Kristjansson v State of Queensland

[2018] FCCA 3894

FEDERAL CIRCUIT COURT OF AUSTRALIA

KRISTJANSSON v STATE OF QUEENSLAND [2018] FCCA 3894

Catchwords:
HUMAN RIGHTS – Disability discrimination – whether the Applicant was discriminated against – whether the Applicant’s requested adjustments where reasonable – where Court deems adjustments were not reasonable – application dismissed.

Legislation:

Disability Discrimination Act 1992 (Cth), ss.5, 11, 15

Applicant: DAVID JOHN KRISTJANSSON

Respondent: STATE OF QUEENSLAND

File Number: BRG 1113 of 2017

Judgment of: Judge Vasta

Hearing dates: 11 and 12 December 2018

Date of Last Submission: 12 December 2018

Delivered at: Brisbane

Delivered on: 12 December 2018

REPRESENTATION

The Applicant appearing via his Mackenzie Friend Mr Hans Kristjansson

Counsel for the Respondent: Mr Fry

Solicitors for the Respondent: Crown Law

ORDERS

1. That the Application filed 13 November 2017 is dismissed.

2. That the Applicant’s pay the costs of the Respondent, to be agreed or assessed, and taxed in accordance with Schedule 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1113 of 2017

DAVID JOHN KRISTJANSSON

Applicant

And

STATE OF QUEENSLAND

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant, David John Kristjansson, was born on 8 July 1990.  He finished school in 2007 and began working very soon afterwards with the Department of Health.  He was an AO2 level employee.  In July 2008, he was promoted to the position of client services officer at AO3 level in payroll.

2. He was on leave from 3 July 2009 until 21 July 2011 because he believed he was being bullied and harassed at work.  He saw Associate Professor Harvey Whiteford, a psychiatrist, in December 2010 who compiled a report.  After that report was given to the Department, there was a “return to work” through a gradual return-to-work plan.  The Applicant resumed his work.  However, he started complaining from May 2014 that he was being subjected to bullying and harassment.

3. He ended up going on leave in January 2015, after making reports of bullying and harassment that he said that he was experiencing.  He remained on leave, taking a combination of sick leave and long service leave.  He had been seen by Dr Jose Rivera, his general practitioner, who gave him medical certificates during this time. 

4. In March 2015, he started seeing Tamara Smith, a psychologist.  In April 2015, he commenced seeing Dr Kevin Calder-Potts, a psychiatrist.  He had made a claim for WorkCover, however this claim was rejected in mid-2015.  It was then that he had to go back to work and it was up to the Department of Health to find him a suitable duties plan (“SDP”), to help him to return to work.

5. It was obvious that the Applicant could not go back to where he was working, which was within the payroll area of the department, based at Meadowbrook.  The person who was put in charge of his rehabilitation and return to work, was a Mr Carrick.  Mr Carrick said this in his affidavit, at paragraph 16:

   16. I find it is often very difficult to find host placements for employees.  I started the process of finding alternative host placements for Mr Kristjansson early in his rehabilitation.  If host placements were available, I could then negotiate with the GP and Mr Kristjansson with the aim of having Mr Kristjansson doing some duties. I also wanted to clarify with Mr Kristjansson’s GP whether the goal of the host placement was to return Mr Kristjansson to his substantive positon.  This is because in accordance with section 3.5.6.7 of the Workplace Rehabilitation and Return to Work Procedure, the goal of host placements is to return workers to their ‘pre-injury’ work unit and position when the host placement is completed…

6. Because of this, on 17 July 2015, Mr Carrick sent a fax to Dr Rivera requesting further medical information about Mr Kristjansson.  In response to that request, Dr Rivera advised: 

   a)Mr Kristjansson was not permanently unable to work in payroll at Meadowbrook; 

   b)Mr Kristjansson could work in a different working environment; 

   c)Mr Kristjansson had a positive outlook to work in a different area without any graduated return to work, and

   d)Mr Kristjansson was capable and willing to be in a team and function better, aside from payroll and working in Meadowbrook.

7. The evidence discloses that there was a lot of communication by Mr Carrick to try and get the most appropriate posting for the Applicant.  The communication was not optimal, mainly because the Applicant insisted on email communication so that he could document “evidence”.  Given what had occurred to him in the past, the Applicant –not unsurprisingly – wanted to ensure that there was not going to be any miscommunication, and that whatever was said to him was actually there in writing so that it could be verified. 

8. It is clear throughout all of these proceedings here, when one looks at the evidence, that the Applicant was insistent that he was not going to be able to work in payroll, and certainly unable to work in Meadowbrook, but he would be able to work in other areas.  There was a meeting that occurred on 14 August 2015 at the Forensic Science Services building.  That meeting was attended by Mr Carrick, another employee of the Department, Jessica Dickson, the Applicant and the Applicant’s parents.

9. During that meeting, these matters were discussed.  It was discussed that it was difficult to organise a return-to-work program with the Applicant because he was refusing to speak over the phone and the task of corresponding with him via email was somewhat tedious.  However, Mr Kristjansson, the Applicant, advised exactly why it was that he needed to talk via email.

