'Prankster' not discriminated against

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'Prankster' not discriminated against

A complaint of disability discrimination brought by an employee with a history of engaging in pranks and practical jokes was dismissed on the basis of insufficient evidence.

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A complaint of disability discrimination brought by an employee with a history of engaging in pranks and practical jokes was dismissed on the basis of insufficient evidence.

The New South Wales Administrative Decisions Tribunal dismissed the complaint under s111of the Anti-Discrimination Act 1977('the Act') finding that jokes and pranks directed at the employee by his co-workers were not discriminatory even though some of them made reference to the employee's recently acquired disability (Tannock v State of New South Wales [1999] NSWADT 31 (11 May 1999)).

Section 111of the Actallows the Tribunal to dismiss a complaint at any stage of an inquiry where the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived, or lacking in substance, or for any other reason.

The complainant worked as a wardsman at Belmont Hospital. After having worked at the hospital for four years the complainant was injured when an elevator door closed on his neck, head, shoulder and arm. As a result of this injury the complainant was off work for about six weeks. He was left with a physical disability known as torticollis, a condition that involves the sufferer continually holding his head at an abnormal angle.

The complainant alleged that for a period of eight months after he returned to work, he was repeatedly subjected to practical jokes, derogatory comments, and offensive written and pictorial material referring to the complainant's torticollis. The jokes, remarks and material included:

  1. a Larson cartoon of people with their heads tilted watching television on its side;
  2. a cardboard cut out attached to the complainant's locker which identified him as the "Panadeine Man";
  3. a picture of the complainant's head attached to a lift door;
  4. a photo of the complainant's wife found in his locker with a personally offensive caption referring to his torticollis; and
  5. the complainant's employee identification badge had a caption attached to it reading, "sheltered workshop trainee".

The employer conceded that the behaviour described at points 1-3 above could be said to have some potential reference to the complainant's disability. However, the employer argued that this behaviour could only be construed as a joke and could never be construed as having any intention of being malicious or offensive. Further, it was argued that the Actdoes not make jokes unlawful, even if those jokes are based on race, disability, sex, gender or homosexuality. In order for joking to become discrimination, it must satisfy the test in the Act. That test requires that the complainant prove that they were treated less favourably in the same or similar circumstances than how a person without that particular disability would have been treated.

The employer referred to a history of joking in the workplace. The employee was identified by many witnesses as being a prankster and a person who crossed the boundaries of being amusing and funny and stepped into the field of being crude and offensive in some of the comments to his workmates. In particular, he would make comments about his workmates' wives and girlfriends. The employer stated that the complainant's co-workers cannot be expected to know that one day he is okay to joke with and the next day he is not, though they all apparently realised that there was a change in him over time.

The employer submitted that the complaint be dismissed under s111of the Act. It was argued that the complainant was not being treated less favourably, but as one of the crew. The jokes were not on the ground of his disability, the employer said, but on the grounds of past practice. For the discrimination to be on the ground of disability it would have had to be a situation of no context of pre-existing joking. Therefore, the behaviour was not on the ground of disability, but rather on a continuing pattern of childish, inappropriate behaviour.

The employer submitted that other employees had different disabilities and they were also the subjects of jokes, so it could not be said that because of his disability the complainant was the subject of jokes. The complainant was involved in this culture, though when he came back to work after his injury, he had changed.

The complainant on the other hand submitted that the matters alleged occurred on the grounds of his disability rather than unrelated grounds, and emphasised the "but for" test for discrimination, (ie but for the complainant's disability, he would not have been treated in this way).

 

Findings

The Tribunal found in favour of the employer and dismissed the complaint on the basis that there was insufficient evidence to substantiate the complaints.

The Tribunal said,

"The incidents in this case must be considered within the context of a history of joking in the locker room prior to [the complainant's] injury. He was also someone who made crude comments. The jokes under consideration in this case were not on the ground of his disability but rather a continuation of past practice - on the ground of past practice. It must be said [sic] extremely childish behaviour on the part of the men but not disability discrimination. It was not discrimination on the ground of disability nor was it less favourable treatment."

In relation to the "but for" test, the Tribunal said that the complainant's disability was not the cause of the pranks, it was the topic. The Tribunal said that the complainant would have received the same treatment because he was included in the locker room joking. Accordingly the "but for" test was not satisfied in this case.

 

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