The Federal Court has found that the Australian Taxation Office (ATO) engaged in unlawful discrimination when it formed the view that a new employee was not medically fit for duties.1
Mr Gordon was employed in the Federal public sector in a number of positions between 1985 and 2001, including with the ATO. In 2001, he started his own business as a private tax agent in Hobart.
In March 2003, he was successful in a selection process for the position of GST Field Officer in the ATO's Launceston office.
The offer of employment included a condition imposed under s22(6)(e) of the Public Service Act 1999 (Cth) that he meet health clearances. Mr Gordon was advised by letter that if he was found to be unfit for employment, 'this employment offer may be withdrawn or your employment terminated'.
Mr Gordon undertook a medical examination on 22 April 2003. He commenced duties at the ATO on 28 April 2003 before a determination was made regarding whether he met the health requirements.
For the first 16 weeks, Mr Gordon was to undertake training. Thereafter, his position would include audit and advisory field visits for approximately 50% of his time, driving significant distances and carrying a laptop computer and printer.
The white coats
When examined by a Health Services Australia (HSA) doctor on 22 April 2003, Mr Gordon's blood pressure reading was 200/110 and his weight was 138.8 kg.
On the same day, Mr Gordon saw his treating GP who recorded his blood pressure as 190/105 and prescribed blood pressure medication.
In the period to 4 June 2003, the following blood pressure readings were taken by Mr Gordon's doctors:
- 9 May 170/105
- 15 May 170/110 and 180/110
- 19 May 170/98
- 28 May 170/100
- 2 June 150/88.
However, on 13 May, the HSA doctor obtained a further reading of 200/125.
In a report dated 2 June 2003, HSA concluded that Mr Gordon was unfit for the full duties of the position at that time. HSA had consulted Mr Gordon's treating GP. HSA also indicated that, depending upon medication and weight loss, it would be between one and six months before Mr Gordon would be fit for full duties.
On 4 June 2003, the ATO wrote to Mr Gordon confirming that the offer of employment was 'withdrawn'.
Mr Gordon commenced proceedings in the Federal Court alleging that the ATO had engaged in disability discrimination contrary to s15(2)(c) of the Disability Discrimination Act 1992 (Cth) (the DDA).
At the hearing, Mr Gordon's cardiologist gave evidence that Mr Gordon had a "significant 'white coat' effect" (anxiety regarding medical tests). This was shown by how his blood pressure readings decreased over a 24 hour period of ambulatory testing (where a device is worn for 24 hours) which was conducted in February 2004. HSA had not done ambulatory testing and relied on tests conducted in the presence of its doctor.
A specialist gave evidence for the ATO that there would be more stress in the job as GST Field Officer than in medical tests.
On 6 May 2008, Heerey J of the Federal Court found that the ATO discriminated against Mr Gordon because of his imputed (as distinct from actual) disability of hypertension.
His Honour noted that the DDA did not require an intention or motive to discriminate.
On the evidence, it was at least possible Mr Gordon was affected by 'white coat syndrome' and might have had significantly lower blood pressure had ambulatory testing been administered by the HSA.
In any event, it could have been brought under control before Mr Gordon was required to engage in extensive driving as part of his duties.
His Honour held that:
- The ATO discriminated against Mr Gordon as it had imputed to him a disability and treated him less favourably than other employees who had the same qualifications but without that disability
- The real and operative reason for the ATO's decision was Mr Gordon's imputed hypertension, not that he failed to meet a condition of his employment
- For the purposes of the DDA, it did not matter whether Mr Gordon had been dismissed or the offer of employment withdrawn as the DDA protects against dismissal on discriminatory grounds and offers, terms and conditions of employment which are discriminatory.
The ATO had argued that even if there had been discriminatory conduct, the defence in s15(4) of the DDA should apply. That is, Mr Gordon could not perform the inherent requirements of the position due to his disability and that he would require services or facilities which would impose an unjustifiable hardship on the ATO.
Heerey J held that the defence did not apply as the ATO had failed to establish that Mr Gordon could not perform the inherent requirements of the position. As a consequence, the second part of the defence regarding unjustifiable hardship did not arise.
Heerey J refused to reinstate Mr Gordon to his position at the ATO as five years had passed, he now had other permanent employment (at lower pay) and his position of GST Field Officer in Launceston no longer existed.
His Honour awarded the following damages:
- $63,267 for past economic loss (the difference between what he had earned and what he would have earned at the ATO to May 2008)
- $8,030 benefits repayable to Centrelink
- $20,000 for mental anguish (while Mr Gordon may 'not have a particularly stoic make-up...the unlawful discriminator must take the plaintiff as it finds him')
- $30,465 in interest.
Significantly, Heerey J refused to award any damages for future lost earnings. There was insufficient evidence that Mr Gordon would have remained with the ATO (given his employment history).
Courts have the benefit of information which may not have been available at the time of the employer's decision. In this regard, the Federal Court noted that the philosophy of the DDA allows for the consideration of all factors that 'are reasonable to take into account'. This may be little comfort to employers making decisions on the basis of information available at the relevant time.
When the ATO made its decision, there was no evidence of 'white coat syndrome'. However, the fact that Mr Gordon's GP was obtaining lower blood pressure readings could have indicated further investigation was necessary or that a decision should be delayed until the end of the training period to see if there was a change.
Generally, it would be preferable not to commence work until all the health requirements have been met.
Finally, the decision is a reminder of the fact that discrimination can be found to occur when making offers of employment and during a probationary or qualifying period of employment.
1 Gordon v Commonwealth of Australia  FCA 603 (6 May 2008)
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