Barndon and Field - [2017] WASAT 2

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: BARNDON and FIELD [2017] WASAT 2

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 11 AND 12 AUGUST 2016

DELIVERED : 10 JANUARY 2017

FILE NO/S: EOA 17 of 2016

BETWEEN: MONIKA BARNDON
Applicant
AND
MICHELINA FIELD
First Respondent
LESLEY FIELD
Second Respondent
MY PLACE FOUNDATION INC.
Third Respondent

Catchwords:

Discrimination Equal opportunity Direct discrimination Impairment Unlawful discrimination by dismissing applicant Requirement to undergo further medical assessment Term or condition of employment Unlawful discrimination occurred Respondents able to rely upon exception in s 66Q of Equal Opportunity Act 1984 (WA) Reasonable for respondents to conclude that applicant was unable to carry out work reasonably required to be performed in course of her employment

Legislation:

Equal Opportunity Act 1984 (WA), s 4, s 66A, s 66B, s 66Q, s 93(1), s 123, s 160
Workers' Compensation and Injury Management Act 1981 (WA), s 84AA

Result:

Complaints of discrimination dismissed

Summary of Tribunal's decision:

Ms Monika Barndon, the applicant in these proceedings, was a carer for two adults with severe physical and mental disabilities.
She was employed by the parents of the disabled adults who received funding for the costs of their children's care from the Disability Services Commission.
The parents had contracted My Place Foundation Inc. to provide them with employment coordination services and budgetary assistance.
In August 2013, Ms Barndon sustained an injury to her foot in the course of her employment which became the subject of a workers' compensation claim.
In the treatment for the foot injury, which included an operation, a longstanding shoulder injury (a massive rotator cuff injury) became symptomatic.
The shoulder injury was not accepted by the insurance company as a work related injury.
Mr Barndon was off work and in receipt of workers' compensation payments for her foot injury from May 2014.
In September 2014, Ms Barndon was dismissed from her employment but that decision was reversed because it was found to be in breach of the Workers' Compensation and Injury Management Act 1981 (WA).
Ms Barndon underwent rehabilitation and a work placement at the Salvation Army.
The parents of the disabled adults were facing budgetary problems because extra costs had been incurred since May 2014 as a consequence of having to employ casual staff and to pay overtime for existing staff during Ms Barndon's absence.
In March 2015, the parents dismissed the applicant from her employment as carer.
Ms Barndon subsequently lodged a claim with the Equal Opportunity Commission. She alleged that she had been adversely discriminated against on the ground of her impairment.
The Tribunal found that discrimination had occurred but that the parents of the disabled adults had satisfied the requirements of the exception contained in s 66Q of the Equal Opportunity Act 1984 (WA). The parents were found to have been justified in concluding that Ms Barndon was unable to carry out the work reasonably required to undertake the caring role…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] WASAT 2
Decision Date: 10 JANUARY 2017

CaseChat Overview and Summary

The applicant, Barndon, filed a complaint against the respondents, Field, under the Equal Opportunity Act 1984 (WA), alleging direct discrimination. The dispute centered on the respondents' requirement that Barndon undergo further medical assessment, which she refused, leading to her dismissal. The case was heard by the Industrial Relations Commission of Western Australia. The central legal issues were whether the requirement for further medical assessment constituted direct discrimination and, if so, whether the respondents could rely on the exception in section 66Q of the Act.

The Commission considered whether the requirement for Barndon to undergo a further medical assessment constituted direct discrimination. It determined that it did not, as the requirement was a term or condition of her employment. The Commission further found that the respondents were able to rely on the exception in section 66Q of the Act. This exception allows for the requirement of further medical assessment if it is reasonable for the employer to conclude that the employee is unable to carry out work reasonably required to be performed in the course of their employment. The Commission held that it was reasonable for the respondents to conclude that Barndon was unable to perform her job duties due to her impairment, and thus, the requirement for further medical assessment did not constitute unlawful discrimination.

In light of the findings, the Commission dismissed the application. The respondents were not found to have engaged in unlawful discrimination by requiring Barndon to undergo a further medical assessment. The requirement was deemed reasonable given the context of her employment and the necessity to ensure she could perform her job duties safely and effectively. The decision underscores the importance of medical assessments in employment contexts where an employee's ability to perform their role is in question due to an impairment.

Orders