Atchison v Department of Education, Training and Employment [2014] QCATA 303

CITATION: Atchison v Department of Education, Training and Employment [2014] QCATA 303 PARTIES: Janette Atchison (Applicant/Appellant) v Department of Education, Training and Employment (Respondent) APPLICATION NUMBER: APL192-13 MATTER TYPE: Appeals HEARING DATE: 17 March 2014 HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM Member Pendergast DELIVERED ON: 15 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – ANTI-DISCRIMINATION – where impairment due to illness – where applicant allocated schools under her responsibility – where position required her to travel to schools – where travel in peak hour exacerbated illness – where request to reallocate school responsibility – where expression of interest process while applicant on sick leave – where applicant missed deadline for expression of interest – where applicant not appointed – where respondent suggested particular location for return to work – whether suggestion a proposal within the Anti-Discrimination Act – whether term impose – whether grounds for appeal Anti-Discrimination Act 1991 (Qld) ss 4, 10, 11 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr K Watson of Counsel instructed by Susan -- 1 of 6 -- 2 Moriarty & Associates RESPONDENT: Dr M Spry of Counsel instructed by Crown law REASONS FOR DECISION [1] Ms Atchison is a guidance officer (GO) employed by the Department. Her position is permanent. She suffers from a number of medical conditions which may constitute an impairment under the Anti- Discrimination Act 1991 (Qld)1. [2] In 2010 Ms Atchison was acting as a senior guidance officer (SGO) when the Department was restructured. The effect of the restructure was that Ms Atchison had one less school to service but three of those schools were further from her home. Practically this meant she spent more time travelling by car each day. [3] Ms Atchison applied for changes to her allocation. Her first request was denied. Ms Atchison applied a second time. Before the Department considered that request, in July 2010, Ms Atchison went on sick leave. [4] Ms Atchison returned to work in August 2011. While she was on leave, the Department conducted an expression of interest (EOI) process for the SGO position. Ms Atchison was not appointed to the SGO position. [5] Ms Atchison claimed that the Department’s refusal to consider a change of school was discriminatory. She also claimed that the Department’s failure to appoint her as SGO was discriminatory. She applied to the tribunal for relief. The tribunal dismissed her claim. [6] Ms Atchison wants to appeal that decision on a question of law. She says the learned Member misunderstood the issues she was required to deal with, asked herself the wrong question or ignored relevant material. Specifically, Ms Atchison says the learned Member erred in: a) Identifying an aspect of the complaint as the unilateral assignment of schools. b) Characterising the complaint about the allocation of schools as a request for adjustment to work arrangements when that was not the case. c) Failing to find that none of the Department or its officers acted to remove the consequences of Ms Atchison’s driving between schools. d) Failing to find that the process of reallocating schools or dealing with her concerns was discrimination. e) Finding that Ms Atchison’s complaint of discrimination was based on the denial of an opportunity to submit an EOI. 1 Anti-Discrimination Act 1991 (Anti-Discrimination Act) ss 4(a), (b), (e). -- 2 of 6 -- 3 f) Failing to find that proposing Ms Atchison work at the Brisbane School of Distance Education for a return to work program was not discrimination. g) Failing to uphold Ms Atchison’s complaints of discrimination. Unilateral assignment of schools [7] Ms Atchison says that the learned Member misunderstood the case being made in that there was never any complaint about the manner in which the schools were allocated following the restructure. Rather the effect of driving to the new schools was the subject of the complaint of discrimination. [8] The learned Member, in her reasons, wrote2: … the Tribunal cannot find Ms Atchison was unilaterally assigned a range of schools and dismisses that complaint. [9] That finding is understandable. In her contentions3, her statement sworn 25 January 20134 and her submissions to the appeal tribunal5, Ms Atchison claimed it was the unilateral allocation of schools and consequential effect on travel that constituted discrimination. The learned Member was right to deal with the issue and to make a finding. Allocation of schools [10] There is no doubt that Ms Atchison asked for a reallocation of the schools for which she was responsible. The learned Member found6: [60] It is difficult in these circumstances for the Tribunal to be persuaded that Ms Atchison was directly discriminated against because of her impairments. Ms Atchison has provided no evidence that this request process, running concurrently to a major State-wide departmental restructure, constitutes less favourable treatment because of her impairments compared to another, without those impairments, in these same or similar circumstances. [61] It does not follow that because some SGOs retained schools closer to their homes direct discrimination is made out. The circumstances that resulted in the allocation of schools to SGOs were not made in the same or similar circumstances to Ms Atchison’s request for adjustment. The Tribunal has already found that the school allocation arrangements arose from a different process and were essentially decided by the SGO’s themselves and thus are not in the same or similar circumstances to a request for adjustment that is necessarily made through line managers. [11] Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than 2 Atchison v State of Queensland & Ors [2013] QCAT 132 (Atchison) at [31]. 