QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:	
	Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) and Ors (No. 3) [2024] QIRC 150

Rolfe, Melanie
(Complainant)

v

State of Queensland (Children's Health Queensland Hospital and Health Service)
(First Respondent)

and

Tracey, Frank
(Second Respondent)

and

Henney, Roslyn
(Third Respondent)
	
CASE NO:
	AD/2019/91
	
PROCEEDING:
	Referral of Complaint
	
DELIVERED ON:
	19 June 2024	
MEMBER:

HEARD AT:

HEARING DATES:

ORDERS:

	McLennan IC

Brisbane

9 and 12 December 2022 (Hearing)
31 January 2023 (Complainant's written closing submissions)
1 March 2023 (Respondents' written closing submissions)
17 March 2023 (Complainant's written closing submissions in reply)

1.	That complaints of direct discrimination are upheld, in part.

2.	That the complaint of unnecessary questions is dismissed.

3.	That the complaint of victimisation is dismissed.

4.	That the First Respondent pay to the Complainant, within 28 days:

a.	An amount of $17,491.12 for past economic loss, which must be subject to appropriate taxation;

b.	An amount of $15,000 as general damages;

c.	An amount of $3,274 for medical costs; 

d.	An amount of $1,276 for witness costs; and

e.	Interest on the above amounts, to be calculated at the rate applicable under the Supreme Court Practice Direction 7 of 2013 Interest Rates.

5.	A nominated representative of the First Respondent shall provide a written private apology to Ms Rolfe within 28 days of this Decision.
	
CATCHWORDS:

LEGISLATION & OTHER INSTRUMENTS:

CASES:

	HUMAN RIGHTS – DISCRIMINATION – REFERRAL OF COMPLAINT – where the complainant was employed on a fixed term temporary contract – where the complainant's employment was not renewed – whether the respondents discriminated against the complainant on the basis of sex and pregnancy – whether victimisation occurred – whether the respondents made an unlawful request for information –  consideration of less favourable treatment – where the respondents are found to have directly discriminated against the complainant on the basis of the protected attribute of pregnancy – where no victimisation occurred – where an unlawful request for information was not made – where damages are awarded

Anti-Discrimination Act 1991 (Qld) s 7, s 10, s 15, s 124, s 129, s 130, s 133

Industrial Relations Act 2016 (Qld) sch 2

Briginshaw v Briginshaw (1938) 60 CLR 336

Commonwealth v Humphries (1998) 86 FCR 324

Haines v Leves (1987) 8 NSWLR 442
	
APPEARANCES:	Ms M. Rolfe, the Complainant in person.

Ms A. Freeman of Counsel, instructed by Crown Law for the Respondents.  	

Reasons for Decision

[1]	Ms Melanie Rolfe (the Complainant) worked as a Project Officer (AO6) with the Children's Health Queensland Hospital and Health Service, State of Queensland (CHQ; the First Respondent) from 31 July 2017 until 3 June 2018 - a 10-month period.  

[2]	Ms Rolfe was employed on a fixed term temporary contract basis, through the Queensland Youth Cancer Service (QYCS; the Service).  It was submitted that funding for the position was approved for the financial year ending on 30 June 2018.

[3]	Ms Rolfe was appointed to work on a project to "scope the availability of local community support organisations beyond the known 'cancer' specific non-government organisations (NGOs) such as Canteen, Leukemia Foundation, Redkite" (The Community Connections Project).   Another project officer, Ms Baggio, was appointed at the same time to work on a parallel project "for the purposes of a scoping study to improve decision making in cancer care for young people through improved communication with General Practitioners (GPs) from diagnosis through to follow up" (The GP Connections Project). 

[4]	Ms Henney affirmed that although Ms Rolfe's temporary contract was intended to end on 31 March 2018, the expiry date nominated was 4 February 2018 due to "an internal administrative error (external to QYCS)".  The situation was rectified when Ms Rolfe's contract end date was subsequently extended to 31 March 2018, bringing her in line with the "the same schedule of contract extensions" as Ms Baggio.

[5]	In mid-January 2018, Ms Rolfe announced her pregnancy to work colleagues as she saw them, including her manager, Ms Roslyn Henney (the Third Respondent).  Ms Rolfe submitted that:
At this point I did not believe I was entitled to paid maternity leave, as the baby was due 2 weeks before I had been in the role for 12 months … I called HR to see if there were any other aspects to be considered that may allow me to access paid maternity leave.  I was informed that I was able to take up to 12 weeks of other leave in the lead up to my paid maternity leave, under section 11.14 of the Parental Leave policy, which states –
For employees with less than 12 months qualifying service, the first 12 weeks of parental leave (even though it is without pay) counts as service for all purposes.
In this phone call I was also directed to section 11.9 of the Parental Leave Policy, which states –
An employee's past, present or likely pregnancy is not to influence a decision on the renewal of a temporary employee's contract.
[6]	Ultimately, the temporary contract extension offered was to cease on 3 June 2018 "being 6 weeks prior to Mrs Rolfe's expected due date …"  Notably, Ms Henney had been told by Ms Maharaj that even if Ms Rolfe was extended to 30 June 2018, she would not be eligible for paid maternity leave because the required 12 month qualifying period would not be met.  So even if Ms Rolfe's temporary contract had ended on 30 June 2018 - rather than on 3 June 2018 - she would not have been entitled to paid maternity leave then either.

[7]	Ms Rolfe took some time to consider this offer but eventually accepted it on 13 March 2018.  Ms Henney's evidence was that Ms Rolfe advised her that the delay in signing the contract extension to 3 June 2018 was due to the possibility that her husband may have a new job; her desire to work part time if that eventuated; and plans for a family holiday after her contract ended on 31 March 2018 but before the new baby came.  

[8]	However, in the period between announcing her pregnancy and accepting the contract extension offered, Ms Rolfe avidly pursued a paid maternity leave consideration.  Those actions are fully detailed in Ms Rolfe's Statement of Facts and Contentions but include telephone calls to HR; reference to the Parental Leave policy; discussions with Ms Henney; emails to HR; emails to Ms Henney; and a meeting with Mr Tracey (Ms Henney's direct supervisor).  

[9]	In order for that benefit to be realised, Ms Rolfe's energies focused on securing another temporary contract.  Ms Rolfe submitted HR had advised that her that "I could take recreation leave at half pay to bridge the gap between when I would leave and when I was eligible for maternity leave".   Ms Rolfe understood from her discussion with HR that was possible if a further temporary contract was offered.

[10]	Ms Rolfe recounted a conversation with Ms Henney about the matter in early February 2018 in these terms:
… I spoke with Roslyn Henney at my desk and informed her that HR had advised her that if I were extended as we had previously been planning, I would be eligible for paid maternity leave.  The work we were planning for me would have required at least a further year and I think it was most likely that my contracts would have continued to be in line with what had been offered to Sarah Baggio, to June 30, 2019.
[11]	I note that Ms Rolfe had not worked with CHQ long enough to apply for conversion of her temporary employment arrangement to permanent, so that avenue for securing paid maternity leave was closed to her.  

[12]	Notwithstanding that, Ms Rolfe asserted that "this isn't a case about paid maternity leave".  Ms Rolfe told the Commission that her case was about "two things: the way that my contract was handled and the way I was treated when I highlighted it was not being handled in line with their own policies, ethically or legally."

[13]	Ms Rolfe alleged that she was discriminated against on the basis of 'sex' and 'pregnancy'.  She further complained of 'victimisation' and an 'unlawful request for information'.  

[14]	Ms Rolfe asserted the Respondents breached the Anti-Discrimination Act 1991 (Qld) (the AD Act) by:

a)	Not renewing her employment contract because she was pregnant, despite further planned work;

b)	Calculating the end-date of her employment contract by reference to her due date;

c)	Telling her that her employment contract needed to be stopped and then re-started, in case CHQ needed to employ someone to cover her parental leave absence;

d)	Treating her in a way that was uncivil and unprofessional;

e)	Reallocating work that was planned to have been performed by Ms Rolfe;

f)	Requesting information about her husband's work, her social supports and her desire to return to her job;

g)	Refusing to properly investigate Ms Rolfe's complaint about their failure to offer ongoing employment due to her pregnancy.

[15]	The Respondents denied contravening the AD Act.

Claim details

[16]	Ms Rolfe filed a complaint in the Queensland Human Rights Commission (QHRC) on 3 June 2019.  

[17]	The QHRC accepted the complaint pursuant to ss 136 and 141 of the AD Act.

[18]	The Referral Notice from the QHRC states that the complaint "relates to or includes work or the work-related area". 

[19]	The matter was not resolved at the QHRC and so was referred to the Queensland Industrial Relations Commission (the Commission) on 30 August 2019.

Standard of Proof

[20]	The onus is on Ms Rolfe to prove her case on the balance of probabilities.  

