Chivers v State of Queensland [2011] QCAT 357

CITATION: Chivers v State of Queensland [2011] QCAT 357 PARTIES: Rebecca Louise CHIVERS v State of Queensland APPLICATION NUMBER: ADL024-10 MATTER TYPE: Anti-Discrimination Matters HEARING DATE: 11 July 2011 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 25 July 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Ms Chivers has leave to amend her contentions. 2. The State of Queensland is directed to provide the following information to the tribunal and to Ms Chivers: a. (a) The total number of nursing employees employed firstly in the Ipswich Hospital and secondly in the District in the pay periods closest to 6 August 2008, 4 November 2008 and 4 February 2009; b. The number of nurses who worked night shifts in those particular pay periods based on penalty codes. CATCHWORDS : ANTI-DISCRIMINATION – amendment of contentions – subsections (3)(b) and (d) of section 23 of the Queensland Civil and Administrative Tribunal Act 2009 – whether information should be made available to the tribunal as necessary to decide the proceeding -- 1 of 6 -- APPEARANCES and REPRESENTATION (if any): APPLICANT : Rebecca CHIVERS represented by Ms Rownalds instructed by Slater & Gordon, Solicitors RESPONDENT: State of Queensland represented by Mr C Murdoch instructed by Minter Ellison, Solicitors REASONS FOR DECISION [1] Rebecca Chivers sustained an acquired brain injury in January 2004 in an accident. In November 2007 Ms Chivers graduated with a Bachelor of Nursing degree and in February 2008 Ms Chivers commenced employment in the Beginning Registered Nurse Transition to Practice Program at the Ipswich Hospital. [2] Ms Chivers experienced vomiting, headaches and ataxia on night shifts. Relying on medical advice she had received, Ms Chivers informed her employer that she could not work night shifts as her ill health symptoms were associated with night shifts. In June 2008 Ms Chivers was informed that her probationary period would be extended beyond 11 August 20008 by her employer. The respondent employer later extended the probationary period to March 2009. Ms Chivers resigned from her employment effective from 27 February 2009. [3] Ms Chivers lodged a complaint with the Anti-Discrimination Commission alleging that her employer had contravened the Anti-Discrimination Act 1991 by unlawfully discriminating against her based on her impairment. The respondent has denied there has been a contravention of the Act. [4] The complaint was unable to be conciliated and was referred to the tribunal. Ms Chivers filed her contentions on 26 July 2010 and filed amended contentions on 20 August 2010. The respondent filed its contentions responding to Ms Chiver’s amended contentions on 27 August 2010. The respondent later filed amended contentions on 20 May 2011. The tribunal’s leave was not sought for any of the amendments purported to be made before 20 May 2011 and it would appear that the parties do not raise objections to those respective amendments being made. [5] Ms Chivers applied for leave to make a further amendment to her contentions which is opposed by the respondent. The application relates to paragraph 35 (d) of her contentions which is presently in the following terms: (d) a higher proportion of employees at the Hospital without the Complainant’s impairments were able to comply with: (i) the first term; and, or alternatively, (ii) the second term; Within the meaning of s.11 (1) (b) of the Act; and [6] The amendment being sought is as follows: -- 2 of 6 -- (d) a higher proportion of nursing employees employed at the Hospital or, alternatively, employed in the District, without the Complainant’s impairments were able to comply with: (i) the first term; and, or alternatively, (ii) the second term; Within the meaning of s.11 (1) (b) of the Act; and [7] The respondent does not object to an amendment that would result in the wording “a higher proportion of nursing employees employed at the Hospital” but does object to including the words “or, alternatively, employed in the District “by way of amendment to paragraph 35(d). [8] In submissions filed in support of the application to amend her contentions, Ms Chivers through her legal representatives referred to the broad discretion in section 64 of the Queensland Civil and Administrative Tribunal Act 2009 for the tribunal to allow the amendment of a relevant document. It was submitted that the tribunal must exercise its discretion consistently with the overriding philosophy of the Act that the tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick. 1 [9] It was not disputed that the tribunal had the power to amend the contentions in the manner sought by Ms Chivers. The respondent submitted that the discretion to amend should not be exercised to include the alternate group. [10] It was submitted on behalf of Ms Chivers that it was appropriate to amend paragraph 35(d) of the contentions as she had not been employed by the Ipswich Hospital but by the State of Queensland through Queensland Health located in the Darling Downs West Moreton Health Service District. As an allegation had been made that the employer had imposed a term on Ms Chivers’ employment, it was submitted that one base group that may be considered for