Fat chance of stopping disability discrimination claim

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Fat chance of stopping disability discrimination claim

A morbidly obese employee who was dismissed after falling over three times at work has been allowed to pursue a disability discrimination claim.

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A morbidly obese employee who was dismissed after falling over three times at work has been allowed to pursue a disability discrimination claim.

This was despite her making previous claims to the Fair Work Commission and Human Rights Commission that were respectively discontinued and terminated.

The Federal Circuit Court rejected the employer’s argument that previous claims should rule out a third attempt to claim regarding the same matter, and found that the claim did not lack reasonable prospects of success.


Facts of case


Lee-Anne Eastman was employed by a payroll management company in what was described as a “largely sedentary” role. She was morbidly obese and claimed that she suffered from a number of related illnesses and conditions that restricted her mobility and placed other limitations on her.

On three occasions, she fell over at work and co-workers had to help her to her feet. After the third fall, the employer ordered her to have a medical examination. The medical report stated that she had significantly restricted mobility, creating an increased risk of further falls, which made her a “liability” to the employer. The employer then dismissed her, using the medical report as its reason.

Ms Eastman lodged a claim of breach of the general protection provisions of the Fair Work Act 2009, but discontinued the claim when it could not be settled at conciliation. She then lodged a complaint with the Australian Human Rights Commission (AHRC), alleging disability discrimination and failure to provide reasonable adjustment. However, the AHRC terminated that complaint on the basis that its subject matter had already been dealt with by another statutory authority (the Fair Work Commission). 

She then applied to the Federal Circuit Court for leave to pursue a claim of disability discrimination under the Federal Disability Discrimination Act 1992

The employer argued that the two types of claims should be mutually exclusive – general protection claim in the FWC and a discrimination claim in court via the AHRC. The fact that the AHRC had terminated the latter complaint because it believed the FWC had already dealt with it meant that the disability discrimination claim should not be allowed to proceed. It further claimed that Ms Eastman had failed to prove a causal link between her dismissal and her disabilities, or demonstrate how making reasonable adjustments could have worked.

Ms Eastman claimed that the FWC had not dismissed her complaint, she had simply attempted to use its conciliation processes and was unable to reach a conciliated settlement, so she elected not to proceed further.


Decision


The Federal Circuit Court allowed the claim to proceed. As long as the employee did not pursue more than one claim and remedy in respect of the same dismissal, it did not matter that she had first approached the FWC and AHRC. Complainants still have the right to refer complaints to courts if they are rejected by the AHRC, but they must seek leave to do so and the complaint must have some merit. 

On the limited evidence available, the complaint had at least some prospects of success and the employee should therefore have the opportunity to pursue it. Clearly, there were real questions of fact that should be tried. Whether Ms Eastman had “disabilities” as defined by the Disability Discrimination Act, and whether it was feasible for reasonable adjustments to be made to her workplace and work arrangements to accommodate them, was speculation but the evidence needed to be evaluated before making a firm conclusion. 

The court rejected the employer’s argument that there was a basic presumption that leave to pursue claims should not be granted. Issues of justice and equity overrode this. The AHRC’s reasons for terminating the complaint were irrelevant to this case. 

The bottom line: An employee can pursue a remedy for a dismissal in more than one jurisdiction (eg unfair dismissal, discrimination) but cannot pursue more than one remedy simultaneously. In this case, the FWC did not dismiss the employee’s complaint – it was not settled by conciliation and the employee decided to go to the AHRC instead after the conciliation proceedings.

In granting her leave, the Federal Circuit Court placed considerable weight on its finding that the complaint had reasonable prospects of success and therefore deserved to be heard. The law allows an employee to apply for leave to refer a complaint even if the AHRC has rejected it. If the FWC had dismissed the original claim, and/or if the AHRC had found the complaint to be lacking in substance or merit, it is unlikely the court would have granted leave.


Read the judgment


Eastman v Shamrock Consultancy Pty Ltd [2018] FCCA 3436, 29 November 2018 
 
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