Dis­abil­ity dis­crim­i­na­tion

Driver awarded $10,000 after bus com­pany re­jected his job ap­pli­ca­tion, write Tim Capelin and Am­rita How­ell

ABC (Australia) - - INDUSTRIAL LAW -

“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 difcult 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” unt 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” unt 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.

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