[21]	The standard of evidence is summarised in Briginshaw v Briginshaw, where the High Court stated that:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  

Witnesses

[22]	There were 2 witnesses for the Complainant's case:

•	Ms Melanie Rolfe (the Complainant herself); and

•	Dr Stephanie Huxley (General Practitioner).

[23]	There were 5 witnesses for the Respondents' case:

•	Ms Arisha Maharaj (in the relevant period, she held position of 'Senior Human Resources Business Partner' at CHQ HHS);

•	Ms Courtney Mumford (in the relevant period, she held position of 'Human Resources Business Partnering Advisor' at CHQ HHS);

•	Ms Elle Ackland (in the relevant period, she held position of 'Manager, HR Business Partnering and HR Operations' at CHQ HHS);

•	Mr Francis Tracey (the Second Respondent himself; in the relevant period, he held position of 'Executive Director of Clinical Services' at CHQ HHS);

•	Ms Roslyn Henney (the Third Respondent herself; in the relevant period, she held position of 'Service Manager for Queensland Youth Cancer Service' at CHQ HHS).

Evidence and submissions

[24]	Written closing submissions were directed in the order Complainant - Respondents - Complainant (in reply, on issues of law only).

[25]	The Complainant's written closing submissions were filed on 31 January 2023.

[26]	The Respondents' written closing submissions were filed on 1 March 2023.

[27]	The Complainant's written closing submissions in reply were filed on 17 March 2023.

[28]	The evidence of the witnesses and exhibits tendered at the Hearing, together with the written closing submissions of the parties and their Statements of Facts and Contentions, and other filed materials were considered in this Decision.  I have determined not to approach the writing of this Decision by summarising the entirety of the evidence provided and submissions made, but will instead refer to the parties' positions in my consideration of each question to be decided.

Summary of Findings

[29]	I find that Ms Rolfe's claim of direct discrimination is made out, in part.  For the reasons I have set out below, I accept Ms Rolfe's allegations that her employment contract was not renewed, the end date of her contract was calculated by reference to her due date and she was told her contract needed to be stopped and then re-started because of the protected attribute of her pregnancy.

[30]	I find that s 124 of the AD Act (regarding unlawful requests for information) was not contravened.

[31]	I find that s 130 of the AD Act (regarding victimisation) was not contravened.

[32]	CHQ accepted it is vicariously liable for any actions of the Second Respondent and / or the Third Respondent, in the event the Commission finds that the AD Act has been contravened.  

[33]	I have decided the appropriate remedy is that CHQ pays to Ms Rolfe:

a)	An amount of $17,491.12 for past economic loss;

b)	An amount of $15,000 as general damages;

c)	An amount of $3,274 for medical costs; and

d)	An amount of $1,276 for witness costs.  

That is, the amount of compensation awarded to Ms Rolfe is $37,041.12.

[34]	CHQ shall pay interest on the above amounts, to be calculated at the rate applicable under the Supreme Court Practice Direction 7 of 2013 Interest Rates. 

[35]	I have also decided that a nominated representative of the First Respondent, CHQ, shall provide a written private apology to Ms Rolfe within 28 days of this Decision. My reasons follow. 

Direct discrimination

[36]	Ms Rolfe said that she was discriminated against because she is 'female' and was 'pregnant'.  It is accepted that Ms Rolfe had those protected attributes.

[37]	Part 2 of chp 2 of the AD Act identifies "Prohibited grounds of discrimination".  Section 7 prohibits discrimination on the basis of various defined "attributes", including the attributes in s 7(a) of "sex" and s 7(c) of "pregnancy".  

[38]	Part 4 of chp 2 of the AD Act identifies "Areas of activity in which discrimination is prohibited".  The areas of activity are set out in div 2 through to div 11. 

[39]	Division 2 of pt 4 deals with "Work and work related areas". Section 15 identifies types of discrimination in the work area.  

[40]	The meaning of direct discrimination is set out at s 10 of the AD Act:

(1)	Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
	Example—
		R refuses to rent a flat to C because—
•	C is English and R doesn't like English people
•	C's friend, B, is English and R doesn't like English people
•	R believes that English people are unreliable tenants.
In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.
(2)	It is not necessary that the person who discriminates considers the treatment is less favourable.
(3)	The person's motive for discriminating is irrelevant.
	Example—
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.
(4)	If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
(5)	In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
[41]	For the complaints of direct discrimination, the questions to be decided in this part are:

•	Was Ms Rolfe treated, or proposed to be treated, less favourably than another person without the protected attributes of 'being female' and 'pregnant', in circumstances that are the same or not materially different?

•	If it is decided that a 'less favourable' treatment occurred, were the protected attributes a substantial reason for that?

[42]	The AD Act requires Ms Rolfe to identify an appropriate real or hypothetical comparator without the attribute(s) that she was treated 'less favourably than' in circumstances that are 'the same or not materially different'.  Further, if there is more than one reason for the less favourable treatment, Ms Rolfe must persuade me that the protected attributes were a substantial reason for the differential treatment.

"In circumstances that are the same or not materially different"

[43]	Considering 'circumstances that are the same or not materially different' requires a comparison with a person without the particular 'attribute', but otherwise in the same position in all material respects as the complainant.

[44]	Either a real or hypothetical comparator may be used in judging whether or not the 'less favourable' treatment has occurred.

A suitable comparator

[45]	In order to decide whether or not Ms Rolfe was treated less favourably than another person without the particular protected attributes, a suitable 'comparator' must be determined.

[46]	Ms Rolfe initially submitted that the comparator was an employee of CHQ HHS without the attributes of being female and pregnant "who had been planning further work with their manager …"  However, Ms Rolfe later submitted that the comparator to be used ought to be "Sarah Baggio, who was employed in similar circumstances to me and offered ongoing work.  She has had consistent fulltime employment with CHQ since my contract ended due to internal CHQ opportunities."

[47]	The Respondents submitted that Ms Baggio was not an appropriate comparator because she was not "a person in the same circumstances without the protected attribute …"  Rather, the position held by Ms Rolfe was "an extra position which was created to serve a specific need for a finite period.  Ms Baggio's circumstances were different in a number of ways, including that she moved to a different role in a different capacity prior to the expiration of her contract."

[48]	In my view, Ms Rolfe did not provide sufficient evidence at the Hearing to persuade me that Ms Baggio was an appropriate real comparator to use in this legal test.  As Ms Baggio was not called as a witness in this matter, I simply do not know and cannot proceed with the required confidence that Ms Baggio is a suitable comparator.  As Ms Rolfe claimed she was discriminated against because she was 'female' and 'pregnant', Ms Baggio seemingly has one of those protected attributes at least.

[49]	The alternative is that a hypothetical comparator should be used and, in the absence of an appropriate real comparator, my consideration will proceed on that basis.  The hypothetical comparator is another CHQ employee, working as a Project Officer on a fixed term temporary contract, without the attributes of being 'female' and 'pregnant'.

The 'less favourable' treatment alleged

[50]	Haines v Leves described the test such that:

The words "less favourably" … requires a comparison of the treatment in the actual and in an hypothesised case … A "detriment" concept of discrimination has hitherto been adopted … The motives, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected.  

[51]	Ms Rolfe described the 'less favourable treatment' as:

•	Being treated unfavourably by the First, Second and Third Respondents;
•	Being dismissed from work by the First Respondent;
•	Being denied opportunities which would have contributed to her career development by the Third Respondent.

[52]	Specifically, Ms Rolfe asserted the discriminatory acts were: 

•	Failing to renew her employment contract; 

•	Calculating the end-date of her employment contract with reference to her due date; 

•	Telling her that her employment contract needed to be stopped and then re-started, in case CHQ needed to employ someone to cover her parental leave absence; and 

•	Refusing to properly investigate her complaint about their failure to offer ongoing employment due to her pregnancy.

Did the conduct alleged occur?  If so, does it constitute 'less favourable' treatment?

[53]	Determining those allegations requires me to first establish the facts of the treatment received. Put another way, has Ms Rolfe proved - on the balance of probabilities - that the conduct alleged actually occurred?  If so proven, how would the Respondent(s) have treated the hypothetical comparator in the particular circumstances?  Further, if it was found that the Respondent(s) treated Ms Rolfe differently to how they would have treated the hypothetical comparator, the question that follows is whether the different treatment amounted to 'less favourable' treatment.

Alleged failure to renew Ms Rolfe's employment contract

[54]	Ms Rolfe's fixed term employment contract with CHQ ended on 3 June 2018.  CHQ did not offer a further contract to Ms Rolfe.  That fact is not in dispute.

[55]	Ms Rolfe's allegation is that the Respondents did not offer her a subsequent fixed term employment contract because she had the protected attributes of being 'pregnant' and 'female'.  

[56]	It is not disputed that Ms Rolfe applied for a temporary fixed term full time position "up to 6 months (with possible extension)" to undertake project activities within QYCS "assisting statewide collaboration and engagement which improve service delivery to optimise seamless transition across the cancer care pathway."  

