Discrimination - cases wrap

Cases

Discrimination - cases wrap

Epilepsy disability not sufficiently considered; Union activity - not basis for dismissal.

WantToReadMore

Get unlimited access to all of our content.

Epilepsy disability not sufficiently considered; Union activity - not basis for dismissal.

Epilepsy disability not sufficiently considered

Compensation of $15,000 was awarded to a Sydney nurse who suffered from epilepsy, after he resigned due to his employer's disregard of his request for shifts that would not exacerbate his illness.

Federal Magistrate Smith made the award against Manly Hospital in Sydney where the nurse, who was taking epilepsy medication and was very tired as a consequence, had been ordered to take on a night shift roster. He resigned on the spot and then sought compensation - he did not seek reinstatement.

Discriminatory conduct

The court concluded that there was a breach of the Federal Disability Discrimination Act:

'In the present case, I consider that there are features which call for such an award at the upper level of appropriate awards.

'The immediate distress suffered by the applicant was clearly demonstrated by his resignation letter, before his subsequent seizure and disability.

'The applicant claims, and I accept, that Ms [K]’s conduct produced highly distressing paranoid thoughts at the time, and caused him to believe that his employer, through her agency, wished to undermine his health and force his retirement from nursing.

'To a real extent these distressing thoughts are still present, and have been revived in the course of this proceeding ...

'He required on-going medication and treatment from a neurologist, and suffered acute episodes of epileptic seizure and ill-health on at least two occasions during his employment at Manly Hospital ...

' … I do not accept her oblique suggestions that she [supervisor] was justified in turning a blind eye to his requested accommodation because she had not been "formally" notified of his disability and of a need for accommodation ... '

Rawcliffe v Northern Sydney Central coast Area Health Service & Ors [2007] FMCA 931 (9 July 2007)

Related

Restricting duties of employee with blood disorder found discriminatory

Failure to make workplace adjustments for disabled held indirect discrimination

Union activity - not basis for dismissal

The Victorian Civil and Administrative Tribunal rejected a claim by a union organiser who argued that he was the victim of discrimination arising from his union activities.

The tribunal noted that the applicant had formerly taken an aggressive and hardline approach to employers as an AMWU organiser. He had previously clashed with a particular manager, who had a reputation a 'union buster'. However, the evidence here did not support the suggestion that his union activities were the reason for the principal company not providing him with work.

Findings

The tribunal concluded:

' …. there are ... issues which make it impossible to find the claim proved. These relate to the claim of direct discrimination and less favourable treatment.

'It was said that the appropriate comparator for this purpose was the mechanical fitter Mr Mainella, who worked in area 52 with Mr Light, but was not made redundant at the same time as him.

'First, the comparator must be a person without Mr Light’s industrial activity. There is no evidence as to whether or not Mr Mainella had that attribute.

'Second, the comparison must be made "in the same or similar circumstances".

'To confine the comparison to the circumstances of Mr Mainella is, in my view, to confine them too narrowly ...

'Mr Light’s redundancy occurred during a period of many downsizings on the site - downsizings in which workers of varying classifications were involved, and which included those who were union shop stewards and those who were not. In these circumstances, it is artificial to say that Mr Light was treated less favourably than Mr Mainella. It is difficult to say that Mr Light was "singled out" because of his industrial activity.

' … Mr Light’s termination occurred as part of one of the numerous downsizings of the workforce at the site … '

Light v Technip Oceania Pty Ltd & anor [2007] VCAT (10 August 2007)

Related

Reinstatement remedy for dismissal over union activities
  

 

Post details