Bell v State of Queensland [2013] QCAT 567

CITATION: Bell v State of Queensland [2013] QCAT 567 PARTIES: Teresa Bell (Applicant) v State of Queensland (Respondent) APPLICATION NUMBER: ADL079-12 MATTER TYPE: Anti-Discrimination Matter HEARING DATE: 12 July 2013 HEARD AT: Brisbane DECISION OF: Member Ann Fitzpatrick DELIVERED ON: 1 November 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application by Teresa Bell is dismissed. 2. There is no order as to costs. CATCHWORDS: Anti-Discrimination – Direct discrimination – less favourable treatment Edwards v Hillier and Educang [2006] QADT 34 Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 APPEARANCES and REPRESENTATION (if any): APPLICANT: Teresa Bell represented by Mr David Williams of Counsel, instructed by Mr Paul McCowan of McInnes Wilson, Lawyers. RESPONDENT: State of Queensland represented by Ms Susan Anderson of Counsel, instructed by Ms Johnston of the Queensland Police Service Solicitors‟ Office. -- 1 of 12 -- 2 Amended Reasons for Decision due to administrative error on 7 November 2013 AMENDED REASONS FOR DECISION [1] On 8 February 2012, the Applicant, Ms Bell lodged a complaint in the Anti- Discrimination Commission Queensland alleging pregnancy discrimination in the area of work. [2] The complaint was unable to be resolved and was referred to this Tribunal. [3] Ms Bell contends that the conduct of her employer, the Queensland Police Service (QPS), in the State of Queensland, amounts to either direct discrimination pursuant to section 10 of the Anti-Discrimination Act 1991 (ADA) or indirect discrimination pursuant to section 11 of the ADA. Further that she has been discriminated against in breach of section 15(f) of the ADA by unfavourable treatment in connection with work. [4] Ms Bell was employed as a Constable at the Charleville Police Station when she commenced maternity leave on 14 April 2010. At the end of her period of maternity leave she commenced a period of leave without pay to March 2012. [5] In June 2011, Ms Bell applied for a lateral transfer to Gympie Police Station, when her husband was transferred to work as Principal at the Kilkivan State School. [6] By letter dated 13 July 2011, the QPS gave in principle support for a transfer out of Charleville District, advising that no formally approved transfer could occur until: (a) an appropriate vacant position has been identified and is available for her at the location requested; (b) Ms Bell has been assessed as suitable and qualified for the position; and (c) she agrees to participate equitably in the general working arrangements associated with that position. [7] On 26 July 2011, Ms Kerry Hughes, Human Resources Manager informed Mr David Vu, Transfers and Promotion that a transfer to Gympie was approved subject to Ms Bell taking up the offer as soon as possible. [8] On 5 August 2011 Mr Vu offered Ms Bell a General Duties position at Gympie provided she applied for a reversal of her leave without pay advising that the transfer would be gazetted the following Friday. [9] On that day Ms Bell telephoned Acting Senior Sergeant Poole at the Gympie Police Station to arrange a date to meet to finalise the transfer and in that phone call informed him that she was pregnant. -- 2 of 12 -- 3 [10] On 10 August 2011, Ms Bell met with Acting Senior Sergeant Poole, she provided him with a letter from her Doctor advising of her due date. He provided her with an Alternative Duties for Pregnant Members form which was subsequently completed and returned confirming that Ms Bell‟s doctor assessed her as capable of performing shift work and a range of non-operational administrative tasks. Ms Bell‟s evidence is that she considered she could perform all operational tasks, except first response duties which involve being in a police vehicle called to arrest an offender. [11] The Alternative Duties Form for pregnant members records that Ms Bell should:  not engage in direct offender contact such as chasing, restraining or apprehending offenders, escorts, arrest processing;  not engage in any form of rescue task;  not travel at high speeds in police vehicles  not perform duties that involve the potential for danger and the requirement for co-worker care due to the presence of the pregnant employee;  not be in attendance at hazardous chemical incidents or fires;  not perform activities requiring the lifting of heavy objects;  not perform work that involves contact with chemicals on a daily basis such as in ammunition… and chemical areas such as photographics and scientifics. [12] The Form says that duties to be performed will include a range of non- operational administrative tasks that do not involve any of the above. [13] As requested Ms Bell submitted a request to return to work from unpaid leave to the Charleville District, which was approved. [14] On 12 August 2011 the lateral transfer was