One of the grounds on which employees can make a general protections claim is on the basis of disability. A general protections claim can be made where an employee has a reasonable beliefthat adverse action has been taken against them for a variety of reasons, disability being one of them. Adverse action can include dismissing the employee.
The word disability, under discrimination laws,includes both physical and mental disability. Examples of what constitutes disability are also found in the Disability Discrimination Act 1992 (Cth).
An example of where an employer was found to have discriminated against an employee on the basis of disability is found in the case of Stephens v Australian Postal Corporation. Here, an employer argued that it dismissed an employee due to a pick up that he missed. However, the court found that the real reason for the employee’s dismissal was because of his disability. The employee had sustained a work-related lumbar spine injury. It was held that the physical injury, along with the mental symptoms it caused, constituted a disability. The employer was ordered to pay the employee $25,000 as a pecuniary penalty.
In the case of Silver v Rogers & Rogers, the employee was unwell with pneumonia and golden staph, and was off work for a long period of time. His employment was terminated due to ‘economic circumstances and health related issues’. It was found that the employee’s physical disability and health issues were the main reason for his dismissal.
Interestingly, in the case of Evangeline v Department of Human Services, the applicant made sexual harassment allegations against another employee, and claimed that preferential treatment was provided to the accused employee because of the applicant’s disability. The court found that there was nothing to suggest that the action taken by the employer as a result of the applicant’s harassment allegations against a colleague had anything to do with her disability, and the application was dismissed.
Cugura v Frankston City Council is another example of where it was found that an employee was not dismissed because of their disability. The employee had physical limitations after undergoing surgery for cancer. The employee claimed that the employer failed to accommodate his disability and terminated his employment because of it. The employer claimed that the employee could not perform the inherent requirements of his job. The Commission held that although the applicant did have a physical disability, the decision to dismiss him had nothing to do with his disability, and was only reached after an investigation into his conduct.
If you think you have been discriminated against because of a mental or physical disability, you can lodge a general protections claim with the Fair Work Commission.
If you have any queries about this article, please contact employment law advisory servicesfor a no obligation discussion about your rights.