10. Mr Carrick explained to the Applicant that he needed to show that he could communicate if he were to be placed with a host employer and the insistence, in effect, that there would be only communication by email was somewhat of a disadvantage. 

11. During that meeting, the Applicant was asked to clarify the report of Dr Rivera which stated that he couldn’t work in his normal position, and he was asked whether he could work in another location but still in the payroll portfolio.  The Applicant said that he couldn’t do that because there was a chance he would come across a former manager.  He stated, at that time, that he didn’t think that he could ever return to his position. 

12. Mr Carrick explained to the Applicant that he should speak to all of his treating medical practitioners about a possible option being a return to his substantive position as a goal of his return to work plan. But at that stage Mr Kristjansson, the Applicant, said that would not do that. 

13. Mr Carrick explained that a possible outcome of that process may be to consider reasonable adjustment and redeployment, and, if these options were not reasonable, then a possible outcome may be ill-health retirement.

14. Again, Mr Kristjansson was asked if the only restriction to his return to work was working in payroll.  He said that it was, and that he could work anywhere.  Mr Carrick asked the Applicant if he had applied for other positions, as he was under financial strain, and was not looking at returning to a substantive position.  The Applicant said that he hadn’t applied for any positions because he struggled to put an application together. 

15. Mr Carrick advised the Applicant that he should be looking for other positions, and that his resume was not to a good standard, considering that he was already in an AO3 position.  The Applicant acknowledged that fact, according to Mr Carrick, and said that he was told this previously by another HR adviser.  The Applicant said that he would send his resume to Mr Carrick to help him gain interest from other managers while he was looking for host employment.

16. The question was asked, it would seem, by a family member as to why the Applicant had not been returned to work.  It was explained to the whole meeting by Mr Carrick that because the Applicant had excluded the whole of the payroll portfolio as a return-to-work option, such exclusion had limited the opportunities for the Applicant. Mr Carrick explained that he needed the approval of a line manager who was willing to accommodate Mr Kristjansson, the Applicant.

17. It was explained that if the Applicant’s WorkCover application was not accepted, it was going to be difficult to get approval from the payroll manager to pay for the Applicant to work in another work area for a long period of time unless there was a goal of returning to the substantive position.

18. Eventually Mr Carrick was able to find a placement at the PA Hospital under the supervision of a Mr Darren Winningham.  On 28 August 2015, Mr Carrick was copied into an email from Mr Winningham to Jennifer Rossiter, who was an employee of the Metro South Hospital and Health Service, requesting Ms Rossiter to consider the request to place the Applicant. 

19. In his email, Mr Winningham stated that the placement would be for four weeks with standard hours, 8:00 am to 4:00pm;  that the section of the Department, that the Applicant had come from, would pay for the placement;  that the opportunity would involve scanning and uploading training records;  that there was plenty of work that could be offered, and direct support and supervision could be provided; and, that the placement would have no financial impact upon the Metro South Hospital and Health Service Department. The email said that the placement actually may assist in the rehabilitation of the Applicant back into the workforce, and that orientation and training would be provided on day one, and that Mr Carrick would continue to case manage the employee with periodic visits.

20. Because of that email, Mr Carrick emailed the Applicant requesting that he contact him to discuss the position at the PA Hospital.  On 2 September 2015, Mr Carrick emailed the Applicant advising that he had approval for him to start at the PA Hospital on Monday, 7 September; that they had a four-week placement working as a supernumerary for Operational Services in administration; and, that Mr Carrick would prepare a suitable duties plan, the SDP, and provide it to him before he started.

21. Later that day, Mr Carrick emailed the Applicant requesting him to confirm by email that he was willing to participate in the program.  On 3 September, Mr Carrick emailed the Applicant and asked him to review the draft SDP that had been developed and consider the goal of the four-week placement in a rehabilitation sense. 

22. Now, that draft SDP noted that the Applicant was to complete a host placement for four weeks in the PA Hospital in Operational Services from 7 September until 2 October; that the Applicant was to report to Mr Winningham; and, that the Applicant would perform administrative duties as designated by his supervisors.

23. This is the more controversial part: The SDP noted that those duties would include assisting the staff coordinator with attendance variation forms.  Those forms are used to adjust types of leave and work hours and rostering, filing and file creation.  Mr Carrick was very aware that the Applicant was familiar with this system from his work in payroll, so Mr Carrick thought that that would be very good for the Applicant.

24. However, there was a possibility that, whilst working in that administration services, the Applicant may be contacted by payroll staff regarding staff rostering and AVACS, as an example.  The other part of the SDP was that the only restrictions noted were to notify the supervisor if there was a change in allocated breaks or work times and to report any issues immediately to the supervisor or to Mr Carrick.

25. Now, the Applicant did not immediately reply to that email.  Mr Carrick went ahead to make sure that there was nothing that was going to stop the placement.  He ended up sending that draft SDP to Dr Rivera.  This was very important because Dr Rivera had to sign off on that plan as well.  To make sure that this aspect, about there being a possibility that there may be some contact with payroll people, the part of the plan that spoke about this was highlighted in bold.

26. Mr Carrick sent that plan by fax to Dr Rivera and then continued to again email the Applicant wanting his feedback.  Eventually the Applicant did send back an email.  That email from the Applicant stated that he was happy to commence the host placement on 7 September, but he was not able to perform any payroll duties as there was a risk that the payroll area may contact him.

