Driver awarded $10,000 after bus company rejected his job application, write Tim Capelin and Amrita Howell
“He had continued to drive buses since his diagnosis in 2014 without incident”
I n Chalker v Murrays Australia, an applicant for a bus driver position was awarded $10,000 in damages for pain and suffering after a bus company refused to offer him employment because of his mental illness.
In this case, the job applicant, Mr Chalker, was diagnosed with borderline personality disorder in January 2014 but had been driving buses since his diagnosis without incident.
In about September 2015, Chalker applied for a bus driver position with Murrays Australia Pty Ltd (Murrays). He completed an application form which required him to answer the following question: Do you suffer from any medical condition, disability or injury that may have an effect on your performance of the duties in the job for which you have applied? Chalker answered no to this question. At the interview and shortly after the interview, Chalker was given assurances that he would be offered a role.
Following the interview, Chalker attended a medical assessment. He tested positive to the presence of drugs in his system, and in the course of the medical assessment disclosed his medical condition and the prescription medication he was taking. In the course of the assessment, Chalker refused to consent to the examining doctor contacting his treating health professionals to clarify information in relation to his medical management.
The examining doctor contacted Murrays and informed them that Chalker had been argumentative and difcult in the course of the examination (this was partly because Chalker refused to sign the consent form). Further, the medical examiner determined that Chalker was “temporarily” unt pending further investigation.
Following receipt of the assessment, Murrays advised Chalker that his application for the role had been unsuccessful.
Murrays came to the view that Chalker was not able to perform the inherent requirements of the role based on his conduct during the assessment, and his failure to disclose his medical condition and medication he was taking on the application form. Chalker lodged a complaint under the AntiDiscrimination Act 1977 (NSW) (the Act) claiming direct disability discrimination in breach of s49D(1) (b) of the Act.
THE TRIBUNAL’S DECISION
The tribunal found that Chalker’s failure to disclose his medical condition on the application form was not unreasonable or dishonest given he had continued to drive buses since his diagnosis in 2014 without incident.
Further, the tribunal found that Murrays made critical errors in determining that Chalker was unable to perform the inherent requirements of the role in circumstances where the medical evidence was that he was “temporarily” unt pending further investigation and there was no evidence to suggest Chalker had refused to have further investigations carried out.
In these circumstances, it was inferred that at least one of the reasons Murrays did not employ Chalker was because he had a borderline personality disorder.
Murrays sought to rely on the defence under section 45D(4) Act which (in summary) provides that it is not unlawful to discriminate against a person the grounds of disability if, because of the disability, the person would be unable to perform the inherent requirements of the role.
However, the tribunal found it could not be inferred from either Chalker’s delayed disclosure of his medical condition, or the assessment that he was temporarily un t to perform the role, that Chalker was unable to comply with the inherent requirements of the role.
In particular, the tribunal noted that no one came to a nal view, based on medical evidence from a psychiatrist, as to Chalker’s ability to comply with the inherent requirements of the position.
The tribunal awarded Chalker $10,000 for pain and suffering.
NOTES FOR EMPLOYERS
In circumstances where information about a person’s disability is revealed in the course of a job application process ( particularly in the late stages of that process), employers should objectively consider whether or not that disability will prevent the person from performing the inherent requirements of the role, including with reasonable accommodations. If the information provided is unclear, further investigation or an independent medical assessment may be required before a decision can safely be made.