Jenkins v State of Queensland
[2018] QCAT 154
•1 June 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Jenkins v State of Queensland & Ors [2018] QCAT 154
PARTIES:
JENNY JENKINS
(applicant)v STATE OF QUEENSLAND
(first respondent)
REGAN DRAHEIM
(second respondent)
MARK WHEELER
(third respondent)
JAMIE DEACON
(fourth respondent)
APPLICATION NO/S:
ADL008-17
MATTER TYPE:
Anti-discrimination matters
DELIVERED ON:
1 June 2018
HEARING DATE:
15 May 2018; 16 May 2018
HEARD AT:
Brisbane
DECISION OF:
Member Roney QC
ORDERS:
The complaints are dismissed.
CATCHWORDS:
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – GENERALLY – where alleged impairment discrimination in Queensland Police Service Government agency – belief as to less-favourable treatment – distinction between direct and indirect discrimination – circumstantial evidence – inferences to be drawn
Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 124
Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165
Dharmalingham v Western NSW Local Health District [2015] NSWCATAD 74
G v H (1994) 124 ALR 353
Greater Taree City Council v Craig Michael Peck [2002] NSWCA 331
Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261
JM v QFG and GK [1998] QCA 228
Jones v Dunkel (1959) 101 CLR 298
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155
Richards Evans & Co Ltd v Astley [1911] AC 674
Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133Waters & Ors v Public Transport Corporation (1991) 103 ALR 513
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
J Merrell, instructed by the Legal Services, Queensland Police Service
REASONS FOR DECISION
Table of Contents
Introduction
Direct discrimination – the Applicant’s case as identified in her Contentions
What was the extent of the individual Respondents’ knowledge of the Applicant’s impairment?
Treatment ‘on the basis of’ a protected attribute – the causal element for direct discrimination
Relevant legal principles – the standard of proof
Circumstantial evidence and the drawing of inferences
Claims against the Second Respondent
The November 2014 leave incident
The December 2014 direction
The August 2015 incident
The October 2015 incident
The January 2016 and the April 2016 incidents
The July 2016 incident
Claims against the Third Respondent
The October 2014 disciplinary action
The November 2014 disciplinary action
The December 2014 incident
The May 2015 direction
Complaint against the Fourth Respondent
The Fourth Respondent’s December 2014 direction
General and special compensation and other relief
Introduction
The Applicant, a police sergeant, has brought multiple complaints of discriminatory conduct against the State of Queensland, through its agency the Queensland Police Service (‘the QPS’) and three of its senior officers, arising out of twelve (12) events which it is contended occurred during 2014, 2015 and 2016.
The claims made involve a level of complexity, and have multi-faceted aspects. At a most generalised level, the Applicant has alleged that the Respondents, in various ways, engaged in direct discrimination against her on the basis of an impairment which she suffered, namely post-traumatic stress disorder (‘PTSD’).
It is not in issue that at the times at which these complaints are directed, the Applicant had PTSD which was an impairment within the meaning of that expression in s 7(1)(h) of the Anti-Discrimination Act 1991 (Qld) (‘the Act’). There is a dispute as to the extent to which the existence of that impairment was a matter that was known to the individual Second, Third and Fourth Respondents.
The Applicant commenced work in the QPS in January 2000. In October 2010 she was promoted to the rank of Sergeant. In October 2011 she was working at the Richmond Police Station, in Far North Queensland and was exposed to significant trauma related to two incidents. The first incident was a suicide that she attended whilst working as a Sergeant in the QPS. This caused her distress, particularly as the deceased was well known to her daughter and her daughter’s fiancé. The second incident was another suicide that she was required to attend, again in a small country town outside of Townsville, but this time the deceased was her daughter’s fiancé. According to the medical evidence from her psychologist, these incidents were the basis for her suffering chronic PTSD and clinical depression. This also caused her to become severely hyper vigilant to all potential suicide risk in the future.
Following these incidents, she had a period off work, but resumed her position with WorkCover continuing to pay for counselling for her. In October 2011 she was transferred from the Richmond Station on compassionate grounds. On 22 December 2012 she commenced employment at the Toowoomba Watch House as a Sergeant in the position of Shift Supervisor.
Although she acknowledges that this move was essential for her recovery, it proved to be detrimental to her wellbeing because her duties were a trigger to the critical incidents. She was referred to a medical specialist and again ceased work in November 2013.
She underwent treatment and medication trials and returned to work in September 2014 under what was described as a ‘Graduated Suitable Duties Plan’. The decision that she undertake the plan was made with a view to her having reduced hours and duties to enable her to reintegrate into the workplace.
There is a report from her treating psychiatrist, Dr Andrea Boros-Lavack, which identifies that the psychiatrist had been treating her since November 2013, and that as a result of work-related incidents in October 2011, she sustained chronic PTSD and associated depressive disorder, for which she was provided treatment. After that treatment, her chronic PTSD was assessed by the Medical Tribunal and she was given a 12.5% partial permanent incapacity rating in March 2015.
After her return to work, the Applicant continued to see her psychiatrist on a regular basis, as well as a community mental health nurse who was her case manager and engaged her in recovery-oriented therapy under the psychiatrist’s supervision.
She was also treated with eye movement desensitisation and reprocessing, and evidenced-based talk therapy for PTSD by her psychologist, Jason Toombs. The report of Mr Toombs identifies that he is a psychologist in Toowoomba with over 25 years of experience, and that the Applicant was referred to him in May 2014 for treatment of her chronic PTSD and clinical depression. Both Dr Boros-Lavack and Mr Toombs have continued with their treatment of the Applicant more recently.
