In July 2015 the Federal Circuit Court of Australia (the Court) delivered its judgment in Huntly v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827 (Huntly’s case).
The Court found that Corrective Services NSW unlawfully discriminated against Huntly and failed to make reasonable adjustments after she was diagnosed with Crohn’s Disease. As a result, the Court ordered that Corrective Services NSW pay Huntly, a former employee, more than $180,000 plus interest for economic loss, pain, suffering and general damages.
Ms Huntly was diagnosed with Crohn’s Disease in June 2009. After taking 10 weeks leave she returned to work and was capable of performing some duties of her position.
Ms Huntly expressed interest in a position with the Corrective Intelligence Group (CIG) and was offered the CIG position. She commenced work in that position on 13 September 2010. Ms Huntly then sought permission to work from home and her request was denied and no reasons were given.
In May 2011 at a meeting Ms Huntly was informed that she could either agree to be medically retired or undergo medical assessment.
Ms Huntly underwent a medical assessment to determine whether she was fit for her substantive duties and the assessment found that she was not. The findings of the assessment were disputed by Ms Huntly who alleged that Corrective Services did not provide the inherent requirements of the position to the doctor nor ask him to consider what reasonable adjustments could be made to her position to enable her to continue in that position.
Ms Huntly was advised that her position would end and was placed on leave for several months pending a decision about her future.
During this time of leave, Corrective Services resisted Ms Huntly’s numerous requests for transfer to a suitable position prior to the employment relationship being terminated.
The Federal Circuit Court found that Ms Huntly did suffer from a disability, which her managers were aware of and that those managers should have investigated making reasonable adjustments to her workplace and employment as recommended by her treating doctors.
So what are reasonable adjustments?
Employers have an obligation under the Disability Discrimination Act 1992 (Cth) (DDA) and the relevant state/territory legislation to make reasonable adjustments to accommodate a person with a disability, unless doing so will cause unjustifiable hardship to the employer.
Reasonable adjustments can include providing aids or other accommodations to allow the employee to perform the inherent requirements of their job.
Management must be aware of the obligations employers have with respect to reasonable adjustments, in Huntly’s case, the Court pointed out that there were:
“...unclear lines of management and supervisory responsibility...inability or unwillingness of managers and supervisors to accept responsibility for their actions,”
It is important that managers are supported in considering reasonable adjustments that may be required for employees in accordance with the DDA.
A failure to provide reasonable adjustments for an employee’s disability is a failure to comply with the DDA, resulting in significant decisions from the Court in favour of employees such as Ms Huntly.
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