Australia: Workplace Relations - discrimination in NSW

NSW Government Bulletin Summer 2014 Edition – year in review
Last Updated: 15 January 2015
Article by Michael Selinger
Most Read Contributor in Australia, September 2016

The year 2014 saw a number of important developments in employment and safety law, most importantly in the area of discrimination. The area of discrimination impacts on all areas of NSW government and agencies, in particular those entities that provide services to members of the public. And with a recent Federal Court decision in Richardson v Oracle Corporation Australia Pty Ltd [2014], damages payments for discrimination claims are set to increase.

Set out below are a number of the key discrimination cases from 2014 that impact on NSW government departments and agencies.

Discrimination on the basis of carer's responsibilities

In the decision of Wright v Commissioner of Police [2014], Constable Wright complained to the NSW Civil and Administrative Tribunal that the NSW Commissioner of Police had discriminated against him by refusing his applications to transfer to a different police station based on his carer's responsibilities. Under a parenting agreement between the constable and his employer, the employee was entitled to spend certain times with his two children who lived approximately 490km away with his former wife. However, Constable Wright's application for leave was denied on several occasions. On some of these occasions he neglected to attend his rostered shift in favour of spending time with his children. The constable also applied for a number of transfers to different police stations to assist with his carer responsibilities. These were refused.

The Tribunal found that Constable Wright's carer's responsibilities formed a genuine reason for the refusal of his transfer applications and that unlawful direct discrimination had taken place. This was confirmed on appeal. However, the times that Constable Wright refused to attend to his duties in order to be with his children was found not to constitute indirect discrimination. This was because the constable was able to comply with the requirements but merely "would not" comply because he believed he could not refuse to care for his children on the few days he was able to be in contact with them. On appeal, it was confirmed that the purpose of indirect discrimination legislation was to prevent discrimination by a "system of administration works" which unintentionally disadvantages persons with the same protected attribute, and is not intended to protect against individualised acts of unlawful discrimination.

This case also confirmed that direct discrimination does not require the attribute to be the only reason for the differential treatment. It is enough that the attribute was a genuine reason for the treatment.

Requirements to make reasonable adjustments for an employee with a disability

In the decision of Watts v Australian Postal Corporation [2014], Ms Watts was a bid manager for Australia Post who suffered from a psychological injury as a result of an incident concerning her not being selected for a leadership training program offered by Australia Post. As a result, Ms Watts took significant time away from work and lodged a workers' compensation claim. She returned to work several months later, although her claim was not resolved until the following year. After her return to work, Australia Post moved to manage her return as a bid manager as part of her return to work program, but under different arrangements, citing a "non work related medical restrictions policy". The case centred around whether Australia Post's decision to change Ms Watt's working arrangements by reference to the new policy was in breach of the Disability Discrimination Act 1992 (Cth).

Ms Watts did not agree with Australia Post's decision to manage her under the new policy and she resisted requests for various medical certificates and evidence to be produced regarding her fitness to return to her pre-injury role. Eventually Ms Watts complied with a formal direction to attend a medical examination with an independent psychiatrist who subsequently produced a report stating she was fit to return to her pre-injury role and could perform the inherent requirements of that position. A year after receiving that report, Ms Watts lodged a complaint with the Human Rights Commission concerning Australia Post's continuing refusal to allow her to return to work in that role. The refusal was on the basis that she could not perform the full requirements of the role.

The Federal Court held Australia Post had contravened the Disability Discrimination Act by engaging an unlawful discrimination on the ground of Ms Watt's disability. Those contraventions related to Australia Post's failure to make reasonable adjustments for her to remain at work, exercise her skills and use her sick leave as she chose, all of which were benefits associated with her employment. Ms Watts was consequently entitled to compensation for loss of income during that period, and general damages of $10,000. The court confirmed that the obligation was on an employer to make reasonable adjustments for a person with a disability. Importantly, an adjustment was said to be reasonable unless the employer could prove it would impose unjustifiable hardship.

The effect of this decision is that government organisations now need to consider all requests for adjustments to be made for a person with a disability and, if they are not to be implemented, have a sound basis to establish that it would otherwise impose unjustifiable hardship on the organisation.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Michael Selinger
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.