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Termination/decline decisions: Employment

Summaries of decisions by the President of HREOC or delegate to terminate complaints and (before 13 April 2000) decisions by Disability Discrimination Commissioner or delegate to decline complaints, and of the President of HREOC or delegate reviewing such decisions. Last updated: 12 December 2000

Contents

Inherent requirements

Dismissal not unlawful: unable to perform inherent requirements

A worker who was permanently unfit for his former duties as a result of injury complained of discrimination when he was dismissed. The complaint was declined, since no unlawful discrimination under the DDA occurs if a person is dismissed because he or she is unable to perform the inherent requirements of the job. (February 2000)

Medical evidence on inability to perform job requirements

An employee with epilepsy complained that he had been discriminated against when he was suspended from driving duties following a seizure. The delegate of the Disability Discrimination Commissioner declined the complaint. She noted that when the employee had requested a return to driving duties the employer had been in receipt of conflicting medical reports and had been awaiting a neurologist's report to clarify the matter, and that this report when received had advised that a return to driving could occur after twelve months appropriate medication with no recurrence of seizures. (February 2000)

Unable to perform inherent requirements of the job: dismissal not unlawful discrimination

A man complained that he had been discriminated against when he was dismissed from his job as a bar and gaming attendant after a workplace injury limited the amount of lifting he could do. The Commissioner declined the complaint. The evidence was that lifting was fundamental to the duties of the position and that the man could no longer perform the inherent requirements of the job. The Commissioner noted that reasonable adjustment did not extend to requiring an employer to change the inherent requirements of a job or find an alternative position on a continuing basis (5 May 1999).

Employer not required to change inherent requirements

An employee who had sustained a back injury complained that she had been discriminated against by her employer failing to find her any duties to return to when she regained fitness to work.  The Commissioner declined the complaint. The employee's position had been restructured for non-discriminatory reasons and she was unable to meet the inherent requirements of the jobs now available. The Commissioner referred to comments on the concept of inherent requirements by Justice Drummond in Commonwealth of Australia v HREOC and noted that, as indicated in the draft Disability Standards on employment, an employer was not obliged by the DDA to change the inherent requirements of a job to suit an employee (1999).

Dismissal not unlawful: employee certified permanently incapacitated for duties

An employee who had been injured in a motor vehicle accident complained that he had been discriminated against by being compulsorily retired after being certified by the Commonwealth Medical Officer as totally and permanently incapacitated for his duties. The President confirmed the decision of the Acting Disability Discrimiantion Commissioner to decline the complaint. She noted that the respondent had endeavoured to assist the employee to return to work but this had been unsuccessful. She was satisfied that the complainant was unable to perform the inherent requirements of his position and that his compulsory retirement was therefore not unlawful (6 August 1998).

Modification of job: employee unable to perform changed inherent requirements

An employee with a disability resigned when his employer, a manufacturing company, modified his job and requested him to learn to use computer aided design equipment. Confirming a decision by the Disability Discrimination Commissioner to decline the complaint, the delegate of the President found that the man was unable to perform the inherent requirements of the job as it now existed (6 April 1998).

Unable to perform inherent requirements because of immune illness

A man complained that he had been discriminated against by a Commonwealth government agency terminating his employment because he was HIV positive. The Commissioner declined the complaint on the basis that the termination had not been unlawful since the man was unable to meet the inherent requirements of his job. He was a probationary employee who had been refused permanent appointment because he was unable to meet the required medical fitness standard, of being able to perform reasonably adjusted duties for six months. At the time of assessment he had been unable to work for four months due to fatigue and pain associated with immune system problems. The Commissioner also noted that two medical opinions provided at the relevant time by the man's own doctors for the purpose of access to superannuation benefits described him as permanently unfit for work. Evidence that treatment and prognosis for people with HIV had subsequently improved did not mean that the decision was incorrect at the time that the man was unable to perform the inherent requirements of the job (1997).