listed in a document titled “Officer Lateral Transfer – Gazette 12 August, 2011”. [15] Ms Bell was asked to submit the request for return to work from unpaid leave through North Coast Human Resources. She did so. [16] On 9 September 2011 Acting Senior Sergeant Poole reported to District Office Gympie, that he did not support a return to work because Ms Bell would be unable to complete an Operational Reorientation Program, in particular retraining in Firearms Operational Skills and Tactics (FOST) and Physical Operational Skills and Tactics (OST) due to medical restrictions. The position she was to fulfil was a fully operational General Duties Officer, including carrying of a firearm attending to first response jobs. -- 3 of 12 -- 4 [17] He said there were no administrative roles available, the Communications Room was staffed by civilians and was at full strength and any front counter work would require her to undertake training. [18] Acting Senior Sergeant Poole said that at the time Constable Bell spoke to Mr Vu she would have been aware that she was pregnant and was not capable of undertaking a return to full duties in accordance with the undertaking and condition of the transfer being granted. [19] The Acting District Officer, Gympie District, Acting Superintendent Maney then submitted a report, dated 19 September 2011, to the Assistant Commissioner, North Coast Region not supporting cancellation of maternity leave and a return to work for the reasons given by Acting Senior Sergeant Poole. [20] On 26 September, 2011 Acting Assistant Commissioner LG Churchill, North Coast Region responded that he did not approve Constable Bell returning to work early from maternity leave. He accepted the grounds given by Acting Senior Sergeant Poole and Acting Superintendent Maney and further said that: a) „…there is no obligation on the QPS to create or find a role for an employee who is now six months pregnant so as to enable that employee to receive OSA (Operational Shift Allowance) payment and full time pay.‟ b) „In this case, the officer could be expected to commence maternity leave on 17 November, 2011, which leaves approximately six weeks to complete ORP. In any case, ORP would be impossible to complete given the restrictions.‟ c) „…please liaise with constable Bell to identify any possible work unit that can accommodate her needs taking into consideration that the QPS does not have to create or find a job.‟ [21] On 28 September, 2011, Acting Superintendent Maney and Acting Senior Sergeant Poole met with Ms Bell to discuss the decision and to identify another work unit. She was told that there was no work within Gympie District. Ms Bell identified a possible location at Maryborough Station. [22] A position was available for Ms Bell at Maryborough Station. She did not take up that position. She remained on leave and then took further maternity leave. Pregnancy Policy [23] The QPS Pregnancy Policy is in evidence as attachment TEB 15 to the affidavit of Ms Bell, sworn 19 March 2013. [24] Both parties accept the application of the Policy to Ms Bell‟s employment. The policy is expressed to be read in conjunction with the ADA, the Workplace Health and Safety Act 1995 and the Family Leave Award – Queensland Public Sector. -- 4 of 12 -- 5 [25] Relevant provisions of the policy are: “2. The Service is committed to providing a workplace that ensures the safety, health and welfare of all employees. This includes providing work to a pregnant employee that does not place her at risk. The Service recognises the need to provide support services to pregnant employees for the duration of their pregnancies…and the provision, where required, of “alternative duties” … Pregnant employees should be treated the same as other employees of the Service with regards to their access to employment opportunities (for example, promotion, transfer, training, leave, etc). 5. … If it is decided that alternative duties are to be undertaken by the pregnant employee the responsible manager is to consider a range of duties that may be performed by the employee. It is reasonable to expect a pregnant police officer would be able to undertake duties such as: Inquiry office, counter, communications, criminal investigations such as fraud, child abuse, some traffic duties as a member of a team, rosters, property office, DCLO, proceeds of crime, community consultative committees, training office, CRISP cars, or a combination of these. 6. The following procedures are to be adopted in relation to the transfer of pregnant employees to safe duties. 