Unfortunately, Dr Boros-Lavack did not make herself available, even by phone, for the purposes of being cross-examined by Counsel for the Respondents. The doctor had given notice well in advance of the hearing that she would be unavailable on the dates allocated. During the hearing it was ascertained that the doctor was in New Zealand but would not permit contact details to be provided. Notwithstanding that there was no opportunity to cross-examine Dr Boros-Lavack, it has not been suggested by Counsel for the Respondents that they were disadvantaged in any particular way by her unavailability to be cross-examined. Some aspects of the report of Dr Boros-Lavack, which go to the specific reports that the Applicant made about her conduct, may well have been the subject of cross-examination. I infer this because that was the direction in which cross-examination of the psychologist Mr Toombs took. No submission was made, however, that the opinions of Dr Boros-Lavack as to the effects of the actual or perceived discrimination inflicted upon the Applicant did not occur as she describes them. The same may be said of the evidence of Mr Toombs. In relation to the opinions of each of those practitioners, the weight to be given to those opinions about the significance for the Applicant of the conduct to which she was allegedly exposed, depends upon whether in fact the conduct in question occurred in the way in which the Applicant contends.
Having heard the evidence of the Applicant and given careful consideration to it, and to the medical reports which have been tendered, I am satisfied that the Applicant perceived herself to have been subjected to discriminatory conduct in the ways in which she has described it in her statement, and in the ways in which she has reported it to her doctors. She struck me as a diligent and well-intentioned police officer, doing her best to secure a useful role within the police service.
That however is not the end of the problem, because of course the question for me to decide is whether that discriminatory conduct occurred; whether she accurately perceived it to have occurred in the way that she describes or not. Then I must consider what consequences flowed from any such conduct.
In this context, I note the observation of Mr Toombs; when being cross-examined about the reliability of the account, he was provided by the Applicant as to what had occurred to her at the Toowoomba Watch House, that even if her account was not accurate, there is no doubt that she had perceived that it was. He said, and I accept, that individuals with PTSD have a propensity to perceive that others are ‘ganging up’ against them.
Direct discrimination – the Applicant’s case as identified in her Contentions
It is unlawful for a person performing any function or exercising any power under Queensland law to discriminate against a person on the basis of the person's impairment.
Section 7 of the Act prohibits discrimination on the basis of certain attributes, which include ‘impairment’, defined in the Schedule to the Act as including the loss of a bodily function. Section 8 of the Act provides that discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of a characteristic that a person with that attribute generally has. Section 9 prohibits both direct and indirect discrimination.
Section 10 of the Act, which deals with direct discrimination, provides (with examples omitted):
10 Meaning of direct discrimination
(1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
(2) It is not necessary that the person who discriminates considers the treatment is less favourable.
(3) The person’s motive for discriminating is irrelevant.
(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
(5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
I turn now to the Applicant’s case based on direct discrimination. At the conclusion of the hearing, the Applicant relied upon earlier filed written submissions, as well as making oral submissions which summarised her case. In her own case the Applicant gave evidence and Mr Toombs did so by phone. Each of the Second, Third and Fourth Respondents gave evidence.
From her submissions it may be seen that the case alleged against the Second Respondent, Senior Sergeant Draheim, her immediate supervisor, is that he directly discriminated against her on the basis of her impairments by engaging in seven (7) specific and identifiable actions in his capacity as the Officer-in-Charge of the Toowoomba Watch House, and the direct supervisor of the Applicant between 22 December 2012 and 14 August 2017, as follows:
(a)Allegedly declining to process, or not processing the Applicant’s application for recreation leave in respect of which she sought leave from 17 to 21 November 2014 (‘the November 2014 leave incident’);
(b)On 23 December 2014, allegedly discriminating against the Applicant on the basis of her impairment by speaking rudely and abruptly to her because the Applicant had taken sick leave for the period 13 November to 27 November 2014, and in directing her not to perform her duties (‘the December 2014 direction’). In this context it was also contended that the Second Respondent threatened sanctions by a supervisor, and humiliated the Applicant by making her stand and wait for the Inspector to deal with her;
(c)On 3 August 2015, directly discriminating against her on the basis of her impairment by stating that he would not support a professional development opportunity because of the amount of leave that the Applicant had taken to date (‘the August 2015 incident’);
(d)On 26 October 2015, directly discriminating against her on the basis of her impairment commending her practice of not taking sick leave, during a performance review. In other words, if she attended her duties and did not take leave, he would support professional development opportunities for her (‘the October 2015 incident’);
(e)On 18 January 2016, directly discriminating against her on the basis of her impairment by refusing to support a development opportunity that she was interested in (‘the January 2016 incident’);
(f)On 29 April 2016, directly discriminating against her on the basis of her impairment by again refusing to support a development opportunity that she was interested in (‘the April 2016 incident’);
(g)On 11 July 2016, directly discriminating against her on the basis of her impairment by stating during a performance review that the Applicant would now be supported for development opportunities, but only at her rank, and in circumstances in which she was ‘no longer being punished’ (‘the July 2016 incident’).
The Third Respondent was the direct supervisor of the Second Respondent, and held the rank of Inspector for the Toowoomba City Patrol Group. His responsibilities included overview of the Toowoomba Watch House. The case against him is as follows:
(a)
On 18 October 2014, he directly discriminated against the Applicant on the basis of her impairment by threatening to commence disciplinary action against her if she took sick leave that she was proposing to take for the period 13 November 2014 to 27 November 2014 (‘the October 2014 disciplinary action’). It may be seen that this allegation is associated with the
November 2014 leave incident, and the December 2014 direction referred to above;
(b)On 25 November 2014, he directly discriminated against her on the basis of her impairment by directing the Second Respondent to initiate a disciplinary complaint against the Applicant without consultation with her, or without inviting her input, and that this complaint was initiated because she had taken sick leave for the period 13 November 2014 to 27 November 2014 (‘the November 2014 disciplinary action’);
(c)On 4 December 2014, he directly discriminated against her on the basis of her impairment by requesting her to change her sick leave application which had effectively sought retrospective approval for the sick leave she had taken in November 2014, so that it was a recreational leave application instead, failing which she would be sanctioned (‘the December 2014 incident’);
(d)On 10 May 2015, he directly discriminated against her on the basis of her impairment by directing her to take accrued recreation leave against her wishes, in circumstances in which that leave had accumulated beyond permissible levels because of her absence from work due to her impairment (‘the May 2015 direction’).