27. On 7 September 2015, the Applicant attended at the PA Hospital and met with Mr Winningham.  The Applicant had expected that Mr Carrick would be there as well at 8 am, but Mr Carrick did not arrive until 8.40 am.  The Applicant was dressed in a polo shirt that did have a Queensland Health logo, though apparently the logo may have been one that was out of date.  He was also wearing cargo pants and shoes that appeared, to others, to look like slippers.

28. When the Applicant arrived, he insisted that he stand rather than sit at a desk.  He explained that he had a standing desk when he had been employed at the payroll section in Meadowbrook and he said that he wouldn’t sit and was quite happy to stand for the rest of the day.  When Mr Carrick arrived he had a discussion with the Applicant.  The Applicant reiterated to Mr Carrick that he didn’t want to have even the slightest chance of having contact with someone from payroll.

29. Mr Carrick raised that the Applicant could not stay at work and stand all day, and also raised the standard of the dress of the Applicant.  The Applicant was sent home at about 9.30 am.  Mr Carrick followed this up with an email and the Applicant answered that email at 11.44 pm that evening. 

30. In looking at those emails one can see that the Applicant was saying that he had an arrangement whilst in payroll for a stand-up desk; that Mr Carrick advised the Applicant that his Queensland Health polo shirt was not suitable clothing as the logo had recently been replaced; the Applicant countered that his mother, who was also a Queensland Health employee, wore similar shirts with the same logo, and even more than that, he was under financial pressure and could not afford new clothing.

31. Mr Carrick said, in the email exchange, that the pants that he was wearing were not suitable clothing and that he needed to swear slacks and a belt.  The Applicant said as he was currently under financial pressure and he could not afford new clothing.  Mr Carrick advised the Applicant that his shoes were not suitable clothing, and the Applicant said that he needed to wear those shoes due to his medical condition.  Mr Carrick asked him to provide a medical certificate to wear those shoes at work.  The Applicant said that he was under financial pressure and could not afford new clothing nor, one would seem, new shoes.

32. Mr Carrick advised the Applicant that any job in Queensland Health may involve contact with payroll services. The Applicant said that he is unable to be in contact with payroll services due to his ill mental health and that he had provided medical reports and certificates since May 2015 to support this.

33. The Applicant said that, in the meeting that occurred at forensic science building, he clarified this, yet still Mr Carrick included this as part of the duties.  The Applicant said that shorts and joggers were suitable attire in payroll and he would continue to wear those clothes until his next pay day.  The Applicant also said that he should be in a position to recommence work on Wednesday, 9 September 2015.

34. However, before that happened, on 8 September,  that is, the next day, Mr Winningham sent Mr Carrick an email about the Applicant’s attendance for the 90 minutes or so that he was there the previous day. 

35. In that email, Mr Winningham advised that the Applicant arrived at work that day and appeared to be agitated; that Mr Winningham provided the Applicant with access to a computer to activate his account, but that the Applicant did not sit to perform work and would stand for his shift.  This concerned Mr Winningham as this requirement was not previously discussed with him.

36. He said that the Applicant smelled and his dress and presentation was appalling; that he was dressed in runners and a track top, and Mr Winningham noted that the Applicant’s appearance should be neat and tidy in accordance with the Metro South Hospital and Health Service procedure. 

37. Mr Winningham noted that the work area, in which he proposed to have the Applicant located, was in an area where clinicians, nursing and other staff frequent, and that it was important for the Department’s image that the Applicant presented himself in a professional manner.

38. Mr Winningham said that, in the period of 40 minutes (which seems to be between when the Applicant arrived and when Mr Carrick arrived), a number of employees reported “weird and odd behaviour and loud talking whilst on the phone”. Mr Winningham said he had discussed the matter with other managers and, because of that, his area was now not in a position to host the Applicant any more.

39. Because the Metro South Hospital and Health Service have no obligation to host an employee, there was nothing that could be done to “re‑set the clock” on the Applicant.  This meant that this placement was now finished. 

40. The Applicant, as it were, then stayed off work because a suitable placement could not be found.  On 21 September 2015, Dr Rivera issued a medical certificate certifying that the Applicant had no capacity for any type of work from 25 August 2015 to 26 October 2015.  On about 23 September 2015, the Applicant was directed to undergo an independent medical examination with Dr De Leacy, who is a consultant psychiatrist.

41. On 21 October 2015, Dr Rivera certified that the Applicant was unfit to continue his normal occupation from 20 October to 20 November 2015.  Dr De Leacy gave the Department his report on 23 October 2015, and I will talk about that a little later.  On 23 November 2015, Dr Rivera certified that the Applicant had no capacity for work between 27 October 2015 and 29 December 2015. 

42. In the meantime, the regulator, on 12 February 2016, confirmed the decision of WorkCover Queensland to reject the Applicant’s claim; that is, for the bullying that had him on leave in the first place.

43. The Applicant did appeal that decision but it seems that he subsequently withdrew the appeal, though none of that is particularly relevant to this aspect.  But it does show that there were other pressures that seemed to be on the Applicant during this time. 

