Discrimination Law prohibits employers from treating less favourably employees with a disability

In the case of Choi v Deloitte ToucheTomatsu [2016] NSWCATAD 304 (22 December 2016), the Applicant was a chartered accountant who was first hired in 2011 but received a wage increase and a favourable performance review and was nominated for a performance excellence award. In August to November 2012, she advised her employer that she had tuberculosis of the lymph noddes. An officer from Human Resources called her while she was at the hospital informing her that she had three options: to take unpaid leave, work part time or resign.

When she returned to work from the hospital, she was told to take unpaid leave until January 2013. She was also told that there was not much work for her. After her unpaid leave, the accountant presented a certificate from her doctor that the type of tuberculosis she had was not contagious and did not pose a risk to others when it was treated properly. The doctor also certified that the accountant was compliant with treatment and was fit to work whilst undergoing treatment. Although she may need reduced duties depending on how she was feeling and may need some time off for regular medical reviews for a period of six months.

When she returned, her supervisor suggested that she should resign and to look for less stressful work elsewhere. A performance review was conducted of her work since she returned, but not of the work she performed before her unpaid leave. She was allocated administrative tasks and not work for clients as she had been previously given. The performance review meetings were conducted in a manner that put pressure on the accountant to resign.

She lodged a complaint about being bullied but the employer did not investigate the complaint. A senior officer from Human Resources proposed and drafted a separation package for her to consider. He gave her three options: to have her bullying allegations formally investigated, to be moved out of her current team when other suitable positions became available, or to transition out of employment. He told her that the investigation of the bullying complaint would be very uncomfortable for her. Her best option, then, according to Human Resources was to resign.

When the accountant refused the separation package, the employer doubled it to make attractive. Instead of accepting the new separation package, the accountant went on sick leave. She did not want to resign, and she felt that she was unfairly pressured to resign. She was admitted to a psychiatric hospital.

The Tribunal, in assessing whether the employer unfavourably treated the accountant, compared the treatment of other employees who had had been required to take an extended period off work because of non-work-related injury or illness. The Tribunal found three such employees and found that the accountant was treated less favourably that the three. They were not subjected to the same number of management and human resources meetings held with the accountant. They were not presented with an option of resignation while in hospital. They were not pressured to take unpaid leave. They were not offered a salary package or pressured to take a package and resign. Thus, the accountant was treated differently from other employees and, their treatment of her was not sanctioned by their own code of conduct or rules.

The Respondent put a sign at her work station on a white board that she was "quarantined" without bothering to find out if her condition was contagious. The Respondent did not bother to confirm with their company doctors whether the accountant was contagious or whether she as fit for work when she returned. The unfair treatment of the accountant was due to her disability. She was awarded salary for the period of unpaid leave she was pressured to take in the amount of $14,000. She was awarded $10,000 for non-economic loss.

Are you being pressured to resign from work because you have been ill or disabled? Are you pressured to take unpaid leave? Do you feel that you are unfavourably treated because of your illness or injury? Speak with any of the Discrimination Lawyers at MKI Legal. We are happy to help.

Mki Legal, is a specialist employment law firm operating in Perth, Western Australia.