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Medwell-Everett v Daltug Pty Ltd[2024] QIRC 2

Medwell-Everett v Daltug Pty Ltd[2024] QIRC 2

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Medwell-Everett v Daltug Pty Ltd & Ashworth [2024] QIRC 2

PARTIES:

Medwell-Everett,  Brad

(Complainant)

v

Daltug Pty Ltd

(First Respondent)

&

Ashworth, Scott

(Second Respondent)

CASE NO:

AD/2022/46

PROCEEDING:

Referral of complaint

DELIVERED ON:

5 January 2024

DATES OF WRITTEN SUBMISSIONS

Complainant’s closing submissions filed 14 July 2023

First Respondent’s closing submissions filed 4 August 2023

Second Respondent’s closing submissions filed 4 August 2023

Complainant’s closing submissions in reply filed 14 August 2023

HEARING DATES:

23, 24 and 25 May 2023

MEMBER:

Pidgeon IC

HEARD AT:

Mackay

ORDERS:

The complaint is dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – complaint made to the Queensland Human Rights Commission against the Respondents alleging contraventions of various provisions of the Anti-Discrimination Act 1991 (Qld) – complaint referred to the Queensland Industrial Relations Commission – where the complainant was employed by the first respondent to work on its tugboats on a casual basis – where the complainant worked as a casual general purpose hand and occasionally as a casual tug master – where the second respondent was formerly the general manager of the first respondent – where the complainant was offered full-time employment with the first respondent as a general purpose hand – where the complainant subsequently sustained an injury to his Achilles tendon outside of work – where the complainant undertook a full fitness capacity test arranged by the first respondent – where the respondents considered it would be unsafe for the complainant to return to work due to a risk of reinjury – where the respondents considered its operational requirements would not enable it to make adjustments to accommodate the complainant’s injury – genuine occupational requirements – workplace health and safety – general exemptions for discrimination – where  the complainant’s full-time contract did not eventuate – where the complainant eventually obtained new employment – where the complainant alleges impairment discrimination – where  the complainant alleges victimisation – consideration of direct discrimination – consideration of a comparator – consideration of victimisation – complaint dismissed  

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) ss 5, 7, 8, 9, 10, 25, 35, 103, 108, 129, 130, 164, ch 2

CASES:

Curran v yourtown & Anor [2019] QIRC 059

Jones v Dunkel [1959] HCA 8

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

White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041

APPEARANCES:

Mr K. Bond and Mr S. O'Sullivan, Maritime Union of Australia for the Complainant.

Mr B. Heath and Ms E. Malloy, Carter Newell Lawyers for the First Respondent.

Mr S. Ashworth, the Second Respondent himself.

Reasons for Decision

Introduction

  1. [1]
    Mr Brad Medwell-Everett (‘the Complainant’) claims that Daltug Pty Ltd (‘the First Respondent’) and Mr Scott Ashworth (‘the Second Respondent’) discriminated against him when they determined that he was unable to return to work following an injury he sustained outside of work. Mr Medwell-Everett says that he had a full medical clearance to return to work and that in determining that it was not safe for him to return to work, he has been discriminated against by the Respondents on the basis of an impairment. Mr Medwell-Everett also says that he has been victimised by the Respondents for complaining that he was being discriminated against.
  1. [2]
    Daltug Pty Ltd (‘Daltug’) and Mr Ashworth say that it was reasonable to require that Mr Medwell-Everett be able to fulfil the genuine occupational requirements of the job. Daltug and Mr Ashworth say that in their opinion, the medical clearance provided to Mr Medwell-Everett gave them cause for concern and that after undertaking further consultation with the doctor who provided the report, they determined it was not safe for Mr Medwell-Everett to return at that time. Further, the Respondent says that there were no reasonable adjustments available and that it was acting as reasonably necessary to protect the health and safety of employees at its place of work. Daltug and Mr Ashworth also say that in circumstances where the allegation of discrimination was made in January 2022 and the alleged events occurred in October 2021, they could not have victimised Mr Medwell-Everett on the basis of those complaints.

Background and events leading to the complaint

Mr Medwell-Everett’s employment, role and duties

  1. [3]
    Mr Medwell-Everett commenced employment with Daltug on 9 October 2019 as a ‘Full-Time Casual Tug Master/General Purpose Hand’.[1]
  1. [4]
    On 5 July 2021, Daltug, acting through its former General Manager, Mr Ashworth, offered the Complainant full-time permanent employment as a General Purpose Hand (‘GPH’) commencing 17 August 2021. There is some contention as to whether the Complainant accepted this role or not. Mr Ashworth’s evidence was that the Complainant was unhappy with the appointment as a General Purpose Hand and instead wanted appointment as a Tug Master.
  2. [5]
    Mr Ashworth’s evidence was at times difficult to follow and appeared to differ from that of the First Respondent as it pertained to the nature of Mr Medwell-Everett’s employment. I note that in Mr Ashworth’s statement of facts and contentions and later evidence, he claims to have offered Mr Medwell-Everett permanent employment as a General Purpose Hand on three occasions but that on each occasion Mr Medwell-Everett declined the offer because he wanted to be appointed as a permanent Tug Master. Mr Ashworth claims that these were verbal discussions and that he finally confirmed this in an email to Mr Medwell-Everett. I do not accept Mr Ashworth’s version of events that Mr Medwell-Everett rejected the offer of permanent employment. It is clear to me that he accepted the offer and expected to commence in the permanent role on 17 August 2021 and then his injury occurred and events were overtaken.
  1. [6]
    Also, despite Mr Ashworth’s inconsistent evidence regarding whether Mr Medwell-Everett had accepted the role or not, Mr Ashworth penned a letter for insurance purposes which clearly states an intention for Mr Medwell-Everett to return to a full-time position after being cleared as fit to return to work. I remain uncertain as to why Mr Ashworth believes the role was not accepted.[2] The salary continuance letters prepared by Daltug for Mr Medwell-Everett’s insurer clearly notes the expected start date of his permanent employment.[3]
  1. [7]
    Further, there is an email memorandum dated 21 July 2021 where Mr Ashworth informs all Daltug employees that the Complainant had been appointed as a full-time shareholder employee.[4]
  1. [8]
    While I accept based on the evidence that the Complainant was seeking appointment as a Tug Master and may have preferred appointment as a Tug Master, it seems to me that he did not reject the offer of full-time permanent employment. I accept that the Complainant accepted the offer and that the arrangement was to commence on 17 August 2021.

The injury

  1. [9]
    Is not controversial that on 24 July 2021, outside of work, the Complainant ruptured his Achilles tendon.[5] As a result of the injury sustained by the Complainant, he was unable to commence his permanent position on 17 August 2021 and his return date was extended until 14 September 2021.[6] 
  1. [10]
    It appears that the Complainant was unable to return to work on 14 September 2021, but on 7 October 2021, the Complainant advised Daltug that his surgeons and physiotherapist had verbally cleared him to return to full duties.[7]
  1. [11]
    On 7 October 2021, after receiving that advice, Ms Diane Kyte, Daltug Safety Officer, made an appointment for the Complainant to attend an appointment for a ‘full fitness capacity test’ at Daltug’s preferred provider, BCERTA Occupational Health. Ms Kyte sent an email regarding the purpose of the appointment as follows:[8]

Good Morning Marius

We have one of our guys that snapped his Achilles tendon back in July, he is due to be cleared on the 12th October.

What we would like is a full fitness capacity test carried out especially testing the area of the injury prior to him returning to work.

As you know the guys need to be able to withstand extremely rough weather and up and down stairs in the vessels, we would like to ensure there are is risk of aggravating the injury.[9]

If you require any further information please give me a call.

  1. [12]
    That same day, Ms Kyte sent the Complainant a roster informing him that if he was cleared for work, he would be rostered to work as a casual. The Complainant’s evidence is that he asked Ms Kyte why he would not be rostered to work in the full-time permanent job he had been offered and accepted.[10] It appears that the basis of a return as a casual was that the roster was organised ahead of time and, just as there was to be a period following the initial offer of a full-time position where Mr Medwell-Everett and Mr Shane Ping, another employee of Daltug, would remain as casuals, so too would his return at the later date be as a casual.
  1. [13]
    On 11 October 2021, the Complainant attended the BCERTA full functional capacity examination which had been organised by Ms Kyte. The evidence demonstrates that while the Complainant was at this appointment, BCERTA also conducted two Australia Maritime Safety Authority (‘AMSA’) Medical Examinations.[11]
  1. [14]
    The documents which were created following this visit to BCERTA on 11 October 2021 were presented during the hearing. The full functional capacity examination included an examination by a physiotherapist who noted that the Complainant suffered an Achilles injury 12-weeks prior and that even though there was a low to medium risk that the injury could affect his employment, the Complainant was ‘safe to commence work’.[12] The physiotherapist also recommended the Complainant continue strength and conditioning through regular physiotherapy stretching.[13] The physiotherapist also noted that possible effects on work included balance and lifting capacity and with regard to ‘restrictions/recommendations’ noted, among other things, ‘Continue physio, able to start back to work if allowed’.[14]
  1. [15]
    Dr Steven Whiting undertook an examination of the Complainant and had regard to the physiotherapist’s report. Dr Whiting’s notation on the report said, ‘Recent R Achilles surgery – needs ongoing physio; Good posture & mobility’.[15] Under the heading ‘Clinical Finding (Summary)’ Dr Whiting ticked ‘abnormal’ next to ‘Lower limb – joint movement’ and wrote, ‘Mild restriction at R ankle after recent surgery’.[16] Though having noted the need for the Complainant to have ongoing physiotherapy, the Complainant says that Dr Whiting concluded that Mr Medwell-Everett was fit to undertake his position at Daltug.[17]
  1. [16]
    Following the examination, Ms Kyte sent an email to the Complainant on 11 October 2021 stating that she was seeking clarification about the language used in the physiotherapist’s part of the full functional capacity examination. Ms Kyte informed the Complainant that the company would not permit him to return to work until it was sure that doing so would not put him at risk of further injury.[18]
  1. [17]
    It appears that part of the concern about Mr Medwell-Everett’s fitness to return to work pertained to paperwork completed by Mr Medwell-Everett for Dr Whiting where Mr Medwell-Everett described his position with Daltug as a Tug Master and not a General Purpose Hand.[19] The First Respondent says that this is an important difference as a Tug Master is situated inside a cabin (albeit having to climb reasonably steep steps to enter the cabin) and a General Purpose Hand is required to undertake work out on the deck in circumstances that can be quite unstable. Mr Ramsamy, Ms Kyte and Mr Ashworth each described the General Purpose Hand role as a heavier physical role than a General Purpose Hand.
  1. [18]
    Ms Kyte’s evidence was that she followed up on the receipt of the full function capacity test report with Dr Whiting during a telephone conversation. Ms Kyte said that she contacted BCERTA and spoke with a manager there regarding the follow-up questions she wished to ask the doctor. Ms Kyte recalled being asked to send through the work capabilities checklist for the roles of Tug Master and General Purpose Hand.[20]
  1. [19]
    Ms Kyte’s evidence was that Dr Whiting was not one of the regular doctors Daltug engaged with and that she was concerned he may not have a full understanding of the nature of the work the Complainant would be required to do.[21] Ms Kyte says that she communicated to Dr Whiting that the Complainant would be working as a General Purpose Hand ‘which is fairly rigorous and a heck of a task in – in rough weather or adverse weather, to be able to keep your footing and balance’.[22] Ms Kyte recalled the conversation with Dr Whiting where she says the doctor told her that he did not have a crystal ball and he could not guarantee that the Complainant was 100% fit.[23] Ms Kyte also recalled Dr Whiting telling her that the Complainant ‘may be required to stop work and sit down if any twinge or other event is experienced’.[24]  Dr Whiting was not called to give evidence before the Commission.
  1. [20]
    The Complainant says that the following day, he contacted BCERTA to confirm that he had been deemed medically fit to perform his job. Upon receiving confirmation, the Complainant says that he wrote to Ms Kyte to affirm that the doctor had cleared him to return to work. Mr Medwell-Everett says that he conveyed to Ms Kyte that he did not understand what more clarification Daltug required when the doctor had issued three or four separate medical fitness certificates following the examination.
  1. [21]
    The Complainant’s wife, Mrs Sarah Medwell-Everett, gave evidence that she called Ms Kyte and asked her why the Complainant had been stood down and why the company had not put him back to work when BCERTA, following a full function capacity test Daltug organised itself, had cleared him to return.
  1. [22]
    The Complainant submits that in effect, both he and his wife complained to Ms Kyte that the company was unlawfully discriminating against him by refusing him to return to work based on an erroneous perception that his Achilles injury prevented him from safely performing his job.[25]
  1. [23]
    On 15 October 2021, both Mr Ashworth and Ms Kyte emailed Mr Medwell-Everett and advised him that a medical practitioner had stated that if the Complainant experienced ‘any twinge or other event’ he may be required to ‘stop work and sit down’. Mr Ashworth told the Complainant, ‘that option is simply not viable’.[26]
  1. [24]
    Also on 15 October 2021, in response to his concerns about the Complainant questioning the position Daltug had taken regarding his fitness to return to work, Mr Ashworth wrote the following email to the Complainant:[27]

[W]e have explained to you why we do not simply put you back on deck and hope your Achilles doesn’t snap.

