Drag yourself to work and throw up in the toilet all day, police officer told

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Drag yourself to work and throw up in the toilet all day, police officer told

A police officer who was suffering extreme pain from a uterine condition was told by her line manager to 'drag herself to work and throw up in the toilet all day', the Federal Court of Australia heard.

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A police officer who was suffering extreme pain from a uterine condition was told by her line manager to drag herself to work and throw up in the toilet all day, the Federal Court of Australia heard.

She was also submitted to psychological examinations for no good reason and was required to repeatedly explain herself and her condition despite “sobbing uncontrollably” and being “in extreme distress”. 

Sarah Berry, a former member of South Australia Police and who was working as a constable in the Family Violence Investigation Section, was diagnosed in July 20012 as suffering from endometriosis and severe dysmenorrhea. 

Conditions explained


Endometriosis is a painful condition where the mucous membranes lining the uterus extend beyond the uterus. Dysmenorrhea is the condition of experiencing cramps and a dull or throbbing pain during menstruation. 

These conditions fell within the definition of “disability” in s4(1) of the Disability Discrimination Act 1992, ruled Judge Charlesworth of the Federal Court.

Ms Berry told her line manager of the condition and provided all relevant information and documentation. Sadly, the symptoms of the disability worsened.

Ms Berry experienced significant abdominal pain along with pain in her lower back and legs. She had to take both paid and unpaid sick leave. She was later hospitalised, which included surgery and complications from surgery. She continued to take sick leave from time to time. 

Agreed facts


South Australia Police “repeatedly” required Ms Berry to explain the nature and effects of her disability despite having been provided all relevant and appropriate information. Her employer repeatedly challenged the legitimacy of her condition and told her it was not a legitimate basis for her to take sick leave to the extent she had taken it. 

Ms Berry’s line manager also required her to role-play at being Ms Berry’s manager and said words “to the effect” that Ms Berry was a burden; that she was using harsh and inappropriate language; that she needed to increase her pain threshold; she should attend work “irrespective of the symptoms”; she should drag herself to work and throw up in the toilet all day; that she would not have a job in any other organisation. 

The SA Police also required her, at least twice, to submit to a psychological examination despite her condition being a physical condition in nature. 

Failed to make adjustments


Her employer also failed to make an adjustment for her so that she could continue to work; it did not take any steps to ensure other staff were available to deal with urgent work when she was on sick leave; it failed to address complaints; the police force proposed to transfer her to a night shift role… which was contra-indicated by her disability.

Later, in 2013, the employer sought to second her to non-operational duties but without seeking or considering appropriate medical advice about her disability and capacity or the circumstances in which she was medically fit for operational duties. 

Law


Under the Disability Discrimination Act it is unlawful to harass (s35) or discriminate against (s15) an employee who has a disability on the grounds of that disability. 

Declaratory orders 


Ms Berry sought a variety of declaratory orders from the court to the effect that she had been unlawfully harassed by her employer and had been discriminated against on the grounds of her disability. 

Judge Charlesworth of the Federal Court made declaratory orders that Ms Berry had been harassed by colleagues who “wrongly denied the legitimacy of her disability or the nature or severity of her symptoms”. 

The judge also ruled Ms Berry had suffered disability discrimination under the Disability Discrimination Act 1992 in being required to repeatedly explain the nature of her disability, in unreasonably proposing to transfer her to a role that was contra-indicated and in requiring her to submit to psychological examinations without proper basis or good reason. 

Judge Charlesworth declined to make some of the orders sought by the parties on a variety of legal and medical grounds. The judge therefore ruled that the application had been resolved “only in part” and that there should be further hearings.

The case continues. 

Berry v State of South Australia [2017] FCA 702
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