State of Queensland (Queensland Health) v Chivers
[2013] QCATA 256
•23 September 2013
| CITATION: | State of Queensland (Queensland Health) v Chivers [2013] QCATA 256 |
| PARTIES: | State of Queensland (Queensland Health) (Applicant) |
| V | |
| Rebecca Chivers (Respondent) |
| APPLICATION NUMBER: | APL158-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 10 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J B Thomas Judicial Member Ms A Fitzpatrick, Member |
| DELIVERED ON: | 23 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal is allowed. 2. The decision of the Tribunal of 10 April 2012 in application number ADL024-10 is set aside. 3. In lieu of that order the claim is dismissed. 4. Leave granted to the parties to make an application and submissions on costs on or before 31 October 2013. |
| CATCHWORDS: | APPEAL – ANTI-DISCRIMINATION – where respondent registered nurse complained of unlawful workplace discrimination – where respondent was not capable of working night shifts due to impairment – where term of employment provided that registered nurses working in 24/7 wards must possess the ability to work all shifts – where Tribunal allowed respondent’s complaint on the basis of indirect discrimination – where applicants seek to appeal that decision – whether term reasonable – whether ability to work across all shifts was a genuine occupational requirement Anti-Discrimination Act 1991 (Qld), s 7(h), s 10, s 11(1), s 15(1)(f) s 25, s 205 Australian Iron & Steel Proprietary Limited v Banovic and others (1989) 168 CLR 165, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | J E Murdoch QC with C J Murdoch instructed by Minter Ellison |
| RESPONDENT: | C Ronalds SC with J Merrell instructed by Slater Gordon Lawyers |
REASONS FOR DECISION
HON J B THOMAS , JUDICIAL MEMBER
Index
Jurisdiction [1]
Facts [9]
Basis of Determination of Primary tribunal [46]
Legislation [61]
Grounds of Appeal [64]
Whether a "genuine occupational requirement" [65]
Comparator Test Error? [114]
Whether Term "not reasonable"? [125]
Costs [136]
Determination and Orders [138]
Jurisdiction
This is an appeal against a decision of a primary QCAT Tribunal exercising jurisdiction pursuant to s 174A of the Anti-Discrimination Act 1991 (“AD Act”).
The respondent (Ms Chivers) a qualified nurse, complained that her employer, Queensland Health, had contravened the AD Act, and sought compensation.
The appellant Queensland Health will be referred to as “the employer” and the respondent as “Ms Chivers”.
The present appeal is brought by the employer under s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
The learned senior member rejected Ms Chivers's claim of direct discrimination but allowed her claim on the basis of indirect discrimination.
There is no cross appeal.
Both parties agree that the appeal is on questions of law only.
The appeal falls under s 146 of the QCAT Act. The primary question is whether there was any error of law that may have affected the outcome. If there was, we may confirm, amend, set it aside and substitute our own decision, or, if appropriate, return it to the original decision-maker with directions.
Facts
The hearing proceeded over 9 days, and was the subject of extensive evidence and findings of fact. Consistently with what has been found by the learned Senior Member the following is a summary of the principal facts necessary for the purposes of discussion of the points which have been raised upon this appeal.
Ms Chivers, who was born in 1974, commenced studies at the University of Queensland in 2003.
In January 2004 she suffered a head injury while horse riding. She made a good recovery, but was left with residual effects.
She graduated with a Bachelor of Nursing in December 2007.
Following her graduation she applied for employment as a registered nurse with Queensland Health and accepted its offer of appointment on 6 months probation. She started work on 11 February 2008.
The relevant terms of employment are not easily summarised. It is important that they be identified with some precision because the issues include whether the employer imposed a term with which Ms Chivers “does not or is not able to comply”;[1] whether the term was “not reasonable”[2]; and whether “genuine occupational requirements for a position”[3] were imposed.
[1] AD Act s 11(1)(a)
[2] Ibid s 11(1)(c).
[3] Ibid s 25.
The appointment was subject to probation as follows:
A probation period of six months will apply to your appointment. A possible extension of up to a further three months may occur if specified outcomes of your role are not achieved.[4]
[4] Letter of appointment, Appeal Record 379.
It was also subject to the Queensland Health General Terms and Conditions of Employment. These included that the work would be on a 24 hours continual shift basis. There were three separate shifts, known commonly as day, evening and night shifts.
The general terms and conditions of employment included –
“Shift work – in accordance with current award conditions, all employees working on a continuous shift basis may be required to work all shifts on a roster. These shifts may vary in length across a 24 hour period, Monday to Sunday inclusive. Following consultation with relevant unions, an employee may be required to participate in new or varied roster arrangements including 24 hour shift work, on call and weekend rosters.”
Ms Chivers was employed as a Permanent Part-time Registered Nurse, Ipswich hospital, on a .8 basis. This means that she was required to work 8 shifts (64 hours) per fortnight as rostered.
The terms of employment were governed by an industrial award which, including appendices, runs to 208 pages. Inter alia it contains ancillary provisions for training, graduate nurse transition, support hours of work, length of shifts, rosters, and many more subjects. However no specific provisions of it have been referred to by counsel for either party as casting light upon relevant issues.
In order to establish the indirect discrimination on which this claim was upheld, it was necessary to show that the employer imposed "a term" with which the claimant was not able to comply. It was found by the learned Senior Member, and I do not understand the finding to be under attack from either party, that the term imposed by the employer was “that Ms Chivers as a registered nurse had to be able to participate in the rostering system in place for registered nurses engaged in roles that provided 24 hour care 7 days per week”.[5]
[5] Chivers v State of Queensland [2012] QCAT 166 at [88]
The relevant ability for the purposes of the present case was the ability to work all shifts. More compendiously stated, "the term" was a requirement by the employer that she must possess the ability to work all shifts.[6]
[6]Ibid [59], [88], [122], [165]. The definition of "term" in s 11 of the AD Act includes condition, requirement or practice, whether or not written.
Rosters were of course prepared by other employees in authority in the hospital system. The requirement for an employee to act in accordance with the rostering system was actuated by the publication from time to time of rosters by those persons. The learned Senior Member so found, observing that the requirement of Ms Chivers to work all shifts “is to be found in the roster itself.”[7]
[7] Chivers v State of Queensland [2012] QCAT 166 at [59].
There was in operation a district transition program, known as the Beginning Registered Nurses Transition Practice Program, for graduates such as the appellant. It was and is a program designed to give such employees a range of experience in different places. It involves three coordinated rotations at different centres or hospitals and was “expected” to be followed by both parties.
There was and is no training prerequisite that new graduates undertake such employment. Once academically qualified and registered, nurses might undertake various forms of employment including work in the private sector. Ms Chivers in fact did so when she resigned from her position with Queensland Health on 27 February 2009.
Ms Chivers commenced her duties as a registered nurse at the Ipswich Hospital in February 2008. In March she was rostered to work nightshifts commencing between 10:00 – 11:00 pm and finishing between 6:00 – 7:00 am. Due to the effects of her impairment she could not complete the nightshifts to which she was rostered.
Her impairment did not prevent her from working on day and evening shifts. It was found that she had the ability to perform the professional duties and responsibilities of her position as a registered nurse in all respects except her capacity to do night rosters.
The medical evidence was to the effect that following her head injury she had problems with intermittent myoclonus (muscle contractions) and a circadian (daily rhythm) problem of vomiting, ataxia (muscular in coordination) headache in the early hours of the morning, typically after 2:00 am if she did not go to sleep before midnight to 1:00 am. The evidence, particularly that of Professor Jackson, was that because of this debilitating condition, she could not do night duty after 11:00 pm, as there needed to be time for her to retire to bed before the symptoms began.
Doctor Sandstrom found similarly, and supported the proposal that Ms Chivers should avoid working nightshifts. A third medical opinion (from Dr Cameron) expressed a view on a different basis for the problem, but he was also of the opinion that she was capable of full time work as a registered nurse providing she did not have to do nightshifts.
Following her complaints and the provision of medical evidence, the employer did not roster Ms Chivers to work nightshifts for the time being, and her needs were accommodated, particularly whilst she was at Laidley Hospital, by means of rosters arranged so that other nurses performed additional nightshifts.
On 6 August 2008 the employer, consistently with its power to do so in the letter of appointment, extended Ms Chivers' probation for three months, that is to say, declined to confirm that her probation had been successfully completed. The employer's reason was that the working of nightshifts was an inherent part of the job, and it was waiting further advice from Ms Chivers' neurologist.
Ms Chivers, on her Union's advice, continued her employment on this basis under protest, and later reluctantly acquiesced in a further extension of probation when matters remained unresolved. The learned Senior Member found that she did not achieve the specified performance outcome of working nightshifts during the three months' extension or during a further three months extension.[8]
[8] Ibid [67].
Finally, on 4 February 2009, when the employer sought Ms Chivers's consent for a further extension of probation, she resigned and obtained employment in the private sector.
The medical evidence was not contested. The “pleadings” (i.e. the claimant's notice of contention and the employer's response) admit that these injuries and conditions are “impairments” within the meaning of that term in s 7(h) of the AD Act.
Evidence from the director of nursing at Laidley Hospital shows that serious attempts were made to accommodate Ms Chivers’ problems. Her incapacity meant that other nurses had to pick up extra night shifts, and it was necessary to roster 2 RNs on night shift on multiple occasions, meaning that fewer were available for day shifts. The nursing staffing budget also suffered, but this was not the main consideration. Ms Fletcher indicated that the staff were sympathetic at first to Ms Chivers’ situation, but that it waned after about 2 months, and she received complaints that it was unfair that Ms Chivers had special privileges, that they were getting tired, and they wondered how long the arrangement was to continue. Ms Fletcher’s evidence on this was not contradicted or subjected to adverse cross examination.
Among other arrangements, policies and schemes applicable to this employment was a policy of Queensland Health known as the “Reasonable Adjustment Policy”.[9]
[9] Part of exhibit 50.
