The failure to make reasonable adjustments for employees with disabilities could be a costly mistake
Posted on February 09, 2017
Under the Disability Discrimination Act 1992 (Cth) (Act), an employer has a responsibility to make reasonable adjustments to an employee’s work environment if that employee is unable to carry out the inherent requirements of a job due to a disability.
Under the Act, an adjustment is reasonable unless making it would impose an unjustifiable hardship on the employer.
The decision of Butterworth v Independent Australia Services (Human Rights) [2015] VCAT 2056 highlights the importance of taking a broad view to ‘reasonable adjustments’ and considering the employment as a whole.
In this case, the applicant worked at Independence Australia Services (IAS), a not-for-profit organisation, in the position of Customer Service Officer. In 2011, the applicant sustained neck and shoulder injuries due to alleged overuse of the telephone. The applicant later lodged a workers’ compensation claim, which was accepted. After 14 months of modified duties, IAS terminated the applicant’s employment with five weeks’ notice paid in lieu.
The applicant brought a claim against IAS for discrimination on the basis that IAS failed to make reasonable adjustments to accommodate her disabilities and had terminated her employment.
IAS denied the allegations and submitted that the applicant’s employment was terminated because no reasonable adjustments could be made and there was a risk the applicant’s injury would be exacerbated if she returned to her pre-injury duties.
The Victorian Civil and Administrative Tribunal considered the matter and held:
- IAS had unlawfully discriminated against the applicant;
- employers may be required to consider whether there are other positions where the disabled employee can undertake a higher proportion of other tasks.
- IAS had the ability to redeploy the applicant within three different areas of the business to provide less telephone work; and
- doing so would have had no financial impact on the employer, and caused no detriment to the applicant.
The employee was awarded $3,325.25 for economic loss and $10,000 for distress, hurt, and humiliation. This compensation was heavily moderated by the fact that the employee secured alternative employment within a short period of leaving.
In a similar NSW case (Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827), the Federal Circuit Court ordered an employer to pay $170,000 compensation to an employee for pain and suffering and breach of contract.
Although the decision of Butterworth v Independent Australia Services dealt with Victorian legislation, this case is nevertheless instructive when considering the Commonwealth requirements.
The reasonable adjustment requirement does not require employers to create a ‘perfect working environment’, nor are employers required to create a new job for the disabled employee. However, this case highlights that employers must genuinely consider any “reasonable adjustments” to assist the employee to perform the inherent requirements of their role. Any failure to do so before making a decision that could adversely affect an employee in their employment (i.e. termination), could be a very costly mistake.