer in the same or similar circumstances.  The circumstances are:
  1. (a)
    the intern was quite early in their internship;
  1. (b)
    the intern acted highly inappropriately (even if not deliberately) during a ward round and this had created a significant concern amongst the relevant treating team;
  1. (c)
    that concern had escalated to the EDMS for the PAH;
  1. (d)
    the EDMS was provided with information about the approach which Bond University had taken in respect of matters which had arisen during the intern's time at medical school and what had been successful at that time; and
  1. (e)
    the EDMS passed that information to members of the MEU.
  1. [280]
    On 30 January 2012 during the course of Dr Zaheer's first ward call shift since commencing his internship there was "the Ward Call Incident" which took a major focus as it caused a number of subsequent events. 
  1. [281]
    The incident raised some concerns with treating doctors, the matter was escalated to Dr Jordan, Margaret Hayman and Dr Gill, the then acting DCT.
  1. [282]
    In cross-examination about the ward call process, Dr Jordan said:

I understand you've said that it's unusual for an intern to be engaging in this sort of contact with a patient at [indistinct] at all.  First step.  That's correct?---Well, certainly as an emergency doctor in the hospital in the middle of the night, it'd be unusual.[218]

  1. [283]
    The Complainants submit that the Ward Call Incident demonstrated a misunderstanding by Dr Zaheer with respect to his clinical responsibility on after-hours shifts at an early stage of his internship.  It did not, on the submission of the Complainants, rise to the level of some profound lack of judgment as appeared to be Dr Gill's position.
  1. [284]
    However, Dr Zaheer accepted in cross-examination:

And which registrar gave you that instruction?---It was the registrar who attended the med-call after the patient was found in the foyer, and he told me to go and perform an assessment of the patient, consider causes of seizures, and to examine the patient, and to consider any appropriate investigations, and also my buddy who I discussed the case with before assessing the patient.

And that's what caused you to spend the one and a half hours taking information from the patient?---From the chart and the patient, yes, and examining the patient.  And to write the seven pages of notes?---Yes.

And you thought it was appropriate to have that type of discussion and to make that sort of clarification to a patient, did you?---It wasn't of my initiation.  It was the patient and family who brought up the concerns with me, and I felt that I was addressing them, and I acknowledge that I could have done that better, but given it was my first ever ward-call shift and first ever patient on a ward-call shift, I was still learning what my responsibilities and expectations on a ward-call shift were.

And you were told in that meeting that, going forward, you were to seek early feedback from the treating team in the respiratory ward, weren't you?---I can't recollect that statement.

And you were told that you were to contact the registrar at the outset of your next ward-call shift, weren't you?---Yes.

Now, you accept don't you, in retrospect, that it was appropriate for Dr Nicholls to have that meeting with you on the 7th of February to discuss what were considered to be your shortcomings in respect of the ward-call matter, wasn't it?---Yes. It should have been done at the earliest opportunity.

Yes, yes.  Because you accept that, as an intern, you need to take guidance from the more senior people in the hospital, including someone in the role such as that held at that time by Dr Nicholls?---Yes. [219]

  1. [285]
    On 31 January 2012 Dr Jordan, being aware that the Complainants had studied Medicine at Bond University decided to email Professor Hays, the Dean of Medicine.  In that email,[220] Dr Jordan wrote:

Hi Richard

I am emailing you to ask whether it might be possible to speak to yourself or someone else about one of your medical students who finished at Bond last year and is now an Intern with us at the PAH.

Zaheer Toodayan is one of a pair of twins who were both Bond students and who are both doing their intern jobs with us.  There has been a bit of an incident we have been dealing with today when he chose to have a long discussion with a patient at 11pm last night and then wrote 7 pages in the patient's chart on his views of the patient's diagnosis, why he thinks it's wrong and what he believes the patient's real problem is.  He has apparently caused 'chaos' with the patient and the family and have been very difficult to manage previously for a variety of reasons.

We are just in the process of gathering information before our Director of Clinical Training meets with him to understand from Zaheer's perspective what seems to have happened.  Fully recognising the issues of privacy and confidentiality, my purpose in making contact with you is that I would be keen to know about anything you feel able to share with us with regards any relevant difficulties Zaheer has as a student which might be helpful in informing how best we can support him at this early time in his internship.

Please feel free to call me on my mobile or office number if it is easier to chat on the phone.

Thanks

Liz.

  1. [286]
    Later that day, Dr Jordan received a telephone call from Professor Hays who explained that the Complainants were devout Muslims, they had a narrow view of normality, and they could be quite judgmental.  As a consequence of being very bright, they had a tendency to be tangential.[221] 
  1. [287]
    Dr Jordan then sent an email to Dr Hayman, copied to Drs Gill and Naidoo in the MEU outlining details of the conversation.[222] 
  1. [288]
    The email records the following:

Richard Hay was actually very helpful 'off the record' of course!

2 Issues with both twins:

1. Background - devout Muslims, born in Australia but brought up and schooled in Saudi.  At least one parent a doctor (possibly both) and one of the parents worked a lot in Saudi.  Described the twins as both having a 'rather narrow view of normality and could be quite judgmental about patients at times'.

2. Very bright (off the scale) and want to be world leaders in something - and probably will be! Zaheer in particular when writing up clinical cases would go off at tangents on scientific trivia not related to the patient.  They both responded to a long period in the 4th year of direct feedback, being specific, precise and consistent about what is appropriate and what is not.  The clear message was to be very firm with no margin for question! There (sic) were apparently much better in their final year and their tutors thought they would be okay albeit fairly intense and keen to succeed.  He feels that we will probably have some success if we are fairly blunt and to the point about what interns can and cannot do and say and continually correct them when they get it wrong till they learn the required behaviour.

I agree with Richard (Hay) that we would not be discussing our source for this helpful info but use it as a strategy to assist in managing the boys so they hopefully develop into more all-rounded doctors. He is keen to hear how it all goes ...

I am copying this to Kim and Melissa so they have all the info but I do not want this copied any further.  Happy for you guys to have conversations with current and future tutors as required and no doubt we will chat much more as the year progresses!

  1. [289]
    It is further submitted by the Complainants that on a fair reading of the email Dr Jordan conveyed the view that one of the two issues with the Complainants was their background.
  1. [290]
    Dr Jordan's email recounts her conversation with Professor Hays about the approach adopted by Bond University in dealing with the Complainants and, in particular, as 'a strategy to assist in managing the boys so they hopefully develop into more all-rounded doctors'.  It seems unremarkable that in dealing with medical interns or indeed in any professional setting that supervisors would wish to provide 'direct feedback, being specific, precise and consistent about what is appropriate and what is not'.  Her email does not evince an approach which would be different to the approach taken in respect of other interns.
  1. [291]
    The first instance of alleged discrimination advanced by the Complainants falls at the first hurdle.  What is contended by the Complainants is that the email proposed that the Complainants be treated differently from other interns in their first rotation by proposing that supervising staff treat the Complainants more firmly, more frequently correct their mistakes, be more direct, blunt, and only give feedback in absolute terms, for any performance concerns.[223]
  1. [292]
    In my view, paragraph 6 of the SOFC's overstates Dr Jordan's email of 31 January 2012.  On a proper reading of the email, it cannot be suggested the email conveys that the Complainants should be treated 'more firmly' when correcting mistakes or giving feedback; correcting 'more frequently mistakes made'; providing 'more direct, specific, precise and consistent feedback'; being 'more blunt and to the point'; or giving 'feedback only in absolute, rather than qualified terms'.
  1. [293]
    Dr Jordan recorded in her email that she had said to Professor Hays she would use the information "as a strategy to assist in managing the boys".  The Complainants argue that in pursuit of implementing the strategy she copied the email to Drs Gill and Naidoo.[224] 
  1. [294]
    In cross-examination, Dr Jordan was asked:

That was you suggesting to Dr Naidoo and Dr Nicholls that they should use this information for the purposes of providing information to their - to the supervisors for Nadeem and Zaheer; is that correct?---I was suggesting to the - they provide discussion - sorry, they provide information and have a discussion as relevant to the - their supervisors.  Part of the reason why I said "I don't want it copied it (sic) further", is I don't believe it's actually appropriate to be copying around information that actually is not necessarily relevant or helpful for everyone and their aunty to see.  You know, because once things are in email, copied around, you - you know, you don't really want people to be judge by - by somebody who sees information that doesn't understand the context or the relevance.  But I - my expectation would be - again, as is the norm, if there are issues that arise, the medical education unit have many, many years of history of having appropriate relevant and private discussions with future supervisors in order that they can best support the individual to work through any difficulties that they might have had.  And that's worked beautifully over the years.

Now, to the - to the extent that there were issues, you therefore expected them to have those conversations; is that right?---I - I - yes.  My expectation would be if the - it was required, then they would have those conversations.  I wasn't telling them to have the conversations, because I didn't need to tell them.  Because these guys – this was the job that they did.  They would have the conversations that they felt were relevant at the time.  If this has all been a massive misunderstanding and Nadeem and Zaheer had said, "Oh my God, we got that so totally wrong.  Thank you very much for helping us.  You know, just tell us what we need to do to get this all sorted", actually we would've been in a whole different place.  But the point was that they didn't take onboard as, you know, you're, no doubt you're aware, a lot of efforts at feedback.  So - so let's just be clear, I wasn't telling them to have a conversation.  I was giving the information to use as they saw fit within the expertise that they have in supporting and helping junior doctors to train.

You put it as no higher than a suggestion, then?---Sorry, could you repeat that question?

You put it as no higher than as a suggestion of things you might say?---Indeed.

All right?---Yes.[225]

  1. [295]
    It was not put to Dr Jordan in cross-examination that the reason for sending the email on 31 January 2012 or any alleged management strategy was as a consequence of the Complainants' race or religious belief.
  2. [296]
    The cross-examination of Dr Jordan also did not establish that she had been told by Professor Hays that the Complainants 'rather narrow view of normality and could be quite judgemental about patients at times' was specifically linked to their religiosity. 
  1. [297]
    In re‑examination, the following exchange with Dr Jordan took place:

Now, accepting that these notes were taken in the course of a telephone conversation with Professor Hay, noting that you've written at the bottom, "Period of direct feedback may work", what issues or concerns raised with you by Professor Hay did you understand the period of direct feedback to relate to? --- Any of the issues that he had raised with me.  So, whether it was about the kind of narrow view of normality and being judgmental, or whether it was about the absolute obsession about going off on a - you know, a tangent on scientific trivia.  So, any of the kind of behaviours that were not deemed to be acceptable for a doctor.[226]

  1. [298]
    The email of Dr Jordan records details of a conversation with Professor Hays.  The sole purpose for contacting Professor Hays was the desire to gain some insights which might be used to assist Dr Zaheer and Dr Nadeem at such an early stage in their internship.
  1. [299]
    The allegation is premised on the basis that in respect of the complainants' training and employment that Dr Jordan held a perception that they were devout Muslims; had a rather narrow view of normality; and or had a tendency to be quite judgmental at times.
  1. [300]
    As noted above, in paragraph 6 of the SOFCs, a specific management strategy is pleaded. To the extent to which it asserted that a management strategy was devised or intended to be implemented, the email does not contain the pleaded aspects of the management strategy.  An inference cannot be drawn that Dr Jordan’s email resulted in a strategy which would be less favourable to the Complainants than any other intern in the same or not materially different circumstances.  Moreover, it has not been established that Dr Jordan's reason for sending the email was the Complainants' religious belief or alleged characteristics.
  1. [301]
    The question is whether their background is a substantial reason for the treatment of the Complainants.  In my view, it was not.  The evidence is not such that it can be reasonably said that a substantial reason for the sending of the email was Dr Jordan's knowledge of the background of the Complainants. 
  1. [302]
    The assertion that Dr Jordan's sending of the email contributed to a proposal to treat the Complainants differently on account of characteristics which she is alleged to have perceived they had because of their protected attributes is not borne out by the evidence. 
  1. [303]
    In the affidavit of Dr Jordan[227] she deposes that:
  1. I deny any suggestion that I took any action because of the Toodayans' race or religion.  The action I took was directed at addressing concerns about their performance which may arise during their internship.  Those actions were directed towards assisting the Toodayans to perform better and ultimately become better doctors who could succeed in the Australian medical system.
  1. [304]
    I cannot accept the contentions of the Complainant that Dr Jordan's proposal to implement the strategy as a suggestion to assist Drs Hayman, Gill and Nadoo was direct discrimination within the meaning of s 10 of the AD Act and unlawful discrimination because it occurred in relation to work, s 15 of the AD Act.  Accordingly, this part of the claim ought to be dismissed.

