Rutherford v RACQ Operations Pty Ltd (No. 2)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Rutherford v RACQ Operations Pty Ltd (No. 2) [2025] QIRC 207
PARTIES:	Julie Rutherford Complainant v RACQ Operations Pty Ltd Respondent
CASE NO:	AD/2023/96
PROCEEDING:	Anti-Discrimination - Referral of Complaint
DELIVERED ON:	7 August 2025
HEARING DATES: DATE OF LAST SUBMISSION:	1, 2 and 3 July 2024 22 October 2024
MEMBER: HEARD AT:	Caddie IC Brisbane
ORDERS:	1. That the complaint of requesting unnecessary information is substantiated. 2. That the complaint of direct discrimination on the basis of family responsibilities as carer for a person with an impairment is substantiated. 3. That the complaints of direct discrimination on the basis of impairment are dismissed. 4. That the complaints of indirect discrimination are dismissed. 5. That the complaint of victimisation is dismissed. 6. That the Respondent pay to the Complainant, within 28 days: a. $25,000 for general damages. 7. That the parties are to bear their own costs.
CATCHWORDS:	ANTI-DISCRIMINATION – REFERRAL OF COMPLAINT – direct discrimination – indirect discrimination – victimisation – requesting unnecessary information – where the Complainant alleges direct discrimination on the basis of impairment and family responsibilities – where the Complainant alleges the Respondent's policies on hours of work and training amount to indirect discrimination on the basis of impairment – where the Complainant alleges victimisation – where the Complainant alleges the Respondent requested unnecessary information in relation to the Complainant's husband's medical status – consideration of comparator – where no comparator provided – where decision-maker must establish a comparator in the absence of one being contended by Complainant – where direct discrimination on the basis of family responsibilities as a carer for a person with an impairment is substantiated – where the complaint of direct discrimination on the basis of impairment is dismissed – where the complaint of indirect discrimination is dismissed – where the complaint of victimisation is dismissed – where the complaint of requesting unnecessary information is substantiated – consideration of the compensatory nature of damages – consideration of the rule against double recovery – where damages are awarded.
LEGISLATION: CASES:	Anti-Discrimination Act 1991 (Qld) ss 5, 6, 7, 8 9, 10, 11, 15, 25, 33, 35, 36, 103, 108, 124, 129, 130, 133, 136, 141, 166, 204, 205, 206, 209, sch 1 Workers' Compensation and Rehabilitation Act 2003 (Qld) s 132A Work Health and Safety Act 2011 (Qld) ss 3, 17, 18, 19 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 Briginshaw v Briginshaw (1938) 60 CLR 336 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 Grant v John Grant Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23 Haines v Bendall (1991) 172 CLR 60 Minister for the Environment & Heritage v Greentree (No 2) [2004] FCA 741 Motlap v Workers' Compensation Regulator [2020] QIRC 196 Neil v Lee [2024] QIRC 93 Petrak v Griffith University & Ors [2020] QCAT 351 Rutherford v RACQ Operations Pty Ltd [2024] QIRC 145 Schipp v The Star Entertainment Qld Ltd; Minister for Education and Minister for Industrial Relations v The Star Entertainment Qld Ltd [2019] ICQ 9 Vairy v Wyong Shire Council (2005) 223 CLR 422 Waters v Public Transport Corporation (1991) 173 CLR 349 Watson v Foxman (1995) 49 NSWLR 315
APPEARANCES:	Ms J. Rutherford, appearing in person as the Complainant. Mr M. Payten of the Respondent, appearing on behalf of the Respondent. Ms C. Ellison of the Respondent, appearing on behalf of the Respondent (day 3).

Reasons for Decision

Relevant Background and Chronology

Ms Julie Rutherford started working at RACQ on 19 May 1986, at the age of 18 years old.[1] RACQ was Ms Rutherford's employer for the following 36 years, until her termination on 1 April 2022.[2] Ms Rutherford worked in various customer service roles during her tenure, and won the RACQ Sales Consultant of the Year State Award in 2011.[3] Ms Rutherford's hours of work have varied over the years following successive flexible working arrangements.[4] In 2013 Ms Rutherford worked on average 22 hours per week increasing to 25 hours in 2018, and down to 20 hours in 2019.
[1] Exhibit 1 attachment B-27.
[2] Exhibit 1 attachment B-28.
[3] Exhibit 1 attachment G-18.
[4] Exhibit 1 attachments B-6 – B-13; B-15.
Ms Rutherford is the carer of her husband, who suffers from Multiple Sclerosis (MS) and Churg-Strauss syndrome.[5] Ms Rutherford also suffered an injury to her thoracic spine in August 2019.[6]
[5] 1 July 2024 T1-20 ll 11-21. Churg-Strauss Syndrome; also known as eosinophilic granulomatosis with polyangitis; is a rare disease involving inflammation of the blood vessels, which can restrict blood flow and damage vital organs and tissues. Multiple Sclerosis is a central nervous system disease with varied symptoms.
[6] Whether the injury was caused by Ms Rutherford's work or was an aggravation of a pre-existing condition is described by the parties differently but is ultimately not material to this Decision.
On 10 September 2019, a medical certificate issued by Dr McMaster stated Ms Rutherford was totally incapacitated for work until 10 October 2019.[7] Correspondence from Dr Liang (Neurosurgeon) on 14 October 2019 advised that Ms Rutherford would need to look after her posture, an anti-fatigue mat would be necessary if she would be standing for long periods, and that she would likely be better alternating between standing and sitting. Ms Rutherford's period of incapacity was extended by further GP certificates of Dr McMaster to 25 October 2019, when she was certified fit to make a graduated return to work, on an initial maximum of 10 hours per week.[8]
[7] Exhibit 1 attachment A-2.
[8] Exhibit 1 attachments A-4, A-5 and A-6.
Correspondence from Mr Rick Schultz (RACQ Injury Management Specialist) to Mr Thomas Bell (Member Engagement Manager) on 11 September 2019 acknowledged that Ms Rutherford was entitled to lodge a workers' compensation claim if she considered her condition was work-related, and that RACQ needed to be proactive in managing her time off work and where possible support an early return to duties. Mr Schultz proposed that information regarding how to lodge a claim included in the email should be passed on to her.[9] Ms Rutherford at Hearing gave uncontested evidence she was never informed in relation to making a workers' compensation claim pursuant to this email.[10] Ms Rutherford returned to work on 4 November 2019 on reduced shifts of three hours per day, three days per week.[11]
[9] Exhibit 1 attachment D-3.
[10] T1-45 ll 31-34. At its highest Mr Schultz held a 'belief' the information 'had filtered through.' T2-110 ll 25-29.
[11] Exhibit 1 attachment D-6.
On Ms Rutherford's return to work, RACQ organised for Mr Zietek, an occupational therapist consultant, to conduct a worksite evaluation report. The report, dated 6 November 2019, noted Ms Rutherford's role in the concierge area required extended periods of standing, and in his opinion, she could do such in the order of 20-30 minutes at a time.[12] Mr Zietek further recommended that Ms Rutherford would need to regularly vary her postures every 20-30 minutes and engage in regular short walks around the store. Mr Zietek noted Ms Rutherford would be best suited to working seated at a bench desk, as well as performing short consults at the standing desk located at the front of the store.[13] Mr Zietek noted the proposal regarding an anti-fatigue mat and opined a better option would be for Ms Rutherford to avoid prolonged periods of static standing.[14]
[12] Exhibit 1 attachment A7, p 2.
[13] Ibid p 3.
[14] Ibid p 2.

