Davis v Metro North Hospital and Health Service & Ors [2017] QCAT 56

CITATION: Davis v Metro North Hospital and Health Service & Ors [2017] QCAT 56 PARTIES: Christoper Davis (Applicant) v (1) Metro North Hospital and Health Service (2) Kerrie Mahon (3) Donna O’Sullivan (Respondents) APPLICATION NUMBER: ADL010-16 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gordon DELIVERED ON: 17 February 2017 DELIVERED AT: Brisbane ORDERS MADE: The application brought by Metro North Hospital and Health Service and Donna O’Sullivan on 29 September 2016 to remove Donna O’Sullivan as a party fails. CATCHWORDS: PROCEDURE – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – where respondent seeks to be removed from the proceedings because the complaint is misconceived or lacking in substance or otherwise insufficiently formulated – whether the complaint against that respondent should be struck out or dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 Anti-Discrimination Act 1991 (Qld), s 10, s 42, s 204 McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 referred to. -- 1 of 5 -- 2 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REPRESENTATIVES: APPLICANT: Self-represented RESPONDENTS: Crown Law REASONS FOR DECISION [1] On 31 January 2017 I dealt with an on the papers application by Metro North Hospital and Health Service and Donna O’Sullivan for Donna O’Sullivan to be removed from these proceedings as a respondent. This application was made on 29 September 2016. [2] I decided that the application failed and that Donna O’Sullivan should remain a respondent to the proceedings. I am now asked to give reasons for this decision. [3] In order properly to give my reasons I need to explain the context of the complaint brought by Dr Davis. In a nutshell he says that he was deliberately overlooked for appointment as a gerontologist by Metro North, a job he applied for on 20 August 2014. He says that this happened because of “political belief or activity”.1 [4] Dr Davis says that the post that he applied for was one that he was eminently qualified and experienced to fill, and for which soon after the recruitment process was commenced, he was the only candidate. He says the recruitment process was halted and then the post he applied for was removed altogether. He says this was because of his previous political activity and that this amounts to actionable discrimination. [5] The Respondents’ defence to the complaint is that the halting of the recruitment process and removal of the post was nothing to do with Dr Davis’s previous political activity but was because a reformed model of clinical service delivery (clinical streaming) was being introduced. [6] In the application to remove Ms O’Sullivan as a party it is said that the complaint against her is misconceived or lacking in substance.2 It is also said that Dr Davis’ contentions do not disclose a complaint against her which could amount to actionable discrimination. 1 This is one of the protected attributes in section 7 of the Anti-Discrimination Act 1991 (Qld). Dr Davis had been Assistant Minister for Health for two years between 3 April 2012 and 13 May 2014. 2 And therefore should be struck out or dismissed, relying on section 47 of the QCAT Act 2009. -- 2 of 5 -- 3 [7] This application to remove Ms O’Sullivan as a party was made before any evidence was filed. Since then, Dr Davis has filed evidence in accordance with the Tribunal’s directions. That evidence does not assist in my consideration of this matter. Therefore, I have considered this application in the light of the filed contentions and the submissions filed in support of it, and Dr Davis’ submissions in reply. [8] On the available material, I can only make assumptions about the recruitment process for the post that Dr Davis applied for, and Ms O’Sullivan’s authority and role in that process. These assumptions are informed firstly by an email sent to Ms O’Sullivan on 18 September 2014 by the office of the Executive Director, Royal Brisbane and Women’s Hospital, which stated:- Please see the attached brief for urgent approval. Can this please be signed and sent to Angela as a matter of priority as Aged Care are desperate for staff? [9] Attached to that email was a Brief for Approval for the recruitment for the post for which Dr Davis had applied. It set out details of the post and how the recruitment process had progressed. It pointed out that Dr Davis’s application was the only valid one which had been received. It recommended that the recruitment process progress to the interview stage which would happen a few days later. [10] Page two of the Brief for Approval had a space for the signature of the Acting Chief Executive (Kerrie Mahon) above which were the words “approved/not approved”. Dr Davis accepts that this shows that Ms Mahon had the final say in the matter.3 However, the boxes below listed five people giving dates for their approval. It appears from this that three people had already approved the brief and it left two people to approve it followed by approval by the Acting Chief Executive as mentioned above. The relevant entries were:- Acting Executive Director, Internal Medicine Services, Royal Brisbane and Women’s Hospital (approved on 15 September 2014). Acting Executive Director, Medical Services, Royal Brisbane and Women’s Hospital (approved on 15 September 2014). Executive Director, Royal Brisbane and Women’s Hospital (approved on 15 September 2014). Donna O’Sullivan, Executive Director Medical Services, Metro North Hospital and Health Service – this had a blank date in September for her approval because she had not yet approved the document. 