Discrimination on ground of hiv husband

Cases

Discrimination on ground of hiv husband

A woman who was employed as a car detailer and washer at a car dealership was discriminated against by her employer on the ground of the HIV status of her deceased husband.

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A woman who was employed as a car detailer and washer at a car dealership was discriminated against by her employer on the ground of the HIV status of her deceased husband.

The complainant alleged that her employer terminated her employment as a car detailer and washer upon finding out that her husband had died as a result of contracting HIV/AIDS through a blood transfusion (Ryan v Dennis and Dennis Deals Pty Ltd [1998] HREOCA 36, H98/2).

Background

The complainant was successfully interviewed for the position of car detailer and began work two days later at the employer’s car dealership. On the second day of her employment, the complainant felt it necessary to explain to her employer that her husband had suffered from haemophilia and that he had contracted HIV/AIDS as the result of a blood transfusion. Her employer had been inquiring about the circumstances of her husband’s death. She advised her employer of the circumstances surrounding her husband’s death as she had felt uncomfortable lying to colleagues when the subject came up in conversation on the previous day.

The complainant explained that she was not HIV positive herself and that she had had regular blood tests since her husband had been diagnosed. She also advised that her children were not HIV positive.

Upon leaving the dealership that afternoon she asked her employer about working on the following Monday. The employer advised that he would call her on the weekend. The complainant was immediately concerned by this comment and felt that the atmosphere between them had changed since she had told the employer of the nature of her husband’s death.

The employer contacted the complainant on the night before she was to return to work and stated that he was worried about the risk to co-workers and to his family if she continued to work at the dealership. The complainant offered to obtain doctor’s certificates to prove that she did not have the condition.

The employer attempted to encourage the complainant to resign but the complainant refused. The employer later informed her not to return to the dealership.

The law

The definition of disability in the Disability Discrimination Act 1992(Cth) (the ‘Act’) is in broad terms. Section 4(1)(d) refers to the presence in the body of organisms causing disease or illness. This was found to include the HIV virus. The complainant’s husband was therefore found to have had a disability within the meaning of the Act.

Section 4(1)(k) refers to a disability that is imputed to a person. The Human Rights and Equal Opportunity Commission (HREOC) found that the employer imputed that the complainant had the HIV virus, despite her denial that this was the case. The complainant, therefore, was also covered by the definition of disability in the Act.

Section 15(1) prohibits an employer from discriminating against a person on the ground of their disability or the disability of any of their associates. The definition of associate at s4(1) includes the spouse of a person, another person who is living with the person on a genuine domestic basis and a relative of the person. The Commission found that although the complainant’s husband was deceased, she was still able to rely upon the definition of associate and was therefore able to proceed with her complaint under the Act.

HREOC’s decision

The employer did not appear at the hearing and was not represented. The Commission relied instead on statements contained in a referral report written by the Acting Disability Commissioner who had investigated the complaint at first instance. However, the Commission noted, that although the employer’s statement could be taken into account as part of the evidence at the hearing, it could not be given the same weight as sworn verbal evidence.

In his statement, the employer asserted that the complainant had been employed on a trial basis and that her employment had been terminated because she had no experience and was unsuitable for the position.

The Commission found the complainant to be a sincere and credible witness and that the employer’s statement was neither persuasive or absolutely truthful.

The Commission found the complainant had been discriminated against on the ground she was an associate of a person with a disability and that she also had an imputed disability. Accordingly, the complainant was found to have been dismissed in breach of s15(2)(c) of the Act.

Damages

The Commission considered four factors in awarding damages against the employer. First, this was the first job the complainant had obtained since her husband had died. Second, the difficult employment situation in the area meant the dismissal had a greater impact on the complainant. Third, the nature and circumstances of the discrimination were particularly cruel. Fourth, the discrimination was absolutely not necessary as the complainant had been prepared to prove that she was not HIV positive.

The complainant was awarded $4000 in damages.

 

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