Instance Two - Implementation of Management Strategy

  1. [305]
    The second instance of discrimination alleged is that both Complainants were treated less favourably in the course of their employment because the implementation of the Management Strategy relayed, on some occasions, the matters raised by Dr Jordan with supervisors.[228]
  1. [306]
    The Complainants submit the issues here are whether the Commission is satisfied that occurred, and if so:
  1. (a)
    whether that involved less favourable treatment; and
  1. (b)
    whether a substantial reason for this treatment was that Dr Jordan and/or Dr Gill perceived the Complainants, as a consequence of their race or religion, to be devout Muslims, to have a narrow view of normality and to have a tendency to be quite judgmental at times.[229]
  1. [307]
    The Respondents raise in their submissions that the argument now being advanced by the Complainants is different from the allegations of discrimination contained in the SOFCs.
  1. [308]
    I accept that allegations pleaded in the SOFCs are premised on very different allegations of discrimination and did not contain a suggestion that Dr Gill:
  1. (a)
    had conversations with supervisors of Dr Nadeem and Dr Zaheer about how the supervisors of the Complainants should manage them; and
  1. (b)
    any of those conversations included comments consistent with Dr Jordan's email of 31 January 2012.
  1. [309]
    The Complainants accept there is limited direct evidence of the implementation of the management strategy.  What is contended by the Complainants is that the management strategy was implemented in two ways, because:
  1. (a)
    there was sufficient evidence to conclude conversations occurred between the MEU and supervisors of the Complainants which encouraged the implementation of the strategy; and
  1. (b)
    there was corroborative evidence, such as the triage meeting which occurred immediately following receipt of the mid-term assessments in the Complainants first rotation indicating that the Complainants were being more closely scrutinized than another intern would have been.[230]
  1. [310]
    It is asserted by the Complainants that the first of these allegations involves no suggestion the direct clinical supervisors of the Complainants were engaged in discriminatory conduct.  Rather, what is submitted by the Complainants is that the conversations between Dr Gill and others had occurred because Dr Gill accepted what Dr Jordan had said and held perceptions about the Complainants as a result of the email. 
  1. [311]
    The recipients of the email from Dr Jordan were Dr Gill and Dr Naidoo.  The Complainants contend that in order to establish that the management strategy was implemented in response to this, the recipients:
  1. (a)
    perceived it to recommend the implementation of a strategy; and
  2. (b)
    they acted upon it.[231]
  1. [312]
    The Complainants submit the relevance of (a) is as circumstantial evidence the recipients implemented the management strategy set out in the email and that if they understood it as a direction or a suggestion from a superior to take certain actions, then the most likely conclusion is that the recipients took those actions.  The relevance of (b) is as direct evidence whether the management strategy was in fact implemented.
  1. [313]
    Dr Naidoo had no recollection of receiving or acting on the email.  Her evidence was:

All right.  I suggest that what this email conveys is that – well, sorry, what you would have understood this email to convey is that it was necessary to be very firm in providing feedback to Nadeem and Zaheer at the PA?--- As I mentioned, I can't recall at the time.  But as I've mentioned in my affidavit, it is not an email that I recall specifically and I don't actually recall acting or doing anything in relation to that email.[232]

  1. [314]
    Dr Naidoo's evidence was that she did not understand the words in the email "[t]he clear message was to be very firm with no margin for question!" as being a recommendation to be very firm.[233]
  1. [315]
    In cross-examination, she was asked:

You see down the - if you go to the next paragraph of the email, it says that:

I agreed with Richard Hay that we would be discussing our source for this helpful info but use it as a strategy to assist in managing the boys.

Do you see that?---Yes, I do see that.

Yes. And then you see in the next paragraph how it says:

I am copying this to Kim and Melissa so they have all of the info.

That's a reference to you and Dr Nicholls?---Yes, that's right.

And then in the next sentence it says:

Happy for you guys to have conversations with current and future tutors.  ?

As required.

Yes?---Yes.

So now that you've read that again, does that refresh your memory that you would have understood this is a direction from Dr Jordan - - -?---No.

- - - to have those conversations as required?---No, I wouldn't have taken that as a direction.  I don't take it now reading that as a direction to - - -

Would you take it as a suggestion to have those conversations if required?---

No.  I think I would take it as I would read it for any intern or any situation: that this is information that may or may not help.[234]

  1. [316]
    Notwithstanding the above evidence, the Complainants submit the Commission should infer that Dr Naidoo in fact understood the email to convey a proposal (at least) to implement a management strategy.
  1. [317]
    Dr Naidoo's evidence is clear.  She did not regard the email of Dr Jordan as a direction or suggestion but rather that in respect of the Complainants it was information which may or may not assist.
  1. [318]
    Dr Gill's evidence was that she does not recall having discussions with Dr Jordan about the email to Bond University or the response provided by Bond University.[235]  Moreover, Dr Gill understood the email as a suggestion to use the strategy set out by Dr Jordan.
  1. [319]
    In cross-examination, Dr Gill said:

Happy for you guys to have conversations with current and future tutors as required and no doubt we will chat much more as the year progresses.

?---Yes.  Yep.

You reported to Dr Jordan?---I do.

So you understood that Dr Jordan was indicating to you that you should have conversations about the strategies that she's talked about in this email; correct?---No.

Well, I suggest to you that what Dr Jordan was saying to Margaret Hayman was that she'd been told that a particular strategy worked, by Bond University; do you accept that at least?---I do accept that.

Right?---Yes.  For sure.  Yes.

And I suggest to you that the next two paragraphs is her way of saying to the medical education unit "You should use this strategy"?---If that's how you see it.  Yes.

Yes.  And you're saying you didn't see it that way?---I think there are a number of ways that you can go about bringing about behavioural change.  This is one way of doing it.  Yes.

And I'm suggesting to you that you understood that Dr Jordan was suggesting that you do that?---I can't recall what I thought at the time.  If I was to read that now, maybe.

You weren't in the practice of ignoring things that Dr Jordan suggested that you do?---No.  I wasn't.

And if we look at what is specifically suggested in the paragraph that begins with number 2, where

Dr Jordan says:

The clear message was to be very firm with no margin for question.

You understood this to be a recommendation specific to Nadeem and Zaheer; correct?---No. I think giving - giving someone feedback that - when you - the art of giving someone feedback, which I learnt when I was doing a feedback and de-briefing course at Harvard, was that you need to give - the elements are giving timely and direct feedback, using advocacy inquiry technique, which is where you state what you're concerned about and then you back it up with why you're concerned and then you explore the thought processes behind that to bring about behavioural change.  That's consistent with what Dr Hays is saying is that you need direct, frequent feedback.[236]

  1. [320]
    When asked whether she understood the email to encompass a recommendation specific to the Complainants, Dr Gill denied that she did.[237]  The Complainants submit Dr Gill's evidence should not be accepted as the email is self-evidently concerned only with them. 
  1. [321]
    The Complainants submit the Commission should find that when Dr Gill read the email of 31 January 2012, she understood it to be a recommendation from Dr Jordan to adopt a management strategy which was consistent with the information therein. 
  1. [322]
    Dr Gill did not accept the words in the email "[t]he clear message was to be very firm with no margin for question!" (emphasis in the original) were a suggestion to use a "higher" standard of feedback than ordinary.[238]  The evidence of Dr Gill was clear.  In cross-examination she said:

I'm suggesting to you that she's suggesting a higher standard of feedback than you might ordinarily engage in?---No, I think that we, that is, my standard of feedback is that.  You could ask any of my resident doctors, that's how I give feedback to people.[239]

  1. [323]
    It is contended that Dr Gill had conversations with the Complainants' clinical supervisors about how they should be managed, and, in those conversations, it is asserted that Dr Gill recommended that supervisors adopt a strategy consistent with the content in the email.
  1. [324]
    Under cross-examination, Dr Gill said she would not suggest that an intern's clinical supervisor adopt a particular strategy or approach.  Her evidence was:

I would never suggest to - to a supervisor what strategies that they should use to put in place to - to support an intern coming in.  I would say what issues had been identified as - as where they were struggling, so time management, and then I would leave it to the terms [sic] supervisor to - to - to work out, to the best - because they know their clinical area much better than I do and they understand their clinical work better than I do.  So I would not, at all, think to - to dictate to a clinical supervisor the best strategies to put in place.  That would be up to them.[240]

  1. [325]
    The Complainants argue that the Commission should regard Dr Gill's evidence as 'dissembling'.  It was further submitted that Dr Gill's evidence did not accord with the evidence by most of the clinical supervisors about the usual practice of the MEU.[241]  I disagree.
  1. [326]
    It is not in contention that problem-solving conversations were had.  A number of witnesses accepted that the conversations which took place involved a problem-solving conversation; a two-way street between the MEU and the supervising doctors.[242]
  1. [327]
    It was asserted by the Complainants that the evidence of Dr Gill did not accord with the evidence given by clinical supervisors where they were in fact told about specific problems Dr Nadeem had[243] and were told to be blunt or direct.[244] 
  1. [328]
    Let me briefly canvass some of the evidence before the Commission.
  1. [329]
    Dr Staib, the Deputy Director of Emergency Medicine and the resident supervisor for the department told the Commission that he did not have any specific recollection of the conversations with the MEU.  However, from his experience, the discussions with the MEU were generic in character, often frustratingly so.[245]
  1. [330]
    In cross examination the following exchange took place:

No.  So I suggest to you that one of the things that - and having given that answer, you can either tell me it was said, you don't remember, or it wasn't said to these questions that I'm asking you, I think is a fair way of putting these questions.  So you'd recall, wouldn't you, that you were told that Nadeem had had some problems with getting to the point when he was dealing with his critical work. Do you recall that?---So I am clear, what - at what point?

When you were told the information about Nadeem early on in two-thousand - when he was coming into ED?---No. No, I - I don't recall that, and that's not what this - the affidavit says.  That information came to light through our process.  That specific information came to light through our assessment process at the first midterm assessment.

I suggest that you were probably told in - when being given information by the MEU about Nadeem, that it would be a good idea to be quite to the point with Nadeem when you were giving feedback to him?---I don't recall that.

And that it was probably a good idea for you to be quite vigilant with him when assessing his performance?---Again, these are words that - that I have no recollection of and would be quite atypical for a conversation from the MEU before - before a junior doctor came to the term.[246]

  1. [331]
    Dr Garrahy's evidence in cross-examination was:

All right.  And the types of strategies that will be put in place are the sort of thing that is discussed with the MEU?---We didn't specifically discuss what we were going to do with him.  We were informed by the MEU that he was repeating his intern term, which in itself is unusual.  I think there's probably only been one or two other occasions where I've been faced with that scenario in 30 years of working at the PA Hospital.  So I have been faced with that scenario previously.  But I think the MEU would actually say, you know, this is the situation, and I don't need them to tell me how to do my job.[247]

  1. [332]
    Dr Fawcett was the clinical supervisor in respect of Dr Nadeem.  His evidence was that typically the MEU would be looking to the supervisors to come up with suggestions about how to respond to any identified issue as each unit is a little bit different.[248]  He said that the MEU would not be in a strong position to advise on what should be done, in respect of any particular intern.[249]  He had no recollection of anyone from the MEU suggesting that Dr Nadeem should be assessed in any particular way.
  1. [333]
    The evidence given by Dr Smith (Anaesthetics) and Dr Mackenzie (Endocrinology and Diabetes) does not disclose anything which in my view would suggest how Dr Nadeem should be dealt with in a way different to or inconsistent with any other intern in the same or similar circumstances.
  1. [334]
    Dr Smith had no recollection of Dr Gill saying to him that you 'needed to be very to the point with Nadeem'[250] or 'that it was necessary to be very firm with him'.[251]
  2. [335]
    In re-examination, Dr Smith gave the following evidence:

Dr Smith, if you take up that email you were just shown, and there's a sentence that starts in the third line:

While I believe the majority of the negative feedback is personality-related, he is still very weak procedurally.

?---Yes.

What did you mean by that?--- To my recollection, Nadeem struggled with even the most basic anaesthetic tasks, right throughout the patient journey, from engaging in rapport with the patient – so to, you know, cannulate someone and to induce anaesthesia is a very stressful thing.  You need to get a fair degree of trust with the patient and build rapport.  He wasn't capable of doing that.  His cannulation skills were poor.  His airway - I won't bore you with the details, but his airway - basic and advanced airway skills were non-existent, and to my recollection he seemed disinterested in improving those skills.[252]

  1. [336]
    In cross-examination, Dr Mackenzie's evidence was:

So in the course of that conversation, do you recall that strategies were discussed with assisting Nadeem?--- So there was a suggestion that we would be looking more carefully at written communications and that there may need to be some support with time management and encouraging targeted consultations.

Now, I'm going to suggest that one of the other things that was said to you was that it was necessary to be very precise and direct with him?--- I don't know that there was a specific direction to that end.

Would you agree that it was suggested to you?--- I have no recollection of that occurring.[253]

  1. [337]
    What can be gleaned from the evidence is that the MEU raised with the clinical supervisors the nature of the issues confronting the Complainants and left the response to them.  It is apparent that Dr Gill made no direction as to how Dr Nadeem or Dr Zaheer were to be managed throughout their internship. 
  1. [338]
    It is further contended by the Complainants that the triage meeting which occurred immediately following receipt of the mid-term assessments in the Complainants' first rotation indicated that the Complainants were being more closely scrutinized than another intern would have been.
  1. [339]
    What the evidence before the Commission discloses is that both Dr Nadeem and Dr Zaheer profoundly failed their mid-term assessments.  A triage meeting was conducted with the involvement of the MEU in respect of the respective mid-term assessment feedback sessions.  Having regard to the feedback and concerns held by the clinical supervisors, a standard IPAP process was engaged.  Nothing before the Commission suggests that the Complainants were dealt with in a way different to or inconsistent with any other intern in the same or similar circumstances.
  1. [340]
    On 28 February 2012 Dr Gill sent the following email to Dr Jordan:

Dear Liz,

Re:  Zaheer Toodayan (Respiratory Intern) and Nadeem Toodayan (General Med 10)

We have received the mid term reports for both of these doctors today.  Both teams have grave concerns about their performance and deem them unsatisfactory at this stage.  The problem areas seem to be Clinical judgement/time management/professional responsibility and to an extent clinical knowledge and skills.

We have met with both Interns and their respective supervisors today giving direct and concrete feedback and implementing an IPAP for each of them.  We intend to meet with them on a weekly basis and follow their progress intently.

Some of the feedback has been gravely concerning and I think we are now at the stage where I think we should pull them off the Ward Call roster as is [sic] appears that their lack of judgement could potentially lead to patient harm, without close clinical supervision.

I think that we currently have a good safety net for these doctors.  However I am concerned about how we progress from here.  I would like to hear your thoughts on when would be an appropriate time to ask for an external assessment of them and when we should involve the medical board? 

Perhaps we can talk about it when you get back?

Kind regards

Kim.[254]

  1. [341]
    The email of Dr Gill does not refer to any conversation with the Complainants supervisors about how they should 'manage' them.  The evidence fails to establish any specific conversation dealing with the implementation of a management strategy.
  1. [342]
    I do not accept that there is evidence to suggest that the clinical supervisors received any direction on what strategy or approach they ought to take in respect of the Complainants.
  1. [343]
    The Complainants submit the proposal and subsequent decision to implement the management strategy were less favourable treatment because the conversations relayed the substance of what Dr Jordan had said to Dr Gill encouraging a level of firm management attention above and beyond what would have happened with any other intern.[255]  As the evidence before the Commission disclosed, it was not.
  1. [344]
    None of the material before me suggests that the complainants have been treated differently and that some different process would have been taken in respect of other interns.  The evidence of the clinical supervisors as noted above was, in my view, consistent with the evidence of Dr Gill and is consistent with a conclusion that no direction was given as alleged by the Complainants.
  1. [345]
    The evidence fails to support a finding that in respect of Instance Two, the substantial reason for any treatment during the Complainants' internship was as a consequence of their religious belief or alleged characterises.  It follows therefore, that Instance Two ought to be dismissed.

