Charrington v State of Queensland - [2013] QCAT 503

CITATION:

Charrington v State of Queensland & Ors [2013] QCAT 503

PARTIES:	Fiona Charrington (Applicant/Appellant)
v
State of Queensland, Kay Gardiner, Sharyn Sinclair-Hannocks (Respondents)

APPLICATION NUMBER:

ADL031-12

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

15, 16, 17, 18 April 2013, 3 May 2013
Subsequent written submissions on the papers received 13 May 2013

HEARD AT:

Brisbane

DECISION OF:

P Roney QC, Member

DELIVERED ON:

20 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Complaints are dismissed

CATCHWORDS:

ANTI – DISCRIMINATION MATTER - Worker with hereditary blindness - impairment discrimination - refusal by employer to allow a worker to work from home when guide dog attacked by birds near workplace - family responsibilities discrimination - discriminatory denial of leave privileges - discrimination by initiation of disciplinary process because of failure of blind worker to make eye contact with co-workers.

Anti-Discrimination Act 1991 ss 8, 11

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr S Reidy of Counsel instructed by Susan Moriarty & Associates

RESPONDENT:

Mr Spry of Counsel instructed by Crown Law for the Respondents

REASONS FOR DECISION

Introduction – the Applicant’s hereditary blindness
The crow attacks, the workplace environment and the relationship between              the parties
The first claim – impairment discrimination and the refusal to allow her to work        from home
Consideration of the first claim
Compensation – in respect of the first claim
The second claim – family responsibilities discrimination
Compensation –in respect of the second claim
The third claim – denial of leave privileges; family responsibilities discrimination         in 2009
Compensation – in respect of the third claim
The fourth claim – discrimination by disciplinary action; failure to make   eye contact etc

Disposition

Introduction – the Applicant’s hereditary blindness

This complaint of discriminatory conduct toward a former employee on the part of the State of Queensland, through its agency the Queensland Water Commission (“QWC”) and two of its staff, involves a complex, multi-faceted claim which had, until the last stages of the hearing of the matter, eight separate and distinct factual bases. By the fifth hearing day of the matter, these eight claims had been reduced to four distinct and mainly unrelated claims of workplace related discrimination. Within those four, some contained separate subcategories of complaint of specific discriminatory acts.
It may confidently be said at the outset the Applicant is an extraordinary woman who has significant intellectual and other gifts. One of those was resilience. Another might well have been described as courage, for whilst she held a relatively senior position as a Senior Project Officer, ranking A06, with the QWC from 2007 until late 2009, for the period that she discharged these responsibilities, she was legally blind. She had two children of her own to care for. And for some of the time she cared for four other children who formed part of her family.
To understand the events of 2008 and 2009, her disability, and the matters in dispute in this case it is instructive to understand something of the nature of the Applicant’s medical condition, the way it affected her, and the way in which she had quite remarkably adjusted to it to allow her to have led a relatively normal working and family life.
For that purpose I will mention first the evidence of Dr Kevin Vandeleur. He was one of the medical practitioners who gave evidence in the proceeding. Dr Vandeleur is a specialist ophthalmic surgeon and is qualified as a Master of Surgery. He has had more than five decades of experience as an ophthalmic surgeon. He was Chairman of the Medical Assessment Tribunal in ophthalmology for the Workers’ Compensation Board and for Q-COMP for 32 years and was Deputy Chairman of that Tribunal for 2 years. He remained a Board Member even to the date when he gave evidence for the purposes of this proceeding.
He described the Applicant’s form of legal blindness as a hereditary condition which is technically described as retinitis pigmentosa. The condition causes a retinal degeneration which mainly affects the rods in the retina but also affects the cones in some patients. The loss of rods in the retina causes a loss of peripheral vision, which in the Applicant’s case was described by Dr Vandeleur as an “incredibly severe visual impairment”. The effect of her impairment is that the visual field in her right eye is less than 10 degrees and in her left eye is 10 degrees. To attempt to understand what this means in practice, the doctor gave the example of a person without that impairment seeking to look at the world with one eye closed and the other eye open, but looking through the centre of a standard toilet paper roll. But even that would not accurately reflect the Applicant’s position, because a person with perfect vision would look through the paper roll with 100% efficiency, whereas the Applicant had a 15% loss of efficiency of the clarity of the field of vision that she saw, even through such a limited opening. Importantly though, and this has a relevance to the circumstances of one aspect of the claims, her eyes have a normal appearance, are normally aligned and move in a way which appears to be normal and coordinated. As we shall see shortly, she developed behavioural habits to help her focus on what was being said to her. One of those was to look away from the face of the person speaking to her.
It is common ground that the Applicant’s condition was an impairment within the meaning of the Anti-Discrimination Act 1991 (“the Act”), and therefore discrimination against her on the basis of that attribute prohibited.
Some of the issues which were subject to complaint necessitated evidence about the way in which she managed to travel by public transport both with, and sometimes without a guide dog to assist her, in the central business district of Brisbane. Other evidence went to demonstrating the way in which she had managed to also seek to care for her young son, including, but not limited to, travelling to his school to be involved in teacher-pupil interviews and to supervise the performance of her son’s homework at one stage when he was suspended from primary school.
Dr Vandeleur described the way in which she managed her life’s challenges as “remarkable”, commenting specifically upon the following:
a)    that even though she had been provided with a guide dog by the Guide Dogs for the Blind Association, and that such dogs are only provided to patients with very severe disability, she eventually abandoned the use of her guide dog, yet continued to use public transport as her primary means of transport.
b)    because she did not like to draw attention to herself as a disabled person, she refused ordinarily to use a cane when moving about in public.
c)    ordinarily patients with her level of disability would be accompanied by a carer, use a guide dog or use a white cane with skill. Yet the Applicant was able to engage in direct conversation with relative strangers, and with confidence without any of them.
d)    that she was able to get herself to the train station nearby her home, catch the train to the city, and walk the 700 metres from Central Station to the George Street Parliamentary precinct to perform her duties, and did so without the aid of a carer.
She had, in effect, developed a remarkably high degree of adaptation to her blindness including but not limited to behaving in a way which results from a conscious effort on her part not to let it be apparent that she had a severe disability. One aspect of this is that because of her disability she can only see what is happening immediately and straight ahead of her. She cannot see anything away from five degrees from the centre point of fixation. She therefore has developed “tricks” to help her efficiency and allow her to focus and concentrate on what is going on around her. In short, Dr Vandeleur described the Applicant as “a very intelligent, adaptable person and has made all the adaptations that she can make to make her more efficient in the workplace”.
I accept the evidence of Dr Vandeleur and his analysis of the Applicant’s condition and her response to it. Indeed, that evidence was not the subject of any real challenge by the Respondents.
I turn now to the claims which remain to be determined.

