The Federal Circuit Court has ruled that Corrective
Services NSW unlawfully discriminated against Caryn Huntley, an
employee, who suffered from Crohn'sDisease and idiopathic
hypersomnolanceby failing to make "reasonable
While the Court found a number of flaws in Corrective Services
NSW's handling of the medical condition and subsequent
termination, it focussed on the employer's obligations around
"reasonable adjustments". Suffering the disease and sleep
disorder ("disabilities" for the purposes of disability
discrimination legislation), Ms Huntley had provided medical
evidence to the employer regarding her ability to perform her role
which, relevantly, included some travel.
The Court found the employer had misinterpreted that evidence
when it determined Ms Huntley should be medically retired because
she was unable to travel for more than 30 minutes. On the contrary,
that medical evidence asserted Ms Huntley could take trips greater
than 30 minutes, so long as she was able to take a break along the
way. A reasonable adjustment to make?
The Disability Discrimination Act 1992 (Cth)
(Act) provides that an employer will not have
unlawfully discriminated against an employee if, because of the
disability, the employee would be unable to carry out the inherent
requirements of the job even if the employer made reasonable
adjustments for that employee. Under the Act, an adjustment is
reasonable unless making it would impose an unjustifiable hardship
on the employer.
So, did Corrective Services NSW make reasonable adjustments?
Basing its decision on the fact the employer had misinterpreted the
medical evidence presented by Ms Huntley, had considered the
condition an "illness" rather than a
"disability" (the latter meaning the disability
discrimination legislation was relevant) and subsequently
terminated the employment, the Court said no.
Corrective Services NSW had failed to: consider the inherent
requirements of the role; consider any reasonable adjustments that
could be made to assist the employee to perform the inherent
requirements; and implement those adjustments. Relevantly, the
employer was ordered to pay compensation for pain and suffering and
breach of contract to the tune of over $170k plus interest.
Lessons learned: employers ought to carefully consider whether
an employee's illness or medical condition is a
"disability" and, if so, take steps to comply with the
obligations which arise from the disability discrimination
legislation. A failure to do so could be costly.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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