44. Ms Elizabeth Bailey became the person involved with the Applicant and his return to work, taking over from another person who had taken over from Mr Carrick.  Ms Bailey tried to communicate with the Applicant by phone, but he refused and insisted that all of his communication be written; that is, by email.  I note that during this whole time Ms Bailey did not ever speak to the Applicant.

45. Ms Bailey had been trying to ascertain the full nature of the disability of the Applicant.  The Applicant withdrew his consent for Ms Bailey to contact his medical specialists because he believed that she was asking inappropriate and irrelevant questions.  Those questions were about the Applicant’s showering; why it was he was unable to speak to Ms Bailey on the phone; family issues and some other matters.

46. Undeterred, Ms Bailey still continued to try and locate a host placement for the Applicant.  She found a potential host placement at Richlands Supply and Distribution Centre.  The placement was for a period of 12 weeks.  On 22 June 2016, Ms Bailey sent an email to the Applicant telling him about the host placement and advising that a Mr Deans, who is the local manager, had proposed a meeting between himself, the Applicant, Ms Bailey and another person, Ms McDonald, on the following Monday, 27 June.

47. That meeting would be to discuss the available duties and dress and training requirements as well as hours of work.  On 24 June 2016, the Applicant emailed Ms Bailey stating, amongst other things, that his SDP should be finalised “before there is any meeting with Mr Deans”. 

1. The Applicant listed 10 items that he wished to see included in the SDP.  This included that: he be able to record all discussions on a voice recorder;  that he needed a stand-up desk;  that his support person attend informal, and formal, meetings;  that he have 24 hours’ written notice of any meetings;  that he be able to wear flat-soled shoes and that all directions be in writing.

2. Later that day Ms Bailey responded to the Applicant saying that some, but not all of the Applicant’s requirements for the SDP, could be accommodated.  There were further email communications that then took place between the Applicant and Ms Bailey.  Ms Bailey also communicated with Mr Deans in relation to those requirements of the Applicant.

3. Ultimately, by email on 21 July 2016, Mr Deans advised Ms Bailey that the Applicant’s requirements were not within reason.  In particular, he pointed to the recording of all conversations being not acceptable at work and that it was not possible to give all directions in writing given the nature of the work.  There were further emails exchanged between the Applicant and Ms Bailey, and, by an email dated 21 Jul 2016, Ms Bailey advised the Applicant that Mr Deans had again requested that the Applicant attend a meeting at the centre so as to gain an understanding of the centre and to start to develop trust and confidence in the workplace and management.

4. There were further emails exchanged between Ms Bailey and the Applicant.  On 31 August 2016, Dr Rivera certified that the Applicant had no capacity for work between 31 August 2016 and 30 September 2016.  From about September to November 2016, the State of Queensland, through the Department of Health, sought to involve an external consultant, called Strive, to assist in returning the Applicant to work.  The Applicant refused to engage with this process.

5. Ms Bailey then ceased to have any involvement in the Applicant’s return to work as she left employment with Health Support Queensland on 21 October 2016. As such, the second host placement did not go ahead. 

6. The Applicant filed a claim with the Australian Human Rights Commission.  That claim was not able to be resolved in the Commission, and, because of that, on 13 November 2017, the Applicant launched this proceeding. 

7. The statement of claim speaks of the two attempts at host placement;  the first one being the attempted placement at the PA Hospital, which lasted for 90 minutes on 7 September 2015; and, then the second host placement which was to hopefully take place in around July of 2016 with Mr Deans.

8. At paragraphs 22, 23 and 24 of the statement of claim, the Applicant has pleaded by each instance of the conduct the Respondent:

   …because of the applicant’s disability, treated the applicant less favourably than he would have treated a fellow employee of the respondent without the disability in circumstances that were not material [sic] different

   23. In the premises, each instance of conduct by the respondent pleaded in paragraphs 13, 14, 20 and 21 herein constituted:

   a. Direct disability discrimination within the meaning of s 5 (1) of the DDA;

   b. Unlawful discrimination contrary to section 15 (2)(a), (b) and (d) of the DDA.

   24. During the applicant’s employment with the respondent, the respondents subjected the application [sic] to unlawful discrimination, within the meaning, and in contravention of s 15, and within the meaning of s 5(2) of the DDA because it:

   a. Did not make reasonable adjustments for the applicant in respect of his disability, and

   b. The failure to make the reasonable adjustments had the effect that the applicant was, because of the disability, treated less favourably that [sic] another employee of the respondent without the disability was, or would have been, treated in the circumstances that were not material [sic] different.

   Particulars: 

   (i) During the applicant’s employment, the applicant required the following reasonable adjustments: 

   a. to have a support person on the first day back and to be able to be contacted with any concerns, and the support person can attend informal and formal meetings; 

   b. to be able to record any discussion on a voice recorder; 

   c. all directions are to be in writing; and,

   d. at least 24 hours’  notice in writing for meetings to discuss worker – support person to be present.   

   (ii) The respondent failed to make the above reasonable adjustments.

   (iii) The respondent’s failure to make reasonable adjustments caused the applicant to be treated less favourably than other employees who did not require the reasonable adjustments in that the applicant was,

   a. Unable to have the benefit of an agreed suitable duties plan; 

   b. Denied the opportunity to engage in a return-to-work program; and/or,

   c. Denied the opportunity of being placed in host employment.

