A disability is any condition caused by an accident, trauma, disease or genetic disposition that restricts the mental, sensory or mobility functioning of a person.
Disability can be permanent or temporary, partial or total, chronic or acquired, visible or invisible.
About 20% of Australians have some form of disability. People with disability experience higher rates of unemployment than others without disabilities. They are more likely to experience discrimination in hiring. Only about half of disabled Australians of working age are employed.
How does the Disability Discrimination Act define “disability”?
Section 4 of the Disability Discrimination Act of 1992 broadly defines disability and includes physical, neurological, sensory, intellectual, psychiatric, and learning disabilities.
How does the Disability Discrimination Act differentiate “physical” from “mental” or “intellectual” disability?
Physical disability includes:
- total or partial loss of bodily or mental function.
- total or partial loss of a part of the body.
- presence in the body of organisms causing disease or illness.
- presence in the body of organisms capable of causing disease or illness.
- malfunction, malformation or disfigurement of a part of the person’s body.
A mental or intellectual disability includes:
- disorders or malfunctions that results in persons learning differently from a person without the disorder or malfunction.
- disorders, illnesses, or diseases that affect persons’ thought processes, perceptions of reality, emotions or judgment or that which results in disturbed behaviour.
What is discrimination based on disability?
Discrimination is when an employer or co-worker treats persons with disabilities unfavourably because of the disability, because of some characteristic that appertains to the disability, or because of characteristics that are generally imputed to the disability. It is when people with disabilities are treated less favourably than others who have no disability. This is often referred to as direct discrimination.
Discrimination may be indirect as well. Indirect discrimination occurs when an employer imposes or proposes to impose a rule, condition, requirement, policy or practice that ostensibly treats all fairly but the implementation of the rule, condition, requirement, policy or practice will result in putting persons with disabilities at a disadvantage.
In Dziurbas v Mondelez Australia Pty Ltd ((Human Rights  VCAT 1432 (9 September 2015)) a 63-year old production worker suffered an injury at work. He had been working at the confectionary company for 30 years. After he recovered from his injury, his medical report warned that his chronic elbow condition could flare up if he maintained his regular duties. He was terminated.
The confectionery company asserted that he was terminated out of fear that he would be re-injured on the job or that his disability might get worse. However, the court said that the employer should have given him other duties instead of terminating his employment.
The employee spoke very little English and he did not have a driver’s license. His work experience was limited as he had only worked for the confectionery company for 30 years. The court ruled that his disability was the cause of his termination. In awarding him $20,000 for the shock and pain suffered by him, the court also noted that if the employee had been allowed to work until he was 65 years old, he would have earned $261,000.
How does disability discrimination occur in the context of the workplace?
Disability discrimination occurs when a person with a disability is not allowed to proceed to the next step of the selection process when applying for a job.
In Vickers v The Ambulance Service of NSW ( FMCA 1232 (25 August 2006)), a male registered nurse who had Type 1 Diabetes, applied for the position of ambulance driver. Prior to applying for the position, he had served as a nurse at a hospital. The nurse was prohibited from proceeding to the next stage of the recruitment process – he was not allowed to train as an ambulance driver. The court ruled that the ambulance service breached s 215 (1) (b) of the Disability Discrimination Act by not allowing the nurse to proceed with the next step in the recruitment process. The nurse can perform the inherent requirements of the position: he can drive, and he can treat patients in an emergency, and he had relevant work experience in rendering treatment during extreme and unpredictable hours of work. The nurse had shown that he was well able to manage his diabetes symptoms and avoid hypoglycemia. Thus, he was well able to perform the job without risk to the health and safety of others. The applicant should have been allowed to proceed to the next step in the selection process just as any similarly qualified person without diabetes.
Disability discrimination occurs when the nature and duties of a person with a disability is changed, effectively putting the employee at a disadvantage.
In Wiggins v. Department of Defence – Navy ( FMCA 800 PEG 170 of 2004 (9 June 2006)), a female Navy Officer worked as Fleet Support Officer. She took a sick leave when she fell ill with depression. When she returned, she learned that without consultation or notice to her, during the pendency of her sick leave, she had been transferred to the public affairs office. Although the rate of her pay was unchanged, the transfer was effectively a demotion as the job she was transferred to did not have the same responsibilities requiring skills she had. She resigned from the Navy consequent to the transfer and filed this discrimination complaint. The transfer came within two weeks after she took a sick leave for the treatment of her depression. At the very least, she should have been told of the proposed transfer, she should have been given the opportunity to return to her old job after her rehabilitation, she should have been asked to provide relevant details of her condition before she was transferred. The Navy breached s 15 (2) (1), (b) or (d) of the Disability Discrimination Act. For the hurt, upset and humiliation she suffered, she was awarded $25,000.
