Discrimination against employees with disabilities is a
significant problem and a difficult issue for employers to deal
Every case must be considered on its own merits.
Best practice guidelines to minimise risk do, however, make the
job of employers easier.
Of particular concern to employers are situations where an
employee can't perform the genuine and reasonable requirements
of their job because of injury or illness.
When deciding whether to terminate employment in such
circumstances, an employers obligations under discrimination,
occupational health and safety and employment legislation are all
In most cases it is unlawful to directly or indirectly
discriminate against an employee because of their impairment.
The Workplace Relations Act 1996also makes it unlawful to
terminate an employee for a discriminatory reason, including
because they are suffering from a physical or mental illness or
There is no formula or set method for ensuring an employer does
not breach discrimination or industrial relations legislation.
Whether found in discrimination or industrial legislation, the
prohibitions on disability discrimination are not absolutely rigid
– there are exceptions.
If an employee is unable to perform the genuine and reasonable,
or inherent, requirements of the job (see Disability Discrimination
Act 1992), then it may be "unlawful" to terminate the
employee's employment. An employer must, however, be able to
establish that it would not be reasonable, in all circumstances, to
provide special services or facilities to enable the employee to
perform the requirements of the job, on the basis that their
provision would impose "unjustifiable hardship" on the
Furthermore, an employer may assert that, even if the employee
were provided with special services and facilities, the employee
would still be unable to perform these requirements.
The Workplace Relations Act 1996 says an employer may not
terminate an employee for a reason that is discriminatory (being
because they have a disability), unless the disability results in
them being unable to perform the inherent requirements of the
The variety of obligations in relation to employment
discrimination adds to the complexity of the environment in which
an employer makes decisions about the employment of workers
suffering from an injury or illness which is affecting their
ability to work for an extended but indefinite period.
WHAT SHOULD EMPLOYERS DO?
To avoid engaging in unlawful conduct, an employer should:
Maintain contact with the injured employee on a regular and
Clearly identify the inherent requirements of their pre-injury
Consider reasonable accommodations that may assist injured
employees to return to the workplace performing their pre-injury
Exercise fairness and reasonableness in determining an injured
employee's work capacity;
Keep notes of discussions with injured employees about their
situation/status and formalise any offer of modified duties for a
Remember that as an employer you have OH&S obligations to
not only injured employees, but also to other employees of the
Decisions that result in an employee's termination should
be clear, unequivocal and based on up to date medical evidence. An
employer should clearly demonstrate that termination was a last
resort, but necessary for the businesses operational requirements.
Each decision needs to be approached on a case by case basis.;
Employers need to ensure the viability of their business
enterprise, which may require employing someone on a permanent
basis to perform the injured person's role. On the other hand
an employee may be unable to return to work for a period (which may
be hard to estimate precisely) through no fault of their own. The
interests of the injured or ill employee also need to be
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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