Stokes v Serco Sodexho Defence Services Pty Ltd

In Stokes v Serco Sodexho Defence Services Pty Ltd, the Federal Circuit Court considered an application brought by an employee against her employer, Serco Sodexho Defence Services Pty Ltd, under the Disability Discrimination Act 1992 (Cth). The applicant, Stokes, alleged that she was dismissed because of her responsibility for caring for her disabled son, and that this amounted to discrimination on the ground of disability.

The court was required to decide whether the applicant's dismissal constituted direct discrimination under section 9(1) of the Act, in that she was treated less favourably because of her carer's responsibility, and whether it constituted indirect discrimination under section 9(2), in that there was a condition or requirement applied to her which disadvantaged her because of her carer's responsibility. The court also needed to consider whether the employer had a defence under section 30 of the Act, that is, that the discrimination was occasioned by her inability to perform the inherent requirements of the position.

The court found that Stokes had not discharged the onus of establishing a case of direct discrimination, as the employer's evidence showed that she was dismissed for poor performance, and not because of her carer's responsibility. The court also found that there was no evidence to establish that the employer's performance management process was discriminatory, and that the employer had established a defence under section 30 of the Act. The court therefore held that Stokes' application was dismissed.