Atchison v State of Queensland - [2013] QCAT 132

CITATION:

Atchison v State of Queensland & Ors [2013] QCAT 132

PARTIES:	Janette Margaret Atchison (Applicant)
v
State of Queensland (First Respondent) Helen Starr (Second Respondent) Carmel Davis (Third Respondent)

APPLICATION NUMBER:

ADL142-11

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

11 – 14 March 2013

HEARD AT:

Brisbane

DECISION OF:

R M Clifford, Member

DELIVERED ON:

5 April 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the complaints against the State of Queensland, Helen Starr and Carmel Davis are dismissed.

CATCHWORDS:

DISCRIMINATION - employment - impairment - direct or indirect - request for adjustments

Anti-Discrimination Act 1991 (Qld), s 7(h), s 10(1), s 11(1), s 11(2), s 15, Schedule

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Ken Watson, Counsel, instructed by Susan Moriarty & Associates (Lyle Beaton)

RESPONDENT:

Dr Max Spry, Counsel, instructed by Crown Law (Catriona McPherson)

REASONS FOR DECISION

Janette Atchison is a 54 year-old woman with extensive qualifications in education/educational services, including five Master Degrees. Ms Atchison has been employed by the Department of Education in a variety of roles for around 10 years. Ms Atchison currently holds a permanent position as a Guidance Officer (GO).
The role of GO is to provide professional expertise to school communities to assist students in achieving positive educational outcomes. To achieve this GOs develop and implement programs for students that focus on preventative and early intervention strategies. GOs also advocate, provide counselling, conduct psycho-educational assessment and provide advice to students, teachers and parents concerning educational, behavioural, career development, mental health and family issues.
Ms Atchison has various medical conditions including or described as, muscle pain, asthma, hypertension, migraine, tachycardia, adjustment disorder with anxiety and depressed mood, prolapsed discs, osteoarthritis, age related degeneration to neck and one knee and allergy.
In late 2007 Ms Atchison started work as a Senior Guidance Officer (SGO). This was an ‘acting’ temporary arrangement that continued through a number of extensions until 19 January 2011.
The role of a SGO is, amongst other things, to work with Principals and school-based GOs to ensure the effective provision of guidance and counselling service directly to students.
The schools Ms Atchison was responsible for, as Acting SGO in 2007 until early 2010, were Corinda State High School, Indooroopilly State High School, Kelvin Grove State College, Kenmore State High School, Milpera State High School, Qld Academy - Creative Industries, Qld Academy - Science Maths and Technology, The Gap State High School and Yeronga State High School.
Ms Atchison lives at Westlake. As an Acting SGO Ms Atchison was initially based at Yeronga State High School but by mid-2008 was based at the Kedron Regional Office.
Ms Atchison was based at the Kedron office when in early 2010 the Department of Education underwent a State-wide restructure. The restructure involved re-organising the then 10 regions within the Department into seven regions.
In April 2010 the Greater Brisbane Region, the region to which Ms Atchison was attached, was amalgamated with the Moreton Region to create a new Metropolitan Region.
Not all the staff from the two former regions transferred to the new Metropolitan Region. Around 10% and 20% of the staffing resources were lost from each of the former regions to other new regions.
Given the restructure it was apparent there would be changes to the schools to which SGOs had previously been responsible as well as changes in reporting/supervisory lines.
Arising from or concurrent to the restructure Ms Atchison raised a number of concerns that formed the basis of her complaints and this proceeding. The main issues included: the ‘reallocation of schools for SGOs; not being ‘based’ at a school closer to her home; and whether Acting SGO arrangements would be extended or made permanent’.
In addition to the environment of a restructure, on 16 July 2010, Ms Atchison commenced two months sick leave for stress and high blood pressure.[1] Ms Atchison subsequently made a workers’ compensation claim in relation to this leave.
[1] Exhibit 1, JMA 30.
A couple of weeks after Ms Atchison commenced sick leave Ms Atchison’s Acting SGO role, along with other Acting SGOs, was recorded as being extended until 19 January 2011.[2]
[2] Exhibit 1, para 78 and JMA 33 – see also para 54.
Ms Atchison was already in discussions with her employer about a Return to Work (RTW) plan when on 20 October 2010 Ms Atchison was diagnosed with adjustment disorder with anxiety and depression.[3]
[3] Exhibit 1, JMA 42.
Given the timing of Ms Atchison’s leave, the RTW discussions necessarily involved whether Ms Atchison would be returning to work as an Acting SGO or to her substantive position as a GO, as well as the location Ms Atchison would be based on her RTW.
During Ms Atchison’s leave further issues arose during including: the ‘Expression of Interest (EOI) process concerning Acting SGO opportunities beyond 19 January 2011 and the proposal to place Ms Atchison at the Brisbane School of Distant Education (BSDE) on her RTW’.
Ms Atchison RTW in August 2011.
Ms Atchison broadly contends, various decisions or non-decisions, around all these issues were based on her impairments and constituted either direct or indirect discrimination in her employment as provided under the Anti-Discrimination Act 1991.
The Anti-Discrimination Act 1991 proscribes discrimination based on particular attributes, including impairment,[4] in various areas, including in employment.[5] Impairment is broadly defined[6]. The alleged acts may be characterised as direct or indirect discrimination.
[4] Anti-Discrimination Act 1991, s 7(h).
[5] Ibid; s 15.
[6] Ibid; Schedule - Dictionary
Direct discrimination on the basis of an impairment happens when a person treats, or proposes to treat, another person with an impairment less favourably than another person without the impairment in circumstances that are the same or not materially different. Indirect discrimination on the basis of an impairment happens if a person imposes, or proposes to impose, a term on a person with an impairment when the person with the impairment is not able to comply, and when a higher proportion of people without the impairment are able to comply and the term is not reasonable.[7]
[7] Ibid; ss 10 (1), 11(1) and see s 11(2) whether a term is reasonable.