Instance Three - Dr Zaheer's treatment during his internship

  1. [346]
    The third instance of discrimination alleged is that Dr Zaheer was treated less favourably during his employment because:
  1. (a)
    Dr Zaheer was required to exhibit a higher level of performance than other intern doctors in the same position as him, because he was required to complete more rotations after he had completed the necessary five rotations to be recommended for general registration;[256]
  1. (b)
    Dr Zaheer was treated more harshly than other intern doctors in the same position as him, and required to exhibit a higher level of performance, because Dr Gill wrote to AHPRA on a number of occasions expressing concerns to it that were incorrect and were incorrect because Dr Gill was not satisfied that Dr Zaheer was operating at an appropriate level, even though his performance was above what was ordinarily required of an intern.[257]
  1. [347]
    The issues here involve a number of factual matters.  The matters to be determined are:
  1. (a)
    whether the two discrete aspects of the treatment of Dr Zaheer involved less favourable treatment; and
  1. (b)
    whether a substantial reason for this treatment was that both Dr Jordan and/or Dr Gill perceived Dr Zaheer, as a consequence of his race or religion, to be a devout Muslim, to have a narrow view of normality and/or to have a tendency to be quite judgmental at times.[258]
  1. [348]
    The allegations raised by Dr Zaheer can be summarised as follows:
  1. (a)
    Dr Gill did not immediately recommend Dr Zaheer's progression to general registration after he ultimately completed the minimum number of satisfactory weeks of practice in his internship; and
  1. (b)
    that certain aspects of Dr Gill's letter to AHPRA were 'inaccurate' or 'misleading'.
  1. [349]
    By way of background, an intern was required to satisfactorily complete at least 47 weeks equivalent full-time experience in supervised practice.  This included 8 weeks in emergency medicine; 10 weeks in medicine; and 10 weeks in surgery and required an overall satisfactory rating to be awarded to the intern by the DCT.[259]
  1. [350]
    Dr Gill submitted notifications to AHPRA on 14 December 2012,[260] 8 March 2013[261] and 25 June 2013.[262] 
  1. [351]
    The first letter on 14 December 2012 accompanied Dr Zaheer's application for renewal of provisional registration.  At the time of the application, Dr Zaheer had not completed his internship in the standard timeframe.[263]  The letter sets out Dr Zaheer's progress; the measures being taken by PAH to ensure Dr Zaheer practised safely; and raised no concern regarding his ongoing registration.
  1. [352]
    Whilst Dr Zaheer's assessment in general medicine did not identify any concerns related to clinical judgment, overall Dr Gill maintained concerns regarding Dr Zaheer's clinical judgment.
  1. [353]
    In cross-examination, the following exchange took place:

Okay.  And you've said there that the slip was in relation to clinical judgment and time management? --- Yes, that's what I've said.  Yep.

Right.  Now, that wasn't correct, was it, insofar as that refers to clinical judgment?--- I'm sure you're going to enlighten me.

I am.  If you can have a look at page 63, please?--- I think that's what I believed was correct at the time.  Forty-six?

Sixty-three?---I'm sorry.

And this is the mid-term appraisal for geriatrics.  That's what the Banksia Unit is.  Correct?--- Yes, that's what – yes.

So the clinical judgment was assessed as sound, at that point in time? --- Yes.

And then, at – if you flip over to paragraph – to page 66, you'll see the end of term assessment, and again, his clinical judgment was consistent with his level of appointment?--- Yes.  I was just having a look at the notes, because I think – I'm just wondering if there was more information to be garnered from them, rather than the ticks in the boxes.  So I'd have to be reminded of the timeline, but I – was it – I think it was during this term that we were – that there were the concerns about the interaction with the professional misconduct, and the interaction with the chair of the division of medicine and the support officer from the surgical unit, and so whether or not that's what that was referring to, about – certainly, time management is an issue, and whether judgment or clinical judgment - - -

Well, I'm just asking you, at this point in time, about clinical judgment.  You are correct that the time period, in respect of Zaheer's interaction with the chair of medicine is at this time, but if we just focus on clinical judgment at this point in time, there's no issue with clinical judgment in this assessment, is there?--- In this assessment – no - - -

No?--- - - - but there were ward call issues, where he was deleting pages and not using his – and not appropriately using clinical judgment to prioritise patients, which had come to my attention, which is not documented in this document, but what's what included in the overall assessment of the DCT in this letter.[264]

  1. [354]
    In relation to the pager incident, Dr Zaheer was asked in cross-examination:

Well, I suggest to you that that was an unsafe practice on your part to be deleting those pages?---It probably wasn't the best way to prioritise.  Yes.[265]

  1. [355]
    The letter of 8 March 2013 was sent in response to a request from AHPRA seeking further information regarding Dr Zaheer's progress. Dr Gill noted in the letter that '[a] further period of work-place assessment in a different yet adequately supervised environment may clarify these challenging issues'.[266]
  1. [356]
    The letter was originally drafted by Dr Gill in February 2013 and contained a recommendation that Dr Zaheer not be permitted to progress through to general registration at that time.[267]  The draft did not contain any reference to any religious belief or alleged characteristics.
  1. [357]
    However, the drafting was amended.[268]  There was a suggestion by Dr Naidoo that background information about Dr Zaheer's upbringing be removed and this was accepted.[269] 
  1. [358]
    This letter also contained what was said to be a number of misleading statements and omissions.  In the first paragraph Dr Gill said there were still concerns at the end of Dr Zaheer's fifth term and that his performance was below expected in some areas.[270]  It  was argued that Dr Zaheer was assessed as requiring further development only in time management[271] and as such the assertion was inconsistent with his assessment in professional responsibility.  However, as the evidence of Dr Gill disclosed in cross‑examination, she held genuine concerns regarding Dr Zaheer's professional behaviour.[272]
  1. [359]
    Despite writing a comprehensive letter to AHPRA it is submitted that Dr Gill failed to include Dr Zaheer's positive performances and improved clinical judgement.[273]  However, the correspondence does record that '... there had been some improvement in his clinical performance' but concerns remained regarding his professional behaviour.[274]
  1. [360]
    The Respondents admit Dr Gill wrote to APHRA on or about 25 June 2013.  The letter sets out the reasons why it was not recommended that Dr Zaheer progress to general registration.
  1. [361]
    To progress to general registration an intern was required to satisfactorily complete at least 47 weeks of equivalent full-time experience in supervised practice (including 8 weeks emergency medicine, 10 weeks in medicine and 10 weeks in surgery) and required an overall satisfactory rating to be awarded to the intern by the DCT.[275]
  1. [362]
    The letter of 25 June 2013 referred to ongoing concerns regarding Dr Zaheer's professional conduct during his internship.  The letter relevantly states:

There has been ongoing concerns regarding Dr. Zaheer's professional conduct during his internship. These concerns have been raised with AHPRA and the Board previously.  I refer you to the attached letter dated 14.12.2012 and 8.03.2013. These letters have detailed the amount of support and supervision that has been in place to support Dr. Toodayan and to ensure patient safety.

Our main concern is that he appears to be more motivated to fulfill his 'internal drivers or needs' rather than those of his patient. It seems that when faced with conflict between these needs that those of the patient (or his role responsibilities) frequently come second. This high level of support is still in place, as until recently, Dr. Toodayan had not displayed adequately improved performance to enable this support to be lifted, without concern for compromising patient care.

....

Although Dr Zaheer Toodayan has now completed the required 52 weeks of satisfactory performance, we are reluctant to recommend approving Dr Zaheer Toodayan's application for General Registration.  Whilst there has been some observed improvement in his clinical performance, there is still concern regarding the lack of significant evidence of remediation of his professional behaviour.[276]

  1. [363]
    Dr Gill gave the following evidence why she did not recommend Dr Zaheer for unconditional general registration:

It's - this orientates us to the timeline.  My question for you was that you were indicating this view to APRA (sic) because you were of the opinion that there had been insufficient remediation of Zaheer's performance to recommend for general registration; is that correct?---So – correct.  So the - if you have a look at the certificate of the general - completion of certifying general registration, which I think is here, there is an option for the DCT to say: "Do you recommend the intern progression to unconditional general registration?", and my opinion was, no, not at that stage.

Okay.  And the reason for that was because you were of the opinion that there had been insufficient remediation of the professionalism issues?---There was - there was ongoing concern about professional issues, absolutely, because there were still - despite his performance in colorectal, there were performance issues raised to the MEU during that time.  There was also performance issues raised in his general medicine about punctuality which had been brought to the MEU's attention.  Additionally, my recommendation for Zaheer in particular to have a prolonged period under unconditional registration - sorry - let me rephrase that, your Honour.  So my recommendation for Zaheer to continue under the provisional registration requirements were actually for - to support him.  He had found that orientating to units and new workload was of difficulty to him.  Being under the provisions of internship would mean that he would have to go to an accredited unit - work unit, and by an accredited work unit, it means that they have to have in place orientation structure, they have to have sympathetic supervisors who have an interest in support and for junior doctors.  Being let through to or pushed through to unconditional general registration would mean that Zaheer may be put into situations where he doesn't have orientation, where he's not looked after by supervisors which he had already demonstrated was a difficulty for him.  So that was another reason for suggesting ongoing support through the use of the provisional registration.[277]

  1. [364]
    There is no evidence before the Commission to suggest that Dr Gill would have responded in a different way to an intern in the same or similar circumstances where the intern did not have Dr Zaheer's religious belief.
  1. [365]
    The letter of 25 June 2013 also contained what was said to be a number of misleading statements and omissions. 
  1. [366]
    It was submitted on behalf of Dr Zaheer that the real explanation for the alleged misleading statements and omissions in the correspondence was what Dr Gill understood to be Dr Zaheer's issues with professionalism and what she described as his internal drivers.  This, it was said, was referred to in both Dr Gill's letters of March 2013 and June 2013 to AHPRA.  Dr Gill's evidence in cross-examination was:

Just to be clear, what did you see as Zaheer's internal motivations or drivers to be?--- His own interests.  His passion for aeronautical engineering, his passion for ophthalmology, his interests in the history of medicine.

It's true that you thought that Zaheer would have difficulty overcoming these internal drivers because that would involve him comprising [sic] himself, correct?---Yes.

And you didn't think he was likely to do that, correct?--- No.  I thought Zaheer could actually.  I think with some – and he had demonstrated that he could, and that – so with a prolonged period, so a further period in provisional – under provisional registration – under provisional registration conditions, I think Zaheer probably had the ability to do that.  He'd shown us that he'd improved in the first half of second year and my point was that I think that he just needed a further period.  I still held reservations, but for natural justice, he needed a further period where the provision of – sorry, the provisional registration standards would support him and be able to demonstrate that he could continue and improve his professionalism.  That - that was my opinion there, which I thought, yep.  So, I think Zaheer had the ability to remediate.

Why did you use the expression, "internal drivers or needs"?  You've really just described his own interests, haven't you?---No, because there is a point in every human being when you are - your own motivators, you are motivated by your own needs.  You know, there are lots of different - Maslow talks about different motivators and needs.  So, for example, one of those is when you're thirsty, you will drink.  That's a - that's a motivator.  And so, what motivated Zaheer to do things was his own internal - his own passions about ophthalmology, aeronautical engineering and the history of medicine.

Can I suggest that when you were talking about his internal drivers or needs, you were in fact influenced by what his brother had said about medicine being a higher calling?---No. I don't think so.

You thought that he was struggling to do this because of his background and his, what you understood to be a narrow view of normality?---No.  I think I'm - having a conservative, restricted background where he's not been able to develop his social and emotional intelligence has clearly paid - played a part in his difficulty in assimilating to the work environment.  But I think Zaheer actually demonstrated that he was of an ability to be able to move through that.[278]

  1. [367]
    As the cross-examination demonstrates, Dr Zaheer's background played a part in him coping and assimilating with his work environment.  However, the evidence does not disclose that Dr Zaheer's religious belief or any of the alleged characteristics were the substantial reason why the recommendation was made by Dr Gill to AHPRA.  Indeed, it was never put to Dr Gill in cross-examination that the reason for making the recommendation to AHPRA was a consequence of Dr Zaheer's religion.
  1. [368]
    It should be also observed that it was never put to Dr Gill in cross-examination that her reason for sending the letter of 14 December 2012 or 8 March 2013 was because of Dr Zaheer's religion or alleged characteristics.  Nor was it put to Dr Gill that any 'error' or 'omission' in respect of any of the correspondence to AHPRA was as a consequence of Dr Zaheer's religious belief.  What is demonstrated by the evidence is that Dr Gill was motivated to act because of a concern held for Dr Zaheer's poor performance and professional behaviour.
  1. [369]
    What is argued against Dr Gill is that she required Dr Zaheer to demonstrate 'far greater evidence of remediation than she would require of another intern'; and to exhibit 'a higher level of performance than other intern doctors in the same position as him'.  However, in my view, the evidence does not support such contentions.
  1. [370]
    I accept that the relevant comparator in relation to this allegation is an intern without the religious belief held by Dr Zaheer in the same or similar circumstances.  The relevant circumstances are:
  1. (a)
    the intern having the same performance concerns during internship to date, namely:
  1. (i)
    an unsatisfactory assessment at the end-of-term in the first term;
  1. (ii)
    a satisfactory assessment at the end-of-term in the second term;
  1. (iii)
    a satisfactory assessment at the end-of-term in the third term;
  1. (iv)
    an unsatisfactory assessment at the end-of-term in fourth term;
  1. (v)
    a satisfactory assessment at the end-of-term in the fifth term (albeit unsatisfactory at the mid-term);
  1. (vi)
    a satisfactory assessment at the end-of-term in the repeat first term; and
  1. (vii)
    a satisfactory assessment at the end-of-term in the repeat second term;
  1. (b)
    the intern having had the same concerns about professional conduct during their internship to date, namely:
  1. (i)
    a significant concern arising out of an incident on ward call during their first term; and
  1. (ii)
    appalling behaviour towards colleagues when rostered to perform an evening ward call in the fourth term.
  1. [371]
    In her evidence, Dr Gill disputed that a different approach had been adopted in dealing with Dr Zaheer in comparison to Intern Two.  In cross-examination Dr Gill said:

The results were - well, the recommendation that you made was a very different recommendation to what you made in respect to Zaheer? --- Well, I recommended that she continue to go on to get full registration, general registration, yes.  Yep.

