Logo
Prev
search
Print
addthis
Rotate
Help
Next
Contents
All Pages
Browse Issues
Home
'
Proctor : March 2018
Contents
21 PROCTOR | March 2018 The claimant is also assisted by the lack of any requirement to prove actual motive or intention to discriminate. So held the High Court interpreting the DDA in Purvis v New South Wales (Department of Education) 2003 217 CLR 92 (Purvis). 4 The ADA expressly provides at section 10(3) that the discriminator’s motive is irrelevant, and it has further been held that direct discrimination in breach of section 10 can be unintentional or unconscious.5 Nonetheless, the burden of proof can be difficult to discharge in cases where there is no overt evidence that the complainant’s disability was a reason for the less favourable treatment. Courts and tribunals will be reluctant to infer discrimination when there are other possible explanations for apparently unfair treatment.6 Secondly, the claimant must establish a comparative element – that the treatment was less favourable, comparing the aggrieved person with a person who does not have the aggrieved person’s disability by reference to the same circumstances. The correct approach to the identification of the relevant set of circumstances has proved contentious. In Purvis the High Court held that the relevant circumstances could include circumstances connected with the person’s disability, including the disturbed behaviours that were acknowledged to be a manifestation of the disability. 7 The DDA was subsequently amended so that under section 5(2) discrimination on the ground of disability occurs if the discriminator fails to make reasonable adjustment resulting in less favourable treatment, where the circumstances of the comparison are not to be regarded as materially different because of the fact that the aggrieved person requires adjustments. The obligation to make adjustments in the work area is tempered by section 21B which provides an exemption if avoiding the discrimination would impose an unjustifiable hardship on the discriminator. There has been no similar amendment of the ADA such that following Purvis, circumstances that are themselves a manifestation of the disability may be thought to be part of the relevant circumstances, with no concomitant requirement to make adjustments. Section 10(5) deems it irrelevant to the comparison that the aggrieved person requires special services or facilities. In Purvis it was held that a similar provision as then appeared in the DDA did not create an obligation to provide such ‘accommodation or services’ as the person with a disability may require, and a failure to provide them would not necessarily amount to less favourable treatment.8 However, in the recent case of Woodforth v State of Queensland [2017] QCA 100 (Woodforth) the Court of Appeal distinguished the correct approach under the ADA to the identification of the relevant circumstances of the treatment from the approach in Purvis. In the leading judgment, McMurdo JA reasoned that the approach is different because, unlike the DDA, the ADA proscribes discrimination based on a characteristic of the disability (or other attribute). Therefore, when discrimination is claimed on the basis of a characteristic, that characteristic cannot form part of the circumstances of the treatment for the purpose of the comparison.9 Indirect discrimination As defined in section 6 of the DDA, indirect disability discrimination occurs when the aggrieved person is required to comply with a requirement or condition, with which the person cannot comply because of their disability, and which has or is likely to have the effect of disadvantaging persons with the disability. The ADA definition of indirect discrimination at section 11 is similar but refers to the imposition of a ‘term’ rather than ‘condition or requirement’. The ADA definition may also be more onerous for claimants in requiring that they establish that a “higher proportion of people without the attribute” are able to comply, rather than simply the likely effect of disadvantage. Under both definitions, the imposition of a term, condition or requirement is not discrimination if it is reasonable. The burden of proving reasonableness rests on the respondent under both Acts.10 As for direct discrimination, the DDA definition also effectively imposes an obligation to make reasonable adjustments, by deeming the failure to make adjustments to be discrimination if the person with a disability would be able to comply if adjustments were made.11 While the ADA does not expressly require reasonable adjustments, the test of whether the term is reasonable requires similar considerations including the cost of alternative terms and the financial circumstances of the person imposing the term.12 There is the further advantage for claimants under both Acts in that an indirect discrimination claim requires no proof with respect to the discriminator’s knowledge or reasons (except as might be adduced by the respondent to prove the term or requirement is reasonable). General protections claims National system employees may pursue a claim under the ‘general protections’ scheme of the FWA. Section 351 prohibits adverse action being taken by an employer against an employee because of a physical or mental disability. State system employees may also pursue a claim of adverse action because of impairment under section 295 of the Industrial Relations Act 2016 (Qld) (IRA). The obvious advantage for claimants in pursuing such a claim is the so-called ‘reverse onus of proof’. It is presumed in an adverse action claim that the adverse action was taken because of the reason alleged unless the respondent proves otherwise13. The downside for claimants is that no inquiry into the ‘unconscious reasons’ of the decision maker is permitted. Such an approach was emphatically rejected by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, when Heydon J opined that any search for unconscious reasons would “create an impossible burden on employers”. 14 This reasoning is in contrast with the acceptance by the courts that direct discrimination may be unconscious or unintentional15 . In other respects the scope of the protection under section 351 is not settled. ‘Disability’ is not defined in the FWA and may or may not include the characteristics or manifestation of the disability. One court has decided, in accordance with the dictionary definition, that ‘disability’ means a “particular physical or mental weakness or incapacity” but not its “practical consequences”. 16 Other courts have decided that ‘disability’ extends to the “manifestations of the underlying condition”. 17 It is well established that the claimant must establish the factual circumstance that is alleged to be the reason for the adverse action. 18 That the disability must therefore be actual, not merely imputed or perceived, at least seems clear. 19 Whether this extends to an actual disability that a person no longer has, or may have in the future, is less clear. Section 342 of the FWA defines adverse action to include when an employer discriminates between the employee and other employees of the employer. 20 Whether this form of adverse action includes indirect discrimination is also not settled. Courts have tended to construe ‘discriminates between’ as requiring an intention to discriminate, whether directly or by imposition of a ‘facially neutral term’. 21 In Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 Mortimer J opined that it “would be a significant omission from the protections otherwise intended to be offered by s351, read with s342, if indirect discrimination were not covered”. 22 Inherent requirements Under section 351(2)(b) of the FWA, adverse action because of disability is not unlawful if the action is taken because of the inherent requirements of the particular position concerned.23 The DDA also contains an ‘inherent requirements’ exemption which is also alike with the exemption in the ADA of ‘genuine occupational requirements’. 24 Industrial law
Links
Archive
February 2018
April 2018
Navigation
Previous Page
Next Page
