In a recent decision by the Victorian Civil and Administrative Tribunal, a confectionary company has been ordered to pay $20,000 in relation to the dismissal of a 63 year old employee, who had been employed by the company for almost 30 years.
The employee was aged 63 with limited English and had worked for the company for almost 30 years. During his employment, he had suffered a chronic elbow condition which had arisen as a result of his work with the company, but which had fully resolved itself at the time of dismissal.
Relying upon a medical report that warned that the elbow condition could flare up if the employee maintained his regular duties, the company required the employee to attend a meeting at which he was told that his employment was being terminated. At that meeting, he was also provided with a letter which said that he no longer had the capacity to undertake the inherent requirements of his role as a confectioner and that his employment was terminated, effective immediately.
The employee subsequently commenced proceedings against the company, claiming that the termination of his employment constituted direct discrimination, indirect discrimination and discrimination by way of failure to make reasonable adjustments, contrary to Victorian anti‑discrimination legislation.
What did the Tribunal decide?
The Tribunal found that the company had directly discriminated against the employee by dismissing him because of his disability. In finding that the employee had been discriminated against when the company terminated his employment, it was necessary for the company to prove that the required adjustments to accommodate the employee’s condition were not reasonable. However, the Tribunal found that the company failed to consider, or give the employee an opportunity to propose, adjustments that might have enabled him to continue working.
The Tribunal was critical of the company’s handling of the process, stating that it considered the company’s conduct ‘to be an extremely disrespectful way to treat such a longstanding employee and not what the community would regard as fair’, emphasising that ‘there was no criticism of [the employee’s] many years of work, his performance or his conduct at the workplace.’
The Tribunal ordered the company to pay the employee $20,000 for the ‘shock, disappointment, upset and distress’ that he suffered as a consequence of the decision to terminate his employment.
The Tribunal has not yet made any orders in relation to the employee’s economic loss or costs. However, in relation to the employee’s claim for $261,000 in relation to the wages and entitlements that he would otherwise have received if he continued to work until his planned retirement at age 65, the Tribunal has indicated that the amount claimed appears to be an appropriate award under the Victorian anti‑discrimination legislation.
Lessons for employers
Terminating the employment of an ill or injured employee generally carries substantial legal risk, requiring employers to navigate a range of legal issues. Employers must have a thorough understanding of their various statutory obligations, as well as any applicable requirements contained in industrial instruments, employment contracts, policies and procedures.