The only difference in assessed performance was really the one extra training that Zaheer failed? --- No.  I don't think that you can say that at all.

Do you - do you take issue with my use of the word, "Performance", or "Assessed performance"? --- No.  I think you that the - this intern had one five week term failure, which was a profound failure.  She remediated.  There were no other concerns about professionalism that were brought to the medical education unit.  Zaheer failed two terms and then there were ongoing significant professional conduct issues, such as - would you like me to list them?

Sure.

HIS HONOUR: If that - if you want to respond, thanks yes.

WITNESS: Okay, so the - the - the watercooler issue when he was in dispute of the consultant's opinion and not recognising his own professional limits and seeking help in an appropriate time.  There was the - the ward call issue where he - he had been reinstated to ward call and then decided in issue that he didn't want to do the shift and then when he was told that he needed to do the shift, he hung up on the administration officer and didn't feel that there was any need to apologise to her for her - for his behaviour in that.  And then refused to go to the telephone to talk to the division - the Chair of the Division of Medicine.  There was also the ongoing issues with tardiness which he reported and he - he openly talked about to us that even during his colorectal term that if he was interested he would turn up on time, such as he did during ophthalmology.  But when he wasn't interested, he wouldn't be bothered to turn up on time and was two hours late for shifts, as documented in orthopaedics.

He's continued to have issues with punctuality in colorectal, in general medicine, and then was found making paper aeroplanes on a ward, in a ward situation.  In addition, there are some of the clinical errors that have been made.  But it's mainly the professionalism and the - and not wanting to do anything unless it bettered his own and pursued his own interests.  I think that's profoundly different to the intern who failed five weeks and then remediated.[279]

  1. [372]
    Intern Two was assessed as unsatisfactory in one term in her internship, rather than the two end-of-term assessments where Dr Zaheer was assessed as unsatisfactory.[280]  The nature and extent of concern in respect of the performance of Intern Two was quite different from the concerns identified in respect of Dr Zaheer.  As Dr Gill observed in cross-examination, the concerns with Dr Zaheer were '.... profoundly different to the intern who failed five weeks and then remediated'.[281]
  1. [373]
    In re-examination, Dr Gill was asked the following in respect of Intern Two:

Just going back to intern number 2 who you - who you were asked about and who I showed you one of intern number 2's resident medical officer assessment forms earlier.  You were asked a number of questions comparing and contrasting intern number 2's assessment and treatment to - to the applicants.  In - in - from your prospective, why was it that intern number 2 subsequently received the recommendation from you that intern number 2 received?---So - so initially, she was unaware of her underperformance.  But as soon as she became aware of it and had clear and precise feedback, she had great insight into it, was very apologetic about it, was prepared to remediate her actions, understood what she had to undertake to change her observed behaviour and she - she did that without a second question, and there were no other concerns of professionalism brought to me at any point.[282]

  1. [374]
    In dealing with the assertion that the treatment of Dr Zaheer was different to the treatment of Intern Three, Dr Zaheer was offered a greater opportunity to exhibit a satisfactory performance than Intern Three.[283]  In respect of Intern Three, the evidence was that they did not perform their first term at the PAH.  At the completion of the term, Intern Three was assessed as unsatisfactory and required further development in four criteria.[284]  In term two, Intern Three's performance was again assessed as unsatisfactory.  Whilst Intern Three's performance improved in the third term
  1. [375]
    I do not accept that Dr Zaheer was required to exhibit a higher level of performance than other intern doctors in the same position as him, nor was he treated more harshly than other intern doctors in the same position as him.  There is no basis to conclude that Dr Gill would not have made the same recommendation to AHPRA in relation to another intern in the same or similar circumstances where that intern did not have Dr Zaheer's religious belief or because of his race.
  1. [376]
    I accept that Dr Gill did not make her recommendation to AHPRA because of Dr Zaheer's religious belief or the pleaded characteristics.  Rather, the recommendation was made because she held a genuine concern regarding Dr Zaheer's professional behaviour and performance during his internship.
  1. [377]
    This allegation of discrimination has not been established.

Instance Four - Dr Nadeem's treatment during his internship

  1. [378]
    The fourth instance of discrimination alleged is that Dr Nadeem was treated less favourably during his employment.  The two contentions advanced are that:
  1. (a)
    Dr Gill also caused the Management Strategy to be implemented by seeking to have Dr Nadeem fail units when his supervisors were of the opinion that he had performed satisfactorily;[285]
  1. (b)
    Dr Nadeem was required to exhibit a higher level of competency than other interns, because Dr Gill made a voluntary notification to AHPRA which relied upon Dr Nadeem's performance as she perceived it, rather than the assessment of his supervisors.[286]
  1. [379]
    The matters to be determined by the Commission are:
  1. (a)
    whether the two discrete aspects of the treatment of Dr Nadeem involved less favourable treatment; and
  1. (b)
    whether a substantial reason for this treatment was that Dr Jordan and/or Dr Gill perceived Dr Nadeem, as a consequence of his race or religion, to be a devout Muslim, to have a narrow view of normality and to have a tendency to be quite judgmental at times.[287]
  1. [380]
    The first specific allegation arises out of the treatment of Dr Nadeem in two of his assessments in Dermatology and Hepatobiliary.
  1. [381]
    The Complainants set out in their submissions that the forms used for assessing interns outlined five standards that could be achieved in relation to their performance in a number of different areas:
  1. (a)
    requires substantial assistance;
  2. (b)
    requires further development;
  3. (c)
    consistent with level of appointment;
  4. (d)
    performance better than expected; and
  5. (e)
    performance exceptional.[288]
  1. [382]
    The forms indicated that an assessment of (a) or (b) required the intern to be assessed as unsatisfactory which was consistent with the guidelines in place at the time.
  1. [383]
    The letter of 14 December 2012 to AHPRA records that Dr Nadeem was assessed as satisfactory in Dermatology.  The letter of 8 March 2013 records that whilst Dr Nadeem was assessed as satisfactory in Dermatology, he was assessed as requiring further development in three criteria.  In regard to Hepatobiliary, Dr Nadeem was assessed as satisfactory but that he had not done ward call duties.[289]  Dr Gill records that, 'Prof Fawcett acknowledge [sic] that Dr Toodayan still required further development he felt that this did not need to take place in division of surgery'.[290]
  1. [384]
    It was submitted by the Complainants that when making that report to AHPRA, Dr Gill accepted she had said to Ms Mitchell that Dr Nadeem's strong religious beliefs as a Muslim led him to share his equally strong opinions on medicine being a higher calling.[291]
  1. [385]
    Dr Gill raised her concerns about Dr Nadeem's performance with Ms Mitchell.  She told Ms Mitchell that Dr Nadeem's strong religious beliefs lead him to share his opinions on the practice of medicine,[292] and that his fixed beliefs about and reverence of medicine were the reasons he was struggling.[293]
  1. [386]
    In cross-examination Dr Gill said:

Now, you also said that Nadeem's strong religious beliefs as a Muslim also led him to share his equally strong opinions on medicine being a higher calling?---So Nadeem has stated that himself that - that he refers to the practice of - his pursuit of medicine as a higher calling and a divine vocation.

Do you recall saying that to Ms Mitchell?---I have said - yes.  I relayed that information to Ms Mitchell.  Yes.

And the - all of that was front of mind for you when describing Nadeem's problems, wasn't it?---That's how Nadeem portrays himself.  If you read the beginning of Nadeem's affidavit it says:

I am Nadeem Toodayan. I am a Muslim and I believe in the divinity of man.

That's how Nadeem – that's what Nadeem brings to the conversation.  That's how he – how he introduces himself.

Dr Gill, that was front of mind for you when describing Nadeem's problems, wasn't it?---This is front of mind for Nadeem in describing his difficulties which is what I was relaying to the medical board.  Nadeem also talks about this in - he discloses this in his conversation with - with Frank New, the psychiatrist, when asked about what difficulties - what did he see as his difficulties in progressing, and this is what he identifies in that assessment is that he has difficulty reconciling his need and his anxiety that - that medicine should be practices as a higher calling and that he's not able to focus on the mundane tasks and that he has to do everything in the minutiae.  And this is - and that he needs to - and because of his reverence of the forefathers of medicine and he needs to practice in that way that he can't bring himself to practice contemporary medicine.

...

Having been told those things, did you hold those opinions about Nadeem as well? --- That's what Nadeem believed to be his issues, and it seemed very apparent that his fixed belief and reverence of history of medicine and the medical forefathers were preventing him from being able to remediate.

So you - am I being fair to say that you held that opinion? --- I think it was evident that that's - those were the reasons that Nadeem was struggling.

In reading - I withdraw that, your Honour.  Just a moment.  Having had those views expressed to you, you thought Nadeem had a somewhat narrow view or normality, didn't you? --- No, I don't think that that would be words that I would use.  No. I think he had fixed beliefs about how medicine should be practiced and that it - we should emulate the forefathers of modern - of medicine.  But I wouldn't - I wouldn't use the term, what did you say, narrow - - -

 View of normality? --- No.  That's not something that I would say.

You understand what I'm - the concept that I'm putting to you though. Correct? ---You might have to explain it a bit more.

That he had a somewhat fixed view of the way that the world was to be, right and wrong? --- He had a belief about how medicine should be practiced.  I can't comment on anything else.

And you attributed the fixed view that he had to his religion and upbringing? --- No, absolutely not. This is - this is not to do with his religion.  This was due to his - his belief that we should be practicing medicine as those - as our forefathers did and that those who didn't - he had contempt of people who didn't practice like that.  But I don't think that's due to his religiosity.[294]

  1. [387]
    There is no evidence to substantiate the allegation that Dr Gill '... caused the Management Strategy to be implemented by seeking to have Dr Nadeem fail units'.[295]
  1. [388]
    Dr Gill specifically denies encouraging Dr Nadeem's supervisors to change their assessment of him.[296]
  1. [389]
    In relation to the end-of-term assessment in Hepatobiliary, Professor Fawcett did not recall anyone from the MEU asking him to assess Dr Nadeem in a particular way or to change his assessment.  In cross-examination, Professor Fawcett gave the following evidence:

Can I ask you to just then clarify this for me?  You say at paragraph 33 that you do not recall Dr Nicholls encouraging you to change your final assessment, and then you say:

This has certainly never happened during my interactions.

Is your evidence that you don't recall it happening in respect of Nadeem, and you don't recall it happening in respect of any other intern? Is that what you were - - -?--- Correct.

- - seeking to address? --- Correct. I don't ever recall the MEU asking me to change my assessment.

All right. So if it had happened in respect of Nadeem, that would have been unusual? --- It would have been unusual, yes.

Thank you? --- And, I think, therefore I'd be more likely to remember it. One remembers the unusual more than the usual.[297]

  1. [390]
    The evidence of Dr Nadeem was that Dr Gill "...stated that I should be marked unsatisfactory overall".[298]
  1. [391]
    Dr Gill denies encouraging Dr Nadeem's supervisors to change their assessment of him.  The evidence-in-chief of Dr Gill was as follows:

115. Peter Soyer and Sarah Tritton (registrar) summarised that Nadeem had improved in the last week when he prioritised his work commitments over his own interests.

116. As noted on the form, Nadeem was assessed by the relevant supervisors as requiring further development for medical records/clinical documentation, time management skills and teamwork.  As there were three criteria assessed as requiring further development, Nadeem should technically have been assessed as 'unsatisfactory' in accordance with PMCQ Guidelines.

117. I did raise this issue with Peter and Sarah during the meeting, to explain the guidelines for assessing interns. They were adamant that because Nadeem had shown improvement over the past week that he should receive a pass.  I did not encourage them to change their assessment of Nadeem.[299]

  1. [392]
    In the evidence-in-chief of Dr Soyer he said:
  1. My assessment of Nadeem was based solely on his performance; his ethnic background and his faith never played a role in how he was assessed.  I do not recall that Nadeem's faith ever came up in our interactions and I did not make comments about it because it is something that is very personal.  Nadeem and I had discussed his background because I am interested in knowing which part of the world people's names come from.
  1. I do not recall that anyone, including anyone from the MEU, asked me to change my assessment of Nadeem, either in this end of term assessment meeting or at any other point.  In any event, I would not have done it because it was not the proper way to do things and I do not like to be told what to do.[300]
  1. [393]
    During cross-examination, Dr Soyer said:

And you can see that one of them has been – the tick in respect of medical records and clinical documentation it appears was originally placed in the - - -?--- Yes.  Yes, absolutely.  And I - if I recall correctly, I was - how you say the best English word-– I was oscillating between these two because it sometimes not - are not clear cut and it didn't - and then at the end I thought it's probably not a bad idea that he requires, in this context, further development.

Now - - -?--- But it was - let's say it was, from my point of view, a tight decision here or there, but I was thinking it's - ultimately I decided this, yeah.