comparison by the tribunal in terms of section 11(1)(b) of the Anti-Discrimination Act 1991 is the group constituted by the nursing employees in the District. [11] It was submitted that Ms Chivers should not be prevented making her case for indirect discrimination by being prohibited from arguing an alternate base group when that alternate group is readily identifiable and when the ability to consider an alternate group may assist the tribunal in ascertaining whether Ms Chivers’ impairment was significant to compliance with the term said to have been imposed. [12] It was submitted by Ms Chivers that ultimately it is an issue for the tribunal to determine the identity of the base group for the purposes of section 11(1) (b). It was argued that allowing the amendment at this stage of the proceeding did not prevent the respondent from arguing at the final hearing that the use of the alternate base group would not be correct in law. 1 Queensland Civil and Administrative Tribunal Act 2009, s 3. -- 3 of 6 -- [13] On the other hand it was submitted by Ms Chivers that disallowance of the amendment would give rise to significant prejudice for Ms Chivers who has the burden of proof in relation to section 11(1) (b). It was submitted that she should be allowed to nominate an alternate base group for the purposes of discharging that burden of proof. In the opinion of the tribunal the submissions of Ms Chivers have merit. [14] The respondent’s submissions that the discretion of the tribunal to amend the contentions should be exercised in accordance with ordinary principles appear to rely on principles devised for pleadings in the courts. [15] One of the distinguishing features of the tribunal is that it not bound by the practices or procedures applying to courts of record when it conducts a proceeding. 2 The contentions filed by parties in matters alleging contravention of the Anti-Discrimination Act 1991 are not to be treated in the same manner as formal pleadings in courts of record. This is a clear expectation drawn from the provisions in section 28(3) (d) of the Queensland Civil and Administrative Tribunal Act 2009 where the tribunal is required to act with as little formality and technicality as a proper consideration of the matters before the tribunal permit. [16] Ms Chivers should not be unduly restricted in this tribunal in the manner of expressing her case in terms of proposing alternatives for the tribunal’s consideration at a final hearing in relation to section 11(1)(b) of the Anti- Discrimination Act 1991. Restrictions in the scope of the case presented by a complainant should spring more from considerations of fairness to the respondent and relevance to the issues to be determined than from the wording used originally in a complaint or in an original set of contentions filed in the tribunal. [17] It was submitted by the respondent that all through the complaint process at the Commission and in her original contentions, Ms Chivers had articulated that the scope of the complaint involved the Ipswich Hospital. That may well be true but it does not inevitably follow that the particular amendment sought by Ms Chivers should not be allowed at this stage. [18] It is proper that a complainant such as Ms Chivers is permitted to state her case as fully as can be reasonably expected from the facts of her referred complaint. The facts of the complaint have not changed: it is the articulation of one part of the legal structure of her case that is sought to be amended so that Ms Chivers can raise an additional supposition at the final hearing. It is for the tribunal at that time to accept or reject the cogency of the case presented on that additional basis. [19] The respondent submitted that the amendment would significantly expand the scope of the proceeding, would require extensive further witness statements and disclosure but would ultimately have little or no utility in relation to the outcomes to be found by the tribunal at hearing. It was argued by the respondent that to allow an expansion of the scope of the complaint at this stage would not result in the objects of the tribunal being achieved. 2 Queensland Civil and Administrative Tribunal Act 2009, s28 (3) (b). -- 4 of 6 -- [20] The tribunal does not agree that allowing the amendment would somehow be contrary to the statutory objects of the tribunal to conduct its proceedings in a way that is fair, just, economical and quick. The tribunal has given the parties considerable opportunities to reach a consensus about the scope of some issues in the complaint since September 2010. The parties have not been able to reach a consensus about those issues or as to the manner in which those issues are taken forward for determination. [21] The parties have now sought a ruling from the tribunal on procedural matters relevant to those unresolved issues. It is fair, just and timely in July 2011, some four months out from a final hearing of the complaint, that a decision is made on the proposed amendment. According to its own submissions, the respondent has known about the proposed amendment since at least 20 January 2011. The respondent is not taken by surprise by the amendment and will have an adequate opportunity to prepare its case based on the proposed