Dismissal not unlawful: unable to perform inherent requirements since unable to work

A woman who had developed a major depressive illness following a car accident complained that she had been discriminated against when her employer terminated her employment after she had been unable to work for six months. The Commissioner declined the complaint on the basis that the subject matter had already been adequately dealt with by the Australian Industrial Relations Commission in dealing with an unfair dismissal claim. It was clear from the evidence in the AIRC proceedings that the employee was unable to perform the requirements of her job, or any other duties, at the time her employment was terminated, and that there was no sign of abatement of the illness which rendered her unable to work (1997).

Dismissal of "light duties only" employee not unlawful when no suitable light duties available

An employee who was, because of disability, only able to perform light duties, complained that his dismissal was discriminatory. The President rejected this, confirming a decision by a delegate of the Disability Discrimination Commissioner to decline the complaint. He found that in the absence of any suitable light duties, the complainant was unable to perform the inherent requirements of his position, so that his dismissal was not unlawful under the DDA (10 February 1997).

Decision on inability to perform inherent requirements justified on information available at the time

A man complained that his dismissal on the basis of medical incapacity was discriminatory. Confirming a decision by a delegate of the Disability Discrimination Commissioner, the President decided that there had not been unlawful discrimination. He noted that the employer had acted on the advice of a psychiatrist who had assessed the employee as unable to do any work for several months. On the evidence available, the President found that there had been no reason to question the correctness of this assessment and the employer's reliance on this report was not unreasonable or misplaced. At the time of the decision the employer had been entitled to decide that the employee was unable to perform the inherent requirements of his job (8 February 1997).

Unable to perform inherent requirements: failure to manage epilepsy responsibly

A man complained that he had been discriminated against on the basis of his epilepsy when his employment with a mining company was terminated. The Commissioner declined the complaint. The employee had received medical advice that his condition could be managed if he abstained from alcohol and avoided sleep deprivation, but there was evidence that he had not complied with this advice. His duties involved operating large and dangerous equipment. The Commissioner noted Justice Cooper's remarks in Department of Defence v HREOC that "ability or capacity to carry out the inherent requirements of the particular employment means ability or capacity consistent with the discharge of the common law duty of care to avoid risk of loss or harm to others" . In this case this duty of care supported a decision that the man had not been able to perform the inherent requirements of his job (1996).

Unable to perform inherent requirements

A man with a back injury complained that he had been discriminated against when he was refused employment as a delivery worker. The Disability Discrimination Commissioner declined the complaint on the basis that the act complained of was not unlawful.  Evidence indicated that 90% of the duties of the position involved repetitive bending, twisting, stooping and lifting of heavy bags, and that no accommodation to remove these requirements was possible within the duties of the position. The Commissioner noted that it was not unlawful discrimination to refuse to employ someone in a position of which they could not perform the inherent requirements (1996).

Reasonable job requirements

Requirement to work after workplace modified not unreasonable

A man who had been injured at work complained that he had been discriminated against by being required to return to his former duties. The President confirmed the Acting Disability Discrimination Commissioner s decision to decline the complaint. The workplace had been modified in accordance with workcover requirements and medical advice and it was not uneasonable to require the employee to be able to perform the requirements of his job description in this modified environment (9 October 1999).

Requirement for reliable attendance not discrimination

A casual worker complained that she had been discriminated against when she was not offered further shifts by a packing company after failing to attend a number of shifts on time or at all due to illness. The Commissioner declined the complaint. He noted that no medical evidence of disability or illness had been provided to the employer and that no advance notice had been provided of intended late arrival for work. He found that there was no direct discrimination since any less favourable treatment was because of attendance rather than directly because of disability. Regarding indirect discrimination, he did not consider that the requirement for reliable attendance in peak work periods had been shown to be unreasonable in the circumstances. He therefore found no unlawful act. Note that this result was reached without having to consider whether the attendance requirement was an inherent requirement. (1999).  

