Appeals court tosses out discrimination claim

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Appeals court tosses out discrimination claim

An appeals court has backed a tribunal’s decision to dismiss a prison worker's disability discrimination claim.

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An appeals court has backed a tribunal’s decision to dismiss a disability discrimination claim.

It ruled that while discrimination can be inferred when there is no other acceptable explanation for suspension or termination, in this case the employee was dismissed for misconduct. 

Facts and background


Scott Ferris worked as a store supervisor at the low-security Langi Kal Kal prison from May 2009 until he was suspended in July 2014 and his employment was terminated in May 2015. He suffers from type 2 diabetes and cardiomyopathy. 

Mr Ferris brought claims for direct and indirect discrimination to the Victorian Civil and Administrative Tribunal. He alleged his employer discriminated against him on the basis of disability when he was dismissed in 2015.

The claim of direct discrimination was dismissed by the tribunal in November 2017. The claim of indirect discrimination was upheld. This finding was related to a large increase in the numbers of prisoners which led to an increased workload, requiring the applicant to work unreasonable hours and preventing him from properly managing his diabetes. However, the tribunal refused to order compensation for the indirect discrimination. 

The tribunal was satisfied that Mr Ferris was terminated for disciplinary reasons totally unconnected to his condition of diabetes. These included swearing, aggression and failing to account for money. The tribunal accepted this explanation as Mr Ferris had received warnings for calling prisoners ‘f*ckwits’ and ‘c*nts.’

The tribunal further added that it was not its job to decide if Mr Ferris had been unfairly dismissed but to ensure he was dismissed for a reason other than his disability.  

The tribunal reasoned that Mr Ferris did not inform his employer of his diabetes and therefore could not prove he was subjected to unfavourable treatment because of the condition. He never told anyone there could be adverse consequences to his diabetes due to his increased workload. There were no findings regarding Mr Ferris’s cardiomyopathy claim as no evidence of the condition was provided.

Mr Ferris appealed the dismissal of his direct discrimination claim on the grounds that the tribunal’s decision did not consider all his submissions and the omissions made by the respondent, instead only focusing on direct evidence such as confessions. 

The law


Sec 18 of the Equal Opportunity Act stipulates that an employer must not discriminate against an employee by dismissing them. 

According to s7, discrimination can be direct or indirect discrimination on the basis of an attribute. Sec 6 lists disability as one of those attributes.

Under s8, direct discrimination occurs when a person treats someone with an attribute unfavourably because of that attribute. 

As stated in s9, indirect discrimination is when a person imposes a requirement, condition or practice that has the effect of disadvantaging a person with an attribute. 

In issue


The issue was whether Mr Ferris’s diabetes was a substantial reason for his suspension and termination. 

Considerations


The Supreme Court of Victoria – Court of Appeal upheld the tribunal’s decision, stating that the applicant’s diabetes was not the reason for his suspension and termination. It reasoned that Mr Ferris failed to prove the causal connection between his suspension or termination, and his disability. To establish his claim of direct discrimination, the applicant had to prove that his diabetes was at least a substantial reason for his suspension or termination.

The court reasoned that where a respondent has knowledge of the disability and no acceptable innocent explanation for an employee being treated unfavourably, it is possible to infer that the treatment was due to their disability. However, in this case, the employer’s innocent explanation was accepted. 

The court rejected Mr Ferris’s proposition that the tribunal only consider whether there was direct evidence of discrimination. However, it stated that it would have been an error of law if the tribunal had done so. 

There was no doubt that both type 2 diabetes and cardiomyopathy were disabilities. however, like the tribunal, the court made no finding for Mr Ferris’s cardiomyopathy claim as no evidence of the condition was provided. The ground for appeal was for his diabetes only. 

Decision


The court upheld the tribunal’s decision to dismiss Mr Ferris’s application. The court decided Mr Ferris’s submissions were considered by the tribunal and there were factual findings to support its decision. 

Read the judgment


Ferris v State of Victoria
 
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