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  4. Rutherford v RACQ Operations Pty Ltd (No. 2) - [2025] QIRC 207

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Rutherford v RACQ Operations Pty Ltd (No. 2)[2025] QIRC 207

Rutherford v RACQ Operations Pty Ltd (No. 2)[2025] QIRC 207

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Rutherford v RACQ Operations Pty Ltd (No. 2) [2025] QIRC 207

PARTIES:

Julie Rutherford

Complainant

v

RACQ Operations Pty Ltd

Respondent

CASE NO:

AD/2023/96

PROCEEDING:

Anti-Discrimination - Referral of Complaint

DELIVERED ON:

7 August 2025

HEARING DATES:

1, 2 and 3 July 2024

DATE OF LAST SUBMISSION:

22 October 2024

MEMBER:

Caddie IC

HEARD AT:

Brisbane

ORDERS:

  1. That the complaint of requesting unnecessary information is substantiated.
  1. That the complaint of direct discrimination on the basis of family responsibilities as carer for a person with an impairment is substantiated.
  1. That the complaints of direct discrimination on the basis of impairment are dismissed.
  1. That the complaints of indirect discrimination are dismissed.
  1. That the complaint of victimisation is dismissed.
  1. That the Respondent pay to the Complainant, within 28 days:

a.   $25,000 for general damages.

  1.   That the parties are to bear their own costs.

CATCHWORDS:

ANTI-DISCRIMINATION – REFERRAL OF COMPLAINT – direct discrimination – indirect discrimination – victimisation – requesting unnecessary information – where the Complainant alleges direct discrimination on the basis of impairment and family responsibilities – where the Complainant alleges the Respondent's policies on hours of work and training amount to indirect discrimination on the basis of impairment – where the Complainant alleges victimisation – where the Complainant alleges the Respondent requested unnecessary information in relation to the Complainant's husband's medical status – consideration of comparator – where no comparator provided – where decision-maker must establish a comparator in the absence of one being contended by Complainant – where direct discrimination on the basis of family responsibilities as a carer for a person with an impairment is substantiated – where the complaint of direct discrimination on the basis of impairment is dismissed – where the complaint of indirect discrimination is dismissed – where the complaint of victimisation is dismissed – where the complaint of requesting unnecessary information is substantiated – consideration of the compensatory nature of damages  – consideration of the rule against double recovery – where damages are awarded.

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) ss 5, 6, 7, 8  9, 10, 11, 15, 25, 33, 35, 36, 103, 108, 124, 129, 130, 133, 136, 141, 166, 204, 205, 206, 209, sch 1

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 132A

Work Health and Safety Act 2011 (Qld) ss 3, 17, 18, 19

CASES:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

Briginshaw v Briginshaw (1938) 60 CLR 336

Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258

Grant v John Grant Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23

Haines v Bendall (1991) 172 CLR 60

Minister for the Environment & Heritage v Greentree (No 2) [2004] FCA 741

Motlap v Workers' Compensation Regulator [2020] QIRC 196

Neil v Lee [2024] QIRC 93

Petrak v Griffith University & Ors [2020] QCAT 351

Rutherford v RACQ Operations Pty Ltd [2024] QIRC 145

Schipp v The Star Entertainment Qld Ltd; Minister for Education and Minister for Industrial Relations v The Star Entertainment Qld Ltd [2019] ICQ 9

Vairy v Wyong Shire Council (2005) 223 CLR 422

Waters v Public Transport Corporation (1991) 173 CLR 349

Watson v Foxman (1995) 49 NSWLR 315

APPEARANCES:

Ms J. Rutherford, appearing in person as the Complainant.

Mr M. Payten of the Respondent, appearing on behalf of the Respondent.

Ms C. Ellison of the Respondent, appearing on behalf of the Respondent (day 3).

Reasons for Decision

Relevant Background and Chronology

  1. [1]
    Ms Julie Rutherford started working at RACQ on 19 May 1986, at the age of 18 years old.[1] RACQ was Ms Rutherford's employer for the following 36 years, until her termination on 1 April 2022.[2] Ms Rutherford worked in various customer service roles during her tenure, and won the RACQ Sales Consultant of the Year State Award in 2011.[3] Ms Rutherford's hours of work have varied over the years following successive flexible working arrangements.[4] In 2013 Ms Rutherford worked on average 22 hours per week increasing to 25 hours in 2018,  and down to 20 hours in 2019.
  1. [2]
    Ms Rutherford is the carer of her husband, who suffers from Multiple Sclerosis (MS) and Churg-Strauss syndrome.[5] Ms Rutherford also suffered an injury to her thoracic spine in August 2019.[6]
  1. [3]
    On 10 September 2019, a medical certificate issued by Dr McMaster stated Ms Rutherford was totally incapacitated for work until 10 October 2019.[7] Correspondence from Dr Liang (Neurosurgeon) on 14 October 2019 advised that Ms Rutherford would need to look after her posture, an anti-fatigue mat would be necessary if she would be standing for long periods, and that she would likely be better alternating between standing and sitting. Ms Rutherford's period of incapacity was extended by further GP certificates of Dr McMaster to 25 October 2019, when she was certified fit to make a graduated return to work, on an initial maximum of 10 hours per week.[8]
  1. [4]
    Correspondence from Mr Rick Schultz (RACQ Injury Management Specialist) to Mr Thomas Bell (Member Engagement Manager) on 11 September 2019 acknowledged that Ms Rutherford was entitled to lodge a workers' compensation claim if she considered her condition was work-related, and that RACQ needed to be proactive in managing her time off work and where possible support an early return to duties. Mr Schultz proposed that information regarding how to lodge a claim included in the email should be passed on to her.[9] Ms Rutherford at Hearing gave uncontested evidence she was never informed in relation to making a workers' compensation claim pursuant to this email.[10] Ms Rutherford returned to work on 4 November 2019 on reduced shifts of three hours per day, three days per week.[11]
  1. [5]
    On Ms Rutherford's return to work, RACQ organised for Mr Zietek, an occupational therapist consultant, to conduct a worksite evaluation report. The report, dated 6 November 2019, noted Ms Rutherford's role in the concierge area required extended periods of standing, and in his opinion, she could do such in the order of 20-30 minutes at a time.[12] Mr Zietek further recommended that Ms Rutherford would need to regularly vary her postures every 20-30 minutes and engage in regular short walks around the store. Mr Zietek noted Ms Rutherford would be best suited to working seated at a bench desk, as well as performing short consults at the standing desk located at the front of the store.[13] Mr Zietek noted the proposal regarding an anti-fatigue mat and opined a better option would be for Ms Rutherford to avoid prolonged periods of static standing.[14]
  1. [6]
    A six-week suitable duties plan was devised and agreed to by Ms Rutherford and RACQ. In the first two weeks Ms Rutherford was to work three shifts totalling 10 hours, in the next two weeks work three shifts totalling 12 hours, and in the final two weeks work four shifts totalling 15 hours. No shifts were to be longer than four hours.[15] On 19 December 2019, Ms Rutherford indicated to Mr Zietek that at the end of the six-week period, she was not confident of her ability to work seven hour shifts, and she sought to stay working up to 15 hours per week. Mr Zietek recommended to RACQ that Ms Rutherford's shift duration be graduated depending on medical advice.[16]
  1. [7]
    On 27 December 2019, Dr McMaster completed an RACQ Work Capabilities Form which noted Ms Rutherford was unfit for normal duties, though could return to normal duties with restrictions of reduced hours of four hours per day, three days per week, totalling 12 hours.[17] Dr McMaster on 17 March 2020 recommended five hours per day, three days per week, totalling 15 hours.[18] Ms Rutherford never worked more than 12 hours per week during this return to work period.[19]
  1. [8]
    On 12 February 2020, Ms Rutherford's position title was changed to Member Engagement Specialist.[20] At Hearing, Ms Rutherford clarified that 'Specialist' denoted greater experience and capacity to deal with more complex insurance products.[21]
  1. [9]
    On 20 February 2020, Mr Schultz sent an email to relevant RACQ managerial staff, including Mr Bell. He noted that while the store manager Ms Judi Fitch did not consider 15 hours per week as operationally viable for the store, RACQ needed to explore whether it could be accommodated.[22] Mr Schultz asked that Mr Bell have a formal discussion with Ms Rutherford and ask what her preferred work arrangements were, whether her medical condition and/or other factors influenced her preferred working hours, and if her doctor had provided an opinion about her ability to work 20 hours per week in the long-term. Mr Bell responded on 21 February 2020 advising that Ms Rutherford's main factor influencing her hours was her medical condition, and no opinion was expressed about working 20 hours per week.[23]

The Advent of the Covid-19 Pandemic 

  1. [10]
    In March 2020, the COVID-19 pandemic began to impact Queensland. In evidence, Mr Schultz described this as being a chaotic time for RACQ. RACQ directed retail staff to wear face masks, Perspex screens were installed in work locations, and the number of people in a store at a given time was controlled.[24] Some of these measures, particularly installation of Perspex screens, took a number of months.[25] The executive of RACQ was described as being empathetic towards staff and allowing those who wanted to take leave to take it – particularly where persons in a family were vulnerable.[26]
  1. [11]
    Following a discussion with Mr Bell, Ms Rutherford commenced leave on 23 March 2020.[27] On 24 March Mr Schultz followed up Mr Bell by email asking if the reduced hours linked to Ms Rutherford's graduated return to work could be accommodated. Mr Bell in his reply, advises the hours could be accommodated however Ms Rutherford had "decided to go on indefinite leave until the COVID storm passes."[28] In cross-examination, Mr Schultz confirmed there were no concerns with Ms Rutherford's level of productivity and graduated increase in hours at the time she commenced this leave.[29]
  1. [12]
    Ms Rutherford exhausted accrued leave entitlements on 11 May 2020 and was approved to take unpaid leave from that date for a further month with an end date of 7,[30] or 8 June 2020.[31] Ms Rutherford described this initial period as leave she took "in order to protect my husband from getting ill."[32]

Concerns for the health of Ms Rutherford's husband

  1. [13]
    In preparation for the conclusion of her leave without pay Ms Rutherford advised Mr Bell she intended to return to work.[33] She described:

In May 2020, I instigated my return to work, but someone at RACQ – I have no idea which department – decided that I couldn't return without a clearance letter from my husband's doctor.[34]

  1. [14]
    By email on 26 May 2020, Mr Bell advised Ms Judi Johnson (Regional Manager) that he had called Ms Rutherford to explain that she would need her husband's doctor to send through details regarding it being okay for her to go back to work as follows: [35]

Hey Judi,

I rang and spoke to Julie Rutherford and explained about requiring Dimitri's (sic) doctor to send through details regarding it being ok for Julie to go back to work.

Julie mentioned that she had asked his lung specialist last week if she thought she was being too cautious by not being at work and the specialist advised that she didn't think so and that if Julie goes back to work she should only do that if she can then isolate from Dimitri (sic).

Julie advised that she is going to contact the lung specialist and see if she can get clearance, if they can't get that specialist they will see Dimitri's (sic) GP.

Julie advised that working at home would not be an option for her own mental health.

If you require any further information please let me know.

Talk soon,

…

  1. [15]
    Ms Rutherford subsequently sought the medical clearance requested. On 27 May 2020, a medical certificate from Dr Wong stated the following:

I have no objections to Mrs Julie Rutherford returning to work from 11 June 2020. Her husband has got chronic illnesses. Julie is aware that during the COVID-19 pandemic, there are risks involved with face to face client contact. However she is willing to take these risks at this stage, as the risk is currently low. She will review her decision if the COVID-19 situation deteriorates.[36]

  1. [16]
    Ms Rutherford emailed Dr Wong's letter to Mr Bell, on 29 May 2020. Along with the attached letter, she stated:[37]

Hi Tom,

I hope this is okay, he really didn't know what to write.

He is happy for me to work as long as customers adhere to social distancing etc and there are no new local outbreaks.

I will see you in a couple of weeks, yippee

  1. [17]
    Mr Bell responded on 1 June 2020, stating he would contact head office to determine next steps. Mr Bell emailed Mr Schultz on 3 June 2020 seeking advice.[38] Mr Bell indicated in the email:

When discussing Julie's return to work I advised her that she would need to provide a medical clearance from Dimitri's (sic) doctor that it's ok for her to return to work given his vulnerable status.

At that point Julie advised that Dimitri's (sic) lung specialist had already advised her that she did not believe Julie should go back to work due to the risk, and that if she could she could work from home. Failing that if she was to go back to work that she would then be advised to self-isolate from Dimitri. (sic)

Julie advised that she couldn't self-isolate, and that she doesn't want to work from home as that would not suit her own mental health. Julie advised she would go and see Dimitri's (sic) GP and get him to give the ok. At the time I had discussed with her my uneasiness with this considering what she had told me about the lung specialist's comments and that COVID seems to affect those with respiratory issues.

  1. [18]
    RACQ does not dispute that Mr Bell's actions were as outlined in this email. Mr Payten (in cross-examination), acknowledged that it was "very clear" from Mr Bell's email that a clearance was required, and it arose from a "very significant health concern" and "some clarity from the specialist would be sought."[39] However, Mr Payten emphasised that Ms Rutherford formed a view, having considered the specialist's recommendation, that she would continue to take leave. Mr Payten's evidence was that:

MS RUTHERFORD: Wasn't my return to work subject to acquiring a letter or you acquiring a letter from my husband's specialist?

MR PAYTEN: Yes, you were required to – well, you were asked to obtain – yes, updated advice from your specialist and – and a clearance, but then after advising of your conversation with the – with the specialist, you advised that you were happy to continue taking leave.

  1. [19]
    Ms Keisha Boutwood (Manager of Human Resources Business Partnering) was included in the correspondence. When Ms Boutwood was cross-examined by Ms Rutherford as to why RACQ required this information, she said:[40]

MS RUTHERFORD: Well, given that this [Ms Rutherford's medical clearance] has been supplied, would that not indemnify RACQ against my husband getting sick?

MS BOUTWOOD: It's not that. It's more that we want to ensure that we're providing a safe working environment for you and ensuring that also that your partner was safe. So, as I said previously, given the initial guidance from the specialist that it was unsafe for you to work within that environment, my advice, as the HR practitioner, at the time, was to ensure that we got updated advice from that same person, given they had the full oversight and history of your husband's condition.

  1. [20]
    Mr Schultz replied to Mr Bell on 3 June 2020, indicating that RACQ could support a work from home arrangement. Mr Schultz sought that Mr Bell arrange for Ms Rutherford to send photos of her home workstation. When Mr Bell clarified by reply email that Ms Rutherford considered working from home to be unsuitable, Mr Schultz emailed the following:

In the absence of any willingness to WFH – I do not see Julie's husband's specialist as providing a medical approval for her circumstances.

If there is no 'back of office' duties available (hence limiting contact with the public), I would say Julie would need to access any accrued leave/leave no pay until the restrictions are further lifted in the community and she can return to the workplace without fear of potentially exposing her husband. I do feel we are really running out of options.

  1. [21]
    On 8 June 2020, Ms Rutherford emailed Mr Bell to advise she had tried to contact the specialist without success but would follow up the next day.[41]
  1. [22]
    On 9 June 2020, Ms Rutherford sent the following email to Mr Bell:[42]

Hi Tom,

I spoke to Dmetri's thoracic specialist (Dr Raelene Bowman) today via phone and she said there is no way she can confirm that he is not at risk of catching COVID19 if I return to work. She is unable to provide this in writing without a formal request being made by my employer. This request would need to be made in writing to the Superintendent of the Prince Charles Hospital and would also incur a cost.

I know I have the option to work from home but as Dmetri is generally housebound and I would need to work from our dining table, I personally don't think this is the best option for us. I would actually prefer to be in the branch as it's my little escape but I fully understand why this isn't an option at the moment. I am also mindful of my own back issue and know how to deal with the suggested recommendations in the branch but this may not be possible at home. I'm happy to do phone shifts in the branch but I also understand if that's not an option.

At this stage, I'm happy to continue taking leave without pay as this seems to be the only workable option at the moment.

I hope I get to see you guys soon.

  1. [23]
    Mr Bell responded on 11 June 2020, stating he was looking forward to "catching up some time in the future." He advised Mr Schultz by email on the same day that Ms Rutherford decided to continue leave without pay due to the specialist not giving clearance.
  1. [24]
    In cross-examination, Ms Boutwood confirmed that Mr Bell had said to her at that time "that Julie would continue on leave without pay in the absence of receiving the required clearance."[43]
  1. [25]
    In a handwritten chronology, Ms Rutherford indicated Mr Bell called her on 3 September 2020. Ms Rutherford stated:[44]

Tom rang and asked what I wanted to do and I told him I wanted to work. He suggested that I could work in the call centre at EMP, I said that I would do that or work on the phones in any branch. He again said that work in a branch wasn't an option without the clearance letter. He said he would find out my options but I heard nothing at all from him or RACQ.

A period of delay

  1. [26]
    There is then a gap of six months in communication between Ms Rutherford and RACQ from 4 September 2020 to 15 March 2021. There is some dispute as to whether the call from Mr Bell on 3 September 2020 happened. If it did not occur, the gap in communication was nine months (12 June 2020 – 15 March 2021).
  1. [27]
    In cross-examination RACQ questioned why Ms Rutherford did not contact Mr Bell, Mr Schultz or any other HR officers in the interim.[45] Ms Rutherford stated she was waiting for contact from RACQ, as per her 9 June 2020 email, RACQ needed to contact her husband's specialist.[46] RACQ put to Ms Rutherford that she did not contact anyone from RACQ because she knew the status and had decided not to return to work. Ms Rutherford stated she did not understand that proposition.[47] It was further noted in Ms Boutwood's evidence in response to a general question, that RACQ's HR would not reach out to contact incapacitated workers on a regular basis.[48]
  1. [28]
    On 15 March 2021, Ms Rutherford visited the RACQ North Lakes store. She spoke with Ms Nicky Edwards (Member Engagement Manager), advising she was ready to return to work, however, had never heard back from Mr Bell about whether she could.[49] In an email from Ms Edwards to Mr Schultz that same day, Ms Edwards noted:

I spoke to Tom today 15/3 and he told me that the last conversation he had with Julie was approx. 6-9 months ago, where he told Julie that we need a letter from her husband's specialist lung doctor before she can return to work. That was the last time he spoke to her and Tom said we have never received a letter from her husband's doctor from Julie.

  1. [29]
    In cross-examination, Ms Edwards accepted that Mr Bell's words meant that RACQ required a letter from Ms Rutherford's husband's specialist before she could return to work.[50] Ms Edwards further admitted that she only became aware that Ms Rutherford needed to provide a letter from her husband's specialist after speaking with Mr Bell.[51] After speaking with Mr Schultz, Ms Edwards understood Ms Rutherford could return to work if a Work Capabilities Form was completed clearing her for work based on her own capacity.[52]
  1. [30]
    On 19 March 2021, Ms Hutchesson (Finance Sector Union) wrote to Mr Payten (then General Manager Employee Relations and Corporate Legal).[53] Ms Hutchesson noted that Ms Rutherford was directed not to return to the workplace due to her husband's condition, that she has had to use her own leave entitlements, and she has not been paid for a year whilst willing and able to return to work. Ms Hutchesson asserted it was unreasonable and discriminatory on the basis of 'her relation to a person with an impairment', to prevent Ms Rutherford to return to work and requested that she be recredited her exhausted leave entitlements and unpaid wages.
  1. [31]
    Mr Payten responded on 29 March 2021. He stated that Ms Rutherford was offered (but declined) work from home, that she decided to stay on leave, and that at no point was Ms Rutherford directed not to work. This is a point Mr Payten re-affirmed in cross-examination.[54] Mr Payten stated Ms Rutherford was welcome to return to work at any time, including in-store work. He also attached a Work Capacity Certificate that he had become aware of as a result of preparing his response to the FSU in late March 2021. The certificate stated that Ms Rutherford was totally incapacitated for work during the period of 8 October 2019 – 8 January 2021.[55]
  1. [32]
    On 1 April 2021, Ms Hutchesson replied that Ms Rutherford had provided Mr Bell a medical clearance in June 2020,[56] though Mr Bell did not consider the letter sufficient. Ms Rutherford's notes of the contested 3 September 2020 telephone call with Mr Bell also indicated she could not return to work without the clearance.
  1. [33]
    A file note written by Ms Edwards outlined a conversation she had with Ms Rutherford on 7 April 2021.[57] The note provided the following:

Rang Julie and said to Julie that I had been speaking to Rick one of our Health and Injury Managers about Julie returning to work and said to Julie that we really want you to come back to work as soon as possible, we will just need a work capabilities form completed. I said that when you came in here recently you said to me that Demetri's (sic.) health was not a concern for you returning to work, with the current Covid outbreaks is that still the case.?" (sic.) Julie said, I can definitely return to work, there is no concern at all to Demetri's (sic.) health at all, the only reason I have not come back is because Tom Bell told be (sic.) that I couldn't until I had clearance from Demetri's (sic.) specialist, the letter I had already got from the GP back in October 2019 giving clearance wasn't good enough. I have emails to prove this.

