Vale v State of Queensland & Ors [2019] QCAT 290 (19 September 2019)
- Type of outcome
Queensland Civil and Administrative Tribunal decision (QCAT)
- Year
2019
- Contravention
Discrimination
- Attribute/s
Impairment
- Area
Work
- Outcome
Complaint upheld
- Compensation
$33,906.16
Summary
A residential care officer developed a chronic kidney disease and had to undertake a type of dialysis twice during a 12-hour shift and once during an 8-hour shift. At the time, the officer worked three 12-hour day shifts, three 12-hour night shifts, and one 8-hour variable shift each fortnight. He conducted the dialysis during his breaks.
At the time he developed the condition, the officer had worked as a residential care officer for 16 years and had been caring for three intellectually disabled people in a residence.
The department determined that the officer could not continue as a residential care officer (RCO) while he needed to undertake the dialysis and he was redeployed to an administrative position. He returned to working as a residential care officer 11 months later, after having a successful kidney transplant.
The tribunal held that the need to undergo dialysis is a characteristic that a person with chronic kidney disease generally possesses and was, therefore, part of the protected attribute of impairment.
In this case the tribunal considered the circumstances for comparison include that the comparator is partially restricted for 20 minutes, and absolutely restricted for 30 seconds, in attending the needs of service users, and that the restriction occurs during a crib break. The self-administered medical procedure is a characteristic of the impairment and should not form part of the circumstances
for the purpose of assessing direct discrimination.
The tribunal found it was less favourable treatment of the officer to:
- direct him not to perform the dialysis treatment in his crib break, when he was just as responsive as another RCO who was otherwise occupied in their crib break; and
- decide not to continue to backfill in circumstances where it completely eliminated any risks to service users and cost less than employing the officer in a supernumerary administrative role; and
- not pay his projected RCO roster, including shift penalties, when he was transferred to alternative duties.
There was also a greater expectation of the officer in relation to the performance of his duties as an RCO than applied to other RCOs, and the respondents applied more onerous requirements than they expected of others.
There was no material increase in the risk to service providers in the officer performing the dialysis treatment during his crib breaks. He would keep the service users in his line of sight when administering the treatment, whereas other officers using the bathroom, hanging out washing, or smoking outside during their crib breaks were not more responsive than this officer.
The tribunal found that the officer’s position could be fulfilled and performed notwithstanding that over a crib break a person might be occupied in a manner that rendered them unable to respond to a situation for 30 seconds.
The less favourable treatment of the officer was because of his impairment and the need to perform the dialysis treatment during his crib breaks.
The tribunal also found that the respondents imposed a term that the officer could not perform the dialysis treatment at work, that the officer could not comply with that term where officers without his impairment could comply, and the term was not reasonable.
There was therefore both direct and indirect discrimination of the officer on the basis of his impairment.
The tribunal considered the exemptions of imposing genuine occupational requirements (s.25), special services or facilities required that impose unjustifiable hardship (s.35), circumstances of impairment impose unjustifiable hardship (s.36), and protecting the health and safety of people at a workplace (s.108). It found that there was no requirement to actively and continually support and supervise the service users for the entire duration of a 12-hour shift, there was no need for special requirements for the officer, there was no unjustifiable hardship on the employer, and removing the officer from the workplace was not reasonably necessary.
The tribunal awarded the officer compensation of $33,906.16, made up of:
- $10,000.00 (general damages)
- $11,372.00 (loss of salary)
- $ 1,043.30 (lost recreational leave)
- $ 3,546.75 (two weeks leave without pay)
- $ 7,944.11 (lost penalty payments)
Vale v State of Queensland & Ors [2019] QCAT 290 (19 September 2019)