$153,500 compensation for disability discrimination

Cases

$153,500 compensation for disability discrimination

The Human Rights and Equal Opportunity Commission has recommended that the Commonwealth Bank ('CBA') pay $153,500 to an employee for its unlawful discrimination of her.

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The Human Rights and Equal Opportunity Commission has recommended that the Commonwealth Bank ('CBA') pay $153,500 to an employee for its unlawful discrimination of her.

The employee, a person under medical care as an insulin dependent diabetic, claimed the CBA had discriminated against her in breach of the federal Disability Discrimination Act 1992. (Garrity v Commonwealth Bank of Australia, [1999] HREOCA 2 (25 January 1999).

The employee was employed by the Bank in 1989 as a telephone/switchboard operator. For the three years prior to her employment, the employee was on an invalid pension owing to her medical condition. At the time of her employment, she had nil sight in her right eye and 40% sight in the left which was lessened by focal and peripheral problems.

During her employment, the employee's diabetes produced a number of symptoms. She would experience hypoglycemic attacks which in some cases caused her to be off work sick. Further, she alleged that the unsympathetic actions of her employer caused her considerable distress and anxiety thereby contributing in part to the worsening of her health. She alleged that she was discriminated against because of her disability in the following ways:

  • She was not given adequate training. She only received two training sessions in five years, one of them lasting only 10 minutes.
  • The Bank failed to provide her with a career path, including a failure to provide opportunities for transfer to other positions, and generally, promotion.
  • She was not invited to staff meetings.
  • She did not receive work circulars and other office memoranda.
  • She was not allowed adequate breaks for meals and to deal with her symptoms.
  • She was not provided with adequate lighting nor a proper space to work.

The Commission found:

As is so often the case, the basic problem is that there was a misunderstanding. Generally speaking, the senior members of local management believed that the complainant was employed as a switchboard-operator/telephonist and that the terms of the arrangement were that she would continue in that job and would not expect, or be entitled to, any career path or promotion. They believed that that position was made clear to the complainant and she accepted it. On the other hand, the complainant hoped for a career path and promotion, did not understand that she would not be allowed to develop in that way and became increasingly concerned about her lack of progress...

Increasingly, [the complainant] resented being in a dead end job. The feelings of isolation and exclusion were 'because of' her disabilities. Her disabilities explain why she was the victim of so much discrimination. The arrangement which the [Bank's] officers thought they had with her goes a long way to explain much of the discrimination against her. The bank had a policy of giving people with serious sight impairments 'a go'. They were proud of what they were doing, a dead end job, they assumed was better than reliance on social security. Further, they assumed that because of her obvious sight disability, there was little, if anything, else she could do. That assumption was discriminatory, unlawful stereotyping. The evidence shows the position to be this: because of her disability she got the job; because of her disability, according to the [Bank], she was going to remain in that position and not proceed to any other. [A document] proves that it was not the nature of her job which was holding her back. If that was not holding her back what was? The answer is her sight disability.

The Commission also found that the Bank's performance development review procedure was the key process and documentation in terms of career path opportunities, training and promotion and that the complainant was denied access to these things due to the way in which the Bank applied the procedure to her. The application of this procedure to the complainant also meant her feelings of isolation, exclusion and being a person apart, were intensified.

The Commission found unlawful discrimination in relation to the Bank's failure to provide the complainant with on-going employment. The Commission found:

...there were three reasons for the complainant not being provided with opportunities for "on-going" employment with the respondent in the time of change, redundancies and 'downsizing' and so on:

1. She was in the position of telephonist/ switchboard-operator, which had limited opportunities and a limited career path;

2. She had a sight disability and, therefore, was in the limited position; and

3. Persons in managerial positions within the [Bank] had perceptions of her and her abilities, capabilities and capacities, because she was a person with a sight disability which meant they did not provide her with opportunities or any real opportunities for on going employment.

The Commission found that the complainant needed regular meal breaks to manage her diabetes and from time to time she had hypoglycemic attacks. It found the Bank failed to provide a proper roster, and a proper system generally, to deal with these needs. These failures meant the complainant was treated less favourably than other officers without disabilities and this was unlawful discrimination.

The Commission also found that the Bank had unlawfully discriminated against the complainant with respect to its failure to provide proper lighting and a proper space in which to work.

 

Compensation

In reaching its recommendation that the complainant be paid $153,500 for having been unlawfully discriminated against, the Commission broke up the compensation under the following headings:

  • $25,000 to $30,000 for pain and suffering loss of amenities;
  • $50,000 to $60,000 for effects on the complainant's physical condition;
  • $5,000 for loss of opportunities;
  • $50,000 for loss of income earning capacity;
  • $13,500 for special damage.
 
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