It defines “reasonable adjustment” as meaning:
That the employer should, where it is necessary and reasonable to do so, make modifications and adjustments to the workplace to meet the individual needs of people with disabilities.[10]
[10] Reasonable Adjustment Human Resources Policy, Exhibit 50, Cl 7.1.
There was no express finding that the stage had been reached where it was necessary and reasonable to make modifications to workplace practices, and in the light of Ms Chivers’ sudden resignation, that may be an arguable issue. However, clearly enough the process contemplated by the policy[11] had not been activated before the resignation.
[11] The relevant provision (Cl 7.3, Ex. 50) is:
7.3 Upon identification of the need for reasonable adjustment, the manager should organise an assessment of the physical and organisational barriers that would unreasonably prevent that person's employment, limit their performance or inhibit their advancement. The assessment will determine the needs of the person and offer possible solutions for reasonable adjustment. The line manager will only undertake the process of reasonable adjustment with the consent of, and in consultation with, the person with the disability.
In this respect the learned Senior Member found as follows:
There was no active assessment made under the Policy by Queensland Health of the needs of Ms Chivers or any steps taken to offer her possible solutions for reasonable adjustment when the decisions were made to extend her probation and not to offer her permanent employment.[12]
[12] Chivers v State of Queensland [2012] QCAT 166 at [146], [147], [148].
Ms Chivers resigned on 4 February 2009 without pursuing the grievance and dispute resolution options that were available to her under the policy.[13] Her resignation also cut short the opportunity for further consideration of other options by the employer such as redeployment.[14]
[13] Exhibit 50, Cl 7.8.
[14] Exhibit 50, Cl 8.1.
Later discussion concerning the Reasonable Adjustment Policy and the limited extent to which it is relevant in the resolution of the main issues in this case appears below at paragraphs [93] - [96] and [133] - [135].
Detailed evidence was given concerning the rostering principles which are aimed at meeting the needs of patients and nurses. The learned Senior Member found that it was established that “the rostering principles relied on by Queensland Health were appropriate for the arrangement of nursing care in a 24/7 hospital environment."[15]
[15] Chivers v State of Queensland [2012] QCAT 166 at [126].
Evidence was also given by nurse unit managers who consistently stated that accommodations departing from the roster could only be sustained for temporary periods and not permanently. This seems to have been accepted by the learned Senior Member but to have been discarded as “not particularly relevant.”[16] It is included here because it would appear to be a potentially very important factor on several issues, including determination of whether the term was reasonable.
[16] Ibid [130], [131].
There were, on average, 3358 registered nurses in relevant districts. Five nurses were identified as not working on a full time 24 hour per day continuous shift basis, namely Ms Jeremiah, Ms Pluse, Ms Richardson, Ms O’Donnell and Ms Barlow.
Evidence was given of how these nurses were dealt with under the roster system when they sought to avoid night duty. This evidence was said to be relevant to three separate issues, namely satisfaction of the "comparator" element under s 11(1)(b); whether the term was "not reasonable" under s 11(1)(c); and whether the requirement that she be able to work all shifts was a "genuine occupational requirement" under s 25.
The learned senior member did not extrapolate or summarise the evidence concerning those nurses, but drew certain conclusions from it and indicated that she regarded it as of substantial persuasive force in her determination is of each of those critical issues. It is convenient that this evidence be mentioned later under discussion of those topics.
Basis of determination of primary Tribunal
Ms Chivers's complaint of direct discrimination was rejected, essentially on the basis that the employer did not treat her less favourably than comparable employees without her attribute would have been treated.[17] The “comparator” that was adopted for determination of the issue of direct discrimination (i.e. under s 10) was a graduate nurse who had family or carer’s responsibilities and who could not work nightshifts. The learned Senior Member found that they too would have been kept on probation and would have been refused confirmation of employment.
[17] Ibid [72] to [74]; AD Act s 10.
No challenge is made on Ms Chivers's behalf to that rejection. Indeed, applying the majority High Court view of the appropriate comparator test in Purvis[18] no other decision was possible.
[18] Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92.
Having rejected Ms Chivers's claim of direct discrimination the Tribunal turned to her claim of indirect discrimination under s 11.
The attribute of impairment was found to be the severe headache disorder from which Ms Chivers suffered. It was admitted in the pleadings that this was an impairment within the meaning of s 7(h) of the Act because it amounted to a partial loss of her bodily functions and/or a malfunction of a part of her body.
As earlier indicated[19], the learned senior Member held that the term that was imposed was that Ms Chivers must possess the ability to work all shifts.[20] This of course included night duty shifts.
[19] Ibid [20] - [21].
[20] Chivers v State of Queensland [2012] QCAT 166 at [59], [88], [122].
It was further found, without contention, that Ms Chivers could not comply with that term[21] and that the decision not to extend her probation was made because Ms Chivers could not work nightshifts because of her impairment.[22]
[21] Ibid [65].
[22] Ibid [65].
The act of the employer on which the finding of discrimination was founded was that it imposed the term.[23]
[23] Ibid [79].
The employer's acts relevant to the application of Part 4 of the AD Act were described as "the decisions to extend her probation and not to confirm Ms Chivers' employment".[24]
[24] Ibid [87], [152]-[154].
Specifically, the learned Senior Member found:
Then in August 2008 Queensland Health made the decision not to confirm Ms Chivers' employment but to extend her probation for three months to 11 November 2008. I am satisfied that the evidence establishes that this decision was made because it was accepted that Ms Chivers could not work nightshifts at that time because of her impairment.[25]
[25] Ibid [65].
This extension of probation with non-confirmation of employment in August 2008, a further extension of probation on the same basis, and the employer's offer of another extension in February 2009, constitute the acts of discrimination on which the claim has been upheld.
A highly artificial exercise was then conducted to satisfy the "comparator" element of indirect discrimination, and the learned Senior Member eventually found as follows:
I find that the proportion of nurses without any impairment in the base group who can participate in the rostering system in place for registered nurses engaged in roles that provided 24 hour care 7 days a week at Ipswich Hospital is higher than the proportion of nurses with an impairment who can similarly participate in that rostering system.[26]
[26] Ibid [119], underpinned by [116] to [118].
The learned senior member further found that the term was in the circumstances not reasonable.[27]
[27] Ibid [120] to [152].
On those findings the learned Senior Member found that the employer had indirectly discriminated against Ms Chivers on the basis of impairment.
The learned Senior Member then considered the employer's defence under section 25 that the requirement of ability to work all shifts was a genuine occupational requirement.[28] The "requirement" considered by the learned Senior Member in this context was "that a registered nurse allocated to 24/7 wards must be capable of complying with roster requirements which included all shifts".[29] The defence was rejected.
[28] Ibid [155 to [165].
[29] Ibid [155] et seq.
Compensation was then assessed.
Legislation
There is little point in reprinting the extensive provisions of the AD Act that will need to be considered. The most relevant of them are mentioned below.
The proceeding is founded on the attribute of "impairment" mentioned in s 7 (prohibition of discrimination on the basis of specified attributes, including "impairment").
The other sections of principal relevance include:
section 8 (meaning of discrimination on the basis of an attribute);
section 9 (prohibition of direct discrimination and indirect discrimination);
section 10 (meaning of direct discrimination);
section 11 (meaning of indirect discrimination);
section 15 (discrimination in work area);
section 24 (explanatory provision concerning exemptions);
section 25 (genuine occupational requirements made lawful);
section 205 (burden of proof – indirect discrimination);
section 206 (burden of proof – exemptions); and
definition of "impairment" in the schedule.
Grounds of appeal
The grounds of appeal are fully stated in the reasons of Ms Fitzpatrick. For present purposes the following are the grounds that require consideration:
1.Error of law in determining that capability of working all shifts was not a genuine occupational requirement under s 25.
2.Error of law in finding that the requirements of s 11(1)(b) were satisfied by the evidence (i.e. error in application of comparator test).
3.Error of law in determining that the term was “not reasonable” under s 11(1)(c). The main ground is that instead of considering the reasonableness of the term the learned Senior Member considered whether the employer had acted reasonably in the given circumstances of the individual case.
Whether a genuine occupational requirement
Section 25 of the AD Act provides that a person may impose genuine occupational requirements for a position. The combination of ss 24 and 25 renders lawful what would otherwise be regarded as a prohibited act of discrimination.
The "requirement" has been set out in paragraph [59] above. In this case "the term" for the purposes of s 10 and "the requirement" for the purposes of s 25 are substantially similar. For practical purposes the essential element is that the employee possess the ability to perform all shifts.[30] This is unsurprising, as the definition of "term" includes a requirement.
[30] For fuller statement of the term see paragraphs [20]-[21], above.
The requirement to conform with the roster system was a contractual obligation, and would be triggered by the preparation of a roster.
It is at this point necessary to refer to the evidence concerning what were regarded as ad hoc exceptions in the administration of the system by the employer. These were heavily relied on by the learned Senior Member in concluding that the requirement was not a genuine occupational one.
This evidence was also relied on by the learned Senior Member in her determination of other critical issues, namely satisfaction of the “comparator” element in s 11(1)(b), and whether the term was “not reasonable” under s 11(1)(c).
This evidence in question demonstrates how other nurses with various kinds of disability were dealt with under the roster system when they sought to avoid night duty. Of the average of 3358 registered nurses in the relevant district five nurses in particular were identified as working on other than a full time 24 hour per day continuous shift basis, namely Ms Jeremiah, Ms Pluse, Ms Richardson, Ms O’Donnell and Ms Barlow.
In brief, the situation of these persons at the time of the hearing was –
(a)Jeremiah[31] – This nurse suffered from diabetes to the extent that she could not perform night duty. She formerly was a permanent on a 24 hour continuous shift basis, but when problems arose concerning rostering for night duty she accepted work as a permanent casual, and for the past 8 years had worked at ward 7D Ipswich without being required to do night shifts. This was effected by her choosing to transfer to the permanent relief pool of casual employees from early 2009, and being contracted back to her preferred (orthopaedic) ward 7D. She obtained the same employee entitlements as she did when she was a permanent staff member. It is noted that the solution did not involve relaxation of the requirement, as Ms Jeremiah changed the basis of her employment in order to avoid the requirement.
