Chivers v State of Queensland [2012] QCAT 166

CITATION: Chivers v State of Queensland [2012] QCAT 166 PARTIES: Rebecca Louise Chivers v State of Queensland APPLICATION NUMBER: ADL024-10 MATTER TYPE: Anti-discrimination matters HEARING DATES: 14, 15, 16, 17,18, 21, 22, 24 and 25 November 2011 HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 10 April 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. State of Queensland must pay to Rebecca Louise Chivers compensation of $20,700. 2. Rebecca Louise Chivers must file written submissions on costs in the tribunal and send a copy to State of Queensland by 4pm on 27 April 2012. 3. State of Queensland must file written submissions in response on costs and send a copy to Rebecca Louise Chivers by 4pm on 11 May 2012. CATCHWORDS: ANTI-DISCRIMINATION – complaint of unlawful workplace discrimination based on impairment – where registered nurse not capable of working night shifts due to medical condition– where probationary period of employment extended – where employment not confirmed – where complaint of less favourable treatment – where complaint of term imposed that registered nurse working in 24/7 wards must be capable of working across all shifts – whether term reasonable – whether ability to work across all shifts was a genuine occupational requirement -- 1 of 34 -- 2 Anti-Discrimination Act 1991, ss 7(h), 10, 11, 15(1)(f), 25, 36, 108 Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56 Rawcliffe v North Sydney Central Coast Area Health Service [2007] FMCA 931 Queensland Health v Che Forest [2008] FCAFC 96 Qantas Airways Limited v Christie (1998) 193 CLR 280 Toganivalu v Brown & Department of Corrective Services [2006] QADT 13 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 APPEARANCES and REPRESENTATION (if any): APPLICANT: Rebecca Louise Chivers represented by Ms C Ronalds AM Senior Counsel and Mr J Merrill of Counsel instructed by Slater & Gordon RESPONDENT: State of Queensland represented by Mr J Murdoch Senior Counsel and Mr C Murdoch of Counsel instructed by Minter Ellison REASONS FOR DECISION [1] Louise Chivers achieved her goal at the end of 2007 when aged 33 she graduated from her university studies in nursing and was registered as a nurse. She commenced employment as a registered nurse with Queensland Health on 11 February 2008. She ceased that employment on 27 February 2009 when she resigned alleging that she had received less favourable treatment because of impairment arising from an acquired brain injury. [2] Ms Chivers has complained that the conduct of her employer amounted to direct and indirect discrimination under the Anti-Discrimination Act 1991 when decisions were made on three occasions to extend her probationary period rather than concluding her probation and when her employment was not confirmed because Ms Chivers could not work night shifts. Queensland Health (formally designated as State of Queensland in the proceeding but referred to as Queensland Health in these reasons) denies that the specified conduct amounts to unlawful discrimination. In order to analyse the issues raised by the parties I set out the factual context from which those issues arise. -- 2 of 34 -- 3 Facts [3] In common with other first year registered nurses employed at Ipswich Hospital, Ms Chivers was placed on a Beginning Nurse Transition into Practice Program which was to be about one year in duration. Beginning nurses were required to spend time in three rotations within the relevant Health Service District and Ms Chivers was allocated rotations in ward 7C at Ipswich Hospital, at Laidley Hospital and in ward 7D at Ipswich Hospital. [4] On 18 March 2008 she was rostered on a night shift and while carrying out her duties, she experienced severe headaches and nausea. The following night at work she again experienced these symptoms but on this occasion with vomiting. Ms Chivers ceased work part way through her shift due to her ill health. Ms Chivers was rostered for a third night shift for 20 March 2008 but she called in sick and did not attend work for any of that shift. [5] Ms Chivers sent an email on 20 March 2008 to the Nurse Educator at Ipswich Hospital, Christine Hollingum, who had responsibility for co- ordinating the Beginning Nurse Transition Program. In that email Ms Chivers disclosed the difficulties she had encountered on the night shifts, referred to a head injury she had sustained four years earlier and to medical advice she had received to stick to a simple routine and she raised a query as to whether there was a way in which she would not have to do night shifts.1 [6] In a meeting with Ms Hollingum later in March 2008 strategies for coping with the physical demands of night shifts were discussed. Ms Chivers sought medical advice from her general medical practitioner who prescribed anti-nausea mediation. [7] On 19 April 2008 Ms Chivers started a rostered night shift. Despite taking her anti-nausea medication and despite using suggested coping strategies, Ms Chivers experienced severe headaches, nausea and vomiting. She did not complete her night shift on 19 April 2008. She was rostered to work another night shift on 20 April 2008 but she was unable to work due to nausea. [8] Ms Chivers spoke to the Nurse Unit Manager of ward 7C, Jackie Mullen, to request that she be rostered off night shifts in that ward. As Ms Chivers had made plans to consult her neurologist, the request was not immediately actioned pending input from her medical specialist. Ms Chivers had been next rostered to work night shift on 10 May 2008 but did not do so as she took a day’s annual leave for unrelated personal reasons. [9] Ms Chivers consulted Dr Sandstrom, a neurologist, in late May 2008. Dr Sandstrom wrote a report dated 3 June 2008.2 In his report, Dr Sandstrom stated that Ms Chivers suffered with a medical affliction associated with myoclonus of the upper limbs and cyclical vomiting and 1 Exhibit H to affidavit of Rebecca Louise Chivers sworn 21 October 2010 – exhibit 2. 2 Exhibit 37. -- 3 of 34 -- 4 ataxia associated with a headache disorder, particularly during the early morning hours. Dr Sandstrom stated that he strongly endorsed a proposal that Ms Chivers avoid night shift duty at that time. [10] In a letter dated 4 June 2008 addressed to Melinda Parcell, Acting Director of Nursing at Ipswich Hospital, Ms Chivers enclosed a copy of the report of Dr Sandstrom.3 In her letter, Ms Chivers stated that a medical condition was affecting her during night duties. She stated that she had no symptoms during other shifts. She stated that she knew that the choices in her graduate year and in her future career may be affected. She asked Ms Parcell for support and guidance. [11] On 6 June 2008 Ms Parcell received an email from Lorelle Marco, the Acting Nurse Educator, who was temporarily replacing Ms Hollingum, forwarding the letter from Ms Chivers.4 In the email Ms Marco informed Ms Parcell that Ms Chivers would rotate to Laidley Hospital on 16 June 2008 and that Erica Fletcher at Laidley Hospital had agreed not to roster Ms Chivers on night duty at Laidley Hospital. Ms Marco stated that Ms Fletcher was unsure of the long term sustainability of such an arrangement. Ms Marco stated that the limitation of not working night duty would decidedly narrow the opportunities of placement for Ms Chivers. [12] In early June 2008 Ms Parcell sought advice from the Acting Manager Employee Relations at Ipswich Hospital, Kathryn White, as to the options available to the Hospital to respond to Ms Chivers’ situation. The options discussed were not confirming her employment at the end of her probation period, termination of her employment or an assessment of Ms Chivers’ ability to work night shifts by the Occupational Health and Safety team. It was a term of her employment, in common with other first year registered nurses, that Ms Chivers would be on probation for 6 months which could be extended for up to a further period of three months if specified outcomes of her role were not achieved. [13] On 25 June 2008 Ms White provided Ms Parcell with advice in an email that a meeting with Occupational Health and Safety should occur to determine the extent of Ms Chivers’ capacity to do night duty. Ms White stated that she was seeking legal advice as to whether Ms Chivers’ employment could be terminated during her probationary period. [14] In the meantime, Ms Chivers commenced her second rotation in the Beginning Nurse Transition Program on 16 June 2008 at Laidley Hospital. Ms Chivers was not rostered on night shifts at Laidley Hospital in response to her request. [15] On 3 July 2008 Ms Chivers attended a meeting with Ms Parcell. Also attending that meeting were Julie Kneen from the Occupational Health and Safety team and Narelle Smith, a representative from the Queensland Nursing Union for Ms Chivers. Ms Parcell informed Ms Chivers that her probation period would be extended while a process was conducted to clarify her ability to do night duty. On 22 July 2008 Ms 3 Exhibit J to affidavit of Rebecca Louise Chivers sworn 21 October 2010 – exhibit 2. 4 Exhibit MP3 to affidavit of Melinda Parcell sworn 24 February 2011 – exhibit 81. -- 4 of 34 -- 5 Kneen wrote to Dr Sandstrom seeking specific information to assist with Ms Chivers’ workplace health management.5 [16] By letter dated 29 July 2008 the Union wrote on behalf of Ms Chivers to Pam Lane, then the District Manager of the relevant Health Service District, alleging that a decision to extend the probation period would amount to a contravention of the Anti-Discrimination Act 1991 and requested that the extension of probation be revoked.6 [17] In a letter in response dated 6 August 2008, Ms Lane confirmed her intention to extend the probationary period for Ms Chivers for three months until 11 November 2008 while further medical evidence was obtained. Ms Lane described as an untenable situation for Queensland Health if Ms Chivers was permanently unable to work night duty shifts.7 [18] The Union sent to Ms Lane a copy of a report dated 4 August 2008 from Professor Richard Jackson, an endocrinologist, who was treating Ms Chivers.8 Professor Jackson stated that Ms Chivers had a head injury in 2004 and subsequently she had problems with intermittent myoclonus and a circadian problem of vomiting (persistent and intractable), ataxia and headache in the early hours of the morning, typically after am if she did not go to sleep before midnight to 1am. Professor Jackson stated that because of this debilitating condition, Ms Chivers cannot do night duty after 11p.m. to allow her time to get home and to bed before the symptoms begin. [19] Via her union, Ms Chivers objected to the decision to extend her probation and she subsequently lodged a complaint to the Anti- Discrimination Commission on 21 August 2008. [20] Dr Sandstrom wrote a report addressed to Ms Kneen dated 9 September 2008 and received at the Occupational Health and Safety Unit of Ipswich Hospital on 11 September 2008.9 Dr Sandstrom stated that Ms Chivers had suffered a closed head injury in 2004 and since that time she had suffered with intermittent myoclonus and a post traumatic headache disorder embracing substantial migrainous features. Dr Sandstrom stated that with medication the headache pattern had improved substantially and the myoclonic events were of lesser frequency. Dr Sandstrom stated that Ms Chivers did experience headaches and severe vomiting during the early morning hours. He supported the proposal that Ms Chivers should avoid working night shifts and stated that she was completely capable of participating in all appropriate nursing occupational activities during daylight and evening hours. [21] Neither Ms Kneen nor Ms Parcell considered this response to have answered the specific questions put to Dr Sandstrom. A verbal request for a more specific response was made to Dr Sandstrom’s rooms on 11 September 2008 with a written request sent on 5 February 2009. 5 Exhibit 51. 6 Exhibit PL-2 to affidavit of Pamela Lillian Lane affirmed on 24 February 2011. 7 Exhibit PL-4 to affidavit of Pamela Lillian Lane affirmed on 24 February 2011. 8 Exhibit 55. 