Discrimination: genuine occupational requirements

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

HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – EMPLOYMENT – where in 2004 the appellant sustained a head injury from a horse riding accident – where in 2008 the appellant commenced a Graduate Nurses Program with the respondent – where a condition of the program was that the appellant would be on a six month probation period, with a possible extension of three months in the event of under achievement – where the appellant was required to work night shifts – where the appellant was unable to complete night shifts due to headaches and nausea resulting from her 2004 head injury – where the respondent initially catered for the appellant’s request not to do night shifts – where the respondent’s evidence was that such arrangements worked “with difficulty” – where the respondent extended the appellant’s probation period a number of times, pending further medical evidence about her impairment – where the appellant found other employment and resigned in February 2009 – where pursuant to the Anti-Discrimination Act 1991 (Qld) the appellant commenced action in QCAT on the basis that she was subjected to direct and indirect discrimination by the respondent – where the senior member found there was indirect discrimination – where the respondent appealed to the QCAT appeal tribunal – where the presiding member concluded that the senior member had erred in failing to find that a s 25 exemption applied – where the appeal tribunal overturned the decision of the senior member – whether working night shifts was a “genuine occupational requirement” – whether the respondent made reasonable adjustments for the appellant in accordance with the respondent’s policy – whether working night shifts endowed the appellant with necessary clinical skills

Brisbane Barrister – David Cormack

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