Rushton v Muller
[2012] QCAT 505
•24 July 2012
| CITATION: | Rushton v Muller and Anor [2012] QCAT 505 |
| PARTIES: | Caroline Elizabeth Rushton (Applicant) |
| v | |
| David Muller (First Respondent) State of Queensland (Second Respondent) |
| APPLICATION NUMBER: | ADL108-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 11 May and 15 June 2012 |
| HEARD AT: | Cairns |
| DECISION OF: | Catherine Benson, Member |
| DELIVERED ON: | 24 July 2012 |
| DELIVERED AT: | Gladstone |
| ORDERS MADE: | 1. The Application be allowed. 2. The Respondent to pay to the Applicant the sum of $10,000 within 28 days. |
| CATCHWORDS: | Direct or indirect discrimination by means of impairment in the area of employment – identifying “term” – whether requirement for applicant to undertake training reasonable in the circumstances – whether applicant suffered emotional trauma as a result – impact of previous and post emotional trauma |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Caroline Elizabeth Rushton appearing in person |
| RESPONDENT: | Mr Spry, Counsel, instructed by Ms Cornes for First and Second Respondents |
REASONS FOR DECISION
Proceedings
The Application is brought by Mrs Rushton, who was, at all relevant times, employed by the second Respondent in an administrative capacity, at Lotus Glen Prison, Far North Queensland.
The first Respondent, Mr Muller, was, at all relevant times, the Applicant’s supervisor.
Mrs Rushton alleges she was discriminated against, directly, and/or indirectly, by Mr Muller, in that she was forced to undertake Suicide Prevention Awareness training in circumstances which were unreasonable, and where doing so, caused her to suffer emotional and psychological harm.
The Respondents deny that Mrs Rushton was forced into doing the training and urge that it was reasonable for her to be asked to do the training.
The Respondents further argue that it cannot be ascertained what, if any, emotional trauma the Applicant suffered from undertaking the training, given she has a history of mental health issues, and subsequent workplace and personal issues, unrelated to the Respondent.
In the event the First Respondent is found to be liable, the Second Respondent accepts vicarious liability.
Agreed Issues
At the relevant time, Mrs Rushton was working with Mr Muller on a particular project regarding building additions to and renovations of the prison.
Mrs Rushton had, at the relevant time, an attribute, being, a mental health impairment, in the form of, depression and a history of attempted suicides.
The Second Respondent required all employees who had contact with prisoners in the course of their duties to undertake Suicide Prevention Awareness Training.
On 19 January 2009 Mrs Rushton was asked, by the Second Respondent, to attend a group training session with regard to the above.
Mrs Rushton was informed (whether on 19 January 2009 or earlier) that the training was a requirement of her employment, and she agreed to undertake such training.
Mrs Rushton sought and was given permission, by the Second Respondent, on 19 January 2009, to adjourn her training, because of her impairment, to a later date.
On 28 April 2009 Mr Muller either demanded, or suggested, that Mrs Rushton undertake the training, alone, and online via intranet.
Mrs Rushton did undertake the training, on her own, online on 28 April 2009.
The word “training” was used by both parties throughout the hearing which word clearly included reference to the testing required to be carried out on the subject material.
The Law
I understand Ms Rushton to be claiming she has been discriminated against by the Respondent directly and indirectly.
The relevant sections under the Anti-Discrimination Act 1991 (the Act) are:
S 10.(1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
(2) It is not necessary that the person who discriminates considers the treatment is less favourable.
(3) The person’s motive for discriminating is irrelevant.
(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
(5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances.
S 11.(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 not able 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.
(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
(a) the consequences of failure to comply with the term; and
(b) the cost of alternative terms; and
(c) the financial circumstances of the person who imposes, or proposes to impose, the term.
(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4) In this section—
“term” includes condition, requirement or practice, whether or not written.
Factual Issues in Dispute
Whether on 28 April 2009:
a. Mr Muller invited Mrs Rushton to attend the training or whether he demanded she undertake it;
b. Mrs Rushton agreed voluntarily to undertake the training; or
c. Mrs Rushton requested not to have to undertake the training until she had obtained professional and/or medical advice and assistance;
d. Mr Muller’s comments and behaviours on 28 April 2009 were unreasonable.
What “term” was imposed on Mrs Rushton?
Whether imposing the term on Mrs Rushton amounted to direct and/or indirect discrimination of Mrs Rushton, by reason of her attribute.
Whether Mrs Rushton suffered emotional trauma arising from:
a. Undertaking the training; and/or
b. From Mr Muller’s comments and behaviours.
Evidence of and for Applicant
Mrs Rushton, and her witnesses each gave evidence in form of written statements and orally, and each was cross examined.
Mrs Rushton was accompanied by a support person on both days of the hearing.