9 Exhibit 38. -- 5 of 34 -- 6 [22] In mid October 2008 Ms Chivers was due to return to Ipswich Hospital on her third rotation in the Beginning Nurses Program but she was able to arrange to stay longer at Laidley Hospital. [23] On 4 November 2008 Ms Lane sent a letter, drafted by the Manager Employee Relations, to Ms Chivers.10 Ms Lane acknowledged that the probationary period would expire on 11 November 2008 and that she would have to make a decision about Ms Chivers’ ongoing employment with Queensland Health by that date. [24] Ms Lane stated that she was unable to confirm Ms Chivers’ employment as a graduate nurse on a permanent basis unless she was satisfied that Ms Chivers was willing and capable of carrying out all aspects of her position. Ms Lane stated that if it continued to be the case that Ms Chivers was unable to work night shifts as a graduate nurse because of her medical condition, then Ms Lane would not be able to confirm Ms Chivers’ employment on a permanent basis. [25] Ms Lane offered to extend Ms Chivers’ probation to 11 February 2009 if Ms Chivers agreed to this offer. Ms Lane explained that the extension of the probation was offered so that a resolution of Ms Chivers’ anti- discrimination complaint and the requirements of her role could be explored. [26] If the offer was not accepted by Ms Chivers, Ms Lane stated that she would be required to make a decision regarding Ms Chivers’ employment. In that event, Ms Lane required Ms Chivers to inform her whether Ms Chivers was willing and capable of performing night duty shifts and to provide Ms Lane with some medical advice that it was safe for Ms Chivers to perform night duty shifts. [27] Ms Chivers agreed to the extension of her probationary period to 11 February 2009 on the express basis that she reserved her rights to complain of continuing unlawful discrimination. [28] From 1 December 2008 Ms Chivers was working in ward 7D at Ipswich Hospital in her third rotation in the Beginning Nurses Program. She was not rostered to work night shifts during that rotation. [29] In December 2008 nurses in the Beginning Nurse Program were asked to indicate their preferences for placement after the end of the Program. Ms Chivers was not asked to state her preference for placement. [30] At a meeting on 20 January 2009 attended by Ms Chivers, Ms Smith from the Union, Ms Parcell and Ms White, Manager Employee Relations, Ms Parcell told Ms Chivers that Queensland Health wanted to extend her probationary period to 25 February 2009 in order to obtain further information about her medical condition. Ms Parcell indicated that she could not predict the outcome for Ms Chivers’ employment if the medical information placed restraints on her ability to work night shifts. 10 Exhibit PL-4 to affidavit of Pamela Lillian Lane affirmed on 24 February 2011. -- 6 of 34 -- 7 [31] On 4 February 2009 Ms Chivers was handed a letter from Ms Lane.11 Ms Chivers was asked to agree to an extension of her probationary period to 4 March 2009 so a medical report could be obtained from Dr Sandstrom. As a consequence, Ms Chivers’ probationary period was not concluded on or about 11 February 2009 and Ms Chivers was not given a placement where she would work at the conclusion of the Beginning Nurses Program. [32] On 20 February 2009 Ms Chivers gave a week’s notice of resignation from her employment effective from 27 February 2009.12 She stated that her decision to resign was because of the less favourable treatment she had received from Queensland Health as a consequence of her acquired brain injury which prevented her from working night shifts. [33] Dr Sandstrom sent a report dated 26 February 2009 to Ipswich Hospital.13 He stated that Ms Chivers was incapable of pursuing employment in night shift segments and that the duration of that incapacity was uncertain. Complaints of direct discrimination [34] Ms Chivers has made four complaints of unlawful discrimination against Queensland Health. Two complaints are of direct discrimination and another two complaints are of indirect discrimination. [35] The legislative basis for complaints of direct discrimination is found in section 10 of the Anti-Discrimination Act 1991 which provides that direct discrimination on the basis of an attribute occurs when less favourable treatment is accorded to a person with a specified attribute compared to the treatment that another person without the attribute receives in circumstances that are the same or not materially different. [36] Section 7 provides that one of the attributes that can be the basis for a complaint of discrimination under the Act is impairment. Section 8 provides that discrimination can relate to an attribute that a person is presumed to have by the person discriminating. Section 15(1)(f) provides that a person must not discriminate by treating a worker unfavourably in any way in connection with work. [37] The first complaint of direct discrimination is based on the conduct of Queensland Health in extending Ms Chivers’ probationary period beyond 11 August 2008. It is alleged that the extension decisions made on 6 August 2008, 4 November 2008 and 4 February 2009 were in breach of the Anti-Discrimination Act 1991 because in deciding to extend Ms Chivers’ probation, Queensland Health was treating Ms Chivers unfavourably in connection with work. [38] The second complaint of direct discrimination is based on the conduct of Queensland Health in refusing to conclude Ms Chivers’ probationary period. It is alleged that by refusing to conclude Ms Chivers’ probation, Ms Chivers was not appointed as a permanent employee by Queensland 11 Exhibit PL-7 to affidavit of Pamela Lillian Lane affirmed on 24 February 2011. 12 Exhibit T to affidavit of Rebecca Louise Chivers sworn 21 October 2010. 13 Exhibit 39. -- 7 of 34 -- 8 Health in breach of the Anti-Discrimination Act 1991 because Ms Chivers was treated unfavourably in connection with work. [39] There appears to be no dispute Ms Chivers’ probationary period was extended beyond 11 August 2008 arising from decisions made by Queensland Health on 6 August 2008, 4 November 2008 and 4 February 2009. Ms Chivers had agreed, under expressed protest, to the extension from 11 November 2008 to 11 February 2009. Drawing an inference from Ms Chivers signing a consent form to obtain medical evidence on 4 February 2009, I am satisfied that she had similarly agreed to a further short period of extension of the probationary period from 11 February 2009. [40] The issues to determine in the complaint of direct discrimination on the basis of impairment are whether at the relevant time Ms Chivers had an impairment and if so, whether she, as a person with an impairment, was treated unfavourably in connection with work in relation to her probation. Impairment [41] Ms Chivers sustained a closed head injury in January 2004. Ms Chivers contended that as a result of the brain injury, she experienced conditions described as myoclonus of her upper limbs, cyclical vomiting, ataxia associated with a headache disorder, chronic daily headache disorder and a seizure disorder.14 Ms Chivers further contended that the brain injury and the other conditions are impairments within the meaning of section 7(h) of the Anti-Discrimination Act 1991. [42] Queensland Health has admitted those particular contentions.15 [43] Medical evidence was presented about the medical conditions exhibited by Ms Chivers. Both Dr Sandstrom and Professor Jackson reported and accepted the presence of the particular conditions described in paragraph 41. Both of these medical specialists attributed those conditions to the head injury sustained by Ms Chivers in 2004. Both Dr Sandstrom and Professor Jackson were of the opinion that Ms Chivers was prevented from working night shifts because of her headache disorder. [44] Further medical evidence was given by Dr Cameron. In a report dated 30 June 2009 Dr Cameron reported that Ms Chivers suffered headaches which particularly trouble her at night time when she has to work in the early hours of the morning, she had had low-level headaches at times during the day and she had developed jerking in her right arm. Dr Cameron expressed the opinion that Ms Chivers was experiencing focal motor epileptic activity causing right arm jerking. [45] He referred to Ms Chivers having a problem with what he described as her rather unusual headaches she had in the early hours of the morning when she worked. Dr Cameron could not relate that problem to any head injury she suffered in 2004. He described this feature as a peculiarity to Ms Chivers. Dr Cameron expressed the opinion that Ms 14 Paragraph 3 of the contentions of Rebecca Louise Chivers. 15 Paragraph 1 of the response of Queensland Health. -- 8 of 34 -- 9 Chivers was capable of full time work as a registered nurse providing she did not have to do night shifts.16 [46] Dr Cameron provided a further report dated 26 May 2010.17 Dr Cameron reported that he could not find any evidence on his assessment to suggest that Ms Chivers has any residual impairment related to her closed head injury. Despite reporting a lack of objective diagnostic evidence, he accepted that there was a possibility that Ms Chivers was experiencing mild focal partial seizures as head injuries of the type sustained by Ms Chivers were associated with a high incidence of post-traumatic epilepsy. [47] Dr Cameron also reported that Ms Chivers used to suffer from migraine headaches if she worked late night shifts. He again described this feature as unusual. Dr Cameron expressed the opinion that the severe headache disorder accompanied by vomiting and a feeling of being unwell would appear to prevent her from participating in night shift activity. [48] While Dr Cameron differed in his opinion from Dr Sandstrom and Professor Jackson as to the aetiology of the headache disorder, he accepted that Ms Chivers had had headaches when working night shifts. Dr Cameron in his written and oral evidence expressed the opinion that these headaches were migraine headaches while Dr Sandstorm and Professor Jackson considered the headaches were the result of her head injury. The cause of the headaches is however not a relevant issue to be decided in this complaint. [49] All three medical experts expressed the opinion that Ms Chivers could not work night shifts while she had this severe headache disorder. [50] I accept the evidence that at the times relevant to her complaint, Ms Chivers suffered from a severe headache disorder that was accompanied by feelings of nausea and at times vomiting. I accept the evidence that the severe headache disorder prevented Ms Chivers from working in the early hours of the morning. I find that the severe headache disorder prevented Ms Chivers from working shifts for Queensland Health that included the early hours of the morning. [51] I am able to conclude from the evidence that the severe headache disorder exhibited by Ms Chivers was an impairment in terms of the definition of impairment in the schedule to the Anti-Discrimination Act 1991 in that there was a malfunction of her body in the manner in which the headache disorder caused severe head pain, nausea and vomiting. For the purposes of her complaint I find that Ms Chivers was a person with an impairment during the period relevant to her complaint. Whether treatment amounted to less favourable treatment [52] When Ms Chivers commenced employment with Queensland Health she entered into a contract of employment. Terms of the contract of employment were contained in a letter of offer dated 24 December 2007 16 Exhibit 78. 