Toodayan and Toodayan v Metro South Hospital and Health Service
[2023] QIRC 36
•9 February 2023
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION:
PARTIES:
Toodayan and Toodayan v Metro South Hospital and Health Service & Others [2023] QIRC 036
Toodayan, Nadeem
(Complainant)v
Metro South Hospital and Health Service
(First Respondent)and
Jordan, Lizbeth
(Second Respondent)and
Nicholls, Kim
(Third Respondent)CASE NO:
PARTIES
CASE NO:
PARTIES:
CASE NO:
AD/2018/67
Toodayan, Zaheer
(Complainant)v
Metro South Hospital and Health Service
(First Respondent)and
Jordan, Lizbeth
(Second Respondent)and
Nicholls, Kim
(Third Respondent)AD/2018/68
Toodayan, Nadeem
(First Complainant)and
Toodayan, Zaheer
(Second Complainant)v
Metro South Hospital and Health Service
(Respondent)AD/2019/110
PROCEEDING:
Referral of Complaints
DELIVERED ON:
9 February 2023 HEARING DATES:
MEMBER:
HEARD AT:
ORDERS:
8 October 2019 (AD/2018/67 & AD/2018/68)
9 September 2020 (AD/2019/110)
8 March 2021 (AD/2018/67, AD/2018/68 & AD/2019/110)
11-28 October 2021 inclusive (AD/2018/67, AD/2018/68 & AD/2019/110)
3 December 2021 (AD/2018/67, AD/2018/68 & AD/2019/110)O'Connor VP
Brisbane
1. That Complaints AD/2018/67, AD/2018/68 and AD/2019/110 be dismissed.
2. I will hear the parties on the question of costs.
CATCHWORDS:
LEGISLATION:
CASES:
APPEARANCES:
HUMAN RIGHTS - DISCRIMINATION LEGISLATION - GENERALLY - where complainants employed as intern doctors of the respondent - where respondent implemented management strategy - where respondent made voluntary notifications to Australian Health Practitioner Regulation Agency - where first complainant resigned before completing general registration - where second complainant not offered further employment at end of internship - where complainants entered hospital when not workers and had no right to access the hospital at that time of day or enter particular areas - where second complainant pleaded guilty to trespass, computer hacking and misuse - where first complainant pleaded guilty to trespass - where respondents submit all applications are out of time and should be dismissed - where complainants allege discrimination on the basis of certain attributes - where attribute of religious belief within the meaning of s 7(i) of the Anti‑Discrimination Act 1991 - where attribute of race within the meaning of s 7(g) of the Anti‑Discrimination Act 1991 - whether person with an attribute is treated less favourably than another person without the attribute - whether discrimination in work area - whether discrimination in administration of state laws and programs area - where complainants seeking apology and general damages pursuant to ss 15 and 101 of the Anti‑Discrimination Act 1991 - where complainants failed to discharge the onus of establishing the treatment of them amounts to unlawful direct discrimination - complaints dismissed.
Anti-Discrimination Act 1991 (Qld), s 6, s 7, s 8, s 10, s 15, s 46, s 101, s 138, s 164A, s 175, s 209
Criminal Code Act 1899 (Qld), s 408E
Health Practitioner Regulation National Law Act 2009 (Qld), s 144
Hospital and Health Boards Act 2011 (Qld), s 15
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 52
Summary Offences Act 2005 (Qld), s 11Bird v the Commonwealth (1988) 165 CLR 1
Bonner v Secretary, Department of Industry [2017] NSWCATAD 229
Campbell v Kirstenfeldt [2008] FMCA 1356
Carlton v Blackwood [2017] ICQ 001
Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6
Creek v Cairns Post Pty Ltd (2001) 112 FCR 342
Curwen & Ors v Vanbreck Pty Ltd (2009) 26 VR 335
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Dezfouli v Health Care Complaints Commission [2018] NSWCATAD 245
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Forest v Queensland Health [2007] FCA 1236
G v. H (1994) 181 CLR 387
Haider v Hawaiian Punch Pty Ltd [2015] FCA 37
IW v City of Perth (1997) 191 CLR 1
Jones v Toben [2002] FCA 1150
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88
McEvoy v Acom Stairlifts Pty Ltd [2017] NSWCATAD 273
Petrak v Griffith University [2020] QCAT 351
Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; 217 CLR 92; 78 ALJR 1; 202 ALR 133
Qantas Airways Ltd v Gama (2008) 167 FCR 537
R v A2 (2019) 373 ALR 214
Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 A11 ER 26
Sharma v Legal Aid (Qld) (2002) 115 IR 91
Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278
Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260
Woodforth v State of Queensland [2017] QCA 100; [2018] 1 Qd R 289
Wotton v State of Queensland (No 5) [2016] 352 ALR 146
Wright v Callvm Vacheron Wallace Bishop & Anor [2018] QIRC 007
Yousif v Workers' Compensation Regulator [2017] ICQ 004Mr N.J. Derrington, Counsel instructed by Mr Z. Kelly, Greystone Lawyers for the Complainants.
Mr C. Murdoch, KC and with him Dr M. Brooks, Counsel instructed by Mr T. Walthall, Minter Ellison Lawyers for the Respondents
Reasons for Decision
[1]On 14 August 2018 applications AD/2018/67 and AD/2018/68 were referred from the Anti-Discrimination Commission Queensland (ADCQ) (now the Queensland Human Rights Commission (QHRC) as from 1 July 2019) to the Queensland Industrial Relations Commission (the Commission) in accordance with s 164A of the Anti‑Discrimination Act 1991 (the AD Act).
[2]On 18 September 2019 application AD/2019/110 was transferred to the Commission from the Queensland Civil and Administrative Tribunal pursuant to s 52(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
[3]At a hearing on 8 October 2019 the parties agreed as there were a number of similarities that all three matters be heard together.[1] All matters were listed for hearing from 11‑28 October 2021.
[1] TR1-2, LL14-34.
[4]The Complainants, Dr Nadeem Toodayan (Dr Nadeem) and Dr Zaheer Toodayan (Dr Zaheer) have brought three separate claims against the Respondents:
(a) a claim by Dr Nadeem alleging direct discrimination on the basis of religious belief against Metro South Health and Hospital Board (MSHHS), Dr Lizbeth Jordan and Dr Kim Gill (nee Nicholls) in relation to Dr Nadeem's internship;
(b) a claim by Dr Zaheer alleging direct discrimination on the basis of his religious beliefs against MSHHS, Dr Lizbeth Jordan and Dr Gill in relation to Dr Zaheer's internship; and
(c) a claim by Dr Nadeem and Dr Zaheer alleging direct discrimination on the basis of their respective religious beliefs and/or race against Dr Nadeem and Dr Zaheer at the Princes Alexandra Hospital (PAH) on 4 April 2014 (G20 Incident).
[5]In respect of AD/2018/67 and AD/2018/68 the Complainants are seeking the following:
1. An order, pursuant to s 209(1)(b) and (g) of the AD Act, that the respondents pay to the complainants compensation for loss and damage suffered by reason of their contraventions of s 15 of the AD Act.
2. An order, pursuant to s 209(1)(e), or in the alternative s 209(1)(d) of the AD Act, that the respondents make a public, or in the alternative private, apology to the complainants.
[6]In respect of AD/2019/110 the Complainants are seeking the following:
1. An order, pursuant to s 209(1)(b) and (g) of the AD Act, that the respondent pay to the complainants compensation for loss and damage suffered by reason of its contraventions of ss 15, 46 and 101 of the AD Act.
2. An order, pursuant to s 209(1)(e), or in the alternative s 209(1)(d) of the AD Act, that the respondent make a public, or in the alternative private, apology to the complainants for its contraventions of ss 15, 46 and 101 of the AD Act.
[7]The Hospital and Health Boards Regulation 2012 was amended by the Hospital and Health Boards (Changes to Prescribed Services) Amendment Regulation 2019 as from 15 June 2020 whereby particular health service employees will be employed by the chief executive of the department. As a consequence, the relief sought against the health service will now be against the State of Queensland.
[8]As the Complainants are twin brothers they will be referred to by their respective Christian names for ease of reference within this decision.
Facts and Contentions
[9]The Respondents initially argued that in respect of AD/2018/67, AD/2018/68 and AD/2019/110 all three applications are out of time. The complaints were made outside of the one-year statutory time limit provided by s 138 of the AD Act. In respect of matters AD/2018/67 and AD/2018/68, the Respondents argued that before considering any of the substantive matters in dispute between the parties, the Commission should exercise its discretion not to accept the complaints and an order made that matters AD/2018/67 and AD/2018/68 be dismissed.[2]
[2] AD/2018/67 - Response to the complainant's SOFCs filed 18 October 2018, [2], [24]‑[26]; AD/2018/68 - Response to the complainant's SOFCs filed 18 October 2018, [2], [23]‑[25].
[10]Whilst the strike out was agitated in the Respondents' Response to the Complainants' Statement of Facts and Contentions (SOFCs), the argument was not further advanced before the Commission prior to the hearing of the substantive issues.
AD/2018/67
Complainant - Dr Nadeem
[11]The Complainant, Dr Nadeem was employed by the Respondent at the PAH as an intern doctor between January 2012 and 19 November 2013. Dr Nadeem is of the Afghan race and is, and at all material times was, of the Islamic faith.
[12]The Second Respondent, Dr Jordan was at all material times between January 2012 and 19 November 2013, the Deputy Director of Medical Services or Executive Director of Medical Services (EDMS) at the PAH.
[13]The Third Respondent, Dr Nicholls was at all material times between January 2012 and 11 November 2013, the Acting Director of Clinical Training, or the Director of Clinical Training (DCT) at the PAH.
[14]As of 31 January 2012, Dr Jordan was aware that Dr Nadeem was of the Islamic faith and perceived Dr Nadeem to be a devout Muslim, as having a rather narrow view of normality and to be quite judgmental at times.
Management Strategy
[15]On 31 January 2012, Dr Jordan emailed, inter alia, Dr Nicholls (Gill) and proposed that Dr Nicholls, herself and the other recipients of the email would cause the PAH to implement a management strategy (the Management Strategy) in respect of Dr Nadeem's employment, whereby supervisory staff would:
(a) treat Dr Nadeem more firmly (including no margin for question) when correcting mistakes or providing feedback, as compared to other interns in the same or a similar position;
(b) correct more frequently mistakes made by Dr Nadeem as compared to other interns making the same number of mistakes in their training;
(c) provide more direct, specific, precise and consistent feedback than would be given to other interns in the same or a similar position about what is appropriate and what is not;
(d) be more blunt and to the point about what interns could and could not do when supervising or dealing with Dr Nadeem as compared to other interns in the same or a similar position; and
(e) give feedback to Dr Nadeem only in absolute, rather than qualified terms, as would usually occur with other interns in the same or in a similar position.[3]
[3] AD/2018/67 - Complainant's SOFCs filed 27 September 2018, [6].
