Disability discrimination – can reasonable adjustments be made?
The decision of Panazzolo v Don’s Mechanical and Diesel Service Pty Ltd  FedCFamC2G 665 is an important reminder of an employer’s obligation to properly manage workers who have been injured or are disabled.
The Federal Circuit and Family Court of Australia (‘Court’) recently ruled against a South Australian general automotive repair shop for mishandling an employee’s return to work following an injury sustained outside of work.
In this particular instance, a 58-year-old diesel mechanic injured his wrist during a non-work-related incident while walking his dog. He was advised by his surgeon that he would be unable to engage in heavy lifting or loading involving his injured arm for a period of around 3 months following an operation that took place on 21 October 2020. The injury was to his left arm leaving his right dominant hand uninjured. When he tried to return to work with a medical clearance specifying that he could not engage in heavy lifting for three months but could undertake light duties, his employer insisted on a full clearance for all duties.
The Court found the employer’s actions to be in contravention of the Disability Discrimination Act 1992 (Cth) which requires employers to make “reasonable adjustments” where possible so that a person with a disability is able to perform the inherent requirements of the job. In this case, the employer did not consider whether reasonable adjustments could be made and there was no evidence that any adjustments would have caused unjustifiable hardship on the employer. It is also of note that they ignored the advice of a physiotherapist who made a recommendation that the employee could return to work in a restricted manner. Consequently, the employer was ordered to pay the applicant a sum of $44,000 comprising general damages of $10,000, special damages of $30,000 and interest calculated on both damages payments of $4,000. The Court criticised the employer’s actions as “clumsy” and “ill informed”. It was suggested that the employer might not have been aware of their obligations regarding injuries sustained by employees that occur outside of work hours.
It’s important to note that while employers are generally not liable for injuries sustained by employees that occur outside of work, where an injury impacts on an employee’s ability to work, then an employer is obligated to make reasonable adjustments where possible in order for the employee to be able to perform the inherent requirements of their job.
To prevent non-compliance with disability discrimination laws, the following should be considered:
1. Make Reasonable Adjustments:
The primary issue for the employer was the failure to consider reasonable adjustments to accommodate the injured employee. Courts emphasise that adjustments should be considered where these are “reasonable” and flexible, including technological or human support solutions.
2. Medical Assessment
A thorough medical assessment is crucial to establish an employee’s capacity to work and determine if reasonable adjustments are possible.
Employers can require employees to undergo an independent medical assessment to assess the extent and impact of the injury.
3. Consider Medical Advice
It’s vital to consider advice from doctors and other qualified health professionals regarding the extent of the disability to determine whether the employer is able to make reasonable adjustments at the workplace to enable the employee to perform the inherent requirements of the job. If so, this can be incorporated into the employee’s return-to-work plan. In this case, the employer disregarded recommendations from a physiotherapist thereby leading to legal consequences.
4. Ignorance of the Law is Not a Defence
The Court’s ruling made it clear that ignorance of disability discrimination laws is not a valid defence.
Employers must familiarise themselves with their legal obligations.
5. Fair Process
To mitigate legal risks, a fair process should be followed when dealing with employees who may not be able to meet their job requirements due to a disability.
This might include a Show Cause process, which gives the employee the opportunity to respond to concerns prior to a decision being made in relation to their employment
Take Home Points
Employers need to give proper consideration of their obligation to make reasonable and temporary adjustments to its workplace, which is a legal obligation under the Disability Discrimination Act 1992. By understanding legal obligations, considering medical advice, and following proper processes, employers can greatly reduce the risk of encountering legal complications.