The New South Wales Civil and Administrative Tribunal (NCAT) has awarded $55,000 in compensation to a worker who was discriminated against on the grounds of her disability.
In issue
The New South Wales Civil and Administrative Tribunal considered:
- whether the Respondent discriminated against the Applicant on the grounds of her physical and/or mental disabilities by subjecting her to a detriment in the workplace
- if so, whether the discriminatory treatment was required to comply with the Respondent’s statutory obligations under the Work Health and Safety Act 2011 (NSW) (WHS), and
- if not, what remedies should be ordered.
The background
Ms Donald-Stanton was employed by the Secretary of the Ministry of Health (MOH) in the part-time position of Administrative Support Officer – Aboriginal Health Strategy (Level 6).
Ms Donald-Stanton worked in the role for a year without complaint, before having a new manager assigned to her. Once that new manager was assigned, Ms Donald-Stanton had a meeting with that manager, during which she indicated that she was not comfortable answering telephone calls and sought guidance regarding other aspects of her role. Ms Donald-Stanton did not disclose to MOH that she suffered from any disabilities.
Following the meeting, the manager said that she developed concerns regarding Ms Donald-Stanton’s ability to perform her role and whether that was due to her health, as she:
- had many absences from work
- told MOH she had been hospitalised for a long period
- would seek to work from home due to being unwell, and
- was observed as having physical limitations, including limited use of one of her hands and limited movement of her head, such that she moved her entire upper body rather than her head when turning.
In that context, MOH directed Ms Donald-Stanton to undertake a workstation assessment. During the workstation assessment, Ms Donald-Stanton disclosed to the assessor that she had a physical disability of Klippel Feil Syndrome (the manifestation of which includes a crooked posture, relatively short neck and unusable left hand), as well as a mental disability of anxiety and depression.
Following the workstation assessment, the manager met with a Human Resources Director at MOH to discuss Ms Donald-Stanton. During that meeting, the manager raised performance-related concerns she held in relation to Ms Donald‑Stanton and queried whether those concerns were linked to Ms Donald-Stanton’s disabilities. The manager indicated that she was concerned that MOH was not complying with its work, health and safety obligations to Ms Donald-Stanton in providing a safe work environment. MOH did not commence a formal performance management process and instead decided to offer Ms Donald-Stanton a lower grade (Level 2 or 3) alternative position.
Ms Donald-Stanton refused to accept a lower grade alternative position. Subsequently, MOH required Ms Donald-Stanton to undertake a ‘fitness for duty’ assessment and obtain a medical certificate from her GP to confirm the appropriate requirements and/or adjustments required to support her in the workplace.
Ms Donald-Stanton could not arrange that assessment by her GP due to financial restrictions, so MOH then directed her to attend an Independent Medical Examination (IME). The IME Report found that Ms Donald-Stanton:
- had ‘conditionally’ sufficient physical capacity to undertake her role, other than three restrictions relating to travel, processing of emails and bending, and
- was mentally able to undertake her role, but was sensitive to discussing her physical disability with colleagues.
MOH did not provide Ms Donald-Stanton with a copy of the IME Report, but instead summarised the three physical and one mental restrictions, and sought Ms Donald-Stanton’s response. Despite Ms Donald-Stanton disputing the findings in the IME Report, MOH concluded that because of those restrictions, Ms Donald-Stanton was deemed unfit for work.
Ms Donald-Stanton lodged a complaint of disability discrimination in the Anti-Discrimination Board of New South Wales alleging that she had been subjected to various detriments because of her disability.
That complaint did not resolve in the Anti-Discrimination Board of New South Wales and was referred to NCAT for determination.
The decision at trial
NCAT held that Ms Donald-Stanton was subjected to detriment for the purpose of s 49D(2)(d) of the Anti-Discrimination Act 1977 (NSW) (AD Act) due to the following conduct:
- The requirement that Ms Donald‑Stanton undertake a workstation assessment – because the assessment went beyond a review of her workstation and involved collecting previously undisclosed health information regarding her disabilities.
- The direction that Ms Donald‑Stanton obtain a fitness for duty report – because the report was not prompted by Ms Donald-Stanton requesting any reasonable adjustments, or by the workplace assessment having recommended any specific workplace adjustments as being necessary.
- The direction that Ms Donald‑Stanton attend an IME – because the direction was made in the absence of a genuine reason for a medical assessment, or any medical advice from Ms Donald-Stanton’s treating doctor. Further, the IME process was held to be flawed, given that Ms Donald-Stanton:
- was not given an opportunity to provide the IME doctor with a written response
- was not provided with the IME Report, and
- was not given the opportunity to have the IME Report reviewed by her treating doctor.
- The decision that Ms Donald-Stanton was unfit for duty, and the direction that she take leave – because this denied her the benefits of employment.
NCAT was satisfied that this conduct was a detriment, as it placed Ms Donald-Stanton under an objective and substantive disadvantage which any reasonable person would consider to be a detriment - and is not trivial.
NCAT then considered whether Ms Donald-Stanton was treated differently, in terms of the detrimental conduct, than a comparator of a hypothetical Administration Support Officer (Level 6) who did not have her disabilities, or any medical evidence of a need for reasonable adjustments.
In all four proven detriments, NCAT accepted that the hypothetical comparator would not have been treated in the same manner as Ms Donald-Stanton, and that she was therefore treated less favourably because of her disabilities (noting that the disability only had to be one of the reasons for the conduct).
NCAT considered and dismissed a defence run by MOH, that its conduct was necessary to comply with its obligations under the Work Health and Safety Act 2011 (NSW) and therefore met the exception at section 54 of the AD Act for conduct undertaken in compliance with another Act.
NCAT held that MOH had failed to precisely identify why Ms Donald-Stanton was thought to be ‘unsafe’, what was hazardous or unsafe about her workplace, and therefore what risks to her health and safety it was trying to eliminate in order to justify the detrimental conduct.
Turning to damages, NCAT noted that whilst applicants are not required to provide medical evidence or evidence of pecuniary loss in support of a claim for general damages (see Magar v Khan [2025] FCA 874 at 164), Ms Donald-Stanton had provided unchallenged expert evidence from her treating psychologist regarding the impact of the detrimental conduct, as well as credible oral evidence as to the impacts.
NCAT relevantly stated (at [191]):
NCAT ordered that the Respondent:
- pay the Applicant $55,000 in general damages
- issue a written apology to the Applicant, and
- provide relevant training to executive staff.
Implications for you
This case is a reminder that a paternalistic view that a person with a disability is at increased risk of injury is outdated and may result in findings of discrimination where unrequested and unjustified workplace assessments are implemented.
Furthermore, it provides an updated benchmark for damages awards in disability discrimination matters before NCAT, as it demonstrates the Tribunal’s willingness to award substantial general damages in such matters.
Donald-Stanton v Secretary, Ministry of Health [2026] NSWCATAD 104
