Luthje v State of Queensland
[2014] QCAT 417
| CITATION: | Luthje v State of Queensland & Ors [2014] QCAT 417 |
| PARTIES: | Nathaniel Luthje (Applicant) |
| v | |
| State of Queensland - Metro South Hospital and Health Service Karen Leighton (Respondent) |
| APPLICATION NUMBER: | ADL047-14 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 18 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Oliver |
| DELIVERED ON: | 29 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondents are prohibited from further exercising its powers under Chapter 5 Part 7, in particular section 174, 175 and 178 of the Public Service Act 2008 until the applicant’s discrimination complaint dated 28 July 2014 has been heard and determined in the Queensland Civil and Administrative Tribunal, or until further order. |
| CATCHWORDS: | INTERLOCUTORY INJUNCTION – PRESERVING THE STATUS QUO PENDING DETERMINATION OF RIGHTS – Where applicant lodged a complaint with the Anti Discrimination Commission – where applicant concerned that his employment may be terminated before his complaint is dealt with – where applicant established a prima facie case – where balance of convenience favours maintaining the status quo Anti-Discrimination Act 1991 (Qld) s 144 Jones v Queensland Health [2010] QCAT 700 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Dr Spry instructed by Cooper Grace Ward, Lawyers. |
| RESPONDENT: | Mr C Murdoch of counsel instructed by Crown Law for the respondents. |
REASONS FOR DECISION
In February 2013, the applicant commenced employment with the first respondent as an Endorsed Enrolled Nurse (‘EEN’). Between February 2013 and 28 July 2014, Mr Luthje complains that he has been discriminated against in the workplace because of his physical impairments, Post Traumatic Stress Disorder and hearing disorder. Any anti-discriminatory conduct is denied by Metro South Hospital and it contends that any action taken against Mr Luthje is as a result of genuine concerns about his capacity to carry out his functions as an EEN. At this point, it is not necessary for me to make any determinative findings about those matters.
After lodging a complaint with the Anti-Discrimination Commission of Queensland, Mr Luthje filed an application in the Tribunal seeking an injunction under s 144 of the Anti-Discrimination Act 1991 (Qld). The order sought is to restrain the Metro South from exercising certain powers[1] under of the Public Service Act 2008 (Qld) the effect of which, the applicant contends, could result in his employment being terminated on medical grounds. The order sought is to preserve the status quo until the anti-discrimination complaint has been investigated and conciliated by the ADCQ, and if referred, heard and determined by the Tribunal.
[1]Chapter 5, Part 7, in particular s 174, s 175 and s 178, and Chapter 6, Part 2, in particular s 187 and s 188.
This application only needs to deal with the powers conferred in s 174, s 175 and s 178 because Metro South Hospital has decided not to proceed with disciplinary action against Mr Luthje to which s 187 and s 188 of the Public Service Act were relevant.
Section 144 of the Anti-Discrimination Act provides:
144Applications for orders protecting complainant’s interests (before reference to tribunal)
(1)At any time before a complaint is referred to the tribunal, the complainant or the commissioner may apply, as provided under the QCAT Act, to the tribunal for an order prohibiting a person from doing an act that might prejudice—
(a)the investigation or conciliation of the complaint; or
(b)an order that the tribunal might make after a hearing.
(2)A party or the commissioner may apply, as provided under the QCAT Act, to the tribunal for an order varying or revoking an order made under subsection (1).
(3)If the tribunal is satisfied it is in the interests of justice, an application for an order under subsection (1) may be heard in the absence of the respondent to the application.
There is no issue that the Tribunal has jurisdiction to grant the relief sought because a complaint has been lodged with Anti-Discrimination Commission. Issue, however, is taken with the extent of Mr Luthje’s complaint because it goes back beyond 12 months from the date the complaint was made that is, on 28 July 2014. It is submitted, the Tribunal should ignore any alleged discriminatory conduct complained of prior to 28 July 2013. Mr Luthje is presently seeking to have the time extended to bring in the earlier alleged conduct into the current complaint.
Even so, the applicant contends that there were acts of discriminatory conduct in the 12 months immediately preceding 28 July 2014, and in particular, with respect to the circumstances surrounding a return to work program at the Redlands Residential Care, which occurred in May 2014. Although the return to work program was for a period of 12 weeks, it only lasted six weeks to when he was stood down from that program on 18 June 2014. The reason for his stand down is set out in an affidavit sworn by Ms Leighton[2] at paragraph [42] she said:
Despite significant training, mentoring and supervision provided by the Nurse Unit Manager the Nurse Educator and Clinical Nurses, Mr Luthje was unable to demonstrate his proficiency in EEN duties and the nursing staff had formed the view that he presented a risk to patients and to staff. I know this because of the feedback I received from Padmar Bishop, Nursing Director, Redland Residential Aged Care.
[2]Affidavit of Karen Leighton sworn 15 August 2014.
Mr Luthje contends that after an independent medical examination and a report produced by Dr Curtis Grey, Psychiatrist, and further discussions with the Departments Vocational Counsellor, he was keen to embark on the return to work program referred to above. This program was structured over a 12 week period. The first three weeks consisted of mainly induction training, reviewing procedures and working with a supervisor. The proposal was that he would eventually work without a support person however, after six weeks the return to work program was stopped.
