Thinking | 4 February 2016

Reasonable adjustments for injured employees? Think broadly.

Under equal opportunity legislation, employers are required to make reasonable adjustments for employees with a disability so they can continue to perform the genuine and reasonable requirements of their position.

A recent decision of the Victorian Civil and Administrative Tribunal highlights the importance of taking a broad view about the reasonable adjustments that can be made to enable an employee with a disability to perform their role.

In particular, when determining the reasonable adjustments that can be made to an employee’s position, employers must consider whether the employee would be able to perform an adjusted position in other departments.

The Applicant was employed as a Customer Service Officer (CSO) in a call centre. She suffered neck and shoulder injuries due to alleged overuse of the telephone and subsequently lodged a workers’ compensation claim which was accepted.

After an extended period working modified duties, the employer terminated her employment due to her indefinite inability to perform the inherent requirements of her pre-injury position, and having decided that there were no reasonable adjustments that could be made. The Applicant claimed she had been discriminated against on grounds of disability.

The Tribunal found the employer had failed to make reasonable adjustments. The employer had focused too narrowly on reasonable adjustments that could be made to the Applicant’s pre-injury CSO position in the call centre. The employer failed to consider whether the Applicant could perform an adjusted CSO role in another department serviced by CSOs (and in which she had worked in the past) which involved less telephone use.

The Tribunal held that:

  • deciding what, if any, reasonable adjustments can be made requires an analysis of the requirements of the employment as a whole, and that analysis should not be too narrow; and
  • here, the role of CSO did not necessarily require answering phones full-time in the call centre. Not all CSOs worked in the call centre. Looking at the position as a whole, there were other areas in which the Applicant could work as a CSO with less telephone time.

The Applicant was awarded $3,325 in damages for economic loss (the Applicant found alternative employment within around six weeks of her dismissal), and $10,000 for hurt and distress.

The Tribunal noted that when considering whether adjustments are reasonable, an employer is entitled to consider the impact on efficiency and productivity, and customer service. Employers are not required to create a new job for a disabled employee, but they may be required to move staff around within a position to allow the disabled employee to undertake a high proportion of other tasks.

It is likely that both parties’ legal costs far exceeded the amounts awarded in this case. As such, the case serves as a timely reminder to consider, if possible, the early commercial resolution of disputes.

Butterworth v Independence Australia Services (Human Rights) [2015] VCAT 2056 (22 December 2015)

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