[57]	It is also true that Ms Rolfe's temporary contract was extended more than once.  However, those extensions do not alter the fact that Ms Rolfe continued to be employed on a temporary contract, with no guarantee of further work beyond the particular cessation date provided for in each successive contract extension.  In cross examination, Ms Rolfe reasonably conceded that the letter of offer she received from CHQ made clear that the temporary employment was for the period 31 July 2017 to 4 February 2018, and that "Continuation or extension of employment in this position cannot be guaranteed beyond the end date stated above."

[58]	The protections provided in the AD Act apply to temporary fixed term employees.

[59]	It is uncontroversial that on 3 November 2017 Ms Rolfe accepted an extension to the temporary fixed term contract, for the period from 1 February 2018 and ending on 31 March 2018.  The final contract accepted by Ms Rolfe ended on 3 June 2018.  In light of the explanation above, it follows then that further employment as a project officer with CHQ was not guaranteed beyond 3 June 2018.  While I find it curious that CHQ only offered Ms Rolfe a temporary fixed term contract for a period of 6 months initially, in circumstances where 12 months funding was said to have been secured for the project, that is not central to this discrimination claim.  For the purposes of this Decision, the words of the contract entered into were clear.  

[60]	Ms Rolfe accepted the proposition that the project assigned to her upon commencing employment with CHQ was the Community Connections Project" and that a recommendations report needed to be prepared at the end of it.  In evidence was the minutes of the first meeting of the Project Reference Group, held on 31 August 2017.  Those minutes set out the 'Timeframe' as (emphasis added):

All recommendations to be delivered by February 2018 (Phase 1) to review and decide education paths and future projects relevant to outcome for Phase II if needed.

[61]	In closing submissions, Ms Rolfe was critical of Ms Henney's evidence that she "was only ever employed to undertake the first phase of the Community Connections project, to get to recommendations …"  At the Hearing though, Ms Rolfe agreed with the proposition put to her in cross-examination that the words at [60] above meant there was no guarantee of further work to implement any recommendations at that time, "it was just if needed".  That was an appropriate concession to make, given the simple meaning of the words on the page.  The contemporaneous document developed just a month after Ms Rolfe commenced work with QYCS shows that while it was possible that there may be a further phase of the project ('Phase II'), it was not certain to be the case.

[62]	Ms Rolfe asserted that "… there was a planned second phase of the Community Connections Project to implement the recommendations which was taken off of me due to my pregnancy and my enquiries about the contract handling …"  To support her claim, Ms Rolfe noted the Respondents had earlier agreed with her that the "phases of the Project were as alleged".  However, what the Respondents had accepted to be accurate was Ms Rolfe's statement that (emphasis added):

I was employed initially as the Project Lead on the Community Connections project and to undertake the service's communications work.  The Community Connections project had an initial phase, to get to recommendations, and a projected second phase, implementing the recommendations.

[63]	I accept that the Respondents only agreed with Ms Rolfe that the project had a 'projected' second phase, that is less certain than if it were 'planned' or otherwise 'confirmed', in my view.  For all those reasons, the arguments advanced by Ms Rolfe have not yet evinced in my mind the actual persuasion required to decide this matter in her favour.

[64]	At the Hearing, Ms Rolfe was also taken to minutes of a team meeting held on 14 December 2017, that she and Ms Henney both attended.  Ms Rolfe accepted the proposition put to her that the references made to the GP and Community Connections projects reflected that she had raised the possibility of a future project that she and Ms Baggio would look into, including investigating whether there was funding for it, but that none of that was guaranteed.  I cannot be satisfied then that represented work denied to Ms Rolfe because she was pregnant and female either.

[65]	Later in that same meeting, the topic of '2018 Video Conference Series' was discussed. Ms Rolfe agreed that the February 2018 speaker was confirmed to be "Janine" but that while "everyone was happy" with the topics it still "needs a clear plan" or "some more details, yes".  While a calendar of events for 2018 was in evidence that indicated a presentation about the Community Connections project would be made in October, it was accepted that it was still very much a working draft at that time.

[66]	Later, a document titled 'Queensland Youth Cancer Service 2018 Video Conference Series' was developed that was more detailed.  That document now did not contain any reference to an October presentation about the Community Connections project, instead the words "NEW TOPIC" appeared against that month on the typed document (with the notation "Survivorship & Transition" in Ms Rolfe's handwriting).  The Respondents' representative noted that the document footer read "V 1.1 22nd December 2017" - a date prior to Ms Rolfe's pregnancy announcement.  However, Ms Rolfe suggested that the version number on the footer was not updated and was quite adamant in her evidence that she clearly recalled the context of the discussion was that "because I wouldn't be there, we need to find a new topic" and that the speaker was looking at her when she said it.  I believe Ms Rolfe's explanation about the footer not being updated and the meeting occurring after her pregnancy announcement, not before.  Her recall of the context of the discussion at the meeting, with the speaker looking at her as the matter was being discussed, is a credible account.  The Respondents' witnesses gave evidence that others were better suited to give the presentation.  However, I also appreciate that the Videoconference series was an important service to young people with cancer and note the document described it to be "… a multidisciplinary education event, with ten lectures per year delivered by recognised experts."  While Ms Rolfe has perceived this to be an example of an opportunity denied and work being taken away from her because she was pregnant, my perspective is different.  The lecture series was an important support for young people with cancer.  At a very practical level, if Ms Rolfe's baby was due around July 2018, an alternative plan for the October presentation would very likely be needed.  In my view, the 'substantial reason for the treatment' was the need to set in place a forward plan of speakers and lecture topics for the 2018 year, not to deny the professional opportunity to Ms Rolfe because she was pregnant.

[67]	Ms Rolfe submitted that "The planning undertaken in my performance and development planning meetings … indicate that the project had progressed to a point where the planning for implementation had occurred, and my work plan was approved to include other projects before I brought up the issue of the way my contract was being handled around my pregnancy."  Ms Rolfe referred to the second PDP meeting document completed with Ms Henney on 29 January 2018, noting at that time she had announced her pregnancy but not yet mentioned paid maternity leave.  Ms Rolfe drew to the Commission's attention to extracts of that PDP document including (my emphasis):

Future Plans – April 2018 onwards
-	Current state of the Community Connections Project suggests some recommendations may be –
o	Cancer Experience Map (consumer and clinician use)
•	Investigation of CALD needs

-	In addition to development of initiatives to come out of the project, other portfolios include

[68]	Ms Rolfe represented that the document "goes on to indicate a number of other pieces of work I was to undertake, including Archway".  Ms Rolfe denied the Respondents' suggestion that Ms Henney's notes were about work already done or "programs or groups that already existed that addressed these particular topics or issues". With respect to Ms Henney's handwritten notation "Investigate the potential of a formal QYCS collaborative," Ms Rolfe asserted it "is clearly a future-focussed piece of work, and thus their position that the notes indicate work which was already being done by other people doesn't stand."  Ms Rolfe concluded that the future planning contained in the PDP document showed work to do had evolved beyond "the purpose of getting to recommendations, as has been stated by the Respondents."

[69]	The Respondents' position was that "Regardless of any flow-on work which may have arisen as a result of the Community Connections Project" Ms Rolfe was never told her position would extend past 30 June 2018 and indeed it was only funded for 12 months.  Further, that discussions with Ms Rolfe about any "ongoing work which might be required … were aspirational, and not work which others expected would be undertaken by the complainant personally in the long-term or within the temporary position she held."  The Respondents also noted that references to ongoing work in the PDP was "work that would likely need to be undertaken in the future but not necessarily by the complainant."  

[70]	The Respondents submitted that "It is important to note that the PDP in question was not signed off by the respondents not finalised."  In support of that submission, reference to the Hearing transcript is cited at T 1-28, lines 37-39 and T 1-30, lines 7-8.  While I note that the first PDP completed on 19 December 2017 was not signed by either Ms Henney or Ms Rolfe (as accepted by Ms Rolfe at the Hearing), the same cannot be said about the particular "PDP in question" (that is, the PDP dated 29 January 2018).  That document was initialled by Ms Henney, as "Line manager / Delegate" on the front page under "Certification for reporting."  When it was put to Ms Rolfe in cross-examination that "In any event, this PDP was never signed or finalised either, was it?" Ms Rolfe replied, "I didn't sign it."  It is true that Ms Rolfe did not sign the 29 January 2018 PDP, however Ms Henney did initial it where indicated.  For that reason, the Respondents' intimation that the document ought be given little weight is not accepted.

[71]	The Respondents also appeared to minimise the usefulness of the PDP document in its closing submissions in these terms (emphasis added):
The PDP document is a generic template which contains automatically populated information.  It is a requirement that all Government employees undertake periodic PDP meetings with their supervisors to identify short-term and long-term objectives of the relevant business unit, in order to ensure the work of the employee fits within those strategic goals.  The PDP document is not necessarily an accurate representation of the expected workload of the relevant employee over a stated period.