A six-week suitable duties plan was devised and agreed to by Ms Rutherford and RACQ. In the first two weeks Ms Rutherford was to work three shifts totalling 10 hours, in the next two weeks work three shifts totalling 12 hours, and in the final two weeks work four shifts totalling 15 hours. No shifts were to be longer than four hours.[15] On 19 December 2019, Ms Rutherford indicated to Mr Zietek that at the end of the six-week period, she was not confident of her ability to work seven hour shifts, and she sought to stay working up to 15 hours per week. Mr Zietek recommended to RACQ that Ms Rutherford's shift duration be graduated depending on medical advice.[16]
[15] Exhibit 1 attachment A-8.
[16] Exhibit 1 attachment A-9.
On 27 December 2019, Dr McMaster completed an RACQ Work Capabilities Form which noted Ms Rutherford was unfit for normal duties, though could return to normal duties with restrictions of reduced hours of four hours per day, three days per week, totalling 12 hours.[17] Dr McMaster on 17 March 2020 recommended five hours per day, three days per week, totalling 15 hours.[18] Ms Rutherford never worked more than 12 hours per week during this return to work period.[19]
[17] Exhibit 1 attachment A-10.
[18] Exhibit 1 attachment A-11.
[19] T1- 31 ll 45-48.
On 12 February 2020, Ms Rutherford's position title was changed to Member Engagement Specialist.[20] At Hearing, Ms Rutherford clarified that 'Specialist' denoted greater experience and capacity to deal with more complex insurance products.[21]
[20] Exhibit 1 attachment B-16.
[21] T1-15 ll 28-36.

On 20 February 2020, Mr Schultz sent an email to relevant RACQ managerial staff, including Mr Bell. He noted that while the store manager Ms Judi Fitch did not consider 15 hours per week as operationally viable for the store, RACQ needed to explore whether it could be accommodated.[22] Mr Schultz asked that Mr Bell have a formal discussion with Ms Rutherford and ask what her preferred work arrangements were, whether her medical condition and/or other factors influenced her preferred working hours, and if her doctor had provided an opinion about her ability to work 20 hours per week in the long-term. Mr Bell responded on 21 February 2020 advising that Ms Rutherford's main factor influencing her hours was her medical condition, and no opinion was expressed about working 20 hours per week.[23]
[22] Exhibit 1 attachment D-9.
[23] Exhibit 1 attachment D-10.
The Advent of the Covid-19 Pandemic
In March 2020, the COVID-19 pandemic began to impact Queensland. In evidence, Mr Schultz described this as being a chaotic time for RACQ. RACQ directed retail staff to wear face masks, Perspex screens were installed in work locations, and the number of people in a store at a given time was controlled.[24] Some of these measures, particularly installation of Perspex screens, took a number of months.[25] The executive of RACQ was described as being empathetic towards staff and allowing those who wanted to take leave to take it – particularly where persons in a family were vulnerable.[26]
[24] T2-81 l 45 – T2-82 l 1.
[25] T2-82 ll 3-9.
[26] T2-81 ll 31-36.
Following a discussion with Mr Bell, Ms Rutherford commenced leave on 23 March 2020.[27] On 24 March Mr Schultz followed up Mr Bell by email asking if the reduced hours linked to Ms Rutherford's graduated return to work could be accommodated. Mr Bell in his reply, advises the hours could be accommodated however Ms Rutherford had "decided to go on indefinite leave until the COVID storm passes."[28] In cross-examination, Mr Schultz confirmed there were no concerns with Ms Rutherford's level of productivity and graduated increase in hours at the time she commenced this leave.[29]
[27] Exhibit 1 attachment C-1, p 2; D-12.
[28] Exhibit 1 attachment D-11.
[29] T2-115 l 45 – T2-116 l 6.

Ms Rutherford exhausted accrued leave entitlements on 11 May 2020 and was approved to take unpaid leave from that date for a further month with an end date of 7,[30] or 8 June 2020.[31] Ms Rutherford described this initial period as leave she took "in order to protect my husband from getting ill."[32]
[30] Exhibit 1 attachment C-1, p 237.
[31] Exhibit 1 attachment B-19.
[32] T1-11 l 20-22.
Concerns for the health of Ms Rutherford's husband

In preparation for the conclusion of her leave without pay Ms Rutherford advised Mr Bell she intended to return to work.[33] She described:
In May 2020, I instigated my return to work, but someone at RACQ – I have no idea which department – decided that I couldn't return without a clearance letter from my husband's doctor.[34]
[33] T1-11 l 22-23.
[34] T1-11 l 22-24.
By email on 26 May 2020, Mr Bell advised Ms Judi Johnson (Regional Manager) that he had called Ms Rutherford to explain that she would need her husband's doctor to send through details regarding it being okay for her to go back to work as follows: [35]
[35] Exhibit 4. This email was tendered during the Hearing via Ms Edwards who indicated she located the document in the files of the Northlakes store. The Complainant had no objection to the document being tendered into evidence following a discussion between the parties the previous day.

Hey Judi,

I rang and spoke to Julie Rutherford and explained about requiring Dimitri's (sic) doctor to send through details regarding it being ok for Julie to go back to work.

Julie mentioned that she had asked his lung specialist last week if she thought she was being too cautious by not being at work and the specialist advised that she didn't think so and that if Julie goes back to work she should only do that if she can then isolate from Dimitri (sic).

Julie advised that she is going to contact the lung specialist and see if she can get clearance, if they can't get that specialist they will see Dimitri's (sic) GP.

Julie advised that working at home would not be an option for her own mental health.

If you require any further information please let me know.

Talk soon,

…

Ms Rutherford subsequently sought the medical clearance requested. On 27 May 2020, a medical certificate from Dr Wong stated the following:
I have no objections to Mrs Julie Rutherford returning to work from 11 June 2020. Her husband has got chronic illnesses. Julie is aware that during the COVID-19 pandemic, there are risks involved with face to face client contact. However she is willing to take these risks at this stage, as the risk is currently low. She will review her decision if the COVID-19 situation deteriorates.[36]
[36] Exhibit 1 attachment A-12.

Ms Rutherford emailed Dr Wong's letter to Mr Bell, on 29 May 2020. Along with the attached letter, she stated:[37]
Hi Tom,
I hope this is okay, he really didn't know what to write.
He is happy for me to work as long as customers adhere to social distancing etc and there are no new local outbreaks.
I will see you in a couple of weeks, yippee
[37] Exhibit 1 attachment B-17.
Mr Bell responded on 1 June 2020, stating he would contact head office to determine next steps. Mr Bell emailed Mr Schultz on 3 June 2020 seeking advice.[38] Mr Bell indicated in the email:
When discussing Julie's return to work I advised her that she would need to provide a medical clearance from Dimitri's (sic) doctor that it's ok for her to return to work given his vulnerable status.
At that point Julie advised that Dimitri's (sic) lung specialist had already advised her that she did not believe Julie should go back to work due to the risk, and that if she could she could work from home. Failing that if she was to go back to work that she would then be advised to self-isolate from Dimitri. (sic)
Julie advised that she couldn't self-isolate, and that she doesn't want to work from home as that would not suit her own mental health. Julie advised she would go and see Dimitri's (sic) GP and get him to give the ok. At the time I had discussed with her my uneasiness with this considering what she had told me about the lung specialist's comments and that COVID seems to affect those with respiratory issues.
[38] Exhibit 1 attachment B-18.
RACQ does not dispute that Mr Bell's actions were as outlined in this email. Mr Payten (in cross-examination), acknowledged that it was "very clear" from Mr Bell's email that a clearance was required, and it arose from a "very significant health concern" and "some clarity from the specialist would be sought."[39] However, Mr Payten emphasised that Ms Rutherford formed a view, having considered the specialist's recommendation, that she would continue to take leave. Mr Payten's evidence was that:
MS RUTHERFORD: Wasn't my return to work subject to acquiring a letter or you acquiring a letter from my husband's specialist?
MR PAYTEN: Yes, you were required to – well, you were asked to obtain – yes, updated advice from your specialist and – and a clearance, but then after advising of your conversation with the – with the specialist, you advised that you were happy to continue taking leave.
[39] T3-53 l 32 – T3-54 l 12.
Ms Keisha Boutwood (Manager of Human Resources Business Partnering) was included in the correspondence. When Ms Boutwood was cross-examined by Ms Rutherford as to why RACQ required this information, she said:[40]
MS RUTHERFORD: Well, given that this [Ms Rutherford's medical clearance] has been supplied, would that not indemnify RACQ against my husband getting sick?
MS BOUTWOOD: It's not that. It's more that we want to ensure that we're providing a safe working environment for you and ensuring that also that your partner was safe. So, as I said previously, given the initial guidance from the specialist that it was unsafe for you to work within that environment, my advice, as the HR practitioner, at the time, was to ensure that we got updated advice from that same person, given they had the full oversight and history of your husband's condition.
[40] T2-52 ll 9-16.

