By Deivina Peethamparam,Tony Gooch,Chris Mossman and
It isn't news for most of us that prospective employees have
workplace rights. James Hardie Australia Pty Ltd ("James
Hardie") found this out the hard way when the FWO investigated
the company for alleged discrimination against a prospective male
employee in Perth. The prospective employee made an official
complaint to the FWO when James Hardie refused to employ him
because he had a physical disability.
The prospective employee applied for a job in 2010 as a business
development manager and was originally offered the position. James
Hardie did not inform the prospective employee that the offer was
reliant on him satisfactorily completing a medical assessment, nor
did the advertised job position disclose any physical requirements
of the job. Nonetheless, the prospective employee agreed to undergo
the medical assessment and during such assessment, disclosed a
long-term shoulder injury. The subsequent medical report stated
that because of the prospective employee's injury, he would be
subject to restrictions and injury risks in performing tasks such
as lifting heavy products and climbing ladders.
On the basis of the medical report and without consulting the
prospective employee, James Hardie withdrew the job offer. The
prospective employee subsequently made a complaint to the FWO.
Following its investigation, the FWO determined that James
Hardie's actions breached the anti-discrimination provisions of
Australia's workplace laws. Of particular relevance was the
fact that it would be unlikely that any of the restrictions in the
medical report would substantially affect the prospective employee
in the performance of his role as business development manager.
As part of the Enforceable Undertaking, James Hardie agreed to
pay the man $30,000 compensation and to conduct an extensive review
and update to its workplace policies to ensure compliance with
workplace laws in the future. James Hardie also agreed to donate
$10,000 to the AED Legal Centre (a Melbourne-based centre providing
legal advocacy to people with a disability in the areas of
employment, education and training) and place an advertisement in
The Weekend Australian newspaper detailing its breaches and
apologising for them.
The FWO has subsequently made the point that any medical
assessments need to be confined to assessing a worker's ability
to perform the inherent requirements of the position. Further, any
medical report should be carefully considered and the worker should
be consulted, prior to making any determination with respect to the
worker's ability to perform the inherent requirements of the
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).