The case against the Fourth Respondent involved conduct allegedly occurring whilst he was relieving as an Inspector for the Toowoomba City Patrol Group, and which included review of the Watch House. Effectively, he was the temporary supervising Inspector for a period little more than a week in December 2014.
The allegation against him is that on 16 December 2014 he directly discriminated against the Applicant on the basis of her impairment by asking her, through an email cc’d by the Second Respondent, to explain her whereabouts while she was on sick leave, despite the fact that a medical certificate had been provided for this period (‘the Fourth Respondent’s December 2014 direction’).
What was the extent of the individual Respondents’ knowledge of the Applicant’s impairment?
Although the Applicant did not articulate her case as being one which was based upon circumstantial evidence, there were clearly aspects of it which were circumstantial in the sense that they required an inference to be drawn that the conduct which she contended was directed at her, was on the basis of her impairment. That was because there was no concession by any of the Respondents that anything they did was done on the basis of her impairment, and except in the case of her immediate superior, the Second Respondent, there was little to demonstrate that they were aware of the fact that she had an impairment.
There was otherwise no “smoking gun” that identified that any of the alleged conduct by the Respondents occurred on the basis of her impairment, although some of what was alleged against the Second Respondent carried with it, by its very nature, the notion that it was on that basis.
The Fourth Respondent, whose role was limited to events in a single week in December 2014, said he had no knowledge of the Applicant, had had no previous dealings with her, and was unaware of her impairment. That evidence was not challenged in cross-examination.
The Third Respondent, who was in the most senior position of the three individual Respondents, had no recollection of ever having personally met the Applicant, and their dealings on the telephone had been her reporting the fact that juveniles were being kept in the Watch House. They did not concern her impairment. He too swore that he was unaware of the Applicant’s impairment. His evidence was that on or about 13 November 2014, the Injury Management Co-ordinator, a Ms Rennie, had emailed him to advise that she had received a phone call from the Applicant’s psychiatrist, and, he is now aware, probably enclosed a letter. It did not enclose a medical certificate per se. He is unable to recall whether he read the email or saw the letter, or sighted the medical certificate that was supposed to follow.
The objective evidence is that Dr Boros-Lavack sent a fax cover sheet to Ms Rennie on 13 November 2014, with a notation under the message heading ‘Medical certificate attached with a letter from the doctor’ addressed to Ms Rennie and which stated:
I am stopping Jenny’s RTWP (referring to the Return To Work Plan referenced earlier) for two weeks from today, 13.11.14 to 27.11.2014 due to medical reasons. She will have more medication and talk therapy for stabilisation during this period of time. It is envisaged that she can return to work from 28.11.2014.
I am somewhat sceptical of the contention by the Third Respondent that he was entirely unaware of her impairment. On his own evidence, he was communicating with the Second Respondent about a week and a half after the 13 November psychiatrist’s letter. That is, on 25 November 2014 he was having discussions with the Second Respondent about the veracity of her claim to have reported sick for the period 13 November 2014 to 27 November 2014. In his affidavit, one of the explanations he provided for requiring the Applicant to provide details of what she did during the period of absence was because he had significant concerns over the veracity of her sick leave claim. He mentioned though that:
… when the medical certificate was eventually received and sighted, it was apparent the doctor who wrote the certificate was the same doctor who had previously sent a letter supporting her application for recreation leave.
This statement is a little perplexing, because it appears to conflict with the contention that he had no knowledge that she had an impairment, whilst at the same time appearing to acknowledge that it indicated she was under the treatment of a psychiatrist, and that the psychiatrist had previously written a letter supporting an application for recreation leave. The letter to which he is referring was a letter dated 2 October 2014, written more than a month earlier, and which had been attached to a letter from the Applicant dated 8 October 2014 and which in turn had been sent to the Second Respondent.
The letter from the Applicant of 2 October 2014 made reference to the fact that the attached letter was ‘a letter of approval from my doctor confirming that the leave will not interfere with the RTW program’. The letter from the doctor certified that the Applicant should be given recreation leave to attend her daughter’s wedding in Cairns between 17 and 21 November 2014 whilst she was under the Return To Work Program (‘RTWP’). As was explained in the evidence, and which I accept, if one is to interrupt a RTWP for recreation leave, it needs the approval of the treating doctor to ensure that that interruption does not adversely affect the program.
It is not easy to see how the fact that there was known to be a psychiatrist, who was overseeing the RTWP, who was prepared to certify that recreation leave would not interfere with the program, sits with the proposition in paragraph 27 of the Third Respondent’s affidavit that it was a relevant consideration as to whether to request details of what she did during her leave, that the doctor who provided the medical certificate had ‘previously sent a letter supporting her application for recreation leave’ whilst at the same time contending that he had no knowledge of her impairment.
Having said that, the Applicant did not challenge the evidence of either the Third or Fourth Respondents, that, at the material times at which they took action in relation to her, neither of them was aware that she had an impairment. It cannot be presumed that merely by virtue of the fact that a person is returning to work under a RTWP, and under supervision of the psychiatrist, that one has a remnant impairment, although common sense would suggest that it would raise a question about whether there was any remnant element. I incline to the view absent that challenge to the evidence of the Third and Fourth Respondents on this issue, that it should be accepted. My general impression of the Third and Fourth Respondents was that they were responsible and well intentioned senior officers within the QPS, had no personal animosity toward or adverse attitude toward the Applicant, and were unlikely to have taken adverse action against her of the kind contended for had they known of the existence of her impairment.