17 Exhibit 79. -- 9 of 34 -- 10 to which was attached several documents including a form entitled “General Terms and Conditions of Employment”.18 [53] One of the terms imposed a period of probation. The letter of offer stated: “A probation period of six months will apply to your appointment. A possible extension of up to a further three months may occur if specified outcomes of your role are not achieved.” The General Terms and Conditions of Employment stated: “If your appointment is permanent your appointment letter will indicate your probationary period. During this probationary period, your supervisor will discuss with you his/her expectations about the roles and responsibilities relating to your position. If you do not meet performance expectations, your probationary period may be extended once only by three (3) months or a recommendation may be made to terminate your employment.” [54] Ms Chivers accepted the offer of employment and in doing so she accepted the terms and conditions of that employment, including the probation term. Her employment was subject to that term. One of the effects of an employee being on probation is that the legal protections against termination are less stringent than in the case of employees not on probation. [55] Ms Chivers was allocated to work in ward 7C at Ipswich Hospital in her first rotation in the Beginning Nurses Program in February 2008. The nurses in that ward worked on a continuous shift basis as the ward operated on a 24 hour/7 days a week basis. [56] The General Terms and Conditions of Employment, to which Ms Chivers was subject, stated: “In accordance with current Award conditions, all employees working on a continuous shift basis may be required to work all shifts on a roster. These shifts may vary in length across a 24 hour period, Monday to Sunday inclusive. Following consultation with relevant unions, an employee may be required to participate in new or varied roster arrangements including 24 hour shift work, on-call and weekend rosters”. [57] An evaluation of that express term of employment reveals that the obligation on certain specified employees (employees working on a continuous shift basis) to work all shifts on a roster, including night shifts, is not an absolute obligation. The obligation only arises when an employee is required by the employer to work all shifts on the roster. [58] I am satisfied that Queensland Health as the employer had authority from the terms of employment to make such a requirement of certain specified employees. Upon an employee being required to work all shifts on a roster, Queensland Health would properly have an expectation that the employee performed work on all shifts on the roster. [59] Cross examination of management witnesses from Queensland Health established to my satisfaction that none of the formal written documents recording the terms of Ms Chivers’ contract of employment contained the requirement that she had to work all shifts on a roster. However, that 18 Exhibits E of the Affidavit of Rebecca Louise Chivers sworn 21 October 2010. -- 10 of 34 -- 11 does not lead in my view to an inevitable conclusion that no such requirement had been made of Ms Chivers to work all shifts. To the contrary, I am satisfied that the evidence reveals that a requirement had been made of Ms Chivers to work all shifts and that the requirement is to be found in the roster itself. [60] Responsibility for devising the roster for ward 7C was given to the Nurse Unit Manager. Under the Nurses (Queensland and Public Hospitals) Award 2004, which had been incorporated into the Nurses (Queensland Health) Certified Agreement 2006, a Nurse Manager had the delegated responsibility of allocating and rostering staff for their work unit.19 Jackie Mullen, the Nurse Unit Manager for ward 7C in 2008, devised a roster which contained day, afternoon and night shifts. [61] Ms Mullen gave evidence that all staff working on ward 7C, except herself as Nurse Unit Manger and the Clinical Development Facilitator, were rostered to work night shifts.20 Graduate nurses, by the end of their first fortnight, were included in the roster as part of the standard continuous nursing care delivered in the ward.21 Ms Mullen rostered graduate nurses on night shifts.22 [62] It was a consequence of being rostered for work on ward 7C that Ms Chivers was required by Queensland Health, through the actions of the Nurse Unit Manager of ward 7C, to work all shifts on the roster including night shifts. The evidence clearly establishes that Ms Chivers was required, and was rostered, to work night shifts in ward 7C.23 [63] In being rostered to work shifts, Ms Chivers was treated in the same manner as other graduate nurses working in wards operating on a 24 hour/7 day a week basis at Ipswich Hospital. However circumstances rapidly changed for Ms Chivers after it became clear to her that she could not work night shifts because of her impairment. [64] A favourable adjustment was made for Ms Chivers from June 2008 when she commenced her rotation in the Beginning Nurse Program at Laidley Hospital. According to the Director of Nursing at Laidley Hospital, graduate nurses were required by the rostering arrangements at that hospital to work across all shifts.24 Ms Chivers was not rostered to work night shifts at Laidley Hospital because of her impairment. [65] Then in August 2008 Queensland Health made the decision not to confirm Ms Chivers’ employment but to extend her probation for three months to 11 November 2008.25 I am satisfied that the evidence establishes that this decision was made because it was accepted that 19 Exhibit MP-11 to the affidavit of Melinda Parcell sworn 24 February 2011. 20 Paragraphs 27 and 28 of the affidavit of Jackie Mullen affirmed on 24 February 2011. 21 Paragraph 15 of the affidavit of Jackie Mullen affirmed on 24 February 2011. 22 Paragraph 35 of the affidavit of Jackie Mullen affirmed on 24 February 2011. 23 Paragraphs 20,30 and 33 of the affidavit of Rebecca Louise Chivers sworn 21 October 2010. 24 Paragraphs 17-33 of the affidavit of Erica Fletcher sworn 25 February 2011. 25 Exhibit PL-3 to the affidavit of Pamela Lillian Lane affirmed 24 February 2011. -- 11 of 34 -- 12 Ms Chivers could not work night shifts at that time because of her impairment.26 [66] I am satisfied that, in a preceding discussion on 3 July 2008, Ms Parcell, the then Acting Director of Nursing at Ipswich Hospital, had stated that graduate nurses must work all shifts on a roster including night shifts. This statement by Ms Parcell was not just an expression of personal opinion. It was the first formal occasion when a person in a supervisory position over Ms Chivers had specified to her that working night shifts was a performance outcome that as a graduate nurse she was expected to achieve. It was also made clear in that discussion that if Ms Chivers did not meet that performance expectation, her employment could be terminated.27 Extension of probation for failure to achieve specific performance outcomes was permitted by her contract of employment. [67] Ms Chivers did not achieve the specified performance outcome of working night shifts by the end of the extended period of probation in November 2008. Similarly she did not achieve that outcome by the end of the second period of extended probation in early February 2009 nor before she resigned from her employment later in February 2009. The inference that could be drawn from medical evidence made available to Queensland Health from June 2008 to February 2009 was clear: Ms Chivers could not achieve that particular performance outcome during her probationary period (either original or extended) as she was not able to work night duty because of her impairment. [68] The evidence given to the tribunal was that no other nurse apart from Ms Chivers in the Beginning Nurse Program at the Ipswich Hospital in 2008 had their probation extended or did not have their employment confirmed after completing six months of probation. It would appear a reasonable inference to draw that no other graduate nurse in the Program faced summary termination of their employment for not working night shifts. [69] As a matter of fact it can be found that Ms Chivers was treated differently from the other nurses on the Program. More specifically, I am satisfied that the evidence has established that Ms Chivers was treated less favourably than the other graduate nurses on the Program in 2008 and early 2009 employed at the Ipswich Hospital whose employment was not left at risk of summary termination. Whether there was direct discrimination [70] However, those findings by themselves do not result in a conclusion as a matter of law that discrimination has occurred. A further element in section 10 of the Anti-Discrimination Act 1991 must also be found: whether less favourable treatment had occurred compared to the treatment that another person without an impairment would receive in circumstances that are the same or not materially different. This 26 Paragraphs 8-13 of the affidavit of Pamela Lillian Lane affirmed 24 February 2011, paragraph 25 of the affidavit of Kathryn White affirmed 24 February 2011 and paragraph 36 of the affidavit of Melinda Parcell sworn 24 February 2011. 27 Paragraph 29 of the affidavit of Melinda Parcell sworn 24 February 2011 and paragraphs 27 -35 of the affidavit of Narelle Smith affirmed 24 May 2011. -- 12 of 34 -- 13 exercise requires a comparison of the treatment in the actual and in the hypothesised case.28 [71] The relevant circumstance in this case for the purposes of comparing the treatment afforded to Ms Chivers with that of a person without an impairment must be that the comparator person cannot work night shifts. As there was no evidence that in the 2008 Beginning Nurses Program another graduate nurse could not work night shifts, the hypothesised comparator has to be a notional person rather than an actual person. [72] In her submissions to the tribunal, Ms Chivers described a suitable comparator as a graduate nurse who had family or carer’s responsibilities and who could not work night shifts. She submitted that such a comparator would have had their employment confirmed at the end of their probation. I do not agree with that submission as the evidence is actually to the contrary. [73] Kathryn White, a senior workplace relations consultant, gave evidence on behalf of Queensland Health that she had recommended an extension of Ms Chivers’ probation in order to avoid Ms Chivers’ employment being confirmed when she could not work night shifts. Ms White’s evidence was that she would make a similar recommendation in relation to any employee if they were not able to perform the requirements of the role for which they were engaged.29 This evidence was not rebutted by Ms Chivers. [74] I am satisfied from the evidence presented on behalf of Queensland Health that consequences would follow should circumstances arise where a graduate nurse (without an impairment) on probation was not able to work night shifts. I am satisfied that those consequences would include the options of extending probation to work through the issue and ultimately not confirming that person’s employment at the end of the probationary period. [75] As a result, I cannot conclude that Ms Chivers was treated less favourably than a person without an impairment would have been treated in circumstances that were the same or not materially different to the circumstances experienced by Ms Chivers. [76] I am unable to conclude that the decisions to extend Ms Chivers’ probation and not to confirm her employment amounted to direct discrimination in terms of the Anti-Discrimination Act 1991. Complaints of indirect discrimination [77] Ms Chivers has complained that the actions of Queensland Health in the decisions made on 6 August 2008, 4 November 2008 and 4 February 2009 amount to indirect discrimination. [78] Section 11(1) of the Anti-Discrimination Act 1991 sets out the features that must be proven in order to establish that there has been indirect discrimination on the basis of an attribute: a person imposes a term, the 28 Boehringer Ingelheim Pty Ltd v Reddorp [1984] 2 NSWLR 13 at page 19. 