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 , 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 , 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 , 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.