(b)Richardson[32] – This nurse initially sought night duty "due to the age of my children", and later, toward the end of her employment, because of physical difficulties occasioned by scoliosis and arthritis. She is an inverse example to that of Ms Chivers in that she claims her condition made night duty more suitable for her than day time duty. Between 1986 and the conclusion of her employment she was employed at Ipswich Hospital, performing night duty only. The roster was so arranged by mutual consent, and did not cause resentment among other employees.
(c)Pluse[33] – This nurse suffered from many conditions. She found it necessary to take medication which made her drowsy. She last performed a night shift in October 2009. She in due course arranged employment in the relief pool on a part time basis on 2 shifts, and works five days a fortnight on day or evening shifts. She is no longer employed on a 24 hour continuous shift basis which was the basis upon which Ms Chivers was employed and of which she sought confirmation. It seems that Ms Pluse changed the basis of her employment in order to avoid the requirement of doing night duty shifts.
(d)O’Donnell[34] – This nurse suffered breast cancer, following which she did not work nightshifts for 18 months. Her medical advice was not to do night duty. Over an 18 month period when she was unable to perform night duty, arrangements were made for her to remain employed performing other shifts. The evidence is "it's not that she has ever been given permission to work no night duty. Franca has just refused and the staff have picked up her nights. Franca is an exceptional case in that she has been known to the unit for 30 years, and there is a lot of feeling around Franca from the staff and for Franca they have agreed to pick up the night duty...[She] has never been given permission to work no night duty or told it was permanent. It has been one of those things that because she has a court case pending, an outcome, she has just kind of just been allowed to ride."[35]
(e)Barlow[36] – This nurse worked at Toowoomba Base Hospital as a registered nurse. She has no relevant disability, but has a personal preference for night shifts which she finds less tiring, as “doing a mix of shifts during the week made me tired”. An arrangement that permitted her to do nightshifts only was made with the nurse unit manager responsible for rostering at Toowoomba Base Hospital. The arrangement has continued under various nurse unit managers since 2001.
[31] See appeal record pp310, 641-642, 1034-1037, 1264, 1284-1286.
[32] See appeal record pp534-535,537-539,1046-1048.
[33] See appeal record pp594-597,598-599. Her name is incorrectly spelt "Plews" in that material and in the learned senior member's reasons.
[34] See appeal record pp1059-1061,2765-2766 (transcript pp 507-508).
[35] Transcript p 507.
[36] Appeal record pp552,570.
The learned Senior Member regarded Barlow as "able to be distinguished as not being relevant to the issues in this case."[37] It would seem that she similarly regarded the evidence concerning another nurse, McVeigh, for whom a special arrangement was made in Toowoomba under which she works a special shift to cover meal relief and workload increases.[38]
[37] Chivers v State of Queensland [2012] QCAT 166 at [116].
[38] See Appeal Record p2513.
Richardson and Barlow are examples of nurses with a preference for night duty, for whom those who prepare the rosters unsurprisingly have little difficulty in accommodating. They do however afford examples of nurses who have been permitted to avoid daytime and evening shifts.
Two of the above, Jeremiah and Pluse, were not exceptions at all, but rather examples of re-arrangements for a different basis of employment in order to side-step the requirement.
The other example, O'Donnell, exemplifies a temporary accommodation in favour of a person with an impairment.
This body of evidence fails to suggest that the requirement was not a genuine one or that it was not an integral part of the system. The system seems to have been firmly applied, accompanied by attempts to accommodate persons with problems.
Reference was made by both parties to Christie.[39] The legislation there under consideration referred to “the inherent requirements" of the particular position. The case concerned an airline pilot who sought to extend his employment as a pilot beyond his 60th birthday, but was denied because many countries on Qantas routes excluded from their airspace aircraft flown by pilots over that age. The following statements indicate the approach of various members of the Court.
“In my opinion, the ability to participate effectively in the system equally with other pilots of similar seniority was an inherent requirement of Mr Christie’s position.”[40]
“There would have been a continuing possibility of bidding successfully for the flights from which he is now compulsorily excluded. But his inability to bid and to be selected for some flights skews the equitable operation of the system.”[41]
“… an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.”[42]
“If, notwithstanding the limited destinations to which he can now fly, Mr Christie can comply with the QANTAS roster system, his position will be essentially the same as that previously occupied by him. However, it will not be the same if QANTAS excepts him from the general roster requirements, for that would transform a position no different from that of any other B747-400 captain into a special position for him.”[43]
“[T]he conclusion that it was an inherent requirement of Mr Christie’s position as a QANTAS captain of international B747-400 flights that he be able to fly to a reasonable number of QANTAS’ numerous overseas destinations is inescapable.”[44]
[39] Qantas Airways Limited v Christie (1998) 193 CLR 280.
[40] Ibid 285 per Brennan CJ.
[41] Ibid 286.
[42] Ibid 294-295 per Gaudron J.
[43] Ibid 295-296.
[44] Ibid 310 per McHugh J.
The learned Senior Member “distinguished” Christie, mainly on the footing that Ms Chivers had the ability to provide nursing services in day and evening shifts and could therefore work the same number of hours per week as any other nurse.[45] I do not find this convincing. It is helpful to note the considerations that led the members of the High Court in Christie to conclude that a requirement of an employment was essential to a position, and an inherent part of it. It is appreciated the legislative base in Christie was different although the underlying ideas and objectives are similar. No differences in the legislation were referred to which would tend to require a different approach to be taken. The above quoted comments are in my view highly persuasive if not actually binding (in view of the different legislation involved) as to the proper reading and application of s 25 of the AD Act. Obviously the facts are different, but in principle I do not think that the decision is properly distinguishable.
[45] Chivers v State of Queensland [2012] QCAT 166 at [161].
When the principles discussed in Christie are applied to this important contractual term around which the practices of hospital employed nurses are centred, around which the system has functioned for many years, and which, if not applied, produces difficulties in the provision of service, and tends to produce resentment among other nurses, the conclusion that it was a genuine occupational requirement is difficult to resist.
It is also difficult to think that the burden of performing night duty shifts has not been factored into the level of pay that is provided in respect of 24 hour continual shift employment in the relevant industrial award.
The learned Senior Member went on to mention that she regarded as “another critical fact”[46] the exceptions made in the cases of Mss Jeremiah, Pluse, Richardson, O’Donnell and Barlow, observing that “the rostering system was sufficiently flexible to enable staff to work on the shifts of their choice without compromising patient care.”
[46] Ibid [162].
The learned Senior Member acknowledged evidence that showed the requirement to be “desirable” but declined to find it was a genuine occupational requirement. The essential reasoning in so declining was the evidence to the effect that the system "did not fail to meet the demands of continuous patient care”[47] when the above nurses were permitted to avoid night rostering for various periods.
[47] Ibid [163].
That evidence was incapable of leading to a conclusion that it was not a genuine occupational requirement.
As Gummow and Hayne JJ (with whom Gleeson CJ and Callinan J agreed) indicated in X v The Commonwealth[48]:
[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.[49]
[48] (1999) 200 CLR 177.
[49] Ibid 208.
McHugh J in that case also observed:
The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking, and in regarding this or that requirement as essential to the particular employment. Thus, in Christie, Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie.[50]
[50] Ibid 190.
The issue in X v The Commonwealth was whether an HIV positive soldier was able “to carry out the inherent requirements of the particular employment.” Applying Christie the High Court determined that an employee must be able to perform the inherent requirements of a particular employment with reasonable safety to the individual concerned and to others with whom that individual will come into contact in the course of employment.
Their Honours further stated:
Confining attention to tasks and skills for which a soldier is specifically prepared was too narrow a focus in the present case. It left out of account where, when, in what circumstances and with whom those tasks and skills were to be performed or used. It treated all those features as incidents of the employment rather than as inherent (in the sense of characteristic or essential) requirements of the employment.[51]
The judgments in that case bring into account the impact on other employees of the claimant's ability or inability to comply with the relevant requirement.
[51] Ibid 209 per Gummow and Hayne JJ.
In the present matter the learned senior member placed considerable significance upon the accommodations made in favour of the five nurses mentioned above in rejecting a conclusion that the requirement to work the rostering system was not a genuine one.[52]
[52] Chivers v State of Queensland [2012] QCAT 166 at [162] - [163].
Ms Ronalds SC for Ms Chivers defended the Member's conclusions on the “exceptions” that were said to be shown by the evidence concerning the five selected nurses. These, she submitted, tend to suggest that it was not a genuine occupational requirement. However the evidence of the exceptions reveals a strong adherence to the system, and a refusal to make permanent binding exceptions. In the main there have been short term measures arranged through rostering adjustments. In two of the cases the employee changed her status to “casual” in order to comply with the system. Negotiations which lead to sideways movements of these kinds can hardly be regarded as impugning the system or rendering the requirement non-genuine. Indeed they can be seen as an adherence to it.
The evidence of these limited exceptions made in favour of other nurses cannot be regarded as justifying a conclusion that the requirement was not a genuine occupational requirement.
The fact that a system is administered humanely does not deprive it of genuineness any more than the fact that insistence upon it may sometimes cause hardship to individuals. The fact that exceptions are made from time to time does not change its essential quality.
Lax administration would not alter its character as a requirement unless of course it ceased to be generally enforced. It might then lose its genuineness as a requirement. That however is not the effect of the extensive evidence in this case. Any reading of it demonstrates the importance placed upon the requirement by nurses with long experience and intimate knowledge of hospital service.[53] The ad hoc arrangements made in the instances mentioned were regarded by the learned senior member as a “critical fact”.[54] But these instances of favourable treatment and rearrangements fail to suggest that the requirement was not an essential and genuine part of the system.