6.1 If the position the employee holds is considered not to provide a safe working environment (to be determined in consultation with the responsible manager and the employee concerned and taking into consideration the medical opinion provided above) then the employee is to be given the option of being temporarily transferred to an identified safe position for the duration of the working time prior to commencing maternity leave. If no safe positions are available within he employee‟s station, section or establishment… then attempt to identify an available safe position either elsewhere within the region or in a neighbouring region….If a transfer to safe duties is impracticable… manager may direct the employee to take maternity leave… 7… Pregnancy will not normally be grounds for deferment or termination of an employee‟s participation in a training course…Employees who become pregnant after being accepted for participation in a course may liaise with the course supervisor if they wish to defer participation in such course. Family Leave award [26] Clause 2.2.4 of the Family Leave Award – Queensland public sector is relevant. It provides in relation to transfer to safe duties that: „…If a transfer to other duties is impracticable, the chief executive may direct the employee to take maternity leave for a period certified as necessary by a medical practitioner‟. -- 5 of 12 -- 6 Ms Bell’s submissions [27] Ms Bell submits that: a) the pregnancy policy was not taken into account when dealing with her placement at Gympie Police Station. b) It is not to the point to say that there was no position for Ms Bell, as she had been gazetted as transferred to the position of General Duties Police Officer. That role covers many duties and given her pregnancy she was entitled to undertake duties suitable to her medical restrictions whilst filling the position to which she had been transferred. c) Lack of operational currency was not an impediment to her return to work, because she had in any event a range of competencies. She was entitled to seek an exemption from FOST and OST, which would ordinarily be granted to a pregnant officer. The reorientation program could have been done with haste whilst seeking an exemption for FOST and OST. d) The pregnancy policy obliges the manager of the relevant station to find alternative duties for a pregnant employee. e) Alternative duties must have been available because one month before Ms Bell attempted to take up her position at Gympie Police Station, two officers, Senior Constable Reid and Constable Fleming were on maternity leave. They had previously fulfilled roles which did not involve going out into the field and apprehending people and their FOST and OST qualifications were irrelevant for the duties prescribed for them. They performed communications room work, counter duties, summonses in relation to traffic matters and working on enquiry files. A roster for the relevant period shows approximately 9 Officers were not able to perform duties on the general roster and they were accommodated. f) It is not a valid point of distinction between Ms Bell and Senior Constable Reid and Constable Fleming and it is not a valid reason to not accommodate Ms Bell into the duties previously performed by the two pregnant officers, to say that Ms Bell needed re-orientation. g) Ms Bell was blocked from undertaking a reorientation program on the basis that she was pregnant, and that no position existed for her – when in fact that position clearly existed for her because she had been gazetted into it, and she was able to obtain an exemption from the reorientation program aspects that were limited by her medical certificate restrictions. [28] Ms Bell submits that QPS was under an obligation to give effect to the gazetted transfer and place her into Gympie Police Station as a Constable and then to give her meaningful work commensurate with the restrictions placed upon her in accordance with its own Pregnancy Policy. That should have involved, pursuant to the terms of that policy, a -- 6 of 12 -- 7 consultative process involving her, the relevant medical opinion and her officer in charge. [29] Ms Bell says that her pregnancy, or an extended attribute of it (restrictions on dangerous or physical exertion in the workplace) – was a substantial reason for the failure of the QPS to give effect to the Gazettal. [30] In relation to the application of the law to the facts of this case, Ms Bell says she has established that the reason or at least one of the reasons for her discriminatory treatment was her pregnancy, including the medical restrictions attendant on the pregnancy. [31] It is submitted that direct discrimination is established because: a) she was treated less favourably; b) when compared to the treatment of other people without the attribute of pregnancy and consequent restrictions on dangerous or physical exertion in the workplace; c) where the circumstances of people in the comparator group are the same or not materially different. [32] She says that the relevant comparator in this case is a female police officer who is not pregnant, being transferred into a gazetted position as a constable performing