The crow attacks, the workplace environment and the relationship between the parties

The Applicant was employed as what would once have been described as “a public servant” since 1996. She initially worked in Consumer Affairs. She was diagnosed with her genetic blindness condition in 2001. She nevertheless continued to work.
By 2006 she was employed in the State agency known as Translink. The Applicant gave evidence, which I accept, that she was permitted to present a seminar to her work colleagues at Translink in an attempt to explain her impairment, and how to interact with her as a consequence. She gave evidence, which I accept, that she was accommodated in various other ways whilst at Translink, including but not limited to being given special leave to allow her to train with her guide dog when the dog was first assigned to her. At that time, and whilst using the dog, she worked in Tank Street in the CBD.
In 2007 she moved to the QWC. The QWC was established in part as a result of the drought-like conditions which were being experienced in various places in Queensland, and in particular in South East Queensland at that time. The QWC provided independent policy advice to the government on South East Queensland regional water security demand and supply options. These options including planning and regulatory functions including setting certain water restrictions. The QWC was abolished early in 2013 and its functions are now discharged by a different Authority.
She was appointed, after a competitive process, and entirely on merit, to the position of Senior Project Officer, Demand, Efficiency and Substitution. There was some dispute about precisely what her duties entailed at different times. But I accept that primarily, in 2008 her duties were administrative in character. This involved arranging, attending and minuting meetings. By 2009, her responsibilities changed, so that she then was to view and edit external expert reports which were to be used within the QWC.
I am satisfied that the nature of the Applicant’s impairment was well understood within the QWC, and in particular, and the relevant times by the Second and Third Respondents, against whom claims are specifically made in this proceeding. Indeed in her email of 3 October 2007 in which she communicated her acceptance of the offer to employ her as a Senior Project Officer, she indicated that she was vision impaired and that there were certain things that need to occur to allow her to perform her duties. These included being provided with some computer equipment and word recognition software, facilitation of her guide dog being present near her desk and the necessity for her co-workers to be informed about what should and should not occur in relation to the guide dog. These included ensuring that it not be patted on the head, ensuring that people avoided making the dog a centre of attention and avoiding feeding the dog. She offered to provide a presentation to the staff at a team meeting or lunchbox session to explain these matters in more detail. It is common ground that this invitation was rejected by her, although I do not infer that there was anything inappropriate or sinister in that. It was simply explained to her that this was not necessary.
The Second and Third Respondents impressed me as co-workers who had a relatively detailed understanding of the Applicant’s disability and its effects, and in general terms were sympathetic toward her and the need to accommodate her in various ways. It is contentious as to whether they were, in every case, as accommodating as they ought be. Obviously there are allegations to which I shall return shortly that each of them engaged in various kinds of direct and indirect discrimination, in part because of what is said to be on the basis of her disability and in part on the basis of her somewhat onerous family responsibilities.
Apart from the Second and Third Respondents, the only other lay witness called in the Respondents’ case was Mr Greg Bateson. Until his retirement in October 2010, he was the Senior Human Resources Officer in the Department of Environment and Resource Management and worked as the Senior Human Resources Office in QWC from approximately June 2007 until June 2009. I accept his evidence that he was well aware of the Applicant’s impairment, and was conscious that the QWC would need to make adjustments to actively support her in that position. He ensured that staff in her workplace were aware of the information that she had been requested to be made available, and staff were briefed on the presence of the guide dog in the workplace and other associated matters. Critically, staff were instructed about the nature of her visual impairment.
About a month after she started at the QWC, in November 2007, the Applicant began to experience attacks by crows upon her and her guide dog while she was on her way to work from Central Station, as well as while she was taking meal breaks or toileting the guide dog whilst at work. The evidence is that these crows were roosting in trees in the general area where she worked. There is little detail about it, however the fact that it had occurred was reported to Mr Bateson on or about 22 November 2007. He then commenced an investigation to see what could be done about preventing further attacks. Security officers who worked at the Executive Building in George Street were notified. I accept the Applicant’s evidence that these crows had even followed her into the foyer of the Executive Building.
Mr Bateson tried to make suggestions about how to deal with the crow problem. These suggestions included changing her travel route, using a loop bus that is available within the city, or using taxis, for which she would be provided with vouchers. I accept that the Applicant rejected these options because none of them met her concern that she was being attacked whilst working through parkland, and that she believed that none of these solutions would overcome the necessity for her to travel through that area. But Mr Bateson considered that the taxi option was an available one, and he could not understand why she would not avail herself of it. There is a dispute about whether or not the Applicant would have been given taxi vouchers for this to occur. I accept that the Applicant did not believe she would have vouchers for that purpose, even though she in fact may well have been given them if she had thought the use of taxis to be a solution.
He made other suggestions, including allowing other staff to take the guide dog outside to be toileted but this could not practically be accommodated because of the special relationship which needed to be maintained between the Applicant and her dog. He made enquiries with the Environmental Protection Agency to see whether the crows could be otherwise dealt with and that Agency did eventually take action. One matter considered was the prospect of installing an area of artificial grass in the basement of the building where the Applicant worked. Initially this was not permitted by building security for reasons which were not clear, but related apparently to the amenity of others using the building.
I accept that the Applicant also notified the Second Respondent, Kay Gardiner of the fact that these crow attacks were occurring. In September 2010, Ms Gardiner was working in the Demand, Efficiency and Substitution work stream of the QWC. She was responsible for the management of those within that stream and for its employees. She was directly involved in the selection of the Applicant as the successful applicant for her position at QWC. I accept that she was in favour of the Applicant’s appointment and reject the suggestion that she had some reservations or stood in some aloof way toward the Applicant. She too was well aware of the Applicant’s vision impairments and I accept that she too participated in the provision by Human Resources of assistance and other resources to meet the special needs brought about by her disability, and the need for her to work in the presence of her guide dog. Ms Gardiner impressed me generally as a witness who was empathetic to the Applicant and sought, to the extent that at least she saw as appropriate, to provide necessary assistance to accommodate the Applicant’s needs arising from her disability and associated disadvantage.
The Third Respondent, Ms Sinclair-Hannocks was the Applicant’s immediate supervisor at the QWC. Her formal title was Senior Manager in the Demand, Efficiency and Substitution work stream. She left the QWC in December 2010. Until then she reported to Ms Gardiner. The Third Respondent had quite a close relationship with the Applicant, and indeed it would be fair to describe them as having been friends. I accept that a number of the things that she did to provide various kinds of assistance to the Applicant, both within and outside of the workplace, were done because she regarded herself as a friend of the Applicant.
Prior to the Applicant coming to work at the QWC she and the Third Respondent did not know each other. Effectively the Applicant came into the Third Respondent’s team of employees and in general terms they had a good relationship. I accept that the Applicant complemented her from time to time as being one of the best managers she had worked with and that she was receiving useful learning from working with her. The Third Respondent herself had a physical disability which was obvious, and which she perceived to disadvantage her in her daily life and exposed her to ongoing public and workplace comment. It is probable that she shared with the Applicant a desire not to receive special consideration for her physical disadvantage and not to be treated as particularly special by others unless it become necessary for her to live a normal life.
The Third Respondent also spoke well of the Second Respondent as a team manager and regarded her as a person who showed understanding and care and consideration of those within the team at all times. I accept that she did so.
I accept the Third Respondent’s evidence that she in effect showed a considerable interest in providing assistance to the Applicant in whatever way was reasonably available in the workplace. There were many such examples of such accommodation, and it is not necessary to describe them in detail in these reasons. In addition to workplace support, the Third Respondent also gave the Applicant emotional and other support which reflected their respective views that they were friends. For example, the Third Respondent attended the Applicant’s birthday celebration, which was a private non-work function. She also attended Guide Dogs functions and other social functions which reflected a significant level of interest and support for the position in which the Applicant found herself in her private life, and also in her attempts to discharge her responsibilities at the QWC with dignity and effectiveness.

