Published: July 2018
The manager of a child protection worker was concerned about the worker's state of mind after hearing about conversations she had with co-workers in which she raised certain conspiracy theories. The fact that she was working with children added to her manager's concerns.
The manager directed the worker to take sick leave until she could provide a medical certificate stating that she was fit to work. She was cleared to return to work by her GP and complained to the Anti-Discrimination Board that she had been discriminated against on the ground of an assumed disability, that is, an assumed mental illness.
The worker agreed that she had the conversations and believed in a number of conspiracy theories. The Tribunal heard that one co-worker told the manager the complainant had said the Pope was a Jesuit; that fallen angels breed with humans and create giants; and that a Large Hadron Collider had been turned on and caused the atmosphere to shut down.
The complainant did not deny these statements, but denied saying that the earth was flat and that there was a planet coming close to earth that will cause a polar shift. However the Tribunal believed the co-worker's account, because she had recorded the statements on the same day. The complainant had not made any record and was relying on memory of a conversation that had occurred two years earlier.
Another co-worker reported that the worker had told her, among other things, that a meteorite was going to hit the Earth and that all the world leaders knew about it. The co-worker described her behaviour as being very animated and excited. The complainant said she was only talking about biblical references to meteorites. Again, the Tribunal preferred the co-worker's evidence.
Under the Anti-Discrimination Act 1977 (NSW), a person discriminates on the ground of disability if they treat a person less favourably than others in the same or similar circumstances because of a disability, whether or not they actually have that disability.
Did the complainant's employer assume she had a disability? Was the complainant treated less favourably than others in similar circumstances? Did she suffer a detriment, loss, damage or injury because of the assumed disability?
The complainant argued that her interest in these topics was not evidence of mental illness, and her employer had therefore made an unreasonable assumption. However the employer said that it had a number of other reasons for its treatment of the complainant, such as safety concerns and the fact that she worked with children.
The Tribunal was satisfied that the real reason for the treatment of the worker was because its manager thought she had a mental illness. It had directly discriminated against her on the ground of assumed disability.
The Tribunal found that the complainant had been treated less favourably because of this assumed disability. Although she hadn't suffered any financial loss, being required to take sick leave and obtain a medical report stating that she was fit for work caused injury to her feelings.
The complainant sought an apology and monetary compensation for the hurt she suffered. However the Tribunal did not think an apology was appropriate because there was no suggestion that the employer had acted with any malice or ill-will. It ordered the employer to pay her $20,000 as compensation for pain and suffering.
This case illustrates the care that employers must take when dealing with concerns about disability and safety.
Stefanac v Secretary, Department of Family and Community Services  NSWCATAD 106
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