In respect to disability based discrimination, RLC’s submission to the Inquiry into Employment Discrimination against Older Australians and Australians with Disability, noted that Commonwealth anti-discrimination law limits the ability of people with disability to exercise legal capacity by providing reactive remedies to disability discrimination.
This does not comprehensively protect people from harassment on the grounds of disability, as it only applies to employment, education and the provision of goods and services. It also places the burden of proof in disability discrimination claims on the individual complainant with a disability.
Further, the comparator test clearly aggravates the burden facing individuals in prosecuting their complaints and we recommend that it is removed. The requirement that courts compare the treatment of a person with a disability with how a person without a disability who displays the same conduct would be treated is complicated and contentious.
In constructing various ‘comparators’ in the case law, the courts have often found that there has been no discrimination because the respondent would have treated the hypothetical person in the same way.
Nicholas* has a physical and mental disability. His physical disability limits the amount of time he can spend seated at a desk on the computer. After being employed for over seven years, there was a restructure in the organisation that resulted in a substantial increase in the amount of time he had to spend seated at a desk on the computer. Nicholas was no longer able to meet his targets and was experiencing harassment from his manager and other employees. The effect of these changes and the harassment led to Nicholas experiencing depression and anxiety. He eventually had to take time off to address his mental health concerns and his employment was then terminated. The reason provided by his employers for the termination was the amount of sick leave he was taking. Difficulty arose in Nicholas’ matter when applying the comparator test, when comparing him to a person without a disability that could not meet his new targets and then had to take time off work. *Not his real name. |
- To read our submission, go here.
