By Deivina Peethamparam,Tony Gooch,Chris Mossman and Audrey Mills
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 position.
