International Labor & Employment Law Committee Newsletter

Issue: March 2014

Editor: Ute Krudewagen, Associate Editor: Amie Aldana | Africa and Middle East Editor: Karen Seigel | Asia and Oceania Editor: Jason Noakes | Canada Editor: Gilles Touchette | European Editor: Paul Callaghan | Latin America Editor: Juan Carlos Varela | Law Student Editor: Liam Woods | USA: Trent Sutton

Australia

Refusal to Provide Medical Services to a Disabled Person Not Unlawful Discrimination Where the Reason Was the Person's Aggressive Conduct

David Cross, Partner, Norton Rose Fulbright, Sydney, Australia

The decision by a dental clinic to refrain from offering further treatment to a patient with psychological disorders did not involve unlawful discrimination, because the decision was prompted by the man's "rude, aggressive, clinically non-compliant and intimidating conduct"--Judge Burnett of the Federal Circuit Court of Australia ("Court") has found.1

The decision is one of the first examinations of a disabled person's conduct as a factor in the alleged discrimination since amendments were made to the Disability Discrimination Act 1992 ("Act") which extended the definition of "disability" to symptomatic forms of behaviour. The result suggests that the amendments have not made it as easy for complainants to succeed as was first supposed.

Although this decision relates to discrimination in the provision of services, similar legislative provisions apply to discrimination in employment and, as such, the decision is directly relevant to such matters.

The complainant has a personality disorder involving anti-social and narcissistic traits, a substance abuse disorder and depression. To alleviate the impact of those disabilities he keeps an assistance dog who accompanies him everywhere. He visited the dental clinic on a number of occasions in 2007, in the course of which he behaved in a rude and aggressive manner, causing the treating dentists to become intimidated and anxious. Some of the conflict was caused by the dentists' requests that the dog not be present in the actual treatment room.

When the complainant sought to attend the clinic in 2010, he was told that none of the dentists would treat him in view of his earlier conduct.

The complainant alleged that this amounted to unlawful direct discrimination--he had been treated less favourably than a non-disabled person would have been in circumstances not materially different. This "non-disabled person" is referred to as the comparator.

The Judge found that the proper comparator in this case was a patient without the complainant's personality disorders who had previously attended the premises behaving in a rude, aggressive and intimidating way. The Judge found that such a person would have been treated in the same way as the complainant: service would have been refused. And so the claim in direct discrimination failed.

Behaviour that is a symptom or manifestation of a disability is now itself to be regarded as a disability under the Act. Because the comparator is a hypothetical non-disabled person, such behaviour must not form part of the comparator's make-up for the purpose of determining a claim for direct discrimination.

So if the complainant's behaviour was caused by one or more of his psychological disorders, the comparison should have been carried out as against a non-disabled person who had not previously behaved in an aggressive way. The clinic would have readily offered treatment to such a person. If such a finding was made, the complainant's case for direct disability would have succeeded.

The difference in outcome was due to the Judge's opinion that the conduct which had offended the dentists was caused by the complainant's unpleasant personality that had no relationship to his disability. The Act, said Judge Barnett, does "not require members of the community to suffer disagreeable people simply because they are disabled if there is no connection between their poor behaviours and their disability."

1Forest v HK & W Investments Pty Ltd [2014] FCCA 209.

Foreign Government Held Liable for Damages in Relation to a Consular Employee in Australia

David Cross, Partner, Norton Rose Fulbright, Sydney, Australia

The Republic of Lebanon has been ordered to pay damages in excess of $330,000 for future economic loss suffered by an Australian consular employee as a result of breaches of Australian workplace laws, Judge Raphael of the Federal Circuit Court of Australia ("Court") has found.1

The decision confirms that foreign state immunity does not extend to claims relating to a contract of employment made or performed in Australia, or claims in relation to any right that Australian law gives an employee, and that a foreign state can be an employer for the purposes of the enforcement of those rights.

The plaintiff was recruited by the Republic of Lebanon to work within its consular offices in Sydney, Australia. After being employed for a little for than 5 years, the plaintiff was dismissed for cause. The decision was made by her supervisor.

Prior to the dismissal, the plaintiff complained that she had been the victim of bullying and sexual harassment by her supervisor. No action was taken in relation to the complaint. A confrontation between the plaintiff and the supervisor took place shortly before the dismissal.

In the proceedings, the plaintiff claimed compensation on the basis that the conduct of the supervisor and subsequent termination of her employment breached the general protections provisions of the Fair Work Act 2009 ("Act"). Those provisions create causes of action that can be enforced against "national system employers" for discrimination against an employee or for the adverse treatment of an employee who has exercised a workplace right.

The Court concluded that the Republic of Lebanon was a "national system employer" because it fell within the limb of the statutory definition which refers to persons carrying on "an activity (whether of a commercial, governmental or other nature) in a Territory in Australia". Consequently, the Act applied to the Republic of Lebanon in its employment of the plaintiff.

The plaintiff's claim was found to engage with a number of the exceptions to foreign state immunity prescribed by the Foreign States Immunities Act 1985. The exceptions include proceedings involving an employment contract made or performed in Australia and proceedings relating to rights given to employees under Australian law.

The Court held that the actions of the supervisor constituted discrimination on the basis of gender for the purposes of the general protections provisions of the Act, but did not fall within the definition of "adverse action". The termination of the employment fell within the definition of "adverse action" and, because the reason for the termination related to the plaintiff's complaint about her mistreatment, it was also unlawful under the Act's general protections provisions.

In determining the amount of compensation payable to the plaintiff, the Court ruled that she could have expected to retain her job at the consulate until the age of 65, subject to the vicissitudes of life. The resulting calculation yielded damages of $336, 296.42 for future economic loss.

1Kassis v Republic of Lebanon [2014] FCCA 155

Changing Australian Privacy Principles

Alec Christie, Partner, Jaimie Wolbers, Solicitor, and Joel Davis, Solicitor, DLA Piper, Sydney, Australia

The thirteen new Australian Privacy Principles ("APPs") which came into effect on 12 March 2014 introduce stricter requirements in relation to the collection, use, disclosure and storage of personal information.

While Australian privacy law retains the employee records exemption which applies to personal information collected and used by the employer as part of the employment relationship (current or former), that is an 'employee record,' employers must be mindful of the fact that the APPs apply to personal information of individuals that are not current or former employees, like contractors and job candidates, and to the personal information of employees that is not an employee record.

Employers in Australia will need to consider whether they have appropriate policies and procedures in place to meet the requirements of the APPs.

It is important to remember that when the purpose for which the employer has collected the information is complete, the employer has an obligation to destroy the information or make it unidentifiable. Because some of the information gathered during the hiring process could become crucial evidence in adverse action or discrimination claims, the APPs include narrow exemptions to data destruction but those exemptions only apply if the information is collected and managed in accordance with an employer's policy.

The mishandling of information now has greater consequences for employers, including the possibility of investigation by the Privacy Commissioner's new "own motion" investigative powers, and fines of up to AUD $1.7 million for employers and AUD $340,000 for individuals.

 

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