Byrne v Spotless Facility Services Pty Ltd [2016] QCAT 420

CITATION: Byrne v Spotless Facility Services Pty Ltd [2016] QCAT 420 PARTIES: Terri Byrne (Applicant) v Spotless Facility Services Pty Ltd (Respondent) APPLICATION NUMBER: ADL091-15 MATTER TYPE: Anti-discrimination matters HEARING DATE: 13 and 14 July 2016 HEARD AT: Mackay DECISION OF: Member Beckinsale DELIVERED ON: 4 November 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The complaint is dismissed. 2. Spotless Facility Services Pty Ltd must file written submissions (if any) on costs in the tribunal and send a copy to Terri Byrne by 4:00pm on 25 November 2016. 3. Terri Byrne must file written submissions in response (if any) on costs in the tribunal and send a copy to Spotless Facility services Pty Ltd by 4:00pm on 16 December 2016. CATCHWORDS: ANTI-DISCRIMINATION – where complaint of unlawful workplace discrimination based on impairment – where impairment of lung cancer – where complaint of less favourable treatment – whether inference of discrimination to be drawn from facts Anti-Discrimination Act 1991 (Qld), ss 7,10(2)- (5), 15(1)(a)(c)(f), 15(2), 24-36, 103-113, 204, 206 Queensland Civil and Administrative Act 2009 (Qld), s 102(1) -- 1 of 43 -- 2 APPEARANCES: Boehringer Ingelheim Pty Ltd v Reddorp [1984] 2 NSWLR 3 Carey v Cairns Regional Council [2011] QCAT 26 Glasgow City Council v Zafar [1998] 2 All ER 953 Nagarajan v London Regional Transport [1999] WLR 425 Quinn v Overland [2010] FCA 799 Richardson v Oracle Australia Pty Ltd [2014] FCAFC 86 Sharma v Legal Aid Office (Qld) [2002] FCAFC 196 APPLICANT: Terri Byrne RESPONDENT: Spotless Facility Services Pty Ltd REPRESENTATIVES: APPLICANT: represented by Mr Scott McLennan of Counsel RESPONDENT: represented by Mr Angus Galbraith of Counsel instructed by the respondent REASONS FOR DECISION Background [1] This matter was referred from the Anti-Discrimination Commission of Queensland. Terri Byrne lodged a complaint in the Commission against her employer Spotless Facility Services Pty Ltd claiming that she was discriminated against on the basis of an impairment. [2] Spotless is contracted to a multinational mining company, Anglo American Metallurgical Coal, to provide services such as labour, accommodation and catering, across mining sites in Queensland and New South Wales. [3] Ms Byrne initially worked for Spotless on a six month fixed term contract as Safety and Training Coordinator at Middlemount commencing 8 October 2013.1 She was however employed on a permanent basis as Safety and Training Manager, although with a three month probationary period, from 1 Document No.1 in Applicant’s Bundle of Documents. -- 2 of 43 -- 3 10 January 2014.2 The position was located at Middlemount although her contract of employment provided:3 Spotless has a policy in which it reserves the right to reassign employees geographically or to other responsibilities from time to time. Such reassignment will occur after consultation and agreement with you. [4] Ms Byrne was diagnosed with lung cancer in January 2007. She underwent surgery and subsequently chemotherapy and radiation and was required to undergo regular reviews. [5] Spotless was aware that Ms Byrne had undergone treatment for lung cancer at the commencement of her initial fixed term of employment. Prior to commencing employment, Ms Byrne passed a pre-employment medical assessment. [6] Ms Byrne said as a result of her treatment for lung cancer, she suffered diverticulitis. On 5 February 2015,4 Ms Byrne suffered such severe abdominal pain from the diverticulitis that she required transport by helicopter from her workplace to Mackay for hospital admission. While receiving treatment for diverticulitis, a scan revealed the presence of a new cancer tumour in her lung. [7] Initially Ms Byrne was on sick leave. On 12 February 2015, a Thursday, she emailed, Louis van Rooyen, the Area Manager at Middlemount, and her immediate superior, that she would be back at work Monday ‘with a cert clearance’.5 Presumably that referred to Monday 16 February 2015 although it was not apparent in the evidence before me whether she resumed work that day ( Ms Byrne’s Statement of Evidence dated 18 April 2016, as well as an email she sent to the Anti-Discrimination Commission dated 21 May 2015 refers to her being airlifted from work on 18 February 2015 and the latter states she returned to work 23 February 2015 with a ‘medical certificate for the couple of days off for the Diverticulitis.’) [8] Ms Byrne did attend at work 24 February 2015 but left after becoming distressed after watching a training video. Before leaving the site, she completed an application for leave without pay. Her application indicates the period sought to be from 23 February to 25 March 2015 but ultimately unpaid leave was granted until 31 March 2015. [9] Ms Byrne subsequently received treatment in Brisbane for her returning lung cancer, she said from 4 March 2015. [10] On 24 March Ms Byrne emailed Mr van Rooyen:6 2 Document No.2 in Applicant’s Bundle of Documents. 3 Ibid at page 5. 4 Annexure 3 to Statement of Louis Van Rooyen. (Ms Byrne agreed in cross-examination that the date 18 February as given in her statement was an error.) 5 Annexure 5 to Statement of Louis van Rooyen. 6 Document No.5 in Applicant’s Bundle of Documents. -- 3 of 43 -- 4 As you know I have had some treatment done recently and I only have time off till the end of march, I can get a medical certificate for the time off but can’t get a clearance from cancer till June or ever. So can you please let me know what you require for me to return to work. [11] There was at least one telephone conversation between Ms Byrne and Mr van Rooyen during which she expressed her wish to come back to work. [12] Mr van Rooyen emailed Ms Byrne on 26 March 2015: 7 Referring to our telephone conversation the other day, I’ve asked for advice and guidance regarding your situation from John Douglas and Rowena Terlingen. My request based on this advice and guidance is that if we can at least obtain the prognosis provided to you by your medical practitioner or an estimate of when you may be available to commence work? [13] Ms Byrne responded the following day:8 Thanks for the email I will make contact with Duncan today and will pass the the [sic] medical certificate for my return to work [14] On 31 March 2015 at 10.26am Mr van Rooyen emailed Ms Byrne:9 Just a courtesy mail to inform you that, as you are aware, your unpaid leave finishes today -31/3/15 and I would like to follow up on our communication as below. Please forward me information regarding your situation in order for us to plan the way forward. [15] Ms Byrne replied at 10.48am:10 I have contacted the medical practitioner for a certificate again earlier this morning and have request (sic) the paperwork as soon as I have it I will pass it on to you. Sorry for the inconvenience. [16] On 31 March 201511 Ms Byrne emailed Mr van Rooyen a document from Dr Duncan Walker, Interventional Radiologist addressed ‘To Whom It May Concern’ stating:12 This is to certify that Mrs Terri Byrne attended our clinic on Wednesday 18th March for an Inpatient Medical Procedure and is unavailable to attend any work related duties until 20th of April. 7 Document No.6 in Applicant’s Bundle of Documents. 8 Document No.7 in Applicant’s Bundle of Documents. 9 Document No.8 in Applicant’s Bundle of Documents. 10 Document No.9 in Applicant’s Bundle of Documents. 11 Exhibit 3. 12 Document No.10 in Applicant’s Bundle of Documents. -- 4 of 43 -- 5 If you require any further information, please do not hesitate to contact our office. [17] Ms Byrne completed a further Leave Application dated 31 March 2015 for leave from 1 April to 20 April 2015, which was inserted in the document as ‘Last Day of Leave’.13 [18] On 20 April 2015 at 7.10am Mr van Rooyen emailed Ms Byrne:14 Following from your leave application I would like to inquire if you will be returning to work on the 21st of April 2015. Could you please confirm as accommodation arrangements must be made. [19] At that time Ms Byrne had already left her residence in Mackay to travel to Middlemount, arriving at work about 8.30am. She said she received the email but was unable to respond while driving. [20] Ms Byrne and Mr van Rooyen provided conflicting accounts of the conversation they had but agreed that Mr van Rooyen told Ms Byrne she was not due back at work until the following day and that he informed her she was stood down without pay. [21] After returning home that day, Ms Byrne emailed Mr van Rooyen at 12.59pm asking:15 May I have a letter emailed to this address with request that you made of me this morning after I arrived at work of the functional capacity test, and that you requested me to be stood down pending the result. [22] Mr van Rooyen’s response later that day at 5.32pm attached a letter which stated: 16 Approved Unpaid Leave was taken by yourself from 2nd March to 31st March 2015 for medical reasons and we have been provided with a Doctors certificate for the period 18th March 2015 to the 20th April 2015 stating that you will be unavailable to attend any work related duties. As you are aware that you have been absent from work in excess of 7 weeks and Spotless need to ensure that you are fit and capable to resume your duties as per your original appointment. During our consultation this morning when you did not present a Doctors Clearance Certificate (Fit for Work), it was mutually agreed that until such time you can provide Spotless with evidence stating you are fit to resume your normal duties, you are stood down on the grounds of not being fit and 13 Document No.11 in Applicant’s Bundle of Documents. 14 Document No.12 in Applicant’s Bundle of Documents. 15 Document No.13 in Applicant’s Bundle of Documents. 16 Annexure 7 to Statement of Louis van Rooyen. -- 5 of 43 -- 6 capable for work. As from 21st of April 2015, Sick Leave without pay will be applicable. Further to this, Spotless will require a Functional Capacity Assessment and will proceed to make arrangements accordingly. We further confirm that as being employed in the capacity of Safety and Training Manager in Middlemount, these processes and requirements are familiar to you as standard Spotless Operating Procedures. [23] Ms Byrne by email at 6.19pm responded:17 A bit confused as I was never ask [sic] for a medical clearance to return to work, you requested a medical certificate which I provided. I can get a medical clearance tomorrow if that is what is required. Further to the FCT is this something that spotless is organising or am I to submit this also? The discussion this morning were your requests and my following these requests as I presented to work to work not to be sent home. You also advised me that I was to be stood down with pay pending satisfaction this mornings requirements. [sic] [24] Mr van Rooyen responded at 7.46pm:18 A medical certificate was requested in support of you not being at work, to validate the application for sick leave and to provide Spotless with an official prognosis of your medical situation. As discussed during our meeting with yourself, nothing of what we are requesting from you is out of the ordinary. As a matter of fact, yourself in the capacity of Safety and Training Manager followed these procedures when employees returned to work after injuries or illnesses be it work or non-work related. I am confused as to you obtaining a Medical Clearance Certificate tomorrow for the reason you’ve stated that you might only be cleared in June. As far as you presented to work this morning to work and not to be sent home is somewhat conflicting to the processes and procedures you are well aware of. Being stood down with pay was a recommendation you proposed, in answer to my question, as being the norm when you’ve dealt with employees, in the capacity of Safety and Training Manager, in similar situations in the past when employees presented for work without a Medical Clearance Certificate. Hence my response that I will have to take advice from Head Office. I will again consult with Head Office and reply back to you regarding the matter of Sick Leave without pay. 17 Document No.15 in Applicant’s Bundle of Documents. 18 Document No.16 in Applicant’s Bundle of Documents. -- 6 of 43 -- 7 As per my letter dated today the 20th of April 2015, I once again confirm that Spotless will proceed to make arrangements regarding the FCA and notify you accordingly. [25] Ms Byrne lodged a complaint for discrimination against Spotless on 27 April 2015. [26] On 29 April 2015 Mr van Rooyen telephoned Ms Byrne to advise she would be paid whilst stood down. On 3 May 2015, Ms Byrne chased up an email confirming that advice19 which Mr van Rooyen forwarded that day.20 [27] By email to Ms Byrne on 5 May 2015 Mr van Rooyen forwarded details of her appointment with Sonic Health Plus referring to his belief she had discussed the details with Melissa Russell21 who was the Queensland Injury Manager for Spotless. [28] On 6 May 2015 Ms Russell emailed Ms Byrne and Mr van Rooyen and confirmed there were no special requirements for the assessment which was to be undertaken by an occupational health doctor and suggested Ms Byrne take with her any medical records or information which may be of assistance.22 [29] In response Ms Byrne emailed Ms Russell: 23 Is this a medical assessment? Or a functional capacity assessment? I thought it was about my physical capacities not my medical. Can you clear this for me please [30] Ms Russell replied:24 The assessment is a functional capacity assessment to ascertain your physical capacity to perform your role. This assessment is being undertaken by a Sonic Health Doctor and not a physiotherapist or an occupational therapist. [31] Also on 6 May 2015, Ms Byrne phoned Mr van Rooyen to advise she had not received payment of her salary into her account. [32] Ms Byrne saw a Dr David Parker at Sonic Health Plus on 8 May 2015. Melissa Russell sent a letter (undated) to Sonic Health Plus25 providing some background and requesting the doctor’s response to 10 questions concerning Ms Byrne’s capacity to return to her employment role. 19 Document No.17 in Applicant’s Bundle of Documents. 