…

The subsequent assessment identified that you could experience a complete failure of your Achilles while working on our boat, and in the event that you experienced any pain or discomfort, that you should immediately cease duties. We regarded that proposition as being unsafe and unviable in our working environment and sought further information from medical advisors. We cannot simply hope that nothing goes wrong…

  1. [25]
    The evidence demonstrates that Mr Ashworth did not speak to Dr Whiting, but rather it was Ms Kyte who discussed the Complainant’s fitness with Dr Whiting. On 28 October 2021, Ms Kyte sent an email to the Complainant informing him that:[28]

Before commencing back in a casual GPH position, we will require you to complete full physiotherapy as directed by any treating medical practitioner and/or physiotherapist. Once you have attended all appointments and completed all requirements as indicated by your physiotherapist, Daltug will then require a full report from them. Receipt of this report will assist us to determine whether we will require a further functional capacity assessment prior to you commencing back in a casual position as GPH.

  1. [26]
    On 17 November 2021, the Complainant sent an email to Mr Ashworth attaching the cover letter to a report from physiotherapist Mr Chris Elphinstone, confirming that the Complainant was fit to return to full duties. That report said, relevantly:[29]

I have today conducted a physical health interview and full functional capacity evaluation.

I have reviewed the supplied job demands of both the Casual Tug Master and a General Purpose Hand.

It is my opinion that Brad is fit for a full return to work in both these roles.

If any clarification or further information is required, please feel free to contact me on [redacted].

  1. [27]
    While the Complainant says that despite having been asked by Ms Kyte to provide the report of the physiotherapist, neither Ms Kyte nor Mr Ashworth ever contacted the Complainant again, the evidence showed that the report of the physiotherapist was not provided to Ms Kyte and Mr Ashworth, rather a screenshot of the cover page of the report was provided.[30]
  1. [28]
    In January 2022, the Complainant’s union, the Maritime Union of Australia (‘the MUA’), advocated for the Complainant to be returned to work in the position that Mr Medwell-Everett says he had been promised. The Complainant says that Mr Ashworth told the MUA official, Mr Paul Gallagher, that Mr Ashworth would need to ‘sack’ someone in order to give Mr Medwell-Everett the position that he had been promised. The Complainant says that this was not the truth and that the position offered to the Complainant was not filled for another 13 months.[31]
  1. [29]
    Following these events, the Complainant lodged a complaint with the Queensland Human Rights Commission.
  1. [30]
    On 21 June 2022, Mr Medwell-Everett’s complaint was referred from the Queensland Human Rights Commission to the Queensland Industrial Relations Commission in accordance with s 164A of the Anti-Discrimination Act 1991 (Qld) (‘the AD Act’).
  1. [31]
    The Complainant has brought a claim against Daltug and Mr Ashworth, alleging:
  1. Direct discrimination on the basis of the attribute of ‘impairment’; and
  1. Victimisation.[32]
  1. [32]
    The Complainant seeks the following orders:
  1. An order requiring the Respondents not to commit a further contravention of the Act against the Complainant;
  1. An order requiring the Respondents to pay to the Complainant an amount the tribunal considers appropriate as compensation for loss or damage caused by the contraventions, including:
  1. a.
    Lost past and future wages, lost past and future Superannuation Contributions, lost past and future long service leave, and lost past and future Superannuation compound interest in amounts that will be provided to the Commission and to the Respondents once calculated by the Complainant’s forensic accountants.
  2. b.
    General damages in the amount of $500,000 for pain, suffering, offence, embarrassment, humiliation, and intimidation that the Complainant has suffered as a result of the Respondents’ contraventions of the Act.
  3. c.
    Interest on lost wages at the rate of 3% per annum for losses occurring between 7 October 2021 and the date that the Commission enters its final orders in this matter.
  4. d.
    Interest on general damages at the rate of 3% per annum from 7 October 2021 to the date when the Commission enters its final orders in this matter.
  5. e.
    Aggravated damages in the amount of $500,000 to compensate the Complainant for the fact that the Respondents’ contraventions of the Act were committed high-handedly, maliciously, insultingly and oppressively.
  1. An order requiring the Respondents to do [sic] reinstate the Complainant to the position that the Respondents offered to him, and that he accepted;
  1. An order requiring the Respondents to make a private apology or retraction;
  1. An order requiring the Respondents to make a public apology or retraction by publishing the apology or retraction in the way, and in the form, stated in the order; and
  1. An order requiring the Respondents to implement programs to eliminate unlawful discrimination.[33]

Statutory framework

  1. [33]
    The object of the AD Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, sexual harassment, and certain associated objectionable conduct.[34]
  1. [34]
    Chapter 2, Part 2 of the AD Act identifies the prohibited grounds of discrimination. It is unlawful to discriminate in the workplace, whether directly or indirectly, on the basis of certain attributes.
  1. [35]
    These attributes are set out in section 7 of the AD Act, namely:

7 Discrimination on the basis of certain attributes prohibited

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

…

  1. impairment;

…

  1. [36]
    Discrimination under the AD Act can occur on a direct or indirect basis. Section 8 relevantly states:

8  Meaning of discrimination on the basis of an attribute

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

  1. a characteristic that a person with any of the attributes generally has; or
  1. a characteristic that is often imputed to a person with any of the attributes; or
  1. an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
  1. 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. [37]
    Discrimination can occur by treating someone less favourably because of an attribute such as impairment. However, discrimination on the basis of an attribute includes discriminating against a person on the basis of a characteristic often imputed to the person because of their protected attribute.[35]
  1. [38]
    Chapter 2, Part 3 of the AD Act identifies 'Prohibited types of discrimination'. Section 9 prohibits 'direct' and 'indirect' discrimination, while sections 10 and 11 define the meaning of direct and indirect discrimination. Direct discrimination, which has been alleged in this matter, is defined as follows:

10 Meaning of direct discrimination

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

…

  1. It is not necessary that the person who discriminates considers the treatment is less favourable.
  1. The person’s motive for discriminating is irrelevant.

…

  1. 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. In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
  1. [39]
    In accordance with s 10(1) of the AD Act, the Complainant must establish that the Respondents treated him, or proposed to treat him, in a discriminatory way ‘on the basis of’ the relevant attribute of impairment.[36]
  1. [40]
    Chapter 2, Part 4 of the AD Act identifies 'Areas of activity in which discrimination is prohibited'. Division 2 of Part 4 deals with 'Work and work-related areas'. Section 15 deals with discrimination in the work area:

15  Discrimination in the work area

  1. A person must not discriminate –
  1. in any variation of the terms of work; or
  1. in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
  1. in dismissing a worker; or

…

  1. by treating a worker unfavourably in any way in connection with work.
  1. [41]
    Section 25(1)  of the AD Act relevantly provides:

25  Genuine occupational requirements

  1. A person may impose genuine occupational requirements for a position.

…

  1. [42]
    Section 35 of the AD Act stipulates:

35  Special services or facilities required

  1. It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if—
  1. the other person would require special services or facilities; and
  1. the supply of special services or facilities would impose unjustifiable hardship on the first person.
  1. Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5.
  1. [43]
    Section 5 of the AD Act defines ‘unjustifiable hardship’ as follows:

5  Meaning of unjustifiable hardship

Whether the supply of special services or facilities would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example—

  1. the nature of the special services or facilities; and
  1. the cost of supplying the special services or facilities and the number of people who would benefit or be disadvantaged; and
  1. the financial circumstances of the person; and
  1. the disruption that supplying the special services or facilities might cause; and
  1. the nature of any benefit or detriment to all people concerned.

Example of application in the work area (section 35)—

Company R refuses to employ A who uses a wheelchair because there is no appropriate access to the place of employment. R may only discriminate against A on the basis of impairment if supplying access would be very expensive or would impose another significant hardship on R.

  1. [44]
    Relevant general exemptions for discrimination are set out in ch 2, pt 5 of the AD Act:

103  Explanatory provision (exemptions)

It is not unlawful to discriminate with respect to a matter that is otherwise prohibited under part 4 if an exemption in sections 104 to 113 applies.

…

108  Workplace health and safety

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

…

  1. [45]
    The Complainant has also alleged victimisation.[37] Sections 129 and 130 of the AD Act deal with victimisation. Those sections relevantly provide:

129 Victimisation

A person must not victimise another person. Maximum penalty—

  1. in the case of an individual—45 penalty units or imprisonment for 3 months; or
  1. in the case of a corporation—170 penalty units.

130 Meaning of victimisation

  1. Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)—
  1. because the complainant, or a person associated with, or related to, the complainant—
  1. refused to do an act that would amount to a contravention of the Act; or
  1. in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
  1. is, has been, or intends to be, involved in a proceeding under the Act against any person; or
  1. because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).
  1. In this section, a reference to involvement in a proceeding under the Act includes—
  1. making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
  1. involvement in a prosecution for an offence against the Act; and
  1. supplying information and producing documents to a person who is performing a function under the Act; and
  1. appearing as a witness in a proceeding under the Act.

The evidence before the Commission

  1. [46]
    The Commission heard from the following witnesses:
  • Mr Brad Medwell-Everett, the Complainant;
  • Mrs Sarah Medwell-Everett, the Complainant’s wife;
  • Ms Janine Stubbins, former company accountant of Daltug;
  • Mr Andrew Ramsamay, General Manager of Daltug;
  • Ms Diane Kyte, Safety Officer of Daltug; and
  • Mr Scott Ashworth, the Second Respondent and former General Manager of Daltug.

Did the Complainant have attribute/s or a characteristic of an attribute for the purposes of the Act?

Pleaded attribute of Mr Medwell-Everett - impairment

  1. [47]
    The Complainant contends that the Respondents directly discriminated against Mr Medwell-Everett on the basis of the attribute of ‘impairment’.
  1. [48]
    The Complainant points to section 8(c) of the AD Act which encompasses direct or indirect discrimination on the basis of ‘an attribute that a person is presumed to have, or to have had at any time, by the person discriminating’.
  1. [49]
    The Complainant contends that Mr Medwell-Everett had the presumed attribute of impairment in connection to the ruptured Achilles tendon injury he sustained outside of work on 24 July 2021.
  1. [50]
    The Respondents accept that from about 24 July 2021, Mr Medwell-Everett possessed the protected attribute of a physical impairment.
  1. [51]
    For the purposes of the AD Act, Mr Medwell-Everett’s Achilles tendon injury is an impairment.

Did direct discrimination occur?