amended contentions by November 2011. The tribunal will make its determination on the cogency of the respective arguments as to how to apply the provisions in section 11(1) (b) at that time and not at this preliminary point of the proceedings. [22] The application to amend the contentions is allowed. [23] Ms Chivers also sought a direction that the respondent provides certain information about its employees specified in the written submissions made on her behalf so that the tribunal can ultimately make a determination under section 11(1) (b). The respondent objected to the application on the basis primarily that the respondent did not have most of the information sought by Ms Chivers. It is clear that a party cannot be required to produce information that it does not have. [24] Evidence was given by James Black, an employee of Queensland Health who is the acting Director Business Applications and Projects, Finance Solutions. Mr Black in his evidence explained what information would be available for production in this case. [25] He stated that it is possible to provide data regarding the number of nurses at the Ipswich Hospital and within the District. The data could not be provided for a particular date but could relate to a particular pay fortnight. Being based on payroll data, the information would necessarily exclude employees who were not being paid in that fortnight such as employees on extended unpaid leave or casual employees who did not work in a particular fortnight. [26] Mr Black explained that there was data collected about disabilities disclosed by employees but in 2008 and 2009 this disclosure was not compulsory. The current data collection about disabilities from employees is not compulsory but can distinguish non responses from negative responses. The gathered information is necessarily from self reporting by employees and is not validated or checked for accuracy. [27] Night shift data is available about nurses but only for Monday to Friday shifts. Mr Black gave evidence which qualified further the relevance of the night shift data in this case. In his oral evidence Mr Black confirmed the -- 5 of 6 -- existence of other possible sources of data about impairments disclosed by employees but he did not have personal knowledge of the scope or extent of that additional information. [28] Counsel for Ms Chivers told the tribunal that she was not seeking a direction about information that could not be produced. The request for information was reduced from the scope set out in the application to what appears to be the following: a) The total number of nursing employees employed firstly in the Ipswich Hospital and secondly in the District in the pay periods closest to 6 August 2008, 4 November 2008 and 4 February 2009; b) The number of nurses who worked night shifts in those particular pay periods based on penalty codes. [29] Although the accuracy of this information for the issues that have to be determined by the tribunal would be subject to challenge at the final hearing, it is reasonable that this limited information is made available to the tribunal and to Ms Chivers. It is possible that in the course of extracting this information that further more useful data to the issues to be determined may become available and the tribunal would expect that any such relevant information is provided to the tribunal and to Ms Chivers in a timely manner. [30] It is essential for the delivery of justice that parties provide all relevant information to the tribunal that is needed for the tribunal to decide the proceeding.3 It is the role of the tribunal to decide what information is necessary to achieve that outcome. [31] In this case the tribunal has been persuaded that the data and other information held by the respondent about the number of nursing employees employed by the respondent at the Ipswich Hospital and in the District as near as possible to the specified points in time, although limited, is necessary to be produced in this proceeding. It is ultimately for the tribunal to be satisfied at the final hearing as to how useful that information will be for its determination of the issues in this complaint. [32] Although with some reservations, the tribunal has also been satisfied that information in existence about night shifts worked by nursing employees at the Ipswich Hospital and in the District as near as possible to the specified points in time is necessary to be produced as this information, once released, may be able to be analysed in a useful manner at the final hearing. The information that is available should be produced by the respondent. Again, if in the course of extracting this information further useful data to the issues to be determined becomes available, the tribunal would expect that such additional information is provided to the tribunal and to Ms Chivers in a timely manner. [33] The tribunal will not direct the respondent to provide the limited information it has collected about disabilities reported by its employees as the tribunal is satisfied by the evidence that such collected information will not be useful in its current form to the issues to be determined in this proceeding. 3 Queensland Civil and Administrative Tribunal Act 2009, s 28(3) (e). -- 6 of 6 --