Back to Basics: Discrimination Grievance Principles

The 2017 case of Idea Services v Crozier sets out the relevant principles that the court will look to when ascertaining whether a discrimination claim will be successful.

Ms Crozier was employed as a Community Support Worker (Position). The Position entailed the close supervision and treatment of care recipients (Recipients) which required Ms Crozier to have sufficient physical fitness so as to ensure she could safely restrain Recipients, follow Recipients who absconded, and support them in their physical rehabilitation. Typical Recipients were accepted to be at high risk of acting unpredictably and violently.

It came to Idea Services’ attention that Ms Crozier suffered occasional breathlessness. Consequently, Ms Crozier’s hours were reduced due to Chronic Obstructive Pulmonary Disease (COPD). Communications between Ms Crozier’s doctor and Idea Services took place, as well as a series of meetings in which Idea Services expressed their concerns to Ms Crozier. Other staff members also raised similar issues regarding their concerns about Ms Crozier’s ability to carry out her Position. It was also discovered that Ms Crozier was carrying a mobility parking. A medical report was immediately obtained by the employer which culminated in Idea Services’ decision to terminate Ms Crozier’s employment for medical incapacity.

Ms Crozier’s subsequent personal grievance for unjustified dismissal and discrimination on the basis of disability was successful in the Employment Relations Authority (Authority), but the Employment Court (Court) overturned that decision and, in doing so, produced a crash course for employers looking for a reminder on the basic principles which apply when considering discrimination claims.

Ms Crozier claimed that the decision to dismiss was discriminatory because:

  1. She had not used excessive sick leave and was actually performing her duties.
  2. Idea Services’ reliance on certain criteria in a letter written to Ms Crozier (including the ability to complete walks up to 5km, catch public transport and work on her feet for long periods of time) (criteria) were solely introduced due to Ms Crozier’s medical condition and therefore it was inappropriate to rely solely on the mobility parking permit to terminate her employment.
  3. Other staff were not required to undergo the same medical assessments, or tested for their ability to meet the criteria.
  4. The duties listed in the criteria were not representative of the day to day work of a community support worker.

The Court outlined the relevant principles as follows:

  1. The burden of proving all elements for claim in a discrimination case of this kind lies on the employee.
  2. There must be a causative link between the prohibited ground and the treatment complained of (i.e. whether the prohibited ground was a material ingredient in the decision to treat the employee in the way in which he or she was treated).
  3. Such cases requires a court to compare the position of the claiming employee with that of other employees who are “employed … on work of that description” – the choice of a comparator is often critical.
  4. Section 29 of the Human Rights Act 1993 comes into play only if there is “different treatment based on disability”.

The Court concluded that while Ms Crozier’s COPD met the definition of a disability, Ms Crozier was treated no differently than other staff by having to meet the core requirements of her role as emphasised by her job description. There was no evidence to establish a claim that other workers affected by the same issues would be treated differently. The discovery of the permit was merely a trigger to conduct an extensive inquiry into Ms Crozier’s health and not the actual reason for dismissal.

Furthermore, even if Ms Crozier had been discriminated against, the risk inherent in the role meant that this would have been appropriate under s 29 of the Human Rights Act 1993, where “… the nature of those duties… is such that the person could perform those duties only with a risk of harm to that person or to others… and it is not reasonable to take that risk.”

Each case will turn upon a different set of facts; however this case provides employers with a reminder of the basic principles which apply when they are faced with a discrimination claim.

Workplace Law Team

If you have any queries in respect of the above, or any other workplace law issues, please contact a member of Lane Neave’s Workplace Law Team:

Employment: Andrew Shaw, Fiona McMillan, Gwen DrewittMaria Green,  Hannah Martin,  Alex Beal, Giuliana Petronelli, Ana Fruean, Elise Wilson, Abi Shieh, Sean Kim
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Hetish Lochan, Julia Strickett, Rita Worner, Lavinia ShanksKen Huang, Sally Stone,  Shi Sheng Cai (Shoosh), Josh TempletonMary Zhou, Sarah Kirkwwood, Janeske Schutte, Isaac Huang, Sati Ravichandiren, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew ShawFiona McMillan

Contact

Andrew Shaw
Partner, Lane Neave

t +64 3 353 8014
m +64 29 244 9001
e andrew.shaw@laneneave.co.nz

Fiona McMillan
Partner, Lane Neave

t +64 9 300 6264
m +64 27 351 2000
e fiona.mcmillan@laneneave.co.nz

News and events

Visit our news and events section for more Workplace Law articles.

News and events