[16]The actions of writing the email and proposing the implementation of the Management Strategy was said to involve treatment of Dr Nadeem that was less favourable than Dr Jordan would have treated a medical intern, at the same respective stages of their internship, who was not perceived to be a devout Muslim; as having a rather narrow view of normality and/or as having a tendency to be quite judgemental at times.
[17]It is contended that a substantial reason for Dr Jordan drafting the email and proposing the implementation of the Management Strategy was, individually and cumulatively, each of Dr Jordan's perceptions.
[18]As set out in Complainant's SOFCs, Dr Jordan is alleged to have treated Dr Nadeem less favourably on account of the attribute of his religious belief[4] and outlined specific instances of the implementation of the Management Strategy on Dr Nadeem.[5]
[4] Ibid, [9].
[5] Ibid, [10]-[15].
Notifications to AHPRA
[19]In implementation of the Management Strategy on or about 10 September 2012, Dr Jordan made a voluntary notification under s 144(1)(a) and (b) of the Health Practitioner Regulation National Law Act 2009 (Qld) (the National Law) to the Australian Health Practitioner Regulation Agency (AHPRA) about Dr Nadeem, in which she criticised Dr Nadeem's use of language in a discharge summary and reported to AHPRA the matters pleaded.[6]
[6] Ibid, [16(b)].
[20]Further, in implementation of the Management Strategy on or about 14 December 2012 and 8 March 2013, Dr Gill wrote to AHPRA to express concern to the Medical Board of Australia (MBA/the Medical Board) about Dr Nadeem's ongoing registration, purportedly because of, inter alia, a concern about Dr Nadeem's 'performance and ability to remediate areas of weakness'.
[21]The actions of making the voluntary notification and writing to AHPRA involved treatment of Dr Nadeem that was less favourable than Drs Jordan and Gill would have treated a medical intern in similar circumstances to Dr Nadeem at the respective time of the voluntary notification and writing the letters who was not perceived to be a devout Muslim, as having a rather narrow view of normality and/or as having a tendency to be quite judgemental at times.
Consequences of the conduct of the Respondents
[22]As a result of the implementation of the Management Strategy and the matters set out in paragraphs 16-23 of his SOFCs, Dr Nadeem had conditions placed on his provisional registration by AHPRA in or about May 2013.[7]
[7] AD/2018/67 - Complainant's SOFCs filed 27 September 2018, [24].
[23]On or about 28 October 2013, before Dr Nadeem obtained his general registration, the First Respondent required him to show cause why his employment should not be terminated, inter alia, because of the decisions of the First Respondent referred to in paragraphs 11(b), (e), (g), (i) and (j) of his SOFCs; and Dr Nadeem not being assessed as having satisfactorily completed certain rotations, notwithstanding the matters in paragraphs 11(f)(i) and (h)(i) of his SOFCs.[8]
[8] Ibid, [25].
[24]By reason of the above Dr Nadeem resigned his employment on 19 November 2013 and was precluded from obtaining employment to continue his training as a doctor, other than for a three-month period between October and December 2014, until October 2016. He was required to move interstate to continue that training and was only able to obtain his general registration as a doctor in or about May 2017 and has suffered economic loss.
[25]Dr Nadeem suffered loss and damage by reason of injury to his professional and personal reputation, and the suffering of humiliation and distress.
[26]Dr Nadeem contends he was directly discriminated against within the meaning of s 10 of the AD Act on each of the occasions pleaded on the basis of the attribute of his religious belief within the meaning of s 7(i) of the AD Act. He also contends Drs Jordan and Nicholls contravened s 15(1)(f) of the AD Act. Further, Dr Nadeem contends he suffered the loss pleaded by reason of the contraventions pleaded.
Respondents
[27]The Respondents contend they have not engaged in any conduct which constitutes discrimination under the AD Act. Dr Nadeem was not treated less favourably because of the attribute of his religious belief; decisions made, and action taken was because of documented concerns about Dr Nadeem's performance during his internship; and persons without the attribute of Dr Nadeem's religious belief would have been treated in the same way because of those performance issues.[9]
[9] AD/2018/67 - Respondents' SOFCs filed 18 October 2018, [1].
[28]The Respondents specifically responded to each of the Complainant's allegations in paragraphs [1] to [27] of his SOFCs.[10]
[10] Ibid, [3]-[22].
Discrimination on the basis of religious belief
[29]The Respondents deny they have engaged in any conduct which constitutes direct discrimination within the meaning of s 10 of the AD Act on the basis of Dr Nadeem's religious beliefs within the meaning of s 7(i) of the AD Act because it is not true. Each occasion where discrimination is alleged to have occurred that the treatment of Dr Nadeem was as a result of his performance as an intern being considered to be unsatisfactory was not on the basis of the attribute of his religious beliefs. In any event, a person of a different religious belief to Dr Nadeem's religious beliefs would have been treated in the same way in circumstances that are the same or not materially different.[11]
[11] Ibid, [23].
[30]Further, the Respondents deny the allegations they contravened s 15 of the AD Act as it is not true. It is also denied their actions caused economic loss or damage.
AD/2018/68
Complainant - Dr Zaheer
[31]It was contended that as of 31 January 2012, Dr Jordan was aware that Dr Zaheer was of the Islamic faith and perceived to be a devout Muslim, as having a rather narrow view of normality and quite judgmental at times.
Management Strategy
[32]On 31 January 2012, Dr Jordan emailed Dr Gill and proposed that Dr Gill, Dr Jordan and the other recipients of the email would cause the PAH to implement a Management Strategy in respect of Dr Zaheer's employment, whereby supervisory staff would:
(a) treat Dr Zaheer more firmly (including no margin for question) when correcting mistakes or providing feedback, as compared to other interns in the same or a similar position;
(b) correct more frequently mistakes made by Dr Zaheer as compared to other interns making the same number of mistakes in their training;
(c) provide more direct, specific, precise and consistent feedback than would be given to other interns in the same or a similar position about what is appropriate and what is not;
(d) be more blunt and to the point about what interns could and could not do when supervising or dealing with Dr Zaheer as compared to other interns in the same or a similar position; and
(e) give feedback to Dr Zaheer only in absolute, rather than qualified terms, as would usually occur with other interns in the same or a similar position.[12]
[12] AD/2018/68 - Complainant's SOFCs filed 27 September 2018, [6].
[33]The actions of writing the email and proposing the implementation of the Management Strategy involved treatment of Dr Zaheer that was less favourable than Dr Jordan would have treated a medical intern, at the same respective stages of their internship, who was not perceived to be a devout Muslim; as having a rather narrow view of normality and/or as having a tendency to be quite judgmental at times. A substantial reason for Dr Jordan writing the email and proposing the implementation of the Management Strategy was, individually and cumulatively, each of Dr Jordan's perceptions.
[34]As set out in the Complainant's SOFCs, Dr Jordan treated Dr Zaheer less favourably on account of the attribute of his religious belief[13] and outlined specific instances of the implementation of the Management Strategy on Dr Zaheer.[14]
[13] Ibid, [7]-[9].
[14] Ibid, [10]-[15].
Notifications to AHPRA
[35]In implementation of the Management Strategy on or about 14 December 2012 and 8 March 2013, Dr Nicholls wrote to AHPRA to express concern about Dr Zaheer's ongoing registration and performance; in the letter dated 14 December 2012 Dr Nicholls made representations to AHPRA about the assessment of Dr Zaheer's clinical judgement that were incorrect and, in the letter, dated 8 March 2013 Dr Nicholls made representations to AHPRA about the assessment of Dr Zaheer's professionalism that were incorrect or incomplete.[15]
[15] Ibid, [16].
[36]As a result of the communications to AHPRA on or about 15 August 2013, AHPRA imposed conditions on Dr Zaheer's provisional registration requiring him to practise medicine with a higher level of supervision than an intern normally would require; Dr Zaheer was, as a result, unable to work between 8 October 2013 and 25 November 2013; and Dr Zaheer was not offered ongoing employment with the PAH after 20 January 2014.
[37]The consequences of the conduct of the Respondents were that on or about 5 May 2014, Dr Zaheer obtained his general registration but only with the conditions which had been imposed by AHPRA continuing to be imposed; Dr Zaheer was thereafter precluded from obtaining employment to continue his training as a doctor until 27 October 2016; was required to move to New South Wales to continue that training, was only able to obtain general registration as a doctor without conditions in or about August 2017 and has suffered economic loss. Further, Dr Zaheer suffered loss and damage by reason of injury to his professional and personal reputation and the suffering of humiliation and distress.[16]
[16] AD/2018/68 - Complainant's SOFCs filed 27 September 2018, [23]-[24].
[38]Dr Zaheer contends he was directly discriminated against within the meaning of s 10 of the AD Act on each of the occasions pleaded on the basis of the attribute of his religious belief within the meaning of s 7(i) of the AD Act.[17]
[17] Ibid, [25].
Respondents
[39]The Respondents contend they have not engaged in any conduct which constitutes discrimination under the AD Act. Dr Zaheer was not treated less favourably because of the attribute of his religious belief; decisions made, and action taken was because of documented concerns about Dr Zaheer's performance during his internship; and persons without the attribute of Dr Zaheer's religious belief would have been treated in the same way because of those performance issues.[18]
[18] AD/2018/68 - Respondents' SOFCs filed 18 October 2018, [1].
[40]The Respondents submitted responses to each of the Complainant's allegations in paragraphs [1] to [24] of his SOFCs.[19]
[19] Ibid, [3]-[21].
Discrimination on the basis of religious belief
[41]The Respondents deny they have engaged in any conduct which constitutes direct discrimination within the meaning of s 10 of the AD Act on the basis of Dr Zaheer's religious beliefs within the meaning of s 7(i) of the AD Act because it is not true. Each occasion where discrimination is alleged to have occurred that the treatment of Dr Zaheer was as a result of his performance as an intern being considered to be unsatisfactory was not on the basis of the attribute of his religious beliefs. In any event, a person of a different religious belief to Dr Zaheer's religious beliefs would have been treated in the same way in circumstances that are the same or not materially different.[20]
[20] Ibid, [22].
[42]Further, the Respondents deny the allegations they contravened s 15 of the AD Act as it is not true. It is also denied their actions caused economic loss or damage.
AD/2019/110
Complainants
[43]The Complainants state as of 31 January 2012, or in the alternative as of 4 April 2014, and subsequent thereto, persons of the Islamic faith and/or persons of the Afghan race:
(a) often had imputed to them that they were devout Muslims;
(b) often had imputed to them that they posed a greater threat to security than members of the general population; and
(c) often had imputed to them that they were more likely than members of the general population to be involved in planning for and/or committing dangerous acts and/or acts of terrorism.[21]
[21] AD/2019/110 - Complainants' SOFCs filed 25 October 2019, [3].