The position of the Second Respondent is quite different. Senior Sergeant Draheim knew of her absence from work on sick leave for almost a year until she returned to work on 22 September 2014. He was aware that the Applicant was under a RTWP, because he had signed it as her supervisor. In paragraph [62] of his affidavit he conceded that he was aware of her impairment for that reason, but contends that his attitude was that where he was aware that officers in the Watch House had mental health issues, he would take appropriate steps to obtain support for the officers in line with his responsibilities as a manager.
At least in relation to the Second Respondent, the possible inference that he acted adversely toward the Applicant on the basis of her impairment is open, because he at least was aware of the impairment at the time of the conduct complained of.
Treatment ‘on the basis of’ a protected attribute – the causal element for direct discrimination
Section 10(1) of the Act requires that the Applicant establish that the Respondent has treated her or proposed to treat her in a discriminatory way ‘on the basis of’ the relevant attribute. Section 10 of the Act provides that a person’s motive for discriminating is irrelevant.
The Queensland Court of Appeal in JM v QFG and GK [1998] QCA 228 gave careful consideration to the approach to be taken to ascertaining whether something occurred on ‘the basis of’ an attribute. That case involved an appeal from a decision of the Anti-Discrimination Tribunal concerning whether a refusal of treatment at an infertility clinic on the claimed basis that a patient’s lawful sexual choice of lesbianism amounted to direct discrimination. The approach of the court was to carefully identify precisely what was the reason for the refusal of the treatment. It was held on an analysis of the evidence that it could not have been said to have been her exclusive lesbianism, but rather the fact that she failed to comply with the Respondent’s definition of what constituted infertility, which led to her being refused the relevant treatment.
Thomas JA said, in that case:[1]
...a proper reading of the doctor’s evidence demonstrates that there was no such discrimination on the basis of the patient’s lesbian sexual activity, and it was not open to find that there was. The evidence showed that doctors providing services of this kind (including the respondent doctor) endeavoured to act upon reports and statements made by various bodies including the National Bioethics Committee. That Committee had published the view that “the most commonly accepted definition [of infertility] within medicine is the inability of a couple to conceive after twelve months of intercourse without contraception. That definition on any reasonable view seems to contemplate failure to conceive after intercourse between members of opposite sexes before infertility is established.
[1]JM v QFG and GK [1998] QCA 228, 30 (Thomas JA).
And later Thomas JA said:[2]
It is true that as the result of some leading and argumentative cross-examination by the President the doctor made statements, which taken in isolation, admitted the lesbian relationship as the basis of his decision. But those concurrences were driven by the “stable and exclusive lesbian relationship” fallacy mentioned above, and also, it would seem, by the assumption in the questioning that the failure of a member of a lesbian couple to qualify was the result of her lesbian sexual activity rather than the result of her sexual inactivity with a member of the opposite sex. This is addressed in (c) below.
...
(c) The true basis of the doctor’s refusal to provide services to the patient was not because of her lesbian activity but because of her heterosexual inactivity. Minds may differ on the question, but common sense suggests that many lesbians are also prepared to engage in heterosexual activity. One can only include the quality of heterosexual inactivity in a particular individual if one overworks the term “lawful sexual activity” by adding personal relationship factors such as “exclusive relationship” to the concept.
[2]Ibid 31-32 (Thomas JA).
Davies JA said:[3]
What the President appears to have done is to conclude that, because it was exclusive lesbianism which, on the evidence of the second respondent, prevented the appellant from complying with the reason for treatment, exclusive lesbianism was the reason or a substantial reason, for refusal of treatment. That is neither logically nor legally correct. On the second respondent’s evidence the reason why she was refused treatment was that she did not comply with the second respondent’s definition of infertility. The reason why, in turn, she did not so comply was her exclusive lesbianism. But it is the first, not the second, which is the reason, and the only reason, for refusal. The second is not a reason for refusal as, in other cases, celibacy or the engaging in exclusively protected intercourse or the failure to maintain a relationship for 12 months would not be a reason for refusal. Each is merely one of the categories of person who does not comply with the reason for treatment, the sole reason for refusal being non-compliance with that reason, namely infertility as defined by the second respondent and others.
[3]Ibid 9 (Davies JA).
The High Court in Australian Iron and Steel Pty Ltd v Banovic was concerned with allegations of direct discrimination on the basis of sex, or gender.[4] It was alleged that workers were retrenched because they had not been employed before a particular date. It was said that this amounted to discrimination on the basis of gender because the waiting period for employment with that employer was for a longer period for women than it was for men. Hence female workers were being retrenched because the male workers had in effect been employed longer, and before the relevant cut-off date. In the joint judgment of Justices Deane and Gaudron JJ it was held that:
... in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or the decision. And that may also be the case where some factor is identified as common to a significant proportion of those adversely affected.
Even if it could be said that a factor common to all or a significant proportion of those who were adversely affected by the decision of AIS to retrench by the “last on, first off” method was that they were women, a further finding that that was the true basis of the decision would be necessary to render [the equivalent to section 10] applicable… There is no finding to that effect by the Tribunal.
[4](1989) 168 CLR 165, 176-7.
Hence the court in Australian Iron and Steel Pty Ltd v Banovic concluded since the reason for retrenchment was the time at which employees were employed, and even though women were more affected by those retrenchments because they were more likely to have been employed later, there was no direct discrimination. The court went on to consider the alternative case of whether it was a case of indirect discrimination.