[72]	I am unimpressed by that submission.  The first sentence on the Performance and Development Plan (PDP) specifically states "Prior to PDP meetings, please refer to the CHQ HHS PDP Guide available on the CHQ intranet to ensure that the PDP process is implemented in accordance with relevant policies and this tool is used and reported appropriately."  Unsurprisingly perhaps, given its name, the first element of the PDP is "Performance" of the individual employee.  The details of the employee subject of the PDP are populated at the beginning of the document, directly under a "Rating scale" providing the key for "Individual Criteria Review" ranked between "1 Unsatisfactory / Not meeting expectations" to "5 Exceptional / Exceeds all / most expectations."  Beside it is another key titled "Overall 6 month / 12 month Review", that provides options of "Green", "Amber" and "Red" depending on whether the employee's "Performance meets or exceeds expectations" or not.  Self-evidently then, the PDP process concerns the performance of the individual employee.  The next section of the PDP document addressed development of work.  Ms Rolfe stated that the typed text was entered by her prior to meeting, whilst the handwritten notes were made by Ms Henney.  In the latter section of the PDP, Ms Henney has further elaborated various tasks to be done (including circling "Archway" in her own handwriting, for emphasis presumably) and also entered time periods for the work to be performed.  I note also that Ms Henney has made amendments to Ms Rolfe's typed text on the PDP document, where she appears to have a different view.  For example, under "Communications Portfolio", Ms Rolfe had typed the words "Development of website as AYA oncology resource".  Ms Henney's notation has changed the words to "Enhance QYCS website as AYA oncology resource & research other possible websites". Ms Henney made many notations on the latter section of the PDP document, which suggests that she had actively engaged with it.  Further, Ms Henney's amendments to Ms Rolfe's typed text persuade me that if she had a different view of the work indicated on the document, she would have likewise amended that too.  For those reasons, I cannot accept the Respondents' submission that "The PDP document is not necessarily an accurate representation of the expected workload of the relevant employee over a stated period".  That submission is at odds with the construction of the PDP document, which contained all the hallmarks of a tool to assess 'work that was done' and plan 'work yet to do', including portfolio areas, and timeframes.  Further, if the PDP process had such little utility (as the Respondents' submission appears to suggest) it is unfathomable that "all Government employees undertake periodic PDP meetings with their supervisors" to complete a report that "is not necessarily an accurate representation of the expected workload of the relevant employee over a stated period".  I am not persuaded by the Respondents' submission.  I instead accept Ms Rolfe's account that the January 2018 PDP document contained numerous references to future work relevant to the Community Connections project and others, such as Archway.  The series of calendar invites to meetings between Ms Henney and Ms Rolfe scheduled to December 2018 and 'accepted' also support Ms Rolfe's position.  I find Ms Rolfe's reasoning, set out at [68], to be sound.  

[73]	I also accept Ms Rolfe's argument that the timeframes handwritten in the PDP document such as "June beyond – Feb 2019" and "May 18 then beyond" showed her employment was to be extended beyond 31 March 2018 because there was more work for her to do - and that is what in fact occurred.  It follows than that these were not simply timeframes that applied to those programs that already existed, as the Respondents' representative had suggested. I consider Ms Rolfe's account to be more persuasive for those reasons.

[74]	I find Ms Rolfe's position that the documentary evidence of the PDP demonstrates that by 29 January 2018 there was further work planned for her to do, beyond 3 June 2018, to be well founded.

[75]	With respect to Ms Rolfe's involvement in the Archway project, she submitted that the documentary evidence supports her claim that plans were well underway for her to undertake this work.  Ms Rolfe noted that Ms Henney was "positive about my work and identifies that the project is on track to be completed by February" and that the two "had conversations regarding a number of other pieces of work for me to continue on with in this time, necessitating such a contract.  However Ms Henney's position is that the only other piece of work for me to undertake is the journal article, which would not necessitate 3-4 months of fulltime work."  

[76]	I also note the emails between Ms Henney and Ms Rolfe, Ms Henney and A/Prof Bradford, and A/Prof Bradford and Ms Rolfe in evidence between 24 January and 31 January 2018, that support the finding that it was more probable than not that Ms Rolfe would be working on Archway at that time.  

[77]	What changed between then and the decision that Ms Rolfe would not be working on Archway was: her pregnancy announcement and the researcher's change of employer.

[78]	The Respondents' position on the Archway allegation is summarised in the following correspondence from the Executive Director People and Culture, CHQ dated 30 July 2019 (my emphasis):

The Archway Project is a research project which was funded by the Cancer Nurse Society Australia and managed by Queensland University of Technology (QUT).  This project was initiated by a Nurse Researcher employed as a cojoint appointment between CHQ HHS and QUT.  On 17 August 2017, the Nurse Researcher resigned from CHQ HHS and was appointed by QUT to continue academic research and maintain leadership for existing research projects funded via QUT.  Through this movement, the governance of the Archway Project was removed from CHQ HHS and with it the decision to appoint research assistants.
I can confirm that there has been no employees engaged by QYCS subsequent to your departure from the organisation to coordinate the delivery of any projects resulting from either of these two internal short-term projects.

[79]	However, this account contradicts the evidence of an email from A/Prof Bradford dated 20 September 2021 listing four publications that had come out of the Archway project and funding.  What actually happened was that the Archway project was supported by, and the four publications co-authored by, another CHQ employee.  The evidence of both A/Prof Bradford's email and the emails referred to at [76] above persuades me that Ms Rolfe's account of events is to be preferred over the Respondents.  

[80]	In my view, Ms Rolfe's criticism of the Respondents' denials that she had been approved to work on the ARCHWAY project was justified in the circumstances.  

[81]	Ms Rolfe also disputed Ms Henney's evidence that the two project officer positions were both to conclude by 30 June 2018; noting the Respondents had earlier admitted that Ms Baggio had been offered further temporary employment but that she had declined it.  

[82]	Ms Rolfe submitted that CHQ's offer of a further fixed term contract to Ms Baggio supported her claim that there was more work to do in the project.  Ms Rolfe stated that CHQ had the budget to it, pointing to the evidence of meeting minutes regarding the distribution of unspent funds.  Ms Rolfe also noted that CHQ had a clear intent to move beyond Phase 1 of the project recommendations, as demonstrated by her 'performance and development planning' documentation.  Ultimately, Ms Rolfe concluded that (my emphasis):

Given that no one else was employed to undertake the GP project after Ms Baggio turned down the offer of future work, that I had been undertaking most of her project in her absence due to sickness, and that Ms Henney identifies in written testimony (p590 agreed bundle, para 7) that I was the next most meritorious for this role during interview, it's logical to project that I would have additionally been offered the work from the GP project had there been no other issues around my contracts occurring.

[83]	While the Respondents' asserted that it was in fact another employee who had been allocated as person responsible for the GP Project in Ms Baggio's absence, Ms Rolfe's submission was that was a senior officer of CHQ who did not actually perform the project work in the relevant period of leave.  That is a reasonable proposition and I accept it to be true.

[84]	For those reasons, I accept Ms Rolfe's argument that the combination of factors including CHQ's offer of further work to Ms Baggio, remaining funds for distribution, the performance of work in the GP project for the period of Ms Baggio's absence and the acknowledgement that she was second in the merit listing are persuasive in finding that her contract would have been again extended, if not for the circumstance of her pregnancy.

[85]	The Respondent referred to the evidence of Ms Henney that the project officer position held by Ms Rolfe was a "luxury" and was "deactivated at the end of that financial year, which was 30th of June 2018", concluding that showed the position was always temporary.  However I do not accept this to be evidence that there was no further work  for Ms Rolfe to perform.  Her temporary contracts were extended twice in less than a year working with CHQ, and so while the term of the temporary contract an employee is appointed to ought to accurately reflect the period of the short-term need, it clearly did not in this case at least.  

[86]	The other point I would make about the Respondents' argument that 'the deactivation of the position at the end of Ms Rolfe's final temporary contract proved the position was always temporary' is that CHQ was cognisant of the risk that Ms Rolfe may embark on litigation by 8 March 2018 at least - well ahead of the conclusion of Ms Rolfe's contract on 3 June 2018.  In the email from Ms Ackland dated 8 March 2018, she advises Mr Tracey and others that:

This matter is concerning given the change in tone – Melanie is alleging that we have made a decision on her future employment based on her pregnancy.
We will prepare a response as this allegation is not correct, and there are risks around allegations with a discriminatory intent.

[87]	Mr Tracey replied to Ms Ackland's email soon after, asking his colleagues to carefully mind matters of procedural fairness, witnesses to future meetings, and to brief "on the risk" in these terms:

As we progress through this process can we please ensure:
•	Melanie is provided with access to advice and support through our EAP,
•	she be advised that she has the option to have a support person (and or industrial partner) present for any future meetings
•	to arrange for Arisha to brief Roz H on developments and ask that Roz have someone from HR attend any future meetings with Melanie until this matter is resolved
•	you please brief Michael Aust on the risk.

