QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Vale v State of Queensland & Ors [2019] QCAT 290
PARTIES: JOHN ANTHONY VALE (applicant)
v
STATE OF QUEENSLAND (first respondent)
PETER SMALES (second respondent)
DAVID ROBINSON (third respondent)
DEBBIE-ANN CATHERINE BROOME (fourth respondent)
APPLICATION NO/S:
ADL067-16
MATTER TYPE:
Anti-discrimination matters
DELIVERED ON:
19 September 2019
HEARING DATES: 29 October 2018; 30 October 2018; 31 October 2018;
1 November 2018; 2 November 2018; 5 November 2018Further written submissions filed on 7 January 2019 and 21 January 2019
HEARD AT:
Brisbane
DECISION OF:
Member Traves
ORDERS: 1. It is declared that in respect of complaint three the first respondent is liable for a contravention of s 15(1)(f) of the Anti-Discrimination Act 1991 (Qld).
2. It is declared that in respect of complaint four, the first respondent and second respondent are jointly and severally liable for a contravention of s 15(1)(f) of the Anti-Discrimination Act 1991 (Qld).
3. Complaints one, two, five, six and seven are dismissed.
4. Complaint eight, alleging victimisation by the first respondent and fourth respondent, is dismissed.
5. The first respondent and second respondent are jointly and severally liable to pay the applicant the sum of $33, 906.16 within 14 days of the date of this order.
6. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the names of the relevant service users must not be published.
7. The parties must make submissions as to costs, if any, by 4:00pm on 30 September 2019.
8. The parties must make submissions as to costs in reply, if any, by 4:00pm on 7 October 2019.
CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION – Direct discrimination, indirect discrimination and victimisation – applicant employed as residential care officer (‘RCO’) with the Department of Communities, Child Safety and Disability Services (‘the Department’) – applicant develops chronic kidney disease which requires him to undertake continuous ambulatory peritoneal dialysis (‘CAPD’) – where applicant performed CAPD during his ‘crib break’ – where applicant prohibited by the Department from performing CAPD while working as an RCO – where applicant redeployed to an administrative role – whether prohibiting applicant from performing CAPD during his crib break as an RCO constituted discrimination on the basis of an impairment within the meaning of ss 10 and 15 of the Anti-Discrimination Act 1991 (Qld) – whether term imposed with which a higher proportion of people without his impairment comply or are able to comply being a requirement which is not reasonable having regard to the circumstances of the case and with which applicant not able to comply – whether requirement that RCOs not perform CAPD during their crib break was a “term” within the meaning of s 11 – whether any such term was reasonable – whether genuine occupational requirements of position meant any discrimination was not unlawful – whether applicant could comply with genuine occupational requirements notwithstanding need to perform CAPD – whether applicant required ‘special services or facilities’ – whether backfill…
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- Case
- [2019] QCAT 290
- Decision Date
CaseChat Overview and Summary
The court examined whether the Department's prohibition on Mr. Vale performing CAPD during his break constituted discrimination. It found that the prohibition constituted direct discrimination under the Act, as it treated Mr. Vale less favourably than someone without his impairment. The court also found that the prohibition constituted indirect discrimination, as it imposed a term that a higher proportion of people without his impairment could comply with. The court further considered whether any discrimination was justified under the Act. The court found that the Department's prohibition was not justified because Mr. Vale could perform CAPD during his break without causing any risk to the safety of the service users. The court also found that the Department did not provide any reasonable accommodation to Mr. Vale, such as a backfill arrangement, to enable him to perform CAPD during his break.
The court concluded that the Department's conduct constituted unlawful discrimination and ordered the Department to pay Mr. Vale compensation for the discrimination. The court also found that Mr. Vale was not subject to victimisation by the Department in relation to the delayed presentation of his 15-year service certificate. The court ordered the Department to pay Mr. Vale the sum of $33,906.16 within 14 days of the date of the order. The court further ordered that the names of the relevant service users must not be published and that the parties make submissions as to costs.
Orders
Orders of the court
1. It is declared that in respect of complaint three the first respondent is liable for a contravention of s 15(1)(f) of the Anti-Discrimination Act 1991 (Qld).
2. It is declared that in respect of complaint four, the first respondent and second respondent are jointly and severally liable for a contravention of s 15(1)(f) of the Anti-Discrimination Act 1991 (Qld).
3. Complaints one, two, five, six and seven are dismissed.
4. Complaint eight, alleging victimisation by the first respondent and fourth respondent, is dismissed.
5. The first respondent and second respondent are jointly and severally liable to pay the applicant the sum of $33, 906.16 within 14 days of the date of this order.
6. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the names of the relevant service users must not be published.
7. The parties must make submissions as to costs, if any, by 4:00pm on 30 September 2019.
8. The parties must make submissions as to costs in reply, if any, by 4:00pm on 7 October 2019.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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