The first claim – impairment discrimination and the refusal to allow her to work from home

In the form finally articulated, this claim was a claim of indirect discrimination toward the Applicant when the Second Respondent, and thereby vicariously, the First Respondent, failed to accommodate certain of the consequences of her disability, by not permitting her to work from home for the period from July 2008 until December 2008.

Section 11 of the Act provides as follows:
11 Meaning of indirect discrimination
(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
(a) with which a person with an attribute does not or is not able to comply; and
(b) with which a higher proportion of people without the attribute comply or are able to comply; and
(c) that is not reasonable.
(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
(a) the consequences of failure to comply with the term; and
(b) the cost of alternative terms; and
(c) the financial circumstances of the person who imposes, or proposes to impose, the term.
(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4) In this section—
term includes condition, requirement or practice, whether or not written.
Example 1—
An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.
Example 2—
An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.”
As finally articulated in the Applicant’s amended contentions, her complaint in relation to the first breach related to the aftermath to the crow attacks. The allegation is that the Second Respondent, and thereby the First Respondent:
a)    failed to accommodate the Applicant’s impairment (referring to her blindness) by acting on their managerial duty to take all reasonable measures to protect the Applicant’s workplace health and safety;
b)    refused the Applicant’s request to telecommute (i.e. work from home) so that she might avoid the crow attacks;
c)    refused the Applicant’s request for deployment to another position on medical grounds for the purpose of avoiding the crow attacks;
d)    refused the Applicant reinstatement to her substantive position following her return from approved WorkCover leave.
The event in (d) inferentially must have occurred after she returned to work in December 2008. In final addresses, the Applicant did not address this fourth issue or seek to advance it by any argument, or by reference to any evidence. Indeed the suggestion that there was a refusal to reinstate her to any substantive position upon her return from approved WorkCover leave is not supported by the evidence, since she did indeed return to her employment, and was reinstated to her substantive position. There were other complaints though about changed duties when she returned. I will deal with those elsewhere.
I have already mentioned problems associated with the crow attacks which were occurring from late 2007. The facts of the matter were that no one within the QWC was able to provide a practical solution to the crow attacks. In large part, what the crows did, or were able to do was outside of the hands of management of the QWC, and probably outside of the hands of most governmental agencies. Being native animals, they were protected by law. Eventually steps were able to be taken by others, not within QWC, to have the crows removed. This was not done for some considerable time later. The crows were only effectively removed by December 2008.
In consequence of these attacks upon her, the Applicant developed a psychiatric disorder of sorts, and was clearly very concerned about the prospect of her continuing to be attacked if she continued to work. To some degree or other her superiors came to be aware that she was anxious because of these attacks.
The attacks occurred in a park adjacent to her workplace, but also in places close to the Central Railway Station, which is considerable distance away from her workplace. The Second Respondent was made aware of these attacks and asked some of the staff members and security to accompany the Applicant but their presence did not help, and those other staff members were themselves concerned about being attacked. The Applicant suffered a panic attack whilst at work, and it led to her collapsing and being taken to a hospital by ambulance.
In February 2008 she suffered a blackout and fell down a set of stairs during a meal break. She injured her ankle, as a result of which she stayed away from work for some time a year, and received workers’ compensation in that period. She remained on workers’ compensation, and was away from work for several months until at least June 2008. She was not eventually certified as fit to work until December 2008, by which time there were no further problems with the crows.
The Applicant continued to suffer from anxiety during 2008, because she was concerned with the prospect of continued crow attacks if she returned to work. There was a meeting which took place on 10 July 2008 and which involved the Applicant, a person described in some of the evidence as a WorkCover claims manager, and Mr Bateson from QWC.
What took place at that 10 July 2008 meeting is the subject of conflicting evidence. The Applicant contends that the WorkCover claims manager raised the prospect of her working from home by telecommuting. Telecommuting is a form of computer access which permits working from home in some circumstances. The Applicant contends that Mr Bateson said in relation to that suggestion that her working from home was not an option, that it was not financially viable and that the nature of her work would not allow for it. According to the Applicant, Mr Bateson then said that the QWC was doing its best to get rid of the crows. It will be recalled in this context that the conduct under attack is not that of Mr Bateson, but that of the Second Respondent.
Mr Bateson gave a different version of that conversation, and whose evidence I prefer on this topic. He identified the other person present at the meeting as a Mr Shaw, from “Better Workplace Management”, a consultant. Mr Shaw was not called as a witness. Mr Bateson swore that amongst other things, the Applicant raised the idea of doing some work from home to catch up on changes that had occurred at the QWC while she had been away. He contends that there was discussion with the Applicant about this at some point in the meeting, but it was agreed that working from home was not an appropriate arrangement for a Senior Project Officer because the nature of the work duties involved. He prepared a contemporaneous file note of that meeting. It reflects that version of events. I accept his evidence.
He also swore, and I accept, that it was decided that she would have a graduated return to work program ostensibly by 22 July 2008. Of course such a proposal would, had it been given effect to, have provided a further explanation for why working from home would not be required, although as it turned out the Applicant did not receive a medical clearance which permitted her to return at that time. She continued to be treated by her psychiatrist Dr Bell, in the period that followed, and it was he that finally cleared her for work in December 2008.
In cross-examination, Mr Bateson accepted that he did discuss with the Second Respondent the prospect of the Applicant working from home in 2008, but said that the idea was rejected. It was suggested to him in cross-examination that there was in fact no blanket prohibition upon staff working from home. His response was that he had never experienced or been involved in any staff member at the QWC asking to work from home or in fact working from home, but he accepted that there was no impediment to staff working from home if relevant conditions were met.
Initially, during the hearing the Applicant’s case was that there was a relevant Queensland Government telecommuting policy which might have facilitated her working from home. However it was conceded in the course of the hearing that the document upon which that case relied had no application in her case, since it only applied to officers of a different department. It did not apply to her.
There was in evidence a document[1] which was current at that time entitled ‘Queensland Water Commission Work-Life Balance Policy’. It made reference in clause 4.2 to the fact that staff at classification level A08 and below had the ability to work flexible work hours as defined in a flexible work hours arrangements policy. Clause 4.3 made reference to the prospect of working from home and mentioned that “consideration of telecommuting/working from home will be in accordance with the telecommuting fact sheet” which set out the conditions of the allowance of that. The telecommuting fact sheet did to find its way into evidence. Nor was there any evidence about what it contained.
[1]Exhibit 17.
Much later, on 17 August 2009, Mr Bateson sent the Applicant some guidelines for her assistance in developing a proposal to allow her to telecommunicate. His email under reply attached web links which made reference to what may have been documentation on this issue, but again the content of that documentation remains elusive. Clearly though there was a mechanism by which workers might be given leave to work from home.
A few weeks after the 10 July 2008 meeting, on or about 22 July 2008, the Applicant told her psychiatrist Dr Bell that she could go along with a friend who worked at Queensland Transport and work with him there, but that WorkCover wanted her to go back to the QWC.
Eventually, in August 2008 Dr Bell was engaged by WorkCover to advise in relation to the Applicant’s medical condition and thereafter provided a report upon that issue. He also provided reports to Q-Super also in relation to her medical condition in 2009 and 2011.
In the first of Dr Bell’s reports, dated 27 August 2008, he identified that she had a work related condition which he identified as an adjustment disorder with mixed anxiety and depressed mood. He attributed the cause of this to the crow attacks. He also referred to the fact that her marriage had broken down in January 2008 but she had adjusted to that. In 2008 the Applicant had in fact assumed responsibility for caring for six children. Her two own children who were then aged approximately 10 and 17, two step children from the de facto partner with whom she was then living, and two kinship foster children aged 5 and 9.

