A recent case has found that a comment relating to the physical
manifestation of a disability can be used to infer direct
discrimination on the basis of that disability.
The applicant, who was a single mother of four was originally
employed by the Taree Lunch Spot in June 2007 to work three hours
per day, two days per week starting at 11:30am. She also had a
second part time job working at an aged care facility. She suffered
from Chron's disease and as a result, had to wear a colostomy
bag. In October 2007, new owners took over the shop and they
continued the applicant's employment.
In spite of the applicant's family responsibilities and
despite her objections, the new owners substantially increased her
hours and put pressure on her to expand mobile sales. As the
applicant stated that she could not work those hours because of her
family responsibilities, the owners of the business indicated that
they would get a second person to help with mobile sales. However,
while there was a trial and some training of two other people, job
share arrangements were not put in place.
At the time, the applicant was given an assurance that her job
was safe and as a result she gave up her second job.
However, on returning from Christmas break, the applicant was
again told that she had to work increased hours.
The increased pressure made the applicant ill, as her
Crohn's disease symptoms became worse.
When the applicant called in sick, the owner indicated that her
job was 'safe' and gave her permission to take the rest of
the week off. In the meantime, the owner had advertised the
applicant's position in the local newspaper. The applicant saw
the advertisement and made several attempts at contacting her
When she finally made contact, her employer accused her of being
unreliable and of abandoning her employment and stated that she
could not come back to work.
Her employer then said words to the effect 'I do not want
you working in the business. You have no right working for us
running around with that shit bag hanging off you'.
In deciding the case, the Court found that the correct
comparator for the purposes of the Differential Treatment Test was
an employee of the Taree Lunch Spot, having the same position and
responsibilities of the applicant, who:
Did not have Crohn's disease
Was a well regarded employee
Carried a colostomy bag
Was unable to work in the mobile van on a full-time basis
Was absent from work for a short period of time.
The Court held that an objective assessment must be made as to
whether the colostomy bag itself was an impairment to the
applicant's capacity and the actual performance of her duties
in her employment.
Federal Magistrate Nicholls found that while the colostomy bag
did not impair her performance, the wearing of the colostomy bag
(which was a physical manifestation of her disability) had led to
less favourable treatment of the applicant when compared with other
The court also imputed meaning from the defendant's
statements criticising the applicant's symptoms, stating that
'it is appropriate to draw the inference that [the defendant]
discriminated against [the applicant] because of her
Federal Magistrate Nicholls further found that other employees
had displayed inefficiency and poor performance and yet they had
merely been redeployed to other positions, while the applicant who
had previously been praised for her performance was dismissed.
The court also found that the applicant had been discriminated
against on the basis of her family responsibilities.
Consequently, Federal Magistrate Nicholls accepted the
applicant's claim that she was dismissed for her disability,
and awarded damages of $15,000. He then accepted that the amount
'should be increased on the basis of aggravated damages given
the behaviour of [the defendant] in acting in an insulting manner
when committing the unlawful discrimination' to $20,000.
The Court further awarded $33,394.50 in lost wages as well as
costs and interest.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
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