Assumed Disability Discrimination

The NSW Civil and Administrative Tribunal recently awarded $20,000 to a Department of Family and Community Services child protection case worker who was forced to take sick leave after her manager became concerned that the employee was discussing conspiracy theories with co-workers.

The case worker spoke with co-workers about her belief in a number of government cover-ups including that some people question whether the Earth is flat, that fallen angels came to earth and breed with humans to create giants and a theory about the Large Hadron Collider “shutting down” the Earth’s atmosphere.

The manager emailed the case worker to advise she had learned of the conversations and stated, “based on these conversations I have concerns about your well-being. To ensure the agency’s duty of care to yourself, other employees and clients is upheld, I am directing you on Sick Leave, effective immediately. Due to the reported conversations I will be engaging a case manager from Human Resources to liaise with yourself and your treating practitioner to determine your fitness for work.

The case worker returned to work after seven weeks when her treating practitioner provided a report which noted her fitness to resume normal duties and stated, “…all the topics she was discussing were related to her leisure time reading and topics of interest she found in the Internet. She denied any strong beliefs attached to the topics of discussion.

The NSW Civil and Administrative Tribunal considered that:

the Anti-Discrimination Act defines ‘disability’ to include ‘a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour’. We will call this kind of disability ‘mental illness’. Disability is further defined in s49A to include a disability ‘that a person is thought to have (whether or not the person in fact has the disability)’. We will call this an ‘assumed’ disability.

The Tribunal determined that the case worker had been subjected to a detriment, however considered whether the direction to take sick leave met the direct discrimination statutory test of “differential treatment”. The Tribunal stated:

According to the Department, the comparison should be made between the way [the case worker] was treated and the way a hypothetical employee who had the same conversation about conspiracy theories would have been treated. [The manager’s] evidence was that, “if any employee had made similar remarks or comments to those made by [the case worker], the response would have been the same regardless of any concerns about their mental health”. In other words, if another employee, who [the manager] did not think had a mental illness, had had the same conversations, she would have given that employee the same direction. With respect, that reasoning is not logical when the disability is an assumed mental illness. Inevitably [the manager] would have assumed that another employee who had animated conversations about conspiracy theories would also have had a mental illness.

The problem in this case is not with the Department’s submissions but with the way the differential treatment test is drafted. Where the disability is an assumed disability, and the person does not actually have that disability, the differential treatment element of direct discrimination does not reveal the true basis for the direction.”

The Tribunal further determined:

“We are satisfied that one of the true or genuine bases or the real reason for making the direction was that, based on the conspiracy theory conversations, [the manager] thought [the case worker] had a mental illness.

It follows that the Department has directly discriminated against [the case worker] on the ground of assumed mental illness.”

The Tribunal did not consider that it was appropriate for the Department to publish an apology for giving the case worker this direction. However, the case worker was awarded damages in the amount of $20,000.

Reminders to employers

Employers should consider the context of this decision when dealing with ill or injured employees or employees who are assumed to be ill or injured. In this instance, the direction to take sick leave without any assertion from the employee that she was unwell was determined to be unlawful.