Consideration of the first claim

Notwithstanding that the Applicant’s final contentions made reference to the relevant conduct as constituting direct discrimination by describing it as conduct which was less favourable on the basis of her impairment, when it came to final submissions, Counsel for the Applicant identified it as discrimination against her which was both direct and indirect.
During addresses, again the position changed and it appeared that the claim was maintained only on the basis of indirect discrimination. To the extent that there was such a concession that direct discrimination was not made out, that concession was properly made.
Nothing in the evidence suggested that in any of the ways in which the Respondents, or any of them, responded to the crow attacks and her protection from them was something that they did on the basis of her impairment in the relevant sense. Indeed, whatever they did do, well advised or otherwise, was designed to accommodate her impairment to the extent that they saw it as possible to do so.
If there was a refusal of a request by her to telecommunicate, and I shall return to whether there was such a request or not in a moment, it was not refused on the basis of her impairment. Nor, if there was any request for deployment by her to another position, was there such a refusal on the basis of her impairment.
As finally articulated the case put for the Applicant in relation to this issue was said to be that the Second Respondent imposed a term upon her that she physically attended the workplace in order to resume her duties and be paid her full salary in circumstances in which it was contended that the Applicant could not comply because of the presence of the crows. It was suggested that this term was not reasonable because there were policies which could have facilitated that kind of flexibility, but nevertheless the Second Respondent insisted that she attend at the workplace.
I accept that it may well have been possible for the Applicant to have performed her job from home in the period from June 2008 until December 2008, and perhaps even afterward. The fact was though that she had not been provided with medical clearance to return to work by her doctor in that period.
More important however was the fact that there was not in fact any request by her, formal or otherwise, to be allowed to work from home in that period. Even on her own case, the topic of discussion raised on that issue at the July meeting was raised not by her, but by another person at the meeting. The only time the issue was raised, and it was only then obliquely, occurred in the way that I have described it in the meeting of 10 July 2009. It did not amount to a request by her that she be permitted to work from home pursuant to any relevant policy, and therefore the Second Respondent did not have an opportunity to reject it, or, impose a term upon her that she physically attend at the workplace to perform her duties.
Nor was the inability of the Applicant to comply with the term said to have been so been imposed based upon her disabilities. True it is that the crow problem had not been dealt with finally until December 2008, and had it been dealt with earlier it may have been possible for her to return to work earlier. But I do not accept on the evidence that there was a refusal to permit her to work from home in that period. Nor do I accept, on the evidence, that even if there had been such a refusal, that to have done so was not reasonable, or rather, that the imposition of a condition that she attend her workplace to perform her workplace duties at the time that it was then contemplated that she would, was unreasonable in the circumstances.
The Second Respondent gave evidence that had there been a formal application to permit the Applicant to work from home following the meeting of 10 July 2008, then it would have been considered on its merits. But none was in fact made and no opportunity therefore presented itself to impose a requirement that she attend.
The Second Respondent gave evidence of having become aware, even during 2007 that there were problems with crow attacks occurring to the Applicant. She recounted having been approached by the Applicant and being asked whether there was a possibility of having the crows removed. The Second Respondent’s response was to point out that since these attacks were happening upon her in the street and not within the workplace, the QWC did not have authority to remove the crows. She made clear that it wasn’t that neither she nor the QWC did not want to do something about the problem, but it was outside the scope of their powers. She rejected the suggestion that she told the Applicant that it was neither QWC’s problem nor their responsibility to organise the capture and relocation of the crows. The Second Respondent did mention to the Applicant that it was her belief that they were a protected species and that it would not be a quick, simple or easy process to have them removed. She then made other suggestions as to ways in which to deal with the problem.
The Second Respondent was aware that Mr Bateson was also involved in seeking to find a resolution to this problem, including, but not limited to, making contact with officers of the Environmental Protection Agency and the Brisbane City Council. In terms of being aware of any desire to work from home, the Second Respondent swore that the Applicant had never raised with her the issue of telecommuting or working from home except at one time asking if she could work from home when she was on leave after straining her ankle, was otherwise unwell, or on long service leave. The Second Respondent decided, quite properly, that since she was on leave, and indeed at one stage after the ankle injury in receipt of workers’ compensation benefits whilst on that leave, it was not appropriate or lawful for her to actually be engaged in work, whether at home, or indeed in the office.
In relation to the discussion at the 10 July 2008 meeting, the Second Respondent, although not present at that meeting, did receive a copy of the notes of the meeting which had been made by Mr Bateson. She noted at the time that it had been recorded that working from home was raised but that it had been agreed that it was not appropriate for a project officer to do so. This does not easily sit with the evidence she gave in cross-examination that suggested she might have been willing to consider it if an application had been made. But in the end, the matter is resolved simply by observing, in relation to the first ground of complaint, there was not in fact an application for her to work from home when she was on leave as a result of her injury, and the disorder for which she was being treated by her psychiatrist. She was therefore not deprived of an opportunity to perform her work when she would otherwise have been able to do so.
As I mentioned earlier, in written final submissions the Applicant had sought to make out a case of direct discrimination in relation to the first claimed breach, but that was abandoned during the course of oral argument.
In my view it did not amount to indirect discrimination in this case not to take measures to protect the Applicant’s workplace health and safety by removal of the crows, or doing something differently to ensure that they were removed. There is no evidence in any event that demonstrates that there were reasonable measures which could have been taken but which were not, which amounted to indirect discrimination.
There is no basis on the evidence for finding that the Applicant was requested to be deployed to another position for the purpose of avoiding the crow attacks, but which was refused on a discriminatory basis. Certainly there is no basis for finding that there was indirect discrimination in that regard.
There is no basis on the evidence to suggest that she was refused reinstatement to her substantive position once she returned to work in December 2008. Hence submissions do not seek to support a finding that she was refused reinstatement on a discriminatory basis. The evidence of the Second Respondent, which I accept, was that by the time the Applicant returned to her position in December 2008, three out of the four major responsibilities of her role had disappeared. This was mainly due to the fact that the severe drought to which Queensland had been exposed, and which directed much of the QWC’s work, had come to an end. But nevertheless the Applicant remained in her former position on resuming her duties. She was simply given new tasks which reflected the work that the QWC was doing at that time. No aspect of any decisions concerned with the allocation of duties to her related to her protected attribute, nor had any part to play in the decisions concerning her responsibilities.
Therefore, the first ground of claim is not made out.

