Worker discriminated against after being fired during trial period: ERA

Whaikaha, the Ministry of Disabled People, estimates that one quarter of New Zealanders experience some form of disability. Many of these people face barriers and discrimination in employment.

A recent decision of the Employment Relations Authority highlights the potential lack of understanding as to what constitutes a disability and what obligations employers have in this context.

Olivia Farrelly claimed that Advance Office Products unlawfully discriminated against her by firing her because of her stutter. Farrelly started employment with the company in the role of Customer Service/Sales and Officer Support worker on 29 June 2020 following two in-person interviews. She was dismissed on 13 July 2020 purportedly on the basis of a 90-day trial period, but only after issues arose in relation to her communication with customers and staff members over the phone.

The most common causes of workplace discrimination in New Zealand are age, ethnicity, and gender, according to a survey.

During her short period of employment, the company directors had met with Farrelly to raise concerns about her communication abilities, and in particular her ability to clearly state the name of the business when answering telephone calls. They claimed that this had led to customers hanging up and terminating calls early.

Nearly half of working adults in the US, UK, France, and Germany have witnessed or experienced workplace discrimination, according to a study.

Trial period doesn’t preclude discrimination

Whilst the company relied on the trial period provisions of the Employment Relations Act to terminate the employment, the Act does not preclude an employee from challenging their dismissal in the event of discrimination. The evidence in the case was disputed, but the Authority found that Farrelly’s stutter was a material factor in the company’s decision to end her employment, and that it amounted to a “disability” in terms of the unlawful discrimination provisions in the Act.

Advance Office Products argued that if it was found that Farrelly had been discriminated against due to a disability, the exceptions contained in the Act (which incorporates the exceptions in the Human Rights Act as to disability) applied. These exceptions allow for different treatment based on disability where the position is such that the person could perform it satisfactorily only with the aid of special services or facilities, and it is not reasonable to expect the employer to provide those services or facilities.

The Authority found that, whilst there was some slight difficulty in the introductory phase, Farrelly was able to satisfactorily perform the requirements of the position description and employment agreement. There was no reliable evidence of customer expectations not being met. Further, even if the issues were of more significance, there was no real consideration by the employer of what special services or facilities could be provided to support Farrelly in her job. 

In relation to the company’s claim that it would need to remove telephone duties from her position, and this was not practicable given the small size of the business and nature of her role, the Authority held that this would not have been necessary. Despite the employer’s perceptions to the contrary, Farrelly was able to communicate effectively with customers and there was no reliable evidence that her stutter impacted the performance of her actual duties in any real way.

Nearly two-thirds of New Zealand professionals feel their career progression has been limited because of sexual orientation, ethnicity, age, or a disability, a survey found.

No obligation to disclose disability that doesn’t affect job

Finally, the Authority considered whether Farrelly had any obligation to disclose her disability when she was employed. As is often the case, Farrelly had completed an application for employment form which included a question as to whether she had any existing physical and/or health conditions that might affect her ability to perform the job.

Consistent with its finding that Farrelly was in fact capable of undertaking the requirements of the position, the Authority held that she had no obligation to disclose her stutter in response to this question. It found that Farrelly had not been dishonest nor had she misled or misrepresented herself or her physical condition. It was relevant in this respect that she herself did not consider that she had a condition that would affect her ability to perform the position given her previous employment history.

Farrelly was found to have been unjustifiably dismissed and unlawfully discriminated against. She was awarded $17,500 in compensation for humiliation and distress and lost wages of $4,860.

This decision highlights a potential discrepancy between the perception that the directors of Advance Office Products had of Farrelly’s speech impediment, and how this might come across to customers, and the reality. On the facts the Authority found that there was no reliable evidence that any customer had formed an adverse view, and that Farrelly was able to communicate effectively and otherwise perform the requirements of the position.

In this regard, whilst it is understandable that the company would want to protect its brand and reputation, the case could be seen as a positive indicator of customers being more accepting of the differences of others than the employer was prepared to give them credit for. 

Dundas Street is an employment law firm in Wellington.