The Federal Circuit Court (FCC) has ordered a New South Wales government agency pay a former employee more than $180,000 in damages, including $75,000 in general damages, for its discriminatory treatment of her and failure to make reasonable adjustments after she was diagnosed with Crohn’s Disease.

Implications for employers

Employers should take note of the $75,000 awarded to the employee as general damages, which is significantly higher than similar general damages awards in the past and may set a higher threshold for such awards in the future. Further, when dealing with employees with chronic illnesses, employers should carefully consider what changes they can reasonably make to accommodate the employee to minimise the risk of a discrimination claim.

Background

Ms Huntley alleged that the Department of Police and Justice (Corrective Services NSW) (CSNSW) unlawfully discriminated against her in breach of the Disability Discrimination Act 1992 (Cth) by failing to provide any reasonable adjustments to her workplace and treating her less favourably in her employment.

Ms Huntley began working for CSNSW as a Trainee Probation and Parole Officer in 2005. In June 2009 she was diagnosed with Crohn’s disease; this disability meant that she required frequent bathroom access and was restricted in her ability to travel without “immediate” access to a bathroom. Consequently, when Ms Huntley returned to work in August 2010 (following a period in which she was unfit to work due to her diagnosis), she was only capable of performing some of her previous duties and not the “field work” component of her role.

After her return to work, Ms Huntley performed a modified version of her role but in March 2010 CSNSW advised her that this informal arrangement could not continue. Ms Huntley was referred for a medical assessment which deemed her permanently unfit for her substantive position, although it found she could perform office-based work provided there was reliable access to toilet facilities. Ms Huntley then successfully applied for a secondment with the Corrections Intelligence Group (CIG) which she undertook from September 2010 to May 2011.

In late 2010 and early 2011, Ms Huntley began to experience extreme fatigue (she was later diagnosed in mid-2011 with Idiopathic Hypersomnolance), and as a result in early 2011 she sought permission to complete office duties from home. This request was denied and no reasons were provided for the refusal.

On 10 May 2011, a meeting was held at which representatives of CIG and CSNSW informed Ms Huntley that the CIG secondment would not be extended due to Ms Huntley’s illness and the lengthy periods of sick leave she had taken during the secondment. Ms Huntley would be nominally returned to her previous position, for which she had been deemed permanently unfit. She was informed she therefore had two choices - agree to a medical retirement or undertake a further medical assessment.

Ms Huntley was extremely distressed following this meeting and alleged that CSNSW’s conduct significantly exacerbated her psychological condition and caused her to suffer a major depressive disorder. She chose to undergo a second medical assessment, rather than medically retire, which found that she was permanently unfit for her substantive position. After applying Ms Huntley’s accrued leave entitlements (without her consent), CSNSW placed her on leave without pay and refused her request to transfer her to an alternative position. Although CSNSW brought a number of vacancies to Ms Huntley’s attention, they also placed limitations on her (for example, informing Ms Huntley she was unsuitable for a position she had applied for due its “high stress” nature - a limitation that had not been recommended by either medical assessment). Ms Huntley remained on sick leave until she took up a later positon with the NSW Police.

Decision

The FCC found that CSNSW had discriminated against Ms Huntley by repeatedly failing to provide reasonable adjustments to her position and treating her less favourably in her employment. Justice Nicholls considered that by May 2011, CSNSW had decided that Ms Huntley should be medically retired and sought a “medical assessment to produce the outcome of medical retirement” rather than considering whether reasonable adjustments could be made to her role.

Throughout its attempts to manage Ms Huntley’s illness, CSNSW failed to sufficiently focus on the need to deal with Ms Huntley as a person with a disability, instead viewing her as a person with an illness which necessitated long, disruptive and unplanned absences from work which impacted on the efficiency of the office. This was reflected in the medical referrals, which made no reference to “disability”, only “medical issues”.

His Honour found that the ultimatum presented at the 10 May 2011 meeting - that Ms Huntley either be medically retired or would need to be found medically fit to return to her previous position - was put to her without notice, without consultation and without any proper consideration as to whether the inherent duties of her role could be reasonably adjusted in light of the first medical report’s recommendations regarding office based work. Instead, CSNSW appeared to regard every duty listed in the position description as inherent requirements of the role. This view was reinforced by the fact that when CSNSW referred Ms Huntley for a medical assessment, they failed to properly inform the medical practitioner which requirements were inherent to the role and did not ask her to suggest any reasonable adjustments to the role, simply asking whether Ms Huntley was “fit” to perform her current position.

Additionally, His Honour found that there were implied terms in Ms Huntley’s employment contract of trust and confidence as between the parties, safe work, good faith, the obligation to make reasonable adjustments and that the employer would not act inconsistently with its own policies. His Honour found that CSNSW had breached each of those terms at various times during the period of the contract.

While Ms Huntley was diagnosed as suffering depression prior to the events of May 2011, His Honour accepted that the conduct of CSNSW at the 10 May 2011 meeting and subsequent conduct caused psychological injury to Ms Huntley and had an adverse and significant impact on her health.

Judge Nicholls therefore ordered CSNSW pay Ms Huntley $98,863.89 for economic loss (loss of wages, leave entitlements, psychologist costs and loss of promotion opportunities) and $75,000 in general damages. While the final orders state that these general damages are for pain and suffering as well as breach of contract, from the focus in the judgment the general damages were primarily for pain and suffering due to the psychological trauma Ms Huntley had suffered.

Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW)[2015] FCCA 1827