Compensation – in respect of the first claim

I will consider the question of general compensation under this head, on the assumption that I had upheld it. For the Applicant it was submitted that she had undergone significant frustration because of her proposals to return to meaningful work and that these had been rejected. These matters, it was conceded, were resolved after her return to work about December 2008. It was submitted that she should be compensated for the hurt, humiliation and depressive symptomology which she experienced throughout the period that she sought to return to a safe working environment. There would be awarded compensation in the range of $5,000.00 to $10,000.00 in consequence.

Having regard to the evidence of Dr Bell, her psychiatrist, concerning the period to which this conduct relates, there is little to suggest that she had any aggravation of her psychiatric injury resulting from the persistent crow attacks of any disallowance of an opportunity to work from home in this period from February until December 2008. Indeed, it is not suggested that she raised the issue until July 2008. Had she in fact sought to work from home, and been permitted to do so, it may well have given her an improved sense of self-esteem, given her an opportunity to continue to interact with her fellow workers, and to generally improve her outlook. There is little to suggest that she suffered hurt, humiliation or depressive symptomology as a result. In the circumstances, had I upheld that element of the claim I would have regarded an amount of $5,000.00 was an appropriate measure of compensation.
There is also articulated a claim for economic loss in this category. It was suggested that her loss was the difference between her award wage with superannuation, and the amount that she was paid by way of WorkCover payments in this period. That difference is in the amount of $4,540.00. This reflected the fact that after 15 September 2008 she received only 75% of her wage. That sum would have been allowed, together with interest upon it, at the rate of 8% from 1 December 2008 to date had the first claim be upheld.

