In Chalker v Murrays Australia Pty Ltd  NSWCATAD 112 (10 April 2017), the New South Wales Civil and Administrative Tribunal (“NCAT”) has ordered Murrays Australia to pay $10,000 for not hiring a man with a mental illness.
NCAT found that Murrays discriminated against a Mr Chalker because of his mental illness and that he was fit for the “inherent requirements” of the job he was applying for.
In NSW, under s.49D of the Anti-Discrimination Act 1977 (NSW) (“AD Act”), it is unlawful to discriminate against a person on the grounds of a disability. Similar legislation applies in all other states and territories in Australia.
Section 49D deals with discrimination on the grounds of disability in the following circumstances:
- In the arrangements made for the purpose of determining who should be offered employment;
- Determining who should be offered employment;
- In the terms on which employment is offered;
- Denying or limiting an employee’s access to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
- Dismissing an employee; or
- Subjecting an employee to any other detriment.
As can be seen, anti-discrimination protections are provided to both current and prospective employees.
There are two main defences available to a claim for discrimination under s.49D of the AD Act. They are, once all other relevant factors such as the person’s training and experience are considered:
- the person would be unable to carry out the “inherent requirements” of the job; or
- in order to carry out their job, additional services or facilities would be required that impose an “unjustifiable hardship” on the employer.
Mr Chalker was an experienced bus driver who was diagnosed with borderline personality disorder, a recognised mental illness, in January 2014. At the time of the discrimination he was seeing a psychiatrist and was taking prescribed medication for his condition.
In September 2015, Mr Chalker applied for a position at Murrays Australia, as a coach driver. He had several years’ experience driving buses, including as a sub-contractor of Murrays Australia.
On the application form, Mr Chalker was asked if he suffered from any medical condition, disability or injury that may have an effect on his performance of the duties in the job. He responded “no”.
After the interview Mr Chalker successfully completed a driving test and was given assurances that as soon as he obtained a current NSW public vehicle certificate and completed a medical assessment, he would have the job.
During the medical assessment, Mr Chalker was asked by the nurse to explain why his urine test found the presence of drugs. At this point Mr Chalker disclosed he was taking prescription medicine for a mental condition. He eventually detailed his condition to the doctor who conducted his assessment after the nurse finished. Mr Chalker had brought packages identifying all the medication he was taking and explained that he did not inform the nurse originally as he did not believe it was relevant to his ability to drive a bus. He also made complaints about several questions for being too broad and not relevant to a pre-employment assessment and refused to consent to giving “a blank cheque” to inquire into his entire medical history.
As a result, the doctor deemed Mr Chalker as “temporarily unfit” pending further psychological assessment given his “difficult” and “argumentative” attitude.
As a result of the assessment, Mr Chalker was denied the position that he was otherwise fully qualified for.
NCAT found that Mr Chalker’s actions were reasonable in the circumstances. Deputy President Hennessy and General Member Lowe held that Mr Chalker did not need to disclose his mental illness as it did not impact his ability to work. Furthermore, they also found that his actions during the medical assessment were reasonable despite appearing argumentative.
NCAT also found that deciding Mr Chalker was unfit for the inherent requirements of the job due to being “temporarily unfit” pending further testing was unjustified. Given the circumstances, Mr Chalker was fully qualified and able to be employed as a bus driver.
Mr Chalker sought to be compensated for lost wages from the date he applied for the position until he was turned down but this was rejected by the Tribunal as he was not entitled to wages during this time. The Tribunal instead granted him $10,000 compensation for “pain and suffering” (which is tax free) as a result of the indignation and hurt that he experienced in being rejected.
Message to Employers
Anti-discrimination legislation is drafted in extremely broad terms so that it is available to protect people from a variety of different forms of discrimination.
Categories include disability, age, gender, race, religion, sexual orientation and marital status. It is important for employers to be aware that these protections apply to both current and prospective employees.
When considering an applicant for a position, ensure that your decision is based on the actual requirements of the job to avoid accusations of discrimination. If you are unsure whether a decision puts you at risk of an anti-discrimination claim, we recommend that you seek independent legal advice.