Maxworthy v Shaw  FMCA 1014
A recent case has found that a comment relating to the physical manifestation of a disability can be used to infer direct discrimination on the basis of that disability.
The applicant, who was a single mother of four was originally employed by the Taree Lunch Spot in June 2007 to work three hours per day, two days per week starting at 11:30am. She also had a second part time job working at an aged care facility. She suffered from Chron's disease and as a result, had to wear a colostomy bag. In October 2007, new owners took over the shop and they continued the applicant's employment.
In spite of the applicant's family responsibilities and despite her objections, the new owners substantially increased her hours and put pressure on her to expand mobile sales. As the applicant stated that she could not work those hours because of her family responsibilities, the owners of the business indicated that they would get a second person to help with mobile sales. However, while there was a trial and some training of two other people, job share arrangements were not put in place.
At the time, the applicant was given an assurance that her job was safe and as a result she gave up her second job.
However, on returning from Christmas break, the applicant was again told that she had to work increased hours.
The increased pressure made the applicant ill, as her Crohn's disease symptoms became worse.
When the applicant called in sick, the owner indicated that her job was 'safe' and gave her permission to take the rest of the week off. In the meantime, the owner had advertised the applicant's position in the local newspaper. The applicant saw the advertisement and made several attempts at contacting her employer.
When she finally made contact, her employer accused her of being unreliable and of abandoning her employment and stated that she could not come back to work.
Her employer then said words to the effect 'I do not want you working in the business. You have no right working for us running around with that shit bag hanging off you'.
In deciding the case, the Court found that the correct comparator for the purposes of the Differential Treatment Test was an employee of the Taree Lunch Spot, having the same position and responsibilities of the applicant, who:
- Did not have Crohn's disease
- Was a well regarded employee
- Carried a colostomy bag
- Was unable to work in the mobile van on a full-time basis
- Was absent from work for a short period of time.
The Court held that an objective assessment must be made as to whether the colostomy bag itself was an impairment to the applicant's capacity and the actual performance of her duties in her employment.
Federal Magistrate Nicholls found that while the colostomy bag did not impair her performance, the wearing of the colostomy bag (which was a physical manifestation of her disability) had led to less favourable treatment of the applicant when compared with other employees.
The court also imputed meaning from the defendant's statements criticising the applicant's symptoms, stating that 'it is appropriate to draw the inference that [the defendant] discriminated against [the applicant] because of her disability'.
Federal Magistrate Nicholls further found that other employees had displayed inefficiency and poor performance and yet they had merely been redeployed to other positions, while the applicant who had previously been praised for her performance was dismissed.
The court also found that the applicant had been discriminated against on the basis of her family responsibilities.
Consequently, Federal Magistrate Nicholls accepted the applicant's claim that she was dismissed for her disability, and awarded damages of $15,000. He then accepted that the amount 'should be increased on the basis of aggravated damages given the behaviour of [the defendant] in acting in an insulting manner when committing the unlawful discrimination' to $20,000.
The Court further awarded $33,394.50 in lost wages as well as costs and interest.
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.