29 Paragraph 26 of the affidavit of Kathryn White affirmed 24 February 2011. -- 13 of 34 -- 14 term is one with which a person with an attribute is not able to comply, the term is one with which a higher proportion of people without the attribute are able to comply and the term is not reasonable. [79] It is submitted on behalf of Ms Chivers that Queensland Health imposed a term onto Ms Chivers’ employment that in order for her to continue working as a registered nurse at Ipswich Hospital she had to work night shifts. It is further submitted that an additional term was imposed that in order for Ms Chivers’ probation to be concluded she had to work night shifts. [80] The evidence disclosed that an express mandatory requirement in either of these terms is not found in the formal written terms and conditions of employment of Ms Chivers. However Queensland Health had the authority, derived from the terms and conditions of employment, to require Ms Chivers to work night shifts if she was working on a continuous shift basis. I have already found that such a requirement was made of Ms Chivers.30 [81] The reason for imposing the requirement to work night shifts was explained during the hearing. It was the case presented by Queensland Health that the Ipswich and Laidley Hospitals operate on a 24/7, 365 days per year basis. It was submitted that the hospitals require a competent, trained nursing cohort to work in 24/7 wards continuously i.e. on each hour, on each day of the year. To meet the operational needs of 24/7 wards, registered nurses are required to work a three eight hour shift continuous roster over seven days of the week. [82] Queensland Health submitted that an inability to work any of the three shifts on each day of the roster was incompatible with the roster. However the roster contained measures to accommodate individual preference requests, shift swapping and changes to respond to temporary health and domestic circumstances. Queensland Health submitted that it had reserved to its nursing managers the right to have the final say on whether a particular flexibility request can be accommodated and if so, for what period of time. [83] Queensland Health argued that Ms Chivers’ inability to work night shifts, which I have found to have been the case,31 was a barrier to her participation in those wards operating on a 24/7 continuous roster basis for nurses. Identifying the term imposed term by Queensland Health [84] Ms Chivers in her contentions asserts that the term imposed by Queensland Health on her employment should be identified as follows: that in order for her to continue working as a registered nurse at Ipswich Hospital she had to work night shifts and that in order for her probation to be concluded she had to work night shifts. [85] Queensland Health disputes that the term actually imposed on Ms Chivers’ employment can be correctly identified using those words. It is 30 Paragraph 62. 31 See paragraph 50. -- 14 of 34 -- 15 contended by Queensland Health that the relevant term was qualified as applying to registered nurses who were rostered in 24/7 wards and did not apply to all nursing employees at the Ipswich Hospital or in the Health Service District. [86] I accept that the qualification put forward by Queensland Health is correct. Evidence presented to the tribunal established that there were nursing roles in the Ipswich Hospital and in the District which did not require registered nurses to work on a continuous 24/7 roster. Such roles are to be found in day surgery, antenatal clinics, oncology, outpatient clinics, radiology, early pregnancy loss clinic and community health clinics.32 Registered nurses employed in those roles were not subject to a term requiring them to work night shifts. [87] Ms Chivers was working throughout her time in the Beginning Nurses Program in 24/7 wards at Ipswich Hospital and in a 24/7 environment at Laidley Hospital. t was central to the decisions made to extend her probation and not to confirm her employment that Ms Chivers was working at all times relevant to those decisions in a 24/7 environment. [88] I am satisfied that the proper description of the term imposed by Queensland Health was that Ms Chivers as a registered nurse had to be able to participate in the rostering system in place for registered nurses engaged in roles that provided 24 hour care seven days a week. Whether Ms Chivers could comply with the term [89] Ms Chivers contends that she could not participate in the rostering system which required her to work night shifts. his contention is disputed by Queensland Health on the basis that the actual attempts by Ms Chivers to work night shifts in 2008 during the Beginning Nurse Program were not sufficiently extensive to result in a reliable conclusion that she could not comply with the employer’s requirement. [90] The evidence establishes that Ms Chivers completed a night shift on 18 March 2008 but worked part only of a night shift on 19 March 2008 and on 19 April 2008. She had been unable to complete the shifts on 19 March 2008 and 19 April 2008 due to the presence of severe headaches, nausea and vomiting. She was unable to work at all on her rostered night shift on 20 April 2008 due to continuing symptoms of headaches and nausea. [91] Queensland Health submit that it was not unusual for nurses to complain of migraines and nausea when starting out on night shifts. Mary Hollingum, who was the co-ordinator of the Beginning Nurses Program in 2008, had advised Ms Chivers in late March 2008 to use some strategies commonly adopted by nurses to reduce adverse symptoms experienced on night shifts. Ms Chivers gave evidence that despite following this advice in April 2008 she still experienced severe and debilitating symptoms when working night shifts. [92] Nowhere in Ms Hollingum’s evidence is there any acknowledgment that in late March 2008 she proffered her advice with the understanding that 32 Paragraph 30 of the affidavit of Pamela Lillian Lane affirmed 24 February 2011. -- 15 of 34 -- 16 Ms Chivers had sustained a head injury, that Ms Chivers was under the care of a neurologist and that Ms Chivers had been advised by her neurologist not to get over tired and to stick to a simple routine to avoid episodes of ill health of the type experienced in mid March 2008.33 [93] In fact Ms Hollingum under cross-examination gave evidence that she had not known at the time of the meeting in late March 2008 that Ms Chivers had had a head injury. Ms Hollingum could not recall when she had read the email sent to her by Ms Chivers on 20 March 2008 which had contained information about her head injury and advice from her neurologist. She conceded it could have been after their meeting which would be consistent with her oral evidence that she had not known at that meeting that Ms Chivers had had a head injury or had some impairment. [94] I do not accept that the severe ill heath symptoms experienced by Ms Chivers can be equated with difficulties said to be commonly experienced by nurses when starting to work night shifts. Neither Ms Hollingum nor Erica Fletcher, who both had discussed with Ms Chivers ways of overcoming difficulties with night duty, had known at the times of their discussions with her that she had had a head injury and that injury had been attributed as the cause of the development of her severe symptoms. [95] The evidence does not support the suggestion that Ms Chivers could have attempted to work through her difficulties in order to ascertain to a better degree of certainty whether she could or could not work night shifts. I am satisfied that the attempts made by Ms Chivers in March and April 2008 were enough to warrant medical support being sought to excuse her from night shifts. That medical advice was provided by her treating specialists in neurology and endocrinology and was informed by their clinical knowledge of Ms Chivers over a relatively extended period of time. [96] Queensland Health has submitted that the medical evidence did not draw a persuasive link between Ms Chivers’ impairment and an inability to work night shift. Based on the findings of fact I have already made, that submission is rejected. A related submission was made that the medical evidence did not allow a conclusion to be drawn that Ms Chivers was permanently unable to work night shifts because of her impairment. That submission is not relevant to the issue of whether Ms Chivers was able or was not able to work night shift when the decisions she has complained of were made about her employment on 6 August 2008, 4 November 2008 and 4 February 2009. [97] I am satisfied that the evidence of Ms Chivers as to the severity of her ill health symptoms experienced during night shifts and the medical evidence that her severe headache disorder prevented Ms Chivers from working night shifts for Queensland Health has established on the balance of probabilities that she had not been able to comply with the 33 Exhibit MCH-6 to the affidavit of Mary Christine Hollingum affirmed on 24 February 2011. -- 16 of 34 -- 17 requirement of her employer that she participate in the in the rostering system in place for registered nurses engaged in roles that provided 24 hour care seven days a week from 20 March 2008 to her resignation on 27 February 2009. Whether a higher proportion of people without impairment could comply [98] Consideration of the issues in section 11(1)(b) of the Anti-Discrimination Act 1991 involves mixed questions of law and fact. Case law authorities involving the application of statutory provisions similar to section 11(1)(b) establish the need to identify two groups: the comparator group and the base group. [99] In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ considered that a similar provision in federal legislation required an exercise which will ascertain whether the particular attribute is significant to compliance with the requirement in question.34 Their Honours considered that the base group which is appropriate to that exercise will vary according to the context in which the requirement is imposed. [100] Counsel for Ms Chivers urged the tribunal to adopt as the base group either the entire nursing cohort at Ipswich Hospital at the times when the decisions complained of were made or alternatively the entire nursing cohort employed by Queensland Health in the Health Service District in which Ipswich Hospital was placed on those same dates. [101] Counsel for Queensland Health disputed that approach. t was submitted that the base group as well as the comparator group need to be defined in a way that is relevant to the imposition of the term and to include people to whom the term has practical relevance. It was submitted that the base group cannot be all nurses employed in Ipswich Hospital or the Health Service District as the term in this case is not relevant to all nurses as not all nurses were required to work night shifts. [102] That submission has merit but only to a limited extent. I accept the submission that it would be incorrect to define the base group as the entire nursing cohort in the Health Service District as nurses in that wide cohort work within hospitals, community health clinics, mental health clinics and in various other administrative roles as well as in clinical roles. The number of nurses working in areas outside hospitals was not disclosed. There was no evidence that nurses working outside hospitals would work in areas requiring 24/7 rostering. The evidence given to the tribunal was that 24/7 rostering arose to meet the demands of hospital wards catering to the continuous care of inpatients. [103] The imposition of the term would not be of relevance to every member of the District nursing cohort. Using that cohort as the base group would not reliably ascertain whether the particular attribute in Ms Chivers’ case is significant to compliance with the term in question. [104] However, I am satisfied that the evidence presented to the tribunal supports the cogency of defining the base group as the entire nursing cohort of Ipswich Hospital. Queensland Health provided data from its 34 [1989] HCA 56 at paragraph 17 of joint reasons of Deane and Gaudron JJ. -- 17 of 34 -- 18 records identifying the number of nursing staff at Ipswich Hospital paid in the fortnights which included 6 August 2008, 4 November 2008 and 4 February 2009. [105] That data included nurses working in units that did not run a night shift. However, according to the evidence of Ms Lane, none of those units at the Hospital used a large number of staff.35 I consider that the evidence presented to the tribunal leads me to be satisfied that the number of nurses at Ipswich Hospital who did not have a requirement to work night shift is not material when calculating the proportions in section 11. The effect of including nurses at Ipswich Hospital in the base group who worked in areas where there were no night shifts would be immaterial to the outcomes of the calculations. [106] According to the data, at Ipswich Hospital 691 nurses worked in the fortnight containing 6 August 2008, 684 nurses worked in the fortnight containing 4 November 2008 and 688 nurses worked in the fortnight containing 4 February 2009. I am satisfied