Right.  Now, when making that decision can I suggest that you made that decision in the course of the meeting that happened with the MEU at the end of the 10 period?---I'm pretty sure that this was completely independent of MEU, you know, because I never asked the MEU what I should write in my critique, in my assessment, and it wouldn't make sense if I asked them. But - - -.[301]

  1. [394]
    The evidence before the Commission does not support a conclusion that Dr Gill caused the Management Strategy to be implemented by seeking to have Dr Nadeem fail units.  Moreover, there is no basis to conclude that Dr Gill sought to encourage the clinical supervisors to mark Dr Nadeem as unsatisfactory overall.
  1. [395]
    Let me turn to the identification of a comparator in respect of the allegation that Dr Nadeem was required to exhibit a higher level of competency than other interns, because Dr Gill made a voluntary notification to AHPRA which relied upon Dr Nadeem's performance as she perceived it, rather than the assessment of his supervisors.[302]
  1. [396]
    The relevant comparator in relation to this allegation is an intern without Dr Nadeem's religious belief in the same or similar circumstances.  In respect of the 14 December 2012 AHPRA notification, the relevant circumstances are:
  1. (a)
    the intern having to apply for renewal of their provisional registration because they have not completed their internship in the standard timeframe; and
  1. (b)
    the intern having the same performance concerns during the internship to date namely:
  1. (i)
    having an IPAP instituted and satisfactory assessment at the end-of-term in the first term;
  1. (ii)
    having an IPAP instituted and an unsatisfactory assessment at the end‑of-term in the second term;
  1. (iii)
    having an IPAP instituted and satisfactory assessment at the end‑of‑term in the third term;
  1. (iv)
    having an IPAP instituted and satisfactory assessment at the end‑of‑term in the fourth term; and
  1. (v)
    having an IPAP instituted and satisfactory assessment at the end‑of‑term in the fifth term.
  1. [397]
    In respect of the 8 March 2013 AHPRA notification, the relevant circumstances are:
  1. (a)
    the intern having to apply for renewal of their provisional registration because they have not completed their internship in the standard timeframe; and
  1. (b)
    the intern having the same performance concerns during the internship to date namely:
  1. (i)
    having an IPAP instituted and satisfactory assessment at the end‑of‑term in the first term;
  1. (ii)
    having an IPAP instituted and an unsatisfactory assessment at the end‑of-term in the second term;
  1. (iii)
    having an IPAP instituted and satisfactory assessment at the end‑of‑term in the third term;
  1. (iv)
    having an IPAP instituted and unsatisfactory assessment at the end‑of‑term in the fourth term; and
  1. (v)
    having an IPAP instituted and unsatisfactory assessment at the end‑of‑term in the fifth term.
  1. (c)
    the intern having the same further performance concerns during their internship to date namely:
  1. (i)
    having an IPAP instituted and satisfactory assessment at the end‑of‑term in the fifth term;
  1. (ii)
    having an IPAP instituted and an unsatisfactory assessment at the mid‑term in the first repeat term; and
  1. (d)
    the PAH being requested by AHPRA to provide all of the relevant information about the intern's performance to date.
  1. [398]
    In respect of both notifications, the evidence is not such that a finding could be made that Dr Gill would not have written the same letters to AHPRA in relation to another intern in the same or similar circumstances where the intern did not have Dr Nadeem's religious belief.  It must follow therefore that there is no less favourable treatment of Dr Nadeem as alleged.
  1. [399]
    When the totality of the evidence before the Commission is considered, it was the identified performance issues which were of concern to Dr Gill.

Application of s 237 of the Health Practitioner Regulation National Law Act 2009 (Queensland).

  1. [400]
    In respect of the notifications to AHPRA of both Dr Nadeem and Dr Zaheer the Respondents relied on the protection afforded by s 237 of the National Law.
  1. [401]
    Section 237 of the National Law relevantly provides:

237 Protection from liability for persons making notification or otherwise providing information

  1. (1)
    This section applies to a person who, in good faith -
  1. (a)
    makes a notification under this Law; or
  2. (b)
    gives information in the course of an investigation or for another purpose under this Law to a person exercising functions under this Law.
  1. (2)
    The person is not liable, civilly, criminally or under an administrative process, for giving the information.
  2. (3)
    Without limiting subsection (2) -
  1. (a)
    the making of the notification or giving of the information does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct; and
  1. (b)
    no liability for defamation is incurred by the person because of the making of the notification or giving of the information.
  1. (4)
    The protection given to the person by this section extends to -
  1. (a)
    a person who, in good faith, provided the person with any information on the basis of which the notification was made or the information was given; and
  1. (b)
    a person who, in good faith, was otherwise concerned in the making of the notification or giving of the information.
  1. [402]
    It has not been suggested that Dr Jordan or Dr Gill provided the information to AHPRA other than in good faith.  Indeed, it was submitted by the Respondents that it was not put Dr Jordan or Dr Gill that the notifications or information provided by them to AHPRA was made other than in good faith.
  1. [403]
    The protection afforded by s 237 of the National Law is enlivened.  Accordingly, to the extent to which the Complainants' claim relies on the provision of information or a notification to AHPRA, their claim cannot succeed.

Instance Five - the G20 Matter

  1. [404]
    The final instance of discrimination arises following the events at the PAH on the morning of 4 April 2014.
  1. [405]
    Dr Nadeem and Dr Zaheer brought a claim alleging direct discrimination on the basis their respective religious belief and/or race against MSHHS in relation to MSHHS's response to the unlawful entry by the Complainants at the PAH on 4 April 2014.
  1. [406]
    The allegations of discrimination in respect of the G20 Matter rely on both the fact of the Complainants' attributes (that they were Muslims and Afghan) and characteristics commonly imputed to persons of that race and religion.  The contention is that:
  1. (a)
    Dr Ashby was aware that the Complainants were of the Islamic faith and the Afghan race, and that he perceived them to be of a greater security threat because of their race or religion;
  1. (b)
    persons of the Afghan race and/or Muslim faith often have imputed to them the characteristics that:
  1. (i)
    they are devout Muslims;
  1. (ii)
    they pose a greater threat to security than members of the general population; and
  1. (iii)
    they are more likely than members of the General population to be involved in planning for and/or committing dangerous acts and/or acts of terrorism; and
  1. (c)
    Dr Ashby's treatment of the Complainants was less favourable than it would have been for a person who:
  1. (i)
    was not perceived to be of the Islamic faith or the Afghan race; or
  1. (ii)
    was not perceived, because of that race or religion, to be devout, or a greater security threat than a general member of the public.[303]
  1. [407]
    The issues arising in this instance are whether:
  1. (a)
    the direction to report the Complainants to the G20 Dignitary Protection Unit (which was complied with and included a detailed discussion of the Complainants' "background" with the G20 Unit in the context of alleged suspicious activity) was less favourable treatment than would have occurred in respect of someone who did not have the protected attributes of the Complainants; and
  1. (b)
    a substantial reason for that treatment was that Dr Ashby perceived the Complainants to be Muslims, Afghan, devout, and more likely to pose a security threat than a member of the general public without those attributes.[304]
  1. [408]
    I accept the Respondents' formulation of the appropriate comparator more adequately reflects the relevant circumstances and correctly reflects that the comparator is a person without the attribute in circumstances that are the 'same or not materially different'.  Therefore, in respect of the G20 Matter, the comparator is a person who:
  1. (a)
    was a former employee;
  1. (b)
    had performance issues during their employment;
  1. (c)
    had resigned from their employment or had not been offered ongoing employment with the Respondent;
  1. (d)
    had unlawfully entered the PAH on 4 April 2014;
  1. (e)
    had entered the PAH with no clear purpose as at 4 April 2014;
  1. (f)
    had unlawfully entered a ward;
  1. (g)
    had unlawfully entered ward 4E which had been specifically designated to receive dignitaries during G20;
  1. (h)
    had unlawfully accessed the PAH computer system;
  1. (i)
    had viewed patient records without authorisation;
  1. (j)
    had taken photos of patient records inside the PAH; and
  1. (k)
    had given a vague and odd explanation for their presence at the PAH when questioned by staff,

but who is not of the Islamic faith and/or of the Afghan race.

  1. [409]
    Let me briefly outline the background to the G20 allegation.
  1. [410]
    On 4 April 2014 at approximately 4:30 am, Dr Nadeem and Dr Zaheer attended at the PAH, gained access to the PAH and visited Ward 4E.
  1. [411]
    There is no issue that the Complainants attended the PAH and entered using their active access cards, even though they were not authorised to do so.  There is also no issue that when that entry was reported to Dr Richard Ashby, then chief executive of MSHHS, he directed employees to report the unauthorised entry to the G20 Dignitary Protection Unit and the reporting process included a triage meeting with officers of that unit.[305]
  1. [412]
    Dr Nadeem and Dr Zaheer were able to gain access to the PAH using their ID proxy cards which had not been de-activated following the end of their employment at the PAH.   Significantly, not all their movements and activities had been captured on CCTV.[306]
  1. [413]
    Dr Richard Ashby was Chief Executive of the MSHHS from 2012 to 2017. 
  1. [414]
    At or around 11.30 am on Friday 4 April 2014 Dr Ashby was advised by Dr Birgan that Dr Nadeem and Dr Zaheer had been found in Ward 4E at approximately 4.50 am; had accessed patient records; and had taken photographs of the ward. 
  1. [415]
    Dr Ashby said he was greatly concerned about what he had heard and would have requested that the matter be reported to the QPS and other agencies even if the G20 or Royal Visit were not upcoming given the extremely unusual nature of the incident and the fact that it involved former medical employees of the PAH.  He said he would have also requested that the matter be escalated to the QPS if a member of the public had accessed the PAH at that time of the morning and engaged in the conduct described.[307]
  1. [416]
    Dr Ashby said the PAH was designated as the receiving hospital for national leaders and other dignitaries attending the 2014 G20 Brisbane summit which was to be held on 15‑16 November 2014.  Preparations for the G20 commenced well in advance of the event and were well underway in April 2014.  This included planning in relation to security at the PAH and what parts of the PAH would be utilised during the event if an incident occurred during G20.  Some members of MSHHS worked with members of the Department of Health's Emergency Management and Counter Disaster team and members of the QPS in relation to security matters at the PAH in the lead up to the G20.[308]
  1. [417]
    Dr Ashby said the G20 was not the only significant event taking place in Brisbane in 2014.  In April 2014 the Duke and Duchess of Cambridge were scheduled to visit Brisbane.  Once again, the PAH had been briefed to be 'on-call' as the designated receiving hospital if an incident took place.  Ward 4E (the colorectal unit) had been designated as the prime secure, general ward within the PAH which would be used if an incident took place.[309]
  1. [418]
    Considering this, Dr Ashby said staff at the PAH were highly aware of and sensitive to security matters within the PAH and he felt a responsibility to ensure that security matters were dealt with seriously and that suspicious incidents at or around the PAH were reported to the relevant authorities including the G20 Dignitary Protection Unit.[310]
  1. [419]
    Dr Ashby directed that the incident be reported to the G20 Dignitary Protection Unit.  This resulted in a 'triage meeting' where the counter terrorism police were given a history of the Complainants' background.[311] 
  1. [420]
    On the afternoon of 4 April 2014 Dr Ashby together with various members of MSHHS/PAH executive met with QPS Detective Senior Constable Nigel Johns. 
  1. [421]
    Dr Ashby told the Commission that he attended for part of the meeting, he recalled that some background information was provided to Detective Senior Constable Johns about the Toodayans' former employment with MSHHS; the area visited by them that morning in particular, the designated areas for delegates to the G20 and the Royal Visit.  Further discussion included what other agencies may need to be briefed on the incident, including the then Crime and Misconduct Commission, AHPRA and the Director General of the Department of Health.[312]
  1. [422]
    Dr Ashby could not recall whether he was told of the explanations given for why the Complainants were at the PAH and they were not contacted to seek clarification about what had occurred that morning.
  1. [423]
    Dr Cooke attended the meeting with the QPS.  Her evidence was not challenged in cross‑examination.  In her affidavit she deposed:[313]
  1. During the meeting I was asked to give some background information to the group about the Toodayans' employment at the PAH during their internship.  The background information discussed during this meeting was simply a high level timeline of the Toodayans' employment at the PAH.  This aspect of the discussion was quite short.
  1. I made no reference to the Toodayans' race or religion during the discussion, and I do not recall any other person referring to this during the discussion that afternoon.
  1. [424]
    Thereafter, Dr Ashby said the matter was dealt with by the QPS.  He said he was aware that the Toodayans were subsequently charged in relation to their activity at the PAH on 4 April 2014. 
  1. [425]
    It is not in dispute that Dr Zaheer pleaded guilty to Trespass pursuant to s 11(2) of the Summary Offences Act 2005 (Qld); and Computer Hacking and Misuse pursuant to s 408E (1) of the Criminal Code 1899 (Qld).  Dr Nadeem pleaded guilty to Trespass pursuant to s 11(2) of the Summary Offences Act 2005 (Qld).[314]   Both Complainants were cautioned by AHPRA.[315]
  1. [426]
    Dr Ashby said he was aware of the Toodayans from their respective internships at the PAH however he had not met them himself.  He became aware that the Toodayans were Muslims.  He said he had no level of knowledge as to whether either are 'devout Muslims' or their level of faith.  He said there is a very broad range of religious beliefs within the staff at the PAH and more broadly within MSHHS, and Metro South had the largest population of Muslims in Queensland.[316]
  1. [427]
    Further, in cross-examination the following exchange took place:

So you were aware that, to the extent that access to the premises had previously been possible in an unauthorised manner, by the time that you were informed of it, you knew that that was no longer a possibility?  They could still access the building by walking in the front door - - -

In the same way - - -?--- - - - during hours.

In the same way as any member of the public could?  That's right.

Right.  But the security risk that arose from inappropriate access true [sic] security cards had already been resolved?  No, it hadn't.

Well, the cards had been deactivated, had they not?  That's not the issue.  It's what were they doing in the building.

Right.  Well, you took those steps - or you didn't need, in fact, to take any steps at that point in time to - - -?  That's right.

- - - ensure that a repeat access in the same way couldn't occur again, did you?  I wasn't concerned about repeat access.  I was concerned about what had happened when those young men were in that building, because they weren't covered by CCTV all the time.  What did they do when they were in that ward.

Well - - -?  And it wasn't up to me to find out.  It was up to the police and counterterrorism to find out what they were doing.

Well, I suggest the reason that you were, in fact, concerned about them was because you were concerned about the risk of terrorism associated with the G20 Summit that was upcoming?..Everybody was concerned about that.

And - - -?  There were thousands of police in the streets around this building.  Thousands of police.

And you knew that Nadeem and Zaheer at this time were of the Islamic faith? ---Were?

Of the Islamic faith?  I knew they were of the Islamic faith, yes.

And you knew that they were devout?  No, I didn't know that.

Well, I suggest that you perceived that their access was a greater risk than anybody else's because of those - the - - -?  No.

- - - information that you were aware of?  No, not at all.  If my mother had been in that ward that morning in those circumstances, I would have reported her to the police.  We were told to report anything unusual.  The presence of those two men in that ward at that time of day wasn't unusual. It was extraordinary.  Extraordinary.

Dr Ashby, you wouldn't really have reported your mother to the police, would you?  Yes, I would have.  Mother Theresa, too.  Anybody.  They were in the designated ward.  I don't know if you know what that means, sir, but I can tell you what it meant to me.  That's where Obama would go if he got food poisoning at the convention centre.  He would be there.  What if something had been planted in that ward for fur [sic]- later activation as Obama comes?  What if?  What if?  What if?  That's - all the what ifs to be answered, and they have to be answered by the appropriate people.

Yes. And the only reason you were concerned that those were issues in respect of this occasion was because of the faith - - -?  No.