[88]	For all those reasons, I find that CHQ failed to renew Ms Rolfe's employment contract because of her pregnancy.

Alleged calculation of the end-date of Ms Rolfe's employment contract with reference to her due date

[89]	In her Statement of Facts and Contentions, Ms Rolfe explained how her final contract came to be extended to 3 June 2018, "contrary to the advice (Ms Henney) had given about my future employment timelines in our December meeting, before I announced my pregnancy", stating:

I watched (Ms Henney) count back 6 weeks from July 15 to calculate this, as I could not recall if July 14 or July 16 was my most recent due date.  She outlined what work I would do before I left to have my baby – including work on some of the project recommendations and the Archway Project – and what work would wait until after I returned in early 2019.  She stated there was 'plenty of work' for me.  She stated that my contract needed to be stopped and restarted in case the service needed to pay someone to fill my role while I was absent.  I have a record of this performance meeting.

[90]	In her email dated 8 March 2018, Ms Rolfe stated that "My initial hesitation to sign it was because we had previously discussed the next contract being to June 30, and I had wanted to work up until June 14, and it didn't seem right that this was being changed because of my pregnancy, a fact that was outright stated by Roz."  

[91]	Ms Rolfe submitted that "The respondents have acknowledged that the decision around my contract end date was made with reference to my pregnancy due date, and that this at least took a few weeks work off of me."  

[92]	Ms Rolfe pointed to the Respondents' "own HR witnesses" evidence that "a contract could not and would not be calculated with reference to a due date … And that even though I was telling the HR department this was how my contract was calculated, nothing was done about it." 

[93]	Initially, the Respondents appeared to deny that Ms Henney changed Ms Rolfe's contracts because of her pregnancy.  However, Ms Henney's affidavit later clarified that she had considered Ms Rolfe's due date in setting the end date of her contract in these terms:

I gave consideration to Mrs Rolfe's pregnancy status in respect of her employment contract on one occasion namely, in identifying the date of 3 June 2018 as the appropriate end date of Mrs Rolfe's contract.  My consideration of Mrs Rolfe's pregnancy status in this regard was in line with the Parental Leave Policy which states that an employee must cease work 6 weeks prior to their expected delivery date, unless they have medical clearance to continue working.

[94]	The Respondents submitted that "The Policy is designed to benefit pregnant mothers around the time leading to the birth of their child, and therefore it does not constitute discrimination under the AD Act."  Sections 103 and 104 of the AD Act are cited in support of that submission.  However, Ms Rolfe does not complain that the Parental Leave Policy itself is discriminatory - but rather, the way it was applied to her circumstances were.  The Respondents closing submission argued that it was Ms Rolfe's fault that her contract was not extended beyond 3 June 2018 because she had not taken the required steps to obtain a medical certificate that would have permitted her to do so (my emphasis):

… in the full knowledge of the requirement to produce a medical certificate, the complainant did not undertake or suggest that she would obtain that certificate to enable her to work past 3 June 2018.  As such, the respondents were entitled to act as they did to the benefit of the complainant, being a member of a group of people with an attribute for whose welfare the policy was designed.  The purpose of that act was not inconsistent with the object of the AD Act.

[95]	I am unpersuaded by the Respondents' submission that Ms Rolfe's contract end date was not extended past 3 June 2018 because she failed to provide a medical certificate.  That argument is entirely inconsistent with the documentary evidence of the email exchanges between Ms Rolfe, the Respondents and HR between 6 - 8 March 2018 that makes clear that the only contract extension on offer to Ms Rolfe was to 3 June 2018.  Whilst there were several emails from HR to Ms Rolfe in this period, she was not told that an extension beyond 3 June 2018 was possible upon provision of a medical certificate.

[96]	While I do acknowledge the Respondents' submission that "In the alternative, if the Commission finds that the third respondent's reliance on the Parental Leave Policy in this matter was misconceived, that error was made honestly and in good faith", the AD Act provides that "It is not necessary that the person who discriminates considers the treatment is less favourable.  The person's motive for discriminating is irrelevant."

[97]	For all those reasons, I find that CHQ only extended Ms Rolfe's employment contract to 3 June 2018 because of her pregnancy - and that the general exemptions for discrimination under ss 103 and 104 of the AD Act do not apply to that act.  
Alleged statement that Ms Rolfe's employment contract needed to be stopped and then re-started, in case CHQ needed to employ someone to cover her parental leave absence

[98]	Ms Rolfe contended that Ms Henney made the comment to her in a performance and development meeting on 29 January 2018.  The Respondents denied it. 

[99]	In circumstances where the two witnesses have differing recollections of the alleged statement, I consider the contemporaneous documentary evidence to be most significant.  In this case, the email from Ms Rolfe to A/Prof Natalie Bradford dated 31 January 2018 states "… I'm currently researching with HR my entitlements to maternity leave, as she wants to stop my contract and then restart it after …"

[100]	On the balance of probabilities, consistent with the findings I have made above, I accept it is more likely than not that Ms Henney did state that Ms Rolfe's employment contract needed to be stopped and then re-started.  My observations at [95] above are also relevant here.

Alleged refusal to properly investigate Ms Rolfe's complaint about the failure to offer her ongoing employment due to pregnancy

[101]	Ms Rolfe stated that Mr Tracey inquired about "her husband's line of work and my preference to work in a home environment after having a baby" to determine whether or not to investigate her complaints.  The Respondents denied that allegation.

[102]	The documentary evidence before the Commission shows that Mr Tracey did consider Ms Rolfe's complaints.  Mr Tracey met with Ms Rolfe on 26 February 2018 and she acknowledged "I really appreciate your time to listen".  After the meeting, Ms Rolfe followed up with Mr Tracey in writing, outlining the "additional elements which I believe need to be considered in deciding on this matter."  A very comprehensive table of evidence of intention to extend Ms Rolfe's contract was included in that correspondence.  In my view, it was most considerate of Mr Tracey to reply to Ms Rolfe at 8:29 pm that evening, thanking her for the information provided and setting out the next steps as "I will engage with HR and Roz to provide you with advice on CHQs position on the matter.  I suggest you continue to meet with Roz as your line manager to ensure completion of your project work."  

[103]	Mr Tracey did so enlist assistance from HR as he had indicated, that is demonstrated in the various emails dated on or around 8 March 2018.

[104]	While it is clear that Mr Tracey did not ultimately accept Ms Rolfe's account of events, that does not mean he did not properly consider it.  At the Hearing, Mr Tracey was asked how he came to decide to believe Ms Henney over Ms Rolfe.  His evidence was as follows:

Ms Rolfe:	So in the last email where you said – where we were asking about the commitment phase, you were saying that Roz had not made any indication that she'd made a commitment about ongoing employment.  Here, I'm saying I've got some things in writing.  How did you decide that Roz was the person to be decided – to be believed, sorry?

Mr Tracey:	Because Roz was the line manager and the person responsible for this project.  These are your words, and your interpretation of what you saw as the work you were involved with.

Ms Rolfe:	Right?

Mr Tracey:	So when Roz escalated the matter to me, and when you saw me as Roz's one-up line manager – of course I talked with Roz about her making –

Ms Rolfe:	Yep?

Mr Tracey:	- the decisions

Ms Rolfe:	Yep?

Mr Tracey:	- ultimately about the work.

Ms Rolfe:	Right?

Mr Tracey:	And then I would be consulted on what that would look like as we moved on into the future.

Ms Rolfe:	Okay.  Did you ever have a meeting with Roz and myself to discuss the matter?

Mr Tracey:	I honestly don't recall.

Ms Rolfe:	So there was no – I was saying one thing and Roz was saying another thing and you spoke to Roz and decided that she was being truthful.  That's how it was, sort of, decided?

Mr Tracey:	No.  That's not accurate.

Ms Rolfe:	Okay?

Mr Tracey:	I spent a lengthy period of time speaking with you –

Ms Rolfe:	Yep?

Mr Tracey:	- about the matter.

Ms Rolfe:	Right.  But you can't recall if you ever asked to see the evidence that I said that I had?

Mr Tracey:	I saw the evidence that you provided, copious evidence in an email trail.  So I read that –

Ms Rolfe:	Okay?

Mr Tracey:	And I spent time speaking with you, I think, probably an hour or more.

Ms Rolfe:	I don't recall it was that long.  So do you – when you say I provide copious evidence, are you talking about this table here?

Mr Tracey:	Yes

[105]	With respect to Ms Rolfe's complaint that Mr Tracey appeared to accept Ms Henney's version of events over hers without any good reason, Mr Tracey's evidence sets out his reasoning for doing so.

[106]	I also note the email from Mr Tracey dated 8 March 2018 stated:

I am concerned about Melanie's interpretation of events and her recall of conversations, we now have two instances of her recollection not being supported by those she has engaged with.

[107]	The above email was sent by Mr Tracey less than two weeks after his meeting with Ms Rolfe.  In it, Mr Tracey firmly rejected Ms Rolfe's email assertion to Ms Ackland (of same date) that it was he who asked her about her husband's employment.  

