DDA Termination/decline decisions: Employment
Termination/decline
decisions: Employment
Summaries
of decisions by the President of HREOC or delegate to terminate complaints
and (before 13 April 2000) decisions by Disability Discrimination Commissioner
or delegate to decline complaints, and of the President of HREOC or delegate
reviewing such decisions.
Last updated: April 2000. Compilation and release of these summaries beyond April 2000 has not been authorised by the Commission
Contents
- Inherent
requirements - Reasonable
job requirements - Limits
of reasonable adjustment - Medical
examinations and disability related inquiries - Other
discrimination issues - Harassment
- Meaning
of employment - Alternative
remedies
Inherent
requirements
Dismissal not unlawful: unable to perform inherent requirements
A worker who was permanently unfit for his former duties as a result
of injury complained of discrimination when he was dismissed. The complaint
was declined, since no unlawful discrimination under the DDA occurs if
a person is dismissed because he or she is unable to perform the inherent
requirements of the job. (February 2000)
Medical evidence on inability to perform job requirements
An employee with epilepsy complained that he had been discriminated against
when he was suspended from driving duties following a seizure. The delegate
of the Disability Discrimination Commissioner declined the complaint.
She noted that when the employee had requested a return to driving duties
the employer had been in receipt of conflicting medical reports and had
been awaiting a neurologist's report to clarify the matter, and that this
report when received had advised that a return to driving could occur
after twelve months appropriate medication with no recurrence of seizures.
(February 2000)
Unable to perform inherent requirements of the job:
dismissal not unlawful discrimination
A
man complained that he had been discriminated against when he was dismissed
from his job as a bar and gaming attendant after a workplace injury limited
the amount of lifting he could do. The Commissioner declined the complaint.
The evidence was that lifting was fundamental to the duties of the position
and that the man could no longer perform the inherent requirements of
the job. The Commissioner noted that reasonable adjustment did not extend
to requiring an employer to change the inherent requirements of a job
or find an alternative position on a continuing basis (5 May 1999).
Employer not required to change inherent requirements
An
employee who had sustained a back injury complained that she had been
discriminated against by her employer failing to find her any duties to
return to when she regained fitness to work. The Commissioner declined
the complaint. The employee's position had been restructured for non-discriminatory
reasons and she was unable to meet the inherent requirements of the jobs
now available. The Commissioner referred to comments on the concept of
inherent requirements by Justice Drummond in Commonwealth
of Australia v HREOC
and noted that, as indicated in the draft Disability Standards on employment,
an employer was not obliged by the DDA to change the inherent requirements
of a job to suit an employee (1999).
Dismissal not unlawful: employee certified permanently
incapacitated for duties
An
employee who had been injured in a motor vehicle accident complained that
he had been discriminated against by being compulsorily retired after
being certified by the Commonwealth Medical Officer as totally and permanently
incapacitated for his duties. The President confirmed the decision of
the Acting Disability Discrimiantion Commissioner to decline the complaint.
She noted that the respondent had endeavoured to assist the employee to
return to work but this had been unsuccessful. She was satisfied that
the complainant was unable to perform the inherent requirements of his
position and that his compulsory retirement was therefore not unlawful
(6 August 1998).
Modification of job: employee unable to perform changed
inherent requirements
An
employee with a disability resigned when his employer, a manufacturing
company, modified his job and requested him to learn to use computer aided
design equipment. Confirming a decision by the Disability Discrimination
Commissioner to decline the complaint, the delegate of the President found
that the man was unable to perform the inherent requirements of the job
as it now existed (6 April 1998).
Unable
to perform inherent requirements because of immune illness
A
man complained that he had been discriminated against by a Commonwealth
government agency terminating his employment because he was HIV positive.
The Commissioner declined the complaint on the basis that the termination
had not been unlawful since the man was unable to meet the inherent requirements
of his job. He was a probationary employee who had been refused permanent
appointment because he was unable to meet the required medical fitness
standard, of being able to perform reasonably adjusted duties for six
months. At the time of assessment he had been unable to work for four
months due to fatigue and pain associated with immune system problems.
