A printing company employee has been awarded $100,000 compensation after his boss refused to let him take time off to care for his dying girlfriend.
Appallingly on one occasion his manager even told him to “get rid of her”, referring to his sick partner.
Les Burns, who was sacked by Media Options Group after being accused of serious misconduct, took his case all the way to the Federal Circuit Court of Australia, alleging unlawful discrimination on the basis of sex and disability.
It all started when Mr Burns’ partner Vivian became ill with a rare form of cancer which needed intensive medical treatment over a short period of time, including many rounds of chemotherapy.
As the only person available to care for Vivian, and attend to her needs, including her need to get to multiple appointments, Mr Burns was under a lot of pressure to attend to his work duties.
Mr Burns alleges that since his girlfriend got sick, he was subject to “unfavourable treatment” by his manager Mr Bhaskar Datta and his wife Ms Anjila Datta, who also worked at the company.
For instance, he claimed they provided him with no flexibility to meet Vivian’s needs, which among other things, had an impact on his income.
Mr Burns argued that when viewed in the context of his family and carer responsibility, the conduct of Mr and Ms Datta amounted to discrimination under the Disability Discrimination Act and the Sex Discrimination Act.
These claims were rejected by the company, with Mr and Ms Datta making counter allegations against Mr Burns, including that he made racial comments, physically and verbally abused staff, sexually harassed staff, was violent, engaged in bullying behaviour, consumed alcohol at work and smoked at work.
They argued Mr Burns’ dismissal was justified by his “unacceptable behaviour” and that they had “no choice” but to dismiss him in order to protect other staff.
Justice Nick Nicholls found that those allegations had been fabricated, and noted that Mr Burns had not been counselled about his behaviour.
He did not accept Media Option’s argument that Mr Burns’ dismissal was justified.
He described the evidence given by Mr and Ms Datta as “inconsistent” and “unsatisfactory”, and left “their position exposed as a series of progressive attempts to justify, and explain the dismissal,” while concluding that Mr Burns’ credibility outweighed that of his employers.
In making his judgement, Justice Nicholls said that Media Options together with Mr and Ms Datta had contravened the Disability Discrimination Act and the Sex Discrimination Act, and had treated Mr Burns less favourably because of his need to care for his partner.
He found that Mr Burns has been subjected to detriment when:
- told Mr Burns that he should ‘get rid of’ Vivian and should not stay home to care for her.
- made derogatory comments about Vivian and refused to give Mr Burns time off to care for her
- berated Mr Burns, and abruptly terminated phone calls from him seeking leave to look after Vivian
- demoted Mr Burns when he took time off without approval to care for Vivian
- dismissed Mr Burns for reasons that were fabricated
- pressured Mr Burns to come to work and not to leave until he had finished the tasks allocated to him
- berated Mr Burns for being late to work and also for not being available to work overtime
- Ms Datta called Mr Burns “stupid” and told him she was “sick of [his] problems”, he had cost them money because of Vivian, and that his work should come before Vivian
- Media Options and Mr Datta imposed a requirement on Mr Burns that he take leave at times determined by them
Miles Heffernan, Director of Litigation at employee advocacy firm Discrimination Claims, said the behaviour of the employers in this case was outrageous.
“The role of the primary caregiver is sacrosanct in workplace law,” he said.
“If you’ve got a loved one who needs your care and support, like a defacto partner or a parent, it’s the same as if you were sick yourself.”
In the end, Justice Nicholls ordered that the company and Mr and Ms Datta pay Mr Burns $81,213.46 in damages, and $25,000 for lost income and exacerbation of his pre-existing depressive illness.
Mr Heffernan said the case should be a lesson to all employers.
“The result absolutely reflects what should happen when there is such a clear and overt betrayal of the law, and what’s even more disturbing is that when they were caught out, the employers in this case got into the gutter and tried to distract from their conduct by throwing rocks at a grieving widower.
“Judge Nicholls saw through their charade and said, ‘not on my watch,’” Mr Heffernan said.
If you believe you have suffered sex discrimination or disability discrimination, you may be entitled to compensation. Please contact Discrimination Claims on 1300 853 837 for expert and confidential advice about your options.