Shortly after Banovic was decided the High Court revisited the issue in Waters & Ors v Public Transport Corporation (1991) 103 ALR 513.
The complaints of discrimination there arose out of a direction by the Minister for Transport to the Public Transport Corporation to introduce changes to the public transport system. One of these changes was a new ticketing system for public transport involving travellers making a scratch mark on tickets. The other change involved the removal of conductors from some trams. The disabilities of the individual appellants made it difficult or impossible for them to use the scratch tickets. Some of them could not travel on trams which did not have conductors. The Board determined that the changes involved discrimination and ordered the Corporation to discontinue the changes.
In examining the extent to which a causal connection between the basis for the relevant act and alleged direct discrimination, members of the Court differed. Mason CJ and Gaudron J (Deane J agreeing) said, under the heading ‘Section 17(1): does it require an intention or motive to discriminate?’, as follows:[5]
There is some force in the suggestion that the expressions “on the ground of the status” and “by reason of the private life” in s 17(1) look to an intention or motive on the part of the alleged discriminator that is related to the status or private life of the other person: see Department of Health v Arumugam [1988] VR 319, per Fullagar J at 327. However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose: Ontario Human Rights Commission v Simpsons-Sears Ltd, at 547; see also Street, at CLR 487, 566. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, “to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status”. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of “on the ground of” and “by reason of”.
[5][1991] HCA 49, 520-521.
A similar view was adopted by the House of Lords in R v Birmingham City Council; Ex parte Equal Opportunities Commission in relation to s 1(1)(a) of the Sex Discrimination Act (UK),[6] which proscribed less-favourable treatment on the ground of sex. Lord Goff of Chieveley (with whom the other members of the House agreed) said:[7] ‘The intention or motive of the defendant to discriminate… is not a necessary condition of liability’.
[6][1989] AC 1155.
[7]Ibid 1194.
His Lordship noted that, if intention or motive were relevant:[8]
… it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys…
[8]Ibid; See also the discussion by Deane and Gaudron JJ in Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165, 176-177.
McHugh J differed with this approach, distinguishing between the tests to be applied as to motive, intent and causation depending on whether the discrimination was direct or indirect. He said:[9]
The words “on the ground of the status or by reason of the private life of the other person” in s 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. I am unable to accept the statement of Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 at 1193–4, and the statements of Deane and Gaudron JJ (at CLR 176-7) in Banovic concerning intention or motive to discriminate if they are intended to suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator (the discriminator) be actuated by status or private life in a provision such as s 17(1).
With great respect to Deane and Gaudron JJ, I think that the examples given by them in Banovic as to intention or motive not being a necessary condition of liability are cases which are caught by the concept of indirect discrimination which fall within section 17(5). The words “on the ground of” and “by reason of” require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (the victim). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. Of course, in determining whether a person has been treated differently “on the ground of” status or private life, the Board is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then “the ground of” the act of the discriminator was the status or private life of the victim: see Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61, per Mahoney JA at 66. But if the discriminator would have acted in the way in which he or she did, irrespective of the factor of status or private life, then the discriminator has not acted “on the ground of the status or by reason of the private life” of the victim. Likewise, if the discriminator genuinely acts on a non-discriminatory ground, then he or she does not act on the ground of status or private life even though the effect of the act may impact differently on those with a different status or private life. Thus, in Director-General of Education v Breen (1982) 2 IR 93, the Court of Appeal of New South Wales held that the Director-General had not acted “on the ground of sex” in selecting principals for non-secondary schools from a primary school promotions list rather than an infant’s school promotions list even though the use of the former list favoured male teachers. Only 1.5 per cent of teachers on the infants list were male but on the primary schools list 39 per cent of the teachers were male. Absent an intention to use the primary list to disadvantage females, discrimination in a case such as Breen can be established only by relying on a provision similar to section 17(5). At the relevant time, however, the Act had no such equivalent.
The effect of the introductory words of section 17(5), however, is that an act which falls within that sub- section is deemed for the purpose of section 17(1) to constitute treating “the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life”. If the alleged discriminator has in fact treated the other person “less favourably”, in the circumstances specified in section 17(1), then discrimination is made out and section 17(5) is irrelevant. Section 17(5), therefore, operates only in situations where section 17(1) is inapplicable. The hypothesis upon which section 17(5) is built is that the alleged discriminator has not in fact treated the other person “less favourably”. Yet discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different. Thus, both direct and indirect discrimination involve the notion of one person being treated “less favourably” than another.
How then can a case of indirect discrimination come within section 17(5) and yet not come within section 17(1)? The answer is that in section 17(5) “discrimination” is defined in an artificial sense and is dealing with situations where a requirement or condition is imposed equally but has an adverse or more adverse effect on persons of a particular status or with a different private life. A person may be guilty of discrimination under section 17(5) although he or she was not actuated in any way by status or private life.
[9]Waters & Ors v Public Transport Corporation (1991) 103 ALR 513, 552-553.
In Purvis v New South Wales (Department of Education and Training) the High Court considered these authorities in the context of a claim of disability discrimination.[10]
[10](2003) 217 CLR 92.
In that case the relevant Act stated that it was unlawful for an educational authority to discriminate against a student ‘on the ground of’ the student's disability. It stated that a person discriminates against another person on the ground of that person's disability if, ‘because of’ the person's disability, the discriminator treats him or her less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
Chief Justice Gleeson said that:[11]
In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex.
[11]Ibid [157].
After referring to the judgements referred to above from Waters v Public Transport Corporation, of Mason CJ and Gaudron J and that also of McHugh J, the Chief Justice said:[12]
[159] ... However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ.
[160] The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.
[12]Ibid [159]-[160].
After referring to later authority Gleeson J said:[13]
[166] The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act.
[13]Ibid [166].
The leading judgement in Purvis was delivered by Gummow, Hayne and Heydon JJ. For present purposes, relevantly, they identified the issue under consideration as being whether the Commissioner’s conclusion that the student’s behaviour occurred as a result of his disability and that:[14]
… “in this case, Daniel's behaviour is so closely connected to his disability that if … less favourable treatment has occurred on the ground of Daniel's behaviour then this will amount to discrimination on the ground of his disability".
They did not reference in their reasons the cases discussed by the Chief Justice on how to identify the ‘true basis’ for the act or decision.
[14]Ibid [192].
The question was posed in these terms by reference to what was required to show direct discrimination:[15]
[224] The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
[225] In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions:
(i) How, in those circumstances, would the educational authority have treated a person without Daniel's disability?
(ii) If Daniel's treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel's disability?
Section 5(1) could be engaged in the application of section 22 only if it were found that Daniel was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Daniel's treatment.
[15]Ibid [224].
Hence those judges held that the 'circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person' by the alleged discriminator. In Purvis, the circumstances in which the student was treated as he was included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less-favourably than other pupils were. Accordingly, the comparator was a student who was not disabled, but who had acted in the same violent manner as had Daniel. Callinan J agreed with Gummow, Hayne and Heydon as to the circumstances that were to be ascribed to the comparator.
The judgement of the dissenting judges McHugh and Kirby JJ, on the issue of the appropriate comparator, and as to the causation issue, are informative. As to the former they said:[16]
Provisions that extend the definition of discrimination to cover the characteristics of a person have the purpose of ensuring that anti-discrimination legislation is not evaded by using such characteristics as "proxies" for discriminating on the basic grounds covered by the legislation. But the purpose of a disability discrimination Act would be defeated if the comparator issue was determined in a way that enabled the characteristics of the disabled person to be attributed to the comparator. If the functional limitations and consequences of being blind or an amputee were to be attributed to the comparator as part of the relevant circumstances, for example, persons suffering from those disabilities would lose the protection of the Act in many situations. They would certainly lose it in any case where a characteristic of the disability, rather than the underlying condition, was the ground of unequal treatment.
[16]Ibid [130].
In relation to the causation question McHugh and Kirby JJ said:[17]
[17]Ibid [148]-[170].
[148] The words "because of" in s 5(1) of the Act indicate that it is the reason why the discriminator acted that is relevant. This interpretation is also consistent with s 10 of the Act, which refers to an act done for two or more "reasons". In dealing with s 10 the Explanatory Memorandum to the Disability Discrimination Bill also stated that "[i]n relation to direct discrimination the reason that someone has done a particular discriminatory act is very important." However, the cases show differences of opinion concerning the relevance of the alleged discriminator's motive or intention.
[149] A "but for" test was applied by Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission where his Lordship said:
There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate … is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex. [Otherwise] it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but … because of customer preference, or to save money, or even to avoid controversy.
[150] By placing the words "intention" and "motive" together and denying that either is necessary for a finding of direct discrimination, his Lordship opened the way for the submission that direct discrimination does not contain an intention element. However, intention and motive are not the same thing.
[151] In James v Eastleigh Borough Council, Sir Nicolas Browne-Wilkinson VC rejected the "but for" test. His Lordship said:
[O]ne is looking, not to the causative link between the defendant's behaviour and the detriment to the plaintiff, but to the reason why the defendant treated the plaintiff less favourably. The relevant question is 'did the defendant act on the ground of sex?' not 'did the less favourable treatment result from the defendant's actions?'
[152] His Lordship said "the legally determinant matter is the true reason for the defendant's behaviour, not his intention or motive in so behaving."
[153] But on appeal the House of Lords reversed the decision. Lord Goff, together with Lord Bridge of Harwich and Lord Ackner, reaffirmed the objective "but for" test as the relevant test. However, the dissentients, Lord Griffiths and Lord Lowry, criticised the "causative" approach as dispensing with essential statutory criteria. Lord Lowry said:
It can thus be seen that the causative construction not only gets rid of unessential and often irrelevant mental ingredients, such as malice, prejudice, desire and motive, but also dispenses with an essential ingredient, namely, the ground on which the discriminator acts. The appellant's construction relieves the complainant of the need to prove anything except that A has done an act which results in less favourable treatment for B by reason of B's sex, which reduces to insignificance the words 'on the ground of.' Thus the causative test is too wide and is grammatically unsound, because it necessarily disregards the fact that the less favourable treatment is meted out to the victim on the ground of the victim's sex. (original emphasis)
[154] Since James, however, the United Kingdom courts have moved away from the "but for" test. In Nagarajan v London Regional Transport, Lord Nicholls of Birkenhead held that it is necessary to consider the reason of the alleged discriminator but that his or her motive is irrelevant. His Lordship said:
[I]n every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator …
The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred … Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign.
[155] In Chief Constable of the West Yorkshire Police v Khan Lord Nicholls again rejected the "but for" test. He said:
For the reasons I sought to explain in Nagarajan v London Regional Transport … a causation exercise of this type is not required … The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.
[156] The House of Lords recently affirmed these principles in Shamoon v Chief Constable of the Royal Ulster Constabulary. Lord Hope of Craighead said that in most cases "the reason why" will call for some consideration of the mental processes of the alleged discriminator.
[157] These more recent English authorities are consistent with the approach taken by the Australian courts. In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex.
[158] In Waters v Public Transport Corporation, Mason CJ and Gaudron J (Deane J agreeing) approved the view of Deane and Gaudron JJ in Banovic that motive or intention to discriminate is not required. Their Honours said that it is enough if the difference in treatment is based on the prohibited ground, notwithstanding an absence of motive or intention.
