Anti-Discrimination Board of NSW

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.


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. 

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.


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 

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