A decision by the Victorian Civil and Administrative Tribunal upholding a claim for indirect discrimination by the Victorian justice department in imposing an oppressive workload on an employee suffering from diabetes, rendering his condition unstable in circumstances where the employee failed to disclose in pre-employment paper work of his existing diabetic condition.

In Issue

  • Whether an employee who suffers from pre-existing disability was treated unfavourably by the employer imposing an unreasonable workload.
  • Whether this amounted to direct and/or indirect discrimination.

​The Background

Scott Ferris was employed by the Department of Justice and Regulation (Department) as a store supervisor at Langi Kal Kal prison in south west Victoria from May 2009 until June 2014. Mr Ferris suffered from diabetes prior to his employment with the Department and began suffering from cardiomyopathy after working for it.

The Department terminated Mr Ferris’ employment one year after he had been suspended from his position due to allegations of misconduct.

Mr Ferris brought an application out of the Victorian Civil and Administrative Tribunal (Tribunal) in which he alleged that this suspension and termination amounted to both direct and indirect discrimination under sections 8 & 9 of the Equal Opportunity Act 2010 (EO Act). In particular, he alleged that:

  • the Department directly discriminated against him by treating him unfavourably by suspending and dismissing him because of his disabilities.
  • the Department indirectly discriminated against him by substantially increasing its inmates at the prison without increasing its staffing thereby imposing an oppressive workload which affected his ability to control his diabetes and rendered it unstable.
  • the misconduct allegations that led to his suspension and termination were a manifestation of his diabetes and characteristic of that disability.

The Decision at Trial

The Tribunal found the working conditions unsustainable due to substantial extra work imposed after increasing prison numbers. The Tribunal accepted that because of the sheer volume of work during that period of time, there was a considerable amount of pressure on Mr Ferris and other store staff employees to work unreasonable hours despite not being formally requested to do so.

The Tribunal accepted that Mr Ferris suffered from type two diabetes and cardiomyopathy, and that his diabetes was exacerbated as a result of the stress and physical labour associated with the extra workload.

The Tribunal noted that Mr Ferris failed to advise the Department of his diabetes at the commencement of his employment and that he failed to notify anyone that his working conditions were rendering his diabetes unmanageable. The Tribunal therefore found there was no evidence substantiating the allegation that the Department directly discriminated against him by treating him unfavourably through the imposition of an increased workload. It also found that Mr Ferris’ suspension and termination of employment was ‘totally unconnected’ to his diabetes.

With respect to the claim of indirect discrimination, the Tribunal noted that under s9 of the EO Act, it is irrelevant whether or not a person is aware of the discrimination. In finding that the Department had indirectly discriminated against Mr Ferris, the Tribunal noted that it had imposed a requirement that Mr Ferris work unreasonable hours and that this requirement disadvantaged him as a diabetic. This was because the condition of diabetes is prone to become unstable in conditions of stress and exhaustion.

Whilst the Tribunal acknowledged the harsh effect of such a finding on an employer unaware of an employee’s disability, it noted that if the Department had followed up on the relevant part of Mr Ferris’ employment form that he had left blank, it would have been in a position to implement its disability procedures it already had in place to avoid the discriminatory effect.

Despite the Tribunal having found that the Department had indirectly discriminated against Mr Ferris, it did not make any compensatory orders as he had not taken any steps to warn the Department of the impact the increased workload had on his health.

Implications for you

Employers should pay particular attention to details and omissions in pre-employment forms regarding an employee’s personal circumstances. Importantly, employers should monitor working conditions and consider whether increased workloads may indirectly discriminate against employees who may have a disability (irrespective of whether this is known).

Because employees may pursue unlawful discrimination claims even if they have not disclosed a pre-existing illness, employers should actively implement measures to ensure its employees (particularly those with disabilities) are afforded suitable working conditions.

Ferris v Department of Justice and Regulation (Human Rights) [2017] VCAT 1771