9. The definition of “disability” in the Disability Discrimination Act 1992 (Cth) (“the Act”) is :

   disability, in relation to a person, means:…

   (g) A disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour, and includes a disability that:

   (h) presently exists, or

   (i) previously existed but no longer exists; or

   (j) may exist in the future (including because of a genetic predisposition to that disability; or

   (k) is imputed to a person.

   To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

10. In 2010, Dr Whiteford said, of the Applicant, that he met the DSM-IV diagnosis criteria for obsessive compulsive disorder.  Dr Whiteford said that the Applicant also had:

    …some depressive features and appears to have had, at times, depression of sufficient severity to meet the diagnostic criteria for an adjustment disorder with depressed mood.  The obsessive compulsive disorder is the primary psychiatric condition. The adjustment disorder (depression) arises in response to the stress of the obsessive compulsive disorder, and the problems [the Applicant] has encountered in his workplace and in his home environment.

11. Dr Whiteford also noted that there appeared to be significant workplace factors contributing to the Applicant’s difficulties in resuming full-time employment.  Mind you, this is back in 2010.  The Applicant acknowledged that his “obsessionality” does adversely impact on his work performance and it is highly likely that his work colleagues and supervisors have become intolerant of this.  Dr Whiteford said that as a result, the inter‑personal relationships at work have deteriorated and contributed to his anxiety and depression, which in turn makes his work performance deteriorate even further.

12. Dr Whiteford said that, from a psychiatric point of view, the Applicant could work full-time; his obsessive compulsive disorder has improved, and his depression is now minimal and would not prevent him from working full-time.  However, the current workplace, as noted above, has become increasingly intolerant of his psychiatric symptoms to the point where returning him there would exacerbate his obsessive compulsive disorder and his adjustment disorder, causing the deterioration which would result in him taking more time off work.

13. Dr Whiteford said that he believed that it was a combination of the Applicant’s psychiatric condition of OCD and the conflict which has apparently arisen in the workplace that was preventing him from working full-time.

14. In 2015, the Applicant was seen by Dr Calder-Potts.  Dr Calder-Potts noted that:

    [The Applicant]’s OCD symptoms include anxious ruminations, particularly with regards to number plates, as well as compulsive habits, particularly in the bathroom and his gym routines.  He has also past body dysmorphic concerns, particularly his eating behaviour, having been teased about his weight.  He also had difficulty looking at himself in the mirror and has had episodes of trichotillomania. 

    His anxiety symptoms include constant worry, particularly about work and how people view him.  He is also very competitive, both at work and in the gym, and always wants to achieve above everyone else.  He has little pleasure in everyday activities, only enjoying gym and exercise, and sets himself targets which he has to exceed daily otherwise he feels an overwhelming sense of worthlessness. 

    His other particular activity is video games and again he is very competitive, spending over five hours a day playing these games.  There is no evidence of any suicidal ideation and his stress has resolved to a degree since he has been on sick leave.

15. As far as his mental state examination was concerned, Dr Calder‑Potts said that the Applicant’s behaviour was appropriate and he was coherent in his history, and disclosed his story in a coherent manner:

    His mood was somewhat flat, with limited ability to enjoy himself and an exacerbation of his anxiety symptoms, particularly his OCD systems.  His affect was reactive with increased anxiety and that there were no disorders of thought possession, content or form, and no abnormal perceptual experiences.

16. Dr Calder-Potts noted that the Applicant had some degree of insight and his ability to empathise was limited.  Dr Calder-Potts, in the end, writing to Dr Rivera, suggested that the Applicant ask Dr Rivera to provide a longer period of leave so that he can do some systematic work with his psychologist to enable him to return to work; short periods of sick leave only exacerbate his anxiety and fear of returning to work.

17. As the Applicant had previously been on a Workers Compensation case and had sought help from the Employee Assistance Scheme, Dr Calder-Potts believed that there seemed to be good grounds for a further WorkCover claim, although noted that this may not be advantageous to him in the long run. 

18. In July 2015, Dr Rivera said, in relation to some specific questions made by the State of Queensland – question 1:

    Is Mr Kristjansson able to work in another payroll area within Queensland Health?

    The answer was:

    We had a long discussion about his trauma experience working in a payroll section.  He is not keen, or has no positive outlook in this working environment.

    Question 2:

    In your opinion is Mr Kristjansson unable to permanently work in payroll at Meadowbrook?

    Answer:

    No.  It will trigger and make his anxiety/depression worse, especially he is not at moment working.

    Question 3:

    In your opinion is Mr Kristjansson able to be reasonably managed in another work area;  for example, receiving reasonable feedback about his work?

    Answer, “Yes, he can work in a different working environment.”  Question 4:

    If Mr Kristjansson was to be redeployed to another work area, would Mr Kristjansson require a graduated return to work program?  If so, what restrictions would this involve?

    Answer:

    I had a recent assessment with him.  He is capable to work and redeployed in another work area.  He has positive outlook to be on a different area without any graduated return to work.

    Question 5:

    Are there any other matters that you consider relevant in relation to Mr Kristjansson’s medical condition and capacity to work?

