- It's hard for an employer to show it was justified in discriminating against an injured employee based on OHS concerns.
- When restructuring or selling a business, employers must consider all employees.
A recent Victorian decision has confirmed that courts and tribunals are reluctant to allow employers to use OHS obligations as a shield against compliance with other legal obligations such as anti-discrimination (Brunsch v Venture Mold and Engineering Australia Pty Ltd  VCAT 920).
Mr Brunsch had been working as an employee toolmaker for Venture at its Huntingdale premises since 1991. In 1992 and 1996 he suffered workplace injuries and was on restricted duties until 9 November 2004. On 9 November 2004, Mr Brunsch was injured in a non-work related transport accident that made him unfit for his restricted duties.
In November 2005 and while Mr Brunsch was still absent from work being unfit for any duties, Venture notified its employees that its operations at Huntingdale were to be transferred to Campbellfield. All employees working at the Huntingdale site were given the option of either a transfer to an equivalent position at another site or payment of a severance package. Mr Brunsch did not receive any notification that the Huntingdale site was to close, nor was he given the option of a transfer or severance package.
In October 2007, Mr Brunsch was certified fit for normal duties, however his position at Huntingdale no longer existed. Venture had not made Mr Brunsch an offer for a transfer or a severance package. Mr Brunsch subsequently claimed indirect discrimination on the grounds of impairment under the Victorian Equal Opportunity Act 1995.
In order to succeed in his claim Mr Brunsch needed to satisfy the Victorian Civil and Administrative Appeals Tribunal on the balance of probabilities:
- that he was a person with an "attribute" (impairment) as defined under the Act;
- that Venture imposed a requirement or condition;
- the requirement imposed was not reasonable;
- that he did not, or could not, comply with that requirement because of his impairment; and
- that people without his attribute did and could comply with the requirement imposed by Venture.
Mr Brunsch claimed that to be offered a transfer or severance package, Venture imposed the requirement that a person must be performing work at the relevant time and/or be 100 percent fit and able to work at the time.
As part of its defence to the claim, Venture argued that its discrimination, if found, was permitted by section 69 of the Act, which permits discrimination where it is necessary to comply with other laws. Venture claimed its actions were in compliance with its obligations to maintain a safe working environment under the Occupational Health and Safety Act 2004 (OHS Act).
Venture claimed that no light duties were available at Campbellfield and therefore employees needed to be 100 percent fit in order to work at that premises as toolmakers. Venture took the position that if Mr Brunsch was made the offer and accepted, it would have been unable to maintain a safe working environment for him at Campbellfield, in breach of its obligations under the OHS Act.
The Tribunal rejected this defence. The Tribunal found that Venture's OHS obligations were not to be viewed in such a constrained or artificial way. In the Tribunal's view, Venture's OHS obligations were obligations at large and to be afforded to each and every employee, irrespective of whether an employee was on WorkCover benefits or not.
Venture was found to have indirectly discriminated against Mr Brunsch in breach of the Act. As a remedy, the Tribunal ordered that the employer provide Mr Brunsch a choice between a transfer to the Campbellfield site or a severance package.
This decision confirms that it remains a difficult task for an employer to satisfy a court or tribunal that it was justified in discriminating against an injured employee based on OHS concerns.
It would appear necessary for an employer to bring clear and cogent evidence that demonstrates a legitimate basis for denying an injured employee rights that other employees enjoy, based on OHS concerns. An employer would be well served by undertaking a thorough, transparent and well documented approach in assessing and determining whether there are justifiable reasons for excluding an injured worker from the workplace or from benefits they would normally be entitled to if they did not suffer the injury or illness.
This decision also serves as a timely reminder for employers to ensure that all employees are considered in times of restructuring of a business (including sale of a business) and where considerations of transfer of employment and severance payments are being made. The failure to consider employees who may be ill or injured and either temporarily away from the workplace or on restricted duties could lead to a successful discrimination claim against the employer. In a sale of business scenario, the incoming employer could also face a claim for failing to provide the same opportunities to all prospective employees, whether injured or not.
Thanks to Chris Keefe for his help in preparing this article.
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