News
Dyslexia Rules, KO?
Over the last few decades there has been a significant increase in the awareness of the needs and rights of disabled people in society.
At one level, the ordinary person's awareness of these issues has been brought home by such simple things as the presence of wheelchair access ramps to public buildings. In this regard, what was once seen as unusual is now regarded as ordinary.
On another level, questions of disability continue (at least on occasions) to raise difficult legal questions. For example, last year saw the case of Casey Martin receive considerable international media attention. Casey is a professional golfer with a disability affecting his ability to walk. Considerable media attention focused on a case challenging his ability to participate in a professional golfing tour with the use of an electric cart. (For the record, the Supreme Court of the United States held that Casey was allowed to use the cart.)
In New Zealand, most employers will be well aware of the obligations they owe to take account of the rights of disabled people. They will also be aware of the sanctions that they may suffer if they discriminate against disabled employees. As a recent case illustrates, however, there are still some difficult questions in this area of the law.
The applicant in Ross v Waimakariri District Council (unreported, Employment Relations Authority, Christchurch, 2 August 2002) was employed in October 2000 as an Asset Engineer. A requirement of this position was a qualification in engineering. In his application for employment, Mr Ross stated that he held an appropriate certificate in engineering.
Part of the application for employment required Mr Ross to disclose any condition that might affect his ability to do his job - with examples given including asthma, diabetes and colour blindness. He was also asked to disclose any medical condition which might be aggravated by his job. In response to the first question, Mr Ross disclosed that he suffered from asthma.
Although it is not entirely clear from the decision, it appears that Mr Ross worked to his employer's satisfaction for over a year before problems arose. Some time in the early part of 2002, however, two issues were raised.
First, the employer raised a question as to whether Mr Ross actually held the engineering qualification that he claimed. Secondly, it appears that about this time it was revealed to the employer that Mr Ross suffered from dyslexia. It seems that the employer had some serious concerns about this revelation, and questioned whether Mr Ross should have disclosed this fact in his application for employment.
As to the first concern, the employer required Mr Ross to produce some evidence of his engineering qualification. He had some difficulty in doing so for a number of different reasons - including the need to address some inaccuracies in the records held by the qualifying authority, and also because of some restructuring within the relevant organisation. As a result, Mr Ross was delayed in producing evidence of his qualification - which was viewed by the employer with some suspicion.
Ultimately, the employer informed Mr Ross that it had grounds to suspect that he had seriously misrepresented his qualifications - and also believed that he should have disclosed the existence of his dyslexia as a health condition. Although some dispute existed as to the exact circumstances, Mr Ross was suspended from his employment, and was subsequently dismissed. Mr Ross alleged that his dismissal had been unjustified, that he had been disadvantaged in his employment (including by being suspended from his job) and that his employer had discriminated against him.
One of the interesting aspects of the decision is the view reached by the Authority about the employer's attitude to Mr Ross' dyslexia. Mr Ross said that, having become aware of the existence of his condition, the employer had asked him to perform a number of tasks - including reading reports out loud, and rewriting them on numerous occasions. The Authority speculated that, perhaps as a result of these "tests", the employer reached an inexpert and limited view that Mr Ross' condition affected his ability to do his job.
There is no indication in the decision that either party sought to support their case at hearing by calling expert medical evidence about dyslexia. However, the Authority took it upon itself to do so. It arranged for Mr Ross to be examined by a medical expert, and then received a report from her. The report informed the Authority that dyslexia is a learning disability that would be unlikely to affect Mr Ross' ability to perform his work, and which most people would not regard as a health condition.
In the event, the Authority concluded that Mr Ross had not misrepresented his qualifications, and that he had not acted unreasonably in failing to list dyslexia as a health condition (or as a condition which might be aggravated by his job). It found that the employer had suspended Mr Ross in an unfair manner and that he had been dismissed unfairly. The Authority ordered Mr Ross to be reinstated (although it noted that he had been reinstated to his job on an interim basis - and that the arrangement had worked well) - and also ordered the employer to pay almost $4,000.00 in lost wages and $10,000.00 for the distress that it had caused Mr Ross.
This is a case where an employee did not misrepresent his ability to perform a job - despite suffering from a disability. It may be that the employer reached an uninformed conclusion about the possible effect of dyslexia upon the employee's ability to work - and that this not only caused it to treat him unfairly, but also coloured its attitude towards him about the other matter of concern (the production of a certificate of qualification).