[53]Evidence of Blinco( transcript 395 et seq), Laidlaw( transcript 456 et seq), Edwards (Transcript 476 et seq), Knowles (transcript 490 et seq especially 507), Spender (transcript 550 et seq) Fletcher (appeal record 709-719, transcript 358-364)
[54]Chivers v State of Queensland [2012] QCAT 166 at [162]
It is true that in this instance it was open to find that the reasonable adjustment policy had not been applied before Ms Chivers chose to resign, although it would have been equally open to find that the employer was attempting to postpone a decision on whether to confirm her appointment while further medical information was gathered, in the light of which a better informed decision could be made about "reasonable adjustment". But no question of breach of contract appears to have been separately raised.
Answers to whether the failure to initiate the reasonable adjustment process prior to Ms Chivers's resignation was a breach of the policy, and whether this amounted to a breach of the contract of employment are by no means clear cut, and would require adversion to the terms of the policy[55]. They were not raised by the parties as specific issues. They are in truth subsidiary questions, and are only relevant to the extent that they can cast light upon the principal issues. The learned Senior Member seems to have assumed without mention of the actual terms of the policy that its non-application was a breach of the policy, although no express finding to that effect was made.
[55]The obligation to engage a suitable expert only arises "where it is necessary and reasonable to do so" (Policy Cl 7.1); see further Policy Cl 7.3, and the definition of "reasonable adjustment policy". Also see above [35] - [40].
More pertinently, the only basis of claim that is alive for consideration on this appeal is indirect discrimination under s 11. The non-application of the reasonable adjustment policy is a far cry from establishing this.
In my view the employer's non-application of the reasonable adjustment policy in the circumstances of the case cannot and does not deprive the "requirement" of its character as a genuine occupational requirement.
Reference was made to two further decisions that cast some light on the type of features that may be regarded as requirements of employment, namely Cosma v Qantas Airways Ltd[56] (a decision of Heerey J) and the decision on appeal confirming that decision.[57]
[56]Cosma v Qantas Airways Ltd [2002] EOC 93-206; [2002] FCA 640.
[57]Cosma v Qantas Airways Ltd (2002) 124 FCR 504; [2003] EOC 93-261; (2002) 120 IR195; [2002] FCAFC 425.
This case was concerned with the inherent requirements of the position of “porter in ramp services” in the Qantas system. Heerey J noted:
[A]n important aspect of the work is rotation of the various tasks between gang members. This is in the interest of fairness to all since some tasks are more difficult than other and also is a preventive against injury.[58]
[58] Op Cit [17].
The claimant in that case suffered an injury which rendered him unable to continue to perform the physical duties required. This was followed by extensive and protracted measures to effect a graduated return to his original duties. Other positions were found for him in the meantime and ultimately Qantas was unable to sustain him indefinitely in such alternative duties, and employment was terminated. His Honour found that the inherent requirements of the particular employment included that he participate in rotation of tasks within the gang.[59] His Honour noted Gaudron J’s comments in Christie that “it will not be the same if Qantas exempts him from the general roster requirements, for that would transform a position no different from that of any other B747-400 captain into a special position for him", and decided that the dismissal was because of the claimant’s inability to carry out the inherent requirements of the particular employment and that it was therefore not a contravention of the Act.
[59] Ibid [61] and [62].
On appeal the Court (Black CJ, Finn and Dowsett JJ) referred to the fact that the claimant was retained in his position while disabled whilst he received the benefit of rehabilitation training and treatment. This, in the Court’s view, did not change his duties, or the requirement:
[I]t was accepted that he could not perform the duties of a porter in ramp services. In other words the respondent waived its right to demand performance of them whilst the parties examined possible alternative duties.[60]
[60] Cosma v Qantas Airways Ltd (2002) FCAFC 425 at 512.
The employer's temporary waiver of a requirement was regarded as irrelevant.
A further argument, rejected by the Court of Appeal, was that there were tasks within “ramp services operator” which the appellant could have performed, and that the employer could have been assigned those duties. The Court observed:
[B]y this argument the appellant really seeks to create his own classification of employment … this is inconsistent with His Honour’s finding that the appellant was employed as a porter to perform a range of duties as a member of a gang in which the gang duties rotated.[61]
[61] Ibid 513.
These observations run counter to the reliance of Ms Chivers on the alleged special arrangements for other nurses, and the failure of the employer to make such arrangements in her case. That evidence does not support a finding of that the relevant occupational requirement was either unreasonable or not genuine. These observations also run counter to the importance attached by the learned Senior Member in the present case to her finding that Ms Chivers can adequately perform other shifts.
These cases are of assistance, not as precedents that must be “followed”, but as providing assistance in their exposure of factors and features that are relevant in leading to an affirmative conclusion that there was a genuine occupational requirement. In particular, the fact that a claimant employee claims that an occupational requirement is necessary because she can do something else that is nearly as good is no answer. Nor is the fact that the employer has waived performance of the requirement during attempts to rehabilitate the claimant or deal with the problem.
In my view the learned Senior Member's primary error in resolving this issue was to place substantial reliance on the fact that “the organisation and deployment of staff did not fail when Ms Jeremiah, Ms Plews (sic), Ms Richardson, Ms McVeigh, Ms Barlow and indeed Ms Chivers provided nursing services on some but not all available shifts.”[62]
[62] Chivers v State of Queensland [2012] QCAT 166 at [163].
The existence of those ad hoc arrangements bore no relevance to Ms Chivers’ “position” for the purposes of s 25, having regard to the limited scope of the exceptions and their temporary nature. The number of exceptions able to be found in this large scenario (3358 registered nurses in the relevant district) suggests a relatively insignificant level, and is hardly surprising in such a large organisation. None of them received any permanent dispensation from working night shifts, although some of them might well have expected current arrangements to continue indefinitely.
Ms Chivers' case was different. Her medical evidence was that her condition was permanent, and that she simply lacked the ability to do night duty. She was asking for an employer to accept that she had successfully served her probation and confirm her as a permanent employee notwithstanding that she lacked the requisite ability. Her employer declined to accept her on that basis, and there is no evidence that it was prepared to do so on a permanent basis for anyone else.
This illustrates a point of departure between the members of this Appeal Tribunal. This case was never limited to the inability of a nurse in the Beginning Nurses Program to work nightshifts during that program or confined to that part of the contract that concerned the Program. Such a case was neither pleaded[63], litigated, decided or argued on appeal. Nor is it supported by the evidence. It was a mere incident of the employment.
[63] See Notice of Contentions paragraphs 7-10, 21-24, 27-29, 34 (Appeal Record pp 2-8).
The employer's treatment of Ms Chivers (under s 10) and imposition of a requirement (under s 11) were found in the extensions of probation. The main sting in these extensions was the employer's refusal to confirm acceptance of her as a permanent employee, and in its implied threat of future dismissal if there were non-compliance with rostering requirements. These aspects cannot be isolated from one another.
Returning to the effect of the ad hoc arrangements, the integrity of the system was not on any objective view of the evidence shown to have been compromised by the examples cited by the learned Senior Member.
It was an error to find on the evidence that the requirement was not a genuine occupational requirement. The evidence was incapable of supporting that conclusion. The requirement that nurses employed by Queensland Health in this position be capable of being rostered for night shifts was and remains an integral part of the system, and there is nothing to suggest any lack of good faith or genuineness in its retention. The relevant employment is a frontline position in a profession founded on service.
The onus is on the employer to show that s 25 is made out. Consistently with the principles stated by members of the courts of high authority in the cases cited above the evidence leads to only one conclusion, namely that it was a genuine occupational requirement. The employer's onus[64] of showing that s 25 was made out was satisfied. It was an error of law to find otherwise.
[64]Section 206 of the Act.
The conclusion just mentioned renders discussion of the other grounds of appeal unnecessary. But in case this conclusion is incorrect I shall indicate my views on the other two grounds argued.
Comparator test error?
The term "comparator" is not used in the legislation. It is a gloss based on the words "treats… less favourably than… another" in s 10 which defines "direct discrimination"; and "higher proportion of" in s 11 which defines "indirect discrimination"; and on other similar words in cognate legislation.[65]
[65]See e.g. Australian Iron & Steel Proprietary Limited v Banovic and others (1989) 168 CLR 165.
The identification of groups of persons between whom such comparisons must be made has become one of the most contentious, and often thoroughly unrealistic hurdles that litigants must surmount in a wide range of anti-discrimination cases. The types of discriminatory attributes upon which discrimination is prohibited are so various that different types of comparison need to be devised to fit each particular case, and commonly the selection of the correct one is highly arguable.
My fellow member Ms Fitzpatrick in this Appeal Tribunal has dealt with this issue, and has arrived at a conclusion with which I agree, namely that the appeal on this issue must fail. I shall therefore present only brief reasons on this issue.
The attribute of "impairment" is defined as the disorder or condition itself, and the consequences that it produces are not included as part of the definition. In reliance on this, Mr Murdoch QC for the employer submitted that impairment connotes a particular physical or mental condition, and that the consequences of it are not part of the attribute. It follows that the reference in s 11 to "person with an attribute" is not to a person who cannot perform, but to a person with the same condition, and the consequences of the condition are not relevant in the application of the comparator test required by s 11(1)(b).
However, cases of high authority, admittedly based on differently worded legislation, suggest that it is sometimes necessary that the effects of the specified disorder or condition be brought into account when comparator exercises are performed. Instances of this may be found in respect of direct discrimination in Purvis[66]; and in respect of indirect discrimination in Che Forest[67].
[66]Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92.
[67]State of Queensland (Queensland Health) v Che Forest (2008) 168 FCR 532; (2008) 249 ALR 145.
I consider that in the present case the consequences of the condition are appropriate for consideration in the application of the comparator test. Indeed, it is inescapable that the employer's refusal to confirm her employment was not based on the ground that she had a headache disorder: the act of discrimination was simply solely based on her incapacity to perform night duty.
It is also arguable that a similar conclusion may be reached through s 8(a). That provision captures discrimination “on the basis of a characteristic that a person with any of the attributes generally has”. Such a "characteristic" may include the effects that the impairment produces. In my view it would be wrong to exclude the effects of the relevant disorder or condition from consideration when deciding whether s 11(1)(b) is satisfied.
Once this is granted, the conclusion that a higher proportion of people without her attribute would be able to comply is inescapable.