3 His submissions dated 24 November 2016. -- 3 of 5 -- 4 Angela Wilke, Head of Human Resources, Metro North Hospital and Health Service – again this had a blank date in September for her approval because she had not yet approved the document. [11] It appears therefore that the process was that the Brief for Approval was to be passed to each of the above five officers for their approval and then would be given to the Acting Chief Executive for a final decision to be made. What Ms O’Sullivan was being asked to do in the email of 18 September 2014 therefore, was to approve the brief and pass it to Angela Wilke as the next stage in the approval process. [12] However, instead of approving the brief as asked, Ms O’Sullivan’s office sent this email in reply:- Donna O’Sullivan will not approve this Brief as she would like to discuss with A/Chief Executive before approving. [13] This decision therefore stopped the recruitment process from continuing. [14] At this stage in the proceedings (because there is no evidence about it) it can only be pure speculation why Ms O’Sullivan did not approve the brief and pass it on. It appears to me on the available material that there could be at least three possible reasons for this (and there could be more):- a) it could be that Ms O’Sullivan was aware that the introduction of clinical streaming meant that it might be inappropriate to continue with the recruitment process and she wanted to discuss this with Ms Mahon; b) it could be that Ms O’Sullivan was aware that there might be some reason why it might not be appropriate to proceed with the recruitment process but she did not know what that reason was and wanted to discuss this with Ms Mahon; or c) it could be that Ms O’Sullivan was aware that there could be a difficulty in appointing Dr Davis to the post because of his previous political activity and wanted to discuss this with Ms Mahon. [15] Without of course deciding the matter, if the reason for not approving the brief was c) then it would appear that Dr Davis was treated differently than another applicant would have been treated in the same circumstances, where that other applicant did not have his attribute (of past political activity). If so, such different treatment would be less favourable treatment because it meant that in his case, the recruitment process was interrupted and was made subject to further internal discussion. [16] Discrimination is only actionable if it comes within one of the areas in the Anti-Discrimination Act. In this complaint, Dr Davis relies on the work area.4 4 The work area is set out in Section 14 of the Anti-Discrimination Act 1991 (Qld). -- 4 of 5 -- 5 [17] The Respondents argue in this application that it was Ms Mahon, and not Ms O’Sullivan, who made the decision not to appoint Dr Davis. Therefore it is said, Ms O’Sullivan should be discharged from the proceedings. However, the work area is not just about decisions who should be offered work, but also covers discrimination in the arrangements made for deciding who should be offered work. The request to Ms O’Sullivan to approve the brief and pass it on was one of the arrangements in the recruitment process and she made a decision about those arrangements which was potentially discriminatory. In any case, her involvement might go so far as to be participation in a decision not to offer work to Dr Davis or a failure to offer him work, which is also within the work area. [18] It is impossible to say at this stage of the proceedings which of a), b) or c) are correct, or whether there is some other innocent explanation for Ms O’Sullivan’s decision. The Respondents may well have an answer to the allegation against her, but this is something that needs to be examined at the hearing of this matter and not at this early stage. [19] It is not fanciful that the reason might be c). This is shown by a number of things which Dr Davis relies on in his complaint. I take into account of course that Dr Davis has the burden of proving his case with sufficiently cogent evidence and on the balance of probabilities.5 But it is possible to satisfy that burden if it would be appropriate for the Tribunal to exercise its powers of inference.6 [20] The point is made in the application to remove Ms O’Sullivan as a party that the complaint against her is insufficiently formulated. However, it must be borne in mind that in the Tribunal a party’s case is not defined by pleadings and therefore the Tribunal will not require the level of precision in the way the complaint is cast as would be required from pleadings. [21] The allegation in paragraph 138 of Dr Davis’s contentions against Ms O’Sullivan are that she discriminated against him (a) in the arrangements made in the recruitment process (b) in deciding not to offer him work and (c) by withdrawing the post he applied for. As can be seen above, the material already before the Tribunal shows that (a) is certainly arguable. On that basis alone, it would be wrong to strike out or dismiss the complaint against her. There is no application to restrict the complaint against her to certain allegations. 5 The balance of probabilities being required by section 204 of the Anti-Discrimination Act 1991 (Qld). 6 Although the Tribunal would be unable to make a finding of discrimination unless satisfied by rational deduction and more than mere speculation, guesswork or assumption, that discrimination has occurred: McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243. -- 5 of 5 --