Termination because of inappropriate behaviour not unlawful discrimination

A man whose probationary employment with the Commonwealth public service was terminated complained that this was unlawful discrimination because of his disability. The delegate of the President confirmed a decision by the Disability Discrimination Commissioner to decline the complaint. The content of the probation report showed that the complainant's inappropriate behaviour towards staff had led to the recommendation to terminate his employment. The delegate accepted that this behaviour may have been a manifestation of the man's disability but was satisfied that the employer would also have dismissed an employee without a disability who behaved in a similar way (24 October 1997).

Requirement to wear safety helmet not unlawful

An employee complained that he had been discriminated against because of a requirement to wear a safety helmet, which caused him difficulty and discomfort because of his disability. Confirming a decision of a delegate of the Disability Discrimination Commissioner, the President found there had been no unlawful discrimination. He found that it was reasonable for the employer to require the employee to wear a helmet to comply with occupational health and safety requirements (25 October 1996).

Removal from position after extended absence not unlawful discrimination

An employee complained that her removal from a position as first aid officer constituted disability discrimination. Confirming a decision by the Disability Discrimination Commissioner, the President found there had been no unlawful discrimination. Although the complainant's disability was a reason for her removal from the position, he was satisfied that she had not been treated less favourably than a person without a disability would have been treated in the same or not materially different circumstances. This was because he was satisfied that a person without a disability who had been absent from work for as extended a period as the complainant would have been treated similarly (11 December 1996).

No discrimination in requiring PhD for academic position

A man with a disability complained that he was discriminated against when an offer of employment as a university lecturer was withdrawn. The offer had been conditional on completion of his PhD degree, which he had not achieved within the time specified. He claimed that this was because of an occupational overuse injury. The Commissioner declined the complaint. She considered that the requirement was reasonable given evidence regarding the University's requirements for research and teaching, even if it could be established that failure to achieve the PhD had been due to a disability (1996).

No discrimination in requirement to take sick leave for treatment

A man who had sustained a back injury at work complained he had been discriminated against because of his disability. He claimed that because of his need to take work breaks to take painkillers he had been required to sign off for sick leave for each work break (unlike workers taking breaks for other reasons) and had been questioned about his work in humiliating terms by having his hands examined to see if he had been working.  The Disability Discrimination Commissioner declined the complaint. She noted that there was an applicable award condition that employees should book off on sick leave whenever too sick to attend their usual duties.  She found no evidence of harassment or discrimination in the criticism and questioning of the man's work performance which had occurred (1996).

Limits of reasonable adjustment

No information provided to employer on accommodation required

A person with a disability complained that he had been discriminated against by his employer's failure to make a number of accommodations in the workplace. The complaint was terminated by the President, who found that no advice had been provided to the employer of what accommodations were required and that there was therefore no obligation to provide these accommodations. (August 2000)

Additional person to do job beyond limits of reasonable accommodation

A man who has epilepsy complained he had been discriminated against by being required to take sick leave following a seizure. His duties included driving and carrying a firearm. He claimed he would be able to perform his duties if accompanied by another person. The delegate of the disability Discrimination Commissioner declined the complaint. She found that provision of an accompanying person for three months went beyond what the DDA required in terms of reasonable accommodation, and that a requirement to be able to perform the inherent requirements of the job without such an additional person being provided was reasonable. (February 2000)

Reasonable accommodation does not include provision of alternative job on ongoing basis

An employee complained that he had been discriminated against on the basis of disability when his workplace was restructured in that he had not been transferred to as desirable a position as other people from his former section and had been threatened with termination of employment on medical grounds. The delegate of the Disability Discrimination Commissioner declined the complaint. She noted that efforts to find appropriate alternative work within the organisation for the complainant had ben unsuccessful and that the DDA does not oblige an employer to provide an alternative job on an ongoing basis where the employee is unable to perform the inherent requirements of their job because of a disability.(February 2000)

