Prospective employee permitted to pursue discrimination claim

A renowned bus transport company has failed to have a discrimination application dismissed for lacking in substance in the NSW Civil and Administrative Tribunal.  The Administrative and Equal Opportunity Division of NSWCAT heard that the transport company had elected not to employ the Complainant following the Complainant undertaking a medical assessment.

The Complainant had applied for a position as a bus driver with the company.  As part of the selection process he was asked to undertake a medical assessment.  Subsequent to that assessment the Complainant was advised that he was not successful in his application.

The Complainant alleges that one of the reasons for the rejected application was that the transport company had perceived that the Complainant had a disability. During the hearing, the Complainant identified that his complaint was discrimination on the grounds of a perceived disability (borderline personality disorder).

In the decision, Deputy President Hennessy noted that a prospective employer will breach the Anti-Discrimination Act if he or she decides not to offer a person employment on the ground of disability and none of the exceptions is established.

The transport company submitted that the Complainant had not filed enough evidence to establish a ‘prima facie case of discrimination’. However, Deputy President Hennessy said that at this point in proceedings the Complainant did not have to establish a prima facie case, stating:

“In my view, there is not a high degree of certainty that the complaint will not succeed. He was refused employment following a medical assessment. [The Complainant] may or may not be able to prove that disability was one of the reasons for that refusal, but he has a reasonably arguable case.”

Lessons for Employers

It will be interesting to follow the progress of this case and how the evidence that unfolds.  Whilst the outcome of the substantive decision remains undecided, the case does serve as a warning to employers conducting pre-employment medical assessments.  Where a pre-employment medical is conducted, and it reveals a potential discriminatory attribute, then great care needs to be taken in making decisions in relation to an offer of employment not being made to that prospective employee.

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