that this data can be used to quantify the base group. [107] It was submitted by Queensland Health that a base group defined as the nurses at Ipswich Hospital would inevitably contain those nurses whose employment had been impacted on by Queensland Health’s rostering principles over the years and that having regard to the application of its rostering principles, all or the majority of nurses in 24/7 wards would be able to work night shift. It was submitted that to reach a realistic assessment of the effect of the term, the calculations must be conducted using groups that did not inadvertently incorporate the effect of any past discriminatory practices. [108] Such an argument would have cogency in cases where there was evidence that past discriminatory practices had removed nurses who did not work across all shifts from employment at the hospital. There was no evidence presented to the tribunal to support the existence of such an impact in this case. To the contrary, evidence was presented which had identified particular nurses who did not work across all three shifts for long periods of time and who were able to continue in their employment under the rostering principles in place at the times relevant to this complaint.36 [109] I am satisfied that the base group in this case does not have to be filtered in some way to counteract the purported impact of past discriminatory practices as the evidence does not convince me that such an impact is either real or significant. I quantify the base group as the average of the nurses paid for working at Ipswich Hospital in the fortnights set out in paragraph 106. The base group is 688 nurses. [110] Unfortunately the data held by Queensland Health did not reveal the specific statistical data useful for a section 11 exercise, namely the number of nurses with an impairment employed at Ipswich Hospital during the relevant fortnights. Data about impairment in the nursing 35 Paragraph 32 of the affidavit of Pamela Lillian Lane affirmed 24 February 2011. 36 In particular Candace Jeremiah, Barbara Richardson, Kathryn Plews. -- 18 of 34 -- 19 cohort is not generally collected and could not be provided to the tribunal by either Ms Chivers or by Queensland Health. [111] Data may however be collected (but was not presented at the hearing) about temporary impairment caused by illness or injury as incidental to data collected about sick leave or WorkCover leave. In cases of temporary impairment, nurses may be rostered off some shifts until they are fit to return to full duty. There was no evidence from Queensland Health that could identify the extent of a cohort comprised of nurses temporarily unable to work all shifts at the times relevant to this case. There was evidence from Kathryn White that the rehabilitation of nurses in such a cohort was actively undertaken by Queensland Health. There was evidence that if rehabilitation failed to return a nurse to full duties, consequences may follow including termination of employment.37 [112] The quantification of the comparator group (nurses with an impairment) would in my view have to exclude nurses who are on rehabilitation as that cohort is not expected to participate fully in the rostering system until the conclusion of their rehabilitation period. The absence of accurate and specific data about the number of nurses with an impairment makes the identification of the comparator group for section 11 purposes quite difficult. Queensland Health has submitted that this difficulty leads to one result: a failure by Ms Chivers to prove this issue of her case. [113] I do not accept that submission. As Federal Magistrate Smith observed in Rawcliffe v Northern Sydney Central Coast Area Health Service38, it is not uncommon in discrimination cases for there to be a lack of statistical evidence about issues raised by statutory provisions such as section 11 of the Anti-Discrimination Act 1991. [114] It would be inappropriate to insist invariably on the presentation of statistical evidence in every case in order to prove each element of a complaint of indirect discrimination. As Black CJ of the Federal Court stated in Queensland Health v Che Forest: In some instances the required disproportional impact may be established as a matter of inevitable inference.39 I am satisfied that the evidence lead in this case can reasonably reveal whether there was a disproportional impact without reliance on statistical information. [115] I come to this satisfaction within the context of the QCAT Act: namely that the tribunal must act fairly and according to the substantial merits of the case.40 QCAT may inform itself in any way it considers appropriate.41 There was evidence that directly contributes to a fair comparison between the nurses without an impairment who can participate fully in the roster and the nurses with an impairment who cannot participate fully in the roster. 37 See affidavit of Kathryn White affirmed 24 February 2011. 38 [2007] FMCA 931. 39 [2008] FCAFC 96 at paragraph 8. 40 Section 28(2) of the QCAT Act. 41 Section 28(3)(c) of the QCAT Act. -- 19 of 34 -- 20 [116] Evidence was given by 7 witnesses for Queensland Health42 who were knowledgeable about issues related to rostering of nursing staff at Ipswich Hospital and who were personally aware of cases where nurses with impairments participated in the rostering system in place for registered nurses engaged in roles that provided 24 hour care seven days a week at Ipswich Hospital. Despite extensive cross-examination, the evidence of these witnesses revealed that apart from Ms Chivers, the only other nurses likely to be in this category were Candice Jeremiah, Barbara Richardson, Kathryn Flews and a midwife Ms O’Donald.43 The instances of other nurses who were not participating fully in the roster identified in the affidavit material were able to be distinguished as not being relevant to the issues in this case. [117] I consider that an inevitable inference can be drawn from the extensive evidence presented over 9 days of hearing that the comparator group must properly be identified as these five persons. [118] The evidence suggests that Ms Richardson and Ms Flews may have been able to work across all shifts on limited occasions but the evidence presented was that Ms Jeremiah, Ms McDonald and Ms Chivers were not able to work night shifts. [119] I find that the proportion of nurses without an impairment in the base group who can participate in the rostering system in place for registered nurses engaged in roles that provided 24 hour care seven days a week at Ipswich Hospital is higher than the proportion of nurses with an impairment who can similarly participate in that rostering system. As explained by Black CJ in Queensland Health v Che Forrest: Discrimination occurs if the requirement or condition impacts more severely upon persons with a disability than it does upon persons without the disability. Since the requirement or condition may impact upon both groups, the Act requires reference to the proportionate impact and a consideration of whether "a substantially higher proportion of persons without the disability" can or are able to comply.44 Whether the term is reasonable [120] According to section 11 of the Anti-Discrimination Act 1991, a term that is found to have a disproportionate impact on those persons with an impairment may be lawful if in all the relevant circumstances of the case the term is reasonable. Queensland Health has the burden of proving that the term in this case was reasonable.45 [121] Case law has established that the test of reasonableness is an objective test which requires the tribunal to weigh the nature and extent of the discriminatory effect against the reasons advanced in favour of the term46; the question is not whether the decision to impose the term was 42 Pamela Lane, Kathryn White, Christine Hollingum, Jacqueline Mullen, Judy Blinco, Rosie Laidlaw and Melinda Parcell. 43 Evidence of Kathryn White on 17 November 2011 referred to Ms O’Donald. 44 [2008] FCAFC 96 at paragraph 7. 45 Section 205 of the Anti -Discrimination Act 1991. 46 Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342. -- 20 of 34 -- 21 correct but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case47. [122] It was a direct consequence of Queensland Health imposing the term on Ms Chivers’ employment that she had to be able to participate in the rostering system in place for registered nurses engaged in roles that provided 24 hour care seven days a week that her probation was extended beyond 6 months in duration and she was not confirmed in her employment prior to the end of the Beginning Nurses Program. The effect on Ms Chivers was marked: the continuation of her employment was at risk and she had not been offered a permanent role by Queensland Health. [123] This effect was not illusory: Ms Lane had written in August 2008 that it was an untenable position for Queensland Health if Ms Chivers was permanently unable to work night duty shifts.48 By November 2008 Ms Lane had written that if Ms Chivers was unable to work night shifts because of her medical condition, Ms Lane would not be able to confirm Ms Chivers’ employment on a permanent basis.49 I am satisfied that via these letters and via oral communications with Ms Parcell it had been made clear to Ms Chivers that her employment was likely to be terminated if she could not comply with the term imposed on her employment by Queensland Health. [124] Much of the evidence given to the tribunal from witnesses called by Queensland Health sought to convince the tribunal that the decision to impose the term was a correct decision. Evidence was given that in order to staff each shift with a nursing skill mix which delivers optimal patient care, there must be a shift roster in each of the 24/7 wards. Evidence was given that rostering is a sensitive and complex process and based on principles that adhere to applicable industrial provisions, ensure equitable distribution of nurses across all shifts, ensure effective leave planning, respond to staff requests on an equitable basis, permit swapping of shifts, allow for flexibility when staff circumstances require and reflect health and safety obligations to staff.50 [125] It was submitted by Queensland Health that there is nothing inherently unreasonable about a requirement which reserves to the employer the right to exercise judgement as to compliance with and participation in a rostering system. That submission is quite correct. However the manner in which the employer’s judgement is exercised must not be unreasonable in the given circumstances of a case. The right given to the employer is not unlimited but must be tempered by factors of reasonableness. [126] The evidence from expert witnesses as to nursing practices and rostering as well as the evidence from witnesses employed by 47 Australian Medical Council v Wilson (1996) 68 FCR 46. 48 Exhibit PL-4 to affidavit of Pamela Lillian Lane affirmed on 24 February 2011. 49 Exhibit PL-4 to affidavit of Pamela Lillian Lane affirmed on 24 February 2011. 