    Answer:

    He assured me he is capable and willing to be in a team and function better from payroll and working at Meadowbrook.

19. Having a look at those three main reports, and as well as many of the other reports that have been submitted in this matter, I am of the opinion that the Applicant does suffer from a disability. Because he does suffer from a disability, s.5 of the Act says that:

    (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

    (2)For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

    (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

    (b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

    (3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

20. A reasonable adjustment is defined this way:  an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person. 

21. What has been pleaded in this case is that there were four reasonable adjustments that the State of Queensland should have made for the Applicant, and the failure to make those reasonable adjustments has meant that the Applicant has been treated less favourably than a person without disability would have been treated.

22. The reasonable adjustments are pleaded as:

    a)having a support person on the first day back, and that person to be able to be contacted with any concerns, and the support person can attend informal and formal meetings. 

    b)to be able to record any discussion on a voice recorder. 

    c)all directions are to be in writing, and

    d)at least 24 hours’ notice in writing for meetings to discuss worker-support person to be present.

23. Under the definition, those adjustments are reasonable adjustments unless making the adjustment would impose an unjustifiable hardship on the person. 

24. For completeness, I should say that s.15(2) of the Act relevantly says:

    (2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:

    (a) in the terms or conditions of employment that the employer affords the employee; or

    (b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

    …

    (d) by subjecting the employee to any other detriment.

25. Again, this follows that, if the reasonable adjustments have not been made, then the Applicant has been discriminated against. 

26. There are two main issues here.  It is for the Applicant to show that there has been discrimination;  that is, that the failure to make the reasonable adjustments, that have been asked, have the effect that the Applicant is, because of his disability, treated less favourably than a person without a disability would be treated in circumstances that are not materially different;  that is that, unless those reasonable adjustments are made, the Applicant will be treated less favourably than he would otherwise be treated if he didn’t have the disability.

27. That is the core of this matter; that that failure to implement the four reasonable adjustments has meant that the Applicant has been treated less favourably.  So the question has to be, “are those reasonable adjustments necessary for the Applicant to actually function properly in the workplace?” 

28. As the recitation of the facts has shown, there are two distinct matters here.  The first one is the first placement on 7 September.  I went through what the state of the evidence was as far as the Applicant’s disability was concerned, really by my reference to the report of Dr Whiteford, the April 2015 report of Dr Calder-Potts and the July 2015 report of Dr Rivera. 

29. It is clear, from those reports, that the disability that the Applicant had was the OCD and what disadvantage was going to occur was if it was that the Applicant had anything to do with payroll, and certainly anything to do with payroll at Meadowbrook. 

30. The plan that Mr Carrick had devised did have an element that there could be some contact with someone from payroll.  It does not necessarily mean that is someone from Meadowbrook, or anything of that nature, but there could have been some tenuous link to former managers or persons that the Applicant had been in contact with beforehand.

31. This is why Mr Carrick made sure that that aspect of the plan was put in bold and that Dr Rivera should look at that.  Even though it was that the Applicant had said that he did not want to have even a remote possibility of a contact with the persons from payroll, given the sort of contact that it would involve, and that there was still such an unlikely aspect of it, it was prudent that Dr Rivera be the one to give an objective assessment as to whether that adjustment was one that was reasonable or not.

32. In the end, Dr Rivera did not ever get that chance to make an assessment as to whether it was able to be done.  As it was, the Applicant was not able to maintain that post.  The question is what reasonable adjustments were needed for this placement; so, the question is, “was the Applicant discriminated against in relation to this first posting?”  The statement of claim pleads that he was discriminated against because those four reasonable adjustments were not made.

33. There is no mention in the statement of claim that the reasonable adjustment with relation to the first posting was that there be no contact with payroll.  The Applicant has “nailed his colours to the mast” that the four matters – that is the support person, the 24 hours’ notice, the directions in writing and recording of all conversations – were the reasonable adjustments that should have been put in place at that time.

34. However, at no time did the Applicant, before 7 September 2015, ask for those reasonable adjustments to be made.  The only reasonable adjustment, which he asked for, was that he not have contact with the payroll section.  In those circumstances, that part of the statement of claim that deals with the first posting in September 2015 cannot be made out.

35. Even if I were able to have amended the statement of claim to add that another reasonable adjustment was that there be no contact at all with the persons in payroll, the evidence before the Court is that it was contact with persons in payroll at Meadowbrook that was the gravamen of the reasonable adjustments that needed to be made.  Dr Calder-Potts and Dr Rivera make it very plain that it is the persons at Meadowbrook that have been the persons who have exacerbated the disability.

36. When one looks at what had happened in 2010 with Dr Whiteford, again it was the persons who were there at his actual place of work that were the problem.  There was nothing in the SDP, which had been devised by Mr Carrick, which suggested that there would be any contact with anyone at Meadowbrook.  Even to be absolutely positive, Mr Carrick made sure that this aspect was a term that Dr Rivera had to assess himself and to sign off on before the employer was going to ensure that this placement was going to stay.

37. Notwithstanding that, Dr Rivera had not signed off on the SDP beforehand, the Applicant did not bring any concern, other than apprehension of contact with payroll, to the attention of the State of Queensland. 