…

Julie said, "I even told Tom I could work on the phones, and Tom said he would find out if that was an option, but I never heard from him."

…

Julie said, "I just feel weird, like HR are against me. I will have to speak to my solicitor. I might email her today. Luckily I have emails saying that I was prepared to come back to work and proving I could come back to work". You know I would be quite happy to come back and just concierge."

  1. [34]
    On 20 April 2021, Dr Chan completed an RACQ Work Capabilities Form indicating Ms Rutherford was suited to working three hours per day, two days per week, for a total of six hours per week to start.[58] This is substantially less time than Ms Rutherford was approved to work prior to her period of leave. A further RACQ Work Capabilities Form was completed by Dr Sharma on 20 July 2021, indicating Ms Rutherford was suited to work the same period as recommended by Dr Chan.[59] Both Dr Chan and Dr Sharma's completed forms indicated Ms Rutherford was unable to sit for longer than 20-30 minutes at a time, and she would need to alternate between sitting and standing.

Attempted return to work

  1. [35]
    Ms Rutherford returned to work on 4 May 2021 but was not working in her substantive role.[60] Ms Rutherford was undertaking on-line training,[61] followed by duties of a concierge role. Ms Rutherford considered she was not permitted to return to her usual role and was instead 'put' in the role of concierge.[62] The role of concierge was described as a 'very basic meet and greet' role.[63] Unlike a person employed in a Member Engagement role, a designated concierge would not deal in insurance products or financial services.[64]
  1. [36]
    Ms Jennifer Vaughn (Member Engagement Manager) gave evidence that Ms Rutherford was put into the concierge role so that she could return to work, and to allow standing and sitting and alternating workspace.[65] Ms Barbara Easton (HR Business Partner) gave evidence that she understood from the medical reports it would be a risk for Ms Rutherford to return to her previous role, and RACQ had attempted to make reasonable adjustments and considered other roles.[66] This view was supported by Mr Schultz.[67] In cross-examination of Ms Rutherford, while indicating she was not sure what training the concierge role required, she agreed with the proposition that as she was not an authorised representative while undertaking concierge duties, those duties must not require a person to be authorised.[68]
  1. [37]
    Ms Rutherford understood that 'changes while she was on leave, including introduction of anti-hawking laws and mandatory scripting, meant she would have to un-learn things she already knew about selling insurance products'.[69] She also had never done banking training,[70] and a further 10 weeks of 'full-time' training at Eight Mile Plains would be required in order to return to a Member Engagement role.[71] The training to resume her role was required given the period of time Ms Rutherford had been away from work and her previous certification as an authorised representative had lapsed.[72] Irrespective of the time away from work, as a Customer Service Specialist, she would need to undertake training in banking products.[73]
  1. [38]
    Ms Rutherford considered that she was set up to fail, as HR was aware of her impairment when she was put 'permanently' in the concierge position.[74] However, she acknowledged in cross-examination that she said she would be happy to return in that role.[75] Ms Rutherford further considered that she was treated unfavourably, being refused a reduction in working hours and workstation adjustments. Mr Schultz and Mr Turner (Manager Health and Safety) confirmed that an anti-fatigue mat and Varidesk were considered but deemed unsuitable in a retail branch environment.[76] Regarding further reductions in hours, RACQ noted that by this point Ms Rutherford was only working six hours per week but being paid at her usual pay rate for 25 hours.[77]
  1. [39]
    Ms Rutherford ceased work entirely at the end of July 2021.[78] On 5 August 2021, Dr Chan completed a further RACQ Work Capabilities Form, which indicated Ms Rutherford was unfit for work with no proposed date of review. Dr Chan considered that after three and a half months of working reduced hours both Ms Rutherford's setup and concierge role were unsuitable, causing Ms Rutherford continuing pain. Future training requiring constant sitting was also deemed unsuitable.[79]
  1. [40]
    Ms Rutherford indicated there was a second period of non-contact from RACQ from 5 August 2021 until being contacted by Ms Easton on 25 January 2022. The evidence however shows that Ms Rutherford's line manager at this time Ms Vaughn initiated regular contact with Ms Rutherford, as would usually be the case. Ms Vaughn prepared file notes of these conversations with Ms Rutherford at the request of Mr Schultz.
  1. [41]
    A file note taken by Ms Vaughn on 22 November 2021 recounts the following interaction with Ms Rutherford:[80]

Julie's comments – Has some emotional days, not being at work is like ending a 35 year relationship, so some days are pretty sad and depressing. Currently feels uncomfortable and feels uneasy about the current situation. Feels in limbo between what is happening and not being at work and who she can reach out to as it is not the ideal situation for her to be in.

  1. [42]
    An email from Ms Vaughn on 12 January 2022, to Ms Easton, noted the following conversation with Ms Rutherford:

Julie then raised a few points and has requested some information about and would like a call from HR about the following.

  1. –Julie wanted information about why Tom said she was required to provide a letter in order for her to return to work, but when Nicky took over the branch this was not required. I mentioned that was out of my scope and I would forward the question on.
  1. –Julie would also like to know what is going to happen going forward, is she going to be made redundant, does she need to resign etc.
  1. –Julie mentioned even if she was to return she does not think she would be mentally able to relearn the job as so much has now changed, and this would cause her great anxiety.
  1. [43]
    Following the email of 12 January 2022, Ms Vaughn was instructed to cease contacting Ms Rutherford. In cross-examination Ms Vaughn acknowledged she was aware that Ms Easton was now Ms Rutherford's case manager.  
  1. [44]
    On 31 January 2022, RACQ wrote to Ms Rutherford. RACQ stated that due to Ms Rutherford's time outside of the business, she would require comprehensive training of system, product, legislative and regulatory changes and bank training. Some components would require her to be able to be trained for periods of more than 25 hours per week.[81] RACQ noted it needed to determine whether Ms Rutherford would be safe in the workplace and requested that she provide medical advice regarding her work capacity, restrictions, necessary accommodations for consideration, treatment affecting her ability to perform, and the prognosis of her condition. A medical questionnaire was provided to Ms Rutherford for this purpose. Ms Rutherford was sent a letter requesting this information on 2 February 2022.[82]

Events leading to the termination of Ms Rutherford's employment

  1. [45]
    Dr Chan completed the medical questionnaire on 3 March 2022, indicating Ms Rutherford was unable to return to work indefinitely.[83] Dr Chan stated the proposal of Mr Zietek in November 2019 for Ms Rutherford to rotate between desks was not feasible, as change was too frequent and inconvenient. Dr Chan stated Ms Rutherford could not work in the circumstances, as proposals for a single sit-stand desk and anti-fatigue mat were rejected. The completed questionnaire was provided to RACQ on 9 March 2022.[84]
  1. [46]
    Ms Easton had several telephone calls with Ms Rutherford to discuss her options including proposed termination of employment. Unbeknownst to RACQ until these proceedings, these calls were recorded by Ms Rutherford.[85] In the recordings, Ms Easton raises with Ms Rutherford that her medical questionnaire finds her to be unable to return to work indefinitely. Medical termination and resignation were both canvassed with Ms Rutherford. Ms Rutherford questioned whether medical redundancy was possible and alternatively asked if there were other roles available for her.
  1. [47]
    On 22 March 2022, RACQ wrote to Ms Rutherford, asking her to show cause why her employment should not be terminated on medical grounds, in circumstances where RACQ believed Ms Rutherford was unable to meet the inherent requirements of her role.[86] In a further call with Ms Easton, Ms Rutherford ultimately accepted termination on medical grounds. Ms Rutherford stated, "you did a really great job, I couldn't imagine being terminated by anyone better."[87]
  1. [48]
    Ms Rutherford's employment was terminated on 1 April 2022.[88]

Ms Rutherford's other legal proceedings

  1. [49]
    Whilst on her period of unpaid leave in 2020-2021, Ms Rutherford saw Dr Brown, who completed a Workers Compensation Medical Certificate on 23 October 2020, finding her "unable to work at all from 8 October 2019 to 8 January 2021."[89]
  1. [50]
    Ms Rutherford filed a s 132A application (Assessment of Degree of Permanent Impairment 'DPI') with WorkCover on 4 November 2020,[90] which was accepted on 16 March 2021.[91] This application was lodged following rejection of her 'out of time' claim for workers compensation. In her evidence, Ms Rutherford indicated she was attempting to claim workers compensation as she suffered a temporary aggravation of her injury whilst on leave later in June 2020 and was concerned about future loss of bladder control and risk of paralysis.[92]
  1. [51]
    Associated with the s 132A WorkCover claim, and considered by RACQ personnel in the substantive matter, were the following reports:
  • An independent medicolegal report was produced by Dr Foxcroft on 19 November 2020. It relevantly found Ms Rutherford developed a clinically significant Adjustment Disorder with Mixed Depressed and Anxious Mood, following the August 2019 workplace injury.[93] Dr Foxcroft found her back injury was the sole cause of her psychiatric impairment, and described her as a reasonable and believable historian.[94] Dr Foxcroft however described Ms Rutherford's prognosis as poor, and scored her with a whole person impairment of 7% on the PIRS scale.[95] In an addendum, Dr Foxcroft notes due to Ms Rutherford's psychological injuries, she had limitations in the type of work she could perform, requiring lower stress positions due to poor concentration and decreased efficiency.[96]
  • Another independent medicolegal report of Dr Tomlinson on 19 February 2021, estimated Ms Rutherford had a 13% whole person impairment relating to her thoracic spine injury.[97]
  • A further independent medicolegal report of Dr Beheshti estimated Ms Rutherford had a 0% whole person impairment relating to a work-related aggravation of a pre-existing degenerative thoracic spine condition. Ms Rutherford's incapacity for work as it related to her illness stopped by the end of October 2019, when she was cleared to work on suitable duties. Dr Beheshti opined that since mid-March 2020, the most important barrier for Ms Rutherford's return to work was her husband's health and vulnerability to COVID-19.[98]
  • On 4 March 2021, an occupational therapy report was completed by Dr Micah Perez, which concluded it would be appropriate for Ms Rutherford to work part-time in the future, however noted she was at a disadvantage on the open labour market.[99] Ms Rutherford's employment would require regular breaks to allow her to alternate her posture and would need a specialist workstation assessment and the provision of ergonomic equipment.[100]
  1. [52]
    A personal injury claim against RACQ was filed in the District Court on 14 October 2021.[101] This claim concerned injuries to Ms Rutherford's back, her psychological injuries, and associated losses.[102] This matter was resolved in a Deed of Release executed on 5 January 2022.[103] Details of the Deed are discussed as relevant later in this Decision.

Anti-Discrimination claim details

  1. [53]
    Ms Rutherford filed a complaint in the Queensland Human Rights Commission ('QHRC') on 31 May 2022, alleging impairment discrimination in the area of work.
  1. [54]
    The complaint was accepted pursuant to ss 136 and 141 of the Anti-Discrimination Act 1991 (Qld) ('AD Act') including 'out of time' allegations.
  1. [55]
    The parties participated in conciliation before the QHRC, however the matter was not resolved. It was referred to the Queensland Industrial Relations Commission ('the Commission') on 8 September 2023, pursuant to s 166(1)(a) of the AD Act.
  1. [56]
    Ms Rutherford's Statement of Facts and Contentions ('SOFC') was filed in the Commission on 17 November 2023. It contained additional claims of victimisation and requests for unnecessary information.
  1. [57]
    Prior to Hearing, I made an interlocutory decision granting RACQ leave to amend their SOFC following the parties' filed Outlines of Argument.[104]
  1. [58]
    RACQ asserted Ms Rutherford's SOFC was vague, poorly particularised and did not support any cause of action. Despite this RACQ made a coherent response to the parts of Ms Rutherford's case they considered relevant to the AD Act.  At Hearing, significant documentary and oral evidence was given and examined, related to the core issues of Ms Rutherford's complaints and exemptions argued, in the event the Commission upheld any part of those complaints.
  1. [59]
    In response to Ms Rutherford's closing submissions, RACQ indicated Ms Rutherford is seeking to prosecute a claim of direct discrimination based on 'family responsibilities' or alternatively 'relation to a person with an impairment' that is not contained within her SOFC. The alleged conduct related to Ms Rutherford being prevented from returning to work in June 2020 unless she supplied a medical clearance from her husband's doctor related to risks to his health.
  1. [60]
    While not explicit, the allegation is implicit in the facts and contentions related to the alleged request for unnecessary information and the contention that the request was used for the discriminatory purpose of preventing her return to work because of her husband's health concerns.[105] RACQ squarely denied they prevented Ms Rutherford's return to work at all, let alone for any discriminatory purpose. Further, as acknowledged by RACQ in their closing submissions and at Hearing, significant parts of the documentary and oral evidence adduced and examined related to this question as a real issue in the proceeding.[106]
  1. [61]
    The key test as to whether a matter subject to an argument on pleadings is whether it is a 'real issue in the proceeding'.[107] Any relevant controversy must have already been identified as a matter in dispute between the parties.[108] The court should not take an unduly narrow approach as to what constitutes the 'real issues', which may extend beyond the pleadings.[109] However, they do not include entirely new issues never previously agitated between the parties.[110]
  1. [62]
    I conclude this is not an entirely new issue never previously agitated between the parties. It was clearly agitated in the documentary and oral evidence before the Commission, even if inadequately pleaded.
  1. [63]
    The specific addition of the alternate attribute of 'relation to a person with an impairment' does not appear to take us anywhere. Ms Rutherford's relation to a person with an impairment arises from her family responsibilities as the full-time carer of her husband, who has an impairment. The two attributes arise from the same factual circumstances, and the alleged conduct is the same.
  1. [64]
    Ms Rutherford has ultimately made allegations on numerous bases for direct discrimination by RACQ in the work area, as well as allegations for indirect discrimination, victimisation, and requesting unnecessary information.
  1. [65]
    Ms Rutherford's closing submissions also refer to matters that are completely outside of the scope of the AD Act.[111] Those matters will not be considered further as they are not within the jurisdiction of the Commission in the present matter. I note RACQ has limited themselves to responding to the matters within scope of this proceeding.[112]
  1. [66]
    It is not disputed between the parties that the Commission has jurisdiction to hear and decide Ms Rutherford's complaint.

Statutory framework relevant to the complaints

  1. Discrimination at work in relation to certain attributes
  1. [67]
    Section 6 of the AD Act sets out a purpose of the Act being to promote equality of opportunity by protecting everyone from unfair discrimination in certain areas of activity. This is to be achieved by prohibiting discrimination that is on a ground set out in part 2; of a type set out in part 3 and in an area of activity set out on part 4; unless an exemption set out in part 4 or 5 applies.
  1. [68]
    Chapter 2 part 2 identifies prohibited grounds of discrimination. It is unlawful to discriminate in the workplace on the basis of certain attributes.
  1. [69]
    Section 7 sets out the attributes as follows:

7 Discrimination on the basis of certain attributes prohibited

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

…

  1. (h)
    impairment;

…

  1. (p)
    family responsibilities;
  1. (q)
    association with, or relation to, a person identified on the basis of any of the above attributes.
  1. [70]
    The relevant meanings of 'family responsibilities' and 'relation' is set out as follows:

family responsibilities, of a person, means the person's responsibilities to care for or support –

  1. A dependant child of the person; or
  1. Any other member of the person's immediate family who is in need of care or support.

…

relation, in relation to a person, means relation to the person by blood, marriage, affinity or adoption, and includes a person who is wholly or mainly dependent on, or is a member of the household of, the first person.

  1. [71]
    Discrimination on the basis of an attribute is defined in part 2 s 8 of the Act.

8  Meaning of discrimination on the basis of an attribute

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

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

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. [72]
    Chapter 2 part 3 defines prohibited types of discrimination. Section 9 prohibits direct and indirect discrimination.
  1. [73]
    Direct discrimination is defined in s 10:

10 Meaning of direct discrimination

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

…[113]

  1. (2)
    It is not necessary that the person who discriminates considers the treatment is less favourable.
  1. (3)
    The person's motive for discriminating is irrelevant.

…

  1. (4)
    If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
  1. (5)
    In determining whether a person treats or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
  1. [74]
    Indirect discrimination is defined in s 11:

11 Meaning of indirect discrimination

  1. (1)
    Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term —
  1. (a)
    with which a person with an attribute does not or is not able to comply; and
  1. (b)
    with which a higher proportion of people without the attribute comply or are able to comply; and
  1. (c)
    that is not reasonable.
  1. (2)
    Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example —
  1. (a)
    the consequences of failure to comply with the term; and
  1. (b)
    the cost of alternative terms; and
  1. (c)
    the financial circumstances of the person who imposes, or proposes to impose, the term.
  1. (3)
    It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
  1. (4)
    In this section —

term includes condition, requirement, or practice, whether or not written.

…

  1. [75]
    Chapter 2, part 4 of the Act identifies the areas of activity in which discrimination is prohibited and exemptions that apply in relation to those areas. Division 2 Subdivision 1 sets out prohibitions in work and work-related areas. Relevantly s 15 deals with 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
  2. in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
  3. in dismissing a worker; or
  4. by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
  5. in developing the scope or range of such a program; or
  6. by treating a worker unfavourably in any way in connection with work.
  1. In this section –

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

  1. [76]
    Subdivision 2 sets out the exemptions for discrimination in work and work-related areas. Relevantly s 25, s 35 and s 36 provide:

25 Genuine occupational requirements

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

…

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
  2. 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.

36 Circumstances of impairment

  1. (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 the circumstances of the impairment would impose unjustifiable hardship on the first person.
  1. (2)
    Whether the circumstances of the impairment would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including for example –

(a)  the nature of the impairment; and

(b)  the nature of the work or partnership.

  1. [77]
    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. (a)
    the nature of the special services or facilities; and
  1. (b)
    the cost of supplying the special services or facilities and the number of people who would benefit or be disadvantaged; and
  1. (c)
    the financial circumstances of the person; and
  1. (d)
    the disruption that supplying the special services or facilities might cause; and
  1. (e)
    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. [78]
    Chapter 2, Part 5 of the AD Act sets out the general exemptions for discrimination. Those relevant to this matter are as below:

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. Victimisation
  1. [79]
    Ms Rutherford has alleged victimisation following lodgement of her personal injury claim. Section 129 of the AD Act provides that a person must not victimise another person. Victimisation is defined in the following section:

130 Meaning of victimisation

  1. (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. (a)
    because the complainant, or a person associated with, or related to, the complainant —
  1. (i)
    refused to do an act that would amount to a contravention of the Act; or
  1. (ii)< /span>
    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. (iii)
    is, has been, or intends to be, involved in a proceeding under the Act against any person; or
  1. (b)
    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. (2)
    In this section, a reference to involvement in a proceeding under the Act includes—
  1. (a)
    making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
  1. (b)
    involvement in a prosecution for an offence against the Act; and
  1. (c)
    supplying information and producing documents to a person who is performing a function under the Act; and
  1. (d)
    appearing as a witness in a proceeding under the Act.

(c) Request for unnecessary information

  1. [80]
    Section 124 of the AD Act provides that a person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based. The section includes a number of exceptions where requests are necessary under other legal provisions or orders:

124 Unnecessary information

  1. A person must not ask another person, either orally or in writing, to supply   information on which unlawful discrimination might be based.
  2. Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by-
  1. an existing provision of another Act; or
  2. an order of a court;

…

  1. It is a defence for a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.
  2. In this section –

existing provision means a provision in existence at the commencement of this section.

Example –

An employer would contravene the Act by asking applicants for all jobs whether they have impairments, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.

Vicarious liability

  1. [81]
    Section 133 of the AD Act deals with vicarious liability. It states:

133 Vicarious liability

  1. If any of a person's workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
  1. (2)
    It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.
  1. [82]
    RACQ is the only named Respondent to the proceedings. RACQ denied it is vicariously liable as alleged or at all, as the allegation is unintelligible and they took reasonable steps to prevent their employees from contravening the Act. In practical terms, RACQ has defended the actions of its employees as they related to Ms Rutherford in the present matter.

Burden of proof

  1. [83]
    Section 204 of the AD Act provides that it is for Ms Rutherford to prove, on the balance of probabilities, that RACQ contravened the Act. Any exemptions RACQ seeks to rely on must be raised by RACQ and proved on the balance of probabilities that it applies, per s 206.
  1. [84]
    The standard of evidence is summarised in Briginshaw v Briginshaw, which provides that in determining whether evidence allows that degree of persuasion that amounts to proof of an allegation on the balance of probabilities, the Tribunal of fact must bear in mind the gravity of the allegation made and the seriousness of the consequences to a party against whose interest any adverse finding might be made.[114] The decision maker must be reasonably satisfied or feel an actual persuasion or feel comfortably satisfied that they have reached the right decision.[115]
  1. [85]
    Section 205 further provides that for allegations of indirect discrimination, RACQ must prove, on the balance of probabilities, that a term complained of is reasonable.