  1. [52]
    For direct discrimination to occur, Mr Medwell-Everett must have been treated less favourably than another person without the protected attribute would have been treated, in circumstances that were the same and not materially different.

Complainant’s submissions

  1. [53]
    The Complainant contends that the overwhelming evidence demonstrates that as a result of a perception that the Achilles tendon injury had led to a loss of function, even after   Mr Medwell-Everett had received medical clearance, Daltug employees Ms Kyte and Mr Ashworth treated the Complainant less favourably than a co-worker who was offered a full-time position at the same time as the Complainant, and who was given the position because he had not been perceived as suffering from an impairment.
  1. [54]
    The Complainant says that it is disingenuous for Daltug and Mr Ashworth to argue that the Complainant was not discriminated against on the basis of the injury, but rather that they had deemed it unsafe for him to perform the essential functions of a General Purpose Hand. The Complainant says that there is no documentation to support a position that it was unsafe for the Complainant to work following the medical clearance he received and that Daltug and Mr Ashworth cannot maintain such a position. The Complainant says that the only medical evidence before the Commission is the BCERTA report prepared by Dr Whiting[38] and the physiotherapy report of Mr Elphinstone.[39]
  1. [55]
    During the hearing, the Complainant’s representative put to Ms Kyte that the phone conversation with Dr Whiting had never happened.[40] Ms Kyte’s evidence remained unshaken throughout cross-examination and she repeatedly confirmed what she says occurred during that conversation. The Complainant makes an alternative argument that assuming the conversation had occurred, Dr Whiting did not say that the Complainant could not safely do his job. To the contrary, the Complainant says Dr Whiting refused to change his opinion, even after Ms Kyte explained the nature of the work the Complainant would be required to undertake. The Complainant submits that it was the ‘discriminatory way in which Ms Kyte and Mr Ashworth interpreted the words that Ms Kyte attributed’ to Dr Whiting.[41]
  1. [56]
    The Complainant further submits that even if Dr Whiting had said that if the Complainant felt a twinge he would need to sit down, this is not the same as saying that the Complainant was likely to feel a twinge and would need to sit down.  The Complainant says that in finding him fit to do the job, Dr Whiting determined that it was unlikely the Complainant would need any adjustments to perform the General Purpose Hand role.
  1. [57]
    The Complainant says that Ms Kyte and Mr Ashworth introduced their own biases regarding the alleged conversation between Ms Kyte and Dr Whiting and determined for themselves that the Complainant was likely to feel a twinge in his leg, was likely to need to sit down and was likely, therefore, to interrupt Daltug’s business operations.[42]
  1. [58]
    The Complainant says that anti-discrimination legislation exists to prohibit the type of discrimination it says Daltug engaged in against an injured worker who had rehabilitated himself to the point that medical professionals deemed him fit to perform his job. The Complainant says that Ms Kyte acknowledges that she has no medical background but concluded that Dr Whiting’s assessment was wrong and that because it was recommended that physiotherapy continue, the Complainant was not fit to perform his job.
  1. [59]
    It seems to me that the Complainant’s case relies on three possible scenarios regarding Ms Kyte’s assessment of Dr Whiting’s report and the steps she took following receipt of the report. The first scenario is that the phone call to Dr Whiting did not occur at all. The second scenario is that the phone call occurred but Ms Kyte has not faithfully recounted the contents of the call. The third is that Ms Kyte’s evidence is accepted as true, but it was not open to her to find that Mr Medwell-Everett was not ready to return to work.
  2. [60]
    It is open to the Complainant to put forward an alternative argument that while it maintains the phone call between Ms Kyte and Dr Whiting did not occur, if the Commission accepts that the call occurred, Ms Kyte’s recollection of the phone call is inaccurate. However, the Complainant has been unable to lead direct evidence about the nature of the phone call as Dr Whiting was not called as a witness. The evidence before me is therefore Dr Whiting’s report and Ms Kyte’s evidence. At its highest, the Complainant’s argument can be taken to be that it could be inferred from Dr Whiting’s report that his opinion was final and unshakable.
  1. [61]
    However, I note that Dr Whiting’s report was produced on information provided by Mr Medwell-Everett that his role was that of ‘Tug Master’ rather than that of a ‘General Purpose Hand’. I also note that the Complainant had the opportunity to cross-examine Ms Kyte on her recollection of the phone call. Ms Kyte, who I find to be a credible witness, gave unwavering evidence that she called Dr Whiting as she identified what she believed to be gaps in Dr Whiting’s report. Namely, that Mr Medwell-Everett mischaracterised his role with Daltug, and further, that Ms Kyte was not convinced that Dr Whiting understood the nature of the role as she had not previously dealt with Dr Whiting.
  1. [62]
    I am unpersuaded by the Complainant’s argument that the Commission can be satisfied that if the phone call between Dr Whiting and Ms Kyte occurred, Dr Whiting would have stood by the entirety of his report. This is in circumstances where the only direct evidence I have of the phone call is Ms Kyte’s evidence.

The First Respondent

  1. [63]
    The First Respondent says that it is not unlawful to discriminate in the workplace if an exemption under sections 25 to 36 or Part 5 of the AD Act applies. Daltug relies on s 25(1) of the AD Act which provides that a person may impose genuine occupational requirements for a position.
  1. [64]
    The First Respondent says that the basis of the refusal to allow Mr Medwell-Everett to return to work was that he was not fit to return to work and meet the genuine occupational requirements of the position.
  1. [65]
    The First Respondent acknowledges that section 35 of the AD Act requires employers to make reasonable adjustments for people with disabilities and people perceived as having an impairment. However, the First Respondent says that there was no reasonable adjustment that could be made in circumstances where the role involves a worker standing on a ‘rolling and heaving deck of a boat in rough and extreme weather conditions including at night and when visibility is poor’.[43] Ms Kyte’s evidence was that there were no alternative positions available for Mr Medwell-Everett to undertake.[44]
  1. [66]
    Further, due to the nature of the work, the First Respondent says that it is not practical or reasonable to have a worker on standby to replace a worker who is not physically capable of carrying out the work.

The Second Respondent

  1. [67]
    Mr Ashworth says that Mr Medwell-Everett did not provide a clearance to return to work. While Mr Ashworth accepts that the Complainant attended the functional medical assessment, Mr Ashworth says that Mr Medwell-Everett inaccurately described his role to the doctor as a Master of Vessel and not the more arduous role of General Purpose Hand.
  1. [68]
    Mr Ashworth, who issued the warning letter, says that Mr Medwell-Everett had falsely claimed that he had ‘already been converted to permanent’ when that was not the case.
  1. [69]
    Mr Ashworth points to Mr Medwell-Everett’s response to the warning which acknowledges receipt of the warning and states that he has read through the letter and taken the contents of the letter on board. Mr Ashworth says that Mr Medwell-Everett acknowledged that he had made false claims about accepting conversion to full-time employment, being made a shareholder, and being announced as a shareholder of the company.
  1. [70]
    Mr Ashworth says that there was no date upon which it was agreed Mr Medwell-Everett would return to work in a casual capacity following the injury. Mr Ashworth says that a memorandum was provided to Mr Medwell-Everett for the purposes of salary continuance insurance but that reference to a return date in that memorandum was speculative and made to assist Mr Medwell-Everett to access his insurance.
  1. [71]
    Mr Ashworth says that the report of the doctor included the term ‘able to start work if allowed’ and that this caused concern. Mr Ashworth says that he understood enquiries were made by Ms Kyte who reported a conversation with the doctor who had conducted the assessment and that those enquiries revealed that Mr Medwell-Everett may experience pain, discomfort or twinges and that if this occurred, he should immediately cease his duties and sit down.
  1. [72]
    Mr Ashworth says that in the work environment, a General Purpose Hand is required to undertake strenuous activity in challenging conditions without another person available to step in and replace him and that the idea that his work could be modified is ‘ludicrous’.

Was it open to Daltug and Mr Ashworth to decide that Mr Medwell-Everett could not return to work on the basis of not being able to fulfil the genuine occupational requirements of the role and on health and safety grounds?

The full functional capacity assessment report

  1. [73]
    The First Respondent says that at the time the medical assessment occurred on 11 October 2021, Mr Medwell-Everett was 12-weeks post Achilles repair and the medical assessor determined that his injury presented a ‘low to medium risk’ of further injury. The report also identified possible effects of the injury on Mr Medwell-Everett’s work: impacts on balance; diminution in lifting capacity; ‘abnormal stability’ in the ankle; inability to perform a single leg calf raise; and a need for continued physiotherapy.
  1. [74]
    Mr Medwell-Everett agreed that Exhibit 14, the pre-employment certificate, stated that he had been receiving physiotherapy since 3 September 2021 and had been progressing well with exercises. That report also stated that a possible effect on work may involve balance and lifting capacity.  The physiotherapist also noted on that report that Mr Medwell-Everett was at low to medium risk of having a condition which may affect his employment.[45] The recommendation made against the words ‘restrictions recommendation’ was ‘continue physio, able to start back to work if allowed’.
  1. [75]
    Upon seeking further information from the doctor who performed the assessment on 11 October 2021, the First Respondent says the doctor told Ms Kyte that Mr Medwell-Everett should immediately cease duties if he felt a twinge or other event with regard to his injury.

Mr Medwell-Everett’s duties

  1. [76]
    Mr Medwell-Everett accepted the duties of a General Purpose Hand as they are set out in the Daltug GPH deckhand and trainee position description.[46]
  1. [77]
    Mr Medwell-Everett described the duties of a General Purpose Hand as follows:[47]

... they assist with maintenance on the vessels. They – when it comes time to – to perform their actual duties, as in harbour towage, they’re expected to line handle; so berth and unberth the vessel; you know, work – using the lines to tie the boat up, and tie it back up when it comes back. They’re used to attach the ships line to the winch, and monitor that winch and its operation. At times, requested to operate the winch. And participate in all of the emergency drills that’s required…