The Commissioner also noted that two medical opinions provided at the
relevant time by the man's own doctors for the purpose of access to superannuation
benefits described him as permanently unfit for work. Evidence that treatment
and prognosis for people with HIV had subsequently improved did not mean
that the decision was incorrect at the time that the man was unable to
perform the inherent requirements of the job (1997).
Dismissal not unlawful: unable to perform inherent
requirements since unable to work
A
woman who had developed a major depressive illness following a car accident
complained that she had been discriminated against when her employer terminated
her employment after she had been unable to work for six months. The Commissioner
declined the complaint on the basis that the subject matter had already
been adequately dealt with by the Australian Industrial Relations Commission
in dealing with an unfair dismissal claim. It was clear from the evidence
in the AIRC proceedings that the employee was unable to perform the requirements
of her job, or any other duties, at the time her employment was terminated,
and that there was no sign of abatement of the illness which rendered
her unable to work (1997).
Dismissal of "light duties only" employee
not unlawful when no suitable light duties available
An
employee who was, because of disability, only able to perform light duties,
complained that his dismissal was discriminatory. The President rejected
this, confirming a decision by a delegate of the Disability Discrimination
Commissioner to decline the complaint. He found that in the absence of
any suitable light duties, the complainant was unable to perform the inherent
requirements of his position, so that his dismissal was not unlawful under
the DDA (10 February 1997).
Decision on inability to perform inherent requirements
justified on information available at the time
A
man complained that his dismissal on the basis of medical incapacity was
discriminatory. Confirming a decision by a delegate of the Disability
Discrimination Commissioner, the President decided that there had not
been unlawful discrimination. He noted that the employer had acted on
the advice of a psychiatrist who had assessed the employee as unable to
do any work for several months. On the evidence available, the President
found that there had been no reason to question the correctness of this
assessment and the employer's reliance on this report was not unreasonable
or misplaced. At the time of the decision the employer had been entitled
to decide that the employee was unable to perform the inherent requirements
of his job (8 February 1997).
Unable to perform inherent requirements: failure
to manage epilepsy responsibly
A
man complained that he had been discriminated against on the basis of
his epilepsy when his employment with a mining company was terminated.
The Commissioner declined the complaint. The employee had received medical
advice that his condition could be managed if he abstained from alcohol
and avoided sleep deprivation, but there was evidence that he had not
complied with this advice. His duties involved operating large and dangerous
equipment. The Commissioner noted Justice Cooper's remarks in Department
of Defence v HREOC that "ability or capacity to carry out the inherent
requirements of the particular employment means ability or capacity consistent
with the discharge of the common law duty of care to avoid risk of loss
or harm to others" . In this case this duty of care supported a decision
that the man had not been able to perform the inherent requirements of
his job (1996).
Unable to perform inherent requirements
A
man with a back injury complained that he had been discriminated against
when he was refused employment as a delivery worker. The Disability Discrimination
Commissioner declined the complaint on the basis that the act complained
of was not unlawful. Evidence indicated that 90% of the duties of
the position involved repetitive bending, twisting, stooping and lifting
of heavy bags, and that no accommodation to remove these requirements
was possible within the duties of the position. The Commissioner noted
that it was not unlawful discrimination to refuse to employ someone in
a position of which they could not perform the inherent requirements (1996).
Reasonable
job requirements
Requirement to work after workplace modified not unreasonable
A
man who had been injured at work complained that he had been discriminated
against by being required to return to his former duties. The President
confirmed the Acting Disability Discrimination Commissioner s decision
to decline the complaint. The workplace had been modified in accordance
with workcover requirements and medical advice and it was not uneasonable
to require the employee to be able to perform the requirements of his
job description in this modified environment (9 October 1999).
Requirement for reliable attendance not discrimination
A
casual worker complained that she had been discriminated against when
she was not offered further shifts by a packing company after failing
to attend a number of shifts on time or at all due to illness. The Commissioner
declined the complaint. He noted that no medical evidence of disability
or illness had been provided to the employer and that no advance notice
had been provided of intended late arrival for work. He found that there
was no direct discrimination since any less favourable treatment was because
of attendance rather than directly because of disability. Regarding indirect
discrimination, he did not consider that the requirement for reliable
attendance in peak work periods had been shown to be unreasonable in the
circumstances. He therefore found no unlawful act. Note that this result
was reached without having to consider whether the attendance requirement
was an inherent requirement. (1999).
