The NSW Civil and Administrative Tribunal has found that Murrays Australia Pty Ltd discriminated against an experienced coach driver by refusing to employ him because of his declared mental illness.
The company's Chief Executive and Operations Manager decided not to hire the applicant after a medical assessment found that he was "temporarily" unfit pending further investigation and treatment for a mental health condition.
The doctor who conducted the medical assessment determined these results based on:
· The driver having declined to provide consent for his treating doctor to provide information about his condition; and
· The driver having reportedly been “difficult" and "argumentative” during the medical history-taking process with the medical staff.
The self-represented driver, who had previously been a nurse reportedly questioned some of the medical staff's practices and was critical of some of the questions asked and requests for consent to contact treating professionals. The Tribunal found that in context, the driver’s conduct was not unreasonable due to his "genuine concerns about the breadth and relevance of the questions he was being asked” and the blanket nature of the request for consent to contact treating health professionals.
Upon receiving the medical assessment report, which included observations about the driver's conduct during the assessment, the Operations Manager reportedly discussed the driver's application with the Chief Executive and it was agreed that he could not perform the inherent requirements of the role for which he had applied. During this discussion, the Chief Executive said words to the effect of: "there will be problems down the track with him because of his behaviour".
The Tribunal found that the Chief Executive and Operations Manager decided on behalf of Murrays Australia that the driver should not be further assessed as was recommended in the medical assessment report, and that he should not be offered employment.
In hearing the claim, the Tribunal identified that two critical errors were made by Murrays Australia in justifying the reasons for the dismissal. These were:
· The failure to acknowledge the temporary nature of his unfitness;
· There being no evidence to support that the driver refused to have an independent medical practitioner conduct further investigations.
Despite the temporary unfitness being the decisive factor in the decision not to employ the driver, the Operations Manager had revealed elsewhere when providing his statement to the tribunal that his “greatest concern” was the failure of the driver to disclose during his interview that he was taking medication for his condition. The Operations Manager interpreted the driver’s failure to disclose this information as being dishonest and the Tribunal was told that stringent reporting requirements require that employees and job candidates be "candid at all times".
The tribunal held that driver’s failure to disclose his medical condition during his interview was not dishonest, as the disclosure of this information at the interview stage was not justified. Rather, the driver had answered questions on the company's application form which were "confined to medical conditions, disabilities or injuries that 'may have an effect on [the person's] performance of the duties' of a bus driver”.
As the driver had been driving a bus without incident since having been diagnosed with a medical condition (in this instance a borderline personality disorder in 2014) it was determined that the driver had answered the question honestly.
The driver did not disclose that he was taking prescription medication for his condition until they showed up during his medical assessment in the results of a urine sample. However; it was accepted by the Tribunal that he had intended to disclose the nature of his disability and his medications to the doctor conducting the examination.
Due to Murrays Australia denying the driver employment due to his current medical condition and without having applied due process, the Tribunal awarded the driver $10,000 in damages.
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