The second claim – family responsibilities discrimination

The second claim, which originally was the fifth of those which was before me to be determined, is a claim of discrimination on the basis of family responsibilities which occurred when the Applicant sought leave from work so that she could supervise her son who had been suspended from school, but was allegedly only offered long service leave or annual leave to enable her to do so. The complaint is that had she been given the leave that she sought, she would have been able to continue the work and therefore be paid and would not have consumed her available long service leave or annual leave.
As described in the Points of Claim, this claim was one which alleged discrimination on the grounds of the complainant’s family responsibilities in the area of work but, it was alleged she was subjected to direct discrimination because the Second and Third Respondents unreasonably refused to allow her to telecommute for the period of the child’s suspension. The foundation of the claim as set out there appeared to be one of direct discrimination in that it was said that by virtue of section 8 of the Act (discrimination on the basis of a protracted attribute and a characteristic which a person with a protected attribute generally had) had been breached.
The relevant conduct is said to have occurred when, after Mr Bateson for the First Respondent advised the Applicant that she could only use her recreational or long service leave to supervise her son while suspended, the Second and Third Respondents are alleged to have refused to allow her to telecommute so that she could continue to work whilst supervising him whilst he was suspended. Although the language “direct” or “indirect” is not used in the amended contentions it is obvious that the allegation was one of direct discrimination.
That said, by the time final addresses came to be made, the submission was made to the effect that now Mr Bateson’s conduct constituted discriminatory conduct on the part of the First Respondent. The submission which was made was that for a period of five days whilst her son was suspended from school and in respect of which she had sought assistance from Mr Bateson, he informed her that she could only access recreational or long service leave. The Applicant then elected to take one of the options presented to her by Mr Bateson. She then communicated this to the Second and Third Respondents by email of 6 August 2009, the effect of which that the Second Respondent sent an email cc’d to the Third Respondent to the effect that she would not be permitted to work whilst she was in fact on leave. There was no specific allegation of any conduct on the part of the Third Respondent except her receipt of that email as a cc’d recipient and her having noted that response, with which she took no issue.
For the Applicant it was argued that the aforementioned conduct amounted to the imposition of a condition upon her that she take long service leave or annual leave and not work at home. That was said to be a condition with which she could not comply if she was to avoid the discriminatory action whereas other employees could comply with the condition to take annual leave or long service leave and not work on that leave. It was further submitted that this condition was not reasonable because other options were available, including working from home.
What may be seen from the foregoing summary, taken from the written submissions for the Applicant, is that the argument fails to mention critical issues which must necessarily be shown to prove either direct or indirect discrimination. Direct discrimination does not appear to have been alleged, as I have said. However some of the language of the submission appears to be suggest otherwise.
There is not the slightest suggestion on the evidence, however, that whatever decisions were made by Mr Bateson and/or the Second and Third Respondents were made on the basis of the Applicant’s protected attribute, namely her family responsibilities. It is difficult, if not impossible, to extract from that series of propositions put in Counsel’s argument that properly or adequately identifies some term which any of the Respondents imposed or proposed to impose, and with which a person with an attribute does not or is not able to comply, and with which a high proportion of people without it comply or are able to comply and that is not reasonable, in the sense contemplated by section 11. Not only is there no evidence which touched upon the issue of the ability of others to comply with any relevant term, but rather it was a case in which the Applicant sought an opportunity not to attend work so that she would discharge her family responsibilities. Employees are not as of right entitled not to attend and perform their duties as employees simply because they have family responsibilities. It does not, without more, constitute discriminatory conduct to refuse an employee paid leave or the opportunity to work from home because they have parental responsibilities.
But in this case the critical factor is that Mr Bateson did not refuse her an opportunity to take leave to care for her son. He agreed to provide it to her, and she accepted that offer. The condition which was attached to it, which is the same condition which likely would have been applied to any other person with parental responsibilities who was seeking to discharge them rather than attending a workplace, namely that to the extent that the employee had a leave entitlement, that that leave was to be availed of.
The Applicant had availed herself of that leave. It therefore was not open for either the Second or Third Respondents to, in effect, treat her as in fact attending to her workplace duties whilst on that leave, but performing them from her home. In relation to the question of whether she ought to have been permitted to work from home many of the same issues arise here as they arose in consideration of the first claim.
The matter is even more complicated by the fact that at the time the Applicant asked for leave to supervise her son, she was on paid sick leave. The Applicant’s specific request emailed on 6 August 2009 was that she be allowed to take long service leave to supervise her son during his suspension. Both the Second Respondent, and Mr Bateson were prepared to allow her that long service leave, and that is precisely what she took.
There was some issue about whether the Applicant was in fact entitled to apply for something that was described as carer’s leave. Both Mr Bateson and Ms Gardiner took the view, and my view appropriately, that carer’s leave was not available to employees to support family members where the family member being supported was not ill. The suspension of a family member from school did not fall within the guidelines. The Applicant herself accepted that proposition in cross-examination.

Compensation – in respect of the second claim

Once again, for these reasons this claim must also fail. Had this aspect of the complaint been upheld, the Applicant would have been entitled to compensation reflecting the value of the loss of an accrued entitlement to take five days long service leave. This equates to an amount of $1,422.00, which is the sum for which the Applicant contended. That sum would appropriately have carried interest at the rate of 8% per annum from 1 September 2009 to date.

The third claim – denial of leave privileges; family responsibilities discrimination in 2009

