Unfair contracts and discrimination cases

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Unfair contracts and discrimination cases

Public servants are eligible to make unfair contract claims, the NSW IRC finds, and colour blindness is not necessarily a bar to emergency work.

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Public servants are eligible to make unfair contract claims, the NSW IRC finds, and colour blindness is not necessarily a bar to emergency work.

NSW public servants may argue unfair contract claims

State public sector employees below Senior Executive Service level are eligible to make unfair contract claims, the NSW IRC has ruled.

A full bench ruled that a redundant senior manager in the NSW public service was entitled to pursue his unfair contract claim, despite arguments by the State Government that the Public Sector Management Act 2002 overrode the NSW unfair contracts jurisdiction.

The employee had been a regional finance and administration manager with the Department of Corrective Services until it abolished his position when it restructured its operations.

The applicant claimed that he suffered a depressive illness acquired during his displacement and sought compensation for lost earnings. Justice Haylen had found the department had treated the manager unconscionably by retaining him in a number of ‘ad hoc’ positions and keeping him on project work for three years. In addition the department’s withdrawal of a voluntary redundancy offer had the effect of strengthening his Honour's view regarding the unfairness of the appellant's conduct towards the applicant. The full bench supported Justice Haylen's decision.

The bench also found that the NSW Workers Compensation Act 1987did not prevent the applicant pursuing his claim for stress and suffering that arose from the employer's unfair conduct. The bench did add that claims for stress and suffering or claims under a similar heading must be carefully scrutinised.

State of New South Wales v Banas [2004] NSWIRComm 255 (3 September 2004)

Related

Colour blindness not necessarily a bar to emergency work

The NSW Administrative Decisions Tribunal  has held that employers need clear evidence before refusing to employ a person on the basis of a medical condition.

In this case an emergency services worker was colour blind and had been refused a position because of this condition. The NSW Administrative Decisions Tribunal upheld a discrimination complaint by the man.

The man, who passed the selection testing and interview stages in 2001, was told he had the job if he passed the required medical, criminal and reference checks. Medical testing found he did not meet the specific demands of the position because of his colour vision deficiency. The Ambulance Service was concerned the condition could reduce his ability to identify traffic signals.

The applicant conceded he could not distinguish subtle differences between shades of red and brown, but said he had no difficulty distinguishing other colours. The applicant claimed that over the years he had developed a number of ways to cope with his protan deficiency.

Expert evidence on colour vision and road safety was considered and the tribunal found there was no definitive evidence that protans [people with red colour deficiency] are not safe drivers or that they are involved in more collisions at traffic lights. The applicant had an excellent driving record.

The tribunal was of the view that the applicant should be given the opportunity to demonstrate whether or not he is able to carry out the inherent requirements of the positions.

Browne v NSW Ambulance Service [2004] NSWADT 192 (3 September 2004)

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