Decision “unfair” but not discriminatory 

Legal Case - Disability discrimination in employment


An employer may not be guilty of discrimination even if they have treated an employee quite unfairly, as a recent case in the South Australian Equal Opportunity Tribunal has found.

Background

In a recent case, the South Australian Equal Opportunity Tribunal described an employer’s treatment of an employee as “unfair and irrational” but not unlawful discrimination. 

image of man taking medical assessment ​
During his pre-employment medical, which the Tribunal said was an “expertly tailored” assessment procedure, the employee disclosed that he had Asperger’s Syndrome. After completing the medical, which included 11 strength and flexibility tests, he was assessed as fit for the job and his employment was recommended.   

The man worked in the role for several weeks and his managers had no problems with him, but the general manager decided against giving him a permanent job. The general manager denied that his decision had anything to do with the employee’s Asperger’s Syndrome. He said it was because the employee’s strength and flexibility test results had shown some areas of “potential vulnerability”. The medical doctor who administered the tests had not thought these results disqualified the employee and the general manager was not himself a doctor.

Results 

The Tribunal reluctantly dismissed the employee’s claim of disability discrimination on the basis that he did not have a disability. There was no evidence that the General Manager was motivated by the Asperger’s and the test results indicating “possible future injury, pain or lack of safety” did not constitute any disability, even future disability,  as defined by the South Australian Equal Opportunity Act 1984.

However the Tribunal pointed out that in making his unfair decision, which he was not qualified to make, the general manager had undermined the employer’s pre-employment assessment system which had been “so carefully and expertly” set up and implemented.   

Sellen v TNT Australia P/L [2015], SEOT 6, 30/09/15)

​​Back to February 2016 - Equal Time Newsletter 

Related content:

Subscribe to e-newsletter

Equal Time is the Anti-Discrimination Board’s FREE e-newsletter. 

Copyright notice and disclaimer​

You may copy, distribute, display, download and otherwise freely deal with the content of Equal Time for personal, educational or government purposes, provided that you attribute the Anti-Discrimination Board of NSW as the owner.  

However, you must obtain permission if you wish to (a) charge others for the use of any content of the Board's publications or materials, (b) include any content of the Board's publications or materials in advertising or a product for sale, or (c) modify any content of the Board's publications or materials when reproducing it.  

Equal Time has been prepared by the Anti-Discrimination Board of NSW for general information purposes and is not legal advice. While every care has been taken in relation to its accuracy, no warranty is given or implied   Further, recipients should obtain their own independent advice before making any decisions that rely on this information.  ​