Recruitment risk – employer ordered to pay $10,000 in damages to a job candidate for discrimination based on mental illness

In Chalker v Murrays Australia Pty Ltd [2017] NSWCATAD 112, a bus and coach charter company was ordered to pay a job candidate $10,000 compensation for discriminating against him during the recruitment process on the basis of his mental illness.

Facts

Mr Chalker applied for a position as a coach driver with Murrays Australia in September 2015, having previously been employed for over four years for one of Murrays Australia’s subsidiaries.

As part of the application process, Mr Chalker was required to complete an application form, which asked the following question under the heading ‘health’:

Do you suffer from any medical condition, disability or injury that may have an effect on your performance of the duties in the job for which you have applied?

Mr Chalker had been diagnosed with borderline personality disorder, which is a mental illness, in 2014 but answered ‘no’ to the question about his health on the application form.

Following an interview with the operations manager and a driving test, Mr Chalker was sent for a pre employment medical examination. Staff at the medical practice described Mr Chalker as difficult and argumentative. Mr Chalker told the doctor who performed the medical examination that he had been diagnosed with, and was being treated for, borderline personality disorder. Mr Chalker also told the doctor the medications he was taking. In his assessment of Mr Chalker, the doctor reported that he ‘appeared agitated, irritable and was difficult during the interview’ and found him to be temporarily unfit for the position of coach driver pending further inquiries, such as an assessment by an independent psychiatrist.

After receiving the doctor’s report, the operations manager discussed Mr Chalker’s application with Murrays Australia’s chief executive and they decided against hiring Mr Chalker. The operations manager claimed that the temporary unfitness was the decisive factor, but admitted one of the reasons for the decision was Mr Chalker’s dishonesty in failing to disclose his mental illness in the application form or at the interview. The operations manager’s evidence was that the pair agreed that Mr Chalker’s conduct during the medical assessment, as well as his failure to disclose in the application form the prescription medication he was taking, meant that he could not perform the inherent requirements of the coach driver position. The operations manager also stated that the chief executive said words to the effect of ‘there will be problems down the track with him because of his behaviour’.

Decision

The New South Wales Civil and Administrative Tribunal found that Mr Chalker had been discriminated against on the basis of his mental illness. In reaching this conclusion, the Tribunal noted the evidence of the operations manager that he would not have regarded it as dishonest if an applicant with cancer had failed to disclose their cancer diagnosis in the application form or during the interview.

The Tribunal rejected Murrays Australia’s argument that Mr Chalker could not perform the inherent requirements of the position and found that the operations manager and the chief executive decided, on behalf of the company, that Mr Chalker ‘should not be further assessed, as recommended, and should not be offered employment’.

The Tribunal found that the conclusion that Mr Chalker was dishonest for failing to disclose his disability ‘was not justified’, because he had disclosed his disability and medications to the assessing doctor and he had driven a bus without incident since being diagnosed in 2014. The Tribunal found that Mr Chalker’s ‘strong belief that neither the disability nor the medication had any effect on his ability to safely drive a bus’ meant that Mr Chalker answered the question about his health honestly.

Learnings

Mental health awareness at every stage in the employment relationship is essential because discrimination claims can be brought, not just by existing employees, but also by prospective employees. Employers should ensure that any recruitment decision is based on the actual requirements of the role, especially where that decision is made following a pre-employment medical assessment.