Attrill v State of Queensland [2011] QCAT 361

CITATION: Attrill v State of Queensland [2011] QCAT 361 PARTIES: Peta Michelle Attrill v State of Queensland APPLICATION NUMBER: ADL041-11 MATTER TYPE: Anti-discrimination matters HEARING DATE: 18 July 2011 HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 5 August 2011 DELIVERED AT: Brisbane ORDERS MADE: The application for an injunction is refused. CATCHWORDS: ANTI-DISCRIMINATION – complaint based on impairment – allegation of contravention of section 15 of the Anti-Discrimination Act 1991 – where Part 7 of the Public Service Act 2008 is inconsistent with section 15 of the Anti-Discrimination Act 1991 – where later Act impliedly repealed Anti- Discrimination Act 1991 to the extent of inconsistency – where no valid complaint – where tribunal had no jurisdiction to grant injunction Goodwin v Phillips (1908) 7 CLR 1 Ferdinands v Commissioner for Public Employment (2006) 80 ALJR 555 Saraswati v The Queen (1991) 172 CLR 1 B v Queensland Nursing Council [2002] QADT 4 Simpson v Welch and Queensland Police Service [2002] QADT 17 MIM & Ors v Hopper (1998) QSC 287 Jones v Queensland Health [QCAT] unreported and delivered 16 December 2010 -- 1 of 6 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT : Peta Attrill rrepresented by K Watson of Counsel instructed by Susan Moriarty & Associates RESPONDENT: State of Queensland represented by Dr M Spry of Counsel instructed by the Crown Law Office REASONS FOR DECISION [1] Ms Attrill applied to the tribunal for an injunction to restrain her employer, Queensland Corrective Services, part of the Department of Community Safety, from continuing an ill health retirement process until such time as the Anti-Discrimination Commission of Queensland has considered her complaint of an alleged contravention of the Anti-Discrimination Act 1991. [2] That complaint was accepted for consideration by the Commission but the processes within the Commission have not yet been completed nor has the complaint been referred to this tribunal. [3] Ms Attrill is undergoing a process initiated under section 178 of the Public Service Act 2008 whereby the chief executive may transfer, redeploy or retire an employee if the chief executive is satisfied that the absence of an employee is caused by mental or physical illness or disability. Ms Attrill has complained that in utilising this process the employer contravenes the Anti-Discrimination Act 1991. [4] The basis of her complaint is that Ms Attrill has an impairment being a psychiatric disability. She complains that her employer is treating her less favourably by subjecting her to a process where the ultimate result could be the termination of her employment because of her impairment. She argues that persons without the impairment are not able to be retired involuntarily. [5] The employer does not support the injunction being sought by Ms Attrill. The employer argued that in considering whether to grant an injunction, the tribunal must be satisfied that an injunction is necessary under section 144(1) of the Anti-Discrimination Act 1991. The employer submitted that Ms Attrill had asked for time to respond to the employer’s ultimatum or failing which she would seek injunctive relief from the tribunal. On 29 June 2011 Ms Attrill had been given until 12 August 2011 in which to show cause why she should not be retired. [6] It was argued that Ms Attrill has sought in her complaint to the Commission outcomes that primarily focus on obtaining a reasonable time to respond to the show cause ultimatum. It was argued that she had had adequate time to respond, she had not provided her response and that there was accordingly no basis for the injunctive relief she had sought. [7] However in her submissions in support of the injunction, Ms Attrill clarifies that she is seeking the injunction so that the show case process is placed -- 2 of 6 -- 3 on hold until such time as her complaint has been heard and determined by the tribunal should conciliation prove unsuccessful on 27 July 2011. Ms Attrill has argued that an injunction is necessary in order to avoid closing off avenues for relief that the tribunal might make if it determines that she has been unlawfully discriminated against by her employer. [8] The tribunal accepts that despite the specific limited relief sought and expressed in the complaint to the Commission, Ms Attrill does in fact wish to seek outcomes in this process that include preventing her employer from terminating her employment based on her impairment. In view of the expressed wider scope of orders that will be sought by Ms Attrill from the tribunal, it would appear to the tribunal that it is necessary to consider the merits of the application for an