[44]In the alternative to paragraph 3 of the Complainants' SOFCs, as at 31 January 2012, or in the alternative as at 4 April 2014, and subsequent thereto, persons of the Islamic faith and/or persons of the Afghan race who were perceived to be 'devout Muslims':
(a) often had imputed to them that they posed a greater threat to security than members of the general population; and
(b) often had imputed to them that they were more likely than members of the general population to be involved in planning for and/or committing dangerous acts and/or acts of terrorism.[22]
[22] Ibid, [4].
G20 Incident
[45]During his employment at the PAH, Dr Zaheer had been an intern in the colorectal unit. On or around 4 April 2013 a young patient, was admitted under the care of the medical team of which Dr Zaheer was a part. The patient was diagnosed with terminal cancer and subsequently passed away in December 2013.
[46]The Complainants' primary purpose in entering the PAH on 4 April 2014 was for:
(a) Dr Zaheer, having been profoundly affected by the death of the patient:
(i)to undertake a personal reflection on the death of the patient on the anniversary of her admission and diagnosis by revisiting both the location of the events and her previous pathology records;
(ii)to accompany Dr Nadeem in the purposes set out in sub-paragraph (b); and
(b) Dr Nadeem:
(i)to support his brother in the purposes set out in sub-paragraph (a);
(ii)to return a library book; and
(iii)to photograph some posters on medical history that he and Dr Zaheer had placed in the doctors' on-call room of the hospital during their employment.[23]
[23] Ibid, [9].
[47]During the incident Dr Zaheer took photographs of specific areas of the colorectal ward and ward corridor relating to his reflective exercise. He also accessed the computer and took four photos of the computer screen which showed pathology results. Dr Zaheer said he was not taking photos of nursing staff. Both complainants left the colorectal ward, attended the doctors' common room and pathology department, returned Dr Nadeem's library book and after being spoken to by a security officer, namely Mr Coates to whom they disclosed the true purposes for their attendance at the PAH, left the PAH.[24]
[24] AD/2019/110 - Complainants' SOFCs filed 25 October 2019, [10]-[11].
Conduct of the Respondent following the Incident
[48]Later on 4 April 2014, Dr Ashby the then Chief Executive, MSHHS was briefed and told Ms Smith and Dr Birgan to immediately contact the G20 Dignitary Protection Unit which was part of the Intelligence, Counter-Terrorism and Major Events Command of the Queensland Police Service (QPS) and seek advice on briefing the Royal Visit Dignitary Protection Unit.[25]
[25] Ibid, [12]-[13].
[49]The Complainants contend that the giving of the instructions by Dr Ashby was treatment that was less favourable than Dr Ashby would have treated a former medical intern of the Respondent, who was not perceived:
(a) to be of the Islamic faith;
(b) to be of the Afghan race;
(c) to be a devout Muslim;
(d) to pose a greater threat to security than members of the general population because of their race or religion; and
(e) to be more likely than members of the general population to have gained access to the PAH for the purpose of committing a dangerous act and/or in preparation for or in relation to an intended act of terrorism because of their race or religion,
because Dr Ashby would not have instructed a Hypothetical Comparator to be reported to a counter‑terrorism unit of the QPS.[26]
[26] Ibid, [16].
[50]In the alternative, the giving of the instructions by Dr Ashby involved treatment of the Complainants that was less favourable than Dr Ashby would have treated an ordinary visitor to the PAH, who was not perceived:
(a) to be of the Islamic faith;
(b) to be of the Afghan race;
(c) to be a devout Muslim;
(d) to pose a greater threat to security than members of the general population because of their race or religion; and
(e) to be more likely than members of the general population to have gained access to the PAH for the purpose of committing a dangerous act and/or in preparation for or in relation to an intended act of terrorism because of their race or religion,
because Dr Ashby would not have instructed an Alternative Hypothetical Comparator to be reported to a counter-terrorism unit of the QPS.[27]
[27] AD/2019/110 - Complainants' SOFCs filed 25 October 2019, [17].
[51]In the premises of paragraphs 12 to 18 of their SOFCs, the Complainants state Dr Ashby treated them less favourably on account of the attribute of their religious belief and/or the attribute of their race.[28]
[28] Ibid, [19].
Respondent's compliance with the Instruction
[52]Dr Ashby's giving of the instructions on 4 April 2014 caused employees of the Respondent to report the incident to a counter-terrorism unit of the QPS and to provide information about the Complainants to the QPS, including:
(i) a comprehensive background history of the Complainants which included information about their race and religion; and
(ii) a statement that the Complainants had longer beards and hair than when they were interns at the PAH; and
(iii) information about the management strategy adopted during their internships, which included information about their race and religion.[29]
[29] Ibid, [20].
[53]The Respondent's compliance with the instructions of Dr Ashby, by its employees pleaded in paragraph 20(b) of the Complainants' SOFCs, was treatment of the Complainants that was less favourable than the Respondent would have treated a Hypothetical Comparator, because the Respondent would not have complied with an instruction to report a Hypothetical Comparator to a counter-terrorism unit of the QPS or to provide the information to that unit as pleaded in paragraph 20(b).[30]
[30] Ibid, [21].
[54]In the alternative, the Respondent's compliance with the instructions of Dr Ashby, by its employees pleaded in paragraph 20(b) of the Complainants' SOFCs, was treatment of the Complainants that was less favourable than the Respondent would have treated an Alternative Hypothetical Comparator, because the Respondent, by its employees, would not have complied with an instruction to report an Alternative Hypothetical Comparator to a counter-terrorism unit of the QPS or to provide the information to that unit pleaded in paragraph 20(b).[31]
[31] Ibid, [22].
[55]The Complainants state a substantial reason for the Respondent's compliance with the instructions of Dr Ashby was, individually and cumulatively, each of Dr Ashby's perceptions that the Complainants:
(a) were of the Islamic faith;
(b) were of the Afghan race;
(c) were devout Muslims;
(d) posed a greater threat to security than members of the general population because of their race or religion; and
(e) were more likely than members of the general population to have gained access to the PAH for the purpose of committing a dangerous act and/or in preparation for or in relation to an intended act of terrorism because of their race or religion.[32]
[32] AD/2019/110 - Complainants' SOFCs filed 25 October 2019, [23].
[56]The Complainants state in the premises of paragraphs 20 to 23 of their SOFCs, the Respondent, by its employees, treated the Complainants less favourably on account of the attribute of their religious belief and/or the attribute of their race.[33]
[33] Ibid, [24].
[57]By reason of the matters pleaded in paragraphs 10 to 25 of the Complainants' SOFCs, the Complainants have suffered loss and damage by reason of injury to their professional and personal reputation, and the suffering of humiliation and distress.[34]
[34] Ibid, [26].
[58]The Complainants contend they were directly discriminated against within the meaning of s 10 of the AD Act on each of the occasions pleaded in paragraphs 13 and 20 of their SOFCs on the basis of the attribute of their religious belief within the meaning of s 7(i) of the AD Act and/or on the basis of the attribute of their race within the meaning of s 7(g) of the AD Act.[35]
[35] Ibid, [27].
[59]In the premises pleaded in paragraphs 12 to 24 of the Complainants' SOFCs:
(a) Dr Ashby contravened ss 15(1)(f), 46(1)(d) and 101 of the AD Act; and
(b) by reason of s 133 of the AD Act, the Respondent contravened ss 15(1)(f), 46(1)(d) and 101 of the AD Act.[36]
[36] Ibid, [28].
[60]In the premises pleaded in paragraphs 20 to 24 and 27 of the Complainants' SOFCs:
(a) the Respondent, by its employees, contravened ss 15(1)(f), 46(1)(d) and 101 of the AD Act; or, in the alternative,
(b) by reason of s 133 of the AD Act, the Respondent contravened ss 15(1)(f), 46(1)(d) and 101 of the AD Act.[37]
[37] Ibid, [29].
[61]In the premises, the Complainants state they suffered the loss pleaded in paragraph 26 of the Complainants' SOFCs by reason of the contraventions pleaded in paragraphs 27 to 29 of the Complainants' SOFCs.[38]
[38] Ibid, [30].
[62]In the premises, the Complainants claim as follows:
(a) Dr Zaheer claims general damages in the sum of $100,000.00;
(b) Dr Nadeem claims general damages in the sum of $125,000.00; and
(c) the costs of the proceeding.[39][39] AD/2019/110 - Complainants' SOFCs filed 25 October 2019, [31].
Respondent
[63]The Respondent states the alleged discrimination does not, as a matter of law, fall within ss 15(1)(f), 46(1)(d) or 101 of the AD Act and should be dismissed because:
(a) Dr Nadeem and Dr Zaheer were not 'workers' in the employment of the Respondent at the time of the alleged contraventions;
(b) Dr Nadeem and Dr Zaheer were not being supplied goods or services by the Respondent at the time of the alleged contraventions; and
(c) no act was done by an employee of the Respondent in the performance of a function, exercise of power or in the carrying out of a responsibility within the meaning of s 101 of the AD Act.[40]
[40] AD/2019/110 - Respondent's SOFCs filed 8 November 2019, [1].
[64]The Respondent states that even if the AD Act applied, the Respondent did not engage in any conduct which constitutes discrimination under the AD Act for the reasons set out in paragraph 2 of the Respondent's SOFCs.
[65]The Respondent in paragraphs 8-29 of their SOFCs set out their responses to the allegations in paragraphs 1-26 of the Complainants' SOFCs.[41]
[41] Ibid, [8]-[29].
[66]In reference to paragraphs 27-31 of the Complainants' SOFCs, the Respondent:
(a) denies it engaged in any conduct which constitutes direct discrimination within the meaning of s 10 of the AD Act on each of the occasions pleaded in paragraphs 13 and 20 of the Complainants' SOFCs on the basis of the Complainants' religious beliefs within the meaning of s 7(i) of the AD Act and/or on the basis of the Complainants' race within the meaning of s 7(g) of the AD Act for the reasons set out;
(b) says that on each occasion where discrimination is alleged to have occurred that the treatment of the Complainants was on the basis of their unlawful conduct on 4 April 2014 and not on the basis of the attribute of their religious beliefs and/or race for the reasons set out;
(c) says that, in any event, a Hypothetical Comparator or the Alternative Hypothetical Comparator would have been treated in the same way in circumstances that are the same or not materially different because:
(i)either would not have authority to access the PAH at that time;
(ii)either would have engaged in unlawful conduct in both accessing the PAH and a computer system to access patient records without authorisation;
(iii)the PAH at that time was under a heightened awareness of and vigilance in relation to security issues in the lead up to the G20 (for which the PAH was to be a receiving hospital for certain dignitaries) as well as the impending Royal Visit;
(iv)the Respondent was already in constant contact with the G20 Dignitary Protection Unit regarding security matters at the PAH;
(v)in those circumstances the instruction and contact with the QPS about the unlawful conduct of either Comparator would have occurred; and
(vi)in those circumstances the relevant information about either Comparator's unlawful conduct would have been provided to the QPS;
(d) denies that it contravened s 15(1)(f) of the AD Act as alleged and further says that because neither Dr Nadeem nor Dr Zaheer were a worker of the Respondent within the meaning of that section at the time of the alleged discrimination that section cannot apply to the Complainants as a matter of law;
(e) denies that it contravened s 46(1)(d) of the AD Act as alleged and further says that because neither Dr Nadeem nor Dr Zaheer were being supplied goods and services by the Respondent within the meaning of that section at the time of the alleged discrimination that section cannot apply to the Complainants as a matter of law;
(f) denies that it contravened s 101 of the AD Act as alleged and further says that because no act was done by an employee of the Respondent, or the Respondent itself, in the performance of a function, exercise of power or in the carrying out of a responsibility within the meaning of s 101 that section cannot apply to the Complainants as a matter of law; and
(g) otherwise denies that their actions caused loss or damage to the Complainants and says that any alleged loss or damage was solely because of the Complainants unlawful conduct on 4 April 2014.[42]
[42] AD/2019/110 - Respondent's SOFCs filed 8 November 2019, [30].
