Rebekah Fryer - Solicitor
The Australian Tax Office was recently found, in proceedings alleging unlawful 'disability discrimination', to have unlawfully dismissed a worker whom the ATO believed (wrongly) suffered from high blood pressure. Mr Gordon was offered employment by the ATO subject to passing a medical examination but started work before the ATO received the results of the medical examination. When it did, Mr Gordon was 'found' to have very high blood pressure and a number of other medical conditions. The ATO withdrew its offer of employment on the basis that he did not pass the preemployment medical conditions of his offer of employment. The Federal Court found that Mr Gordon was unlawfully dismissed and awarded him damages of $121,762.
Mr Gordon was employed by the Australian Tax Office (ATO) as a GST compliance officer in Tasmania. It was a condition of his employment that he was fit to perform his duties, which included extensive driving, but he commenced work with the ATO before being medically examined for job fitness. On 22 April 2003, Mr Gordon underwent a medical examination conducted by Dr Payne. This examination showed that Mr Gordon was suffering from hypertension (high blood pressure). His blood pressure at the examination was 200 over 110. It also revealed that he was morbidly obese, had a thyroid condition and an ingrown toenail.
On 8 May 2003, the ATO received the results of his medical examination. Mr Gordon was called out of training and given a letter which detailed that his offer of ongoing employment was contingent upon him satisfying the ATO that he was medically fit to perform his duties. Later that day, Mr Gordon was examined by his own doctor, Dr Mee. He recorded Mr Gordon's blood pressure as being 170 over 105. Dr Mee said that he felt Mr Gordon was able to perform the normal duties of his position.
Mr Gordon then made an appointment with the ATO for a further medical examination on 13 May. Dr Payne recorded Mr Gordon's blood pressure on that day as 200 over 125. Doctor Payne noted in his later report that Mr Gordon was on medication for blood pressure and to manage his thyroid condition, had lost weight, changed his diet, begun exercising and planned to have his toenail removed. Dr Payne recognised the anxiety Mr Gordon was under at the time of his examination. However he noted that it would take time for Mr Gordon's blood pressure to stabilise as he was on increasing doses of blood pressure medication and there was a chance that he could suffer an adverse reaction to the medication.
On 2 June, Dr Mee recorded Mr Gordon's blood pressure as 150 over 80. Mr Gordon informed the ATO of this on 4 June. On the same day, however, the ATO wrote to Mr Gordon stating that he was medically unfit for the position and his offer of employment was withdrawn. On 6 June, Mr Gordon wrote to the ATO setting out Dr Mee's findings.
On 13 November 2003, Mr Gordon went to another GP, Dr Cooper, who referred him to a cardiologist. It was the view of the cardiologist, who recorded lower blood pressure readings, that Mr Gordon was able to drive a car and that the higher blood pressure readings taken by Dr Payne were symptomatic of acute anxiety when being examined by doctors. This is known as 'White Coat Syndrome', being a fear of doctors or their findings and shows itself through increased blood pressure.
On 26 November, the cardiologist formed the view that several measures should have been taken by Dr Payne to ensure that Mr Gordon was not suffering from White Coat Syndrome. He stated that the possible side effects of the blood pressure medication would have passed within a couple of weeks and that Mr Gordon's elevated blood pressure would have decreased. In 2004, Mr Gordon, on the direction of his cardiologist, wore a blood pressure monitor for 24 hours, which recorded an average reading of 111 over 70.
In 2005 Mr Gordon commenced proceedings in the Federal Court, claiming that the ATO had unlawfully discriminated against him by dismissing him for his perceived disability. The ATO argued that it would suffer unnecessary and unjustifiable hardship in accommodating Mr Gordon to perform the duties of his role, which included extensive driving. It also argued that, because of his 'disability', Mr Gordon was unable to fulfil the inherent requirements of his position.
The Federal Court found that Mr Gordon had been discriminated against by the ATO on the basis of a perceived disability, being hypertension. It accepted that hypertension is a disability and it was imputed to Mr Gordon by the ATO on the advice it received from Dr Payne.
The Federal Court also held that the other conditions suffered by Mr Gordon - obesity, a thyroid condition and an ingrown toenail - were also disabilities and it would have been discriminatory for the ATO to withdraw the offer of employment on the basis of these disabilities. However, it said that the real and operative reason for Mr Gordon's offer of employment being withdrawn was Mr Gordon's imputed disability of hypertension.
The Federal Court said that the ATO, by withdrawing the offer of employment when the worker had already commenced work and when he would have continued to work but for the fact that he was asked to leave, amounted to a dismissal. The Federal Court found that the ATO had failed to demonstrate that Mr Gordon would have been unable to fulfil the extensive driving requirements of a GST compliance officer. While it noted that the job required an extensive amount of driving, the Court was of the view that Mr Gordon could have been accommodated without causing unjustifiable hardship to the ATO. The Federal Court believed that Mr Gordon's hypertension would have been under control by the time he would have been required to drive extensively and all possible side affects from the medication would have passed. Further, it found that as Mr Gordon suffered from White Coat Syndrome, which caused his blood pressure to be significantly elevated, his normal blood pressure was substantially lower than recorded at his medical examination. Therefore, the Federal Court concluded that Mr Gordon's blood pressure would not present as significant obstacle to his work related driving as the ATO believed.
Mr Gordon was awarded damages of $121,762 for lost wages, mental anguish and interest. The Federal Court said that the damages were appropriate because the compensation should reflect all of the loss suffered, not just economic considerations. Mr Gordon was not reinstated because the position no longer existed.
Lessons for Employers
The Gordon case is a real smorgasbord of 'how to get things wrong' when dealing with an employee, or prospective employee, with a medical condition that might interfere with their ability to work in their position, or proposed position. Lessons from the case for employers include:
- If medical testing is desirable and defensible - it may not always be - complete the testing before commencing the employment;
- If medical tests indicate that there is or might be a problem, investigate it thoroughly before concluding that the employment, or offer of employment, cannot viably proceed;
- Be aware of and consider your obligations under antidiscrimination law relating to disability discrimination before developing an action plan to deal with potential medical or physical limitations;
- Remember that, in the area of disability discrimination, as an employer, you have a positive, but limited, obligation to rise to meet the challenge presented by an employee or prospective employee with medical or physical limitations. While employees will be required to demonstrate an ability to perform the inherent requirements of their position, they are entitled to some adjustments to accommodate their individual circumstances. The balance is not always easy to strike, but it is better to work through the issues comprehensively at the time they arise, than to seek to deal with them after the event by defending a claim of unlawful disability discrimination.
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