[108]	Mr Tracey's email dated 8 March 2018 set out his account of that conversation - and helpfully included an extract from his email to Ms Rolfe sent the evening of their meeting:

Can I please draw your attention to the reference Melanie has made to our conversation of the 26th Feb re my enquiry about her husband's employment status…Her assertion that I 'specifically asked her about her husband's employment' is not correct.

Her husband's employment status arose in the context of Melanie talking in general terms about her family's current personal circumstances and her acceptance or otherwise of CHQ's offer of an extension to her current contract.  I asked Melanie if she intended to accept the offer, she responded by saying her acceptance was dependent on her husband's employment status, she then went into detail about his application for a role within Queensland Rail, she expressed her frustration about how long the process had taken and explained some of the reasons why.  This is shy I referred to the matter in the email to her of 26th Feb 8:29 pm following the meeting earlier that afternoon.

I refer you to an extract from that email:

… Just a point of clarification – can you please confirm – you advised your current contract extension ends as of 31st March 2018, you have however been offered a further extension until 3rd June 2018 but are yet to determine if you will accept the extension offered, you explained your acceptance is contingent on the outcome of your husbands job application which has not yet been advised.

[109]	Where the recollections of two witnesses differ as to 'who' it was that raised the matter of Ms Rolfe's husband's employment status, I have preferred to rely on the documentary evidence of the email sent by Mr Tracey to Ms Rolfe that same day.  That is consistent with the approach I have also taken at [98]-[99] above.  It is for this reason that I prefer Mr Tracey's recollection to Ms Rolfe's here.

[110]	Further and in the alternate, I have reflected too that whilst Ms Rolfe complained that Mr Tracey preferred Ms Henney's version of events over hers without explaining 'why', the answer to that may also lie in the extract of his email at [105]-[107].  Mr Tracey's email described his personal experience of Ms Rolfe attributing to him a statement that he had differently recalled was made by her.  It follows then that, through this lens, Mr Tracey chose to believe Ms Henney's account over Ms Rolfe's, in circumstances where the two differed.  

[111]	I do not accept that this particular allegation has been made out to the required standard of proof.  

If so, were the protected attributes a substantial reason for the 'less favourable' treatment?

[112]	For the reasons explained above, I have found that the Respondents engaged in the following conduct, as alleged:

•	Failed to renew Ms Rolfe's employment contract; 

•	Calculated the end-date of Ms Rolfe's employment contract with reference to her due date; 

•	Told Ms Rolfe that her employment contract needed to be stopped and then re-started, in case CHQ needed to employ someone to cover her parental leave absence.

[113]	The failure to offer Ms Rolfe a further extension to her temporary contract, in circumstances where I have earlier accepted that future work was planned for her to do, constitutes 'less favourable treatment' than CHQ would have afforded to the hypothetical comparator.  In other words, but for the protected attribute of 'pregnancy', I find that Ms Rolfe would have had her temporary contract extended for a third time.  

[114]	I have considered whether perhaps Ms Rolfe was not offered a further extension to her temporary contract beyond 3 June 2018 because by that time the working relationship had became unpleasant, distracted or otherwise unproductive.  However, even if this were the case, the reason for it was the disputed matters arising from the fact of Ms Rolfe's pregnancy.  In that case, Ms Rolfe would still have been treated less favourably than the hypothetical comparator because of the protected attribute of 'pregnancy' as it "is a substantial reason for the treatment."

[115]	While I do not accept Ms Rolfe's contention that she would still have been working at CHQ, if not for the discrimination, it is reasonable that she would have been up until the latest date nominated on the January PDP (that is, March 2019).  The extent of the financial loss to Ms Rolfe must be offset by any income earnt in the period between 3 June 2018 and March 2019, and any time that she was not otherwise ready for work.

[116]	The calculation of the end-date of Ms Rolfe's employment contract with reference to her due date also constitutes 'less favourable treatment' than CHQ would have afforded to the hypothetical comparator.  The Respondents have submitted that while funding for the position had been approved until 30 June 2018, Ms Rolfe was offered a second extension to her temporary contract to 3 June 2018 because that was 6 weeks prior to her due date.  That occurred notwithstanding Ms Rolfe had stated that she had wanted to work up to 14 June 2018, before she eventually signed the only contract extension offered to her.  In other words, but for the protected attribute of 'pregnancy', I find that Ms Rolfe would have had her temporary contract extended to 14 June 2018, rather than 3 June 2018.

[117]	The extent of the financial loss to Ms Rolfe for that contravention was the period of time between 3 June 2018 and 14 June 2018.  

[118]	On the balance of probabilities, I have earlier found it more probable than not that Ms Rolfe was told that her employment contract needed to be stopped and then re-started, in case CHQ needed to employ someone to cover her parental leave absence.  That act also constitutes 'less favourable treatment' than CHQ would have afforded to the hypothetical comparator, though no financial loss can be directly attributed to that particular conduct.  In other words, but for the protected attribute of 'pregnancy', I find that Ms Rolfe would not have been told that her contract needed to be stopped and restarted in case her parental leave absence needed to be covered.  

Unlawful requests for information

[119]	The question to be decided in this part is:

•	Whether or not Mr Tracey made an unlawful request for information, under s 124 of the AD Act?  That is, did Mr Tracey ask Ms Rolfe to supply information on which unlawful discrimination might be based?

[120]	Ms Rolfe alleged that Mr Tracey made unlawful requests for information in a meeting with her on 26 February 2018.  Specifically, that Mr Tracey requested information about her husband's work, her social supports and her desire to return to her job.  Ms Rolfe submitted that "… the information requested does not pertain to eligibility criteria for contract extensions or maternity leave entitlements.  This information was used by the Second Respondent Frank Tracey to decide not to intervene in the Applicant's complaint of direct discrimination against the Third Respondent."

[121]	The Respondents denied the allegation.  Mr Tracey affirmed that:

During the meeting, Mrs Rolfe spoke about her family's personal circumstances and her acceptance or otherwise of the offer for an extension of her contract.  I recall asking Mrs Rolfe if she intended to accept the offer and she stated that her acceptance was dependent on her husband's employment status.  She then spoke about her husband's application for a role with Queensland Rail and expressed frustration about how long the process had taken…I had no knowledge of Mrs Rolfe's personal circumstances prior to this meeting and had no reason to enquire about them at the meeting.  My only knowledge of Mrs Rolfe's personal circumstances was those she expressed during the meeting.  The conversation was focused on Mrs Rolfe's concern about the end of her temporary contract.

[122]	Section 124 of the AD Act provides:

	124	 Unnecessary information
(1)	A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.
(2)	Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by—
(a)	an existing provision of another Act; or
(b)	an order of a court; or
	(c)	an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or
	(d)	an existing provision of an industrial agreement under the repealed Industrial Relations Act 1999; or
	(e)	an order of QCAT or the industrial relations commission.
(3)	It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.
	(4)	In this section—
existing provision means a provision in existence at the commencement of this section.
Example—
An employer would contravene the Act by asking applicants for all jobs whether they have any impairments, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.

[123]	At [101]-[111] above, I have earlier found it probable that it was Ms Rolfe who raised the matter of her husband's work with Mr Tracey in their meeting, rather than Mr Tracey being the initiator of that enquiry.  

[124]	Given that earlier finding then, it follows that it was more probable than not that it was also Ms Rolfe who made any similar comments about her social supports and the like in that conversation with Mr Tracey.  

[125]	For those reasons, Ms Rolfe has not satisfied me that this particular allegation has been made out to the required standard of proof.  The level of persuasion required for me to decide this matter in her favour has not been reached.

Victimisation

[126]	The question to be decided in this part is:

•	Whether or not victimisation occurred, within the meaning of s 130(1) of the AD Act?  

[127]	Ms Rolfe alleged that Ms Henney victimised her by: 

•	treating her in a way that was uncivil and unprofessional; 

•	circulating a draft version of Ms Rolfe's report to senior staff in the team including Mr Tracey, stating it was the final version;

•	criticising her work performance;

•	interfering in opportunities for Ms Rolfe to secure journal publication by way of delaying her ability to submit an article; and 

•	reallocating work that had been planned for Ms Rolfe to perform.

[128]	For her claim to succeed, Ms Rolfe must demonstrate that:

•	She has been subjected to a detriment; and

•	There is a causal nexus between the detriment and one of the matters listed in section 130(1)(a) of the AD Act.

[129]	The AD Act provides:

129 	Victimisation
A person must not victimise another person.
…
130 	Meaning of victimisation
(1)	Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)—
		(a)	because the complainant, or a person associated with, or related to, the complainant—
	(i)	refused to do an act that would amount to a contravention of the Act; or
		(ii)	in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
		(iii)	is, has been, or intends to be, involved in a proceeding under the Act against any person; or
		(b)	because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).
(2)	In this section, a reference to involvement in a proceeding under the Act includes—
		(a)	making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
(b)	involvement in a prosecution for an offence against the Act; and
		(c)	supplying information and producing documents to a person who is performing a function under the Act; and
(d)	appearing as a witness in a proceeding under the Act.