[67]The Respondent seeks an order that the complaint be dismissed with costs.[43]
Outline of evidence
AD/2018/67 (Dr Nadeem)
[43] Ibid, [34].
Complainant
[68]Dr Nadeem was born in Brisbane to Afghan parents and states he is of Muslim faith. He graduated from Bond University with an MBBS degree in 2011. He is currently employed as a medical registrar at The Wollongong Hospital in New South Wales and has worked in resident medical officer roles for over three years in total (excluding his internship) primarily in Victoria but also in Queensland, New South Wales and the Northern Territory.[44]
[44] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [2], [3], [5], [6].
[69]In 2018 Dr Nadeem was admitted to the Physician Training program of the Royal Australasian College of Physicians (RACP). He successfully completed the RACP's written examination earlier in 2021 and is eligible to sit the clinical examination for progression to the Advanced Training program of the RACP.[45]
[45] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [8].
Internship
[70]Dr Nadeem commenced his contract of employment at the PAH on 16 January 2012. He was not assessed as satisfactorily completing the required terms during the first year of his internship and continued as an intern in 2013. On 19 November 2013 Dr Nadeem resigned.[46]
[46] Ibid, [9]-[10].
[71]During his internship Dr Nadeem stated he was treated differently and was subjected to increased scrutiny of his practice, pessimistic attitudes about his capabilities and learning, and harsh repercussions for holding and expressing differing perspectives of view. He perceived he was treated less favourably than other interns and how he felt as a result of that treatment.[47]
[47] Ibid, [11], [12].
[72]During term one in General Medicine (Geriatrics) rotation Dr Nadeem was supervised by Drs Aitken and Rubbard. On 27 February 2012 Dr Aitken conducted a mid-term performance assessment of Dr Nadeem when he was marked as unsatisfactory. In a meeting with Drs Aitken and Nicholls on 28 February 2012, Dr Nadeem was told he would be excluded from 'ward call' duties (after hours work covering medical and surgical wards) and required to meet weekly to have his performance evaluated.[48]
[48] Ibid, [14], [17], [18].
[73]Dr Nadeem said the explanation given by Dr Nicholls was, 'I was not safe to practice in less supervised conditions after hours' and other factual errors, referred to as the 'ward call incident'. This incident involved Dr Zaheer on 30 January 2012 and when Dr Nadeem tried to correct Dr Nicholls, he states that he was cut off by Dr Aitken, who said 'no but there were still issues identified and you agreed to this'. In disputing this Dr Nadeem felt his point of view was disregarded.[49]
[49] Ibid, [19].
[74]On or about 28 March 2012 Dr Nadeem received a letter from the Executive Director & Director Medical Services, PAH requiring him to attend a Mental Health Assessment. Dr Nadeem attended the assessment and was provided with a psychiatric report by Dr New dated 25 April 2012. The report did not identify any treatable mental health condition that might affect his performance but did comment upon (amongst other things) personal background including details concerning ethnicity and religion, differences in personality and the likelihood for such differences to exercise undue influence on people responsible for assessing his performance.[50]
[50] Ibid, [28], [31].
[75]In the opinion of Dr Nadeem from this time onwards his relationship with staff at the PAH was compromised and he felt he did not trust the staff to treat him fairly and that none of the interns he worked closely with (except Dr Zaheer) were treated this way.[51]
[51] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [33].
[76]On 13 August 2012 Dr Nadeem received an email from Dr Jordan informing him that the PAH had received a complaint from a GP about a discharge summary he had written, and this GP suggested that Dr Nadeem should be referred to AHPRA. At a meeting on 14 August 2012 Dr Nadeem attended a meeting with Drs Nicholls and Naidoo of the Medical Education Unit (MEU) when Dr Nicholls said something to the effect, 'you've caused us so much trouble to date; and now this'. Dr Nadeem was taken aback and felt that Dr Nicholls was being pessimistic towards him and would make no attempt to see things from his perspective. He cannot remember a single instance in which Dr Nicholls encouraged him or told him he was doing something well (even when other senior supervisors had thought so).[52]
[52] Ibid, [49].
[77]During terms four and seven Dr Nadeem was rostered in the Emergency Department (ED) with supervising consultants Drs Isoardi, Bazianis and Staib. On or around 14 November 2012 the end of term assessment for the first ED rotation was completed by Dr Staib. Dr Nadeem was assessed as unsatisfactory overall requiring further development in five criteria: clinical judgment/decision-making skills; emergency skills; medical records/clinical documentation; time management skills and teamwork and colleagues.[53]
[53] Ibid, [65], [73].
[78]Term five rotation was in Hepatobiliary Surgery with supervising consultants Drs Fawcett, O'Rourke and Hodgkinson. On 12 December 2012 Dr Nadeem attended a meeting with Drs Fawcett and Nicholls at which his mid-term assessment was completed and his performance assessed as unsatisfactory overall. At the end of term assessment on or around 9 January 2013 Dr Fawcett assessed Dr Nadeem as '[r]equires Further Development' in four domains, but nonetheless as '[s]atisfactory' overall. Dr Fawcett then had a discussion with Dr Nicholls who persisted that Dr Nadeem should fail. Dr Fawcett continued to disagree with Dr Nicholls, and ultimately walked out of the room in which Dr Nadeem perceived to be frustration when Dr Nicholls told him that he had no choice but to assess Dr Nadeem as '[u]nsatisfactory' overall.[54]
[54] Ibid, [76], [85]-[86], [89].
[79]Even though Dr Fawcett's handwritten assessment form records Dr Nadeem's performance as '[s]atisfactory overall', the electronic assessment form records performance as '[u]nsatisfactory overall'.[55]
[55] Ibid, [89.1]-[89.2].
[80]In his affidavit Dr Nadeem refers to Dr Gill's letter of 8 March 2013 to AHPRA and states as follows:
(a) qualifies Dr Fawcett's overall satisfactory assessment of performance by recording (at page 15) 'End of term assessment - HPB. Satisfactory assessment although noted to have not participated in ward call duties'. That notation was inserted at Dr Nicholls' urging;
(b) which wrongly records (at page 16) that Professor Fawcett commented, '[u]undoubtedly Nadeem is unusual, scholarly and well informed' on the assessment form. The MEU's electronic transcription of the assessment form correctly records Professor Fawcett's handwritten comment as '[u]ndoubtedly Nadeem is unusually scholarly and well informed'; and
(c) qualifies Dr Fawcett's satisfactory assessment of me by noting (on page 16) 'Prof Fawcett acknowledge that Dr Toodayan still required further development he felt that this did not need to take place in the division of surgery'.[sic] To the contrary, during the meeting Dr Fawcett insisted that my performance had been satisfactory, that I not fail the rotation, and said something like 'well he doesn't need to do more surgical rotations'. Interns are only required to complete one satisfactory rotation in surgery.[56]
[56] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [89.3].
[81]In her show cause letter of 26 August 2013, Dr O'Dwyer refers to this assessment (and all of Dr Nadeem's other assessments to that date) as a 'conceded pass'.[57]
[57] Ibid, [89.4].
[82]Dr Nadeem states during term six in cardiology rotation his supervising consultants were Drs Garrahy and Wang. He said there were a number of occasions where he believes he was treated differently to other interns. Firstly, he says he was required to go on a ward round on his own with Dr Garrahy and another consultant, Dr Ng. During this ward round he was required by Drs Garrahy and Ng to update them on every single patient on the ward in the Coronary Care Unit (CCU) in detail. This is not a task usually required of interns and typically done with a large group of doctors of varying levels of seniority, and the medical registrar/s or advanced trainees are expected to lead the way and present patients. Drs Garrahy and Ng scrutinized him in detail about each of the patients.[58]
[58] Ibid, [96], [98], [99].
[83]On 27 February 2013 at a mid-term assessment meeting with Drs Garrahy, Ng and Nicholls issues were raised about Dr Nadeem's answers to certain questions asked during the ward round. Dr Garrahy told Dr Nadeem he should 'read and memorise all of Harrison's' to which he responded, 'I don't think that I will have the time [to do that]'. Dr Nadeem said Harrison's Principles of Internal Medicine is one of the standard medical textbooks and is approximately 8000 pages long. Both doctors assessed Dr Nadeem's mid-term assessment performance as unsatisfactory. Dr Garrahy's assessment form refers to Dr Nadeem's response about not having time to memorise a book but omits any reference to the unreasonable request.[59]
[59] Ibid, [100].
[84]The second most distressing experience by Dr Nadeem happened at a meeting during cardiology rotation towards the end of the term when Dr Garrahy became conscious of his Islamic faith and made remarks about his religious beliefs and included questions about his sexuality ('do you think about women/sex?'). The most offensive comment Dr Garrahy said was, 'you need to find a more forgiving God … I can commit adultery as many times as I want and my God will forgive me'. Ms Angela O'Connor, MEU was also present taking notes and after Dr Garrahy left Dr Nadeem told her he had been very uncomfortable during the interview and that, 'I hope you wrote down what he [Dr Garrahy] said' referring to the adultery comment. Dr Nadeem said he was so distressed by the statement he left the ward. Dr Nadeem said he knew later that none of the notes document this statement.[60]
[60] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [103].
[85]Thirdly, Dr Nadeem recalled when on rounds one morning, Dr Korczyk singled him out from the other interns and more senior doctors and asked him to interpret certain aspects of a patient's electrocardiogram (ECG). The patient had Fabry's disease associated cardiomyopathy which Dr Nadeem had been discussing with the medical students and was focussed on when interpreting the ECG. Dr Korczyk began raising his voice and saying something like, 'don't tell me about that! Just say what you see on this ECG!'. Dr Nadeem felt intimidated and was so distraught that he left the ward round altogether shortly afterwards.[61]
[61] Ibid, [104].