Refusal of home based work not discriminatory in view of job requirements and fitness

An employee of a Commonwealth Government agency who had sustained a major hip injury outside work which made it difficult for her to travel to the workplace and limited her fitness to work complained that she had been discriminated against when her employer refused to continue permission for her to work from home. The Commissioner declined the complaint.  Investigations showed that the initial approval for home based work had been made to assist with a return to work. A medical assessment after six months had indicated that the employee was not sufficiently fit for work from home within the terms of the Home Based Work Interim Award, requiring attendance in the office two days out of five. A further assessment of capacity to work with the workplace attendance requirement being waived, as was permitted under the award where this was determined to be appropriate through negotiation involving the employer and the relevant union had indicated that home based work would threaten the employee's long term recovery and rehabilitation.  The Commissioner accepted that the evidence showed that in this case the employee could not perform the inherent requirements of her job even with the accommodation of home based work (1998).

Reasonable for employer to be unaware of disability and need for adjustment

A university employee complained that her employer had not made adjustments to accommodate her vision disability when it knew or should have known of the disability. The delegate of the President confirmed the Disability Discrimination Commissioner's decision to decline the complaint. He noted that the employee had disclosed a disability to the university administration on commencing employment for the purposes of entry to the superannuation fund. However, he agreed with the Commissioner's view that it would have been unlikely and possibly inappropriate for this confidential information to be disclosed by the administration to the school in which the employee worked. He noted that having a disability did not always involve a need for adjustment. He also questioned the argument that the university should have known of the disability and the need for adjustment from the outset when the employee's own evidence was that she only fully realised the extent of her disability four years after commencing work and two months before resigning. He rejected the argument that the university had required the employee to work without adjustments, given that only a short period (one week) had elapsed between her disclosure of her disability and her resignation (14 January 1998).

Adjustments made by qualifying body found sufficient

A man with a disability was seeking to increase his level of accreditation as a translator and interpreter. He complained that he had been discriminated against by the accrediting body 's refusal to make adjustments to its examination procedure additional to those it had already provided to him. The President upheld the Disability Discrimination Commissioner's decision to decline the complaint. He accepted the accrediting body's evidence that any extension to the extra 30 minutes provided for its written test, and the additional 20 second breaks between components of its oral test, would compromise the validity of the tests in relation to professional working requirements (30 July 1997).

Failure to offer desired work schedule not unlawful

A teacher complained that he had been discriminated against by a refusal to offer him a schedule of two full days and one half day teaching instead of the five half days offered (which he was unable to perform because of his disability). The President upheld the Disability Discrimination Commissioner's decision to decline the complaint. The position of five half days offered was designed to fill gaps in the timetable by replacing a teacher on sickness leave. The President found that this was not an unreasonable requirement in the circumstances (19 June 1997).

Restriction on holidays not unlawful

An employee complained that a requirement not to take holidays in busy periods indirectly discriminated against him due to his responsibilities as carer for his son who had a disability. The President decided, confirming a decision by the Disability Discrimination Commissioner, that there had been no unlawful discrimination. Indirect discrimination under the DDA involved imposition of a requirement or condition "with which the aggrieved person does not or is not able to comply". In this case the complainant could and did comply with the restriction on taking holidays, even though he objected to it (18 March 1996).

No discrimination in failure to make adjustments when need not disclosed

A man with a head injury complained that he had been discriminated against by his employer failing to accommodate his need for a quiet work environment. The Commissioner declined the complaint. Evidence indicated that any lack of accommodation had been because the man initially chose not to disclose his disability to the employer, and once the disability was disclosed he declined offers of assistance and refused assessment for rehabilitation, and any complaints the man had made regarding the work environment had been dealt with promptly and properly (1996).

