Dismissal for health reasons during probationary period found discriminatory

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Dismissal for health reasons during probationary period found discriminatory

An employer that breached the Equal Opportunity Act 1984 (SA) by dismissing an employee two weeks into a three-month trial on the strength of assumptions about her health has been ordered to pay her $5,583 in lost wages and damages.

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An employer that breached the Equal Opportunity Act 1984 (SA) by dismissing an employee two weeks into a three-month trial on the strength of assumptions about her health has been ordered to pay her $5,583 in lost wages and damages.

The Equal Opportunity Tribunal (SA) found that though the employee had previously suffered from a back condition, it had been resolved and 'there was simply no evidence of any impairment being present' at the time of her employment. A company director, however, presumed the employee's health was impaired by a combination of a bad cough and what he interpreted to be a back impairment. This presumption was a substantial reason for him dismissing her.

The tribunal found the director's approach to negotiating an employment contract was 'simplistic, indeed, anachronistic'. It said he 'appeared to consider that during a probationary period of employment, he was, by virtue of his contractual arrangements, at liberty to dismiss a person for whatever reason he chose, and he was reluctant to accept that the law did not support such a view'.

This case serves as a warning that employers have to fairly and reasonably assess employees in a probationary period; and acting on discriminatory grounds will not be ignored simply because the employee is in a probationary period.

Background

The employee was a 62-year-old woman employed as a clerk. Two weeks after she began her three-month trial period she was dismissed. She claimed she was dismissed because of an impairment or presumed impairment and that her employer thereby infringed section 67(2)(c) of the Equal Opportunity Act. Alternatively, she asserted the employer breached section 66(d) of the Act in failing to provide her with special assistance required in consequence of her alleged impairment.

She had taken the job after an interview with the company's director. They discussed the requirements of the advertised position, but not in any detail; in particular, nothing was said about the end-of-month invoice filing requirements which it was suggested could be relatively arduous due to the amount of bending involved. The director asked her about her health and she said she had no health problems, save for the fact that she was a diabetic. She began work the next day and was asked to fill in a medical questionnaire. Again she gave details only about her diabetes. Evidence later showed she had previously had back troubles and even back surgery, but she said she had not documented these as the condition was resolved.

She began her duties, but within a short time, found that her chair was lumpy and uncomfortable. She discussed this with another office member and the chair was changed. Despite this, she found that, if she remained seated for long periods, her back would feel stiff and she would have to get up to move about. She did this three or four times a day. Once, when she was doing this, the director was there and asked her if anything was wrong. She told him that her back was a little bit stiff. On both their accounts, that conversation did not proceed any further. During the second week she developed a 'hacking' cough. She visited her GP about it, but took no time off from work for the visit.

On the following Saturday she received a telephone call at home from the director. He told her she was not required to turn up on Monday and that he did not want her to come back at all. He said he did not think she would be able to continue with the job because of her back problem. She objected, saying that she had no back problem and asked him if she had been doing her work properly. He replied that he had no problems with her work, but he did not feel she could continue working there.

Findings

In evidence the company director said it disturbed him that the employee was a smoker and continued to smoke when she had what he called a 'graveyard bark'. He also noted that she was a forceful woman and he felt her manner was inappropriate and upset some staff and clients. By the end of the second week, he concluded that it was not working out because of her smoking, her direct nature with staff and clients, staff complaints and her coughing. As a result of a conversation he had with another staff member, he decided to terminate her employment.

He gave her notice in the belief that he was entitled to do so because of the three-month probation arrangement. He was unaware of the provisions of the Equal Opportunity Act. He said that, although there was a variety of reasons why he had decided to dismiss her, he was trying to be kind in telling her that it related solely to her health.

The tribunal found the director's approach to negotiating an employment contract was 'simplistic, indeed, anachronistic'. It said he 'appeared to consider that during a probationary period of employment, he was, by virtue of his contractual arrangements, at liberty to dismiss a person for whatever reason he chose, and he was reluctant to accept that the law did not support such a view'.

The tribunal found that the director's reasons for dismissing the employee were several and included his perception of her general health, which included her coughing and smoking and her back condition. However, they also included his belief that she lacked tact in dealing with clients and his dislike of her forceful nature and its impact on other workers in the office.

The tribunal said it was not convinced the employee's back condition constituted an impairment as defined by the Act. Nor was it convinced that the director's presumption as to the existence of such an impairment and its impact upon her capacity to undertake the monthly filing task was itself a substantial reason for dismissing her. While there was evidence that she had previously suffered from a back condition, it seemed that had been resolved and the tribunal said 'there was simply no evidence of any impairment being present' at the time of her employment. The tribunal was, however, satisfied that her cough, or the condition that lay behind it, amounted to a physical impairment, because it was a temporary malfunction of part of her body.

It said it was satisfied, that the director presumed the employee's health was impaired, by a combination of her cough and her presumed back impairment, and that this presumption was a substantial reason for his act of dismissing her. It was not the sole reason, but it was a substantial reason within the meaning of section 6(2) of the Act. Consequently, therefore, the employer, contrary to section 67(2)(c), discriminated in employment against the employee on the ground of her impairment, an impairment which in part existed (her cough) and was otherwise presumed to exist (her back condition), by dismissing her.

The tribunal said that in light of this finding, it was strictly unnecessary for it to determine the employee's alternative plea under section 66(c). However, it did note that it would have been easily possible for the company to modify the end-of-month process to avoid the risk of inflaming the employee's previous back condition, but the director had never considered the viability of doing so.

In terms of section 71(2)(a), which exempts discrimination that would endanger the employee or those around them, the tribunal found it was manifest that the employee's cough did not present a risk to herself or others. 'Under the terms of her employment, she was entitled to sick leave and a simple expedient of requiring her to take it would have resolved that issue,' it said. As to her back condition, the tribunal said it was strictly unnecessary for it to comment on that issue because the director openly conceded that, standing alone, it was not a substantial reason for her dismissal. Nevertheless, it said that if it had to make a finding, it would have said that the employee, with proper assistance, could have carried out all the requirements of her employment without endangering her back.

Damages

In determining damages, the tribunal found the employer would probably have terminated her employment at the conclusion of the three-month probation period owing to his concerns about her forceful nature. Consequently it awarded her compensation for the remaining 10 weeks of this period plus $750 for shock and distress. The total amount was $5,583.60.

See: Cercone v Bull's Transport Pty Ltd, No. DCAAT-01-467 [2002] SADC 123 (September 17, 2002).

 
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