Mr Schultz replied to Mr Bell on 3 June 2020, indicating that RACQ could support a work from home arrangement. Mr Schultz sought that Mr Bell arrange for Ms Rutherford to send photos of her home workstation. When Mr Bell clarified by reply email that Ms Rutherford considered working from home to be unsuitable, Mr Schultz emailed the following:
In the absence of any willingness to WFH – I do not see Julie's husband's specialist as providing a medical approval for her circumstances.
If there is no 'back of office' duties available (hence limiting contact with the public), I would say Julie would need to access any accrued leave/leave no pay until the restrictions are further lifted in the community and she can return to the workplace without fear of potentially exposing her husband. I do feel we are really running out of options.
On 8 June 2020, Ms Rutherford emailed Mr Bell to advise she had tried to contact the specialist without success but would follow up the next day.[41]
[41] This email supports Ms Rutherford's evidence in cross-examination that Mr Bell called her following receipt of the advice from Mr Schultz and others that a clearance was required from the specialist; T1-36 l 48.

On 9 June 2020, Ms Rutherford sent the following email to Mr Bell:[42]
Hi Tom,
I spoke to Dmetri's thoracic specialist (Dr Raelene Bowman) today via phone and she said there is no way she can confirm that he is not at risk of catching COVID19 if I return to work. She is unable to provide this in writing without a formal request being made by my employer. This request would need to be made in writing to the Superintendent of the Prince Charles Hospital and would also incur a cost.
I know I have the option to work from home but as Dmetri is generally housebound and I would need to work from our dining table, I personally don't think this is the best option for us. I would actually prefer to be in the branch as it's my little escape but I fully understand why this isn't an option at the moment. I am also mindful of my own back issue and know how to deal with the suggested recommendations in the branch but this may not be possible at home. I'm happy to do phone shifts in the branch but I also understand if that's not an option.
At this stage, I'm happy to continue taking leave without pay as this seems to be the only workable option at the moment.
I hope I get to see you guys soon.
[42] Exhibit 1 attachment B-17.

Mr Bell responded on 11 June 2020, stating he was looking forward to "catching up some time in the future." He advised Mr Schultz by email on the same day that Ms Rutherford decided to continue leave without pay due to the specialist not giving clearance.
In cross-examination, Ms Boutwood confirmed that Mr Bell had said to her at that time "that Julie would continue on leave without pay in the absence of receiving the required clearance."[43]
[43] T2-42 l 11-12.
In a handwritten chronology, Ms Rutherford indicated Mr Bell called her on 3 September 2020. Ms Rutherford stated:[44]
Tom rang and asked what I wanted to do and I told him I wanted to work. He suggested that I could work in the call centre at EMP, I said that I would do that or work on the phones in any branch. He again said that work in a branch wasn't an option without the clearance letter. He said he would find out my options but I heard nothing at all from him or RACQ.
[44] Exhibit 1 attachment B-23. Smartphone-typed notes of a similar tenor are contained in attachment G-6.
A period of delay

There is then a gap of six months in communication between Ms Rutherford and RACQ from 4 September 2020 to 15 March 2021. There is some dispute as to whether the call from Mr Bell on 3 September 2020 happened. If it did not occur, the gap in communication was nine months (12 June 2020 – 15 March 2021).
In cross-examination RACQ questioned why Ms Rutherford did not contact Mr Bell, Mr Schultz or any other HR officers in the interim.[45] Ms Rutherford stated she was waiting for contact from RACQ, as per her 9 June 2020 email, RACQ needed to contact her husband's specialist.[46] RACQ put to Ms Rutherford that she did not contact anyone from RACQ because she knew the status and had decided not to return to work. Ms Rutherford stated she did not understand that proposition.[47] It was further noted in Ms Boutwood's evidence in response to a general question, that RACQ's HR would not reach out to contact incapacitated workers on a regular basis.[48]
[45] T1-49 l 21 - T1-50 l 26.
[46] T1-50 ll 1-5; 23-26.
[47] T1-50 ll 35-38.
[48] T2-44 ll 29-49.
On 15 March 2021, Ms Rutherford visited the RACQ North Lakes store. She spoke with Ms Nicky Edwards (Member Engagement Manager), advising she was ready to return to work, however, had never heard back from Mr Bell about whether she could.[49] In an email from Ms Edwards to Mr Schultz that same day, Ms Edwards noted:
I spoke to Tom today 15/3 and he told me that the last conversation he had with Julie was approx. 6-9 months ago, where he told Julie that we need a letter from her husband's specialist lung doctor before she can return to work. That was the last time he spoke to her and Tom said we have never received a letter from her husband's doctor from Julie.
[49] Exhibit 1 attachment D-12.

In cross-examination, Ms Edwards accepted that Mr Bell's words meant that RACQ required a letter from Ms Rutherford's husband's specialist before she could return to work.[50] Ms Edwards further admitted that she only became aware that Ms Rutherford needed to provide a letter from her husband's specialist after speaking with Mr Bell.[51] After speaking with Mr Schultz, Ms Edwards understood Ms Rutherford could return to work if a Work Capabilities Form was completed clearing her for work based on her own capacity.[52]
[50] T3-31 ll 22-31.
[51] T3-32 ll 1-3.
[52] T3-32 ll 5-6.

On 19 March 2021, Ms Hutchesson (Finance Sector Union) wrote to Mr Payten (then General Manager Employee Relations and Corporate Legal).[53] Ms Hutchesson noted that Ms Rutherford was directed not to return to the workplace due to her husband's condition, that she has had to use her own leave entitlements, and she has not been paid for a year whilst willing and able to return to work. Ms Hutchesson asserted it was unreasonable and discriminatory on the basis of 'her relation to a person with an impairment', to prevent Ms Rutherford to return to work and requested that she be recredited her exhausted leave entitlements and unpaid wages.
[53] Exhibit 1 attachment B-19.
Mr Payten responded on 29 March 2021. He stated that Ms Rutherford was offered (but declined) work from home, that she decided to stay on leave, and that at no point was Ms Rutherford directed not to work. This is a point Mr Payten re-affirmed in cross-examination.[54] Mr Payten stated Ms Rutherford was welcome to return to work at any time, including in-store work. He also attached a Work Capacity Certificate that he had become aware of as a result of preparing his response to the FSU in late March 2021. The certificate stated that Ms Rutherford was totally incapacitated for work during the period of 8 October 2019 – 8 January 2021.[55]
[54] T3-57 ll 1-16.
[55] Exhibit 1 attachment B-19, p 153.
On 1 April 2021, Ms Hutchesson replied that Ms Rutherford had provided Mr Bell a medical clearance in June 2020,[56] though Mr Bell did not consider the letter sufficient. Ms Rutherford's notes of the contested 3 September 2020 telephone call with Mr Bell also indicated she could not return to work without the clearance.
[56] The certificate was provided on 27 May 2020.

