Lawyer cites ‘adverse action’ concerns

by 07 Aug 2009

The recent changes to the Federal Disability Discrimina tion Act should not be employers’ greatest concern. The impact of the new discrimination law powers of the Fair Work Ombudsman are of more significance, according to Jane Seymour of Justitia Lawyers & Consultants.

Although the changes to the Disability Discrimination Act, which came into effect on 5 August, will affect em ployers, Seymour said the newly introduced right of em ployees to make a discrimination complaint to the Fair Work Ombudsman should cause employers more concern.

“The recent changes to the Federal disability legisla tion do change the detail of the law, but not so significantly that employers can either relax or, on the other hand, have to significantly tighten their practice,” said Seymour.

She said what should be of more concern for em ployers is potential prosecution by the Fair Work Om budsman for taking discriminatory “adverse action” – where employees can make a direct complaint to the Fair Work Ombudsman in relation to disability (and other types of ) discrimination.

“This adds a much greater risk for the employer who puts a foot wrong in the area of disability,” said Seymour. “Employers could face investigation, prosecution and potentially a penalty of up to $33,000 for each breach.”

Since 1 July the Fair Work Ombudsman has been able to start legal proceedings against an employer found to be discriminating against an employee.

The recent changes to the Disability Discrimination Act include the introduction of an explicit obligation to provide “reasonable adjustments” and extending the availability of the “inherent requirements” and “unjusti fiable hardship” defences.

“One of the main changes is that the onus of proof has shifted from the employee to the employer,” said Seymour.

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