[159] In Waters, McHugh J rejected the statement of Lord Goff in Birmingham and the statements of Deane and Gaudron JJ in Banovic concerning motive or intention, in so far as they might suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator was actuated by the prohibited ground. His Honour said:
The words 'on the ground of' and 'by reason of' require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ('the victim'). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did.
However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ.
[160] The reasoning in discrimination cases in that Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.
[161] Subsequent decisions have applied this approach to the question of causation. In Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd Lockhart J said:
The plain words of the legislation … necessarily render relevant the defendant's reason for doing an act, that is the reason why the defendant treated the complainant less favourably.
[162] His Honour also said that the presence of intention, motive or purpose relating to health does not necessarily detract from the conclusion that there is discrimination on the prohibited ground – in that case, sex.
[163] In University of Ballarat v Bridges, having considered the decisions in Banovic and Waters, as well as dictionary definitions, Ormiston J concluded that both "ground" and "reason" connote a basis that actuates or moves a person to decide a matter or to act in a particular way. His Honour said:
[N]otwithstanding that it has been said on many occasions that the Act should be given a broad interpretation, the object of the legislature was to look at the reasoning process behind the decision, conscious and unconscious, at least so far as direct discrimination is concerned.
[164] His Honour said that motive and purpose should be treated as largely irrelevant so long as it can be shown that the person charged intended to do an act that in fact amounts to unlawful discrimination.
[165] It is true that statements of Toohey J and Gummow J in IW v City of Perth might appear to support a "but for" test in discrimination cases. Kirby J, after referring to the "reasons for the conduct of the alleged discriminator", said that the "but for" test applied by the House of Lords in James and by this Court in Banovic and Waters was "the correct test". In IW v City of Perth, however, the references to the "but for" test were expressed in relation to a decision of a corporate body that was made by its Councillors casting votes.
[166] The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act. The Commissioner appears to have wrongly characterised the principle that he applied – which was the correct principle. He correctly held that the benevolent motive of the principal did not excuse the discriminatory treatment of Mr Hoggan.
[167] The Commissioner also correctly found that, because Mr Hoggan was treated less favourably because of his behaviour, he was discriminated against on the ground of his disability. Mr Hoggan's behaviour is a manifestation of his disability. In X v McHugh (Auditor-General for the State of Tasmania), Sir Ronald Wilson said that it is enough if an employer is shown to have discriminated because of a manifestation of a disability. The decision in X v McHugh was followed in Y v Australia Post where the Commission said:
[T]o discriminate against a person suffering a mental disorder because of the behaviour of that person which directly results from that mental disorder, is to discriminate against that person because of the mental disorder.
[168] The validity of this principle can be seen by considering situations where the disability manifests itself in ways that society perhaps finds more acceptable than in cases where the disability manifests itself in dangerous conduct. In Randell v Consolidated Bearing Co (SA) Pty Ltd, for example, an employer was held to have discriminated against an employee on the ground of his disability by dismissing him because of his difficulties with the stock numbering system used in the employer's warehouse. These difficulties were a manifestation of the employee's dyslexia.
[169] The Commissioner also found that the reason for Mr Hoggan's exclusion from the school, unlike the reason for his suspensions, included issues other than his behaviour. The Commissioner found that, although Mr Hoggan's behaviour was a factor in his exclusion, it was not the only factor. He found that the principal had also acted because Mr Hoggan was unable to cope with the stresses of high school life as a result of his disability. Section 10 of the Act states that, if an act is done for two or more reasons and one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act), the act is taken to be done for that reason. Because the Commissioner found that the decision to exclude Mr Hoggan was made on this basis, the Commissioner's decision can be supported without having to consider issues relating to behaviour.
[170] In our view, when the Act is applied according to its true construction, the Commissioner was correct in finding that the State through its agents had discriminated against Mr Hoggan.
As Justice McHugh said in Waters v Public Transport Corporation, ‘on the ground of’ and ‘by reason of’ require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of ‘the victim’. The protected attribute, to use the language of the Act, must be at least one of the factors which moved the discriminator to act as he or she did. And, as his Honour said, of course, in determining whether a person has been treated differently ‘on the ground of’ that matter, this Tribunal is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then ‘the ground of’ the act of the discriminator was the status or private life of the victim.
Relevant legal principles – the standard of proof
I accept that the Third Respondent genuinely had a sceptical view about the claims that she had been sick in the November period and was sceptical about the validity of the psychiatrist’s role in that leave being obtained. In large part this was brought about by what the Second Respondent had told him. The Applicant was treated no differently in those circumstances than any other person who did not have her impairment.
The December 2014 incident
This incident concerns a conversation that took place between Acting Senior Sergeant Hampson under instruction from the Third Respondent, and the Applicant on 4 December 2014. The contention is that the Third Respondent asked another officer to ask her to change her sick leave application to an application for recreation leave, and that if she did not do so she would be sanctioned. As was referenced earlier, this application for sick leave was a retrospective application, to take account of the period that she was on leave in November.
Irrespective of what was said between them on 4 December 2014, it is common ground that the Applicant did not change her application. Her leave application remained for sick leave, and that that application was approved.
I accept that the conversation between them implied that it was appropriate for her to change the application to a recreation leave application, and that this reflected the Third Respondent’s view that there was not in fact a legitimate basis being made to apply for sick leave. He had explained this view to Acting Sergeant Hampson to tell the Applicant.
No sanctions were in fact taken against her for taking sick leave, or for that matter, not amending the application to make it one for recreation leave. I am not satisfied on the evidence that there was any discrimination against her on the basis of her impairment, nor that there was any consequence that flowed from the request being made as it was.
The May 2015 direction
This aspect of the complaint concerns an allegation that the Third Respondent directed the Applicant to take accrued recreation leave which had accumulated due to her absence from work.