general duties at a police station comparable with Gympie and who is returning from leave such that she needs to undergo some or all aspects of a skills reorientation process. [33] Ms Bell points to evidence from Senior Sergeant Poole and Mr Maney to the effect that such a person would have been allowed to assume their position, after having undertaken a reorientation program. [34] In her contentions filed on 18 October 2012, Ms Bell say that direct discrimination arises in that no officer in Gympie who had not possessed the attribute of pregnancy would be required in any event to perform duties outside the Gympie Police District within which their gazetted position pertained. [35] In her submissions, the argument is put differently. The basis of the alleged less favourable treatment is said to be that Ms Bell was not allowed to assume her position at Gympie Police Station, whereas another officer who is not pregnant would have been able to do so. [36] Although indirect discrimination is referred to in her submissions and is squarely raised in her contention, no submissions are made based on the evidence as to the matters detailed in section 11 of the ADA necessary to establish indirect discrimination. -- 7 of 12 -- 8 [37] Ms Bell‟s contentions state that QPS imposed upon her a term with which she was unable to comply and which the higher proportion of people with the attribute of pregnancy, would theoretically be able to comply. The term Ms Bell contends was imposed was a term that she take up duties in Maryborough. Ms Bell says that term is unreasonable in the circumstances of her pregnancy and where she would have to drive approximately 115 minutes each way to perform work as a Police Officer under the term proposed. QPS submissions [38] QPS in its submissions says that: a) It treated Ms Bell exactly as any other person with her attribute, pregnancy, would have been in the same circumstances. It makes the point that two other pregnant officers at Gympie were accommodated without issue and that Ms Bell has been accommodated, including during her third pregnancy. b) It was only Ms Bell‟s individual circumstances of having been out of operational duties for more than 12 months requiring her to undertake reorientation that meant she could not begin work straight away. In addition, instead of being able to work the usual roster around a pregnant officer, the officer in charge was required to find a position into which Ms Bell could be placed and to then design an appropriate reorientation training program. c) Ms Bell admits she could not perform some of the duties of her position. She did not submit an amended medical certificate to reflect her view that she could perform some duties her Doctor had restricted. d) Sergeant Poole gave evidence of the other positions he considered Ms Bell may have been able to perform. His evidence was that all potential positions were already occupied and fully staffed or were at a District level and so not under his control. e) Ms Bell herself suggested there may be a position available at Maryborough, it was not a QPS requirement that she take up that position. f) QPS did not impose a term or propose a term before a return to duty. g) QPS have an obligation to assess the capability of their officers pursuant to the Pregnancy Policy, to take into account medical opinion and to take into account the availability of alternative duties. h) QPS admits that the consultative process envisaged by the Policy was not undertaken, however: (i) the evidence was that there were no alternative duties Ms Bell could perform. The appropriate process is to determine if there is a role Ms Bell could perform and then to conduct a skills audit to see if she could perform the role; -- 8 of 12 -- 9 (ii) there is no obligation on the QPS to create a job or duties for a person to fill where none exist; (iii) insofar as it is suggested that Ms Bell could take up the work done by Senior Constable Fleming and Constable Reid, both were part time employees, whereas Ms Bell was gazetted to a full time position. In any event Sergeant Poole‟s unchallenged evidence was that there were no duties that were available for Ms Bell to perform. [39] QPS says that the appropriate comparator is a police officer, being transferred into a gazetted position as a constable – general duties at a police station comparable with Gympie; and who is returning from leave or coming off of non-operational duties such that he or she needs to undergo some or all aspects of a skills reorientation process. [40] It is submitted that any officer in this position would have required a reorientation process and that would have been undertaken in exactly the same way for any officer with or without medical restrictions. The officer would not have been placed in a position the officer could not perform due to medical restrictions. Issues [41] The questions I must decide in relation to direct discrimination are: a) how in the particular circumstances of Ms Bell would QPS have treated a person without the attribute of pregnancy? b) if the treatment of Ms Bell was less favourable than the treatment that would have been given to a person without the attribute of pregnancy – was this because of the pregnancy or was it for some other reason?1 The Comparator [42] I find that the appropriate comparator is a police officer returning to work after an absence of 14 months, who requires re-orientation and who has medical restrictions placed on the work which can be performed. [43] I reject the submissions of Ms Bell that it is inappropriate to include medical restrictions in the description of circumstances which are the same or not materially different to those experienced by her. Although medical restrictions on the type of work she could perform were a consequence of Ms Bell‟s pregnancy, there is no evidence that any medical restrictions or the medical restrictions recommended to Ms Bell fell within the ambit of section 8 of the ADA. I find that the medical restrictions were not characteristics of pregnant women in general or characteristics generally imputed to pregnant women. 1 Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92 at [213]. -- 9 of 12 -- 10 [44] I accept the submissions of the QPS that it is artificial to presume that all pregnant officers will have medical restrictions or even the same medical restrictions. [45] Further, the reasoning of the majority in Purvis v State of New South Wales (Department of Education and Training) was that the circumstances „include all of the objective features which surround the actual or intended treatment of the disabled person‟ and include relevant aspects of the person‟s disability: „it would be artificial to exclude (and there is no basis in the text of the provision) for excluding from consideration some of these circumstances because they are identified as being connected with that person‟s disability‟.2 [46] The reasoning in Purvis has been applied outside the operation of disability discrimination under the Federal Act, with which the case was concerned, including in applying the ADA. In Edwards v Hillier and Educang3, Forest Lake College would not make the job of Registrar available to the complainant on her return from maternity leave on other than a fulltime basis. The Queensland Anti-Discrimination Tribunal found that there had been no direct discrimination in that the College would have refused to employ any person who was not available to work full time: Even if a preference for part-time work and a practical inability to work full-time could be regarded as so bound up in the attributes of parental status and family responsibilities as to be part of them, the complainant‟s direct discrimination claim would still not succeed because the appropriate comparison is with another person who prefers not to, and practically cannot, meet the respondents‟ requirement to work full time, but who is not a parent with family responsibilities. This was the reasoning of the majority in Purvis v New South Wales. [47] Applying this reasoning I find that the appropriate comparator is subject to medical restrictions in the performance of full operational duties. Was the treatment of Ms Bell less favourable than that accorded to the comparator? [48] There is limited evidence before me as to the treatment of a comparator. Ms Bell did not call any evidence to demonstrate her unfavourable treatment compared to such a person. She did elicit evidence in cross examination that an officer who was not pregnant and who had no medical restrictions would have been transferred into their gazetted position, even if they needed re-orientation. [49] I do not think that is to the point. For the reasons given earlier, I do not think medical restrictions can be excluded from the analysis of events occurring in similar circumstances. 2 Ibid at [224]. 3 [2006] QADT 34. -- 10 of 12 -- 11 [50] Mr Maney, now retired, but previously the District Officer, was cross examined extensively in relation to the operation of the Pregnancy Policy. He agreed that the Policy allows for a flexible response on the part of the QPS to pregnant officers and their access to employment opportunities, including transfer. He said at page 1-68 of the transcript: Yes. She was treated no differently – the critical thing here is the pregnant employee should be treated the same as other employees with regard to their access, to their employment, other opportunities, for example promotion, transfer etc. If a – if a constable – a male constable had been transferred from Charleville to Gympie into that position, which was an operational position and appeared at the police station with a medical certificate from their doctor saying they were