Thinking | 21 July 2017
Is that reasonable? The impact of federal discrimination laws when managing injured workers
A recent Federal Circuit Court decision1 reminds employers that the obligation under the federal Disability Discrimination Act 1992 (DDA) to make reasonable adjustments for injured workers:
- is limited to adjustments that would enable an employee to perform the role he or she is employed to do and
- does not require employers to redeploy an injured worker to an alternative suitable position.
Mr Hilditch was employed as a pre delivery foreperson which occasionally required him to be involved in mechanical work. He suffered a work injury to his hand and was temporarily incapacitated. Three months later following surgery and a period on suitable (administrative) duties, he returned to his full time pre-injury duties.
Mr Hilditch claimed that after returning to full duties, he complained regularly to his manager about pain in his hand when performing mechanical work and requested suitable duties. The company claimed that he raised this complaint on only one occasion during this period and that Mr Hilditch had been advised to consult his doctor.
The following year the company restructured its business and Mr Hilditch was offered the position of ‘fitter’ on a full time basis, which he accepted. Mr Hilditch claimed in the proceedings that in order to perform this new job, he made self-imposed reasonable adjustments to accommodate his hand injury while performing the mechanical work required.
Going forward Mr Hilditch suffered a series of further health issues (including a stroke, cancer and anxiety) and produced medical certificates stating he was either unfit for work with the company or fit for permanently modified duties only, being office duties. On the basis that he was unable to perform his role, the company subsequently terminated Mr Hilditch’s employment.
Mr Hilditch made a complaint to the Australian Human Rights Commission under the DDA claiming the company had:
- directly discriminated against him on grounds of disability by failing to redeploy, or transfer, him to suitable alternative employment and by failing to consider reasonable adjustments to his employment which led to his disadvantage or
- (in the alternative) indirectly discriminated against him by imposing on him the requirement that he be ‘fit to undertake pre-injury duties’ in circumstances in which the company knew this was not possible.
The Court found the company had not breached its obligations under the DDA because:
- in the time between Mr Hilditch’s return to full time pre-injury duties and his acceptance of the new fitter role, the company did not have any reason to consider or provide, any reasonable adjustments as he was able to perform the required duties (according to the evidence at trial)
- the company’s obligation was to provide reasonable adjustments to enable Mr Hilditch to perform the duties of the position he was employed to carry out (which, from June 2010, was the fitter position) and the medical evidence was that he could not perform that role or return to work for the company at all. No reasonable adjustments could have been made and
- Mr Hilditch only accepted the fitter role as he believed he would receive a medical examination, be found not to be fit for the role and be provided with a redundancy package. As such, his complaint did not arise from the DDA but from his grievance at not being offered a redundancy package.
Lessons for employers
This case reminds employers that, under the DDA, they are required to make reasonable adjustments that will enable the employee to perform the role in which they are employed. The obligation, under the DDA, does not extend to a requirement to make adjustments ‘to any role’ or to redeploy the employee into a different role.
1Hilditch v AHG Services (NSW) t/a Lansvale Holden  FCCA 1086
You might be also interested in...
Employment & Workplace Relations | 19 Jul 2017
In May 2015, the Abbott Government proposed changes to the paid parental leave scheme which sparked much controversy.
Employment & Workplace Relations | 24 Jul 2017
A recent unfair dismissal case, Ms Shahin Tavassoli v Bupa Aged Care Mosman, in which an employee was dismissed based on footage obtained covertly by another employee, has raised some issues regarding covert workplace surveillance.