Mrs Rushton gave evidence that:
a. On 19 January 2009, she was informed for the first time, of a requirement that all employees undertake Suicide Prevention Awareness Training and was asked to undertake the testing on that day;
b. She spoke to the training co-ordinator, explained that she suffered from depression and had a history of attempted suicides, the most recent event being October 2008, and expressed some distress at having to do the training and the effect the content may have on her;
c. The training coordinator agreed that she would not have to do the training that day, but would have to do it in the future and that there was a further group training “in about 6 months”;
d. She was then confronted by Mr Muller wanting to know why she had not attended the training. She informed him she had received an exemption from undertaking the training that day;
e. After he demanded to know, and threatened that he would “make sure your job is compromised” if she did not tell him her reason for not doing the training that day, she reluctantly told him about her history of depression and suicide attempts;
f. He was angry and told her she could only have received an “exemption” from the general manager, Mr Mannion;
g. She felt intimidated by the way Mr Muller spoke to her on that occasion and did not feel comfortable to talk to Mr Muller about her issues;
h. Mr Muller insinuated to her that she had lied to Corrective Services about her history;
i. She believed him when he told her “he had power over my job”;
j. She wanted to seek assistance from her treating psychologist to prepare her for the training;
k. On 28 April 2009 she arrived at work around 8.00-8.30am. Mr Muller approached her and said “Caroline I want you to do the training today”;
l. She was taken off guard by his request as it was not a scheduled group training day;
m. She asked for a copy of the test to take to her counsellor or doctor so that she could seek advice before undertaking the training, which, if they agreed was appropriate, she would complete the next day, and he said “No”;
n. She asked him if she could see the on-site counsellor, Gary Kidd and he said “No”;
o. She was pleading and crying with Mr Muller who said aggressively: “Are you refusing to do this training?”;
p. She got up to go to see the general manager, Mr Mannion, at which point Mr Muller came to her, and physically restrained her by grabbing her arm;
q. Mr Muller threatened her saying “... if you tell anyone about this you will lose your job”;
r. She then took “guessing, a couple of hours” to complete the test;
s. She was crying throughout the entire test period, sometimes hysterically, such that she went to the ladies room on at least 2 occasions and sat there for about 20 minutes each time to gather herself;
t. She was asked by other employees on one occasion, on coming out of the ladies room, near the mail sorting desk, what was wrong, to which she replied “sorry I can’t discuss it” as she was afraid for her job;
u. She and her husband were suffering financial difficulties at the time and her job was very important to her;
v. Towards the end of the test, she was having trouble answering a particular question, and still highly distressed and crying, she went to see the equity officer, Ms Carmel Pedron. She did so, because she knew that what was said to Ms Pedron was confidential, but she needed some support and help with a question;
w. She was visibly distressed when seeing Ms Pedron, who asked her why and she told her what had occurred between her and Mr Muller;
x. Ms Pedron asked if she wanted to call her own psychologist or doctor, or to see a psychiatrist/psychologist who was present at the prison that day. She declined both offers as Mr Muller had told her if she told anyone “I’d lose my job”;
y. Ms Pedron offered to give her a copy of her test answer to copy and she declined as she wanted to do it on her own and just wanted some assistance;
z. Once the test was complete she approached the test co-ordinator, Clint Swadling who asked her why she was so distressed. She replied “I can’t talk, I just want you to note it was done under duress”;
aa. She was scared because Mr Muller “told me my job was threatened”;
bb. The following day Mr Muller approached her and enquired whether she had done the test. When she confirmed she had, he said words to the effect “Good now give me your answers so I can copy them as I am due for re-accreditation”;[1]
cc. She was so distressed at this latest comment that she went to her drawer, took what she thought was the returned and marked test paper and ripped it up;
dd. She then spent the next 10 minutes in the ladies room crying, and could not control her tears for the whole day;
ee. In the days and weeks following the incident she became very depressed, felt suicidal, was on the phone to her husband, who worked away, every night, crying, and contacted Lifeline for emotional support;
ff. That she had been seeing a psychologist regularly, either weekly, fortnightly or monthly, during early 2009 and Mr Muller knew she left work at the same time on Tuesdays for that purpose.
[1] Applicant’s Statement of Evidence page 7, Para 11.
Ms Carmel Pedron gave evidence for Mrs Rushton. In her oral evidence she stated that:
a. She was, at the relevant time, employed by the Second Respondent as an equity officer at Lotus Glen Prison;
b. On 29 April 2009 Mrs Rushton came to her, in her capacity as equity officer, in a “quite distressed” state, and was crying;
c. She saw Mrs Rushton holding her arm, and saw marks on the arm. On asking her, Mrs Rushton said that “Mr Muller had been quite forceful when she wanted to see the general manger and he restrained her”;
d. She did not report the incident to anyone as in her role she is expected to keep things confidential and is “not allowed” to report them, nor is she permitted in her role to keep written notes;
e. She asked Mrs Rushton if she wanted to contact employment support, Interlock, to which Mrs Rushton stated she wanted it kept confidential;
f. She was concerned for Mrs Rushton’s emotional/mental state and asked if she wanted to see a psychiatrist, and was told that Mrs Rushton was seeing a “Lex Peters”, who is a private psychologist (and who works in the same practice as Ms Trish Johnson);
g. The time of the events was early afternoon or later morning, near lunchtime. She knows it was not in the morning as she has to attend to other meetings in the mornings;
h. This was the first employee she had dealt with who she thought might have been suicidal;
i. Mrs Rushton did not express to be suicidal that day but gave her details of her five (5) past suicide attempts and, given her emotional state, and the topic of her distress, Ms Pedron was concerned she might be suicidal;
j. Mrs Rushton raised with her the issue of her doing the suicide prevention training, and that she was having trouble with a last question and Ms Pedron offered to get her own answers which Mrs Rushton declined as she “didn’t want to jeopardise your position”;
k. Did not ever provide her paper to Mrs Rushton;
l. Denied discussing her evidence for this hearing with Mrs Rushton;
m. Had completed her training earlier in that year, 2009, although could not recall when;
n. Does not know if she completed the same version of the test that Mrs Rushton did;
o. She remains employed by the Second Respondent although is now in a different role, that of Administration Officer with Probation and Parole.
Records of the Second Respondent were produced and tendered to show Ms Pedron had completed the test prior to April 2009, which records were accepted by her.[2]
[2] Ex 6.
Ms Trish Johnson, psychologist gave evidence for Mrs Rushton.
Ms Johnson had been requested by the Respondent to produce her clinical notes. She was most reluctant to do so, claiming confidentiality and a risk to her patient’s privacy and welfare. On discussion between Mrs Rushton, the legal representatives for the Respondents, and Ms Johnson, it was agreed her clinical notes would be produced on the basis that:
a. They were viewed within the precincts of the hearing room only;
b. They were viewed by the legal representatives of the Respondents only and by the Tribunal member, if subsequently tendered;
c. They would not be copied;
d. They would not be discussed with any persons outside of the hearing room (including Mr Muller).
The clinical notes were produced and viewed. Ms Johnson was cross- examined in relation to their contents. They were tendered by the Respondent, ultimately with the consent of both Ms Johnson and Mrs Rushton, on the basis that they would be held by the Tribunal and either destroyed, or returned to Ms Johnson at the conclusion of the matter.
