Mullins Lawyers l eNews Publications l Page 1

EMPLOYMENT l Issue No. 09 l Disability discrimination and obligation to provide reasonable adjustments

January 2016

Dismissing an employee simply because they are unable to return to their pre-injury duties and fulfil the inherent requirements of their role will not automatically be considered fair on the basis of a lack of capacity.

In the case of Butterworth v Independence Australia

Services (Human Rights)1, the Victorian tribunal found

the employer had failed to accommodate the neck and shoulder injuries sustained by a Customer Service Officer in her own workplace or make genuine and reasonable adjustments before dismissing her.

The error the employer made was to focus on the employee’s pre-injury duties in the call centre and not consider whether she could perform work as a Customer Service Operator in either of the employer’s two other divisions.

Under section 20 of the Victorian Equal Opportunity Act 2010 there is an express obligation on an employer to provide reasonable adjustments for an employee that has a disability so that they can perform the genuine and reasonable requirements of their position.

In this case, the employer failed to consider the genuine and reasonable requirements of the employment as a whole and whether there were reasonable adjustments that could be made to enable the employee to perform her duties.

Notably, the tribunal also found the employer had posed inadequate questions to an independent medical examiner assessing the employee’s fitness to return to pre-injury role and hours. In particular, the examiner was not asked whether reasonable adjustments could be

1 [2015] VCAT 2056 (22 December 2015)

made for the employee to ensure she could perform the position of customer service operator.

The tribunal concluded that reasonable adjustments could and should have been made.

Whilst there is no express obligation in the Anti-Discrimination Act (Queensland) 1991, employers should make reasonable adjustments unless the adjustments would constitute unjustifiable hardship on the employer themselves.

It is imperative that employers remember this requirement when considering the termination of an employee’s employment due to incapacity.

Alan Strain

Partner

Mullins Lawyers

t +61 7 3224 0323

astrain@mullinslaw.com.au