3 At [6]. 4 At [36]. 5 At [6]. 6 Atchison [60] to [61]. -- 3 of 6 -- 4 another person without the attribute is or would be treated in circumstances that are the same or not materially different7. [12] Because Ms Atchison complains about the driving and not the allocation, a reframing of her complaint is: are other SGOs without her impairments required to drive to their allocated schools? The answer on the evidence was clear; other SGOs were required to drive to their schools. [13] Ms Atchison then had to construe her complaint as that she was required to drive further than other SGOs. But there was no evidence that the requirement to drive to other schools was related to her impairment. [14] The third possibility, and the most likely, is that Ms Atchison was really complaining that the Department refused her requests to change schools. The test for direct discrimination that would be: If another SGO applied for a change of schools, would that request have been granted? Ms Atchison did not show that other SGOs had successfully asked for a reallocation of their schools. [15] In our view, the learned Member correctly found that there was no evidence to show the Department directly discriminated against Ms Atchison. [16] Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term: a) with which a person with an attribute does not or is not able to comply; and b) with which a higher proportion of people without the attribute comply or are able to comply; and c) that is not reasonable. [17] As Ms Atchison correctly identifies in her submission to the appeal tribunal, the “term” the Department imposed was that Ms Atchison was required to drive to and from the schools for which she was responsible. The learned Member refined the term to be that Ms Atchison was required to attend the Kedron office daily8. [18] The learned Member found that the position of SGO requires a location. She found that Ms Atchison was based at the Kedron office from mid June 2008 and she remained there for almost two years. She found that, during that period, Ms Atchison structured her work day to avoid traffic. Ms Atchison confirmed that she did not need to travel to the schools every day and that her work plan was flexible9. Ms Atchison has not appealed any of these facts. In light of the learned Member’s findings, it is difficult to see how Ms Atchison can continue to maintain that she suffered indirect discrimination. 7 Anti-Discrimination Act s 10. 8 Atchison [62]. 9 Ibid [63]. -- 4 of 6 -- 5 [19] Ms Atchison is correct in her submission that there is no defence of “reasonable adjustments” contained within the Anti-Discrimination Act. To the extent that the learned Member relied on that concept, she was in error. However, we are not persuaded that this error affects the correctness of the learned Member’s conclusions. [20] It might be that the Department’s officers failed to act on Ms Atchison’s request for change. Given the learned Member’s findings that the term imposed was not unreasonable, there was no need for the learned Member to consider this issue. The EOI process [21] Ms Atchison says the learned Member erred in characterising the discrimination as the failure to give an opportunity to participate in the EOI whereas Ms Atchison submits the discriminatory behaviour was not appointing her to the SGO position. [22] It is true that the learned Member’s reasons for decision focus on the EOI process, rather than the result. [23] However, it is clear from Ms Atchison’s contentions, her statement sworn 25 January 201310 and her submissions to the appeal tribunal11 that her real complaint did relate to the process. In her submissions to the appeal tribunal, Ms Atchison states that ‘the closing off of consideration of applications…without warning…was such as to give rise to an inference that it was because of the applicant’s impairment’. [24] In our view, the learned Member was right to characterise this as a complaint about the process. She found that Ms Atchison had notice of the EOI process and Ms Atchison’s late application did not constitute a denial of an opportunity to participate12. The evidence can support the learned Member’s findings and we can find no compelling reasons to come to a contrary view. Brisbane School of Distance Education (BSDE) [25] Ms Atchison says that, because there was clear evidence that the Department suggested she relocate to the BSDE, this was a proposal within the meaning of the Anti-Discrimination Act. We agree. [26] Was the proposal direct discrimination? Once again, the question is whether other SGOs, without Ms Atchison’s impairments, might be required to drive to BSDE. The answer, obviously, was in the affirmative. Even if it did constitute direct discrimination, because Ms Atchison never undertook the journey, there can be no question of loss or damage. 10 At [89] – [91]. 11 At [18]. 12 Atchison [88]. -- 5 of 6 -- 6 [27] Was the proposal indirect discrimination? It is in this context that the learned Member considered whether the Department imposed the condition or proposed to impose the condition. As the learned Member found13, the Department had no intention of imposing the condition – requiring her to go to BSDE – if Ms Atchison did not agree. We agree with the learned Member’s finding, therefore, that the proposal could not be characterised as a proposal to impose a term. It was not a “take it or leave it” proposal. At best, it was a proposal for discussion. If Ms Atchison did not find it acceptable, there were other alternatives available for discussion. Conclusion [28] We are not persuaded that the learned Member was in error. The application to appeal should be dismissed. 13 Ibid [96]. -- 6 of 6 --