One discrimination claim succeeds, two others fail


One discrimination claim succeeds, two others fail

An injured worker who was sacked due to his physical health has won his discrimination claim. Meanwhile, another worker has been barred from pursuing a claim of psychological injury due to discrimination and an employee with major depression has failed to prove disability discrimination.


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An injured worker who was sacked due to his physical health has won his discrimination claim.

Meanwhile, another worker has been barred from pursuing a claim of psychological injury due to discrimination and an employee with major depression has failed to prove disability discrimination. 

Discrimination litigation often involves complex sets of facts and can encompass extensive medical evidence.

Three cases here note the complexity of evidence that can arise.

Compensation for disability discrimination

The Victorian Civil and Administrative Tribunal has awarded compensation to a confectioner who was dismissed in October 2013, following nearly 30 years of service, on the basis he was unable to perform his work duties due to physical health conditions. 

The worker, Mr D, suffered a work-related elbow injury in 2011 and experienced non-work hernia trouble in 2013. Although he had recovered from both conditions by the time of his dismissal, he had ongoing health health issues, namely type 2 diabetes, Dupuytren's contractures and suseptibility to tennis elbow. 

He claimed his dismissal constituted direct discrimination, indirect discrimination and discrimination by way of a failure to make reasonable adjustments contrary to the Equal Opportunity Act 2010 (Vic) (EO Act). 

Relevantly, Section 23 permits discrimination against an employee on the basis of the employee’s disability if three requirements are met. First, the employee requires adjustments in order to perform the genuine and reasonable requirements of the employment. Second, where s20 applies (ie changes would have no impact), the employer has complied with that section. Third, whether or not s20 applies, the adjustments are not reasonable.

The tribunal found the employer failed to make reasonable adjustments to accomodate Mr D, as required by legislation, so that he could continue to work. It explained:

"On the evidence, at that time there was no assessment made of the risk of Mr [D] returning to his actual pre-injury role as a confectioner as compared to his perceived role or any identification of what adjustments might be required by him.

"Further... [the employer] has not demonstrated that it complied with section 20 of the EO Act because it has not produced evidence to demonstrate that, even if reasonable adjustments were made, the genuine and reasonable requirements of the employment as found could not have been adequately performed by Mr [D]."

In determining remedy, the tribunal took into account Mr D's evidence that "after being sacked, I felt in shock and like I had been ‘dumped on’. I had been a very loyal and hard worker for Mondelez for many, many years. I enjoyed my work at the factory – I liked being with the other people and liked being busy. I felt ‘numb’ for a while."

The tribunal took this into account in assessing compensation at $20,000 for non-economic loss. Economic loss was to be determined later.

D v Mondelez Australia Pty Ltd (Human Rights) [2015] VCAT 1432 (9 September 2015)  

Discrimination claim fails for many reasons

The Federal Court granted an interlocutory application seeking summary dismissal of a former university lecturer's compensation application alleging a psychological injury in 2008 due to sex and pregnancy discrimination following her return from maternity leave.

The respondents – Sydney University and four staff members – had claimed that permitting Mrs E's application to proceed would prejudice their ability to have a fair trial by reason of her delay in lodging the application. They also claimed they would suffer prejudice due to the change in the lecturer’s position – namely, in 2008, she alleged a psychological injury due to bullying and harassment by only one of the respondents but in her current application she claimed the 2008 injury was in fact caused by sex or pregnancy discrimination by all of the respondents.

Justice Anne Perry found Mrs E did not have an adequate explanation for her delay in alleging sex and pregnancy discrimination by the respondents. Her Honour also said the respondents would be prejudiced by this this as well as by Mrs E's inconsistent claims. She explained: 

"[Mrs E] now contends that sex and pregnancy discrimination by all respondents caused her psychological injury; yet this was not identified as a cause when the workers compensation claim was made. In other words, initially Mrs [E] complained of one kind of adverse conduct which was the subject of inquiry and consideration in 2008 by the university but now says that the adverse conduct was in fact of a different nature and engaged in by all of the respondents." 

In addition, Justice Perry dismissed Mrs E's application to amend her application to also allege disability discrimination, breach of contract, and breaches of the Work Health and Safety Act 2011 (NSW) by the respondents in relation to her psychological injury.

"Each of the possible additional causes of action to which [Mrs E] referred... are based on the same alleged conduct as that presently said to establish a breach of the Sex Discrimination Act," she said.

"As such, I can see no reason why it would not equally constitute an abuse of process by reason of her delay, her failure to provide any adequate explanation for the delay and the prejudicial impact on the respondents.”

E v University of Sydney [2015] FCA 1045 (21 September 2015)

Ruling out change to work hours – not discrimination

This case involved alleged discrimination on the basis of an impairment (major depression). The applicant was unable to work full-time while subject to a relevant medical restriction.

He was given a temporary part-time position to facilitate a graduated return-to-work program, but his employment was terminated while still the subject of medical restriction.

The employer argued the ability to work on a full-time basis was a “genuine occupational requirement” of the applicant’s employment, and the tribunal agreed. The employer was not obliged to change the nature of the applicant’s role from a full-time position to a part-time one. 

The duties required high-level, day-to-day supervision by just one person.

R v Credit Corp Group Limited & Ors [2015] QCAT 342 (2 September 2015) 


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