Employer discriminated against chartered accountant who contracted TB9 February 2017 | Employer's Liability
A chartered accounted who contracted TB has successfully established that her employer discriminated against her because of her illness by pressuring her to resign and treating her differently because of this. As a result, her employer has been ordered to pay her almost $46,000 as compensation for her damages.
Whether an employer discriminated against an employee on the grounds of illness
Ms Choi was employed by Deloitte in September 2011 as a manager in its Assurance and Advisory Practice. She performed well in her position, was awarded a wage increase and obtained favourable performance reviews.
In July 2012, Ms Choi acquired TB, which she then disclosed to Deloitte. The medical certificate that she provided indicated that it did not pose a risk to others so long as it was treated properly and that she should be in a position to return to work in early January 2013. In another medical certificate, Ms Choi’s doctor stated that she had no objections to Ms Choi returning to work when she felt able to do so. It noted that depending on how Ms Choi was feeling that she may need some time off for medical reviews in the following 6 months and may also need to perform reduced duties.
Ms Choi claimed that after she notified her employer of her medical condition she was discriminated against by various partners and employees on the grounds of her disability who pressured her to take a period of unpaid leave, unfairly performance managed her, pressured her to resign and bullied her.
In November 2002, while Ms Choi was in hospital, she received a call from Deloitte’s HR department, suggesting three options, namely:
- to take unpaid leave;
- work part-time; or
Shortly after this call Ms Choi sent an email to her superior at Deloitte in which she recorded what was put to her during this discussion. At the hearing of the matter, Deloitte argued that a fourth option was put to Ms Choi, namely that she could return to her usual full-time position provided that she produced a medical clearance. However, Deloitte was unable to produce any documentary evidence of this. Given that it had also failed to respond to Ms Choi’s email to correct her about this detail, the tribunal considered that Deloitte had not presented this fourth option to her.
The tribunal noted that the part-time option that had been presented to Ms Choi had not been fleshed out in any way. Given that before her illness, Ms Choi’s work regularly involved travel up to 60 hours per week, the tribunal doubted that the part-time option was genuine. It therefore found that Deloitte had presented Ms Choi with just two options, namely to take unpaid leave because of her medical condition, or to resign.
In a subsequent discussion between Ms Choi and her superior, she was informed that resignation was not necessarily Deloitte’s preferred option and that it was up to her to choose which option she wanted to take. However, at the time, Deloitte did not make it clear that she could return to work on a full-time basis.
After returning to work in early January 2013, Ms Choi met with her superior who suggested that she should resign. Subsequently, management made her feel unwelcome in various ways, including by allocating demeaning tasks to her, not inviting her to a particular training course, unfairly criticising her performance and conducting an unfair performance management process.
Ms Choi complained to Deloitte’s HR section about management wanting her to leave. HR’s response was that her sickness was “bad for business” and that given the nature of her illness, she should seriously consider one of the three options had previously been presented to her.
In subsequent emails that Ms Choi sent to her superiors she recorded events relating to her superiors “wanting her out” and complained that she felt that she was being bullied. Deloitte failed to respond to those emails or to refute her allegations and also failed to investigate her bullying allegations. This further weakened its ability to counter Ms Choi’s claims about these matters when she produced these e-mails at the hearing of her matter in support of her allegations.
Deloitte also presented two separation packages to Ms Choi to consider (the second one being double that in the first one), both of which she rejected. Ms Choi then went on sick leave and was admitted to a psychiatric hospital.
The Decision at Trial
The tribunal noted that there was a perception by Deloitte’s management that Ms Choi had an infectious disease. This was supported by a drawing on a whiteboard that had been put up for a couple of weeks showing that Ms Choi had been “quarantined”. Deloitte failed to check with Ms Choi’s doctors or anyone with medical knowledge whether or not her form of TB was infectious and never sought additional medical evidence about this until after the events giving rise to the proceedings took place.
The tribunal considered that the likely motivation for the treatment received by Ms Choi was fear of infection. It found that Deloitte had discriminated against Ms Choi as alleged in that it had:
- coerced her to take a period of unpaid leave;
- unfairly performance managed her; and
- pressured her to accept a separation package and to resign.
The tribunal therefore found that Deloitte discriminated against Ms Choi because of her TB, in breach of the provisions of the Anti-Discrimination Act 1977 (NSW).
As a result, the tribunal awarded Ms Choi compensation totalling almost $46,000. This included $14,307.69 for the period during which she was forced to take unpaid leave, $21,621.64 in respect of her lost earnings up until the time that she was able to find other employment, and $10,000 for pain and suffering.
Implications for you
This decision demonstrates the importance of employers properly responding to information received about employees’ illnesses and properly balancing their obligations to accommodate an employee with an illness against any OHS risk that they may perceive to exist. Importantly, employers should not take any action without medical evidence to inform their decisions.
Despite Deloitte being a sophisticated multinational organisation, it was unable to produce adequate evidence to defend itself against these allegations. On the other hand, Ms Choi was able to produce contemporaneous file notes and e-mails which tended to support her version of events. Where there was a conflict between Deloitte’s version of events and that of Ms Choi, the tribunal preferred her version, which was supported by that evidence.
In all instances, employers should respond to any communications which may not correctly reflect the facts and keep files notes and records of all discussions and communications with employees who could potentially pursue discrimination claims. Failure to do so will merely place them at a disadvantage when seeking to defend these claims.
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