The comparator test that was applied by the primary tribunal (following submissions from counsel) was in my view unrealistic and inappropriate. If it was the correct test, I would agree with Mr Murdoch QC that the claimant failed to satisfy it. But as it is a wrong test it is irrelevant.
I concur with the reasons contained in paragraphs [181] and [182] of Ms Fitzpatrick's reasons for holding that it was shown that Mr Chivers could not comply with the "term", and that it may safely be inferred that a higher proportion of people without her attribute would be able to comply with it.
The appeal on this ground fails.
Was the term "not reasonable"?
The remaining ground of appeal is that the learned Senior Member erred in finding that "the term" imposed by the employer was not reasonable.
One of the elements in the proof of indirect discrimination is that the employer imposes, or proposes to impose, a term "that is not reasonable". The effect of s 205 of the AD Act is that the burden of showing that the term is reasonable lies on the employer.
On this aspect of the case the learned Senior Member focussed attention on the impact that the rostering system had on Ms Chivers and other impaired persons, and largely on that basis, and on “the manner in which the employer's judgment is exercised”[68] concluded that the “term” was “not reasonable”.[69]
[68] Chivers v State of Queensland [2012] QCAT 166 at [135].
[69] Ibid [150].
The learned Senior Member stated: “it was submitted by Queensland Health that there is nothing inherently unreasonable about a requirement which reserves to the employer the right to exercise judgment as to compliance with and participation in a rostering system. That submission is quite correct. However the manner in which the employers judgment is exercised must not be unreasonable in the given circumstances of a case.”[70] She then examined its manner of exercise, and on that basis concluded that the imposition of the term was unreasonable, instead of examining whether the employer had imposed a term that was not reasonable.
[70] Ibid [125].
This, in my view, reveals error. The principal focus needs to be upon the objective reasonableness of the term itself[71] rather than upon the manner of its imposition.
[71] Catholic Education Office v Clarke (2004) 138 FCR 121 at 145 per Sackville and Stone JJ.
The learned Senior Member proceeded to examine the particular impact that the rostering system had on Ms Chivers and considered that the level of impact of such a term was more significant upon her than on other ward team members without disability who might have to make up her rosters. The instances of special arrangements being made for other nurses were relied on as an indicator that the term was not reasonable.
The above approach was in my view erroneous. Much of the ensuing reasoning of the Member on this point[72] dealt with the impact of such a term upon impaired people rather than with its objective reasonableness across the board, as required in Christie and in X v Commonwealth of Australia.
[72] Chivers v State of Queensland [2012] QCAT 166 at [127]-[152].
The learned Senior Member accepted that the evidence "supports the desirability of having all staff in 24/7 wards available to work all shifts",[73] and also that "the rostering principles relied on by Queensland health were appropriate for the arrangement of nursing care in a 24/7 hospital environment",[74] but curiously has found that it is neither genuine nor reasonable. I am unable to discern any valid basis for those latter conclusions.
[73]Ibid [163].
[74]Ibid [126].
The relevant requirement, for reasons given above[75] was a "genuine occupational requirement", and an important part of the system. There is nothing inherently unreasonable about it. Its application is effected by the drawing up of rosters. Like many terms of employment and terms of contracts it is capable of producing unreasonable results if it is unreasonably applied. This may well explain why "the reasonable adjustment policy" was negotiated and agreed to. But the learned Senior Member's finding that the reasonable adjustment policy was not applied in this instance is insufficient justification for finding that the requirement was not reasonable.
[75]See paragraphs [65] - [113], above.
The admission that Ms Lane and her advisors had not taken into account the reasonable adjustment policy for extending Ms Chivers’ probation instead of unconditional confirmation of her employment, was used by the learned Senior Member in support of her conclusion “that it was not reasonable for Queensland Health to impose the term that Ms Chivers had to be able to participate in the rostering system”.[76] The fact that the employer did not “[modify] .. the application of that term in the case of Ms Chivers as it had done for Ms Jeremiah” was similarly regarded.[77] These considerations all relate to the manner of exercise of the employer’s judgment rather than to the reasonableness of the term itself, and suggests that undue weight was given to this circumstance. In any event, as already noted, the employer did not modify the application of the term for Ms Jeremiah, but rather permitted her to move sideways into employment of a different character.
[76]Chivers v State of Queensland [2012] QCAT 166 at [150].
[77]Ibid [151].
For the above reasons, the evidence was incapable of supporting that conclusion that the term was not reasonable, and it was an error of law to so conclude.
Costs
Counsel for Ms Chivers indicated that in the event that the appeal was dismissed her client would seek an order for costs of the appeal. Counsel for the appellant (Queensland Health) reserved his client's position, and we indicated that we might give a provisional indication, and would give the parties an opportunity of providing submissions, if so minded, to seek any order for costs after publication of these reasons.
It is my preliminary view that no order for costs should be made in relation to this appeal. In this context, the observations of this Appeal Tribunal in Cairns Regional Council and Ors v Carey[78] might be considered by the parties. This is only a provisional indication, and the parties ought to have the opportunity of making an application if so advised, so that fuller consideration might be given to the question.
Determination and orders
[78] [2012] QCATA 151 at [8],[9], [14], [16]-[21].
1. The appeal is allowed.
2. The decision of the Tribunal of 10, April 2012 in application number ADL 024-10 is set aside.
3. In lieu of that order the claim is dismissed.
4. Leave granted to the parties to make an application and submissions on costs on or before 31 October 2013.
ANN FITZPATRICK, MEMBER
The appellant appeals a decision of a Senior Member of this Tribunal made on 10 April, 2012.
I have read the reasons of my fellow Member, the Honourable J B Thomas. I respectfully disagree with him in relation to a number of areas more fully set out in these reasons. In summary they include the factual issues as to whether Ms Chivers was engaged to work continuous shift work and the relevance of the governing Award. Further, whether the term sought to be imposed is reasonable and whether the term constituted a genuine occupational requirement of Ms Chivers’ position.
The respondent, Ms Chivers, commenced employment as a registered nurse with Queensland Health on 11 February, 2008 pursuant to a contract of employment, which included General Terms and Conditions of Employment, incorporating Queensland Health’s Policies. The General Terms and Conditions of Employment entitled Queensland Health to require Ms Chivers to work all shifts on a roster, including night shift. Ms Chivers was placed on a Beginning Nurse Transition into Practice Program. She was required to spend time in three, four month long rotations within the relevant Health Service District and was rostered on a night shift.
Ms Chivers employment was subject to a six month probationary period.
Ms Chivers suffered a severe headache disorder when working night shifts. She had a history of an acquired brain injury. The Senior Member found that the severe headache disorder amounted to an impairment in terms of the definition of impairment in the Schedule to the Anti-Discrimination Act 1991 (the Act) in that there was a malfunction of her body in the manner in which the headache disorder caused severe head pain, nausea and vomiting.
On 3 July, 2008, the Acting Director of Nursing at Ipswich Hospital stated that graduate nurses must work all shifts on a roster including night shifts. It was specified to Ms Chivers that working night shifts was a performance outcome that as a graduate nurse she was expected to achieve and that if she did not meet that performance expectation her employment could be terminated. Extension of probation by 3 months for failure to achieve specific performance outcomes was permitted by her contract of employment.
On 6 August, 2008 and 4 November, 2008 Queensland Health extended Ms Chivers’ probation for periods of 3 months on the basis that working night shifts was an inherent part of her job and it was waiting on further advice from Ms Chivers’ Neurologist about when she would be able to work night shifts. On 4 February, 2009, Queensland Health sought Ms Chivers’ consent to again extend her probation. The probationary period was not concluded and Ms Chivers was not given a permanent placement where she would work at the conclusion of the Beginning Nurses Program.
On 20 February, 2009 Ms Chivers gave a week’s notice of resignation from her employment effective from 27 February, 2009. She alleged less favourable treatment received from Queensland Health as a consequence of her acquired brain injury which prevented her working night shifts.
Complaints and findings
Ms Chivers made four complaints of unlawful discrimination against Queensland Health.
The first complaint was based on the conduct of Queensland Health in extending Ms Chivers’ probationary period beyond 11 August, 2008. It was alleged that the extension decisions made on 6 August, 2008, 4 November, 2008 and 4 February, 2009 were direct discrimination in breach of the Act because she was treated unfavourably in connection with work.
The second complaint of direct discrimination was based on the conduct of Queensland Health in refusing to conclude Ms Chivers’ probationary period. It is alleged that by refusing to conclude Ms Chivers’ probation, Ms Chivers was not appointed as a permanent employee by Queensland Health, being a breach of the Act because Ms Chivers was treated unfavourably in connection with work.
The Senior Member was unable to conclude that the decisions to extend Ms Chivers’ probation and not to confirm her employment amounted to direct discrimination in terms of the Act. The Senior Member accepted the evidence of Queensland Health that any graduate nurse on probation, without an impairment, who was not able to work night shift would have similar outcomes including extended probation and ultimately not confirming that person’s employment at the end of the probationary period.
Ms Chivers third and fourth complaints arose out of the same facts.
The third and fourth complaints articulated in the Complainant’s Further Amended Contentions, dated 18 July, 2011 are that the actions of Queensland Health, by the following letters, amounted to indirect discrimination in the area of work, contrary to sections 11 and 15(1)(f) of the Act. The letters are:
·6 August, 2008 (advising night duty was an inherent requirement of a graduate nurse and if Ms Chivers was permanently unable to work night shifts that was untenable for Queensland Health; advising the probationary period would be extended while further medical evidence was obtained);
·4 November, 2008 (advising employment as a graduate nurse on a permanent basis cannot be confirmed if Ms Chivers is unable to work night shifts, seeking consent to an extension of the probation period to enable the Anti-Discrimination Commission complaint to be resolved and the requirement of her role to be explored; requiring advice and evidence that Ms Chivers is capable of performing the role of graduate nurse, which includes night duty);
·2 February, 2009 (advising a further medical report was required and seeking consent to an extension of probation to allow the report to be obtained).