The original documents were viewed by the Tribunal and returned to Ms Johnson during the hearing, with copies being accepted.[3]
[3] Ex 4.
Ms Johnson’s written statement stated that in her “expert opinion” “...Caroline Rushton would have experienced a directive to attend suicide training as at least a situation of high emotional impact and challenge, and at worst as a potentially traumatic and threatening experience: given her background she would have been likely to vigorously avoid such a situation.”[4]
[4] Statement Ms Johnson 15 July 2010, Para 9.
The Respondent urged the Tribunal to place no weight upon Ms Johnson’s opinion or her written reports as she was a treating psychologist and therefore could not be an expert witness.
Ms Johnson gave oral evidence as follows:
a. she agreed she was the treating psychologist of Mrs Rushton; and that
b. she had ‘trespassed on the role of therapist and advocate”; and,
c. she ought not be seen as an expert witness in the true sense of an objective expert, her primary role being a therapist;
d. Mrs Rushton did not directly raise the issue of suicide prevention training until 17 August 2009;
e. She also raised at that time, concerns regarding her contract with the Respondent having ended, and she being out of work for 6 weeks;
f. She next attended on 21 September 2009 where she discussed concerns regarding her new job and also her previous issues, including the suicide prevention training;
g. Her next appointment was November 2009 where she discussed issues regarding her new job and did not raise the issue about suicide prevention awareness training;
h. She re-raised the issue of suicide prevention awareness training in a consultation on 7 April 2010, and again on 29 April 2010 which Ms Johnson explained was the anniversary of the event;
i. Ms Johnson was surprised at Mrs Rushton’s lack of discussion about the issue in 2009 but this can be explained by “post trauma” and “shame” and that she spoke more openly about it in 2010;
j. She, Ms Johnson, for a period of time after April 2009 worked for the Second Respondent meaning that there was a conflict between them such that she could not provide therapy to Mrs Rushton for issues arising from these events;
k. She was aware Mrs Rushton was seeing another psychologist for a time;
l. That she, Mrs Rushton, very likely became supersensitive to future workplace issues and developed a “thinner skin” as a result of the events on 28 April 2009;
m. That she had “many issues” prior to this and that those issues would have played a role in the way she reacted to the events of 28 April 2009.
Ms Johnson was at all times, Mrs Rushton’s treating psychologist and her evidence is accepted on that basis.
The Tribunal accepts that she was not engaged in the usual course, as an independent expert witness.
However, that does not mean that her opinions carry no weight, or that her evidence should not be treated as that of a professional.
Evidence of and for the Respondents
The Second Respondent, Mr Muller gave evidence by way of written statement and orally, and was cross examined.
It is noted Mr Muller was not present throughout the hearing, on the advice of his legal representatives, other than when he gave evidence.
Mr Muller gave oral evidence that:
a. He had no recollection of Mrs Rushton leaving work each Tuesday, or fortnightly at 1.30pm;
b. The gate books for Tuesdays, from January-April 2009 were tendered to show the dates Mrs Rushton did or did not attend work. The gate books reflect when an employee signs in to the premises to commence work, and when he/she signs out;
c. Mrs Rushton was employed at the relevant time, under a temporary contract, which ended on 13 June 2009;
d. While he, Mr Muller was concerned about her workplace performance after April 2009, rather than take action he decided it was the “easiest option” just to end her position at the end of the contract period;
i.He made no formal diary notes about his concerns and did not commence a formal process, making the decision to disregard usual performance management process;
ii.He did not discuss his concerns with Mrs Rushton but did raise them with the general manager “for advice”;
e. Was unable to recall specifics about Mrs Rushton’s duties from January-April 2009;
f. On the morning of 19 January 2009:
i.He approached Mrs Rushton and asked why she did not attend the training;
ii.Mrs Rushton informed him she had previously been suicidal and had permission to do it later; and
iii.He responded that Mr Mannion should be the person to make the decision about not attending the training;
iv. He then spoke to Mr Mannion to see if she had a dispensation;
v.Denied any further discussion about the issue on that day, and that he was “taken aback” by her statement;
g. On 28 April 2009 suggested Mrs Rushton undertake the training “if she felt up to it”, meaning if she felt “right in the mind”;
h. He gave her an option to do the training and she agreed to do it;
i. There was no further discussion between them about the issue, and no further involvement between them that day;
j. Denied Mrs Rushton:
i.Requested 24 hrs to see her psychologist; or
ii.Asked to see her Doctor; or
iii.Asked to see Mr Kidd, psychologist on staff; or
iv.That Mrs Rushton was distressed, crying or pleading not to have to undertake the training;
k. Denied threatening her job if she did not undertake the training that day;
l. Denied physically restraining her from leaving the work area;
m. Did not check on her through the day as he had no concerns about her emotional state;
n. Was aware there are considerations in doing the training, for people who had previously been suicidal but that Mrs Rushton “had assured” him she was fine;
o. Denied asking her the next day for her answers to assist him complete the new version 7 training;
p. He has done the training “a number of times”;[5]
q. Was unclear from his own memory about what other employees were present or where they sat but checked his memory against the gate book records to see who was at work on that day, and also checked with another employee;
r. Nevertheless, could not be certain about when people sat in certain places, noting that two people were identified as having moved to a different workstation at various times;
s. Could not recall if Mrs Rushton was required to undertake other training such as cultural awareness training as “I can’t remember 3 years ago”;
t. Was uncertain what other tasks Mrs Rushton had to do on the morning of 28 April 2009 and wasn’t sure what she was doing at the time;
u. Could not recall what state the building project was up to as at 28 April 2009 or how many photo images existed at that time requiring processing;
v. Denied any preference by the Respondent for training to take place in a group or in a classroom type environment.
[5]His written statement states he was required to do updated training every 3 years, and that he last did it on 13 January 2009 – Statement of evidence dated 23 January 2012, paras 41 & 43.
