Australia: What are reasonable adjustments in disability discrimination law?

Last Updated: 2 December 2017
Article by Mark Curran

The concept of "reasonable adjustments" is pervasive in discrimination law but there are differing views as to what the concept requires. Whilst there is a statutory obligation on employers to make reasonable adjustments for employees with impairments that does not extend to fundamentally changing the nature of the role the employee was employed to do. This principle was demonstrated by a decision of the Federal Circuit Court of Hilditch v AHG Services (NSW) trading as Lansvale Holden [2017] FCCA 1086.

Legislation

Section 5 of the Disability Discrimination Act 1992 (Act) contains a gloss on the traditional definition of direct discrimination. Subsection 2 provides as follows:

"For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
  • The discriminator does not make, or proposes not to make reasonable adjustments for the person; and
  • The failure to make the reasonable adjustments has, or would have the effect that the aggrieved person is, because of the disability, treated less favourably then a person without the disability would be treated in circumstances that are not materially different."

Section 21A of the Act also effectively imposes an obligation on employers to make reasonable adjustments. Subsection 1 provides:

"This division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of the disability of the aggrieved person if:
  • The discrimination relates to particular work (including promotion or transfer to particular work); and
  • 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, principal or partnership made reasonable adjustments for the aggrieved person."

Facts of the Case

However, these sections do not require employers to significantly change the duties of the relevant position. In the case under discussion, the employee sustained an injury to his left hand while performing his duties on 13 January 2009 which required surgery. He returned to his pre-injury duties in around April 2009. In July 2010, the employee commenced work as a fitter with the respondent after a company restructure. On 12 October 2010 the employee suffered a stroke at work. The following year in January he was diagnosed with throat cancer.

The employee was subsequently assessed by a doctor as being no longer able to perform his duties as a fitter due to aggravation of his left hand injury.

On 22 June 2011, the employee attended a meeting with the respondent and advised that he could return to work performing "office duties, driving duties and/or other similar duties." In March 2012 a "final" WorkCover NSW medical certificate was issued stating the employee was "fit for office duties only. Cannot use tools or perform fitter duties. Not fit for work at AHG."

The respondent terminated the employee's employment on 5 April 2011 stating that, with reference to the medical certificate, they had no option but as to regard the employment as at an end. The employee alleged that the respondent was in breach of the Act because it did not redeploy or transfer him to other employment or consider any other reasonable adjustment to his employment to allow him to continue to work in employment with the respondent.

Consideration by the Court

The Court noted the following statement of Mortimer J. in Watts v Australian Postal Corporation [2014] FCA 370:

"To what does the adjustment relate? By section 5 (2), it is made for "the person with the disability." It is not made "to the position the person occupies." It is not made "to the equipment the person uses." In the context of discrimination at work and Division 1 of part 2 of the Disability Discrimination Act, it is an alteration or modification for "the person which operates on the person's ability to do the work he or she is employed or appointed to do." The adjustment is to enabling or facultative.

The Court thought the employee's complaints misunderstood the employer's obligations under the Act. That obligation was to make reasonable adjustments to the employee's situation so that he could continue working the position for which he was employed, that is, the fitter position.

The Court noted from the period of 26 August 2011 to the date of termination of employment, the employer was unable, given the medical evidence, to consider or provide reasonable adjustments so that the employee could continue in his position as fitter. From 24 October 2011, the medical evidence was that the employee could not return to work for the respondent at all. This, it wasn't possible to make reasonable adjustments to the position the applicant was employed for given the medical certificates which provided he was unfit for fitter duties.

The application was therefore dismissed. It is also worth noting the following comments made by Mortimer J. in the decision of Watts:

"There is, in my opinion no reason in the text, context or purpose of section 5 (2) or within section 4 and within the Disability Discrimination Act as a whole to construe the word "adjustment" in a way which might arbitrarily limit the kind of modifications or alterations required to enable a disabled worker to perform his work. Technology changes and advances at an increasing pace and disabled people can be the beneficiaries of such changes and advances. The technological advance which enables Professor Stephen Hawking to compose text and communicate orally through cheek movements detected by an infrared switch mounted on his spectacles is but one well publicised example of an "adjustment" that a decade or two ago may have been little more than a theory."

Conclusion

Therefore, whilst adjustments should focus on those which enable the employee to perform the position for which they are employed, so that the employer can satisfy the "reasonableness" test, employers should be open to making such facilitative or enabling adjustments as technology allows.

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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