Recent FWC decision confirms that employers must offer adjustments to disabled workers
There is a legal obligation placed on employers to make reasonable adjustments to features of the workplace where an employee with a disability or injury may face barriers at work because of the structures of the workplace or their role. Ultimately, all employers are required to make suitable adjustments to an employee’s role, or the workplace of the affected employee, unless it would cause the employer unjustifiable hardship.
In determining what constitutes unjustifiable hardship, courts and tribunals have previously considered:
- the benefit or detriment to the employee
- any benefit or detriment to others affected by the adjustment
- whether the disability is permanent or temporary
- the effect of the mental illness
- the cost of the adjustment and the employer’s financial position
- the availability of financial or other assistance to the employer in making the adjustment.
Recent decisions looks at reasonable adjustments
A recent decision in Panazzolo v. Don’s Mechanical and Diesel Service Pty Ltd [2023] FedCFamC2G 665, has reiterated the requirement for employers to offer reasonable adjustments to workers who return to work after suffering an injury or otherwise face the possibility of legal action.
Mr Panazzalo, who was an employee of Don’s Mechanical and Diesel Service, suffered a severe injury to his wrist after being assaulted whilst walking his dog outside of his employment. In returning to work, a medical professional declared that he could not engage in any heavy lifting for a period of three months. Panazzolo subsequently argued that his employer failed to reasonably accommodate him when his employer advised that they required a medical professional to clear him for “all duties” that are expected of a diesel mechanic for him to return to work, instead of offering him the ability to return to work with lighter duties.
The employer argued that light duties were not possible, as the employee did not have a driver’s license and his injury may pose a public safety risk, as a diesel mechanic was often required to tighten wheel bolts and other essential equipment.
FWC rules unlawful discrimination
Ultimately, the Fair Work Commission held that the employer unlawfully discriminated against Panazzalo on the basis of his disability, thereby breaching the Disability Discrimination Act 1992 (Cth). This was because the employer failed to make reasonable allowances for the employee, highlighting the fact that the disability was only temporary and failed to propose or entertain any lighter duties.
As a consequence of the employer’s failure to make reasonable adjustments, the employee was awarded a significant payment of $44,000 in damages by the Fair Work Commission.
This case reminds employers to ensure that they are implementing reasonable adjustments where an employee has a disability, suffers from an injury, or faces other barriers at work. If you are an employer with an employee returning to work, it is recommended that you consult legal counsel to ensure that you are providing adequate reasonable adjustments.
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