GP said he suffered injury, wanted virtual consultations instead
The Federal Court of Australia recently dealt with an employee’s disability discrimination claim after his employer turned down his requests to work from home.
The employee is a general practitioner (GP) who provided medical services from Our Medical Home Williams Landing, which Wycombe Services Pty Ltd operates with Cornerstone Health Pty Ltd. The employer is a medical services provider which operates medical clinics across Australia.
In 2020, the GP developed discomfort in his left ankle, which reportedly “limited his ability to walk and bear weight on it.”
Around April of that year, the GP informed the employer by email of the ankle issue and requested to work remotely from home providing telehealth consultations, a recently expanded service by the Department of Health and Aged Care in response to the COVID-19 pandemic.
The GP’s request was rejected, but he tried again. The subsequent proposal was also rejected.
He first complained of unlawful discrimination to the Australian Human Rights Commission, but his claim was dismissed. He said he had suffered direct and indirect discrimination in the workplace.
He then filed before the Federal Court of Australia, arguing that the employer discriminated against him by “denying or limiting access to a benefit associated with employment, being the ability to consult with patients remotely from his home during his temporary disability.”
He claimed substantial damages for economic loss, hurt and humiliation.
Meanwhile, the employer accepted the ankle issue as a disability but denied unlawful discrimination. It also filed damages against the GP for breach of the practitioner services agreement he signed with the clinic.
The employer also presented an email it sent to the GP regarding his request, which said:
“The option of remote control from home is not preferable as this may compromise our IT Integrity… The option of relocating to a consult room closer to the treatment room can be arranged.”
The GP cited the disability law and accused the clinic committed discrimination against him: “by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or “by subjecting the employee to any other detriment.”
He said that by denying his requests to be permitted to work from home, the employer “failed to make reasonable adjustments in that he was required to attend the practice to provide his contracted medical services to patients.”
HRD previously reported on the case of a working mother who asked for “flexible work” to meet her responsibilities. The employer denied the requests, arguing it would encounter “operational difficulty.”
The FWC discussed the essential distinction between two forms of discrimination, namely “direct” or “disparate treatment” discrimination and “indirect” or “adverse impact” discrimination.
“Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race),” the commission explained.
“On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers,” it said.
“Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable,” it added.
The GP said the employer “could have facilitated him to work from home, consulting patients via Telehealth Services without incurring significant effort or cost and thereby imposing little or no hardship on the company.”
In its decision, the court said that the GP’s position was wrong when he said that his employer “breached” their contract by failing to accommodate his requests.
“The employer was not contractually obliged to grant the requests for remote access,” the court decided.
“[What the] agreement required [was for the GP] to attend the practice and to provide the medical services personally to patients,” it added.
Thus, the court dismissed the GP’s disability discrimination claim.