20 Document No.18 in Applicant’s Bundle of Documents and annexure 8 to statement of Louis van Rooyen. 21 Document No.19 in Applicant’s Bundle of Documents. 22 Document No.20 in Applicant’s Bundle of Documents. 23 Document No.21 in Applicant’s Bundle of Documents. 24 Document No.22 in Applicant’s Bundle of Documents. 25 Document No.24 in Applicant’s Bundle of Documents. -- 7 of 43 -- 8 [33] Dr Parker responded by letter to Ms Russell dated 14 May 2015.26 Dr Parker advised that he had consulted with Ms Byrne’s treating specialist, Dr Walker in relation to her prognosis and return to work. In summary, he was of the opinion that she was currently fit to complete her duties as a training and safety manager but should avoid heavy exertion and needed to be close to amenities. He did not see any issues with undertaking drive in/drive out but said she would need to manage any fatigue issues. He said her prognosis with lung cancer was not good and she may become too unwell to perform her role in the future but the timeframe was impossible to predict. [34] Ms Byrne had still not received her pay and telephoned Mr van Rooyen on both 17 and 18 May 2015 to enquire about that. Mr van Rooyen sent emails27 after each call to Craig Madigan who was Eastern Operations Manager, responsible for the operations of Spotless business across Queensland, New South Wales and South Australia. He copied in to his first email payroll clerk, Rosemarie Williams and Melissa Russell. [35] Ms Byrne emailed Mr van Rooyen 19 May 201528 pointing out she had contacted him twice and still not received her pay and asking when it would be transferred to her account. That day Mr van Rooyen again emailed Mr Madigan copying in two additional Spotless employees and asking ‘Could somebody please advise me of Terri’s situation regarding her pay’.29 [36] On 19 June 2015 Mr Madigan phoned Ms Byrne. During that conversation Mr Madigan asked Ms Byrne about her undertaking project management work at another site for three months. Ms Byrne asked whether she could return to work at Middlemount and Mr Madigan responded that he had employed someone in her role to undertake an audit which he wanted that employee to complete. He also raised with her, spending an initial week working in Mt Isa. Ms Byrne told him she had been working as a hairdresser. She raised with Mr Madigan, the fact that she had not been paid for the months of May or June and he said he was either resolving that or that he would look into it. [37] Mr Madigan emailed Ms Byrne on 25 June 2015 referring to their conversation stating he was ‘keen to get you back to work as soon as possible’. He summarised his proposals in the phone call as involving a 3 month project supporting the Contract Manager based in Moranbah to commence that coming Monday (that is, in 4 days’ time, 29 June) with a trip to Mt Isa during a week in July to assist with completing a Site Safety Risk Profile to a new accommodation village. The email confirmed that Ms Byrne would be provided with an onsite vehicle but travel between her home and 26 Document No.25 in Applicant’s Bundle of Documents. 27 Documents Nos.25 and 26 in Applicant’s Bundle of Documents. 28 Document No.27 in Applicant’s Bundle of Documents. 29 Document No.28 in Applicant’s Bundle of Documents. -- 8 of 43 -- 9 worksite would be her responsibility. The penultimate paragraph of the email concludes:30 I hope this will get you happily back to work and that your complaint can be withdrawn. As discussed, I have a number of new Village opportunities that are close to hand (and close to Mackay) that I would like to place you in if successful-this would be my preferred placement for you post the 3 month Project. [38] The email did not address the issue of Ms Byrne not being paid. [39] On 28 June 2015 Ms Byrne emailed Mr Madigan:31 Sorry due to current work comments (sic) I will not be able to meet these arrangements. I will call you on Monday, but will need to give notice to my current employment. [40] On 29 June 2015 (at 5.50am) Mr Madigan emailed Ms Byrne:32 No problems Terri, I am flying this morning but will be available anytime from 8.30-10-30 or 12.30pm onwards. [41] Between 29 June and 1 July Ms Byrne and Mr Madigan tried calling each other but missed each other’s calls. [42] On 1 July 2015 Mr Madigan emailed Ms Byrne:33 I tried to call yesterday and left a message-I’m really keen to understand if you will be coming back to work and if there are any barriers that need to be dealt with prior? [43] Ms Byrne replied that day:34 I also have tried to contact you a couple of times to no avail. I am waiting on some further information at the moment which I should have in the next day or so which will hopefully provide the opportunity to work to a resolution to this. [44] On 8 July 2015 Mr Madigan emailed Ms Byrne:35 I am conscious that another week has passed and note that you were hoping to come back to us late last week-is there anything I can do to expedite a resolution here? 30 Document No.29 in Applicant’s Bundle of Documents. 31 Document No.29A in Applicant’s Bundle of Documents. 32 Document No.30 in Applicant’s Bundle of Documents. 33 Document No.31 in Applicant’s Bundle of Documents. 34 Document No.32 in Applicant’s Bundle of Documents. 35 Document No.33 in Applicant’s Bundle of Documents. -- 9 of 43 -- 10 The previous offer remains open. [45] Ms Byrne replied that day:36 Thanks for the continued contact. I have not heard anything back from my advisor as yet, I will follow them up on Monday. [46] The matter did not resolve at a conciliation conference on 14 July 2015 and proceeded to hearing with all further communications between the parties conducted as part of these proceedings. Statutory Framework [47] The legislative basis for complaints of direct discrimination is in section 10(1) of the Anti-Discrimination Act 1991 (Qld) (the Act) which provides that direct discrimination on the grounds of an attribute occurs when a person with a specified attribute is treated less favourably compared to a person without the attribute in circumstances that are the same or not materially different. [48] The words ‘less favourably’ in that section requires that there be two situations, the actual and the hypothesized, so it can be determined by a comparison whether the treatment in the former is ‘less favourable’ than in the latter, in circumstances that are the same or not materially different.37 [49] It is not necessary that the person who discriminates considers the treatment is less favourable38 nor is the person’s motive relevant.39 If there are two or more reasons why a person treats another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute, if the attribute is a substantial reason for the treatment.40 [50] Section 7 of the Act lists impairment as one of the attributes that can be the basis for a complaint of discrimination. [51] Section 15(1) provides, inter alia, that a person must not discriminate in any variation of the terms of work,41 in dismissing a worker42 or by treating a worker unfavourably in any way in connection with work.43 Dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.44 36 Document No.34 in Applicant’s Bundle of Documents. 37 Boehringer Ingelheim Pty Ltd v Reddorp [1984] 2 NSWLR 13 at 19 per Mahoney JA. 38 Anti-Discrimination Act 1991 s 10(2). 39 Ibid, s 10(3). 40 Ibid, s 10(4). 41 Ibid, s 15(1)(a). 42 Ibid, s 15(1)(c). 43 Ibid, s 15(1)(f). 44 Ibid, s 15(1)(2). -- 10 of 43 -- 11 [52] Section 24 provides that it is not unlawful to discriminate in the work area if an exemption in sections 25 to 36 or part 5 applies. Section 25 provides an exemption for genuine occupational requirement for a position. Section 36 provides an exemption where there would be an unjustifiable hardship on the person discriminating. [53] Section 103 provides discrimination is not unlawful if the exemptions in sections 104 to 113 apply. Section 108 provides a person may do an act reasonably necessary to protect the health and safety of people in a workplace. [54] The burden of proof that the respondent has contravened the Act, is on the complainant on the balance of probabilities.45 The burden of proof in relation to an exemption is on the respondent, also on the balance of probabilities.46 Evidence of Ms Byrne [55] Ms Byrne said she was transported by helicopter from work after experiencing severe abdominal pain.47 She said she applied for and was granted leave without pay from 24 February 2015 until 31 March 2015.48 She said she became distressed at work on 24 February 2015 because she had only found out recently about the return of her cancer. She said Mr van Rooyen requested she complete a fatigue management form and a leave without pay form and did not attempt to persuade her to remain.49 [56] Ms Byrne said she and Mr van Rooyen spoke by phone on at ‘least two or three occasions’ between 31 March 2015 and 20 April 2015 and she told him she had undergone treatment for removal of her most recent tumour and that she would be returning to work at the end of her leave, which she understood to be 20 April. She said she assured Mr van Rooyen during these telephone conversations there was ‘absolutely nothing’ to prevent her return to work.50 [57] Ms Byrne said she had not provided a prognosis but did have Dr Walker provide a certificate that she ‘would be available to return to work on and from 20 April 2015’.51In cross-examination she agreed, as reflected in her email dated 12 February 2015, she was aware of the requirement to have a medical certificate to return to work. She agreed an employee who returned to work without a certificate would be stood down until a certificate was obtained and she described how she herself, as Safety and Training Manager, had arranged that with the local medical clinic on occasions. She 45 The Act s 204. 46 Ibid, s 206. 47 Ms Byrne’s Statement of Evidence filed 22 April 2016 refers to the date as on or about 18 February 2015 but it is apparent from other evidence the date was 5 February 2015 and that date is an error. 48 Statement in error refers to March 2014. 49 Ms Byrne’s Evidence in Reply at paragraph [2]. 50 Statement of Evidence in Reply of Ms Byrne at paragraph [2]. 51 Ibid at paragraph [2]. -- 11 of 43 -- 12 pointed out that such certificate could be required not only when an employee had an illness or injury, but also when a risk was identified in the workplace. She said Spotless had a duty of care in that situation. [58] In cross-examination Ms Byrne initially maintained that a medical certificate which covers an employee’s period of absence and a medical certificate which expressly states a person is fit to work from a certain date was ‘the same thing’ but ultimately she agreed the certificate she provided from Dr Walker was not a ‘medical clearance certificate’ of the type she had arranged from the local clinic for employees. When asked if she understood the requirements, why she had not obtained a clearance, Ms Byrne responded that she thought if they needed more information than the certificate she provided, she would have ‘received an email back requiring more’. Once she was stood down, she considered the ‘process’ was not hers to manage. [59] Ms Byrne said when she arrived at Middlemount at 8.30am on 20 April 2015 she met with Mr van Rooyen in his office. He told her she was not due back until the following day. She said she had received his email as she was driving so could not respond.52 [60] Ms Byrne said Mr van Rooyen told her he was going to stand her down, that it was not his choice and that the directive had come from above. She recalled saying to him that he knew he couldn’t do this to her and that he replied that they could. She said she told him it was discrimination because of her cancer and that they needed to make reasonable adjustments in the workplace and that Mr van Rooyen had said it wasn’t his decision and she was to be sent for a ‘medical’. She asked when that would be and he replied it would have to be organised, that he didn’t know the process but that the process would be familiar to her.53 [61] She said she told Mr van Rooyen that normally when someone is stood down they are given notification and at the same time given the date of the medical appointment and that they are stood down with pay. She said she gave him an example.54 [62] Ms Byrne said Mr van Rooyen had told her it was not his decision, he couldn’t answer her questions and he would have to talk to ‘the powers that be’. She said she told him what he was doing was wrong and ‘he said he understood’.55 [63] Ms Byrne said Mr van Rooyen said yes when she asked if he wanted her to hand everything back. She gave him her work laptop and phone and 52 Statement of Evidence of Ms Byrne at [36]-[39]. 53 Ibid at paragraphs [40]-[44]. 54 Ibid at paragraphs [45] and [46]. 