To employ or not to employ a person with a disability

Legal case: Disability discrimination

Published: 1 May 2017

Employers should not make unwarranted assumptions about perceived disabilities, as a recent case in the NSW Civil and Administrative Tribunal reveals.

The Facts

Mr Chalker applied for a job as a coach driver, but was refused employment when his pre-employment medical revealed that he was temporarily unfit pending treatment of his personality disorder. He made a complaint of disability discrimination, arguing that he had been discriminated against because he was perceived to have a mental illness.  

After conciliation was not successful, the Anti-Discrimination Board referred the case to the NSW Civil and Administrative Tribunal. When it was first considered, the Tribunal gave Mr Chalker three months to provide more information, including witness statements and evidence of any harm he had suffered. 

At the end of that time, Mr Chalker submitted a report from his own psychiatrist arguing that he needed more time to prepare his case. He was granted an extension, but was still unable to provide all the information the Tribunal required. 

The first hearing – issues

The bus company, Murrays, then applied to have Mr Chalker’s claim dismissed without a hearing. It argued that the case lacked substance and that Mr Chalker had failed to progress his complaint quickly enough.   

The Tribunal had to decide whether to dismiss the case or proceed to a full hearing. It decided not to dismiss it because:  

  • Mr Chalker had an excuse for the delay - he was self- represented, had a personality disorder, did not fully understand what was required of him and was affected by the stress of the proceedings  
  • Having been refused a job following a medical examination, he had a reasonably arguable case that disability was at least one of the reasons her was not offered a job  
  • Murrays did not produce any evidence that it would suffer harm if the matter was delayed. 
In relation to the argument that Mr Chalker’s case lacked substance, the Tribunal noted that for Murrays to be guilty of disability discrimination, Mr Chalker must prove he was refused the job on the ground of disability, unless an exception applied. 

One of the exceptions in the Anti-Discrimination Act 1977 (NSW) is if the applicant is unable to fulfil the ‘inherent requirements’ of the job. A case can also be dismissed if it is ‘frivolous, vexatious, misconceived or lacking in substance’.

The Tribunal decided that Mr Chalker may or may not be able to prove his case, and the bus company may or may not be able to prove that it came within the ‘inherent requirements of the job’ exception. It therefore decided to proceed to hear the case.  

The second hearing – issues

The Tribunal heard that Mr Chalker was refused the job because the operations manager and the chief executive of the company felt he was unable to fulfil the inherent requirements, and the CEO said there would be ‘trouble with him down the track because of his behaviour’. 

The operations manager told the Tribunal that his main concern was the fact that Mr Chalker did not disclose at interview that he was taking medication. He saw that as evidence of dishonesty. 

The Tribunal had to consider what sort of disabilities a job applicant must disclose. The doctor who performed Mr Chalker’s pre-employment medical had found him ‘difficult’, and Mr Chalker had refused to consent to his treating doctor being asked for information. He had been unhappy about some of the processes involved and the questions he was asked. 

The Tribunal then had to decide whether Mr Chalker was treated less favourably because he was presumed to have a disability and if so, was he able to fulfil the inherent requirements of the job?  

Decision

The Tribunal decided that the bus company had discriminated against Mr Chalker on the ground of his disability. It treated him less favourably than it would have treated someone without this disability, and at least one of the reasons for the less favourable treatment was his disability. 

The Tribunal also concluded that the bus company failed to prove that he was unable to perform the inherent requirements of the job. The company’s management had failed to consider the fact that his unfitness was temporary, and Mr Chalker had not refused to allow an independent medical practitioner to conduct further investigations. 

Furthermore, the conclusion that he was dishonest was not justified. He was only asked to disclose conditions that may affect his ability to perform his duties and he had been driving buses without incident since his diagnosis in 2014. He believed that neither his condition nor his medication impacted on his ability to drive buses safely. He had therefore answered honestly. 

Mr Chalker asked for and was awarded $10,000 in compensation for the effects of the disability discrimination he experienced. The Tribunal considered that this was a fair amount, given that he lost the opportunity to be considered in a non-discriminatory manner for the job, and was hurt by the way he was treated. 

Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 (29th November, 2016); Chalker v Murrays Australia Pty Ltd [2017] NSWCATAD 112 (10 April 2017)


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