- - - of these two gentlemen?  No.  Not at all.  We have Muslims on staff.  We had lots of Muslims on staff.  We had more Muslims living in Metro South than any other area of Queensland.  It was - it was nothing.[317]

  1. [428]
    I accept the argument that the evidence before the Commission does not support the conclusion that any staff at MSHHS advised the QPS in respect of the race or religion of Dr Nadeem or Dr Zaheer.  The triage notes[318] do not record any reference to the Complainants' race or religion.
  1. [429]
    I also accept that Dr Ashby did not take any action in respect of this matter because of the Toodayans' race or religion.  That was abundantly clear from the affidavit evidence given by him.[319]
  1. [430]
    It was submitted by the Complainants that given the subsequent counter terrorism police investigation focussed on religious radicalisation, it should be inferred that the race and religion of the Complainants was discussed at the meeting.[320]  I do not accept that submission.
  1. [431]
    The Complainants submit the conduct of the PAH was discriminatory and it ought to be found the decision involved treatment that was less favourable than the treatment that would have been accorded to a person who was not of the Islamic faith, and that the Complainants' religion was a substantial reason for that treatment.  I disagree.
  1. [432]
    Dr Ashby's unequivocable evidence was that he requested the conduct of Dr Nadeem and Dr Zaheer reported because he had been instructed to report any unusual activity.[321]  Indeed, in cross-examination he made his view clear: "The presence of those two men in that ward at that time of day wasn't unusual.  It was extraordinary.  Extraordinary".[322]
  1. [433]
    The unauthorised access by the Complainants of the PAH in the early hours of 4 April 2014, and in particular, Ward 4E was of particular concern. Dr Ashby's concern was heightened by the fact that Ward 4E was designated for the G20 and the upcoming Royal Visit.  The evidence in my view does not support a conclusion that the substantial reason for Dr Ashby taking the course he did was as consequence of some perception held by him that Dr Zaheer and Dr Nadeem were Muslims, Afghan, devout and more likely to pose a security threat than a member of the general public without those attributes.
  1. [434]
    The issue of principle arising is whether the treatment of the Complainants in relation to the G20 Matter falls within the scope of the AD Act given that neither of the Complainants were still employed at the time of the incident. 
  1. [435]
    The Complainants abandoned reliance on s 46 of the AD Act and instead focused on:
  1. (a)
    section 15(1)(f) of the AD Act, notwithstanding they were no longer employed; and
  2. (b)
    section 101 of the AD Act.[323]
  1. [436]
    Section 15 of the AD Act relevantly provides:

15 Discrimination in work area

  1. (1)
    A person must not discriminate -
  1. (a)
    in any variation of the terms of work; or
  1. (b)
    in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
  1. (c)
    in dismissing a worker; or
  1. (d)
    by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
  1. (e)
    in developing the scope or range of such a program; or
  1. (f)
    by treating a worker unfavourably in any way in connection with work.
  1. (2)
    In this section -

dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.

  1. [437]
    To succeed, the Complainants must establish that any decision by the hospital executive, in particular, Dr Ashby in the context of the health service falls within the scope of s 101 of the AD Act.
  1. [438]
    Section 101 of the AD Act provides:

101 Discrimination in administration of State laws and programs area

A person who -

  1. (a)
    performs any function or exercises any power under State law or for the purposes of a State Government program; or
  1. (b)
    has any other responsibility for the administration of State law or the conduct of a State Government program;

must not discriminate in -

  1. (c)
    the performance of the function; or
  1. (d)
    the exercise of the power; or
  1. (e)
    the carrying out of the responsibility.
  1. [439]
    What is contended by the Complainants is that by reporting the Complainants unlawful activity on 4 April 2014 it comes within the scope of the Hospital and Health Boards Act 2011 (Qld) (the HHB Act).
  1. [440]
    Under the HHB Act, a 'health service' is defined as a 'service for maintaining, improving, restoring, or managing people's health and wellbeing'.[324]  Section 19(1) of HHB Act provides that 'A Service's main function is to deliver the hospital services, other health services, teaching, research and other services stated in the service agreement for the Service'.
  1. [441]
    Relevantly, the question for determination is whether s 15(1)(f) of the AD Act should be read as extending to the treatment of a worker who is no longer engaged in work if the treatment still relates to the working relationship.
  1. [442]
    The definition of work in Schedule 1 of the AD Act provides:

work includes -

  1. (a)
    work in a relationship of employment (including full-time, part-time, casual, permanent and temporary employment); and
  1. (b)
    work under a contract for services; and
  1. (c)
    work remunerated in whole or in part on a commission basis; and
  1. (d)
    work under a statutory appointment; and
  1. (e)
    work under a work experience arrangement within the meaning of the Education Work (Work Experience) Act 1996, section 4; and

(ea) work under a vocational placement; and

  1. (f)
    work on a voluntary or unpaid basis; and
  1. (g)
    work by a person with an impairment in a sheltered workshop, whether on a paid basis (including a token remuneration or allowance) or an unpaid basis; and
  1. (h)
    work under a guidance program, an apprenticeship training program or other occupational training or retraining program.
  1. [443]
    It is contended by the Complainants that both ss (a) and (f) (at least) of the definition contemplate working relationships that are not necessarily governed by a contractual arrangement with an identifiable time limit establishing when the relationship ends.
  1. [444]
    The Complainants submit that even though the word "worker" tends to invoke a concept of employment which carries with it a contractual connotation, in this section it should not be presumed that the end of a contractual relationship of employment means the Act can no longer have any application.
  1. [445]
    It is submitted that the AD Act is beneficial legislation and as such the relevant provision ought to be read liberally.
  1. [446]
    The Complainants submit there is no reason why the concept of the treatment of a worker "in any way in connection with work" should not be construed as including less favourable treatment of a person that:
  1. (a)
    occurs once any contractual relationship has come to an end; but
  2. (b)
    nonetheless, relates to the working relationship.[325]
  1. [447]
    The AD Act is properly described as beneficial legislation.  The approach described in Bird v the Commonwealth[326] namely, if a person or a case falls within the general spirit of remedial legislation, and there are two possible interpretations, the courts ought not to construe the Act so as to exclude that person or case.  However, this approach is not without constraint.
  1. [448]
    As was observed in Khoury v Government Insurance Office (NSW),[327] the interpretation adopted "must be restrained within the confines of the actual language employed and what is fairly open on the words used".
  1. [449]
    In IW v City of Perth,[328] Brennan CJ and McHugh J expressed the approach to the construction of beneficial legislation in the following terms:

.. beneficial and remedial legislation, like the [Equal Opportunity] Act, is to be given a liberal construction.  It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical".  Nevertheless, the task remains one of statutory construction.  Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.[329] (citations omitted)

  1. [450]
    It is only if more than one interpretation is available or there is uncertainty as to the meaning of the words that the beneficial interpretation approach arises.[330]
  1. [451]
    I do not accept the Complainants' argument that s 15(1)(f) of the AD Act should be read as extending to the treatment of a worker who is no longer engaged in work if the treatment still relates to the working relationship.
  1. [452]
    What occurred on the morning of 4 April 2014 did not, in my view, arise out of the working relationship between the Complainants and the MSHHS.  There was no connection with work.  The employment relationship was at an end.  The Complainants' conduct in entering the premises in the early hours of the morning was unlawful.[331]  To bring the alleged discriminatory conduct into the operation of the AD Act, there needs to be a sufficiency of connection or a nexus between the employment and the thing done by the employee.  There was none.
  1. [453]
    In these circumstances it cannot be found that the treatment of the Complainants on 4 April 2014 was capable of being proscribed by the AD Act.[332]  Accordingly, the alleged treatment of the Complainants by Dr Ashby does not fall within the scope of s 101 of the AD Act.
  1. [454]
    Moreover, as I have concluded elsewhere, the evidence does not establish discrimination. There was no discrimination in the performance of the function; or the exercise of the power; or the carrying out of the responsibility under s 101 of the AD Act.
  1. [455]
    As the evidence before the Commission clearly demonstrates, Dr Ashby denied that the substantial reason, or any reason for giving the instructions was based upon the Complainants' race or religion, or any pleaded characteristic.  I accept that the reason for giving the instructions was the extraordinary and unlawful behaviour of the Complainants on 4 April 2014.
  1. [456]
    For the reasons advanced above, I cannot accept that Dr Ashby treated the Complainants less favourably on account of a protected attribute.  None of the allegations of discrimination have been established and accordingly, this part of the claim ought to be dismissed.

Conclusion

  1. [457]
    The Complainants bear the onus of proof in relation to the allegations of direct discrimination to establish the Respondents contravened the AD Act on the balance of probabilities.[333]
  1. [458]
    In proceedings such as this, it is rarely the case that reliance can be had to direct evidence.  It is well established that proof of discrimination usually depends on the drawing of inferences from all the circumstances, not clear facts.[334]
  1. [459]
    In Sharma v Legal Aid (Qld) the Full Court of the Federal Court wrote:

It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities.  It may be accepted that it is unusual to find direct evidence of racial discrimination and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953, 958.  There may be cases in which the motivation is subconscious.  There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] UKHL 36; [1999] 3 WLR 425, 433.  It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361–362.  Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319, 331.  No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature.

In a case depending on circumstantial evidence, it is well established that the trier of fact must consider 'the weight which is to be given to the united force of all the circumstances put together'.  One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen [No.2] (1983 - [1984] HCA 7; 1984) 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important, provided, of course, that the circumstances relied upon are established as facts.[335]

  1. [460]
    The Commission has been urged by the Complainants to draw the necessary inferences that the various instances of the pleaded conduct amounted to discrimination within the scope of s 15 of the AD Act.
  1. [461]
    In G v. H (1994) Brennan and McHugh JJ stated, "the drawing of an inference is part of the process of fact finding", and it is "an exercise of the ordinary powers of human reason in the light of human experience".[336]
  1. [462]
    The evidence before the Commission must give "rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability".[337]
  1. [463]
    In Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd[338] the Victorian Court of Appeal wrote:

The principles, relating to the drawing of inferences in civil cases, are well established.  First, any inference must be based on facts established by admissible evidence.  Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork.  Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be 'the more probable inference' from those facts.  In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference...

In its recent decision in Marriner & Ors v Australian Super Developments Pty Ltd, this Court summarised the relevant principles as follows:

"A party seeking to establish that an inference ought to be drawn must demonstrate that that inference is the more probable one which arises from the established facts. The inference must be based on evidence rather than speculation ..."[339]. (citations omitted)

  1. [464]
    The case advanced by the Complainants was, in my view, based upon speculation and guesswork.  The evidence was of such a nature that it could not, on the requisite onus, establish that any protected attribute or alleged characteristic was the substantial reason for any action taken by the Respondents.
  1. [465]
    The evidence of Dr Peucker and Professor Akbarzadeh was in my view of little direct relevance or assistance in determining the issues before the Commission.  The evidence of both Dr Peucker and Professor Akbarzadeh involved a survey of published research literature; neither of the experts addressed the specific pleaded characteristics; and much of the research relied upon, on which their opinion was founded, did not reference contemporary data.
  1. [466]
    Even the most generous interpretation of the Complainants' case does not in any form raise to the necessary standard a conclusion that any protected attribute or alleged characteristic was the substantial reason for the actions of the Respondents.
  1. [467]
    The High Court in Purvis v New South Wales (Department of Education and Training)[340]refer to the issue of causation as follows:

158  In Waters v Public Transport Corporation, Mason CJ and Gaudron J (Deane J agreeing) approved the view of Deane and Gaudron JJ in Banovic that motive or intention to discriminate is not required.  Their Honours said that it is enough if the difference in treatment is based on the prohibited ground, notwithstanding an absence of motive or intention.

159  In Waters, McHugh J rejected the statement of Lord Goff in Birmingham and the statements of Deane and Gaudron JJ in Banovic concerning motive or intention, in so far as they might suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator was actuated by the prohibited ground.  His Honour said:

"The words 'on the ground of' and 'by reason of' require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ('the victim').  The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did." (Citations omitted)

  1. [468]
    I cannot conclude that the conduct of the Respondents was actuated by a prohibited ground.
  1. [469]
    The approach adopted by the Respondents in respect of Dr Zaheer and Dr Nadeem dealing with their internship seemed to me to be unremarkable.  The MEU's function is to co-ordinate and deliver education and training for intern doctors in accordance with prescribed curriculum during their internship years.
  1. [470]
    Consistent with that function, the ultimate goal is to assist interns to successfully complete their internships and progress through to general registration.  The evidence before the Commission reflects that approach.
  2. [471]
    The Complainants were criticised by the Respondents for the failure to directly confront the Respondents about their reasons for acting as they did.  In particular, it was submitted that it was not put to Dr Jordan nor Dr Gill in cross-examination the reason, let alone the substantial reason for acting as they did was because of the Complainants' religious beliefs.  Counsel for the Complainants placed emphasis on the fact that the Respondents had been put on notice of the allegations that were to be made against them.  Because the Respondents were on 'notice' it was not necessary therefore for the witnesses to be cross‑examined in relation to the specific reasons for acting as they did.[341]
  1. [472]
    The Victorian Court of Appeal decision in Curwen & Ors v Vanbreck Pty Ltd[342] in dealing with the effect of a witness not being cross-examined, wrote:

[27]  If the appellants' submission is accepted without qualification, the fact that the party calling the witness is on notice that it is intended to challenge the witness's evidence or impugn the witness or party's conduct in a particular way means that compliance with the rule in that circumstance is no longer obligatory.  But whatever the effect of 'notice', the burden of persuasion as to that fact does not shift. remains upon the party who seeks to establish the allegation.  The cross-examiner who because of 'notice' refrains from 'putting' the allegations to the witness embarks upon a potentially dangerous forensic course.  The tribunal may not be persuaded of the fact in issue if there is no cross-examination on the issue.  That risk increases where the party who makes the allegation can adduce no direct evidence as to it and the other party, having adduced no evidence in chief as to the issue, is not cross‑examined.

[28]  The rule facilitates the tribunal's assessment of the issue.  If the tribunal's capacity to properly assess the merit of the allegation has been impaired because the issue was not explored with the witness, the cogency and weight to be attached to the allegation is likely to be affected.  As Redlich J stated in Johnson Matthey (Aust) Pty Ltd v Dascorp Pty Ltd:

Credit issues need to be identified when the witness is cross-examined, and the trial unfolds.  The judge's capacity to assess the credibility of witnesses ought not to be impeded.  Any relaxation of the obligation to comply with the rule in Browne v Dunn has the potential to do so, thereby increasing the risk of injustice to a witness or party.