A plan of the work area was tendered by Mrs Rushton, with each of the applicant and the First Respondent listing who they believed were present on the day and where each person sat.[6]
[6] Exhibit 8.
Ms Brohman gave evidence for the Respondents by way of written statement. She was not required for cross examination.
Ms Brohman’s evidence was largely an explanation of the requirement for all employees of the Second Respondent to undertake the suicide prevention training, and the reasons behind that requirement. Her evidence was not challenged.
Mr John Paul Strenzell gave evidence for the Respondents by way of written statement and by way of oral evidence given by telephone. He was cross examined by Mrs Rushton. Mr Strenzell gave evidence that:
a. He is a principal advisor on operation training for the Second Respondent but does not work specifically for or at Lotus Glen prison;
b. He explained the way in which the suicide prevention training was administered and the manner in which the training versions are updated;
c. In cross examination he agreed the training is usually done as face- to-face training because it is a “fairly big package” and it is “always better to do it face-to-face”;
d. He also gave evidence that it was not required for officers to do new training whenever such was updated, but agreed in cross examination that each prison can have its own policy on that issue;
e. He was certain that as at January 2009 the only training in existence was version 6 and that version 7 came on the intranet as at 1 April 2009.
Presentation of the parties
Mr Muller’s memory was poor on a number of issues put to him in cross examination about the events of 28 and 29 April 2009 including:
a. Who else was present;
b. Where people were sitting;
c. What tasks Mrs Rushton was performing that day;
d. What task Mrs Rushton was performing generally at that time in her role;
e. Whether Mrs Rushton was required to undertake other specialised training at or about that time or at all.
When asked by Mrs Rushton if she had been required to undertake any other types of training he responded that “I can’t remember 3 years ago”.
Mrs Rushton’s memory about the events of 28 April and 29 April 2009 was clear and consistent, despite extensive cross examination. She has prepared numerous statements and written arguments on the issue, over that time, apparently without legal assistance.
Any inconsistencies which appear in Mrs Rushton's various statements are accepted as minor and having little or no consequence.
Mrs Rushton impressed as a woman who has re-lived the events many times in the past 3 years and is determined to right a perceived wrongdoing.
Where the parties differ in relation to factual matters, the evidence of Mrs Rushton is preferred.
The submission that Mrs Rushton was “evasive” and that she “did not wish to answer” is not accepted.
She was defensive and wary of many issues put to her, and sought at times to proffer a detailed explanation where it may not have been required.
a. While no criticism is made of the Respondents’ legal representation, it is accepted that Mrs Rushton felt at a disadvantage, given she was unrepresented, and that the Respondents were legally represented, not only by a solicitor, but by Counsel. She made such a statement more than once during the proceedings.
b. Her defensiveness is accepted as a reason for her, sometimes, argumentative, responses to questions and no adverse inference is drawn against her as a result.
Mr Muller gave evidence which was designed largely, to cast doubt upon the character of Mrs Rushton. He gave evidence suggesting Mrs Rushton’s workplace performance, after April 2009 was “diminished”, such that he made the decision not to allow her contract to be renewed.[7]
[7] Statement of evidence Mr Muller, 23 January 2012, paras 14-18 and annexures.
The Tribunal was not determining issues regarding Mrs Rushton’s work performance and this evidence was entirely irrelevant to the issue for consideration. It caused unnecessary emotional distress to Mrs Rushton.
It might be open to suggestion that if Mrs Rushton’s work performance slipped after 28 and 29 April 2009 that may well be seen to lend support to her claims of suffering emotional trauma as a result of the events of those days. However as no other evidence is provided, and I was not invited to reach such conclusion, no findings about that issue are made.
Whether Mr Muller asked Mrs Rushton for her answers to complete his own testing
Some time was spent by the Respondents, to show that Mr Muller did the Version 6 training prior to April 2009, in order to support an argument that he would not have asked Mrs Rushton for the answers to her test, which was Version 7, on the basis it was irrelevant to him.
The Respondent suggests that that the events of 28 April 2009, as described by Mrs Rushton, did not occur and the allegation of the events of 29 April 2009, was invented by her in an attempt to sway the Tribunal to accept her version.
The evidence of Mr Strenzell did not conclusively support that Mr Muller would not have been expected, or required, to undertake the newer version 7 of the training in April 2009;
Mr Muller himself volunteered that he had done the training “a number of times” although did not elaborate on which version(s) he had done.[8]
[8] Mr Muller’s written statement states that he underwent updated training every 3 years.
There is no evidence upon which the Tribunal can find that Mr Muller did or did not do, or was/was not expected to do, the updated version 7 of the training.
As previously stated, the Tribunal accepts Mrs Rushton as a witness of truth, and her memory of the events of 28 April to be clear.
The Tribunal does not accept therefore, that Mrs Rushton had any motive to invent the events of 29 April 2009.
Mrs Rushton’s evidence that Mr Muller said to her words like “Good now give me your answers so I can copy them as I am due for re-accreditation”, and that she become distressed as a result, is accepted.
Whether Mr Muller had some other motive for making those comments is not apparent and is not relevant.
Instances of Alleged inconsistencies in Applicant’s Evidence
The Respondents submitted that Mrs Rushton’s evidence was “riddled with inconsistencies” and therefore, unreliable at best or untrue.
Ripping up training test form
It was submitted that Mrs Rushton stated she had ripped up her training test form in front of Mr Muller on 29 April 2009 but then produced it in evidence.
Mrs Rushton’s explanation, was that:
a. she was so distraught on the 29 April 2009 when Mr Muller told her he wanted her answers so that he could use them to complete his own test that she that she ripped up a form, thinking it was the test form;
b. That she can’t be certain now what the document was she ripped up.
Mrs Rushton’s explanation is consistent with level of distress she describes experiencing in response to those comments.
