Unsympathetic behaviour not discrimination

Cases

Unsympathetic behaviour not discrimination

A woman who suffered from a work related impairment was not discriminated against because of her impairment, but it was found that her supervisors could have been "a little more sympathetic".

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A woman who suffered from a work related impairment was not discriminated against because of her impairment, but it was found that her supervisors could have been "a little more sympathetic".

Background

The employee had been employed by the employer for almost four years when she sustained a neck and shoulder injury which was diagnosed as a repetitive strain injury. She commenced regular treatment and a month later gave formal notice of disability to her manager for workcover purposes. She continued working in the office and a wrist support was provided to her (Ferguson v Qantas Holidays; Equal Opportunity Tribunal (SA), No 117 of 1997).

Some six months later, the employee made a claim for workcover. By this stage it had become clear that she was unable to fully discharge her duties in the office. Medical advice was received that she should take a week off work and after that only do 15 minutes of typing per hour.

An assessment of the employee’s workstation was conducted and certain recommendations made. These recommendations were implemented but did little to remedy the employee’s impairment. In the following months the employee’s condition deteriorated, until she was forced to take one month’s leave supported by medical certificates.

When the employee returned to work from this period of leave, she was advised there were no positions suitable to her capabilities and so she remained on paid leave. During this extended period of leave, the office of the employer in which the employee worked was closed and the employee was given a notice of redundancy. She was given a period to seek redeployment within the organisation but she was unable to find other employment. She ceased to be an employee on 21 March 1996.

Complaint

The employee alleges that her employer discriminated against her on the ground of her impairment (see s67(2) of the Equal Opportunity Act 1984(SA)). It is alleged that the discriminatory conduct commenced when she first reported her injury and that it continued and increased until her formal termination of employment.

The allegedly discriminatory conduct complained of included intimidation by senior staff, retribution in the form of a letter of warning regarding performance, failure to secure an alternative working environment and failure to provide the employee with appropriate redeployment opportunities.

Tribunal decision

The Tribunal found that the employee

"...was unhappy, if not most dissatisfied, with the reaction of her immediate supervisors to her notice of disability. They left her with the impression that they either disbelieved that she had any injury or disability at all or alternatively, made light of it. She found this very hurtful. She stressed, on numerous occasions in the course of the hearing of her complaint, that she was entitled to be believed. Sadly, this situation seems to have soured her relationships with her work supervisors."

In regard to the letter of warning and the related counselling session, the Tribunal did not regard either as "part of an ongoing conspiracy to prove her poor work record and incompetence for the purposes of terminating her employment with the company so that the company would not have to meet its obligations with respect to her injury arising under the Workers’ Rehabilitation and Compensation Act 1986 [SA]." The Tribunal commented that "the company’s actions should be seen as a lack of judgement rather than as acts of discrimination."

The Tribunal also found that the employee received the same treatment as other employees in the office in regard to the redundancy and redeployment.

In conclusion, the Tribunal held:

"It seems to us that there may have been occasions when the conduct of some of [the employee’s] supervisors towards [the employee] could have been better. Perhaps there were times when they could have been a little more sympathetic towards her and a little more understanding with respect to her injury. However, that is not the issue. The question before the Tribunal is not whether [the employee] should or could have been treated better by [the employer], but rather whether the conduct of [the employer] or its senior staff towards [the employee] constituted unlawful discrimination against her contrary to Section 67of the Equal Opportunity Act[SA]. In our view it did not."

The complaint was dismissed.

 

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