Australia: Medical Assessments and Disability Discrimination

In Hollingdale v North Coast Area Health Service [2006] FMCA 5 (20 January 2006), the Federal Magistrates Court considered a complaint from Ms Hollingdale alleging that she had been subject to less favourable treatment on account of her disabilities, namely, bipolar disorder and keratoconus, which is an eye problem.

Ms Hollingdale had been employed as a clinical psychologist by North Coast Area Health Service ("Area Health"). From about May to July 2001, Ms Hollingdale was observed to be hostile and aggressive towards a number of employees of Area Health. Area Health sought to have her medically assessed to determine whether the behaviours exhibited were a manifestation of a disability (that is, bipolar disorder) or simply inappropriate behaviour. Ms Hollingdale did not co-operate with that process. Ms Hollingdale was subsequently placed into alternative duties as a project officer. She then complained that she could not perform the work on account of her visual disability. Her employment was terminated in 2002 on account of a refusal to return to work.

Federal Magistrate Driver dismissed Ms Hollingdale's complaint of discrimination in its entirety. He held that:

• Ms Hollingdale had not been discriminated against in respect of how Area Health dealt with her alleged inappropriate behaviour between May and August 2001. Federal Magistrate Driver stated "[i]f the hypothetical comparator had engaged in the same behaviours and a medical cause was suspected and the comparator would not co-operate to obtain an assessment and, if necessary, treatment, a suspension would have been the logical consequence".
• Ms Hollingdale had not been discriminated against in relation to her suspension from her substantive position.
• There had been no discrimination in the disciplinary and complaints processes pursued by Area Health leading to Ms Hollingdale performing alternative duties as a project officer and the apparent failure to make adequate provision for her visual disability. Federal Magistrate Driver accepted that disciplinary action was only pursued after medical evidence established that she was fit for duty notwithstanding the bipolar disorder. Therefore, the disciplinary action was not because of the disorder and, in the absence of medical explanation, it was properly a matter of discipline.
• Ms Hollingdale had not been dismissed on a discriminatory ground. Ms Hollingdale was dismissed because of her refusal to attend work. On this point, Federal Magistrate Driver noted that the bipolar condition had not prevented her from working and workers' compensation payments for that disorder had ceased months before and a further claim rejected.

Hollingdale highlights some of the difficulties in managing employees with a mental disability and, in particular, where the disability manifests itself in the workplace by way of antisocial conduct.

This case seems to encapsulate many of the sensitive matters which an employer should to have regard to when dealing with such issues, namely:

• balancing the health and safety concerns of all participants in the workplace ie. the employee, co-workers, clients and visitors;
• distinguishing what is behaviour stemming from a disability from what is simply inappropriate conduct and, therefore, the importance of medical evidence;
• assessing when and where it is not appropriate to pursue a disciplinary process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.