50 See Rostering Framework – Best Practice Framework for Rostering Nursing Personnel as exhibit DS-2 to the affidavit of Diana Elizabeth Schmalkuche sworn 10 March 2011. -- 21 of 34 -- 22 Queensland Health establish in my view a finding that the rostering principles relied on by Queensland Health were appropriate for the arrangement of nursing care in a 24/7 hospital environment. [127] However this case requires an examination of whether the rostering system is nevertheless having the effect of disadvantaging persons with impairment. Focus must be given to the particular impact that the rostering system had on Ms Chivers and whether the terms or conditions that are found in the rostering system are objectively reasonable for persons with impairment. In terms of section 11, all the relevant circumstances of the case must be taken into account when assessing reasonableness of the term. There must be a weighing of the nature and extent of the discriminatory effect of the term against the reasons advanced in favour of the term. [128] The impact of the term for Ms Chivers as a person with an impairment was the vulnerability that the term had on the continuation of her employment. This level of impact was likely to be much more significant on Ms Chivers than on her ward team members. Her continued employment was put at risk. Her ward team members would have experienced the impact of an increased incidence of night shifts when Ms Chivers was rostered off night duty. [129] According to the Nurse Unit Manager, nurses in ward 7D in late 2008 would have had to work 1 or 2 extra night shifts per year to cover for Ms Chivers not working night shifts and if a relief pool nurse was not used to replace her shifts.51 The impact of the term, assessed in comparison with the other nurses in the ward working with Ms Chivers, was much more detrimental for Ms Chivers than for her co-workers.52 [130] Queensland Health relies on the evidence of the expert witnesses and its senior staff to argue that accommodating a request by a nurse to be permanently relieved of night duty is unlikely to be possible. The expert evidence from Bernadette Watson referred to the existence of dynamic factors in a workplace and to the fact that no work unit remains static because people’s circumstances change over time. The Nurse Unit Managers consistently stated that accommodations departing from the roster could only be sustained for temporary periods and not permanently. [131] However this evidence is not particularly relevant to the complaint of Ms Chivers. Her case was not one based on a claim for permanent relief from night shift. Ms Chivers complained that as she was unable to comply with the requirement to work night shifts her probation was extended and her permanent employment role was not confirmed. By denying Ms Chivers the confirmation of a permanent role at Ipswich Hospital after August 2008, Queensland Health was effectively putting beyond her reach other feasible options that could have accommodated her request in the longer term – such as allocation to duties in a non 24/7 environment. 51 Evidence of Judith Blinco on 21 November 2011. 52 State of Victoria v Schou [2001] VSC 321. -- 22 of 34 -- 23 [132] Other circumstances relevant to the consideration of the reasonableness of the term include the accommodation granted to Ms Jeremiah from 2001 to relieve her of night duty in circumstances that are similar to those of Ms Chivers. The accommodation of Ms Jeremiah’s impairment did not result in industrial unrest, in any reported allegations of unfairness or in calls for a change to the rostering principles. Her ward team appeared to work harmoniously in adapting to her particular circumstances. Similarly, several witnesses referred to the need to make accommodation in the rostering arrangements to avoid night shifts for nurses who were pregnant or who were returning to work after maternity leave.53 The evidence of most witnesses referred to the flexibility in the roster to meet the needs of individuals within an informal fairness framework. [133] There was no evidence from Ms Chivers’ ward nursing team members that they would not have adapted harmoniously in the event that her probation was ended in August 2008, her permanent employment at Ipswich Hospital was confirmed and she was continued to be rostered off night shifts while working as a member of the nursing team in 24/7 wards. Evidence from her supervisors was somewhat speculative on this issue as it focussed on permanent relief from night shifts and what they as supervisors anticipated would be the reaction of the nursing staff. [134] Such evidence was in stark contrast to the evidence of the positive and apparently supportive reaction of staff to Ms Jeremiah’s situation and the ready acceptance of accommodation being made for pregnant staff or staff returning from maternity leave. The evidence about Ms Jeremiah’s circumstances suggested to me that if staff were made aware of the reasons for the accommodation, they were generally ready to accept that accommodation. [135] Most witnesses agreed that effective leadership from a Nurse Unit Manager, transparency in rostering arrangements and good communication with staff would be needed if accommodation from working across all shifts was to be implemented harmoniously in a 24/7 ward. I was not convinced that a departure from the rostering system for a perceived sound reason would be universally regarded by nursing staff as unfair and unsustainable. [136] It was contended by Queensland Health that the reason for the Beginning Nurse Program in which Ms Chivers had been involved in 2008 and early 2009 was to induct graduate registered nurses in the skills and culture of nursing. Evidence from witnesses called by Queensland Health testified to the necessity of graduate nurses working night shifts in order to manage the demands of working shifts and to gain experience and skills arising from the particular demands of all shifts. [137] Ms Parcell gave evidence that during night shifts graduate nurses are required to exercise their judgement and carry out assessments with 53 Evidence of Judith Blinco, Sara Riggs and Frances Buckley on 21 November 2011. -- 23 of 34 -- 24 minimum supervision.54 Ms Hollingum gave evidence that on night shifts graduate nurses are required to manage patients, work autonomously and assume greater responsibility.55 Evidence was given that some tasks, such as fluid balance charts, are only performed on night shift.56 Fluid assessments are made on other shifts as a normal incident of clinical observations with the final calculations done only at night. [138] It was contended for Queensland Health that a graduate nurse who only worked day or evening shifts would not be able to develop the same skills as other nurses who worked across all shifts. Evidence was relied on by Queensland Health that a graduate nurse needed to experience the whole scope of the health service within a hospital context in order to be successful in the hospital.57 [139] These contentions were disputed by Ms Chivers. Expert evidence from Ms Fox-Young was that there was no particular clinical skill that would require a nurse to experience night duty to learn. She gave evidence that a nurse’s university learning could be consolidated on any shift.58 Professor Dawson gave evidence that he was unaware of any research that indicate that nurses who did not work night shifts were deprived of essential learning opportunities or would lack skills necessary to undertake their roles effectively.59 [140] When cross-examined, Ms Mullen and Ms Riggs, both Nurse Unit Managers, conceded that registered nurses on evening and weekend shifts experience similar limitations as to access to support from allied health staff and medical staff as do registered nurses on night shifts. Ms Riggs conceded that nurses make the same clinical decisions whether on evening or night shifts and that the skills required of registered nurses are essentially the same at 9pm as at 1am. [141] I was not persuaded that having the ability to participate in the rostering system across all shifts was a reasonable requirement in order for a graduate registered nurse to gain skills essential to providing patient care in a 24/7 ward. Working evening and weekend shifts provides opportunities for graduate registered nurses to work independently and to test clinical skills with minimal supervision and support from senior nurses, allied health staff and medical staff. Gaining the ability to work independently and to developing clinical skills for a registered nurse, even a nurse working in a 24/7 ward, is not in my view a proven corollary of having the ability to work night shifts. [142] Reasonableness of the term must also be examined in the context that Queensland Health had a Reasonable Adjustment Policy60 in place at 54 Paragraph 86 of the affidavit of Melinda Parcell sworn 24 February 2011. 55 Paragraph 55 of the affidavit of Mary Christine Hollingum affirmed on 24 February 2011. 56 Paragraph 56 of the affidavit of Mary Christine Hollingum affirmed on 24 February 2011. 57 Paragraph 12 of the affidavit of Sean Patrick Birgan sworn on 28 February 2011. 58 Exhibit 43 being the report of Ms Fox-Young. 59 Exhibit 30 being the report of Professor Drew Dawson dated 23 September 2009. 60 Exhibit 50. -- 24 of 34 -- 25 the times relevant to this complaint. Ms Lane and her advisors at Queensland Health conceded that they had not taken the Reasonable Adjustment Policy into account nor consciously applied that policy when Ms Chivers’ probation was extended. They did not explain why they had failed to apply the Policy. [143] Despite this evidence, it was submitted that Queensland Health had done all that was necessary at all times to comply with its Policy. It was submitted that Ms Chivers had been relieved of working night shifts for some 10 months prior to her resignation by way of a reasonable adjustment to her impairment. That adjustment was said to be all that was reasonably required in the circumstances of the case. That submission was disputed by Ms Chivers. [144] The evidence is clear that Queensland Health personnel, by not expressly resorting to or applying the Policy, had not considered whether there were other feasible opportunities to support Ms Chivers other than by extending her probation and by making her employment situation more vulnerable than her colleagues who did not have an impairment. [145] The Reasonable Adjustment Policy states that the employer should, where it is necessary and reasonable to do so, make modifications and adjustments to the workplace to meet the individual needs of people with disabilities. The Policy requires a line manager to organise an assessment of the physical and organisational barriers that would unreasonably prevent that person’s employment, limit their performance or curtail their advancement. The assessment is to determine the needs of the person and offer possible solutions for reasonable adjustment.61 [146] There was no active assessment made under the Policy by Queensland Health of the needs of Ms Chivers or any steps taken to offer her possible solutions for reasonable adjustment when the decisions were made to extend her probation and not to offer her permanent employment after the end of the Beginning Nurses Program. There was action taken in the form of repeated enquiries made of her medical specialist about the ongoing effect of her impairment but that action was essentially passive in nature and was focussed on the longer term. [147] There was no assessment made under the Policy of Ms Chivers’ actual needs in the workplace as at August 2008, November 2008 or February 2009 when the decisions were made that are under challenge in her complaint. There were no enquiries made at ward level whether there was any actual impact that ongoing relief for Ms Chivers from night duty might have on other ward nursing staff, no enquiries made to ascertain the views of ward team members about taking on additional night shifts or about sourcing of other positions for Ms Chivers that did not involve night duty. Queensland Health had been alerted at any early stage that the decisions to extend Ms Chivers’ probation were regarded by her as discriminatory conduct but the decision maker and her advisors failed to take steps to apply Queensland Health’s Reasonable Adjustment Policy. 