Termination because of inappropriate behaviour not
unlawful discrimination
A
man whose probationary employment with the Commonwealth public service
was terminated complained that this was unlawful discrimination because
of his disability. The delegate of the President confirmed a decision
by the Disability Discrimination Commissioner to decline the complaint.
The content of the probation report showed that the complainant's inappropriate
behaviour towards staff had led to the recommendation to terminate his
employment. The delegate accepted that this behaviour may have been a
manifestation of the man's disability but was satisfied that the employer
would also have dismissed an employee without a disability who behaved
in a similar way (24 October 1997).
Requirement to wear safety helmet not unlawful
An
employee complained that he had been discriminated against because of
a requirement to wear a safety helmet, which caused him difficulty and
discomfort because of his disability. Confirming a decision of a delegate
of the Disability Discrimination Commissioner, the President found there
had been no unlawful discrimination. He found that it was reasonable for
the employer to require the employee to wear a helmet to comply with occupational
health and safety requirements (25 October 1996).
Removal from position after extended absence not
unlawful discrimination
An
employee complained that her removal from a position as first aid officer
constituted disability discrimination. Confirming a decision by the Disability
Discrimination Commissioner, the President found there had been no unlawful
discrimination. Although the complainant's disability was a reason for
her removal from the position, he was satisfied that she had not been
treated less favourably than a person without a disability would have
been treated in the same or not materially different circumstances. This
was because he was satisfied that a person without a disability who had
been absent from work for as extended a period as the complainant would
have been treated similarly (11 December 1996).
No discrimination in requiring PhD for academic position
A
man with a disability complained that he was discriminated against when
an offer of employment as a university lecturer was withdrawn. The offer
had been conditional on completion of his PhD degree, which he had not
achieved within the time specified. He claimed that this was because of
an occupational overuse injury. The Commissioner declined the complaint.
She considered that the requirement was reasonable given evidence regarding
the University's requirements for research and teaching, even if it could
be established that failure to achieve the PhD had been due to a disability
(1996).
No discrimination in requirement to take sick leave
for treatment
A
man who had sustained a back injury at work complained he had been discriminated
against because of his disability. He claimed that because of his need
to take work breaks to take painkillers he had been required to sign off
for sick leave for each work break (unlike workers taking breaks for other
reasons) and had been questioned about his work in humiliating terms by
having his hands examined to see if he had been working. The Disability
Discrimination Commissioner declined the complaint. She noted that there
was an applicable award condition that employees should book off on sick
leave whenever too sick to attend their usual duties. She found
no evidence of harassment or discrimination in the criticism and questioning
of the man's work performance which had occurred (1996).
Limits
of reasonable adjustment
No information provided to employer on accommodation
required
A person with a disability complained that he had been discriminated
against by his employer's failure to make a number of accommodations in
the workplace. The complaint was terminated by the President, who found
that no advice had been provided to the employer of what accommodations
were required and that there was therefore no obligation to provide these
accommodations. (August 2000)
Additional person to do job beyond limits of reasonable
accommodation
A man who has epilepsy complained he had been discriminated against by
being required to take sick leave following a seizure. His duties included
driving and carrying a firearm. He claimed he would be able to perform
his duties if accompanied by another person. The delegate of the disability
Discrimination Commissioner declined the complaint. She found that provision
of an accompanying person for three months went beyond what the DDA required
in terms of reasonable accommodation, and that a requirement to be able
to perform the inherent requirements of the job without such an additional
person being provided was reasonable. (February 2000)
Reasonable accommodation does not include provision of
alternative job on ongoing basis
An employee complained that he had been discriminated against on the
basis of disability when his workplace was restructured in that he had
not been transferred to as desirable a position as other people from his
former section and had been threatened with termination of employment
on medical grounds. The delegate of the Disability Discrimination Commissioner
declined the complaint. She noted that efforts to find appropriate alternative
work within the organisation for the complainant had ben unsuccessful
and that the DDA does not oblige an employer to provide an alternative
job on an ongoing basis where the employee is unable to perform the inherent
requirements of their job because of a disability.(February 2000)
Refusal of home based work not discriminatory in view
of job requirements and fitness
An
employee of a Commonwealth Government agency who had sustained a major
hip injury outside work which made it difficult for her to travel to the
workplace and limited her fitness to work complained that she had been
discriminated against when her employer refused to continue permission
for her to work from home. The Commissioner declined the complaint.
