Court of Appeal

Chivers v State of Queensland (Queensland Health) [2014] QCA 141 ; [2014]2 Qd R 561 (13/9930) Muir and Gotterson JJA and Douglas J 13 June 2014

Full-text: QCA14-141.pdf

Catchwords

HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – EMPLOYMENT – where in 2004 the appellant sustained a head injury from a horse riding accident – where in 2008 the appellant commenced a Graduate Nurses Program with the respondent – where a condition of the program was that the appellant would be on a six month probation period, with a possible extension of three months in the event of under achievement – where the appellant was required to work night shifts – where the appellant was unable to complete night shifts due to headaches and nausea resulting from her 2004 head injury – where the respondent initially catered for the appellant’s request not to do night shifts – where the respondent’s evidence was that such arrangements worked “with difficulty” – where the respondent extended the appellant’s probation period a number of times, pending further medical evidence about her impairment – where the appellant found other employment and resigned in February 2009 – where pursuant to the Anti-Discrimination Act 1991 (Qld) the appellant commenced action in QCAT on the basis that she was subjected to direct and indirect discrimination by the respondent – where the senior member found there was indirect discrimination – where the respondent appealed to the QCAT appeal tribunal – where the presiding member concluded that the senior member had erred in failing to find that a s 25 exemption applied – where the appeal tribunal overturned the decision of the senior member – whether working night shifts was a “genuine occupational requirement” – whether the respondent made reasonable adjustments for the appellant in accordance with the respondent’s policy – whether working night shifts endowed the appellant with necessary clinical skills

Summary Notes

General Civil Appeal – Discrimination – Judicial Review – where in 2004 the appellant sustained a head injury from a horse riding accident – where in 2008 the appellant commenced a Graduate Nurses Program with the respondent – where a condition of the program was that the appellant would be on a six month probation period, with a possible extension of three months in the event of under achievement – where the appellant was required to work night shifts – where the appellant was unable to complete night shifts due to headaches and nausea resulting from her 2004 head injury – where the respondent initially catered for the appellant’s request not to do night shifts – where the respondent’s evidence was that such arrangements worked “with difficulty” – where the respondent extended the appellant’s probation period a number of times, pending further medical evidence about her impairment – where the appellant found other employment and resigned in February 2009 – where pursuant to the Anti-Discrimination Act 1991 (Qld) the appellant commenced action in QCAT on the basis that she was subjected to direct and indirect discrimination by the respondent – where the senior member found there was indirect discrimination – where the respondent appealed to the QCAT appeal tribunal – where the presiding member concluded that the senior member had erred in failing to find that a s 25 exemption applied – where the appeal tribunal overturned the decision of the senior member – whether working night shifts was a “genuine occupational requirement” – whether the respondent made reasonable adjustments for the appellant in accordance with the respondent’s policy – whether working night shifts endowed the appellant with necessary clinical skills – where the expression “genuine occupational requirements” is not defined for the purposes of the AD Act – where the AD Act does not list facts or circumstances which must or may be taken into account in determining whether a given requirement is a genuine occupational requirement – where it was of particular relevance that the appellant’s nursing functions were to be performed in an undertaking in which the roster system for 24/7 wards was central – where to have limited the frame of reference for identification of the genuine occupational requirements of a registered nurse employed in a 24/7 ward, to a review of physical tasks and functions of the nurse without regard for the working environment in which they were performed, that is to say, provision of nursing care in 24/7 wards, would have led to an error of the kind described by Gummow and Hayne JJ in X v The Commonwealth (1999) 200 CLR 177 – where the finding of the presiding member that the respondent had discharged its onus of showing that it had acted lawfully under that s 25 AD Act stands. Appeal dismissed with costs.