On 17 June 2014 Mr Luthje was told that he was required to attend a meeting the following day and he should have a support person with him. At the meeting, he says he was told by Ms Leighton that the staff at Redlands Residential Care supervising Mr Luthje had reported performance issues as to his work. He says he was also told that he should reconsider a career as a nurse. The meeting concluded with Mr Luthje being told not to return to Redlands Residential Care. Mr Luthje alleges the return to work program stopped because of his disability and he was not given a proper chance to prove he could undertake the functions of an EEN.
Thereafter, Mr Luthje did not engage in any further work and on 7 July 2014 he was directed to attend a further independent medical examination with Dr Ng, psychiatrist. It was after this that he lodged his complaint and subsequently the application under s 144 was filed.
In Jones v Queensland Health[3] the then President of the Tribunal, Justice Alan Wilson, considered the principles that should be applied for an application under s 144. He said:
[8]The two main enquiries relevant to an application for an interlocutory injunction are well settled: has the applicant made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that at trial the applicant will be held entitled to relief; and, the balance of convenience – namely, whether the inconvenience or injury which the applicant will be likely to suffer if an injunction is refused outweighs, or is outweighed, by the injury which the respondent would suffer if an injunction were granted?
[3][2010] QCAT 700.
Here the first respondent concedes that the applicant has made out a prima facie case, albeit a very weak one. That is, if the applicant’s evidence is accepted as to the way he was treated by the respondent between 28 July 2013 and 28 July 2014 a prima facie case is made out. This is particularly so in respect of the return to work program which was cut short. This could suggest that the respondent has not treated the applicant, knowing of his attribute, the same way as it would treat an EEN without the attribute, or to use the wording of s 10 of the Anti-Discrimination Act, ‘less favourably’. This would then amount to direct discrimination.
In addition to this, the request for him to undertake a further independent medical examination with a different psychiatrist raises some concerns about Mr Luthje’s treatment. It was only in November 2013 that Dr Grey prepared a report concerning Mr Luthje’s Post Traumatic Stress Disorder and the impact of that condition on him in carrying out his work as an EEN. Subsequent to that, there was the return to work program with a comprehensive report prepared which gives a description of his day to day activities while on that program. There are also comments about general skills, knowledge and initiative and feedback and capacity to carry out the role.[4]
[4]Exhibit ‘KL-20’ to the Affidavit of Karen Leighton.
It was raised during the hearing of the application as to why it would not be more prudent to have Mr Luthje return to Dr Grey, if a further independent medical report was necessary, to re-evaluate his medical condition and his ability to undertake the work in light of what occurred during the return to work program. Alternatively, it was submitted by Mr Luthje’s counsel that a more appropriate independent expert would be an occupational therapist. Such an expert could give consideration to all of these matters, including the report about his return to work program, in determining Mr Luthje’s suitability to continue working as an EEN and if so, in what capacity and, if necessary devise a suitable return to work program.
Mr Luthje is fearful that if a further report is obtained from Dr Ng that his employment will be terminated on medical grounds. There is clearly power under s 174 and s 175 of the Public Service Act for the respondent to direct the applicant to undergo an independent medical examination. However, in circumstances where Mr Luthje has had long standing Post Traumatic Stress Disorder, has only recently been assessed by Dr Grey, has attempted a return to work program which, on the evidence of the respondent raises concerns about his ability to perform the functions of an EEN, all raise a real suspicion, as submitted by counsel for Mr Luthje, that if the medical examination with Dr Ng goes ahead, this may well lead to his employment being terminated on medical grounds.
I am not, of course, in a position to make any final judgment about that but the history of this matter, and in particular, the fact that there is a complaint presently before the Anti-Discrimination Commission does lead to the conclusion that Mr Luthje’s current position with the respondent is at risk while the complaint is being dealt with. There was no satisfactory explanation as to why a further report from a second psychiatrist is necessary as opposed to a return to Dr Grey or alternatively, an independent assessment by an occupational therapist. This is of concern and satisfies the test referred to in McIntyre v Hastings Deering (Australia Ltd and Anor.[5]
[5][2012] QCAT 438.
I am therefore satisfied that Mr Luthje has established there is a prima facie case.
As to the balance of convenience, the evidence and the history of Mr Luthje’s employment with Metro South Hospital suggest that there is a real risk, with or without the further medical report, that his position might be terminated before his complaint is finalised. He is currently suspended on full pay with an annual income of about $43,000.
Through his counsel, Mr Luthje has expressed a willingness to return to work in the role of an EEN, or even as an assistant in nursing while his complaint is being dealt with. The report referred to above in relation to the return to work program, suggests that he is capable of performing the tasks of an assistant in nursing. It is not the case that Mr Luthje will be stood down on full pay for an extended period due to any unwillingness on his part to return to some form of gainful employment. It is a matter for the respondent to decide whether it wants to have Mr Luthje return to work. I am, of course, mindful that in deciding whether Mr Luthje should return to some form of work, the respondents must have regard to patient welfare.
If the injunction is not granted and his employment is terminated, it seems obvious that he will have great difficulty in continuing his career as a health professional or obtaining alternate employment. This concern outweighs any prejudice to the respondent, in fact, any prejudice disappears if he is gainfully employed in the interim.
On being satisfied that there is a prima facie case, and the balance of convenience favours the applicant I propose to grant the injunction sought and make orders in terms of the application.
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