Employer’s response to sick leave discriminatory

Cases

Employer’s response to sick leave discriminatory

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The NSW Administrative Decisions Tribunal has found that an employer went beyond managing work performance when it put unnecessary and unfair pressure on an employee in response to his sick leave record. 

The constructive dismissal of the employee arose as a result of the direct disability discrimination of his employer. The allegations of age discrimination were dismissed.

Background

The worker was employed by the employer organisation as an accountant from 1988 until his resignation at age 65, in July 1995. 

The employee suffered from a number of conditions, including gall bladder disease, abdominal pain, osteoarthritic knees, migraines, viral infections, gastrointestinal problems, diarrhoea, and a chest infection.

From 1993 the employee's sick leave absences came under notice of the personnel department and the employer's policy was applied initially in the form of counselling sessions with the relevant supervisor. 

On three occasions between November 1994 and July 1995 the employee's sick leave records were reviewed. On the first occasion the employee was told that his ‘poor sick leave record’ could affect employment benefits and opportunities for promotion. The employee was told to ‘attend for duty regularly and reliably otherwise disciplinary action could result’. 

In March 1995 the employee was informed, incorrectly, that his sick leave record was ‘outside the limit of four occasions in a 12-month period’. He was warned that ‘a sustained improvement needs to be made’. On 5 July Inspector Clark recommended that the employee continue to supply medical certificates for any absences for the next six months – this was outside the sick leave policy requirements.

The employee complained that he suffered disability discrimination in relation to the terms and conditions of his employment, and by being constructively dismissed, which constituted a breach of the Anti-Discrimination Act 1977. The alleged discriminatory conduct complained of included:

  1. The imposition of a requirement to provide medical certificates for sick leave of less than three days.
  2. The imposition of a requirement to provide medical certification for sick leave over longer periods than three days.
  3. The imposition of counselling on numerous occasions.
  4. Giving of disciplinary warnings during that counselling.
  5. Workplace harassment by Inspector Clarke and other officers leading to a ‘poisoned’ work environment.
  6. The cumulative effect of the above leading to resignation.

Reasoning

The Tribunal considered that the employee's resignation was a response to and consistent with ‘a desire by the employer that such resignation be forthcoming’. The employee was repeatedly given the impression that his sick leave record was unsatisfactory and that disciplinary action would follow if there were no improvement.

The employee was treated less favourably than a person who ‘did not have a tendency to require substantial amounts of sick leave, in the same circumstances, or in circumstances which are not materially different...the employer would not have treated an employee who took substantial amounts of family and community services leave, maternity leave, study leave or leave without pay to which they were entitled, as unfavourably as it treated Mr Mooney’. 

The Tribunal continued: ‘There was no legitimate suspicion that Mr Mooney was misusing his sick leave. He did not exceed the leave to which he was entitled, yet he was counselled on several occasions and told that his sick leave record was "unsatisfactory" and that adverse consequences may follow if that record continued. This conduct eventually resulted in his constructive dismissal. Comparable employees would not have been treated in that way.’

The employer was held vicariously liable for the actions of its employees and did not seek to rely on the exception in s53 of the Anti-Discrimination Act 1977.

The claim of harassment by Inspector Clark was not made out as the evidence was largely hearsay and inadmissible. Other allegations of a possible catalyst for the behaviour of the employer were dismissed as they did not relate to the employee's disability.

The claim of direct age discrimination failed as the tribunal did not consider that an inference could be drawn from the comments made regarding the employee and any treatment of him by the employer.

The matter is to be re-listed following filing and serving of further evidence from both parties as to appropriate orders.

See: Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107 (Hennessy DP, Bolt, Pun Members) 19 May 2003.

 

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