55 Ibid at paragraphs [47] and [48]. -- 12 of 43 -- 13 replied that she did not require anything from her office when he asked. She drove home.56 [64] Ms Byrne said that while she knew she would pass any medical assessment she also knew ‘she was going to lose her job at Spotless’.57 [65] Ms Byrne said she had known Dr Parker since commencing employment for Spotless because in her role as Safety and Training Manager she had arranged for the assessment of many employees and discussed the outcome with him.58 [66] Ms Byrne said when Dr Parker asked her what she was doing there she replied that work had made her come for a medical because they ‘don’t like the fact that I have cancer’.59 She recalled Dr Parker asking her why she continued to work while experiencing cancer and that she told him it made her feel good and gave her a focus to help deal with the cancer, that her body ached every day but ‘if I can get through a day then I’ll get another day tomorrow and that will mean I have beaten it.’60 [67] Ms Byrne said Dr Parker had said he ‘didn’t understand’ to which she had replied that she ‘could understand that.’61 [68] Ms Byrne said that Dr Parker then read the letter from Spotless and said that ‘Spotless thinks I can’t work dealing with the cancer’ to which she responded she thought it ‘makes them feel uncomfortable’.62 In cross- examination she agreed she did not read the letter which Dr Parker had and did not see it until the discovery process in the course of these proceedings. [69] Ms Byrne said Dr Parker asked what she wanted ‘from this’ and she replied that she wanted to go back to work, that she was no different from what she was before and could still do a 12 hour day and Dr Parker said leave it with him.63 [70] Ms Byrne said she had not asked Dr Parker whether she had failed because she knew she would pass. She said she had ‘exactly the same capacity for work’ that she had prior to being re-diagnosed in February.64 [71] Ms Byrne did not receive a copy of Dr Parker’s assessment until December 2015, also in the course of the discovery process for these proceedings.65 56 Ibid at paragraphs [49]-[51]. 57 Ibid at paragraph [59]. 58 Statement of Evidence of Ms Byrne at paragraph [75]. 59 Ibid at paragraph [76]. 60 Ibid at paragraph [78]. 61 Ibid at paragraph [79]. 62 Ibid at paragraph [80]. 63 Ibid at paragraphs [81] and [82]. 64 Ibid at paragraph [83]. 65 Ibid at paragraph [84]. -- 13 of 43 -- 14 [72] Ms Byrne said she understood Mr Madigan to be two levels senior to Mr van Rooyen. She said Mr van Rooyen would answer to David Bezuidenhout who was the onsite contract manager at Middlemount and Mr Bezuidenhout would answer to Mr Madigan whom she understood to be the business manager for Spotless contracts with BMA in the Central Queensland region. She said she had previously spoken to Mr Madigan on only a few occasions about safety matters concerning Spotless.66 [73] Ms Byrne recalled that after commencing the phone conversation on 19 June 2015 asking how she was, Mr Madigan said Mr van Rooyen had told him she had an interest in project management work and asked about a course she had done. He said Rachel Geary (whom she knew to be the contract manager for Spotless of its BMA contracts for BMA mines in the Moranbah and Dysart regions) needed assistance getting all the safety systems in place for the BMA contracts. She responded that having previously worked with BMA, she was familiar with their contract management system and their safety management system.67 [74] Ms Byrne said she then asked if she could go back to Middlemount to which Mr Madigan replied that the person in her role was ‘doing a big audit of everything and he didn’t want him to leave and for me to come in because it would slow the process down.’68 [75] Ms Byrne said she told Mr Madigan she didn’t understand to which he said Anglo requested this of Spotless and it needed to be done with the ‘consistency of that person doing it.’69 [76] Ms Byrne said that after discussing Middlemount, Mr Madigan had referred to the work with Ms Geary as being ‘for three months, a three month contract’ and said ‘let’s get you over there, let’s get you into it.’70 [77] Ms Byrne said she had asked Mr Madigan what would happen after that and he had replied ‘let’s get this started first.’71 She said he had also said he might first get her to go to Mt Isa for a week as Spotless might have a contract there. He said he might get her to look at the safety aspects of the tender but he would have to let her know as nothing was yet confirmed.72 She told him she had looked at safety aspects during a tender process she had previously been involved in.73 She said he said it may not yet happen but if it did, he would get her to do that first.74 66 Ibid at paragraphs [89]-[91]. 67 Statement of Evidence of Ms Byrne at paragraph 96-98. 68 Ibid at paragraph 99. 69 Ibid at paragraph 100. 70 Ibid at paragraph 101. 71 Ibid at paragraph 102. 72 Ibid at paragraphs 106 and 107. 73 Ibid at paragraph 108. 74 Ibid at paragraph 109. -- 14 of 43 -- 15 [78] Ms Byrne said Mr Madigan told her he would get her to meet with Ms Geary on site and ‘get the ball rolling.’75 He said there was a vehicle on site but she would have to drive her own vehicle between home and the work site.76 Ms Byrne said she told Mr Madigan that she had had a vehicle on a full- time basis at Middlemount.77 Her evidence to the tribunal was that entitlement to a vehicle on a full-time basis had been given to her for ‘quite some time’ by Mr Bezuidenhout.78 In cross-examination she agreed an entitlement was not in her contract. [79] Ms Byrne said Mr Madigan reiterated she would only have the use of a vehicle once on site.79 [80] Ms Byrne said she told Mr Madigan she was concerned as she had still not been paid80 and he said he would look into it and get back to her.81 She told him she had ‘asked and asked and sent emails’ and because she hadn’t been paid and had medical expenses she had had to get another job.82 [81] Ms Byrne described her disbelief at being offered a job, particularly project management when Spotless had not even paid her as they said.83 She said she was concerned that she was inexperienced with project management and that during the three month period she would be ‘performance managed’ through a HR process for failing to meet the role and ‘effectively get rid of me for once and for all.’84 [82] Ms Byrne said she had also been concerned that if she moved over to the BMA contract she would be changing from her current contract as a permanent employee to only a three month contract.85 In cross- examination, she appeared to concede that, although she had read Mr Madigan’s reference in his email to ‘if successful’ as referring to her success in the position rather than Spotless’ success in winning new work, that was an incorrect interpretation. [83] Ms Byrne said Mr Madigan’s email of 25 June 2015 ‘did more or less mention most of the things’ they discussed but did not refer to her pay and also mentioned the withdrawal of her complaint with the Anti-Discrimination Commission which was not raised in their conversation.86 75 Ibid at paragraph 110. 76 Ibid at paragraph 111. 77 Ibid at paragraph 112. 78 Ms Byrne’s Evidence in Reply at paragraph 2. 79 Statement of Evidence of Ms Byrne at paragraph [112]. 80 Ibid at paragraph [113]. 81 Ibid at paragraph [114]. 82 Ibid at paragraphs [116] and [117]. 83 Ibid at paragraph [103]. 84 Ibid at paragraph [104]. 85 Ibid at paragraph [105]. 86 Ibid at paragraphs [120]-[122]. -- 15 of 43 -- 16 [84] Ms Byrne said prior to her employment with Spotless she had worked as a qualified hairdresser for 25 years and that she obtained work as a hairdresser from about 26 May 2015.87 [85] Ms Byrnes said further, at the time she emailed Mr Madigan on 28 June 2015 she ‘was also aware that at this particular time the conciliation conference organised by the Anti-Discrimination Commission of Queensland had been set for 14 July 2014.’88 [86] During cross-examination Ms Byrne said she had concerns about what had occurred: she hadn’t been paid; she hadn’t been contacted about whether she had passed the medical (although in her written statement she said she didn’t ask Dr Parker whether she passed as she knew she had-paragraph 75 above); and she was in a financial position where she needed a wage each week. She said she took on work as a hairdresser and was not going ‘to let that go on the possibility that this was all going to happen for a short term contract’. She agreed that she had not sought clarification with Mr Madigan but instead that she had rung ‘Carol from the Anti-Discrimination Board’. She said she had asked Carol whether or not she should accept the offer and talked through her concerns. Ms Byrne said in cross-examination that the ‘further information’ she was waiting on which she referred to in her email of 1 July 2015, was from Carol. She said she was concerned that she had ‘taken this process so far.’ She was being offered ‘the dream job’ and didn’t know what to do. She was ‘looking for someone that could give me direction.’ [87] Ms Byrne disagreed with Counsel for Spotless that she had been ‘trying to hold off Spotless’ at this point. She said: I wasn’t trying to hold him off. That’s not true. I was looking for information and I hadn’t received it…hadn’t got the advice as Carol was being very neutral and I needed to make some decisions…I thought we could sort it out at the conciliation conference. [88] Ms Byrne described how she loved her job with Spotless; the diversity, the challenges and the environment. She said she particularly liked involving the various teams at Middlemount in safety and she constantly got good feedback from the client.89 [89] Ms Byrne said she was employed as a hairdresser from May 2015 until mid- January 2016. She commenced a hairdressing business with a friend in early March 2016 which has yet to make a profit so she has only drawn wages equivalent to what she received as an employed hairdresser.90 During cross-examination she said the planning for the business had started December/January beforehand. 87 Ibid at paragraphs [124] and [125]. 88 Ibid at paragraph [126]. 89 Statement of Evidence of Ms Byrne at paragraphs [129]-[138]. 90 Ibid at paragraphs [139]-[142]. -- 16 of 43 -- 17 Ms Byrne said she has suffered past and future economic loss as she earned less as a hairdresser than she was able to as Safety and Training Manager at Spotless.91 She also said she has suffered embarrassment and humiliation.92 Evidence of Mr van Rooyen [90] Mr van Rooyen commenced employment with Spotless in 2010 and was Area Manager for the Anglo contract at Middlemount from August 2014 until January 2016 when he became Operations Manager for Bowen Basin.93 He said Ms Byrne reported to him in her role at Middlemount.94 He said she did not have an entitlement to a vehicle on a full-time basis but was only allowed the use of a vehicle to travel between her home in Mackay and work in Middlemount after she made a case of financial hardship.95 [91] Mr van Rooyen said that following Ms Byrne being airlifted from work on 5 February 2015, on 7 February 2015, he phoned her husband to ask after her and said he was told she was home and doing well. He did not ask and was not told specifics of her medical condition.96 [92] Mr van Rooyen emailed a number of staff members that information and the Human Resources Manager asked him to ensure that Ms Byrne provide medical certificates so payroll could process sick leave.97 [93] Mr van Rooyen said that Ms Byrne attended training at Middlemount on 24 February 2015 but left within the first hour ‘apparently upset by the video footage that was shown by the trainer.’ He said she returned later that day and told him she wanted to take leave. He said she appeared anxious, that he tried to persuade her to stay but she was adamant she wanted to leave and she completed a leave form.98 [94] Mr van Rooyen said Ms Byrne did not contact him after she applied for leave from 31 March 2015, hence his email to her on 20 April 2015, the day before she was due back.99 He said he was surprised at seeing her at work on 20 April 2015 as she had not provided any indication she would be returning to work and ‘had not provided any prognosis or information about her condition and fitness for work.’100 [95] Mr van Rooyen described Ms Byrne as having ‘rudely walked into the daily MOS meeting’ and said she ‘just sat on a chair while the meeting continued’ 91 Ibid at paragraphs [143]-[159]. 92 Ms Byrne’s Contentions at paragraph [24(a)]. 93 Statement of Mr van Rooyen dated 26 May 2016. 94 Ibid at paragraph [14]. 95 Statement of Mr van Rooyen at paragraph [15]. 96 Ibid at paragraph [28]. 97 Ibid Annexure 4. 98 Ibid at paragraphs [33] and [34]. 99 Ibid at paragraphs [42] and [43]. 