In relation to the proscription in section 15(1)(f) of the Act that a person must not discriminate by treating a worker unfavourably in any way in connection with work, the unfavourable treatment is said to be:
(a)the requirement that Ms Chivers work night shifts;
(b)further or alternatively the requirement that for Ms Chivers’ period of probation to be concluded, Ms Chivers had to work night shifts.
The Senior Member found that Ms Chivers had been the subject of indirect discrimination in the area of work, in contravention of section 15(1)(f) of the Act, in that she was treated less favourably than the other graduate nurses on the Program in 2008 and early 2009, employed at the Hospital, whose employment was not left at risk of summary termination by extensions of their probationary period.
In making the finding of indirect discrimination, the Tribunal:
(a)identified the term imposed by Queensland Health, at paragraph [88] of the decision, being that: “Ms Chivers, as a registered nurse, had to be able to participate in the rostering system in place for registered nurses engaged in roles that provided for 24 hour care 7 days a week”;
(b)found at paragraph [97] of the Decision, on the basis of Ms Chivers’ evidence and the medical evidence, that Ms Chivers had established on the balance of probabilities that she could not comply with the rostering system term because the symptoms of her impairment that she experienced during night shifts prevented her from working on night shifts at the Hospital;
(c)found at paragraph [109] that the base group was the entire nursing cohort of Ipswich Hospital, who were paid for working at Ipswich Hospital in the fortnights containing 6 August, 2008, 4 November, 2008 and 4 February, 2009, being 688 nurses. This finding was on the basis that the term must be relevant to the base group and accordingly that group must be nurses who worked in areas requiring 24 hours 7 days a week rostering to meet the demands of hospital wards catering to the continuous care of inpatients. Based on the evidence of Ms Lane that there was not a large number of nurses working in units that did not run a night shift, the Senior Member concluded that the effect of including nurses at Ipswich Hospital in the base group who worked in areas where there were no night shifts would be immaterial to the outcomes of the calculation;
(d)found at paragraph [117], that the comparator group must be identified as 5 nurses who had impairments and participated in the rostering system in roles that provided 24 hour care 7 days a week at Ipswich Hospital. The Senior Member said the evidence suggested Ms Richardson and Ms Pluse may have been able to work across all shifts on limited occasions but that Ms Jeremiah, Ms McDonald and Ms Chivers were not able to work night shifts.
The Senior Member acknowledged at paragraph [110] that data about impairment in the nursing cohort is not generally collected and could not be provided to the Tribunal by either Ms Chivers or by Queensland Health. The Tribunal had no statistical data about the number of nurses with an impairment employed at Ipswich Hospital during the relevant fortnights. The Senior Member elected to rely on a principle of “inevitable inference”[79] to establish whether the term resulted in a disproportional impact without reliance on statistical information and on her powers under the Queensland Civil and Administrative Tribunal Act 2009 to act in accordance with the substantial merits of the case and to inform herself in any way she considers appropriate.[80]
(e)found at paragraph [119] that the proportion of nurses without an impairment in the base group who can participate in the rostering system in place for registered nurses engaged in roles that provided 24 hours care 7 days a week at Ipswich Hospital is higher than the proportion of nurses with an impairment who can similarly participate in that rostering system; and
(f)found the rostering system term was not reasonable in its application to Ms Chivers’ circumstances.
[79] Queensland Health v Che Forest [2008] FCAFC 96 at [8].
[80] Queensland Civil and Administrative Tribunal Act 2009 ss 28(2), (3).
The Senior Member also found that it was not a genuine occupational requirement, in terms of section 25 of the Act that Ms Chivers as a registered nurse working in 24 hours 7 days a week wards must be able to work all shifts.
Orders sought by Queensland Health
The appellant seeks an order that the decision that Ms Chivers was the subject of indirect discrimination be set aside and the application to the Tribunal be dismissed.
Neither party challenges the finding with respect to the complaints of direct discrimination. Neither party challenges the findings of fact made by the Senior Member.
Ms Chivers submits that the Tribunal’s decision was correct and reveals no errors of law that vitiate the decision.
My fellow Member has set out the basis of this Tribunal’s jurisdiction to hear and determine this Appeal, which I will not repeat.
Grounds of Appeal
Appeal Ground 1
Queensland Health submit that the Senior Member made the error described by Black CJ in Queensland Health v Che Forest, in that the Tribunal took an inability to comply with the term as indicative of membership of the comparator group, rather than the presence of “the attribute” itself being the criteria for membership of the comparator group.[81]
[81] (2008) 168 FCR 532 at [9].
Queensland Health complain that the Senior Member established a comparator group of 5 individuals who had been identified in the evidence as having a variety of different impairments and who were, at the time, not working across all shifts. However, the comparator group should have been comprised of nurses in the relevant population who had Ms Chivers’ impairment irrespective of whether they could comply with the term.
It goes on to say that even if it was correct to include any impairment the comparator group should not have been limited to persons who could not comply with the term.
Ms Chivers submits that this ground of appeal does not give rise to an appellable error of law.
She says that section 11(1)(b) of the Act does not require members of the comparator group to have exactly the same impairment as her. Section 11 refers to a person with an “attribute” and to a circumstance where a higher proportion of people without the “attribute” are able to comply. Attribute is defined to mean an attribute set out in section 7 of the Act, which includes “impairment” as an attribute.
Ms Chivers says that it is sufficient that members of the comparator group have an impairment which is of a similar nature such that a proportion of persons with the attribute of impairment who can comply with the term may be discerned so as to allow the comparison required by section 11(1)(b) of the Anti-Discrimination Act 1991.
Where Queensland Health has relied upon the decisions of Queensland Health v Che Forest[82] and Ondrich v Kookaburra Park Eco-Village[83], Ms Chivers asserts that the decisions are not authority for the proposition that the impairment referred to in the comparator group must be the same impairment as that suffered by the complainant.
[82] Ibid.
[83] (2009) 227 FLR 83.
The point is made by Ms Chivers that it would be unlikely in any workplace to find more than one person with the same impairment making it impossible for an indirect discrimination case to be made out on the basis of impairment if that were the statutory requirement. That is especially the case for someone with an unusual condition like the one suffered by Ms Chivers.
Mrs Chivers says that in any event the Senior Member did not limit the comparator group to persons who had an impairment and who could not comply with the 24 hours 7 days a week roster. Two people in the group with an impairment were able to comply.
In this case there is no challenge to the term identified as that which Queensland Health sought to impose. There is no challenge to the finding of an impairment and that Mrs Chivers could not comply with the term because of her attribute, which was “impairment”.
The challenge comes in considering whether a higher proportion of people in the base group without the attribute are able to comply with the term compared to people with the attribute in the comparator group.
I accept the submissions of Ms Chivers that the reference in s 11(1)(b) to “the attribute” is a reference to the attribute of impairment.
I accept the submission that the impairment need not be the identical impairment to that suffered by the complainant but rather must be similar. I consider that the comparator group must be meaningful, in terms of the Anti-Discrimination legislation, so that the objects of equality enshrined in the Act can be met for people with an identifiable impairment.
I accept the submissions of Queensland Health that the comparator group cannot be chosen by virtue of its inability to comply with the term, it should be chosen because it shares an impairment.
In this case the comparator group comprised Ms Jeremiah (who has diabetes and did not work night shift, Ms Richardson (who has scoliosis and arthritis and worked night shift only, Ms Pluse (who either has rheumatoid arthritis, lupus, or fibromyalgia, her difficulty with night shift stemming from drowsiness caused by medication) and Ms O’Donnell (who had, at one time, breast cancer and did not work night shift).
There is no commonality of impairment or even similarity of medical condition between those nurses in the comparator group and Ms Chivers. The shared experience of the majority is an inability to work night shift because of various manifestations of their conditions. I accept the submissions of Queensland Health that inability to comply to with the term should not be the factor which dictates inclusion in the comparator group.
It appears the Senior Member chose these nurses to form the comparator group because there was no statistical evidence available of nurses with an impairment employed at the Ipswich Hospital. Data about impairment in the nursing cohort is not generally collected and could not be provided to the Tribunal by either Ms Chivers or by Queensland Health. Further, of the evidence given about nurses with an impairment not participating fully in the roster a number were distinguished as not relevant. That left the 5 persons referred to as the comparator group.
I find that this comparator group is not a comparator group contemplated by the legislation.
The comparator group must be a group of persons with Ms Chivers’ impairment or a similar medical condition. The problem of unusual medical conditions resulting in an inability to create a group of people with the condition has been dealt with in other cases by creating a hypothetical class of persons, with evidence given as to the ability of such a class or group being able to comply with the term, given what is known objectively about such a condition.[84]
[84] Trindall v New South Wales Commissioner for Police [2005] FMCA 2 at [173].
The difficulty in this case is that there is no evidence of the capacity of a class of sufferers of severe headache disorder to work night shift. The medical evidence in this case is all referable only to Ms Chivers and her capacity to work night shifts.[85]
[85] See Exhibit 78, Report of Dr Cameron at page 5 where he comments that the “unusual headaches she has in the early hours of the morning…appears to be a peculiarity to Ms Rebecca Chivers.”
Queensland Health says that the absence of evidence of the extent to which others could or could not comply with the term or whether they would respond in the same way to working night shift as did Ms Chivers meant that no inference as to proportions of persons within a comparator group could be drawn. It makes the point that no inference could be drawn on these points.
Ms Chivers says that even if the Tribunal was in error in respect of its definition of the comparator group, the very nature of her impairment was such that no group of persons with her impairment and its effect on her of cyclical vomiting, ataxia associated with chronic headaches, chronic daily headache disorder and a seizure disorder, could have complied with the rostering system term. Ms Chivers says this leads to the inevitable inference that a higher proportion of persons without the impairment could comply with the rostering system term.
I agree that this is a matter on which such an inference can be drawn.[86] I find that a hypothetical class of nurses suffering a severe headache disorder which manifests itself in the early morning would be unable to work night shift, in the same way that the medical evidence suggests Ms Chivers is unable to work night shift. If 100% of persons with the impairment cannot comply with the term, yet the Ipswich Hospital is providing 24 hour care across 7 days a week, one can conclude that a substantially higher proportion of nurses without the impairment can and are complying with the term.