[86]On 10 April 2013 Dr Nadeem attended a meeting for his end of term cardiology assessment and there were eight or nine people including Dr Nicholls present which were more than in any of his other assessments or in his understanding in any other interns' assessments. Dr Nicholls negatively influenced Dr Nadeem's supervisors' assessments of him by confronting him in front of the panel. For example, when one of the consultants asked a question about certain aspects of his performance and he began to respond, Dr Nicholls would say things like, 'you say you are keen to improve and are working hard on this, but why are all your assessments showing that you are failing? You have had these difficulties in every rotation to date'. Dr Nadeem found out some time after that he had failed the term.[62]
[62] Ibid, [105], [107], [108].
[87]Dr Nadeem commenced his second ED rotation as a supernumerary on or around 15 April 2013 with his clinical supervisors being Drs Staib and Isoardi.
[88]On 2 May 2013 Dr Nadeem received a letter from AHPRA regarding the renewal of his provisional registration. The letter stated that the MBA had reviewed a number of documents being Dr Jordan's notification of 10 September 2012, Dr Nicholls' letter of 8 March 2013 and Dr New's psychiatric assessment dated 25 April 2012 and approved his application for renewal of provisional registration subject to conditions set out in the letter. In summary, the conditions, to be reviewed after twelve months, required Dr Nadeem to nominate a supervisor and for that supervisor to be approved by the Medical Board; required Dr Nadeem to maintain a register of patients he treated, consulted or assessed, and to have his medical record writing reviewed monthly by his nominated supervisor; and required his supervisor(s) to make written reports to the Medical Board regarding his performance within one, two, three, six and twelve months of the commencement of the conditions.[63]
[63] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [115].
[89]On or around 23 May 2013 Dr Staib completed Dr Nadeem's mid-term performance assessment as unsatisfactory. Dr Nadeem's end of term performance assessment on or around 20 June 2013 by Dr Staib was satisfactory.[64]
[64] Ibid, [117], [126].
[90]An arrangement was reached with AHPRA on or around 30 August 2013 whereby Dr Nicholls would be Dr Nadeem's nominated supervisor and be responsible for coordinating the preparation of the mandatory reports with the reports to be prepared by his clinical supervisors for each rotation.[65]
[65] Ibid, [120].
[91]Dr Nadeem was allocated to the endocrinology department for term 3B. This was the last unit he had to complete satisfactorily to be eligible to complete his internship and apply for general registration. His primary supervising consultant was Dr MacKenzie with whom there was a lot of conflict. Dr Nadeem said at first, she was quite supportive but later became very hostile towards him.[66]
[66] Ibid, [130], [131], [134].
[92]In one incident Dr Nadeem asked Dr MacKenzie what he should do when a patient was refusing to leave a clinic room, Dr MacKenzie started being verbally abusive and raised her voice saying things like, '[w]hy didn't you kick them out! What do you mean you didn't know what to do! Anybody would know that! You drag them out of the room!'[67]
[67] Ibid, [135].
[93]On another occasion involving Dr MacKenzie in one of the endocrinology department meetings, Dr Nadeem asked a question regarding vanishing diabetes after hypophysectomy. In a rude and derogatory manner, in front of all the attendees, Dr MacKenzie said words to the effect of, 'why did you have to say that!, that's what we've been talking about!; this is all irrelevant' and other comments to similar effect. Her tone of voice was harsh and condescending.[68]
[68] Ibid, [136].
[94]On or around 26 August 2013 Dr Nadeem received a letter from Dr O'Dwyer requiring him to show cause why his employment should not be terminated and that, 'the Hospital believe that you … should not progress through to a less supervised environment enabled by the provision of General Registration'.[69]
[69] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [137].
[95]On 11 September 2013 Dr Nadeem was allocated to remain in endocrinology for term 4B from 7 October 2013 to 10 November 2013. On or around 13 September 2013 Dr MacKenzie completed a report as required by the conditions to AHPRA regarding Dr Nadeem's performance which states he had mistakenly used the term, 'Brodie's abscess' (which he disputes) but had not 'read about foot ulcers' more generally. Dr Nadeem states this is untrue as he had read in detail about foot ulcers, which he told Dr MacKenzie. Dr MacKenzie's report instead focussed on his reference to Brodie's original 1832 publication describing 'cases of chronic abscess of the tibia' in a way that misrepresented (or otherwise unfairly portrayed) his interest in this matter.[70]
[70] Ibid, [139], [140].
[96]On 20 September 2013 Dr Nadeem's lawyers wrote to the PAH in response to the show cause letter he received from Dr O'Dwyer.
[97]A further report was made to AHPRA by Dr MacKenzie on or around 4 October 2013 regarding Dr Nadeem's performance. In that report Dr MacKenzie made what was said to be an exaggerated or misleading statement about a comment Dr Nadeem had made about a mentally impaired patient. The comment attributed to Dr Nadeem was reported out of context relating to a patient who had Prader-Willi syndrome (and a resulting mild/moderate intellectual impairment) had made allegations of sexual abuse against her carers in a nursing home. The previous clinic notes stated this complaint had been investigated and that the allegations were dismissed. Dr Nadeem wrote in a GP letter that the allegations were found to be 'hardly credible'. Dr MacKenzie reported this to AHPRA in a way to suggest that Dr Nadeem had been dismissive of this mentally impaired patient's concerns.[71]
[71] Ibid, [142].
[98]Both of Dr Nadeem's mid-term and end of term assessments in endocrinology were unsatisfactory. After receiving these assessments Dr Nadeem asked Dr Inder to complete a separate independent assessment which he gave him about a week later where he failed him very poorly. When Dr Nadeem asked for some examples why he had failed, Dr Inder said, 'you know it's very strange, we never fail interns normally'. Dr Nadeem later learned that around this time Dr Inder had written a letter to AHPRA saying that Dr Nadeem shouldn't be permitted to practice as a doctor.[72]
[72] Ibid, [143]-[145].
[99]On or around 28 October 2013 Dr Nadeem received (via his lawyers) a letter from Dr King, Executive Director, PAH advising that she was giving serious consideration to terminating Dr Nadeem's employment and requesting he show cause why this action should not be taken. Dr Nadeem resigned from his role at the PAH on 19 November 2013.[73]
[73] Exhibit 6 - AD/2018/67 - Affidavit Nadeem Toodayan filed 31 May 2021, [148], [150].
10 September 2012 voluntary notification to AHPRA
[100]Dr Nadeem commented about Dr Jordan's voluntary notification to AHPRA in relation to the specific items set out in the letter. He said he was very upset when he first read it sometime in late October 2012 and remembered losing all confidence in the MEU and Dr Jordan as it seemed to him they were intent on ending his medical career.[74]
[74] Ibid, [161], [162].
8 March 2013 referral letter to AHPRA
[101]Dr Nicholls wrote to AHPRA on 8 March 2013 and Dr Nadeem did not become aware of this letter until around 29 May 2015. When he first saw it he was very upset by the pessimistic and uncharitable nature of this communication and particularly offended and hurt to read that Dr Nicholls had requested that serious consideration be given to Dr Nadeem's ongoing registration as a medical practitioner. Dr Nadeem said he had devoted his entire working life to the medical profession and through his entire two years at the PAH he was not once told that his registration was at risk. A significant number of the allegations made were never discussed with him during his internship.[75]
[75] Ibid, [163], [165].
[102]Dr Nadeem accepts that his internship demonstrated certain instances of suboptimal performance and rare instances of suboptimal professional conduct. Any suboptimal interactions with staff at the PAH were always in the context of persistent prejudicial and discriminatory treatment rather than a reflection of his true ability, character and professionalism. Dr Nadeem states he has always been diligent and conscientious in his duties as junior doctor and would have been receptive to honest assistance in every instance.[76]
[76] Ibid, [171].
Respondents
[103]In her affidavit Dr Lizbeth Jordan, Second Respondent said during the period 2011 to 2015 at various times she was employed as Deputy EDMS and EDMS at the PAH. She was not employed at the PAH between 27 January 2013 and 4 November 2013. In her role as DDMS and EDMS Dr Jordan did not have direct oversight of the internship program and had not much direct interaction with Dr Nadeem.[77]
[77] Exhibit 50 - AD/2018/68 - Affidavit Lizbeth Jordan filed 28 May 2021, [1]-[3], [6], [18].
[104]In her affidavit Dr Kim Gill, Third Respondent said from 2010 she was employed as Deputy DCT, PAH and then acted in the DCT role from 2011 until approximately November 2013. In her role as Acting DCT she reported to the DDMS, who reported to the EDMS.[78]
[78] Exhibit 28 - AD/2018/67 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, [1], [4].
Interactions with interns and internship process
[105]The DCT at the PAH works within the MEU and is responsible for the implementation of the intern training program, including planning, delivery, and evaluation of the program at the hospital level. The DCT also supports interns with special needs and liaises with term supervisors to provide specific support and/or remediation.[79]
[79] Ibid, [5].
[106]The role of the MEU is to co-ordinate and deliver education and training for intern doctors in accordance with prescribed curriculum during their internship years. The ultimate goal is to assist interns to successfully complete their internships and progress through to general registration.[80]
[80] Ibid, [7].
[107]The MEU is responsible for tracking and collating assessment forms and analysing assessment outcomes. This data is reported to the health service and used to inform intern supervisor and support processes in accordance with the Australian Medical Council (AMC) - Intern training national standards for programs (National Standards).[81]
[81] Ibid, [9].
[108]In Australia, all medical graduates must successfully complete an internship before becoming generally registered with the Medical Board.[82]
[82] Ibid, [10].
[109]An intern is required to complete 47 weeks (full-time equivalent) with the following core terms during their internship:
(a) 10 weeks of general medicine;
(b) 10 weeks of surgery; and(c) at least 8 weeks of emergency medicine.[83][83] Ibid, [12].
[110]Intern doctors require appropriate supervision with different functions, a term supervisor, a Primary clinical supervisor and an Immediate supervisor. Feedback and performance review is conducted in accordance with the National Standards.[84]
[84] Ibid, [14].
[111]At the PAH assessment of intern performance is primarily performed by the term supervisors with input from the senior staff in each department. Where problems are identified in relation to an intern's performance a supervisor would usually contact the MEU.[85]
[85] Ibid, [19], [25].
[112]As the DCT, Dr Gill was required to certify completion of internship and submit to the MBA. AHPRA partners with the MBA to implement the national registration and accreditation scheme.[86]
[86] Exhibit 28 - AD/2018/67 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, [39]-[40].
Governance of internship
[113]Also, the DCT as an education provider and a health practitioner registered under the National Law, Dr Gill was required to comply with ss 140 and 144 of the National Law regarding reporting 'notifiable conduct' to AHPRA.[87]
[87] Ibid, [42].
[114]In her role as DCT, Dr Gill in conjunction with the EDMS was required to ensure that the training and assessment process at the PAH met the accreditation standards and that interns were assessed consistent with the standards at the time. It was also her responsibility to report accurate information to the registration authority of AHPRA and the MBA in accordance with the National Law in order to ensure that the interns were well trained, supported and assessed appropriately with the ultimate goal of keeping the public safe.[88]
[88] Ibid, [46].