Investigations showed that the initial approval for home based work had
been made to assist with a return to work. A medical assessment after
six months had indicated that the employee was not sufficiently fit for
work from home within the terms of the Home Based Work Interim Award,
requiring attendance in the office two days out of five. A further assessment
of capacity to work with the workplace attendance requirement being waived,
as was permitted under the award where this was determined to be appropriate
through negotiation involving the employer and the relevant union had
indicated that home based work would threaten the employee's long term
recovery and rehabilitation. The Commissioner accepted that the
evidence showed that in this case the employee could not perform the inherent
requirements of her job even with the accommodation of home based work
(1998).
Reasonable for employer to be unaware of disability
and need for adjustment
A
university employee complained that her employer had not made adjustments
to accommodate her vision disability when it knew or should have known
of the disability. The delegate of the President confirmed the Disability
Discrimination Commissioner's decision to decline the complaint. He noted
that the employee had disclosed a disability to the university administration
on commencing employment for the purposes of entry to the superannuation
fund. However, he agreed with the Commissioner's view that it would have
been unlikely and possibly inappropriate for this confidential information
to be disclosed by the administration to the school in which the employee
worked. He noted that having a disability did not always involve a need
for adjustment. He also questioned the argument that the university should
have known of the disability and the need for adjustment from the outset
when the employee's own evidence was that she only fully realised the
extent of her disability four years after commencing work and two months
before resigning. He rejected the argument that the university had required
the employee to work without adjustments, given that only a short period
(one week) had elapsed between her disclosure of her disability and her
resignation (14 January 1998).
Adjustments made by qualifying body found sufficient
A
man with a disability was seeking to increase his level of accreditation
as a translator and interpreter. He complained that he had been discriminated
against by the accrediting body 's refusal to make adjustments to its
examination procedure additional to those it had already provided to him.
The President upheld the Disability Discrimination Commissioner's decision
to decline the complaint. He accepted the accrediting body's evidence
that any extension to the extra 30 minutes provided for its written test,
and the additional 20 second breaks between components of its oral test,
would compromise the validity of the tests in relation to professional
working requirements (30 July 1997).
Failure to offer desired work schedule not unlawful
A
teacher complained that he had been discriminated against by a refusal
to offer him a schedule of two full days and one half day teaching instead
of the five half days offered (which he was unable to perform because
of his disability). The President upheld the Disability Discrimination
Commissioner's decision to decline the complaint. The position of five
half days offered was designed to fill gaps in the timetable by replacing
a teacher on sickness leave. The President found that this was not an
unreasonable requirement in the circumstances (19 June 1997).
Restriction on holidays not unlawful
An
employee complained that a requirement not to take holidays in busy periods
indirectly discriminated against him due to his responsibilities as carer
for his son who had a disability. The President decided, confirming a
decision by the Disability Discrimination Commissioner, that there had
been no unlawful discrimination. Indirect discrimination under the DDA
involved imposition of a requirement or condition "with which the
aggrieved person does not or is not able to comply". In this case
the complainant could and did comply with the restriction on taking holidays,
even though he objected to it (18 March 1996).
No discrimination in failure to make adjustments
when need not disclosed
A
man with a head injury complained that he had been discriminated against
by his employer failing to accommodate his need for a quiet work environment.
The Commissioner declined the complaint. Evidence indicated that any lack
of accommodation had been because the man initially chose not to disclose
his disability to the employer, and once the disability was disclosed
he declined offers of assistance and refused assessment for rehabilitation,
and any complaints the man had made regarding the work environment had
been dealt with promptly and properly (1996).
