Excessive discrimination compensation cut by WA Supreme Court

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Excessive discrimination compensation cut by WA Supreme Court

The Supreme Court of Western Australia has reduced the amount of compensation awarded to an aircraft handler who had his offer of employment withdrawn following a medical examination. The award of $10,000 in general damages was reduced to $2,000, a sum which Justice Pullin considered was more appropriate and at the lower end of the scale.

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The Supreme Court of Western Australia has reduced the amount of compensation awarded to an aircraft handler who had his offer of employment withdrawn following a medical examination. The award of $10,000 in general damages was reduced to $2,000, a sum which Justice Pullin considered was more appropriate and at the lower end of the scale.
 
The court considered that the sum awarded was 'manifestly excessive' and 'outside the limits of sound discretionary judgment' resulting in an error of law on the part of the Equal Opportunity Tribunal.
 
The tribunal's conclusion that the employer did not fall within the provisions of s. 66Q, Equal Opportunity Act 1984 (WA), which makes it permissible to refuse employment where on the grounds of physical impairment the applicant for the job will not be able to perform the job, did not result in an error of law as the tribunal found that 'the appellant's focus was on safety issues and it had not reached any conclusion about ability to perform the work'.
 
Background
 
The respondent was offered employment with the employer as an aircraft handler conditional upon passing a medical examination. Subsequent to the examination the offer was withdrawn on the basis that the respondent had not 'passed the medical'. The doctor considered that the respondent 'would not be able to perform all of the duties related to the position' and that he 'is at increased risk for the position'.
 
The tribunal awarded general damages of $10,000 on the basis that the respondent suffered 'a great deal of distress and hurt' as a result of his treatment, this being exacerbated by the fact that it was a retraction of an offer not simply a refusal to employ. The tribunal heard evidence of the respondent's injured feelings and considered that it was a case of 'particular seriousness warranting a significant award of damages'.
 
Decision
 
Justice Pullin considered a number of similar tribunal awards involving refusal to employ and noted that the general damages awarded were less than $2,500. One exceptional case in which the award exceeded this amount was distinguished on the basis that the complainant, who was refused employment on the basis of having a limp, was found to have suffered great distress, months of trauma and gave evidence that even up to the date of the hearing he suffered residual humiliation and hurt. Justice Pullin did not consider that the present case was comparable with this in terms of severity. He also noted that the maximum sum that can be awarded by way of compensation is $40,000, and that this amount will be awarded in extreme cases.
 
On the issue of the employer's behaviour he notes that there was 'no suggestion that the appellant was not genuinely and properly concerned about the risk of injury to the respondent'.
 
The award of $10,000 was quashed, the court considering that the sum of $2,000 was a more appropriate sum to compensate the respondent for injured feelings and the period of depression from which he said that he suffered.
 
See: Airflite Pty Ltd v Goyal [2003] WASCA 45 (18 March 2003) (Pullin J).
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