Medical examinations and disability related inquiries

Requirement for medical assessment of effect of medication not unlawful

A man working in the mining industry complained that he had been requested to undergo medical assessment after a hand injury which required him to take medication. The complaint was declined on the basis that in the circumstances a requirement of medical assessment was reasonable having regard to health and safety obligations. (November 1999)

Requirement for second medical clearance for pilot training scheme not unlawful

An employee complained that he had been discriminated against on the basis of his knee injuries when his employer required him to submit to a second medical examination before it would consider providing him with funds for pilot training under its training or rehabilitation schemes. The Delegate of the President confirmed the Disability Discrimination Commissioner's decision to decline the complaint. Evidence indicated that there had been problems with the legibility of the original medical clearance provided and that it was unclear how far the doctor providing that clearance knew of the injuries in question. The President noted that if the complainant was correct in his opinion that his injuries should not prevent him flying then this should be confirmed by a second medical examination. He referred to the paramount importance of the safety of a potential pilot's future passengers and decided that the inconvenience to the complainant in attending a second examination was easily outweighed (13 May 1998).

Note however that in another case the President referred a complaint back to a delegate of the Disability Discrimination Commissioner for further investigation on the basis that a decision on whether a requirement to attend a psychological assessment was discriminatory could not be made without detailed consideration of the nature of the job (22 July 1997).

Refusal to disclose nature of disability: non referral for employment involving chemical handling not unlawful

A man with a disability complained that he had been discriminated against by an employment agency which would not refer him for a particular job because of his disability. The delegate of the President confirmed the decision of a delegate of the Disability Discrimination Commissioner to decline the complaint. He found that the evidence did not establish that the complainant had been treated less favourably because of his disability. He also found that a requirement for an applicant for a job handling chemicals to reveal the particulars of his or her disability was a reasonable requirement for the purposes of ensuring the safety of the applicant and ensuring compliance with occupational health and safety requirements by the employer (27 March 1998).

Requirement for current evidence of disability not unlawful

A woman with a lung disease complained that her employer had discriminated against her by requiring her to verify her need to take time off for treatment during working hours. The delegate of the President confirmed the decision of a delegate of the Disability Discrimination Commissioner to decline the complaint. He found there had been no less favourable treatment on the basis of disability, since the employer would have required any employee, with or without disability, who required time off during working hours to justify this request. Regarding indirect discrimination, he found that the requirement to verify the need for medical treatment during work was reasonable. The employer was informed of a need for medical treatment at the end of 1995. The medical certificate provided in support was dated March 1992. The delegate of the President found that in these circumstances it was reasonable to require verification of a continued need for treatment (17 February 1998).

Short restrictions on work pending medical evidence reasonable

An employee with a hearing impairment complained that she had been discriminated against by her employer's refusal to permit her to work in an area where employees were required to wear ear plugs or muffs, which she could not wear. Confirming the decision of a delegate of the Disability Discrimination Commissioner to decline the complaint, the delegate of the President noted that the restriction had been applied for a period of four days during which time the employee had not complied with a requirement to produce a specialist's certificate confirming her inability to wear ear protection. The President's delegate found this temporary restriction to be reasonable in the circumstances in view of the employer's responsibilities under occupational health and safety law (23 October 1997).

Requirement for assessment of fitness to work not unlawful

A teacher complained that he had been discriminated against when his employer required him to undergo an assessment of his fitness to resume his teaching duties, following complaints about his work performance and behaviour and a period of involuntary psychiatric treatment. The President's delegate confirmed a decision by the Disability Discrimination Commissioner to decline the complaint. The teacher had medical reports supporting his claim that he did not have a psychiatric condition, but the President's delegate found that the weight of medical evidence and the complaints received about work performance and behaviour made it reasonable for the employer to seek an assessment of the employee's fitness to continue duty (13 June 1996).

In another case the President decided that requiring an employee to provide evidence of fitness to work was not unlawful discrimination based on imputed disability, as it was based on advice from the employee's own doctor that she was not fit for work (8 December 1996).