Reallocation of schools for SGOs

Given the State-wide restructure of 10 Regions into seven Regions it is unsurprising the boundaries of Regions would be redrawn, and that schools captured within the old boundaries, would either merge into the new Metropolitan Regional boundary or be lost to other Regions.
Ms Atchison claims that she was unilaterally assigned a range of schools on the north side of Brisbane and this required her to drive to the Kedron Office on a daily basis and then onto these schools.
Chris Rider, Regional Director, was in charge of the Metropolitan Region transitional process. Mr Rider testified that he led a process to minimize the disruption the restructure had on staff.
Helen Starr, Principal Advisor, Education Services for the Metropolitan Region supervised the SGOs in the Secondary school team from 6 April 2010 until 30 June 2010. Ms Starr says at a restructure meeting on 15 April 2010 she facilitated discussion amongst SGOs to collectively map out and determine their caseloads and schools for which they would be responsible for in the Metropolitan Region. Ms Starr describes the use of a whiteboard and a spreadsheet outlining the schools to be allocated.[8]
[8] Exhibit 10, para 29 and HS1.
Cathy Pappalardo, one of the Acting SGOs at the time, confirms that SGOs were told they had to redistribute schools at the meeting. Ms Pappalardo says there was open discussion and Ms Atchison voiced her disagreement about south-side SGOs taking some of the schools she had been responsible for in the Central and Western suburbs. Ms Pappalardo openly stated the schools she did not wish to lose.[9]
[9] Exhibit 7, paras 7-10.
Tony Smith, another Acting SGO, said during meetings to discuss the reshuffling of schools the SGOs sat around a table with a whiteboard and collectively determined the schools. Mr Smith states Ms Starr facilitated the meetings.[10]
[10] Exhibit 18, paras 19-21.
Alan McGrath, another Acting SGO said, although he was not included in the first meeting he had concerns about the allocations because there was no geographical, logistical or professional criteria used and workloads were uneven and some resulted in unnecessary travel time. Mr McGrath said he discussed his concerns with Carmel Davis, the Principal Advisor, Education Services who was responsible for the coordination of the Regional Senior Student Services Team that included the SGOs.[11]
[11] Exhibit 8, para 9.
Ms Davis said Ms Atchison was involved in the school re-allocations and that Ms Davis received a ‘copied’ email Ms Atchison has sent to other SGOs on 14 July 2010 attaching a spreadsheet prescribing the school allocations and inviting them to make changes.[12]
[12] Exhibit 11, CD1.
The Tribunal is satisfied that because of the restructure the SGOs were aware that a re-allocation of schools was necessary. The Tribunal is satisfied that the SGOs were primarily responsible for the carve-up of schools and were aware of the general number of students they were required to take on. It is clear the SGOs were able to express their concerns and they did so. Ms Atchison herself said SGOs were antagonistic towards each other and Tony (Smith) would not give up Kenmore.
The Tribunal is satisfied that as a group of professionals the SGOs ultimately came up with a list and, despite various grumblings about the unevenness of numbers of excluded students in each area or that one SGO would not give up a particular school for another SGO, the list Ms Atchison circulated for comment was generally accepted. In these circumstances the Tribunal cannot find Ms Atchison was unilaterally assigned a range of schools and dismisses that complaint.