  1. [78]
    Mr Ashworth tendered as evidence a video depicting a different line boat to the one Mr Medwell-Everett worked on operating in reasonably challenging conditions in the same waters that Mr Medwell-Everett would be working in.[48] I understand that the video does not exactly depict Mr Medwell-Everett’s work and that the weather and sea conditions will not always be as depicted in the video. The video was useful in providing some context to Mr Medwell-Everett’s working conditions, however I have not given the video any significant weight in considering the application. This is in part because the video is several years old and because the boats which have replaced the type of boat depicted in the video may offer improved stability, but also because it is also possible that the video was kept or shared because it depicted particularly rough weather conditions.
  1. [79]
    I find the more useful evidence regarding Mr Medwell-Everett’s duties was provided by the witnesses, all of whom have some degree of familiarity with Daltug’s operations and the work undertaken by a General Purpose Hand. The evidence before the Commission is that the work of a General Purpose Hand on a line boat is physically demanding and that while conditions may vary, it is reasonable to say that General Purpose Hands are operating in a dynamic environment.
  1. [80]
    Mr Ramsamy, the current General Manager of Daltug, is a person who has experience in working on both tugboats and line boats. Mr Ramsamy described the line ropes as being around 10 kilograms per metre when dry but explained that the lines are always wet and can be more like a 20-kilogram weight. Mr Ramsamy said that in theory, the lines are handed down, caught by a hook and brought onto the line boat but in reality, the conditions can be dangerous and the General Purpose Hand has to be very observant.[49]
  1. [81]
    Mr Ramsamy was shown the video footage and he said that he thought it reflected ‘moderate conditions’ and represented the type of conditions Daltug would operate in. Mr Ramsamy said that those type of conditions would be present around 60 to 70 per cent of the time.[50]
  1. [82]
    Mr Medwell-Everett’s evidence was that there is a percentage of the year where there are very rough conditions but that there is a far bigger percentage of workable sea conditions.[51]  I also understand that Daltug has a practice of  operating in conditions of less than 30 knots and less than 2.8 metre maximum wave height, and that it will evaluate sea conditions in circumstances where the winds are very strong to ensure work is not happening in what it deems to be extreme or dangerous conditions.[52]
  1. [83]
    Mr Ramsamy gave evidence that while there were safety guidelines, there were occasions where the line boat might need to go out when the swell is over 2.8 metres and that he had experienced five metre waves and winds of 45 to 50 knots. Mr Ramsamy said that where there is a very big vessel in a vulnerable position, it is necessary to deal with that risk.[53]  I found Mr Ramsamy to be a credible witness who answered questions openly on the basis of his experience. I find it likely that the crew are often working in reasonably rough conditions and that the nature of the work is physically demanding and involves lifting and operating on unstable and wet surfaces.
  1. [84]
    Having considered all of the evidence, I find that it was reasonable for Ms Kyte to hold a concern about Mr Medwell-Everett’s capacity to return to work as a General Purpose Hand on the revised return date.
  1. [85]
    Ms Kyte holds a Certificate 4 in Workplace Health and Safety and a Diploma in Workplace Health and Safety. She has undertaken a leader investigator’s course in ICAM[54] regarding investigation for incidents. Ms Kyte has drug and alcohol testing qualifications, and first aid training. Ms Kyte has also completed rehabilitation and return-to-work coordinator’s qualifications.[55] Prior to working for Daltug, Ms Kyte said that she had worked in the mining industry for nine and a half years and said that she also worked in a safety, training, rehabilitation and return-to-work coordinator role managing WorkCover cases.[56] Ms Kyte said that she has also worked with cranes and  prior to that, she undertook safety training and compliance for Greyhound Australia.[57] 
  1. [86]
    Ms Kyte said that prior to working for Daltug, she did not have experience in tugboats and line boats. However, she was able to explain the operations of Daltug and the different work undertaken by both tugboats and line boats. Ms Kyte confirmed that she had been out on both types of boat operated by Daltug.[58] Ms Kyte also said that her office is by the harbour and she can see the Daltug boats from her office.
  1. [87]
    Ms Kyte confirmed that she had written the position description documents for Daltug.[59]  She said that she drafted the documents with workers and put them out to crews and management to ensure they were true and correct.[60] Ms Kyte also developed the capabilities statement[61] which she said was for the purpose of someone who injures themselves returning to the workplace. Ms Kyte said that the capabilities document was sent through to the doctors so that they could see what the duties of the person are and what job they are employed for.[62]
  1. [88]
    I found Ms Kyte to be an honest and forthright witness and I accept her evidence that she held concerns about the content of the medical clearance. As stated above, I accept that Ms Kyte sought further information from Dr Whiting and that the doctor verbally told her that he was unwilling to state that Mr Medwell-Everett would not be at risk of reinjury.
  1. [89]
    I further accept that Ms Kyte, with her knowledge of the nature of the work and the business operations of Daltug, decided that until she had more information or Mr Medwell-Everett had completed his physiotherapy treatment, it would not be appropriate for him to return to normal duties.
  1. [90]
    I am of the view that Ms Kyte was at all times concerned with her responsibility to ensure that the company did not put Mr Medwell-Everett at risk and in doing so, put the company at risk on the basis that it did not keep him, or other workers safe.
  1. [91]
    While the Complainant says that the statements Ms Kyte attributed to Dr Whiting contradict his report, I disagree. The statements Ms Kyte says Dr Whiting made to her were in the context of a discussion following the provision of his report in which she was asking for more information and explanation.
  1. [92]
    The Complainant says that evidence led by the Respondent regarding the physicality of the General Purpose Hand role and the rough conditions in which seafarers work has been introduced to convince me that Mr Medwell-Everett was not fit to perform the role, or that Ms Kyte had reasonably determined that Mr Medwell-Everett was unfit to return to work due to the duties he was required to perform.  The Complainant says that it is not for either the Commission or Ms Kyte to make that determination and that only a registered medical practitioner is qualified to determine whether Mr Medwell-Everett was fit to perform his role. I disagree with the Complainant on this point. Ultimately, the decision as to whether Daltug accepted that Mr Medwell-Everett was able to meet the inherent requirements of the role was one for Daltug to make. Dr Whiting’s report was one piece of information to help inform Daltug’s assessment of the situation. Further, in this proceeding, it is a matter for me to determine whether it was open to Ms Kyte to form a view that Mr Medwell-Everett was not fit to return. In making my determination, I am required to consider the information available, including Dr Whiting’s report. While the Commission is able to hear expert evidence, it is the case that such evidence is to be considered alongside all other evidence. In any case, as is noted elsewhere in these reasons, Dr Whiting did not give expert evidence to the Commission.
  1. [93]
    The Complainant submits that Dr Whiting would have ‘undoubtedly’ been aware of the AMSA standards and the description of the work environment of seafarers in the AMSA standards. The problem I have with that submission is that Dr Whiting was not called to give evidence before the Commission on that point. The evidence of Ms Kyte, which I accept, was that Daltug had an ongoing relationship with the medical practice it used to provide the certification and there was a doctor they had familiarity with and who had undertaken site visits to Daltug’s operations. It seems to me that Ms Kyte was concerned that Dr Whiting may not have such a familiarity with the operations of Daltug and the work that Mr Medwell-Everett would be undertaking.
  1. [94]
    With regard to Mr Medwell-Everett writing on the intake form for the medical, ‘Tug Master’ as his role, the Complainant says that it does not matter that he wrote ‘Tug Master’ when the job was for ‘general deckhand’. This, the Complainant says, is because Dr Whiting ‘would have known’ Mr Medwell-Everett would be required to ‘be able to adjust to the often violent motions of the vessel’.[63] Again, the difficulty I have with this submission is that Dr Whiting was not called to give evidence before the Commission and so I have no way of knowing whether he would have provided a different report had Mr Medwell-Everett accurately listed his role on the intake form. Likewise, the Complainant’s submission that it is ‘unimaginable that a registered doctor would find a seafarer fit to work as a Tug Master, but unfit to work as a deckhand’ was not tested by way of an examination of Dr Whiting. Further to this, no other expert evidence was adduced to convince me that a finding by a doctor that a person was fit to be a Tug Master would also mean that they were fit to work as a General Purpose Hand.
  1. [95]
    I note, though, that Mr Medwell-Everett had previously been described as a Tug Master for banking purposes in a letter prepared for him by Ms Stubbins. It was put to Mr Medwell-Everett that it was not accurate to tell his bank or the insurer that he was a full-time casual Tug Master. Mr Medwell-Everett replied that it was ‘accurate to a certain extent…’.[64]  Mr Medwell-Everett agreed that the letter omitted the fact that the position was in fact a General Purpose Hand who relieved as a Tug Master.[65] Mr Medwell-Everett agreed that there was a material difference in the pay rates of a General Purpose Hand and a Tug Master. Mr Medwell-Everett agreed that Ms Stubbins, the company accountant, had provided him a letter stating that he was a Tug Master and that she had offered to make any amendments he requested in order to ‘… get it over the line with the banks…’.[66]  It does appear that while Mr Medwell-Everett has been described, and has described himself, at various times as either or both a Tug Master and a General Purpose Hand, the true situation is that he was employed as a General Purpose Hand and there were occasions where he stepped into the Tug Master role when required. It was never the case that Mr Medwell-Everett could be described only as a Tug Master.
  1. [96]
    I should note here, that on the balance of probabilities, I do not find that Mr Medwell-Everett was being deceitful when he filled in the intake form. Mr Medwell-Everett had previously undertaken work as both a General Purpose Hand and a Tug Master. However, I do accept that a Tug Master role is not as physically demanding as a General Purpose Hand role and that this error in the intake form reasonably gave rise to Ms Kyte’s and Mr Ashworth’s concern regarding Dr Whiting’s assessment.
  1. [97]
    It was open to Ms Kyte to hold concerns that the medical report had been undertaken on the basis of the Tug Master position rather than a General Purpose Hand position. Ms Kyte was concerned that the position Mr Medwell-Everett was being assessed against was ‘not as strenuous as a GPH’.[67]
  1. [98]
    It is also the case that Ms Kyte was not obliged to return Mr Medwell-Everett to work on the basis of the report. I understand that Ms Kyte found herself in a position where, based on her knowledge, experience, and the duties she was required to perform in her role, she gave a consideration to risk and made a judgment call about Mr Medwell-Everett’s capacity.
  1. [99]
    While the Complainant says that I have been invited to ignore the ‘hard evidence’, being Dr Whiting’s report, I do not share this characterisation of the First Respondent’s position. As I understand it, the First Respondent’s position is that certain parts of the report raised concerns which Ms Kyte decided to further investigate.
  1. [100]
    I agree with the Complainant that Mr Ashworth’s later statement in correspondence adds colour to the remarks Ms Kyte attributes to Dr Whiting following her conversation with him, however, while those comments from Mr Ashworth may have been dramatic, they do represent the concern formed by Ms Kyte and Mr Ashworth, being that if Mr Medwell-Everett was out on duty and experienced pain, he would need to stop work either as a result of pain or to avoid the risk of reinjuring himself.
  1. [101]
    Once Ms Kyte and Mr Ashworth formed a view that there was a risk of Mr Medwell-Everett suffering a reinjury or exacerbation of the injury, and further, that such an event would have an impact on the other crew and the operations of the boat, I find that it was reasonable for a decision to be made that Mr Medwell-Everett should not return to work on the planned return date.
  1. [102]
    The Complainant submits that the First Respondent has not demonstrated that the statements Ms Kyte has attributed to Dr Whiting means that the doctor believed Mr Medwell-Everett was more likely than any other seafarer to suffer an Achilles injury while performing his duties. The Complainant says that it was on the basis of a ‘biased and discriminatory’ interpretation of Dr Whiting’s potential words that they concluded that Mr Medwell-Everett could not perform the functions of the job.
  1. [103]
    Ms Kyte was questioned extensively in cross-examination as to whether she and Mr Ashworth had determined that Mr Medwell-Everett was, in the words of the Complainant’s representative, ‘damaged goods’. Ms Kyte repeatedly said that this was not the case and that she was concerned that he was still undergoing physiotherapy and was at risk of reinjury. When it was put to Ms Kyte that any injury may result in someone having to stop work and rest, Ms Kyte agreed. I understand the thrust of Ms Kyte’s evidence to have been that if someone became injured on the boat, work would have to cease and the job would likely have to be cancelled, but that there was a difference between that occurring in the case of an unexpected incident and a situation where she was effectively sending someone out to work in the knowledge that they were still undergoing treatment for an injury.[68]