100 Ibid at paragraph [45]. -- 17 of 43 -- 18 and that at the end of the meeting he called her back into the Safety and Training Office where the meeting had been held.101 [96] Mr van Rooyen said he told Ms Byrne he was not aware she was coming back to work. He said he asked if she had a medical clearance certificate and that she said she did not. He said he told her that ‘she knew we had to stand her down because she did not have a medical clearance to return to work’ after an extended period of sick leave and that he told her she was being stood down without pay.102 [97] Mr van Rooyen denied telling Ms Byrne it was not his choice or that the directive came from above. He denied she said words to the effect that he ‘knew he couldn’t do this to me.’103 [98] Mr van Rooyen said he told Ms Byrne she was aware of the procedure given her position as Safety and Training Manager and that she confirmed that was correct and provided him with examples of people she had stood down in similar circumstances but that she proposed she be stood down with pay as that was the norm. He said he had told her he would consult with head office and get back to her.104 [99] Mr van Rooyen denied Ms Byrne said anything about it being ‘discrimination because of her cancer’ or that adjustments needed to be made in the workplace.105 He said Ms Byrne had said she might only be cleared in June and he had told her if her doctor could not clear her she would need to attend a Functional Capacity Assessment with a Spotless appointed doctor.106 [100] Mr van Rooyen said that after Ms Byrne left the site he locked her office to insure that when she returned to work it had not been occupied or interfered with. He had the lock changed and the key stored securely.107 [101] Mr van Rooyen said he consulted with Head Office because he did not know the usual procedure whilst an employee was stood down pending a Functional Capacity Assessment. Pay roll processing was not completed at Middlemount. On 29 April 2015 he was told Ms Byrne could be stood down with pay. He emailed the payroll officer, Rosemary Williams stating ‘I have just confirmed with Craig Madigan that her situation will be treated as stood down with pay, until further notice.’108 He phoned Ms Byrne which he said was the first opportunity he had to advise she would be paid.109 101 Ibid at paragraphs [47] and [48]. 102 Ibid at paragraphs [51]-[54]. 103 Statement of Mr van Rooyen at paragraphs [56] and [57]. 104 Ibid at paragraphs [59] and [65]. 105 Ibid at paragraph [60]. 106 Ibid at paragraph [62]. 107 Ibid paragraph [68]. 108 Ibid Annexure 8. 109 Ibid at paragraphs [75]-[78]. -- 18 of 43 -- 19 [102] Mr van Rooyen said he was not otherwise involved in the Functional Capacity Assessment or the events following. Mr van Rooyen said he did not treat Ms Byrne any differently to the way other employees who had returned to work from an extended absence due to an illness or injury without medical clearance were treated.110 [103] Mr van Rooyen said he had stood down Ms Byrne because she had not provided any evidence that she was fit for work or a medical clearance certificate after being absent for an extensive period: 111 There were health and safety concerns about whether she was fit for work in the remote environment a long distance from medical assistance. It was very important that risks to her health and safety and the safety of other employees were avoided. Spotless takes its duty of care and its related occupational health and safety obligations very seriously particularly when it is engaged on remote mining sites like Middlemount and by clients like Anglo. We needed to be certain that she was fit and capable to resume her role safely. These are the reasons why she was stood down and asked to take a Functional Capacity Assessment. [104] Mr van Rooyen was cross-examined at length as to the circumstances surrounding Ms Byrne’s return. [105] He clarified that on 20 April 2015 he stood down Ms Byrne because she could not provide a ‘fit for work’ certificate which he considered the same as a ‘medical clearance’. He said the need for a functional capacity assessment was on advice that ‘followed through afterwards’. He said what had been discussed with Ms Byrne on 20 April 2015 was the need for a ‘fit for work’ and that without that having been provided, the alternative was a functional capacity assessment. He got advice after standing her down that a functional capacity assessment would be required and that is evident in his email to her the same day. [106] Mr van Rooyen agreed that in telephone conversations with Ms Byrne preceding his email to her dated 26 March 2015, Ms Byrne had indicated her wish to return to work. He had obtained advice from Spotless HR personnel John Douglas and Rowena Terlingen regarding her situation. That was separate to subsequent advice he obtained after Ms Byrne presented to work on 20 April 2015 without a medical clearance that she would be required to undergo a functional capacity assessment. [107] In cross-examination it was pointed out to Mr van Rooyen that his email of 26 March did 2015 not request a clearance certificate from Ms Byrne. He said ‘not directly’. It was put to him that the email listed either of two things: a prognosis provided by a medical practitioner OR an estimate of when she may be able to return to work. He said ‘that’s my understanding of what is a prognosis. That is where you go from there.’ 110 Ibid at paragraphs [89] and [90]. 111 Ibid at paragraph [55]. -- 19 of 43 -- 20 [108] Mr van Rooyen did not concede that the medical certificate provided by Ms Byrne on 31 March 2015 meant she was available for work from 21 April. He said it meant only she was unfit for work for the stated period. He rejected the suggestion he could have rung the doctor to obtain further information as invited in the letter’s last paragraph on the basis he had not Ms Byrne’s consent. He agreed he had not contacted Ms Byrne to say the certificate she provided was inadequate. He said that the process at Spotless was clear. If you have been absent for a period of time and you return to work, a fit for work certificate is required. He said it is a duty of care. He said the certificate provided by Ms Byrne only dealt with up until 20 April 2015. He emailed Ms Byrne to ask after that time, was she returning to work. Mr van Rooyen said she had come back to work unannounced the next day112and when he asked whether she had a fit for work certificate, the answer was ‘no’. It was put to Mr van Rooyen again that after Ms Byrne provided the certificate from Dr Walker he had not asked her for a further certificate. He said: It was from my position not needed as per her role. It was standard practice for everybody to do. [109] Mr van Rooyen’s evidence in cross-examination was that he did not recall whether he discussed with anyone in Spotless having Ms Byrne submit to a functional capacity assessment prior to 20 April 2015. His evidence was that it was not his decision that she submit to such assessment, but what he was told by John Douglas and Melissa Russell. [110] Mr van Rooyen said he had stood down Ms Byrne without pay ‘based on the process’. She queried that as incorrect so he asked higher up the line and was told she would be stood down with pay. Mr van Rooyen agreed that normally when the decision is made to stand an employee down and undertake a functional capacity assessment the employee is notified in writing and given an appointment time. He said that had not happened in the case of Ms Byrne as it wasn’t known when she would be returning to work. He repeated he had not stood down Ms Byrne for a functional capacity assessment, but because she had not provided a fit for work certificate. [111] Mr van Rooyen’s evidence in cross-examination was that he did not recall when he received a copy of Dr Parker’s report or how long before he read it. He acknowledged that according to the report Ms Byrne was fit to return to her position. He disagreed with counsel that he may have had information to make him doubt the report. [112] Mr van Rooyen vehemently denied the suggestion that he stood down Ms Byrne because she had lung cancer. When it was suggested to him that Ms Byrne had been treated worse than an employee who tested positive for amphetamine because she was stood down by him without pay, he 112 At this point Mr van Rooyen referred to Ms Byrne returning on “the next day the 21st” when in fact she returned the same day he sent the email, the 20th. -- 20 of 43 -- 21 reiterated that he had sought advice about that decision and had been corrected. Evidence of Mr Madigan [113] Mr Madigan commenced employment with Spotless in December 2013. In July he took up the position based in Brisbane of Eastern Operations Manager, responsible for the operations of Spotless’ business across Queensland, New South Wales and South Australia. Anglo American and BMA are among nine contract clients in his portfolio of responsibility. He is responsible for the safe and profitable delivery of contracted services to mining and gas clients, including Anglo and BMA. He described his role as a point of escalation for the Contract Managers and a conduit for the remote teams to Head Office support functions and Spotless’ client relationship holder in the regions.113 [114] Mr Madigan said there was one client funded Safety and Training Manager at each of the Anglo sites in Middlemount, Moranbah and Moura with no additional budget for additional Training and Safety Managers at the sites.114 [115] Mr Madigan said the Safety and Training manager was responsible for assisting each of the work groups on site with Hazard Analysis, Risk Assessments and completing safety interactions with the workforce and inspections. He said as with other employees, it was a term of Ms Byrne’s employment that she may be required to undertake other duties and responsibilities from time to time meaning her position, title, duties and responsibilities from time to time could be altered based on operational requirements. He said it was not uncommon for him to change an employee’s duties or location to meet the needs of the various clients in his portfolio based on operational and service requirements.115 [116] Mr Madigan said he was only aware of Ms Byrne’s medical history when she offered information on her condition and treatment during casual discussions when he was visiting Moranbah. He said he did not personally review the results of her pre-employment medical assessment as that was something he would only do if a candidate was flagged as ‘high risk’. He said there were no working restrictions on her.116 [117] Mr Madigan said Mr Bezuidenhout informed him on 5 February 2015 that Ms Byrne had been airlifted to Mackay due to a non-work related incident. He said that was standard procedure when an employee requires a medical practitioner on site.117 113 Statement of Mr Madigan dated 27 May 2016 at paragraphs [3]-[6], [10] and [11]. 114 Ibid at paragraph [17]. 115 Ibid at paragraphs [18] and [19]. 116 Ibid at paragraphs [24] and [25]. 117 Ibid at paragraph [33]. -- 21 of 43 -- 22 [118] Mr Madigan said a manager is required to request a medical certificate or clearance from an employee’s treating doctor prior to return to work and arrange a Functional Capacity Assessment. He said Mr van Rooyen followed that process but Ms Byrne did not provide the requested information.118 [119] Mr Madigan said Ms Byrne was likely to have been stood down earlier for a Functional Capacity Assessment but offered little information in the months prior to her return. He said she was should have been aware that she could not return to work without a medical clearance and of the requirement for employees to undertake Functional Capacity Assessments in her role of Safety and Training Manager.119 [120] Mr Madigan said the requirement to undertake a Functional Capacity Assessment during employment: 120 is an occupational health and safety measure imposed to ensure that employees are fit and able to perform the inherent requirements of a specific role without risk to their own health and safety or the health and safety of other people. [121] Mr Madigan described the conditions where he has managerial responsibility as being harsh and isolated with inherent risks to performing even simple tasks. He said Spotless has a duty of care to ensure employees are able to perform their tasks safely:121 The distance to seek medical assistance, rehabilitative help, distraction to operations and cost not only of treatment and action but replacement of roles is significant. [122] Mr Madigan described Spotless’ requirement of employees to undertake medical assessments or Functional Capacity Assessments after long absences on leave due to illness or injury as ‘standard operating procedure.’122 [123] Mr Madigan said Mr van Rooyen was uncertain about whether employees stood down for a Functional Capacity Assessment were to be paid as Ms Byrne as Safety and Training Manager was the person who usually undertook that task.123 [124] Mr Madigan said Ms Byrne was informed she would be paid while stood down. She was paid her salary monthly at mid-month which was half month in arrears and half month in advance so the next pay day after 20 April 2015 was 15 May 2015. He said that after an employee’s pay status is entered in the system as ‘without pay’ it can be administratively difficult to change 118 Ibid at paragraph [39]. 119 Statement of Mr Madigan at paragraphs [43]-[45]. 120 Ibid at paragraph [28]. 121 Ibid at paragraph [29]. 122 Ibid at paragraph [30]. 