[130]	Ms Rolfe's perspective was that Ms Henney "removed multiple projects from my workload … to make it appear there was no need to extend me at all", after Ms Rolfe attempted to persuade her that her "pregnancy should not be the basis of my contracts, including an email dated 19/2/18."

[131]	Earlier in this decision, I have accepted Ms Rolfe's claim that her contract would have been again extended, if not for her pregnancy.  Inherent in that finding is my acceptance of Ms Rolfe's contention that Ms Henny reallocated work that had been planned for her to perform.  That earlier finding is also relevant to this matter.  I have also carefully considered the Respondents' submission that that the establishment of the contract end date with reference to Ms Rolfe's due date "was made honestly and in good faith".  It is clear that Ms Henney openly counted back six weeks from Ms Rolfe's due date to set the contract end date, in her presence.  Ms Henney did not attempt to hide that because she did not consider it was incorrect.  Similarly, I have found in Ms Rolfe's favour with respect to Ms Henney's alleged comment that her contract needed to be "stopped and restarted" because of the pregnancy.  I found those acts constitute discrimination because "It is not necessary that the person who discriminates considers the treatment is less favourable.  The person's motive for discriminating is irrelevant."  

[132]	However, while I agree with Ms Rolfe that she had been subject to a detriment, I cannot accept there was a causal nexus between 'reallocating work that had been planned for Ms Rolfe to perform' and 'her allegation that a person committed an act that would amount to a contravention of the Act'.  I have earlier decided that Ms Henney reallocated work that had been planned for Ms Rolfe to perform because she was 'pregnant' – not because Ms Rolfe "alleged, or intends to allege that a person committed an act that would amount to a contravention of the (AD) Act."  

[133]	In support of her victimisation claim, Ms Rolfe drew the Commission's attention to an email from Ms Henney to Ms Maharaj dated 27 February 2018, in which Ms Henney stated:
However, Melanie's emails and persistence in not meeting with me and continuing to go around me does make it challenging to enact my role as a senior employee with many, many years experience.
[134]	It appears to me that excerpt from Ms Henney's email to Ms Maharaj reflected her frustration with the working relationship, distraction from the project task at hand and perhaps even the challenge to her authority at that time.  Once again though, I cannot accept that email is evidence of a causal nexus between 'poor treatment' and 'Ms Rolfe's allegation that a person committed an act that would amount to a contravention of the Act'.  Taking the email at face value, it appears to me that Ms Henney was simply venting to Ms Maharaj about her frustration with the workplace situation - just as Ms Rolfe had vented to various people too.

[135]	With respect to the remainder of Ms Rolfe's allegations in this part, I am most reluctant to make any findings of victimisation in circumstances where: her recollections differ from that of other witnesses; where I must be satisfied that the conduct complained of occurred on the balance of probabilities; and because I simply have not been persuaded that any act that may have occurred was due to Ms Rolfe "alleged, or intends to allege that a person committed an act that would amount to a contravention of the (AD) Act."

Vicarious Liability

[136]	I have found that Ms Rolfe's claim of direct discrimination on the basis of the protected attributed of 'pregnancy' has been made out.  In the normal course, I would then proceed to consider whether or not the First Respondent is vicariously liable for any conduct of the Second Respondent and / or Third Respondent, pursuant to s 133 of the AD Act:

133 	Vicarious liability
	(1)	If any of a person's workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
	(2)	It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.

[137]	In this case, whilst the Respondents denied any contraventions of the AD Act, they have submitted that "the first respondent would also be held vicariously liable for their actions" because the second and third respondents were "acting within the scope of their duties at all times."

[138]	In the circumstances of this case then, the First Respondent is vicariously liable for the discriminatory conduct that I have found occurred.

Remedy

[139]	I now turn to the question of the appropriate remedy in this case.  That is, in the event of any findings in favour of Ms Rolfe - what relief is appropriate? 

Outcome Sought by Complainant

[140]	Ms Rolfe sought orders in the following terms:

a)	Financial compensation for past economic loss comprising of:

•	Full time AO6 from 3 June 2018 to 15 June 2018: $3,782.80

"This is the amount that the Applicant would have earned prior to maternity leave had she worked up to 4 weeks prior to the birth of her child, which had been her intention;"

•	Full time AO6 from 11 February 2019 until 30 June 2019: $39,697  

"This is the amount that the Applicant would have earned had the Applicant returned to work for Children's Health Queensland Hospital and Health Service on February 11, 2019 and worked until the anticipated contract extension end date of 30 June 2019;"

•	Full time AO6 from 30 June 2019 until the date of the hearing: $315,942.50
minus actual earnings for those years (Total $73,755)

"This is the amount the Applicant would have earned if working for the Children's Health Queensland Hospital and Health Service between 30 June 2019 and the hearing date, at the same level she was employed at.  
Two comparators in this case (Sarah Baggio, who was employed in comparable circumstances at the time of Ms Rolfe's mistreatment, and Christine Cashion, who was employed to undertake a project Ms Rolfe would have otherwise undertaken) have had consistent fulltime employment since the period of Ms Rolfe's mistreatment.  The Applicant estimates that she would have had consistent fulltime employment had she had internal employment opportunities as an employee of CHQ."

b)	Financial compensation for future economic loss:

•	AO6 Level 6 PP4 2022: $75,966
minus current earnings of $91,368

"This amount projects a further three years of Ms Rolfe's lowered income as a consequence of reduced opportunity ongoing stress associated with CHQ being a barrier to seeking employment there."

c)	Financial compensation for impact on Ms Rolfe	: $25,000

"Compensation that the Tribunal considers appropriate for loss or damage caused by the contraventions, being an amount for the stress, hurt, humiliation and psychological distress, including the psychological injuries of anxiety for the direct discrimination, unlawful questioning and victimisation."

d)	Financial compensation for impact on Ms Rolfe's child: $40,000

•	Compensation sought for the impact "the stress, hurt, humiliation and psychological distress" has had on Ms Rolfe's child, "whom she was pregnant with at the time of the mistreatment and who has had fundamental development interrupted … because of the distress caused to Ms Rolfe."

e)	Recovery of medical costs: $3,274

f)	Interest

"An amount the Tribunal considers appropriate for interest accrual on any the above amounts awarded."

g)	Other

In addition to the compensation claimed above, Ms Rolfe also sought orders requiring the Respondent(s) to: 

•	make a private apology to her; 

•	undertake a transparent investigation of its practices on investigating internal Human Resource complaints;

•	undertake training on the non-discriminatory treatment of people on the basis of sex and pregnancy;

•	undertake training on anti-bullying in the workplace;

•	other such orders the Commission considers appropriate.

Outcome Sought by Respondents

[141]	The Respondents sought orders that the complaint be dismissed in its entirety, and that Ms Rolfe pay the Respondents' costs of, and incidental to, this proceeding.

[142]	In its closing submissions, the Respondents submitted that "no relief ought be awarded to the complainant."  However, if the Commission were to accept that there had been contraventions of the AD Act, the Respondents submit that (citations removed):

… any relief is limited to compensation for the loss of employment between 3 June 2018 and 30 June 2018, noting that there is no evidence before the Commission that the complainant would have been medically cleared to continue to work beyond 3 June 2018 in any event.  The evidence is clear that the complainant's contract was to end on 30 June 2018, regardless of her pregnancy status, and there is no evidentiary basis for any award of compensation beyond that date.

In relation to the claim for damages for hurt and humiliation, the respondents submit that in the circumstances of this case, only a nominal amount for this part of the claim ought be allowed in the range of $5,000 to $10,000.

There is no evidence before the Commission of any other loss arising from the alleged events beyond the limited economic loss outlined above, including any evidence of psychological injury being incurred by the complainant as a result.  It is submitted that the medical evidence provided by the complainant's doctor was vague and unclear as to the nexus between the acts alleged and the symptoms reported, some reported well after the complainant had left the respondents' employment and was working for other employers such that there could be a causal nexus established between the symptoms reported and the actions of the respondents.  There is also no evidence of any injury having been sustained to the complainant's child because of the alleged acts of the respondents part from mere assertions from the complainant based on medical journal articles.

The complainant is not entitled to legal costs because she was not legally represented in the proceedings.

	Consideration

[143]	With respect to my finding that Ms Rolfe was discriminated against because of her pregnancy, I have decided the following remedy is appropriate in the circumstances of this case.

Financial compensation for past economic loss

[144]	Ms Rolfe intended to work to 14 June 2018, however her contract ended on 3 June 2018.  The period between the two dates constitutes an economic loss to Ms Rolfe, that she ought be compensated for.  Ms Rolfe has quantified that claim to be $3,782.80.  CHQ is to pay that amount to her.