Attendance on another psychologist
It was further submitted that Mrs Rushton mentioned for the first time in oral evidence, that apart from Ms Trish Johnson, or another psychologist within that practice, and her general practitioner, she was also seeing a separate psychologist who works at a practice known as “the Doll’s House”. Mr Spry urged the Tribunal to find this evidence was “a blatant mistruth”.
a. In her early evidence Mrs Rushton refused to name the psychologist.
b. Later she identified her as “Susan Davis” stating that she was seeing her “under direction of my GP and with the blessing of Trish Johnson”.
c. Mrs Rushton gave evidence subsequently that she had been embarrassed to mention the Doll’s House earlier as they are known to treat women with sexual disease.
d. She explained that she had not sought therapy from Ms Johnson initially in relation to this matter as Ms Johnson had a conflict, in that she worked for the prison.
Mrs Rushton’s evidence that she attended upon Ms Davis and sought therapy from her about these issues is supported by an entry in the medical notes of Dr Earl that “she has been to Susan Doll’s House” and that she has seen Susan between end April/early June regarding “some dysfunctional issues re Prison”
It is accepted that Mrs Rushton saw a psychologist or therapist, Susan Davis, at the Dolls House between January-June 2009.
The only evidence to confirm what she was being treated for by Ms Davis is that from Mrs Rushton herself, and the entries in Dr Earl’s notes referred to above.
No finding is made about what specific issues she received therapy or treatment for, from Ms Davis.
Dr Earl’s notes were called for by the Respondent and after cross examination in relation to some entries, were tendered by agreement.
a. It is noted that Mrs Rushton was invited to, and did, inspect the medical notes before making them available to the Respondent’s legal counsel, and removed any entries she considered were irrelevant or confidential.
b. The documents were made available on the basis they would be viewed only by the legal practitioners, in the hearing room, and not be copied or discussed with any other person.
c. This process was agreed to by the Respondents’ Counsel.
Leaving regularly to attend psychology appointments
The Respondent further submitted that Mrs Rushton gave evidence that she would leave each Tuesday at 1.30pm, to see Ms Susan Davis, at the Doll’s House, which she told Mr Muller she was doing. She then amended her evidence to say this occurred each fortnight, then possibly, once/monthly.
The gate books were tendered to confirm this to be untrue and Mr Muller had no recollection of any such discussion or arrangement.
The entry in the gate book, and Mrs Rushton’s own evidence confirms she worked until just before 4pm on the 28 April 2009, noting that day was a Tuesday.
Mrs Rushton stated in reply that she may have been mistaken as to the day, and it may not have been a Tuesday.
There is no way of knowing if the 28 April 2009 was one of the alleged scheduled days for Mrs Rushton to leave early to attend her psychologist as she deposed to doing. The events of that date alone do not allow for any finding or implication to be drawn.
Given earlier findings regarding Mr Muller’s memory, the Tribunal does not take any assistance from his recollection on this issue.
The gate books, being the records of each Tuesday from January-April 2009, were tendered by the Respondent and both parties invited the Tribunal to peruse them to confirm or otherwise, this issue.[9]
[9] Ex 9.
I have perused the gate books as requested by both parties and noted the following:
a. 2 of the supplied entries are not dated or not sufficiently dated (ie no month is mentioned);
b. There are no pages supplied for January 2009;
c. There is no entry for February 17, 17 March, or for 26 March 2009;
d. There is one page marked Tuesday 17 to Wednesday 18 but the month is silent;
e. The entry for 14 April does not list Mrs Rushton, nor any entries for “Administration”;
f. The entry for 28 April lists Mrs Rushton as “out” at 15.59;
g. The entries for 2 June and 16 June are blank as for Mrs Rushton;
h. The entry for 23 June shows Mrs Rushton arrived “in” at 7.45 but shows no time for her leaving;
i. The entry of 30 June indicates Mrs Rushton arriving 8.58 and leaving 14.40;
j. Otherwise the entries suggest Mrs Rushton arrived “in” at or about 8am and “out” at or about 4pm or after;
k. Mrs Rushton’s name is misspelt on many of the pages but it is noted she accepted in evidence that they were her record, and reference to her appears in the same or similar position under a heading “Administration” in each entry.
There is no evidence which supports that Mrs Rushton left on a set day every fortnight, or every month, at the same time, for the purpose of attending her psychologist between January and April 2009.
However, given the gaps in the evidence, as set out above, nor does the gate-book evidence confirm conclusively that this did not occur.
Mr Muller’s written statement contains as an annexure, a diary page dated “Monday 1 June 2009” in which he has hand written “Caroline leave 1PM.” No other explanation accompanies that entry.[10]
[10] Statement of Evidence Mr Muller dated 23 January 2012, Attachment DM-5, page 3.
There is evidence, as referred to elsewhere, that Mrs Rushton attended upon a therapist at Dolls House between January-June 2009 but no findings are able to be made as to:
a. How often that attendance occurred; or
b. What the nature of the treatment or therapy received was.
Being shown or given a copy of Ms Pedron’s answers
It is submitted that there is an inconsistency between the evidence of Mrs Rushton and Ms Pedron about this issue; that Mrs Rushton gave evidence that she was shown a copy of Ms Pedron’s answers and invited to copy them; whereas, Ms Pedron said she offered to show them, but did not do so.
Ms Pedron gave evidence that she did not have the document, as her test papers were kept by her at home.
The Tribunal was invited to find Mrs Rushton’s evidence on this issue was “pure invention”.
It is unclear whether or not Mrs Rushton stated she saw the test papers of Ms Pedron, or whether they were offered to her.
Nothing significant turns on this.
Ms Pedron’s evidence about offering to show Mrs Rushton her answers corroborates Mrs Rushton’s evidence sufficiently on this issue.
Whether Mrs Rushton states that the document was sighted or not, it is clear Mrs Rushton sought assistance for an answer to a question and Ms Pedron offered that assistance which was subsequently rejected by Mrs Rushton.
To find this incident did not occur would require the Tribunal to reject the evidence of both women.
Ms Pedron gave her evidence honestly, and at times, against her own interests (ie admitting she offered for another employee to copy a test answer).
There is no reason not to accept Ms Pedron’s evidence.
