Opinion: 'Reasonable Adjustments' – A key element in avoiding workplace discrimination

by External11 Mar 2016
A recent decision of the Federal Circuit Court has drawn attention to employers’ legal requirements under discrimination law when dealing with sick or injured employees, writes Amber Chandler.
 
In Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827, Judge Nicholls of the Federal Circuit Court found the employer breached the Cth Disability Discrimination Act in dismissing Huntley from employment on medical grounds by failing to consider the inherent requirements of the disabled employee’s role and what reasonable adjustments could be made to accommodate the disability.
 
In considering termination of employment of sick or injured employees, employers must be particularly mindful of both the federal and state anti-discrimination legislation, which prohibits direct or indirect discrimination on the grounds of disability in the workplace, including in dismissing an employee.
 
The legislation provides a defence for an employer that may be raised in circumstances where the employee is, because of their disability, “unable to carry out the inherent requirements of the particular work even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person”.
 
The defence contains a two-fold test: the first being that the employee is unable to carry out the inherent requirements of their role, and the second being that reasonable adjustments cannot be made by the employer to assist the employee in meeting the inherent requirements.
 
In the case before the Federal Circuit Court, Huntley, a probation and parole officer who had been employed since 2001, had subsequently developed Crohn’s Disease in 2009 and a condition called Idiopathic Hypersomnolance in 2011. One of her medical restrictions included that she could not drive for more than 30 minutes. Her duties were informally adjusted by the employer, but in 2011 her employer ended her secondment within a departmental group because she could not travel longer than 30 minutes, forcing her to take leave. They also advised her that her employment was to be terminated on medical grounds.
 
Huntley filed a discrimination application in the federal jurisdiction. The employer defended the application and argued it had attempted to reasonably accommodate Huntley, but was not obliged to put reasonable adjustments in place because she could not meet the inherent requirements of her substantive role.
 
Judge Nicholls found that the HR manager had relied upon factually incorrect reasoning as the basis for termination of employment, by misinterpreting the medical practitioner’s advice. Huntley’s doctor had in fact qualified the restriction by stating she could take trips longer than 30 minutes if she could plan for breaks during the journey. His Honour was unable to identify any evidence that any of the managers had considered the inherent requirements of Huntley’s role and any reasonable adjustments that could be made to allow her to continue performing that role.
 
As a result, His Honour held these failures meant the employer treated Huntley less favourably as a result of her disability and breached the Cth Disability Discrimination Act, the employment contract and the employer’s own workplace policies. He ordered her leave entitlements be re-credited, and the employer to pay $75,000 in compensation for loss and damages and breach of contract and a further amount of $98,863 plus interest for loss of wages and other entitlements.
 
Another case in a State jurisdiction has also drawn attention to the “reasonable adjustments” requirement under the Victorian Equal Opportunity Act 2010. In Butterworth v Independence Australia Services (Human Rights) [2015] VCAT 2056, the Victorian Civil and Administrative Tribunal awarded $13,000 to a customer service officer of a not-for-profit disability service whose employer did not make reasonable adjustments to accommodate a workplace neck and shoulder injury and then terminated her employment on medical grounds.
 
The Victorian legislation contains a specific provision that an employer must provide reasonable adjustments for an employee with a disability so they can perform the genuine and reasonable requirements of the position. The Tribunal Member considered this may involve employers moving an injured employee around within a classification to enable the employee to undertake other tasks.
 
The Tribunal Member criticised the employer for failing to consider the “genuine and reasonable requirements” of the role, for taking a narrow approach in looking at the role and posing inadequate questions to the medical examiner assessing her fitness for duty. Specifically, the Member found the independent doctor had not been asked whether reasonable adjustments could be made to the role. The Member referred to another medical report which suggested the employee be moved to a role where less telephone work was involved, and noted there was no evidence which showed the employer had considered this option.
 
Considering “Reasonable Adjustments”
 
These cases highlight the importance of not only obtaining a comprehensive fitness for duty assessment confirming an employee cannot perform the inherent requirements, but also giving thorough consideration to the “reasonable adjustments” element. From a practical viewpoint, this necessitates an employer conducting a full internal consultation with the relevant line managers and supervisors who have a familiarity with the workplace processes, roles and various types of equipment available in the industry and undertaking an internal review as to whether the company can provide facilities or services to enable the employee to perform those inherent requirements the doctor considers she cannot because of her disability.
 
“Reasonable adjustments” do not involve modifications to the inherent requirements of the substantive role itself (X v Commonwealth (1999) 200 CLR 177, 208 [102]), but rather provision of a service external to employment to assist the employee overcome a disability. An excellent statement by a Federal Court judge, Heerey J in Cosma v Qantas Airways Ltd [2002] FCA 640 explains this approach:
 
“this provision does not require the employer to alter the nature of the particular employment or its inherent requirements. Rather it is a question of overcoming an employee’s inability, by reason of disability, to perform such work. This is done by provision of assistance in the form of ‘services’, such as providing a person to read documents for a blind employee, or ‘facilities’ such as physical adjustment like a wheel chair ramp. The ‘services’ or ‘facilities’ are external to the ‘particular employment which remains the same”.
 
It is recommended an employer seek some input from an occupational physician or the employee’s treating doctor to ascertain whether any reasonable adjustments could be implemented at the same time when a fitness for duty assessment is obtained.
 
The above case summaries highlight employers’ obligations under discrimination legislation, in particular that it is of utmost importance that an employer explore all possibilities for reasonable adjustments to the role. Detailed records of such considerations should be maintained to support a defence to any subsequent discrimination claim which may be pursued.

About the author
 
Amber Chandler is a Sydney-based partner practising in employment law at law firm Kaden Boriss. Amber regularly provides legal advice to employers, particularly in regards to HR issues and appears regularly before the Fair Work Commission, Federal Circuit Court and State employment tribunals. Kaden Boriss has offices throughout Australia and internationally and practices in areas including workplace law, workers compensation, insurance and commercial law.
 

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