Comparison required to prove discrimination

Cases

Comparison required to prove discrimination

In order for an employee to be found to have been discriminated against on the basis of their disability, the Human Rights and Equal Opportunity Commission (HREOC) must provide an appropriate comparison between the disabled employee and other employees who are not disabled but who have reasonable needs for equipment which would enable them to carry out their duties.

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In order for an employee to be found to have been discriminated against on the basis of their disability, the Human Rights and Equal Opportunity Commission (HREOC) must provide an appropriate comparison between the disabled employee and other employees who are not disabled but who have reasonable needs for equipment which would enable them to carry out their duties.

Background

The Federal Court of Australia has overturned a decision of the Human Rights and Equal Opportunity Commission (HREOC) which provided that the employer had discriminated against the employee on the basis of her disability (see HR Link, Issue No 18/98 of 13 February 1998).

The employee had been employed by a regional office of the federal Department of Education, Employment, Training and Youth Affairs as part of a special programme for visually disabled people (Commonwealth of Australia v Humphries, Human Rights and Equal Opportunity Commission & Anor; No QG 6 of 1998).

According to the decision at first instance, discrimination occurred in four respects:

  1. by reason of the employer’s failure to provide her with necessary equipment in the Area Office;
  2. the employer’s denial of opportunities for the employee’s further training;
  3. the manner in which her appointment to another area within the Department had been made contingent on her performance of all competencies relating to her position (this did not apply to other employees); and
  4. the termination of her employment.
Decision of Federal Court

The Court found that the Commissioner’s reasoning in regard to the employer’s failure to provide necessary equipment relied essentially on what it supposed to be the Department’s failure to provide suitable equipment to meet the employee’s needs. The Federal Court found that the failure to provide equipment was not a refusal but a delay.

The Court also found that the Commission did not construct an appropriate comparison between the employee with the disability and other employees performing the same job who are not disabled. The only direct comparison undertaken by the Commissioner was with another disabled person within the Department. The Court found that this comparison confirmed the Commissioner’s findings that there was no satisfactory excuse for the failure to provide the required equipment.

According to the Court:

"The Inquiry Commissioner has not addressed the questions posed by the section [s5of the federal Disability Discrimination Act 1992] – whether the treatment received was different and the reason for any such treatment – as is necessary to a conclusion of discrimination. Rather, the Commissioner appears to have concluded it by reference only to the fact of refusals and failures to provide equipment which were necessary to [the employee]. Errors of law are therefore disclosed."

In regard to the Commission’s finding that the employer’s failure to provide training was discriminatory, the Court found:

"Section s15(2)(b) [of the Disability Discrimination Act 1992provides that it is unlawful to discriminate by denying or limiting the employee’s access to promotion or training. On this topic one is able to infer, from the Commissioner’s findings, that the treatment was different from that which would have been given to other employees. It seems implicit in the reasoning that training would normally be provided, as a matter of course. The statutory enquiry which the reasons do not address is what were the grounds for any such different treatment. The finding that management in the Area Office did not accept that she was unable to do the courses appears to have been rejected by the Commissioner, on the basis that [the employee] believed she could. It does not necessarily follow however that [the employer’s] treatment was because of [the employee’s] disability, in the sense referred to above. The alternative view open was that it was based upon a genuine belief as to the level of her ability. It will be necessary to remit the matter for determination of this question also."

The Court found the employee’s appointment to another area within the Department contingent on fulfilling the relevant competencies was discriminatory.

With regard to the fourth area of discrimination, namely the termination of the employee’s employment, the Court found that errors of law were also disclosed. The Court found that:

"At a factual level the Commissioner did not accept that the doctor’s opinion, that [the employee] was limited in her capacity to undertake her work, was a proper or ‘satisfactory’ basis for termination of employment. The Commissioner did not appear to accept it as accurate. Rather, the Commissioner reasoned to the stated conclusion that ‘the termination was brought about by and thus on the grounds of [the employee’s] disability’ because the stress she suffered was the cause of her inability to work and it had been produced by [the employer’s] failures as found…. It is clear enough that the Commissioner did not accept the report of the physician as reasonably based and preferred the opinion of the psychiatrist, Dr W. A conclusion that [the employee’s] inability to continue work was stress-related does not however answer the question as to the reason for the dismissal by [the employer]. These matters which the section requires to be addressed."

Conclusion

The Federal Court concluded that errors of law had been shown in the decision at first instance and that the matter should be remitted to the Human Rights and Equal Opportunity Commission (differently constituted) for determination.

 

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