A man employed by the Australian Tax Office (ATO) for approximately two weeks has been awarded $121,762 after the Federal Court of Australia found his employer breached the Disability Discrimination Act 1992 (DDA) in terminating his employment.
The Applicant, Mr Gordon, applied for a position as a GST Compliance Officer with the ATO. The ATO made him an offer of employment subject to, among other things, a condition that should he be found unfit for employment the offer would be withdrawn. On 22 April 2003 Mr Gordon undertook a medical test where it was noted he had a history of high blood pressure and on this date had a blood pressure reading of 200/110. On 28 April 2003 Mr Gordon was permitted to commence training on the assumption his employment would proceed. However, on the basis of the medical report received from Dr Payne on 8 May 2003, it was concluded that Mr Gordon was not medically fit for the extensive driving duties, required as a GST Field Compliance Operative.
Mr Gordon made a claim under the DDA.
The Court found the ATO had discriminated against Mr Gordon by withdrawing the offer of employment. The ATO had treated Mr Gordon less favourably than it would have treated a hypothetical person who did not have hypertension but had Mr Gordon’s qualifications and experience. If the hypothetical person had applied, the person would have got the job and not have had the employment offer withdrawn.
The ATO maintained it did not dismiss Mr Gordon, rather it withdrew a conditional offer of employment when the condition was not satisfied. However, the Court found Mr Gordon was an employee on the basis that he had attended the ATO Launceston office, carried out duties required of him, and received, or became entitled to receive a wage or salary as long as he attended. In addition, the ATO would have owed him the common law and statutory obligations employers owe to their employees – therefore, as Mr Gordon had already started work and would have continued to do so had he not been told to leave, the ATO’s actions amounted to “dismissing” in accordance with the DDA.
Additionally, there was disputed evidence about the true level of Mr Gordon’s hypertension as he appeared to suffer from “white coat syndrome”- an anxiety people often have when undergoing medical tests resulting in a higher reading than might otherwise be the case.
During the training period Mr Gordon could have managed without driving at all, in which case, Dr Payne accepted in cross-examination that if Mr Gordon was not doing extensive driving (i.e. in the training period) then he would have considered him fit. In any event, the Court accepted it was reasonably apparent that any elevated blood pressure Mr Gordon suffered could have been brought under satisfactory control well before the time he would have been required to engage in extensive driving alone. The ATO claimed one of the inherent requirements of the employment was extensive driving and to carry out those requirements Mr Gordon would require services or facilities which would impose an unjustifiable hardship on the ATO. This was not tested because the ATO failed to establish Mr Gordon would have been unable to perform the inherent requirements of his employment. In fact, Mr Gordon argued that he had performed these requirements for approximately two weeks before his dismissal. As such, the ATO was ordered to pay for the past salary loss, Centrelink reimbursements, mental anguish and interest.
If an offer of employment is subject to the passing of a medical test ensure that the employee doesn’t commence working until the results of the medical are known.
Should you require further information in relation to this article, please contact Louise Houlihan, Partner, on 9608 2273 or l.houlihan@cornwalls.com.au
