By Zoe Brodie and Alex Millman, NRA Legal

A recent finding of the Victorian Civil and Administrative Tribunal highlights how employers can be liable, even unwittingly, for discriminating against their employees.

The Facts

Mr Ferris was employed by the Department of Justice and Regulation at Langi Kal prison in Victoria. Unknown to his employer, Mr Ferris suffered from type 2 diabetes and cardiomyopathy.

Following several incidents in breach of the code of conduct, including swearing aggressively at a prisoner and failing to obey orders from a superior, Mr Ferris was suspended and subsequently dismissed from his employment.

Mr Ferris brought a claim before the Victorian Equal Opportunity Commission, which was subsequently escalated to the Victorian Civil and Administrative Tribunal (VCAT), arguing that the Department discriminated against him, both directly and indirectly, due to his diabetes.

For his claim of direct discrimination, Mr Ferris argued that his dismissal was ‘because of’ his diabetes.

As for his claim of indirect discrimination, Mr Ferris claimed that he was unable to control his diabetes following an increase in hours and work load at the prison. As a result, he was unable to avoid stress, monitor his blood sugar levels or take rest breaks when needed. It was this that led to his aggressive behaviour and failure to comply with a superior.

What did the Tribunal find?

Mr Ferris did not succeed on his claim of direct discrimination. Since he had never disclosed his condition to his employer, there was no way for the Department to target him for less favourable treatment because of it.

On the other hand, Mr Ferris did succeed on his claim of indirect discrimination.

Importantly here, it did not matter that the Department was not aware of the discrimination or Mr Ferris’s condition.

Rather, the Tribunal found that the Department had imposed an unreasonable workload on Mr Ferris – he had limited opportunity for breaks and had to carry out extra hours to complete his daily tasks.

This disadvantaged Mr Ferris, or indeed anyone with his condition, causing his diabetes to become unstable and ultimately leading to the events which resulted in the termination of his employment.

Mr Ferris appealed this decision to the Victorian Court of Appeal, however was unsuccessful.  

Message for employers

This case is a reminder that employers can engage in unlawful discrimination even if they are completely unaware of it. In particular, indirect discrimination can carry on for a long time before the business becomes aware that its practices may be discriminatory.

More importantly, asking for disclosure at the start of employment can only get you so far; there is, after all, only so much a position description can tell a prospective employee.

Mr Ferris was asked before starting work – and before he knew the reality of his employment – whether he had any relevant medical conditions. Maybe his non-disclosure was because he didn’t know what he was getting into. It is entirely possible that if the Department had asked this question again later on, they would have gotten a different answer.

Regular follow-ups with your employees, both formally and informally, may allow employers to better assist employees who need assistance, and to understand those areas of the business which are putting unnecessary strain on employees.