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Considering genuine occupational requirements

Chivers v State of Queensland (Queensland Health) [2014] QCA 141

Muir and Gotterson JJA and Douglas J

13 June 2014

The Queensland Court of Appeal recently handed down a decision which helps to clarify employers' responsibilities in considering whether a particular requirement of a position is a genuine occupational requirement, or, whether adjustments should be made to meet the needs of an employee with an impairment or disability.

Background

The worker (the appellant) suffered from a disability from a head injury sustained in a horse riding accident in 2004. Her injury caused her to suffer from severe headaches and vomiting, among other problems. The appellant accepted a position in the employer's (the respondent's) Graduate Nurses Program and was subject to a six month probationary period, which could be extended for three months for under achievement.

The appellant was rostered to work night shifts and after working her first two night shifts, experienced nausea and headaches. She did again after working one night shift the following month. She took annual leave the next month to avoid her next night shift roster. Her difficulties were brought to the attention of appropriate persons, which she supported with medical evidence.

The respondent initially catered for the appellant's request not to do night shifts – however the evidence from the respondent was this occurred 'with difficulty'. There were complaints from other staff members because they were doing an unfair amount of night duty and complaints the appellant was not making an effort to learn the skills and techniques she would have utilised working night shift.
The appellant was informed her probationary period would be extended indefinitely. The appellant lodged a complaint of indirect discrimination with the Anti-Discrimination Commission, meanwhile continued to work for the respondent. The appellant eventually resigned to accept a position with a private clinic 'given [the respondent] was not willing to accommodate [her] inability to work night shifts'.

Liability

The respondent 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.
A senior member of the Queensland Civil and Administrative Tribunal (QCAT) found there had been indirect discrimination against the appellant and awarded compensation of $18,000 and interest of $2,700 to the appellant.

The respondent appealed to an appeal tribunal of QCAT which allowed the appeal and dismissed the appellant's claim. The appellant then appealed to the Court of Appeal.

Judgement

The Court of Appeal dismissed the appeal, finding that the QCAT appeal tribunal's determination, that the requirement to work night shift was a genuine occupational requirement, was not proven to be in error.

As with any industrial relations dispute arising in the context of a common law claim, an employer may need to make an assessment of any competing interests before making a decision on how to proceed.