Evidence and submissions

  1. [86]
    A three-day Hearing commenced on 1 July 2024. Ms Rutherford's written closing submissions were filed on 26 August 2024. RACQ's written closing submissions were filed on 4 October 2024. Ms Rutherford's closing submissions in reply, dealing with matters of law only, were filed on 22 October 2024.
  1. [87]
    The evidence of eight witnesses and four exhibits (including three volumes of documents and a USB containing four audio recordings), together with the written closing submissions of each party, were considered in this Decision. While medical records and reports were tendered by agreement and referred to by both parties, no expert medical evidence was adduced.

What are the key issues to be determined?

a) Direct discrimination

  1. [88]
    There are four questions to be decided in relation to direct discrimination:
  1. i.
    Does Ms Rutherford have an attribute of having an impairment or family responsibilities/relation to a person with an impairment?
  1. ii.
    Was Ms Rutherford treated, or proposed to be treated, less favourably than another person (either a real or hypothetical comparator) without said attributes, in circumstances that are the same or not materially different?
  1. iii.
    If less favourable treatment occurred, was the substantial reason discriminatory?
  1. iv.
    Is RACQ able to establish a defence under the AD Act?

b) Indirect discrimination

  1. [89]
    There are three questions to be decided in relation to indirect discrimination:
  1. i.
    Did management impose a term or terms with which a person with the relevant attributes does not or cannot comply with?
  1. ii.
    Would a higher proportion of people without the relevant attributes comply or be able to comply to the term/s?
  1. iii.
    Is RACQ able to demonstrate the term/s were reasonable?

c) Victimisation

  1. [90]
    The single question for determination in relation to victimisation is whether Ms Rutherford was victimised within the meaning of s 130 of the AD Act.

d) Request for unnecessary information

  1. [91]
    There are three questions to be decided in relation to a request for unnecessary information:
  1. i.
    Did RACQ request information from Ms Rutherford on which unlawful discrimination might be based?
  1. ii.
    Was the information necessary to comply with or specifically authorised by an existing provision of another Act, an order of a court or tribunal, or a provision of an industrial instrument?
  1. iii.
    Was the information reasonably required for a purpose that did not involve discrimination?

Approach to fact-finding

  1. [92]
    In Motlap v Workers' Compensation Regulator, O'Connor VP observed:[116]
  1. [36]
    In assessing the evidence, let me respectfully adopt the approach of McKenna J who described his fact-finding process in a paper delivered at the University College, Dublin in 1973:

This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to be the more probable, the plaintiff's or the defendant's ?[117]

  1. [93]
    In assessing the evidence in this matter, I also respectfully adopt this approach. Consequently, I do not intend to take up the invitation of RACQ of forming views of the evidence in part, based on their assessment of the witness' demeanour. As noted in the Hearing, I considered questions about Ms Vaughn's own claims against RACQ to be irrelevant. It was unreasonable for RACQ to question Ms Vaughn's credibility as a witness, whilst relying on the parts of her oral evidence supportive to their case. Identifying bare opinion in any relevant evidence would have sufficed.
  1. [94]
    I do however acknowledge that RACQ greatly assisted the Commission and proceedings by taking Ms Rutherford through the document bundles and history of the matter in some detail in her cross examination. This has ensured the material relevant to the questions to be decided is properly before the Commission.
  1. [95]
    I also note that several of the relevant events in this matter occurred many years in the past. Unsurprisingly recollections of each of the witnesses were at times impacted by fading memory or confused dates. I draw no negative inference from this. While it is proper for inconsistent evidence to be highlighted and weighed against other available material and testimony in order to find facts it is not of itself evidence of dishonesty.
  1. [96]
    The principle in Watson v Foxman, as expressed by McClelland CJ, is also relevant:[118]

Human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Witnesses

  1. [97]
    There were two witnesses for Ms Rutherford's case:
  1. a.
    Ms Julie Rutherford (the Complainant); and
  1. b.
    Ms Jennifer Vaughn (Customer Service Manager).
  1. [98]
    There were six witnesses for RACQ's case:
  1. c.
    Ms Barbara Easton (former RACQ Human Resources Business Partner);
  1. d.
    Ms Keisha Boutwood (former HR Business Partner and now Manager of RACQ Human Resources Business Partnering);
  1. e.
    Mr Ricky (Rick) Schultz (RACQ Injury Management Specialist);
  1. f.
    Mr Sean Turner (RACQ Head of Health and Safety);
  1. g.
    Ms Nicole (Nicky) Edwards (former RACQ Northlakes Customer Service Manager, now RACQ Regional Manager); and
  1. h
    Mr Matthew Payten (RACQ; General Manager of Employee Relations), who represented the Respondent throughout the proceedings.[119]
  1. [99]
    Mr Thomas Bell, a former Manager of Ms Rutherford, was not called to give evidence.

Mr Bell was not available

  1. [100]
    Much of the evidence before the Commission considered the actions of Mr Bell. In her closing submissions, Ms Rutherford noted Ms Boutwood was in frequent contact with Mr Bell, and RACQ did not tender in evidence any file notes or material made by Mr Bell.[120] In her evidence, Ms Boutwood described Mr Bell as a regular user of her services for guidance on 'people matters'. As far as she was aware he acted in accordance with her advice and would always follow up with an email.[121]
  1. [101]
    RACQ had listed Mr Bell as a witness to be called but later advised he was not available due to undergoing surgery.[122]
  1. [102]
    While it would have been natural for Mr Bell to be called so that he could provide evidence of his dealings with and about Ms Rutherford directly, RACQ confirmed that Mr Bell "at all times, acted in accordance with the advice from the RACQ's human resources and health and safety personnel, and the key communications pertinent to this matter are in writing."[123] For their part, RACQ was content to present their case through the available evidence.
  1. [103]
    These are matters which Ms Rutherford was questioned about in cross-examination. However, without Mr Bell being called, Ms Rutherford had no opportunity to cross-examine him. Ms Rutherford was advised by RACQ that Mr Bell was no longer available and would be removed from their witness list on 25 June 2024. On 26 June 2024, Ms Rutherford indicated by email she had no objection. At Hearing Ms Rutherford further indicated she would extend her questioning of Mr Schultz who was directly involved at all relevant times and advising Mr Bell.
  1. [104]
    There are issues in dispute such as the contested phone call on 3 September 2020 that would have benefitted from the direct testimony of Mr Bell, but I will address them as they relate to my consideration of the questions to be answered.

Findings of fact

  1. [105]
    Ms Rutherford's attributes of 'impairment' and having 'family responsibilities' as carer to her husband, who is also impaired, are not in dispute.[124]
  1. [106]
    I will address each of the relevant allegations below.

Direct Discrimination

  1. [107]
    Ms Rutherford's claims of direct discrimination relate to the following questions:
  1. a)
    Was Ms Rutherford prevented from returning to the workplace from May/June 2020 to 4 May 2021? (relevant attribute of family responsibilities/relation to a person with an impairment)
  1. b)
    Was Ms Rutherford forced into working in the concierge role? (relevant attribute of impairment)
  1. c)
    Was Ms Rutherford refused a reduction in working hours, workstation adjustments, and/or access to relevant training? (relevant attribute of impairment)
  1. d)
    Was Ms Rutherford dismissed or forced to retire? (relevant attribute of impairment)
  1. [108]
    I will consider each of these questions as the first step.  Should any of these questions be answered in the affirmative, the next question is whether RACQ would have treated a staff member without the relevant attribute/s differently in circumstances that are the same, or not materially different.
  1. [109]
    Finally, Ms Rutherford must establish that her 'impairment' or 'family responsibility/association' was the cause of, or substantial reason for, her treatment.

a) Was Ms Rutherford prevented from returning to the workplace?

  1. [110]
    While the particulars of this claim have varied over time, the evidence confirmed that when COVID hit in earnest in March 2020 branch employees were offered the opportunity to work from home or take leave if they were vulnerable or had a vulnerable family member. Ms Rutherford, following a conversation with Mr Bell, took up this opportunity. She proceeded on paid leave, followed by leave without pay due to conclude 8 June 2020.
  1. [111]
    This complaint relates to what occurred when Ms Rutherford sought to return from her agreed absence.
  1. [112]
    Ms Rutherford contacted Mr Bell on or around 25 May 2020 to initiate her return to work. It is not contested that her purpose for the discussion was to confirm the days and hours of work.  By email dated 26 May 2020, Mr Bell advised Ms Johnson that he had called and spoken to Ms Rutherford to advise her she was required to get a clearance from her husband’s doctor in order to return. He recounted the earlier conversation with Ms Rutherford in which she stated the specialist had previously indicated serious concern about a return to work unless she could self-isolate from her husband. The email advised Ms Rutherford was going to contact the specialist to try to get clearance and if they could not get the specialist they would see the GP.[125]
  1. [113]
    The next day Ms Rutherford saw her General Practitioner Dr Wong, who provided a medical certificate for her return to work from 11 June 2020,[126] whilst acknowledging the risks present in a pandemic for her husband and her preparedness to accept those risks. This was sent to Mr Bell under cover email dated 29 May 2020, indicating the doctor did not know what to write however was happy for Ms Rutherford to work provided customers adhered to social distancing requirements and there were no new local outbreaks. She signs off – "I will see you in a couple of weeks, yippee". Mr Bell replied on 1 June 2020 that he will forward on and await next steps from head office.
  1. [114]
    Following this response the evidence confirmed a series of management discussions and emails being exchanged in relation to the proposed return to work including those from 3 June 2020 summarised above in paragraphs [17] to [20].
  1. [115]
    At some stage between 1 June 2020 and the email sent by Ms Rutherford on 8 June 2020 advising she had unsuccessfully tried to contact the specialist, Mr Bell called Ms Rutherford and advised that the GP's medical clearance letter was not sufficient and that it would need to come from her husband’s specialist.  This is due to the previously reported comments from the specialist about her husband's vulnerable status and the potential serious risk to him associated with her in-branch role.
  1. [116]
    In this telephone call (if it was the only call) I conclude it is probable that Mr Bell had outlined Ms Rutherford's options, in the absence of a clearance from her husband's specialist. These options were articulated in the email from Mr Schultz to Mr Bell and others on 3 June 2020:

In the absence of a willingness to work from home – I do not see Julie’s husband's Specialist as providing a medical approval for her circumstances.

If there is no back of office duties available (hence limiting contact with the public), I would say Julie would need to access any accrued leave/leave no pay until the restrictions are further lifted in the community and she can return to the workplace without fear of potentially exposing her husband. I do feel we are really running out of options.

  1. [117]
    These options are all predicated on Ms Rutherford not being able to return to her usual place of work in her customer-facing role unless the specialist clearance was obtained. This requirement was imposed by RACQ and was a precondition to Ms Rutherford's return to the Branch.
  1. [118]
    While clear that Mr Bell (fully supported by RACQ) genuinely believed this was necessary, given Ms Rutherford's reports on what the specialist had previously said, there can be no doubt that her return to her usual workplace was contingent on a medical clearance related to her husband. At this stage, she was being prevented from resuming work due to factors objectively not related to her own capacity.
  1. [119]
    Ms Rutherford did contact her husband's specialist who, as expected, indicated she could not guarantee that Ms Rutherford's husband would not be at risk of catching COVID should she return. By email dated 9 June 2020, Ms Rutherford informed Mr Bell of this and set out the process by which the employer should formally request the information they required for her return.
  1. [120]
    Ms Rutherford then proceeded to address the options in the absence of the required clearance. She advised she does not have any appropriate set up to work from home, being out of home is good for her (mental health) and while she knew how to deal with her own back injury issues and recommendations in the branch environment, this might not be possible at home. She said she would do phone shifts (presumably out the back) in the branch but understands if that is not an option. This leads her to state:

At this stage, I'm happy to continue taking leave without pay as this seems to be the only workable option at the moment.

  1. [121]
    Noting these options largely mirror those laid out by Mr Schultz on 3 June 2020, I find that this is a correct summation of her circumstances. It is objectively correct, and supported by Ms Rutherford's evidence, that she believed this was the only available workable option as a temporary measure while RACQ obtained the required specialist advice. That is not the same as Ms Rutherford considering the advice of the specialist and choosing to remain on unpaid leave indefinitely.
  1. [122]
    While it was asserted that Ms Rutherford was offered, but refused, phone-based work from home "as she does not prefer this work,"[127] this is not supported by the available evidence. It is not contested and widely known that Ms Rutherford prefers face to face work.  In Mr Payten's email to the FSU, he conflated her refusal to work from home with refusing an offer to perform phone-based work. Her refusal to work from home is based on the reasons outlined in her email of 9 June 2020 to Mr Bell – none of which is because she objected, as a matter of preference, to phone-based work. In that email Ms Rutherford made a direct offer in relation to phone-based work in the branch location but ''understands if that is not an option at the moment.''
  1. [123]
    Mr Bell in his email of 3 June 2020, appeared to rule out Ms Rutherford doing phone-based work out the back of the branch, as Ms Rutherford does not prefer it, but at no stage can it be seen that the offer was directly made and refused for any reason, let alone her preferences. It is this statement from Mr Bell that seemed to lead Mr Schultz to form the view that if there are not options for back of house duties and given the unlikelihood of the clearance being attainable, Ms Rutherford staying on leave was emerging as the only remaining option.
  1. [124]
    In the notes of the contested phone call of 3 September 2020 between Mr Bell and Ms Rutherford, it is implied that any branch role would not be suitable without the clearance.
  1. [125]
    Mr Bell's belief that the specialist clearance requirement was ongoing is verified in the uncontested conversation between Ms Edwards and Mr Bell on 15 March 2021, in which he confirmed he had spoken to Ms Rutherford six to nine months ago,[128] and had told her a letter from her husband's doctor was needed before she could return to work. That letter had never been received. In cross-examination, Ms Boutwood confirmed Mr Bell had advised her that Ms Rutherford would remain on leave without pay in the absence of receiving the required clearance.
  1. [126]
    To suggest this was a choice she freely exercised or that she was free to return at any time (as proposed in Mr Payten's letter to the FSU in March 2021) is not accurate.
  1. [127]
    I find that Ms Rutherford was prevented from returning to her role in the Northlakes Branch in June 2020 without a clearance related to her husband's impairment, even though she was able to do so.
  1. [128]
    Why RACQ and Ms Rutherford then allowed the absence to continue beyond what could be reasonably described as 'at this stage' or 'at the moment', is a separate matter for consideration later in this Decision.

b) Was Ms Rutherford forced into working in the concierge role?

  1. [129]
    When Ms Rutherford returned to the Northlakes Branch in May 2021 it was based on a Work Capacity Certificate that stated she could work three-hour shifts, two days per week to start. Her return followed a 14-month absence, and she had ceased to be an authorised representative for insurance products - a requirement for her substantive role.
  1. [130]
    While there was some confusion in the evidence of Ms Vaughn and Ms Edwards about who the Manager was at the time of Ms Rutherford's return, it was not contested that there was on-line training Ms Rutherford needed to complete upon her return, which she did at the back of the Branch. Some of that training was generic mandatory training and some of it was required as a precursor to the relevant training for a customer engagement role.[129] The training records showed training occurred between 4 May 2021 and 7 July 2021.
  1. [131]
    At some stage, Ms Rutherford is shifted from only undertaking this on-line training to also undertaking duties associated with the concierge role. Ms Vaughn gave evidence that this was at the direction of Ms Amanda Cooper, however confirmed the role was identified as one that enabled Ms Rutherford to best manage the standing and sitting requirements of the Work Capacity Certificate.
  1. [132]
    The file note of the conversation between Ms Edwards and Ms Rutherford on 7 April 2021 records (and Ms Rutherford admits) she was willing to return to a concierge role in order to get back to work. In cross-examination, Ms Edwards said she thought this was because "you were happy to come back as concierge because you were, like, concerned about the amount of training that you would need to endure going back to a specialist role."[130]
  1. [133]
    Ms Rutherford further admitted in cross-examination that being an authorised representative was not a requirement for the performance of concierge duties and that, at the time of her return, she was not an authorised representative.
  1. [134]
    I have reviewed the transcript references Ms Rutherford identified in closing submissions to demonstrate she was instructed to permanently perform the concierge role. I do not agree the evidence supports that proposition. The testimony of Mr Schultz was that moving Ms Rutherford to the concierge position was based on it aiding her recovery as she could vary her postures and it was consistent with the medical clearance. Ms Edwards discussed the e-learning training being part of the requirement for Ms Rutherford to return to her substantive position with the concierge role coming after her departure from the branch. Ms Edwards was not involved in these considerations, as reflected in her evidence. Rather, I conclude that the performance of concierge duties was a temporary measure to get Ms Rutherford back to work, given the medical requirements and her not yet being authorised for performance of her substantive position. 
  1. [135]
    In Ms Rutherford's closing submissions, she acknowledged she was still a substantive Customer Service Specialist and was continuing to be paid as such. Common sense would suggest that had Ms Rutherford been permanently appointed to the concierge role her remuneration would reflect this. There would have then been no need for the concierge position to be advertised.[131] Ms Rutherford stated in her Outline of Argument that she was still considered to be a Member Engagement Specialist, but no one had ever discussed when she could return to that job.[132]
  1. [136]
    I conclude the graduated return-to-work process ceased when Ms Rutherford provided the capabilities certificate that found her 'unfit for work' with no date of review in August 2021.[133] This certificate indicated that the duties and set up for the role of concierge were not suitable.
  1. [137]
    I find that Ms Rutherford was not 'forced' to work in the concierge role. Ms Rutherford was not authorised to sell insurance products at the time of her return so was not able to immediately resume her substantive position. Concierge duties did not require authorisation, so was identified by the parties as a role that would get Ms Rutherford back to work. Further, it was considered to best suit the requirements to vary from sitting and standing and to be mobile around the branch.
  1. c)
    Was Ms Rutherford refused a reduction in working hours, workstation adjustments, and/or access to relevant training?

Reduced hours

  1. [138]
    During Ms Rutherford's employment, as her personal circumstances changed, RACQ supported successive flexible work arrangements.[134] This was admitted by Ms Rutherford in cross-examination.[135] When Ms Rutherford was injured and returned to work in 2019, Mr Schultz committed to actively support her return to work. This included paying her (via sick leave) for the difference between her pre-injury hours and the actual hours of work. Right up until March 2020, when she commenced leave due to COVID concerns, the evidence showed Ms Rutherford was supported through a graduated return to work guided by the medical advice. This support was provided, despite the hours arrangements not being operationally convenient.[136] Mr Schultz gave evidence that the reasonable adjustments provided for Ms Rutherford were suitable duties and restricted hours.[137]
  1. [139]
    Prior to Ms Rutherford commencing leave in March 2020, Mr Schultz consulted Mr Bell to ensure the graduated return hours of work could be accommodated. Mr Bell confirmed they could, however advised Ms Rutherford had decided to proceed on leave.
  1. [140]
    When Ms Rutherford returned to work in May 2021, a limit of six hours work per week was accommodated. While at some stage the graduated return to work would have had to address the training requirements (including banking training) this was necessarily halted when Ms Rutherford was certified as unfit for work on 5 August 2021. This evidence demonstrated that Ms Rutherford was not denied reduced working hours.

Workstation adjustments

  1. [141]
    Much has been made of the requirements for a sit-stand desk and anti-fatigue mat amidst claims that at least six medical professionals have called for this to be provided on at least eight occasions.
  1. [142]
    The original letter of 3 October 2019 from Dr Liang to Dr McMaster says (emphasis added): [138]

The most important things at work are that she does not heavy lift and she should look after her posture which will necessitate an anti-fatigue mat if she is standing for long periods and she is likely better alternating between standing and sitting.