Medical
examinations and disability related inquiries
Requirement for medical assessment of effect of medication
not unlawful
A man working in the mining industry complained that he had been requested
to undergo medical assessment after a hand injury which required him to
take medication. The complaint was declined on the basis that in the circumstances
a requirement of medical assessment was reasonable having regard to health
and safety obligations. (November 1999)
Requirement for second medical clearance for pilot
training scheme not unlawful
An
employee complained that he had been discriminated against on the basis
of his knee injuries when his employer required him to submit to a second
medical examination before it would consider providing him with funds
for pilot training under its training or rehabilitation schemes. The Delegate
of the President confirmed the Disability Discrimination Commissioner's
decision to decline the complaint. Evidence indicated that there had been
problems with the legibility of the original medical clearance provided
and that it was unclear how far the doctor providing that clearance knew
of the injuries in question. The President noted that if the complainant
was correct in his opinion that his injuries should not prevent him flying
then this should be confirmed by a second medical examination. He referred
to the paramount importance of the safety of a potential pilot's future
passengers and decided that the inconvenience to the complainant in attending
a second examination was easily outweighed (13 May 1998).
Note
however that in another case the President referred a complaint back to
a delegate of the Disability Discrimination Commissioner for further investigation
on the basis that a decision on whether a requirement to attend a psychological
assessment was discriminatory could not be made without detailed consideration
of the nature of the job (22 July 1997).
Refusal to disclose nature of disability: non referral
for employment involving chemical handling not unlawful
A
man with a disability complained that he had been discriminated against
by an employment agency which would not refer him for a particular job
because of his disability. The delegate of the President confirmed the
decision of a delegate of the Disability Discrimination Commissioner to
decline the complaint. He found that the evidence did not establish that
the complainant had been treated less favourably because of his disability.
He also found that a requirement for an applicant for a job handling chemicals
to reveal the particulars of his or her disability was a reasonable requirement
for the purposes of ensuring the safety of the applicant and ensuring
compliance with occupational health and safety requirements by the employer
(27 March 1998).
Requirement for current evidence of disability not
unlawful
A
woman with a lung disease complained that her employer had discriminated
against her by requiring her to verify her need to take time off for treatment
during working hours. The delegate of the President confirmed the decision
of a delegate of the Disability Discrimination Commissioner to decline
the complaint. He found there had been no less favourable treatment on
the basis of disability, since the employer would have required any employee,
with or without disability, who required time off during working hours
to justify this request. Regarding indirect discrimination, he found that
the requirement to verify the need for medical treatment during work was
reasonable. The employer was informed of a need for medical treatment
at the end of 1995. The medical certificate provided in support was dated
March 1992. The delegate of the President found that in these circumstances
it was reasonable to require verification of a continued need for treatment
(17 February 1998).
Short restrictions on work pending medical evidence
reasonable
An
employee with a hearing impairment complained that she had been discriminated
against by her employer's refusal to permit her to work in an area where
employees were required to wear ear plugs or muffs, which she could not
wear. Confirming the decision of a delegate of the Disability Discrimination
Commissioner to decline the complaint, the delegate of the President noted
that the restriction had been applied for a period of four days during
which time the employee had not complied with a requirement to produce
a specialist's certificate confirming her inability to wear ear protection.
The President's delegate found this temporary restriction to be reasonable
in the circumstances in view of the employer's responsibilities under
occupational health and safety law (23 October 1997).
Requirement for assessment of fitness to work not
unlawful
A
teacher complained that he had been discriminated against when his employer
required him to undergo an assessment of his fitness to resume his teaching
duties, following complaints about his work performance and behaviour
and a period of involuntary psychiatric treatment. The President's delegate
confirmed a decision by the Disability Discrimination Commissioner to
decline the complaint. The teacher had medical reports supporting his
claim that he did not have a psychiatric condition, but the President's
delegate found that the weight of medical evidence and the complaints
received about work performance and behaviour made it reasonable for the
employer to seek an assessment of the employee's fitness to continue duty
(13 June 1996).
In
another case the President decided that requiring an employee to provide
evidence of fitness to work was not unlawful discrimination based on imputed
disability, as it was based on advice from the employee's own doctor that
she was not fit for work (8 December 1996).
Other
discrimination issues
Disclosure of HIV status of employee not unlawful
in itself
The
President decided, confirming a decision by the Disability Discrimination
Commissioner, that disclosure of confidential information without some
unfair treatment in consequence did not in itself constitute unlawful
discrimination under the DDA (27 March 1995).
