Transferred because epileptic: discrimination

Cases

Transferred because epileptic: discrimination

A NSW Tribunal has ruled that an epileptic rail worker was discriminated against when she was moved from 'safety working duties' at a railway station to office duties.

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A NSW Tribunal has ruled that an epileptic rail worker was discriminated against when she was moved from 'safety working duties' at a railway station to office duties.

The former rail worker claimed that after notifying NSW RailCorp that she suffered an epileptic seizure at home in November 2003, she was told not to carry out her normal duties as customer service leader at North Sydney station.

She was then directed to relieve in positions not involving 'safe working' at various stations. This continued for 12 months when she alleged she was told she could not work on railway stations at all because of her condition.

Complaint lodged

In December 2004, the worker lodged a complaint with the Anti-Discrimination Board stating that as a result she was put into an office opening envelopes, sorting letters and doing other menial tasks, and was financially disadvantaged as a consequence because of the loss of all penalties, weekend and shift work. The transfer also adversely affected her promotional opportunities.

She claimed there was 'non-safety critical tasks' she could perform at railway stations, rather than be transferred. In addition, she submitted non-safety critical positions at stations were found for other people with medical restrictions, such as those with colour vision deficiency, cardiovascular conditions and drug and alcohol issues.

NSW RailCorp argued the move was not discriminatory as it was in line with the Rail Safety (Health Assessment) Guideline 2004.

It submitted that because she was working in the booking office and opened up in the morning, she needed 'track safety awareness' to assist in the event of an emergency, but, under the guideline, she was not allowed to carry out these duties.

Transfer not necessary

The NSW Administrative Decisions Tribunal (ADT) found she was directly discriminated against because she was transferred because of her epilepsy.

'Irrespective of the tasks the worker was performing in November 2004, she would have been moved from working on a station to an office job because of her epilepsy,' the ADT concluded.

'In this respect, NSW RailCorp went beyond what was required by the Guideline. In these circumstances it was neither necessary nor mandatory for the employer to move the worker from working on a station to an office job.'

In assessing damages, the Tribunal considered the discriminatory conduct caused the worker a 'significant' amount of stress and frustration. It also took into account that the worker had not sought reinstatement, which NSW RailCorp had opposed.

The ADT ordered NSW RailCorp pay $14,000 in damages for non-economic loss.

Dunne v Rail Corporation, New South Wales [2006] NSWADT 273 (21 September 2006)

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