23 October 2018

Discrimination and Disability remain an important point of discussion in our workplaces. In a rare ‘assumed disability’ discrimination case (Stefanac v Secretary, Department of Family and Community Services [2018] NSWCATD 106), a Tribunal has awarded $20,000 to a public servant forced to take sick leave over concerns about her enthusiasm for conspiracy theories.

Facts

The employee was employed as a child protection case officer for a NSW Government Department. On 1 June 2016 the employee had conversations with co-workers about various topics including what are sometimes referred to as conspiracy theories, including stating:

  • I am into conspiracy theories.
  • I believe the Pope of the Catholic Church is a Jesuit.
  • There is a planet (something 44) that is coming close to earth and it will cause a polar shift.
  • There is ‘a Large Hadron Collider’ and in Scandinavia it was switched on the other day resulting in shutting down the atmosphere.
  • There is a government conspiracy to hide this information from us.
  • Some people question whether the earth is flat.
  • I believe some stories about aliens being fallen angels.
  • These fallen angels were kicked out of heaven and some are buried in the Earth’s core, some are walking around on earth and are here to make us confused.
  • Fallen angels came to earth and bred with humans and that created giants and some of these are between 12 and 30 feet tall and there is proof of this. This happened after a flood.

The work colleagues reported their conversations with the employee to their manager. The employee was then directed to go on sick leave by her manager because the manager was concerned that, given the statements the employee made, she may not be able to carry out the inherent requirements of the caseworker role. The employee was directed to remain on sick leave until she could provide a medical certificate stating that she was fit to perform her duties.

The employee’s doctor provided evidence that the employee was fit to return to work on 28 June 2018 and that evidence was not challenged by the Department.

The employee made an application to the New South Wales Civil and Administrative Tribunal alleging that the Department directly discriminated against her by subjecting her to a detriment (directing her not to attend work).

Decision

The Tribunal considered the definition of disability under the NSW Anti-Discrimination legislation which included a disability ‘that a person is thought to have (whether or not the person in fact has the disability)‘ .

The Tribunal found that at least one of the reasons that the employee was directed not to attend work was because the manager believed the employee had a mental illness.

The Tribunal also found that there had been a clear detriment to the employee because ‘a reasonable person would consider that directing a person to leave work on sick leave and not to return until a medical clearance has been given, constitutes a substantial disadvantage.

However, the Tribunal had a tougher time determining whether the direction met the statutory test of direct discrimination, which required the Tribunal to find that the employee was treated differently because of her imputed disability than she would otherwise have been.  In deciding this the Tribunal held that:

  • the relevant comparator was a person who did not have a disability;
  • while it was not strictly necessary to determine whether the employee had a mental illness, the finding that she did not assist with the application of the differential treatment test;
  • it did not accept the Department’s argument that if any employee had made similar remarks or comments to those made by the employee, the response of the Department would have been the same regardless of any concerns about their mental health; and
  • inevitably the manager would have assumed that another employee who had animated conversations about conspiracy theories would also have had a mental illness.

Having satisfied themselves that the real reason for making the direction was because the manager presumed that the employee had a mental illness, the Tribunal found that it followed that the Department had directly discriminated against the employee on the ground of assumed mental illness.

Finding the degree of damage to be ‘just below the mid-range’, the tribunal awarded the employee ‘a relatively modest sum’ of $20,000. However, the Deputy President and general member declined to grant the employee’s request to order that the Department publish an apology.

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