Not being ‘based’ at a school closer to home

Prior to March/April 2010 Ms Atchison had been based at the Kedron Regional office for nearly two years.
March/April 2010 was a disruptive time for all staff of the Department. For the former Moreton and Greater Brisbane Region staff there was not only a new organisational structure but changes to the schools to which SGOs were responsible and changes in supervisory lines and personnel. In April 2010 Ms Atchison was also seeking to increase her 0.9 Full Time Equivalent (FTE) Acting SGO role to 1.0 FTE.
Prior to the restructure Robert Seilor supervised Ms Atchison.
In the new arrangements Helen Starr was the SGOs day-to-day supervisor. Carmel Davis was coordinator for the Regional Senior Secondary Services, of which SGOs formed part.
Ms Atchison preferred Mr Seilor as her supervisor to Ms Starr.
Ms Atchison would from time to time pick up Mr Seilor from his home and drive him to and from work at Kedron. Mr Seilor and Ms Atchison would on those occasions discuss various issues including traffic problems and personal ailments.
Ms Atchison formed a view that Ms Starr was not an appropriate supervisor because, Ms Starr had expressed unsuitable advice about a suicidal student, had reduced Ms Atchison to tears by not listening and talking over her[13] and had supported another Acting SGO for a permanent SGO over which Ms Atchison subsequently, but unsuccessfully, appealed.[14]
[13] Exhibit 1, para 23.
[14] Exhibit 4, email dated 6 April 2010, J Atchison to Queensland Teachers Union.
Prior to the restructure Ms Atchison had nine schools to cover. After the restructure Ms Atchison lost four schools: Corinda, Indooroopilly, Yeronga and Kenmore and gained three schools: Brisbane, Mitchelton and Ferny Grove.
Ms Atchison claims that on 21 April 2010 she asked Ms Starr if she could work from Mt Ommaney Special School because two other staff worked from that school and because of the negative effect the peak hour traffic was having on her medical conditions. Ms Atchison says she made this request following a SGO meeting on 20 April 2010 when Chris Rider, Regional Director, is said to have expressed the view he did not mind whether SGOs were based in a district office or school. Ms Atchison says Ms Starr declined the request.
Ms Atchison says in May 2010 she again raised the physical effects the daily long distance drive was having upon her with Ms Starr. Ms Atchison claims whilst Ms Starr offered to stagger her work times to avoid peak hour traffic, declined to reconsider the request to move to a base closer to home. Ms Atchison contends that this decision along with the refusal of the original request constitutes either direct or indirect discrimination.
Ms Starr says she has no recollection of Ms Atchison’s request on 21 April 2010. An email dated 27 April 2010 from Ms Atchison to Ms Starr says, amongst various other issues: ’Given Chris Rider’s recent discussion on 20 April 2010, I would like to be based at Mount Ommaney Special School as I spend 1 ¼ hours driving to Kedron every morning.’[15] Ms Starr inquired no further into that request but forwarded the email to Peter Blatch, Deputy Regional Director.
[15] Exhibit 10, HS6.
It is agreed that in early May 2010 Ms Starr suggested to Ms Atchison to stagger her work to minimise peak hour traffic hours. Ms Starr also approved time off for medical appointments. Ms Starr says it was after this and later in May she became aware Ms Atchison wanted to be reassigned from the Kedron office because of medical conditions. Ms Starr says she advised Ms Atchison to provide medical certificates and to discuss the request with Carmel Davis.
Ms Atchison obtained a medical certificate from her general practitioner dated 11 June 2010. It states that Ms Atchison: ’…has muscle pain aggravated by prolonged driving, high blood pressure and asthma. It would greatly benefit her if she did not have to drive through peak hour traffic and if she could be located closer to home. Given the number of medical conditions and specialists she sees regularly, it would be prudent if she remains close to home in Brisbane.’
Ms Atchison obtained a further medical certificate, from another general practitioner based in the same medical centre, dated 30 June 2010. That certificate states: ’This patient has asthma and migraines which are temperature variants. She is better with air conditioning and heating facilities.’
Ms Starr retired from employment on 30 June 2010.
Ms Atchison faxed both certificates to Michael Tathem, Principal Human Resource Consultant, on 6 July 2010.[16]
[16] Exhibit 12.
Ms Davis says she recalls Ms Starr advising her about Ms Atchison’s request, but could not recall on what date. Ms Davis became aware, from an email sent by Ms Atchison on 15 July 2010, that Ms Atchison was of the view that: ’driving for much longer intervals has aggravated my prolapse, increased my blood pressure and the released too much muscle enzyme into my blood stream resulting in some adverse outcomes.’[17] That email also advised that Michael Tathem had a copy of certificates that indicated Ms Atchison needed to be located closer to home and avoid driving in peak hour.