A file note written by Ms Edwards outlined a conversation she had with Ms Rutherford on 7 April 2021.[57] The note provided the following:
Rang Julie and said to Julie that I had been speaking to Rick one of our Health and Injury Managers about Julie returning to work and said to Julie that we really want you to come back to work as soon as possible, we will just need a work capabilities form completed. I said that when you came in here recently you said to me that Demetri's (sic.) health was not a concern for you returning to work, with the current Covid outbreaks is that still the case.?" (sic.) Julie said, I can definitely return to work, there is no concern at all to Demetri's (sic.) health at all, the only reason I have not come back is because Tom Bell told be (sic.) that I couldn't until I had clearance from Demetri's (sic.) specialist, the letter I had already got from the GP back in October 2019 giving clearance wasn't good enough. I have emails to prove this.
…
Julie said, "I even told Tom I could work on the phones, and Tom said he would find out if that was an option, but I never heard from him."
…
Julie said, "I just feel weird, like HR are against me. I will have to speak to my solicitor. I might email her today. Luckily I have emails saying that I was prepared to come back to work and proving I could come back to work". You know I would be quite happy to come back and just concierge."
[57] Exhibit 1 attachment D-14.

On 20 April 2021, Dr Chan completed an RACQ Work Capabilities Form indicating Ms Rutherford was suited to working three hours per day, two days per week, for a total of six hours per week to start.[58] This is substantially less time than Ms Rutherford was approved to work prior to her period of leave. A further RACQ Work Capabilities Form was completed by Dr Sharma on 20 July 2021, indicating Ms Rutherford was suited to work the same period as recommended by Dr Chan.[59] Both Dr Chan and Dr Sharma's completed forms indicated Ms Rutherford was unable to sit for longer than 20-30 minutes at a time, and she would need to alternate between sitting and standing.
[58] Exhibit 1 attachment A-19.
[59] Exhibit 1 attachment A-20.
Attempted return to work
Ms Rutherford returned to work on 4 May 2021 but was not working in her substantive role.[60] Ms Rutherford was undertaking on-line training,[61] followed by duties of a concierge role. Ms Rutherford considered she was not permitted to return to her usual role and was instead 'put' in the role of concierge.[62] The role of concierge was described as a 'very basic meet and greet' role.[63] Unlike a person employed in a Member Engagement role, a designated concierge would not deal in insurance products or financial services.[64]
[60] T1-54 ll 32-34.
[61]Exhibit 1 attachment C-2. Her training records indicate she completed 35 training modules on 15 separate days between 4 May and 7 July 2021.
[62] T1-11 l 47-48.
[63] T1-15 l 38 – T1-16 l 5.
[64] T1-57 ll 12-14.
Ms Jennifer Vaughn (Member Engagement Manager) gave evidence that Ms Rutherford was put into the concierge role so that she could return to work, and to allow standing and sitting and alternating workspace.[65] Ms Barbara Easton (HR Business Partner) gave evidence that she understood from the medical reports it would be a risk for Ms Rutherford to return to her previous role, and RACQ had attempted to make reasonable adjustments and considered other roles.[66] This view was supported by Mr Schultz.[67] In cross-examination of Ms Rutherford, while indicating she was not sure what training the concierge role required, she agreed with the proposition that as she was not an authorised representative while undertaking concierge duties, those duties must not require a person to be authorised.[68]
[65] T1-104 ll 35-38.
[66] T2-14 ll 26-28; 2-20 ll 48-49; 2-24 ll 5-9; 2-25 ll 1-12.
[67] T2-127 ll 33-35.
[68] T1-57 ll 2-10.
Ms Rutherford understood that 'changes while she was on leave, including introduction of anti-hawking laws and mandatory scripting, meant she would have to un-learn things she already knew about selling insurance products'.[69] She also had never done banking training,[70] and a further 10 weeks of 'full-time' training at Eight Mile Plains would be required in order to return to a Member Engagement role.[71] The training to resume her role was required given the period of time Ms Rutherford had been away from work and her previous certification as an authorised representative had lapsed.[72] Irrespective of the time away from work, as a Customer Service Specialist, she would need to undertake training in banking products.[73]
[69] T1-106 l 5-10.
[70] T1-57 ll 24-26.
[71] T1-51 ll 40-44; T3-31 ll 33-42.
[72] T3-32 ll 10-11.
[73] T3-34 ll 5-6.
Ms Rutherford considered that she was set up to fail, as HR was aware of her impairment when she was put 'permanently' in the concierge position.[74] However, she acknowledged in cross-examination that she said she would be happy to return in that role.[75] Ms Rutherford further considered that she was treated unfavourably, being refused a reduction in working hours and workstation adjustments. Mr Schultz and Mr Turner (Manager Health and Safety) confirmed that an anti-fatigue mat and Varidesk were considered but deemed unsuitable in a retail branch environment.[76] Regarding further reductions in hours, RACQ noted that by this point Ms Rutherford was only working six hours per week but being paid at her usual pay rate for 25 hours.[77]
[74] T1-11 l 48 – T1-12 l 3.
[75] T1-52 ll 33-49; T1-54 ll 15-30.
[76] T2-102 ll 1-30; T2-132 ll 33-38; T2-134 ll 7-27.
[77] T1-57 l 40; T1-58 ll 7- 50; T1-59 l 36; T1-60 l 14.

Ms Rutherford ceased work entirely at the end of July 2021.[78] On 5 August 2021, Dr Chan completed a further RACQ Work Capabilities Form, which indicated Ms Rutherford was unfit for work with no proposed date of review. Dr Chan considered that after three and a half months of working reduced hours both Ms Rutherford's setup and concierge role were unsuitable, causing Ms Rutherford continuing pain. Future training requiring constant sitting was also deemed unsuitable.[79]
[78] T1-58 ll 32-33.
[79] Exhibit 1 attachment A-21.
Ms Rutherford indicated there was a second period of non-contact from RACQ from 5 August 2021 until being contacted by Ms Easton on 25 January 2022. The evidence however shows that Ms Rutherford's line manager at this time Ms Vaughn initiated regular contact with Ms Rutherford, as would usually be the case. Ms Vaughn prepared file notes of these conversations with Ms Rutherford at the request of Mr Schultz.

A file note taken by Ms Vaughn on 22 November 2021 recounts the following interaction with Ms Rutherford:[80]
Julie's comments – Has some emotional days, not being at work is like ending a 35 year relationship, so some days are pretty sad and depressing. Currently feels uncomfortable and feels uneasy about the current situation. Feels in limbo between what is happening and not being at work and who she can reach out to as it is not the ideal situation for her to be in.
[80] Exhibit 1 attachment D-16.

An email from Ms Vaughn on 12 January 2022, to Ms Easton, noted the following conversation with Ms Rutherford:
Julie then raised a few points and has requested some information about and would like a call from HR about the following.
-Julie wanted information about why Tom said she was required to provide a letter in order for her to return to work, but when Nicky took over the branch this was not required. I mentioned that was out of my scope and I would forward the question on.
-Julie would also like to know what is going to happen going forward, is she going to be made redundant, does she need to resign etc.
-Julie mentioned even if she was to return she does not think she would be mentally able to relearn the job as so much has now changed, and this would cause her great anxiety.
Following the email of 12 January 2022, Ms Vaughn was instructed to cease contacting Ms Rutherford. In cross-examination Ms Vaughn acknowledged she was aware that Ms Easton was now Ms Rutherford's case manager.