Disability discrimination occurs when a contractual or casual employee is no longer given work consequent to an injury or illness.
An Indigenous worker was hired as a casual worker by the Deerubbin Local Aboriginal Land Council. His duties consisted of monitoring work on construction projects to ensure unearthed Aboriginal cultural artefacts are not damaged. He worked from 2003 until 2005. In March 2005, he had an epileptic episode at work. He was hospitalised for seizure-related treatment. When he returned to work, he was given less and less work until he was not offered any further work. The Land Council told him that there was a downturn in construction work. The court found that while it was true that there was indeed a downturn in construction work, other casual workers who did not have epilepsy were still offered work continuously. This was an act of disability discrimination as the Indigenous worker was treated differently and unfavourably than other non-disabled employees in similar circumstances. He was awarded economic loss of $1,951 and damages of $23,951.00.
Indirect disability discrimination can occur when an employee is required to take a competency assessment following a traumatic event.
In Flavel v. Railpro Services Pty Ltd ( FCCA 1189 (29 August 2013)), a rail company hired a locomotive driver with a heavy haulage license. He began work in April 2011 and had no incidents or mishaps until October 2011 when he was driving under supervision. He crashed into another train. While there were no injuries in the crash, there was property damage amounting to $5 million. The rail company investigated the incident and found the driver at fault although he was not dismissed because mitigating circumstances were present. He was, instead, required to take a competency assessment, six weeks after the accident. On the day of the competency assessment, he said he felt ill. Just the same, he was required to board the train. He asked the assessor if he could take his notes and diagrams with him near the driver’s seat on the train during the test but he was not allowed. As the assessor drove the train, the driver became physically ill. He was unable to take the test and was dismissed. In ruling for the locomotive driver, the Court found that the rail company did nothing to determine if the locomotive driver had adverse emotional or psychological reactions to the traumatic crash. The locomotive driver was not seen by a qualified professional to help him deal with the effects of the trauma of hitting a train where his friends and co-workers were working. The locomotive driver who was 58 years old at the time had 37 years’ working experience. Thus, his inability to take a competency assessment (something he had done periodically for years) without his notes and diagrams was not something normal. Instead of being dismissed, the rail company had the duty to take reasonable care to protect the locomotive driver’s health and safety by not requiring him to drive or take a test that required him to operate a locomotive while he was mentally or physically ill. The Court awarded the locomotive driver $70,000 for lost wages, $25,000 for the humiliation, distress and hurt resulting from his dismissal, and $5,000 penalty for breaching adverse action laws.
Disability discrimination occurs when an employer fails or refuses to make reasonable adjustments so that a disabled employee can better perform at her job.
In Huntly v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015 FCCA 1827 (3 July 2015)), a parole and probation officer took a sick leave following a diagnosis of Crohn’s disease. The medical report said that she could not take trips longer than 30 minutes without taking a break along the way. Instead of implementing her doctor’s advice, her duties were adjusted and she was forced to take more leaves, exhausting her leave credits. Her supervisor and HR Manager decided to medically retire her because her job duties included taking road trips which she could no longer perform. The officer suffered depression, bankruptcy and humiliation because of the medical retirement. The Court found that she was well able to perform her duties even with her illness. She could take long trips but she had to take several breaks along the way. Since her leaves were forced on her, her leave entitlements were re-credited to her and compensation for loss and damage suffered in the amount of $75,000 and for the breach of her contract and the pain and suffering she experienced, she was awarded $98,863.
What can I do if I feel that I have been discriminated against because of my disability?
You can file a general protections claim under the Fair Work Act 2009 if you are covered by the federal law system and are discriminated at work. Alternatively, if you are not covered by the Federal law system you can lodge an unlawful termination claim under the Fair Work Act 2009.
You can also lodge a claim with the Australian Human Rights Commission.
How can we at MKI Legal help you?
We have a team of employment law experts on hand to help. We can have a free and confidential initial telephone discussion about your rights.