61 Reasonable Adjustment Policy – paragraph 3.2. -- 25 of 34 -- 26 [148] The focus of Ms Lane, Ms Parcell and Ms White was on maintaining the rostering system and making Ms Chivers conform to that system rather than on assessing the practicality of modifying the system for her specific needs and on ascertaining the extent of any avoidable disadvantageous effect that the requirement to work night shift term was having on Ms Chivers. The focus was on obtaining information about her longer term capacity to work night shifts as this was considered to be the relevant information needed to either confirm or terminate her employment. The decisions to extend Ms Chivers’ probation were not taken after weighing up the disadvantageous impact of such decisions on her but were taken to maintain the most advantageous position for the employer to decide at a later time whether to terminate her employment or not. [149] The evidence of Ms White and Ms Parcell and the letters by Ms Lane made it clear that no adjustment (other than temporarily relieving Ms Chivers of working night shifts) would be contemplated by Queensland Health until and unless medical evidence effectively gave reassurance that her impairment would cease. Their evidence leads me to conclude that the Reasonable Adjustment Policy had not been complied with by Queensland Health when the decisions under challenge in this complaint were made. I reject the submission that the Policy had at all times been complied with by Queensland Health as the evidence establishes that it patently had not. [150] I can conclude that it was not reasonable for Queensland Health to impose the term that Ms Chivers had to be able to participate in the rostering system in place for registered nurses engaged in roles that provided 24 hour care seven days a week having regard to all the circumstances of the case. [151] Queensland Health had the ability, and the obligation, to consider modifying the application of that term in the case of Ms Chivers, as it had done for Ms Jeremiah, when an impairment restricted her ability to perform an activity within the range considered usual for most people.62 There was an evident determination by Ms Parcell and Ms Lane to prevent Ms Chivers from continuing in her employment unless she could demonstrate the ability to perform within the range considered usual for most people. [152] The decisions to extend her probation and not to confirm Ms Chivers’ employment were based on her impairment and had a significant disadvantageous impact on Ms Chivers. The decisions were made in order to maintain for the employer a ready ability to terminate her employment and were based on a term that was unreasonable. The term was not consistent with Queensland Health’s published policy. Evidence revealed that applying the same term had been seen not to be necessary for other members of its nursing staff who had disclosed some impairment. Whether the actions of Queensland Health were in breach of s 15 62 Paragraph 3.1 of the Reasonable Adjustment Policy. -- 26 of 34 -- 27 [153] Under section 15 of the Anti-Discrimination Act 1991 a person must not discriminate by treating a worker unfavourably in any way in connection with work. Ms Chivers has complained that she was subjected to discrimination as she was treated unfavourably by the decisions of Queensland Health to extend her probation and not to confirm her employment at the end of the Beginning Nurses Program. [154] The findings made so far result in the conclusion that Ms Chivers was subjected to discrimination at work due to her impairment in the form of indirect discrimination as defined in section 11 of the Anti-Discrimination Act 1991. As stated in paragraph 69 of these reasons, Ms Chivers was treated less favourably than the other graduate nurses on the Program in 2008 and early 2009 employed at the Ipswich Hospital whose employment was not left at risk of summary termination by extensions of their probationary period. The other graduate nurses with the same educational qualifications as Ms Chivers had the benefit of permanent employment while her employment status remained tenuous because of her impairment. Whether there is an exemption for the discriminatory actions [155] It is not unlawful to discriminate in the work area if an exemption exists in the Anti-Discrimination Act 1991.63 Queensland Health contends that it was a genuine occupational requirement that a registered nurse, allocated to 24/7 wards, must be capable of complying with the requirements of the roster arrangements. Section 25 of the Act provides an exemption from liability for discrimination when a person imposes genuine occupational requirements for a position. [156] Queensland Health relies on the decision of the High Court of Australia in Qantas Airways Limited v Christie64 to the effect that it was an inherent requirement of employment in that case for the complainant to be able to comply with the Qantas roster system or that he work a reasonable number of international flights. Brennan CJ stated: “the question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer‟s undertaking and, except where the employer‟s undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.”65 Queensland Health contended, that by applying the reasoning adopted by the High Court, it could be established that it was an inherent requirement or genuine occupational requirement of the position occupied by Ms Chivers that she was able to comply with the roster in 24/7 wards including the ability to work night shifts. [157] It was submitted by Queensland Health that it was impermissible to focus on the clinical requirements of a registered nurse’s role and point to them as the genuine occupational requirements to the exclusion of the 63 Section 24 of the Anti-Discrimination Act 1991. 64 (1998) 193 CLR 280. 65 (1998) CLR 193 and at (1998) HCA 18 at paragraph 1. -- 27 of 34 -- 28 organisational and deployment aspects of the role. It was submitted that it must be an inherent requirement that a registered nurse working in 24/7 wards must be able to work all shifts: operationally it was that requirement that defined the role. [158] However Brennan CJ immediately after the words quoted in paragraph 156 of these reasons stated: “In so saying, I should wish to guard against too final a definition of the means by which the inherent nature of a requirement is determined. The experience of the courts of this country in applying anti-discrimination legislation must be built case by case. A firm jurisprudence will be developed over time; its development should not be confined by too early a definition of its principles.”66 [159] Brennan CJ considered: “The essential requirements of the position were, apart from the necessary aeronautical skills and licences, a capacity to fly on Qantas' international routes and a consequential ability to participate effectively in the bidding process equally with other Qantas international pilots.”67 Mr Christie could not participate effectively in that bidding system once he attained 60 years of age as he had to exclude from his roster all international flights apart from those to and from New Zealand, Denpasar and Fiji. Justice McHugh described the position: “When Mr Christie turned 60, he was unable to perform a large and essential part of his duties... The ability to fly to most of Qantas' overseas destinations is a requirement... truly necessary to ensure the adequate performance of the employment”.68 [160] Mr Christie could not work on most international routes where Qantas operated. His status as an international pilot was very much impugned as a result. His roster must of necessity have looked very different from those of other international pilots. Being obliged to retain Mr Christie on its roster of international pilots when he could not fly on most of the international routes would have had a clear adverse impact on the operations of Qantas and on the organisation of its workload for pilots. In that factual context, it was found that it was an inherent requirement that Mr Christie had to be able to comply with the Qantas roster system or that he work a reasonable number of international flights. [161] The factual circumstances of the employment in Christie‟s case are very much different to the employment in Ms Chivers’ case and tend to distinguish the two cases. Ms Chivers could provide nursing services in the 24/7 wards in day and evening shifts over 7 days a week extending from 7am to 11pm. Queensland Health submitted that Ms Chivers’ inability to work night shifts should be equated with Mr Christie’s inability to fly a reasonable number of international flights. This submission in my view is misconceived as the correct analysis is not based on the number of night shifts able to be worked but rather on the number of hours able to be covered by Ms Chivers’ care. She could work a reasonable number of the hours during which nursing services were needed in a 66 Ibid at paragraph 1. 67 Ibid at paragraph 2. 68 Ibid at paragraph 87. -- 28 of 34 -- 29 24/7 ward. The Christie case is clearly able to be distinguished in my view. [162] There is another critical fact that tends to suggest that the ability to work across all shifts on the roster for 24/7 wards was not a genuine occupational requirement in this case. Evidence was produced that a number of nursing staff in these wards did not for some years work across all shifts: Ms Jeremiah, Ms Plews, Ms Richardson, Ms McVeigh, Ms Barlow. The wards where these staff members worked continued to provide 24/7 care to patients. The rostering system was sufficiently flexible to enable staff to work on the shifts of their choice without compromising patient care. [163] While the evidence relied on by Queensland Health supports the desirability of having all staff in 24/7 wards available to work all shifts, the evidence did not support a conclusion being reached that it was a genuine occupational requirement for all nursing staff to have the ability to work all shifts in these wards. It was clearly established on the evidence that patient care can be provided on a 24/7 basis by having in place appropriate rostering practices but the evidence also established that those practices did not fail to meet the demands of continuous patient care despite some nursing staff members on the roster lacking the ability to work all shifts. The organisation and deployment of staff did not fail when Ms Jeremiah, Ms Plews, Ms Richardson, Ms McVeigh, Ms Barlow and indeed Ms Chivers provided nursing services on some but not all of available shifts. [164] It was the submission of Ms Chivers that the inflexibility in rostering arrangements, disguised as occupational requirements, that failed to make reasonable accommodation for someone with an impairment was an example of the reasons why the Reasonable Adjustment Policy of Queensland Health was needed to be known, understood and applied in practice and was an example of behaviour that had influenced the passing of anti-discrimination legislation. There is merit in that submission. Rostering should not be used as a “blunt instrument” to limit the opportunity of persons with impairment from having reasonable access to employment in a non discriminatory manner. [165] I find that it was not a genuine occupational requirement in terms of section 25 of the Anti-Discrimination Act 1991 that Ms Chivers as a registered nurse working in 24/7 wards must be able to work all shifts. That section does not provide an exemption from liability for Queensland Health in this case. Whether there was unjustifiable hardship [166] It is not unlawful for a person to discriminate on the basis of impairment against another person if the circumstances of the impairment would impose unjustifiable hardship on the first person.69 In its contentions, Queensland Health alleged that allowing Ms Chivers to continue employment where she was unable to be rostered to work any night shift imposed an unjustifiable hardship on Queensland Health. 