Other discrimination issues

Disclosure of HIV status of employee not unlawful in itself

The President decided, confirming a decision by the Disability Discrimination Commissioner, that disclosure of confidential information without some unfair treatment in consequence did not in itself constitute unlawful discrimination under the DDA (27 March 1995).

Employer superannuation contributions ceasing when retired medically unfit not discrimination

A former soldier complained that the Commonwealth had discriminated against him by ceasing employer superannuation contributions when he retired medically unfit rather than paying until his statutory retirement age. The Commissioner declined the complaint.  There was no direct discrimination, since employer contributions stopped for all employees when they ceased work for whatever reason. There was no indirect discrimination in the Commissioner's view. Employer superannuation contributions were, like wages, part of the remuneration received in return for work. It was impossible to conclude that a condition that these contributions stopped when work stopped was unreasonable, since the basis of the employment contract was in reciprocal obligations of work and remuneration (1997).

No disability discrimination in ineligibility for invalidity retirement

A woman who had been diagnosed with chronic fatigue syndrome (CFS) complained that she had been discriminated against when the Commonwealth Superannuation Board of Trustees decided that her condition did not amount to permanent incapacity such as to make her eligible for retirement from the Australian Public Service on invalidity benefits. The President confirmed the Disability Discrimination Commissioner's decision to decline the complaint. She found that the difference of opinion between the complainant and the superannuation fund on the nature of CFS and its treatment did not amount to discrimination. Sir Ron Wilson had previously overruled the Commissioner's view that the Superannuation Complaints Tribunal was a more effective or convenient remedy in relation to the matters raised in the complaint, as a Federal Court decision made subsequent to the Commissioner's decision had revealed that the Tribunal only had jurisdiction over decisions made after the fund became regulated, which did not include the decision about the complainant in this case (1998).

Discrimination by customer not covered by DDA

A man complained that he had been discriminated against by a customer making disparaging comments because his disability gave the impression he was intoxicated. The Commission declined the complaint, noting that the DDA does not cover acts of discrimination by a customer (25 June 1998).

Requirement to give reasons why should not be dismissed not unlawful discrimination

An employee complained that he had been discriminated against because of his alcohol related disability when his employer altered his duties and then wrote to him requiring that he either resign or give good reasons why he should not be dismissed. The delegate of the President confirmed the decision of a delegate of the Disability Discrimination Commissioner to decline the complaint. The evidence showed that work performance issues including unexplained absences from work had repeatedly been raised with the employee by managers before they had become aware of his disability. The delegate was satisfied that work performance issues were the reason for the proposed change of duties and the requirement for an explanation, and that these acts were not unlawful in the circumstances (27 November 1997).

Not unlawful to fail to offer voluntary redundancy to employee on compensation payments

An employee complained that he had been discriminated against on the basis of his disability by not being offered a voluntary redundancy package. Confirming a decision by the Disability Discrimination Commissioner, the President decided there had been no unlawful discrimination. The DDA required comparison of the treatment of a person with a disability and persons without that disability in the same or not materially different circumstances. He found that because the complainant was receiving compensation payments he was not in the same or similar circumstances to other employees who were not receiving compensation and were offered voluntary redundancy packages (25 November 1996).

Request for performance review not unlawful

An employee complained that a requirement to undergo performance review, following allegations that his work was of an unsatisfactory standard, constituted discrimination on the basis of her disability. Confirming a decision of the Disability Discrimination Commissioner, the delegate of the President rejected this complaint. He noted that the fact that a person with a disability experiences unfavourable treatment in the workplace does not itself establish that there has been discrimination, if the unfavourable treatment is not because of the disability. In this case concerns about the employee's performance pre-dated his acquiring a disability. The delegate also said:

In another case, the President similarly decided that a delegate of the Disability Discrimination Commissioner had been correct to decline a complaint by a hospital employee that subjecting her to performance review constituted discrimination on the basis of imputed psychiatric disability. He was not satisfied that the procedures adopted by her employer were unreasonable or inappropriate in the circumstances, in view of the hospital's responsibility to their patients. He also referred to the complainant's unwillingness or inability to provide an explanation for the decline which had occurred in her work performance (8 December 1996).

