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Hand down pants case: worker loses appeal

The man claimed he’d been discriminated against because of an impairment.
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Hand down pants case: worker loses appeal

Hand down pants case: worker loses appeal

24 May 2021

By Gaby Grammeno

A court has dismissed the appeal of a worker who said he was ‘scratching, not masturbating’ when he was sacked after being seen on CCTV with his hand down the front of his shorts. The man claimed he’d been discriminated against because of an impairment – an itchy rash, but an industrial relations commission had dismissed his application.

CCTV images lost him his job

The worker, employed in a Townsville warehouse, was observed on CCTV by Sydney staff members who reported in October 2018 that they saw him put his hand down the front of his shorts and appear to masturbate.

He denied it, saying he had a skin condition which caused him to unconsciously scratch the itchy rash between his belly button and pubic bone area. His employer claimed he’d assaulted the warehouse manager in the course of the discussion.

His employment was then terminated, primarily on the basis of his assault on the warehouse manager, together with the ‘masturbatory act’ and for his general poor work performance.

His discrimination claim was heard in the Queensland Industrial Relations Commission, but it found the worker had failed to establish he had an impairment within the meaning of the legislation. This conclusion was fatal to his complaint of discrimination, and his complaint was therefore dismissed.

He worker then appealed the Commission’s decision, and the case moved to the Industrial Court of Queensland.

The Industrial Court’s rejection of his appeal

The worker argued that the Industrial Commissioner had been wrong in finding that he was not suffering from the itchy rash on the day of the incident. In making this finding, she’d relied on a pre-employment medical assessment.

The pre-employment check had taken place three months before the incident, when the man applied for the position. It included a questionnaire in which the worker said he did not have any skin conditions, and a physical assessment in which the doctor saw no irregularities on his skin other than moles and freckles.

The Court did not accept the validity of the finding that there was no evidence he had an itchy rash on the day of the incident witnessed on the CCTV.

The other element of the Industrial Commissioner’s decision was its finding that the rash was not an ‘impairment’ for the purposes of the Anti-Discrimination Act 1991. The question was whether the rash was ‘a disorder … that results in disturbing behaviour’ such as unconsciously scratching his bare skin with his clothing partly removed.

The worker’s doctor gave evidence that the rash would be itchy, but no evidence that the scratching was involuntary or unconsciously done. The worker’s former wife of 20 years confirmed in her evidence that he had a skin condition but said he’d usually scratch on the outside of his clothing, and if more aggressive scratching was required, he’d retreat to a bathroom or a private area.

The Court concluded from this that the worker was able to exercise control over when and how he’d scratch, and the rash did not result in ‘disturbing behaviour’. The Industrial Commissioner had therefore been correct in holding that the worker had not proved an impairment.

The worker’s claim had rightly failed in the Industrial Relations Commission, so his appeal should also fail.

The court dismissed the appeal. It also decided that his employer should not have the benefit of a costs order, because it had not properly participated in the appeal, ignoring the court’s directions then filing an unhelpful written submission at the last minute and seeking to make oral submissions.

The bottom line: To be considered an impairment under the Anti-Discrimination Act, a disorder would have to result in ‘disturbing behaviour’.

Read the judgment

EY v The Store [2021] ICQ 6 (16 April 2021)

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