Impairment - Case studies

IMPAIRMENT - CASE STUDIES

The following case studies are based on matters which have been received by the Anti-Discrimination Commission Queensland or decided at Tribunal hearing. They are provided as a guide to the range of outcomes which can be achieved, and kinds of issues raised.

YB v State of Queensland [2010] QCAT 395, 16 August 2010

The applicant YB is a year 12 high school student and complained that he was subject to unlawful discrimination in the provision of educational services to him at the high school which he attends.

YB’s mother made the complaint to the ADCQ as agent for YB when he was in year 10. During the course of the QCAT hearing, YB turned 18 and affirmed the complaint made on his behalf and took over the conduct of the complaint at the Tribunal.

YB claimed to have a range of impairments including a phonological processing disorder, scotopic sensitivity, dyslexia, mild dysgraphia and executive dysfunction. He said these conditions caused him to learn more slowly than students without the conditions.

Specifically, he could not get through required reading on time; had difficulty in organising, understanding and breaking down tasks; had difficulty reading documents in small font size printed on white paper and was unable to complete assignments on time or keep up with work.

YB relied on a number of reports about his conditions, and QCAT analysed the expert and lay evidence, and determined that YB has a phonological disorder and some weakness in executive functioning which results in YB learning more slowly than a person without the condition, and constitutes an impairment under the Act. The Tribunal specifically rejected the assertion that YB has the conditions of scotopic sensitivity, dyslexia or mild dysgraphia.

It was argued that the school imposed terms that, 'in order for a student to obtain the educational benefits offered by the respondent at M State High School and to prepare fully for assessment in Years 9 and 10, the student was required to read and absorb course materials printed in 8 or 10 point font, read and absorb course materials printed on white paper, read and absorb examination papers printed in 8 or 10 point font, undertake assessment, including examination assessment, within the strict universal timeframes set down by M State High School and complete their studies without any assistance from learning support teachers.'

The Tribunal found that the school did not impose the terms as argued. It found that the school:

required YB’s teachers to provide him with course, assessment and examination materials in 14 point font, and later to be printed on coloured paper (It noted that there were isolated occasions where this requirement may not have been followed.)
required the heads of departments and YB’s teachers to permit him to have extensions of time in which to complete assessment items including examinations
provided YB with assistance from learning support teachers and with additional learning support from the deputy principal
provided other accommodations to YB including a laptop computer and uploading course materials to it.

The complaint was not made out and was dismissed.

With regard to costs, Member Endicott said: 'In view of the fact that YB was a minor for all but the hearing stage of the claim and his claim was brought and maintained by his agent, JB, until the start of the hearing, the Tribunal is unlikely to be persuaded that in the interests of justice an award of costs should be made.'

'no realistic prospect' of performing the duties

The ADTQ dismissed a complaint by a worker who claimed she had been unlawfully discriminated against on the basis of impairment when her employment was terminated after suffering an injury at a meatworks where she was employed for one day and one hour.

The Tribunal accepted that the woman's injury was sustained because of the repetitive nature of the duties required by the position despite being given the lightest duties available at the meatworks.

The Tribunal found that the termination was not discriminatory because it was reasonable for the employer to form the view that there was no realistic prospect that she would be able to perform the position requirements, even if given time to recover from her injuries. It also found that the termination was excused under the workplace health and safety exemption in section 108 of the Act.

Halle v Holmes & Anor [2008] QADT 28 (19 November 2008)

Dismissal due to medical condition

A dental nurse who worked as a full-time permanent employee with a dental practice for eight years developed a condition that required regular medical appointments. The woman notified her employer and was absent from work on a number of occasions to receive treatment.

Afterwards, the woman received a letter from her employer saying that due to the economic downturn, they could only offer her casual employment. She was asked to notify them within seven days of whether she would accept the casual position or resign. The woman wrote to the employer saying that she was too stressed and upset to provide an answer within the timeframe and sought more information on a number of matters before she could make a decision.

On the day she was originally asked to make the decision, the employer terminated her employment, and said that it was due to the uncertainty surrounding her medical condition. The conciliated outcomes included compensation and a statement of regret from the employer.