Mr Medwell-Everett’s continued treatment

  1. [104]
    It appears that Mr Medwell-Everett continued to receive salary continuance through his insurance until around November 2021. Mrs Medwell-Everett recalled that the income protection insurance payments continued until a medical was provided by the hospital. Exhibit 26 contained a bundle of documents, one of which was a letter from the hospital dated 11 November 2021 stating that Mr Medwell-Everett had been receiving outpatient physiotherapy since 3 September 2021 and had been progressing well.  I have reviewed the letter from the hospital and note that while it states that he was progressing well, Mr Medwell-Everett acknowledged that the physiotherapist at the Mackay Base Hospital wrote ‘Flat ground, some signs of poorer balance on the right but remains steady throughout. On foam, more challenging to both but evident challenges for balance on the right. Able to complete still but difficult and working the muscles hard’.[69]
  1. [105]
    While the Complainant makes a further complaint that he was not returned to work in November 2021 following provision of a physiotherapist report, I note two things: the first is that a physiotherapist report was not what was required in order for Mr Medwell-Everett to return to work. What was required was a full function capacity test and there is no evidence that this was provided to Daltug by Mr Medwell-Everett, or that an appointment was sought or initiated by either Mr Medwell-Everett or Daltug. The second is that even if one were to rely on the physiotherapist report, which was not ever provided to Daltug, in its entirety, the documents indicate that Mr Medwell-Everett had reported to the physiotherapist that the role of General Purpose Hand was not physically demanding and required no major lifting.[70] The evidence before the Commission is that the role of General Purpose Hand was physically demanding and that this was one of the reasons a full functional medical test was required to be undertaken by employees. In fact, towards the end of cross-examination, Mr Medwell-Everett was asked if he still maintained that the job is not physically taxing and he stated, ‘to a certain extent’.[71]
  1. [106]
    With regard to the email Mr Medwell-Everett had sent to Mr Elphinstone stating that the role he was seeking clearance for did not involve heavy manual handling or lifting, Mr Ramsamy said that the role involved a great deal of heavy manual handling or lifting.[72]  Mr Ramsamy said that he would not be prepared to accept the opinion of Mr Elphinstone on the grounds that it had been written on the basis of job demands provided by Mr Medwell-Everett.[73] Mr Ramsamy said that if Mr Medwell-Everett was seeking to return to work in November 2021, he would need to complete a full functional capacity test.[74]
  1. [107]
    While varying evidence was given about the nature of the ropes hanging down from ships that a General Purpose Hand may be required to handle, I am of the view that the work of a General Purpose Hand is one that could be described as ‘physical’ in nature. The way that the person overboard drill was described is that it involved retrieval of a 90-kilogram dummy from the water. Even if there was equipment to assist with such a retrieval, I am of the view that Mr Medwell-Everett was not being entirely frank when he described General Purpose Hand work on a line boat as not being overly physical.[75]
  1. [108]
    Mr Ashworth’s evidence appeared to be that the email attaching the screenshot of the physiotherapist report was not what would have triggered him re-engaging with Mr Medwell-Everett and that Mr Ashworth would have been looking for information from ‘our provider’.[76]  Mr Ashworth also said that contact with BCERTA was not in his ‘realm of expertise’ and that the roster was full at that time.  Mr Ashworth was asked why he did not get back to Mr Medwell-Everett in November 2021 to tell him what he had to do to get back to work. Mr Ashworth responded that he thought it ‘was in hand’ and that there had been emails to Mr Medwell-Everett from Ms Kyte and Mr Ashworth to tell him that once the medical reports were sorted ‘we can move forward’.[77]
  1. [109]
    In addition, Ms Kyte was asked why Daltug had not reached out to Mr Medwell-Everett to see if he was able to return to work. She said that she was under the impression that Mr Medwell-Everett had obtained different employment and had been working for a different company.[78]
  1. [110]
    Ms Kyte gave evidence that she found the stress of dealing with Mr Medwell-Everett overwhelming and handed over control of his employment with Daltug to Mr Ashworth.[79] Ms Kyte was on leave for much of November 2021 and so it was Mr Ashworth who was responsible for dealing with Mr Medwell-Everett from that point. However, Ms Kyte’s evidence was that she did receive an email attaching a screenshot from the physiotherapist. She also stated that upon provision of a full functional capacity test to Daltug, she believed Mr Medwell-Everett could have returned to work.
  1. [111]
    It seems to me that the management of Mr Medwell-Everett’s employment from November onwards was not characterised by any proper level of attention to detail. Ms Kyte was on leave and upon her return, she appeared to believe that Mr Ashworth was dealing with matters. Mr Ashworth’s evidence was that matters such as returning to work from injury and organising functional capacity tests was not part of his role and he expected Ms Kyte to take care of those matters. While this appears to be a case of poor management, I am unable to find on the balance of probabilities that the poor management was a result of discrimination. 
  1. [112]
    What eventuated is that Mr Medwell-Everett commenced work with another company in January 2022.

Jones v Dunkel

  1. [113]
    The Complainant says that I should apply the Jones v Dunkel[80] inference regarding the failure of the First and Second Respondents to call Dr Whiting to give evidence. The Complainant says that it is unusual that the First Respondent did not call Dr Whiting to give evidence, considering its case is predicated on Ms Kyte’s evidence regarding a conversation she says she had with Dr Whiting.
  1. [114]
    The Complainant says that Daltug’s failure to secure Dr Whiting to give evidence at the hearing is an indication that Daltug did not want Dr Whiting to give evidence in circumstances where the First Respondent says that he would have stood by his report in which he deemed Mr Medwell-Everett fit to perform his duties.
  1. [115]
    The Complainant refers me to O'Connor DP’s (as his Honour was then) consideration of circumstances which may give rise to a Jones v Dunkel inference in White v State of Queensland (Central Queensland Hospital and Health Service),[81] where his Honour said:

[73]  The applicant submits that the drawing of a Jones v Dunkel inference is open to the Commission in relation to the respondent choosing not to call the patient. In Shane Joseph Farrell AND Q-COMP I addressed another situation in which a Jones v Dunkel inference might arise:

"The principle in Jones v Dunkel at its most fundamental is usually understood as an inference that can arise against a party who elects not to adduce evidence on a matter in issue.

Windeyer J, at 320 to 321, embraced the notion of "fear of exposure" on the part of the party who fails to call the witness, quoting Wigmore on Evidence:

"The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavourable to the party."

In Manly Council v Byrne & Anor, Campbell J cited the joint judgment of Gibbs A-CJ, Stephen, Mason and Aickin JJ in the High Court's decision in Brandi v Mingot to support the proposition that:

"Insofar as the passage from Wigmore approved the drawing of an inference that a witness if called would have exposed facts unfavourable to the party who failed to call that witness, it is not the law in Australia ... [L]ater cases confirm that the fullest extent of the inference which can be drawn is that the evidence which was not called would not have helped the party who failed to call the witness" and at paragraph 51:

"Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness if that witness seems to be in a position to cast light on whether that inference should properly be drawn.""

[74]  In RHG Mortgage Ltd v Ianni the New South Wales Court of Appeal reiterated that the circumstances for drawing a Jones v Dunkel inference are found where an  uncalled witness is person presumably able to put the true complexion on the facts relied on by a party as the ground for any inference favourable to that party. The three conditions to be applied are: first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her existence would elucidate the matter; thirdly, whether his or her absence is unexplained.

  1. [116]
    The Complainant says that there are three circumstances making it appropriate for me to draw a Jones v Dunkel inference in this matter. Firstly, that Dr Whiting would be expected to be called by the Respondents and not by the Complainant and that his ‘hearsay’ statement serves as Daltug’s sole defence to the discrimination claim. Mr Medwell-Everett, on the other hand, would not be expected to call Dr Whiting as a witness as he was content to rely on Dr Whiting’s report concluding that he was fit to return. Secondly, the Complainant says that Dr Whiting’s testimony would have elucidated the matter. Thirdly, the Complainant says that Daltug made no attempt to explain why Dr Whiting was not being called to give evidence. On this basis, the Complainant invites me to infer that Dr Whiting’s evidence would not have assisted the Respondents’ assertion that Mr Medwell-Everett was unfit to perform the duties of the full-time role that the company had offered him.
  1. [117]
    I have considered the submissions inviting me to make a Jones v Dunkel inference regarding the Respondents not calling Dr Whiting to give evidence.
  2. [118]
    However, it seems to me that the Respondents are content to rely on Ms Kyte’s evidence that she formed a concern about the report, sent an email to follow up, and then had a phone conversation with Dr Whiting where she says he told her that he did not have a crystal ball and could not guarantee that Mr Medwell-Everett would not reinjure himself.  When I consider the timeline of events, the provision of the medical report, the email sent by Ms Kyte, and events which occurred following the phone call, I accept on the balance of probabilities that the conversation occurred and that the content of that conversation was as Ms Kyte has reported in her evidence.
  1. [119]
    At one point, the Complainant put to Ms Kyte that the conversation did not occur. Ms Kyte’s evidence was that it did. If the Complainant sought to demonstrate that no conversation ever occurred, it would seem to me that it the Complainant could have decided to call Dr Whiting as a witness to adduce evidence that the phone call never happened.
  1. [120]
    When I look at the totality of the evidence and the extensive submissions made by the Complainant regarding what the Complainant says Dr Whiting knew, understood or thought about Mr Medwell-Everett’s condition and the duties required of his role, it seems to me that the Complainant could have formed a view that Dr Whiting would be able to provide evidence to support its case and elucidate the matter. 
  1. [121]
    This is also the case in circumstances where Mr Medwell-Everett’s evidence was that despite writing ‘Tug Master’ on the medical assessment form in circumstances where the role was full-time General Purpose Hand, he had fully explained to Dr Whiting the type of duties he would undertake as General Purpose Hand.[82]
  1. [122]
    I am unwilling to conclude that Dr Whiting is a witness who could have only been called by the Respondents, or that his evidence was only relevant to the case for the Respondents. If the Complainant wished to demonstrate that it was completely unreasonable for Ms Kyte and Mr Ashworth to form a concern about Mr Medwell-Everett’s return to work, I find that their case would have benefited from additional evidence from Dr Whiting to that effect. After all, the onus is on the Complainant to make its case.

Exemptions per Sections 25(1) and 108 of the AD Act

  1. [123]
    The First Respondent relies on section 25(1) of the AD Act and says that it was able to impose a genuine occupational requirement that Mr Medwell-Everett be fit to undertake his duties.
  1. [124]
    Additionally, the First Respondent says that pursuant to section 108 of the AD Act, it acted as ‘reasonably necessary to protect the health and safety of people at a place of work’.
  1. [125]
    Ms Kyte gave credible evidence about other employees who had been injured away from work and were required to undergo a full functional capacity test before returning to work. Ms Kyte said that in both cases, the workers had failed the initial test and were not allowed to return to work but that when they passed a test on a later date, they were able to return to work.[83]
  1. [126]
    Mr Ramsamy said that it was not possible for Mr Medwell-Everett to return to work and to sit down on the deck if he experienced a twinge or any effect of his injury. Mr Ramsamy said that this could put other employees at risk and that the conditions can be quite dangerous or risky at times.[84]  Mr Ramsamy described safety drills that are regularly undertaken including fire drills and person overboard drills. With regard to the person overboard drill, Mr Ramsamy said that a lifelike dummy of approximately 90 kilogram weight is thrown overboard and needs to be retrieved back onto the vessel.[85]
  1. [127]
    Mr Ramsamy described that there are two General Purpose Hands on deck and a Master in the cabin and that if somebody goes overboard, the Master needs to be in control of the vessel to ensure they do not run over the person in the water. This means that the General Purpose Hand remaining on board is responsible for the rescue of the other General Purpose Hand.[86]
  1. [128]
    As I noted above, I accept that the work Mr Medwell-Everett was undertaking was physically demanding and regularly happened in challenging conditions on, an at times, wet and unstable deck.
  1. [129]
    Having heard all the evidence in this matter, I find that it was reasonable for the Respondents to impose a genuine occupational requirement that Mr Medwell-Everett, or any crew member on a line boat or tugboat, be fit to undertake duties. I accept that while Dr Whiting provided a medical clearance, there were aspects of the exhibits associated with the functional capacity test which gave cause for concern as to Mr Medwell-Everett’s fitness for duty. As discussed above, I accept that it was open to Ms Kyte to take all information available to her into account and determine that Mr Medwell-Everett was not fit to return to duty. While Dr Whiting undertook the examination of Mr Medwell-Everett, his report became one part of the full factual matrix in which Ms Kyte made her decision.
  1. [130]
    Based on the evidence, I accept that Daltug’s decision was made on the basis of both a desire to protect Mr Medwell-Everett from reinjury and also to ensure a safe working environment for other crew members. The evidence was that while the Master remained in the cabin, there were two crew members on the deck. If one crew member becomes injured and needs to stop work, there is a risk to the other crew member in attempting to undertake the work alone. Additionally, the Commission heard evidence about the person overboard rescue process. In the event one crew member was injured and the Master must remain in the cabin to avert the risk of the boat running over the person who had fallen overboard, there would clearly be a serious health and safety risk that the person in the water may not be able to be rescued.
  1. [131]
    Even in the case where the Respondents were motivated by a desire to ensure that Daltug did not find itself the subject of a complaint or action for operating in an unsafe way and placing Mr Medwell-Everett at risk of injury, fundamentally, the way to achieve such a desire would be to implement proper controls and processes to ensure that they were operating safely and not putting Mr Medwell-Everett at risk of reinjuring himself.  It was reasonable for Daltug to take steps to protect the safety of Mr Medwell-Everett and to require him to be fit for duty in order to protect the safety of his colleagues.
  1. [132]
    The First and Second Respondents have not unlawfully discriminated in the work area on the basis that an exemption exists to impose a genuine occupational requirement that Mr Medwell-Everett would be fit to undertake the position per sections 24 and 25 of the AD Act.
  1. [133]
    I also find it was open to the First and Second Respondents to refuse Mr Medwell-Everett’s return to work as this was reasonably necessary to protect the health and safety of both Mr Medwell-Everett and other people at Daltug’s place of work per section 108 of the AD Act.