[86] Queensland Health v Che Forest (2008) 168 FCR 532 at [8] per Black CJ; Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931.
I accept the submission of Ms Chivers that before an appeal Tribunal may intervene in a decision on appeal, it must be shown that an error of law raised by an appellant vitiates the decision. I agree with Ms Chivers that the error of the Senior Member in describing the comparator group was an error of law and her consequent findings of the proportion of nurses able to comply with the term was in error, however, the error did not vitiate the decision.
By drawing the inevitable inference available on the medical evidence across a hypothetical class of nurses suffering the same condition as Ms Chivers, findings as to the proportion of nurses who had the impairment and were able to comply with the term and the proportion of nurses in the base group who did not have the impairment who could or could not comply with the term naturally fall from the inference. Section 11(1)(b) does not talk in terms of exact percentages. It simply requires a finding of a “higher” proportion of people without the attribute who comply or able to comply with the term. On this basis I find that Queensland Health’s appeal grounds 1(a), (b) and (c) are not made out.
Appeal Ground 3
Queensland Health advised at the hearing that it was not proceeding with appeal ground 2.
Queensland Health argues that the Senior Member wrongly held that it imposed a term that was not reasonable, despite noting that it is not inherently unreasonable to reserve to an employer the right to exercise judgment as to compliance with and participation in a rostering system and further noting that the rostering principles relied on by Queensland Health were “appropriate for the arrangement of nursing care in a 24/7 environment”.
Queensland Health gave evidence that it was unfair on other team members to shoulder the burden of Mr Chivers’ share of the night shifts. It also gave evidence that night shift was important to the development of certain skills such as working autonomously, and performing some tasks only performed on night shift.
Queensland Health submits that the Senior Member wrongly considered whether the imposition of the term or the decision to impose the term on Ms Chivers was reasonable, and not whether the term was of itself, reasonable. It says that the Senior Member fell into error by balancing discrimination on one hand against the other factors on the other, which is a way of asking if the discrimination is reasonable, or whether the other matters were sufficient to excuse the discrimination.[87]
[87] Devers v Kindilan Society (2009) 263 ALR 433 discussed at para 42 of the appellants submissions.
It submits that it is irrelevant that others have been treated as exceptions to the term or that there may be an available alternative, if that alternative is not as efficacious as the term itself.
Ms Chivers submits that it is wrong to simply consider the term in isolation from its effect and that the correct position at law is that that all the circumstances of the matter must be taken into account, including the impact of the term on her continuing employment and the evidence of Queensland Health as to the factors affecting its operation.
As to the alternative considered by the Senior Member, of allowing Ms Chivers to continue working in a ward without performing night shift, Ms Chivers submits that this alternative was efficacious and was demonstrated to be so, because the needs of other nurses were accommodated in this way.
Finally, Ms Chivers submits that it was reasonable for the Senior Member to take into account that Queensland Health’s Reasonable Adjustment Policy had not been applied when her probation was extended.
I reject the submissions of Queensland Health. I accept the submissions of Ms Chivers.
The Senior Member points out that Ms Chivers complaint was not that she was discriminated against because she could not be permanently removed from the night shift roster, but rather that she had been discriminated against by Queensland Health’s insistence that she comply with the term or have the term of her probation extended and ultimately be denied permanent placement. [88]I consider this to be an important focus of the enquiry the Senior Member was required to undertake.
[88] Chivers v State of Queensland [2012] QCAT 166 at [131].
In my view the Senior Member correctly applied section 11 of the Act. The Act gives express guidance as to how to assess whether a term is reasonable. The test is not whether the term in isolation is reasonable, but whether, taking into account all the relevant circumstances of the case, including the consequences of failure to comply with the term, it is a reasonable term.
The Senior Member said that “There must be a weighing of the nature and extent of the discriminatory effect of the term against the reasons advanced in favour of the term”[89] She concluded that consequence of failure to comply with the term put Ms Chivers’ employment at risk and that was disproportionate to the impact of imposing the term on her team members who may experience an increased incidence of night shifts when Ms Chivers was rostered off night duty. In my view that is an appropriate conclusion for the Senior Member to have drawn on the evidence. It is an examination of the consequence of not complying with the term, not a consideration of whether the imposition of the term on Ms Chivers was reasonable, as submitted for by Queensland Health.
[89] Ibid at [127].
The Senior Member considered a range of other circumstances relevant to the case, including all the matters raised by Queensland Health in favour of the reasonableness of the term. I discuss her findings below. I do not think as submitted by Senior Counsel during the hearing of the appeal that the decision reveals the Senior Member elevated the impact of the term on Ms Chivers into a qualification that the term could not be reasonable unless it was fair to the respondent.
The Senior Member found that there was no evidence the team could not work harmoniously if Ms Chivers was not rostered onto night shift and that in fact such an accommodation was often made where flexibility in the roster was needed to meet the needs of individuals within an informal fairness framework.[90] The evidence was available to the Senior Member to make that finding. There is no reason to upset the finding.
[90] Ibid at [132].
The Senior Member accepted the evidence of Ms Chivers’ expert witnesses Ms Fox-Young and Professor Dawson, that there is no particular clinical skill that could only be learned on night duty. Again the evidence was available to the Senior Member to make that finding and there is no reason to upset the finding.
Further to her analysis of all the circumstances of the case, the Senior Member made the point that reasonableness of the term must also be examined in the context that Queensland Health had a Reasonable Adjustment Policy. The Policy provides that to the extent that it is necessary and reasonable, Queensland Health is obliged to organise an assessment of modifications and adjustments to the workplace which could meet the needs of people with an impairment. This was not done, or on the evidence, even considered. As noted by the Senior Member, the Policy requires that a line Manager organize an assessment of the physical and organisational barriers that would unreasonably prevent that person’s employment, limit their performance or curtail their advancement. The assessment is to determine the needs of the person and offer possible solutions for reasonable adjustment.
The evidence revealed that no enquiries were made at ward level whether there was any actual impact that ongoing relief for Ms Chivers from night duty might have on other ward nursing staff, no enquiries were made to ascertain the availability of other positions for Ms Chivers that did not involve night duty. The evidentiary foundation exists for the Senior Member to properly conclude that the Reasonable Adjustment Policy had not been complied with. The Senior Member found that the focus of the relevant personnel was on maintaining the rostering system and making Ms Chivers conform to that system rather than on assessing the practicality of modifying the system.[91]
[91] Ibid at [148].
Ms Chivers’ case was conducted on the basis that if Queensland Health’s Anti-Discrimination Policy and Reasonable Adjustment Policy were applied to her, then in the application of those policies, Queensland Health should have:
(a)confirmed her probation;
(b)accommodated her, as it was able to do with Ms Jeremiah, by not rostering her on night shifts; and
(c)reviewed that accommodation on a periodic basis.[92]
It does not appear that she was seeking permanent relief from night duty beyond completion of the Beginning Nurses Program.
[92] The Applicant’s written submissions, dated 25 November, 2011 at para 196.
I agree with the Senior Member that Queensland Health had the ability and the obligation to consider modifying the term. In my view that term must be considered in the context of Queensland Health’s contractual obligations. If imposition of the term results in disproportionately adverse consequences for an employee, which an express contractual policy is intended to mitigate, it is difficult to conclude that the term is reasonable if the Policy has not been first considered and then found inapplicable.
The other circumstance of this case which the Senior Member addressed and which relates to the consequences of failure to comply with the term, is the three purported extensions of Ms Chivers period of probation. The result of extensions to the probation period was that she was denied the security of employment which attends conclusion of a probationary period. Ms Chivers evidence is that insecurity of employment forced her resignation. She was denied the opportunity to complete the Beginning Nurses Program and to then seek permanent placement in an area of the West Moreton South Burnett Health Service District which did not operate night shifts. Evidence was given that non 24 hours 7 days a week services were operated in day surgery, ante-natal clinics, oncology, outpatient clinics, radiology, early pregnancy loss clinic and community health clinics. Of course Ms Chivers may not have been successful in her application for a position in one of those areas, however, she was denied the opportunity to apply, if she could not be supported in completing the Beginning Nurses Program.
This is not a case involving a permanent employee seeking to be permanently relieved of night duty in a ward which functions 24 hours a day, 7 days a week, where different considerations may apply. Ms Chivers is seeking to be supported through the Beginning Nurses Program which is directed to ensuring she has a range of clinical skills by rotating her across various wards and environments. The evidence in support of the term, in this context, was not accepted by the Senior Member in the face of other credible expert evidence as to how practical clinical skills are achieved; evidence as to the apparent efficacious conduct of wards operating 24 hours 7 days a week when other nurses in the team were not rostered on night shift; and evidence of the failure by Queensland Health to undertake any assessment of reasonable adjustments it could make to Ms Chivers participation in the Beginning Nurses Program, in the face of Ms Chivers’ impairment.
The Senior Member was entitled to accept that evidence and there is no good reason why this Appeal Tribunal should disturb the Senior Member’s findings in that regard.
In short, Queensland Health did not discharge its onus in establishing the reasonableness of the term.
Ground 4
The Senior Member found that it was not a genuine occupational requirement in terms of section 25 of the Anti-Discrimination Act 1991 that Ms Chivers as a registered nurse working in wards operating 24 hours 7 days a week must be able to work all shifts.
The Senior Member found that Ms Chivers could work a reasonable number of the hours during which nursing services were needed in a 24 hours 7 days a week ward. The Senior Member found on the evidence that 24 hours 7 days a week care was able to be provided even though at any one time some nursing staff were not able to work all shifts. She found merit in Ms Chivers submission that inflexibility in rostering arrangements, disguised as occupational requirements, failed to make reasonable accommodation for someone with an impairment as required by the Reasonable Adjustment Policy.