There was no evidence that the two women had colluded in any way in relation to their evidence.
Also, nothing turns on whether Mrs Rushton rejected the offer, in order to maintain her own integrity or to avoid putting Ms Pedron in jeopardy.
The timing of the Events of 28 April 2009
It was submitted that Mrs Rushton and Mr Muller were both clear the events of 28 April occurred in the morning, around 8.30am whereas Ms Pedron stated Mrs Rushton came to her in the afternoon, suggesting Mrs Rushton was fabricating the events that occurred in the presence of Ms Pedron.
Ms Pedron stated she knew it could not have been the morning because she herself was involved in attending meetings in the mornings; therefore it would have occurred in the afternoon, or “if in the morning, late morning, towards lunchtime”.
[100]There is nothing inconsistent in these two versions of the events.
a. Mrs Rushton described the events as between her and Mr Muller occurring in the morning at around 8.30am, she then taking some hours to undertake the testing, and approaching Ms Pedron sometime towards the end of the test.
b. Ms Pedron stated Mr Rushton told her she had a problem with the last question.
c. Mrs Rushton stated that she “guessed” the test took “a couple of hours”. This is clearly not a completely accurate recollection of how much time it took but brings the events between herself and Ms Pedron to late morning.
[101]The Tribunal accepts Ms Pedron gave her evidence honestly and forthrightly.
[102]There is clear evidence to suggest the events which took place between Mrs Rushton and Ms Pedron did in fact, occur, and in any event, the precise timing of those events is not a significant factor.
That the Applicant failed to produce evidence to support her alleged emotional state
[103]Mrs Rushton’s evidence was that she was “hysterical for about 2 hours”.
[104]It was urged that this should not be accepted as no one saw her, which is implausible.
[105]Mrs Rushton was criticised for not producing other witnesses to corroborate her evidence on this and other issues.
[106]Mrs Rushton gave evidence that:
a. She had approached potential witnesses who were reluctant to become involved fearing their own employment positions;
b. On at least 2 occasions she went to the ladies room, crying uncontrollably, and remained there for about 20 minutes on each occasion, to gather herself; and
c. That on at least one occasion she passed some people who enquired as to her wellbeing, to which she replied that she could not to talk about it;
d. Mr Muller had threatened her she would lose her job if she told anyone of the events that had transpired between them that morning.
[107]Mrs Rushton’s description of what occurred and feelings of intimidation by Mr Muller and her perceived threats to her employment, are consistent with her desire to keep the issues confidential.
[108]Ms Pedron gives clear evidence of seeing Mrs Rushton in a very distressed state during the course of her completing the test.
[109]The Respondent also did not call any witnesses to give evidence about whether they did or did not see:
a. Either the events between Mrs Rushton and Mr Muller; or
b. Mrs Rushton’s emotional state in the hours after 8.30am.
[110]While the onus is on the Applicant to prove her case, it is also open to take into account a Respondent’s failure to lead evidence, since "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted."[11]
[11]Russo v Aillo (2003) 215 CLR 643 as referred to and adopted in Rawcliffe v Northern Sydney Central Coast Area Health Service & Ors [2007] FMCA 931.
[111]It was well open to the Respondents to call such evidence if they were satisfied it would assist their case. It is noted they took the time to access workplace documents to support their arguments.
[112]No adverse finding is made of the Applicant for not calling such witnesses.
That the Applicant failed to call evidence from her husband
[113]It was submitted that Mrs Rushton’s evidence that she called her husband repeatedly over the ensuing nights and weeks in an extremely emotional state and that he quit his job out of town to return out of extreme concern for her wellbeing, should not be accepted as she did not call him to corroborate this.
[114]Mrs Rushton stated she did not call him as she assumed his evidence would be seen as biased and not carry any weight, and being unrepresented, she did not understand the implications of not calling him.
[115]In the absence of evidence from her husband, or otherwise, as to whether, and if so, when, or why, he quit his job, no finding can be made about that issue.
[116]However no adverse finding or assumption is made against Mrs Rushton for not calling him, and her explanation for not doing so is accepted given her lack of legal representation.
[117]The lack of corroborating evidence does not prevent the Tribunal accepting the evidence of Mrs Rushton that she made such phone calls to her husband in the days and weeks that followed the 28 April 2009; and Mrs Rushton’s evidence on this issue is accepted.
That the Applicant did not seek assistance on 28 April 2009 after Mr Muller left
[118]It was submitted that:
a. Mrs Rushton continued to work her full shift on 28 April 2009 notwithstanding Mr Muller was not in the office for the remainder of that day; and that
b. She could have approached anyone in his absence to tell them what had happened.
[119]The Tribunal was invited by the Respondents to conclude on the basis of this, that she was not distressed as she claims.
[120]Mrs Rushton’s behaviour in completing her shift, and in not approaching any other person at work to tell them of the events is consistent with her evidence that:
a. She was intimidated by Mr Muller on the basis of the comments and his behaviour that morning; and that
b. She feared for her job if she told anyone.
[121]Her behaviour was consistent with her evidence that, for the same reason:
a. She had declined to tell work colleagues who enquired of her welfare;
b. She had refused Ms Pedron’s invitation to speak someone else;
c. She had specifically approached Ms Pedron because she knew what was said between them must remain confidential.
Conclusions
[122]The Tribunal finds that Mr Muller told Mrs Rushton that she was to undertake the suicide prevention awareness training on the morning of 28 April 2009 and that:
a. She asked to have 24 hours to seek professional advice before undertaking the test; and that
b. He ignored her requests; and that
c. She displayed obvious emotional distress; and that
d. He ignored her emotional distress; and that
e. He threatened her, that her job was in jeopardy if she did not do the test; and that
f. He physically restrained her by grabbing her arm when she attempted to approach another person to discuss the matter; and that
g. He told her she was not to tell anyone else what had happened between them; and that
h. She felt intimidated by his behaviour and believed he had the capacity to take away her employment; and that
i. She suffered extreme emotional distress throughout the day, both from undertaking the testing without having received professional support, and from the events which occurred between her and Mr Muller leading to her belief that her job was in jeopardy if she did not undertake it; and that
j. He told her the following day that he wanted her to give him her answers to the test so that he could copy them when he did the test himself; and that
k. This behaviour caused her to become further distressed.
