Consequences for not accommodating disability totals $30k

by Human Capital02 Aug 2012

Would you advise against taking on an employee with a long-term injury that could put them in danger at work? Building materials company James Hardie found itself embroiled in a lawsuit over this question, and was ultimately fined for disability discrimination.

In findings handed down last month, James Hardie discriminated against a job applicant in Perth by using his physical disability as a reason for refusing to give him the job. The building materials company agreed to pay $30,000 in compensation as well as commit to revamping its workplace policies to improve its compliance in future.

So what went wrong?

According to the FWO, the prospective employee applied for a business development manager role with James Hardie in 2010. He was offered the job, but James Hardie failed to inform him at the time that a condition of the job offer was that he satisfactorily complete a medical assessment.

The job advert hadn’t mentioned any physical requirements of the role and, when the applicant agreed to take the medical assessment and disclosed a long-term shoulder injury, a medical assessor reported that – because of the injury – there were restrictions and injury risks associated with the applicant performing various tasks. These included lifting heavy products and climbing ladders and scaffolding at building sites.   

The candidate didn’t get to see the report, and James Hardie then withdrew its job offer. The rejected applicant lodged an official complaint with the FWO – who investigated the matter and concluded that that physical work was not an inherent part of the business development manager’s position.

Don't jump to conclusions

As it’s against the law to refuse to employ a person on the basis of a physical disability that does not affect the employee’s ability to perform the main tasks associated with the role, the FWO decided that James Hardie breached the anti-discrimination provisions of the Fair Work Act. “It is the agency’s view that this worker was able to perform the main tasks associated with the business development manager position, and that it was clearly open to James Hardie to make minor adjustments to the role to avoid him having to perform physically demanding work,” Fair Work Ombudsman Nicholas Wilson said.

“Employers need to ensure that medical assessments are confined to assessing a worker’s ability to perform tasks that are an inherent part of the position and that, unlike James Hardie, they do not jump to conclusions based on the results without adequate consideration and consultation with the worker,” Wilson added.

As an alternative to litigation, James Hardie has also agreed to enter into an enforceable undertaking, with the following conditions:

  • Apologise to the applicant and pay compensation for the economic loss and the stress, hurt and humiliation it caused him.
  • Donate $10,000 to the AED Legal Centre, established by the Association of Employees with Disability to supports workers with disabilities.
  • Place an advertisement in The Weekend Australian newspaper detailing its breaches and apologising for them.
  • Place anti-discrimination messages on staff notice boards at James Hardie business premises.
  • Develop systems and processes to ensure ongoing compliance with the Fair Work Act.
  • Commission training on anti-discrimination laws for its HR staff and managers with recruitment responsibilities.
  • Establish an ongoing anti-discrimination training program, review its recruitment and discrimination policies, in particular in relation to the use of medical examinations, and report the results of the review to the Fair Work Ombudsman

“Employers who have fair and transparent selection processes for recruitment, promotion, training and other business systems will be well placed to cultivate fair workplaces free of discrimination,” Wilson said.


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