38. Even if there were an amendment to the statement of claim, I would still rule that there has not been proved to me to be discrimination, because there has not been proved to me that s.5,(2)(b) has been proved; that is, that the Applicant was to be treated less favourably than a person without the disability. So therefore that part of the claim fails.

39. The second part of the claim, dealing with the proposed second placement and the contact between Ms Bailey and Mr Deans, is a little more complex than that.  I have noted the problems that Ms Bailey had in making any form of negotiation, because she was not permitted by the Applicant to speak to him; everything had to be done via email.  This was a very lengthy process where a phone call would have been able to have sorted things out a lot quicker.

1. In the end, the matters that the Applicant put to Ms Bailey were matters that had been arrived at because of discussions with the Applicant’s psychologist and other medical professionals stemming from the September 2015 posting.  The report of Dr De Leacy, that was commissioned in 2018, puts the matter this way: that the Applicant certainly has still suffers from the same disability; that the symptoms are now mild;  that he does not have depression or anxiety but only worries about whether he will be accepted back to work.

2. This is his main concern and he ruminates a little about this.  Dr De Leacy said that he believed the Applicant could participate in a return‑to‑work program given the adjustments that have been put forward by Ms Smith, and counter-signed by Dr Rivera, which will be discussed below.  Dr De Leacy said that:

   C. … He can return to work in a clerical position but not in a payroll setting.  Besides the adjustments being made it is imperative that he is not treated with any hint of discrimination.

   D. It is my view that given the complexity of this case and the marginalisation that Mr Kristjansson has endured that the adjustments put forward in the plan dated 7 April 2016 and in the Suitable Duties Plan dated 6 October 2016 are appropriate given the past circumstances. 

   Specifically: 

   i) He should not work in payroll services Meadowbrook or do payroll work at all.  If the payroll office needs to contact Mr Kristjansson they should go through his line manager. No direct contact should occur.

   ii) He requires a support person on the first day at work and a support person should be able to be contacted with any concerns and the support person should be able to attend meetings to give him a level of confidence.  He said that in the past he has had difficulties being overwhelmed by others at meetings which had been called at short notice. 

   iii) There should be at least 24 hour notice in writing for meetings to discuss the worker and the support person should be present.  This is necessary because short notice meetings have distressed him in the past. 

   iv) A stand-up desk is required.  He also requires “special” shoes.  He said these are not actually special but have been deemed special by the department. They are just standard shoes he purchased without a heel which are more suitable to his back condition.

   v) All directions should be in writing and this is to avoid any ambiguity.  He said in the past, directions have been given and then different versions of what has been said have been put forward.  He does not want to be compromised in this way again. 

   vi) He wishes to record any discussions on a voice recorder. He said this is necessary to give him the confidence because in the past certain things have been said and he has made certain replies and these have been reported differently. He wishes to have the confidence of having this back up. He showed me a document related to the Invasion of Privacy Act which actually specifies that he is entitled to do this by law.

3. Whilst Dr De Leacy has spoken of those matters, the only matters that the doctor has given an “independent” opinion upon, is based solely on what it is that the Applicant has told him; that is, that short-notice meetings have distressed him in the past; that he has been overwhelmed by others at meetings which have been called at short notice; that he does not want to be compromised in this way again.

4. Those matters are very subjective aspects, but they are obviously symptomatic of the disability of the Applicant.  What Dr De Leacy has said is that these “adjustments” are appropriate given the past circumstances.  Dr De Leacy has said that he has had regard to a number of reports:   they are reports of an Associate Professor Sandy McCloud, reports of Dr Jose Rivera, dated 24 January 2018, and 30 February 2018; a report of Dr Ng, and copies of documents provided to Dr Ng.

5. Dr De Leacy goes on to totally disagree with the reports of Dr Ng, which are not relevant for these proceedings because they go as to whether there should be medical retirement.  But he does not say that he is in disagreement with the reports of Dr Rivera. 

6. In his latest report of February 2018, Dr Rivera said that he gave his recommendations to those four “adjustments”.  He went through having the support person on the first day back and that person being able to be contacted with any concerns.  He talks of why this would be good for the Applicant.

7. As far as the adjustment of being able to record any discussions on a voice recorder, Dr Rivera talks about that this was applicable only to discussions regarding the Applicant’s assigned tasks to perform work performance assessment and reviews, and this would provide assurance that what was discussed be documented and not be used as a tool against him for whatever claims are raised in the future. 

8. With respect to the adjustment that all directions were to be in writing, Dr Rivera says that this would be a reasonable step that directions would be in writing as a clear guide of the role of the Applicant in the Department that would cover his expected duties to perform.

9. Dr Rivera noted that the 24 hours’ notice “adjustment” would help the Applicant to mentally prepare and the support person would be able to explain, maybe in a different way, the issues being discussed, and that would help him understand better.  The outcome of the discussions would also be more productive and less stressful.

10. Dr Rivera concludes with this paragraph where he has bolded the words “personal opinion”:

    Please note that these recommendations are of my personal opinion to help [the Applicant] to adjust, and hopefully for him to fit back to his working environment in a healthy and conducive way.  In addition, these recommendations, if be considered by his employer, will be in agreeable and workable timeframe work between the applicant and his employer.  Further, these recommendations are subject to the decision of his employer for consideration.  In the event that these recommendations will not be approved, in my professional opinion, the applicant can still be able to perform his duties expected of him as an administrative officer.