Direct Discrimination
[123]The Respondent submitted that the description of events by the Applicant could not, even if accepted, amount to direct discrimination in accordance with s 10 of the Act.
[124]That submission is accepted.
[125]It could not be said that Mr Muller did, or would have, not required a person who did not have the mental health history of Mrs Rushton, to undertake the testing, in the manner he did on 28 April 2009.
Indirect Discrimination
[126]The Respondent further submitted that Mrs Rushton could not show that she had been indirectly discriminated against, in circumstances where:
a. The term to which she was requested to comply was to complete Suicide Prevention Awareness training;
b. All employees were required to undergo that training;
c. Mrs Rushton accepted and agreed she needed to undertake the training;
d. Mrs Rushton agreed it was reasonable of the Respondent to require her to undertake that training.
[127]To amount to indirect discrimination s 11 of the Act requires that a person imposes or proposes to impose a term with which a person with an attribute does not, or is not able to comply; and which a higher proportion of people without the attribute, comply or are able to comply; and that the term imposed is not reasonable.
The Term
[128]Section 11(4) describes “term” as including “condition, requirement or practice, whether or not written”.
[129]Mrs Rushton submitted, and the Tribunal accepts, as a matter of fact, that the term imposed was the requirement that she undergo the training:
a. That day;
b. On line and not in a face-to-face environment;
c. Without being permitted to seek professional advice and assistance;
d. Being refused a short time (24 hrs) to seek professional advice.
Whether Mrs Rushton could comply with the term
[130]In Edwards v Hillier & Educang Ltd t/as Forest Lake College,[12] the President of the then Anti Discrimination Tribunal QLD, referred to and adopted comments made in the matter of Bogle v Metropolitan Health Service Board, wherein, in a discussion about the meaning of “does not or is not able to comply” it was said:
[12] [2006] QADT.
“The use of the expression “cannot or does not comply” is quite deliberate in the EO Act, (Equal Opportunities Act) and reflects the legislative intent, which is that even where a person does as a matter of fact comply, she or he may not be able to comply in a meaningful sense...”
[131]In this case, while Mrs Rushton complied with the term, she did so only under duress, fearing her job was in jeopardy, and was not able to do so without suffering extreme emotional distress.
[132]In those circumstances, the Tribunal finds she was not able to comply with the term imposed.
Whether a higher proportion of people without impairment could comply
[133]As identified in Rawcliffe v North Sydney Central Coast Area Health Service[13] this requires:
[13] (2007) FMCA 931.
a. Identification of a base group, being persons who do not have the impairment suffered by Mrs Rushton at the time, in order to consider what proportion of them could comply with the term.
b. Also, another group must be identified, being those persons who do have the impairment, in order to determine the proportion of that group that could comply.[14]
[14]Catholic Education Office v Clarke [2004] FCAFC 197 (6 August 2004) Federal Court of Australia.
c. The test is satisfied if the proportion of the first group is "substantially higher" than the proportion of the second group.
The way in which the two groups are identified as well as the pool from which they are taken is a matter with which the Tribunal has considerable flexibility, and:
The appropriate groups are to be determined by considering the particular factual context in which the indirect discriminatory effect of the "requirement" is being examined.[15]
[15] Rawcliffe, at 84.
[134]In identifying the particular groups, the comparison is not required between all persons with the attribute and all persons without the attribute. The identity of the groups, and the pool from which the groups are taken will depend on the circumstances of a particular case.[16]
[16] Australian Iron & Steel v Banovic, at 178, per Deane and Gaudron JJ.
[135]In Chivers v State of Queensland[17] Senior Member Endicott accepted the comments of Black CJ in Queensland Health v Che Forrest, where he said:
[17] Chivers [2012] QCAT 166.
“Discrimination occurs if the requirement or condition impacts more severely upon persons with a disability than it does upon persons without the disability. Since the requirement or condition may impact upon both groups, the Act requires reference to the proportionate impact and a consideration of whether "a substantially higher proportion of persons without the disability" can or are able to comply.”
and
“In some instances the required disproportional impact may be established as a matter of inevitable inference.[18]
[18] [2008] FCAFC 96 at paragraph 7 & 8 (referred to in Chivers).
[136]The “pool”[19] of persons from which both groups are taken, in this case, are all employees of the Second Respondent, who work at Lotus Glen prison, who have contact with prisoners and are therefore required to undertake suicide prevention awareness training.
[19] Rawcliffe as above.
[137]In this case there is no statistical evidence of the size of either group. However, as indicated in Rawcliffe v Northern Sydney Central Coast Area Health Service[20], a lack of statistical evidence about such issues is not uncommon in anti-discrimination matters and is not required.
[20] (2007) FMCA 931 (as referred to in Chivers).
[138]In cross examination of Mr Muller, Mrs Rushton asked, in reference to the testing: “Are you aware there are special considerations for people who had been suicidal”? Mr Muller responded “Yes but you assured me you were fine”.
[139]Mr Strenzell agreed in cross examination that an employee’s initial exposure to the testing would usually be face-to-face “because it’s a fairly big package and it’s always better to do it face-to-face”.
[140]The co-ordinator of the testing, had, upon being informed of her history of suicide attempts and depression, previously given Mrs Rushton the opportunity to avoid doing the testing until such time as she had obtained medical and/or professional advice and assistance, to ensure that she was able to do the testing.
[141]Ms Johnson gave evidence that Mrs Rushton would, as a result of her background, been more emotionally sensitive to the requirement to undergo the training and “... would have experienced a directive to attend suicide training as at least a situation of high emotional impact and challenge...”[21]
[21]Ms Johnson’s written report para 9.
