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Hand down his pants: no discrimination case

He claimed that his was discriminated against because of an impairment.
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Hand down his pants: no discrimination case

Hand down his pants: no discrimination case

5 February 2021

A worker who was sacked after he was seen engaging in what appeared to be an indecent act in the workplace has had his discrimination case thrown out by a commission. He claimed that in dismissing him, his employer had discriminated against him because of an impairment, namely an itch he was scratching down the front of his shorts.


The complaint

The worker was employed by an online battery business, as the only employee permanently situated at a warehouse in Townsville. The use of CCTV cameras enabled company staff in its Sydney premises to monitor activity the warehouse.

In early October 2018, the worker was observed on CCTV by Sydney staff members who reported that they saw him put his hand down the front of his shorts and appear to masturbate.

When he was confronted with the CCTV images a few days later by company managers, he denied that he was masturbating and said that while he did have his hand down the front of his shorts, it was because he had a skin condition which caused him to unconsciously scratch the itchy rash between his belly button and pubic bone area.

In the course of this discussion, the worker reportedly assaulted the warehouse manager.

Following this, the company terminated the worker’s employment primarily on the basis of his assault on the warehouse manager, together with the ‘masturbatory act’ and for his general poor work performance.

The worker then claimed that his employer discriminated against him when it sacked him for scratching his rash.

The case was heard in the Queensland Industrial Relations Commission.


In the Commission

The worker relied on evidence from his ex-wife and his GP as to the genuineness of the rash and the long-term itchiness and need to scratch arising from the skin irritation. He said his impairment was his tendency to start scratching automatically, without being fully conscious of what he was doing.

His employer’s evidence relied on a pre-employment medical examination including a questionnaire completed by the worker in which he affirmed that he did not have any skin conditions including skin diseases (eg psoriasis, dermatitis, eczema) when he applied for the position in July 2018.

Another element of the pre-employment was a physical assessment, which suggested that the rash was not present at the time of the examination.

The commissioner accepted that the worker had a history of a rash on his lower abdomen but noted that the evidence did not meet the requisite standard of proof to establish that he was suffering from the rash at the time of the supposed indecent act.

Considering the respective claims in the context of the meaning of ‘discrimination on the basis of an impairment or attribute’ under the relevant legislation – Queensland’s Anti-Discrimination Act 1991 – the Commissioner was not persuaded that the worker’s skin condition gave rise to his claimed impairment, because he was evidently able to exercise some control over his urge to scratch.

Moreover, there was no evidence that the rash affected the worker’s thought process, perception of reality, emotions or judgment or that it resulted in disturbing behaviour to the extent that it fell within the definition of impairment under the Act.

The commissioner was not satisfied that the worker had been treated less favourably than a comparable person without the attribute (itchiness) would have been treated.

Screen shot stills of the CCTV video footage tendered as evidence showed the worker in a public area of the warehouse with his shorts pulled down exposing the top of his thigh, with his left arm down his shorts, up to approximately half-way down his forearm, with his hand appearing to be lower than his abdominal wall, while looking at a mobile phone in his right hand.

The commission found that the worker had failed to establish that he had an impairment within the meaning of the legislation. This conclusion was fatal to his complaint of discrimination.

The commissioner therefore dismissed his complaint.

The bottom line: Employers can expect standards of workplace conduct to be complied with, and that such codes must also be seen to be complied with.


Read the judgment

Whipps v The Battery Store Australia Pty Ltd [2021] QIRC 016 (15 January 2010)

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