11. It seems to me, if I accept that evidence, that this means that if there were the failure to make the reasonable adjustments, the Applicant would not be able to say that he would be treated less favourably than a person without the disability would be treated in circumstances that are not materially different.  Dr De Leacy has spoken of why it is that it would be preferable for the Applicant to have these adjustments, but Dr De Leacy has not looked at what the consequences would be to the Applicant if they were not applied.

12. He has certainly gone through the adjustments and said that they are of benefit and that they are reasonable, but he has not turned his mind as to the necessity for those adjustments to be made so as that there is no disadvantage to the Applicant.  On balance, this is what Dr Rivera has done, in that we all know what the optimal situation is, and why the Applicant would feel extremely safe and calm with these adjustments, but his opinion, at the end, is that if they were not done, he could still be able to perform his duties expected of him as an administrative officer.

13. It seems to me that I should accept this evidence.  That would mean that the Applicant has failed to make, or to prove, that there has been direct disability discrimination in that he has been treated less favourably than a person without a disability would be treated. 

14. I should say that if I am wrong about that, and that this decision should have concluded that without those reasonable adjustments the Applicant would be treated less favourably than a person without the disability, it is then a matter for me to look at whether or not there was unjustifiable hardship.

15. Section 11 of the Act relevantly says that:

    (1)For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

    (a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;

    (b) the effect of the disability of any person concerned;

    (c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;

    (d) the availability of financial and other assistance to the first person;

    (e) any relevant action plans given to the Commission under section 64.

16. It seems to me that what has been promulgated by the Applicant is that these matters are good for him, and it really does not matter what happens with anyone else; the only person that really matters in all of this is the Applicant.  The Applicant swore as much; that he has never thought as to how any of these “reasonable adjustments” would affect anyone else.  This really has been the way in which this whole matter has been approached, in that the Applicant has displayed limited insight (which is part of his disability).

17. But that is not the task of the Court, if one is looking at unjustifiable hardship to only look at matters from the view of the Applicant.  Whilst it is for the Respondent to prove unjustifiable hardship, in this case, it can easily do so.  That is because if one looks at all of these adjustments, and going through all four of them, they would be unjustifiable in the whole workplace regime.  The fact is, realistically, the Respondent really only has to show that one of them would be an unjustifiable hardship.

18. But if I go through them:  firstly, the condition that the Applicant was to have a support person on the first day back, and that person to be able to be contacted with any concerns, and that the support person can attend informal and formal meetings.  That would mean that the Respondent would have to have an induction for that support person, because the support person needs to be able to obviously come on to the premises and understand exactly what it is that is happening.

19. This is a very high burden to put on any organisation; to have someone who is really nothing to do with the organisation, who is only there for the Applicant, who really needs to have all the ins and outs of what is happening in the Department explained to them so that they can actually understand and give true and proper support.  In effect, the Department ends up having to train two people to do the one job, and expend all of the resources to train those two people, notwithstanding that they would only be giving remuneration to one of those persons.

20. With regard to the second, “To be able to record any discussion on a voice recorder”, this would be a very hard matter to institute and still maintain or build any trust or cohesiveness within the workplace.  Notwithstanding that it may be legal to record any discussion on a voice recorder, there are many conversations that occur at a workplace that people do not want recorded.  Even though it is noted that the only person who talks about the way in which this could be curtailed is Dr Rivera, the curtailing, that Dr Rivera talks about, is not what it is that is pleaded as the Applicant’s case here in the submissions made to me.

21. The submission of the Applicant is that if it is legal, then the Applicant should be able to do it, and no one else should mind in any way, because, unless they were doing something wrong, there would be no reason why they would not want their conversations recorded.  I do not accept that and I do think that imposing that upon a workplace will breed discontent, distrust, and would actually have the opposite effect.  Whereas the Applicant has complained that he is somewhat ostracised by everyone else, telling everyone that he is recording what is being said is not conducive to that feeling of being ostracised, in any way, being lifted.

22. The adjustment that requires all directions to be in writing is just simply impractical.  The example that has been given here, that if there was an emergency and the Applicant is told to stop doing what he is doing, means that the Applicant simply could ignore that direction until the person wanting him to stop gets the direction in writing and gives that to the Applicant.  By the time that happens, it may be too late and there could be all sorts of harm that befalls the workplace.

23. That request is simply unjustifiable.  Whilst some matters, when directions are given, could be put in writing afterwards so as to be confirmatory, that is not what it is that is being asked here.  It is for all directions to be in writing. 

24. The final adjustment of “at least 24 hours’ notice in writing for meetings to discuss workers, worker, and the support person to be present”, simply means that a supervisor cannot even discuss a miniscule matter of the person’s work with them unless he is given 24 hours’ notice in writing and gets the support person there. Again, this is just not practical, and cannot be a way in which the workplace is run.

25. So even if it were that I were wrong that there had not been the discrimination, and I had to look at unjustifiable hardship, I would find that the Respondent had proved their case.

26. In all the circumstances then, I dismiss the application.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  14 January 2019