[115]During his initial intern interview on 15 February 2012 Dr Nadeem recognised that his time management and prioritisation skills needed to be developed and he stated that he would also prioritise working on teamwork and inter-personal relationships. Dr Nadeem stated that he had 'some medical issues' but he 'didn't believe that they would impact on his intern year'.[89]
[89] Ibid, [57].
[116]On 28 February 2012 Dr Nadeem's mid-term assessment was held and his performance was assessed as 'unsatisfactory'. In Dr Gill's experience it was not unusual for interns to have some difficulties adjusting to the transition from medical student to first year doctor at the start of the year. However, the outcome of the assessment indicated significant performance issues which were well below expectations for an intern even in their first term.[90]
[90] Ibid, [58], [61], [63].
[117]All interns who worked at the PAH in 2012 were involved in the Formal Mentoring Program. This is a 'pastoral care' role rather than a clinical role. After meeting with Dr Nadeem his mentor raised concerns, he may have been suffering from a health condition. Given the legal requirements, Dr Gill said they were obliged to give further consideration as to whether there was 'a reasonable belief' that Dr Nadeem was or could be 'impaired' and that a mental health assessment would be a prudent step for the PAH to take.[91]
[91] Exhibit 28 - AD/2018/67 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, [76].
[118]Dr Nadeem was assessed as satisfactory at the end of first term 2012.
[119]Dr Nadeem's end of second term appraisal in anaesthetics was assessed as 'unsatisfactory'. Dr Gill was concerned that Dr Nadeem did not appear to be developing any insight into the fact he was being given consistent feedback about his unsatisfactory performance in the same areas in his internship.[92]
[92] Ibid, [92]- [93].
[120]In or around early August 2012 Dr Nadeem commenced his third term in the dermatology department with clinical support from Professor Peter Soyer, Director of Dermatology. Dr Nadeem was assessed by the relevant supervisors as requiring further development for medical records/clinical documentation, time management skills and teamwork. He was considered by the clinical supervisors as having been assessed as 'satisfactory' for the term with the summative assessment recognised as 'satisfactory' by the MEU and the DCT.[93]
[93] Ibid, [98], [99(a)], [116], [121].
[121]Dr Nadeem's fourth term rotation was in the ED. All interns are required to complete a rotation in the ED during their internship. Dr Nadeem was assessed as 'unsatisfactory' for his mid-term appraisal and his end of term appraisal.[94]
[94] Ibid, [125], [129], [134].
[122]For his compulsory surgical term Dr Nadeem was allocated to the hepatobiliary unit where he was assessed as 'satisfactory' for his end-of-term appraisal.
[123]Because Dr Nadeem had not passed some terms during 2012, Dr Gill provided an accompanying letter to AHPRA outlining how Dr Nadeem had progressed throughout his internship year. The information was based on Dr Gills' understanding of his performance based on assessments by the relevant clinical supervisors for each term and other documented clinical and professional issues.[95]
[95] Ibid, [145].
[124]For his first term in 2013 Dr Nadeem was allocated to the cardiology department where he was assessed as 'unsatisfactory' for his mid-term appraisal. An Improvement Performance Action Plan (IPAP) was developed to address identified issues. Dr Nadeem was assessed as 'unsatisfactory' for his end of term appraisal.[96]
[96] Ibid, [170], [172], [179].
[125]Dr Nadeem was allocated to the ED to complete his repeat compulsory term. His mid‑term appraisal was assessed as 'unsatisfactory'. Dr Gill understood that AHPRA placed conditions on Dr Nadeem's registration in June 2013. Dr Nadeem was assessed as 'satisfactory' for his end of term appraisal.[97]
[97] Exhibit 28 - AD/2018/67 - Affidavit Kim Gill (nee Nicholls) filed 28 May 2021, [185], [187], [193], [194].
[126]In late July 2013 Dr Nadeem was allocated to the endocrinology and diabetes unit for his third term (3B). He raised a concern about Dr Gill being his primary supervisor under his AHPRA conditions. Dr Gill contacted AHPRA to discuss other possible supervisory options. He was assessed as 'unsatisfactory' for his end of term appraisal. Dr Nadeem's mother, Ms Shinwari requested to meet with Drs Gill and O'Dwyer to discuss the welfare of both her sons and provided background information.[98]
[98] Ibid, [198]-[199], [204], [208].
[127]Dr Nadeem remained in the endocrinology and diabetes unit for term 4A. Dr Gill commenced maternity leave in late October 2013 and was replaced by Dr Georga Cooke in the DCT role. Dr Cooke also took over as Dr Nadeem's AHPRA supervisor.[99]
AD/2018/68 (Dr Zaheer)
[99] Ibid, [209]-[210].
Complainant
[128]Dr Zaheer was born in Brisbane, is of the Afghan race and he is a Muslim. He graduated from Bond University with a Bachelor of Medicine/Bachelor of Surgery in 2011. He is currently employed as a Basic Physician Trainee at the Canberra Hospital in the Australian Capital Territory and has been working in this capacity since early 2020. He has previously worked in Resident and Senior Resident Medical Officer roles for about three-and-a-half years in total in Queensland, New South Wales and the Northern Territory. He is responsible for directly supervising the work of interns on a daily basis.[100]
[100] Exhibit 1 - AD/2018/68 - Affidavit Zaheer Toodayan filed 31 May 2021, [1]-[4], [6].
[129]In 2018 Dr Zaheer was admitted to the Basic Training program of the RACP. He is currently in his final year of Basic Training. On 15 February 2021 he successfully completed the RACP's Divisional Written Examination on his first attempt. He was due to sit the Divisional Clinical Examination, which was scheduled for later in 2021.[101]
[101] Ibid, [7].
Internship
[130]Dr Zaheer commenced employment at the PAH in January 2012 as a medical intern. During his time at the PAH Dr Zaheer had little interaction with Dr Nicholls in a clinical context.[102]
[102] Ibid, [5], [9].
[131]On or around 23 January 2021 Dr Zaheer commenced the first term of his internship in Respiratory Medicine Department, PAH with Dr Murphy his supervising consultant and Dr Ellender, supervising registrar. He was informed on or around 27 February 2012 that his performance had been assessed as unsatisfactory which he was surprised to learn as he had been given no indication prior to this time that there were any concerns. Dr Zaheer raised with Dr Murphy that he would benefit from being given specific examples where his performance was unsatisfactory so that he could attempt to improve prior to further assessment. The only relevant matter of which he was aware was that he had been too thorough in his assessment of a patient on an after-hours shift on 30 January 2012. On 28 February 2012 at a meeting with Dr Gill overseeing and Dr Ellender providing the majority of the feedback, Dr Zaheer was required to complete an IPAP.[103]
[103] Exhibit 1 - AD/2018/68 - Affidavit Zaheer Toodayan filed 31 May 2021, [10], [12]-[14].
[132]Dr Zaheer was excluded from ward call duties following his mid-term assessment having only worked about three shifts on ward call. Several broad areas and specific examples of unsatisfactory performance were identified including 'time management', 'not following instructions', 'pay attention to tasks on ward round', 'attempt to show more enthusiasm and engagement', 'punctuality'.[104]
[104] Ibid, [15]-[17].
[133]The 'ward call incident' on 30 January 2012 was Dr Zaheer's first ward call shift and his first ward call patient. The patient had unwitnessed seizure-like activity in a bathroom near the main foyer. The registrar asked Dr Zaheer to accompany the patient to the ward and perform a clinical assessment to exclude any major causes for seizure. During conversation with the patient and her sister they conveyed their frustrations regarding comments made by members of the treating team that the patient was making up her seizure-like episodes. Dr Zaheer completed a full neurological examination. He did not do this with any intention to override the treating team's provisional diagnosis of psychogenic non-epileptiform seizures. He thoroughly documented his assessment alongside the concerns the patient and her sister had raised.[105]
[105] Ibid, [21.1(b),(d)].
[134]Dr Zaheer recognised that the time spent with this patient and the extent of his history, examination, discussion and documentation went beyond what was expected and that his comments may have created some confusion and exacerbated pre-existing friction between the patient/family and the treating team. It was submitted that Dr Zaheer made a naïve mistake from a misunderstanding of his responsibility during his very first ward call experience from which he has learned and modified his future behaviour[106].
[106] Ibid, [21.1(f)].
[135]Dr Zaheer's performance during his ward call shift on 24 February 2012 was identified as a concern. Dr Zaheer said in hindsight, he acknowledges that his feedback about the shift may have been communicated in a better way. Also, that a file note exists recording him as having said that he was 'deleting pages'. He recalls deleting some non-urgent text pages, i.e. of duties that did not immediately need attending to. He said he did this so that he could prioritise the more urgent tasks and had not intended to disregard those deleted tasks.[107]
[107] Exhibit 1 - AD/2018/68 - Affidavit Zaheer Toodayan filed 31 May 2021, [21.2(b),(c)].
[136]An incident occurred during Dr Zaheer's second or third ward call shift where a patient had been admitted for approximately one week and had longstanding thrombocytopaenia the cause of which was still under investigation. Dr Zaheer had been asked to follow up a full blood count that had been arranged for after hours. When he returned later that night to review the results the platelets were low however when Dr Zaheer advised the Junior House Officer (JHO) he did not ask him to do anything about it. The patient eventually received a transfusion with a unit of platelets later in the night. Dr Zaheer said it was a lack of appropriate communication that allowed this oversight to occur. The senior doctors present expressed the view that the delay in commencing the platelet transfusion was solely due to a deficiency of his clinical judgment/knowledge in that he did not recognise that a platelet count of three was critically low.[108]
[108] Ibid, [21.3].
[137]On 28 March 2012 Dr Zaheer attended an end of term assessment meeting with Drs Ellender and Gill. Dr Ellender said if Dr Zaheer did receive any negative feedback he should not 'take it personally' and that it was because aspects of his personality and/or behaviour were 'just weird'. Dr Zaheer's performance for the term had been assessed as unsatisfactory. Dr Ellender records the following matters in her file notes, late for morning round, x-ray meeting list not sent to correct address as per unit handbook, did not attend unit meeting, hypotensive patient, prescribing error and [nursing staff] complaint about aggressive tone to voice when asked to attend morning ward.[109]
[109] Ibid, [22]-[24.3].
[138]Dr Zaheer said in response to 'x-ray meeting list not sent to correct address' that he had made a typographical error in the recipient's e-mail address which was a genuine and unpredictable mistake. He said Dr Nicholls referred to this incident in her letter to AHPRA of 8 March 2013. He considered it unfair and inappropriate for his supervisors to portray this incident as a performance concern. In relation to 'did not attend unit meeting' Dr Zaheer said it would have likely been because the ward was particularly busy and so his fellow resident and he had arranged that he would attend the meeting whilst Dr Zaheer stayed on the ward to complete tasks.[110]
[110] Ibid, [24.5], [24.6].