Dismissal due to medical condition

A man employed by a tyre service organisation that had recently changed hands, had a pre-existing injury that was made known to the new owners.

Initially, the new bosses gave him time off without pay so he could recover. After treatment, the man contacted the new owner and advised that he was ready to return to work after two weeks. He was then told that there was no work for him, due to the economic downturn.

The complainant initially accepted this but approached the ADCQ after receiving a separation certificate stating that he was terminated due to 'medical reasons'. He also found out that someone else had been employed in his position.

The employers were not able to show that his termination was due to the economic downturn and said they were unaware that their reasons for terminating him may have breached Queensland laws. The conciliated outcomes included compensation, an apology and an agreement for one of the owners to attend an ADCQ education session and pass the information on to their staff.

Disability Access

A man alleged discrimination on the basis of impairment when he found he no longer had access to a ramp for his wheelchair. The ramp had been replaced with a staircase as part of a re-development. As a result, he could no longer use the thoroughfare and had to go a considerable distance to use the alternative, accessible route. He said that removal of the ramp had occurred without public consultation and was unacceptable. He proposed that the steps be replaced with a ramp or lift.

The developers and the council responsible for the re-development highlighted difficulties in implementing and maintaining an accessible route at that location. As the road had been widened, the footpath area was too narrow for a ramp, and a lift would have been expensive to install and maintain, and would also be subject to vandalism. A further difficulty was that the area was heritage listed.

Ultimately the complainant accepted the difficulties in relation to the specific site, while the respondents accepted his concerns in relation to the process and outcome of the redevelopment.

The complaint was resolved on the basis that the developer:

paid $20,000 to a disability advocate organisation, to develop disability awareness resources
will take specific steps to ensure their projects comply with relevant Australian Standards relating to disability access
will promote the issue of disability access within relevant industry groups
will report to the complainant on an annual basis for 3 years about the progress in implementing these terms.

The Council agreed to:

involve the complainant in addressing other access concerns
continue to implement its non discriminatory access code
review the code and its implementation and submit a summary of the review to the complainant
provide the complainant an opportunity to input into proposed mobility studies.

Access at theme park

Improved disability access to rides and attractions at a theme park was sought by a complainant in a wheelchair. In addition, concerns were raised regarding the treatment she received from certain staff of the park, which she believed was a result of her impairment.

Through conciliation, an agreement was reached. It involved the company agreeing to seek advice from a disability advocate regarding improved access to the park generally, as well as to certain attractions.

Further, the complainant was invited by the company to speak directly with staff of the park about her experiences in a wheelchair, to increase their awareness of disability issues.

It was agreed that the complainant and her family be provided with accommodation whilst attending these sessions. As a gesture of goodwill the company also offered a twelve month pass to the complainant and her family.

Impairment in Pre-Work

The complainant applied for an emergency service communication room position. He had served previously in a similar position for many years and was offered the position pending a medical examination. He disclosed on his application form that he suffered from post traumatic stress disorder.

The respondent denied him employment on the basis of his impairment stating that the position was extremely stressful and there was potential risk to clients and fellow workers.

At conciliation it was agreed that procedures were not followed, his physician should have been consulted and the notification form letter was cursory. The matter settled with an agreement to reassess the application after examination by a specialist, an apology and a commitment to change the wording of the rejection letter.

Impairment in the provision of goods and services

A man alleged he was discriminated against on the basis of his impairment. He said his HIV+ status was the reason he was refused major surgery. After a delay of several months he was able to arrange for an operation in another State, but argued that the delay had permanently affected the level of benefit he gained from the operation. The complainant said the hospital’s inefficient administrative system and the losing of a medical record had further aggravated his situation.

The hospital said that the situation was more complicated than the complainant alleged. They acknowledged, however, deficiencies in their administrative system and that they needed more understanding of HIV in the area of major surgery. Since being alerted to the complaint, the hospital had taken steps to improve their patient tracking systems and their administrative processes. In resolving the complaint the hospital undertook to liaise with other medical services and community agencies with expertise regarding HIV and to provide more information about patients rights in these areas. The complainant also received financial compensation.

