A recent court case highlights the differences between the Fair Work Act and the Disability Discrimination Act
There is no “definitive definition” of an inherent requirement, according to Kerryn Tredwell, partner in Hall & Wilcox’s employment practice.
But when courts reference this term they are talking about the fundamental duties that make up a role, such that if an employee didn’t perform any one of those duties they wouldn’t really be performing the role.
A simplistic example would be a truck driver who cannot drive; they would not be able to perform the inherent requirements of the role. In contrast there is an example of an accounts clerk who takes the cash to the bank every Friday and takes a car to get there. However, should they not be able to drive – relating to poor eyesight or other reason – they would not be able to perform that part of their role.
However, is that an inherent requirement of the role? “Probably not because taking that one duty or responsibility away doesn’t fundamentally change the job of the accounts clerk. It’s always somewhat open to interpretation but usually it’s a commonsense judgment,” said Tredwell.
Inherent requirements were particularly relevent in a recent court case that highlights the differences between the Fair Work Act and the Disability Discrimination Act
Mr Shizas, a lawyer by trade, had always wanted to be a police officer. He applied to the Australian Federal Police (AFP) but his application was knocked back on the basis that he had an arthritic condition and therefore didn’t meet the medical requirements of the AFP.
Mr Shizas requested a review of the case and made a second application, which was also rejected. However, the AFP did not have it all its own way – and herein lies the lesson for other employers.
Where this case holds interest for HR professionals is how it unfolded. Mr Shizas originally bought a discrimination claim in the Australian Human Rights Commission. He subsequently changed his mind and instead applied under the general protections laws in the Fair Work realm. The case highlights differences in the inherent requirements defence in each of those realms.
“It’s a defence in both jurisdictions to rely on the fact that a person can’t perform the inherent requirements of the job, but that defence works in very different ways and that’s the issue that this case threw up and where not much attention has been paid before,” said Tredwell.
All about the decision-maker
In general protections cases involving discrimination, the employer or prospective employer bears the onus of proving that no part of the reason for the relevant act or conduct was unlawfully discriminatory.
In relation to Mr Shizas’s first application, the AFP could not discharge this onus because it failed to produce evidence as to who made the decision to reject the application, and why. This resulted in the Court finding that the first refusal breached the general protections provisions of the Fair Work Act.
Tredwell said that this case highlights why, in general protections claims, it is critical to identify who the decision maker is.
“Who is the person who made the decision that’s being complained about? Because you’re going to have to prove that that person’s reason was not unlawful,” she said. “The only way to prove that is to effectively have that person as a witness and to have them give evidence about why they made the decision they made.”
Tredwell said that in most hierarchical organisations, often it’s not just one person who makes a decision – for example, it might be a manager making a decision about whether or not to terminate someone’s employment but it’s then signed off or approved by someone more senior up the chain. That can muddy the waters as to who actually made the decision.
“Sometimes you will have multiple decision-makers and you’ll then have to prove that the reasons for the decision made by all those people were completely lawful,” Tredwell said.
However, the news was better for the AFP in relation to the second refusal, which the Court accepted was the result of the relevant decision-maker’s genuine belief that the candidate, on account of his disability, was at a substantial risk of injury and therefore unable to safely perform the inherent requirements of the role.
Although the Court accepted that such a belief was probably mistakenly held in this case, there was enough evidence of the belief itself, and that it was genuinely held, for the Court to uphold the ‘inherent requirements’ defence.
The Court issued a declaration that the first refusal to employ the candidate was a breach of the FW Act, but otherwise dismissed the application with no further orders for relief.
Tredwell adds that had the claim been brought under the Disability Discrimination Act 1992 (Cth) (DDA), as originally intended, the outcome may have been different in relation to the second job application made by Mr Shizas.
Under the DDA, it doesn’t matter if an employer genuinely thinks a disability will place the employee in harm’s way; it needs to be established that the person cannot perform the role “in fact”. In other words, it’s not up to the decision-maker’s subjective view, but rather whether the candidate can objectively carry out the job’s inherent requirements.
“This means it is not a question of what the decision-maker subjectively believed, but whether the individual was objectively able to carry out the inherent requirements of the position,” said Tredwell.
Tredwell said the most the most common type of claim employees bring is an unfair dismissal claim, which comes forward in the Fair Work Commission. General protections claims, also handled by the FWC, are newer but becoming increasingly common. Discrimination complaints, in her experience, make up a much smaller percentage of complaints, and she believes employers would be much less familiar with the discrimination jurisdiction.
However, she added that the often subtle differences between each act create potential difficulties for employers – they need to understand each to avoid liability, and decisions need to be carefully documented. “Employers who don’t understand the repercussions of each may leave themselves exposed if, for any reason, they are found to have discriminated against an employee,” she says.
In conclusion, Tredwell said this case is a reminder for businesses that when potential issues of discrimination arise in relation to decisions being made, both the general protections and discrimination frameworks need to be kept in mind, and decisions carefully documented, as different considerations need to be taken into account to avoid liability.