Shifting the burden to reduce disability discrimination

We have told the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability that employers need to take greater responsibility to eliminate disability discrimination from the workplace, with better education and stronger enforcement.

‘Much of the work that our clients do in bringing complaints of discrimination is invisible,’ said Melanie Schleiger, Manager, Equality Law Program.

‘That work is really, really hard and takes a huge amount of energy. It’s up to the person alleging the discrimination to demonstrate that it occurred.’

‘It would be really helpful if there was a shared burden of proof at least, or one that shifts to the employer once the employee establishes a prima facie case.’

In a statement tendered to the commission, we’ve also called for greater powers for human rights commissions so they can issue compliance notices and seek penalties against workplaces that do the wrong thing.

‘Currently, the legal, social and financial penalties for employers who fail to comply with discrimination laws are non-existent, unless a victim of discrimination chooses to complain or take legal action,’ said Melanie.

‘That’s a very heavy burden ... and it doesn’t promote inclusive workplaces.’

Along with Melanie, our former client Peter Olivieri also gave evidence about his experience with discrimination.

Peter was casual concierge for a residential apartment building in the Melbourne CBD when he had a dizzy spell at work.

He needed a pacemaker and took a few weeks off, only to return to find his boss had replaced him and cancelled all his shifts.

You can read more of his story.

‘For the average Joe that goes through this, that doesn’t have a law degree, it’s a total black hole,’ Peter told the commission.

‘I was inclined to just back away.’

We helped Peter receive a settlement from his employer, taking his case to VCAT and arguing he had been discriminated against because of his disability (intermittent symptomatic heart block).

The whole legal process took almost a year.

Improving the system

This was the first time we’ve appeared before the disability royal commission, which was established in April 2019.

It is investigating the experiences of people with disability across all sectors – work, school, hospitals, disability care – to improve outcomes and make recommendations for reform.

Melanie and Peter appeared at what was the 19th public hearing, specifically looking at disability discrimination at work.

Melanie explained that many people were unaware of their legal rights at work, categorising it as a major hurdle.

This was particularly true for those currently employed or being recruited, with more people looking at their rights at the point of termination or leaving a job.

Asked by Commissioner John Ryan about confidentiality, Melanie said there needs to be a shift away from the standard practice of attaching non-disclosure agreements to settlements.

‘The culture among practitioners and conciliators and I think courts and tribunals and commissions is too far in favour of just accepting or promoting confidentiality terms as the norm,’ said Melanie.

‘Much of the work that we do is invisible and much of the work that our clients do in bringing complaints of discrimination is invisible.'

‘It is a real loss for the community not to learn from that experience and improve on our culture and our workplaces by building on the lessons that have been uncovered by those numerous situations.'

‘Not every person who experiences discrimination wants there to be public discussion or discourse … so we do need to be very careful about the solution to that problem.’

During her evidence, Melanie also raised:

• the intersectional experience of discrimination and the need to better identify how clients may be impacted
• the vulnerability of those on lower incomes, given most penalties for employers are related to lost wages making it ‘cheaper to discriminate against some workers than it is against others’
• how short time limits deter people from bringing forward complaints.

Melanie’s evidence and statement is in addition to our original submission to the disability royal commission which was filed in April 2020 and made 26 recommendations.

How Peter got his groove back

This story has a happy ending.

Today, Peter manages the concierge and security for an apartment building in the CBD, having won the tender from the very company that tried to get rid of him.

At 71, he’s fit, healthy and happy.

And keen to tell his story to ensure workers like him don’t suffer the same discrimination he did five years ago.

‘I was a guy who’d had a pacemaker fitted, whose employer had zero understanding of what that meant,’ Peter said.

‘I’m totally convinced my boss thought I’d had a heart attack and thought we’ll just get rid of him, he’s casual.’

Peter had been working at the building for about six months, clocking up about 36 hours a week. Sometimes more.

One night shift, he had a dizzy spell while on patrol. He couldn’t walk. He finished his shift but went to the doctor later who had him wear a heart monitor.

It showed his heart had stopped three times in just 24 hours. He had a heart block which would require a pacemaker.

Peter kept his boss in the loop about the medical visits, his availability (all up he ended up missing about six shifts) and the eventual surgery that would be required.

He also said that post-surgery, he would be back ready for work within a week – something his cardiologist confirmed to his boss.

But when he returned, he was told he had no more hours and he had been replaced.

‘I was both shocked and gutted, I felt it was a really low act,’ said Peter.

‘I was a good worker, I worked extra shifts that they needed covered and everyone liked me.’

‘I lost my job when I didn’t do anything wrong and over a medical issue that was out of my control.’

So started a 12-month legal process, which Peter described as stressful.

Through an advocacy service, Peter launched a General Protections complaint to the Fair Work Commission but the mediation was unsuccessful.

Peter’s employer refused to accept any wrongdoing.

After another failed VCAT conciliation, the advocacy service told Peter they couldn’t help him anymore.

Peter went to a lawyer he knew, but they told him that even if he won a settlement, their legal fees would leave little for him. They – and Peter’s partner – suggested he go to Victoria Legal Aid.

Peter admits to feeling hesitant.

‘There’s a stigma around legal aid, but the team I had – they were sensational,’ he said.

‘I started out thinking it was an unfair dismissal, but it wasn’t until I got to (Victoria) Legal Aid that I found out it was discrimination.’

Another VCAT hearing was scheduled.

‘My barrister was like a dog with a bone and a real go-getter. I felt quite confident.'

‘My employer gave evidence and after that I think they though they weren’t going to win. That’s when they made an offer to settle.’

Reminiscing on what happened to him, Peter thinks more support needs to be given to employers so they know their obligations.

He’d like to see a free hotline for business that can answer simple questions about what a medical issue might mean in practical terms – and answered frankly and quickly.

While Peter landed on his feet, he knows it’s the exception not the norm.

‘No one should have to go through this,’ he said.

‘I’m lucky – the residential building where I worked knew me as the old guy and when I was away, they kept asking where’s the old guy?'

‘One of the owners corporation guys rang me up and said I should apply for the contract for the concierge, no favours given, but just send the documents.'

‘I kind of left it for a while but a friend convinced me to do it and I ended up unofficially being told I’d got the contract the day of my VCAT hearing.’

‘A little bit of support can go a long way.’

More information

Read Melanie Schleiger’s statement

Read more about our Disability Action Plan