  1. [143]
    In the Worksite Evaluation Report, Mr Zietek noted the recommendation for an anti-fatigue mat with prolonged standing; however, opined Ms Rutherford should avoid prolonged periods of static standing in the ongoing management of her condition.[139]  At this stage, neither health professional had mentioned a sit-stand desk. All that is recommended is alternating between sitting and standing and consideration of how that might be achieved in the branch environment.
  1. [144]
    In her email of 9 June 2020,[140] Ms Rutherford advised Mr Bell she knew how to apply the suggested recommendations in the branch environment.[141] This logically reflected her experience with the 2019/2020 return to work process, where no anti-fatigue mat or sit-stand desk had been provided. Neither were recommended in the six-week suitable duties programme authored by Mr Zietek and signed and taken very seriously by Ms Rutherford.[142] None of the Work Capabilities Forms signed by Dr McMaster between December 2019 and 17 March 2020 reference either of these required aids.
  1. [145]
    In the Work Capability Certificate issued by Dr Chan,[143] in relation to Ms Rutherford's return to work in May 2021, there is a reference to Mr Zietek's note of 8 November 2019.[144] Dr Chan wrote:
  1. requires ergonomic seating and set up
  2. Avoid prolonged static posturing – change posture every 20-30 minutes (i.e. between sitting and standing.
  1. [146]
    These requirements are not materially different to those Ms Rutherford knew how to manage in 2019/2020. The same restrictions are listed in the subsequent Work Capabilities Form.[145] The next capabilities form signed 5 August 2021 certified Ms Rutherford as unfit for work with no date of review.  The incapacity for work was linked to her deployment to the concierge role and deemed the 'set up' as unsuitable.[146]
  1. [147]
    The Medical Questionnaire completed by Dr Chan on 3 March 2022 provided the first clear statement that Mr Zietek's proposal in 2019 was considered impractical. Dr Chan stated the more practical alternative to moving around the branch to alternate between sitting and standing would be the provision of a single sit-stand desk. He indicated his understanding the sit-stand desk and the fatigue mat had been rejected.[147] Dr Perez's report dated March 2021, identified the provision of an anti-fatigue mat and sit-stand desk would assist Ms Rutherford "obtain and sustain alternative employment in the future."[148]
  1. [148]
    To the extent these adjustments were specifically required or recommended, it is not contested that Ms Rutherford was not provided with a sit-stand desk or an anti-fatigue mat by RACQ.

Access to training

  1. [149]
    The oral evidence provided about training requirements was confusing and contradictory. The clearest evidence was provided by Ms Boutwood, who confirmed that as Ms Rutherford had been absent from her role for more than 12 months she would be treated like a new starter and required to do the full training of between four and six months.[149]
  1. [150]
    Ms Boutwood described the components of the training:

So initially, it's a classroom training environment that is required to be completed full-time. So the four-month period I was referring to is including insurance products, but if an employee is extending their skill set to also selling banking, they would need to complete additional training which would take them up into that six-month period. Post-classroom training environment we section those people into groups; which are called rock pooling, so they can learn from each other. There's a mentoring process that happens, there's some on-the-job training, they would be listening in to other calls from current qualified staff. [150]

  1. [151]
    Irrespective of her time away from her role, Ms Rutherford would have been required to undertake banking training as the merger of the separate components of the business had been completed. This training was provided on a full-time basis, either in-person or by remotely attending the training delivered at Eight Mile Plains.
  1. [152]
    Ms Boutwood explained provision of training on a part-time basis of 25 hours per week had been trialled, without success.[151]
  1. [153]
    Ms Rutherford contended she was denied access to this training due to her medical restrictions resultant from her impairment and placement into the concierge role. That was despite having successfully completed many e-learning modules since her return to work in May 2021. I have already found that Ms Rutherford was not permanently placed into the concierge role. In relation to the medical restrictions inherent in Ms Rutherford's graduated return to work, those ceased to be relevant at the point Ms Rutherford's doctor certified her as being completely unfit for work indefinitely on 5 August 2021.
  1. [154]
    It is not contested that the training (as described by Ms Boutwood) would have been a requirement for Ms Rutherford to resume her role as Member Engagement Specialist and that significant components of it would have needed to be completed on a full-time basis. However, the May 2021 graduated return to work process ceased upon receipt of the medical certificate that stated Ms Rutherford had no capacity to work  - not even for the six hours per week that she had previously been cleared to perform, and that future training requirements requiring constant sitting would be unsuitable.
  1. [155]
    For the foregoing reasons, I find that Ms Rutherford was not denied access to the training.

d) Was Ms Rutherford dismissed or forced to retire?

  1. [156]
    Ms Rutherford's employment was terminated by RACQ on 1 April 2022.
  1. [157]
    Ms Rutherford was certified as indefinitely incapacitated for work on 5 August 2021, following an unsuccessful graduated return to work that commenced three months earlier on 4 May 2021. Dr Chan identified issues with the role, set-up and future training requirements in the Work Capacity Certificate.
  1. [158]
    On 5 January 2022, Ms Rutherford reached a financial settlement with respect to her Workcover personal injury claim, executed in a Deed of Release. One week later,[152] Ms Rutherford asked Ms Vaughn some questions and requested responses from RACQ's HR Department. Ms Vaughn emailed the following questions to Ms Easton the same day.[153]
  1. –Julie wanted information about why Tom said she was required to provide a letter in order for her to return to work, but when Nicky took over the branch this was not required...
  1. –Julie would also like to know what is going to happen going forward, is she going to be made redundant, does she need to resign etc.
  1. –Julie mentioned even if she was to return she does not think she would be mentally able to relearn the job as so much has now changed, and this would cause her great anxiety.
  1. [159]
    Following this email, Ms Vaughn was directed to cease contact with Ms Rutherford. Ms Easton commenced management of Ms Rutherford's matter from that time.
  1. [160]
    Four telephone conversations then occurred between Ms Easton and Ms Rutherford. The second to fourth calls were all followed by formal correspondence from RACQ that set out required actions or outcomes. Following the first telephone call, Ms Rutherford sent Ms Easton: Dr Perez' Report dated 4 March 2021, Dr Wong's clearance letter of 27 May 2020 and the six-week suitable duties plan prepared by Mr Zietek in November 2019. The telephone calls occurred on 25 January 2022, 2 February 2022, 22 March 2022 and 1 April 2022.[154] These calls were recorded by Ms Rutherford without Ms Easton's knowledge or consent. The audio recordings were tendered into evidence by Ms Rutherford.[155]
  1. [161]
    Ms Rutherford's employment was terminated following production of additional medical evidence, identification of potential alternate positions, reviewing of reasonable adjustments, and a show cause process. 

Telephone call 1

  1. [162]
    A significant part of the first call between Ms Rutherford and Ms Easton pertained to issues surrounding her failed attempt to get back to work in May/June 2020 and the unsuitability of the actual return process in May 2021. During the call Ms Easton tried to redirect the conversation to Ms Rutherford's current options, now her permanent impairment claim was resolved.  In the context of Ms Rutherford's continuing substantive role, Ms Easton outlined the options as:
  1. Return to work – after provision of updated medical information about her capacity to return safely and successfully, given all the changes that have happened. Ms Rutherford acknowledged her anxiety about returning.
  1. Resignation – at Ms Rutherford's election.
  1. [163]
    Ms Rutherford asked if those were the only two options. Ms Easton confirmed that was the case, given the position still existed. Ms Easton encouraged Ms Rutherford to consider the pros and cons. Ms Rutherford indicated she was open to another role, though was unable to elaborate further as this was the only "job she had ever done." Ms Rutherford suggested such alternative may be a "menial job" though it would have to comply with medical restrictions given she was at risk of paralysis if her back was reinjured.
  1. [164]
    Ms Easton encouraged Ms Rutherford to consider other possible roles, having already canvassed her options. Ms Rutherford asked about medical redundancy based on an individual's incapacity - rather than a role ceasing to exist. Ms Easton undertook to investigate any such legislative provision that may apply.
  1. [165]
    The conversation reverted to Ms Rutherford's lost leave and income during the period she was unable to return to work without a clearance from her husband's specialist. Ms Easton offered to inquire about these issues. The pair arranged to speak again the following week.

Telephone call 2

  1. [166]
    In the second call on 2 February 2022, Ms Easton reported there is no such thing as a 'medical redundancy.' Ms Rutherford indicated she would absolutely prefer another role, not working with Mr Bell. The conversation turned to concerns raised in Dr Perez' Report, that Ms Rutherford's capacity to undertake pre-injury duties was compromised. This sparked the subsequent correspondence, that required Ms Rutherford to obtain updated medical advice regarding her capacity to perform the requirements of her role, or a suitable alternate role. The conversation addressed the contents of the correspondence and the required next steps. Ms Rutherford asked if she would have to resign if the questionnaire said she was not fit.  Ms Easton foreshadows there would be a process to be followed in that case.  If there was nothing suitable, either her role or another role, there would be a show cause process for termination for incapacity; or Ms Rutherford may decide to resign. Ms Rutherford asked if RACQ would consider that she only has these restrictions because she has a workplace injury. Ms Easton replied that she has already put in a claim about her injury that has been resolved. The current issue was about a return to work. The injury was compensated by the finalisation of the Personal Injury claim. Ms Rutherford replied "…That sounds fair."
  1. [167]
    Ms Rutherford asserted "54 is a bit too young to be retired. I would prefer not to think I'd been terminated if it comes to that I'd prefer resignation."[156]
  1. [168]
    Ms Rutherford then inquired whether Ms Easton had investigated possible payment for the 14-month period she could not work. Ms Easton indicated she had spoken to Ms Boutwood and there was no further payment offered. The Union had not followed up, as Ms Rutherford said she told them to stop wasting their time.  Ms Easton suggested putting a timeline together for RACQ HR Department to consider. Ms Rutherford undertook to forward the relevant details and said, "…Something has gone wrong here. Someone has lied or misinterpreted – it does not sit well with me." Ms Rutherford expressed that she did not trust the company anymore, as RACQ made it impossible for her to return to work for 14 months. That is why retraining was required at all. Ms Easton encouraged Ms Rutherford to provide further details and evidence. RACQ then sent correspondence to Ms Rutherford, seeking the updated detailed medical advice.[157]  Ms Rutherford sent Ms Easton her summary notes about the 14-month absence.[158]
  1. [169]
    Ms Rutherford supplied the updated medical advice from Dr Chan on 9 March 2022.

Telephone call 3

  1. [170]
    The third telephone call to discuss the medical advice and next steps occurred on 22 March 2022. The conversation covered the opinion of Ms Rutherford's doctor that she was fully incapacitated for work indefinitely, unless the physical modifications could be accommodated. The pair discussed the previously rejected modifications as not being suitable in the branch environment, to which Ms Rutherford replied, "Yes, I get that."
  1. [171]
    Ms Easton advised RACQ had looked for other possible roles throughout the business that would suit restrictions as set out by Dr Chan, without success. RACQ would now consider termination of employment on the basis of medical separation.  Ms Easton advised there would be an opportunity for Ms Rutherford to respond in a show cause process that would be set out in a letter. Ms Easton explained the Show Cause Notice response was Ms Rutherford's opportunity to provide any other ideas, further medical advice or information before RACQ made any decision about termination of employment.
  1. [172]
    Ms Rutherford replied "Okay, yep. If I can't keep working, termination on medical grounds I might be able to access income insurance. Only 2 years.  Might be an option." Ms Easton advised Ms Rutherford would have up to 7 days to reply but she should request more time if needed. The next steps following consideration of her response would be another meeting, where Ms Rutherford could have a support person. Ms Rutherford indicated she had provided everything she had.  The OT Report provided she needed to alternate. If that cannot be accommodated, then she cannot work. "So I guess there is not much I can provide really."[159]
  1. [173]
    Ms Rutherford then reagitated the claimed 14-month absence - repeating that the only reason she did not work was RACQ insisted that a letter from her husband's specialist was first required, that then required Ms Rutherford to be retrained.  She insisted payment for the lengthy absence was a just outcome in the circumstances, and repeated details of what occurred. Ms Easton took notes and advised Ms Rutherford she would go back to RACQ again. During that discussion Ms Easton asked Ms Rutherford why she did not contact anyone. Ms Rutherford asserted that the chain of command had to be respected, but in hindsight admitted she should have done more.
  1. [174]
    Ms Easton undertook to see what she could do, before the conversation returned to the show cause process and next steps. Ms Rutherford told Ms Easton that she understood the termination of her employment on medical grounds and sought reassurance there would be no implication of wrongdoing.  Ms Easton relayed the contents of the proposed correspondence. Ms Rutherford replied:

I fully understand. Out of your control. Out of my control. Expected this to happen. Alright by me. It is what it is. Can't change anything all fine, I’m fine with it.[160]

  1. [175]
    Ms Rutherford did not respond to the show cause notice.

Telephone call 4

  1. [176]
    In the final telephone call on 1 April 2022, Ms Easton indicated she would include reference to their verbal conversation in the termination letter; including Ms Rutherford's confirmation that there was nothing further to provide.  Ms Easton advised Ms Rutherford would receive payment in lieu of notice; payment for accrued leave entitlements; a statement of service; and continued access to insurance discounts.
  1. [177]
    The conversation returned to Ms Rutherford's claim of lost leave and income. Ms Easton advised that those amounts were the same as in her settled workers compensation claim. Ms Easton explained Ms Rutherford cannot be paid for that period twice. Ms Rutherford reiterated that was a negligence claim and nothing to do with her being denied work for a discriminatory purpose. Ms Rutherford indicated her intention to pursue the claim and asserted COVID was used as an "excuse to get rid of her."
  1. [178]
    Ms Rutherford mused that being sacked was the end of an era and she had grown up at RACQ. Ms Rutherford remarked that if she were to return to work there though, she would not be in the same mindset because she does not love the company anymore.  Ms Rutherford appeared philosophical about her experience with RACQ and concluded – "Probably all for the best really."  Ms Rutherford then thanked Ms Easton and said – "you have been amazing…helpful and supportive. I appreciated it. I couldn't imagine being terminated by anyone better…I'll pretend I'm retired now."[161]
  1. [179]
    The telephone call was followed by the formal letter of termination that noted the decision was due to Ms Rutherford's inability to perform the inherent requirements of her role as Member Engagement Specialist. The termination was effective immediately.
  1. [180]
    It is not contested that Ms Rutherford's employment was terminated by RACQ on 1 April 2022.

Findings on claimed treatment

  1. [181]
    In relation to the claimed treatment, I have found that:
  1. Ms Rutherford was prevented from returning to her in-branch role in June 2020, without a clearance from her husband's medical specialist.
  2. Ms Rutherford was not forced into the role of concierge during her return-to-work, in the period from May – August 2021.
  3. Ms Rutherford was not denied access to reduced hours.
  4. Ms Rutherford was denied access to workstation adjustments, specifically an anti-fatigue mat and sit-stand desk.
  5. Ms Rutherford was not denied access to training.
  6. Ms Rutherford's employment was terminated by RACQ
  1. [182]
    Having answered three of the questions in the affirmative, I must now consider in each case, whether RACQ would have treated a staff member without the relevant attribute(s) differently, in circumstances that are the same, or not materially different.
  1. [183]
    Finally, Ms Rutherford must establish that her attributes were the cause of, or substantial reason for, her treatment.

Would RACQ have treated a staff member without an 'impairment' or 'family responsibilities' differently?

Identifying a comparator

  1. [184]
    In general, Ms Rutherford failed to identify any comparator (real or hypothetical) to assist  the Commission's consideration of whether the treatment was less favourable and that  the attribute was the cause of (or substantial reason for) the treatment. I do not accept the contention of RACQ that Ms Rutherford's failure to identify a comparator means her case must fail and there is no further work for the Commission to do. 
  1. [185]
    The AD Act requires a comparison to be made between the treatment of a complainant and the treatment of an actual or hypothetical comparator. In a case where there are no actual comparators it is necessary to construct a hypothetical one:[162]
  1. [37]
    Under the wording of section 10, the comparator is a person in the same or not materially different circumstances, but without the attribute. Deciding for this purpose what differences in the circumstances are ‘material’ and what are ‘not material’ can in some cases be a crucial yet necessary exercise. This is what must be decided under the Queensland legislation…
  1. [38]
    Where the task of defining the comparator is difficult, it is helpful to recognise that the comparator is simply a statutory tool enabling the real question to be answered accurately and objectively, with proper regard for the fact that a person may act unconsciously or as a result of unrecognised prejudices …
  1. [39]
    It is also understood that in some cases it will be necessary to make findings of fact and find the reason why before a comparator can be constructed. This is explained in Kalu Brighton and Sussex University Hospitals NHS Trust (2014) where it was said that 'the purpose of making the comparison needs to be understood before a comparator may properly be identified. That this can be the correct approach when necessary in Queensland is also shown by section 10(4), which is engaged when a person has two or more reasons for the less favourable treatment. In such circumstances, the tribunal would need to find whether the attribute was a substantial reason for the treatment, and then proceed to construct a comparator to suit. I discussed this effect in Vuga v Persal & Co Trading Pty Ltd [2017] QCAT 368 and tried to explain why, because of the effect of section 10(4), I needed to distinguish the approach suggested in Purvis v New South Wales (2003) 217 CLR 92 in so far as it differed.
  1. [40]
    As demonstrated by lines of authority in several other jurisdictions in Australia, it is now understood that in appropriate cases, the two step approach in Purvis can be regarded as a single question. However, under the Queensland legislation the comparison of the treatment of the complainant with that of the comparator is necessary even where the reason why is clear. This is a product of the wording of section 10(1), which seems always to require the comparison to be made. As explained in Dovedeen Pty Ltd & Anor v GK [2013] QCA 116, section 10 is akin to a deeming provision and the statutory definition must be applied to decide whether there was direct discrimination on the basis of an attribute. In turn, this means that the characteristics of a comparator must always be identified.
  1. [41]
    In this case, as shown by the characteristics of the comparators which I have chosen, the choice of those characteristics has been informed by findings of fact and the reason why. It seems to me that this is the correct approach in the light of the analysis above. Also it seems to me that it is not inconsistent with Purvis. It is notable that in Purvis the 'reason why' was not in dispute. The appeal proceeded on the premise that the principal had decided to exclude the complainant from the school because of bad behaviour, and it seems clear that the comparator was constructed on that basis, it being said that there was no reason to reject that reason, and that it would be artificial to exclude it. Hence, as stated in Purvis itself, 'the central question will always be – why was the aggrieved person treated as he or she was?'.

Ms Rutherford was prevented from returning to her in-branch role in June 2020

  1. [186]
    I will start with the treatment said to be related to the attribute of 'family responsibilities/association with a person with an impairment.'
  1. [187]
    No comparator has been identified for this claim. RACQ's evidence was that Ms Rutherford's own disclosures about the potential deadly impact of COVID on her husband (given his particular impairment and the views of his specialist, as repeated by her to Mr Bell) led RACQ to specify the requirement for her return to the branch role. Ms Boutwood's evidence was that the purpose of the requirement was to ensure RACQ could provide a safe work environment for Ms Rutherford and ensure her husband's safety.[163]
  1. [188]
    In my view, the appropriate comparator is:

Another customer service employee in the RACQ Northlakes Branch who had no disclosed caring responsibilities for a person in their immediate household with an impairment that has the characteristic of making them highly vulnerable to COVID. The circumstances that are the same, or not materially different, are that they took up the offer of leave for vulnerable staff members at the start of the uncertain COVID period and after a period of three months during which available COVID safety measures have been implemented, they sought to return. 

