By Gaby Grammeno Contributor
The Queensland Industrial Relations Commission ruled that where a worker showed a pattern of verbal abuse and threats of physical harm, the need to protect WHS outweighed the prohibition of workplace discrimination.
The worker was employed by major poultry provider Steggles in the chicken processing areas at the company’s Mareeba plant. Physical space was limited where she worked, so people sometimes bumped into each other.
She disliked being touched and reacted angrily, including threatening to kick other workers. After verbal altercations, swearing at a team leader, accusing another worker of deliberately touching her bottom, yelling at him and threatening to ‘kick him in the balls’ she’d been counselled repeatedly and given warnings about her inappropriate behaviour towards other staff.
In June 2019 she gave her manager a letter from a nurse at a local mental health service stating that she had schizophrenia.
Six months later she was questioned following an altercation with another worker that involved yelling, swearing and raising their fists at each other in a threatening manner. The worker asserted that the diagnosis of schizophrenia was incorrect and that in fact she had post-traumatic stress disorder, and did not require medication for this.
Her problematic conduct continued despite counselling and disciplinary action, and the IR coordinator gave her a final warning for inappropriate behaviour and informed her she needed a formal letter medically clearing her to return to work.
She initially provided a letter from the nurse at the mental health service saying she’d been discharged from the service in November 2019, could return to work and did not need medication. The company did not accept the letter because it was from a nurse rather than her treating doctor or psychiatrist.
After the request was repeated for a ‘letter from mental health’, she provided the same letter, which had been co-signed by a psychiatrist, but again the company did not accept it.
Following this, the worker provided a further letter which was again rejected because it did not address the specific information sought by the company, namely whether the worker was still experiencing the medical condition; whether she was being treated for the condition; and whether working in her work environment continued to exacerbate or aggravate her condition. She then resigned because she ‘couldn’t get the right clearance for them’ and believed they would never allow her to return to work.
She took the view that she’d been discriminated against because of her mental health issues.
The worker filed a complaint against Steggles, claiming the company had contravened the Anti-Discrimination Act 1991 (Qld) when it suspended her employment until she could provide a medical clearance, refused to accept the medical clearances she provided and left her with no alternative but to seek alternative employment, meaning her resignation was a constructive dismissal.
The case was heard in the Queensland Industrial Relations Commission.
In the Commission
The worker submitted that her mental illness was an 'impairment' within the meaning of s 7(h) of the Act, which prohibits discrimination on the basis of impairment, among other attributes. A condition that impairs a person’s thought processes, perception of reality, emotions or judgment or results in disturbed behaviour counts as impairment in terms of the Act.
In the Commission, the onus was on the worker to demonstrate, on the balance of probabilities, that Steggles contravened the direct discrimination provisions of the Act. She contended that because her employer was aware of the mental illness diagnosis, management had presumed this amounted to impairment and treated her unfavourably.
Counsel for Steggles contended there was no evidence that could meet the standard of proof to show that the worker suffered an impairment at the relevant time because the only evidence of a specific diagnosis was a letter signed by a clinical nurse consultant stating the worker had a diagnosis of schizophrenia. The letter doesn’t say whether she had been informed of a diagnosis by a doctor or psychiatrist or only by the worker herself.
However, the worker’s case in the Commission focused on s 8(c) of the Act, which provides that discrimination can be based on an attribute that the person is presumed to have, or have had at any time, by the person discriminating; or an attribute that a person had, even if the person did not have it at the time of the discrimination.
Queensland Industrial Commissioner Jacqueline Power was satisfied the company presumed that the worker continued to suffer from a mental illness. Its actions in seeking a medical clearance demonstrated a presumption that the worker had a medical impairment of some kind at the relevant time.
The Commissioner was persuaded that Steggles had treated the worker less favourably than they would have treated a comparable employee – a woman of equivalent age, tenure and disciplinary history – whom the employer did not presume to have schizophrenia or PTSD. Thus the company had contravened s 15(f) of the Anit Discrimination Act, which prohibits discrimination by treating a worker unfavourably in any way in connection with work.
The Commissioner heard evidence that management had no intention of sacking her. On the contrary, they’d tried to be flexible and help her deal with her issues so she could return to work. The reason for the worker’s suspension was that the site manager had concerns regarding the safety of other workers because there were knives and scissors around and the worker had previously threatened violence towards other workers.
Queensland’s anti-discrimination legislation contains a provision stating that a person ‘may do an act that is reasonably necessary to protect the health and safety of people at a place of work’ (s 108).
Commissioner Power was satisfied that Steggles had demonstrated – given the pattern of behaviour involving verbal abuse and threats of physical harm – that a medical clearance beyond the cursory letter provided was 'reasonably necessary' to protect the health and safety of workers. Accordingly, Steggles’ actions were permissible under the work health and safety exemption in s 108.
Commissioner Power dismissed the claim and directed each party to bear their own costs.
What it means for employers
Employers must comply with prohibitions on workplace discrimination in their jurisdiction, but where there is a legitimate risk to work health and safety, it is possible a WHS exemption may override an employer’s obligations under anti-discrimination legislation.
Read the decision