Employer superannuation contributions ceasing when
retired medically unfit not discrimination
A
former soldier complained that the Commonwealth had discriminated against
him by ceasing employer superannuation contributions when he retired medically
unfit rather than paying until his statutory retirement age. The Commissioner
declined the complaint. There was no direct discrimination, since
employer contributions stopped for all employees when they ceased work
for whatever reason. There was no indirect discrimination in the Commissioner's
view. Employer superannuation contributions were, like wages, part of
the remuneration received in return for work. It was impossible to conclude
that a condition that these contributions stopped when work stopped was
unreasonable, since the basis of the employment contract was in reciprocal
obligations of work and remuneration (1997).
No disability discrimination in ineligibility for
invalidity retirement
A
woman who had been diagnosed with chronic fatigue syndrome (CFS) complained
that she had been discriminated against when the Commonwealth Superannuation
Board of Trustees decided that her condition did not amount to permanent
incapacity such as to make her eligible for retirement from the Australian
Public Service on invalidity benefits. The President confirmed the Disability
Discrimination Commissioner's decision to decline the complaint. She found
that the difference of opinion between the complainant and the superannuation
fund on the nature of CFS and its treatment did not amount to discrimination.
Sir Ron Wilson had previously overruled the Commissioner's view that the
Superannuation Complaints Tribunal was a more effective or convenient
remedy in relation to the matters raised in the complaint, as a Federal
Court decision made subsequent to the Commissioner's decision had revealed
that the Tribunal only had jurisdiction over decisions made after the
fund became regulated, which did not include the decision about the complainant
in this case (1998).
Discrimination by customer not covered by DDA
A
man complained that he had been discriminated against by a customer making
disparaging comments because his disability gave the impression he was
intoxicated. The Commission declined the complaint, noting that the DDA
does not cover acts of discrimination by a customer (25 June 1998).
Requirement to give reasons why should not be dismissed
not unlawful discrimination
An
employee complained that he had been discriminated against because of
his alcohol related disability when his employer altered his duties and
then wrote to him requiring that he either resign or give good reasons
why he should not be dismissed. The delegate of the President confirmed
the decision of a delegate of the Disability Discrimination Commissioner
to decline the complaint. The evidence showed that work performance issues
including unexplained absences from work had repeatedly been raised with
the employee by managers before they had become aware of his disability.
The delegate was satisfied that work performance issues were the reason
for the proposed change of duties and the requirement for an explanation,
and that these acts were not unlawful in the circumstances (27 November
1997).
Not unlawful to fail to offer voluntary redundancy
to employee on compensation payments
An
employee complained that he had been discriminated against on the basis
of his disability by not being offered a voluntary redundancy package.
Confirming a decision by the Disability Discrimination Commissioner, the
President decided there had been no unlawful discrimination. The DDA required
comparison of the treatment of a person with a disability and persons
without that disability in the same or not materially different circumstances.
He found that because the complainant was receiving compensation payments
he was not in the same or similar circumstances to other employees who
were not receiving compensation and were offered voluntary redundancy
packages (25 November 1996).
Request for performance review not unlawful
An
employee complained that a requirement to undergo performance review,
following allegations that his work was of an unsatisfactory standard,
constituted discrimination on the basis of her disability. Confirming
a decision of the Disability Discrimination Commissioner, the delegate
of the President rejected this complaint. He noted that the fact that
a person with a disability experiences unfavourable treatment in the workplace
does not itself establish that there has been discrimination, if the unfavourable
treatment is not because of the disability. In this case concerns about
the employee's performance pre-dated his acquiring a disability. The delegate
also said:
I
should add that I believe it is not unreasonable for an employer to
request any employee to undergo a performance review provided that the
employer is prepared to implement reasonable adjustments for those employees
who suffer disabilities ... Also, given the respondent's apparent preparedness
to implement a training programme that suited [the employee's] learning
style, and the various meetings with [her] supervisors (supported by
[her] union representative) over the period, I consider that proper
and reasonable efforts were made to support [her] in [her] work performance
(12 May 1996).