[17] Exhibit 11, CD 9.
After locating the documentation from a working file in Michael Tathem’s office Ms Davis responded to Ms Atchison on 20 July 2010. Ms Atchison was however already on two months leave as certified by Ms Atchison’s specialist physician. That certificate amongst other things states: ’I have decided to give Janette two months stress leave since I feel she really needs this. She is getting high blood pressure and tachycardia during the day. Her blood pressure was 159/99 with a heart rate of 96 beats per minute when I took it.’[18]
[18] Exhibit 1, JMA 30.
From mid July 2010 Ms Atchison did not return to work until August 2011.
Ms Atchison says she had been raising issues about the long drive to work with Robert Seilor prior to Ms Starr commencing work at Kedron in April 2010.
The Tribunal is not persuaded that these communications can be characterised as a proper request for adjustment to work arrangements in employment because of impairment/s. Requesting adjustment in employment because of impairment/s, particularly where the impairments are multi-faceted, variable and complex, and the adjustment that may be required is not clearly apparent, requires a more formal and considered approach.
Conversations about personal ailments on an occasional drive to work are informal and personal, and in the circumstances described, do not reach the level of formality a request for adjustment requires. The Tribunal is not of the view that it is up to Mr Seilor or the Department to ‘join the dots’ on informal conversations or tangential information contained in emails to construct a request for adjustment. Apart from some extraordinary circumstance the Tribunal is of the view it is incumbent on Ms Atchison to properly articulate her request and put it in a proper form to her employer to consider. Ms Atchison was up to that task. Ms Atchison is a well-educated woman who had no difficulty in speaking up for herself in this proceeding and has previously appealed a permanent appointment.
Mr Seilor was no longer Ms Atchison’s supervisor. Ms Starr was Ms Atchison’s supervisor and Ms Davis was responsible for the coordination of the Regional Senior Secondary Services where the SGOs were placed.
Whilst the Tribunal is not persuaded that Ms Atchison’s conversations with Mr Seilor or early conversations and email to Ms Starr could be or should be construed as a request for adjustment, the Tribunal is satisfied that Ms Atchison ultimately got her message across, albeit through a number of emails on various topics to many recipients.
When Ms Starr became aware in May 2010 Ms Atchison was struggling with the peak hour drive and various appointments she suggested Ms Atchison stagger her start time and she approved time-off for medical appointments. When Ms Starr was aware Ms Atchison was requesting adjustment to her work base because of medical conditions Ms Starr properly requested medical certification be provided.
Whilst Ms Starr’s retirement on 30 June 2010 caused some disruption to the reporting line Ms Davis became aware of the request for adjustment and medical certificates about two weeks later.
Ultimately Ms Atchison commenced sick leave before any consideration of her request to be based elsewhere could be made.
Ms Atchison was engaged in a process that had not commenced in any formalised manner but which the Tribunal accepts was relatively clear in May 2010. The Tribunal is satisfied that Ms Starr implemented the arrangements she had authority to deal with and Ms Atchison accepted those arrangements. Once Ms Starr was aware Ms Atchison wanted something beyond those arrangements she properly requested medical certification and passed the matter to Ms Davis for consideration. Ms Atchison proceeded on sick leave in mid-July 2010 before any decision could be made.
It is difficult in these circumstances for the Tribunal to be persuaded that Ms Atchison was directly discriminated against because of her impairments. Ms Atchison has provided no evidence that this request process, running concurrently to a major State-wide departmental restructure, constitutes less favourable treatment because of her impairments compared to another, without those impairments, in these same or similar circumstances.
It does not follow that because some SGOs retained schools closer to their homes direct discrimination is made out. The circumstances that resulted in the allocation of schools to SGOs were not made in the same or similar circumstances to Ms Atchison’s request for adjustment. The Tribunal has already found that the school allocation arrangements arose from a different process and were essentially decided by the SGO’s themselves and thus are not in the same or similar circumstances to a request for adjustment that is necessarily made through line managers.

