Thinking | 31 May 2017
When can discrimination be justified in a general protections claim?
A recent Federal Court case highlights the differences between how the ‘inherent requirements’ defence operates under the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act), as compared to under anti-discrimination legislation.
In the case of Shizas v Commissioner of Police1, the Court found that the Australian Federal Police (AFP) had rejected a candidate’s job application on two occasions due to his arthritic condition.
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 FW Act.
However, the Court accepted that the second refusal 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.
The ‘inherent requirements’ defence: Fair Work Act vs Disability Discrimination Act
Had the claim been brought under the Disability Discrimination Act 1992 (Cth) (DDA), however, the outcome may have been different in relation to this second job application.
In the context of general protections claims, the FW Act permits otherwise discriminatory action where such action is taken ‘because of the inherent requirements’ of the role. To establish the defence in this context, the court is concerned only with whether the person who took the discriminatory action genuinely believed (even if that belief was mistaken) that the individual could not perform the inherent requirements of the role.
In contrast, the inherent requirements defence in the DDA only applies if it is established that, because of the disability, the person discriminated against is, in fact, unable to carry out the inherent requirements of the position. In other words, 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.
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.
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