Employee awarded $15,000 after employer over-reacts to  illness

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Employee awarded $15,000 after employer over-reacts to illness

The Federal Magistrates Court has awarded an employee $15,000 in damages for discrimination after finding his employer dismissed him because it thought he was suffering debilitating depression, when in fact he had an adjustment disorder which he had learnt to manage.

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The Federal Magistrates Court has awarded an employee $15,000 in damages for discrimination after finding his employer dismissed him because it thought he was suffering debilitating depression, when in fact he had an adjustment disorder which he had learnt to manage.

Background

The employee, a probationary assistant manager with Aboriginal Hostels Limited, took action under the Federal Disability Discrimination Act 1992 alleging his dismissal constituted discrimination under s15(2) of the Act. He said his employer had dismissed him because it incorrectly believed he was suffering depression, which it argued left him physically incapable of performing his job.

Federal Magistrate Brown initially rejected the employee’s application on the basis that whatever discrimination the hostel committed was excused by the operation of s15(4) of the DDA.

' [not]unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability: (a) would be unable to carry out the inherent requirements of the particular employment ....'

The Federal Magistrate found that, notwithstanding the disability that was imputed to the employee, he was incapable of carrying out the inherent requirements of the position.

In essence, he found that the dismissal had breached s15(2) because of the disability imputed to the employee, but that this treatment was not rendered unlawful because of the application of the provisions of s15(4). After a successful appeal, the matter was sent back to Federal Magistrate Brown.

Evidence

The court heard that the employee was unhappy with various aspects of his employment, particularly that he be on call at nights. He said he had difficulty going back to sleep after dealing with phone inquiries. This led him to have an uneasy relationship with his work superiors and, whilst still on probation, he was off work due to ill health for about eight weeks.

A psychiatrist diagnosed him as suffering from 'an adjustment disorder with anxiety and depression'.

An employee of Aboriginal Hostels unwittingly informed a second examining doctor that the employee had recently been diagnosed as suffering from clinical depression. In the light of this erroneous information, the second doctor was asked to revise his opinion, which led him to reach the view that the employee’s depression was likely to re-occur, especially if he was working on call hours.

When the employee was terminated, the reason given was this second health assessment which indicated that he was unfit for full-time work involving on call duties.

Substantive issue

Federal Magistrate Brown regarded the substantive issue as being whether the employee was unable to carry out the inherent requirements of his position because of his disability. He began by determining whether he should consider the employee’s actual disability adjustment disorder or the erroneously imputed disability depression:

'Logic would seem to dictate that, for the purposes of s15(4), the court should consider the actual rather than the imputed disability … To do otherwise would have the potential to lead to absurd outcomes in some situations … [it] would potentially allow discriminators to ‘label’ people with an imputed disability and then escape liability with impunity.'

The magistrate cited the first medical report which found the employee was an 'angry, frustrated, upset [patient, who was] distressed, largely in relationship to an industrial argument or dispute with his employers who was feeling that he was being victimised and unfairly treated and taken advantage of'.

The diagnosis confirmed a 'transient adjustment disorder', rather than a long-term disabling illness, such as depression. The doctor felt that when the employee returned to work after time off he was still aggrieved about the circumstances of his employment, particularly the necessity for on call work.

However, he was capable of managing his feelings so that he would not become excessively upset about them to the extent that he would suffer a further episode of adjustment disorder.

Assessing the evidence

Federal Magistrate Brown said that, 'difficulty in performing the requirements of a particular job or indeed a lack of suitability for that job must not be confused with a physical inability to perform the inherent requirements of the job because of disability'.

He noted that the assessment of whether the employee was capable of doing the job must be conducted in a 'practical' way, and take into account the business environment of the potential discriminator.

He said it seemed clear that, because of the employee’s particular emotional make up and the difficulty he had in respect to being woken from his sleep, he may have found it difficult to perform the tasks of being an assistant hostel manager.

'However, difficulty in performing the inherent requirements of a particular position is not sufficient to justify discriminatory behaviour pursuant to s15(4) of the DDA.'

The magistrate said the employee was discriminated against by Aboriginal Hostels on the basis of a disability wrongly imputed to him. However, the imputation of such a disability was sufficient to attract the application of the DDA.

'The legislation does not differentiate between the illegality of discrimination based on an imputed disability and that based on an actual disability.'

He said that the employee’s adjustment disorder was undoubtedly a disability for the purposes of the DDA, however, this disability had resolved by the time his employment was terminated. Nor did this disability render him incapable of performing the inherent requirements of his position.

Conclusion

Consequently, he concluded that s15(4) of the DDA had no application in this case. Accordingly, he found Aboriginal Hostels had unlawfully discriminated against the employee contrary to s15(2) of the DDA:

'It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates...'

Federal Magistrate Brown awarded the employee $10,000 for the injury to his feelings and $5,000 for economic loss.

Power v Aboriginal Hostels Limited [2004] FMCA 452, (August 6, 2004)

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