It is common ground that her accrued recreation leave had built up because of the substantial periods she had been away from work on sick leave, and whilst she was on that leave, she nevertheless accrued recreation leave which she could not take whilst ill.
I accept that as part of the management process by which the QPS managed staffing levels, staff were permitted, subject to some allowances, to accrue only limited recreation leave. Once they had accrued those limit levels, they were expected to take leave. Officers in the Third Respondent’s position were expected to manage those balances by having the officers in question take for leave rather than allow it to continue to accrue.
I accept that whilst the Third Respondent may well have actively encouraged the Applicant to take recreation leave, he did so as part of the process of managing staffing levels, and because of QPS policies. It is not to the point that one of the reasons that she had accrued such leave is that it had accumulated whilst she was on sick leave. I accept that there were mechanisms to extend those leave balances in the same way that he would have dealt with any member of the QPS who had accumulated an excessive leave balance.
Complaint against the Fourth Respondent
The Fourth Respondent’s December 2014 direction
In the period from 15 December 2014, the Fourth Respondent was a relieving Inspector in the Toowoomba City Patrol Group. As I have mentioned previously, he held that position for little more than a week from 15 December 2014.
The allegation against him is that, on 16 December 2014, the Applicant was requested to provide an explanation for her whereabouts whilst on sick leave in November 2014.
On 15 December 2014, the Fourth Respondent met with Sergeant Draheim for a handover and they discussed the Applicant’s absence from work in November. As a result of what Sergeant Draheim told him, the Fourth Respondent too formed the view that there was doubt about the legitimacy of the Applicant’s application for sick leave in the period in November when she attended her daughter’s wedding.
The Fourth Respondent approved that sick leave, and swore that he had no real choice in the matter having regard to the fact that there was a psychiatrist’s letter which had approved that leave. That said, he remained sceptical of the validity of the claim.
He too was cognisant of the fact that improper claims for sick leave might constitute police misconduct, and as an Inspector he was responsible for ensuring leave was taken for legitimate reasons. As a result, he sent an email to Sergeant Draheim asking for him to get an explanation from her for her conduct.
At that time, the Fourth Respondent was aware that the Applicant had PTSD, but did not, he says, appreciate the significance of this. It is doubtful whether, had he had all of the information which was there to be known about her condition, he would have acted as he did. I accept though that in directing the Second Respondent to obtain a response from her, that he was not discriminating against her on the basis of her impairment, but rather because of his concerns about the veracity of her application for sick leave.
The Applicant also relies upon the terms of s 124 of the Act in contending that it was improper to ask her for the information sought.
Section 124 of the Act provides as follows:
(1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.
(2) Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by—
(a) an existing provision of another Act; or
(b) an order of a court; or
(c) an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or
(d) an existing provision of an industrial agreement under the repealed Industrial Relations Act 1999; or
(e) an order of QCAT or the industrial relations commission.
(3) It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.
(4) In this section—
"existing provision" means a provision in existence at the commencement of this section.
(emphasis added)
In my view, it stretches the language of s 124(1) too far to suggest that asking someone to give information about where they were and what they did whilst on sick leave was a request for information on which unlawful discrimination might be based. Rather, it was a request for information upon which consideration was to be given as to whether her claims to have been genuinely sick while on sick leave in that period might be verified. The Fourth Respondent already had information about her impairment, because he was aware of the psychiatrist’s role in her treatment, at least to some degree.
Additionally, s 124(3) provides a defence to a contravention of s 124(1) if it is proven on the balance of probabilities that the information was reasonably required for a purpose that did not involve discrimination. I find that the information was reasonably required for another purpose, namely to investigate the validity of the application for sick leave, and that further it was not discriminatory to do so.
General and special compensation and other relief
The Applicant’s description of the consequences for her various discriminatory conduct does not distinguish the various forms of conduct alleged and the consequences said to flow from it in each case. Her description of the ways in which any of the individual incidents affected her is extremely limited. She has not sought to distinguish between the conduct of any of the particular Respondents in identifying the ways that she was affected.
She swore, in general terms, that she suffered hurt and suffering as a result of the actions of the Respondents. She felt she was being subjected to managerial actions taken on the basis of her impairment and says that it was accompanied by ill will and a poor culture within the QPS which had caused ‘risk’ to her health and safety. She seeks compensation for pain, suffering, humiliation, loss of enjoyment of life, emotional distress and loss of opportunities.
There are, as I have said, medical reports from Dr Andrea Boros-Lavack and the psychologist, Mr Toombs. Dr Boros-Lavack opines that the Applicant was greatly distressed by requests for justification for her being away from work and that this justified the doctor’s decision to suspend her from duties from 26 December 2014. The Applicant expressed her concerns to the doctor that there was ‘retribution and professional damage’ being caused to her, and that there had been ‘ongoing hostility and resentment toward her’ for sick leave taken. The report describes a worsening of the Applicant’s adjustment disorder with anxious and low mood, tearful spells, severe insomnia, social withdrawal, feelings of helplessness and hopelessness, gastrointestinal symptoms, headaches and palpitations.
Had I upheld the most significant complaints, namely those made against the Second Respondent, in my view an appropriate award for general compensation was the sum of $25,000.00. Had I upheld the complaints against the Third and Fourth Respondents, an appropriate award would have been, in each case, $5,000.00. Interest at 4% would have been appropriate upon these figures.
Even had I been prepared to accept that there had been a refusal to recommend her for other career opportunities, I am not satisfied on the evidence, that even if it had been otherwise she would have obtained those alternative positions and derived a better income.
In the circumstances, I am not satisfied that there is sufficient evidence that she has suffered economic loss as a result of any of the conduct of the Respondents, or any of them.
In the result I dismiss the application.
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