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Could a common flu virus equal an impairment!

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 50, 25 February 2004

The Victorian Civil and Administrative Tribunal found that a single mother who was employed in the sales verification department of Australian Cable & Telephony in Melbourne was discriminated against when the company required her to work different rostered shift times because she was absent from work with the flu. VCAT found this was discrimination based on her impairment, being the flu virus.

During the hearing the facts were that over the months of August and September 2002 the worker was absent for a total of 7 days and the medical certificates she produced stated that she was suffering from the flu. The company changed the rosters, without consultation with the employee, on the basis that, in their personal experiences, she was likely to have further absences due to a relapse of the virus.

Shortly after the worker's return to employment she was dismissed on the grounds of poor performance for failing to follow correct procedures in the verification of a particular sale.

The evidence given by the worker was that the shift changes had caused her considerable difficulties because she was forced to change childcare arrangements at very short notice. Accordingly, she argued that the ensuing termination of her employment was discrimination on the grounds of her impairment, her status as a parent or carer and her marital status.

VCAT decided:

• it was satisfied that the employee was terminated solely for the reason of poor performance;

• it was also satisfied that the worker's parental and marital status were not considerations in the termination;

• however, it decided that in altering the worker's shift roster without consultation or reasonable notice to her amounted to discrimination on the basis of her impairment (flu) and was subsequently a breach of the Equal Opportunity Act 1995 - Victoria .

This means that VCAT determined that the worker was treated less favourably than employees absent for legitimate reasons, other than illness. For example, an employee who was absent due to annual leave would not have had their rosters changed.

No orders for compensation were given because there was no financial or emotional loss stemming from the changes of roster. Instead, the company was ordered to apologise and to fix the inconvenience which resulted in her having to alter childcare arrangements at such short notice.

HR Tip

Before making changes to an employee's working arrangements in order to address illness or injuries, obtain proper information (e.g. a medical report) and consult the employee.

Peta Nowacki

Senior Associate

Australian Business Lawyers