[142]In this case an “inevitable inference” can be drawn from the evidence, that there was a disproportional impact from undertaking the testing, in the circumstances in which Mrs Rushton was required to do so, for persons with a similar attribute, than would have been the case for employees without her attribute.
Whether term was reasonable
[143]The trial Judge in Catholic Education Office v Clarke, set out the well established principles, which were endorsed by the Full Court of the Federal Court[22], being:
[22][2004] FCAFC 197.
a. The Applicant bears the onus of establishing that the term imposed was not reasonable in the circumstances;
b. “The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other;”[23]
[23] Morgan v GK [2001] QADT 10 (22 May 2001), per Davies J.
c. The personal preferences of the applicant may be relevant in assessing whether the term is unreasonable, but is not determinative of that question;
d. “The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience;”[24]
[24] In Secretary Department of Foreign Affairs & Trade v Styles (1989) 23 FCR 251, 263a.
e. The Tribunal must weigh all relevant factors including:
i. Any reasons put forward in favour of the term;
ii. The nature and effect of the term;
iii.The financial burden to the Respondent of complying with the applicant’s needs; and
iv. The availability of reasonable alternatives.
f. Although, the existence of a reasonable alternative does not, of itself, make the term imposed, unreasonable.
[144]When directing that Mrs Rushton complete the test that day, on her own, on the intranet, Mr Muller knew that:
a. Mrs Rushton suffered a history of depression and attempted suicides;
b. It was usual for people with a history of suicide attempts to be given special consideration;
c. Given her history, Mrs Rushton was particularly emotionally sensitive to the content of the test;
d. Mrs Rushton had previously been given permission to do the test at a later date after she had sought professional advice;
e. It was usual practice for employees to undertake the testing in a group, and a face-to-face environment because of the nature and extent of the content;
f. Mrs Rushton was likely to experience distress in undertaking the test because of her history.
[145]Mr Muller:
a. Witnessed Mrs Rushton’s distress when he demanded she undertake the testing, and ignored it;
b. Denied her the opportunity to seek professional support;
c. Physically restrained her from seeking advice or help from someone else;
d. Threatened Mrs Rushton that her job would be in jeopardy if she did not undertake the testing notwithstanding the above matters.
[146]The impact of the term for Mrs Rushton, of completing the testing under the circumstances outlined above were likely to be much more significant than on her co-workers, given her impairment, in that she was likely to, and did, suffered severe emotional distress:
a. In the period prior to undertaking the test, from the actions and comments of Mr Muller as described above;
b. Where she believed her job was in jeopardy; and
c. Arising from the content of the test material.
[147]The financial cost, and the effect of the following alternatives to the Respondent was negligible:
a. Mrs Rushton could have been given a 24 hour period in which to seek professional advice and/or assistance, offering to undertake the testing the following day; alternatively,
b. Mrs Rushton could have been invited to participate in a group training and/or one-on-one, face-to-face session on another day; alternatively
c. Mrs Rushton could have been given access to a psychologist or counsellor in the workplace before undertaking the training.
[148]In all of the circumstances of this case, the term imposed on Mrs Rushton by Mr Muller on 28 April 2009 was unreasonable.
Pain and Suffering
[149]It is not possible to assess precisely, the level of pain and suffering which arose directly from this incident, given Mrs Rushton had ongoing depression and emotional issues, and that she suffered subsequent events that contributed to her emotional suffering.
[150]However it is clear that she suffered some pain and distress as a direct result of these events.
[151]Mrs Rushton suffered emotional trauma:
a. Prior to undertaking the test, as a direct result of Mr Muller’s comments and behaviours;
b. For a number of hours while doing the test, during which she was crying, at times hysterically; and
c. On the following day, as a result of the comments of Mr Muller;
d. In the days and weeks after the event where she suffered depression and turned to phoning her husband nightly; and
e. She has been embroiled in proceedings about these events for the past 3 years or so and she has revisited the events from time to time as a result.
[152]Ms Johnson also gave evidence, which is accepted, that Mrs Rushton’s previous mental health issues made her more sensitive to the issue of suicide prevention awareness training than people without that background; and that as a result, she is likely to have been distressed about having to undertake such training, when advised of the requirement to do so on 28 April 2009.
[153]That Mrs Rushton has previous mental health issues, or subsequent ones, does not alleviate the liability of the Respondents in this matter.
[154]Evidence was provided that Mrs Rushton suffered other workplace issues, not relating to the Respondent, after these events. While it is not possible to apportion with any precision, the level of emotional impact of these events as opposed to those subsequent events, Ms Johnson’s evidence was, that it is likely that the events of 28 April 2009 made Mrs Rushton more sensitive to future workplace issues, and that evidence is accepted.
Relief Sought
[155]Mrs Rushton seeks:
a. That the Second Respondent be required to vary its procedure in relation to future training for its employees to take account of people with vulnerable emotional conditions.
i.I am satisfied that the Second Respondent has appropriate procedures in place but that those procedures were not followed by Mr Muller on the 28 April 2009.
ii.There is therefore nothing to by gained by making specific recommendations about this issue.
b. That Mr Muller says “I’m sorry” for what he did and said to her.
i.I invite Mr Muller to consider providing such an apology but see little point in forcing him to do so where he continues to deny any wrongdoing on his part.
c. Monetary compensation if the Tribunal considers that to be appropriate.
i.While monetary payment will not erase the events that occurred, nor completely address the trauma the Applicant has endured as a result, I consider it just and equitable, in all of the circumstances that the Respondent be ordered to pay monetary compensation to Mrs Rushton for her pain and suffering.
ii.Guided by awards given in previous authorities for emotional pain and suffering, I consider an appropriate amount to be $10,000.[25]
[25]Webb & Lightfoot [2011] QCAT; Irvine & Porter v Memorial Cafe & Bar P/L and Ingall (No 2) [2010] QCAT 482; Stallard & Alsun Aluminium P/L and Anor [2011] QCAT 490; Skinner v Sully [2011] QCAT 589; Rawcliffe v North Sydney Central Coast Area Health Service (2007) FMCA 931.
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