Harassment

Querying diligence of employee on light duties is not disability harassment in itself

An employee who had been assigned light duties because of  work related injury complained that she had been harassed when her superviser accused her of not doing sufficient work and implied that she was requiring her workmates to carry unfair burdens. The Acting Disability Discrimination Commissioner declined the complaint on the basis that the evidence was not enough to show there had been harassment because of disability (7 January 1999).

Dispute about fitness to work not harassment or discrimination in itself

A man who had experienced a back injury at work complained that he had been harassed and discriminated against because of his disability. His employer, relying on assessments by its insurer and Workcover, regarded him as fit to return to work, with some restrictions only on driving as part of his duties as a social worker. The employee insisted that he was not fit to drive at all. Confirming a decision by the Disability Discrimination Commissioner to decline the complaint, the delegate of the President noted that a dispute about fitness to work did not in itself constitute harassment or discrimination. He did not find that the employee had been subjected to any less favourable treatment by reason of his disability. He also found that remedies under workers' compensation law provided a more appropriate remedy than the DDA for the alleged exacerbation of the employee's original injury (5 December 1997).

No discrimination found in criticism of work performance

A woman with a disability complained that she had been discriminated against in employment when her supervisor commented adversely on her work performance, including that she had a poor memory and was unable to carry out complex tasks. The Commissioner declined the complaint. She noted that comments on work performance did not in themselves constitute harassment or discrimination and that the employee had been offered considerable assistance to deal with perceived problems in work performance (1996).

Not unlawful to make comments intended to assist in work

The President decided, confirming a decision by the Disability Discrimination Commissioner, that it was not harassment or unlawful discrimination for supervisors to make comments on the gait of a nursing student with a physical disability, since these comments were intended for purposes of teaching and assisting her in working more effectively (5 December 1994).

Meaning of employment

Jury service is not contract work or employment

A man who is blind complained that he had been excluded from jury service. Confirming the decision by a delegate of the Disability Discrimination Commissioner to decline the complaint, the delegate of the President decided that jury service could not be classified as employment or contract work under the DDA (19 September 1997).

Voluntary work is not employment

A man with a disability complained that he had been discriminated against by restrictions placed on his work for a community organisation. Confirming a decision by the Disability Discrimination Commissioner to decline the complaint, the delegate of the President decided that the complainant worked as a volunteer and that voluntary work was not employment within the meaning of the DDA (8 September 1997).

In an earlier case, a volunteer fire fighter who had a head injury complained that he had been discriminated against in employment when his duties were restricted following concerns about his performance. The Commissioner declined the complaint, since volunteers were not employees for the purposes of the DDA (1996).

Alternative remedies

Workers compensation system more appropriate remedy for concerns regarding return to work

A complaint on behalf of a man with a work related injury alleged that WorkCover had forced him back to work before he had recovered from his injury. The Commissioner declined the complaint on the basis that the workers compensation system provided a more appropriate remedy for these concerns. He noted that this system

Discrimination complaint already adequately dealt with by settlement of unfair dismissal claim

A man complained that he had been discriminated against by being dismissed on the basis of injury and use of sick leave. The Commissioner declined the complaint on the basis that it had been adequately dealt with by settlement of unfair dismissal proceedings with the same subject matter. The Commissioner noted that the complainant had been represented by his union in those proceedings, had had independent legal advice, and had elected to accept a settlement offer of financial compensation (18 August 1998).