123 Ibid at paragraph [47]. -- 22 of 43 -- 23 requiring Divisional General Manager authorisation. Mr Madigan said he ‘escalated’ Ms Byrne’s pay issue but the process took longer than it should with a delay in receiving the required authorisation. He described the situation as ‘unfortunate’ and ‘regrettable’ but said the delay had nothing to do with her lung cancer.124 [125] Mr Madigan said it was not possible to have a face to face meeting with Ms Byrne following her Functional Capacity Assessment given he was in Brisbane and Ms Byrne was in Mackay. She did not request the result and he did not instruct that she be denied access.125 [126] Mr Madigan said when he phoned Ms Byrne on 19 June 2015 and mentioned the BMA contract she told him she was familiar with their systems and he said to her that was good and would make things easier. He said he talked her through the mechanics of the three month placement at Moranbah including where she would be living, whom she would be working with and what she would be doing. He said she was responding to his comments by saying ‘ok’ and nothing she said suggested to him she was unhappy with that. He said she sounded happy with it and prepared to do it.126 [127] Mr Madigan said he also asked Ms Byrne how she felt about travelling to Mt Isa for a week to complete a Site Safety Risk Profile on a new village. He said she told him she had some experience with this type of task and was happy to help.127 [128] Mr Madigan said that when Ms Byrne asked whether she could return to Middlemount he told her that Mark Sopa was working as the Safety and Training Manager there completing a High Potential Hazard audit which needed to be completed for the client.128 [129] Mr Madigan said that following his phone conversation with Ms Byrne he arranged her accommodation and for Ms Geary to meet her in Moranbah and sent Ms Byrne the email of 25 June.129 [130] Mr Madigan detailed his reasons for offering Ms Byrne the three month placement:130 I had identified a safety process and knowledge gap in the BMA contract sites…I suspected that the supervisory teams operating at the sites were not sufficiently trained and that the sites received little support from our Corporate safety office…I wanted to understand what our gaps with regards to safety were on the 8 mine sites before an incident took place…As Terri was returning to work …I had an additional safety resource given I had 124 Ibid at paragraphs [20] and [49]-[53]. 125 Statement of Mr Madigan at paragraphs [58] and [70]. 126 Ibid at paragraphs [59], [61], [63] and [64]. 127 Ibid at paragraph [66]. 128 Ibid at paragraph [62]. 129 Ibid at paragraphs [71] and [72]. 130 Ibid at paragraphs [73] and [74]. -- 23 of 43 -- 24 replaced her temporarily…I believed it was a good operational fit for me to re-deploy Terri to the BMA contract based at Moranbah to review these issues whilst I had Mark Sopa complete the High Potential Hazard analysis and report at Middlemount. There was to be no change in Terri’s remuneration as a result of the 3 month placement…Accommodation was to be provided at the Moranbah (Grosvenor) Village where Terri had previously resided during her first role with Spotless in the Anglo American contract. Travel between the 8 mine sites was less than 1 hour from the accommodation village and the tasks were precisely the duties that she was hired and qualified to complete. I did suggest she could also support Rachel Geary with operations improvements but this was secondary to the principle [sic] assignment which was to complete a full site safety review of the operations across the 8 mine sites. The Moranbah site was also around 1 hour closer to Mackay than the Middlemount site. [131] Mr Madigan said in his role he is: 131 Required to re-deploy managers on a weekly basis to address the needs of business and client. It is a very normal occurrence in a $200M business with more than 750 employees working across more than 30 remote sites. [132] Mr Madigan said if Mr Sopa was not at Middlemount Ms Byrne could have returned to Middlemount straightaway.132 He said had Ms Byrne returned to work, she most likely would have returned to Middlemount following the completion of the report by Mr Sopa.133 [133] Mr Madigan said:134 I hired Mark Sopa commencing 1 April 2015 to cover for Terri’s absence following Terri’s very late notice of extension of her continued absence from work on 31 March 2015. This was a period following three fatalities on Anglo American sites (no Spotless employees or contractors) where our client was very sensitive to the safe operation of our (and all others) contract. I could not continue to have the position vacant and the client needed a Safety and Training Manager on site at Middlemount. [134] Mr Madigan said that a High Potential Hazard analysis and report had been requested by his client following the fatalities and was still ongoing as at 19 June 2015. He said the client needed Mr Sopa to remain at Middlemount to complete the analysis and report.135 He said it was not feasible to have both Ms Byrne and Mr Sopa with annual salaries of around $100,000, at Middlemount. He said the contracting services industry works on very thin 131 Statement of Mr Madigan at paragraph [75]. 132 Ibid at paragraph [76]. 133 Ibid at paragraph [95]. 134 Ibid at paragraph [77]. 135 Ibid at paragraph [79]. -- 24 of 43 -- 25 margins and Spotless would have made a direct loss for the value of any ‘doubling up’ of roles.136 [135] Mr Madigan said he became aware of Ms Byrne’s discrimination complaint on 5 June 2015 and mentioned the complaint in his email of 25 June 2015 because he hoped his actions ‘in endeavouring to get her back to work would demonstrate to her that she was valued in the organisation and Spotless was not discriminating against her.’137 He said he went ahead with arrangements for Moranbah because he thought from his conversation with her on 19 June 2015, she was happy to commence the placement.138 He said he was surprised to receive her email of 28 June 2015139 and was keen to find out if she would be coming back to work and whether there were any barriers that needed to be dealt with prior to her return.140 He did not hear anything from Ms Byrne after her email of 8 July 2015.141 [136] Mr Madigan said Ms Byrne was not dismissed by Spotless but chose not to return. He said from 21 June 2015 until 31 December 2015 she was treated as being on leave without pay by payroll.142 [137] Mr Madigan gave additional oral evidence about the delay between Dr Parker completing the functional capacity assessment and his contacting Ms Byrne by phone on 19 June 2015. He accepted it was a ‘very long period’ which was ‘really just my fault.’ He said he had ‘an extraordinary amount on at the time’ covering three roles and was under ‘time pressures’. He explained that the contract manager for his largest contract had left on 28 February 2015 and for a time he was managing that contract as well as his own portfolio. He had employed a replacement about that time and was transitioning him as well as another operations manager and at the same time he’d been asked to undertake significant business development work which involved travel between Perth, Darwin, south Australia and internally within Queensland. [138] Mr Madigan also detailed the reasons for the safety audit which Mark Sopa had been employed to undertake at Middlemount. [139] Mr Madigan advised that since 1 July 2016, the Safety and Training Manager positions at Middlemount and Moura had been made redundant with one person now overseeing all three locations. [140] Mr Madigan said he had ‘absolutely not’ suggested to Ms Byrne that at the end of the three month project she would not be employed by Spotless or 136 Ibid at paragraph [80]. 137 Ibid at paragraph [81]. 138 Statement of Mr Madigan at paragraph [82]. 139 Ibid at paragraph [83]. 140 Ibid at paragraph [86]. 141 Ibid at paragraph [92]. 142 Ibid at paragraphs [93] and [94] and Annexure 2. -- 25 of 43 -- 26 that her continued employment would be based on a certain level of performance. [141] During cross-examination Mr Madigan’s position was that the document from Dr Walker was only a certificate excusing Ms Byrne from work up until 20 April 2015. He said it was not appropriate to phone Dr Walker as invited at the end of the letter as he was not questioning whether Ms Byrne should be excused from work until 20 April 2015. He pointed out that at the end of her previous period of leave which ended 31 March 2015, she had on the very last day provided the certificate stating she would not be available until 20 April 2015 so on 20 April 2015, it was not unreasonable to assume she may not be returning 21 April 2015. [142] Mr Madigan’s evidence in cross-examination was that Mr van Rooyen had phoned to say that he had stood down Ms Byrne without pay and she had said that should not happen and he told him she was to be stood down with pay. He said it was not a regular occurrence to stand an employee down without pay and Mr van Rooyen made a ‘bad management decision’ that day. [143] Mr Madigan’s evidence in cross-examination was that because Ms Byrne had been away for an extended period it was clear she would have to undertake a medical assessment and she could have been notified earlier but he thought Mr van Rooyen was not expecting her back having heard nothing further until 20 April 2015. Mr van Rooyen had not told him Ms Byrne wanted to come back to work. [144] In cross-examination Mr Madigan said Ms Byrne’s pay had been complicated by her having been paid for a period she was actually on leave without pay and payroll was trying to work out what that amount was and obtain leave forms from site to ascertain what the period was. Meanwhile he had to get approval back from the Divisional General Manager, Paul Waterson, based in Melbourne. Such approval only required an email but Mr Waterson wanted to be satisfied the overpayment had been balanced out. He agreed ultimately that Ms Byrne in fact had not got money she was not entitled to. He also agreed that once the conciliation conference took place on 14 July 2015 it only took until 23 July 2015 to make the complicated adjustments after Ms Byrne had been waiting months. He said the wait was unacceptable and he had apologised. [145] In cross-examination Mr Madigan accepted that Spotless’ policy essentially provides that following a functional capacity assessment a face to face meeting should be organised to discuss the report with the employee as soon as possible after a report is available and that the delay before he contacted Ms Byrne was unacceptable. [146] Mr Madigan was cross-examined about the circumstances of Mr Sopa’s employment. He explained that when on the last day of her leave period, 31 March 2015, Ms Byrne had sent in Dr Walker’s letter extending the period of leave to 20 April 2015, he was approached to fill her role because there was pressure to conduct the safety audit following three fatalities. -- 26 of 43 -- 27 Spotless had just been recruiting for a safety position at Moranbah and the suggestion of the team was to put the runner up for that position in Ms Byrne’s role. He said he signed Mr Sopa to a three month contract because he didn’t know how long Ms Byrne would be away and he wanted to give Mr Sopa something which would ‘concentrate him for a period.’ He agreed he hoped within three months, Ms Byrne would be back. [147] Mr Madigan agreed that Mr Sopa had finished on 7 July 2015, only days after Ms Byrne’s alternative role was to begin. He said at the time the audit was not complete and he wanted to extend Mr Sopa’s contract by a couple of weeks. He said days before 7 July 2015 he asked Mr Sopa to stay but Mr Sopa had fallen ill and advised he had to finish on 7 July 2015 as he required treatment. He was asked why at that point he did not offer Ms Byrne her Middlemount position back. He said he had a bigger need for her at BMA. He said he was unable to put anyone in the position he offered Ms Byrne and ultimately that contract was lost. [148] Mr Madigan said he had been absolutely genuine about getting Ms Byrne back to work. He described himself as ‘floored that she could think she could be discriminated against for anything, let alone lung cancer.’ He denied that he would not return Ms Byrne to Middlemount because of a concern she would be unreliable due to the cancer or a distraction to operations or due to a concern about replacement costs. Submissions of Applicant [149] It was contended on Ms Byrne’s behalf that she was directly discriminated against in that she, as a person who had been on leave from work for approximately two months due to lung cancer, was treated less favourably than another hypothetical employee without lung cancer who had been on leave for that period of time. [150] It was contended that the less favourable treatment was: 1. Advising Ms Byrne that a medical certificate was required to return to work but then, upon Ms Byrne’s return to work, requiring a functional capacity assessment in breach of section 15(1) subsections (a) and (f). 2. Standing down Ms Byrne without pay from between 20 April 2015 and 29 April 2015 in breach of section 15(1)(f). 3. Failing to pay Ms Byrne between 20 April 2015 and 7 July 2015 in breach of section 15(1)(f). 