69 Section 36(1) of the Anti-Discrimination Act 1991. -- 29 of 34 -- 30 [167] The unjustifiable hardship in the contentions was described in terms of preventing Queensland Health from complying with its obligations to ensure safe patient care, to roster an appropriate skill mix across all shifts, to provide development for nurses, to provide short term flexible work arrangements for all nurses, to allocate equitably night shifts in order to protect the general health and wellbeing of nurses, to ensure staff retention, to comply with industrial agreements and to maintain a capacity to attract, deploy and retain a nursing workforce to meet the requirements of an acute care facility. It was also contended that there would be unjustifiable hardship in meeting the cost of engaging additional registered nurses when staff are excused from complying with the roster. [168] Evidence was produced from witnesses called by Queensland Health who testified as to the adverse impact that departure from the rostering framework would cause. This evidence however must be considered in the context that the rostering framework had not been universally applied during the period when the decisions under challenge by Ms Chivers were made. There were nurses who did not work across shifts in 24/7 wards and none of the predicted adverse consequences had eventuated. Queensland Health had not been prevented during this period from complying with its obligations set out in paragraph 23 of its contentions. [169] There was no evidence as to the costs that would be incurred in engaging replacement staff so it is not possible to determine if any such costs would cause unjustified hardship for Queensland Health. I note that there was no reliance on section 36 in the written submissions tendered by Queensland Health. In my view, the evidence did not give support for an exemption under section 36 of the Act. Whether actions were required for workplace health and safety reasons [170] It is not unlawful to discriminate in circumstances where a person does an act that is reasonably necessary to protect the health and safety of people at a place of work.70 Queensland Health contended that its actions to require Ms Chivers to comply with the roster were required in order to ensure safe patient care and to protect the general health and wellbeing of nurses. [171] This argument appears in part to be based on factors about providing continuous care for patients in 24/7 wards similar to those discussed in paragraph 167. Expert evidence from Professor Robert Grunstein was produced that working night shifts is detrimental to health based on a range of studies over the past 30 years.71 His evidence was that the more night shifts that were worked by an individual, the greater the impact on that person’s health. He could not state that research proved that every night shift accumulated an added risk to health or that there was a clear threshold number of night shifts worked before some proven 70 Section 108 of the Anti-Discrimination Act 1991. 71 Exhibit 84 being the affidavit of Professor Robert Grunstein affirmed on 22 March 2011 – page 5 of the annexure being his report dated 17 March 2011. -- 30 of 34 -- 31 impact on health was evident. Professor Grunstein conceded that one extra night shift every six months would not significantly increase risk of harm.72 [172] Again, the evidence from witnesses called for Queensland Health has to be considered in the context that the rostering framework had not been universally applied during the period when the decisions under challenge by Ms Chivers were made. There was no evidence that safe patient care had not been provided or that the general health and wellbeing of nurses had been placed at significant risk by Ms Chivers not being rostered on night shifts in the later part of 2008 and in early 2009. There was evidence that nurses had been rostered for work outside a strict compliance with the rostering framework without compromise to patient care or staff wellbeing. [173] I note that there was no reliance on section 108 in the written submissions tendered by Queensland Health. In my view, the evidence did not support an exemption under section 108 of the Act. [174] I am unable to find that there is any exemption available in the Anti- Discrimination Act 1991 which excuses the discrimination that Ms Chivers was subjected to by Queensland Health in extending her period of probation and in not confirming her employment. [175] This finding does not mean that the rostering framework must be dismantled or that nursing staff must be allowed to self select permanently off night duty or that persons who cannot provide the standard of work for which they have been employed must be retained as employees. The finding that Queensland Health discriminated against Ms Chivers in the area of work is based on the facts of this case and arises out of the less favourable treatment she received because of her impairment. [176] The finding acknowledges that Ms Chivers, contrary to the objects of the Anti-Discrimination Act 1991, was not accorded equality of opportunity as a person with an impairment by her employer despite legislative protections and written policies that were designed to promote equality of opportunity and to protect her from unfair discrimination. She was made to meet “one size fits all” requirements that caused her a disadvantage due to her impairment. Her employment status was placed under threat because of her impairment that prevented her from working night shifts. In all other aspects she could perform the requirements of her position and rather than having her opportunities limited by her employer, the law expected her employer to support her in an endeavour to reach her potential as a permanent employee. Remedy [177] Ms Chivers seeks by way of remedy for unlawful discrimination a public apology, monetary compensation, changes in policy by Queensland Health and a process whereby Queensland Health eliminates 72 Oral evidence of Professor Grunstein given on 25 November 2011. -- 31 of 34 -- 32 discrimination in its rostering practices. Ms Chivers also seeks costs of her complaint. [178] Although it has been found that the decision maker and her advisors did not comply with the requirements of the law, it is not the case that any employee of Queensland Health deliberately and knowingly sought to trammel the human rights of Ms Chivers. I do not consider that this is an appropriate case in which a public apology is needed as a remedy for Ms Chivers. It is likely that the finding that she had been subjected to unlawful discrimination will of itself have a restorative impact on Ms Chivers much more than an apology from persons who now are far removed from her life as she has moved on from the circumstances present in 2008 and 2009. [179] In her submissions, Ms Chivers states that in seeking compensation she is seeking to be put in the same position she would have been in had she not been subjected to discrimination. She states that she had resigned from her employment at Ipswich Hospital in circumstances where she suffered humiliation, distress and a significant loss of career opportunities. She had come to nursing as a mature age student with a deep commitment to becoming a rural nurse. Opportunities in that line of work are only available through Queensland Health and her resignation limited her future employment. [180] Ms Chivers seeks $50,000 by way of general damages. Queensland Health submits that this amount is excessive when considered against other decided case authorities.73 In particular reference to the case of Toganivalu v Brown & Department of Corrective Services74 was made in which general damages of $15,000 were awarded to a long term employee whose employment had been wrongly terminated. Queensland Health submitted that damages for a short term employee who had resigned should be significantly less than $15,000. [181] I accept that the impact on Ms Chivers brought about by the actions of senior staff at Queensland Health was significant. For some six months before her employment ended, Ms Chivers was experiencing stress due to the extension of her probation. She lost 15.5 kilograms in weight and became concerned that she may be sinking into depression. [182] I consider that damages of $18,000 are an appropriate amount to compensate Ms Chivers for the impact of the discrimination on her. There was no evidence that Ms Chivers had sustained any permanent injury or long term impact as a result of the discriminatory conduct. I also allow interest calculated at 5% on $18,000 over three years in the amount of $2,700. [183] Ms Chivers also claims $49,507.39 for economic loss which has been calculated on the basis that she would have earned $164,874.39 if she had remained employed by Queensland Health rather than $115,367 which she has earned from her current employment after resigning from 73 See Gordon v Commonwealth of Australia [2008] FCA 603 where $20,000 in general damages were awarded. 74 [2006] QADT 13. -- 32 of 34 -- 33 Queensland Health. The claim for economic loss is disputed as misconceived by Queensland Health on the grounds that Ms Chivers voluntarily brought her employment with Queensland Health to an end and that in those circumstances she cannot seek to recover damages for the flow on effect of her own actions. [184] It is submitted by Ms Chivers that she had not been able to see any proper resolution to the ongoing conflict with Queensland Health and that in the circumstances she had been forced to take action herself to resolve that conflict by resigning in February 2009. That may have been the case but her actions did directly result in the loss of earnings she now claims. This is not a case where an employee was so affected by the actions of her employer that she had no real option but to resign. The evidence is far from establishing that Ms Chivers’ resignation was brought about as a natural and foreseeable consequence of the conduct of Queensland Health.75 She made a choice to resign to resolve the vulnerability facing her continued employment status. However I cannot be satisfied that her resignation was an inevitable consequence of the actions of her employer. [185] Ms Chivers did not provide any authority for her claim that recovery of her economic loss is sustainable in those circumstances. I am not satisfied that she has established the basis to recover economic loss subsequent to her resignation. [186] Other relief being sought is of a non monetary character. Ms Chivers seeks an order requiring Queensland Health to issue a policy about impairment and to implement programs to eliminate unlawful discrimination. Ms Chivers submits that such orders are necessary due to the failure of Queensland Health personnel to apply existing policies about the elimination of discrimination in the workplace. She submits that most of the witnesses called to give evidence for Queensland Health disclosed a complete lack of knowledge or understanding of the requirements of impairment discrimination law and of their employer’s own policy about reasonable adjustment. [187] I am not convinced that there is much utility in the orders sought by Ms Chivers. Existing policies should be sufficient to ensure that everyone has equal benefit of the law without discrimination. What is needed is a focus on explaining the requirements in those policies to personnel who have responsibilities for rostering and staff management. The outcome in this case of itself should provide an impetus to educate personnel as to the existing policies that should support and protect the fragile freedoms referred to in the preamble of the Anti-Discrimination Act 1991. Costs [188] Ms Chivers seeks her costs of this complaint. Under section 100 of the Queensland Civil and Administrative Tribunal Act 2009, 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 75 Roberts v King [2009] QADT 3. -- 33 of 34 -- 34 order.76 Justice Wilson said in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2):77 “Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase „the interests of justice‟ point so compellingly to a costs award that they overcome the strong contra- indication against costs orders in s 100”. [189] One of the factors that can be taken into account when considering whether costs should be ordered is the nature and complexity of the dispute that is the subject of the proceeding. [190] The complaint undoubtedly was complex. The hearing took place over nine days, involved 49 witnesses, 86 exhibits and 157 pages of written submissions. The hearing was a lengthy process despite concessions having been made in the respective contentions of the parties and despite some steps being taken to reduce the scope of the issues in dispute and of the evidence required to resolve the disputed issues. Ms Chivers was nevertheless required to prove her case. [191] There may well be factors in the case that would point compellingly to a costs award being made in the interests of justice. The written submissions by the parties did not address sections 100 and 102 of the QCAT Act. It would be appropriate to provide the parties with an opportunity to lodge written submissions on whether costs should be awarded in this case. I direct Ms Chivers to file written submissions on costs in the tribunal and send a copy to Queensland Health by 4pm on 27 April 2012. I direct Queensland Health to file written submissions in response on costs and send a copy to Ms Chivers by 4pm on 11 May 2012. 76 Section 102(1) of the Queensland Civil and Administrative Tribunal Act 2009. 77 [2010] QCAT 412 at paragraph 29. -- 34 of 34 --