QCAT Appeal Tribunal considers whether directions to attend independent medical assessments may be discriminatory

In a significant decision for government agencies, the Queensland Civil and Administrative Tribunal (QCAT) Appeal Tribunal overturned the earlier QCAT decision of Attrill v State of Queensland.

Ms Attrill lodged a complaint with the Anti-Discrimination Commission Queensland alleging discrimination on the ground of impairment in the area of work. At the time Ms Attrill lodged her complaint, her employer, the Department of Community Safety had directed Ms Attrill to attend an independent medical examination pursuant to s 175 of the Public Service Act 2008 (PS Act).

A direction under s 175 of the PS Act to attend an independent medical examination is given where an employee is either absent from duty or is not performing his or her duties satisfactorily, and their employer reasonably suspects that the absence or unsatisfactory performance is caused by mental or physical illness or disability. Ms Attrill complained that the direction to attend an independent medical assessment amounted to unlawful discrimination on the basis of impairment.

Ms Attrill sought an injunction restraining the department from continuing with the medical assessment process under Chapter 5, Part 7 of the PS Act until such time as her complaint had been heard and determined by the Appeal Tribunal.

At first instance, the Appeal Tribunal accepted the department’s submissions that, due to the comprehensive and exhaustive nature of the provisions contained in Chapter 5, Part 7 of the PS Act, the inconsistencies between Chapter 5, Part 7 of the PS Act and the relevant provisions of the Anti-Discrimination Act 1991 (AD Act) that prohibit unlawful discrimination in employment could not be reconciled. Accordingly, Chapter 5, Part 7 of the PS Act impliedly repealed s 15 of the AD Act.

As a consequence to this finding, the Appeal Tribunal held there were no grounds on which Ms Attrill could make a valid complaint against the department and, in the absence of a valid complaint, it did not have jurisdiction to grant an injunction restraining the department from continuing with the process under Chapter 5, Part 7 of the PS Act.

Ms Attrill appealed the decision.

The Appeal Tribunal allowed the appeal, finding there was no contrariness or inconsistency between the PS Act and the AD Act.

In its reasons, the Appeal Tribunal stated that it considered the correct question to be whether Chapter 5, Part 7, in its context within the PS Act, could be read with the broader AD Act provisions.

The Appeal Tribunal found that, in light of the stated purpose of the PS Act and the provisions that promote equality of employment, which could be reconciled with the AD Act generally, Chapter 5, Part 7 was not intended to impliedly repeal the operation of the AD Act.

There is very little reference in the decision to the giving of a direction to attend an independent medical assessment (which was the subject of the complaint), although the Appeal Tribunal indicated it considered such a direction would be lawful.

The Appeal Tribunal found that the genuine occupational requirements and unjustifiable hardship provisions of the AD Act, which may be available to an employer when defending a complaint of discrimination, also meant that Chapter 5, Part 7 of the PS Act could be reconciled with the AD Act.

The current effect of the Appeal Tribunal’s decision is that employees who lodge complaints of discrimination as a result of being directed to attend an independent medical assessment under Chapter 5, Part 7 of the PS Act, could potentially apply for – and obtain – an injunction restraining their employer from continuing with any process until their complaint is resolved, whether by conciliation or hearing in the Appeal Tribunal.

On 23 March 2012, an appeal was filed with the Court of Appeal against the decision.

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