Section 35 AD Act

  1. [134]
    While the evidence pointed to health and safety reasons why it was not appropriate for Mr Medwell-Everett to return to work, there was also evidence about the operational feasibility of any proposed reasonable adjustment.
  1. [135]
    With regard to the Complainant’s argument that per s 35 of the AD Act, the employer was required to make reasonable adjustments for people perceived as having an impairment, the Respondent’s position is that there was no reasonable adjustment able to be made in circumstances where it was not practical or reasonable to have an additional worker on the vessel to be on standby to replace Mr Medwell-Everett if he became physically unable to carry out the work.
  1. [136]
    Mr Ashworth’s evidence was that arranging for Mr Medwell-Everett to return to work as a Tug Master would have created an unnecessary risk. Mr Ashworth said that because of the movement of the tugboat and issues surrounding using the stairs in unstable conditions, he would not have been prepared to make such an accommodation as it would ‘increase risk’. Mr Ashworth said that the potential for Mr Medwell-Everett to need to sit down on the job ‘wouldn’t pass our risk assessment because that would be the end of the job’.[87] When asked what the consequences would be if Daltug could not deliver its services to a freighter when it is supposed to, Mr Ramsamy referred to monetary cost and reputational costs.[88] My impression is that there was a concern that a need to cancel a job either at late notice, or in the middle of operations, would adversely impact Daltug’s reputation, and in turn, its standing with clients and business efficiency.  These were legitimate matters for the First and Second Respondents to consider when determining whether reasonable adjustments could be made to enable Mr Medwell-Everett to return to work as a General Purpose Hand.
  1. [137]
    Mr Ramsamy’s evidence was that while they would like more crew on a tugboat, Daltug was ‘restricted’ to a crew of three.[89] Mr Ramsamy’s evidence was that the crew for a line boat was also three.[90] Ms Kyte confirmed this and said that the client had imposed a restriction of three crew members and that it is at the Master’s discretion if the weather conditions are such that a fourth member is to be requested.[91]
  1. [138]
    Mr Ashworth’s evidence was that the crew for the line boat consisted of a Master and two crew. Mr Ashworth said that it would be possible to have more General Purpose Hands but that ‘everybody gets in each other’s way’ and that while in certain  conditions the Master can opt to have more people, ‘a lot of the time they don’t because they think it’s safer to stay with the crew that they got…’.[92] Mr Ashworth also said that Daltug gets paid on the basis of two General Purpose Hands and that if Daltug decides to put more people on, the company pays for that itself.[93]
  1. [139]
    Further to this, I accept the evidence of Daltug that it could not hold the permanent position open indefinitely but that upon being cleared fit to return to work, Mr Medwell-Everett could have resumed employment with a view to becoming a full-time employee. In circumstances where the injury happened outside of work and Mr Medwell-Everett’s return date was pushed back twice and then again after Daltug determined it was unwilling to have him return to work based on the medical evidence and the further consultation with the doctor, I find it was reasonable for the company to move to fill roles in whatever way it saw fit.
  1. [140]
    For the reasons given from [134]-[139] regarding Daltug’s operations and the impact of either ceasing work if Mr Medwell-Everett required a break or alternatively, the provision of an additional crew member to cover such a risk, I find that the provision of adjustments by way of special services or facilities per section 35 of the AD Act would have imposed an unjustifiable hardship on Daltug per section 5 of the AD Act.

Comparator

  1. [141]
    While I have determined that Daltug did not discriminate against Mr Medwell-Everett on the basis of the exemptions available per s 108 and s 25, for completeness, I will consider the Complainant’s submission that Mr Medwell-Everett was treated less favourably than a person without his attribute of impairment.
  1. [142]
    To prove that a person has been treated less favourably than a person without the attribute, or a characteristic of the attribute, a ‘comparator’ must be identified against whom a comparison can be made.[94]
  1. [143]
    The comparator must be a person without the Complainant’s relevant attribute, but in the same circumstances as the Complainant. A hypothetical comparator can be used where there is no actual comparator.[95] Further, it can be inferred that a person has been treated less favourably than the hypothetical comparator where there is a finding that a substantial reason for the treatment was a protected attribute.[96]
  1. [144]
    In the matter of Curran v yourtown & Anor,[97] O'Connor VP addressed the task of identifying an appropriate comparator:
  1. [84]
    In Woodforth v State of Queensland, a comparison was required between the Complainant's treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic. McMurdo JA wrote:

 Section 10 of the ADA requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be "in circumstances that are the same or not materially different" from those that constituted the context for the treatment of the impaired person. In that respect s 10 of the ADA is not different from s 5(1) of the DDA.  But beyond that likeness, there are differences between the two statues. 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 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…

  1. [85]
    In the present case no submissions were made regarding the 'characteristics' of the Complainant's impairment. Indeed, as noted above the lack of specificity as to the exact nature of the Complainant's impairment makes the determination of an appropriate comparator problematic.
  1. [86]
    The Complainant submits that the appropriate comparator, with respect to the events between May and September 2016, is that of an individual who has taken an extended period of personal leave.
  1. [87]
    The Respondent submits that the appropriate comparator is a person without mental health issues, having long term, extended and unpredictable absenteeism, having the September 2016 Failed RTW, having no Medical Certification of Fitness for Duty in November 2016, having no Medical Certification of absenteeism, and having no engagement in the 2017 RTW.
  1. [88]
    In my view the appropriate comparator is another employer of yourtown, working in the position of a Production Administrator, who does not have anxiety or any characteristics of it. The circumstances that are "the same or not materially different", are that the person has taken extended periods of personal leave and wishes to return to work.[98]
  1. [145]
    The Complainant has argued that Mr Shane Ping is an appropriate comparator as he was offered the full-time role at the same time as Mr Medwell-Everett, did not suffer an injury, and went on to take up the role on the planned date.
  1. [146]
    The First Respondent says that an appropriate hypothetical comparator is an employee of the First Respondent who:
  1. was without the applicant’s impairment;
  1. was employed in a casual role by the first respondent as a general purpose hand on a line boat;
  1. would potentially sit down, and not perform his duties while on active duty on a line boat, for an indeterminate period of time, without any prior notice to his colleagues.
  1. [147]
    I am of the view that the relevant comparator in this situation is not simply Mr Ping, the colleague who was offered a permanent role at the same time, did not suffer an Achilles injury and went on to take up the position. It is necessary to consider that the circumstances need to be ‘the same or not materially different’. In this case, the circumstances are that there was a concern about whether Mr Medwell-Everett could return to his job and properly fulfil the inherent duties of the role in circumstances where he may need to sit down and not perform his duties in the event of feeling any issues related to his injury. Therefore, I agree with the First Respondent that the appropriate hypothetical comparator was an employee of Daltug who:
  1. was without the Complainant’s “protected attribute”, being an impairment sustained outside of the workplace;
  1. was employed in a casual role by Daltug as a general purpose deckhand (GPH) on a line boat; and
  1. would potentially sit down, and not perform his duties whilst on active duty on a line boat, for an indeterminate period of time, without any prior notice to his colleagues.[99]
  1. [148]
    I am satisfied that Mr Medwell-Everett was not treated less favourably than another person who may potentially sit down and be unable to perform duties without prior notice for any reason. The evidence regarding operational impacts and also health and safety risks associated with a crew member who may need to withdraw from duties during operations leads me to find that any such person would be deemed unfit to perform the genuine occupational requirements of the role or position.
  1. [149]
    On this basis, I find that Daltug has not discriminated against Mr Medwell-Everett by not allowing him to return to work.