  1. [189]
    While no evidence has been adduced or examined regarding this, it seems completely implausible that RACQ would have set a requirement that the hypothetical comparator employee could not return unless a medical clearance related to another member of their household was provided. In fact, the evidence of Mr Schultz was that RACQ had the opposite problem with vulnerable employees not wanting to return to the branch environment following that initial period of leave.[164] While it may have been required for the employee comparator to provide their own medical clearance (which Ms Rutherford did in May 2020,[165] and again in April 2021) [166] the nub of the less favourable treatment relates to the requirement for clearance that was unrelated to their own capacity to return.
  1. [190]
    RACQ's defence is that the duty arose because of what they had been told by Ms Rutherford. RACQ then considered a clearance from her husband's specialist was required, prior to Ms Rutherford's return to work in the branch, to guard against endangering his life through the possible spread of COVID.
  1. [191]
    RACQ asserted that, having considered the advice of the specialist, Ms Rutherford herself freely chose to continue leave without pay so there is no discrimination. As found above at [127] I do not accept that Ms Rutherford was able to freely exercise a choice. Free choice would have been a choice between returning to the branch and each of the other available options. The evidence clearly shows that at that point in time, return to the branch was not open to Ms Rutherford. Working from home and back-office duties were considered as mitigation against the requirement that was imposed. For the reasons discussed above those options were not suitable.
  1. [192]
    Ms Rutherford stayed on leave without pay 'for the moment' and 'at this stage' because she was unable to obtain the clearance required to return to work. Ms Rutherford's inability to meet the requirement arose first because it was unlikely the clearance required would be provided by any doctor. Secondly, it was not within Ms Rutherford's power to attain it – the employer would need to request the clearance and do that through formal hospital channels. 
  1. [193]
    In cross examination, Mr Payten agreed to a general proposition that being prevented from returning to work and withholding pay would be unfavourable treatment though rejected the premise that in the case of Ms Rutherford it arose from discrimination based on her husband's impairment.[167]
  1. [194]
    I do not accept this position based on the established conduct (without reference to exemptions pleaded by RACQ at this stage). RACQ admitted that the requirement set for Ms Rutherford arose from a genuine concern regarding the particular risk to her husband, due to the nature of his impairment and the reported views of his specialist. I find this conduct is less favourable treatment arising from the attribute of family responsibilities/association with a person with an impairment. However, as earlier observed, I do not agree that the initial requirement constituting the less favourable treatment explains why the parties then took no action to progress the return to work before Ms Edward's proactive involvement in March 2021.   
  1. [195]
    There is a point at which Ms Rutherford's evidence - that she was patiently awaiting further instructions from the 'line of command' following their contact with the specialist - ceased to be persuasive. The notes from the contested telephone call with Mr Bell on 3 September 2020 reflect no discussion about the status of RACQ contact with the specialist. The call is then followed by a further 6 months of Ms Rutherford patiently awaiting Mr Bell to report back on whether working in the call centre was an option. 
  1. [196]
    I am also not persuaded by the evidence of RACQ that it was the usual practice to let an employee remain on leave without pay, with no contact from any RACQ representative for 9 months. This is inconsistent with other evidence that demonstrated it was an expectation that line managers were responsible for making contact – as was the case with Ms Vaughn in 2021 and 2022.
  1. [197]
    RACQ's retrospective reliance on the Workers Compensation Medical Certificate that indicated Ms Rutherford was herself incapacitated for work until 8 January 2021, does not explain the conduct. That is because it did not exist until 23 October 2020 and only came to the attention of Mr Payten in March 2021 when he responded to FSU representation that Ms Rutherford was being unfairly kept from work. I accept the pandemic was a unique set of circumstances however it does not adequately explain the complete absence of contact over such a significant period.
  1. [198]
    Reviewing the documentary and oral evidence, I conclude there were several factors that contributed to lack of impetus around a return to work. Firstly, Ms Rutherford suffered a temporary but serious aggravation of her condition in late June 2020. This concerned Ms Rutherford as it could have led to paralysis and prompted her to make a workers' compensation claim.  The claim was rejected as it had been lodged 'out of time'. Ms Rutherford attained legal representation and lodged a further workers compensation application for an assessment of permanent impairment. The claim was lodged late 2020 and followed by a series of independent medical assessments between November 2020 and March 2021. The claim for permanent impairment was accepted in March 2021 and paved the way for the claim for damages under Chapter 5 of the Workers' Compensation Act. 
  1. [199]
    During this time Ms Rutherford also contacted the FSU and sought a fee waiver (not help to get her back to work). The Union wrote to RACQ once they discovered she was being kept from work on unpaid leave. Ms Rutherford also contacted the Fair Work Ombudsman and confirmed her refusal to work from home could not be held against her by RACQ. On 15 March 2021, Ms Rutherford visited the Northlakes Branch as she was aware Ms Edwards was the Acting Manager there. Ms Rutherford's absence from work was discussed, and despite being directly discouraged by Ms Rutherford during the visit Ms Edwards is spurred into action to get Ms Rutherford back to work.
  1. [200]
    There may have been a lack of interest or motivation on the part of Mr Bell to actively pursue Ms Rutherford's return but there was not an opportunity to hear directly from him in relation to this. According to his recollection, as reported by Ms Edwards in March 2021, he was still waiting for Ms Rutherford to supply the medical certificate. In the contested phone call between Ms Rutherford and Mr Bell on 3 September 2020 - where alternate roles to get her back to work were identified and to be followed up - it is inexplicable that Ms Rutherford took no action (after a reasonable period) to contact Mr Bell or anyone else to agitate for her own return. Particularly given her evidence that she was in significant financial distress and she was aware Mr Bell was no longer in his role from early March 2021.[168] The actual return was ultimately initiated through the actions of others.
  1. [201]
    To the extent Mr Bell's inaction is said to arise from the requirements related to her own impairment, as I have already found, the evidence shows arrangements in place prior to the COVID period were being accommodated and there were no concerns about the continuation of the graduated return or the work being performed by Ms Rutherford. Other than Ms Rutherford's assertions that COVID was being used as an excuse to keep her from work, perhaps to avoid making reasonable adjustments, there is no evidence linking the requirement to her own impairment.
  1. [202]
    The direct impact of the treatment is contended by Ms Rutherford to be lost income and leave over a 14-month period. As the conduct occurred in June 2020 and she returned to work in May 2021, the maximum relevant absence was 11 months not 14. For the reasons outlined above there is a point at which the ongoing absence ceased to be the sole responsibility of RACQ. The contested phone call with Mr Bell on 3 September 2020 is, in my view, a critical turning point. The 14-month absence is also directly attributed with causing the additional training requirements and linked to Ms Rutherford being terminated and lost future earnings. These matters are discussed in my consideration of that conduct.
  1. [203]
    Given the direct link between the prevented return to her in-branch role and the separate claim of requesting unnecessary information, I will consider that matter next. I will then consider the claimed exemptions for the discriminatory conduct found above and my findings regarding the information request below. I will then resume my consideration of the remaining two claims of less favourable treatment. 

Request for unnecessary information

  1. [204]
    To establish that RACQ has made a request for unnecessary information, Ms Rutherford must prove that RACQ requested she supply information on which unlawful discrimination might be based. This does not apply to information which is necessary to comply with or specifically authorised by an existing provision of another Act, award, or agreement.
  1. [205]
    If established, as a defence, RACQ may prove that on the balance of probabilities, the information was reasonably required for a purpose that did not involve discrimination.
  1. [206]
    Ms Rutherford submitted that there was no legal basis for Mr Bell, and by extension, RACQ, to require her to provide further information from her husband's specialist as a pre-condition for her to be able to return to in-branch work. Ms Rutherford contended that the information request supported discrimination based on her family responsibility as carer for her husband; or because of her connection with a person with an impairment. I have found that to be the case.
  1. [207]
    RACQ submitted that the purpose of requesting that information (and setting the provision of the information as a precondition to her return to work) did not involve discrimination, as it is not information on which a discriminatory decision might be made. RACQ further submitted that the information and conduct was necessary as per its obligations under s 19(2) of the Workplace Health and Safety Act 2011 (Qld) ('WHS Act'). Section 19(2) of the WHS Act provides that RACQ must ensure, so far as is reasonably practicable, the health and safety of other persons is not put at risk from work carried out as part of the conduct of its business.
  1. [208]
    This submission raises a question of statutory interpretation. Section 19 of the WHS Act relevantly provides (emphasis added):

19 Primary duty of care

  1. (1)
    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
  1. (a)
    workers engaged, or caused to be engaged by the person; and
  1. (b)
    workers whose activities in carrying out work are influenced or directed by the person;

While the workers are at work in the business or undertaking.

  1. (2)
    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
  1. (3)
    Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—
  1. (a)
    the provision and maintenance of a work environment without risks to health and safety; and
  1. (b)
    the provision and maintenance of safe plant and structures; and
  1. (c)
    the provision and maintenance of safe systems of work; and
  1. (d)
    the safe use, handling and storage of plant, structures and substances; and
  1. (e)
    the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
  1. (f)
    the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
  1. (g)
    that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking

…

  1. [209]
    In Schipp v The Star Entertainment Qld Ltd,[169] Merrell DP set out the principles of statutory interpretation as follows:
  1. [19]
    The technique of statutory construction is to choose from among the range of possible meanings the meaning which Parliament should be taken to have intended.[170]
  1. [20]
    The plurality consisting of Kiefel CJ, Nettle J and Gordon J in SZTAL v Minister for Immigration and Border Protection[171] summarised the modern approach to statutory construction:
  1. 14.
    The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meeting must be rejected.[172]
  1. [21]
    The meaning of the provision in a statute must be determined by reference to the language of the instrument viewed as a whole[173] and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[174] Further, the purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of relevant provisions.[175]
  1. [22]
    However, it is still the fundamental duty of a court to give meaning to the legislative command according to the terms in which it is been expressed and legislative history and references to pre-existing law should not deflect from the duty of resolving an issue of statutory construction which ultimately is always text-based activity.[176]
  1. [23]
    Section 14A(1) of the Acts Interpretation Act 1954 (Qld) is also relevant. That section provides that in the interpretation of a provision of an Act, interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to that Act provides that 'purpose', for an Act, includes policy objective.

…

  1. [25]
    A consideration of the context of statutory text includes the legislative history and extrinsic materials.[177] The context should be considered at the first instance not at some later stage and context includes things such as the existing state of the law and the mischief the statute intended to remedy.[178] Therefore it is permissible to have regard to extrinsic materials in order to identify the context and purpose of a statutory provision, including the identification of any mischief to which the legislative amendment was directed.[179]
  1. [210]
    The relevant phrase in the section to inspect, is whether the health and safety of another person is not put at risk from work "carried out as part of the conduct of the business or undertaking."
  1. [211]
    Construed in the context of the larger composite phrase, the words 'as part of ', as a matter of ordinary and grammatical meaning, import a connection between the work carried out and the business itself. That is, any duty owed must arise from the conduct of the business itself.
  1. [212]
    The explanatory note to the Work Health and Safety Bill 2011 (as it then was) sets out the objectives of s 19 as follows (emphasis added):

Clause 19 sets out the primary work health and safety duty which applies to PCBUs. The PCBU has a duty to ensure, so far as reasonably practicable, the health and safety of workers that are:

• directly engaged to carry out work for their business or undertaking

• placed with another person to carry out work for that person, or

• influenced or directed in carrying out their work activities by the person,

while the workers are at work in the business or undertaking.

…

For these reasons, the Bill provides a broader scope for the primary duty of care, to require those who control or influence the way work is done to protect the health and safety of those carrying out the work.

Duties of care are imposed on duty holders because they influence one or more of the elements in the performance of work and in doing so may affect the health and safety of themselves or others. Duties of care require duty holders – in the capacity of their role and by their conduct – to ensure, so far as is reasonably practicable, the health and safety of workers that they have the capacity to influence or direct in carrying out work.

…

Duty extends to 'others'

Subclause 19(2) extends whom the primary duty of care is owed to beyond the PCBU's workers to cover all other persons affected by the carrying out of work. It requires PCBUs to ensure, so far as is reasonably practicable, that the health and safety of all persons is not put at risk from work carried out as part of the business or undertaking.

This wording is different to that used in subclause 19(1). Unlike the duty owed to workers in subclause 19(1), the duty owed to others is not expressed as a positive duty, as it only requires that persons other than workers 'not [be] put at risk'. However the general aim of both subclauses 19(1) and (2) is preventative and both require the primary duty of care to be discharged by managing risks (see clause 17).

Specific elements of the primary duty

Subclause 19(3) outlines the key things a person must do in order to satisfy the primary duty of care. The list does not limit the scope of the duties in subclauses 19(1) and (2). PCBUs must comply with the primary duty by ensuring, so far as is reasonably practicable, the provision of the specific matters listed in the subclause, or that the relevant steps are taken. This means that compliance activities can be undertaken by someone else, but the PCBU must actively verify that the necessary steps have been taken to meet the duty.

…

  1. [213]
    Several phrases in the explanatory note provide guidance in the interpretation of s 19(2). The explanatory note refers to the duty as it extends to others as covering all persons "affected by the carrying out of work", and for people not to be put at risk from "work carried out as part of the business or undertaking." The explanatory note as it relates to the primary duty to workers describes it as being "while the workers are at work in the business or undertaking", and the specific elements under s 19(3), while not limiting the scope of s 19(2), are described as key things a person must do to satisfy the primary duty of care. The matters s 19(3) includes all generally relate to safety at the place of work.
  1. [214]
    Similarly, in the Objects of the WHS Act, it details that a main object of the Act is to protect workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work.[180]
  1. [215]
    Each of these factors support the view that s 19(2), properly constructed, requires an 'other' to be a person affected by the work carried out itself, and where the risk to health and safety arises from the work being carried out. This construction is consistent with the context and purpose of the provision and the Act as a whole. It is also consistent with the foundational principle that a duty of care is not owed to the whole world,[181] and the unlikelihood of the legislature intending for duties under the WHS Act to extend beyond those affected by work carried out.
  1. [216]
    The subsequent questions to determine are therefore:
  1. a)
    Firstly, whether the information request can be considered as "necessary to comply with" or "specifically authorised" by s 19(2) of the WHS Act, within the meaning of s 124(2) of the AD Act;
  1. b)
    If affirmative, secondly, whether the spread of COVID-19 in 2020 could properly be regarded as arising from the work carried out by RACQ;
  1. c)
    If affirmative, thirdly, whether Ms Rutherford's husband was a person who was affected by the work carried out by RACQ; and
  1. d)
    If affirmative, finally, whether requiring Ms Rutherford to provide medical clearance for her husband was 'reasonably practicable' in ensuring his health and safety.
  1. [217]
    If the answer to any of the above questions is in the negative, RACQ's claimed defence fails.
  1. [218]
    Each of these questions are considered below.
  1. a)
    Was the information request "necessary to comply with" or "specifically authorised" by s 19(2) of the WHS Act, within the meaning of s 124(2) of the AD Act?
  1. [219]
    The phrase "necessary to comply with" is one which has been subject to judicial consideration in relation to anti-discrimination legislation in other jurisdictions. In Waters v Public Transport Corporation,[182] Mason CJ and Gaudron J said:

As a matter of language, the words of s. 39(e)(ii) are capable of bearing the meaning attributed to them by either construction. Anything that it is necessary to do in order to comply with an exercise of statutory power can, as a matter of language, be said to be necessary "in order to comply with" the legislative "provision" conferring (and expressly or impliedly requiring obedience to) the statutory power. On the other hand, and depending upon context, a reference to what is necessary to comply with "a provision of ... any other Act" can be construed as referring only to what it is necessary to do in order to comply with a specific requirement directly imposed by the relevant provision as distinct from a requirement imposed by some person in the exercise of some power conferred by the provision (cf., e.g., the construction given by the House of Lords in Hampson v. Department of Education and Science (1991) 1 AC 171 to the words "any act of discrimination done ... in pursuance of any instrument"). If the relevant words fell to be construed in isolation, we would favour the wide construction of them. When par.(e)(ii) is construed in its context in the Act, however, it appears to us that the narrow construction is the preferable one…

If s. 39(e)(ii) extended to exempt any act which was necessary to comply with the direct or indirect requirements of a provision of any other Act, s. 39(e)(iii) would be largely surplusage since a statutory instrument made or approved under another Act will ordinarily command obedience by reason of an express or implied provision of that other Act. Moreover, the fact that s. 39(e)(iii) requires "an instrument" made or approved under another Act - that is to say, a formal and written exercise of statutory power or authority which can be readily identified and examined - serves to confirm that it is unlikely that the exemption of s. 39(e)(ii) was intended to extend to less formal and less readily identifiable or examinable exercises of statutory power, such as the oral directive upon which the Corporation relies in the present case.

More importantly, the wide construction seems to us to be inconsistent with the general scheme of the Act. It is one thing to provide that the Act should give way to an express direction contained in an actual provision of another Act or in a statutory instrument. It is a quite different thing to provide, in effect, that the Act shall give way to any subordinate direction, no matter how informal, to which a provision of any other Act requires obedience. In that regard, it would seem inevitable that, if the wide construction is given to the words "necessary ... in order to comply with a provision of ... any other Act" for the purposes of s. 39(e)(ii), a correspondingly wide construction should be given to the words "necessary ... in order to comply with a provision of ... an instrument" for the purposes of s. 39(e)(iii)…

Indeed, if the Corporation's argument be correct, it is difficult to see why the Director-General, an officer not directly responsible to the Victorian Parliament, could not validly give a direction to the Corporation and to the Roads Corporation requiring each of them to exercise its powers and discharge its duties without paying any regard at all to any of the provisions of the Act. Moreover, the undermining of the general scheme of the Act would not be confined to the case where a statutory provision authorizes the giving of directions to those in the service of the Crown. It would extend to any case where an Act or statutory instrument required that one person act in accordance with the directions of another. If, for example, a provision of an Act or of a "statute" or regulation of a university made or approved under an Act (see, e.g., Melbourne University Act 1958 (Vict.), s. 17) required subordinate officers of the university to act in accordance with the directions of the university's council or vice-chancellor, anything necessary to comply with those directions would be exempt from the operation of the Act. If a general provision of a Companies Act happened to provide that the employees of a corporation must act in accordance with the directions of the company's board of directors, the board of any company could effectively remove the affairs of the company from the reach of the Act.

As has been said, s. 31 of the Transport Act did not require the Corporation to do any specific thing. It did not directly impose any obligation upon the Corporation to remove conductors from trams or to introduce scratch tickets. If such an obligation was imposed upon the Corporation, it was imposed by the oral directive of the Minister given pursuant to s. 31. It follows from what has been said above that s. 39(e)(ii) of the Act does not exempt from unlawfulness under the Act whatever it was necessary for the Corporation to do in order to comply with that oral directive. That being so, the provisions of s. 39(e)(ii) are inapplicable and it is unnecessary to consider whether the acts of the Corporation of which complaint is made were in fact "necessary ... in order to comply with" the Minister's oral directive.[183]

  1. [220]
    Similarly, the language of the phrase "specifically authorised" has been considered as implying a distinction between an action authorised under an Act and one which is specifically authorised.[184]
  1. [221]
    Both of these features point to s 124(2) of the AD Act requiring legislative provisions which specifically permits collection of the unnecessary information, as opposed to any provisions providing for general duties.
  1. [222]
    RACQ's actions of preventing Ms Rutherford from returning to her in branch role, unless specialist clearance was provided in relation to her husband’s impairment, is not specifically authorised by s 19(2) of the WHS Act. This section does not exempt RACQ as contemplated by s 124(2) of the AD Act. 
  1. [223]
    If I am wrong about this construction of s 124, I will consider below whether the action is otherwise authorised by s 19(2) of the WHS Act.
  1. b)
    Was the spread of COVID-19 in 2020 a risk arising from the work carried out by RACQ?
  1. [224]
    In considering this question I am reminded of 'housewives' contracting asbestos-related disease from washing their husband's asbestos dust filled work clothes. In that case it was accepted that a connection to their husband's work and a common law duty existed.[185] A significant factual difference to the present matter is that the asbestos dust could only have originated in the workplace, in connection with the work of manufacturing asbestos-based products. That is not the case for exposure to COVID and Ms Rutherford returning to her substantive role. Indeed, as Ms Rutherford clearly stated in her evidence she could be exposed to COVID anywhere.
  1. [225]
    COVID-19 was a declared pandemic, so its spread was a risk potentially existing in any circumstance other than complete isolation.  To that extent, COVID exposure was a risk arising from RACQ's decision to keep their retail workplaces open for customers to attend and conduct their business with RACQ employees.
  1. [226]
    Given the duty owed to others, is not the same as the primary duty owed to workers, it seems improbable that the reasonably practicable steps taken by RACQ to ensure their workers' health and safety, would not meet the threshold of not risking the health and safety of others from work carried out. The in-branch measures were put in place to protect the workers and others directly entering and leaving the premises under the control of RACQ. Extrapolating this to any duty owed to Ms Rutherford's husband in his own home, I am not persuaded the additional step of providing a specialist clearance as a pre-condition for Ms Rutherford to return to work was authorised by, or necessary to comply with, s 19(2).
  1. [227]
    RACQ focuses on the 'equivocal' nature of Dr Wong's medical certificate arising from the email Ms Rutherford attached to it, when forwarding the clearance to Mr Bell. It referred to customers abiding by social distancing and reassessing the situation if community outbreaks intensified. While of course, RACQ could not guarantee that all customers would abide by the measures put in place, that does not mean those measures ceased to meet RACQ's duty to all those to whom that duty was owed. Potential non-compliance is not an adequate reason to impose the additional requirement upon Ms Rutherford to provide health information regarding her husband as a pre-condition for her return. In any event, it was determined that Dr Wong's certificate was inadequate and should be replaced with clearance from the specialist which (as earlier observed), was not within her power to obtain.
  1. c)
    Was Ms Rutherford's husband a person affected by the work carried out by RACQ?
  1. [228]
    There is no doubt that Ms Rutherford's disclosures to Mr Bell,[186] outlining the dire consequences and the specialist's purported earlier views about her returning to work, led RACQ to conclude a sufficient connection existed to impose the specific requirement on her.
  1. [229]
    If Ms Rutherford's husband was an RACQ customer, the adjustments made in-branch would have been considered sufficient to meet the requisite standard, had he chosen to attend any RACQ branch. Any risks specific to his health condition would have been a matter for him. RACQ would have met their obligation. As an employee, the adjustments made in-branch were considered sufficient to meet the standard of ensuring Ms Rutherford's own health and safety as reasonable mitigation against the risk of exposure to COVID. Given the steps taken pursuant to the duties owed under s 19(1) and s 19(2) were considered sufficient by RACQ (based on what was known and available at the time), any additional requirement imposed to protect the health and safety of someone not at the place of work (as either a customer or worker), extends beyond the general duty as envisaged.
  1. [230]
    The connection to the work in this case arises not from the work itself and Mr Rutherford's direct exposure to it but from his relationship to an RACQ employee whose substantive role involves contact with others, and the nature of his impairment making the potential consequences of COVID exposure to be life-threatening.
  1. [231]
    If Ms Rutherford's husband contracted COVID there would be no basis to determine Ms Rutherford was the source of exposure as he also attended external appointments including medical appointments. If Ms Rutherford had been the source of exposure there would be no basis to determine the exposure occurred at work where all reasonably practical measures available at that time had been implemented.
  1. [232]
    There is a difference between a general duty of care to Ms Rutherford's husband under the common law tort of negligence, versus any duty under the WHS Act. RACQ may have had a common law duty, which was likely reasonably discharged by the actions taken in the workplace to minimise spread, such as installing screens, social distancing, hand sanitiser, and sending sick workers home. That does not mean there is a duty under the WHS Act authorising the requirement placed on Ms Rutherford, in addition to the universal measures implemented.
  1. d)
    Was requiring Ms Rutherford to provide medical clearance for her husband reasonably practicable in ensuring his health and safety?
  1. [233]
    In determining what is reasonably practicable, ss 17 and 18 of the WHS Act relevantly provide:

17 Management of risks

A duty imposed on a person to ensure health and safety requires the person—

  1. (a)
    to eliminate risks to health and safety, so far as is reasonably practicable; and
  1. (b)
    if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

…

18 What is reasonably practicable in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

  1. (a)
    the likelihood of the hazard or the risk concerned occurring; and
  1. (b)
    the degree of harm that might result from the hazard or the risk; and
  1. (c)
    what the person concerned knowns, or ought reasonably to know, about—
  1. (i)
    the hazard or the risk; and
  1. (ii)
    ways of eliminating or minimising the risk; and
  1. (d)
    the availability and suitability of ways to eliminate or minimise the risk; and
  1. (e)
    after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
  1. [234]
    For the reasons outlined above, putting in place the requirement for Ms Rutherford to gain clearance from her husband's specialist that he would not be at risk of COVID exposure was overreach on the part of RACQ. The measures put in place to protect customers and employees were sufficient to meet the requirements of RACQ under the WHS Act.
  1. [235]
    The measures were also not unique to RACQ but rather, were based on health advice and public health directions being issued as the pandemic developed. At no stage were employers directed to exclude front line workers from the workplace unless medical clearance was obtained in relation to other members of their household, who were vulnerable to COVID. There were other directions regarding a requirement to self-isolate if COVID positive or in the household of a person who is COVID positive.
  1. [236]
    The requirement itself was also unreasonable as no doctor was likely to give the unequivocal clearance sought, and Ms Rutherford had to rely on RACQ to seek that clearance – which they did not do. 
  1. [237]
    Finally, it is a defence to a proceeding for a contravention of unlawful requests for information if RACQ proved that the information was reasonably required for a purpose that did not involve discrimination. In closing submissions referring to s 19(2) of the WHS Act, RACQ contended:
  1. 33.
    This is not an unlawful request for information under s 124 of the Act. It is not information on which a discriminatory decision might be made. Further the information was reasonably required to ensure the health and safety of the Complainant's husband was not put at risk from the business or undertaking of the Respondent, being a purpose that does not involve discrimination within the meaning of s 124(3) of the Act.
  1. [238]
    I have already found the request for information was not specifically or generally required by s 19(2). For these reasons I find the request for unnecessary information upon which the discriminatory conduct of preventing Ms Rutherford to return to her substantive role due to her husband's impairment, is substantiated.  
  1. [239]
    I will now return to consideration of the remaining claimed less favourable treatment – denial of workstation adjustments and termination of Ms Rutherford's employment.

2.  Ms Rutherford was denied access to the workstation adjustments of an anti-fatigue mat and sit stand desk

  1. [240]
    This treatment is said to relate to the attribute of 'impairment'.
  1. [241]
    In closing submissions, Ms Rutherford referred to denial of all reasonable adjustments and that this resulted in "me being treated less favourably than my able bodied co-workers."[187] The specific requested adjustments were anti-fatigue mat and sit-stand desk.[188]
  1. [242]
    To the extent that 'able-bodied co-worker' was a reference to a comparator, I consider there are characteristics of the impairment relevant to Ms Rutherford that should be considered in relation to this treatment.
  1. [243]
    I consider the appropriate comparator is, another retail branch employee without an impairment having the characteristic of requiring them to alternate between sitting and standing and to not stand for long periods of time.  The circumstances that are the same, or not materially different are that the comparator has requested provision of an anti-fatigue mat and/or sit-stand desk.
  1. [244]
    The evidence supports that RACQ had a general policy in the retail branch environment of not providing anti-fatigue mats or varidesks. This was due to the potential health and safety risks they presented, as trip hazards or manual handling risks. The evidence of the specialist health and safety witnesses was that they would not have recommended or provided these aids in general,[189] but particularly not in retail branches where there were a lot of people, staff and customers, moving around the environment. In cross- examination, Ms Vaughn admitted RACQ had not permitted anti-fatigue mats to other employees because of the trip hazard (even though in her opinion, they were not trip hazards).

I actually requested one when the Northlakes branch hadn't been refit yet, because when we were standing at concierge, there was a number of people that would complain about getting sore backs, and I requested one, and was told it was a tripping hazard.

So it wasn't a unique declinature to Mrs Rutherford, it was uniform across the board that there was a uniform rejection of anti-fatigue mats?...Yes.

  1. [245]
    Ms Vaughn also confirmed that in her 13 years of experience at RACQ she had never observed sit-stand desks in any retail store.[190] Mr Turner goes further that the Officeworks examples provided by Ms Rutherford as inexpensive and readily available would never be considered acceptable as they are not designed for industrial or workplace environments and would not meet Australian Standard approval.[191]
  1. [246]
    I find the refusal to provide sit-stand desks and fatigue mats does not constitute less favourable treatment when compared to the employee comparator as the policy was demonstrably generally applied and based on consideration of the risks posed by that equipment to the health and safety of all within the retail branch environment. It is also noted that the medical advice in relation to Ms Rutherford was that she was not to lift anything heavier than 5 kg and that she was to avoid unnecessary bending. These were risks considered present for her lifting and moving the anti-fatigue mat and operating the desk topper. Mr Schultz stated that while medical practitioners may recommend adjustments, it was always a matter for the employer, based on real life settings to determine whether proposed adjustments were feasible and safe in the environment and circumstances for which they were proposed.
  1. [247]
    The uniform policy of anti-fatigue mats and desk-toppers not being provided in retail branch environments does not constitute direct discrimination on the attribute of 'impairment'.  
  1. [248]
    Ms Rutherford also claimed the uniform policy about these adjustments is indirectly discriminatory and will be discussed further in that context.

3. Ms Rutherford's employment was terminated by RACQ

  1. [249]
    This treatment is said to relate to the attribute of 'impairment'.
  1. [250]
    No comparator has been provided.
  1. [251]
    A suitable comparator would be a part-time customer services employee in a retail branch without an impairment. The circumstances that are the same, or not materially different would be the employee seeking to return to work after a significant absence or absences who is no longer an authorised representative and is not banking trained. 
  1. [252]
    The evidence given by Ms Easton at the Hearing and in telephone discussion with Ms Rutherford described the steps taken when any employee may be unable to meet the inherent requirements of their role. This is supported by the evidence of Ms Boutwood, who described the general practice applied where a person has been absent from their substantive role for a long period:[192]

Yes. Okay. Can you tell me what the general practice would be at RACQ in human resources in relation to an employee who had been off work for nearly two years from their substantive role. What would be your expectations of your time?‑‑‑So firstly I'd like to understand the history, and then also get a view of what current state is for that individual. If they had been off for medical reasons, we would seek new or updated medical information before we would consider taking any action.

Okay. And your role is to – in obtaining that medical information is to understand the current capacity for work?‑‑‑Correct, and if there's any potential to return to work. And if there were, what are the reasonable adjustments that we would ensure we could put in place to support.

Right. And to your knowledge, was that process followed in this case?‑‑‑Yes, it was.

Yep. Was Mrs Rutherford treated differently from other people?‑‑‑No.

Was she treated differently from people without an impairment who had been off for other reasons?‑‑‑No.

  1. [253]
    In her submissions Ms Rutherford contended Ms Boutwood's evidence supports her claim she was treated differently. I do not agree.
  1. [254]
    In the case of the comparator employee, a relevant history would be developed, requirements for the person to be able to fulfil their role would be identified and discussed including general training requirements to become authorised and the required banking training. The training at that stage would need to be undertaken on a full-time basis as outlined in the Enterprise Agreement, accounting for individual issues. Being authorised and being bank trained were inherent requirements for the role. Being in regular attendance was required to ensure quality assurance and regulatory arrangements for the sale of products was maintained through repetition and monitoring.  If the person was unable to undertake the inherent requirements, alternate roles would be investigated. The person would also be asked to identify any alternate positions that might be suitable. If unable to identify an alternative, a show cause process would occur in relation to termination of employment. Following consideration of the show cause response a decision would be made regarding termination of employment.   The comparator at any stage may also have chosen to resign their employment.
  1. [255]
    In Ms Rutherford's case, it was her medical condition and the medical advice that led to her inability to meet the inherent requirements of her role and there was no reasonable prospect of that situation changing. Prior to being declared incapacitated for work indefinitely by Dr Chan, Ms Rutherford was only working six hours per week. At the peak of her post injury return in 2020 she was cleared to work 15 hours but never exceeded 12 hours per week. I find it improbable that Ms Rutherford could have successfully completed the training programme, even if part-time training was able to be accommodated, at that stage and on so few hours per week. Her incapacity for work and training was reinforced in Dr Chan's response to the medical questionnaire in March 2022 and in the earlier Report of Dr Perez that concluded her capacity for her pre-injury work had been compromised.
  1. [256]
    Ms Rutherford asserted not accommodating medical restrictions and proposed adjustments necessary for her impairment is discrimination, and the cause of her inability to return to her substantive role. 
  1. [257]
    As previously found, the evidence supports that RACQ accommodated necessary workplace adjustments of reduced hours and restricted duties linked to Ms Rutherford's impairment from 2019 through to Dr Chan declaring her incapacitated for work in August 2021. I do not accept that the failure to provide an anti-fatigue mat and desk topper because of health and safety risks posed in the branch environment is contravening conduct. Ms Rutherford had previously indicated she knew how to accommodate her work restrictions in the branch environment without the provision of these aids.  In any event, Ms Rutherford could not return to her substantive role until she had completed the required training to be authorised for insurance products and for banking products. Dr Chan had certified the training requirements were not suitable.
  1. [258]
    The telephone conversations between Ms Rutherford and Ms Easton, demonstrate Ms Rutherford participated in a process in which she acknowledged the reason for medical separation, for the workplace aids not being provided and was accepting of the outcome. While Ms Rutherford stated she would prefer to remain employed and would consider other roles she stated she would prefer to resign than be terminated, if it came to it. As outlined by Ms Easton and confirmed in the contemporaneous correspondence, the medical evidence supplied by Ms Rutherford and confirmed by her doctor in the medical questionnaire was that she was permanently incapacitated if the stated adjustments could not be provided. 
  1. [259]
    Ms Rutherford also pointed to the impact of the '14-month' enforced absence on her capacity to meet the requirements of the role. She argued the discrimination that kept her from work for 14 months caused the situation where she needed the significant training.
  1. [260]
    I have found direct discrimination in relation to the requirement set in June 2020 that she supply a medical certificate related to her husband. I have further found RACQ has not made out the exemptions on which it sought to rely for the conduct. However, I note the maximum period linked to this finding is 11 months and there is a point in that period at which I have found Ms Rutherford to be equally responsible for the ongoing absence, particularly following the 3 September 2020 contested telephone call.  Related to this is the clear and uncontroverted evidence that the requirement to undertake banking training is in no way related to the absence or its duration. Banking training was required due to the operational change in the business. These are matters to be weighed in my consideration of loss and damage, to the extent I consider the contravening conduct was responsible. Any proposition that the absence caused the termination is not made out.
  1. [261]
    Ms Rutherford pointed to RACQ wanting to end her employment as early as 20 February 2020, by reference to the email of Mr Schultz,[193] where a potential deed of separation was listed as an option to be considered but determined not to be appropriate in her case. It was Ms Rutherford herself who the evidence shows was actively pursuing options for the conclusion of her employment. In the notes of the contested phone call Ms Rutherford asked if a comment from Mr Bell meant that resignation or redundancy was on the cards; the conversation with Ms Vaughn where she stated she is feeling overwhelmed by the thought of coming back and anxious about her own capacity and requested Ms Vaughn to pass her queries onto HR about redundancy or resignation for response. In the telephone calls with Ms Easton she asked for redundancy to be followed up and "fully gets" why medical separation is necessary.
  1. [262]
    Outlined in RACQ's submissions and borne out by the recordings, is that Ms Rutherford's main focus in these conversations was her claimed 14-month enforced absence and the lost income and leave during that period.   She indicated it does not sit well with her, and she intended to follow it up.  Although, perversely, there is no remedy claimed for economic loss in this period sought in Ms Rutherford's SOFC.
  1. [263]
    While being terminated is unfavourable treatment it is not less favourable in circumstances where a person without the impairment but with incapacity to undertake the inherent requirements of the role would have undergone the same steps and had the same opportunity to influence the outcome and provide alternatives. The evidence supports a standard process being applied.
  1. [264]
    I also note Ms Rutherford did not adduce any expert medical evidence at Hearing to contest her incapacity to safely undertake the role including required training at the time of her termination.
  1. [265]
    RACQ further relies on section 25(1) of the AD Act and says it was able to impose the following genuine occupational requirements:[194]
  • That Ms Rutherford be able to perform the duties of her position for which she was employed without risk to her health and safety. As a result of her impairments, she was unable to do so.
  • That Ms Rutherford be able to attend the workplace and perform the duties of her employment. In the preceding 22 months, Ms Rutherford had undertaken less than 3 months of work on restricted duties, and been unable to perform those duties without pain or aggravation of her impairment.
  • The termination (and any unfavourable treatment during her employment) was on  the basis of her inability to meet the genuine occupational requirements of her role and is therefore exempt.
  1. [266]
    This is then linked to the exemption under s 108 of the AD Act, given performance of her duties would expose Ms Rutherford to a risk to her health and safety, termination was reasonably necessary to protect her health and safety and is therefore exempt conduct under the Act.
  1. [267]
    Having considered the evidence in this matter I conclude the medical evidence supports the contention that Ms Rutherford could not safely undertake the inherent requirements of her role as articulated by RACQ above. Reasonable adjustments in the form of restricted duties and reduced hours had been accommodated, but those adjustments were deemed unsuitable and unsafe by Ms Rutherford's treating medical practitioner. Dr Chan certified this opinion, at the review of Ms Rutherford's return to work program in August 2021 and in updated medical advice against the inherent requirements of the role provided in March 2022. The consequences of any reinjury would be dire, including paralysis. 
  1. [268]
    On this basis the decision to terminate Ms Rutherford's employment on 1 April 2022 was not contravening conduct.

Indirect discrimination

  1. [269]
    To establish indirect discrimination, Ms Rutherford has the onus of proving management imposed a term of employment, which would impact more persons with Ms Rutherford's protected attribute of 'impairment' than persons without the attribute. If established, the Respondent in defence has the onus of establishing the imposed term is reasonable, considering the consequences of failure to comply, the cost of alternative terms and their financial circumstances.
  1. [270]
    The relevant terms to consider are:

•   the requirement for part-time employees to attend training on a full-time basis in some circumstances;

•   the 25-hour minimum work week for part-time employees in retail settings; and

•   the circumstances surrounding physical workplace adjustments.

Part-time related requirements - training on a full-time basis and the 25-hour minimum work week

  1. [271]
    The RACQ Enterprise Agreement 2019-2022 contains provisions governing employment arrangements for part-time employees. Relevantly the agreement provides:

6.2  Part-time Employment

  1. Part-time employees shall be employed for not more than an average of 37 ordinary hours per week, on a reasonably predictable basis. At the time of engagement, or at other times, RACQ and the part-time employee will agree in writing on the minimum number of ordinary hours per week to be performed by the employee.
  1. Part-time employees are paid for each hour worked at the ordinary rate of pay per hour for a full-time employee.
  1. (c)
    Paid leave provisions specified in this Agreement, including annual leave, personal leave,   long service leave and compassionate leave shall apply on a pro rata basis to part-time employees based on ordinary hours worked.
  1. (d)
    Where required to fulfil initial training obligations, a part-time employee may be required by RACQ to work full-time for up to 12 weeks. The employee shall be paid and accrue entitlements as a full-time employee while required to work full-time. The personal circumstances of the part-time employee will be taken into account prior to requiring a part-time employee to complete this initial training period on a full-time basis.
  1. Where RACQ and an employee agree in writing, part-time employment may be converted to fulltime, and vice versa, on a permanent basis or for a fixed period of time. All accrued entitlements shall be maintained. If an employee is converted to part-time employment, accrual of entitlements will occur in accordance with the part-time engagement from the time of the conversion.
  1. (f)
    Unless a lesser period is requested in writing by the employee and agreed by RACQ (such request may be withdrawn by the employee at any time), a part-time employee will be employed for a minimum of 15 hours per week on average over the roster cycle (ie 90 hours over a 6 week roster cycle, or a proportionately lesser number of hours where the roster cycle is less than 6 weeks).
  1. [272]
    The agreement sets out the minimum and maximum hours of engagement for part-time employees averaged over a six week roster period. Except as provided for by the agreement itself, minimum hours set the floor for engagement on a part-time basis. Further it provides that part-time employees may be required to fulfil initial training obligations on a full-time basis for up to 12 weeks. The personal circumstances of an employee are to be taken into account, prior to requiring the part-time employee, to work full-time to undertake the training.
  1. [273]
    The first point is that a provision in an enterprise agreement could not properly be characterised as a management-imposed term.  It reflects terms set through an agreement making process and certified by the Fair Work Commission. The agreement provides for part-time employees to undertake training on a full-time basis up to 12 weeks subject to taking account of personal circumstances.  This requirement does not constitute indirect discrimination within the meaning of the Act.
  1. [274]
    It is also not clear that this requirement would be relevant to Ms Rutherford's matter in circumstances where Ms Rutherford had not worked since 4 August 2021 and was certified as incapacitated indefinitely for future work and to undertake future training requirements.
  1. [275]
    Ms Rutherford further alleges the requirement to work 25 hours in a retail branch setting is indirectly discriminatory as people with impairments requiring hours adjustments would not be able to comply, and in greater numbers than those without an impairment with that characteristic. Ms Rutherford alleges this is also a breach of the EBA as it confers an entitlement to work 15 hours. 
  1. [276]
    An EBA breach is not a cause of action under the AD Act. The submission is also misconceived as it misunderstands the purpose of minimum hours provisions setting a floor that should not be gone below, as opposed to an entitlement to be employed for not more than those hours. The EBA enables employment of part-time employees up to 37 ordinary hours on average per week.
  1. [277]
    The policy requirement of working a minimum of 25 hours in retail branch settings would constitute a management-imposed term. It is not contested the 25 hour minimum was in place in branches. RACQ evidence supported their contention that the policy was necessary to meet the demands of the regulatory environment linked to selling financial services products and advice.  The obligations imposed by regulation were also constantly changing so exposure to the requirements, products and obligations as authorised representatives required familiarity (through regular work), monitoring, coaching and supervision.[195]
  1. [278]
    Consequences of failing to comply with regulatory obligations could be loss of financial services licence, penalties and reputational damage.[196] This requirement is reasonable given the reasonable operational requirements of RACQ as a licenced financial services provider.
  1. [279]
    There was further evidence that the capacity to apply for flexible work arrangements continued as had always been the case.[197]
  1. [280]
    When Ms Rutherford ceased work in August 2021, by reason of medical incapacity, she was working six hours per week.

The circumstances surrounding physical workplace adjustments

  1. [281]
    In closing submissions Ms Rutherford particularly refers to the evidence related to anti-fatigue mats.
  1. [282]
    The general policy of not providing anti-fatigue mats in the retail branch environment is a management-imposed term.  The blanket rejection of fatigue mats would objectively have a disproportionate impact on people with an impairment requiring them to avoid static standing for long periods.  RACQ argues that the term is reasonable on health and safety grounds. It is argued that in the relatively uncontrolled environment of retail branches they represent an unacceptable trip hazard for staff and customers alike, including impaired workers. Picking them up and moving them creates a manual handling risk.  Further evidence from Mr Turner, was that the jury is also out on their effectiveness, with the better approach being to avoid static standing which is possible in the retail branch environment.  On the basis of this evidence I find the term is reasonable on health and safety grounds.