[139]Terms two, three and mid-term four (geriatrics) were assessed as satisfactory. On 23 October 2012 Dr Zaheer was reinstated to ward call duties during his geriatric's rotation. He was removed from ward call for a second time after two incidents which occurred on 25 October 2012 and 2 November 2012. First on 25 October Dr Zaheer requested a swap and as he was unable to find a colleague to swap with on short notice, he worked the shift. The second incident on 2 November Dr Zaheer called the switchboard operator and said he may not be able to do his shift. He subsequently received a call from the after-hours roster manager who was not receptive to his concerns. He accepts he may well have said something like he would not do the shift and hung up. The ward receptionist said there was someone on the phone and Dr Zaheer was not aware it was the Chair of Medicine and he said he did not want to talk to anyone at the moment. He was then approached by a registrar and advised him of the situation, and he alleviated Dr Zaheer's concerns advising him to finish up minor ward tasks and notify him of the outstanding admissions which he would do himself and Dr Zaheer was able to do the after-hours ward call shift.[111]
[111] Exhibit 1 - AD/2018/68 - Affidavit Zaheer Toodayan filed 31 May 2021,[27], [29], [33], [38], [39], [40].
[140]Dr Zaheer acknowledges his shortcomings in relation to this incident which was not indicative of any deficiency in clinical performance, rather an isolated instance related to his professionalism.[112]
[112] Ibid, [40.5].
[141]On or around 8 November 2012 Dr Zaheer was informed by Dr Berry his end of term assessment for geriatrics rotation had been completed and his performance was unsatisfactory. The criteria identified as requiring further development were professional responsibility, time management skills and teamwork and colleagues. Towards the end of his rotation Dr Zaheer said his registrar Dr Leow advised he had advocated for him to pass the rotation considering his overall good performance during the term and that his recommendations had not seemed to change Dr Berry's decision.[113]
[113] Ibid, [42], [43].
[142]Term five rotation was in orthopaedic surgery and Dr Zaheer's supervising consultant was Dr King with supervising registrar Dr Campbell. Dr Zaheer was concerned about the workload of the staff and the consequences for patient safety however for a number of reasons never made a written complaint. On or around 14 December 2012 he was assessed as unsatisfactory. Criteria identified as requiring further development were emergency skills, professional responsibility and time management skills. Specific examples were 'needs to arrive at work on time each day', 'needs to prioritise tasks appropriately' and 'ask for help when needed and needs to attend clinic/meetings when asked'. Notwithstanding the earlier issues, on or around 18 January 2013 Dr Zaheer's end of term performance was assessed as satisfactory overall.[114]
[114] Ibid, [44], [47]-[49], [51].
[143]Term six was in colorectal surgery where Dr Zaheer was assessed on or around 22 February 2013 for his mid-term performance as 'better than expected' and overall, as satisfactory. His supervising consultant, Dr Miller in his end of term assessment on or round 11 April 2013 assessed Dr Zaheer's performance as 'better than expected' in all criteria and in four criteria his performance was assessed as 'exceptional'. Overall performance was assessed as satisfactory.[115]
[115] Ibid ,[52], [54], [60].
[144]During term seven from 15 April 2013 until 23 June 2013 Dr Zaheer was in general medicine with supervising registrar initially Dr Berkman and later Dr Leow. On or around 17 May 2013 Dr Zaheer's mid-term performance assessment was satisfactory overall and 'better than expected' or 'exceptional' in all criteria. His end of term performance assessment was completed on or around 21 June 2013 with his performance assessed as satisfactory overall and 'consistent with level of appointment' or 'better than expected' in all criteria. Dr Zaheer received a letter from Dr Nicholls on or around 2 July 2013 commending him on his 'exceptional standard of practice' during his general medicine (term 7) rotation.[116]
[116] Exhibit 1 - AD/2018/68 - Affidavit Zaheer Toodayan filed 31 May 2021, [62], [66], [67], [68].
[145]Dr Zaheer worked in renal medicine during terms eight and nine from 29 July 2013 until 4 October 2013. On or around 23 August 2013 Dr Zaheer's mid-term assessment was satisfactory overall and 'exceptional' in most criteria, and otherwise 'better than expected'. Dr Stevenson noted Dr Zaheer's 'sophisticated, succinct discussion of clinical cases far above expected level' and Professor Johnson concurred on 30 August 2013. The end of term assessment on or around 4 October 2013 was assessed as satisfactory overall and consistent with level of appointment or better in all criteria.[117]
[117] Ibid, [76], [78], [82].
[146]On or around 2 August 2013 Dr Zaheer's lawyers made a submission to AHPRA in response to their letter he received dated 23 April 2013 attaching the notification and letters from Dr Nicholls (14 December 2012 and 8 March 2013) and Dr Lawrence (dated 8 March 2013).
[147]Dr Zaheer received a letter on or around 20 August 2013 from AHPRA notifying him of a decision to impose conditions on his registration. Amongst other matters, the conditions required:
"(a) I only work in a position approved of in writing by the Medical Board;
Yes. And the only reason you were concerned that those were issues in respect of this occasion was because of the faith - - -? No.- - - of these two gentlemen? No. Not at all. We have Muslims on staff. We had lots of Muslims on staff. We had more Muslims living in Metro South than any other area of Queensland. It was - it was nothing.[317]
[317] TR8-10, L4-TR8-11, L20, emphasis added.
[428]I accept the argument that the evidence before the Commission does not support the conclusion that any staff at MSHHS advised the QPS in respect of the race or religion of Dr Nadeem or Dr Zaheer. The triage notes[318] do not record any reference to the Complainants' race or religion.
[318] Exhibit 59 - AD/2019/110 - Affidavit of Mark Beckett affirmed 28 May 2021, p 18.
[429]I also accept that Dr Ashby did not take any action in respect of this matter because of the Toodayans' race or religion. That was abundantly clear from the affidavit evidence given by him.[319]
[319] Exhibit 57 - AD/2019/110 - Affidavit Richard Ashby affirmed 27 April 2021, [37]-[39].
[430]It was submitted by the Complainants that given the subsequent counter terrorism police investigation focussed on religious radicalisation, it should be inferred that the race and religion of the Complainants was discussed at the meeting.[320] I do not accept that submission.
[320] None of the witnesses who were called could recall that. But nor could they say that such discussions did not occur.
[431]The Complainants submit the conduct of the PAH was discriminatory and it ought to be found the decision involved treatment that was less favourable than the treatment that would have been accorded to a person who was not of the Islamic faith, and that the Complainants' religion was a substantial reason for that treatment. I disagree.
[432]Dr Ashby's unequivocable evidence was that he requested the conduct of Dr Nadeem and Dr Zaheer reported because he had been instructed to report any unusual activity.[321] Indeed, in cross-examination he made his view clear: "The presence of those two men in that ward at that time of day wasn't unusual. It was extraordinary. Extraordinary".[322]
[321] TR8-7, LL35-47.
[322] TR8-11, LL3-4.
[433]The unauthorised access by the Complainants of the PAH in the early hours of 4 April 2014, and in particular, Ward 4E was of particular concern. Dr Ashby's concern was heightened by the fact that Ward 4E was designated for the G20 and the upcoming Royal Visit. The evidence in my view does not support a conclusion that the substantial reason for Dr Ashby taking the course he did was as consequence of some perception held by him that Dr Zaheer and Dr Nadeem were Muslims, Afghan, devout and more likely to pose a security threat than a member of the general public without those attributes.
[434]The issue of principle arising is whether the treatment of the Complainants in relation to the G20 Matter falls within the scope of the AD Act given that neither of the Complainants were still employed at the time of the incident.
[435]The Complainants abandoned reliance on s 46 of the AD Act and instead focused on:
(a) section 15(1)(f) of the AD Act, notwithstanding they were no longer employed; and
(b) section 101 of the AD Act.[323]
[323] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [44].
[436]Section 15 of the AD Act relevantly provides:
15 Discrimination in work area
(1) A person must not discriminate -
(a) in any variation of the terms of work; or
(b)in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
(c) in dismissing a worker; or
(d)by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
(e) in developing the scope or range of such a program; or
(f) by treating a worker unfavourably in any way in connection with work.
(2) In this section -
dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.
[437]To succeed, the Complainants must establish that any decision by the hospital executive, in particular, Dr Ashby in the context of the health service falls within the scope of s 101 of the AD Act.
[438]Section 101 of the AD Act provides:
101 Discrimination in administration of State laws and programs area
A person who -
(a)performs any function or exercises any power under State law or for the purposes of a State Government program; or
(b)has any other responsibility for the administration of State law or the conduct of a State Government program;
must not discriminate in -
(c) the performance of the function; or
(d) the exercise of the power; or
(e) the carrying out of the responsibility.
[439]What is contended by the Complainants is that by reporting the Complainants unlawful activity on 4 April 2014 it comes within the scope of the Hospital and Health Boards Act 2011 (Qld) (the HHB Act).
[440]Under the HHB Act, a 'health service' is defined as a 'service for maintaining, improving, restoring, or managing people's health and wellbeing'.[324] Section 19(1) of HHB Act provides that 'A Service's main function is to deliver the hospital services, other health services, teaching, research and other services stated in the service agreement for the Service'.
[324] Hospital and Health Boards Act 2011 (Qld), s 15(1).
[441]Relevantly, the question for determination is whether s 15(1)(f) of the AD Act should be read as extending to the treatment of a worker who is no longer engaged in work if the treatment still relates to the working relationship.
[442]The definition of work in Schedule 1 of the AD Act provides:
work includes -
(a) work in a relationship of employment (including full-time, part-time, casual, permanent and temporary employment); and
(b) work under a contract for services; and
(c) work remunerated in whole or in part on a commission basis; and
(d) work under a statutory appointment; and
(e) work under a work experience arrangement within the meaning of the Education Work (Work Experience) Act 1996, section 4; and
(ea) work under a vocational placement; and
(f) work on a voluntary or unpaid basis; and
(g) work by a person with an impairment in a sheltered workshop, whether on a paid basis (including a token remuneration or allowance) or an unpaid basis; and
(h) work under a guidance program, an apprenticeship training program or other occupational training or retraining program.
[443]It is contended by the Complainants that both ss (a) and (f) (at least) of the definition contemplate working relationships that are not necessarily governed by a contractual arrangement with an identifiable time limit establishing when the relationship ends.
[444]The Complainants submit that even though the word "worker" tends to invoke a concept of employment which carries with it a contractual connotation, in this section it should not be presumed that the end of a contractual relationship of employment means the Act can no longer have any application.
[445]It is submitted that the AD Act is beneficial legislation and as such the relevant provision ought to be read liberally.