Queensland Health submits that the Tribunal erred in ignoring Ms Chivers’ contract of employment which required her to work across all shifts in the roster, so that by being permanently relieved of that obligation her job was no longer the job she was engaged to perform. It submits the Tribunal erred by finding that it was not an occupational requirement that a nurse allocated to a 24 hours 7 days a week ward must be capable of working all shifts on the roster. Finally, Queensland Health complained that the Senior Member placed significance on the fact that there was evidence of 5 examples of exceptions made to the general rule that nurses work within the rostering system. Queensland Health acknowledged that there were exceptions to the term made from time to time, however they were never long term and were always subject to its operational requirements. It says exceptions do not impinge upon a genuine occupational requirement.
Ms Chivers submits that no error of law is made out because the Tribunal took into account the requirement imposed by the roster to work all shifts. She points out that no finding was made of the requirement having been imposed by an express term of her contract of employment. Ms Chivers says that the Tribunal found on the evidence that her position, even by not rostering across all shifts, was essentially the same.
With respect to Queensland Health’s remaining submissions Ms Chivers again submits that no error of law was made because the Senior Member considered and weighed the facts before her including Queensland Health’s ability to roster registered nurses working across all shifts in wards operating 24 hours 7 days a week and the fact that there were nurses not required to work across all shifts. Ms Chivers says that it was a question of fact not law as to whether the exemption was proven.
I accept Ms Chivers submissions. I do not consider there is any basis to upset the Senior Member’s findings in relation to the evidence before her which went to the question of occupational requirement.
The starting point for a determination of “genuine occupational requirements for a position” must be to establish the nature of the position held by Ms Chivers.
During the hearing of the appeal Senior Counsel for Queensland Health submitted that Ms Chivers was explicitly hired to undertake the graduate, Beginning Nurses Program, on probation.
Ms Chivers applied to be accepted into that program. She was given a letter of offer, dated 24 December, 2007 which offered her employment as a Registered Nurse, Ipswich Hospital on a permanent part time basis at the West Moreton South Burnett Health Service District. Importantly her “Unit/Department/Division” was noted as – “to be advised”. That is consistent with permanent placement in a particular part of the service being undertaken after the Beginning Nurses Program has been successfully completed.
The letter of offer provides that the relevant industrial instrument is the Nurses (Queensland Health) Certified Agreement 2006. The Certified Agreement incorporates a number of other Awards. Relevantly, the Nurses (Queensland Public Hospitals) Award 1991 defines a RN Level 1 – Registered Nurse as “an employee appointed to that classification which covers work by an employee who is registered by the Queensland Nursing Council and holds a current annual licence certificate. Roles and responsibilities of the Level 1 Registered Nurse are described in the Generic level statements…”
The Generic level statement sets out requirements for accountability and responsibility for a Nurse’s own actions, a requirement for professional or ethical practice and a range of required competencies. The definition does not set out tasks or a requirement to work continuous shifts.
Shift Worker is defined in the Award as a person employed on shift work and detailed provisions set out requirements in relation to shifts and breaks between shifts. Nothing in the Award makes continuous shift work mandatory.
The General Terms and Conditions of Employment provided to Ms Chivers along with her letter of offer provides in relation to Shift work that “…all employees working on a continuous shift basis may be required to work all shifts on a roster…”.
Obviously, not all services provided by the West Moreton South Burnett Health Service District require continuous shift work, accordingly the relevant definitions and requirements are hedged around whether a registered nurse is appointed to perform continuous shift work in a particular area of the service.
Ms Chivers was appointed to undertake the Beginning Nurses Program. If she successfully completed that program she could then apply for a position in an area of interest to her. The Beginning Nurses Program booklet setting out details of the program was provided to Ms Chivers with her letter of appointment.
Relevantly, it provides that the West Moreton South Burnett Health Service District will provide: “Clinical placements/experiences within areas of RN participant preference (where possible)…”. “It is expected that participants of the WMSBHS district beginning RN program will…fulfil the requirements and work within the duties and responsibilities of the RN job description as a member of the clinical care team…”
The concluding paragraph of the booklet states under the heading Rotational Clinical Placements: “Please note if you have not been allocated to a particular clinical area of interest, but see your future nursing career in that area, you may apply for a position in your chosen area at the completion of the program.”
As has been previously discussed the contract of employment also encompasses the Reasonable Adjustment Policy, dated January, 2003, then superseded by a similar policy dated July, 2008. The General Terms and Conditions of Employment provide that Queensland Health “possesses a comprehensive suite of policies and procedures. You are expected to understand and comply with both the Code of Conduct and policies as failure to abide by the provisions may be grounds for disciplinary action including dismissal…”
No submission was made that Queensland Health was not bound to apply the Reasonable Adjustment Policy. Senior Counsel said during the hearing of the appeal that the Policy is a piece in the matrix, and nothing in the policy gives Ms Chivers a particular entitlement.
I am of the view that where, as in this case, the contract requires an employee to comply with existing policies, not only is the employee bound by obligations in the policies but the employee is entitled to receive the benefits in those policies.[93]Further, I consider a reasonable person in the position of Ms Chivers, reading the Policy would conclude that Queensland Health intended to be bound by it.[94]
[93] Riverwood International Ltd v McCormick (2000) 177 ALR 193 at [106] per North J; at [150] per Mansfield J; Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FACFC 120 at [131] per Marshall J.
[94] Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 at [23] –[24] per Black CJ.
To return to the question at hand, is it a genuine occupational requirement of Ms Chivers’ position:
·as a registered nurse engaged in a Beginning Nurses Program, subject to 3 four monthly rotations across the Health Service District; designed to achieve a raft of clinical skills in practice;
·not permanently placed in any particular part of the Health Service District;
·who is entitled to be considered for reasonable adjustment of “organisational practices”, if she becomes impaired during the course of her employment;
that she “be able to participate in the rostering system in place for registered nurses engaged in roles that provided 24 hour care 7 days a week”?
Queensland Health rely upon the decision in Qantas Airways Ltd v Christie[95] in support of its contention that it was a genuine occupational requirement of Ms Chivers’ position that she be able to comply with Queensland Health’s rostering system. I agree with the Senior Member that the factual circumstances of the employment in Christie’s case are very much different to the employment in Ms Chivers’ case, sufficient to distinguish the two cases.
[95] (1998) 193 CLR 280.
In Christie’s case, Mr Christie was employed by Qantas as an international pilot. Once he turned 60 he was unable as a pilot to enter the airspace of most of the countries flown to by Qantas, as a result of requirements of those countries. In fact, he could only make short journeys to Indonesia, Fiji and New Zealand. The result was that Mr Christie could not participate in the roster which provided for long haul routes, complemented by short haul routes to make up flying hours. The operational burden to Qantas, in rostering only short haul flights to Mr Christie was significant.
McHugh J said at [87] in Christie’s case: “…The ability to fly to most of Qantas’ overseas destinations is a requirement which was, to use the words of Cooper J in the Commonwealth v Human Rights and Equal Opportunity Commission (92), “truly necessary to ensure the adequate performance of the employment.”
In this case it was found that Ms Chivers could perform all her tasks and work day and evening shifts. That is considerably greater performance of the employment contract to that Mr Christie was able to achieve and sufficient to distinguish the two cases. I agree with the Senior Member that despite not being able to perform night duty, Ms Chivers was able to adequately perform her employment as a registered nurse undertaking the Beginning Nurses Program.
As to the significance of an ability to participate in the roster, I do not think that ability to participate is the mark of a genuine occupational requirement. A rostering system is an organizational tool for an employer which may be structured and staffed in many different ways to achieve the same result.
As noted by Gaudron J in Christie’s case: “…it would not be correct, in my view, to identify compliance with the roster system as an inherent requirement of the particular position occupied by Mr Chiritie. A roster system is simply an administrative arrangement designed to ensure the systematic performance of the work to which it relates. However, it does not follow that a roster system is wholly irrelevant for it may be that the inherent requirements of a particular position or at least, some of them, can be discerned from it.”
Her Honour then went on to discern those elements of the work of Mr Christie which she considered to be inherent requirements of his position, being the work he was actually engaged and rostered to perform.
In Ms Chivers case she has been engaged to participate in a Beginning Nurses Program in order to achieve certain clinical skills and to perform the work of a Registered Nurse as defined in the Award. In my view they are the inherent requirements of the position to which she was appointed, not an ability to comply with the roster.
I consider that the term sought to be imposed has even less status in terms of the inherent requirements of the position, because of Ms Chivers entitlement to be considered for a modification of the Program so that she is not required to work night duty. Modification may have been possible by giving her rotations in areas of the Hospital not providing services 24 hours a day for 7 days a week, or by locating nurses willing to take on more night duty to enable her Program placement in that area. Such outcomes seem reasonable, but we do not know if they were possible because the relevant Queensland Health Staff did not apply their Policy.
Contrary to the submission of Queensland Health, I do not consider that Ms Chivers’ contract required her to work across all shifts in the roster. I consider that her contract required her to complete the Beginning Nurses Program before being permanently placed. If Ms Chivers was rotated into wards which operated through continuous shift work, the contract required her to perform that work unless reasonable adjustment was necessary and reasonable because of an impairment.
Contrary to Queensland Health’s submission, Ms Chivers was not seeking to be permanently removed from the obligation to work across all shifts in the roster so that her job would no longer be the job she was employed to perform. Her case is that she should have been supported to complete the Beginning Nurses Program by adjustment to the Program as she was contractually entitled to expect.
It may be the case that an ability to undertake continuous shift work is an inherent requirement of a Registered Nurse who has completed the Program and been placed in a ward operating 24 hours 7 days a week, but that is not the situation of Ms Chivers and that is not the case before us, although that is the way many of Queensland Health’s submissions were cast.
I conclude that the term is not an inherent requirement of Ms Chivers position as a participant in the Beginning Nurses Transition Program.
Orders
On the basis of the matters set out in these Reasons I would dismiss the appeal and affirm the Decision of the Tribunal of 10 April, 2012. However, in light of section 115 of the Queensland Civil and Administrative Tribunal Act 2009, the Decision is that of the Presiding Member.
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