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Disabled workers: have you made 'reasonable adjustments'?

Disabled workers: have you made 'reasonable adjustments'?

21 Feb 2017

Disabled workers: have you made 'reasonable adjustments'?

Disabled workers: have you made 'reasonable adjustments'?

21 Feb 2017

Employers are often surprised to learn the Commonwealth Disability Discrimination Act 1992 (DDA) imposes a positive obligation to make “reasonable adjustments” in a workplace to accommodate an employee’s disability.

An employer will have unlawfully discriminated against a person if they fail to make these reasonable adjustments. 

There is often some confusion about what exactly constitutes a “reasonable adjustment” and disputes in this area often become the subject of proceedings before courts and tribunals.

What is disability discrimination?
In a nutshell, it is unlawful for a person to treat someone less favourably because of an attribute that person has (for example, a disability or an illness), than they would treat a person who did not have that attribute.

In the context of employment, this means an employer cannot terminate someone’s employment, or demote them, or harass them for the reason they have a physical or mental illness or disability. 

An employer must also provide a person with any equipment, or services, or facilities they need to continue to do their job, as long as this would not cause the employer “unjustifiable hardship”.
 
Defences to discrimination
In the context of employment, it is a defence to an allegation of discrimination if an employee is unable to perform the inherent requirements of the role (even where reasonable adjustments have been made to assist that person), or where the provision of reasonable adjustments would cause the employer unjustifiable hardship.

What constitutes an unjustifiable hardship depends on the circumstances of each individual case, such as the size of the employer’s enterprise and the cost and availability of equipment.

So what are reasonable adjustments? Given the central importance of the concept, let’s consider a few recent cases.
 
Dismissed on medical grounds
A parole officer for Corrective Services NSW (Corrective Services) was diagnosed with Crohns Disease and a sleep disorder in about 2011. She had worked with Corrective Services since 2001.

Her duties had been modified after her diagnosis and she was able to work on secondment as an intelligence analyst.

However, when a medical examination and report determined that she should not drive for more than 30 minutes at a time, Corrective Services ultimately dismissed her on medical grounds. The parole officer filed a discrimination application under the DDA.

Corrective Services argued that it had attempted to accommodate the employee, but that no reasonable adjustments could be made to her position due to the inherent requirements of the role.

Judge Nicholls found that Corrective Services had not provided the medical practitioner with a description of the inherent requirements for the role and failed to ask whether any reasonable adjustments could be made. Instead Corrective Services had merely asked whether the employee was “fit” to work as a probation and parole officer.

The medical advice had qualified the driving restriction by saying that the employee could drive longer than 30 minutes if she took breaks during the journey.

Instead of attempting to implement the doctor's advice they relied on their misunderstanding of the medical evidence as a basis for the termination of her employment.

These failures meant the department treated the parole officer less favourably as a result of her disability and breached the DDA. 

She was awarded $75,000 compensation for pain and suffering and breach of contract and additional compensation for loss of wages, leave entitlements, superannuation, medical costs and loss of promotion opportunities totalling $98,863.

Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827 (3 July 2015)

Reasonable adjustments considered
This case considered the reasonable adjustments requirements under the Victorian Equal Opportunity Act 2010, which are similar to the DDA.

Ms Butterworth worked for a not-for-profit disability service provider, Independence Australia Services (IAS) as a customer service officer (CSO). As part of her role, she worked in IAS’ call centre and had previously worked as a CSO in the accounts and enquiries section.

While at work, Ms Butterworth sustained a soft tissue injury to her neck and shoulders which formed the basis of a workers’ compensation claim.

Her doctor recommended she take regular rest breaks from sitting at her desk taking telephone calls. IAS provided her with modified duties and ultimately directed her to attend an independent medical examination.

In its correspondence to the doctor, IAS did not ask whether reasonable adjustments could be made so that Ms Butterworth could continue to perform the role as CSO.

However, in two medical reports, doctors said that Ms Butterworth would be able to return to her role as CSO, as long as she had a higher proportion of administrative work rather than the call centre work, which had been the cause of the injury.

Notwithstanding the doctors’ recommendations, IAS terminated Ms Butterworth because it maintained she was unable to return to her pre injury duties in the call centre.

The Victorian Civil and Administrative Tribunal (VCAT) found that IAS had discriminated against Ms Butterworth when it failed to make the recommended reasonable adjustment to her role. 

VCAT acknowledged the requirement to make reasonable adjustments “is not an obligation to create a perfect working environment for every employee with a disability regardless of the nature and extent of the disability, and regardless of the cost or impact on the workplace or the business.”

However, it did require an employer “to consider what reasonable adjustments the employer can make within the employment”.

VCAT found that IAS could have allowed Ms Butterworth to return to her role and had not considered whether reasonable adjustments would enable Ms Butterworth to perform the whole of the CSO role at IAS.

Ms Butterworth was awarded $3325 for economic loss and $10,000 for compensation for hurt and distress.

Butterworth v Independence Australia Services (Human Rights) [2015] VCAT 2056 (22 December 2015)

Doctor had exam phobia
Mr Sklavos was a medical practitioner who wished to become a dermatologist.

He was admitted as a trainee of the Australasian College of Dermatologists (the College) but received an unsatisfactory performance assessment and was subject to a performance improvement requirement. This caused Mr Sklavos to become anxious and distressed. 

Like all medical practitioners seeking to become dermatologists, he was required to sit clinical examinations but he did not pass them. He was ultimately diagnosed by a psychiatrist with a specific phobia related to sitting the college’s examinations.

Mr Sklavos commenced proceedings and  submitted that the college engaged in disability discrimination, arguing it should have made reasonable adjustment for him by adjusting the clinical assessment to a workplace-based assessment.

The court disagreed and found that the requirement to pass clinical examinations was applied equally to all trainees and was the well established means by which the college could be satisfied that a trainee was competent to practice as a dermatologist.

The court’s view was that any adjustment which involved Mr Sklavos failing to sit examinations in whole or in part would impose unjustifiable hardship on the college as to the conduct of its assessment process. The application was dismissed. 

Sklavos v Australian College of Dermatologists [2016] FCA 179 (2 March 2016)  

As always, if there is any issue within your business that might give rise to a claim, early intervention is the best protection. Feel free to contact us on 1300 565 846 if this raises any questions.

Article written by Michal Roucek and Emily Slaytor for WorkplaceInfo.

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