On 31 January 2022, RACQ wrote to Ms Rutherford. RACQ stated that due to Ms Rutherford's time outside of the business, she would require comprehensive training of system, product, legislative and regulatory changes and bank training. Some components would require her to be able to be trained for periods of more than 25 hours per week.[81] RACQ noted it needed to determine whether Ms Rutherford would be safe in the workplace and requested that she provide medical advice regarding her work capacity, restrictions, necessary accommodations for consideration, treatment affecting her ability to perform, and the prognosis of her condition. A medical questionnaire was provided to Ms Rutherford for this purpose. Ms Rutherford was sent a letter requesting this information on 2 February 2022.[82]
[81] Exhibit 1 attachment A-22, p 1.
[82] Exhibit 1 attachment B-22.
Events leading to the termination of Ms Rutherford's employment
Dr Chan completed the medical questionnaire on 3 March 2022, indicating Ms Rutherford was unable to return to work indefinitely.[83] Dr Chan stated the proposal of Mr Zietek in November 2019 for Ms Rutherford to rotate between desks was not feasible, as change was too frequent and inconvenient. Dr Chan stated Ms Rutherford could not work in the circumstances, as proposals for a single sit-stand desk and anti-fatigue mat were rejected. The completed questionnaire was provided to RACQ on 9 March 2022.[84]
[83] Exhibit 1 attachment A-23.
[84] Exhibit 1 attachment B-25.
Ms Easton had several telephone calls with Ms Rutherford to discuss her options including proposed termination of employment. Unbeknownst to RACQ until these proceedings, these calls were recorded by Ms Rutherford.[85] In the recordings, Ms Easton raises with Ms Rutherford that her medical questionnaire finds her to be unable to return to work indefinitely. Medical termination and resignation were both canvassed with Ms Rutherford. Ms Rutherford questioned whether medical redundancy was possible and alternatively asked if there were other roles available for her.
[85] Exhibit 3.

On 22 March 2022, RACQ wrote to Ms Rutherford, asking her to show cause why her employment should not be terminated on medical grounds, in circumstances where RACQ believed Ms Rutherford was unable to meet the inherent requirements of her role.[86] In a further call with Ms Easton, Ms Rutherford ultimately accepted termination on medical grounds. Ms Rutherford stated, "you did a really great job, I couldn't imagine being terminated by anyone better."[87]
[86] Exhibit 1 attachment B-26.
[87] Exhibit 3.

Ms Rutherford's employment was terminated on 1 April 2022.[88]
[88] Exhibit 1 attachment B-28.
Ms Rutherford's other legal proceedings

Whilst on her period of unpaid leave in 2020-2021, Ms Rutherford saw Dr Brown, who completed a Workers Compensation Medical Certificate on 23 October 2020, finding her "unable to work at all from 8 October 2019 to 8 January 2021."[89]
[89] Exhibit 1 attachment A-13.
Ms Rutherford filed a s 132A application (Assessment of Degree of Permanent Impairment 'DPI') with WorkCover on 4 November 2020,[90] which was accepted on 16 March 2021.[91] This application was lodged following rejection of her 'out of time' claim for workers compensation. In her evidence, Ms Rutherford indicated she was attempting to claim workers compensation as she suffered a temporary aggravation of her injury whilst on leave later in June 2020 and was concerned about future loss of bladder control and risk of paralysis.[92]
[90] Exhibit 1 attachment E-1.
[91] Exhibit 1 attachments D-13, E-1 and E-3.
[92] T1-44 ll 35-46 and T1-45 ll 1-16
Associated with the s 132A WorkCover claim, and considered by RACQ personnel in the substantive matter, were the following reports:
•An independent medicolegal report was produced by Dr Foxcroft on 19 November 2020. It relevantly found Ms Rutherford developed a clinically significant Adjustment Disorder with Mixed Depressed and Anxious Mood, following the August 2019 workplace injury.[93] Dr Foxcroft found her back injury was the sole cause of her psychiatric impairment, and described her as a reasonable and believable historian.[94] Dr Foxcroft however described Ms Rutherford's prognosis as poor, and scored her with a whole person impairment of 7% on the PIRS scale.[95] In an addendum, Dr Foxcroft notes due to Ms Rutherford's psychological injuries, she had limitations in the type of work she could perform, requiring lower stress positions due to poor concentration and decreased efficiency.[96]
•Another independent medicolegal report of Dr Tomlinson on 19 February 2021, estimated Ms Rutherford had a 13% whole person impairment relating to her thoracic spine injury.[97]
•A further independent medicolegal report of Dr Beheshti estimated Ms Rutherford had a 0% whole person impairment relating to a work-related aggravation of a pre-existing degenerative thoracic spine condition. Ms Rutherford's incapacity for work as it related to her illness stopped by the end of October 2019, when she was cleared to work on suitable duties. Dr Beheshti opined that since mid-March 2020, the most important barrier for Ms Rutherford's return to work was her husband's health and vulnerability to COVID-19.[98]
•On 4 March 2021, an occupational therapy report was completed by Dr Micah Perez, which concluded it would be appropriate for Ms Rutherford to work part-time in the future, however noted she was at a disadvantage on the open labour market.[99] Ms Rutherford's employment would require regular breaks to allow her to alternate her posture and would need a specialist workstation assessment and the provision of ergonomic equipment.[100]
[93] Exhibit 1 attachment A-14, p 8.
[94] Ibid p 9.
[95] Ibid pp 10-13.
[96] Exhibit 1 attachment A-15.
[97] Exhibit 1 attachment A-16, p 3.
[98] Exhibit 1 attachment A-17, p 10-12.
[99] Exhibit 1 attachment A-18, p 8.
[100] Ibid.

A personal injury claim against RACQ was filed in the District Court on 14 October 2021.[101] This claim concerned injuries to Ms Rutherford's back, her psychological injuries, and associated losses.[102] This matter was resolved in a Deed of Release executed on 5 January 2022.[103] Details of the Deed are discussed as relevant later in this Decision.
[101] Exhibit 1 attachment E-5.
[102] Exhibit 1 attachment E-6.
[103] Exhibit 1 attachment E-6.

Anti-Discrimination claim details

Ms Rutherford filed a complaint in the Queensland Human Rights Commission ('QHRC') on 31 May 2022, alleging impairment discrimination in the area of work.
The complaint was accepted pursuant to ss 136 and 141 of the Anti-Discrimination Act 1991 (Qld) ('AD Act') including 'out of time' allegations.

The parties participated in conciliation before the QHRC, however the matter was not resolved. It was referred to the Queensland Industrial Relations Commission ('the Commission') on 8 September 2023, pursuant to s 166(1)(a) of the AD Act.
Ms Rutherford's Statement of Facts and Contentions ('SOFC') was filed in the Commission on 17 November 2023. It contained additional claims of victimisation and requests for unnecessary information.
Prior to Hearing, I made an interlocutory decision granting RACQ leave to amend their SOFC following the parties' filed Outlines of Argument.[104]
[104] Rutherford v RACQ Operations Pty Ltd [2024] QIRC 145.
RACQ asserted Ms Rutherford's SOFC was vague, poorly particularised and did not support any cause of action. Despite this RACQ made a coherent response to the parts of Ms Rutherford's case they considered relevant to the AD Act. At Hearing, significant documentary and oral evidence was given and examined, related to the core issues of Ms Rutherford's complaints and exemptions argued, in the event the Commission upheld any part of those complaints.
In response to Ms Rutherford's closing submissions, RACQ indicated Ms Rutherford is seeking to prosecute a claim of direct discrimination based on 'family responsibilities' or alternatively 'relation to a person with an impairment' that is not contained within her SOFC. The alleged conduct related to Ms Rutherford being prevented from returning to work in June 2020 unless she supplied a medical clearance from her husband's doctor related to risks to his health.

