Split shift discriminated against epileptic nurse

Magistrate awards $15,000 compensation

A manager unlawfully discriminated against an epileptic nurse by requiring him to work a split shift – despite his complaint that it would make him too tired and worsen his illness, the Federal Magistrates Court has found.

Federal Magistrate Matthew Smith found that management at Manly Hospital required the nurse to work a roster he could not comply with because of his illness, in breach of the federal Disability Discrimination Act.

Mr Smith ordered Northern Sydney Central Coast Area Health Service to pay $15,000 compensation to the nurse.

Mr Smith said the nurse suffered at least two acute episodes of epileptic seizure and ill health during his employment, between 2002 and 2004.

Mr Smith said the nurse’s employer apparently made no attempt to ensure that all his managers were made aware of his condition ‘and of the possibility that they might need to accommodate its reasonable requirements.’ Despite this, Mr Smith found that the manager in question was aware of the nurse’s epilepsy.

The nurse complained that the manager required him to work a week’s roster involving a day shift ‘sandwiched in the middle of two
10-hour night duties’.

He told the court that he asked the manager to remove him from the day shift because of his illness. She agreed, he said, and he then altered the daily nursing diary himself to put himself on a night shift instead.

However, he later found a note from the manager stating that he would have to work the day shift.

The nurse claimed the manager’s action prompted him to resign and caused an epileptic seizure, which contributed to a long period of incapacity for work.

Mr Smith said that at the time he was required to work a split shift, the nurse was taking new anti-convulsant medicine that led to extreme tiredness, difficulty sleeping and susceptibility to seizures.

The split-shift roster would have seriously disadvantaged the nurse by aggravating his tiredness and sleep deprivation, Mr Smith found.

Mr Smith said the nurse, who represented himself in court, had not sought an order for reinstatement and had not produced evidence of any financial loss or damage as a result of his employer’s unlawful conduct.

Magistrate Smith accepted that the conduct by management ‘produced highly distressing paranoid thoughts at the time, and caused him to believe that his employer wished to undermine his health and force his retirement from nursing’.

Mr Smith awarded $15,000 compensation for ‘intangible injury to feelings and personal distress, occasioned by conduct which Parliament has declared unlawful’.