Victimisation

The decision that Mr Medwell-Everett was not fit to resume duties

  1. [150]
    Sections 129 and 130 of the AD Act provide that a person victimises a person if they do an act, or threaten to do an act, to the detriment of a complainant because the complainant, or a person associated with, or related to, the complainant, in good faith, alleged, or intends to allege, that a person committed an act that would amount to a contravention of the AD Act – or is, has been, or intends to be, involved in a proceeding under the Act against any person.
  1. [151]
    The Complainant argues that ‘in effect’, both Mr Medwell-Everett and his wife had complained to Ms Kyte that the company was unlawfully discriminating against Mr Medwell-Everett by refusing to let him return to work.
  2. [152]
    The First Respondent says that no victimisation has occurred and that the First Respondent did not allow Mr Medwell-Everett to return to work because it considered that he was not fit to return to work.
  1. [153]
    Ms Kyte recalled that Mr Medwell-Everett had contacted her to say he was fit to return to work. Ms Kyte said she told Mr Medwell-Everett that he would need to undertake a functional capacity test and recalled Mr Medwell-Everett telling her that he had already organised one. Ms Kyte recalled telling Mr Medwell-Everett that he would need to undertake the test at the BCERTA. Ms Kyte said that Mr Medwell-Everett was getting ‘a little annoyed’ with her and said that the clinic used by Daltug was 25 minutes out of his way and he did not want to go there when he already had a test organised. Ms Kyte recalled stating that it was a requirement to go through the medical provider chosen by Daltug and said that Mr Medwell-Everett had asked where that was said in writing and told her to put it in writing. Ms Kyte said that she then sent him an email and carbon copied Mr Ashworth in it.[100]
  1. [154]
    Ms Kyte also recalled seeking advice from Mr Ashworth and said that he sent her an email which contained a set of words regarding the requirement for a certificate of fitness pre-employment.[101]
  1. [155]
    Ms Kyte said that she then wrote an email to the BCERTA clinic manager to try and get Mr Medwell-Evert booked in for a medical as soon as she could because while he had a verbal clearance, there was nothing in writing.[102]
  1. [156]
    In evidence is an email dated 7 October 2021 from Ms Kyte informing Mr Medwell-Everett that when he was cleared to return to work, he would be rostered to work as a casual General Purpose Hand.
  1. [157]
    As discussed above, following the Respondent’s decision that Mr Medwell-Everett was not able to return to work, a number of things occurred.
  1. [158]
    On 12 October 2021, Mr Medwell-Everett contacted BCERTA and confirmed that he had been deemed medically fit to perform his job.
  1. [159]
    Mr Medwell-Everett also wrote to Ms Kyte asking what more clarification was needed beyond the medical examination.
  1. [160]
    On that same day, Mr Medwell-Everett’s wife phoned Ms Kyte to ask why Mr Medwell-Everett had been stood down, and why he had not been put back to work when the company’s own doctors had cleared his return.
  1. [161]
    Mrs Medwell-Everett gave evidence on the second day of the hearing. She said that in her view in October 2021, Mr Medwell-Everett was ‘fully back to normal’ and that he was running water for their son’s football team and they were going out dancing.[103] Mrs Medwell-Everett said that she read the medical report and did not think anything in the reports precluded Mr Medwell-Everett’s return to work.[104]
  1. [162]
    Mrs Medwell-Everett recalled telephoning Daltug and speaking with Ms Kyte to ask why Mr Medwell-Everett could not return to work and what aspect of the medical reports needed clarification. Mrs Medwell-Everett said that she asked ‘who the medical professional was that overriding the full medicals’ undertaken two days prior, which Mrs Medwell-Everett says Ms Kyte could not tell her.[105] 
  1. [163]
    Mrs Medwell-Everett said that she made the phone call ‘in defence of’ Mr Medwell-Everett after he ‘hit a wall with Scott’. She said that she made the phone call to ‘figure out what the hell was going on, because it just didn’t make sense’.[106]
  1. [164]
    Mrs Medwell-Everett described her demeanour during the telephone call as ‘very firm’.  She said that she was not argumentative and that as Ms Kyte could not give her any answers, ‘there was no point pushing the conversation’. Mrs Medwell-Everett said that she ‘certainly wasn’t rude’ and did not swear or raise her voice. While Mrs Medwell-Everett said that the conversation was not unpleasant, she said that it made her feel really frustrated.
  2. [165]
    Ms Kyte recalled that on the day that phone call was made, she moved to the door near Mr Ashworth’s office and put the phone on speaker because she was concerned after the previous phone call she had with Mr Medwell-Everett where he had been annoyed and asked for things to be put in writing. She said that she did not want to take the phone call without others hearing, ‘in case she was copping flak again’. Ms Kyte said that she put the phone on speaker and that Mr Ashworth, Mr Casey and Mr Srea, other employees of Daltug, could hear it.
  1. [166]
    Ms Kyte said that she told Mrs Medwell-Everett that she does not claim to have medical experience and that Mrs Medwell-Everett asked what right Ms Kyte had to read his medical. Ms Kyte said that she explained that the company required the medical and paid for it. Ms Kyte said that she recalled relaying the matters she had discussed with Dr Whiting but that Mrs Medwell-Everett was annoyed because she did not think Ms Kyte had the right to stop Mr Medwell-Everett from returning to work.  Ms Kyte said that she told Mrs Medwell-Everett that it is her job to not put the company at risk or Mr Medwell-Everett at risk until Daltug are satisfied.
  1. [167]
    It seems to me that the decision that Mr Medwell-Everett could not safely return to work on the basis of risk of reinjury and the financial risk of Daltug being unable to complete an assignment should Mr Medwell-Everett become injured was made at the time of the medical assessment, the provision of the report to Ms Kyte by BCERTA and the follow-up phone call she had with Dr Whiting.
  1. [168]
    While I understand that Mr Ashworth and Ms Kyte were very unhappy with the phone calls made to them questioning their decision-making, and representations made by a Director on Mr Medwell-Everett’s behalf,[107] I cannot see that following those phone calls, actions were taken with a view to ‘victimising’ Mr Medwell-Everett.
  1. [169]
    There was an exchange which took place between Mr Medwell-Everett and Mr Ashworth regarding the role which Mr Medwell-Everett would return to on the roster following his return to work. This exchange appeared to be in relation to what work would be undertaken by Mr Medwell-Everett and whether he would initially return as a casual or full-time on the basis of the roster which was provided to him by Ms Kyte. This exchange occurred prior to the BCERTA functional capacity report and the subsequent decision that Mr Medwell-Everett was not able to return to work at that time. It is unclear what the outcome of that exchange would have been and in any case, it appeared to be overtaken by decisions made regarding Mr Medwell-Everett’s fitness to return to work.[108] Ms Kyte forwarded that email to Mr Ramsamy, and says it was also sent to other directors. In the email she sent to Mr Ramsamy, Ms Kyte informed him that Mr Ashworth had not offered Mr Medwell-Everett ‘Nick’s job’ but that Ms Stubbins had.[109] It therefore seems to me that any purported decisions that were made about the role to which Mr Medwell-Everett would return were made prior to the phone calls made by himself and his wife regarding Daltug’s concerns with the contents of the medical clearance. 
  1. [170]
    I accept that Ms Stubbins may have spoken with Mr Medwell-Everett about the possibility of him being appointed to Mr Robbins’ role when he retired the following year, however Ms Stubbins had no authority to make such an offer or appointment and I do not believe it would be reasonable for Mr Medwell-Everett to believe that she had the power to do so.[110]
  1. [171]
    Ms Stubbins gave evidence that after Mr Medwell-Everett was injured, Mr Ramsamy contacted her to seek advice as to whether it would be possible not to follow through on the offer of full-time employment without facing an unfair dismissal case.[111]Ms Stubbins’ evidence was that she told Mr Ramsamy that she did not think that was possible as the information had already been distributed to employees of the company.[112]
  1. [172]
    However, Ms Stubbins also recalled situations where other injured employees were unable to work and subsequently returned to work after surgery.
  1. [173]
    Ms Stubbins no longer works for Daltug and her employment with Daltug was terminated for reasons unrelated to Mr Medwell-Everett’s employment. Ms Stubbins’ evidence was that Mr Ashworth’s correspondence to her had threatened that if she did not put all requests regarding her termination or any proposed settlement through him, he would contact prospective employers and make statements to her detriment. Ms Stubbins also recalled that correspondence from Mr Ashworth ‘got nastier and nastier’.[113]  Ms Stubbins also recalled that at the time of the termination of her employment, Mr Ashworth refused to negotiate with her solicitor to reach an amicable agreement. Despite this, Ms Stubbins’ evidence was that she has no ill feelings toward Mr Ashworth.[114]
  1. [174]
    Mr Ramsamy denied asking Ms Stubbins for advice about how he could terminate Mr Medwell-Everett’s employment without facing an unfair dismissal claim. Mr Ramsamy recalled that Daltug had difficulty getting Mr Medwell-Everett to follow reasonable directions to return to the workplace after his injury. Mr Ramsamy stated that the job is a physically demanding and hands on job and that workers need to be fit.[115] I am of the view that in the event Mr Ramsamy did speak to Ms Stubbins to seek her advice about the implications of not employing Mr Medwell-Everett permanently, it was on the basis of Mr Ramsamy’s concern that Mr Medwell-Everett was not fit for duty. There is no evidence before me that Mr Ramsamy terminated Mr Medwell-Everett’s employment, or threatened to do so because Mr Medwell-Everett alleged or intended to allege that the AD Act had been breached.
  1. [175]
    For the reasons given above, I accept that the factors involved in the decision to not allow Mr Medwell-Everett to return to work was his capacity to undertake the genuine occupational requirements of the job, health and safety matters, and that there were no reasonable adjustments which could be made to accommodate his impairment without creating unjustifiable hardship to Daltug. Additionally, I do not accept that the content of the emails and phone calls Mr Medwell-Everett and Mrs Medwell-Everett made to Ms Kyte and Mr Ashworth, or anyone else at Daltug, included an allegation or an intention to allege that the AD Act had been contravened. 

The warning letter Mr Ashworth sent to Mr Medwell-Everett

  1. [176]
    As far as I can gather, another act of victimisation complained of, involves what the Complainant describes as a ‘scathing’ letter in which Mr Ashworth chastises Mr Medwell-Everett for questioning the decision that he could not return to work at that time and issues him with a warning.
  1. [177]
    I have reviewed that correspondence and while I find the language of Mr Ashworth to be combative, emotive and hyperbolic, I find that in that letter, Mr Ashworth is more concerned with the way Mr Medwell-Everett went about complaining that he was not able to return to work rather than the complaint itself. The evidence was that there was a tense relationship between Mr Ashworth and Mr Medwell-Everett well before Mr Medwell-Everett injured himself. Mr Ashworth was of the view that Mr Medwell-Everett had been dissatisfied with the offer of permanency as a General Purpose Hand and was attempting to press to be offered a role as a Tug Master.
  1. [178]
    Ms Kyte’s evidence was that later on the day the board had resolved to offer permanent employment to Mr Medwell-Everett and Mr Ping, she had witnessed a conversation between Mr Ashworth and Mr Medwell-Everett at the Daltug office. Ms Kyte recalled that Mr Medwell-Everett wished to talk with Mr Ashworth about a full-time position and that when Mr Ashworth responded to the effect that a General Purpose Hand role might be available, Mr Medwell-Everett had stated that he was not looking for a General Purpose Hand role but wanted to be in a Tug Master’s role. Ms Kyte recalled that Mr Ashworth told Mr Medwell-Everett that he needed to understand he could not come and step over people who are permanent and go straight into a Master’s role. Ms Kyte recalled that at the end of the conversation, Mr Medwell-Everett agreed that if there was a General Purpose Hand position that came up, he would accept it and Mr Ashworth said he would look into it.[116]
  1. [179]
    Ms Kyte also recalled that the following morning, she overheard a conversation where one of the Directors, Mr Robbins, came to the office and spoke with Mr Ashworth saying that Mr Medwell-Everett had complained to Mr Robbins that he was not offered a Master’s role. Ms Kyte also recalled that later that day, she overheard a conversation between Mr Medwell-Everett and Ms Stubbins where Mr Medwell-Everett was relaying that he was not impressed that he had not been offered the Master’s role. Moreover, Ms Kyte recalled Ms Stubbins expressing annoyance that Mr Medwell-Everett had not been offered the Master’s role.[117]
  1. [180]
    Mr Ashworth’s evidence was that he issued the warning letter because ‘the Fair Work procedure is to let them know in writing what your grievances are’. Under cross-examination, Mr Ashworth’s evidence was that the letter had been written on the basis of Ms Kyte’s reasons for handing the matter over to him including Mr Medwell-Everett’s actions in speaking to directors about his unhappiness at Ms Kyte’s decision. Mr Ashworth agreed that the final paragraph of the warning letter anticipated a medical assessment being required before Mr Medwell-Everett could return to work.[118]
  1. [181]
    Mr Medwell-Everett’s evidence was that he found it stressful to be disciplined without understanding what he was being disciplined for.[119]

The first contact from Mr Medwell-Everett’s union

  1. [182]
    On 5 November 2021, Mr Gallagher of the MUA wrote to Mr Ashworth with regard to Mr Medwell-Everett’s employment. In that email, Mr Gallagher proposed a meeting to discuss why the permanent position made available to Mr Medwell-Everett had been rescinded. Mr Gallagher stated that after reading through the material, it seemed that the injury to Mr Medwell-Everett was the main cause of the decision to withdraw the offer and that other factors are spelled out in the letter Mr Ashworth issued to Mr Medwell-Everett. Mr Gallagher notes that Mr Medwell-Everett did not have a proper opportunity to respond to the comments in the warning letter and that such a letter was not permissible prior to Mr Medwell-Everett having an opportunity to respond to accusations in that letter.[120]
  1. [183]
    While the email from Mr Gallagher states that he believes Mr Medwell-Everett’s injury was the main cause of a decision to withdraw a job offer, it appears to me to be mainly concerned with the nature of the letter and that the union considered a disciplinary warning had been issued to Mr Medwell-Everett without him having a chance to respond to allegations or show cause why such a warning should not be issued.
  1. [184]
    Mr Ashworth’s evidence was unclear as to why he did not respond to the email from Mr Gallagher. Mr Ashworth said that there were ‘quite a few emails going on between myself and Paul at that stage’ and that ‘couldn’t say what actually I did about this email’.[121]
  1. [185]
    Mr Ashworth’s evidence at hearing was that if Mr Medwell-Everett had provided a full medical clearance, he could have returned to work. This differs from Mr Ashworth’s position in his statement of facts and contentions that Mr Medwell-Everett had never accepted a position. Mr Ashworth’s evidence was at times vague and inconsistent; however, it seems to me that it was reasonable for Mr Ashworth to rely on Ms Kyte’s recommendations and assessment regarding Mr Medwell-Everett’s return to work, that the warning letter was written in frustration and in itself did not dismiss Mr Medwell-Everett’s employment, but rather made it clear that a medical clearance would be required before he returned to work.
  1. [186]
    Ms Stubbins described Mr Ashworth’s correspondence to her in the past as nasty. As stated above, the letter Mr Ashworth sent to Mr Medwell-Everett seems heavy handed. My impression of Mr Ashworth’s filed material in this matter is that he is not inclined to take time to reflect on correspondence and determine if he has chosen the right tone for the purpose of, and audience for, what he is writing. I agree that Mr Medwell-Everett should have been afforded an opportunity to respond to the allegations Mr Ashworth sets out in the warning letter before any such warning was issued. However, I do not find the letter was an act of victimisation against Mr Medwell-Everett in circumstances where, at the time the letter was issued, no allegation of discrimination had been raised by Mr or Mrs Medwell-Everett or Mr Medwell-Everett’s union. The letter was a poorly worded and premature response to Mr Medwell-Everett’s questioning of Ms Kyte’s and Daltug’s decision that he was not able to return to work.
  1. [187]
    There is no evidence that when Mr Medwell-Everett and his wife were complaining about Mr Medwell-Everett not being able to return to work, that either of them stated that he was being discriminated against or that the basis of their complaint was one of discrimination. I do not accept that at the time these events occurred, Mr Ashworth or Daltug took the actions because Mr Medwell-Everett alleged or intended to allege that Mr Ashworth or Daltug had committed an act that would amount to a contravention of the AD Act.

