Disability Discrimination in Employment: Overview and Legal Rights

Disability Discrimination in employment 1800 062 608 | 4031 7688

Disclaimer This talk is not legal advice The information provided is general information only, and is not a full explanation of the law If you are making a decision that could affect your legal rights, seek specific professional advice.

About the Cairns Community Legal Centre Not-for-profit community organisation Funded by state and federal governments Provides free legal services For members of the community experiencing disadvantage

What does the Centre do ? Provides legal services across a range of matters: debt and insurance matters consumer disputes discrimination employment law family law criminal law traffic matters abuse and exploitation neighbourhood disputes, and much more We don t do personal injury matters, native title, immigration or commercial disputes

Who can use our services ? The Centre assists people who: Are experiencing disadvantage Have a legal problem that we can help with Live in the geographical area covered by the Centre

Howdo we help our clients ? By providing legal advice, information and referrals. Sometimes we also provide ongoing assistance. We help our clients to: Understand their legal rights, obligations and options Negotiate with the other party Prepare and lodge complaints, and Prepare documents for court

Disability discrimination in employment

Summary Disability discrimination is being treated unfairly because of a disability Reasonable adjustments not made Refused employment due to impairment Dismissed after developing a chronic condition

Key Legislation & body Anti Discrimination Act 1991 (Queensland)[ ADA ] Anti-Discrimination Commission of Queensland [ ADCQ ] Queensland Civil and Administrative Tribunal [ QCAT ] Disability Discrimination Act 1992 (Commonwealth)[ DDA ] Australian Human Rights Commission [ AHRC ] Fair Work Act 2009 (Commonwealth) [ FWA ] Fair Work Commission [ FWC ] Fair Work Ombudsman [ FWO ] Industrial Relations Act 1999 (Queensland) Queensland Industrial Relations Commission [ QIRC ]

Key sections Item Definition of impairment/disability Direct discrimination Indirect discrimination Acts done for one reason or more reasons Failure to make reasonable adjustments Require special services or facilities ADA sections Schedule dictionary s10 s 11 s 10(4) DDA sections s 4 - Interpretation s 6 s 10 s 5 (2) s 10(5)

Key sections Item Require special services or facilities Special services or facilities/reasonable adjustment definition Meaning of unjustifiable hardship Definition of work/ employment ADA sections s 10(5) DDA sections s 35 s 4 - Interpretation s 5 s 11 Schedule Dictionary s 4 - Interpretation

Key sections Item Discrimination in work/pre employment Vicarious liability Genuine Occupational req./inherent req. Compliance with other legislation ADA sections Ss 14 & 15 DDA sections s 15 s 133 s 25 Incl. in s 15 s 21A s 106 s47(2)

Key sections Item Public Health Workplace Health & Safety Harassment ADA sections s 107 s 108 DDA sections s 48 s 35

Key sections Fair Work Act 2009 (Commonwealth) Part 3-1 General Protections 351 Discrimination

Important questions when taking instructions terminated? Is the client still employed, or has the employment been applications to FWC must be filed within 21 days). If terminated, what is the date of the termination? (Note that agencies, complaints/applications should be lodged with State Commissions or Industrial Courts. Who is the employer? Note that for State departments and contract)? Was the employment F/T, P/T or casual (with or without a

Important questions when taking instructions Was any other party involved (such as Principals directing labour hire employees)? What paper trail exists to support the client s allegations? What is the disability and was the employer aware of the disability? requested, either verbally or in writing? Was a reasonable adjustment to accommodate the disability diversity, reasonable adjustment, disciplinary processes, internal grievances etc? If so, ask for copies if relevant Does the employer have specific policies relating to Disability,

Practical Initial actions Write to the employer State client instructions What legislation requires Remedies sought Benefit identify evidence required save time if matter resolved promptly reply will narrow issues and clarify matters may preserve employment/relationship

Which jurisdiction? Commence as General Protection in FWC If terminated 21 days to lodge If not terminated up to 6 years to lodge Employer must respond If conciliation not successful , certificate issued May now refer to ADCQ,AHRC or Federal Circuit Court

Which jurisdiction? If many reasons for discrimination: ADCQ disability discrimination must be the substantial reason AHRC disability discrimination can be one of the reasons Volunteers have no standing in AHRC If employer Commonwealth entity FWC orAHRC If employer State entity QIRC, ADCQ or AHRC

Evidence Ultimately decided on what can be proven s 204 ADA balance of probabilities employer to prove exemption or defence on same balance medical reports link action and injury suffered plus quantum Only self reporting means lower quantum Witnesses supporting statements

Evidence "feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality [A]t common law it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. Briginshaw v Briginshaw (1938) 60 CLR 336

Claim Must structure claim right initially Arnold v Compass Group (Australia) Pty Ltd & Anor [2014] FCCA 1999 No additions once referred Crown Law won t settle if conciliation unsuccessful Counsel advice via QPILCH

Common disability discrimination path Take client instructions Assess claim, evidence, including witnesses, and determine jurisdictions Write to the other party FWC General Protections if dismissed Form 8 if not dismissed Form 8C if conciliation not successful & certificate issued ADCQ Referral to QCAT for hearing

Case Law NSW Department of Education adjustment disorder with anxiety o Smith v Department of Education and Communities [2013] NSWADT 162 Accountant heart surgery o Silver v Rogers & Rogers [2012] FMCA 674 Receptionist underpaid because of vision impairment o Fair Work Ombudsman v Rocky Holdings Pty Ltd & Ors [2013] FCCA 1549

Case Law Local Councillor Hepatitis C condition o Matthews v Hargreaves (N0 4) [2013 FMCA 4 Hospital worker with bipolar o Collier v Austin Health & Ors [2011] VSC 344 Undignified treatment of mentally ill patient warranted dismissal o Davies v State of Victoria [2012] VSC 343

How do I get help? Simplycontact us for an appointment 4031 7688 | 1800 062 608 1st Floor Main Street Arcade 85 Lake Street Cairns Q 4870 www.cclc.org.au

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