Australia: Discrimination and harassment – hope for employers

Enterprise update

In Sluggett v Commonwealth of Australia [2011] FMCA 609 (30 August 2011) (Sluggett), the Federal Magistrates Court of Australia (FMCA) reaffirmed that anti-discrimination laws are a two-way street. Affected employees are protected from being treated adversely, but are not entitled to be treated more favourably than a person without disability.

Importantly, this case confirms that an employer is not precluded from exercising its right to discipline an employee, whom it would otherwise discipline, simply because the individual has or is threatening to agitate a discrimination claim.

The decision represents important encouragement for employers who have in place sound human resources policies and procedures. Such employers should feel increased trust in those systems when confronted with difficult discrimination-related situations.

Legislative protections

Laws that protect the more vulnerable within our society, including statutes that address the very important issue of disability discrimination, play an important role in our modern society and workplace.

However, from time to time, an employer may find itself in the difficult situation where it have done everything that it can to comply with both the word and the spirit of a piece of protective legislation, but an employee nonetheless alleges a breach.

While it is not always the case, in many such situations an employer may suspect that the employee in question is manipulating the situation for their own purposes. In those circumstances, despite being faced with an employee who will not follow what the employer considers to be reasonable and lawful directions, an employer may be hesitant to insist on performance management and/or disciplinary processes. The fear, in the eye of the employer, is that they are likely to find themselves the subject of litigation before a Court or Tribunal they perceive as being "employee friendly".

The Sluggett decision shows that these perceptions do not necessarily reflect reality.

The facts

Ms Sluggett contracted polio as an infant. The illness left her with weakness in, and a shortening of, her left leg and foot. During her 20s she developed post-polio syndrome symptoms, the consequences of which are that she suffers from fatigue, joint and muscle pain, a lack of strength and endurance; and respiratory, speech and swallowing problems. There was no question that these unfortunate circumstances affected her ability to perform work.

In 1996 Ms Sluggett joined the Commonwealth public service. She worked in various departments until May 2008 when her employment was terminated as a consequence of the redundancy of her position.

Ms Sluggett alleged in her discrimination complaint that, during the period from July 2004 onwards, she was exposed by the Commonwealth to systematic discrimination (both direct and indirect) and harassment. Ms Sluggett alleged that she was denied opportunities and treated detrimentally. She claimed that the reason for her mistreatment, and ultimately her dismissal, was her disability, which she alleged the Commonwealth had failed to accommodate. Ms Sluggett painted a picture of a work environment which was unsympathetic to her needs and hostile to her personality.

In response, the Commonwealth painted a vastly different picture. The Commonwealth led evidence that Ms Sluggett rarely, if ever, performed the tasks allocated to her. This was despite the numerous job design modifications it had made in response to issues she had raised relating to her disability. The Commonwealth alleged that Ms Sluggett spent significant business hours attending to personal matters and working on the claims of discrimination and harassment she would regularly raise with management. The Commonwealth argued that Ms Sluggett, while the victim of misfortune in relation to her physical health, was manipulating the situation in order to gain favourable treatment, including a transfer to a higher-paying research position.

Importantly, the Commonwealth did not, despite Ms Sluggett's constant agitation, shy away from invoking its disciplinary procedures when she refused to perform work (which she refused to do ostensibly as a result of her her disability). In this regard, Ms Sluggett was subjected to a code of conduct process, at the conclusion of which she was disciplined for breaches of the APS Code of Conduct and her failure to uphold the values of the Australian Public Service.

Ultimately, and unrelated to the code of conduct process, the Commonwealth terminated Ms Sluggett's employment on the basis of the redundancy of her position. That retrenchment took place in circumstances where she rejected various offers of redeployment on the basis that she perceived the positions offered to be unsuitable (which lack of suitability she attributed to her disability)


Federal Magistrate Brown, swayed largely by his assessment of the relative credibilities of witnesses for Ms Sluggett and the Commonwealth, delivered a judgment that was scathing of Ms Sluggett's conduct. Among other things, Brown FM found that:

  • Ms Sluggett was "intent on engineering sources of friction with [management,] rather than the reverse";
  • Ms Slugget had used "her undoubted familiarity with the mechanisms of [discrimination] complaint as an instrument of intimidation against the [Commonwealth] and its agents"; and
  • "nothing which the Commonwealth did or provided to Ms Sluggett, in response to her complaints arising from her significant level of disability, was capable of satisfying her. It meant that there would always be further complaint from Ms Sluggett, ostensibly based on her disability, until such time as her wish to have another position [of employment] had been satisfied."

Brown FM accepted that there were some instances in which it could be said that the Commonwealth may have acted quicker, communicated better, or acted more empathetically towards Ms Sluggett. However, ultimately, the Federal Magistrate accepted the Comnmonwealth's submissions to the effect that Ms Sluggett had used her complaints of discriminatory behaviour (on the basis of her disability) as a "weapon", which is tantamount to an "abuse of the system" on her part.


Brown FM's decision to dismiss all of Ms Sluggett's claims relies, to a large extent, on the negative view his Honour formed in relation to the Ms Sluggett's credibility. However, importantly for employers, Brown FM strictly applied the legislative tests for direct and indirect discrimination. Specifically:

  • the test for direct discrimination requires a comparison between the treatment of an aggrieved person and the treatment of a comparator who is taken to display the same behaviour and conduct as that exhibited by the aggrieved person; and
  • indirect discrimination, in the disability context, involves a test of whether the aggrieved person has been required to comply with a requirement or condition with which that person cannot comply because of their level of disability, in circumstances where the requirement or condition is over and above that which is necessarily inherent in the aggrieved person's job.

It is in relation to these tests that an employer should assess its management strategy when it comes to dealing with complaints of discrimination. Take the example of a disabled employee who displays behaviours which would give rise to the disciplining of a person without a disability. An employer should not feel hesitant to expose that employee to those sanctions (regardless of the existence of a disability or, indeed, a complaint having been made relating to that disability).


The decision in Sluggett should provide some comfort to employers. The FMCA has reaffirmed that an employer is not precluded from exercising its right to discipline an employee simply because the individual has made claims relating to discrimination.

The decision should provide employers with a degree of confidence that discrimination laws exist as a shield to protect the vulnerable, and ought not be used as a sword by those looking to manipulate the system. Employers who have in place robust human resources policies and procedures should feel a greater degree of confidence in relying on those systems when dealing with discrimination-related issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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