Former worker awarded $170,000 compo in disability discrimination case
Thursday, August 20, 2015/
A former employee at Corrective Services NSW has been awarded more than $170,000 in compensation after the Federal Circuit Court found she had been unlawfully discriminated against.
The court ruled Corrective Services failed to make “reasonable adjustments” to Caryn Huntley’s work duties after she was diagnosed with Chrohn’s Disease, which is considered to be a disability under Australian law.
The medical condition meant Huntley was unable to drive for long periods of time without scheduled breaks.
While Corrective Services NSW put in place a “return to work plan” Huntley was advised about six months later that the informal arrangement could not continue due to the constraints it placed on workplace operations.
In 2010 Huntley was asked if she would prefer to be redeployed or retired, to which she asked to be redeployed.
A number of other positions were available, however Huntley declined, saying they did not suit her physical needs due to her medical condition.
In the meantime she continued to work and meet with her supervisors to discuss her medical condition.
Two years later Corrective Services NSW told Huntley it was not required to secure her an alternative position and would not provide any “adjustments” to her current job.
Huntley then lodged a complaint with the Australian Human Rights Commission and subsequently took Corrective Services to court.
As a result, judge Nick Nicholls found Huntley was entitled to compensation for pain and suffering, along with a breach of contract.
Warwick Ryan, workplace relations expert and partner at Swaab Attorneys, told SmartCompany it is important for employers to understand they have an obligation to help an employee fulfil their duties.
This could involve installing a lift for an employee who has to use a wheelchair or installing a specific type of software for the visually impaired.
“The obligation is to provide some sort of aid or support that enables them to carry out their job,” Ryan says.
“But at the end of the process of the adjustments, they have to be able to do their job. The limitation on that is it shouldn’t impose an unjustifiable hardship on the business.
“So it might be, for example, a small business that happens to be in a two-storey building. I doubt the court would say you have to move your whole business down the road to another building.”
Ryan says apart from these obligations on behalf of the employer, workers do not have a right to not do their job.
“The basic principle is that employees have to be able to carry out the inherent requirements of the job,” he says.
“That has been upheld in a variety of decisions such as a case involving Boag’s Brewery. The individual concerned in that case had a condition that didn’t allow him to carry out his job fully – his mates helped him. But the court said that wasn’t enough.”
Ryan also points out the courts place a much greater obligation on the public service employers than on the private sector, as the public sector is seen to have “deep pockets”.
“It is very common when I read a case involving the public service that I come away thinking the courts have been particularly hard on the public service and have an expectation on them that is bordering on the unreasonable,” Ryan says.
“You’ve got to then ask the question of how that effects the productivity of the public service.”
SmartCompany contacted Corrective Services NSW but did not receive a response prior to publication.