While not explicit, the allegation is implicit in the facts and contentions related to the alleged request for unnecessary information and the contention that the request was used for the discriminatory purpose of preventing her return to work because of her husband's health concerns.[105] RACQ squarely denied they prevented Ms Rutherford's return to work at all, let alone for any discriminatory purpose. Further, as acknowledged by RACQ in their closing submissions and at Hearing, significant parts of the documentary and oral evidence adduced and examined related to this question as a real issue in the proceeding.[106]
[105] Fact 7 and Contention 3 of Complainant's Statement of Facts and Contentions, filed 17 November 2023.
[106] For example T1-32 ll 35-35.
The key test as to whether a matter subject to an argument on pleadings is whether it is a 'real issue in the proceeding'.[107] Any relevant controversy must have already been identified as a matter in dispute between the parties.[108] The court should not take an unduly narrow approach as to what constitutes the 'real issues', which may extend beyond the pleadings.[109] However, they do not include entirely new issues never previously agitated between the parties.[110]
[107] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27.
[108] Ibid 205.
[109] Ibid 209.
[110] Ibid 205.

I conclude this is not an entirely new issue never previously agitated between the parties. It was clearly agitated in the documentary and oral evidence before the Commission, even if inadequately pleaded.
The specific addition of the alternate attribute of 'relation to a person with an impairment' does not appear to take us anywhere. Ms Rutherford's relation to a person with an impairment arises from her family responsibilities as the full-time carer of her husband, who has an impairment. The two attributes arise from the same factual circumstances, and the alleged conduct is the same.
Ms Rutherford has ultimately made allegations on numerous bases for direct discrimination by RACQ in the work area, as well as allegations for indirect discrimination, victimisation, and requesting unnecessary information.
Ms Rutherford's closing submissions also refer to matters that are completely outside of the scope of the AD Act.[111] Those matters will not be considered further as they are not within the jurisdiction of the Commission in the present matter. I note RACQ has limited themselves to responding to the matters within scope of this proceeding.[112]
[111] Closing Submissions of the Complainant, filed 26 August 2024. See paragraphs [1] – [6] on page 3-4 ('Unfair dismissal'), paragraphs [1]-[2] of page 5 ('Breach of Privacy'), paragraphs [1]-]2] of pages 5-6 ('Breach of Enterprise Bargaining Agreement'), paragraph [1] of page 7 ('Defamation'), paragraphs [1] - [10] of pages 7-9 ('Breach of Workplace Rights, Negligence and Breach of Duty of Care').
[112] Closing Submissions of the Respondent, filed 4 October 2024, [5].
It is not disputed between the parties that the Commission has jurisdiction to hear and decide Ms Rutherford's complaint.
Statutory framework relevant to the complaints
(a) Discrimination at work in relation to certain attributes
Section 6 of the AD Act sets out a purpose of the Act being to promote equality of opportunity by protecting everyone from unfair discrimination in certain areas of activity. This is to be achieved by prohibiting discrimination that is on a ground set out in part 2; of a type set out in part 3 and in an area of activity set out on part 4; unless an exemption set out in part 4 or 5 applies.
Chapter 2 part 2 identifies prohibited grounds of discrimination. It is unlawful to discriminate in the workplace on the basis of certain attributes.
Section 7 sets out the attributes as follows:
7       Discrimination on the basis of certain attributes prohibited
The Act prohibits discrimination on the basis of the following attributes-
            …
            (h)       impairment;
            …
            (p)     family responsibilities;
(q) association with, or relation to, a person identified on the basis of any of the above attributes.
The relevant meanings of 'family responsibilities' and 'relation' is set out as follows:
family responsibilities, of a person, means the person's responsibilities to care for or support –
(a) A dependant child of the person; or
(b) Any other member of the person's immediate family who is in need of care or support.

…
relation, in relation to a person, means relation to the person by blood, marriage, affinity or adoption, and includes a person who is wholly or mainly dependent on, or is a member of the household of, the first person.

Discrimination on the basis of an attribute is defined in part 2 s 8 of the Act.

8 Meaning of discrimination on the basis of an attribute

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of –
(a)     a characteristic that a person with any of the attributes generally has; or
(b)    a characteristic that is often imputed to a person with any of the attributes; or
(c)     an attribute that a person is presumed to have, or have had at any time, by the    person discriminating; or
(d)    an attribute that a person had, even if the person did not have it at the time of the discrimination.

Example of paragraph (c) –

If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.

Chapter 2 part 3 defines prohibited types of discrimination. Section 9 prohibits direct and indirect discrimination.
Direct discrimination is defined in s 10:
10 Meaning of direct discrimination
(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.
…[113]
[113] Examples are omitted.
(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 that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
Indirect discrimination is defined in s 11:
11 Meaning of indirect discrimination
(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.
…
Chapter 2, part 4 of the Act identifies the areas of activity in which discrimination is prohibited and exemptions that apply in relation to those areas. Division 2 Subdivision 1 sets out prohibitions in work and work-related areas. Relevantly s 15 deals with the work area:
15 Discrimination in the work area
(1)A person must not discriminate –
(a)in any variation of the terms of work; or
(b)in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
(c)in dismissing a worker; or
(d)by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
(e)in developing the scope or range of such a program; or
(f)by treating a worker unfavourably in any way in connection with work.
(2)In this section –
dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.
Subdivision 2 sets out the exemptions for discrimination in work and work-related areas. Relevantly s 25, s 35 and s 36 provide:
25        Genuine occupational requirements
(1) A person may impose genuine occupational requirements for a position.
           …
35        Special services or facilities required
(1)It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if –
(a)     The other person would require special services or facilities; and
(b)    The supply of special services or facilities would impose unjustifiable hardship on the first person.
(2)Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5.

36 Circumstances of impairment

(1) It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if the circumstances of the impairment would impose unjustifiable hardship on the first person.
(2)Whether the circumstances of the impairment would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including for example –
(a) the nature of the impairment; and
(b) the nature of the work or partnership.

Section 5 of the AD Act defines unjustifiable hardship as follows:

5 Meaning of unjustifiable hardship
Whether the supply of special services or facilities would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example —
(a) the nature of the special services or facilities; and
(b)the cost of supplying the special services or facilities and the number of people who would benefit or be disadvantaged; and

(c)      the financial circumstances of the person; and
  (d)      the disruption that supplying the special services or facilities might cause; and
  (e)      the nature of any benefit or detriment to all people concerned.

Example of application in the work area (section 35)
Company R refuses to employ A who uses a wheelchair because there is no appropriate access to the place of employment. R may only discriminate against A on the basis of impairment if supplying access would be very expensive or would impose another significant hardship on R.

Chapter 2, Part 5 of the AD Act sets out the general exemptions for discrimination. Those relevant to this matter are as below:

103 Explanatory provision (exemptions)
It is not unlawful to discriminate with respect to a matter that is otherwise prohibited under part 4 if an exemption in sections 104 to 113 applies.

108 Workplace health and safety

A person may do an act that is reasonably necessary to protect the health and safety of people at a place of work.

