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Disabled worker wins $180,000 damages after employer refuses to make reasonable adjustments

A NSW government agency must pay a former employee more than $180,000, plus interest, for economic loss, pain, suffering and general damages for its discriminatory treatment of her and its failure to make reasonable adjustments upon her receipt of a medical diagnosis.

 

The probation and parole officer, who had worked for the NSW Government since 2001, had her duties informally adjusted after she was on sick leave at various times upon her diagnosis with Crohn’s Disease in 2009 and Idiopathic Hypersomnolance in 2011.

In 2011, the department told the officer that her secondment as an intelligence analyst within the department was over, partly because she was unable to travel for more than 30 minutes, and that she would be medically retired unless she was found fit to return her substantive position.

However, the Federal Circuit Court judge said the "sole basis" for the decision to end her secondment was her line manager's "factually incorrect" interpretation of the medical practitioner's advice, which was that she could take trips longer than 30 minutes if she was able to plan for a break along the way.

While the relevant management lines of responsibility were "in a number of instances ... ill-defined, and amorphous, or at best poorly explained before the court", the parole officer's line manager, who was also an HR manager, was found to be the source of the decision.

The judge said there was no evidence that any of the managers or supervisors turned their minds to the inherent requirements of the parole position and the reasonable adjustments that could be made. Instead of attempting to implement the doctor's advice, they continued to require her to take leave.

This conduct exacerbated the officer’s psychological condition and contributed to her difficulties, which included depression, suicidal thoughts, insecurity, bankruptcy and humiliation.

The judge also found her supervisors had concentrated on her illness rather than her “disability", as defined in s4(d) and (g) of the Disability Discrimination Act, whereas the latter would have allowed "a focus on what the consequences of the disability were for [the employee] and (employer)…"

"While not exclusively so, (the employer’s) primary focus was not on providing reasonable adjustments in light of [the officer’s] disability, but in dealing with a person whom they saw had an illness which necessitated long, disruptive and unplanned absences from work which impacted on the efficiency of the work of the office, and impacted on other staff."

While the judge acknowledged the (the employer) faced some difficult issues, he said these did not exclude its "failed" responsibility to achieve a balance by providing reasonable adjustments.

These failures in making reasonable adjustments and its lack of fairness in its communications with the officer were exacerbated by putting her "on extended leave and recreational leave, and without notification or consultation, sick leave… and then leave without pay …"

He said the (the employer) "acted arbitrarily and capriciously" in this regard, with its "unexplained failure to act in good faith" also giving rise to a finding that it acted unreasonably.

In ruling that (the employer) breached the Disability Discrimination Act, the employment contract and its own published policies in treating her less favourably as a result of her disability, the judge also criticised the department's solicitors for failing to "properly and comprehensively prepare their case".

The employer had argued that while it had attempted to "reasonably accommodate" the employee it was not obliged to put reasonable adjustments in place because she could not meet the "inherent requirements" of the position.

However the stance did not "derive from evidence presented by any relevant witnesses …"

The judge ordered the Department to re-credit her leave entitlements and pay compensation for loss or damage suffered, including $75,000 for pain and suffering and breach of contract and $98,863, plus interest, for loss of wages, leave entitlements, superannuation, psychologist costs and loss of promotion opportunities.

iHR Australia believes that employers can avoid costly and time consuming legal battles by utilising mediation.  Our mediation services offer a confidential and structured process in which an independent and impartial third party facilitates discussion between the various individuals involved. Successful mediation can enhance and assist your organisation to stabilise ongoing internal and external working relationships and achieve better outcomes for parties involved.

 

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