injunction under section 144. [9] The main argument raised in opposition to the granting of an injunction goes to the issue of whether the tribunal has jurisdiction to grant an injunction in this case. Counsel for the employer argues that the ability of the tribunal to grant relief under section 144 is conditional on the existence of a valid complaint. It was argued that Ms Attrill’s complaint made against her employer of a contravention of the Anti-Discrimination Act 1991 is not a valid complaint. [10] This argument is based on submissions that Part 7 of the Public Service Act 2008 is not subject to the provisions of the Anti-Discrimination Act 1991. Part 7 of the Public Service Act 2008 contains involuntarily ill health retirement provisions. It was submitted that Part 7 establishes a comprehensive and exhaustive scheme to deal with public service employees who are mentally or physically incapacitated. Section 15 of the Anti-Discrimination Act 1991 however provides that an employer must not discriminate against a person in the area of work including dismissing a worker on a discriminatory basis. [11] The employer argued that as the Public Service Act 2008 is a later enactment than the Anti-Discrimination Act 1991, section 15 of the Anti- Discrimination Act 1991 must be read subject to Part 7. Alternatively to the extent that Part 7 is inconsistent with section 15, then section 15 is impliedly repealed. Counsel for the employer relied on authorities from the higher courts and from the former Anti-Discrimination Tribunal in support of this argument that the complaint is not a valid complaint in this case. [12] Counsel referred to Goodwin v Phillips1 in which Griffith CJ stated: “that where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.” 1 (1908) 7 CLR 1 at 7. -- 3 of 6 -- 4 [13] Counsel also referred to Ferdinands v Commissioner for Public Employment2 in which Gummow and Hayne JJ stated: “It has long been recognised that even though one statute does not expressly repeal an earlier statute, the later statute must be read as impliedly repealing the earlier, if the two are inconsistent. Inconsistency lies at the root of this principle.” Their Honours quoted with apparent approval the words of Gaudron J in Saraswati v The Queen3 which warned that there must be very strong grounds to support the implication for there is a general presumption that the legislature intended that both provisions should operate. [14] The employer argues that there are very strong grounds to support the implication in this case due to the nature of the provisions in Part 7 which amount to a comprehensive and exhaustive regime for dealing with the involuntary termination of employment based on mental or physical incapacity, or impairment using the words of the Anti-Discrimination Act 1991. Gleeson CJ in Ferdinands v Commissioner for Public Employment considered that the nature of the later Act in that case and its appearance of exhaustiveness on the subject of termination of employment, created the kind of incompatibility that gave rise to the implication of repeal.4 Close attention must be given to the particular provisions in both Acts. [15] Counsel for the employer argued that Part 7 prescribes in a detailed and exhaustive manner the matters to be considered in relation to public service employees who are absent from work because of mental or physical incapacity. When a public service employee is absent from duty or is not performing satisfactorily and there is a reasonable suspicion that the absence or unsatisfactory performance is caused by an illness or disability, the employee can be required to attend a medical examination and on receipt of a report from that medical examination, the chief executive can take specified steps including the termination of employment. [16] At first glance, it appears impossible to reconcile the provisions in Part 7 with the provisions in section 15. Part 7 permits the employer to take action which may result in the termination of employment based on a worker having an impairment while section 15 prohibits an employer terminating employment on the basis of an impairment. [17] Counsel for Ms Attrill however argues that the two sets of provisions can be reconciled. Section 30 of the Public Service Act 2008 requires the employer to act to eliminate unlawful discrimination about employment matters against members of what is described as EEO target groups. Included as target groups in that Act are people with a disability and women. It is submitted that Ms Attrill is a member of each of those particular target groups and that employment matters in section 30 include terms and conditions of service and separation of employees. 