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Excerpt from this article first published in Human Resources Magazine, Issue 160 - 2 September 2008
In two separate recent decisions it has been held that the employer's concerns about workers compromising health and safety in the future were not enough to justify the employer's decision to demote the employee in the first case and terminate the employee in the second.
In the first case, Tanevski v Fluor Aust Pty Ltd, the Administrative Decisions Tribunal held that Fluor indirectly discriminated against Mr Tanevski in breach of the Anti Discrimination Act 1977 when it demoted him from a supervisor's position because it believed that his poor literacy would compromise the company's health and safety system.
Prior to his demotion, Mr Tanevski, who had migrated from Macedonia in 1967, had worked in rail maintenance for 40 years including 31 years as a supervisor. Fluor took over the rail maintenance contract at the Port Kembla steel works where Mr Tanevski worked. He was employed by Fluor to supervise about 20 workers. At the end of 2006, Fluor demoted Mr Tanevski from supervisor to a position where he assisted another supervisor citing as reasons for doing so safety concerns arising from Mr Tanevski's inability to read and write English. Mr Tanveski suffered stress and anxiety as a result and had not worked since. He claimed Flour had discriminated against him on the basis of his race.
Fluor denied it breached the Anti Discrimination Act and even if it had, the demotion was necessary to comply with its health and safety obligations under the NSW Occupational Health and Safety Act 2000 Fluor claimed that Mr Tanevski's inability to understand written instructions or write reports compromised Fluor's Health, Safety and Environment system. Mr Tanevski had been in the habit of asking for assistance to read correspondence and complete reports. A number of reports were not completed.
The Tribunal agreed that Mr Tanevski had difficulty in reading and completing documents associated with his role as a supervisor. However in holding that Mr Tanevski had been unlawfully indirectly discriminated against when he could not achieve Fluor's literacy requirement, the Tribunal took the following factors into account. Mr Tanveski had worked as a supervisor for 31 years. He was 60 years of age and intended to retire in the next 12 to 15 months. Mr Tanevski had never been involved in any safety incident because of his low level of literacy. He could read straightforward work orders and could compensate for his low level of literacy by using his own judgement or calling for assistance.
Importantly the Tribunal also held that it was not necessary for Fluor to demote Mr Tanevski to comply with its responsibilities under the Occupational Health and Safety Act. Fluor could have trained Mr Tanevski and accommodated his low literacy by providing him with assistance until he retired.
In the second decision, Hanson Construction Materials v William Pepper, a full bench of the NSW Industrial Relations Commission has refused to overturn an earlier Commission finding that Mr Pepper was unfairly dismissed when Hanson refused to transfer him to a position in the control room for occupational health and safety reasons. Hanson maintained that Mr Pepper's medical condition which caused loss of hearing and dizzy spells meant that he was at a greater risk of injuring himself or another person. The Court accepted that Mr Pepper's condition was in remission and there was, therefore, no reason why he could not do the job in the control room.
Mr Pepper had worked at the Shellharbour quarry operated by Hanson for 33 years principally in driving dump trucks and loaders. In 2006, Mr Pepper was diagnosed with Meniere's disease which affected his hearing and caused him to have dizzy spells. Between February 2006 and March 2007, Mr Pepper was involved in 3 separate collisions while driving mobile equipment. Hanson concluded that Mr Pepper had been negligent or inattentive on each occasion.
A medical report commissioned by Hanson concluded that Mr Pepper could perform duties in the control room but it would be unsafe to require him to perform other duties of a control room operator that involved climbing ladders, working at heights, working on the conveyor belt or being near moving machinery. On the strength of the Medical Report, Hanson terminated Mr Pepper. Medical reports obtained by Mr Pepper said that his condition was in remission.
At first instance Commissioner Macdonald found that Mr Pepper was at no greater risk of suffering an injury because of his disease which was in remission. He also noted that safety measures in place at the quarry and the availability of another employee to assist him from time to time reduced the risk of Mr Pepper being injured. Mr Pepper had previously worked in the control room for 3 to 6 months without incident. In refusing the appeal against the decision at first instance the full bench noted that Mr Pepper had been guilty of inattention on three occasions that resulted in the three collisions in which he was involved. There was no evidence of his inattention when working in the control room previously.
Employers should think carefully when making assumptions about an employee's ability to perform his or her duties safely. Any decision must be soundly based on reliable evidence.
A decision of an employer based on an employee's disability, or other characteristic such as race or age, may be to the detriment of the employee. To avoid a successful unlawful discrimination or unfair dismissal claim it is necessary for the employer to show that the characteristic prevented the employee from performing the inherent requirements of his or her job safely (or another job that the employer had available) and, further, that the employer could not practicably accommodate the employee's characteristic by modifying the job or making some other arrangement.
Gordon Jervis
Senior Associate