In
another case, the President similarly decided that a delegate of the Disability
Discrimination Commissioner had been correct to decline a complaint by
a hospital employee that subjecting her to performance review constituted
discrimination on the basis of imputed psychiatric disability. He was
not satisfied that the procedures adopted by her employer were unreasonable
or inappropriate in the circumstances, in view of the hospital's responsibility
to their patients. He also referred to the complainant's unwillingness
or inability to provide an explanation for the decline which had occurred
in her work performance (8 December 1996).
Harassment
Querying diligence of employee on light duties is
not disability harassment in itself
An
employee who had been assigned light duties because of work related
injury complained that she had been harassed when her superviser accused
her of not doing sufficient work and implied that she was requiring her
workmates to carry unfair burdens. The Acting Disability Discrimination
Commissioner declined the complaint on the basis that the evidence was
not enough to show there had been harassment because of disability (7
January 1999).
Dispute about fitness to work not harassment or discrimination
in itself
A
man who had experienced a back injury at work complained that he had been
harassed and discriminated against because of his disability. His employer,
relying on assessments by its insurer and Workcover, regarded him as fit
to return to work, with some restrictions only on driving as part of his
duties as a social worker. The employee insisted that he was not fit to
drive at all. Confirming a decision by the Disability Discrimination Commissioner
to decline the complaint, the delegate of the President noted that a dispute
about fitness to work did not in itself constitute harassment or discrimination.
He did not find that the employee had been subjected to any less favourable
treatment by reason of his disability. He also found that remedies under
workers' compensation law provided a more appropriate remedy than the
DDA for the alleged exacerbation of the employee's original injury (5
December 1997).
No discrimination found in criticism of work performance
A
woman with a disability complained that she had been discriminated against
in employment when her supervisor commented adversely on her work performance,
including that she had a poor memory and was unable to carry out complex
tasks. The Commissioner declined the complaint. She noted that comments
on work performance did not in themselves constitute harassment or discrimination
and that the employee had been offered considerable assistance to deal
with perceived problems in work performance (1996).
Not unlawful to make comments intended to assist
in work
The
President decided, confirming a decision by the Disability Discrimination
Commissioner, that it was not harassment or unlawful discrimination for
supervisors to make comments on the gait of a nursing student with a physical
disability, since these comments were intended for purposes of teaching
and assisting her in working more effectively (5 December 1994).
Meaning
of employment
Jury service is not contract work or employment
A
man who is blind complained that he had been excluded from jury service.
Confirming the decision by a delegate of the Disability Discrimination
Commissioner to decline the complaint, the delegate of the President decided
that jury service could not be classified as employment or contract work
under the DDA (19 September 1997).
Voluntary work is not employment
A
man with a disability complained that he had been discriminated against
by restrictions placed on his work for a community organisation. Confirming
a decision by the Disability Discrimination Commissioner to decline the
complaint, the delegate of the President decided that the complainant
worked as a volunteer and that voluntary work was not employment within
the meaning of the DDA (8 September 1997).
In
an earlier case, a volunteer fire fighter who had a head injury complained
that he had been discriminated against in employment when his duties were
restricted following concerns about his performance. The Commissioner
declined the complaint, since volunteers were not employees for the purposes
of the DDA (1996).
Alternative
remedies
Workers compensation system more appropriate remedy
for concerns regarding return to work
A complaint on behalf of a man with a work related injury alleged
that WorkCover had forced him back to work before he had recovered from
his injury. The Commissioner declined the complaint on the basis that
the workers compensation system provided a more appropriate remedy for
these concerns. He noted that this system
- was
in place specifically to manage workers compensation claims and facilitate
the return to work of injured workers - provides
expertise to deal with medical evidence related to workers compensation
claims - provides
mechanisms to resolve disputes through conciliation and court processes
(29 January 1999).
Discrimination complaint already adequately dealt
with by settlement of unfair dismissal claim
A
man complained that he had been discriminated against by being dismissed
on the basis of injury and use of sick leave. The Commissioner declined
the complaint on the basis that it had been adequately dealt with by settlement
of unfair dismissal proceedings with the same subject matter. The Commissioner
noted that the complainant had been represented by his union in those
proceedings, had had independent legal advice, and had elected to accept
a settlement offer of financial compensation (18 August 1998).
