Lankheet v State of Queensland - [2011] QCAT 212

CITATION:

Lankheet v State of Queensland [2011] QCAT 212

PARTIES:	John Hendrikus Lankheet
v
State of Queensland

APPLICATION NUMBER:

ADL015-09

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

14, 15 and 25 February 2011

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

16 May 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

The complaint is dismissed.

CATCHWORDS:

ANTI-DISCRIMINATION – impairment – complaint that person was discriminated against in the workplace – indirect discrimination – where it was alleged that term imposed was not reasonable – direct discrimination – where it was alleged complainant was treated less favourably

Anti-Discrimination Act 1991, ss 10, 11

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	John Hendrikus Lankheet represented by Adam Taylor of Workers First Australia Pty Ltd
RESPONDENT:	State of Queensland represented by Christopher Murdoch, Counsel instructed by Crown Solicitor

REASONS FOR DECISION

John Lankheet has been employed by the respondent since 10 February 1997. He is currently employed as a custodial correctional officer at Woodford Correctional Centre by Queensland Corrective Services.
Mr Lankheet has a gastro-intestinal condition diagnosed in 2002 as diverticulitis or diverticular disease. This condition prevents him from working night shifts as the consequent change in routine aggravates his condition.
Custodial correctional officers employed at Woodford in 1997 were allocated to one of two streams: prisoner management or security. Mr Lankheet was employed in the prisoner management stream on a seven day roster working 12 hour shifts from 7 am to 7 pm. In working the seven day, 12 hour roster he was entitled to be paid an aggregated shift allowance which was the equivalent of 28.5% of his base wage. The prisoner management stream did not include night shifts.
On 1 April 2004 the Queensland Industrial Relations Commission handed down the Department of Corrective Services Correctional Employees’ Determination 2004 which included a consultative procedure by which the respondent could seek to implement new shift arrangements at its correctional facilities.
On 16 January 2006 the Queensland Industrial Relations Commission amended the Department of Corrective Services Correctional Employees Interim Award – State 2005 by removing from Woodford the two streams for custodial correctional officers and substituting a single stream of custodial correctional officer.
On 24 January 2006 the Queensland Industrial Relations Commission handed down its decision to approve a main rotational roster and a reserve rotational roster at Woodford. From 16 October 2006 custodial correctional officers at Woodford were placed on a rotational roster which included night shifts, except for a limited number of positions (called posts) that were not part of that roster.
On 11 August 2006 Mr Lankheet wrote to the General Manager at Woodford and informed him that working night shifts would aggravate his condition. On 19 December 2006 the respondent offered Mr Lankheet a permanent variance of his work conditions by offering day shifts only as a custodial correctional officer with the Escort and Security Branch located at the Brisbane courts.
That position did not attract an aggregated shift allowance. Mr Lankheet rejected that offer. The respondent arranged for Mr Lankheet to undergo a medical assessment with Dr Burke, an occupational physician, on 22 January 2007. That assessment confirmed that on medical grounds Mr Lankheet should not work night shifts.
On 2 May 2007 the respondent informed Mr Lankheet that he was to be transferred to the position of a custodial correctional officer with the Escort and Security Branch. Mr Lankheet objected to that transfer and on 31 May 2007 the respondent informed him that he was not required to transfer to the Escort and Security Branch.
By letter dated 19 June 2007 the respondent informed Mr Lankheet that he was to be transferred to the position of a custodial correctional officer in Education Security at Woodford. That position did not attract the aggregated shift allowance.
On 2 July 2007 Mr Lankheet commenced work in the Educational Security Section of Woodford which required him to work Mondays to Fridays from 8 am to 4 pm. He ceased work on his first day in that position and he was absent from work until 11 February 2008.
Mr Lankheet lodged notification of an industrial dispute with the Queensland Industrial Relations Commission on 25 October 2007. The parties attended a conference in the Queensland Industrial Relations Commission on 1 November 2007 and the dispute was adjourned without a resolution being reached.
On 5 December 2007 Mr Lankheet was informed by the respondent that there was an upcoming position in the production process environment at Woodford which had a seven day, 12 hour shift pattern which would attract an aggregated shift allowance. Mr Lankheet accepted a transfer to that position and returned to work on 11 February 2008 in that position. He continues to work in the Industries section at Woodford.
On 30 June 2008 Mr Lankheet lodged a complaint with the Anti-Discrimination Commission Queensland in which he claimed that he had been subject to discrimination on the grounds of impairment. The complaint was accepted by the Commission from and including 19 June 2007. As the complaint was unable to be successfully conciliated, the complaint was referred to the tribunal for determination.
Mr Lankheet contends that the respondent has engaged in conduct amounting to direct and indirect discrimination prohibited under the Anti-Discrimination Act 1991. This contention is denied by the respondent.
The parties have been able to reach agreement as to the facts set out in paragraphs 1 to 13 of these reasons and as well the parties have reached agreement as to several of the elements of direct and indirect discrimination as defined under the Act. Mr Lankheet’s case before the tribunal was primarily based on a complaint of indirect discrimination but was also argued on the basis of direct discrimination.
The respondent does not dispute that
1.Mr Lankheet has an impairment within the meaning of that term as used in the Act.
2.His employer has imposed a term on Mr Lankheet’s employment to the effect that in order for him to work on the main roster at Woodford he must be capable of working on a fully rotational roster including night shifts.
3.Mr Lankheet is unable to comply with that term as he cannot work night shifts because of his impairment.
4.The term has been complied with by a majority of other custodial correctional officers at Woodford.
To establish that Mr Lankheet has been subjected to indirect discrimination on the grounds of impairment prohibited by the Anti-Discrimination Act 1991, the tribunal has to be satisfied that all the elements of indirect discrimination as defined in section 11 of the Act have been proved. Section 11 of the Act is, where relevant, as follows:
(1)Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
(a)with which a person with an attribute does not or is notable to comply; and
(b)with which a higher proportion of people without the attribute comply or are able to comply; and
(c)that is not reasonable.
In view of the concessions made by the respondent, the only element that is not agreed by the parties from the definition of indirect discrimination is whether the term contended by Mr Lankheet to have been imposed on his employment was not reasonable.
In relation to the case presented on the basis of direct discrimination, Mr Lankheet has to satisfy the tribunal that the elements of direct discrimination as defined in section 10 of the Act have been proved. Section 10 of the Act is, where relevant, as follows:
(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.
The only concession made by the respondent relevant to the case presented on the basis of direct discrimination is that Mr Lankheet has an impairment. The tribunal will first consider the case presented on the basis of indirect discrimination before turning to the case based on direct discrimination.
Mr Lankheet contends that the term imposed by the respondent on his employment was not reasonable as
a)the requirement to work night shifts arises on average twice per month;
b)the requirement to work night shifts is not an inherent requirement of the role of a custodial correctional officer working at Woodford;
c)the respondent can and does regularly agree to shift changes and roster variations by its custodial correctional officers at Woodford on a daily basis for a multitude of reasons;
d)there is no reasonable reason why the respondent cannot agree to permanently vary Mr Lankheet off night shift; and
e)the respondent’s own reasonable adjustment policy contemplates permanent variation to work hours.
The respondent contends that the term imposed on Mr Lankheet’s employment was reasonable. The respondent bears the onus of proving, on the balance of probabilities, that the term was reasonable.[1]
[1] Section 205 of the Anti-Discrimination Act 1991.
A great deal of evidence was adduced by the parties in support of their respective cases. Mr Lankheet filed an affidavit containing his evidence, to which were attached 76 exhibits, and affidavits by his work colleagues, Robert Vanleeuwen and Paul Finch. The respondent filed affidavits from six witnesses. All of the evidence from the parties and their witnesses was subject to cross-examination at the hearing and all the evidence has been taken into consideration by the tribunal.
The tribunal formed a favourable impression of Mr Lankheet as a person endeavouring to give careful evidence of his recollections and on the whole found his evidence to be truthful and reliable. The tribunal found that all of the witnesses gave credible evidence and were straightforward and reliable in their accounts. As a result, this is not a case where the outcome has been influenced by analysing the relative credit of the witnesses called for each party. Rather the outcome has been reached after consideration of the factors which had resulted in the changes to Mr Lankheet’s employment in 2006, 2007 and 2008 and after an analysis of the conduct of the respondent from 19 June 2007 as to whether that conduct complied with the requirements of the law.
The starting point for the tribunal is what was called the harmonisation process. Prior to 16 January 2006, there had been a distinction between the employment conditions of custodial correctional officers at Woodford and the employment conditions of custodial correctional officers at other correctional centres in Queensland.
On 16 January 2006 the prisoner management stream for custodial correctional officers at Woodford ceased to exist. New rosters were prepared and implemented in October 2006. Under the new rosters, custodial correctional officers working on the main roster rotated through all of the main work areas in the correctional centre at Woodford.
The effect of the new roster was that staff on that roster would be required to work both day and night shifts. The roster reflected the 24 hour nature of the work at the correctional centre. The roster contained work cycles of a 38 hour week being 152 hours over a 28 day cycle.
From October 2006 the role formerly carried out by Mr Lankheet since 1997 was changed. He no longer had the opportunity to work permanently a 12 hour shift from 7 am to 7 pm under the new main rotational roster arrangements. The rosters had been devised in accordance with a Determination of the Queensland Industrial Relations Commission which included the following provisions:
a)Shifts would be worked in accordance with a roster established by the Department.
b)A roster variation occurs where the Department directs an employee to work a different shift to the shift which the employee has been rostered to work.
c)A roster change occurs when an employee agrees to swap shifts with another employee.
d)All roster changes must be approved by the Department.
e)An aggregated shift allowance at the rate of 28.5% of base salary will be paid to employees who work the following shift patterns – 12 hour shifts/7 day coverage not including night shifts, a combination of 8 and 12 hour shifts/7 day coverage not including night shifts, 12 hour shifts/7 day coverage including night shifts, a combination of 8 and 12 hour shifts/7 day coverage including night shifts, and 8 hour shifts/7 day coverage including night shifts.
f)Employees receiving the aggregated shift allowance will not receive extra payment for weekend work, public holidays and night shifts.
g)Departmental guidelines for rostering shift work are incorporated into the Determination.
h)Shifts are to be spread evenly across the roster in an attempt to ensure equity within the rostering process for all staff.
i)Rosters are not to provide for a permanent night shift.
j)Employees engaged in shift work should be allowed 2 whole consecutive days off between midnight and midnight in each 7 day period.
k)An attempt should be made to average out the number of weekends worked with the number of weekends not worked during the cycle of the roster.
l)All changes of duties/roster variations are to be completed within a 4 week cycle unless otherwise specifically approved by the relevant manager.
A custodial correctional officer working on the main rotational roster has since October 2006 been required to work a mixture of day shifts and night shifts and on weekends. Although Mr Lankheet could not work night shifts due to an impairment, he wanted to work on the main rotational roster and to do so he requested from his employer what would amount to an adjustment to his working conditions relieving him permanently of the requirement to work night shifts.
The main rotational roster does not allow for permanent variation away from night shifts. Such an adjustment would require other officers to work the night shifts that would otherwise be rostered to Mr Lankheet on the main rotational roster. This request was not successful but rather Mr Lankheet was directed on 19 June 2007 to work in the position of a custodial correctional officer in Education Security. This position was not on the main rotational roster. This position required Mr Lankheet to work 5 days a week from Mondays to Fridays and from 8 am to 4 pm. This position did not attract the aggregated shift allowance as the pattern of hours for the position did not qualify for that allowance.
Mr Lankheet complains that due to his impairment he has been discriminated against by the respondent directing him to work in a position off the main rotational roster for a base wage without the 28.5% aggregated shift allowance. Mr Lankheet complains that the respondent ought to have provided him with work on the main rotational roster attracting the aggregated shift allowance but which permanently avoided night shifts. He complains that the term imposed by the respondent that a person must work across all shifts, including night shifts, on the main rotational roster was not reasonable thereby rendering the conduct of the respondent in breach of the Act.
The respondent has argued that the term is reasonable. It argued that the harmonisation of the prisoner management stream and the security stream at Woodford and the introduction of the main rotational roster were specifically endorsed by the Queensland Industrial Relations Commission. It was argued that that approval provided the force of law to the conditions of employment and the legal obligations on the employer must be taken into account when the tribunal applies the provisions of the anti-discrimination legislation in this case.
That argument has substance. The evidence before the tribunal was that the main rotational roster came about after a long industrial process. The respondent’s guidelines for rostering shift work are incorporated into the determination made by the Queensland Industrial Relations Commission. The principles expressed in the guidelines endorse the even spread of shifts across the main roster to ensure equity for all staff.
The respondent’s witnesses gave evidence that the main rotational roster since October 2006 has incorporated the consequences of the harmonisation process. With the advent of a single stream for custodial correctional officers, staff must have the ability to demonstrate an understanding of, and expertise in, the whole of the correctional system. This includes knowledge of static and dynamic security, offender management and progression through the system. The rotational roster facilitates the requirement that the participation of staff must reflect the 24 hour/7 day a week nature of the operation of the correctional centre. Participation by staff working the main roster must be not only across the various areas in the correctional centre but also across shifts.
The tribunal finds that it is an inherent requirement of the role of a custodial correctional officer working at Woodford that the officer works night shifts if that officer works on the main rotational roster. Accepting the contention that the need to work nights may arise on average twice a month does not detract from the finding that working night shifts is an inherent requirement of the role of a custodial correctional officer. Roles or posts on the main rotational roster have been specifically designed since 2006 to accommodate the 24 hour/7 day a week operations of the correctional centre.
Mr Lankheet has argued there was no reasonable reason why the respondent could not have agreed to permanently vary him off night shifts on the main rotational roster. In considering this argument, the tribunal had difficulty in finding a request made by Mr Lankheet for a permanent roster variation off night shifts while remaining on the main rotational roster or in finding a refusal of such a request by the respondent in the period relevant to this complaint i.e. from 19 June 2007 to 30 June 2008. An examination of the requests made prior to 19 June 2007 and the response to those requests place the arguments made by Mr Lankheet into context.
In a letter to the General Manager of Woodford dated 18 November 2006, Mr Lankheet stated, where relevant: “I am not requesting reasonable adjustment in anything. I just ask to be allowed to complete the duties I have been performing well for the past ten years. No changes from this are required by me…..I am only asking the department to abide by its responsibilities under duty of care provisions and look after my health and not put it in danger.” This letter did not request a permanent roster variation off night shifts.
The request by Mr Lankheet to be allowed to do the duties that he had been doing for the past ten years was impossible to accede to. His previous role as a custodial correctional officer in the prisoner management stream no longer existed after January 2006 but the roster connected with that former role had continued for about nine months to facilitate staff adjusting to the new arrangements. The superseded roster finally ceased in October 2006 and had thereafter been replaced by the new rotational roster containing day and night shifts.
In response to Mr Lankheet’s letter, the General Manager wrote to Mr Lankheet on 23 November 2006 stating, where relevant: “All custodial rosters at Woodford Correctional Centre have a night shift component and therefore I am unable to provide a permanent roster placement at this centre which would allow you to perform day shift work only. Accordingly, this matter will now be referred to the Director, Human Resources to determine the possibilities in regards to accommodating the required permanent adjustment to work arrangements.” This letter does not contain a refusal to agree to a permanent roster variation off night shifts.

On 19 December 2006 the Director, Human Resources wrote to Mr Lankheet stating, where relevant: “Although we have been able to temporarily accommodate you under our Reasonable Adjustment Policy, Queensland Corrective Services are unable to meet your request for working day shifts only on a permanent basis at Woodford Correctional Centre. The rotational roster in place at Woodford Correctional Centre does not allow for day shifts only.” This letter does not contain a refusal to agree to a permanent roster variation off night shifts. It does not address roster variation at all. It merely states the uncontested fact that the rotational roster does not contain shifts comprised of day shifts only.
The letter goes on to offer Mr Lankheet day shifts as a custodial correctional officer with the Escort and Security Branch at the Brisbane Courts in an attempt to meet his request for permanent placement on day shifts only. That offer was declined by Mr Lankheet.
In his letter dated 21 December 2006 he stated, where relevant: “It was kind of you to make a (Genuine attempt) to offer me a transfer that will mean a decrease in wages of some $12,000 per annum. This is not my wish….I can only assume there is some doubt on your part as to the accuracy of my claim. If this is the case, and the only way to appease you is to attend an (independent assessment), then I will be quite happy to do so, on the understanding that when the previously stated facts are confirmed we end this paper war and you allow me to continue doing the duties I have competently carried out over the past ten years. I have never agreed to any changes to my duties. Because of a decision by the Department to change the working conditions I do not expect to be penalised. I am quite willing and able to do the full duties outlined in my letter of acceptance of 1997. A stroke of a pen will allow me to continue being an effective and efficient member of the staff of the Woodford Correctional centre. There is ample staff who can continue to work night shifts as stated in their respective letters of acceptance.”
The tribunal does not consider that Mr Lankheet’s letter of 21 December 2006 clearly contains a request for a permanent roster variation off night shifts. He was requesting a role at Woodford that contains the duties of the role he had accepted when he commenced employment in 1997 but without any associated reduction in income. One way such an outcome could have been achieved was by a permanent roster variation off night shifts but other avenues would have been available such as posts off the main rotational roster which offered day shifts only but which still attracted an aggregated shift allowance.
The letter is ambiguous but to be fair to Mr Lankheet in view of the argument raised by him, the tribunal is prepared to consider that he had intended to convey in his letter a request for options for employment suitable to him, including a post on the main rotational roster but with a permanent roster variation off night shifts.
However, the tribunal is satisfied that the respondent did not interpret the letter as containing a request for a permanent roster variation. The correspondence after 21 December 2006 supports that view.
In a letter dated 12 February 2007, a senior consultant in the security management stream of the respondent stated, where relevant: “Please find enclosed a copy of Dr Burke’s report dated 24 January 2007. Dr Burke has concluded that your participation in a rotational roster on the balance of probabilities would exacerbate your medical condition. Queensland Corrective Services are able to temporarily provide you with day shifts only at Woodford Correctional Centre, until a suitable deployment option has been identified. We are currently exploring suitable alternatives.”
This letter confirms to the tribunal that there was no awareness by the respondent that Mr Lankheet had requested the option of remaining on the rotational roster with a permanent roster variation off night shifts. It was an understandable and reasonable response by the respondent to Mr Lankheet’s request not to work night shifts that redeployment would be considered if Mr Lankheet could not, due to an impairment, fulfil an inherent requirement of roles on the main rotational roster at Woodford.
At this point in time, Mr Lankheet did not seek to clarify his request with the respondent. He did not write to repeat a request for permanent roster variation. What he did was to apply for a new position of an Activities Officer (sports) at Woodford which attracted the aggregated shift allowance but which did not require night shifts. He was informed on 3 May 2007 that his application was not successful.
In an email sent to the Director, Human Resources of the respondent on 16 May 2007, Mr Lankheet stated, where relevant:” You state as a result of the report compiled by the doctor that I attended and the confirmation of the condition I had on employment in 1997, that I can no longer do the duties I am employed to do even though my duties have not changed…..I must re state, my ability to do the job I have been doing for ten years has not changed in this time. Only the new working conditions of having to work night shifts have changed…….Night shifts have now been imposed on the staff at Woodford for some six months. In that time there has been a number of staff who have not worked night shift for various reasons. Are these staff also being forced into positions where they also will receive 28.5% less pay. These staff as well as myself have been accommodated until now with no problems……I was employed under the Woodford agreement in 1997. I was employed as a prison management officer and my hours of duty are 7am until 7pm on a seven day rotating roster. I can continue to do these duties as described ad infinitum…..I reiterate I am still able to complete the duties I was employed to complete. I feel this situation an injustice in that I am being asked to forgo 28.5% of my wage….This decision is affecting my whole family and I am being treated extremely unfairly due to my impairment. I believe reasonable adjustment is specifically for the situation I am in. I believe that in this case I am being treated very unreasonably. I respectfully request that the department let me continue to do what I am best at and keep my current position.”
Mr Lankheet in this email repeats an earlier request that he be allowed to continue in what he refers to as his current position at a time when that position had not in fact existed since January 2006. His actual current position in May 2007 was as a custodial correctional officer on the main rotational roster. He had been temporarily removed from the requirement to work night shifts while consideration was given to his redeployment to a position he could fulfil within the limitations of his impairment.
It was not until his union wrote to the respondent on 18 May 2007 to object to a proposed transfer of Mr Lankheet to a position at a location other than Woodford that a request was clearly made for the respondent to make some reasonable adjustment for Mr Lankheet at Woodford based on a variation of the rosters. In addition in an email sent on 22 May 2007 Mr Lankheet stated, where relevant: “The new terms of work imposed at Woodford contain a small amount of night work (approximately 14%), a reasonable adjustment might be considered the provision of roster variations from night shift to any day shift post.”
The respondent does not appear to have responded directly to the requests to accommodate Mr Lankheet by roster variations. By a letter dated 31 May 2007 the Director, Human Resources indicated that discussions were in progress about the capacity of the centre to accommodate Mr Lankheet’s impairment at Woodford which would remove the need for a transfer away from Woodford.
On 19 June 2007 the respondent informed Mr Lankheet of the decision to place him in a position in Educational Security at Woodford working solely day shifts from Monday to Friday due to his incapacity to perform the genuine occupational or inherent requirements of his substantive position. In evidence to the Queensland Industrial Relations Commission in November 2007 an explanation was given that following the requests for some roster variations, the respondent reviewed its rosters and determined that the roster could be amended to remove the education security post from the main roster to form a permanent day shift roster.
Mr Lankheet did not accept that this proposed permanent roster variation which removed the Educational Security position from the rotational roster was the appropriate adjustment that would permit him to fulfil the inherent duties of his employment despite his impairment. Mr Lankheet contends that the only appropriate adjustment was one which would have permitted him to work day shifts only while remaining on the main rotational roster i.e. an arrangement for roster variations every time a night shift came into his roster. He argued that his request for permanent roster variation would not lead to industrial disharmony, would not hinder operational requirements at Woodford and would have had minimal impact on rostering arrangements.
The evidence from Mr Donovan, Mr Howden, Ms McNab, Ms McGregor and Mr Hannan satisfied the tribunal that Mr Lankheet’s arguments were ill founded. The tribunal accepts the evidence given by the respondent’s witnesses that the process through which the main rotational roster was designed revealed staff regarded working night shifts as undesirable and that they wanted certainty and equity in shift and working arrangements. The tribunal also accepts the evidence from the respondent’s witnesses that industrial harmony at Woodford would have been severely disturbed if roster variations were permanently imposed for the benefit of one person.
Such an arrangement would have resulted in either other permanent staff working a greater proportion of night shifts than the roster guidelines mandated or staff on the reserve roster or casual staff working Mr Lankheet’s night shifts. The respondent argues that such an arrangement would compromise the integrity of the roster and would be contrary to guidelines developed through a comprehensive industrial process that have informed the structure of the rotational roster. The respondent argues that principles of industrial equity and fairness militate against permitting permanent variations to the rotational roster for an individual staff member.
The arguments of the respondent are cogent and accepted by the tribunal. Contrary to the contentions of Mr Lankheet, there was a reasonable reason why the respondent did not permanently vary Mr Lankheet off night shifts while retaining him on the main rotational roster. The tribunal is satisfied that roster was not designed to cater for permanent roster variations imposed by the respondent on the staff members working on the roster. The roster provided certainty and advance notice of the shifts to be worked equitably by all staff members on the roster.
The tribunal accepts the evidence of the respondent’s witnesses that designing the rosters is a complicated matter and varying the roster to impose a differential system for Mr Lankheet would run counter to the equity principles that underlay the roster design. It was reasonable for the respondent to conduct its operations at Woodford by adhering to the main rotational roster and by not permitting permanent roster variations.
Mr Lankheet has contended that the respondent regularly agrees to staff members changing their shifts. The respondent did not dispute that staff members do regularly change shifts by agreement with each other. Ad hoc shift change brought about by agreement is quite different to the respondent as employer compelling changes by roster variations.
Recognising the fairness in permitting staff members to mutually agree to ad hoc changes they want to make to the roster does not inevitably lead to the proposition that roster variations imposed by the employer without agreement of the staff members in question are also fair. The existence of roster changes brought about by mutual agreement of staff members does not undermine the integrity of the rotational roster or compromise the guidelines that inform the design of the roster by the respondent.
