Case studies

Since its establishment in 1994 the NSW DDLC has assisted many people with their disability discrimination cases. Below are some examples of these cases.

Associates

The parents of a child with a disability lodged a complaint against the local school on the grounds that they were discriminated against because they were ‘associates’ of a child with a disability. The parents alleged that they were treated less favourably compared to the other parents whose children did not have a disability.
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The parents alleged that they were perceived as “trouble makers” or “problem people” whenever one or the other sought to ensure that the special educational needs of their child were properly addressed and accommodated.

The Human Rights and Equal Opportunity Commission found that the parents had been discriminated against on the ground of being associates of a person with a disability. The Commission order the school to apologise to the parents and also awarded compensation. ??

Murphy and Grahl on behalf of themselves and Sian Grahl v The State of New South Wales (NSW Department of Education) and Houston (2000) EOC 93-095

Direct discrimination

Mr Tate played cricket with a local cricket club. He complained about not being selected on to play for the club, and his expulsion from the club. One of the reasons the club moved to expel Mr Tate was his on field behaviour. Mr Tate said that his outburst was caused by a psychological disability.

The Court found that there is no evidence that any member of the committee realised that Mr Tate had a psychological disability. Mr Tate does not claim to have disclosed to the club that he suffered any psychological disability. The Court said that that being so, it seems impossible to say the club discriminated against Mr Tate on the ground of his psychological disability.

Tate v Rafin (2001) EOC 93-125
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Indirect discrimination

Ms Daghlian had back and leg problems that required her to sit on a stool at work. She said that she have done this for more than ten years with Australia Post’s permission. She claimed that Australia Post has changed their attitude towards stools at the workplace and has removed her stool and sent her home on forced sick leave.

Australia Post confirmed that staff were required to perform their duties standing up. This policy was introduced because Australia Post considered there were occupational health and safety risks associated with sitting at a counter while reaching and lifting to attend to the needs of customers. ?

The Court reviewed all the circumstances and considered expert evidence. The Court concluded that the Australia Post imposed requirement or condition on Ms Daghlian to perform her counter duties whilst standing, and without intermittent resting. He found a substantially higher proportion of employees without back and leg problems could comply with this requirement and that it was not reasonable, having regard to the circumstances of the case, thereby indirectly discriminating against Ms Daghlian.

Daghlian v Australian Postal Corporation (2003) EOC 93-287
 

Harassment

A man with multiple sclerosis was harassed in his workplace by his team leader. The team leader referred to his disability while being critical of him. Other events followed where the team leader increased the man’s workload in the hope that he would leave the section. ?

The team leader moved bookshelves near the man’s desk, and was heard to say that the shelves were put there ‘to block him out’ of view. When the man complained about being moved to a hotter part of the building, which could have made his condition worse, the team leader said, ‘that is why we put you here’. ?

The man complained to the Human Rights and Equal Opportunity Commission. The Commission agreed that the team leader had unlawfully harassed him because of his disability. The Commission said that behaviour or remarks that were designed to cause the man discomfort or humiliation concerning his disability constituted harassment, even though these occurred within the broader context of animosity between the man and his team leader. ?

McDonald v Hospital Superannuation Board [1999] HREOC 13 (16 July 1999)? 
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Vilification

?Shortly after R moved into his apartment, he heard a man and woman abuse him by reference to his homosexuality. R was HIV positive. The abuse continued for some time and included the respondents leaving soiled baby’s nappies lying there and about 2 oranges splattered on the floor of the balcony. He subsequently went to the Department of Housing office for the housing complex and made a formal complaint. He also complained to his doctor. He continued to receive the abuse and threats on the average about 2 or 3 times each week.

The Tribunal found that both Respondents repeatedly committed the acts of homosexual vilification and HIV-AIDS vilification against R on a series of occasions. The repeated nature of their unlawful conduct, amounts to an aggravation of their conduct. The Tribunal awarded R the maximum damages of $40,000. ??

R -V- .D & E Marinkovic [1996] NSWEOT?

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Interim Measures

??Mr Beck had been employed as a council worker for 15 years. He was diagnosed with Stargardt’s disease which manifests itself in visual impairment. He informed his employer of the diagnosis but continued to work as a waste services operator. As a result of a workplace injury he was unable to continue his day to day duties. The council was not able to find alternative duties and decided that because of his visual disability he could not return to his former duties as a waste services operator. Mr Beck was told that the council was intending to terminate his employment.

Mr Beck lodged a complaint under the DDA and then sought an interim order from the Court to prevent the council terminating his employment before the complaint was resolved. The Court considered the interests of both Mr Beck and the council and decided that the status quo be maintained which meant that the council could not terminate Mr Beck’s employment until the complaint was resolved. ??

Beck v Leichhardt Municipal Council [2002] FMCA 331

Read more case studies in Finding a Way: Case Studies in Disability Discrimination Law.