Alleged indirect discrimination not substantiated

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Alleged indirect discrimination not substantiated

A worker suffering a back injury was unable too prove indirect discrimination as he was not treated less favourably than a person not suffering from an impairment.

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A worker suffering a back injury was unable too prove indirect discrimination as he was not treated less favourably than a person not suffering from an impairment.

Mr Gauld’s 10-year employment was terminated on 7 September 2004. The sequence of events leading to that termination commenced with a back injury sustained while at work on 29 October 2003.

The employer, a brewery, had imposed a 'term', not necessarily made explicit, that Mr Gauld be medically certified as fit for his previous duty, to be offered continuing employment (or a return to work program).

Conclusions

The Tribunal found that the reason given for the termination was that Mr Gauld could not safely undertake his pre-injury duties, and because the medical report indicated that he was at increased risk of further back injury. He was did not possess the skills, experience or temperament for other positions.

The tribunal determined that the applicant had not been treated less favourably than an unimpaired person would have been treated in those circumstances.

The brewery had acted reasonably in the circumstances, so a claim for indirect discrimination would also fail.

The tribunal noted:

'If an impaired applicant for employment is met with an employer who imposes a term that they first present medical evidence that they are fit for that employment, it seems to me clear that the [legislation] … is activated. The reasonableness of that requirement will be the determinant of whether it is indirect discrimination within the meaning of the Act.'

The complaint was dismissed.

Gauld v Qld Breweries Pty Ltd [2007] QATD 20 –Qld Anti-Discrimination Tribunal (Murphy SC) – 6/8/07

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