(b) Victimisation

Ms Rutherford has alleged victimisation following lodgement of her personal injury claim. Section 129 of the AD Act provides that a person must not victimise another person. Victimisation is defined in the following section:
130 Meaning of victimisation
(1)victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant) —
(a)because the complainant, or a person associated with, or related to, the complainant —
(i)refused to do an act that would amount to a contravention of the Act; or
(ii)in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
(iii)is, has been, or intends to be, involved in a proceeding under the Act against any person; or
(b)because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).
(2)In this section, a reference to involvement in a proceeding under the Act includes—
(a)making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
(b)involvement in a prosecution for an offence against the Act; and
(c)supplying information and producing documents to a person who is performing a function under the Act; and
(d)appearing as a witness in a proceeding under the Act.
(c) Request for unnecessary information
Section 124 of the AD Act provides that a person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based. The section includes a number of exceptions where requests are necessary under other legal provisions or orders:
124     Unnecessary information
(1)A person must not ask another person, either orally or in writing, to supply   information on which unlawful discrimination might be based.
(2)Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by-
(a)     an existing provision of another Act; or
(b)    an order of a court;
…
(3)It is a defence for a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.
(4)In this section –
existing provision means a provision in existence at the commencement of this section.
Example –
An employer would contravene the Act by asking applicants for all jobs whether they have impairments, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.
Vicarious liability
Section 133 of the AD Act deals with vicarious liability. It states:
133 Vicarious liability
(1)If any of a person's workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
(2)It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.
RACQ is the only named Respondent to the proceedings. RACQ denied it is vicariously liable as alleged or at all, as the allegation is unintelligible and they took reasonable steps to prevent their employees from contravening the Act. In practical terms, RACQ has defended the actions of its employees as they related to Ms Rutherford in the present matter.
Burden of proof
Section 204 of the AD Act provides that it is for Ms Rutherford to prove, on the balance of probabilities, that RACQ contravened the Act. Any exemptions RACQ seeks to rely on must be raised by RACQ and proved on the balance of probabilities that it applies, per s 206.
The standard of evidence is summarised in Briginshaw v Briginshaw, which provides that in determining whether evidence allows that degree of persuasion that amounts to proof of an allegation on the balance of probabilities, the Tribunal of fact must bear in mind the gravity of the allegation made and the seriousness of the consequences to a party against whose interest any adverse finding might be made.[114] The decision maker must be reasonably satisfied or feel an actual persuasion or feel comfortably satisfied that they have reached the right decision.[115]
[114] (1938) 60 CLR 336.
[115] Ibid.
Section 205 further provides that for allegations of indirect discrimination, RACQ must prove, on the balance of probabilities, that a term complained of is reasonable.

Evidence and submissions

A three-day Hearing commenced on 1 July 2024. Ms Rutherford's written closing submissions were filed on 26 August 2024. RACQ's written closing submissions were filed on 4 October 2024. Ms Rutherford's closing submissions in reply, dealing with matters of law only, were filed on 22 October 2024.
The evidence of eight witnesses and four exhibits (including three volumes of documents and a USB containing four audio recordings), together with the written closing submissions of each party, were considered in this Decision. While medical records and reports were tendered by agreement and referred to by both parties, no expert medical evidence was adduced.
What are the key issues to be determined?
a) Direct discrimination
There are four questions to be decided in relation to direct discrimination:
i.Does Ms Rutherford have an attribute of having an impairment or family responsibilities/relation to a person with an impairment?
ii.Was Ms Rutherford treated, or proposed to be treated, less favourably than another person (either a real or hypothetical comparator) without said attributes, in circumstances that are the same or not materially different?
iii.If less favourable treatment occurred, was the substantial reason discriminatory?
iv.Is RACQ able to establish a defence under the AD Act?
b) Indirect discrimination
There are three questions to be decided in relation to indirect discrimination:
i.Did management impose a term or terms with which a person with the relevant attributes does not or cannot comply with?
ii.Would a higher proportion of people without the relevant attributes comply or be able to comply to the term/s?
iii.Is RACQ able to demonstrate the term/s were reasonable?

The claim for economic loss

Ms Rutherford claims $624,078 for loss of earnings, representing what she calculated her wages would have been had she continued working with RACQ from when she stopped working on 5 August 2021 until her projected retirement at the age of 67 based on a 25-hour working week. She seeks a further $62,407.80 in superannuation (proposed orders five and six).
This claim relates to the period from which Ms Rutherford was certified as incapacitated for work in August 2021 through to her termination of employment on 1 April 2022. It then extrapolates the lost earnings from date of termination through to purported age of retirement. There is no substantiated contravening conduct relevant to this claim. Any loss or damage said to be caused by the termination, or, failure to provide particular workplace adjustments, is not of itself compensable. The only factor that may be relevant is the extent to which the contravening conduct in relation to Ms Rutherford not returning from leave in 2020 contributed to the absence which forms part of the reason for the termination. This relates to the impact of the earlier contravening conduct rather than the termination itself.
Ms Rutherford also draws attention to lost income between 8 June 2020 and 11 May 2021 during which she was on unpaid leave. She describes this period as being solely due to RACQ's refusal to let her return to work.[203] While I have rejected that assertion this claim does relate to a period where I have found contravening conduct. In these circumstances consideration of the question of double recovery for economic loss is required.
[203] T 1-11 ll 38-43. Complainant's Closing Submissions, filed 26 August 2024.
RACQ notes that Ms Rutherford has already received a material sum of money, in the amount of $210,000, in a settlement for her common law claim captured by a Deed of Release.[204]
[204] Respondent's Closing Submissions, filed 4 October 2024, [40].
The Deed of Release relevantly provides:
1. THE SETTLEMENT SUM

1.1WorkCover on its own behalf and on behalf of the Employer shall pay to the Claimant the sum of $210,000.00 ('the settlement sum') in full and final settlement of the claim.

…

5. RELEASE AND INDEMNITY

5.1In consideration of payment by WorkCover of its obligations described in clauses 1 and 2, the Claimant:

(a)releases and discharges WorkCover and the Employer from any liability howsoever arising out of the facts and circumstances of the subject of the claim; and

(b)indemnifies WorkCover and the Employer against all claims by the Claimant which have arisen or which may arise in the future in relation to the facts and circumstances the subject of the claim.

6. BAR TO ACTION

6.1This agreement may be pleaded in bar to any action, claim, demand or proceeding brought now or in the future by the Claimant or on the Claimant's behalf having arisen or which may arise in the future out of the facts and circumstances the subject of the claim.