[145]	Ms Rolfe also sought compensation for the period 11 February 2019 until 30 June 2019, that she contended she would have continued to work for CHQ in a full time AO6 position but for the discrimination.  She had quantified that claim to be $39,697.  The Respondents did not contradict her calculations for that period of time so claimed. As I have earlier decided that it was more likely than not that Ms Rolfe's contract would have been extended to the latest date nominated on the January 2018 PDP, it is appropriate to award an amount of compensation for the period 11 February 2019 to 31 March 2019 only.  I have calculated that to be $13,708.32.  CHQ is to pay that amount to her.

[146]	While Ms Rolfe submitted that "The Applicant estimates that she would have had consistent fulltime employment had she had internal employment opportunities as an employee of CHQ," I have not been persuaded to the required standard that her employment would have continued for that length of time, so her claim to be compensated for that period is not granted.

[147]	Therefore, the amount of financial compensation that CHQ is to pay to Ms Rolfe for past economic loss is $17,491.12.

Financial compensation for future economic loss

[148]	On the balance of probabilities, I have earlier found that Ms Rolfe's employment with CHQ would likely have extended to 30 June 2019.  Therefore, I do not accept Ms Rolfe's submission that she ought be compensated for an amount that "… projects a further three years of Ms Rolfe's lowered income as a consequence of reduced opportunity ongoing stress associated with CHQ being a barrier to seeking employment there."  

[149]	Ms Rolfe's claim to be compensated for future economic loss is not granted.

Financial compensation for impact on Ms Rolfe

Recovery of medical costs

[150]	Ms Rolfe sought an amount of $25,000 as "Compensation that the Tribunal considers appropriate for loss or damage caused by the contraventions, being an amount for the stress, hurt, humiliation and psychological distress, including the psychological injuries of anxiety for the direct discrimination, unlawful questioning and victimisation."  As I have not found that Ms Rolfe's claims of 'unlawful questioning' and 'victimisation' have been made out, the amount of financial compensation awarded will be less than $25,000.

[151]	The Respondents submitted that "if the Commission were to accept that there had been contraventions of the AD Act" then "only a nominal amount for this part of the claim ought be allowed in the range of $5,000 to $10,000.  There is no evidence before the Commission of any other loss arising from the alleged events beyond the limited economic loss outlined above, including any evidence of psychological injury being incurred by the complainant as a result."  

[152]	I have carefully considered the affidavit of Dr Huxley and the documentary evidence of the progress notes for Ms Rolfe's consultation with her general practitioners on 14 March 2018 and 23 April 2018.  Dr Huxley's notes of the consultation on the earlier date are especially detailed regarding the impact of the situation at work on Ms Rolfe, the doctor noted:

Very stressed at work at the moment
Was previously assuming would get maternity leave but boss now talking about not renewing her contract as no work for her
Although there is still a lot of work to be done
Writing research proposals etc
Teary
A lot of stress regarding going to work
Didn't sleep last night
Counselling and support given.

[153]	I therefore disagree with the Respondents submission "… that the medical evidence provided by the complainant's doctor was vague and unclear as to the nexus between the acts alleged and the symptoms reported …"  The reason for Ms Rolfe's visit was noted as "Stress" and the only matter discussed at the consultation was the stress at work.  More than a month later, a further visit to a doctor "noted ongoing worry stress."  Although I do acknowledge that Dr Huxley's evidence was that she was not a psychiatrist and not in a position to give an opinion about the diagnosis of an adjustment disorder.  Therefore, I do not accept the Respondents' position that any award ought by limited to a nominal amount in the range of $5,000 to $10,000 only.

[154]	For those reasons, I find that CHQ is to pay to Ms Rolfe an amount of $15,000 as general damages.  

[155]	Ms Rolfe has also claimed an amount of $3,274 be paid to her, for the recovery of medical costs.  That is granted.

Financial compensation for impact on Ms Rolfe's child

[156]	Ms Rolfe has claimed financial compensation for the impact on her child.  I do not doubt that Ms Rolfe deeply and sincerely believes that was the case.

[157]	The Respondents have submitted that "There is also no evidence of any injury having been sustained to the complainant's child because of the alleged acts of the respondents part from mere assertions from the complainant based on medical journal articles."

[158]	Quite simply, insufficient evidence was presented by Ms Rolfe to enable me to be satisfied to the required standard of her claim.  Therefore, her claim for financial compensation for impact on her child is not granted.

Interest

[159]	Ms Rolfe has asked for "An amount the Tribunal considers appropriate for interest accrual on any the above amounts awarded."  I note that Ms Rolfe commenced her discrimination complaint by filing with the Queensland Human Rights Commission on 3 June 2019.  It has been on foot then for a period of several years.  In those circumstances, I agree that the payment of an amount of interest to her is appropriate.  I will set the amount of interest payable to be calculated at the rate applicable under the Supreme Court Practice Direction 7 of 2013 Interest Rates. 

Other

[160]	Ms Rolfe also asked the Commission to make several other orders.  

[161]	Of those other orders sought, I will grant only the request for a private apology to Ms Rolfe for the direct discrimination that I have determined did occur on the basis of her pregnancy.  The private apology is to be provided in writing by a nominated representative of the First Respondent, CHQ.

[162]	The written private apology shall be provided to Ms Rolfe within 28 days of this Decision.

Costs

[163]	Both parties sought an order for costs, in the event that their case succeeded.

[164]	Ms Rolfe sought to be reimbursed an amount of $18,526 as compensation for "costs incurred by [her] in these legal proceedings.  Whilst costs are not usually awarded in the QIRC, considerations for this is requested on the grounds that the respondents brought a knowingly false line of defence to the hearing."

In addition to Ms Rolfe's time, she submitted that such costs included "witness fees" of:
Affidavit	$1,100
Hearing		$176

[165]	Ms Rolfe's claim for costs is opposed by the Respondents on the grounds that she was not legally represented.

[166]	Section 2 of sch 2 of the Industrial Relations Act 2016 (Qld) provides that, for proceedings brought under the AD Act, the default position is for each party to bear its own costs:

1	Definitions for schedule
In this schedule—
commission, for an appeal to the court under chapter 11, part 6 against a decision of the commission in relation to a proceeding heard by the commission under the Anti-Discrimination Act 1991, includes the court.
proceeding means a proceeding mentioned in section 548.

2 	Each party usually bears own costs
Other than as provided under this schedule, each party to the proceeding must bear the party's own costs for the proceeding.

[167]	A departure from this practice would only occur in circumstances where "the interests of justice" would require an order for costs to be made.  Section 4 of sch 2 lists circumstances that may inform any decision as to whether an order for costs may be made:

4 	Costs against party in interests of justice

(1) 	The commission may make an order requiring a party to the proceeding to pay all or a stated part of the costs of another party to the proceeding if the commission considers the interests of justice require it to make the order.

(2) 	In deciding whether to award costs under subsection (1) the commission may have regard to the following—
	(a) 	whether a party to the proceeding is acting in a way that unnecessarily 	disadvantages another party to the proceeding;
	(b) 	the nature and complexity of the proceeding;
	(c) 	the relative strengths of the claims made by each of the parties to the proceeding;
	(e) 	the financial circumstances of the parties to the proceeding;
	(f) 	anything else the commission considers relevant.

[168]	It is appropriate to give careful consideration to those legislative provisions and the circumstances of this case, together with the submissions of the parties.  

[169]	I agree with the Respondents' submission that Ms Rolfe's claim for an amount of $18,526 as compensation for "costs incurred by [her] in these legal proceedings" ought not be granted because she was not legally represented at the Hearing.  However, Ms Rolfe's claim for 'witness fees' has merit and I am minded to grant her the amount of $1,276.  While I do not accept Ms Rolfe's contention that ought be granted because "the respondents brought a knowingly false line of defence to the hearing", I believe it is appropriate to award the 'witness fees' she submitted, having regard to "the financial circumstances of the parties to the proceeding" - and that with respect to my finding that the calculation of her contract end date with reference to her due date was discriminatory, "the relative strengths of the claims made by each of the parties to the proceeding" on that matter at least should have been conceded by the Respondents in my view.

[170]	For those reasons, Ms Rolfe's claim for 'witness fees' to be paid to her of an amount of $1,276 is also granted.

[171]	I order accordingly. 

Orders:

1.	That complaints of direct discrimination are upheld, in part.

2.	That the complaint of unnecessary questions is dismissed.

3.	That the complaint of victimisation is dismissed.

4.	That the First Respondent pay to the Complainant, within 28 days:

a.	An amount of $17,491.12 for past economic loss, which must be subject to appropriate taxation;

b.	An amount of $15,000 as general damages;

c.	An amount of $3,274 for medical costs; 

d.	An amount of $1,276 for witness costs; and

e.	Interest on the above amounts, to be calculated at the rate applicable under the Supreme Court Practice Direction 7 of 2013 Interest Rates. 

5.	A nominated representative of the First Respondent shall provide a written private apology to Ms Rolfe within 28 days of this Decision.