Ms Atchison alternatively contends that the Department and Ms Starr imposed a term that she attend on a daily basis the Kedron office and travel to schools at considerable distances from her home.
A job with the Department naturally requires a location. The job description for a SGO indicates the location is Region or school based.[19] Ms Atchison was based at Yeronga school when she first commenced her role as an Acting SGO in November 2007. By mid-June 2008 she was based at the Kedron office. There is no evidence this move was imposed on Ms Atchison. In fact Ms Atchison remained based at the Kedron office for nearly two years before she made a request for any adjustment. Ms Atchison described how she structured her work to avoid traffic or taking time off work. Ms Atchison confirmed that she did not need to travel to schools every day and those meetings with GOs were made through mutual negotiation. As a professional Ms Atchison had flexibility in her own work plan.
[19] Exhibit1, JMA 3.
There was much discussion relating to whether Mr Rider said or meant SGOs could be located at regional offices or schools at the restructure meeting on 20 April 2010. The Tribunal is satisfied that even if Mr Rider meant SGOs were to remain in their current locations, as he claimed was his intention to avoid disruption, there is no evidence to suggest that even if the Department preferred that SGOs be based in regional offices that that preference would be imposed in the face of a reasonable and properly articulated request for an adjustment because of an impairment.
Ms Starr was not in a position to make that decision and rightly referred the request to Ms Davis for consideration. Before the matter could be fully considered Ms Atchison commenced two months sick leave that extended long-term. In these circumstances the Tribunal is not persuaded that the Department or Ms Starr imposed a term in relation to Ms Atchison’s work base and dismisses that complaint.

Acting SGO arrangements and permanency, Expression of Interest (EOI) process for post January 2011