precluded from doing these things they would have been treated the same way. She was treated the same way as any other person would have been treated if they‟d presented to the station with those medical restrictions. [51] On the basis of this evidence I find that QPS would have required any other officer returning to an operational position after a long period of leave and who was subject to medical restrictions, in terms of the operational functions which could be performed, to await an enquiry as to what positions or duties could be performed within the constraints of the medical restrictions and if a position or duties were available to then undergo a skills audit and subsequent re-orientation training. Alternatively, if there were no alternative duties available, no work would have been made available to that person. [52] I accept the evidence of Sergeant Poole and Mr Maney that there were no alternative duties available at the Gympie Police Station which Ms Bell could perform. Constable Poole gave clear evidence in this regard, consistent with his filed statement of evidence. I do not accept the submissions that there must have been alternative duties available because two other pregnant Officers had been performing duties shortly before Ms Bell was due to commence. Those Officers were not called to give evidence. There is nothing before me in terms of their qualifications and status or medical restrictions or the needs of the Gympie Police Station which would enable me to say that at the time Ms Bell required alternative duties the duties performed by the other pregnant Officers could be performed by Ms Bell. [53] I accept the evidence of Mr Maney that it was the medical restrictions imposed on Ms Bell that limited the availability of alternative duties for her. I find that any other Officer, subject to medical restrictions seeking alternative duties would not be given work he or she was incapable of performing. I find that no duties would be specially created for any Officer. In this regard, I accept the evidence of Mr Maney that the Gympie Police Station has a staffing structure and allocated positions and duties it is obliged to follow. There is no suggestion on the evidence that duties were created for any other Officer, who was not pregnant, in the same circumstances. [54] Accordingly I find that Ms Bell was not treated less favourably than another person without the attribute of pregnancy would be treated, in circumstances that are the same or not materially different. -- 11 of 12 -- 12 [55] Given this finding there is limited relevance in further exploring Ms Bell‟s submissions in relation to application of the Pregnancy Policy or whether Ms Bell could have been notionally placed in the gazetted position or fast tracked through a re-orientation program. That is because at the end of the day there were no alternative duties available to her at the time, taking into account her medical restrictions. There was no re-orientation program which could be developed for her in taking up alternative duties. I do not accept that QPS could not ignore or temper the medical restrictions in any way. To do so would be dangerous to Ms Bell, her colleagues and the public. [56] As a result of the finding that Ms Bell has not been treated less favourably than another officer who was not pregnant in the same circumstances, there is no utility in any further examination of the reason why Ms Bell was treated in the way that she was. [57] I conclude that there has been no direct discrimination of Ms Bell by QPS. Indirect discrimination [58] I have previously noted that Ms Bell made no submissions in relation to the unreasonable term she alleges was imposed upon her. There is no evidence before me and no submissions have been made as to the proportion of people without the attribute of pregnancy who are able to comply with any alleged term, which would form the basis of a claim of indirect discrimination. [59] The contentions refer to a term that Ms Bell work in Maryborough, if she wishes to return to work early form unpaid leave. [60] I accept the submissions of QPS that it did not seek to impose a term to that effect. I accept that Ms Bell suggested work which she could perform may be available to her in Maryborough. That was found to be the case. If she wished, she could have undertaken duties at the Maryborough Police Station. I find that Ms Bell‟s own evidence is consistent with that submission. [61] I am not satisfied that there has been any indirect discrimination of Ms Bell. Orders [62] For the reasons set out in this Decision I order that the application by Teresa Bell be dismissed. [63] The respondent has not sought its costs in the event that the application is dismissed. In view of section 100 of the Queensland Civil and Administrative Tribunal Act 2009 I make no order as to costs. -- 12 of 12 --