Employers who are considering terminating the employment
of an injured worker for being unable to undertake the requirements
of the role must enquire as to whether the employee could
adequately perform the job if reasonable adjustments were made. To
do otherwise can amount to unlawful discrimination.
Dziurbas v Mondelez Australia Pty Ltd (Human Rights)
 VCAT 1432 (9 September 2015)
The Plaintiff was a 63 year old confectioner employed by
Mondelez Australia Pty Ltd working on a production line style
machine which packaged chocolate products.
In September 2011, the Plaintiff injured his elbow working on a
machine in the course of his employment. The injury was diagnosed
as "tennis elbow" and he made a workers' compensation
claim. He returned on light duties after five days and his duties
were managed under his compensation claim until January 2013. At
that time, it was accepted the Plaintiff had fully recovered from
the elbow injury.
Unrelated to the elbow injury, and during the course of the
compensation claim, the Plaintiff had some non-work related hernia
symptomology. He had surgery in June 2013, after which he took
eight weeks leave for his recovery.
On 23 October 2013, the Plaintiff was given a letter terminating
his employment effective immediately on the basis Mondelez
understood he did not have the capacity to undertake the inherent
requirements of his role. The decision was largely based on an
independent medical report obtained following two inconsistent
reports from the Plaintiff's own doctor regarding his
The Plaintiff brought a claim in the Victorian Civil and
Administrative Tribunal (VCAT) claiming he was subject to direct
and indirect discrimination, along with discrimination by way of a
failure to make reasonable adjustments to his role in breach of the
Equal Opportunity Act 2010.
It was held by VCAT that Mondelez had not properly investigated
the Plaintiff's role at the time of his termination. It had
been assumed by Mondelez that the Plaintiff was largely required to
operate a steel bank machine which was accepted to be a fairly
onerous task. The reality, however, was the Plaintiff performed a
myriad of other less physical tasks and this meant Mondelez's
claim that the Plaintiff was not physically able to undertake the
role, or at least parts of it, was unfounded. On that basis VCAT
held the Plaintiff had been directly discriminated against by
reason of his disability.
Further, it was held Mondelez had not made appropriate enquiries
as to whether the Plaintiff's role could be reasonably adjusted
to accommodate him. This was in breach of section 20 of the
Equal Opportunity Act which imposes an obligation on
employers to make reasonable adjustments for employees with
disabilities. VCAT also found Mondelez failed to obtain medical
evidence as to what reasonable adjustments could be made.
This amounted to discrimination on the basis that "even
if Mondelez had been correct in its understanding of [the
Plaintiff's] substantive role, it made no attempt to consider
whether any adjustments at all could be made to reduce the risk of
injury arising from his disability"1.
In this regard, it is also worth noting section 21A of the
Disability Discrimination Act 1992 (Cth) provides it is
not unlawful for a person to discriminate against another on the
grounds of disability if, because of the disability, the aggrieved
person would be unable to carry out the inherent requirements of
the particular work, even if the relevant employer made reasonable
adjustments for the aggrieved person
An award of $20,000.00 was made to compensate the Plaintiff for
injury to his feelings. VCAT also noted an intention to award the
Plaintiff more than $230,000.00 for economic loss unless Mondelez
could give compelling reasons, in further submissions, as to why
such a figure was incorrect.
Employers who are considering terminating the employment of an
injured employee need to consider each situation individually,
ensuring they have a correct understanding of the employee's
If an employer is considering terminating a worker on the basis
they cannot undertake the requirements of their role, enquiries
should be made as to whether an employee could adequately perform
the job if reasonable adjustments were made. Further medical
evidence should be obtained as to the appropriateness of the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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