All employees have the right to work in an environment that is free from harassment and discrimination. It is also, for a myriad of reasons, in the best interests of employers to ensure a healthy workplace. In order to do this effectively employers need to understand what is, and is not, discrimination. A recent VCAT decision highlights the potential costs of failing to do so.
In Dziurbas v Mondelez Australia Pty Ltd* the employer was found to have engaged in direct discrimination on the grounds of disability and the aggrieved employee was awarded $20,000 for injury to his feelings. A further decision on the economic loss will follow and is likely to be for over $200,000.
The employee was terminated, after thirty years of service, on the basis that he could no longer fulfil the inherent requirements of his role as a confectioner because of an earlier elbow injury. In terms of the medical evidence, the employer relied on an earlier medical report which noted that the employee’s regular duties would aggravate an elbow injury.
A detailed consideration of the surrounding circumstances found that the employee was informed of the decision without being offered any input or the opportunity to suggest potential modifications to the role. The medical report, relied on by the employer, did not accurately reflect the correct duties, and the duties in that area of the factory took into account and were already modified for different employee attributes. Added to this, the employee was due to retire within two years, held a long and good employment record and was surprised and distressed by the events that unfolded. The VCAT member described the employer’s treatment of the employee as ‘extremely disrespectful’ and that it was out of step with the community perception of what is fair.
Lessons for Employers
Employers need to be mindful that each employee’s situation is considered individually and on its merits. Some of the issues highlighted in this decision include the importance of ensuring medical evidence is up to date and accurately reflects the role and duties. It also raises the issue of reasonable modifications, including those suggested by the employee, which may enable them to continue in their role.
When the tribunal was analysing this employee’s workplace, they discovered that the duties of the night shift workers were already modified to take into account the gender and abilities of the workers. Internal consistency is important and where modifications have already been made it supports the proposition that this can be done for other roles and/or workers.
This particular decision involved a state-based discrimination claim. Employers need to be aware of both state and federal anti-discrimination legislation. Discrimination claims are detrimental for a number of reasons including workplace morale, reputation and the potential costs if the matter is litigated.
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