[29]  Where, because there is 'notice', it is not considered necessary that the witness be cross‑examined, the risk arises that the tribunal will not be able to reach an affirmative conclusion on the issue.  That is to say, the consequence of the forensic choice to abstain from challenging the witness may leave the tribunal unpersuaded as to the truth of the allegation so that it will decline to reach a conclusion adverse to the witness. (citations omitted)

  1. [473]
    As the authorities suggest, issues of credit need to be identified when the witness is cross‑examined, and the hearing unfolds.  A failure to do so may leave the tribunal of fact unpersuaded as to the truth of the allegation.
  1. [474]
    I found Dr Jordan and Dr Gill to be credible witnesses.  I formed the view after listening to and considering their evidence that they were motivated by a desire to ensure that the Complainants succeeded during their internship.
  1. [475]
    It is accepted that during their employment at PAH, the Complainants were afforded the protection of s 15 of the AD Act.  However, for the reasons expressed elsewhere, as former employees, the AD Act does not extend to the Complainants. 
  1. [476]
    Notwithstanding the above conclusion, in respect of the G20 Matter, I accept the evidence of Dr Ashby and Mr Beckett.  When the evidence before the Commission is assessed, there is no basis to find that the substantial reason for giving the instructions on 4 April 2014 was based on the Complainants' religious belief or the pleaded characteristics.
  1. [477]
    The Complainants have, in respect of each of the matters before the Commission, failed to discharge the onus of establishing that the treatment of them amounts to unlawful direct discrimination under the AD Act.  Accordingly, Complaints AD/2018/67, AD/2018/68 and AD/2019/110 are dismissed.
  1. [478]
    I order as follows:

ORDER:

  1. That Complaints AD/2018/67, AD/2018/68 and AD/2019/110 be dismissed.
  1. I will hear the parties on the question of costs. 

Footnotes

[1] TR1-2, LL14-34.

[2] AD/2018/67 - Response to the complainant's SOFCs filed 18 October 2018, [2], [24]‑[26];  AD/2018/68 - Response to the complainant's SOFCs filed 18 October 2018, [2], [23]‑[25].

[3] AD/2018/67 - Complainant's SOFCs filed 27 September 2018, [6].

[4] Ibid, [9].

[5] Ibid, [10]-[15].

[6] Ibid, [16(b)].

[7] AD/2018/67 - Complainant's SOFCs filed 27 September 2018, [24].

[8] Ibid, [25].

[9] AD/2018/67 - Respondents' SOFCs filed 18 October 2018, [1].

[10] Ibid, [3]-[22].

[11] Ibid, [23].

[12] AD/2018/68 - Complainant's SOFCs filed 27 September 2018, [6].

[13] Ibid, [7]-[9].

[14] Ibid, [10]-[15].

[15] Ibid, [16].

[16] AD/2018/68 - Complainant's SOFCs filed 27 September 2018, [23]-[24].

[17] Ibid, [25].

[18] AD/2018/68 - Respondents' SOFCs filed 18 October 2018, [1].

[19] Ibid, [3]-[21].

[20] Ibid, [22].

[21] AD/2019/110 - Complainants' SOFCs filed 25 October 2019, [3].

[22] Ibid, [4].

[23] Ibid, [9].

[24] AD/2019/110 - Complainants' SOFCs filed 25 October 2019, [10]-[11].

[25] Ibid, [12]-[13].

[26] Ibid, [16].

[27] AD/2019/110 - Complainants' SOFCs filed 25 October 2019, [17].

[28] Ibid, [19].

[29] Ibid, [20].

[30] Ibid, [21].

[31] Ibid, [22].

[32] AD/2019/110 - Complainants' SOFCs filed 25 October 2019, [23].

[33] Ibid, [24].

[34] Ibid, [26].

[35] Ibid, [27].

[36] Ibid, [28].

[37] Ibid, [29].

[38] Ibid, [30].

[39] AD/2019/110 - Complainants' SOFCs filed 25 October 2019, [31].

[40] AD/2019/110 - Respondent's SOFCs filed 8 November 2019, [1].

[41] Ibid, [8]-[29].

[42] AD/2019/110 - Respondent's SOFCs filed 8 November 2019, [30].

[43] Ibid, [34].

[44] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [2], [3], [5], [6].

[45] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [8].

[46] Ibid, [9]-[10].

[47] Ibid, [11], [12].

[48] Ibid, [14], [17], [18].

[49] Ibid, [19].

[50] Ibid, [28], [31].

[51] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [33].

[52] Ibid, [49].

[53] Ibid, [65], [73].

[54] Ibid, [76], [85]-[86], [89].

[55] Ibid, [89.1]-[89.2].

[56] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [89.3].

[57] Ibid, [89.4].

[58] Ibid, [96], [98], [99].

[59] Ibid, [100].

[60] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [103].

[61] Ibid, [104].

[62] Ibid, [105], [107], [108].

[63] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [115].

[64] Ibid, [117], [126].

[65] Ibid, [120].

[66] Ibid, [130], [131], [134].

[67] Ibid, [135].

[68] Ibid, [136].

[69] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [137].

[70] Ibid, [139], [140].

[71] Ibid, [142].

[72] Ibid, [143]-[145].

[73] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [148], [150].

[74] Ibid, [161], [162].

[75] Ibid, [163], [165].

[76] Ibid, [171].

[77] Exhibit 50 - AD/2018/68 - Affidavit Lizbeth Jordan filed 28 May 2021, [1]-[3], [6], [18].

[78] Exhibit 28 - AD/2018/67 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, [1], [4].

[79] Ibid, [5].

[80] Ibid, [7].

[81] Ibid, [9].

[82] Ibid, [10].

[83] Ibid, [12].

[84] Ibid, [14].

[85] Ibid, [19], [25].

[86] Exhibit 28 - AD/2018/67 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, [39]-[40].

[87] Ibid, [42].

[88] Ibid, [46].

[89] Ibid, [57].

[90] Ibid, [58], [61], [63].

[91] Exhibit 28 - AD/2018/67 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, [76].

[92] Ibid, [92]- [93].

[93] Ibid, [98], [99(a)], [116], [121].

[94] Ibid, [125], [129], [134].

[95] Ibid, [145].

[96] Ibid, [170], [172], [179].

[97] Exhibit 28 - AD/2018/67 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, [185], [187], [193], [194].

[98] Ibid, [198]-[199], [204], [208].

[99] Ibid, [209]-[210].

[100] Exhibit 1 - AD/2018/68 - Affidavit Zaheer Toodayan filed 31 May 2021, [1]-[4], [6].

[101] Ibid, [7].

[102] Ibid, [5], [9].

[103] Exhibit 1 - AD/2018/68 - Affidavit Zaheer Toodayan filed 31 May 2021, [10], [12]-[14].

[104] Ibid, [15]-[17].

[105] Ibid, [21.1(b),(d)].

[106] Ibid, [21.1(f)].

[107] Exhibit 1 - AD/2018/68 - Affidavit Zaheer Toodayan filed 31 May 2021, [21.2(b),(c)].

[108] Ibid, [21.3].

[109] Ibid, [22]-[24.3].

[110] Ibid, [24.5], [24.6].

[111] Exhibit 1 - AD/2018/68 - Affidavit Zaheer Toodayan filed 31 May 2021,[27], [29], [33], [38], [39], [40].

[112] Ibid, [40.5].

[113] Ibid, [42], [43].

[114] Ibid, [44], [47]-[49], [51].

[115] Ibid ,[52], [54], [60].

[116] Exhibit 1 - AD/2018/68 - Affidavit Zaheer Toodayan filed 31 May 2021, [62], [66], [67], [68].

[117] Ibid, [76], [78], [82].

[118] Ibid, [83], [84].

[119] Exhibit 1 - AD/2018/68 - Affidavit Zaheer Toodayan filed 31 May 2021, [86], [87].

[120] Ibid, [88].

[121] Ibid, [93]-[95].

[122] Ibid, [96], [99], [102].

[123] Ibid, [105].

[124] Exhibit 1 - AD/2018/68 - Affidavit Zaheer Toodayan filed 31 May 2021, [108], [109].

[125] Ibid, [116], [117].

[126] Ibid, [126]-[173].

[127] Ibid, [174]-[176].

[128] Exhibit 29 - AD/2018/68 - Affidavit Lizbeth Jordan filed 28 May 2021, [1]-[3], [6], [18].

[129] Exhibit 29 - AD/2018/68 - Affidavit Lizbeth Jordan filed 28 May 2021.

[130] Exhibit 29 - AD/2018/68 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, [47], [50], [52].

[131] Ibid, [53]-[55].

[132] Ibid, [58], [62], [64].

[133] Ibid, [72].

[134] Exhibit 29 - AD/2018/68 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, [76], [78], [80], [83].

[135] Ibid, [85]-[86], [88]-[91], [93].

[136] Ibid, [98], [101]-[102].

[137] Ibid, [107], [109]-[110].

[138] Ibid, [113]-[115].

[139] Exhibit 29 - AD/2018/68 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, [119]-[122].

[140] Ibid, [127]-[129], [131]-[133].

[141] Ibid, [134]-[135].

[142] Ibid, [136], [139].

[143] Exhibit 29 - AD/2018/68 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, [142]-[147].

[144] Ibid, [149]-[151].

[145] Ibid, [153]-[155], [158].

[146] Exhibit 7 - AD/2019/110 - Affidavit Nadeem Toodayan filed 31 May 2021, [9]-[10], [12].

[147] Exhibit 7 - AD/2019/110 - Affidavit Nadeem Toodayan filed 31 May 2021, [13], [15].

[148] Ibid, [16]-[17], [20], [23]-[24].

[149] Ibid, [25]-[27], [29].

[150] Ibid, [31]-[33], [37].

[151] Ibid, [38].

[152] Exhibit 7 - AD/2019/110 - Affidavit Nadeem Toodayan filed 31 May 2021, [39]-[40].

[153] Ibid, [41].

[154] Ibid, [42].

[155] Exhibit 2 - AD/2019/110 - Affidavit Zaheer Toodayan filed 31 May 2021, [8].

[156] Ibid, [10]-[12].

[157] Exhibit 2 - AD/2019/110 - Affidavit Zaheer Toodayan filed 31 May 2021, [13]-[14].

[158] Ibid, [15]-[16].

[159] Ibid, [18].

[160] Ibid, [20]-[21].

[161] Exhibit 2 - AD/2019/110 - Affidavit Zaheer Toodayan filed 31 May 2021, [25].

[162] Ibid, [31]-[32], [38].

[163] Ibid, [34].

[164] Ibid, [44]-[50], [52].

[165] Ibid, [57], [61]-[63].

[166] Exhibit 2 - AD/2019/110 - Affidavit Zaheer Toodayan filed 31 May 2021, [66].

[167] Ibid, [67]-[68], [73].

[168] Ibid, [75].

[169] Anti-Discrimination Act 1991 (Qld), s 6.

[170] Ibid, s 7 (g) and (i).

[171] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [36]-[38].

[172] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [25].

[173] Ibid, [39].

[174] Ibid, [42].

[175] Exhibit 9 - Affidavit of Mario Peucker affirmed 27 May 2021, [39]-[61]; Exhibit 11 - Affidavit of Shahram Akbarzadeh affirmed 27 May 2021, [35]-[37].

[176] Exhibit 9 - Affidavit of Mario Peucker affirmed 27 May 2021, [59].

[177] Ibid, [39].

[178] Exhibit 9 - Affidavit of Mario Peucker affirmed 27 May 2021.

[179] Exhibit 11 - Affidavit of Shahram Akbarzadeh affirmed 27 May 2021 - filed in AD/2018/67 and AD/2018/68, p 35.

[180] Ibid, pp 35-36.

[181] Exhibit 10 - Affidavit of Mario Peucker, exhibit ZK2 to Affidavit of Zach Kelly affirmed 7 October 2021 - filed in AD/2019/110.

[182] Ibid, MP-17.

[183] Ibid, p 15.

[184] Exhibit 10 - Affidavit of Mario Peucker, exhibit ZK2 to Affidavit of Zach Kelly affirmed 7 October 2021 - filed in AD/2019/110, p 29.

[185] Exhibit 9 - Affidavit of Mario Peucker affirmed 27 May 2021, MP-6.

[186] Ibid, p 396.

[187] Ibid.

[188] Exhibit 9 - Affidavit of Mario Peucker affirmed 27 May 2021, pp 406 - 407.

[189] Ibid.

[190] Ibid, MP-10, p 558.

[191] Ibid, MP-10, p 559.

[192] Exhibit 10, MP-18.

[193] Exhibit 10, MP-18.

[194] (2001) 52 NSWLR 705.

[195] (2011) 243 CLR 588.

[196] Dasreef Pty Ltd v Hawchar, (2011) 243 CLR 588, [66].

[197] Ibid, [90].

[198] Wright v Callvm Vacheron Wallace Bishop & Anor [2018] QIRC 007.

[199] (2016) 335 ALR 28.

[200] Respondents' Submissions filed 26 November 2021, [3.13] - [3.14].

[201] Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6, [40]-[41].

[202] Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5.

[203] Woodforth v State of Queensland [2017] QCA 100; [2018] 1 Qd R 289, [53], [54], [57] (emphasis added) (citations omitted).

[204] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [29]. 

[205] Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 A11 ER 26.

[206] Petrak v Griffith University [2020] QCAT 351, [38].

[207] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [32].

[208] Exhibit 30 - Affidavit Kim Gill (nee Nicholls) affirmed 11 May 2021, [3]-[8], [9]-[17], [18]-[34].

[209] TR4-20, LL24-46.

[210] TR4-24, LL29-47; TR4-27, LL26-37.

[211] Yousif v Workers’ Compensation Regulator [2017] ICQ 004, [13].

[212] Carlton v Blackwood [2017] ICQ 001, [18].

[213] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [4]-[8].

[214] AD/2018/67, AD/2018/68 - Complainants' SOFCs filed 27 September 2018, [6].

[215] Ibid, [7]‑[9].

[216] AD/2018/67, AD/2018/68 - Complainants' SOFCs filed 27 September 2018, [6].