4. Failing to provide work to Ms Byrne in accordance with her employment contract, specifically, failing to allow Ms Byrne to return to her pre-leave position as Safety and Training Manager at Middlemount in breach of section 15(1) subsections (c) and (f). -- 27 of 43 -- 28 [151] It was further contended that there is authority, which applies in Ms Byrne’s case, that:143 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 [1998] 2 All ER 953 at 958. There may be cases in which the motivation may be 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] 3 WLR 425 at 433. [152] That case involved racial discrimination, but it was contended for Ms Byrne, that the alleged examples of unfavourable treatment of Ms Byrne, as well as the delay in considering her functional capacity assessment, were also primary facts from which it would be proper to draw the inference that Spotless discriminated against her because of her lung cancer. The Initial Stand Down [153] Whilst Ms Byrne’s written contentions alleged the requirement for Ms Byrne to undergo a functional capacity assessment was discriminatory, in oral submissions, Counsel on her behalf said it was not that she was asked to undergo the assessment but the manner in which she was asked to do so. Counsel for Spotless objected to that submission as ‘massaging’ the contentions. [154] It is submitted for Ms Byrne that the Safety@Spotless document144 sets out ‘step-by-step’ instructions to provide a consistent process or standard procedure. The hypothetical comparator would have been treated in accordance with the policy so a departure from the policy in relation to the treatment of the person complaining of discrimination is a primary fact from which a strong inference of discrimination can be drawn. The policy states:145 Employees should be reasonably notified in advance and in writing of the requirement for them to undertake an employment functional capacity assessment. [155] Counsel for Ms Byrne submitted that the medical certificate from Dr Walker was provided by her on 31 March 2015 and Mr van Rooyen had nearly three weeks to inform her it was inadequate but did not stand her down for a Functional Capacity Assessment until she arrived to start work on 20 April 2015. It was submitted that a hypothetical comparator, upon asking what was required for a return to work would have been informed at the time of the requirement to provide a functional capacity assessment which would constitute ‘reasonable notice’ or, at the least, would been told within days 143 Sharma v Legal Aid Office (Qld) [2002] FCAFC 196 at [40]. 144 Statement of Ms Byrne Document No.3. 145 Safety@Spotless Document at page 3. -- 28 of 43 -- 29 of providing the medical certificate deemed inadequate, that it was inadequate and that a functional capacity assessment was required. While that would still, arguably, be unreasonable, it would still be ‘better than the notice afforded Ms Byrne.’ [156] Counsel for Ms Byrne described the requirement for a medical certificate as a ‘road-block’ to her return, which she navigated and that ‘at the last possible moment’ the requirement for a functional capacity assessment was ‘thrown up’ as a further road-block. He submitted that the inference was that Spotless ‘sought to delay as long as possible Ms Byrne’s return to work at Middlemount-possibly because they had appointed Mr Sopa for 3 months and did not know what to do with Ms Byrne.’ Failing to Advise of Stand-down on Full-pay [157] Counsel for Ms Byrne submitted that the following facts were established from Mr van Rooyen’s evidence: 1. That policy provides managers are to consult with their general manager when determining the particular employment functional capacity assessment requirements for a specific role and that Mr van Rooyen consulted with General Manager of Human Resources, John Douglas, yet Mr Douglas was not called. 2. That there were no circumstances applicable to Ms Byrne which placed her in the category of employees who would be stood down without pay. 3. Mr van Rooyen could not volunteer a single example in which an employee was stood down without pay. 4. Mr van Rooyen agreed that even those employees who test positive for amphetamine use are stood down with pay pending an investigation. [158] Counsel for Ms Byrne submitted the conclusion to be drawn from these facts is that Ms Byrne was stood down without pay because of her ongoing cancer. Delay in Responding to the Functional Capacity Assessment [159] Counsel for Ms Byrne noted that the functional capacity assessment completed by Dr Parker was dated 14 May 2015 and contained nothing which precluded her return to Middlemount but Mr Madigan did not contact Ms Byrne to discuss her return to work until 19 June 2015 and the alternate role offered was not to commence until 29 June 2015. He submitted that was an unreasonable delay in returning Ms Byrne to work. Further, an argument that delay does not matter because she was stood down with pay -- 29 of 43 -- 30 (eventually) ignores the proposition that an employee has a right to perform work.146 [160] Counsel for Ms Byrne submitted that the non-pecuniary aspects of work were very important to her, citing her comments to Dr Parker about why she kept working. He submitted that the unreasonable delay in responding to the functional capacity assessment posed a serious detriment to Ms Byrne because she was deprived of those important, non-pecuniary benefits of her role at Middlemount and that that delay was a fact from which discrimination could be inferred. Failing to Pay Ms Byrne [161] Counsel for Ms Byrne submitted that the failure to pay Ms Byrne between 20 April 2015 and 7 July 2015 was disgraceful and typical of the complete lack of urgency shown by management in managing her situation. He suggested it ‘beggared belief’ that the delay in reinstating her pay was just an administrative issue. He noted Mr Madigan’s evidence that authorisation of the Divisional General Manager via email was all that was required and that ‘the complex manual adjustments required to pay Ms Byrne for part of June were able to be processed in the 8 days between the conciliation conference and the date of final payment on July 2015’ when Spotless ‘arbitrarily decided to cut off Ms Byrne’s pay from 29 June 2015 onwards’. He noted Mr Madigan blamed the delay on the Divisional General Manager but that he was not called as a witness so that his motives for not providing authorisation could be examined. [162] Counsel for Ms Byrne submitted that the failure to pay Ms Byrne was discriminatory treatment, and additionally, a primary fact from which discrimination could be inferred. Failing to Return Ms Byrne to her Position at Middlemount [163] Counsel for Ms Byrne submitted the following facts supported a conclusion that Spotless did not want Ms Byrne to return to the position of Safety and Training Manager at Middlemount: a) Mr Sopa commenced a three month contract in that position on 1 April 2015 and worked until 7 July 2015. Despite knowing Mr Sopa’s contract concluded in early July 2015, Mr Madigan did not offer Ms Byrne the opportunity to return to Middlemount but offered an alternative position to commence 29 June 2015, only 8 days before the Middlemount job was vacant again. b) On 19 June 2015 when Ms Byrne asked to return to Middlemount she was told she could not, because of the audit Mr Sopa was undertaking. 146 Quinn v Overland [2010] FCA 799 at [101]. -- 30 of 43 -- 31 c) After Ms Byrne, in her email of 28 June 2015, did not accept the alternate position offered to her, Mr Madigan did not offer her the position at Middlemount despite knowing it would be vacant at least within a month and that the draft audit was complete. d) Ms Byrne was still not offered the position at Middlemount after 7 July 2015, despite the position remaining unfilled for over two months after Mr Sopa left in circumstances where the audit remained incomplete and in circumstances where Spotless did not have to pay her wages. [164] Counsel for Ms Byrne submitted that Mr Madigan asserted having Ms Byrne work on the three month project for BMA was more important than having her at Middlemount yet he conceded that once she did not take up the offer he did not have anyone else do it. If the three month project was to commence 29 June 2015, it would have been finished by 29 September 2015, yet Mr van Rooyen’s evidence was that the new Safety and training Manager at Middlemount started ‘a couple of months’ after Mr Sopa left, so about 7 September 2015. The Middlemount position was filled but the BMA position was not. The Three Month Contract [165] Counsel for Ms Byrne submits that Spotless’ contention that the proposal sent by the email of 25 June 2015 to Ms Byrne was lawful and reasonable and accorded with the terms of Ms Byrne’s contract of employment should be rejected because: a) The variation of the terms of work proposed were directly discriminatory. b) By the time the offer was made on 25 June 2015 the only reasonable course for Spotless was to return Ms Byrne to her previous position. c) As was agreed by Mr Madigan, Spotless could not geographically relocate an employee without that employee’s agreement. d) Spotless could not force Ms Byrne to take a three month contract in lieu of her permanent position. e) The offer was conditional or premised upon the withdrawal of Ms Byrne’s complaint. [166] Counsel for Ms Byrne submitted that by 25 June 2015 Ms Byrne had every reason to feel upset and devalued by her employer and be suspicious of the motives of Mr Madigan due to the lack of proper notice of the requirement to submit to a functional capacity assessment, being initially stood down without pay, the delay in being contacted once the report was available and the ongoing failure to pay her despite numerous requests. [167] Counsel submitted it was reasonable for Ms Byrne to seek alternative income as a hairdresser whilst she was stood down given her medical -- 31 of 43 -- 32 expenses, being on leave without pay during March and not being paid in May or June and her desire not to abandon that employment in circumstances where she was still not being paid was understandable. [168] Further, given her suspicion about her employer’s motives, she had reason to be concerned to preserve the job security that her current permanent contract gave her, rather than taking on expanded responsibilities relating to project management, an area in which she was inexperienced. He described Ms Byrne has having a legitimate concern that her job was at risk if she did not perform adequately. [169] Counsel for Ms Byrne submitted that Ms Byrne should not be expected to accept the offer when Mr Madigan provided no certainty as to her role at the end of the three month project. [170] Further with the conciliation conference arranged by the Anti-Discrimination Commission only two weeks away, and given the delay caused by Spotless, it was not unreasonable for Ms Byrne to seek advice from the Commission about her claim, particularly as Mr Madigan had referred to the withdrawal of her complaint in his email of 25 June 2015. Additional submissions [171] Counsel for Ms Byrne submitted that Mr Madigan’s statement about working conditions at Middlemount was ‘informative’: The distance to seek medical assistance, rehabilitative help, distraction to operations and cost not only of treatment and action but replacement of roles is significant. [172] He submitted that whilst discrimination can occur thoughtlessly or ignorantly and it is for the tribunal to determine whether discrimination is one of the substantial reasons for unfavourable treatment, that statement provides possible insight. [173] He also submitted that the tone of Mr van Rooyen’s response to a question indicated that whilst he conceded the functional capacity assessment’s conclusion that Ms Byrne could return to Middlemount, he personally doubted the conclusion himself. [174] Counsel for Ms Byrne described Mr van Rooyen as a ‘hopeless witness’ who contradicted himself and vacillated on the issue of whose decision it was to stand Ms Byrne down. He submitted that Ms Byrne’s evidence should be accepted where it conflicts with that of Mr van Rooyen and that generally, his evidence should not be accepted unless corroborated by contemporaneous documents. [175] Counsel for Ms Byrne described Mr Madigan as a ‘better witness than Mr van Rooyen’ but submitted that where his evidence conflicted with that of Ms Byrne and was not supported by a contemporaneous document, Ms Byrne’s evidence should be preferred. He submitted that was particularly so because of Mr Madigan’s evidence to the effect that he was ‘absolutely’ -- 32 of 43 -- 33 committed or genuine about getting Ms Byrne back to work when clearly he was not. [176] He submitted that the view had been formed by Mr Madigan or Mr van Rooyen, or both, that due to Ms Byrne still having lung cancer, her ongoing attendance at work into the future would be unreliable due to unexpected absences related to her cancer which would cause distraction to operations and significant cost including for the replacement of her role. [177] Counsel for Ms Byrne submitted that the hypothetical comparator would be a person who: had been absent for the same amount of time as Ms Byrne due to an illness; had passed their functional capacity test and was able to return to their previous position; but, unlike Ms Byrne, no longer had any health condition such as lung cancer. [178] He submitted that the hypothetical comparator would have been returned to their previous position, particularly in the circumstances that presented themselves in July 2015 when Mr Sopa had left, the role was vacant, the audit incomplete and the salary paid by the client. Remedy [179] Ms Byrne sought damages for past economic loss in the sum of $50,713 for lost wages, superannuation on that amount at 9% of $4,564 and interest at 3% of $995, a total of $56,272. A sum of $73,000 for lost wages and superannuation on that sum at 9% of $4,750, a total of $77,750 was sought for future economic loss. Counsel for Ms Byrne submitted that alternatively the tribunal could award a global sum.147 [180] Ms Byrne also sought $35,000 for non-economic loss for embarrassment and humiliation. Submissions of Spotless Stand Down in April [181] Counsel for Spotless submitted that Ms Byrne did not provide a medical certificate as contended in the Complainant’s Amended Contentions certifying she was able to commence work on and from that day.148 He submitted she returned to site without notice she would be returning that day and was stood down and advised of the need to undertake a functional capacity assessment because Spotless had not been provided with evidence that she was fit to return to work. [182] Counsel for Spotless submitted that the medical certificate provided on 31 March 2015 substantiated her continued absence from work between 1 and 20 April 2015 inclusive but, as acknowledged by Ms Byrne under cross- 147 Carey v Cairns Regional Council [2011] QCAT 26 at [92]. 