Vale v State of Queensland - [2019] QCAT 290

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 2018

Further 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to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the names of the relevant service users must not be published.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCAT 290
Decision Date: 19 September 2019

CaseChat Overview and Summary

In the case of Vale v State of Queensland, Mr. Vale, a residential care officer employed by the Department of Communities, Child Safety and Disability Services, brought a claim against the Department for discrimination under the Anti-Discrimination Act 1991 (Qld). Mr. Vale had developed chronic kidney disease and required continuous ambulatory peritoneal dialysis (CAPD) treatment. He had been performing CAPD during his breaks while working as a residential care officer (RCO), but the Department prohibited him from doing so and redeployed him to an administrative role. The main legal issues the court had to address were whether prohibiting Mr. Vale from performing CAPD during his break constituted discrimination on the grounds of his impairment and whether any discrimination was justified under the Act.

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

The Department deny that their conduct or that of its employees constituted unlawful discrimination but argues, in any event, assuming it did, that the conduct fell within one or more of the exemptions to the Act. Background facts Mr Vale commenced CAPD on 4 September 2015. At that time Mr Vale worked as an RCO at 12 Donald Court, Maryborough where he was required to provide support services to three intellectually disabled persons. Mr Vale had been an RCO for 16 years and had known these three persons for the whole of that time. I accept that he was, accordingly, very familiar with their needs and behaviours.[1][1]Applicant’s submissions, [14]. Mr Vale’s role as an RCO was to provide support and quality care to the service users at 12 Donald Court in respect of all aspects of their daily lives. Those duties involved assisting service users with daily activities by providing them with their meals, assisting with personal care and preparing them for outside activities. Mr Vale agreed it was his responsibility to: clean the house; manage the service users’ financial affairs; attend to shopping and banking for the service users; and complete administrative tasks relating to the operation of the house. Mr Vale’s duties regarding personal care of service users included grooming, toileting, showering, bathing, and dressing. The physical requirements for the RCO role were those set out in a position description, namely:[2][2]Statement of David Robinson, Annexure DR-1: Position Description of RCO.· Drive a manual car or mini bus…· Have and maintain a general level of fitness· Stand for long periods of time· Sit for long periods of time· Bend, kneel and crouch· Perform repetitive movements of hands and arms· Stay alert on night shifts· Lift a range of weights using safe practices when performing manual tasks…· Push manual wheelchairs…· Physically and mentally react quickly in situations where clients require immediate attention due to being at risk of harm· Supporting service users, as required, to develop skills in personal care (including personal hygiene and grooming), taking medication (as prescribed by their treating doctor), and assistance with safe mobility· Encouraging and modelling positive and socially appropriate behaviour and providing support with development and implementation of plans, including Positive Behaviour Support Plans· Effectively utilising behaviour support strategies to support those service users who exhibit challenging behaviour. Mr Vale agreed in cross examination that, having regard to the position description, he was also required to assist clients with intrusive medical procedures and to employ protective actions as required to maintain safety and to take action to manage unpredictable and disruptive service user behaviour.[3] Mr Vale also agreed in cross-examination that service users could unintentionally harm other service users or an RCO by grabbing, hitting or pulling at them.[4][3]Respondents’ submissions, 3 December 2018, [98]. [4]Ibid [100].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 2018 Further 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…