[217] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [12].

[218] TR6-39, LL42-45.

[219] TR1-15, L14-TR1-16, L6.

[220] Exhibit 50 - Affidavit of Lizbeth Jordan filed 28 May 2021, LJ-1.

[221] TR6-41, LL34-36; TR6-42, LL16-38.

[222] Exhibit 50 - Affidavit of Lizbeth Jordan filed 28 May 2021, LJ-2.

[223] AD/2018/67, AD/2018/68 - Complainants' SOFCs filed 27 September 2018, [6].

[224] TR6-44, LL23-27.

[225] TR6-44, L39-TR6-45, L27.

[226] TR6-60, LL15-23.

[227] Exhibit 50 - Affidavit of Lizbeth Jordan filed 28 May 2021.

[228] AD/2018/67 - Complainant's SOFCs filed 27 September 2018, [11(a)(ii)(B)]; AD/2018/68 - Complainant's SOFCs filed 27 September 2018, [11(a)(i)(B)].

[229] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [16].

[230] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [100]-[101].

[231] Ibid, [102]-[103].

[232] TR6-10, LL24-29.

[233] TR6-10, LL17-22.

[234] TR6-10, L31-TR6-11, L15.

[235] TR6-10, LL17-22.

[236] TR4-37, L17-TR4-38, L14.

[237] TR4-38, LL1-10.

[238] TR4-38, LL16-19.

[239] TR4-38, LL16-19.

[240] TR4-16, LL17-23.

[241] TR5-32, LL15-40; TR6-23, LL38-42; TR6-17, LL6-16; TR6-31, LL1-17; TR7-10, LL5-40; TR7-14, LL13‑34.

[242] TR5-32, L42-TR5-33, L2; TR6-23, LL38-42; TR6-24, LL12-27; TR6-31, LL1-17; TR7-10, LL26-40; TR7‑14, LL19-34.

[243] TR6-23, LL14-28; TR6-17, LL30-34;  TR7-15, LL36-39;  TR7-9, LL1-17.

[244] TR6-24, L30-TR6-25, L3; TR7-10, LL42-44.

[245] TR5-33 LL30-36.

[246] TR5-33 LL46-47, TR5-34, LL1-19

[247] TR7-4, L45-TR7-5, L5.

[248] TR6-24, LL18-21.

[249] TR6-24, LL21-24.

[250] TR7-10, LL41-43.

[251] TR7-11, LL7-8.

[252] TR7-12, LL16-31.

[253] TR7-14, LL36-46.

[254] Exhibit 29 - Affidavit Kim Gill (nee Nicholls) affirmed 11 May 2021, KG-8.

[255] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [130].

[256] AD/2018/68 - Complainant's SOFCs filed 27 September 2018, [12].

[257] Ibid, [16].

[258] Ibid, [18].

[259] Exhibit 33, p. 4.

[260] Exhibit 1 - Affidavit of Zaheer Toodayan affirmed 28 May 2021, ZT-29, p 87.

[261] Ibid, ZT-30, p 90.

[262] Ibid, ZT-44, p 152.

[263] Exhibit 29 - Affidavit Kim Gill (nee Nicholls) affirmed 11 May 2021, KG-24, p 80.

[264] TR4-57, L20-TR4-58, L10.

[265] TR1-17, LL35-36.

[266] Exhibit 29 - Affidavit Kim Gill (nee Nicholls) affirmed 11 May 2021, KG-26.

[267] Exhibit 36, .0002.

[268] Exhibit 36.

[269] Exhibit 37.

[270] Exhibit 1 - Affidavit of Zaheer Toodayan affirmed 28 May 2021, ZT-30, p 90.

[271] Ibid, ZT-24, p 74.

[272] TR4-68, LL8-46, TR4-71, LL40-46, TR4-73, LL38-45.

[273] TR4-70, LL18-41.

[274] Exhibit 29 - Affidavit Kim Gill (nee Nicholls) affirmed 11 May 2021, KG-33.

[275] Exhibit 33.

[276] Exhibit 29 - Affidavit Kim Gill (nee Nicholls) affirmed 11 May 2021, KG-33.

[277] TR5-3, LL13-41.

[278] TR5-10, L42-TR5-11, L31.

[279] TR5-9, L30-TR5-10, L20.

[280] Exhibit 30 - Affidavit Kim Gill (nee Nicholls) affirmed 11 May 2021, [14]-[17].

[281] TR5-10, LL19-20.

[282] TR5-30, LL10-21.

[283] Exhibit 30 - Affidavit Kim Gill (nee Nicholls) affirmed 11 May 2021, [23]-[33].

[284] Exhibit 34.

[285] AD/2018/67 - Complainant's SOFCs filed 27 September 2018. [11(f)], [11(h)].

[286] Ibid, [20]-[21].

[287] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [20].

[288] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [177].

[289] Exhibit 28 - AD/2018/67 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, KG-51, [164].

[290] Ibid, KG-54, p 184.

[291] TR5-24, LL18-24.

[292] TR5-24, LL15-21.

[293] TR5-25, LL15-20.

[294] TR5-24, LL18-45;  TR5-25, LL14-42.

[295] Complainants' submissions filed 30 November 2021, [175 (a)].

[296] Exhibit 28 - AD/2018/67 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, [117]-[118].

[297] TR6-25, LL21-38.

[298] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [117]-[118].

[299] Exhibit 28 - AD/2018/67 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021.

[300] Exhibit 45 - AD/2018/67, AD/2018/68, AD/2019/110 - Affidavit of Dr Hans Soyer affirmed 4 May 2021.

[301] TR6-19, L46-TR6-20, L13.

[302] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [175(b)].

[303] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [41].

[304] Ibid, [22].

[305] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [21].

[306] Exhibit 57 - AD/2019/110 - Affidavit Richard Ashby affirmed 27 April 2021, [22]-[23].

[307] Exhibit 57 - AD/2019/110 - Affidavit Richard Ashby affirmed 27 April 2021, [24]-[26].

[308] Ibid, [1]-[4], [6].

[309] Ibid, [7]-[8].

[310] Ibid, [9].

[311] Exhibit 59 - Affidavit of Mark Beckett affirmed 28 May 2021, p 18.

[312] Exhibit 57 - AD/2019/110 - Affidavit Richard Ashby affirmed 27 April 2021, [31]-[33].

[313] Exhibit 41 - AD/2019/110 - Affidavit Georga Cooke affirmed 30 April 2021.

[314] Exhibits 4 and 5.

[315] TR1-54, LL37-47; TR1-53, LL23-26.

[316] Exhibit 57 - AD/2019/110 - Affidavit Richard Ashby affirmed 27 April 2021, [12], [17].

[317] TR8-10, L4-TR8-11, L20, emphasis added.

[318] Exhibit 59 - AD/2019/110 - Affidavit of Mark Beckett affirmed 28 May 2021, p 18.

[319] Exhibit 57 - AD/2019/110 - Affidavit Richard Ashby affirmed 27 April 2021, [37]-[39].

[320] None of the witnesses who were called could recall that.  But nor could they say that such discussions did not occur.

[321] TR8-7, LL35-47.

[322] TR8-11, LL3-4.

[323] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [44].

[324] Hospital and Health Boards Act 2011 (Qld), s 15(1).

[325] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [54].

[326] (1988) 165 CLR 1.

[327] (1984) 165 CLR 622.

[328] (1997) 191 CLR 1.

[329] Ibid [12].

[330] Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260, [33] 269.

[331] Exhibits 4 and 5.

[332] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [55].

[333] Anti-Discrimination Act 1991, s 204.

[334] Sharma v Legal Aid (Qld) (2002) 115 IR 91.

[335] Sharma v Legal Aid (Qld) (2002) 115 IR 91, [40]-[41].

[336] G v. H (1994) 181 CLR 387, 390.

[337] Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278, [34].

[338] [2017] VSCA 88.

[339] Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88, [101]-[102].

[340] [2003] HCA 62, [158]-[159] (McHugh and Kirby JJ); 217 CLR 92; 78 ALJR 1; 202 ALR 133.

[341] TR9-26, L40-TR9-27,L13.

[342] (2009) 26 VR 335.

Close

Editorial Notes

  • Published Case Name:

    Toodayan and Toodayan v Metro South Hospital and Health Service & Ors

  • Shortened Case Name:

    Toodayan and Toodayan v Metro South Hospital and Health Service

  • MNC:

    [2023] QIRC 36

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    09 Feb 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4
2 citations
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Cite 1 - [2017] ICQ 4
Cite 2 - [2017] ICQ 4
Bird v Commonwealth (1988) 165 CLR 1
2 citations
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Cite 1 - (1988) 165 CLR 1
Cite 2 - (1988) 165 CLR 1
Boehringer Ingelheim Pty Lid v Reddrop (1984) 2 NSWLR 13
1 citation
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Cite 1 - (1984) 2 NSWLR 13
Bonner v Secretary, Department of Industry [2017] NSWCATAD 229
1 citation
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Cite 1 - [2017] NSWCATAD 229
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw (1938) HCA 34
1 citation
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Cite 1 - (1938) HCA 34
Campbell v Kirstenfeldt [2008] FMCA 1356
1 citation
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Cite 1 - [2008] FMCA 1356
Carlton v Workers' Compensation Regulator [2017] ICQ 1
2 citations
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Cite 1 - [2017] ICQ 1
Cite 2 - [2017] ICQ 1
Chamberlain v The Queen [1984] HCA 7
1 citation
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Cite 1 - [1984] HCA 7
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
1 citation
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Cite 1 - [2000] NSWADTAP 5
Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6
2 citations
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Cite 1 - [2002] NSWADTAP 6
Cite 2 - [2002] NSWADTAP 6
Creek v Cairns Post Pty Ltd (2001) 112 FCR 342
1 citation
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Cite 1 - (2001) 112 FCR 342
Curwen v Vanbreck Pty Ltd (2009) 26 VR 335
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Cite 1 - (2009) 26 VR 335
Cite 2 - (2009) 26 VR 335
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
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Cite 4 - (2011) 243 CLR 588
Department of Health v Arumugam [1988] VR 319
1 citation
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Cite 1 - [1988] VR 319
Department of health v Arumugam [1988] VicRp 42
1 citation
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Cite 1 - [1988] VicRp 42
Dezfouli v Health Care Complaints Commission [2018] NSWCATAD 245
1 citation
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Cite 1 - [2018] NSWCATAD 245
Dutt v Central Coast Area Health Service [2002] NSWADT 133
1 citation
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Cite 1 - [2002] NSWADT 133
Forest v Queensland Health [2007] FCA 1236
1 citation
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Cite 1 - [2007] FCA 1236
G v H (1994) 181 CLR 387
2 citations
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Cite 1 - (1994) 181 CLR 387
Cite 2 - (1994) 181 CLR 387
Glasgow City Council v Zafar [1998] 2 All ER 953
1 citation
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Cite 1 - [1998] 2 All ER 953
Glasgow City Council v Zafar [1997] UKHL 54
1 citation
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Cite 1 - [1997] UKHL 54
Haider v Hawaiian Punch Pty Ltd [2015] FCA 37
1 citation
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Cite 1 - [2015] FCA 37
IW v City of Perth (1997) 191 CLR 1
3 citations
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Cite 1 - (1997) 191 CLR 1
Cite 2 - (1997) 191 CLR 1
Cite 3 - (1997) 191 CLR 1
Jones v Toben [2002] FCA 1150
1 citation
Jump To
Cite 1 - [2002] FCA 1150
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
2 citations
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Cite 1 - (1984) 165 CLR 622
Cite 2 - (1984) 165 CLR 622
Lyons v Queensland (2016) 335 ALR 28
1 citation
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Cite 1 - (2016) 335 ALR 28
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
2 citations
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Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88
3 citations
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Cite 2 - [2017] VSCA 88
Cite 3 - [2017] VSCA 88
McEvoy v Acom Stairlifts Pty Ltd [2017] NSWCATAD 273
1 citation
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Cite 1 - [2017] NSWCATAD 273
Nagarajan v London Regional Transport [1999] 3 WLR 425
1 citation
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Cite 1 - [1999] 3 WLR 425
Nagarajan v London Regional Transport [1999] UKHL 36
1 citation
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Cite 1 - [1999] UKHL 36
Petrak v Griffith University & Ors [2020] QCAT 351
2 citations
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Cite 1 - [2020] QCAT 351
Cite 2 - [2020] QCAT 351
Purvis v New South Wales (2003) 78 ALJR 1
2 citations
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Cite 1 - (2003) 78 ALJR 1
Cite 2 - (2003) 78 ALJR 1
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
2 citations
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Cite 1 - (2003) 217 CLR 92
Cite 2 - (2003) 217 CLR 92
Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133
2 citations
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Cite 1 - (2003) 202 ALR 133
Cite 2 - (2003) 202 ALR 133
Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62
2 citations
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Cite 1 - [2003] HCA 62
Cite 2 - [2003] HCA 62
Qantas Airways Ltd v Gama (2008) 167 FCR 537
1 citation
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Cite 1 - (2008) 167 FCR 537
R v A2 (2019) 373 ALR 214
1 citation
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R v Chamberlain (1984) 153 C.L.R 521
1 citation
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Cite 1 - (1984) 153 C.L.R 521
Richardson v Oracle Corporation (2014) 223 FCR 334
1 citation
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Cite 1 - (2014) 223 FCR 334
Sharma v Legal Aid (Qld) (2002) 115 IR 91
3 citations
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Cite 1 - (2002) 115 IR 91
Cite 2 - (2002) 115 IR 91
Cite 3 - (2002) 115 IR 91
Trustee of the Property of Cummins v Cummins (2006) 227 CLR 278
2 citations
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Cite 1 - (2006) 227 CLR 278
Cite 2 - (2006) 227 CLR 278
Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260
2 citations
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Cite 1 - (2003) 201 ALR 260
Cite 2 - (2003) 201 ALR 260
Woodforth v State of Queensland[2018] 1 Qd R 289; [2017] QCA 100
4 citations
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Cite 1 - [2017] QCA 100
Cite 2 - [2017] QCA 100
Cite 3 - [2018] 1 Qd R 289
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Wotton v Queensland (No 5) (2016) 352 ALR 146
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Wright v Callvm Vacheron Wallace Bishop and Anor [2018] QIRC 7
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Cite 2 - [2018] QIRC 7

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1

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