A HIV-positive man says he was discriminated against on the grounds of disability, because the South Australian Parole Board required him to tell prospective employers about his condition.
The Employment Tribunal rejected his argument that the role of the Parole Board was to help parolees to reintegrate into the community, saying that it’s primary purpose was to protect community safety.
In 2011, 51 year-old Stuart McDonald was sentenced to almost eight years in prison after he was found guilty of endangering the lives of two men by having unprotected sex without disclosing he was HIV-positive.
When Mr McDonald was released on parole in 2015, a condition of his release was that he not enter licensed premises.
In July 2016, McDonald asked the parole board to vary the conditions of his parole so he could work as a chef.
The Parole Board agreed, but required Mr McDonald to “disclose to any potential or actual employers your medical history”.
He argued that this was “discrimination on the grounds of disability”.
After being told the Parole Board did not fall under the scope of the Equal Opportunities Commission, Mr McDonald took his complaint to the Employment Tribunal.
This week, the Tribunal dismissed the claim, with Deputy President Leonie Farrell telling him that the Parole Board’s “paramount consideration” was the community’s safety.
“If some benefit incidentally flows to a parolee that cannot be regarded as a service,” she said.
“The Parole Board’s decision was provided after it was advised by an appropriately qualified medical officer that there was no relevant public health concern, or risk of transmitting HIV through McDonald’s employment as a chef.”
What the law says
In South Australia, people with HIV are not required to disclose their condition to employers unless they are working in some healthcare positions.
But they are required to take “reasonable steps and precautions” to prevent transmission of the disease.
Industrial advocate James Vercoe from Discrimination Claims said in Queensland the Anti-Discrimination Act made it unlawful to discriminate against someone based on an impairment or disability, including their HIV status.
“It is unlawful to treat someone with HIV less favourably than someone who is not, when they are in work or looking for work,” he said.
“In this case, it was not discrimination for the Parole Board to require Mr McDonald to disclose his HIV status, but if a prospective employer subsequently didn’t hire him because of his condition, then he may well have a well-founded case.”
James Vercoe is one of our specialist team at Discrimination Claims who can help people who have experienced discrimination based on an impairment or disability.
If you have experienced discrimination on the basis of an impairment or disability, you may be entitled to compensation.
For help and advice, please call our specialist team at Discrimination Claims on
1300 853 837
For the latest workplace news, please follow us on: