Lankheet v State of Queensland

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

1. 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. 

2. 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. 

3. 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.

4. 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. 

5. 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. 

6. 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. 

7. 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. 

8. That position did not attract an aggregated shift allowance.  Mr Lankheet rejected that offer.  The respondent arranged…