Victimisation

  1. [283]
    To establish victimisation, Ms Rutherford must prove that RACQ has done or threatened to have done an act to her detriment, because she has alleged a contravention of the AD Act.
  1. [284]
    Ms Rutherford in her post-hearing submissions described RACQ considering her common law claim in terminating her employment as victimisation.  Ms Vaughn at Hearing gave her bare opinion that the common law claim did lead to less favourable treatment of Ms Rutherford. Even if that were true, the common law claim was not a proceeding under the AD Act so any alleged conduct could not constitute victimisation.
  1. [285]
    For this reason, Ms Rutherford's claim with respect to victimisation is misguided. This claim is dismissed.

Conclusion on findings

  1. [286]
    I have found that the allegations of direct discrimination and unnecessary information request in relation to the requirement on Ms Rutherford to provide a specialist clearance about her husband's health as a precondition to her return to work in June 2020 are substantiated. All other allegations of direct and indirect discrimination and of victimisation have not been substantiated and are dismissed. This brings me to the question of appropriate orders.

Proposed Orders

  1. [287]
    Contravening conduct is confined to the June 2020 requirement that Ms Rutherford not return to work until providing a medical certificate from her husband's specialist linked to the contravention of requesting unnecessary information. I will consider remedies in relation to the impact of that conduct adjusted as appropriate by any aggravating or mitigating factors.
  1. [288]
    In Ms Rutherford's SOFC, she seeks the following orders:
  1. 1.
    I request that I am no longer regarded as being terminated. I would like this amended to retired / honorary staff which is a title given to retired staff and exiting staff that have worked at the company in excess of 20 years.
  1. 2.
    I am seeking to continue to receive all benefits that are associated with retired / honorary staff. This includes but is not limited to insurance discounts, membership discounts and an invitation to the annual "Milestones" lunch.
  1. 3.
    I am seeking compensation in the amount of $30,000 for general damages which include emotional distress, hurt, humiliation and the mental anguish that I have experienced prior, during and since my termination.
  1. 4.
    I am seeking compensation in the amount of $30,000 for aggravated damages. The lack of empathy, the eye rolls and the snide remarks made to me by my immediate manager in the presence of other staff members was humiliating and unnecessary.
  1. 5.
    I am seeking the amount of $624,078 being for loss of earnings from 05/08/2021 until the retirement age of 67 (14 years). This has been calculated using the current hourly rates as at 01/07/2023 of $34.29. This has been based on 25 hours per week x $34.29 per hour) x 14 years. This figure does not take into account any pay rises, superannuation increases, sales bonuses, overtime, annual leave loading, career progression or interest on superannuation investments.
  1. 6.
    I am seeking the amount of $62,407.80 which is 10% of the above amount as superannuation.
  1. 7.
    I need RACQ to be made aware that the mistreatment of employees (particularly those with an impairment) is not acceptable and can and will result in financial consequences and become public knowledge.
  1. [289]
    An order for compensation for lost earnings between 11 June 2020 and 4 May 2024 is not claimed, however in closing submissions Ms Rutherford refers to this period under the heading of unpaid wages.[198] The estimate of the loss is approximately $45,000.
  1. [290]
    Not all of the items above are orders the Commission can make and/or relate to conduct that has been found to not contravene the AD Act.  The Commission is empowered, by s 209 of the AD Act, to make a variety of orders, both monetary and non-monetary, if a complaint is proven. Relevantly for Ms Rutherford these include:

•  Orders for payment as compensation for loss or damage caused by a contravention, and any interest;

•  Orders for a respondent to do specified things to redress loss or damage caused by a contravention; and

•  Orders requiring a private or public and published apology.

  1. [291]
    In closing submissions, RACQ submitted Ms Rutherford previously received a settlement of $210,000 for a claim made for damages in the District Court of Queensland, which "acknowledges that she claimed past economic loss and future economic loss for the same period now sought."[199] RACQ referred to the principle at common law that a litigant cannot recover for the same losses twice, reflecting the compensatory nature of damages.
  1. [292]
    RACQ submitted that if Ms Rutherford was to be successful in her complaint, any damages awarded would be modest and be limited to an award for general damages for pain and suffering, in the order of $10,000 to $15,000.

Damages

  1. [293]
    Damages under the AD Act are compensatory in nature. They exist to compare the position the complainant might have been in had the discriminatory conduct not taken place.[200] In Neil v Lee,[201] Merrell DP described the considerations and process of assessing damages (citations omitted):
  1. [111]
    In my view, a number of principles about the application of s 209(1)(b) of the AD Act may be derived from the approach taken to the application of s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 ('the AHRCA').
  1. [112]
    First, the power provided by s 209(1)(b) of the AD Act, to order compensation for loss and damage caused by the contravening conduct of a respondent, is a statutory power which is conferred in the context of the legislative scheme dealing with unlawful discrimination. Thus, the Commission, in assessing an amount of loss or damage for the purpose of making an order under s 209(1)(b) of the AD Act, is attributing legal responsibility, namely, blame, in order to give effect to a statute with a discernible purpose; and that purpose provides a guide to the requirements of justice and equity in the case where the requirements are determined by the judge's concept of principle and of the statutory purpose.
  1. [113]
    Secondly, unlawful discrimination is proscribed in several different fields of activity which give rise to the need for different kinds of remedies. Unlawful discrimination may occur in a setting which aligns its consequences closely with the consequences of common law causes of action such as breach of contract, or it may occur in a setting which aligns its consequences with common law causes of action such as intentional torts. In other circumstances the statutory cause of action for unlawful discrimination has no close relative in the common law which is why it is important to recall that it is the words of the statute which will provide the criterion for such an order, not common law principles.

…

  1. [115]
    In Watts v Australian Postal Corporation ('Watts'), a case concerning a contravention of the Disability Discrimination Act 1992 where compensation was sought under section 46PO(4) of the AHRCA, Mortimer J relevantly stated:
  1. 281.
    The provision grants plenary power to the Court to make orders "as it thinks fit". In particular, subs 4(d) provides the Court with a "wide discretion as to the amount of compensation the Court may order for loss or damage suffered because of unlawful discrimination": Erwin v Vergara (No 3) [2013] FCA 1311 at [601] per Bromberg J. The Court's exercise of that discretion is to be governed by the text of the relevant statute: Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [94] per French and Jacobson JJ. The principles relevant to the assessment of damages in tort may be of assistance (see Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 239 per Lockhart J, at 281 per French J), but only to the extent that they do not conflict with the words of the statute: Ewin [2013] FCA 1311 at [604] per Bromberg J.
  1. [116]
    Thirdly, consideration must be given to the phrase used in s 209(1)(b) of the AD Act, namely, compensation for loss or damage '… caused by the contravention.' In Watts, Mortimer J stated of s 46PO(4)(d) of the AHRCA:
  1. 282.
    An order for compensation may be made for "any loss or damage suffered because of the conduct of the respondent". Phrases such as "by reason of", "because of" and "by virtue of" require a "practical application of causation principles": Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 213. A phrase like "because of" "implies a relationship of cause and effect" between the unlawful conduct of the respondent and the damage incurred by the applicant: see Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at 321 per Lockhart J; Ewin at [605].
  1. [117]
    The statutory phrase '… caused by' connotes a direct or proximate relationship of cause and effect. Thus, there is no reason the construction given in Watts to the phrase '… because of' in s 46PO(4)(d) of the AHRCA should not be given to the phrase '…caused by' in s 209(1)(b) of the AD Act. In my view, given the similar statutory text, like s 46PO(4)(d) of the AHRCA, s 209(1)(b) of the AD Act is concerned with the relationship of cause and effect.
  1. [118]
    Further where the Commission is considering a statutory power to award damages, the statutory objects and purposes may inform the proper approach to causation in a particular case.
  1. [119]
    Fourthly, two other matters seem clear about the discretion to award compensation by way of general damages. They are:
  • it is appropriate to obtain assistance from awards of damages in other sexual harassment cases with similar facts;[202] and
  • general damages are not assessed by performing arithmetical adjustments to prior determinations.
  1. [120]
    Fifthly, aggravated damages may form part of an order for compensation under s 209(1)(b) of the AD Act. Aggravated damages compensate the plaintiff where the harm done to them by a wrongful act was aggravated by the manner in which the act was done. The character of the conduct necessary has been described as lacking bona fides, or being improper or unjustifiable. The aggravation may come from subsequent conduct to the same effect as the contravening conduct, such as the way a respondent conducted proceedings brought against them.

The claim for economic loss

  1. [294]
    Ms Rutherford claims $624,078 for loss of earnings, representing what she calculated her wages would have been had she continued working with RACQ from when she stopped working on 5 August 2021 until her projected retirement at the age of 67 based on a 25-hour working week. She seeks a further $62,407.80 in superannuation (proposed orders five and six).
  1. [295]
    This claim relates to the period from which Ms Rutherford was certified as incapacitated for work in August 2021 through to her termination of employment on 1 April 2022. It then extrapolates the lost earnings from date of termination through to purported age of retirement. There is no substantiated contravening conduct relevant to this claim. Any loss or damage said to be caused by the termination, or, failure to provide particular workplace adjustments, is not of itself compensable. The only factor that may be relevant is the extent to which the contravening conduct in relation to Ms Rutherford not returning from leave in 2020 contributed to the absence which forms part of the reason for the termination. This relates to the impact of the earlier contravening conduct rather than the termination itself.
  1. [296]
    Ms Rutherford also draws attention to lost income between 8 June 2020 and 11 May 2021 during which she was on unpaid leave. She describes this period as being solely due to RACQ's refusal to let her return to work.[203] While I have rejected that assertion this claim does relate to a period where I have found contravening conduct. In these circumstances consideration of the question of double recovery for economic loss is required.
  1. [297]
    RACQ notes that Ms Rutherford has already received a material sum of money, in the amount of $210,000, in a settlement for her common law claim captured by a Deed of Release.[204]
  1. [298]
    The Deed of Release relevantly provides:
  1. 1.
    THE SETTLEMENT SUM
  1. 1.1
    WorkCover on its own behalf and on behalf of the Employer shall pay to the Claimant the sum of $210,000.00 ('the settlement sum') in full and final settlement of the claim.

…

  1. 5.
    RELEASE AND INDEMNITY
  1. 5.1
    In consideration of payment by WorkCover of its obligations described in clauses 1 and 2, the Claimant:
  1. releases and discharges WorkCover and the Employer from any liability howsoever arising out of the facts and circumstances of the subject of the claim; and
  1. (b)
    indemnifies WorkCover and the Employer against all claims by the Claimant which have arisen or which may arise in the future in relation to the facts and circumstances the subject of the claim.
  1. 6.
    BAR TO ACTION
  1. 6.1
    This agreement may be pleaded in bar to any action, claim, demand or proceeding brought now or in the future by the Claimant or on the Claimant's behalf having arisen or which may arise in the future out of the facts and circumstances the subject of the claim.
  1. [299]
    The Deed as executed contemplates the common law claim. RACQ raises that if Ms Rutherford was in these proceedings to be compensated for her past and future economic loss, she would be recovering the same loss twice, amounting to double recovery. 
  1. [300]
    Losses must be proved with a reasonable degree of certainty.[205] At common law, the basic principle is at its core:

A plaintiff is under no duty to mitigate his loss, despite the habitual use by the lawyers of the phrase 'duty to mitigate'. He is completely free to act as he judges to be in his best interests. On the other hand, a defendant is not liable for all losses suffered by the plaintiff in consequence of his so acting. A defendant is only liable for such part of the plaintiff's loss as is properly to be regarded as caused by the defendant's breach of duty.[206]

  1. [301]
    Put simply, a respondent is not liable for losses they have caused, for which they are not responsible.[207] A respondent cannot be liable for losses caused by a complainant's own unreasonable conduct. Where a complainant makes a decision increasing their loss or forgoes opportunities to mitigate loss, they are responsible for that decision.
  1. [302]
    Where losses have been recovered through a settlement or an order of a court, the equitable rule against double recovery prevents a person from recovering more than once for a given loss resulting from a breach of a given obligation.[208] While statutory rights such as those in the AD Act cannot be waived or compromised, it does not stop parties from waiving litigation on foot or in contemplation.[209] In interpreting whether a deed of release shields the employer, the majority of the High Court in Grant v John Grant Sons Pty Ltd said the following:[210]

The question is whether upon a proper interpretation of the deed the general release clause should be restrained to matters in dispute within the meaning of these recitals. The question depends primarily on the application of the prima facie canon of construction qualifying the general words of a release by reference to particular matters which recitals show to be the occasion of the instrument. But it is also affected by the general tenor of the deed.

  1. [303]
    The recitals of the Deed specify that the Deed is made in relation to personal injuries suffered by Ms Rutherford in the course of her employment, and the matters raised in her notice of claim. Her notice of claim relevantly provides:[211]
  1. 12.
    The plaintiff has suffered past economic loss and claims the sum of $31,545.25 calculated as follows:

…

  1. (b)
    the plaintiff worked on average 20 hours per week;
  1. (c)
    the plaintiff was earning approximately $655.25 net per week
  1. (d)
    the plaintiff has been unable to return to her pre-injury employment as a result of her personal injuries;
  1. (e)
    the plaintiff has only been cleared to work 15 hours per week;
  1. (f)
    the plaintiff has been advised by the defendant that this reduction in hours cannot be accommodated in the long term;

…

  1. (h)
    in March 2020, the plaintiff was unable to work from home as she could not be provided with  a workstation set up that was appropriate for her condition and in line with her return to work program;

…

  1. (k)
    the plaintiff claims economic loss as follows:

…

  1. (v)
    from 30 June 2020 to 1 July 2021:
  1. A.
    the plaintiff ought to have earned $29,751.00 net;
  1. B.
    the plaintiff's actual earning for this period were $6,248.00;
  1. C.
    the plaintiff claims a loss of $23,503.00
  1. (vi)
    from 1 July to 31 August (2021) the plaintiff suffered a loss of earnings of $572 net per week and claims $4576.00 for this period;
  1. (vii)
    the plaintiff claims a total past economic loss in the amount of $31,545.25
  1. 13.
    The plaintiff claims a loss of past occupational superannuation benefits, calculated at 9.5% of her past economic loss in the amount of $2,996.80.
  1. 14.
    The plaintiff has suffered a permanent impairment of her earning capacity and claims the sum of $287,144.00 informed by the following assumptions and calculations:

…

  1. (r)
    the plaintiff is currently aged 54 with a remaining work life expectancy of 13 years until a retirement age of 67;
  1. (s)
    the plaintiff claims an ongoing loss of $572.00 net per week for her remaining work life expectancy of 13 years (multiplier 502) which yields $287,144.00.
  1. 15.
    the plaintiff claims a loss of future occupational superannuation benefits calculated at the rate of 11.50% in the sum of $33,021.56.

…

  1. [304]
    Ms Rutherford has accepted a financial settlement in her common law claim for lost wages and superannuation for the same periods she claims unpaid wages in the present matter. In the common law matter she claims her work related injury prevented her from work causing the economic loss and in the present matter she argues the employer's discriminatory conduct prevented her from work causing the economic loss and ultimately led to her termination of employment. Having accepted and received an amount to compensate her for loss of past and future wages and superannuation Ms Rutherford is not entitled to be compensated again for the same loss, even though argued on a different basis. I will not make orders that amount to double recovery. 
  1. [305]
    Any award for other damages arising from the found discriminatory conduct is not similarly constrained.

The claim for non-economic loss

  1. [306]
    Ms Rutherford claims general damages of $30,000 and aggravated damages of $30,000 (proposed orders three and four).
  1. [307]
    An award for general damages is to compensate for the injury suffered, in consideration of the general standards prevailing in the community.[212] Significant value is placed on losses of enjoyment of life and any experiences of pain and suffering.[213]
  1. [308]
    With regards to aggravated damages, the key principle is whether there is a need for additional compensation for the injured feelings of the complainant where their sense of injury resulting from a wrongful act is justifiably heightened by the manner in which or the motive for which the respondent did it.[214] They compensate the complainant where harm was aggravated by the manner in which the harm was done, or the manner in which the respondent conducted proceedings.[215]
  1. [309]
    In addition to economic loss caused by the contravening conduct the damage caused by the imposed absence linked to the unlawful information request was financial distress as Ms Rutherford was the sole income earner, having to apply on the basis of hardship to access money from her superannuation. This was humiliating, embarrassing and painful for a person who had loyally worked 36 years for RACQ. 
  1. [310]
    The imposed requirement that prevented Ms Rutherford from returning to her in-branch role in June 2020 also contributed to an extended absence from work that in total was 14 months. The total absence being longer than 12 months set in place the requirement for more intensive training to be able to regain her authorisation to sell insurance products which was a requirement for Ms Rutherford to perform her substantive role. It also contributed to the consideration of incapacity to undertake the inherent requirements of the role evidenced by significant absence over a two year period that formed part of the decision for termination.
  1. [311]
    The maximum relevant period is from 11 June 2020 when Ms Rutherford should have returned from leave, but for the contravening conduct, and 4 May when she returned to work. However, I consider the following factors to be evidence of Ms Rutherford also contributing to the delay. Ms Rutherford took no action to advocate on her own behalf even after the phone call with Mr Bell on 3 September 2020 where she made it clear she wanted to return and he was following up alternatives to make that happen. Waiting one or two months may be explicable but six is not.  Then, when in March 2021, Ms Edwards, the acting manager who replaced Mr Bell offered to follow up to get her back to work, Ms Rutherford told her not to. In the telephone call on 7 April 2021 with Ms Edwards, Ms Rutherford indicates she needs to speak to her solicitor in relation to any return to work. This leads me to determine the maximum absence period attributable to the contravening conduct is six months.
  1. [312]
    The conduct had no impact on the requirement to undertake banking training which arose from integration of the insurance and banking parts of the business. This was also an inherent requirement of the role.
  1. [313]
    In other AD matters where a contravention of section 124 is established, it is treated in most cases as forming part of any award for general damages. I will adopt this approach.
  1. [314]
    Ms Rutherford's pain, hurt and suffering is amplified by her belief that despite her longstanding service as a valued RACQ employee she has been abandoned and attacked by the company she grew up in. She was mortified and humiliated that Mr Payten had inferred to her union that she was lying about having been kept from work. Other factors such as Ms Vaughn being told not to organise a farewell lunch for Ms Rutherford following her termination and being excluded from attending the Milestones lunch for retired and long serving employees have incensed Ms Rutherford and she finds it very hurtful and distressing. 
  1. [315]
    Aggravation is also argued based on the strategic employment offer made to Ms Rutherford following referral of her claim to the QIRC, and confirmed at Hearing by Mr Payten as a tactic to call her bluff about phone based work and put a pin in any award for economic loss.
  1. [316]
    This must be weighed against the conduct of Ms Rutherford secretly recording telephone conversations with Ms Easton, purportedly for her own use, but tendered in proceedings. While not illegal and certainly not unhelpful to the Respondent's case, it does represent a well-recognised breach of trust in the employment relationship. Ms Rutherford argues that trust had already been demolished by her employer.
  1. [317]
    Weighing this up and acknowledging that the substantiated conduct, whilst contravening the Act, was not motivated by a desire to cause harm, it has done so. For that reason, I award general damages only of $25,000.

Other claims

  1. [318]
    Ms Rutherford further seeks to have her termination re-classified as retirement and be added to RACQ's honorary staff programs, receiving the associated benefits.  She further seeks that the consequences of RACQ's breaches of the Act particularly as they relate to impairment become public knowledge. The termination has not been established as contravening conduct, so there is no basis for me to make the orders sought. Discrimination based on the attribute of 'impairment' has not been made out.
  1. [319]
    I order accordingly.

Orders

  1. That the complaint of requesting unnecessary information is substantiated.
  1. That the complaint of direct discrimination on the basis of family responsibilities as carer for a person with an impairment is substantiated.
  2. That the complaints of direct discrimination on the basis of impairment are dismissed.
  3. That the complaints of indirect discrimination are dismissed.
  4. That the complaint of victimisation is dismissed.
  5. That the Respondent pay to the Complainant, within 28 days:

a.   $25,000 for general damages.

  1. That the parties are to bear their own costs.

Footnotes

[1] Exhibit 1 attachment B-27.

[2] Exhibit 1 attachment B-28.

[3] Exhibit 1 attachment G-18.

[4] Exhibit 1 attachments B-6 – B-13; B-15.

[5] 1 July 2024 T1-20 ll 11-21. Churg-Strauss Syndrome; also known as eosinophilic granulomatosis with polyangitis; is a rare disease involving inflammation of the blood vessels, which can restrict blood flow and damage vital organs and tissues. Multiple Sclerosis is a central nervous system disease with varied symptoms.

[6] Whether the injury was caused by Ms Rutherford's work or was an aggravation of a pre-existing condition is described by the parties differently but is ultimately not material to this Decision.

