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Excerpt from this article first published in Human Resources Magazine, Issue 146 - 19 February 2008
In Zhang v Blinds Pty Ltd an employer successfully defended a complaint of disability discrimination. The case highlights the benefits of an employer taking reasonable steps to accommodate an injured employee’s medical limitations.
Mr Zhang was employed by Blinds as a full-time Factory Supervisor. At the time he was employed, Mr Zhang was suffering from a back injury caused by his previous employment with another employer. Mr Zhang’s back injury deteriorated further during his employment with Blinds resulting in restrictions being placed on his duties, however, these restrictions did not initially effect Mr Zhang’s ability to perform his supervisor role on a full-time basis.
Ultimately, Mr Zhang’s injury deteriorated to the point where he was often absent from work on account of his injury. As a result of his ongoing absences Blinds met with Mr Zhang to discuss his working arrangements. In that meeting it was agreed that in order for Blinds to be able to accommodate Mr Zhang’s ongoing employment he would need to move to a casual position. Mr Zhang transferred to a casual position, however, he later denied this meeting and agreement, but Blinds was able to produce notes that confirmed the meeting and agreement had been reached.
The employee then made a request to be re-instated to his Factory Supervisor position. Blinds offered Mr Zhang part-time work but told him they could not accommodate him in the role of Factory Supervisor as it was an inherent requirement of that role for Mr Zhang to work on a full-time basis. Following this meeting the employee lodged a disability discrimination claim with the Anti-Discrimination Board.
The Tribunal held that Blinds had acted sensibly and reasonably in finding a means to accommodate the medical restrictions suffered by Mr Zhang. The Tribunal went on to say that Blinds had given every reasonable consideration to meeting the employee’s requirements. As a result the employee failed to substantiate the disability discrimination claim.
In managing an injured worker employers should properly consider the employee’s medical restrictions and make a real and genuine effort to accommodate the injured worker’s ongoing employment where reasonably practicable. In any discrimination or termination claim a Court or Tribunal will scrutinise the evidence to see if the employer did, in fact, make a real and genuine effort to accommodate an injured workers requirements.
Employers should always reduce meetings and agreements with injured workers about their ongoing employment to writing in order to be able to evidence what has been verbally discussed.
Jason Donnelly
Special Counsel
