In the case of Studart-Teles and The Department of Education and Training (State of Victoria), the Victorian Civil and Administrative Tribunal awarded $236,000 in damages to a long-serving language teacher for discrimination based on disability. The teacher, after suffering a spinal stroke in November 2018 that left him with significant disabilities, faced “exclusion” from Blackburn English Language School for two years during his recovery.
Employers have an obligation under the Equal Opportunity Act (VIC) to make reasonable adjustments for a person with a disability who requires those adjustments to perform the requirements of their job (employers should be sure to check the relevant legislation if they operate in another State). The legislation sets out what is to be considered in deciding whether an adjustment is reasonable, such as the circumstances, the nature of the work, the nature of the adjustment, the seize and nature of the workplace, the financial implications and who else would benefit. An employer is only able to discriminate against an employee if the employee cannot adequately perform the genuine and reasonable requirements of the role after the adjustments are made or if the adjustments are not reasonable adjustments.
In this case, despite regaining some ability to walk, the employee dealt with persistent symptoms affecting his daily life. He had anticipated a gradual return to work in early 2020. His treating doctor signed the first Return to Work (“RTW”) plan on 23 December 2019. The school rejected his Return to Work (RTW) plan and instructed him to remain on unpaid leave. The school said that they had concerns for the employee’s health and had no proof that he was fit to RTW. They also say that the proposed adjustments in the plan were not reasonable and indicated that the employee was unable to perform the work of a teacher even if those adjustments were made. The employees treating Doctor certified that the employee was ready to RTW on three more occasions during 2020 (19 February 2020, 15 April 2020 and 1 July 2020). The employer made no efforts to accommodate the employee.
After another RTW plan was developed, and the employee briefly resumed work in March 2022 but quickly returned to unpaid leave. Although he had obtained medical clearance to return to work, the school disputed the RTW plan’s feasibility and his fitness to resume his duties. The school’s principal argued that they only signed the RTW plan to maintain the employee’s professional registration, not to support his actual return to work.
The Commissioner found that the employee had been treated unfavourably and discriminated against due to his disability, as the school failed to make reasonable adjustments or to include him in online teaching opportunities during the COVID-19 pandemic.
The employee was awarded $45,000 for pain and suffering resulting from psychological distress caused by the school’s actions or lack thereof, which exacerbated his post-stroke adjustment disorder. Furthermore, the school was ordered to pay $191,000 in general damages, without any deduction for income protection insurance payouts the employee had received, highlighting that he had been paying the premiums for a decade prior to his stroke.
Lessons for Employers:
- Employers are required to make reasonable adjustments for employees with disabilities and to avoid discriminatory practices that lead to exclusion from the workplace.
- Employers must be aware of their obligations in relation to Equal Opportunity Legislation.
- A return-to-work plan should be a collaborative process that considers the obligations and responsibilities of both the employee and the employer.
If you would like to discuss these or other workplace issues please contact Andrew Bland or call 02 9412 3077.