Impairment - access issues

The Commission dealt with a number of complaints from people in wheelchairs challenging the safety of ramps in public areas. Each complainant also alleged that the ramps did not comply with Australian Standards for disability access. Respondents to these matters asserted that the ramps conformed to the Building Code of Australia and that wheelchair access was well catered for. These matters were conciliated after negotiations between the parties with the respondents undertaking to put in place structures complying with the relevant Australian Standards. In some matters this followed the advice provided by Access Consultants.

Disability access

Disability access to the children’s section of a public library was sought on behalf of a child in a wheelchair. Approaches directly to the council by the girl’s foster mother were unsuccessful and on the advice of a local advocacy group a complaint was lodged with the Commission. Because of the public nature of council meetings there was extensive local media interest. Through conciliation the city council agreed to install a lift. Both parties were very co-operative and satisfied with the outcome. The child’s foster mother was delighted and wrote "ADCQ staff were very helpful and clear in the information I received."

Assumed impairment (HIV)

A man had worked for some time at a local supermarket without disclosing to his co-workers that he was gay. His colleagues eventually suspected that he was gay, after he had been seen out at a gay nightclub, and in an attempt to put an end to rumour, the man told his colleagues that he was gay. After declaring this, he was subjected to frequent jokes about his sexuality, rude remarks about the likelihood that he would pass on AIDS to his co-workers (even though he was not HIV positive),and even threatened that he would be "bashed up " in the car park.

The man lodged a complaint on the basis of sexuality and imputed impairment, against all of the co-workers who he alleged had discriminated against him, and the employer. None of the co-workers denied what was alleged against them, but the employer denied that it was vicariously liable, arguing that it had taken reasonable steps to prevent the discrimination. Following a conciliation conference, the respondent employer agreed to pay the complainant an undisclosed sum, and to provide specific monetary and other assistance to him to relocate interstate.

Impairment Discrimination in pre-work

A woman alleged that she was not interviewed for a position and was told by her supervisor that it was because she had a medical condition. The company and the individual respondent denied the allegations stating that she was not given an interview because she did not meet the requirements of the position. At conciliation the respondent stated that in a discussion with the complainant about her not being successful in the application, her medical condition was discussed. An apology was given to the complainant for any false impression given to her that her medical condition had been taken into account. The company agreed to the following:

To develop a formal training and development program with the complainant in relation to the position for which she had applied, including an appropriate process for review of the program. The process was to include recognition of the complainant’s current skills and abilities.
The company agreed to provide details of its formal recruitment procedures, including job selection, to the complainant and agreed that it would not victimise or disadvantage the complainant in any way as a result of the complaint.

Impairment in Work

A woman alleged she had been discriminated against by a government department on the ground of impairment. She said she had been injured by the work required of her, developing RSI. She said she had then not received adjustments for her disability which was aggravated. The complainant said this ultimately led to the situation where she was retired due to ill health.

The respondent denied the allegations. They were able to provide confidential documentation showing that the grounds for retiring the complainant were not unlawfully discriminatory but were for other legitimate reasons.

Having received this documentation, and as the complainant’s other allegations occurred several years beforehand and were therefore not within the time limits of the Act, the complaint was rejected as misconceived.

Impairment Discrimination

Equitable access for all residents and visitors to the Redland Shire Council has been considerably improved as a result of a conciliated agreement between the HUGI (Help Us Get In) Action Group and the Redland Shire Council.

HUGI Action Group complained of inequity in access to shops, business houses, Council owned or supported buildings and facilities.

The outcomes achieved through the conciliation process included significant improvements to buildings and facilities and general principles the Redland Shire Council have now incorporated into their policies in dealing with equity of access in the civic design process.

Although the conciliation and negotiation process took two years, the parties acknowledge that the Anti-Discrimination Act 1991 was the most effective vehicle for change.

The parties agreed to make the outcome of the complaint public.

BACK TO CASE STUDIES HOME PAGE

This information is intended as a guide only. It is not a substitute for legal advice. For more information contact the Commission on 1300 130 670 statewide or Teletypewriter 1300 130 680 statewide.