The Federal Circuit Court recently found that Corrective Services NSW practised unlawful discrimination against an employee on the basis of her disability. Corrective Services was ordered to pay the employee more than $180,000 in damages, including $75,000 in general damages, for failing to make reasonable adjustments in line with the employee’s disability.

Facts

Ms Huntley, an employee of Corrective Services NSW (CSNSW), alleged that her employer unlawfully discriminated against her on the grounds of her disability by failing to make reasonable adjustments after she was diagnosed with a disability.

Under the Disability Discrimination Act 1992 (Cth) (DD Act), a person discriminates against another person on the grounds of a disability by failing to make, or proposing not to make, reasonable adjustments for the person, with the effect that the person is treated less favourably than someone without the disability would have been in materially similar circumstances. An adjustment will be considered “reasonable” unless it would impose an “unjustifiable hardship” on the employer to implement it.

Ms Huntley commenced work for Corrective Services NSW as a Trainee Probation and Parole Officer in 2005. In 2010, Ms Huntley was diagnosed with Crohn’s disease (an inflammatory bowel  disease), which is a “disability” for the purpose of the DD Act. As a result of this, Ms Huntley required frequent bathroom access and was restricted in her ability to travel without “immediate” access to a bathroom. Ms Huntley’s access requirements could not be anticipated and were often “urgent”.

During the time of Ms Huntley’s diagnosis and in subsequent weeks, she took 10 weeks of leave. When she returned to work she was capable of performing some, but not all, of her duties. Accordingly, Ms Huntley entered into an informal arrangement with her manager to perform modified duties.

Six months into the informal arrangement, Ms Huntley was informed it could not continue due to constraints that it was placing on her workplace. No constraints were identified, no formal workplace assessment was conducted and no complaints from co-workers were provided before the decision to terminate the informal arrangement was made.

Corrective Services NSW then referred  Ms Huntley for a medical assessment, which determined she was permanently unfit for the Probation and Parole Officer position. Ms Huntley subsequently successfully applied for a secondment position with Corrective Services NSW in the Corrections Intelligence Group. Whilst undertaking the position with Corrections Intelligence, Ms Huntley began to experience extreme fatigue, excessive day time sleepiness and an inability to wake from sleep, and she took frequent sick leave to deal with these symptoms. Ms Huntley was consequently diagnosed with idiopathic hypersomnolence (IH).

Following diagnosis of IH, Ms Huntley was called into a meeting at which representatives of Corrections Intelligence and Corrective Services NSW informed her that the Corrections Intelligence secondment would not be extended due to the lengthy period of leave she had taken prior to the diagnosis of IH. Ms Huntley was then told she had a choice: agree to medical retirement or attend another medical assessment.

Ms Huntley chose to undergo a second medical assessment, at which she was again found to be permanently unfit for her original position.

Federal Circuit Court decision1

The key question for the Court was whether Corrective Services NSW undertook appropriate steps to make reasonable adjustments, or to enquire as to the possibility of making reasonable adjustments, to allow Ms Huntley to perform the duties of her Probation and Parole Officer position.

Corrective Services NSW contended that it was not obliged to put reasonable adjustments in place because Ms Huntley could not meet the inherent requirements of the position.

The Court found that Corrective Services NSW had discriminated against Ms Huntley by repeatedly failing to provide reasonable adjustments to her position. In arriving at this conclusion, the Court noted that:

  • Ms Huntley was not provided an opportunity to give input as to her original temporary arrangement;
  •  despite Ms Huntley requesting reasonable adjustments be made, nothing was done to adjust Ms Huntley’s work whilst she was on secondment at Corrections Intelligence;
  •  the ultimatum put to Ms Huntley at the meeting of representatives of Corrections Intelligence and Corrective Services NSW - that she be medically retired or would need to be found fit to return to her role as Probation and Parole Officer - was put to her without notice, consultation or any proper consideration as to whether the inherent duties of her role could be reasonably adjusted; and
  •  there was no evidence that any of the relevant managers or supervisors turned their mind to the inherent requirements of the Probation and Parole Officer position and what adjustments could be made to it.

Corrective Services NSW was also found to have incorrectly perceived Ms Huntley’s condition as a medical issue that necessitated long, disruptive and unplanned absences from work which impacted on the efficiency of the work of the office, and on other staff. This was reflected in the medical referrals, which made no reference to “disability”, referring only to “medical issues”. Instead, Ms Huntley’s condition should have been treated as a disability requiring proper consideration of reasonable adjustments.

Corrective Services NSW was ordered to pay Ms Huntley $75,000 for pain, suffering and breach of contract, and a further $98,863 for loss of wages, leave entitlements, and promotion opportunities.

Bottom line for employers

Where an employer seeks to establish that an employee cannot meet the inherent requirement of his or her position, the inherent requirements must be properly identified and assessed. 

Where an employee is attending a medical assessment to determine his or her fitness for work, employers should provide the medical professional with a summary of the inherent requirements of the employee’s role.

In light of this case, employers should also be aware that significant general damages may also be awarded in such cases.