Complaint
regarding diagnosis: Medical Appeal Panel more appropriate remedy
A
NSW Government employee complained that she had been discriminated against
by being retired on medical grounds. She accepted that if she had the
disability ascribed to her she would be unable to perform her job but
disputed the validity of the diagnosis by the NSW government medical agency,
on which her employer had relied. The delegate of the President confirmed
the Disability Discrimination Commissioner's decision to decline the complaint.
He found that a more appropriate remedy was reasonably available through
a Medical Appeal Panel, which had appropriate expertise which the Commission
did not have. (10 November 1997).
Comcare more appropriate remedy regarding return to
work
An
employee complained that she had been discriminated against by her employer,
a Commonwealth department, by subjecting her to uncertainty about return
to work from stress leave. The President confirmed the Disability Discrimination
Commissioner's decision to decline the complaint. He found that the complainant
had a more effective remedy through Comcare regarding management of return
to work from stress leave (29 August 1996).
Public service grievance and appeal procedures more
appropriate remedy
A
Commonwealth public servant complained that he had been discriminated
against regarding rehabilitation following work related injury. The President
confirmed the Disability Discrimination Commissioner's decision to decline
the complaint. He noted that the grievance and appeal mechanisms available
to the complainant should be used and found no evidence for the complainant's
suspicions that these mechanisms would not operate fairly (14 October
1996).
More appropriate alternative remedies not available
The
Disability Discrimination Commissioner declined a complaint of discrimination
in Commonwealth Public Service employment on the basis that other more
appropriate remedies were available. The President reversed this decision.
He was not satisfied that redress through the Federal Court was a reasonably
available more appropriate remedy in view of the nature of the complaint
and the financial and personal circumstances of the complainant. He noted
that the internal grievance process ceased to be available to the complainant
once her employment was terminated and that other relevant redress under
the Public Service Act was not available to the complainant as a probationary
employee (28 August 1995).
Internal grievance procedure more appropriate remedy
An
employee of a Commonwealth department complained that he had been discriminated
against in not being offered voluntary retrenchment. The President confirmed
the Disability Discrimination Commissioner's decision to decline the complaint.
As well as finding no evidence of discrimination, the President considered
that the complaint could be more appropriately dealt with through the
department's internal grievance procedures (13 July 1995).
State employment complaint better dealt with by State
EEO authorities
A
man complained that he had been discriminated against in his employment
by a NSW government department. The Commissioner declined the complaint
on the basis that the matter would be more effectively dealt with by another
statutory authority, the NSW Anti Discrimination Board. She noted that
the State anti discrimination authority was usually better placed to deal
with complaints of this kind (1995).
No
remedy under DDA where work limitations already fully compensated under
workers' compensation
As
a result of a workplace accident, an electricity linesman was unable to
perform ladder top rescues and thus was no longer qualified for the top
grade of work. He received workers' compensation payments for this accident.
Subsequently he complained under the DDA that his exclusion from work
as an A grade linesman was discriminatory. The President decided, confirming
a decision by the Disability Discrimination Commissioner, that the complaint
had already been adequately remedied. He also decided that being able
to perform ladder top rescues was an inherent requirement of the job so
that there had been no unlawful discrimination. (29 November 1995).
State discrimination authority more effective for
State employment complaint
A
woman with a disability complained that she had been discriminated against
by a South Australian government agency rejecting her application
for employment. The Commissioner declined the complaint on the basis that
the matter was covered by the South Australian Equal Opportunity Act which
provided a more effective and convenient remedy (1994).
Employment complaint more effectively dealt with
by local Commission
An
Adelaide man complained that he had been discriminated against when he
was not allowed to return to work as a contractor after a period off work
due to injury. The Commissioner declined the complaint on the basis that
the South Australian Equal Opportunity Commission had jurisdiction and
the complaint could be more effectively dealt with by the local Commission
(1994). (Note that as with all decline decisions, decisions whether
a State remedy is more appropriate, more effective or more convenient
will depend on the circumstances of the case.)
Harassment claim better dealt with by internal grievance
mechanisms
An
employee of a Commonwealth Government department complained that he was
being harassed by his superviser. The Commissioner declined the complaint
on the basis that the matter could be dealt with more appropriately by
internal grievance mechanisms (1994).