Complaint regarding diagnosis: Medical Appeal Panel more appropriate remedy

A NSW Government employee complained that she had been discriminated against by being retired on medical grounds. She accepted that if she had the disability ascribed to her she would be unable to perform her job but disputed the validity of the diagnosis by the NSW government medical agency, on which her employer had relied. The delegate of the President confirmed the Disability Discrimination Commissioner's decision to decline the complaint. He found that a more appropriate remedy was reasonably available through a Medical Appeal Panel, which had appropriate expertise which the Commission did not have. (10 November 1997).

Comcare more appropriate remedy regarding return to work

An employee complained that she had been discriminated against by her employer, a Commonwealth department, by subjecting her to uncertainty about return to work from stress leave. The President confirmed the Disability Discrimination Commissioner's decision to decline the complaint. He found that the complainant had a more effective remedy through Comcare regarding management of return to work from stress leave (29 August 1996).

Public service grievance and appeal procedures more appropriate remedy

A Commonwealth public servant complained that he had been discriminated against regarding rehabilitation following work related injury. The President confirmed the Disability Discrimination Commissioner's decision to decline the complaint. He noted that the grievance and appeal mechanisms available to the complainant should be used and found no evidence for the complainant's suspicions that these mechanisms would not operate fairly (14 October 1996).

More appropriate alternative remedies not available

The Disability Discrimination Commissioner declined a complaint of discrimination in Commonwealth Public Service employment on the basis that other more appropriate remedies were available. The President reversed this decision. He was not satisfied that redress through the Federal Court was a reasonably available more appropriate remedy in view of the nature of the complaint and the financial and personal circumstances of the complainant. He noted that the internal grievance process ceased to be available to the complainant once her employment was terminated and that other relevant redress under the Public Service Act was not available to the complainant as a probationary employee (28 August 1995).

Internal grievance procedure more appropriate remedy

An employee of a Commonwealth department complained that he had been discriminated against in not being offered voluntary retrenchment. The President confirmed the Disability Discrimination Commissioner's decision to decline the complaint. As well as finding no evidence of discrimination, the President considered that the complaint could be more appropriately dealt with through the department's internal grievance procedures (13 July 1995).

State employment complaint better dealt with by State EEO authorities

A man complained that he had been discriminated against in his employment by a NSW government department. The Commissioner declined the complaint on the basis that the matter would be more effectively dealt with by another statutory authority, the NSW Anti Discrimination Board. She noted that the State anti discrimination authority was usually better placed to deal with complaints of this kind (1995).

No remedy under DDA where work limitations already fully compensated under workers' compensation

As a result of a workplace accident, an electricity linesman was unable to perform ladder top rescues and thus was no longer qualified for the top grade of work. He received workers' compensation payments for this accident. Subsequently he complained under the DDA that his exclusion from work as an A grade linesman was discriminatory. The President decided, confirming a decision by the Disability Discrimination Commissioner, that the complaint had already been adequately remedied. He also decided that being able to perform ladder top rescues was an inherent requirement of the job so that there had been no unlawful discrimination. (29 November 1995).

State discrimination authority more effective for State employment complaint

A woman with a disability complained that she had been discriminated against by a  South Australian government agency rejecting her application for employment. The Commissioner declined the complaint on the basis that the matter was covered by the South Australian Equal Opportunity Act which provided a more effective and convenient remedy (1994).

Employment complaint more effectively dealt with by local Commission

An Adelaide man complained that he had been discriminated against when he was not allowed to return to work as a contractor after a period off work due to injury. The Commissioner declined the complaint on the basis that the South Australian Equal Opportunity Commission had jurisdiction and the complaint could be more effectively dealt with by the local Commission (1994).  (Note that as with all decline decisions, decisions whether a State remedy is more appropriate, more effective or more convenient will depend on the circumstances of the case.) 

Harassment claim better dealt with by internal grievance mechanisms

An employee of a Commonwealth Government department complained that he was being harassed by his superviser. The Commissioner declined the complaint on the basis that the matter could be dealt with more appropriately by internal grievance mechanisms (1994).