The Victorian Civil and Administrative Tribunal (VCAT) has found that a confectionery company directly discriminated against a 63 year-old production worker when it dismissed him because of a disability, and has ordered the company to pay him $20,000 compensation for the shock caused by the dismissal.

The worker had been employed by the company for almost 30 years and had previously suffered chronic “tennis elbow” (which had arisen as a result of his employment but had fully resolved at the time of dismissal). Relying upon a medical report that warned the company the condition could flare up if he maintained his regular duties, the company terminated the employee’s employment effective immediately.

However, VCAT member Anna Dea found that the company discriminated against the employee when it failed to consider, or give the employee an opportunity to propose, adjustments that might have enabled him to continue working. Dea stated that it was “an extremely disrespectful way to treat such a long-standing employee and not what the community would regard as fair.”

She ordered the company pay the worker $20,000 for the “shock, disappointment, upset and distress” that resulted as a consequence of the decision to terminate the worker’s employment. Dea also warned that the worker’s claims for economic losses (i.e. lost wages and entitlements) of around $260,000 was consistent with an appropriate award under the Equal Opportunity Act 2010 (Vic) and reflected what the worker would have received if had continued to work until his planned retirement at age 65.

Terminating the employment of an ill or injured worker is a legal minefield for employers and requires careful navigation. An employer must take into account and comply with their obligations variously arising under workers’ compensation laws, anti-discrimination laws, workplace health and safety laws, the Fair Work Act 2009 (Cth) and any industrial instruments, employment contracts, policies and procedures. We recommend that you seek legal advice before making any decision to terminate an ill or injured worker.

If you would like to discuss this case, or for further information, please contact:

Louise Houlihan
Principal
03 9611 0144
lhoulihan@sladen.com.au

Joanna Bandara
Associate
03 9611 0196
jbandara@sladen.com.au