Chivers v State of Queensland (Queensland Health)

In this matter the Court of Appeal considered the scope and operation of the definition of “genuine occupational requirements” under to s 25 of the Anti-Discrimination Act 1991 (“ADA”).

This matter arose following the filing of a complaint by the appellant, a nurse, against the respondent, her employer, alleging that its conduct amounted to discrimination pursuant to s 15(1) ADA. During her nursing studies the appellant had suffered a head injury. Upon commencing the probation period of her employment with the respondent it became apparent that, as a consequence of side-effects related to this injury, she was unable to work the night-shift. Due to her failure to undertake night-duty, the respondent repeatedly extended her probation period: see discussion [7]–[23]. The appellant ultimately resigned and filed a complaint against the respondent alleging contraventions of inter alia s 11(1) of the ADA. QCAT dismissed her claim and she appealed to the Court of Appeal.

The principle issue before the Court was whether the capacity to work the night-shift was a “genuine occupational requirement” of nurses. If so, pursuant to s 24 of the ADA any discrimination was not unlawful. In addressing this question the Court first looked to the decisions of High Court in Qantas Airways v Christie and X v The Commonwealth which had considered analogous provisions in Commonwealth legislation and held that:

“[W]hether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also be referenced to the function which the employee performs as part of the employer’s undertaking and …by reference to that organisation.”

[41]. In applying this test to the matter before it, the Court paid particular attention to the appellant's function and role as part of the respondent's overall undertaking, namely the provision of 24/7 nursing care. On this basis the Court concluded that "the roster system for 24/7 wards” and, as a consequence, the ability to work all shifts, was a “genuine occupational requirement”; [58], see also [59]-[61]. To confine the genuine occupational requirements of a nurse to the physical tasks and functions, as advocated by the appellant would fail to account for the actual purpose of the appellant’s role and the reasons for her employment. See the discussion at para [50]. Further, despite evidence that some nurses were working on a basis other than the normal, full-time 24 hour shift, the Court concluded that given that these arrangements were temporary, the evidence “failed to suggest that the requirement was not genuine” [45] and “the fact that exceptions [were] made from time to time in order to administer humanely a system that is essential to a particular employment, does not deprive it of its genuineness.” [51]. As a consequence, the Court dismissed the appeal.