Diabetic manager fails to prove discrimination

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Diabetic manager fails to prove discrimination

A sacked sales manager's claim that he was discriminated against because of his diabetes may have succeeded under workplace laws, a Federal Magistrate has said in dismissing the claim.

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A sacked sales manager's claim that he was discriminated against because of his diabetes may have succeeded under workplace laws, a Federal Magistrate has said in dismissing the claim.
 
Employed by Command Recruitment Group Pty Ltd as an engineering recruitment manager in June 2005, and as its NSW sales manager from June 2006.
 
Towards the end of 2006, the manager began to feel unwell and was diagnosed with type 1 diabetes.
 
He took time off work, and was told that a new position of national accounts manager would be created to accommodate his disability.
 
However, the manager viewed this as a demotion, and a number of disputes over salary and leave entitlements ensued, culminating in his dismissal during an argument with the director in March 2007.
 
Onus of proof
 
The manager claimed unlawful discrimination over his diabetes under s46PO of the Australian Human Rights Commission Act 1986. Under this legislation, the applicant (worker) bears the onus of proof to establish the disability discrimination.
 
'Upsetting' comments
 
The manager told the Federal Magistrate Matthew Smith he had been told by the director a half days' salary would be deducted whenever he attended a medical appointment for his diabetes, even though the majority of the appointments lasted less than 1.5 hours.
 
The director also allegedly made 'upsetting' comments to the manager about his diabetic condition: 'I dont know what use you are going to be to me in that condition', and 'well, it is not as if you've got cancer'.
 
On the day of his dismissal, the manager had several client meetings out of the office. The manager had to defer one of the meetings for a medical appointment. The director called all his clients to confirm the manager's attendance.
 
He accused the manager of 'gross misconduct' and demanded his resignation, which the manager refused to do. He was then verbally dismissed.
 
The director claimed the manager had a long history of unsatisfactory conduct, involving his repeatedly being unaccountably absent from the office, failing to observe office systems and procedures, failing to manage his staff, misrepresenting his sales results, and failing to achieve his performance indicators.
 
'Probably unfair' but claim fails
 
Despite finding that the procedures the director followed were 'probably unfair' and that reasons for termination were 'contrived in hindsight', Magistrate Smith ruled it didn't appear the manager's diabetes played a role in his dismissal.
 
'... his disability played no part in the overt reasons for his dismissal, except by providing background circumstances,' Smith said.
 
The Magistrate also noted that if the matter had been raised under workplace legislation, with an onus on the employer to exclude unlawful termination, then the manager 'might have succeeded in his claim for compensation'.
 
The manager's claim was dismissed.
 
 
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