The non-response to Mr Medwell-Everett’s 17 November 2021 email attaching a screen shot of a page of his physiotherapist’s report

  1. [188]
    It was put to Mr Ashworth that he decided to never allow Mr Medwell-Everett to return to work as a result of advice he received from a workplace consultant that if Mr Medwell-Everett were to reinjure himself at work, it would be the company’s responsibility even though the original injury was not work related. Mr Ashworth rejected this and said that the injury affected the timeline for Mr Medwell-Everett’s return and that Mr Ashworth was confident that Mr Medwell-Everett would recover.[122]
  1. [189]
    It is unclear what happened regarding Mr Medwell-Everett’s employment following that period. The evidence appeared to be that Mr Ashworth did not action that email Mr Medwell-Everett sent attaching the screen shot of the front page of the physiotherapist’s report.
  1. [190]
    Ms Kyte said that by this stage, she was not dealing with the matter anymore and that she had an expectation that Mr Medwell-Everett would contact Daltug to see about doing a full functional capacity test as he had been asked to do in the previous email that had been sent to him.[123]
  1. [191]
    I am not able to conclude on the evidence before me that inaction on or around 17 November 2021 with regard to Mr Medwell-Everett’s employment was victimisation. It seems to me that Ms Kyte had removed herself from any matters pertaining to Mr Medwell-Everett and that Mr Ashworth was undertaking his duties in a lackadaisical manner.

The correspondence Mr Medwell-Everett’s union sent to Mr Ashworth on 5 January 2022

  1. [192]
    The email sent to Mr Ashworth and Ms Kyte by Mr Bond on 5 January 2022 alleges that the refusal to permit Mr Medwell-Everett to return to work violates both state and federal anti-discrimination laws. That email states that if Daltug refuses to appoint Mr Medwell-Everett to a full-time permanent position as General Purpose Hand by Monday 10 January 2022, the union will lodge a complaint alleging discrimination. The letter goes on to suggest that a successful case would likely result in a judgment ‘in the tens (if not hundreds) of millions of dollars’.[124] 
  1. [193]
    There appear to be several possible reasons Mr Medwell-Everett was not made an offer to return to work following the letter in January 2023 threatening an anti-discrimination claim being made. Ms Kyte’s evidence was that in Mr Medwell-Everett’s absence, the rosters had been filled by other casual employees and permanent appointments. The second is that Daltug believed Mr Medwell-Everett had secured work elsewhere and was no longer an employee of Daltug.
  1. [194]
    I do not accept that the reason Mr Medwell-Everett was not returned to work and back paid in accordance with the demands made in the letter was that he had alleged or intended to allege that Daltug or Mr Ashworth had contravened the AD Act. At the time the 5 January 2022 correspondence was sent, Daltug had made a series of decisions regarding Mr Medwell-Everett’s employment. I am unable to identify any new course of action which occurred post the receipt of the letter of 5 January 2022 that would indicate that Mr Ashworth or Daltug decided to take an action to his detriment because he intended to be involved in a proceeding against Daltug.

Conclusion

  1. [195]
    For the foregoing reasons, I find that there has been no direct discrimination against Mr Medwell-Everett by the First and Second Respondents on the basis of his impairment and that he was not treated less favourably than a comparator without the attribute in circumstances that are the same or not materially different.[125] I also find that it was open to Daltug and Mr Ashworth to impose genuine occupational requirements requiring fitness to undertake the position of General Purpose Hand and that this genuine occupational requirement provides an exemption for discrimination.[126]  Further, it was open to Daltug and Mr Ashworth to act as reasonably necessary to protect the health and safety of people at work and it is not unlawful to discriminate on that basis.[127] I also find that the provision of reasonable adjustments to Mr Medwell-Everett to enable him to undertake the position of General Purpose Hand would result in an unjustifiable hardship to Daltug.[128]  For the reasons given above I am also satisfied that neither the First nor Second Respondents victimised Mr Medwell-Everett.[129]

Order

  1. The complaint is dismissed.

I certify that the preceding [195] paragraphs are a true copy of the Reasons for Decision of Industrial Commissioner Pidgeon

S C PIDGEON, Industrial Commissioner   ………………………………

Dated: 5 January 2024

Footnotes

[1] Exhibit 8.

[2] Ibid.

[3] Ibid; Exhibit 7.

[4] Exhibit 5.

[5] T 1-18, l 25.

[6] Exhibit 6; Exhibit 7; T 1-20, ll 23-27.

[7] T 1-23, l 5.

[8] Exhibit 53.

[9] While there was some questioning in cross-examination suggesting that there was an attempt to manipulate the medical examination, I accept Ms Kyte’s evidence that there is a grammatical error in the email. T 2-124, ll 9-17; T 3-8, ll 7-20.

[10] Exhibit 10.

[11] Exhibit 14.

[12] Ibid page 9.

[13] Ibid.

[14] Ibid.

[15] Ibid page 7.

[16] Ibid page 6.

[17] Ibid.

[18] Exhibit 19.

[19] T 2-90, ll 36-42.

[20] T 2-119.

[21] T 2-120 – T 2-121; T 3-7, ll 37-48.

[22] T 2-95, ll 40-43.

[23] T 2-129, ll 30-34.

[24] T 2-96, ll 24-25.

[25] First Respondent’s submissions filed 4 August 2023, [17].

[26] Exhibit 24.

[27] Exhibit 21.

[28] Exhibit 25.

[29] Exhibit 26.

[30] T 1-84 – T 1-85; T 1-89, ll 44-45; Exhibit 38.

[31] Exhibit 62; T 3-80, l 38 – T 3-81, l 3.

[32] Complainant’s Statement of Facts and Contentions filed 16 September 2022, [18]-[23].

[33] Ibid (numbering added).

[34] Anti-Discrimination Act 1991 (Qld), Preamble (‘AD Act’).

[35] Toodayan and Toodayan v Metro South Hospital and Health Service & Others [2023] QIRC 036 (‘Toodayan’).

[36] Ibid [209].

[37] Complainant’s Statement of Facts and Contentions filed 16 September 2022, [24]-[25].

[38] Exhibit 14.

[39] Exhibit 26.

[40] T 2-129, ll 23-35.

[41] Complainant’s submissions filed 14 July 2023, [36].

[42] Ibid [39].

[43] First Respondent’s Statement of Facts and Contentions filed 4 October 2022, [22].

[44] T 2-145, ll 1-10.

[45] T 1-72, ll 1-6.

[46] Exhibit 2; T 1-13, ll 25-36.

[47] T 1-12, ll 32-38.

[48] Exhibit 63.

[49] T 2-47.

[50] T 2-50.

[51] T 2-18, ll 8-11

[52] Exhibit 49.

[53] T 2-48.

[54] ‘ICAM’ stands for ‘Incident, Cause, Analysis, Method’.

[55] T 2-78, ll 36-40.

[56] T 2-79, ll 1-2.

[57] T 2-79.

[58] T 2-79 – T 2-80.

[59] Exhibit 2; Exhibit 3.

[60] T 2-81, ll 3-39.

[61] Exhibit 50.

[62] T 2-8, l 41 – T 2-82, l 3.

[63] Exhibit 11 page 8 cl 1.3.

[64] T 1-63, ll 45-47.

[65] T 1-64, ll 1-6.

[66] T 1-65, ll 1-4; Exhibit 33; Exhibit 34.

[67] T 2-91, ll 31-32.

[68] T 2-139 – T 2-140.

[69] Exhibit 26.

[70] T 3-39, ll 1-38; T 1-73.

[71] T 1-94, l 4.

[72] T 2-58, ll 40-46.

[73] T 2-59, ll 3-12.

[74] T 2-59, ll 14-16.

[75] T 1-74, ll 45-46.

[76] T 3-47.

[77] T 3-40, ll 1-24.

[78] T 2-145.

[79] T 2-98, ll 6-12.

[80] [1959] HCA 8.

[81] [2017] QIRC 041, [73]-[74] (citations omitted).

[82] T 1-34, ll 35-42; Exhibit 14.

[83] T 3-9, ll 30-43.

[84] T 2-56, ll 1-5.

[85] T 2-56, ll 10-19.

[86] T 2-56, ll 21-30.

[87] T 3-41, ll 15-35.

[88] T 2-48, ll 44-48.

[89] T 2-45, ll 41-45.

[90] T 2-47, ll 34-36.

[91] T 2-106, l 46 – T 2-107, l 22.

[92] T 3-41, ll 37-46.

[93] T 3-41, l 48 – T 3-42, l 19.

[94] Toodayan (n 35) [251].

[95] Ibid [252].

[96] Ibid [257].

[97] [2019] QIRC 059.

[98] Ibid (emphasis added) (citations omitted).

[99] First Respondent’s submissions filed 4 August 2023.

[100] T 2-86, ll 12-24.

[101] Exhibit 54; T 2-87.

[102] T 2-86; Exhibit 53.

[103] T 2-25, ll 9-13.

[104] T 2-26, ll 16-23.

[105] T 2-26, ll 38-44.

[106] T 2-26, l 46 – T 2-27, l 2.

[107] Exhibit 22; T 2-99, ll 3-11.

[108] T 2-89; Exhibit 13.

[109] Exhibit 55.

[110] T 2-90.

[111] T 1-118, ll 3-6.

[112] T 1-118, ll 10-15.

[113] T 1-121, ll 6-36.

[114] T 1-131, ll 34-35.

[115] T 2-55, ll 41-48.

[116] T 2-83 – T 2-84.

[117] T 2-84 – T 2-85.

[118] T 3-43, ll 6-29.

[119] T 1-49, ll 31-33.

[120] Exhibit 40.

[121] T 3-44, ll 33-35.

[122] T 3-77, l 42 – T 3-78, l 12.

[123] T 2-102.

[124] Exhibit 60.

[125] AD Act (n 34) s 10.

[126] Ibid ss 24, 25.

[127] Ibid ss 103, 108.

[128] Ibid ss 5, 36.

[129] Ibid ss 129, 130.

Close

Editorial Notes

  • Published Case Name:

    Medwell-Everett v Daltug Pty Ltd & Anor

  • Shortened Case Name:

    Medwell-Everett v Daltug Pty Ltd

  • MNC:

    [2024] QIRC 2

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    05 Jan 2024

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
Curran v yourtown & Anor [2019] QIRC 59
2 citations
Jump To
Cite 1 - [2019] QIRC 59
Cite 2 - [2019] QIRC 59
Jones v Dunkel [1959] HCA 8
2 citations
Jump To
Cite 1 - [1959] HCA 8
Cite 2 - [1959] HCA 8
Toodayan and Toodayan v Metro South Hospital and Health Service [2023] QIRC 36
2 citations
Jump To
Cite 1 - [2023] QIRC 36
Cite 2 - [2023] QIRC 36
White v Queensland [2017] QIRC 41
2 citations
Jump To
Cite 1 - [2017] QIRC 41
Cite 2 - [2017] QIRC 41

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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