After considering the evidence and the submissions made during the hearing, the tribunal concludes that the term imposed by the respondent on Mr Lankheet’s employment was reasonable i.e. that in order for him to work on the main roster at Woodford he must be capable of working on a fully rotational roster including night shifts.
It follows from that conclusion that the respondent has discharged the onus of satisfying the tribunal that the term imposed by the respondent on Mr Lankheet’s employment was reasonable. The tribunal concludes that the conduct of the respondent after 19 June 2007 in requiring Mr Lankheet to work in a position off the main rotational roster because he could not work night shifts did not amount to indirect discrimination.
What the respondent did on 19 June 2007 was to make a reasonable adjustment to change Mr Lankheet’s employment from a custodial correctional officer on the main roster to a custodial correctional officer in Education Security where he could perform the full range of duties and inherent requirements of that position. Contrary to the assertions of Mr Lankheet, the respondent did not have an obligation to change the duties and inherent requirements of the role of a custodial correctional officer on the main roster to enable Mr Lankheet to continue in that role.[2] There was nothing that the respondent could do to enable Mr Lankheet to perform the full range of duties and inherent requirements of the role of a custodial correctional officer on the main roster.
[2] Cosma v Qantas Airways Limited [2002] FCA 640.
Turning now to the case presented on the basis of direct discrimination, to succeed in this complaint Mr Lankheet must establish that in the period from 19 June 2007 to 30 June 2008 he was treated less favourably because of his impairment than another person without the impairment was treated in circumstances that were the same or not materially different. The treatment in question was that Mr Lankheet had been taken off the main roster on 19 June 2007 and assigned to work as a custodial correctional officer in Education Security, which position did not attract payment of the aggregated shift allowance, until he commenced a new position on 11 February 2008.
Mr Lankheet argues that he was treated unfairly in not being transferred to a suitable position until February 2008, in being prevented from continuing to work on the main roster with reasonable adjustments made in the form of roster variation and in the failure of the respondent to communicate with him and to meet him face to face. However it is not the function of the Anti-Discrimination Act 1991 to compel an employer to act fairly. The Act prohibits an employer from treating an employee less favourably because of a specified attribute.
Mr Lankheet contends that the respondent had treated him less favourably from 19 June 2007 to 10 February 2008 than other employees who could not work night shifts. The comparators discussed in his evidence were Judy Gough, Kevin Friis, Noelene Dolan and Terry Pratt as well as a hypothetical comparator of a custodial correctional officer who had a temporary or permanent need to vary or change their shift for a reason other than impairment.
None of the identified persons used as comparators gave evidence. As a result, Mr Lankheet could not confirm what actual treatment had been accorded by the respondent to those other employees. He contended that Ms Gough had been put into a permanent position working day shifts in a post removed from the main roster to accommodate her. He contended that Mr Friis had been allowed to work for three years avoiding night shifts while still working in a main roster post. He contended that after Mr Friis retired, Ms Dolan took over the post when returning to work after an injury. He contended that Mr Pratt was able to reduce the number of night shifts that he worked while on the main roster.
The respondent denied that these persons could be used as valid comparators. Evidence was given by the respondent about the actual working arrangements of the nominated comparators. Mr Friis had worked on restrictive duties for about 16 months on day shifts due to a work related injury. The temporary arrangement to remove him from night shifts ceased when he was assessed as having a permanent impairment. Ms Dolan has worked from November 2010 on day shifts on a temporary basis under a rehabilitation plan following a work related injury. Ms Gough was temporarily removed from the main roster and placed into a position that had day shifts only due to her family commitments. She subsequently accepted a permanent position off the main roster. No roster variations have been made for Mr Pratt who takes leave or changes his shifts to avoid working night shifts.
The tribunal finds that the circumstances of these four custodial correctional officers cannot be properly described as being the same as, or not materially different from, the circumstances of Mr Lankheet. None of these persons have had their rosters permanently varied by the employer so that they did not work night shifts. Two of the nominated comparators did gain temporary roster variations for the period they were rehabilitating from a work place injury. Mr Lankheet had also received on a temporary basis roster variations off night shift over a period in excess of eight months before 2 July 2007.
The evidence does not establish that he was treated differently from other workers nor that he was treated less favourably than other workers in circumstances that were the same or not materially different. There is no evidence that can be accepted by the tribunal that any other custodial correctional officer who had a temporary or permanent need to vary or change their shift for a reason other than impairment was treated differently or less favourably than Mr Lankheet.
The case presented by Mr Lankheet on the basis of direct discrimination must fail. The complaint made by Mr Lankheet is dismissed.