Sydney Trains had unlawfully discriminated against potential employee
Annovazzi v State of New South Wales - Sydney Trains [2023] FedFamC2G 542
Summary
On 23 June 2023, the Federal Circuit and Family Court of Australia (FCFCA) found that Sydney Trains had unlawfully discriminated against Ms Renee Annovazzi (Ms Annovazzi) by dismissing her, prohibiting her participation in the trainee drivers course and requesting a medical note regarding her disabilities.
Facts
Ms Annovazzi has attention deficit hyperactivity disorder (ADHD) and Asperger’s Syndrome, each being a “disability” within the meaning of s 4(1) of the Disability Discrimination Act 1992 (Cth) (DD Act).
Her application to become a trainee train driver for Sydney Trains included the following questions:
1. “Do you have a diagnosed condition for which you may require reasonable adjustment throughout the selection process?” and
2. “Do you have any impairment or condition which would affect your ability for the job for which you have applied?”
Ms Annovazzi answered “no” to both questions. Ms Annovazzi’s evidence was that she disclosed her conditions and medication to Sydney’s Train’s appointed doctor during the pre-employment medical assessments.
In October 2017, a complaint was made about Ms Annovazzi’s behaviour, in relation to an incident where she told a trainer to “shut up”. When asked about her behaviour, Ms Annovazzi referred to experiencing ADHD and Asperger’s Syndrome. She also asked who to notify about medication she used.
Sydney Trains initially transferred her to light duties out of the trainee train driver program. On 31 January 2018, Sydney Trains terminated Ms Annovazzi for failing to disclose her pre-existing medical conditions and use of prescription medication on her application form and during medical assessments.
Claim
Ms Annovazzi claimed that Sydney Trains engaged in unlawful discrimination by:
removing her from the trainee train driver program and terminating her employment, contrary to s 15(2) of the DD Act;
requesting her to provide information and records relating to her disabilities, contrary to s 30(2)(a) and s 30(2)(b)(ii) of the DD Act; and
harassment contrary to s 35(2) of the DD Act.
Sydney Trains contended it terminated Ms Annovazzi’s employment and the other conduct complained of, because it considered that Ms Annovazzi had dishonestly failed to disclose medical information in her application form.
Decision
At hearing, the FCFCA granted declarations that:
Sydney Trains had unlawfully discriminated against Ms Annovazzi by dismissing her from her employment, contrary to section 15(2)(c) of the DD Act;
Sydney Trains had unlawfully discriminated against Ms Annovazzi by keeping her out of the trainee drivers course after 9 January 2018; and
when Sydney Trains requested on 20 December 2017 and 23 January 2018 that Ms Annovazzi provide medical information or a briefing from her treating physician regarding her disability, contrary to section 30(2) of the DD Act.
The FCFCA granted declarations and relisted the matter to consider the remedies that Ms Annovazzi sought for reinstatement, compensation and an apology.
Ms Annovazzi’s dismissal
Section 15(2) of the DD Act deems it unlawful for an employer, or person acting or purporting to act on behalf of an employer, to discriminate against an employee on the basis of their disability.
Whether Ms Annovazzi’s dismissal amounted to unlawful discrimination turned on whether it was because of her disabilities. The FCFCA considered whether Sydney Trains would have treated an employee without the disabilities in the circumstances that are not materially different from the circumstances in which Ms Annovazzi was dismissed. The Court held that the appropriate comparator, is an employee without ADHD and Asperger’s Syndrome.
The FCFCA held that by dismissing Ms Annovazzi from her employment purportedly on the ground of dishonesty and failure to disclose, Sydney Trains treated Ms Annovazzi less favourably than it would have treated the comparator. The FCFCA considered that Sydney Trains had served evidence by the person who approved the decision, but was not the sole or principal decision maker to terminate Ms Annovazzi. The Court was not prepared to find that Ms Annovazzi had been dishonest in her pre employment forms or medical assessments. The evidence served by Sydney Trains was not sufficient to demonstrate dishonesty. The Court concluded that Sydney Trains engaged in unlawful discrimination, contrary to s 15(2)(c) of the DD Act.
Other detriment
Under s 15(2)(d) of the DD Act, an employer will have engaged in unlawful discrimination by subjecting the employee to any other detriment because of their disability. Ms Annovazzi claimed that Sydney Trains denied her an appropriate support person at the termination meeting, they removed her from trainee driver course, denied her access to advancement and subjected her to harassment.
Ultimately, the FCFCA held that Sydney Trains did treat Ms Annovazzi less favourably than the comparator by impeding her advancement and removing her from the trainee driver course. However, the Court was not prepared to find that Ms Annovazzi was treated less favourably in relation to being denied an appropriate support person at the termination meeting. The Court held that the comparator would have also been denied this.
The FCFCA determined that requests from Sydney Trains for Ms Annovazzi’s medical records, its refusal to delay a meeting in order to obtain a support person, and threats to call the police or make Ms Annovazzi’s life difficult did not amount to harassment under s 35(2) of the DD Act.
Request for medical information
Section 30(2) of the DD Act makes it unlawful to request or require information in connection with, or for the purposes of, a discriminatory act. This is the case where either a person without the disability would not have been asked to do so in the same scenario, or where the information relates to the disability.
The FCFCA found that Sydney Trains contravened section 30(2) of the DD Act by requesting Ms Annovazzi to provide a medical note or briefing from her treating physician on two occasions, and requesting Ms Annovazzi to provide information that persons who did not have her disabilities would not have been requested to provide in circumstances that are not materially different.
Commentary
This case highlights that an employer may engaged in unlawful discrimination by dismissing an employee and/or subjecting them to other detriment because of the employee’s disability, contrary to the DD Act. This can still occur where an employee’s disability is discovered after the commencement of employment. The decision also provides helpful guidance on considering who is the real decision maker, how a comparator operates, the rules of attribution and what evidence will assist the FCFCA. The issue of accuracy and dishonesty is considered by the FCFCA in the decision.
Authored by Caitilin Watson, Special Counsel, Jacqueline Mendoza, Paralegal and Melanie Najdovski, Paralegal, Wotton + Kearney.