Given the restructure process it is not unexpected Ms Atchison was concerned whether her Acting SGO arrangement would be extended beyond its then current term, or whether she would gain a permanent position if the opportunity arose, or whether she would be returning to her substantive permanent GO position.
Thus it is not surprising Ms Atchison sought information about whether a revised Public Service Commission Directive which provided in part that, subject to certain criteria, an employee may be directly appointed to roles at a higher level.[20] Whilst Ms Atchison contends she was denied permanent appointment because of her impairment through this process, Counsel for Ms Atchison in closing submissions did wish to press, although not abandon, this contention.
[20] Exhibit 1, JMA 4.
Whilst the Tribunal is satisfied Ms Atchison made preliminary inquiries with Mr Tathem and the Queensland Teachers Union[21] whether the Directive may be applicable to her circumstances, the Tribunal is satisfied that Ms Atchison did not engage any process that may have enlivened formal consideration of her circumstances to the Directive. A decision from which, at the time, would have been open to appeal through the Appeals Officer at the Public Service Commission. The Tribunal dismisses this complaint.
[21] Exhibit 16, MT 2 and Exhibit 4.
In relation to the Acting SGO arrangements Ms Atchison claims that Ms Davis had prejudged the 2011 EOI outcome when Ms Davis advised Ms Atchison as such during a telephone conversation on or about 10 June 2010.[22] Ms Atchison further claims that she was not notified when the 2011 EOI process commenced or closed resulting in a late EOI for Acting SGO and other higher-level roles.
[22] Exhibit1, para 54.
Ms Atchison contends these actions constitute direct or indirect discrimination in that the Department and Ms Davis were of the view they should only accommodate medical conditions at a substantive level, had presumed she did not have the capacity to undertake the duties of a SGO because of her impairment and denied her access to promotional opportunities. Alternatively Ms Atchison contends that Ms Davis and the Department imposed a term that Acting SGOs not suffer impairment in carrying out those duties.
Ms Davis does not deny she had a telephone conversation with Ms Atchison on 10 June 2010, but denies she told Ms Atchison that she would be returned to her substantive GO position in 2011 and that she would not be employed as an Acting SGO or SGO beyond January 2011.
Ms Davis says that as of 10 June 2010 the Department had not made any decisions for any Acting SGOs beyond January 2011.
The Tribunal is not persuaded Ms Davis advised Ms Atchison that her Acting SGO role would not be renewed in 2011. Firstly, it appears Ms Atchison is unclear about when this conversation is said to have taken place. In her statement Ms Atchison says it was during a telephone call on 10 June 2010.
Ms Atchison describes the call as: ‘Ms Davis said to me ‘Hello young Janette’. I replied that I did not feel young but old and tired. Ms Davis informed me that she would find me a school close to home when I returned to my position as a GO in 2011. She said she intended to extend my A/g SGO contract to January 2011 and then send me back to a school. Accordingly Ms Davis had made the decision not to employ me as an A/g SGO in 2011.’
Further in Ms Atchison’s statement she says: ‘In or around July 2010 I told Ms Davis of my impairment and the effect long distance driving was having on those conditions and informed her of my interest in being assigned to a base closer to home. Ms Davis indicated she would base me in a school from January 2011 and this would be closer to my home than the Kedron office. This would be as a GO not as a SGO. In doing so, Ms Davis indicated she was refusing to renew my A/g SGO position.’[23]
[23] Exhibit 1, paras 62 and 63.
It is not clear to the Tribunal whether Ms Atchison claims Ms Davis expressed this view on two separate occasions or whether Ms Atchison confused the dates.
On 10 June 2010 Ms Atchison had not produced any medical certificates as requested by Ms Starr. Ms Atchison states that it was in July 2010 she told Ms Davis of her impairment and the effect long distance driving was having on medical conditions. Although Ms Atchison does not describe any other circumstances of how she told Ms Davis of her concerns it is accepted Ms Davis was made aware of Ms Atchison’s concerns with impact driving had on her health via email on 15 July 2010.[24]
[24] Exhibit 11, CD 9.