2 (2006) 80 ALJR 555, reasons of Gummow and Hayne JJ at paragraph 18. 3 (1991) 172 CLR 1 at 17. 4 (2006) 80 ALJR 555 in the reasons of Gleeson CJ at paragraph 4. -- 4 of 6 -- 5 [18] Counsel argues that it would be extraordinary if on the one hand the employer in this case must not unlawfully discriminate when dealing with the separation of an employee in a specified EEO target group but on the other hand when an involuntary retirement is concerned, the Act containing the provisions that prohibit unlawful discrimination is impliedly repealed. Counsel argues that the two Acts can in fact be read together. [19] Counsel relied on section 25 of the Anti-Discrimination Act 1991 which exempts from discrimination in work genuine occupational requirements for a position. Counsel argues that the inherent requirements of a position are those which are essential and indispensable in carrying out the particular employment. Counsel argues that a failure to carry out an essential requirement of a position could lead to unsatisfactory performance and fall within Part 7 in circumstances where a defence to a complaint of unlawful discrimination could then be made under section 25. [20] The tribunal does not accept such a position is plausible when the facts of this case are considered. It cannot be accepted that it is a requirement of public service employment that a person must not have an impairment that could result in an absence from work and that such a requirement would come within the category of a genuine occupational requirement in terms of section 25. It is also difficult to accept that the requirement that a public service employee must comply with the provisions in Part 7 comfortably falls within the category of a genuine occupational requirement. It is more likely to be a separate condition imposed on employment by statute than a genuine occupational requirement which, as explained by the authorities, must be an essential and indispensable part of carrying out the particular employment.5 [21] The tribunal concludes that the specific provisions in Part 7 cannot be read with the universal provisions in section 15. The tribunal is satisfied that in this case there is such inconsistency, contrariety6 or repugnancy7 that the two Acts cannot be reconciled. The provisions of Part 7 must have impliedly repealed the unlawful discrimination provisions in section 15 to the extent to which that section otherwise would have applied to the proposed termination of employment by way of an involuntary retirement on grounds of disability. [22] In view of that finding, it must follow that Ms Attrill does not have the grounds on which to make a valid complaint against her employer of contravention of the Anti-Discrimination Act 1991 based on the action taken against her under Part 7 of the Public Service Act 2008. The absence of a valid complaint means that the tribunal does not have jurisdiction to grant the injunction sought under section 144 of the Anti- Discrimination Act 1991. [23] This conclusion is similar to the conclusion of the former tribunal in B v Queensland Nursing Council8 when the learned former president had 5 Qantas Airways Ltd v Christie (1998) 193 CLR 280 and Toganivalu v Brown & anor [2006] QADT 13. 6 Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 275. 7 Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 290. 8 B v Queensland Nursing Council [2002] QADT 4. -- 5 of 6 -- 6 concluded that other specific legislation was inconsistent with the Anti- Discrimination Act 1991 and had impliedly repealed that Act. [24] In Simpson v Welch and Queensland Police Service9 the learned former president concluded that the jurisdiction of the tribunal depends on the existence of a valid complaint, citing MIM & Ors v Hopper.10 As he found that the complaint of discrimination did not fall within section 15, the complaint was not valid and the tribunal lacked jurisdiction to grant the relief sought. [25] Before concluding, some reference ought to be made to the earlier case determined by this tribunal in Jones v Queensland Health.11 Justice Alan Wilson granted an injunction in that case under section 144 to prevent the employer from further exercising its rights under Part 7 of the Public Service Act 2008. However the case is distinguishable as it concerned a valid complaint made under the Anti-Discrimination Act 1991 and was based on sexual harassment, sex discrimination and victimisation in the area of work. No element of inconsistency between Part 7 and section 15 was involved in that case. [26] The application for an injunction is refused. 9 Simpson v Welch & anor [2002] QADT 17. 10 MIM & ors v Hopper (1998) QSC 287. 11 Jones v Queensland Health currently unpublished but dated 16 December 2010. -- 6 of 6 --