Disability, Discrimination and Unjustifiable Hardship

A recent decision of the Federal Circuit and Family Court of Australia highlights the requirement for employers to either make reasonable adjustments for employees with a disability if they don’t face unjustifiable hardship by doing so.

The following article explores the case and what it could mean for businesses.

Background

The employee, Mr Panazzolo, was employed by Don’s Auto as a Diesel Mechanic (the ‘Employer’). On 15 October 2020, Mr Panazzolo was assaulted, by two men, whilst walking his dog on a public pathway close to his home. In late December of 2020, Mr Panazzolo indicated his view that his orthopaedic surgeon had cleared him to return to work with some restrictions. Between January and February 2021 competing medical evidence was provided and considered, but ultimately resulted in an assessment that the employee was at a risk of aggravation, but also ‘considered suitable to return to the role, in a restricted manner and that he should:’

• Avoid heavy sustained or repetitive gripping tasks
• only perform tasks requiring up to a medium-heavy hand strength
• have a carrying restriction of 22.7 kg on an occasional basis.

Only one task was identified within his normal duties that would require a carrying capacity of up to 25 kg.

On the basis that only one task could not be performed, the employee sought a return to work with that one restriction. The Employer on the other hand determined that the employee could not perform the inherent requirements of their position and did not offer a return to work until that restriction was lifted.

In August 2021, the employee resigned, having not returned to work.

The Case

The employee maintained that the Employer had an obligation to not discriminate against him due to his temporary disability under Section 5 the Disability Discrimination Act 1992 (Cth) (‘the DDA’) unless doing so would have resulted in the Employer experiencing unjustifiable hardship.

Unjustifiable hardship, within the meaning of the DDA, is an assessment of the effect that one person’s disability will affect another – in this case a business. Those effects may be on the overall operation of the business, the expenditure to make accommodations, and any ongoing costs to the business. Given it was only one task that the employee could not perform, they argued that it would not have caused the employer to experience unjustifiable hardship.

The Employer maintained that the employee could not fulfill the inherent requirements of the job, and where there was a risk of aggravation, they could not provide a safe workplace. It was further argued that where an employee cannot fulfill the inherent requirements of a position, this is grounds by which an Employer can discriminate against an employee.

The Decision

The decision within the Federal Circuit and Family Court of Australia did not revolve around the Employer’s argument that the employee was unable to fulfill the inherent requirements of the position. This is because the accommodations that could have been made would have, in the Judges’s assessment, reasonably accounted for employee’s limitations.

Instead, the consideration then was whether those accommodations should have been made.

The Judge found that section 5(2) of the DDA creates a positive obligation to accommodate a person with a disability through a reasonable adjustment. A reasonable adjustment is one that does not impose an unjustifiable hardship as described earlier. The decision took into account that the employer made no accommodation, did not attempt to make any accommodations, nor offer any accommodations. The Judge determined, on the evidence, that they shifted the responsibility all onto the employee to manage the situation for themselves, and therefor did not fulfill their obligation.

The employee was award $40,000 in damages, plus interest.

What employers can do

Employers must consider what adjustments they can make in a workplace to accommodate a disability, whether permanent or temporary, and then make a reasonable assessment of whether those adjustments will cause unjustifiable hardship.

If you fail to do both then there is a risk of being in breach of the DDA.

Importantly, this does not disturb the rights of employers to not offer work or possibly end employment, where an employee cannot fulfill the inherent requirements of the position, but that assessment of inherent requirements needs to be considered against those reasonable adjustments.

Similarly, employers must maintain a safe work environment, but it is their obligation first to look at all reasonable controls while also considering the impact of those controls on the business and the individuals effected – especially if it means one or more employees will be excluded from the workplace.

Case Reference:  

Panazzolo v Don’s Mechanical and Diesel Service Pty Ltd [2023] FedCFamC2G 665