Employers may think that an employee’s injury sustained outside of work has nothing to do with them. However, a recent decision re-affirms the obligations on employers under the Disability Discrimination Act 1992 (Cth) (DDA) to provide reasonable adjustments for an employee, even where an injury was sustained outside of work.
In this case the employer’s failure to make reasonable adjustments resulted in an order for it to pay $44,000.00 in special damages, general damages and interest.
- Adjustments for all injuries should be considered in the workplace, including for injuries sustained outside of work. This will be different for each role, and should not cause the employer unjustifiable hardship.
- Expecting employees to be completely recovered from their injury before they return to work could be unreasonable.
- Communication with employees before engaging in formal correspondence and litigation is important and may assist in resolving disputes earlier.
If the employee is required to undergo medical assessments to determine whether they are fit to return to work, employers typically cover the costs.
What is direct discrimination?
Direct discrimination occurs on the ground of a disability where;
- a person does not make, or proposes not to make, reasonable adjustments for the person with a disability; and
- the failure to make these adjustments will have the effect of the person with a disability being treated less favourably than a person without the disability in similar circumstances.
The DDA uses the term “disability”, which encompasses an injury. Disability is defined broadly under the DDA and includes an existing, previous and future disability, as well as an imputation to a person.
If an employee sustains an injury that is not work related, reasonable adjustments must still be made to ensure that the employee is not discriminated against because of their disability. Employees with a disability should not be treated less favourably than a person without a disability.
An adjustment will not be reasonable if it causes the employer an unjustifiable hardship. What is considered an unjustifiable hardship depends on different factors such as the nature of the work and the size of the organisation.
Some examples of reasonable adjustments may include amending working hours and deadlines temporarily.
When are reasonable adjustments not required?
The DDA sets out exceptions to unlawful discrimination in sections 21A and 21B. These include:
- Where the employee cannot perform the inherent requirements of their position, even after reasonable adjustments are made.
- Where reasonable adjustments cause you unjustifiable hardship
If either of the above apply, employers do not need to make reasonable adjustments.
In October 2020, the employee fractured his arm when he was assaulted outside of work. As such, he was not entitled to lodge a WorkCover claim for this injury. The employee was employed as a diesel mechanic and was advised that he could not undertake heavy lifting or loading for approximately 3 months post-surgery. The employee’s duties included using tools and loosening and tightening bolts.
The employer relied on a 41-page job dictionary and physiotherapy report to demonstrate that the employee could not return to work as his position consisted of heavy lifting and loading. The employer sought a full medical clearance before the employee could return to work.
The employee argued that:
- the employer directly discriminated against him by preventing him from returning to work because of an injury that had been imputed to him;
- reasonable adjustments were not made to the employee’s workplace and duties;
- the employee had recovered to the extent that he could have returned to work.
The employer claimed that the employee could not safely perform the inherent requirements of his position, and that there were no reasonable adjustments that could be made. The employer arranged a physiotherapist to conduct an evaluation of the employee. However, the evaluation did not extend to the employer’s premises, and the employee’s ability to conduct his duties in the workplace was not observed.
The employee was discriminated against because of his disability. The employee was subjected to less favourable treatment due to his disability because he could not return to work.
The employer could have made reasonable adjustments by allowing a staged return to work, letting the employee use sack trucks and seek help from staff members, arranging a functional capacity assessment and formally making available physiotherapy treatment. The employee could have returned to work with ‘fairly modest modifications and alterations’.
To read the decision Panazzolo v Don’s Mechanical and Diesel Service Pty Ltd  FedCFamC2G 665, click here.
If you need advice on reasonable adjustments and your obligations towards injured employees, Justitia can help. Please contact email@example.com for further information.