In the circumstances the Tribunal is not persuaded Ms Davis had expressed a view to Ms Atchison in June 2010 that she would not be extended as an Acting SGO beyond 2011 as the Tribunal is satisfied Ms Davis had no real knowledge of any impact the driving had on Ms Atchison’s health at that time.
The Tribunal notes that around this time Ms Atchison was also in the midst of converting her (0.9) FTE SGO role to a (1.0) FTE role. This process initially involved allocating a (0.1) fraction of a GO position to make Ms Atchison’s work hours equivalent to a FTE (1.0). Shortly after that Ms Atchison was allocated FTE (1.0) hours as Acting SGO. This transitional process may have caused confusion or cross-communications between Ms Atchison and Ms Davis.
The Tribunal is also not persuaded Ms Davis ‘indicated’ to Ms Atchison in July 2010 that she would base Ms Atchison at a school closer to her home as a GO and not as SGO. Whilst Ms Atchison was concerned that her Acting SGO role would not be extended, which she confirmed at hearing was because of the management and organisational change, there is overwhelming documentation that suggests Ms Atchison was not excluded from being considered for such a position.
Ms Atchison was aware by mid-April 2010 that an Expression of Interest (EOI) process was likely for future acting SGO arrangements.[25] By telephone conversation on 10 June 2010 and again on 15 July 2010 Ms Atchison was aware that Ms Davis had formalised her Acting SGO arrangement until 19 January 2011.[26] On 22 September 2010 Ms Atchison was informed that an EOI would occur in Term 4, 2010 for any temporary SGO positions in the Metropolitan Region from February 2011.[27]
[25]        Exhibit 4, in particular p 4.
[26]        Exhibit 1, JMA 31.
[27]        Exhibit 1, JMA 38.
Aisla Nicol, Senior Injury Management Consultant, also emailed Ms Atchison the EOI form and Memo on 27 October 2010.[28] Forming part of that email chain was an email from Garry Innes, Director Human Resources, stating the recruitment process outlined in the EOI Memo and Form meet the requirements of the relevant Directive and published departmental guidelines. On 3 November 2010 Ms Nicol again forwarded the EOI document to Ms Atchison at the request of Ms Davis[29] and Ms Atchison replied on 4 November 2010 saying, amongst other things, ‘Thank you for the EOI - twice. Thanks to Carmel too.’[30]
[28]        Exhibit 1, JMA 43.
[29]        Exhibit 1, JMA 52.
[30]        Exhibit 19, AN 7.
Ms Atchison submitted an EOI, for Acting SGO, and other positions, on 25 November 2010. Ms Atchison sent the EOI via email and not via the EOI Registry as she said she had no access to the computer system.[31]
[31] Exhibit 1, JMA 51.
By this time however Ms Davis had closed the EOI process for the Acting SGO roles in 2011 on 19 November 2010. Ms Davis says Ms Atchison had not submitted an EOI by that time and so was not considered. Ms Davis says after checking referees she notified the relevant staff.
At hearing Ms Davis confirmed she did not advise any staff of a closing date, but said staff understood that a decision was due because of the time frame. Ms Davis also said she was not aware until after the 25 November 2010 that Ms Atchison had submitted a late EOI on that date.
On 15 July 2010 Ms Atchison emailed Ms Davis thanking her for formalising her Acting SGO role to January 2011. Ms Atchison also noted, amongst other things, that previously she and some other SGOs hadn’t been required to complete any paperwork for an extension, but said ’now they were aware of the new procedures we shall follow them.’[32]
[32] Exhibit 1, JMA 31.
Ms Atchison was reminded of the EOI process at least on two occasions and whilst the Tribunal considers it would have been more helpful to notify staff of a closing date for the Acting SGO positions, the Tribunal accepts that the Register works as a continuous/rolling process whereby those who have Registered may be considered for any acting role they have nominated should a casual vacancy arise.
In the circumstances the Tribunal is not persuaded Ms Atchison was denied an opportunity to be considered for an Acting SGO role post January 2011. Ms Atchison was aware of the process and given plenty of time and reminders to submit an EOI. The fact Ms Atchison submitted an EOI after a decision had been made does not in the Tribunal’s view constitute a denial of opportunity. Consequently Ms Atchison’s contention that failure to provide such an opportunity was based on her impairment must fail. The Tribunal dismisses this complaint.