The critical events which found the third claim, previously described as the seventh claim, occurred at a meeting between the Applicant and the Second and Third Respondents on 19 August 2009. Between 5 August and 17 August 2009 the Applicant had been away from work on various kinds of leave. In effect she was only at work for two days in that month prior to the meeting happening. She took sick leave on 5 and 6 August on the basis that she had muscle tension in her neck and shoulders. She was still on that leave when on 5 August her son was suspended and when on 6 August she applied for leave to look after him. She took a week’s leave from 7 August. She was told on 10 August by email that a workstation assessment had been schedule for her for 18 August. This related to concerns by the Applicant that her workstation was not properly configured for her work.
On 17 August the Applicant had written to Mr Bateson and raising the topic of telecommuting. For various reasons that had to do with her family arrangements, she was asking that she be able to work two days in the office and three days at home with the option of swapping days from time to time. It was in response to this email that she was sent copies of the guidelines that related to telecommuting her working from home which were dealt with earlier in these reasons.
On 18 August 2009, the Applicant returned to work. She heard discussion about the fact that there was to be a briefing on the status of the project in which she was involved and that that briefing would occur on 20 August. But the Applicant had not been invited to that briefing. The Applicant reacted, thinking that she had been taken off that project and without any consultation with her. Later than day the Third Respondent told the Applicant that QWS was not sure that that project would in fact go ahead. The Applicant was upset in consequence. On that same day the Applicant had emailed a consultant who was involved in the workplace assessment report in relation to the workstation. On 18 August the Applicant wrote to that consultant asking the consultant to include the possibility of the Applicant working from home in her recommendations about the workstation issues, in order to assist her business case for getting approval to work from home. The consultant responded that she felt they should see how the workplace changes went first but could mention it under “other future options”. But the consultant said she felt she would be overstepping what she had been asked to do. This attempt to recruit the assistance of this consultant was one of the matters which was discussed in the 19 August meeting.
Also on 18 August 2009 the Applicant sent an email to the Third Respondent indicating that she wanted to apply for leave based on banked time so she could attend a specialist appointment with her foster son. Her husband was going to be away for when that appointment was to occur. She mentioned that if banked time was not approved, she would be taking that day as carer’s leave. Three days later on 21 August 2009 the Second Respondent rejected the application for banked time on the basis that the project that they were working on was already behind schedule, and that that time would be a critical phase for the project. In the same email she confirmed the allowance of banked time for another purpose on 27 August. It went on to discuss some of the consequences of their events that occurred at the meeting on 19 August in relation to depriving her of an opportunity to accrue banked time after 31 August, whilst preserving her accrued entitlements to that date.
The allegation articulated in the ultimate amended contentions is that at the 19 August meeting the Second and Third Respondents, and by them the First Respondent, discriminated against her on the basis of her family responsibilities by allegedly imposing a range of disciplinary sanctions against her for taking “excessive leave” when by virtue of her family responsibilities she “characteristically” could be expected to take any of the various kinds of leave available:
a)    when her primary school aged children were ill or indisposed;
b)    to supervise a child who was suspended from school;
c)    to attend Family Court proceedings in relation to children;
d)    to supervise children on holidays especially when the other parent was away for long periods.
It is alleged that a range of disciplinary sanctions were imposed upon her, principally by the withdrawal of her entitlement to access leave other than sick leave and only then when supported by a medical certificate. These conditions were said to have been imposed for the period of six months from 31 August 2009 to 1 March 2010 “without regard to her personal or family circumstances or the nature of her impairment” and by revocation of banked time.
In effect the allegation is one of direct discrimination, that is, refusing her the opportunity to avail herself of what was said to be her right to different kinds of leave under the Certified Agreement because she had used leave previously in the discharge of her family responsibilities.
According to the Applicant’s version of events she was called to the meeting of that day in effect to what amounted to “a disciplinary meeting”. She contends that the Second and Third Respondents both said that her taking constant leave was causing the project they were working on to be behind schedule, particularly at critical times. The Applicant complains that she was not given advance notice, or any agenda for the meeting nor advised to bring a support person. She had been led to believe that they would be discussing the Management and Planning for Achievement Policy. It is common ground that at the meeting she was handed a document which was headed “Managing and Planning for Achievement Policy and Procedure” on the QWC letterhead. The content of the document describes it as “Issues Resolution form – Fiona Charrington”. According to the Applicant the conduct of the Second Respondent during the meeting, the way the matter was conducted and the topics they discussed, made the Applicant feel that she was in a disciplinary meeting where her work performance was being criticised. She insisted on being able to say something but was told that they did not want her to respond. They asked her just to listen to them tell her what it was about. The content of the Issues Resolution form is also relevant to the fourth claim, and I will deal with its content in that regard in the discussion of that claim.
Insofar as the third claim is concerned, it is contended that conditions were imposed upon her in the course of that meeting to the effect that:
a)    her banked time privileges were revoked and she would be required to work standard hours, that is not accumulate in effect time off by working longer hours at different times;
b)    she was required to give reasons for all leave applications apart from sick leave;
c)    she was required to reduce her workplace absences on leave to a certain percentage by reference to a public sector average; and
d)    she was required to consistently meet work outcomes.
It is said that the imposition of these conditions was discriminatory because with those conditions in place, it forced her to make a choice between discharging her family responsibilities and doing her work. If she chose family responsibilities, the consequence was that if leave was refused she would need to take leave without pay and suffer disciplinary action.
Precisely how that constitutes discriminatory conduct within the framework of the language of the Act is not addressed in the Applicant’s submissions.
Relevantly, the Issues Resolution form given to her provided:
“1. Performance Issues discussed with the employee:
a) Varied work outcomes – standard of work, timelines of delivery, follow through to achieve consistent outcome
b) Number of absentee days from the workplace.
c) Inappropriate behaviour in the workplace.
2. Examples relating to the issues
a) Delegated a task to develop a comparative research report on water end use studies. Report not completed by due date.
b) Percentage of absentee days to working days significantly exceeds Queensland Public Service average. Leave applications made while already absent from the workplace.
c) Displaying negative behaviour – failing to make contact and engage with other staff following discussions on workplace absences, undermining legitimate workplace processes – ergonomics review.
3. Consider possible cause of the issues:
Employer Note: The issues are linked as absences from the workplace and negative behaviour may have contributed to varied work outcomes.
4. Resolution to be sought in relation to the issues:
a) Delegated task are completed in a timely manner, to specific standard with appropriate follow through to achieve consistent outcomes.
b) Absences from the workplace to be reduced to within +7% of the Public Service average for the period.
(i) All leave applications, except sick leave, to be accompanied by written explanation of how tasks and outcomes specified in the Workplan will be addressed.
(ii) Set standard work hours will apply. Banked time privileges revoked.
(iii) A Doctor’s Certificate is to be provided for any and all days absent on sick leave. Approving officer for all leave and to be Senior Director DEAS.
Employer Notes: This document presented to Fiona on 19 August 2009. Fiona requested to consider the matters raised and respond at a meeting on 28 [31] August 2009.
5. Timeframe in which resolution is expected to occur
This document will become active and commence from 31 August 2009 until 31 March 2010 for a) b) and c).
Senior Director DEAS as approving officer for leave applications submitted on and from 18 August 2009.”

The evidence of the Second Respondent, as to what was said at that meeting, which I prefer to that of the Applicant, makes clear that there was no disciplinary hearing occurring that day and no sanctions were imposed upon the Applicant in that meeting. The point of the meeting was to identify issues that were sought to be raised about the Applicant’s work performance and with that in mind the issues resolution form was prepared. The idea was that she was to be given this form to bring those matters to the Applicant’s attention and for her to be given an opportunity to respond to them at a later time. Indeed the Applicant was positively encouraged not to respond to them in the course of that meeting at all. The Applicant was told that she would have a later opportunity to respond, and in the course of that meeting a date for the next meeting was set for 31 August 2009. As the Second Respondent’s evidence makes clear, and I so find, these issues were being raised effectively as matters for discussion. When the 31 August meeting would have occurred, the Applicant would have had an opportunity to respond, obtain the assistance of the Union officer and have a support person present.

There was no disciplinary sanction mentioned in the form nor in discussion that day. The matters raised in the Issues Resolution form concerned the Applicant’s attempt to recruit the assistance of the ergonomics consultant to her cause in being permitted to work from home. This is dealt with in discussion on the fourth claim.
In the end, the Applicant was able to take sick leave and compassionate leave for three days on 20, 21 and 24 August and then she took recreation leave on 25 and 26 August and banked leave on 27 and 28 August. Clearly she was not being refused leave after the 19^th August meeting.
Conceptually, there is nothing to support the implied contention, made by the Applicant, that what occurred at that meeting occurred on the basis of any protected attribute, or the Applicant having taken leave in the past to discharge her family responsibilities. No identified condition was imposed upon her and with which she was unable to comply either conceptually or practically and which could be identified as indirect discrimination. I accept that the meeting was a preliminary meeting to put the Applicant on notice that there were issues with her performance and to give her an opportunity to respond to them at a later time.
This claim therefore does not succeed. The evidence simply does not support the contentions made for the Applicant.

Compensation – in respect of the third claim

For the Applicant it was submitted that in determining what compensation ought be paid for this conduct, it ought be grouped together with general compensation in the last category and also the next category. That is, general compensation for claims 2, 3 and 4 should be grouped together and be awarded in the range of $30,000 to $50,000. It is suggested that this flows from the fact that the Applicant ceased working with the QWC in August 2009 and that she suffered an adjustment disorder as a result of work-related matters in the period that followed her last day at work, until that disorder had resolved by March 2011. She did obtain employment at other places after that but did leave her long term employment with the QWC, and indeed Government employment.
Even were that an appropriate range of compensation to award a person who had ceased being employed for a period of approximately one and a half years as a result of matters that had occurred to them at work, the compensation that she might be awarded can only reflect the consequences of the specific conduct which is said to be have been unlawful. It is almost impossible to extract any identifiable consequence for the Applicant from what she was told during the 19 August 2009 meeting about her work performance. Nor is it suggested in the evidence of either psychiatrist, Dr Bell or Dr Gunn, that what she was told in that meeting was the cause, or a substantial cause of her adjustment disorder. No doubt she would have suffered some distress, humiliation and loss of self-esteem from suggestions that her work performance was inadequate, and that she would be left to choose between discharging her family responsibilities properly and pleasing her employer. Accepting that, in my view a reasonable allowance by way of compensation for that consequence would be $10,000, upon which I would allow interest at 8% for the period from August 2009 until March 2011. There is no attributable economic loss.