148 At paragraph [10(a)]. -- 33 of 43 -- 34 examination, did not expressly indicate she was fit to perform her work on and from 20 April 2015 and was not a medical clearance certificate. [183] Spotless contended Ms Byrne understood the requirement for medical clearance given her role as Safety and Training Manager and her anticipation of the need for such a clearance in her emails of 12 February 2015 and 24 March 2015. Irrespective of whether Ms Byrne believed she had provided evidence of her fitness to resume work, Spotless needed to ensure she was fit to carry out her duties without risk to herself or others given its health and safety obligations to employees and duty of care. [184] Counsel for Spotless submitted the appropriate comparator for determining whether Ms Byrne was treated less favourably is another employee of Spotless engaged at a remote Anglo American mining site who doesn’t have the attribute but has been absent from work for an extended period due to illness or injury, be it work related or non-work related, and has returned to work on that remote site while on leave and in circumstances where they have not provided a medical clearance certificate stating they were fit to commence work on and from that day. [185] He submitted it was standard operating procedure for Spotless to advise an employee that they will be required to undertake a functional capacity assessment when they have been absent from work for an extended period due to illness or injury to ensure ongoing fitness for work and avoid occupational health and safety risks. That was the evidence of both Mr van Rooyen and Mr Madigan and is codified in the Undertaking Medical Assessments During Employment policy.149 [186] Counsel for Spotless submitted Ms Byrne did not dispute Spotless’ health and safety obligations and duty of care to employees and that she agreed it was standard procedure for employees who returned to work after an extended period due to illness or injury without a medical clearance certificate or evidence of fitness for duty to be stood down until such time as a medical clearance certificate or functional capacity assessment was obtained. Further, she acknowledged the medical certificate she provided on 31 March 2015 was not a medical clearance certificate and that she did not provide a prognosis of her condition.150 [187] Counsel for Spotless submitted Ms Byrne did not receive less favourable treatment utilising a comparator analysis, but were that the case, the conduct of Spotless was on the basis of occupational health and safety reasons. [188] Counsel for Spotless contends the conduct of Mr van Rooyen in standing Ms Byrne down, advising her she would need to undergo a medical examination and would not receive her full pay until advice was sought from head office and subsequently advising her on 29 April 2015 that she would 149 Document 2 at page 4. 150 Ms Byrne’s Statement of Evidence in Reply at paragraph [2]. -- 34 of 43 -- 35 receive full pay while stood down did not constitute a variation in the terms of work as alleged, particularly given an employee’s obligation to submit to medical assessments in accordance with the contract of employment. Nor did the conduct constitute a dismissal. [189] Further Mr van Rooyen told Ms Byrne she was stood down without pay until he could seek advice because he was uncertain of what applied in the situation, Ms Byrne being the person usually responsible as Safety and Training Manager. Delay in Pay [190] Similarly, the delay in paying Ms Byrne her salary was due to processing and approval issues and not on the basis of her impairment. Mr Madigan in oral evidence explained how calculating back payment was complicated by overpayments which occurred for the period 1 to 20 April 2015 when Ms Byrne was on leave without pay. [191] Counsel for Spotless argued that the distinction posed by Ms Byrne’s counsel between Ms Byrne being required to submit to a functional capacity assessment, which he agreed was not discriminatory, and the manner in which she had been required to submit to the assessment, which he said was discriminatory, was illusory. In either case, if the comparator analysis was utilized, Ms Byrne was not treated less favourably, and if she was, then the treatment was on the basis of lawful occupational health and safety reasons. Return to Middlemount Position [192] As regards the alleged failure to allow Ms Byrne to return to her position following successful completion of a functional capacity test, counsel for Spotless submitted Mr Madigan clearly explained his reasons for making the return to work proposal, including that Mr Sopa had been engaged in a High Potential Hazard analysis and report at Middlemount until he left his employment on 7 July 2015. He rejected the contention of Ms Byrne that Mr Madigan proposed the withdrawal of her complaint. [193] Counsel for Spotless submitted that after Ms Byrne was presented with a proposal to return to work, she did not engage with Spotless despite repeated requests from Mr Madigan that she identify any barriers for her return to work as proposed. He submitted that ultimately she decided not to proactively participate in resolving a return to work because of advice she received. [194] Counsel for Spotless submitted that the appropriate comparator for determining whether Ms Byrne’s treatment was less favourable is another employee of Spotless engaged at a remote mine site who has been absent from work for an extended period due to illness or injury, has passed a functional capacity assessment and a temporary employee has been engaged in the position and Spotless has operational and service needs at other client locations. -- 35 of 43 -- 36 [195] Counsel for Spotless submitted that the unchallenged evidence is that employees in roles like Ms Byrne were regularly re-deployed to meet operational requirements and Ms Byrne did not establish that the comparator would have been treated differently. Furthermore, given there were two or more reasons for Spotless’ actions, even if the impairment was one of the reasons for the alleged unfavourable treatment, the impairment was not a substantial reason. Ms Byrne was not dismissed and there is no evidence of a resignation to support a claim for constructive dismissal. Exemption (Sections 103 and 108) [196] Counsel for Spotless submitted Ms Byrne was stood down and required to undertake a functional capacity assessment to ensure she was fit to perform her role safely and without risk to herself or other employees. He submitted that Ms Byrne acknowledged under cross-examination that was standard operating procedure. [197] Counsel for Spotless submitted that if Spotless’ conduct in standing down Ms Byrne to undertake a functional capacity assessment constituted discrimination, any discrimination was reasonably necessary to protect the health and safety of Ms Byrne and other employees and was therefore not unlawful pursuant to sections 103 and 108 of the Act. Exemption (Sections 24 and 36) [198] Counsel for Spotless submitted that Spotless could not have both Ms Byrne and Mr Sopa working at Middlemount because there was only one Safety and Training Manager position at the site. Contracting and budgeting constraints could not sustain two positions being paid an annual salary of around $100,000 and Spotless would have made a direct loss for the value of Ms Byrne’s remuneration at Middlemount whilst Mr Sopa was employed there. On that basis, if Spotless discriminated against Ms Byrne on the basis of her impairment in proposing that she return to work as set out in Mr Madigan’s email dated 25 June 2015, counsel for Spotless submitted such discrimination was lawful on the basis of unjustifiable hardship to Spotless pursuant to sections 24 and 36 of the Act. Remedy [199] In the event the tribunal determined Spotless had discriminated unlawfully, counsel for Spotless submitted the stand down of Ms Byrne on 20 April 2015 did not result in any compensable economic loss. Ms Byrne acknowledged she received remuneration for the period 1 April to 28 June 2015. Ms Byrne’s refusal or failure to return to work was the cause of any economic loss arising after 21 June 2015 as she ultimately decided not to participate in resolving a return to work. He submitted she effectively abandoned her employment and established her own hairdressing business. [200] Counsel for Ms Byrne submitted alternatively, economic loss alleged was not solely caused by the contended conduct of Spotless and Ms Byrne’s -- 36 of 43 -- 37 conduct in refusing to consult with Spotless and return to work should be taken into account. Further, it is unlikely Ms Byrne would have continued in her employment for two years as claimed, her position at Middlemount having been made redundant. [201] Counsel for Ms Byrne submitted there was no evidence Ms Byrne suffered any psychological or recognised personal injury as a result of the contended conduct to establish any non-economic loss. He submitted the fact that Ms Byrne was employed from May 2015 as a hairdresser before setting up her own business was inconsistent with her having suffered any such injury. There was no allegation she suffered any psychiatric disturbance or post- traumatic stress disorder. While the evidence indicates Ms Byrne enjoyed her role at Middlemount, the evidence does not establish she suffered hurt, humiliation or distress as a result of the conduct. Discussion Witnesses [202] Counsel for Ms Byrne submitted I should prefer her evidence where it conflicts with that of Mr van Rooyen or Mr Madigan. He described Mr van Rooyen as a ‘hopeless’ witness whose evidence should not be accepted unless corroborated by contemporaneous documentation. Whilst he described Mr Madigan as better than Mr van Rooyen, he contended his evidence that he was absolutely genuine and committed about getting Ms Byrne back to work was false. [203] I take into account Ms Byrne’s unfamiliarity with the setting of a hearing and her undoubted stress, but found her initially to be a defensive witness. There were several occasions she avoided answering the question she had been asked where she appeared to try and anticipate counsel’s line of questioning. She took some time before agreeing that a medical certificate justifying time away from work differed from one that could be described as a ‘medical clearance’ or ‘fit for work’, which was surprising given her role as a Safety and Training Manager. At other times she appeared very honest, even where the honest answer did not support her position. For example, whilst she said at the time, she thought Mr Madigan was proposing a three month contract where her performance would be reviewed, she appeared to concede that view was not supported by what his contemporaneous email stated. [204] Ms Byrne appeared to doubt the motives of Spotless at every step. Although Mr van Rooyen does not recollect it, she says at their meeting on 20 April 2015 when he stood her down, she accused him of doing so ‘because of my cancer.’ Yet she has conceded that would be the protocol for any employee returning to work after illness or injury in the absence of a ‘fit for work’ certificate. [205] Ms Byrne recounted telling Dr Parker she had been made to have the medical because ‘they don’t like the fact I have cancer’. That was despite her experience as Safety and Training Manager and therefore an -- 37 of 43 -- 38 awareness of the duty of care upon Spotless as regards an employee returning to work without the required clearance. She said, Dr Parker, after reading the letter from Spotless requesting the assessment, said to her ‘Spotless thinks I can’t work dealing with the cancer.’ She did not see the letter151which did not reflect such view. If Dr Parker made that statement, he could not have done so on the basis of what was contained in Spotless’ letter. [206] When Mr Madigan offered her what she described as her ‘dream job’, she appeared to suspect she was being set up to fail and would be ‘performance managed’ out of the position. She sought the advice of the conciliator at the Anti-Discrimination about taking the job and seemed frustrated by the conciliators ‘neutrality’. [207] I did not find Mr van Rooyen to be a hopeless witness. He may have been confused on occasions by the manner he was asked questions but when he understood what was asked, he clarified what he was saying and clearly rejected the proposition of counsel for Ms Byrne. An example occurred where he was talking about two separate occasions where he had obtained advice from HR employees. The earlier occasion was referred to in his email to Ms Byrne dated 26 March 2015 where he had asked for advice from John Douglas and Rowena Terlingen. The later occasion was on 20 April 2015 after he stood down Ms Byrne and he consulted with John Douglas and Melissa Russell. His evidence was clear that it was the later advice of Mr Douglas and Ms Russell that Ms Byrne was required to undergo a functional capacity assessment whereas he did not recollect whether that requirement had been discussed prior to 20 April 2015. He agreed Ms Byrne could have been requested earlier to undergo that assessment but maintained his position that it was not known when Ms Byrne would be able to come back although he acknowledged that she wanted to. Counsel for Ms Byrne suggested Mr van Rooyen vacillated on the issue of whose decision it was to stand Ms Byrne down. In my view he did not. I also reject the submission that Mr van Rooyen’s tone or emphasis in agreeing ‘according to that report’ Ms Byrne was fit to resume duties gave the impression that he disagreed with the report. I found his tone to be simply that of a witness who had been answering a lot of questions of a repetitive nature. [208] I found Mr van Rooyen plausible and genuine. [209] Mr Madigan was an articulate witness. He gave clear and plausible explanations of what had occurred around his dealings with Ms Byrne. He readily conceded the failures of himself and other employees of Spotless in the way aspects of her situation had been handled. I accept his evidence as to his genuine wish to have Ms Byrne return to work. 151 Document No. 24 in Bundle of Documents of Ms Byrne. -- 38 of 43 -- 39 The Hypothetical Comparator [210] I accept the submission of Spotless that the hypothetical comparator in this case would be another employee of Spotless engaged at a remote mining site like Middlemount who doesn’t have the attribute of impairment of lung cancer but has been absent from work for an extended period due to illness or injury, be it work or non-work related, and has returned to work on that remote site while on leave and in circumstances where they have not provided a medical clearance certificate stating they were fit to work on and from that day. [211] It was accepted by Spotless that lung cancer is an impairment to which section 7 of the Act applies. Initial Stand Down [212] It was conceded for Ms Byrne that standing her down for a functional capacity test was not discriminatory but that the manner in which that was done was discriminatory as Spotless policy was that an employee be reasonably notified in advance and in writing of the requirement to undertake the assessment. Counsel for Spotless objected to any late change of Ms Byrne’s contentions. Counsel for Ms Byrne did not persist to seek such amendment and I did not formally rule on whether the amendment was allowed, however, as evidence as regards the changed position was heard, it could be argued that, by default the amendment was allowed. Counsel for Spotless submitted that the distinction is ‘illusory’. I have addressed the argument that it was the manner in which Ms Byrne was stood down and required to undertake a functional capacity assessment which was discriminatory and I found there was no evidence that on that basis Ms Byrne was discriminated against on the basis of her impairment. [213] I accept the evidence of Mr van Rooyen that he had not expected Ms Byrne at work that day. I note her leave application form152 for that period has the last day of leave stated as 20 April 2015. Additionally, I accept the evidence that Ms Byrne only sought an extension of her period of leave which expired on 31 March 2015 on 31 March when she sent Dr Walker’s letter which stated she was ‘unable to attend any work related duties until 20 April.’ I accept Mr van Rooyen’s evidence that whilst Ms Byrne had told him she wanted to come back to work, she had also told him she ‘couldn’t get a clearance from cancer till June or ever’. [214] I accept the evidence that early on 20 April 2015, the actual day Ms Byrne’s leave period expired, Mr van Rooyen emailed her to try and ascertain what she intended as he did not know. I accept that the letter from Dr Walker was regarded by Mr van Rooyen as of the type of medical certificate required to support time off work and was not in the nature of a ‘medical clearance to work’ or ‘fit for work certificate’. The letter did not give a ‘prognosis’. On the 152 Document No. 11 in Ms Byrne’s Bundle of Documents. -- 39 of 43 -- 40 face of it, the letter could be said to provide an ‘estimate of when Ms Byrne may have been available to commence work’ but I accept Mr van Rooyen’s evidence that given Ms Byrne’s position as Safety and Training Manager, he expected her to be familiar with Spotless’ requirements of an employee returning to work after illness or injury and would not have expected to spell out the need for a ‘fit for work certificate.’ [215] I accept the evidence of Mr van Rooyen that he was advised Ms Byrne would be required to undertake a functional capacity assessment only after she presented at the work site on 20 April 2015 without a ‘fit for work’ certificate. There is no evidence a decision was made prior to that date within Spotless that Ms Byrne would be required to undertake a functional capacity assessment, and in the absence of such evidence, she was informed at the earliest opportunity of the requirement. There was no suggestion she was not given adequate notice of the time and place of the appointment to facilitate her attendance. [216] Whether Ms Byrne believed she had provided what was required of her to return to work, and she conceded a ‘fit for work’ certificate would usually be required, is not relevant to whether unlawful discrimination occurred. [217] Ms Byrne has not produced evidence, nor can any reasonable inference be drawn from the tendered evidence, that the manner in which she was stood down and required to undertake a functional capacity assessment was less favourable than the comparator would have been treated. The available evidence does not support an inference that the treatment was on the basis of the impairment of lung cancer but rather the evidence supports the treatment being according to protocols required by workplace health and safety considerations. Failing to Advise Stand Down on Full Pay [218] Ms Byrne has not produced evidence that the appropriate comparator would have been treated differently by Mr van Rooyen nor that the basis for him standing her down without pay was her impairment. Rather his evidence was that he was unfamiliar with the policy in that situation. When Ms Byrne told him she should be stood down with pay he made enquiries of his superior and advised Ms Byrne that she was correct as soon as he was told. The mistake was described as a ‘bad management decision’ but it has not been established that there was discrimination on the basis of an impairment. Delay in Responding to Functional Capacity Assessment [219] I accept Mr Madigan’s evidence as to the reasons for his delay in meeting with Ms Byrne once her assessment was available. I cannot find anything discriminatory in his actions in speaking to Ms Byrne by telephone rather than arranging a face-to-face meeting, which may have delayed such meeting even further given the parties’ locations and was not specifically required in Spotless’ protocol. -- 40 of 43 -- 41 [220] Spotless was criticised for not providing a copy of the assessment report. The result was not controversial given Ms Byrne was assessed as fit to return to work and that Spotless sought her return. Given her ongoing suspicion about Spotless’ motives, providing a copy as soon as it was available may have been helpful. Ms Byrne said not having been told the result was one of her concerns although she also said she had not even asked Dr Parker whether she had passed as she knew she had. [221] I do not find on the evidence, nor can I draw any reasonable inference from the evidence, that the manner in which the result of Ms Byrne’s functional capacity assessment was handled was discriminatory or on the basis of an impairment. Delay in Paying Ms Byrne [222] I accept Mr Madigan’s evidence as to the reasons why Ms Byrne’s payment was delayed. He described the delay as unacceptable. The frustration of Mr van Rooyen in attempting to resolve the issue was apparent in his email of 21 May 2015. Counsel for Ms Byrne expressed cynicism about the lack of delay ultimately in finalising Ms Byrne’s pay once the conciliation process had occurred. He called the delay for Ms Byrne to receive her pay as disgraceful and that is a fair description but I find no evidence the delay was due to reasons other than those explained by Mr Madigan. I do not find any evidence, nor can I draw any reasonable inference from the evidence, that the delay was discriminatory or on the basis of Ms Byrne’s impairment. Failing to Return Ms Byrne to Middlemount Position [223] Mr Madigan detailed his reasons for not returning Ms Byrne to Middlemount as she requested and I accept his evidence. [224] Counsel for Ms Byrne questioned in particular, why once Mr Sopa had left the position, or Mr Madigan knew he was not remaining, he did not offer Ms Byrne her role back. I accept Mr Madigan’s account of his needing her more in another role at that point, the safety audit at Middlemount having been under taken by Mr Sopa and ultimately completed by Mr van Rooyen. It was only days before 7 July 2015 that Mr Madigan found out Mr Sopa would not be able to stay on longer as Mr Madigan proposed, due to illness. At that point Mr Madigan had not received an indication from Ms Byrne that she would return to work. She initially cited current work commitments and the need to give notice. By 1 July 2015 she had indicated she was ‘waiting on some further information.’ Although Ms Byrne had raised returning to Middlemount during the telephone call of 19 June 2015 with Mr Madigan he did not mention that in his email of 25 June 2015. It is reasonable to infer that he did not think it was of such importance to Ms Byrne and he was focussed on the needs of his portfolio. Mr Madigan persisted in trying to ascertain what Ms Byrne required to return to work but at no stage did she say she wanted to come back to Middlemount or not at all. It was a reasonable inference that he may well have considered that he was offering Ms Byrne a more attractive position given her interest in project -- 41 of 43 -- 42 management. He pointed out the work he envisaged for her after the three month project was close to Mackay where Ms Byrne lived. [225] Ms Byrne’s contract of employment was clear on Spotless’ policy on reassignment. As pointed out by counsel for Ms Byrne, the policy provided for ‘consultation and agreement’ with an employee but that was precisely what Mr Madigan was attempting. He did not rule out her return to Middlemount. His evidence was that most likely she would have ended up back there after the three month project, depending on the other work which may have been won. [226] Counsel for Ms Byrne submitted that Mr Madigan’s statement ‘about working conditions at Middlemount’ was informative and provided insight into his concerns about Ms Byrne’s impairment. Mr Madigan was actually describing conditions generally in the remote sites where Spotless employees work, not specifically Middlemount. The position he proposed Ms Byrne take up was in similarly remote sites and I do not find this comment as supporting a contention that Mr Madigan discriminated against Ms Byrne. I accept his evidence as to why he did not propose her return to Middlemount. [227] I find no evidence that Spotless in not offering Ms Byrne her position back at Middlemount discriminated against her on the basis of her impairment. Inference of Discrimination [228] I have not found evidence that Ms Byrne was discriminated against as regards any of the treatment of her by Spotless. Nor do I find the proper inference to draw from the overall facts of the situation is that she was discriminated against because of her lung cancer. [229] For these reasons I dismiss the application. [230] In the event that I am incorrect as to whether Ms Byrne’s was discriminated against on the basis of her impairment, I have considered the damages I would allow. [231] I agree with the submission on behalf of Spotless that the treatment of Ms Byrne did not cause her any economic loss after 28 June 2015 as she decided not to return to work. Prior to that date she was renumerated for her employment with Spotless. [232] I agree there has been no evidence that Ms Byrne suffered any injury or illness as a result of Spotless’ treatment of her. Therefore, non-economic loss is restricted to a sum for embarrassment and humiliation. While there has been a willingness to award substantial sums for non economic loss in matters where discrimination has occurred, I consider Ms Byrne’s loss to be at the lower end and would award $10,000153. 153 Richardson v Oracle Australia Pty Ltd [2014] FCAFC 82. -- 42 of 43 -- 43 Costs [233] Under section 100 of the Queensland Civil and Administrative Act 2009 (Qld), parties are expected to bear their own costs in QCAT proceedings. However the tribunal can order that a party pay all or part of the costs of another party if the tribunal considers it is in the interests of justice to make such an order.154 [234] The parties requested the opportunity to make written submissions on costs following publication of the decision and I indicated I would allow a time frame of two weeks to do so. Therefore I direct that should Spotless wish, that it file written submissions on costs in the tribunal and send a copy to Terri Byrne by 4:00pm 25 November 2016 and I direct that Terri Byrne file written submissions in response on costs and send a copy to Spotless by 4pm on 16 December 2016. 154 Section 102(1) of the Queensland Civil and Administrative Act 2009 (Qld). -- 43 of 43 --