Proposal to place Ms Atchison at the Brisbane School of Distant Education (BSDE) on her RTW

Ms Atchison commenced sick leave in July 2010 for stress and high blood pressure. Ms Atchison subsequently made a workers’ compensation claim in relation to that leave. In October 2010 Ms Atchison was diagnosed with adjustment disorder. Whilst Ms Atchison’s Return to Work (RTW) program mainly concerned this issue it became necessary to consider Ms Atchison’s previous request for adjustment based on other physical conditions in the RTW process.
Ms Nicol was Ms Atchison’s original case manager for the workers’ compensation claim. Ms Nicol described this role as one that acted as a conduit between WorkCover and the Department to assist in the development of a suitable rehabilitation and RTW plan to ensure Ms Atchison returned to a safe and sustainable work place as soon as possible.[33] Richard Thornhill of WorkCover later took on that role as Ms Atchison raised concerns about Ms Nicol’s manner and approach.
[33] Exhibit 19, para 23.
Ms Atchison claims that during the RTW process the Department proposed that she be assigned to the Brisbane School of Distance Education. Ms Atchison contends that the BSDE, which at the time was located at West End and proposed to be relocated to Coorparoo, is further from her home in Westlake than the Kedron office and thus constitutes direct or indirect discrimination based on her impairment/s.
Ms Atchison also claims that the Department discriminated against her further, either directly or indirectly, by proposing she be assigned to the Jindalee school because it had stairs she would have to walk up throughout the day.
There was much discussion about whether the BSDE was actually proposed as a school to which Ms Atchison could RTW or whether BSDE was only named so as to ‘hold’ Ms Atchison against a position for budgetary/accounting purposes.
The Tribunal accepts that Ms Atchison’s name needed to be held against a position at one school for budgeting purpose.
The Tribunal is also satisfied that the BSDE was in the mix, amongst other schools, that could have been considered as a place for Ms Atchison to RTW.
The Tribunal is also satisfied that it was made clear by Peter Blatch, Assistant Regional Director, in his letter to Ms Atchison on 20 January 2011 proposing BSDE as the substantive location in 2011 that: ‘A final decision will not be confirmed until discussion has occurred with you, and consideration given to all information provided by you and your Doctor, relevant to your safety at work.’[34]
[34] Exhibit 17, PB 8.
Whilst Ms Atchison did not respond directly to that letter, Mr Thornill forwarded a list of 10 schools to the Department that Ms Atchison considered suitable for her to undertake a RTW, that list included Corinda and Jindalee State Schools.
In response to those suggestions the Department agreed to place Ms Atchison at Corinda school. Ms Atchison however objected to the Corinda placement because her work as a GO was out of date, she would need retraining in secondary matters[35] and was ‘humiliated to go back’ because she had previously supervised the GOs who were based there.
[35] Exhibit 19, AN 23.
The Department then agreed Ms Atchison could be placed at Jindalee school. Ms Atchison also objected to that school because it was not a single storey school,[36] even though Ms Atchison was aware her office would be downstairs. Ms Atchison later raised concern about the presence of mould at the school, as the school that had been flood affected, and the affect it may have on her medical conditions including asthma.[37]
[36] Exhibit 17, PB 12.
[37] Exhibit 1, para 120.
In light of the various objections Ms Atchison raised the Department arranged for Ms Atchison to undertake an assessment with an independent occupational physician in June 2011.[38] Ultimately Ms Atchison RTW at Corinda State School in August 2011.
[38] Exhibit 17, PB 13.
Ms Atchison contends that the proposal to place her at BSDE and Jindalee school constitute either direct or indirect discrimination. However, in final submissions Ms Atchison’s Counsel did not seek to press with the contention, although not abandon, that the proposed placement at Jindalee school was discriminatory.
Ms Atchison, not the Department, proposed Jindalee State School. Even though Ms Atchison later raised new concerns in regard to that school, it seems a misconception that Ms Atchison could consider her own proposal as constituting direct or indirect discrimination by the Department. The Tribunal dismisses this complaint.
Furthermore, whilst the Tribunal is satisfied that the BSDE was proposed as an option for placement, the Tribunal is not persuaded that by merely proposing BSDE for consideration as a RTW place constitutes direct or indirect discrimination. Ms Atchison has provided little, if any, evidence that this proposed placement, considered in a RTW process, constitutes less favourable treatment based on her impairment/s compared to another without the impairment/s in the same or similar circumstances.
The Tribunal is also not persuaded that the Department proposed ‘to impose a term’ which Ms Atchison could not meet because of her impairment/s. The BSDE proposal was conditional. Ms Atchison, WorkCover and the treating medical practitioner were to be consulted and they were. To impose a term suggests forcing a term without condition. The Tribunal is satisfied this was not the case in Ms Atchison’s RTW circumstances and dismisses the complaint.
The Tribunal accordingly orders that the complaints against the State of Queensland, Helen Starr and Carmel Davis are dismissed.