[446]The Complainants submit there is no reason why the concept of the treatment of a worker "in any way in connection with work" should not be construed as including less favourable treatment of a person that:
(a) occurs once any contractual relationship has come to an end; but
(b) nonetheless, relates to the working relationship.[325][325] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [54].
[447]The AD Act is properly described as beneficial legislation. The approach described in Bird v the Commonwealth[326] namely, if a person or a case falls within the general spirit of remedial legislation, and there are two possible interpretations, the courts ought not to construe the Act so as to exclude that person or case. However, this approach is not without constraint.
[326] (1988) 165 CLR 1.
[448]As was observed in Khoury v Government Insurance Office (NSW),[327] the interpretation adopted "must be restrained within the confines of the actual language employed and what is fairly open on the words used".
[327] (1984) 165 CLR 622.
[449]In IW v City of Perth,[328] Brennan CJ and McHugh J expressed the approach to the construction of beneficial legislation in the following terms:
.. beneficial and remedial legislation, like the [Equal Opportunity] Act, is to be given a liberal construction. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical". Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.[329] (citations omitted)
[328] (1997) 191 CLR 1.
[329] Ibid [12].
[450]It is only if more than one interpretation is available or there is uncertainty as to the meaning of the words that the beneficial interpretation approach arises.[330]
[330] Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260, [33] 269.
[451]I do not accept the Complainants' argument that s 15(1)(f) of the AD Act should be read as extending to the treatment of a worker who is no longer engaged in work if the treatment still relates to the working relationship.
[452]What occurred on the morning of 4 April 2014 did not, in my view, arise out of the working relationship between the Complainants and the MSHHS. There was no connection with work. The employment relationship was at an end. The Complainants' conduct in entering the premises in the early hours of the morning was unlawful.[331] To bring the alleged discriminatory conduct into the operation of the AD Act, there needs to be a sufficiency of connection or a nexus between the employment and the thing done by the employee. There was none.
[331] Exhibits 4 and 5.
[453]In these circumstances it cannot be found that the treatment of the Complainants on 4 April 2014 was capable of being proscribed by the AD Act.[332] Accordingly, the alleged treatment of the Complainants by Dr Ashby does not fall within the scope of s 101 of the AD Act.
[332] AD/2018/67, AD/2018/68, AD/2019/110 - Complainants' submissions filed 30 November 2021, [55].
[454]Moreover, as I have concluded elsewhere, the evidence does not establish discrimination. There was no discrimination in the performance of the function; or the exercise of the power; or the carrying out of the responsibility under s 101 of the AD Act.
[455]As the evidence before the Commission clearly demonstrates, Dr Ashby denied that the substantial reason, or any reason for giving the instructions was based upon the Complainants' race or religion, or any pleaded characteristic. I accept that the reason for giving the instructions was the extraordinary and unlawful behaviour of the Complainants on 4 April 2014.
[456]For the reasons advanced above, I cannot accept that Dr Ashby treated the Complainants less favourably on account of a protected attribute. None of the allegations of discrimination have been established and accordingly, this part of the claim ought to be dismissed.
Conclusion
[457]The Complainants bear the onus of proof in relation to the allegations of direct discrimination to establish the Respondents contravened the AD Act on the balance of probabilities.[333]
[333] Anti-Discrimination Act 1991, s 204.
[458]In proceedings such as this, it is rarely the case that reliance can be had to direct evidence. It is well established that proof of discrimination usually depends on the drawing of inferences from all the circumstances, not clear facts.[334]
[334] Sharma v Legal Aid (Qld) (2002) 115 IR 91.
[459]In Sharma v Legal Aid (Qld) the Full Court of the Federal Court wrote:
It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953, 958. There may be cases in which the motivation is subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] UKHL 36; [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361–362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature.
In a case depending on circumstantial evidence, it is well established that the trier of fact must consider 'the weight which is to be given to the united force of all the circumstances put together'. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen [No.2] (1983 - [1984] HCA 7; 1984) 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important, provided, of course, that the circumstances relied upon are established as facts.[335]
[335] Sharma v Legal Aid (Qld) (2002) 115 IR 91, [40]-[41].
[460]The Commission has been urged by the Complainants to draw the necessary inferences that the various instances of the pleaded conduct amounted to discrimination within the scope of s 15 of the AD Act.
[461]In G v. H (1994) Brennan and McHugh JJ stated, "the drawing of an inference is part of the process of fact finding", and it is "an exercise of the ordinary powers of human reason in the light of human experience".[336]
[336] G v. H (1994) 181 CLR 387, 390.
[462]The evidence before the Commission must give "rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability".[337]
[337] Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278, [34].
[463]In Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd[338] the Victorian Court of Appeal wrote:
The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be 'the more probable inference' from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference...
In its recent decision in Marriner & Ors v Australian Super Developments Pty Ltd, this Court summarised the relevant principles as follows:
"A party seeking to establish that an inference ought to be drawn must demonstrate that that inference is the more probable one which arises from the established facts. The inference must be based on evidence rather than speculation ..."[339]. (citations omitted)
[338] [2017] VSCA 88.
[339] Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88, [101]-[102].
[464]The case advanced by the Complainants was, in my view, based upon speculation and guesswork. The evidence was of such a nature that it could not, on the requisite onus, establish that any protected attribute or alleged characteristic was the substantial reason for any action taken by the Respondents.
[465]The evidence of Dr Peucker and Professor Akbarzadeh was in my view of little direct relevance or assistance in determining the issues before the Commission. The evidence of both Dr Peucker and Professor Akbarzadeh involved a survey of published research literature; neither of the experts addressed the specific pleaded characteristics; and much of the research relied upon, on which their opinion was founded, did not reference contemporary data.
[466]Even the most generous interpretation of the Complainants' case does not in any form raise to the necessary standard a conclusion that any protected attribute or alleged characteristic was the substantial reason for the actions of the Respondents.
[467]The High Court in Purvis v New South Wales (Department of Education and Training)[340]refer to the issue of causation as follows:
[340] [2003] HCA 62, [158]-[159] (McHugh and Kirby JJ); 217 CLR 92; 78 ALJR 1; 202 ALR 133.
158 In Waters v Public Transport Corporation, Mason CJ and Gaudron J (Deane J agreeing) approved the view of Deane and Gaudron JJ in Banovic that motive or intention to discriminate is not required. Their Honours said that it is enough if the difference in treatment is based on the prohibited ground, notwithstanding an absence of motive or intention.
159 In Waters, McHugh J rejected the statement of Lord Goff in Birmingham and the statements of Deane and Gaudron JJ in Banovic concerning motive or intention, in so far as they might suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator was actuated by the prohibited ground. His Honour said:
"The words 'on the ground of' and 'by reason of' require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ('the victim'). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did." (Citations omitted)
[468]I cannot conclude that the conduct of the Respondents was actuated by a prohibited ground.
[469]The approach adopted by the Respondents in respect of Dr Zaheer and Dr Nadeem dealing with their internship seemed to me to be unremarkable. The MEU's function is to co-ordinate and deliver education and training for intern doctors in accordance with prescribed curriculum during their internship years.
[470]Consistent with that function, the ultimate goal is to assist interns to successfully complete their internships and progress through to general registration. The evidence before the Commission reflects that approach.
[471]The Complainants were criticised by the Respondents for the failure to directly confront the Respondents about their reasons for acting as they did. In particular, it was submitted that it was not put to Dr Jordan nor Dr Gill in cross-examination the reason, let alone the substantial reason for acting as they did was because of the Complainants' religious beliefs. Counsel for the Complainants placed emphasis on the fact that the Respondents had been put on notice of the allegations that were to be made against them. Because the Respondents were on 'notice' it was not necessary therefore for the witnesses to be cross‑examined in relation to the specific reasons for acting as they did.[341]
[341] TR9-26, L40-TR9-27,L13.
[472]The Victorian Court of Appeal decision in Curwen & Ors v Vanbreck Pty Ltd[342] in dealing with the effect of a witness not being cross-examined, wrote:
[342] (2009) 26 VR 335.
[27] If the appellants' submission is accepted without qualification, the fact that the party calling the witness is on notice that it is intended to challenge the witness's evidence or impugn the witness or party's conduct in a particular way means that compliance with the rule in that circumstance is no longer obligatory. But whatever the effect of 'notice', the burden of persuasion as to that fact does not shift. remains upon the party who seeks to establish the allegation. The cross-examiner who because of 'notice' refrains from 'putting' the allegations to the witness embarks upon a potentially dangerous forensic course. The tribunal may not be persuaded of the fact in issue if there is no cross-examination on the issue. That risk increases where the party who makes the allegation can adduce no direct evidence as to it and the other party, having adduced no evidence in chief as to the issue, is not cross‑examined.
[28] The rule facilitates the tribunal's assessment of the issue. If the tribunal's capacity to properly assess the merit of the allegation has been impaired because the issue was not explored with the witness, the cogency and weight to be attached to the allegation is likely to be affected. As Redlich J stated in Johnson Matthey (Aust) Pty Ltd v Dascorp Pty Ltd:
Credit issues need to be identified when the witness is cross-examined, and the trial unfolds. The judge's capacity to assess the credibility of witnesses ought not to be impeded. Any relaxation of the obligation to comply with the rule in Browne v Dunn has the potential to do so, thereby increasing the risk of injustice to a witness or party.
[29] Where, because there is 'notice', it is not considered necessary that the witness be cross‑examined, the risk arises that the tribunal will not be able to reach an affirmative conclusion on the issue. That is to say, the consequence of the forensic choice to abstain from challenging the witness may leave the tribunal unpersuaded as to the truth of the allegation so that it will decline to reach a conclusion adverse to the witness. (citations omitted)
[473]As the authorities suggest, issues of credit need to be identified when the witness is cross‑examined, and the hearing unfolds. A failure to do so may leave the tribunal of fact unpersuaded as to the truth of the allegation.
[474]I found Dr Jordan and Dr Gill to be credible witnesses. I formed the view after listening to and considering their evidence that they were motivated by a desire to ensure that the Complainants succeeded during their internship.
[475]It is accepted that during their employment at PAH, the Complainants were afforded the protection of s 15 of the AD Act. However, for the reasons expressed elsewhere, as former employees, the AD Act does not extend to the Complainants.
[476]Notwithstanding the above conclusion, in respect of the G20 Matter, I accept the evidence of Dr Ashby and Mr Beckett. When the evidence before the Commission is assessed, there is no basis to find that the substantial reason for giving the instructions on 4 April 2014 was based on the Complainants' religious belief or the pleaded characteristics.
[477]The Complainants have, in respect of each of the matters before the Commission, failed to discharge the onus of establishing that the treatment of them amounts to unlawful direct discrimination under the AD Act. Accordingly, Complaints AD/2018/67, AD/2018/68 and AD/2019/110 are dismissed.
[478]I order as follows:
ORDER:
1.That Complaints AD/2018/67, AD/2018/68 and AD/2019/110 be dismissed.
2. I will hear the parties on the question of costs.
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