Clarke v South Eastern Sydney Local Health District

Clarke v South Eastern Sydney Local Health District - [2017] NSWCATAD 81 - NSWCATAD 2017 case summary — Zoe

Summary of the Complaint

Ms Clarke made a complaint to the Acting President of the ADB on 29 March 2016 alleging discrimination in employment on a number of grounds against South Eastern Sydney Local Health District (SESLHD).
Ms Clarke's complaint was set out in letters to the ADB between 29 March 2016 and 6 July 2016. In summary, her complaint was:

between 2013 to 2014 she was subjected to racism, victimisation and assaulted whilst employed at Royal Hospital for Women;
between May 2013 to July 2014 she was: 1. subject to race discrimination on the ground of her South African (of Indian descent) race, age, disability and domestic status discrimination, vilification and victimisation; 2. assaulted, bullied and harassed; and 3. denied entitlement of her salary.

In July 2016, the ADB accepted for investigation a complaint relating to Ms Clarke's termination of employment on 5 May 2015 as a complaint of disability discrimination in employment.
Ms Clarke claimed that she had been subject to discrimination on a number of grounds by SESLHD. She said that she had worked at Royal Hospital for Women (RHW) in nursing from 2011. She was initially suspended on full pay from July 2014 until termination of her employment in 2015. The grounds provided to her were that she was "highly incompetent so as to pose a huge safety risk to patient care."
In her complaint, Ms Clarke states that she is not a psychiatric patient. She was forced by the SESLHD to undergo two forensic clinical assessments. She said she has been analysed as any normal healthy human being who has suffered severe injustices at the workplace, who would have experienced a degree of grief. Due to the way she was treated by SESLHD, she suffered intense and immense distress, a depressed mood and anxiety. The process was corrupt and orchestrated to undermine her reputation and it tainted her professionalism.
Ms Clarke stated that in 2015 she was promoted to Assistant Director of Nursing. She was dismissed from her employment on 5 May 2015. She made a claim of unfair dismissal in the Industrial Relations Commission (NSW). SESLHD deposited funds into her account without her knowledge and said she had resigned. Ms Clarke said she did not resign, her employment was terminated.
In support of her allegations, Ms Clarke claimed that during August and September 2014, she was on sick leave due to anxiety and stress caused by the bullying and harassment that had occurred since May 2013. She has medical certificates which establish that she has been injured since August 2014 by SESLHD. In November 2014, in a statement for her workers compensation claim, Ms Clarke provided information regarding the background and events which led her to claim of psychological injury during employment. SESLHD declined her workers compensation claim. She had two forensic clinical psychiatric assessments to determine if her mental health status reflected a psychiatric impairment. Both considered that her accounts of what she had been subjected to in the workplace were not representative of the development of a psychiatric illness.
Ms Clarke claimed that she had suffered considerable loss as a result of the discrimination by SESLHD. This included loss of income and emotional distress.

[11]

49B What constitutes discrimination on the ground of disability (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability: (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

[12]

49D Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of disability: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of disability: (a) in the terms or conditions of employment which the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. (3) Subsections (1) and (2) do not apply to employment: (a) for the purposes of a private household, or (b) where the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5, or (c) by a private educational authority. (4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability: (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer. (5) For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the first mentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.

[18]

Taking the Complaint at its highest

In determining whether to grant leave to Ms Clarke to proceed with her complaint, the Tribunal takes the approach of accepting Ms Clarke's complaint at its highest. The complaint accepted for investigation by the Acting President of the ADB and ultimately declined, was that Ms Clarke had been discriminated against on the ground of disability in the termination of her employment in May 2015. There is no evidence before the Tribunal that Ms Clarke had a disability. Ms Clarke denies that she did. There is no evidence before the Tribunal that Ms Clarke's employer presumed that she had a disability or that her employment was terminated because of this presumed disability. The Tribunal considered the document PD-270 which was the procedure under which Ms Clarke said she was performance assessed. The document contains a definitions section which includes the definition of an "impaired nurse". The procedure was not however expressed to relate only to impaired nurses. The Respondent said it was used in relation to any nursing staff member who had performance deficits.
Accordingly, putting Ms Clarke's complaint at its highest, the material before the Tribunal does not provide evidence of disability or presumed disability as being the reason for her less favourable treatment - being subjected to performance assessment or having her employment terminated.
The Tribunal notes that the documents produced to the Tribunal included performance assessment forms which had been completed in relation to Ms Naicker (Clarke), which pointed to performance deficits. These performance deficits were referred to in the Respondent's letter to Ms Clarke of May 2015, advising that her employment had been terminated.
The Complainant has not put forward a case addressing the elements of a disability discrimination complaint. The Tribunal must be satisfied that it is fair and just in all the circumstances for Ms Clarke's complaint to proceed. In the circumstances, the Tribunal is not satisfied that it is fair and just for Ms Clarke's complaint against the Respondent of disability discrimination in employment to proceed.

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (5)

Cited By (5)