The Deed as executed contemplates the common law claim. RACQ raises that if Ms Rutherford was in these proceedings to be compensated for her past and future economic loss, she would be recovering the same loss twice, amounting to double recovery.
Losses must be proved with a reasonable degree of certainty.[205] At common law, the basic principle is at its core:
A plaintiff is under no duty to mitigate his loss, despite the habitual use by the lawyers of the phrase 'duty to mitigate'. He is completely free to act as he judges to be in his best interests. On the other hand, a defendant is not liable for all losses suffered by the plaintiff in consequence of his so acting. A defendant is only liable for such part of the plaintiff's loss as is properly to be regarded as caused by the defendant's breach of duty.[206]
[205] Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22, [38].
[206] Sotiros Shipping Inc and Aeco Maritime SA v Sameiet Solholt, The Solholt [1983] 1 Lloyd’s Rep 605, 608.
Put simply, a respondent is not liable for losses they have caused, for which they are not responsible.[207] A respondent cannot be liable for losses caused by a complainant's own unreasonable conduct. Where a complainant makes a decision increasing their loss or forgoes opportunities to mitigate loss, they are responsible for that decision.
[207] Wallace v Kam [2013] HCA 19, [24], [37], citing South Australian Asset Management Corporation & Ors v Eagle Star Insurance Co Ltd [1997] AC 191, 213-214.
Where losses have been recovered through a settlement or an order of a court, the equitable rule against double recovery prevents a person from recovering more than once for a given loss resulting from a breach of a given obligation.[208] While statutory rights such as those in the AD Act cannot be waived or compromised, it does not stop parties from waiving litigation on foot or in contemplation.[209] In interpreting whether a deed of release shields the employer, the majority of the High Court in Grant v John Grant Sons Pty Ltd said the following:[210]
The question is whether upon a proper interpretation of the deed the general release clause should be restrained to matters in dispute within the meaning of these recitals. The question depends primarily on the application of the prima facie canon of construction qualifying the general words of a release by reference to particular matters which recitals show to be the occasion of the instrument. But it is also affected by the general tenor of the deed.
[208] Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516, 554 [99]; [2001] HCA 68, endorsed in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28.
[209] Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd [2003] FCAFC 18, [17].
[210] Grant v John Grant Sons Pty Ltd (1954) 91 CLR 112; [1954] HCA 23.
The recitals of the Deed specify that the Deed is made in relation to personal injuries suffered by Ms Rutherford in the course of her employment, and the matters raised in her notice of claim. Her notice of claim relevantly provides:[211]
[211] Exhibit 1 attachment E-5.
12.The plaintiff has suffered past economic loss and claims the sum of $31,545.25 calculated as follows:
…
(b)the plaintiff worked on average 20 hours per week;
(c)the plaintiff was earning approximately $655.25 net per week
(d)the plaintiff has been unable to return to her pre-injury employment as a result of her personal injuries;
(e)the plaintiff has only been cleared to work 15 hours per week;
(f)the plaintiff has been advised by the defendant that this reduction in hours cannot be accommodated in the long term;
…
(h)in March 2020, the plaintiff was unable to work from home as she could not be provided with a workstation set up that was appropriate for her condition and in line with her return to work program;
…
(k)the plaintiff claims economic loss as follows:
…
(v)from 30 June 2020 to 1 July 2021:
A.the plaintiff ought to have earned $29,751.00 net;
B.the plaintiff's actual earning for this period were $6,248.00;
C.the plaintiff claims a loss of $23,503.00
(vi)from 1 July to 31 August (2021) the plaintiff suffered a loss of earnings of $572 net per week and claims $4576.00 for this period;
(vii)the plaintiff claims a total past economic loss in the amount of $31,545.25
13.The plaintiff claims a loss of past occupational superannuation benefits, calculated at 9.5% of her past economic loss in the amount of $2,996.80.
14.The plaintiff has suffered a permanent impairment of her earning capacity and claims the sum of $287,144.00 informed by the following assumptions and calculations:
…
(r)the plaintiff is currently aged 54 with a remaining work life expectancy of 13 years until a retirement age of 67;
(s)the plaintiff claims an ongoing loss of $572.00 net per week for her remaining work life expectancy of 13 years (multiplier 502) which yields $287,144.00.
15.the plaintiff claims a loss of future occupational superannuation benefits calculated at the rate of 11.50% in the sum of $33,021.56.
…

Ms Rutherford has accepted a financial settlement in her common law claim for lost wages and superannuation for the same periods she claims unpaid wages in the present matter. In the common law matter she claims her work related injury prevented her from work causing the economic loss and in the present matter she argues the employer's discriminatory conduct prevented her from work causing the economic loss and ultimately led to her termination of employment. Having accepted and received an amount to compensate her for loss of past and future wages and superannuation Ms Rutherford is not entitled to be compensated again for the same loss, even though argued on a different basis. I will not make orders that amount to double recovery.
Any award for other damages arising from the found discriminatory conduct is not similarly constrained.
The claim for non-economic loss
Ms Rutherford claims general damages of $30,000 and aggravated damages of $30,000 (proposed orders three and four).
An award for general damages is to compensate for the injury suffered, in consideration of the general standards prevailing in the community.[212] Significant value is placed on losses of enjoyment of life and any experiences of pain and suffering.[213]
[212] O'Brien v Dunsdon (1965) 39 ALJR 78, 78.
[213] Richardson v Oracle Corporation Australia Pty Ltd (2014) 312 ALR 285, [102].
With regards to aggravated damages, the key principle is whether there is a need for additional compensation for the injured feelings of the complainant where their sense of injury resulting from a wrongful act is justifiably heightened by the manner in which or the motive for which the respondent did it.[214] They compensate the complainant where harm was aggravated by the manner in which the harm was done, or the manner in which the respondent conducted proceedings.[215]
[214] Wotton v State of Queensland (No 5) [2016] FCA 1457.
[215] Ibid [1731] (Mortimer J).
In addition to economic loss caused by the contravening conduct the damage caused by the imposed absence linked to the unlawful information request was financial distress as Ms Rutherford was the sole income earner, having to apply on the basis of hardship to access money from her superannuation. This was humiliating, embarrassing and painful for a person who had loyally worked 36 years for RACQ.
The imposed requirement that prevented Ms Rutherford from returning to her in-branch role in June 2020 also contributed to an extended absence from work that in total was 14 months. The total absence being longer that 12 months set in place the requirement for more intensive training to be able to regain her authorisation to sell insurance products which was a requirement for Ms Rutherford to perform her substantive role. It also contributed to the consideration of incapacity to undertake the inherent requirements of the role evidenced by significant absence over a two year period that formed part of the decision for termination.
The maximum relevant period is from 11 June 2020 when Ms Rutherford should have returned from leave, but for the contravening conduct, and 4 May when she returned to work. However, I consider the following factors to be evidence of Ms Rutherford also contributing to the delay. Ms Rutherford took no action to advocate on her own behalf even after the phone call with Mr Bell on 3 September 2020 where she made it clear she wanted to return and he was following up alternatives to make that happen. Waiting one or two months may be explicable but six is not. Then, when in March 2021, Ms Edwards, the acting manager who replaced Mr Bell offered to follow up to get her back to work, Ms Rutherford told her not to. In the telephone call on 7 April 2021 with Ms Edwards, Ms Rutherford indicates she needs to speak to her solicitor in relation to any return to work. This leads me to determine the maximum absence period attributable to the contravening conduct is six months.
The conduct had no impact on the requirement to undertake banking training which arose from integration of the insurance and banking parts of the business. This was also an inherent requirement of the role.
In other AD matters where a contravention of section 124 is established, it is treated in most cases as forming part of any award for general damages. I will adopt this approach.
Ms Rutherford's pain, hurt and suffering is amplified by her belief that despite her longstanding service as a valued RACQ employee she has been abandoned and attacked by the company she grew up in. She was mortified and humiliated that Mr Payten had inferred to her union that she was lying about having been kept from work. Other factors such as Ms Vaughn being told not to organise a farewell lunch for Ms Rutherford following her termination and being excluded from attending the Milestones lunch for retired and long serving employees have incensed Ms Rutherford and she finds it very hurtful and distressing.
Aggravation is also argued based on the strategic employment offer made to Ms Rutherford following referral of her claim to the QIRC, and confirmed at Hearing by Mr Payten as a tactic to call her bluff about phone based work and put a pin in any award for economic loss.
This must be weighed against the conduct of Ms Rutherford secretly recording telephone conversations with Ms Easton, purportedly for her own use, but tendered in proceedings. While not illegal and certainly not unhelpful to the Respondent's case, it does represent a well-recognised breach of trust in the employment relationship. Ms Rutherford argues that trust had already been demolished by her employer.
Weighing this up and acknowledging that the substantiated conduct, whilst contravening the Act, was not motivated by a desire to cause harm, it has done so. For that reason, I award general damages only of $25,000.

Other claims

Ms Rutherford further seeks to have her termination re-classified as retirement and be added to RACQ's honorary staff programs, receiving the associated benefits. She further seeks that the consequences of RACQ's breaches of the Act particularly as they relate to impairment become public knowledge. The termination has not been established as contravening conduct, so there is no basis for me to make the orders sought. Discrimination based on the attribute of 'impairment' has not been made out.
I order accordingly.
Orders
1.That the complaint of requesting unnecessary information is substantiated.
2.That the complaint of direct discrimination on the basis of family responsibilities as carer for a person with an impairment is substantiated.
3.That the complaints of direct discrimination on the basis of impairment are dismissed.
4.That the complaints of indirect discrimination are dismissed.
5.That the complaint of victimisation is dismissed.
6.That the Respondent pay to the Complainant, within 28 days:
a.$25,000 for general damages.
7.That the parties are to bear their own costs.

[2025] QIRC 207

7 August 2025