27 May 2010

Can a workplace policy discriminate?

by Hedy Cray

Making assumptions about employee's medical condition, together with flawed workplace policies, can leave an employer at risk of discrimination claims.

In the recent case of Police Association of New South Wales v Commissioner of Police, New South Wales [2010] NSWADT 56, an employee was awarded $11,831 after successfully proving that his employer had discriminated against him on the basis of his presumed asthma disability.

Mr Vary had held the rank of Constable in the New South Wales Police Force since 2005. Having been a member of the Operational Support Unit, in 2007, Mr Vary applied to join the State Protection Support Unit (SPSU). A precondition of admission into the SPSU was that the applicant pass various medical and fitness assessments including exposure to CS gas (also known as tear gas).

In accordance with the New South Wales Police Force's workplace policy, MrVary was denied the opportunity to undergo the exposure test in order to gain admission. A workplace policy provided that any police officer "who has or has disclosed a history of asthma, including childhood asthma, is not permitted to undertake the exposure test." The Administrative Decisions Tribunal of NSW was informed that in MrVary's case, the "history" of childhood asthma was limited to one occasion at the age of 5 when MrVary suffered breathing difficulties after exposure to kerosene fumes, at which point his general practitioner had diagnosed him with a mild form of asthma.

In an attempt to complete the exposure test to gain admission to the SPSU, MrVary provided doctors' reports in relation to his fitness. These reports revealed no evidence that MrVary suffered from asthma. Regardless of these results, MrVary was unable to undertake the exposure test on the basis that he "had possibly suffered childhood asthma".

The Tribunal's decision

The Tribunal was satisfied that asthma or an asthmatic airways condition constituted a disability within the meaning of section 4 of the Anti-Discrimination Act 1977 (NSW).

It was also satisfied that the New South Wales Police Force, in refusing to allow MrVary to undertake the SPSU assessment process, had contravened the Act. The Tribunal referred to provisions which make it unlawful to discriminate against an employee on the ground of disability by denying the employee access or limiting the employee's access to opportunities for:

  • promotion;
  • transfer;
  • training; or
  • any other benefits associated with employment,

or by subjecting the employee to any other detriment.

The Tribunal held that the New South Wales Police Force's initial and continued refusals constituted a denial of access to opportunities for training, a denial of access to opportunities to earn special allowances associated with being a member of the SPSU, and a denial of access to opportunities to earn overtime, and other work-related allowances associated with the performance of work as an SPSU member.

Importantly, the Tribunal held that the New South Wales Police Force had discriminated against MrVary by treating him less favourably than it would have treated a person who it did not think had a disability in the same circumstances.

The Tribunal's award

By means of relief, MrVary was awarded a total of $11,831 for unlawful discrimination. This amount factored in sums for:

  • expenses associated with obtaining medical reports;
  • costs of return flights and accommodation associated with attending Tribunal appearances;
  • three years' lost "special duties allowance" associated with being a member of the SPSU; and
  • estimated lost earnings associated with a denied opportunity to earn overtime as a member of the SPSU.

In addition, MrVary was awarded $5,000 for the hurt, humiliation and distress he experienced as a result of the discrimination. Further, he was allowed to complete the full assessment course for entry into the SPSU at the next available opportunity and was re-credited for seven days' leave he had taken as a result of the discrimination.

Lessons for employers

The decision of the Tribunal in this case provides a timely reminder for employers to ensure that workplace policies are not themselves discriminatory or otherwise applied in a discriminatory manner.

While the premise of a particular policy may on its face be legitimate (in this case to manage health and safety risks), under anti-discrimination law actions and decisions which are taken in accordance with a policy may nonetheless give rise to unlawful conduct.

In the circumstances of Mr Vary, his employer incorrectly made presumptions about whether he in fact had a disability and after making an inaccurate presumption treated him detrimentally because of it. It is important for employers to rely on objective evidence and materials when it comes to issues of managing health and safety. A failure to do so can expose an employer to discrimination risks.

Therefore, employers need to balance their desire to maintain the safety of employees on the one hand (by implementing policies aimed at protecting employees from an occupational health and safety perspective) with the need to ensure fair treatment of employees and thereby avoid discrimination claims.


Thanks to Emily Gothmann for her help in writing this article.

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