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Disability discrimination and the positive duty to make reasonable adjustments

Disability discrimination legislation protects persons from being treated less favourably as the result of their disability.

Disability discrimination legislation protects persons from being treated less favourably as the result of their disability.

In Panazzolo v Don’s Mechanical and Diesel Service Pty Ltd [2023] FedCFamC2G 665, the Federal Circuit and Family Court of Australia criticised an employer’s complete failure to make reasonable adjustments for an employee who suffered a disability arising from a non-work related injury.

The employee was employed as a Diesel Mechanic for Don’s Mechanical and Diesel Service Pty Ltd (the Employer) when he was assaulted outside of work hours, suffering an injury to his left arm which required surgery.

After the surgery, the employee was initially certified as unfit for work and was not to perform any heavy lifting or unloading for 3 months. When the employee reached out to the employer about his return to work, the employer advised the employee that he would not be able to return to work until he provided a medical clearance which cleared him to perform his normal duties as a diesel mechanic.

The employee consulted an orthopaedic registrar who provided a report which stated that the employee would be able to return to work at full capacity. At about the same time, the employer arranged for the employee to undertake a functional capacity evaluation by a physiotherapist.

The physiotherapist’s report (the Report) provided that the employee reported symptoms in his wrists and noted that there was a risk of aggravation. The Report stated that the employee was suitable for a return for work with restrictions which included avoiding heavy sustained or repetitive gripping tasks, only performing tasks which required up to a medium-heavy hand strength and having a carrying restriction of 22.7kg on an occasional basis. The Report recommended that a further review be conducted in six to eight weeks to determine suitability to return to unrestricted duties.

The employee submitted that on the basis of the Report he was able to return to work and that the only part of his job which required a carrying capacity of 25kg was the task of replacing a clutch which he was able to perform with the assistance of a staff member or a mechanical aid. The employer disagreed and held the view that the Report provided that there was a risk of aggravation and recommended restrictions. The employer maintained that the employee was required to provide a full medical clearance before returning to work.

The employee was eventually required to resign from his employment in August 2021 so that he could apply for social security benefits.

The employee made a disability discrimination claim, alleging that he suffered direct discrimination on the basis of a disability in breach of the Disability Discrimination Act 1992(Cth) (DD Act).

The employee alleged that the employer:

  1. Refused to allow him to return to the workplace on the basis of an imputed injury; and
  2. Failed to make reasonable adjustments including use of a mechanical aid, or the assistance of other team members for physical tasks.

The employee submitted that under subsection 5(2) of the DD Act the employer had a positive duty to make reasonable adjustments to allow him to return to the workplace. The employee argued that the employer did not make reasonable adjustments, and instead placed the onus on him to get a full medical clearance.

The employer denied that it breached the DD Act, and submitted that:

  1. The employee was unable to carry out the inherent requirements of his position in a safe manner; and
  2. There were no reasonable adjustments that it could have made to allow the employee to safely carry out the inherent requirements of his position. The employer also claimed that any adjustment would result it in suffering from an unjustifiable hardship.

The Court found that the employee was subjected to less favourable treatment on the basis of his disability as he was not able to return to work.

The Court found that the employer misunderstood its obligations and that even though the employee’s injury was not work related, it still had an obligation to make reasonable adjustments to accommodate the injury but did not do so. In this regard, the Court noted that the employer’s evidence was that it was only required to accommodate the employee returning to work if he was 100% fit. For the Court, this resulted in the burden being placed on the employee to demonstrate that he was no longer disabled – which defeated the objects of the DD Act.

The Court also found that the employee provided a number of medical certificates about his capacity to return to work, but not only did the employer not accept the certificates, it ignored them.  

As to the reasonable adjustments that could have been made, the Court noted that the Report itself proposed adjustments being made to accommodate the employee’s disabilities. The Court also considered that there were fairly modest modifications and alterations which would have facilitated the employee’s return to the workplace – these included:

  • a staged return to the workplace;
  • allowing him to use mechanical aids and team members assistance;
  • arrange a functional capacity assessment; and
  • physiotherapy sessions.

The Court stated at [271]:

In my view, these would have been reasonable adjustments given the circumstances arising in this case.  They would have involved a greater degree of proactivity, on the part of Don’s Auto, than actually occurred.  Rather, in early 2021, the attitude adopted by Don’s Auto was that Mr Panazzolo had to establish to its complete satisfaction that he had no discernible disability whatsoever before it would permit him to return to work.

The Court was satisfied that these adjustments would not have resulted in significant financial hardship to the employer.

The Court also did not consider that the employee was notable to carry out the inherent requirements of his role.

Accordingly, the Court found that the employer discriminated against the employee on the basis of his disability. The employer was ordered to pay the employee $44,000 in damages which included $30,000 in special damages.

Lessons for employers

This case is a timely reminder to employers of the obligations under disability discrimination legislation including the obligation to provide reasonable adjustments to employees with a disability. A person will be found to have directly discriminated against a person on the ground of a disability if:

  1. The person does not make, or proposes not to make, reasonable adjustments for the person; and
  2. The failure to make the reasonable adjustments has, or would have the effect that the person, because of the disability, is treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

As highlighted in this case, the employer incorrectly claimed that it was only required to return the employee to work if he could demonstrate that he was fit to perform the inherent requirements of his role, without considering what reasonable adjustments could be made.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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