Spotlight on anti-discrimination – no ‘nights off’ for nurse after dismissed appeal

In the case of Chivers v State of Queensland (Queensland Health) [2014] QCA 141, the Queensland Court of Appeal dismissed an appeal launched by a Queensland Health nurse in which she claimed that she had been indirectly discriminated against because of a requirement to work night shifts, a term she could not comply with because of a medical condition.

Prior to her employment with Queensland Health, Ms Chivers suffered a head injury, which caused her to suffer severe headaches while working night shifts. During her probation, Ms Chivers went home unwell on a number of occasions and presented medical evidence to Queensland Health that she was unfit to work night shifts as a result of her condition.

Queensland Health made a decision not to confirm Ms Chivers’ employment because of her inability to work night shifts and extended her probationary period. Ms Chivers subsequently resigned and claimed that Queensland Health discriminated against her because of her inability to work night shifts.

Queensland Heath claimed that their conduct did not contravene the Anti-Discrimination Act 1991 (Qld) because it was a ‘genuine occupational requirement’ that nurses be required to work night shift.

At first instance, the Queensland Civil and Administrative Appeals Tribunal (QCAT) found that Queensland Health had indirectly discriminated against Ms Chivers. In its decision, QCAT gave significant weight to Queensland Health’s ‘Reasonable

Adjustments Policy’ and the fact that there were a small number of other nurses who had accommodations made for them under that policy. However on appeal, the QCAT Appeal Panel found in favour of Queensland Health on the basis that the requirement to work night shift was a ‘genuine occupational requirement’. Ms Chivers then appealed to the Court of Appeal.

In dismissing her appeal, the Court found that Ms Chivers was employed by Queensland Health on the premise that she would be required to perform work on a rostering system providing care on a 24/7 basis. The Court of Appeal also found that the reasonable accommodations provided to other employees by Queensland Health were ad hoc and temporary in nature and did not override the general requirement that nurses work night shifts.

This decision highlights the importance of ensuring that employees are well informed in advance of obtaining employment of the inherent requirements of their position. This is particularly important for positions that require employees to work shift work or positions requiring significant amounts of work related travel. To minimise the risk of future disputes, an employer’s requirements should be well documented in a position description.

Discrimination and adverse action - employers should exercise caution when managing ill and injured employees

Employers should exercise caution in their management of ill or injured employees. There is no ‘one size fits all’ approach and the appropriate course of action needs to be considered in light of the circumstances of each case. Employers should also seek informed advice before making decisions about an ill and injured employee’s employment.

The importance of this was recently highlighted in CFMEU v Peabody Energy Australia Coal Pty Ltd [2014] FCA 394. In the interlocutory hearing for injunctive relief brought by the union, the Federal Court was critical of an employer for dismissing an employee who suffered from Type 1 Diabetes, stating that the employee’s union had made out a ‘prima facie’ case for discrimination. The employee was dismissed after he suffered a hypoglycaemic episode and fainted at work.

The employer argued that the reason for the termination was because the employee had suffered episodes before at work and had not strictly abided by medical plans. Therefore, the reason for the dismissal was because of the employee’s failure to follow the medical plan, not because he suffered from diabetes.

In granting the interlocutory relief ordering reinstatement of the employee, the Federal Court said that the employer’s claim that it had not discriminated against the employee because of his illness was arguably an ‘illusory’ distinction. The Court also said that the dismissal on the basis that the medical plan was ineffective and not followed was a dismissal, at least in part, because of a physical disability.

The adverse action claim on behalf of the employee continues and has not as yet been heard by the Federal Court.