[7] Exhibit 1 attachment A-2.

[8] Exhibit 1 attachments A-4, A-5 and A-6.

[9] Exhibit 1 attachment D-3.

[10] T1-45 ll 31-34. At its highest Mr Schultz held a 'belief' the information 'had filtered through.' T2-110 ll 25-29.

[11] Exhibit 1 attachment D-6.

[12] Exhibit 1 attachment A7, p 2.

[13] Ibid p 3.

[14] Ibid p 2.

[15] Exhibit 1 attachment A-8.

[16] Exhibit 1 attachment A-9.

[17] Exhibit 1 attachment A-10.

[18] Exhibit 1 attachment A-11.

[19] T1- 31 ll 45-48.

[20] Exhibit 1 attachment B-16.

[21] T1-15 ll 28-36.

[22] Exhibit 1 attachment D-9.

[23] Exhibit 1 attachment D-10.

[24] T2-81 l 45 – T2-82 l 1.

[25] T2-82 ll 3-9.

[26] T2-81 ll 31-36.

[27] Exhibit 1 attachment C-1, p 2; D-12.

[28] Exhibit 1 attachment D-11.

[29] T2-115 l 45 – T2-116 l 6.

[30] Exhibit 1 attachment C-1, p 237.

[31] Exhibit 1 attachment B-19.

[32] T1-11 l 20-22.

[33] T1-11 l 22-23.

[34] T1-11 l 22-24.

[35] Exhibit 4. This email was tendered during the Hearing via Ms Edwards who indicated she located the document in the files of the Northlakes store. The Complainant had no objection to the document being tendered into evidence following a discussion between the parties the previous day.

[36] Exhibit 1 attachment A-12.

[37] Exhibit 1 attachment B-17.

[38] Exhibit 1 attachment B-18.

[39] T3-53 l 32 – T3-54 l 12.

[40] T2-52 ll 9-16.

[41] This email supports Ms Rutherford's evidence in cross-examination that Mr Bell called her following receipt of the advice from Mr Schultz and others that a clearance was required from the specialist; T1-36 l 48.

[42] Exhibit 1 attachment B-17.

[43] T2-42 l 11-12.

[44] Exhibit 1 attachment B-23. Smartphone-typed notes of a similar tenor are contained in attachment G-6.

[45] T1-49 l 21 - T1-50 l 26.

[46] T1-50 ll 1-5; 23-26.

[47] T1-50 ll 35-38.

[48] T2-44 ll 29-49.

[49] Exhibit 1 attachment D-12.

[50] T3-31 ll 22-31.

[51] T3-32 ll 1-3.

[52] T3-32 ll 5-6.

[53] Exhibit 1 attachment B-19.

[54] T3-57 ll 1-16.

[55] Exhibit 1 attachment B-19, p 153.

[56] The certificate was provided on 27 May 2020.

[57] Exhibit 1 attachment D-14.

[58] Exhibit 1 attachment A-19.

[59] Exhibit 1 attachment A-20.

[60] T1-54 ll 32-34.

[61]Exhibit 1 attachment C-2. Her training records indicate she completed 35 training modules on 15 separate days between 4 May and 7 July 2021.

[62] T1-11 l 47-48.

[63] T1-15 l 38 – T1-16 l 5.

[64] T1-57 ll 12-14.

[65] T1-104 ll 35-38.

[66] T2-14 ll 26-28; 2-20 ll 48-49; 2-24 ll 5-9; 2-25 ll 1-12.

[67] T2-127 ll 33-35.

[68] T1-57 ll 2-10.

[69] T1-106 l 5-10.

[70] T1-57 ll 24-26.

[71] T1-51 ll 40-44; T3-31 ll 33-42.

[72] T3-32 ll 10-11.

[73] T3-34 ll 5-6.

[74] T1-11 l 48 – T1-12 l 3.

[75] T1-52 ll 33-49; T1-54 ll 15-30.

[76] T2-102 ll 1-30; T2-132 ll 33-38; T2-134 ll 7-27.

[77] T1-57 l 40; T1-58 ll 7- 50; T1-59 l 36; T1-60 l 14.

[78] T1-58 ll 32-33.

[79] Exhibit 1 attachment A-21.

[80] Exhibit 1 attachment D-16.

[81] Exhibit 1 attachment A-22, p 1.

[82] Exhibit 1 attachment B-22.

[83] Exhibit 1 attachment A-23.

[84] Exhibit 1 attachment B-25.

[85] Exhibit 3.

[86] Exhibit 1 attachment B-26.

[87] Exhibit 3.

[88] Exhibit 1 attachment B-28.

[89] Exhibit 1 attachment A-13.

[90] Exhibit 1 attachment E-1.

[91] Exhibit 1 attachments D-13, E-1 and E-3.

[92] T1-44 ll 35-46 and T1-45 ll 1-16

[93] Exhibit 1 attachment A-14, p 8.

[94] Ibid p 9.

[95] Ibid pp 10-13.

[96] Exhibit 1 attachment A-15.

[97] Exhibit 1 attachment A-16, p 3.

[98] Exhibit 1 attachment A-17, p 10-12.

[99] Exhibit 1 attachment A-18, p 8.

[100] Ibid.

[101] Exhibit 1 attachment E-5.

[102] Exhibit 1 attachment E-6.

[103] Exhibit 1 attachment E-6.

[104] Rutherford v RACQ Operations Pty Ltd [2024] QIRC 145.

[105]  Fact 7 and Contention 3 of Complainant's Statement of Facts and Contentions, filed 17 November 2023.

[106] For example T1-32 ll 35-35.

[107] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27.

[108] Ibid 205.

[109] Ibid 209.

[110] Ibid 205.

[111] Closing Submissions of the Complainant, filed 26 August 2024. See paragraphs [1] – [6] on page 3-4 ('Unfair dismissal'), paragraphs [1]-[2] of page 5 ('Breach of Privacy'), paragraphs [1]-]2] of pages 5-6 ('Breach of Enterprise Bargaining Agreement'), paragraph [1] of page 7 ('Defamation'), paragraphs [1] - [10] of pages 7-9 ('Breach of Workplace Rights, Negligence and Breach of Duty of Care').

[112] Closing Submissions of the Respondent, filed 4 October 2024, [5].

[113] Examples are omitted.

[114] (1938) 60 CLR 336.

[115] Ibid.

[116] Motlap v Workers' Compensation Regulator [2020] QIRC 196, [36].

[117] 5 Irish Jurist vol. IX, New Series, p. 1 quoted in JPO Barry, The Methodology of Judging (1994) 1 JCULR 135, 140-141.

[118] Watson v Foxman (1995) 49 NSWLR 315, 318-319.

[119] Ms Rutherford raised no objection to Mr Payten being listed as a witness in the pre-Hearing process. Ms Rutherford did object on the morning of Mr Payten's evidence on the last day of the Hearing. I determined that Mr Payten could give evidence in relation to the relevant matters he was directly involved in, based on his knowledge at the time. In closing submissions RACQ noted Ms Rutherford in cross-examination asked wide-ranging questions not limited to matters in which he was directly involved.

[120] The Commission is not aware of any pre-hearing issues raised by the Complainant regarding RACQ failure to disclose material made by Mr Bell, relevant to the proceedings and within their possession. Ms Rutherford raised no issue regarding disclosure during the Hearing.

[121] T2- 35 ll 16-20.

[122] T2-3 ll 31-44.

[123] T2-3 ll 41-43.

[124] Respondent's Response to Statement of Facts and Contentions, filed 8 January 2024, Part A Facts (5) (b); Respondent's Outline of Argument, filed 13 May 2024, footnote 3.

[125] This is explained by Ms Rutherford as meaning the specialist had limited availability rather than doctor shopping which was the inference in cross examination.

[126] While of no consequence it was discussed in cross-examination of Ms Rutherford that date of the 11th probably reflected the first working day after her leave end date. 

[127] Exhibit 1 attachment B-19.

[128] This puts Mr Bell's recollection of a phone call between July and September 2020. The content of the call according to this report of his recollection appears to relate more to the conversation that occurred in early June 2020 and completely fails to recollect that Ms Rutherford had subsequently advised the employer would need to follow up the required clearance. 

[129] T3-29 ll 17-24.

[130] T3-33 ll 12-14.

[131] T1-56 ll 34-38.

[132] Complainant's Outline of Argument, filed 2 May 2024, [15].

[133] Exhibit 1 attachment A-21.

[134] Exhibit 1 attachments B9, B11, B13 and B15 are examples of approved flexible working arrangements, as confirmed by Ms Rutherford in cross-examination.

[135] T1-18 l 43.

[136] Exhibit 1 attachment D-10, Exhibit 1 attachment D-9.

[137] T2-77 ll 14-15.

[138] Exhibit 1 attachment A-3.

[139] Exhibit 1 attachment A-7, p 2.

[140] Refer [20] of this Decision.

[141] Exhibit 1 attachment B-17, p 2.

[142] Exhibit 1 attachment A-8.

[143] Exhibit 1 attachment A-19.

[144] I assume this refers to the 6 week suitable duties plan signed by Ms Rutherford on 8/11/2019.

[145]Exhibit 1 attachment A-20.

[146] Exhibit 1 attachment A-21.

[147] Exhibit 1 attachment A-23.

[148] Exhibit 1 attachment B-20, p 166.

[149] T2-43 ll 10-12.

[150] T2-43 ll 14-23.

[151] T2-43 ll 38-40.

[152] 12 January 2022.

[153] Reproduced in full at paragraph [42] of this Decision.

[154] Exhibit 3. My summary of the calls included in this Decision arise from having listened to the audio recordings in their entirety rather than any specific reference pin-pointed by either party.

[155] The Respondent filed an application in proceedings objecting to the admission of the audio-recordings on 13 June 2024. The objection was withdrawn 25 June 2024 and confirmed for the record as a preliminary matter at the start of the Hearing at T1-7 ll 7-10.

[156] Exhibit 3.

[157] Exhibit 1 attachment B-24.

[158] Exhibit 1 attachment B-23.

[159] Exhibit 3.

[160] Exhibit 3.

[161] Exhibit 3.

[162] Petrak v Griffith University & Ors [2020] QCAT 351.

[163] Ms Boutwood did not explain whether the reference was to either or both the general exemption under s 108 of the AD Act or to the employer's duty under s 19 of the WHS Act.

[164] T2-109 ll 11-13.

[165] Exhibit 1 attachment A-12.

[166]  Exhibit 1 attachment A-19.

[167] T3-79.

[168] T3-55.

[169] Schipp v The Star Entertainment Qld Ltd; Minister for Education and Minister for Industrial Relations v The Star Entertainment Qld Ltd [2019] ICQ 9.

[170] Independent Commission Against Corruption v Cunneen [2015] HCA 14;(2015) 256 CLR 1, [57] (French CJ, Hayne, Kiefel and Nettle JJ).

[171] [2017] HCA 34;(2017) 262 CLR 362.

[172] Ibid [14] (citations omitted).

[173] Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28;(1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).

[174] Ibid [70].

[175] Certain Lloyd's Underwriters v Cross [2012] HCA 56;(2012) 248 CLR 378, [26] (French CJ and Hayne J).

[176] Northern Territory v Collins [2008] HCA 49;(2008) 235 CLR 619, [16] (Gummow A-CJ and Kirby J).

[177] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55;(2012) 250 CLR 503, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

[178] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2;(1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).

[179] CPB Contractors Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70, [60] (O'Gallaghan and Wheelahan JJ, Flick J at [8] concurring).

[180] Work Health and Safety Act 2011 (Qld) s 3(1)(a).

[181] Vairy v Wyong Shire Council (2005) 223 CLR 422, [23].

[182] (1991) 173 CLR 349.

[183] Ibid 368 - 370 (McHugh CJ and Gaudron J).

[184] Minister for the Environment & Heritage v Greentree (No 2) [2004] FCA 741.

[185] Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258, and followed in Jones v South Grampians Shire Council [2012] VSC 485. These cases are in relation to a common law negligence duty – arising out of the Asbestos Rule. Slightly different, but the Court in Caltex noted the Asbestos Rule "was for the better securing of the safety and health and improving the welfare of persons employed in, or employed in connection with, the business of factories or shops etc at [116] (Allsop P, Basten JA, Simpson J).

[186] The fact Ms Rutherford considers these disclosures to her line manager as private is not relevant.

[187] Complainant's Closing Submissions, filed 26 August 2024, 1.

[188] Also referred to as desk-toppers or varidesks.

[189] Mr Turner and Mr Schultz.

[190] T1-115 ll 10-20.

[191] T2-137 ll 41-49.

[192] T2-45 ll 31-47.

[193] Exhibit 1 attachment D-9.

[194] Respondent's Response to Statement of Facts and Contentions, filed 8 January 2025, [11]-[13].

[195] T3-34 ll 35-46; T3-35 ll 1-23.

[196] Ibid.

[197] T3-30 ll 31-43.

[198] Complainant's Closing Submissions, filed 26 August 2024.

[199] Respondent's Closing Submissions, filed 4 October 2024, [40].

[200] Haines v Bendall (1991) 172 CLR 60, 63.

[201] [2024] QIRC 93.

[202] The same can be said more broadly. However, slavish compliance to the existing range of damages awarded in similar matters should be approached with caution: Richardson v Oracle Corporation Australia Pty Ltd (2014) 312 ALR 285, [90] (Kenny J).

[203] T 1-11 ll 38-43. Complainant's Closing Submissions, filed 26 August 2024.

[204] Respondent's Closing Submissions, filed 4 October 2024, [40].

[205] Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22, [38].

[206] Sotiros Shipping Inc and Aeco Maritime SA v Sameiet Solholt, The Solholt [1983] 1 Lloyd’s Rep 605, 608.

[207] Wallace v Kam [2013] HCA 19, [24], [37], citing South Australian Asset Management Corporation & Ors v Eagle Star Insurance Co Ltd [1997] AC 191, 213-214.

[208] Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516, 554 [99]; [2001] HCA 68, endorsed in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28.

[209] Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd [2003] FCAFC 18, [17].

[210] Grant v John Grant Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23.

[211] Exhibit 1 attachment E-5.

[212] O'Brien v Dunsdon (1965) 39 ALJR 78, 78.

[213] Richardson v Oracle Corporation Australia Pty Ltd (2014) 312 ALR 285, [102].

[214] Wotton v State of Queensland (No 5) [2016] FCA 1457.

[215] Ibid [1731] (Mortimer J).

Close

Editorial Notes

  • Published Case Name:

    Rutherford v RACQ Operations Pty Ltd (No. 2)

  • Shortened Case Name:

    Rutherford v RACQ Operations Pty Ltd (No. 2)

  • MNC:

    [2025] QIRC 207

  • Court:

    QIRC

  • Judge(s):

    Caddie IC

  • Date:

    07 Aug 2025

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
Aeco Maritime SA v Sameiet Solholt (The Solholt) [1983] 1 Lloyd’s Rep 605
1 citation
Jump To
Cite 1 - [1983] 1 Lloyd’s Rep 605
Aon Risk Services Australia Limited v Australian National University (2009) HCA 27
2 citations
Jump To
Cite 1 - (2009) HCA 27
Cite 2 - (2009) HCA 27
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd (1997) AC 191
1 citation
Jump To
Cite 1 - (1997) AC 191
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258
2 citations
Jump To
Cite 1 - [2009] NSWCA 258
Cite 2 - [2009] NSWCA 258
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
1 citation
Jump To
Cite 1 - [2012] HCA 56
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
1 citation
Jump To
Cite 1 - (2012) 248 CLR 378
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
1 citation
Jump To
Cite 1 - (1997) 187 CLR 384
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2
1 citation
Jump To
Cite 1 - [1997] HCA 2
Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd (2012) 250 CLR 503
1 citation
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Cite 1 - (2012) 250 CLR 503
CPB Contractors Pty Limited v Construction [2019] FCAFC 70
1 citation
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Cite 1 - [2019] FCAFC 70
Dovedeen Pty Ltd v GK [2013] QCA 116
1 citation
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Cite 1 - [2013] QCA 116
Ewin v Vergana (No 3) [2013] FCA 1311
2 citations
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Cite 1 - [2013] FCA 1311
Cite 2 - [2013] FCA 1311
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
1 citation
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Cite 1 - [2012] HCA 55
Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112
2 citations
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Cite 1 - (1954) 91 CLR 112
Cite 2 - (1954) 91 CLR 112
Grant v John Grant & Sons Pty Ltd [1954] HCA 23
2 citations
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Cite 1 - [1954] HCA 23
Cite 2 - [1954] HCA 23
Haines v Bendall (1991) 172 CLR 60
2 citations
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Cite 1 - (1991) 172 CLR 60
Cite 2 - (1991) 172 CLR 60
Hall v Sheiban (1989) 20 FCR 217
1 citation
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Cite 1 - (1989) 20 FCR 217
Hampson v Department of Education [1991] 1 AC 171
1 citation
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Cite 1 - [1991] 1 AC 171
HREOC v Mt Isa Mines (1993) 46 FCR 301
1 citation
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Cite 1 - (1993) 46 FCR 301
Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1
1 citation
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Cite 1 - (2015) 256 CLR 1
Independent Commission Against Corruption v Cunneen [2015] HCA 14
1 citation
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Cite 1 - [2015] HCA 14
Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202
1 citation
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Cite 1 - (1998) 90 FCR 202
Minister for the Environment and Heritage v Greentree No. 2 [2004] FCA 741
2 citations
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Cite 1 - [2004] FCA 741
Cite 2 - [2004] FCA 741
Motlap v Workers' Compensation Regulator [2020] QIRC 196
2 citations
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Cite 1 - [2020] QIRC 196
Cite 2 - [2020] QIRC 196
Neil v Lee [2024] QIRC 93
2 citations
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Cite 1 - [2024] QIRC 93
Cite 2 - [2024] QIRC 93
Northern Territory v Collins (2008) 235 CLR 619
1 citation
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Cite 1 - (2008) 235 CLR 619
Northern Territory v Collins [2008] HCA 49
1 citation
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Cite 1 - [2008] HCA 49
O'Brien v Dunsdon (1965) 39 ALJR 78
1 citation
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Cite 1 - (1965) 39 ALJR 78
Petrak v Griffith University & Ors [2020] QCAT 351
2 citations
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Cite 1 - [2020] QCAT 351
Cite 2 - [2020] QCAT 351
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
1 citation
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Cite 1 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
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Cite 1 - (1998) 194 C.L.R 355
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
1 citation
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Cite 1 - (2003) 217 CLR 92
Qantas Airways Ltd v Gama (2008) 167 FCR 537
1 citation
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Cite 1 - (2008) 167 FCR 537
Richardson v Oracle Corporation Australia Pty Ltd ( (2014) 312 ALR 285
2 citations
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Cite 1 - (2014) 312 ALR 285
Cite 2 - (2014) 312 ALR 285
Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68
1 citation
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Cite 1 - [2001] HCA 68
Roxburgh v Rothmans of Pall Mall (2001) 208 CLR 516
1 citation
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Cite 1 - (2001) 208 CLR 516
Rutherford v RACQ Operations Pty Ltd [2024] QIRC 145
2 citations
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Cite 1 - [2024] QIRC 145
Cite 2 - [2024] QIRC 145
S v Kwalase (1994) 1 JCULR 135
1 citation
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Cite 1 - (1994) 1 JCULR 135
Schipp v The Star Entertainment Qld Ltd; Minister for Education and Minister for Industrial Relations v The Star Entertainment Qld Ltd [2019] ICQ 9
2 citations
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Cite 1 - [2019] ICQ 9
Cite 2 - [2019] ICQ 9
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
1 citation
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Cite 1 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
1 citation
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Cite 1 - (2017) HCA 34
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
1 citation
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Cite 1 - [2015] HCA 28
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
1 citation
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Cite 1 - (2015) 256 CLR 507
Vairy v Wyong Shire Council (2005) 223 CLR 422
2 citations
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Cite 1 - (2005) 223 CLR 422
Cite 2 - (2005) 223 CLR 422
Vuga v Persal & Co. Trading Pty Ltd [2017] QCAT 368
1 citation
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Cite 1 - [2017] QCAT 368
Wallace v Kam [2013] HCA 19
1 citation
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Cite 1 - [2013] HCA 19
Walters v Public Transport Corporation (1991) 173 CLR 349
2 citations
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Cite 1 - (1991) 173 CLR 349
Cite 2 - (1991) 173 CLR 349
Watson v Foxman (1995) 49 NSWLR 315
2 citations
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Cite 1 - (1995) 49 NSWLR 315
Cite 2 - (1995) 49 NSWLR 315
Wotton v State of Queensland (No 5) [2016] FCA 1457
1 citation
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Cite 1 - [2016] FCA 1457

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No judgments on Queensland Judgments cite this judgment.

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