The fourth claim – discrimination by disciplinary action because of failure to make eye contact etc

In her amended contentions the Applicant alleges that in the aforementioned meeting of 19 August 2009 she was reprimanded for failing to make eye contact and for requesting the ergonomic specialist include a reference to telecommuting in her report. The pleaded case is that by virtue of her impairment, she is unable to see faces or objects. And that as a partially blind person she would be interested in taking up opportunities that allowed her to continue working but without the difficulties involved in travelling to work and the like. It is reasonable, it is suggested, for a person who is legally blind to want to telecommute to minimise hazards.
Hence it is submitted that in the course of that meeting the criticism made of her of failing to make eye contact and for asking the ergonomic specialist to include a recommendation constituted less favourable treatment by the Second and Third Respondents on the basis of her impairment, and also on the basis of family responsibilities.
In the Applicant’s amended contentions, it was not identified whether this conduct amounted to direct or indirect discrimination. In written submissions for the Applicant, both direct and indirect discrimination were relied upon.
It was submitted that the First Respondent accused her of failing to make eye contact and that this occurred in circumstances in which the Second Respondent knew of her condition but was unsympathetic to it. It was suggested that the Second Respondent could not accept the extent and nature of the Applicant’s condition and maintained the expectation that the Applicant would and should function in the workplace in the same way as those without the disability. Her conduct was described in submissions for the Applicant as “deliberate and surgical” and made in the full knowledge that it would upset the Applicant.
The Applicant argues that there was direct discrimination of her by her being disciplined for not making that contact when the non-making of that contact was an attribute associated with her blindness. It is suggested, although there is not the slightest evidence to support it, that other employees at QWC who did not have vision impairments were not subjected to disciplinary action for not making eye contact.
Insofar as indirect discrimination is concerned, it is suggested that a term was imposed upon her, namely that she make eye contact with her co-employees and managers and that it was a term with which she was unable to comply.
The starting point for the analysis here is to look at what was contained in the Issues Resolution form. It contains as examples of what was said to be “inappropriate behaviour in the workplace”, “displaying negative behaviour – failing to make eye contact and engage with other staff following discussions on workplace absences, undermining legitimate workplace processes – ergonomics review”. There is no other reference to that behaviour nor any matter mentioned in the list of resolutions sought which is concerned with this issue.
In my view it is implausible to suggest, as the Applicant does, that she was actually reprimanded in that meeting for failing to make eye contact and that indeed at that meeting she had gone into some detail to explain how it was that she was not able to make eye contact. In her statement she had previously said that she responded to the allegation by saying that she had been unable to look people in the eye because of her blindness. Indeed despite having given evidence to that effect in her statement, in cross-examination she accepted that there was no discussion about the eye contact issue because after the discussion about leave she had been firmly told that she was not to speak during the meeting and so from that point on she did not speak.
I readily accept the Applicant’s own evidence about how she often avoids looking directly at persons so that she can focus upon what is being said. Based on the evidence of Dr Vandeleur, I accept that there is a perfectly plausible explanation for why the Applicant might not at times look others in the eye when they are speaking to her.
I accept also however that both the Second and Third Respondents were by that time very familiar with the personality traits and behaviour of the Applicant. The Third Respondent in no way participated in any so called reprimand of the Applicant for failing to make eye contact. For that reason alone the fourth claim must fail against her. The Second Respondent swore, and I accept, that she was not referring in that form to the Applicant’s practice of not always looking people in the eye when being spoken to. Indeed, my own observation of the Applicant in the course of the hearing, was that there were obvious examples of her having adopted that practice in the hearing room. She explained in her own evidence how it was to her advantage that she not do so.
But in cross-examination, Ms Gardiner drew a distinction between what she knew to be some of the behavioural consequences of the Applicant’s impairment and what she said she was really talking about in the Issues Resolution form. The “real issue” was ignoring staff, not specifically not making eye contact per se. What she was seeking to achieve, she explained, and I accept, was that the Applicant’s engagement with other staff could improve and she was simply seeking to draw it to her attention to see if it could occur. She accepted that it might well be upsetting or distressing to a person like the Applicant to suggest that she was not making eye contact.
There may well have been occasions when the Second Respondent misinterpreted what she saw to be deliberate acts by the Applicant of ignoring staff or herself when she was attempting to deal with issues with the Applicant, when the failure to make eye contact was because of her condition. For present purposes however, that does not matter, because I accept that what the Second Respondent was seeking to do was simply to draw to the Applicant’s attention that she believed the Applicant had engaged in inappropriate workplace conduct in ignoring staff and perhaps being somewhat recalcitrant when being dealt with about what was seen to be continued absences from work. There is nothing which amounted to a direction that she make eye contact. As I have said, there was nothing in the Issues Resolution form which anticipated or expected any particular outcome from the raising of that issue.
In relation to the issue of the attempt to recruit the assistance of the ergonomics specialist, again this fell within the general category of what were described as examples of negative behaviour. Whether it is negative behaviour or not to seek to derive the assistance and support of a contractor in those circumstances is open to question. It seems to me to have been entirely appropriate in the circumstances that she seek to avail herself of the consultant’s expertise and support. But apart from being mentioned in that Issues Resolution form, she was not treated less favourably in any way by reason of it. Nor does the evidence establish the raising of that issue was anything other than a bona fide concern on the part of the employer and its management staff about what was seen to be inappropriate conduct seen to be seeking to undermine a legitimate workplace process, namely the ergonomics review. The evidence does not establish that the raising of that issue occurred on the basis of any protected attribute held by the Applicant. Nor in my view was she treated less favourably on that basis. No term or condition was imposed upon her with which she was unable to comply.
Had this part of the claim been upheld I would have treated the compensation awarded under the third head as including a component under this head of claim and made no additional allowance over what I would have allowed there.

Disposition

It follows, that for the reasons I have expressed, that the claims ought be dismissed.