- Under the Disability Discrimination Act 1992 (Cth) it is illegal for an employer to discriminate against an employee based on their disability by dismissing them, treating them differently to other employees or not hiring them.
- To determine if an employer has discriminated against an employee when dismissing them, the Court will consider the circumstances of the dismissal and how the employer would have treated an employee who did not have the same disability. It must be found that the employee who was dismissed was treated less favourability due to their disability.
- In a recent New South Wales case, the Federal Circuit and Family Court of Australia found that an employer did discriminate against an employee when they dismissed her after discovering that she had attention deficit hyperactivity disorder (ADHD) and Asperger’s Syndrome.
Under the Disability Discrimination Act 1992 (Cth) it is illegal for an employer to discriminate against an employee based on their disability by dismissing them.
In order to find that an employer has wrongfully dismissed an employee with a disability, the Court must find that:
- The employer dismissed the employee or subjected them to detriment;
- The employer treated the employee less favourably than they would have treated an employee without a disability in circumstances similar to those of the dismissal; and
- The employer dismissed for the reason or including the reason that the employee has a disability.
Under the Act, a disability to defined very broadly and can include:
- Learning disabilities;
- Physical disfigurement; and
- The presence in the body of disease-causing organisms.
Annovazzi v State of New South Wales – Sydney Trains 
In the case of Annovazzi v State of New South Wales – Sydney Trains  the Federal Circuit and Family Court of Australia determined that a trainee train driver was unlawfully discriminated against and dismissed due to her attention deficit hyperactivity disorder (ADHD) and Asperger’s Syndrome.
Facts of the case
When hired by Sydney Trains, Renee Annovazzi did not disclose that she had ADHD or Asperger’s Syndrome. Sydney Trains later discovered that she had these disabilities, and she was removed from the trainee driver program and her employment was terminated.
Sydney Trains advised the dismissal was due to Renee’s dishonest conduct in failing to disclose her disability. Renee argued that her termination was discriminatory based on her disabilities.
The Court first considered the requirements of the fictional person whom they could use to compare the treatment of Renee too. The Court stated this person was someone who did not have ADHD and Asperger’s Syndrome, not someone who did not act dishonestly in relation to the disclosure of a medical condition. The Court made this determination because there was no evidence to suggest Renee sought to conceal her disabilities.
Using this fictional comparator, the Court found that Sydney Trains would not have required this person to undertake a medical assessment or be dismissed due to their dishonesty in failing to disclose a medical condition. For this reason, the Court found that the employer had treated Renee less favourably.
Further, the Court ruled that the employer dismissed Renee due to her disability and not because she was dishonest.
The Court found that Sydney Trains had discriminated against Renee when terminating her employment.
Other types of workplace discrimination against employees with disabilities
Not only can an employee with a disability be discriminated against by being dismissed, but they can also be discriminated against in the following ways:
- Not hiring a person with a disability;
- Offering an employee or potential employee different and unfair terms of employment compared to other employees;
- Treating an employee with a disability differently to others;
- Causing the employee disadvantage such as not providing them minimum entitlements; or
- Changing the employee’s job to their disadvantage.
Under the Disability Discrimination Act there are two exceptions. Firstly, the protections of the Act will not be enforceable where the disabled person is unable to carry out the inherent requirements of the work because of their disability even though the employer may make reasonable adjustments.
Secondly, the Act does not extend to situations where avoiding discrimination would cause the employer unjustifiable hardship.
How we can help
If you are an employer and an employee or ex-employee has alleged you of engaging in disability discrimination, the Coutts Employment team can provide you advice as to the best way to navigate the allegation.
If you are an employee and you believe you have been discriminated against because of your disability, the Coutts Employment team can also provide assistance and recommend any options available to you.
ABOUT KARENA NICHOLLS:
Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach that has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.
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This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever to this blog, including all or any reliance on this blog or use or application of this blog by you.